text:
    A13A2233, A13A2234.
    In THE INTEREST OF B. W., a child (two cases).
    (756 SE2d 25)
   MCFADDEN, Judge.

In 2006, the juvenile court found two-year-old B. W. to be deprived, placed him in the long-term custody of his maternal grandmother, and allowed his parents visitation with him. More than six years later, on December 18, 2012, the grandmother petitioned to terminate the parental rights of B. W.’s parents, alleging among other things that the boy “would be harmed by having a continuing relationship with his parents even on a visitation basis.” The juvenile court granted the petition, from which the parents have filed separate appeals, the mother in Case No. A13A2233 and the father in Case No. A13A2234.

Former OCGA § 15-11-94 sets forth the procedure for termination of parental rights, which involves two steps. First, the juvenile court must find

parental misconduct or inability, which requires clear and convincing evidence that: (1) the child is deprived; (2) the lack of proper parental care or control is the cause of the deprivation; (3) the cause of the deprivation is likely to continue; and (4) continued deprivation is likely to cause serious physical, mental, emotional, or moral harm to the child. If these four factors exist, then the court must determine whether termination of parental rights is in the best interest of the child, considering the child’s physical, mental, emotional, and moral condition and needs, including the need for a secure, stable home.

In the Interest of J. R. N., 291 Ga. App. 521, 525 (2) (662 SE2d 300) (2008) (citation omitted). On appeal, we view the evidence in the light most favorable to the juvenile court’s ruling to determine whether a rational trier of fact could have found by clear and convincing evidence that the parents’ rights should have been terminated. In the Interest of T J. J., 258 Ga. App. 312, 314 (574 SE2d 387) (2002). Because there was clear and convincing evidence supporting the juvenile court’s termination of parental rights, we affirm in both cases.

1. Facts and procedural background.

On March 27, 2006, in response to a petition brought by the Department of Family and Children Services (DFCS), the juvenile court entered an order finding B. W. to be deprived, citing among other things the parents’ drug use. In that order, the juvenile court placed B. W. in the long-term legal custody of his grandmother until his eighteenth birthday pursuant to former OCGA § 15-11-58 and allowed the parents supervised visitation with him. See former OCGA § 15-11-58 (i) (1) (A) (allowing juvenile court to place child in long-term custody of willing and qualified relative where reunification efforts with parents would be detrimental to child but termination of parental rights is not in child’s best interest). The juvenile court also informed the parents in the order that she would not consider returning custody to them until they completed, at their own expense, all of the goals in a DFCS case plan then in existence, many of which addressed the parents’ drug use. See also Ertter v. Dunbar, 292 Ga. 103, 105 (734 SE2d 403) (2012) (clarifying that custody awarded under former OCGA § 15-11-58 is not “permanent” custody but “long-term” custody). The entry of this order apparently ended DFCS’s involvement in the case.

Court records indicate that the parents consented to the March 27, 2006 long-term custody order and, in any event, they did not appeal from that order. It also appears from the record that the arrangement established in that order functioned until 2011. From that point onward, the parties engaged in a heated and protracted dispute over B. W. Between April 2011 and December 2012, the parents unsuccessfully attempted to vacate the long-term custody order; the grandmother twice sought to suspend the parents’ visitation with B. W. (the first instance resulting in a temporary suspension of visitation and the second instance resulting in a suspension of visitation that was in effect during the termination proceedings); and the juvenile court appointed a guardian ad litem who concluded that the dispute was having a detrimental effect on B. W. and that the parties might retaliate against B. W. in connection with their dispute.

On December 18, 2012, the grandmother filed her petition for termination of parental rights. She alleged that B. W. was currently deprived due to, among other things, the parents’ continued drug use, their unstable financial and housing resources, a recent instance of domestic violence between them, their refusal to admit that B. W. previously had been sexually abused by another child in their household, their failure to provide consistent financial support for B. W., and their failure to complete all of the goals set forth in the earlier DFCS case plan to which the juvenile court referred in the 2006 long-term custody order. She further alleged that visitation with the parents was and would continue to be harmful to B. W. and that a termination of parental rights was in his best interest.

At the March 4, 2013 termination hearing, the evidence showed that the parents were using illegal drugs in the months leading up to the hearing. The father admitted to using marijuana in January 2013. He failed a drug test because he did not produce a usable sample for the test, but he admitted that he was “dirty” at the time. The mother admitted to using methamphetamine and marijuana, and she tested positive for these substances in January 2013. On at least one occasion in the fall of 2012, the parents had attempted to flush illegal drugs from their systems before submitting to a drug test. And within the previous year, the parents had smoked a substance in a glass pipe in front of B. W. Neither parent had undergone treatment for their drug use, and the mother denied having a drug problem. Nevertheless, both testified that they intended to begin treatment immediately.

The hearing evidence showed that in the fall of 2012, the parents’ failure to pay their utility bills and rent led to their power being turned off and their subsequent eviction from their residence. The father was employed but the mother was not, and she testified that she had no employment prospects. At the time of the hearing, the parents were living with relatives in a portion of a warehouse that had been converted into a living area. Also living in their household was B. W.’s half sister, who was 13 years old at the time of the hearing. The half sister had a troubled history, including cutting her wrists on more than one occasion and engaging in promiscuous behavior with an 18-year-old man. B. W. previously had accused the half sister of sexually abusing him, but the parents denied that any such abuse had occurred.

The hearing evidence showed that in the fall of 2012, the father had “head butted” the mother during an argument, injuring her. The mother declined to seek assistance from law enforcement in response to this episode, but she briefly moved out of the household. Around this time, the father passed out and was taken to the hospital, where he was held for 24 hours for mental health reasons. The father testified that he was struggling with depression, which he attributed in part to his relationship with his wife, the mother. The mother again moved out of their household in December 2012, and she testified that she did so because she “couldn’t deal with ... everything,” including “[t]he environment. . . that I’m living in.”

The hearing evidence showed that both parents were significantly in arrears on child support payments for B. W. In the fall of 2012, the grandmother took out a warrant on the mother for failure to pay child support, on which the mother ultimately was arrested and jailed. The parents tried to resolve the warrant by unsuccessfully proposing to the grandmother that they pay her an amount of child support significantly less than what they owed, which the grandmother would then return to them. The mother also offered to relinquish her parental rights in B. W. to the grandmother in exchange for being relieved of her child support duties.

The hearing evidence showed that B. W. has extensive special needs, including a form of autism, and needs structure from his caregivers. Although he was nine years old at the time of the hearing, he acted several years younger than that age and was in a kindergarten-through-second-grade class at a school that serves children with severe emotional and behavioral disabilities. He engaged in frequent, disruptive behavior at the school, that included threatening to kill others. He also displayed problematic behavior at home — “meltdowns,” outbursts, screaming and bed-wetting — that coincided with his visits with his parents. Since the suspension of those visits, B. W. had seemed calmer and less stressed at home.

At the hearing, the juvenile court asked B. W.’s guardian ad litem for a recommendation. The guardian ad litem testified he believed it would be in B. W.’s best interest for the court to grant the petition to terminate parental rights. Although he acknowledged the bond between B. W. and his parents, he opined that the boy was “very troubled,” in part due to the dispute between the parents and the grandmother, that the parents could not provide the boy a stable home, and that the boy’s problems would improve if the parents’ rights were terminated.

2. Parental misconduct or inability.

The juvenile court found that B. W. was currently deprived, that the cause of the deprivation was the parent’s lack of care and control, that this cause was likely to continue, and that continued deprivation was likely to cause B. W. serious physical, mental, emotional or moral harm. There was clear and convincing evidence to support these findings.

(a) Current deprivation.

First, there was clear and convincing evidence that B. W. was currently deprived, which in the case of noncustodial parents involves a showing that, “if the child was returned to his [parents] at the time of the hearing, he would be deprived. This may be established by showing that the conditions upon which an earlier finding of deprivation was based still exist at the time of the termination hearing.” In the Interest of M. T. F., 318 Ga. App. 135, 145-146 (1) (733 SE2d 432) (2012) (citation and punctuation omitted).

Although the parents argue that they have made improvements to their lives since the 2006 deprivation finding, some of the circumstances that led to the deprivation finding still existed or had resumed at the time of the termination hearing. The order finding B. W. to be deprived focused in large part on the parents’ failure to take steps to address their drug use. The parents assert that they stopped using drugs for a period of time following that order. Nevertheless, by the time of the termination hearing they were again using illegal drugs, they were attempting to circumvent drug testing, and they had not undergone drug treatment even though their failure to do so was a basis for the 2006 deprivation finding. Because the parents did not appeal from the ruling that these circumstances showed B. W. was deprived, they cannot now claim that the same circumstances, again in existence at the time of the termination hearing, do not show deprivation. See In the Interest of P. D. W., 296 Ga. App. 189, 192-193 (1) (a) (674 SE2d 338) (2009).

Moreover, there was clear and convincing evidence that, at the time of the termination hearing, the parents were not well-equipped to meet B. W.’s special needs. See In the Interest of T. S., 310 Ga. App. 100, 102 (1) (712 SE2d 121) (2011) (court must focus on needs of child in determining whether child is deprived). B. W. has significant, challenging emotional and behavioral needs that require a highly structured environment. The evidence set forth above, however, revealed the parents’ lives to be volatile, chaotic, and sometimes violent. The father himself admitted that he was not ready to regain custody of B. W. This evidence showed that B. W. would remain deprived if returned to his parents’ custody, and consequently the juvenile court was authorized to find him currently deprived.

(b) Lack of proper parental care or control as cause of deprivation.

The parents argue that the juvenile court erred in finding that B. W.’s deprivation was due to a lack of proper parental care or control, on the ground that they maintained a parental bond with the boy. The failure of a noncustodial parent “[t]o develop and maintain a parental bond with the child in a meaningful, supportive manner” is one of the factors for a juvenile court to consider in determining whether the child’s deprivation is due to a lack of proper parental care or control. Former OCGA § 15-11-94 (b) (4) (C) (i). But this is not the only factor for the juvenile court to consider. See former OCGA § 15-11-94 (b) (4) (B), (C) (together listing nine factors relevant to whether a child’s deprivation was due to the lack of proper parental care or control by a noncustodial parent).

The evidence set forth above showed that B. W.’s current deprivation was caused, among other things, by the parents’ inability or unwillingness to remain drug-free and their failure to obtain treatment for their drug use. As this behavior was also a basis for the unappealed deprivation order, the parents cannot now challenge that their continuing, untreated drug use was not a cause of B. W.’s deprivation. See In the Interest of P. D. W., 296 Ga. App. at 192-193 (1) (a)-

The evidence also addressed the parents’ unwillingness to pay child support. See In the Interest of C. A. S., 308 Ga. App. 757, 760 (1) (708 SE2d 655) (2011) (“A parent’s failure to pay child support is compelling evidence that she is not an able parent.”) (citation omitted). Not only were both parents in arrears, but instead of paying the support they owed to resolve the warrant against the mother, they had tried to circumvent the warrant by offering to temporarily “give” the grandmother money and, in the case of the mother, by offering to give up her parental rights.

Moreover, the evidence showed that the parents either could not or would not establish and maintain the type of environment necessary to address B. W.’s significant special needs. Rather than the structured environment the boy required, the parents’ living conditions were unstable and chaotic, and their relationship was volatile. There was evidence that the parents’ continued involvement in B. W.’s life had a negative effect on his emotional and behavioral state, regardless of the bond between them.

For these reasons, the juvenile court was authorized to find by clear and convincing evidence that a lack of proper parental care or control caused B. W.’s deprivation.

(c) Likelihood of deprivation to continue.

Although there was evidence that the parents had completed some of their case plan goals and that, for a time, they had stopped using illegal drugs, clear and convincing evidence supported the juvenile court’s finding that B. W.’s deprivation was likely to continue. “[T]he juvenile court was authorized to consider the [parents’] past conduct in determining whether the causes of deprivation were likely to continue. And the decision as to a child’s future must rest on more than positive promises which are contrary to negative past fact.” In the Interest of D. B., 306 Ga. App. 129, 137 (1) (701 SE2d 588) (2010) (citation and punctuation omitted). The parents stated their intent to begin drug treatment, but “[jjudging the credibility of [the parents’] good intentions was a task for the juvenile court.” In the Interest of A. G., 253 Ga. App. 88, 90 (1) (c) (558 SE2d 62) (2001). In this case the juvenile court expressly found the mother to have perjured herself during the termination hearing. And the evidence authorized the juvenile court to find that the other conditions contributing to B. W.’s deprivation, such as the ongoing antagonistic relationship between the parents and the grandmother and the parents’ own instability, were not likely to change.

Decided March 4, 2014.

Joshua J. Smith, for appellant (case no. A13A2233).

Kermit N. McManus, for appellant (case no. A13A2234).

(d) Likelihood that continued deprivation will cause serious harm.

The parents have not argued that there was insufficient evidence that continued deprivation was likely to cause serious physical, mental, emotional, or moral harm to B. W., and there was clear and convincing evidence that B. W. was suffering — at least emotionally — from his parents’ continued presence in his life. Under the circumstances of this case, the facts authorizing the finding that deprivation was likely to continue also authorize a finding that the continued deprivation was likely to cause serious harm. See In the Interest of J. E., 309 Ga. App. 51, 57 (1) (d) (711 SE2d 5) (2011). Cf. In the Interest of K. C. R., 283 Ga. App. 593, 595 (642 SE2d 214) (2007) (finding insufficient evidence that continued deprivation of child in long-term custody of grandparents was likely to cause child requisite harm, where the record showed that child was “living with family members and enjoyfed] a stable home environment”).

3. Best interest.

Likewise, the parents have not challenged the juvenile court’s determination that the termination of their parental rights would be in B. W.’s best interest. And the evidence set forth above, including the guardian ad litem’s recommendation, authorized that determination, which was a matter within the juvenile court’s discretion. See In the Interest of T. B. R., 304 Ga. App. 773, 782-783 (1) (e) (697 SE2d 878) (2010) (juvenile court did not abuse discretion in finding that termination of parental rights was in deprived child’s best interest where parent was unable to provide for child’s special needs). See generally In the Interest of W. L. H., 292 Ga. 521, 524 (739 SE2d 322) (2013) (“The protector of a child’s best interests is his guardian ad litem.”) (footnote omitted).

Judgments affirmed.

Doyle, R J., and Boggs, J., concur.

Samuel S. Olens, Attorney General, Shalen S. Nelson, Senior Assistant Attorney General, Calandra A. Harps, Assistant Attorney General, Rodney Q. Quarles, for appellee.

       For this reason, we hereby grant the motions filed in both appeals by the Georgia Department of Human Services, in which that agency seeks to be removed as a party to the appeals.


source: Caselaw Access Project

author: McFADDEN, Judge.

license: Public Domain

text:
    A13A1666.
    WILMOTT v. THE STATE.
    (755 SE2d 818)
   McFADDEN, Judge.

A jury found Michael Wilmott guilty of the offenses of owning, operating or conducting a chop shop in violation of OCGA § 16-8-83 and removing or falsifying a vehicle identification number in violation of OCGA § 40-4-21, and he was convicted of these offenses. He argues on appeal that the jury returned mutually exclusive verdicts. The verdicts, however, were not mutually exclusive but were, at most, inconsistent verdicts that did not require reversal. Wilmott also argues that the trial court erred when, after the state rested, the trial court required him to indicate whether he intended to testify. The trial court, however, had the authority to engage in this colloquy with Wilmott, and the record does not show that the timing of the colloquy harmed him. Accordingly, we affirm.

1. Jury verdicts.

Wilmott argues that his conviction for operating a chop shop in violation of OCGA § 16-8-83 must be reversed because the jury’s verdicts finding him guilty both of that offense and of falsifying a vehicle identification number under OCGA § 40-4-21 were mutually exclusive. See Allaben v. State, 294 Ga. 315, 320 (2) (a) (5) (751 SE2d 802) (2013) (finding, where there was at least a reasonable probability that the jury returned mutually exclusive verdicts for malice murder and reckless conduct, that malice murder conviction must be reversed, both verdicts must be set aside, and a new trial must be had on those counts). As detailed below, the verdicts were not mutually exclusive and do not require reversal.

In arguing that the verdicts were mutually exclusive, Wilmott reasons as follows. He was indicted for violating OCGA § 16-8-83 by owning, operating or conducting a chop shop in which he “knowingly alter[ed] a vehicle identification number on a [particular motorcycle] with the intent to misrepresent the identity of a motor vehicle [.]” Under OCGA § 16-8-83 (a), “[a]ny person who knowingly and with intent... [o]wns, operates, or conducts a chop shop ... shall be guilty of a felony[.]” A “chop shop” is defined as

any building, lot, or other premise where one or more persons knowingly engage in altering, destroying, disassembling, dismantling, reassembling, or storing any motor vehicle or motor vehicle part known to be illegally obtained by theft, fraud, or conspiracy to defraud in order to either: (A) Alter, counterfeit, deface, destroy, disguise, falsify, forge, obliterate, or remove the identification, including the vehicle identification number of such motor vehicle or motor vehicle part, in order to misrepresent the identity of such motor vehicle or motor vehicle part or to prevent the identification of such motor vehicle or motor vehicle part; or (B) Sell or dispose of such motor vehicle or motor vehicle part.

OCGA § 16-8-82 (1).

Wilmott also was indicted for violating OCGA § 40-4-22 with respect to the same motorcycle. OCGA § 40-4-22 (a) makes it

unlawful to buy, sell, receive, dispose of, conceal, use, or possess any motor vehicle, or any part thereof, from which the manufacturer’s serial numbers or other distinguishing numbers or identifying marks have been removed, defaced, covered, altered, or destroyed for the purpose of concealing or misrepresenting the identity of such motor vehicle.

The jury, however, found Wilmott guilty of the lesser included offense of violating OCGA § 40-4-21, which pertinently provides that “[a] person who wilfully removes ... or falsifies an identification number of a vehicle or an engine for a vehicle is guilty of a misdemeanor.” OCGA § 40-4-21 (a).

Wilmott reasons that the jury’s decision to find him guilty of the lesser offense of violating OCGA § 40-4-21 (a) means that the jury found he did not have the “purpose of concealing or misrepresenting the identity of [the] motor vehicle” required for the greater offense of violating OCGA § 40-4-22. Consequently, Wilmott argues, he could not have had the necessary intent “to misrepresent the identity of such motor vehicle” required to find him guilty of violating OCGA § 16-8-83 in the manner alleged in his indictment. For this reason, he argues that the jury returned mutually exclusive verdicts which the trial court should have treated as acquitting him of the charge that he violated OCGA § 16-8-83.

The verdicts returned by the jury, however, were not mutually exclusive. ‘^Verdicts are mutually exclusive where a guilty verdict on one count logically excludes a finding of guilt on the other.” Turner v. State, 283 Ga. 17, 20 (2) (655 SE2d 589) (2008) (citation and punctuation omitted).

A mutually exclusive verdict may be rendered in a particular case where the offenses or acts alleged in the indictment as underlying the [two] counts reflect that the jury, in order to find the defendant guilty on both counts, necessarily reached two positive findings of fact that cannot logically mutually exist.

Flores v. State, 277 Ga. 780, 783 (3) (596 SE2d 114) (2004) (citation and punctuation omitted). The two guilty verdicts returned by the jury in this case can be logically reconciled — a finding that a person, in violation of OCGA § 40-4-21, wilfully removed or falsified the identification number of a vehicle does not logically exclude a finding that the person, in violation of OCGA § 16-8-83, owned, operated or conducted a premise in which he knowingly altered a vehicle identification number with the intent of misrepresenting the vehicle’s identity. The decisions in Zant v. Stephens, 462 U. S. 862, 881 (II) (103 SCt 2733, 77 LE2d 235) (1983), and Dunagan v. State, 269 Ga. 590, 594-595 (3) (502 SE2d 726) (1998), to which Wilmott cites, do not support his claim that the jury in this case returned mutually exclusive verdicts; those decisions considered whether erroneous jury instructions were harmful.

Instead, Wilmott bases his argument on the fact that the jury did not find him guilty of the greater offense of violating OCGA § 40-4-22 (altering a vehicle identification number for the purpose of concealing the vehicle’s identity). But that fact creates at most an inconsistency. “[T]he rule against mutually exclusive verdicts ... is not implicated where ... verdicts of guilty and not guilty are returned.” Turner, 283 Ga. at 20 (2) (citation omitted). Accordingly,

[w]hile [Wilmott’s] assertion of error speaks in terms of mutually exclusive verdicts, the basis of his argument is that the verdicts are inconsistent. In Milam v. State, 255 Ga. 560 (2) (341 SE2d216) (1986), [the Supreme Court of Georgia] abolished the rule that inconsistent verdicts in irreconcilable conflict in criminal cases warranted reversal . . . , adopting the rationale set out by the [United States] Supreme Court in United States v. Powell, 469 U. S. 57 (105 SC 471, 83 LE2d 461) (1984). ... In Powell, the court noted that inconsistent verdicts could be the result of jury mistake, compromise, or lenity, but it is unknown whether the mistake, compromise, or lenity was exercised in favor of the defendant or the prosecution. In our [Supreme Court’s] cases endorsing the abolition of the inconsistent verdict rule, [that Court has] determined it is not generally within the court’s power to make inquiries into the jury’s deliberations, or to speculate about the reasons for any inconsistency between guilty and not guilty verdicts.

Id. (citations and punctuation omitted).

There is “an exception to the abolition of the inconsistent verdict rule: when instead of being left to speculate about the unknown motivations of the jury the appellate record makes transparent the jury’s reasoning why it found the defendant not guilty of one of the charges[.]” Turner, 283 Ga. at 20-21 (2). Wilmott, however, has neither argued that the exception applies in this case nor pointed to any part of the appellate record that illuminates the jury’s reasoning.' Instead, he merely speculates that the jury “may have” found his testimony credible and, thus, mistakenly ascribed to him the intent required to find him guilty of the chop shop violation. This is exactly the type of speculation against which our Supreme Court has warned. See Turner, 283 Ga. at 20 (2).

In summary, although Wilmott characterizes the jury’s verdicts as mutually exclusive, his challenge is actually predicated upon the inconsistent verdict rule, which has been abolished in Georgia. For that reason, we find no error. See Milam, 255 Ga. at 562 (2).

2. Wilmott’s decision to testify.

After the state rested its case, but before Wilmott presented his case, the trial court engaged in a colloquy with Wilmott in which the trial court informed him of his right to testify, obtained from him a statement of his intent to testify, and determined that he had “made his decision to testify with a complete understanding of his rights.” Wilmott argues that this constituted reversible error. We disagree.

Wilmott correctly asserts that in Georgia “there is no requirement that the trial court have an on-the-record colloquy with a non-testifying defendant in order to inform the defendant of the right to testify and to obtain a knowing and intelligent waiver of tbat right.” Sanford v. State, 287 Ga. 351, 355 (4) (695 SE2d 579) (2010) (citations omitted). Accord State v. Nejad, 286 Ga. 695, 695-700 (1) (690 SE2d 846) (2010); Burton v. State, 263 Ga. 725, 728 (6) (438 SE2d 83) (1994); King v. State, 194 Ga. App. 662, 664 (6) (391 SE2d 660) (1990) (physical precedent); Coonce v. State, 171 Ga. App. 20, 21 (318 SE2d 763) (1984). But Georgia law does not preclude atrial court from conducting such a colloquy. In fact, this Court has described such a colloquy as the “better practice,” Coonce, 171 Ga. App. at 21 (2), and our Supreme Court has acknowledged that “it has been suggested that trial courts should engage in such a colloquy as a prophylactic measure.” Nejad, 286 Ga. at 697 (1), n. 3 (citations omitted). Moreover, there are cases in Georgia that reflect such a colloquy occurring at the same time as the colloquy in this case — between the close of the state’s case and the start of the defendant’s case. See, e.g., Thornton v. State, 292 Ga. 796, 798 (2) (741 SE2d 641) (2013).

In this case, however, Wilmott’s counsel expressly asked the trial court to “hold off” on having Wilmott state his intent to testify, “without making a commitment at [that] point[,]” on the ground that counsel was “just not sure that we want to commit to present [Wilmott] as a witness in this case. We might. I’d say there’s a pretty good chance that we will, but we may not.” In response, the trial court criticized counsel’s use of the word “we,” stressing that the decision to testify belonged to Wilmott, not his counsel. The trial court then stated, “I need a response from your client at this time, sir. However, if you would like me to re-address these questions with him at the time prior to him testifying, I will do so.” At that point Wilmott spoke up, indicating that he intended to testify.

“[T]he trial judge has a wide discretion in the handling of a trial.” Davis v. State, 127 Ga.App. 76, 80 (3) (192 SE2d 538) (1972). But that discretion is not without limit; it cannot be exercised in an illegal, unjust or arbitrary manner. Intl. Assn. of Machinists v. Street, 215 Ga. 27, 40 (3) (108 SE2d 796) (1959), rev’d on other grounds, 367 U. S. 740 (81 SCt 1784, 6 LE2d 1141) (1961); Davis, 127 Ga. App. at 80 (3). Although the trial court in this case acted properly in instigating the colloquy with Wilmott about his intent to testify, we discern no reason from the record why the trial court should have continued with the colloquy and pressed Wilmott to state his intent once Wilmott’s counsel indicated that Wilmott was not yet ready to do so. The trial court’s actions undermined the relationship between Wilmott and his counsel and infringed upon Wilmott’s ability to determine the manner in which he would present his case. Faced with the request to “hold off,” the better practice would have been to postpone the colloquy until later in the trial.

Nevertheless, we need not decide whether the trial judge’s decision to proceed with the colloquy in this case exceeded the limits of its discretion, because even if the decision constituted error, the record does not show that Wilmott was harmed. Although he argues that the trial court, “in requiring a declaration of intent to testify, gave the [s]tate an unfair advantage that the [s]tate was not entitled to have,” the record reveals no such advantage. It was not a secret that Wilmott was contemplating testifying; before he announced his intent to testify, his counsel volunteered that information, stating that there was a “pretty good chance” the defense would call Wilmott as a witness. And the trial court made it clear that it would allow the defense to revisit the issue of Wilmott testifying. So, it does not appear that the trial court prevented Wilmott from changing his mind about testifying later in the proceedings.

Decided March 5, 2014.

John A. Steakley, for appellant.

Daniel J. Porter, District Attorney, Courtney R. Spicer, Assistant District Attorney, for appellee.

“We will not reverse a case for error unless the error is shown to be harmful.” Craft v. State, 254 Ga. App. 511, 515 (4) (563 SE2d 472) (2002) (citation and punctuation omitted). Accord O’Neal v. State, 288 Ga. 219, 223 (2) (702 SE2d 288) (2010). We find no harm in this case. See generally Boothe v. State, 293 Ga. 285, 289-290 (2) (b) (745 SE2d 594) (2013) (describing harmless error analysis).

Judgment affirmed.

Doyle, P. J., concurs. Boggs, J., concurs in judgment only.


text:
    A13A1855.
    CHO CARWASH PROPERTY, LLC et al. v. EVERETT.
    (755 SE2d 823)
   McFADDEN, Judge.

Cho Carwash Property, LLC and its workers’ compensation insurer, Auto Owners Insurance Company (together, the employer), appeal the award of workers’ compensation benefits to Dustin Everett, arguing that the administrative law judge (“ALJ”) miscalculated Everett’s average weekly wage. The calculation hinges on the factual finding of the number of hours Everett was supposed to work each day. The appellate division accepted the ALJ’s factual finding on this issue, and we affirm.

Our review of factfinding in this context is deferential.

When reviewing an ALJ’s findings that are accepted by the [appellate division], we cannot disturb those findings as long as there is any evidence to support them, because neither the superior court nor the appellate court has the power to find facts. We must construe the evidence in favor of the party-prevailing before the [appellate division] and treat the [appellate division]/ALJ’s findings as conclusive and binding when supported by any evidence.

D.W. Adcock, M.D., P.C. v. Adcock, 257 Ga. App. 700, 702 (572 SE2d 45) (2002) (citation and punctuation omitted).

Viewed in this light, the evidence shows that Everett was injured on the job on February 18, 2010. Everett had been hired as a lube technician the week before and had been working only three days when he was injured. He testified that he was hired to work full time, at least 40 hours per week. According to Everett, he was supposed to work from 8:00 a.m., when the car wash opened, until 7:00 p.m., when it closed, six days a week. Everett testified that he worked a full day the first day of his employment and that his hours were cut short the second day because business was slow due to rain.

Kimberly Cho, the owner of the car wash, described the situation differently. She testified that Everett was hired to work part time. She testified that Everett was in training when he was injured, and he would have been placed on a part-time schedule once the training was complete. She also testified that lube technicians, such as Everett, were usually scheduled to work four days per week. She testified that the car wash was open from 8:00 a.m. to 6:00 p.m. Monday through Saturday, and 9:00 a.m. to 6:00 p.m. Sunday. She also testified that employees took 30-minute lunch breaks.

After Everett was injured, the employer paid him temporary total disability benefits of $131.19, based on an average weekly wage of $196.79. In 2012, the employer sought a credit for overpayment while Everett sought an increase in his award, contending that his average weekly wage was actually $425. After conducting a hearing, the ALJ awarded the employer the credit it sought but determined that Everett’s average weekly wage was $323, increasing his benefits to $213.18 per week. The appellate division and the superior court affirmed, and the employer appealed.

OCGA § 34-9-260 sets forth three methods for calculating an injured employee’s average weekly wage. The ALJ determined that neither OCGA § 34-9-260 (1) nor (2) was applicable for determining Everett’s average weekly wage. Instead, the ALJ determined that OCGA § 34-9-260(3) was the most appropriate method of calculation. That subsection provides that “the average weekly wages of the injured employee at the time of the injury shall be taken as the basis upon which to compute compensation and shall be determined” by using “the full-time weekly wage of the injured employee.” OCGA § 34-9-260 (3). The ALJ concluded that

the preponderance of the credible evidence shows that [Everett’s] employment contract contemplated that during his training, he was required to work four days a week, from the time the car wash opened until it closed. Based on the [o]wner’s testimony that the car wash was open on Monday through Saturday from 8:00 a.m. to 6:00 p.m, and that employees are provided a 30 minute lunch break, I find the correct amount of [Everett’s] average weekly wage was $323.00 (4 days x 9.5 hours per day x $8.50 per hour = $323.00).

The employer does not dispute that OCGA § 34-9-260 (3) is the proper method for calculating Everett’s average weekly wage. Rather, it argues that the ALJ and the appellate division applied the statute incorrectly by relying on Everett’s training schedule and that no evidence supports the calculation. In essence, the employer argues that the evidence shows that Everett’s average weekly wage should be $8.50 per hour x 5.5 hours per day x 4 days per week, based on Cho’s testimony that lube technicians are scheduled to work from 10:00 a.m. to 4:00 p.m. and have a 30-minute lunch break ([6 hours - 30 minutes] x 4 days).

But some evidence supports the ALJ’s calculation of the average weekly wage. She found that the wage should be calculated by multiplying four days (based on Cho’s testimony that lube technicians worked four days per week) by 9.5 hours per day (based on Everett’s testimony that he was supposed to work from the time the car wash opened until the time it closed; evidence that the first two days of employment he worked full days, albeit shortened hours the second day because of rain; Cho’s testimony that the car wash was open from 8:00 a.m. to 6:00 p.m. Monday through Saturday; and Cho’s testimony that employees took 30-minute lunch breaks) by $8.50 (the undisputed hourly wage).

We reject the employer’s argument that the ALJ improperly calculated the average weekly wage based on Everett’s training schedule. As noted, the testimony, particularly Everett’s testimony that he was supposed to work from the car wash’s opening until its close, supported the ALJ’s calculation of the average weekly wage at the time of the injury.

Since some evidence supported the calculation of the average weekly wage, we must uphold the findings of the ALJ and the appellate division and affirm the award of benefits.

Judgment affirmed.

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

Decided March 5, 2014.

Swift, Currie, McGhee & Hiers, Timothy C. Lemke, Rodney A. Ficker, for appellants.

Jonathan M. Rolnick, Michael H. Friedman, for appellee.


author: McMlLLIAN, Judge.

text:
    A13A1948.
    JOHN DEERE CONSTRUCTION & FORESTRY COMPANY v. PARHAM.
    (755 SE2d 825)
   McMlLLIAN, Judge.

John Deere Construction & Forestry Company (“Deere”) instituted a deficiency action against Carl S. Parham to recover the balance owed on a direct loan following the repossession and sale of a piece of farm equipment. After the parties stipulated to all material facts, Deere filed a motion for partial summary judgment, to which Parham filed a cross-motion for summary judgment, disputing the notice required prior to Deere’s sale of the repossessed equipment. Following a hearing, the trial court denied Deere’s motion for summary judgment and granted Parham’s cross-motion for summary judgment, noting that although it did not agree that the notice provisions of OCGA § 10-1-10 applied, it was nonetheless bound by Parham v. Peterson, Goldman, & Villani, 296 Ga. App. 527 (675 SE2d 275) (2009). In its enumerations of error, Deere argues that the trial court erred (1) in holding that the notice provisions of OCGA § 10-1-10 applied to the disposition of the equipment and (2) in relying upon Peterson in denying Deere’s motion for partial summary judgment and granting Parham’s cross-motion for summary judgment. We agree with the trial court that the notice provisions of OCGA § 10-1-10 are inapplicable to the loan contract at issue in this case, but we further conclude that the holding of Peterson does not require us to find otherwise. Accordingly, we reverse.

The evidence, as stipulated, shows that Parham purchased a John Deere 700 Crawler Dozer (“Dozer”) from Metrac, Inc. on November 20, 2007 for $79,646. Contemporaneous with the purchase of the Dozer, Parham executed a Loan Contract and Security Agreement (“Loan”) in favor of Deere to finance the purchase for a total of $84,568.72. Under the terms of the loan, Parham agreed to pay 60 monthly payments of $1,735.05 and granted Deere a purchase money security interest in the Dozer.

The parties have further stipulated that the Dozer was purchased and used for commercial and agricultural purposes, and not for personal, family, or household use, and that the Loan was a direct loan from Deere to Parham, and not a retail installment contract. Parham defaulted under the terms of the Loan by failing to make any required payments after September 2008, leaving a principal balance due on the Loan of $74,423.89. On January 20, 2009, Deere repossessed the Dozer following Parham’s voluntary return of the equipment. On February 26, 2009, Deere sent, by certified mail, a letter to Parham at the address provided by him on the Loan, notifying him of Deere’s intent to sell the Dozer via private sale sometime after March 8, 2009. Deere then sold the Dozer on March 19, 2009, for $40,000.

Deere subsequently filed this deficiency action, seeking the remaining balance due under the terms of the Loan. Deere contends that the notice it provided to Parham was proper pursuant to the applicable disposition provisions of Georgia’s Uniform Commercial Code (“UCC”), specifically OCGA § 11-9-613. On the other hand, Parham, relying on Peterson, maintains that the stricter notice provisions of OCGA § 10-1-10 should apply, and, therefore, Deere’s deficiency claim is barred for failure to meet those additional requirements. See generally Credithrift of America, Inc. v. Smith, 168 Ga. App. 45 (308 SE2d 53) (1983).

1. OCGA § 10-1-10 is included in the Retail Installment and Home Solicitation Sales Act (“Retail Installment Act”) and provides, in part:

When any goods have been repossessed after default in accordance with [the UCC], the seller or holder shall not be entitled to recover a deficiency against the buyer unless within ten days after said repossession he forwards by registered or certified mail or statutory overnight delivery to the address of the buyer shown on the contract or later designated by the buyer a notice of the seller’s or holder’s intention to pursue a deficiency claim against the buyer. The notice shall also advise the buyer of his rights of redemption, as well as his right to demand a public sale of the repossessed goods. . . .

OCGA § 10-1-10. The Retail Installment Act expressly defines the term “goods” as “all personalty when purchased primarily for personal, family, or household use.” OCGA § 10-1-2 (a) (2). This Court has long held that these provisions do not apply to equipment purchased for commercial use, as is the case here. Compare, e.g., Gold Kist, Inc. v. McNair, 166 Ga. App. 66, 67 (1) (303 SE2d 290) (1983) (equipment purchased for hog raising business does not fall within the Retail Installment Act); Rigdon v. Walker Sales & Service, Inc., 161 Ga. App. 459, 460 (288 SE2d 711) (1982) (Retail Installment Act not applicable to tobacco combine used for commercial farming operation); and Holder v. Brock, 129 Ga. App. 732, 732 (3) (200 SE2d 912) (1973) (Retail Installment Act does not apply to a mobile home), overruled on other grounds, Tucker v. Chung Studio of Karate, Inc., 142 Ga. App. 818 (237 SE2d 223) (1977) with Vikowsky v. Savannah Appliance Service Corp., 179 Ga. App. 135 (345 SE2d 621) (1986) (consumer’s financed purchase of a television fell within Retail Installment Act); Bell v. Loosier of Albany, Inc., 140 Ga. App. 393 (231 SE2d 142) (1976) (applying Retail Installment Act to household electronics and appliances); and Brown v. Jenkins, 135 Ga. App. 694 (218 SE2d 690) (1975) (Retail Installment Act applied to household goods).

Parham nonetheless contends that the Retail Installment Act has a “commercial application.” He urges that, because OCGA § 10-1-10 includes the phrase “[w]hen any goods have been repossessed after default in accordance with [the UCC],” the Retail Installment Act therefore applies to all transactions covered by the UCC. However, this interpretation ignores both the precise definitions set forth within the Retail Installment Act itself and this Court’s decisions interpreting and applying those definitions. Id. Because the parties here have stipulated that the Dozer was purchased for commercial and agricultural purposes, and not for personal, family, or household use, we find that the Loan does not fall within the definition of a “good” pursuant to the Retail Installment Act. Therefore, the notice provisions of OCGA § 10-1-10 do not apply to the Loan. See OCGA § 10-1-2 (a) (2).

Decided March 5, 2014.

Thompson, O’Brien, Kemp & Nasuti, R. Michael Thompson, Jeremy B. Ross, for appellant.

Richard D. Campbell, for appellee.

2. We now turn to the trial court’s reliance on Peterson, a case involving the same Carl S. Parham as appellee herein. In that case, Parham defaulted following the purchase of certain equipment and its financing through The CIT Group/Equipment Financing, Inc. (“CIT”). CIT later assigned its interest in Parham’s note to Peterson, Goldman, & Villani (“PGV”). Following repossession and sale of the equipment, PGV initiated a deficiency action. The trial court granted summary judgment to PGV, and Parham appealed, arguing that CIT failed to provide sufficient notice pursuant to OCGA § 10-1-10. This Court agreed that CIT’s notice failed to comply with OCGA § 10-1-10 and reversed the trial court’s grant of summary judgment in favor of PGV. Peterson, 296 Ga. App. at 529, 531.

Parham claims that the equipment at issue in Peterson was also commercial in nature and thus, this Court is bound to apply OCGA § 10-1-10 to this transaction. But in Peterson, the creditor apparently agreed that the equipment was for personal use and thus did “not contest the applicability of OCGA § 10-1-10.” Peterson, 296 Ga. App. at 529, n. 2. Accordingly, the Court did not consider whether that notice provision applied, nor is there any indication that this Court intended to depart from decades’ worth of precedent defining the applicability of the Retail Installment Act. Where, as here, the equipment at issue was purchased for commercial use, and thus outside the purview of the Retail Installment Act, and the parties have properly raised that Act’s applicability on appeal, we will follow our long-standing precedent and decline to broaden the scope of the Act. Accordingly, we reverse the trial court’s grant of summary judgment to Parham.

Judgment reversed.

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

       Inasmuch as the parties have stipulated as to the material facts, there remains no genuine issue of material fact, and we review the trial court’s application of the stipulated facts in denying Deere’s motion for summary judgment de novo. See Dunn v. Telfair County, 288 Ga. App. 200, 200 (653 SE2d 537) (2007).

       Deere, although arguing that the notice provisions of OCGA § 10-1-10 do not apply, concedes that its notice to Parham does not conform to those requirements in that it was not sent within ten days of repossession, did not state that Deere intended to pursue a deficiency claim, and did not apprise Parham of his right to redeem or his right to demand a public sale.

       Parham also argues in passing that Deere’s notification was not timely under OCGA § 11-9-612. However, this argument is without merit. The parties have stipulated that the transaction at issue was commercial in nature. Therefore, Deere’s notice, which was sent ten days before the earliest time of disposition, met the timeliness requirements of that statute, which provides that “[ijn a transaction other than a consumer transaction, a notification of disposition sent after default and ten days or more before the earliest time of disposition set forth in the notification is sent within a reasonable time before the disposition.” (Emphasis supplied.) OCGA § 11-9-612 (b).

       Thus, the relevant UCC provisions found in Part 6 of Article 9 of Title 11 are only-cumulative of OCGA § 10-1-10 as to consumer transactions, not commercial transactions.

       In disputes between private parties, and in the absence of a compelling reason, this Court will often defer to the law that the parties agree controls the issues in the case. See, e.g., Benefield v. Tominich, 308 Ga. App. 605, 613 (708 SE2d 563) (2011) (Blackwell, J., concurring dubitante).


author: Boggs, Judge.

text:
    A13A1987.
    BRYAN BANK & TRUST v. STEELE.
    (755 SE2d 828)
   Boggs, Judge.

In this premises liability action, we granted Bryan Bank & Trust’s (“the Bank”) application for interlocutory review of the trial court’s denial of its motion for summary judgment. Because the plaintiff, Bonnie Steele, failed to point to specific evidence of the existence of a hazard, and therefore failed to establish causation, the trial court erred in denying the Bank’s motion for summary judgment. We therefore reverse.

On appeal from the denial of summary judgment the appellate court is to conduct a de novo review of the evidence to determine whether there exists a genuine issue of material fact, and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.

(Citations and punctuation omitted.) Hood v. Todd, 287 Ga. 164, 165 (695 SE2d 31) (2010); see OCGA § 9-11-56 (c).

A defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case; instead, the burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmoving party’s case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue. OCGA § 9-11-56 (e).

Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

Viewed in the light most favorable to Steele, the record reveals that she fell while on the sidewalk of the Bank and was injured as a result. She deposed that she pulled into the Bank parking lot, parked in front of the Bank, walked along the sidewalk, and entered the Bank without incident. She recalled seeing a “very noticeable,” two to three-inch-high, black edging or border around a flower bed beside the sidewalk prior to her fall: “It was a metal. . . edging around the flowers, or around the flower beds.” After conducting business inside the Bank, Steele walked out of the Bank and down the sidewalk, taking the same route as she did upon entering the Bank, and suddenly fell and landed on her back: “all of a sudden I found myself just laying on the ground.” When asked if her foot caught on something or if she bumped into anything, Steele replied, “It is not really clear to me .... I just remember falling and trying to get up.” And when asked if she knew what caused her to fall, Steele stated: “I really believe it was the — the fencing. Because when they finally got me up to bring me back in the bank... I did look down, and it looked like the fence was protruding out on the sidewalk... it looked like something had been moved.” But Steele acknowledged that the fencing could have been moved as a result of her fall. She explained further, “I don’t know if [the border] had been moved or not, but it looked — it just looked like it was protruding. And it could have been from me.” Steele could not state for certain that the fencing was on the sidewalk before or after she fell.

1. The Bank contends that the trial court erred in denying its motion for summary judgment because Steele failed to establish that a hazardous condition existed. We agree.

With regard to premises-liability actions, Georgia law makes clear that while an owner or occupier of land has a statutory duty to keep its approaches and premises in a reasonably safe condition for invitees, an owner or occupier of land is not an insurer of the safety of its invitees. Accordingly, the threshold point of our inquiry in a slip-and-fall case is the existence of a hazardous condition on the premises. And it is well established that proof of a fall, without more, does not create liability on the part of a proprietor or landowner, because it is common knowledge that people fall on the best of sidewalks and floors. Thus, when the plaintiff cannot show the existence of a hazardous condition, she cannot prove the cause of her injuries and there can be no recovery because an essential element of negligence cannot be proven.

(Citations, punctuation and footnotes omitted.) Taylor v. Thunderbird, Lanes, 324 Ga. App. 167, 169-170 (1) (748 SE2d 308) (2013).

The Bank contends that Steele presented no evidence of a hazardous condition. Steele argues that “it must be inferred the landscape border protruded onto the sidewalk prior to her fall thus providing the necessary competent evidence of the defect.” She asserts that the facts here are analogous to the facts in J.H. Harvey Co. v. Reddick, 240 Ga. App. 466 (522 SE2d 749) (1999).

In that case, the plaintiff, Reddick, slipped and fell while shopping in a grocery store. J.H. Harvey, supra, 240 Ga. App. at 467 (1). She did not know what caused her fall, but testified that she stepped on something slippery and assumed it was grapes because she saw two scuppernongs on the floor as she was getting up. Id. Reddick did not know whether she actually stepped on the scuppernongs, but a store manager saw two scuppernong skins on the floor in the aisle where Reddick had fallen, which was a considerable distance from the produce aisle where scuppernongs were sold. Id. at 467-468 (1). The store had an ongoing problem with customers discarding half-eaten food on the floor. Id. This court held that Reddick presented evidence of a foreign substance that could have created the slippery condition she alleged. Id. at 469 (1) (a).

Although Reddick could not positively state that the scuppernongs caused her to fall, reasonable jurors could make such an inference based on the proximity of the fruit to Reddick after the fall, the alleged “slipper/’ condition of the floor, and the assistant manager’s statement after Reddick’s fall that he saw scuppernong skins, rather than whole fruit.

Id.

It is true that like the customer in J.H. Harvey, Steele was unsure about what exactly caused her to fall and assumed it was the fencing because it “looked like” it was protruding onto the sidewalk after her fall. But in that case there was “some evidence beyond speculation that a condition of the premises caused the fall,” (emphasis in original) Imperial Investments Doraville v. Childers, 303 Ga. App. 490, 492 (1) (693 SE2d 834) (2010), specifically the scuppernong skins in the aisle showing that the fruit had been crushed, possibly by the plaintiff stepping on it, and her testimony that she “stepped on something slipper/’ that caused her to fall.

Here, in contrast, Steele did not know how she fell or what caused her to fall. She cannot aver that she tripped or even that she struck her foot against something. She assumes she tripped on the fence border, but she admits that her fall may have caused it to move. Steele’s evidence of the cause of her fall is only “admitted speculation.” See Avery v. Cleveland Ave. Motel, 239 Ga. App. 644, 645 (1) (521 SE2d 668) (1999) (plaintiff’s admitted speculation that she may have tripped on worn carpeting does not sufficiently establish causation).

The facts here are more analogous to the facts in Childers, supra, where the plaintiff assumed that he stumbled over a raised piece of carpet that he had observed was “ ‘wrinkly,’ ” but he “never testified directly that he knew that he fell over the carpet.” Id. at 490. Steele speculates that she tripped over the fencing, although she could not recall bumping into anything, or her foot catching on anything. There is no evidence that the fencing was on the sidewalk prior to her fall, and she did not state with certainty that the fencing was on the sidewalk after her fall; rather she explained that she did not know if the fencing had been moved at all, and twice stated only that “it looked like the fence was protruding on the sidewalk,” and it “looked like something had been moved,” and she “can’t say for sure.” (Emphasis supplied.) There was no other evidence establishing the presence of the fencing on the sidewalk at the time Steele fell.

Decided March 5, 2014

Brannen, Searcy & Smith, A. Martin Kent, J. Wesley Padgett, for appellant.

Scheer & Montgomery, Steven E. Scheer, for appellee.

Under these circumstances, in the absence of evidence directly connecting a defect with Steele’s fall, causation is not established. The trial court therefore erred in denying the Bank’s motion for summary judgment on this ground.

2. In light of our holding in Division 1 that Steele failed to point to a genuine issue of material fact with regard to causation, we need not address the Bank’s alternative arguments that Steele had superior knowledge of any alleged hazardous condition, and that she failed to exercise ordinary care for her own safety. See Thunderbird Lanes, supra, 324 Ga. App. at 171 (2).

Judgment reversed.


author: McFadden, Judge.

text:
    A13A2216.
    WILLIAMS v. THE STATE.
    (755 SE2d 831)
   McFadden, Judge.

Corey Williams appeals his convictions of armed robbery, hijacking a motor vehicle, possession of a firearm during the commission of a felony, and possession of a firearm by a convicted felon. He argues that he received the ineffective assistance of trial counsel. We conclude that counsel’s decision not to present an image from a surveillance camera did not amount to deficient performance. We therefore affirm the convictions.

Williams was charged with robbing Melvin Norman with the use of a handgun and taking Norman’s truck. Norman testified that one morning when he was leaving for work, a young man approached him as he was about to get into his truck. The young man pointed a gun at Norman and demanded his money. Norman had an opportunity to observe the robber because the robber demanded that Norman take him to an automatic teller machine and then demanded that Norman allow him to enter Norman’s house. Norman refused those demands, and the robber took the truck keys from his hand and left in the truck. The incident lasted five or ten minutes.

Norman returned to his house, and his wife immediately called the police. Within five to ten minutes, police arrived at Norman’s house, and shortly thereafter, an officer drove Norman to a Chevron station a little over a mile away, where police had located his truck. At the Chevron, Norman spontaneously identified Williams as the perpetrator because he recognized his face. Norman also identified Williams at trial.

According to the officer who responded to the 911 call, Norman described the perpetrator as being a black male with a slender build, wearing a dark-colored hoodie. But Norman’s written statement, taken down by a different officer, described the perpetrator as wearing a light-colored hoodie. Norman testified that he did not write the statement that the perpetrator was wearing a light-colored hoodie. He testified that, during the incident, he did not focus on what the perpetrator was wearing, but instead focused on his face.

To prevail on his claim of ineffective assistance of counsel, Williams was required to show both deficient performance by trial counsel and actual prejudice. Strickland v. Washington, 466 U. S. 668, 687 (III) (104 SCt 2052, 80 LE2d 674) (1984); Smith v. Francis, 253 Ga. 782, 783 (1) (325 SE2d 362) (1985). If he “fails to meet his burden of proving either prong, then we do not need to examine the other prong.” Works v. State, 301 Ga. App. 108, 114 (7) (686 SE2d 863) (2009). We conclude that Williams failed to show a deficient performance.

Williams argues that trial counsel was ineffective because she failed to present certain evidence that he contends was exculpatory. Specifically, he argues that counsel should have presented an image from the surveillance camera at the Chevron station where Norman’s truck was recovered. The image, captured near the time of the robbery, showed a man wearing a light-colored hoodie. Williams argues that this image was exculpatory, given that the written statement indicated Norman had described the robber as wearing a light-colored hoodie.

Trial counsel reviewed the images from the surveillance camera, including the image of the man wearing the light-colored hoodie. She testified that she did not present the image of the man wearing the light-colored hoodie because she did not believe the evidence was exculpatory.

We conclude that counsel’s decision not to present the image was not unreasonable. Even assuming that the image showed a man wearing a light-colored hoodie in the nearby store minutes before the armed robbery, as Williams argues, Williams still could have committed the crime. See Tyner v. State, 313 Ga. App. 557, 564-565 (6) (a) (722 SE2d 177) (2012) (testimony that defendant argued trial counsel should have introduced was not truly exculpatory because it did not contradict state’s theory of the case). If the image were identifiable as Williams rather than merely as a person who superficially resembled him and who was wearing a garment superficially similar to the garment Norman described his assailant as having worn, the argument might have merit. As it is, Williams’ argument that trial counsel was ineffective for failing to present this image is based on the “suggestion that another person may have committed the crime [which] was no more than supposition, . . . inferred from [evidence] which did not demand such an inference.” Guess v. State, 264 Ga. 335, 337 (5) (443 SE2d 477) (1994). “The [image at issue] does not raise a reasonable doubt that did not otherwise exist, evaluated in the context of the entire record,” Maddox v. Seay, 243 Ga. 793, 794 (1) (256 SE2d 904) (1979), particularly given defense counsel’s cross-examination of Norman regarding his description of the perpetrator.

Trial counsel’s decision not to present this evidence did not amount to deficient performance. Crawford v. State, 302 Ga. App. 782, 784-785 (2) (691 SE2d 660) (2010). See also Green v. State, 291 Ga. 287, 297 (10) (c) (728 SE2d 668) (2012) (counsel’s decision not to have DNA testing conducted on certain material did not amount to deficient performance; although appellant argued DNA testing would have yielded a different suspect, counsel reasonably concluded that testing would not be helpful or exculpatory).

Trial counsel . . . made a strategic decision not to use the [image] because... counsel believed that the evidence would not have helped [Williams’] case. In light of trial counsel’s reasonable strategic decisions, evidence supports the trial court’s conclusion that [Williams] failed to meet his burden of showing ineffective assistance of trial counsel. See Smith v. State, 283 Ga. 237, 239 (2) (657 SE2d 523) (2008).

Nelson v. State, 285 Ga. 838, 840 (2) (684 SE2d 613) (2009). See also Woods v. State, 275 Ga. 844, 849 (3) (d) (573 SE2d 394) (2002) (counsel’s performance was not deficient for not using a videotape to contradict state witnesses who testified that defendant was at a picnic the day after the murder; the absence of defendant’s image on the videotape of the picnic did not prove he was not at the picnic, but showed only that he was “just not on that portion of the tape”; counsel realized the tape could have “backed up” defendant’s alibi defense but made the reasonable decision not to use it because it did not “add to anything” regarding the “swearing contest” between appellant and the state witnesses); Brown v. State, 268 Ga. 354, 357 (4) (a) (490 SE2d 75) (1997) (trial counsel was not ineffective for failing to introduce evidence that “did not rule out the possibility that [the accused] was nonetheless at the murder scene”); Williams v. State, 300 Ga. App. 839, 842 (2) (b) (686 SE2d 446) (2009) (counsel was not ineffective for failing to introduce videotape which, defendant argued, showed a discrepancy between armed robbery victim’s description of what he wore and as shown on videotape, because trial counsel thoroughly attacked victim’s identification of her attacker based on her description of the clothing he allegedly wore that night). Compare Blouin v. State, 255 Ga. App. 788, 790 (567 SE2d 39) (2002) (counsel’s performance was deficient when “[c]ounsel did not decide not to use the [exculpatory] evidence, but simply forgot to consider it”).

Decided March 5, 2014.

Michael W. Tarleton, for appellant.

Robert D. James, Jr., District Attorney, Deborah D. Wellborn, Assistant District Attorney, for appellee.

Judgment affirmed.

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


author: McMillian, Judge.

text:
    A13A2226.
    TISDALE v. CITY OF CUMMING.
    (755 SE2d 833)
   McMillian, Judge.

Nydia Tisdale appeals the trial court’s order denying her claim for an injunction against the City of Cumming (the “City”) seeking a declaration that a real estate acquisition by the City on April 16, 2012, was ultra vires, null and void under Georgia’s Open and Public Meetings Act, OCGA § 50-14-1 et seq. (the “Act”). Tisdale’s complaint also sought civil penalties and attorney fees under the Act. We affirm the trial court’s denial of Tisdale’s claims because we find that her complaint was untimely.

“Generally, a trial court’s discretion in granting or denying an injunction will not be disturbed on appeal as an abuse of discretion unless there was no evidence upon which to base the ruling or it was based on an erroneous interpretation of the law.” (Citations omitted.) Kim v. First One Group, LLC, 305 Ga. App. 861, 861 (700 SE2d 729) (2010). And we review issues of law de novo. Harris v. The Southern Christian Leadership Conference, Inc., 313 Ga. App. 363, 364 (721 SE2d 906) (2011).

This action arose out of the City’s purchase of real estate in the Pilgrim Ridge Subdivision (the “Property”), and the basic facts are undisputed. On March 20, 2012, the City’s mayor and council held a regularly scheduled, public council meeting (the ‘March 20 meeting”). The minutes of that meeting reflect that the mayor and council “were properly notified as required by law,” all council members were present, and the mayor presided. At the end of the meeting, the mayor “announced the need for Executive Session to discuss issues concerning the Purchase of Real Property’ (the “Executive Session”).

The minutes from the Executive Session reflect that the mayor led a discussion with the council about the purchase of the Property, as a potential site of the City’s “future Water Distribution and/or Water Production facilities,” because it was near the existing water intake facility and had gone through foreclosure, making it “likely available at less than its appraised value.” The minutes reflect that the council authorized the mayor “to attempt to negotiate and close a contract on behalf of the City for less than the appraised value.”

The deeds reflecting the City’s subsequent purchase of the Property were executed on April 16, 2012, and were recorded on the Forsyth County real estate records the same day.

The day after the purchase, on April 17, 2012, at the regularly scheduled public meeting of the City’s mayor and council (the “April 17 meeting”), the mayor announced that the City had held negotiations for the Property, which it proposed to use “for expansion of the Utilities Department and other uses.” It was noted that the purchase of the Property had previously been authorized by council in Executive Session. At the mayor’s request, the council voted unanimously to ratify “the previous authorization for [the mayor] to sign the necessary documents for the purchase of the [Property] for $25,000.00 per acre.” Tisdale admits in her brief that she attended the April 17 meeting.

Tisdale filed her complaint in this action on October 12, 2012, and following a hearing on January 18,2013, the trial court issued its order denying the injunction. Although the trial court found that the Executive Session on March 20 did not comply with the Act, it found that the April 17 meeting was held in compliance with the law. Citing Bd. of Commrs. v. Levetan, 270 Ga. 544, 548 (512 SE2d 627) (1999), the trial court concluded that the Act did not authorize it to invalidate the City’s purchase of the Property on the ground that the purchase previously had been discussed at a meeting that violated the Act, where it was subsequently approved at a meeting held in compliance with the Act.

The trial court also found that Tisdale attended both council meetings at issue, but did not file this action until 206 days after the Executive Session on March 20 and 179 days after the April 17 meeting. The trial court noted that Tisdale was present at the April 17 meeting when the council ratified the mayor’s purchase of the Property, after announcing that it previously had been approved in the Executive Session on March 20. Accordingly, the trial court concluded that Tisdale’s claims were barred by the Act’s statute of limitation, which requires that any action be brought within 90 days of the alleged violation. OCGA § 50-14-1 (b) (2).

The current version of OCGA § 50-14-1 (b) (2) actually contains both a ninety-day limitation provision and a six-month repose provision. The statute provides in relevant part:

. . . Any action contesting a resolution, rule, regulation, ordinance, or other formal action of an agency based on an alleged violation of this provision shall be commenced within 90 days of the date such contested action was taken or, if the meeting was held in a manner not permitted by law, within 90 days from the date the party alleging the violation knew or should have known about the alleged violation so long as such date is not more than six months after the date the contested action was taken.

OCGA§ 50-14-1 (b) (2).

It is undisputed that Tisdale filed her action more than 90 days after the alleged violations occurred. But Tisdale contends that we should apply the six-month repose period because she did not know what happened in the Executive Session until after she filed her lawsuit and obtained a redacted copy of the minutes of the Executive Session in discovery. Tisdale notes that she filed her complaint less than six months after the April 17 meeting.

But even assuming, without deciding, that the Executive Session was held “in a manner not permitted by law,” the statute required Tisdale to file her action within 90 days from the date that she “knew or should have known about the alleged violation.” (Emphasis supplied.) OCGA § 50-14-1 (b) (2). Although Tisdale was not privy to the proceedings in the Executive Session on March 20, the City produced evidence indicating that she knew as of April 17 that the council initially authorized the mayor to purchase the Property in that earlier Executive Session. The minutes reflect that this information was disclosed at the April 17 meeting she attended. Tisdale does not dispute this fact.

Moreover, the deeds reflecting the City’s purchase were filed as of record on April 16, 2012, providing constructive notice that the transaction occurred. As our Supreme Court has found “in the absence of fraud, a deed which, on its face, complies with all statutory requirements is entitled to be recorded, and once accepted and filed with the clerk of court for record, provides constructive notice to the world of its existence.” Leeds Bldg. Products, Inc. v. Sears Mtg. Corp., 267 Ga. 300, 302 (1) (477 SE2d 565) (1996). Accordingly Tisdale was on constructive notice as of April 16 that the purchase had occurred, and she knew that it was not approved in a public meeting until one day later, on April 17.

Tisdale’s knowledge that the Executive Session took place to discuss the real estate purchase, the filing of the deeds, and the purported ratification of the purchase of the Property, which Tisdale witnessed, put Tisdale on, at least, constructive notice of any potential violations of the Act. Thus, the 90-day period began running, at the latest, on April 17, 2012, for purposes of both the limitation and repose provisions of OCGA § 50-14-1 (b) (2). See Shepherd v. Frasier, 223 Ga. 874, 876 (2) (159 SE2d 58) (1968) (constructive notice from filed deed bars claim unless plaintiffs allege a sufficient excuse for their failure to learn of the existing facts in support of claim); Schmidt v. Parnes, 194 Ga. App. 622, 623 (1) (391 SE2d 459) (1990) (“[T]he statute of limitation or repose is not tolled when the plaintiff knew all facts necessary to show [violation] before the running of the period of limitation or repose.”) (citation and punctuation omitted).

Once the City produced evidence on summary judgment establishing that Tisdale’s claims were barred, the burden of production shifted to Tisdale to produce some admissible evidence demonstrating that her claims were not untimely. See Parks v. Hyundai Motor America, Inc., 294 Ga. App. 112, 116 (2) (668 SE2d 554) (2008). See also Pfeiffer v. Ga. Dept. of Transp., 275 Ga. 827, 828-829 (2) (573 SE2d 389) (2002) (“[0]nce a defendant points out that there is an absence of evidence to support the plaintiff’s case, the burden then shifts to the plaintiff, who must point to specific evidence giving rise to triable issue.”) (citations and punctuation omitted; emphasis in original); Allmond v. Young, 314 Ga. App. 230, 232 (2) (723 SE2d 691) (2012) (once defendant established that limitation period has run, burden shifts to plaintiff to present some evidence of tolling). Tisdale failed to carry her burden of producing evidence sufficient to create an issue of fact on the statute of limitation or the repose provision. Accordingly, we agree with the trial court that Tisdale’s claims under the Act are barred under OCGA § 50-14-1 (b) (2). See Walker v. City of Warner Robins, 262 Ga. 551, 552 (3) (422 SE2d 555) (1992); Anti-Landfill Corp., Inc. v. North American Metal Co., LLC, 299 Ga. App. 509, 513 (1) (683 SE2d 88) (2009).

Decided March 5, 2014.

Gerald R. Weber, Jr., for appellant.

Miles Patterson Hansford Tallant, Dana B. Miles, Kevin J. Tallant, Lauren C. Giles, for appellee.

Given this holding, we need not address the merits of Tisdale’s claims under the Act.

Judgment affirmed.

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

       Tisdale originally filed this appeal in the Supreme Court of Georgia, which transferred the case to this Court after finding that the appeal did not meet the definition of a case involving title to land and that it did not invoke the Supreme Court’s equity jurisdiction.

       The minutes for that meeting reflect that it, too, was properly noticed and attended by all members of the council, with the mayor presiding.

       Tisdale asserts that the mayor prevented her from video and audio recording that meeting, which she asserts is another violation of the Act. She represents that two other lawsuits have been filed in connection with that alleged violation, and we conclude that it has no relevance to this appeal. Moreover, in support of her assertion, Tisdale cites to a URL address, which she represents contains a video recording of the April 17 meeting, but we cannot consider a citation to a URL address as evidence, even though she used the same citation in her verified complaint. No recording of the April 17 meeting was introduced into evidence at the hearing, and it does not otherwise appear as evidence in the appellate record. In any event, Tisdale made no attempt to authenticate the recording at the URL address, as required under OCGA § 24-9-901 for its admission into evidence.

       We note that the trial court first indicated that the City’s statute of limitation defense was “moot” in light of its holding that the Act did not authorize the invalidation of the City’s purchase. But an issue or case is “[‘]moot[’] when its resolution would amount to the determination of an abstract question not arising upon existing facts or rights.” Collins v. Lombard Corp., 270 Ga. 120, 121 (1) (508 SE2d 653) (1998). The City’s statute of limitation defense did not present an abstract argument but rather presented an alternative argument to the City’s other defenses. All of the defenses were subject to determination upon existing facts or rights. Therefore, although the trial court was not required to reach the statute of limitation issue in light of its holding on the merits under the Act, the limitation issue was not moot.

       The prior version of the statute contained only the ninety-day statute of limitation for challenging formal action taken by an agency, but the statute was amended as of April 17,2012, the same day as the April 17 meeting in this case, to add a ninety-day limitation period for challenges to meetings held in violation of the law and to include a six-month statute of repose. Ga. L. 2012, p. 218, § 1. Although the prior version of the Act was still in effect on the date of the March 20 meeting, the parties agree that the current version of the statute applies in this case.

       No contention of fraud exists in this case.

       In her reply brief, Tisdale asserts that we should apply longer limitation periods based on her constitutional claims and her claim for money damages. But Tisdale does not point us to, and we fail to find in the record, where she raised these arguments below or that the trial court ruled on them. The Supreme Court of Georgia
      has specifically held that, in responding to a motion for summary judgment, plaintiffs have a statutory duty to produce whatever viable theory of recovery they might have or run the risk of an adjudication on the merits of their case. ... To consider the case on a completely different basis from that presented below would be contrary to the line of cases holding, “He must stand or fall upon the position taken in the trial court.”
      (Citations and punctuation omitted.) Pfeiffer, 275 Ga. at 828-829 (2). See also Dan J. Sheehan Co. v. Ceramic Technics, Ltd., 269 Ga. App. 773, 777 (3) (605 SE2d 375) (2004) (appellate courts “do not consider issues raised for the first time on appeal, because the trial court has not had opportunity to consider them”) (citation and punctuation omitted).


author: RAY, Judge.

text:
    A13A1757.
    ASKEW et al. v. ROGERS.
    (755 SE2d 836)
   RAY, Judge.

This case arises out of injuries sustained by Earnestine Rogers when she fell during an attempt to get away from a pitbull owned by Shelah and Eddie Askew. Rogers filed a motion for partial summary judgment on the issue of negligence against the Askews, which the trial court granted. Finding that an issue of material fact exists as to whether the dog was carelessly managed under OCGA § 51-2-7 at the time of the incident, we reverse the order of the trial court and remand the case for trial.

Summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law[.]” OCGA § 9-11-56 (c).

On appeal from the grant of summary judgment, this Court conducts a de novo review of the evidence to determine whether there is a genuine issue of material fact and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.

(Citation omitted.) Bomia v. Ben Hill County School Dist., 320 Ga. App. 423, 423 (740 SE2d 185) (2013).

So viewed, the record shows that the Askews had a pitbull that spent most of its time in a cage located in the back of their house. After arriving home from work around 4:00 p.m., Shelah Askew let the dog out of his cage for a few minutes and then placed him back inside the cage and went into the house. Around 7:30 p.m., Rogers went on an evening walk in her neighborhood when she passed by the Askews’ home. As Rogers was passing by the Askews’ yard, she noticed the dog outside of his cage. Rogers was initially not afraid of the dog because she had seen him before and he had always been on a leash. Rogers then noticed the dog running toward her, and she yelled for Shelah Askew, who was coming out of her back door, to come get the dog. Rogers began to run away, but the dog caught up to her at the end of the Askews’ driveway. The dog jumped up, put his two front paws on her chest, then slid down, growled at her, and nipped her on her right thigh. During this time, Shelah Askew ran toward Rogers and called the dog’s name, but the dog did not obey her. Shelah Askew managed to grab hold of the dog’s collar, and as Rogers was trying to get away from the scene, she fell in the Askews’ driveway and injured her wrist.

Shelah Askew deposed that the dog had never before escaped from his cage and that she was not sure how he had escaped on this occasion, but that it was possible that she had forgotten to lock the cage’s door. It was undisputed that the dog was not on a leash at the time of the incident.

Following the incident, an investigator with Animal Control issued a citation for violation of the Tifton/Tift County Animal Control Ordinance, which the Askews paid. The Animal Control officer further stated in her affidavit that this was not the only occasion on which the Askews’ dog had been allowed to roam free, as a few months earlier the dog “ran out in the street in front of [the officer’s] vehicle causing [her] to strike it.”

1. Rogers filed a motion for partial summary judgment as to the issue of negligence, which the trial court granted, claiming that the Askews violated the applicable animal control ordinance and OCGA § 51-2-7 and, thus, were negligent as a matter of law. The Askews appeal from the trial court’s grant of partial summary judgment to Rogers, arguing that an issue of material fact existed regarding whether the Askews “carelessly managed” their dog. We are constrained to agree.

OCGA § 51-2-7, which governs an owner’s liability for injuries caused by vicious animals, provides in pertinent part:

A person who owns or keeps a vicious or dangerous animal of any kind and who, by careless management or by allowing the animal to go at liberty, causes injury to another person who does not provoke the injury by his own act may be liable in damages to the person so injured. In proving vicious propensity, it shall be sufficient to show that the animal was required to be at heel or on a leash by an ordinance of a city, county, or consolidated government, and the said animal was at the time of the occurrence not at heel or on a leash. . . .

Thus, under this Code section, a plaintiff must show that (a) the owner carelessly managed or allowed the animal to go at liberty; (b) the animal was vicious or that the animal was unrestrained at the time and place of the injury in violation of the local ordinance requiring such restraint; and (c) the animal caused injury. See Hackett v. Dayton Hudson Corp., 191 Ga. App. 442, 445 (2) (382 SE2d 180) (1989).

Rogers contends that the dog was a vicious animal due to the violation of § 14-14 of the Tifton/Tift County Animal Control Ordinance #2004-029, captioned “Leash Law.” However, even assuming that the dog was a vicious animal due to the violation of the Leash Law, we find that a genuine issue of material fact remains as to whether either of the Askews were careless in their management of the dog at the time of the incident. The Askews’ evidence, which must be taken in the best light, shows that Eddie Askew was not in town on the date of the incident and witnessed no portion of the incident. It further shows that Shelah Askew let the dog out of his cage for a few minutes after returning home from work earlier that afternoon. However, Shelah Askew stated that she placed the dog back in the cage. Although Shelah Askew opined that it was possible that she accidentally failed to lock the cage after placing the dog back inside, she further explained that the dog had never escaped from his cage before and that she did not let him out of the cage when the incident occurred.

Shelah Askew’s speculative statement that it was possible that she had forgotten to lock the cage is insufficient to show that she was careless in her management of the dog as a matter of law. In light of the fact that Eddie was uninvolved with the dog’s care on the relevant date and in light of Shelah Askew’s testimony, Rogers has not established as a matter of undisputed fact that the dog escaped as a result of the Askews’ careless management. “On summary judgment, an inference cannot be based upon evidence which is too uncertain or speculative or which raises merely a conjecture or possibility.” (Citation and punctuation omitted.) Harper v. Robinson, 263 Ga. App. 727, 728 (1) (589 SE2d 295) (2003). See also Evans-Watson v. Reese, 188 Ga. App. 292, 293-294 (372 SE2d 675) (1988) (finding, on appeal from grant of defendant dog owner’s motion for summary judgment, that dog owner’s testimony that a dog was securely chained behind a closed fence was insufficient to show as a matter of law that she had adequately chained the dog or took precautions that the dog would not be inadvertently let out of the yard by others opening the gate); Hackett, supra at 445 (2) (finding that a genuine issue of material fact existed regarding whether defendant dog owner carelessly managed his dog in spite of defendant’s affidavit that dog was properly chained up prior to attack).

Decided March 6, 2014.

Chambless, Higdon, Richardson, Katz & Griggs, Joseph D. Stephens, for appellants.

Shiver Hamilton, Jeffrey P. Shiver, Alan J. Hamilton, Sims, Fleming, Hudson & Crosby, Joseph S. Hudson, for appellee.

Accordingly, we find that the trial court erred in finding that the evidence of record established Rogers’ entitlement to judgment as a matter of law.

2. In light of our holding in Division 1, we need not address the Askews’ remaining enumerations of error.

Judgment reversed and case remanded.

Barnes, R J., concurs. Miller, J., concurs in judgment only.

       Tifton/Tift County Animal Control Ordinance #2004-029, § 14-14 provides in pertinent part, as follows: “It shall be unlawful for the owner of any animal... to fail to maintain control of an animal or to allow it to run at large unattended on or about the streets, highways, and right-of-way of the County or City[.]” “Control of an animal” is defined in the Tifton ordinance as follows: “(1) On a leash which is being held by a person of sufficient size, age, and maturity to restrain the animal; (2) Under voice control in the presence of a competent person; . . . [or] (4) Within the property limits of its owner or custodian. . . .” Id. at § 14-2.


author: Miller, Judge.

text:
    A13A1899.
    TAYLOR v. THE STATE.
    (755 SE2d 839)
   Miller, Judge.

Following a jury trial, Jeffrey Taylor was found guilty and convicted of obstructing an officer (OCGA § 16-10-24 (a)) and DUI-less safe (OCGA § 40-6-391 (a) (1)). Taylor appeals from the denial of his motion for new trial, contending that (1) the evidence was insufficient to support his convictions; (2) the trial court erred in not considering his untimely motion to suppress; and (3) the trial court erred in not granting a mistrial after the State improperly commented on the evidence. Discerning no error, we affirm.

Viewed in the light most favorable to the jury’s verdict, the evidence shows that on the evening of July 31,2010, police officers set up a checkpoint in Douglas County to check for DUI, driver’s license and insurance. The checkpoint was located at the intersection of Rose Avenue and Highway 5 near the new Bright Star Extension, which had not yet opened. There were at least eight to ten officers in marked patrol cars with blue lights at the checkpoint; all of the officers were in uniform and had flashlights; and the officers stopped every vehicle that came up to the checkpoint.

At approximately 2:00 a.m., Taylor approached the checkpoint in a Ford F-250 truck. A Douglasville Police Department lieutenant, who first made contact with Taylor, noticed an odor of alcoholic beverage coming from the truck. The lieutenant also noticed that Taylor was extremely nervous, his eyes were glassy and his heart was beating rapidly.

After receiving Taylor’s and his passenger’s licenses, the lieutenant went around to the back of the truck to run license and license plate checks. Meanwhile, a sergeant, whom the lieutenant had called over, spoke to Taylor and the passenger. The sergeant noticed that Taylor was breathing heavily, his hands were shaking excessively, and he did not make eye contact with the sergeant. The sergeant advised Taylor to pull the truck over across the street to the Bright Star Extension to get the truck out of the flow of traffic. Instead of following the sergeant’s instructions, Taylor turned the truck and started driving north on Highway 5. The sergeant then began yelling at Taylor to reiterate that Taylor was supposed to go across the street and stop the vehicle.

Taylor eventually pulled over, and the officers again approached the vehicle. The sergeant asked Taylor if he would blow into a portable alco-sensor. Taylor refused to take the test, stating that he was a vegetarian and he took a lot of herbs that might give a false reading. Taylor also refused to exit the truck when the sergeant told him to do so. Taylor then locked his door, rolled up the window and said he was going to call 911. When Taylor continued to refuse the officers verbal orders to get out of the truck, the lieutenant went around to the passenger’s side and the passenger exited the truck. The lieutenant then reached in, turned the engine off, and took the keys out of the truck.

When Taylor continued to refuse the officers’ verbal commands to get out of the truck, the officers pulled him out. Taylor struggled with the officers on the ground, refused to give them his hands so they could handcuff him and tried to get up. The sergeant put his knee in Taylor’s back and pressed him down to the ground. Taylor was then handcuffed and arrested for obstruction and DUI.

The lieutenant then stood Taylor up and carried him over to a transport van. The lieutenant tried to tell Taylor to calm down and explain to him why he was arrested; however, Taylor was uncooperative, refused to listen and yelled at the lieutenant. When the lieutenant got Taylor over to the van, he read Taylor the implied consent notice, and Taylor agreed to take a breath test. At that time, the lieutenant could still smell the odor of alcohol coming from Taylor’s person. The sergeant also noticed an odor of alcohol coming from Taylor’s person and believed that Taylor was heavily intoxicated. The officer based this belief upon his years of experience in dealing with intoxicated suspects as well as Taylor’s behavior, including his nervousness, failure to follow directions and actions in fighting the officers.

Taylor was transported to the police department. After he arrived at the police department, Taylor refused to take the Intoxilyzer 5000 breath test.

1. Taylor contends that the evidence was insufficient to support his convictions. We disagree.

(a) DUI-Less Safe

OCGA § 40-6-391 (a) (1) provides: “Aperson shall not drive or be in actual physical control of any moving vehicle while:... [ujnder the influence of alcohol to the extent that it is less safe for the person to drive[.]”

The crime of driving while under the influence to the extent that it is less safe to drive does not require proof that a person actually committed an unsafe act while driving; rather, it requires showing three elements: (1) driving, (2) under the influence of alcohol, (3) to the extent that it is less safe for the person to drive.

(Footnote omitted.) Jaffray v. State, 306 Ga. App. 469, 470-471 (1) (702 SE2d 742) (2010). Moreover, the State can prove this offense lay presenting evidence that the defendant refused to take a breath test, as well as the officers’ own observations regarding the defendant’s behavior and the odor of alcohol on his person. See Harris v. State, 307 Ga. App. 847, 848 (706 SE2d 702) (2011); see also Long v. State, 271 Ga. App. 565, 567 (610 SE2d 74) (2004) (defendant’s refusal to take state-administered chemical test was admissible as circumstantial evidence of her intoxication). Contrary to Taylor’s contention, the evidence as set forth above, including his refusal to take the State-administered breath test, the smell of alcohol on his person and his repeated refusals to follow the officers’ commands all taken together was more than sufficient to support his conviction.

(b) Obstructing an Officer

Under OCGA § 16-10-24 (a), “a person who knowingly and willfully obstructs or hinders any law enforcement officer in the lawful discharge of his official duties is guilty of a misdemeanor.” Conduct constituting obstruction of law enforcement can include arguing with or refusing to cooperate with police when they attempt to investigate a crime or make an arrest. See Frasier v. State, 295 Ga. App. 596, 599-600 (2) (b) (672 SE2d 668) (2009).

Here, the evidence showed that Taylor refused to exit the truck when told to do so; he locked his door, rolled up the window and said he was going to call 911; and, after the officers pulled him out of the truck, he struggled with the officers, refused to give them his hands so they could handcuff him and tried to get up. This evidence was sufficient for the jury to find him guilty of misdemeanor obstruction beyond a reasonable doubt. See Golden v. State, 276 Ga. App. 538, 542 (1) (623 SE2d 727) (2005) (defendant’s refusal to exit her car, complaints that officers were harassing her and call to 911 were sufficient to support misdemeanor obstruction conviction); Frasier, supra, 295 Ga. App. at 600 (2) (b) (officer’s testimony that defendant acted like he was going to flee and generally refused to cooperate with police were sufficient to support his obstruction conviction).

2. Taylor contends that the trial court erred in failing to consider his motion to suppress which he filed after the ten-day period for filing motions. We discern no error.

Pursuant to OCGA § 17-7-110 and Uniform Superior Court Rule (USCR) 31.1, Taylor was required to file his motion to suppress within ten days after the date of his arraignment, unless that ten-day filing period was extended by the trial court. Moreover, “USCR 31.1 does not allow exceptions; its flexibility is provided by when and how an extension of time for filing may be granted.” (Citation omitted.) Davis v. State, 272 Ga. 818, 819 (1) (537 SE2d 327) (2000). When a defendant files an untimely pre-trial motion, the trial court may dismiss the motion or entertain a request by the defendant to accept the late filing. See State v. Gomez, 266 Ga. App. 423, 425 (1) (597 SE2d 509) (2004); see also State v. Mojica, 316 Ga. App. 619, 622 (2) (a), n. 8 (730 SE2d 94) (2012) (OCGA § 17-7-110 does not require a written order granting an extension).

Here, the record shows that Taylor was arraigned on April 20, 2011. At his arraignment, Taylor specifically acknowledged that he understood that he had the right to have a lawyer represent him; if he could establish that he was indigent, he had the right to a court-appointed lawyer; and a lawyer from the public defender’s office was in court that day. That same day, the trial court served Taylor with an order in open court which informed him that “all motions such as a motion to suppress illegally seized evidence must be filed within 10 days of today. Failure to do so will result in the loss of the right to file those motions. The court strongly encourages you to get an attorney immediately to represent you.” (Emphasis supplied.)

Taylor indicated at his arraignment that he wanted to hire private counsel, and he did not apply for court-appointed counsel until May 4, 2011, more than ten days after his arraignment. Taylor did not file his motion to suppress until May 18, 2011, well outside the ten-day filing period, and nothing in the record indicates that he sought leave of the trial court to file an untimely motion to suppress. Since Taylor did not file a timely motion to suppress or seek leave to file his motion after the ten-day filing period, the trial court did not err in refusing to consider the motion. See Davis, supra, 272 Ga. at 19; Walker v. State, 277 Ga. App. 485, 488 (3) (627 SE2d 54) (2006).

3. Taylor contends that the trial court erred in refusing to grant his motion for a mistrial after the State improperly commented on the evidence. We do not agree.

When prejudicial matter is improperly placed before the jury, a mistrial is appropriate if it is essential to the preservation of the defendant’s right to a fair trial. Whether the statements are so prejudicial as to warrant a mistrial is within the trial court’s discretion. A trial court’s denial of a motion for mistrial based on [an improper comment on the evidence] is reviewed for abuse of discretion by examining factors and circumstances, including the nature of the statement, the other evidence in the case, and the action taken by the court and counsel concerning the impropriety.

(Footnote omitted.) Ellis v. State, 304 Ga. App. 270, 272 (696 SE2d 101) (2010); see also Norwood v. State, 252 Ga. 292, 294 (313 SE2d 98) (1984) (grant or denial of mistrial is within trial court’s sound discretion and does not constitute grounds for reversal unless mistrial is mandated to ensure a fair trial).

Decided March 6, 2014.

James K. Luttrell, for appellant.

Matthew C. Krull, Solicitor-General, David Holmes, Assistant Solicitor-General, for appellee.

Here, the record shows that at the end of the co-defendant’s direct testimony the prosecutor stated: “Wow. That was quite a story.” Taylor objected and moved for a mistrial. The trial court denied the motion, but instructed the prosecutor not to “supply an editorial.” The prosecutor replied that he was going to follow up with a question, and, in accordance with the trial court’s direction, then proceeded with his cross-examination.

The factors and circumstances of this case do not show that the trial court abused its discretion in denying Taylor’s motion for a mistrial, because the prosecutor’s comment addressed the co-defendant’s testimony, not the other evidence supporting Taylor’s convictions, and the trial court admonished the prosecutor regarding the allegedly improper comment. See Ellis, supra, 304 Ga. App. at 272-273 (trial court did not abuse its discretion in denying mistrial given circumstances, including action by trial court and counsel concerning alleged impropriety, as well as other evidence in the case). Accordingly, we affirm Taylor’s convictions.

Judgment affirmed.

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

       Taylor filed his motion for new trial following the trial court’s grant of an out-of-time appeal.

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

       Taylor’s initial motion to suppress did not state any specific grounds. That same day, however, Taylor filed a motion to dismiss, raising several grounds, including the lack of probable cause for his detention. Taylor also filed an amended motion to suppress more than a year later on April 25,2012, in which he raised the constitutionality of the checkpoint and contended that he was unlawfully detained.