author: Branch, Judge.

text:
    A15A1498.
    REYES v. THE STATE.
    (780 SE2d 674)
   Branch, Judge.

Following a trial by jury, Roger Alcantara Reyes was convicted on separate counts of possession of cocaine and possession of heroin. On appeal, he contends the evidence was insufficient to support the convictions and that the trial court erred by denying his motion to suppress evidence obtained during a traffic stop. We hold that the evidence presented at trial, including the proceeds of the vehicle search, was sufficient to sustain the convictions, but remand the case to the trial court for further consideration of the validity of the vehicle search executed after the valid traffic stop.

1. We turn first to the traffic stop. On review of a motion to suppress, we apply these principles:

First,... [the trial judge’s] findings based upon conflicting evidence are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support [them]. Second, the trial court’s decision with regard to questions of fact and credibility must be accepted unless clearly erroneous. Third, the reviewing court must construe the evidence most favorably to the upholding of the trial court’s findings and judgment.

Miller v. State, 288 Ga. 286-287 (1) (702 SE2d 888) (2010) (citations, punctuation and footnote omitted). Fourth, we review questions of law de novo. State v. Bethel, 307 Ga. App. 508, 509 (705 SE2d 860) (2010). Finally, when reviewing a ruling on a motion to suppress, we may consider testimony submitted both at the hearing on the motion to suppress and at trial. See Foster v. State, 321 Ga. App. 118 (1) (741 SE2d 240) (2013); White v. State, 263 Ga. 94, 98 (5) (428 SE2d 789) (1993).

The evidence from both proceedings shows that on October 18, 2012, Georgia State Patrol Trooper Chris Carlisle was working in Gwinnett County in collaboration with the Immigration and Customs Enforcement arm of the Department of Homeland Security, conducting surveillance in connection with an investigation into money laundering. Carlisle testified that drug cartels in Mexico would arrange to transfer drug sales proceeds to people in the United States who would then launder the money into bank accounts. At about 3:30 p.m., Carlisle saw a dark blue Jeep Commander with a certain license tag number drive into a business parking lot and, as he learned via radio from other officers, deliver a bag containing approximately $200,000 to a federal agent. Carlisle testified that based on the money transfer, “[w]e know this person is involved in some kind of illegal act.” When the Jeep left the parking lot, Carlisle followed in his unmarked car, keeping the Jeep within sight as it traveled down 1-85 southbound to 1-75 southbound, even though the Jeep exited and then reentered the highway in what appeared to be a way to determine if anyone was following; the Jeep proceeded to Clayton County, where it exited and stopped at a Chevron station. There, the Jeep pulled up to a gas pump but never got gas, then it changed location several times at the station before the driver and passenger got out and went into the neighboring restaurant to eat. Over the course of about 45 minutes to an hour, the men went in and out of the restaurant more than once and were often seen talking on their cell phones. They also spent several minutes looking at the undercarriage of the Jeep from the front to the back of the vehicle, which, according to Carlisle, could show that the men were looking to see if a GPS tracking device had been attached to the Jeep.

A red Ford Explorer with a drive-out license tag then pulled into the Chevron, circled around, and parked next to the Jeep. The driver of the Ford got out and exchanged a few words with the men in the Jeep; two large, wheeled suitcases then were transferred from the Ford to the Jeep, but there is no evidence as to who moved the suitcases. The same two men who had driven the J eep from Gwinnett County got back into the Jeep and drove out of the Chevron station; the Ford drove off in a different direction. Carlisle and other officers followed the Jeep, but, concerned that the suitcases were filled with drugs or money, Carlisle called for a marked car to pull over the Jeep for any traffic violation. Soon the Jeep drove outside of its lane and turned without signaling and was pulled over by Officer Mitnaul in a marked car; Carlisle then arrived on the scene. A video recording of the traffic stop was introduced into evidence and shown at the hearing on the motion to suppress.

Carlisle testified that after Reyes, who had been driving the Jeep, got out of the vehicle, he was very nervous and shaky, had a dry mouth, and avoided eye contact. The passenger, Silvestre Lopez Oloarte, spoke very little English, and it was difficult to confirm his identity; he had a Mexican identification card. Reyes said that he had been driving the Jeep, which was registered in North Carolina, for about 15 days; he said that the car belonged to a friend of Oloarte, but he personally did not know who the owner was. He claimed he had known Oloarte for several years, but he gave a name different than the one on Oloarte’s identification card. When asked where he had come from in the Jeep, Reyes gave an answer inconsistent with what Carlisle had personally observed. Reyes said that he drove from Doraville to Clayton County to get gas, yet the prices were not better in Clayton County, and Reyes, in fact, did not get any gas. Carlisle could see the two suitcases in the back seat of the Jeep, and he asked Reyes if he was going to the airport. Reyes replied, “no” and that he did not know what suitcases Carlisle was talking about. Oloarte said that a friend gave them the suitcases and told them to drive them somewhere but that he did not know how to contact the friend.

The traffic stop had lasted almost 24 minutes when Mitnaul issued Reyes a warning citation, returned Reyes’s license to him, and gave Reyes a form for consent to search the Jeep. In a conversation that lasted several more minutes, Reyes asked questions about the consent form, expressed reservations because the Jeep did not belong to him, and ultimately refused to consent to a search of the Jeep. After Reyes refused, Carlisle requested the K-9 officer who had arrived sometime earlier to perform a dog sniff of the vehicle. The dog alerted, the vehicle was searched, and in the suitcases the officers found 22 wrapped and taped bricks of what proved to be heroin weighing approximately 22,000 grams and seven bricks of cocaine weighing 7,709 grams.

Both Reyes and Oloarte were charged with possession of and trafficking in cocaine and heroin, and Reyes was charged with failure to signal while turning. Reyes was tried separately and convicted on both counts of possession but acquitted of trafficking.

In its order denying Reyes’s motion to suppress, the trial court found that Reyes was legally stopped because he failed to signal before turning and failed to maintain his lane while driving. The court also found that, analyzing the totality of the circumstances, the officers did not unreasonably extend the stop of the car or its occupants. In so doing, the trial court stated that it “does not find that the use of the canine contemporaneously with the traffic stop to conduct an open air search of the vehicle was in violation of the Defendant’s rights.” (Emphasis supplied.) The court also found as a matter of fact that Reyes and Oloarte gave conflicting stories, that Reyes indicated that he was driving a friend’s car but declined to name the friend, and that Reyes was nervous and shaking during the encounter.

2. Reyes does not contest the validity of the initial traffic stop. Rather, he contends that the officers detained him after the traffic stop was completed in order to perform the dog sniff and that the officers did not have reasonable suspicion of criminal activity to do so.

The United States Supreme Court recently has reiterated that “a police stop exceeding the time needed to handle the matter for which the stop was made violates the Constitution’s shield against unreasonable seizures.” Rodriguez v. United States,_U. S._(135 SCt 1609, 191 LE2d 492) (2015). “Like a Terry stop, the tolerable duration of police inquiries in the traffic-stop context is determined by the seizure’s ‘mission’ — to address the traffic violation that warranted the stop, and attend to related safety concerns.” Id. at_(II) (citations omitted.) An officer may not conduct unrelated investigations during an otherwise lawful traffic stop “in a way that prolongs the stop, absent the reasonable suspicion ordinarily demanded to justify detaining an individual.” Id. at_(II). Thus, because “a dog sniff is not fairly characterized as part of the officer’s traffic mission,” a dog sniff that prolongs the traffic stop must be justified by reasonable suspicion of other criminal activity. Id. at_(II).

Here, as the video shows and the State concedes, the dog sniff was performed after the traffic-violation stop was concluded and after several more minutes of attempting to get Reyes to consent to a search of the Jeep. The dog sniff clearly prolonged the traffic-violation portion of the stop and therefore, the trial court’s conclusion that the dog sniff occurred during the traffic stop was incorrect. The trial court relied on that finding and did not analyze whether the officers had reasonable suspicion of other criminal activity to justify either the initial stop or Reyes’s continued detention for the dog sniff.

Whether a traffic stop was reasonable under the Fourth Amendment does not depend upon the subjective motives, beliefs, or intentions of the individual officers involved. See Whren v. United States, 517 U. S. 806, 813 (II) (A) (116 SCt 1769, 135 LE2d 89) (1996) (“[subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis,” and “the constitutional reasonableness of traffic stops [does not] depend[ ] on the actual motivations of the individual officers involved”); Maryland v. Macon, 472 U. S. 463, 470-471 (II) (A) (105 SCt 2778, 86 LE2d 370) (1985) (“[w]hether a Fourth Amendment violation has occurred turns on an objective assessment of the officer’s actions in light of the facts and circumstances confronting him at the time, and not on the officer’s actual state of mind at the time the challenged action was taken”) (citation and punctuation omitted); Rodriguez v. State, 295 Ga. 362, 371 (2) (b), n. 13 (761 SE2d 19) (2014) (same). Thus, a stop maybe justified based on reasonable suspicion of a separate violation of law from the basis given by the officer for the stop. See, e.g., Maxwell v. State, 249 Ga. App. 747, 748 (549 SE2d 534) (2001) (officer who stopped vehicle based on probable cause of a traffic violation also had reasonable suspicion of a separate violation of law); United States v. Cardona-Rivera, 904 F2d 1149, 1153 (7th Cir. 1990) (where officers’ claim that they stopped defendant for traffic violations was “not worthy of belief” but where officers had other “objectively reasonable grounds for doing so,” the stop was legal). Cf. Devenpeck v. Alford, 543 U. S. 146, 153 (II) (125 SCt 588, 160 LE2d 537) (2004) (an officer’s “subjective reason for making the arrest need not be the criminal offense as to which the known facts provide probable cause”).

Here, in addition to probable cause for failure to signal and maintain lane while driving, the officers may have had reasonable suspicion prior to stopping the Jeep of other illegal activity arising out of the collective knowledge of the officers who were in communication with each other both during the money laundering investigation and the subsequent events at the Chevron station. See Burgeson v. State, 267 Ga. 102, 105 (3) (a) (475 SE2d 580) (1996) (setting forth the collective knowledge rule).

The State bears the burden of proving facts that establish a basis for continued detention. McSwain v. State, 240 Ga. App. 60, 61 (522 SE2d 553) (1999). Although whether the State has met this burden is a question of law, Rosas v. State, 276 Ga. App. 513, 516 (1) (b) (624 SE2d 142) (2005), we are unable to address the question on appeal because the trial court did not make any findings related to Reyes’s involvement in the earlier transfer of money to an undercover agent which, if credible, is relevant to a determination of whether the officers had reasonable suspicion, both before the traffic stop and thereafter, that Reyes was involved in other criminal activity, such as money laundering or drug trafficking. And “an appellate court generally must limit its consideration of the disputed facts to those expressly found by the trial court,” Hughes v. State, 296 Ga. 744, 746 (1) (770 SE2d 636) (2015) (footnote omitted). “If the trial court has made express findings of fact, but not with sufficient detail to permit meaningful appellate review, an appellate court may remand for further findings.” Id., n. 6 (citations omitted).

Because the trial court erred by finding that the dog sniff occurred contemporaneously with the traffic stop and because the trial court did not make findings regarding Reyes’s possible involvement in events discovered during the money laundering investigation, we vacate both the trial court’s order denying Reyes’s motion to suppress and the judgment of conviction and remand the case for further proceedings consistent with this opinion. See State v. Able, 321 Ga. App. 632, 636 (742 SE2d 149) (2013) (vacating andremanding decision on motion to suppress for trial court to further consider issues); see also Rodriguez,_U. S. at_.

3. Reyes also challenges the sufficiency of the evidence on both counts of possession of a controlled substance. When the appellate courts review the sufficiency of the evidence, they do not “re-weigh the evidence” or resolve conflicts in the testimony; instead they defer “to the jury’s assessment of the weight and credibility of the evidence.” Greeson v. State, 287 Ga. 764, 765 (700 SE2d 344) (2010). See also Glaze v. State, 317 Ga. App. 679, 680-681 (1) (732 SE2d 771) (2012). Appellate courts determine whether “after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979) (citation and emphasis omitted).

Reyes was found to be driving a Jeep, the same vehicle he had been driving for two or three weeks, that contained suitcases that contained large quantities of heroin and cocaine. When driving from Gwinnett County to Clayton County, he made a maneuver that appeared to an officer to be an attempt to ensure that no one was following the Jeep. At the Chevron, he and Oloarte searched the undercarriage of the Jeep in a way that appeared to an officer to be an attempt to ensure that a GPS device had not been attached to the Jeep. He and his passenger waited for almost an hour at the Chevron without buying gas before a Ford Explorer arrived, and they were present when the two large suitcases were transferred from the Ford to the back seat area of the Jeep. The suitcases were in plain view in the back seat of the Jeep at the time of the traffic stop, yet when confronted about them, Reyes denied knowing what suitcases Car-lisle was talking about. Reyes testified in his own defense that he was only a driver for Oloarte, that he followed Oloarte’s instructions on where to drive and where to park, that he never had contact with the people in the Ford Explorer, and that he did not move the suitcases from the Ford to the Jeep.

[T]he law recognizes that possession can be actual or constructive, sole or joint.... A person has actual possession of a thing if he knowingly has direct physical control of it at a given time. A person who, though not in actual possession, knowingly has both the power and intention at a given time to exercise dominion or control over a thing is then in constructive possession of it. If one person alone has actual or constructive possession of a thing, possession is sole, but if two or more persons share actual or constructive possession of a thing, possession is joint.

Decided November 16, 2015.

Stanley W. Schoolcraft III, for appellant.

Holiman v. State, 313 Ga. App. 76, 78 (1) (720 SE2d 363) (2011) overruled in part, on other grounds, Maddox v. State, 322 Ga. App. 811, 815 (2) (746 SE2d 280) (2013) (citations and punctuation omitted). The trial court instructed the jury on this law. “A finding of constructive possession of contraband cannot rest upon mere spatial proximity to the contraband,” Mitchell v. State, 268 Ga. 592, 593 (492 SE2d 204) (1997), and the defendant’s mere presence at the scene of the crime is an insufficient basis to convict. Whipple v. State, 207 Ga. App. 131, 132 (1) (427 SE2d 101) (1993). Here, the jury had sufficient evidence to conclude that Reyes was a party to the crime of possession of the contraband. He drove and inspected the vehicle in a way that suggested he was worried about being followed; he was present when the two suitcases were transferred to the Jeep; and the suitcases were in plain view in the vehicle as he drove away from the Chevron. Thus, the State’s evidence showed more than Reyes’s mere presence in the Jeep or spatial proximity to the contraband; it raised a reasonable inference that Reyes had the intent to exercise control over the contraband.

Reyes argues that because Oloarte had equal access to the suitcases, the evidence was insufficient to support his conviction of possession of the contraband. But as this Court has recently clarified,

[circumstantial evidence that multiple occupants of a car had equal access to hidden contraband may support the theory that all the occupants were guilty as parties to the crime and had joint constructive possession of the contraband. Under these circumstances, the State may elect to prosecute the occupants jointly or separately or may elect to prosecute only one of the occupants for directly committing the crime, but nevertheless prove the sole prosecuted occupant was guilty as a party to the crime.

Maddox, 322 Ga. App. at 815 (citations and punctuation omitted).

Judgment vacated and case remanded with direction.

Andrews, P. J., and Miller, J., concur.

Tracy Graham-Lawson, District Attorney, Elizabeth A. Baker, Assistant District Attorney, for appellee.


source: Caselaw Access Project

author: Boggs, Judge.

license: Public Domain

text:
    A15A1522, A15A1523, A15A1524.
    GLYNN COUNTY v. COLEMAN et al. (three cases).
    (779 SE2d 753)
   Boggs, Judge.

In these consolidated appeals, Glynn County (“the County”) appeals from orders certifying three related class actions brought by Elizabeth and J. Matthew Coleman IV (“the Colemans”). In each of these cases, the County asserts that the trial court erred by granting the class certification. In Case No. A15A1522, the County also asserts that the trial court should have considered and granted its motion to dismiss the class allegations in the Colemans’ complaint. For the reasons explained below, we affirm.

The record shows that the Colemans filed three class action lawsuits against the County seeking a refund of ad valorem taxes under OCGA § 48-5-380, a declaratory judgment, as well as equitable, injunctive, and mandamus relief. In Case No. A15A1522, the trial court certifiedfour classes: (1) taxpayers for whom an exemption was miscalculated in any year between 2001 and 2007; (2) taxpayers for whom an exemption was miscalculated in 2008; (3) taxpayers for whom an exemption was miscalculated in 2009; and (4) taxpayers for whom an exemption was miscalculated in 2010. In CaseNo. A15A1523, the trial court certified a class for tax years 2011 and 2012, and in Case No. A15A1524, the trial court certified a class for tax years 2013 and 2014. The County appeals from these class certification orders. In Case No. A15A1522, it also appeals from the trial court’s denial of its motion to dismiss the class allegations in the Colemans’ complaint.

As a preliminary matter, we note that “[o]n appellate review of a trial court’s decision on a motion to certify a class, the discretion of the trial judge in certifying or refusing to certify a class action is to be respected in all cases where not abused.” (Citation and punctuation omitted.) State Farm Mut. Auto Ins. Co. v. Mabry, 274 Ga. 498, 499-500 (1) (556 SE2d 114) (2001).

When a court determines the propriety of a class action, the first issue to be resolved is not whether the plaintiffs have stated a cause of action or may ultimately prevail on the merits but whether the requirements of OCGA § 9-11-23 have been met. Any assertion that the named plaintiff cannot prevail on [his] claims does not comprise an appropriate basis for denying class certification. Further, any argument that [plaintiff] is not an adequate representative because [he] will not ultimately prevail on [his] claim does not comprise an appropriate basis for denying class certification.

(Citations and punctuation omitted.) Peck v. Lanier Golf Club, 298 Ga. App. 555, 556 (680 SE2d 595) (2009).

1. In Case No. A15A1522, the County contends the trial court erred in denying its motion to dismiss as premature. The record shows that the County filed a motion to dismiss “all class action allegations in plaintiff’s Complaint pursuant to OCGA § 9-11-12 (b) (6). This Motion is based upon the record in this case and is made for the reasons set forth in the brief filed contemporaneously herewith.” On the same day, the County filed a “Supplemental Response to Plaintiffs’ Motion to Certify Suit as Class Action and in Support of Motion to Dismiss.” In this brief, the County asserted that class actions are not generally available in tax refund cases and that the only available remedy is the tax refund statute. It also asserted that a class should not be certified based upon the doctrine of sovereign immunity, asserted limitation periods that would apply to the Colemans, both individually and as representatives of a class, and pointed to alleged flaws in the Colemans’ claims for nonmonetary relief.

In its orders certifying the class actions, the trial court addressed the County’s claim that class actions are not generally available in tax refund cases and, for the reasons explained below, properly concluded that class actions are permissible in cases involving refunds under OCGA § 48-5-380, and also that class actions, in general, may assert claims for nonmonetary relief. The trial court did not, however, address any other portion of the County’s motion to dismiss. In a footnote, it stated, “Defendant’s remaining arguments against class certification are merits based arguments which will be addressed in this Court’s Order on Defendant’s Motion to Dismiss.”

The trial court’s order denying the County’s motion to dismiss states, in its entirety: “Defendant filed a Motion to Dismiss Named Plaintiff’s class allegations under OCGA § 9-11-12 (b) (6). For the reasons set forth in Whit[t]aker v. Department of Human Resources of State of Georgia, 86 FRD 689, 692 (N.D. Ga. 1980), the motion is premature and therefore is DENIED.”

In Whittaker, supra, the Northern District of Georgia ruled as follows:

The other pending motions relate to the issue of class certification. They are defendant’s motion for partial dismissal of class allegations and defendant’s motion to strike class allegations, and plaintiff’s motion for class determination. The court DENIES defendant’s motion for partial dismissal of class allegations relating to discrimination on the basis of sex. The defendant does not state which of the Federal Rules of Civil Procedure forms the basis of the motion for partial dismissal of class allegations. One leading commentator has stated that “one opposing the class action may move for an order determining that the action may not be maintained as a class suit.” 3B Moore’s Federal Practice P 23.50, p. 23-421. Professor Moore points out in a footnote that “[t]he proper way to test class action treatment is a motion under Rule 23 (c) (1), not a motion to dismiss . . . under Rule 12 (b) (6).” The court finds that the motion to dismiss class allegations, filed with defendant’s answer, is premature. The motion is DENIED.

Id. at 693.

It is well established that in determining whether a class action should proceed under OCGA § 9-11-23, “the first issue to be resolved is not whether the plaintiffs have stated a cause of action or may ultimately prevail on the merits, but whether the requirements of OCGA § 9-11-23 (a) have been met.” (Citations and punctuation omitted.) MCG Health v. Perry, 326 Ga. App. 833, 835 (1) (755 SE2d 341) (2014). Here, the County’s motion sought to dismiss only the class action allegations in the complaint based upon legal theories that would apply to both the individual and class action claims of the Colemans. In essence, the County asked the trial court to dismiss only the class action claims because the complaint generally was subject to dismissal based upon sovereign immunity, limitation periods in the refund statute, and alleged flaws with the Colemans’ claims for nonmonetary relief. As the trial court apparently recognized when it denied the motion to dismiss the class allegations in the Colemans’ complaints, this is not the proper procedure to avoid certification of a class under OCGA § 9-11-23.

While a defendant can certainly seek a ruling on a dispositive motion before certification of a class, it cannot use a dispositive motion as a vehicle to deny class certification. See 5-23 Moore’s Federal Practice — Civil § 23.81 [2] (court may rule on dispositive motion before deciding whether to certify class); Village Auto Ins. Co. v. Rush, 286 Ga. App. 688, 692 (2) (649 SE2d 862) (2007) (“merit-based disputes are not ripe for resolution at the class certification stage”). We therefore affirm the trial court’s denial of the County’s motion to dismiss only the class allegation portions of the Colemans’ complaint. We express no opinion about whether the certified class actions are subject to dismissal for the reasons asserted in the motion to dismiss that have not yet been considered by the trial court. See Taylor Auto Group v. Jessie, 241 Ga. App. 602, 604 (2) (527 SE2d 256) (1999) (refusing to consider merits of defense in appeal from order certifying a class action).

2. In each of the three cases before us, the County asserts that the trial court erred by granting the Colemans’ motion for class certification because class action certification is generally improper in a tax refund lawsuit. As the trial court ruled on this issue in its certification order, we will consider it.

In support of its argument that class certification is improper in a tax refund action, the County relies upon the Supreme Court of Georgia’s decisions in Sawnee Elec. Membership Corp. v. Ga. Dept. of Revenue, 279 Ga. 22 (608 SE2d 611) (2005) and Henderson v. Carter, 229 Ga. 876 (195 SE2d 4) (1972), as well as a 2003 amendment to a different tax refund statute, OCGA § 48-2-35. The Colemans assert that the Supreme Court’s decisions in City of Atlanta v. Barnes, 276 Ga. 449 (578 SE2d 110) (2003) (Barnes I) and Barnes v. City of Atlanta, 281 Ga. 256 (637 SE2d 4) (2006) {Barnes II), expressly authorize class actions for refund claims under the statute at issue here, OCGA § 48-5-380. The trial court reviewed this body of law in its orders certifying the classes and correctly concluded that class actions can be maintained in tax refund cases involving OCGA § 48-5-380.

In Henderson, supra, the Supreme Court concluded that a statute authorizing a tax refund against the State

provides the method by which refunds and suits for refunds may be made by taxpayers. It does not provide for the bringing of a class action in either instance. The State has waived her sovereign immunity only to the extent provided by the express terms of this statute. It follows that a class action in the instant case is not authorized.

229 Ga. at 879 (2). In Barnes I, the Supreme Court reconsidered its decision in Henderson, and concluded, in a case involving a tax refund claim under the same statute at issue here (OCGA § 48-5-380):

When a statute provides the right to bring an action for a tax refund against a governmental body, that statute provides an express waiver of immunity and establishes the extent of the waiver (the amount of the refund), but does not purport to provide for the form of action to be utilized. By participating as a plaintiff in a class action that includes a claim for a tax refund, a taxpayer is unquestionably bringing an action for a refund, which is what the statute permits. We conclude, therefore, that the holding in Henderson that there can be no class actions brought for tax refunds was error.

276 Ga. at 452 (3).

Following the Supreme Court’s decision in 2003 in Barnes I to overrule Henderson, the General Assembly amended OCGA § 48-2-35, the statute governing tax refunds sought from the Georgia Department of Revenue, to expressly prohibit class actions under that Code provision. See OCGA § 48-2-35 (c) (1) (D) (“Aclaim for refund may not be submitted by the taxpayer on behalf of a class consisting of other taxpayers who are alleged to be similarly situated.”). The General Assembly did not make a similar amendment to OCGA § 48-5-380, the statute governing the procedures for obtaining ad valorem tax refunds that was at issue in Barnes I.

In its 2005 Sawnee decision, the Supreme Court held that an electric membership corporation could not bring a lawsuit on behalf of its 108,000 members against the Georgia Department of Revenue for a tax refund under OCGA § 48-2-35. 279 Ga. at 24-25 (3). After observing that the particular claim before it was barred by the express prohibition against bringing tax refund actions on behalf of other taxpayers in OCGA § 48-2-35, the Supreme Court stated in a footnote that this prohibition “was passed during the 2003 legislative session and constitutes a legislative overruling of this Court’s holding in [Barnes I], supra, 276 Ga. [at] 449 (3), that a class action was a permissible means for a taxpayer to pursue a tax refund action.” Sawnee, supra, 279 Ga. at 25 (3), n. 1.

One year later, in Barnes II, a case involving OCGA § 48-5-380, the Supreme Court clarified its footnote in Sawnee and explained:

In [Barnes I],... we held that OCGA § 48-5-380 does not “provide for the form of action to be utilized. By participating as a plaintiff in a class action that includes a claim for a tax refund, a taxpayer is unquestionably bringing an action for a refund, which is what the statute permits.” Barnes I, supra at 452 (3). Compare Sawnee Elec. Membership Corp. v. Ga. Dept. of Revenue, 279 Ga. 22, 25 (3), fn. 1 (608 SE2d 611) (2005) (former OCGA § 48-2-35 (b) (5), now designated subsection (c) (5), superseded Barnes I only as to refund claims against the State). Thus, any taxpayer whom the named plaintiffs represent and who does not ultimately opt out of the class action is considered to have brought suit for a refund at the same time as the named plaintiffs. Although OCGA § 48-5-380 is applicable to that suit, so too are those principles which apply generally in class actions, including that which permits a representative to act on behalf of an entire class. Where, as here, “exhaustion of administrative remedies is a precondition for suit, the satisfaction of this requirement by the class plaintiff normally will avoid the necessity for each class member to satisfy this requirement individually.” 2 Newberg on Class Actions § 5:15, p. 438 (4th ed. 2002). Decisions to the contrary, such as U. S. Xpress v. State of New Mexico, 136 P3d 999 (N.M. 2006), are “based on genuinely unique statutory requirements.” 2 Newberg, supra at 440. OCGA § 48-5-380, unlike certain tax refund statutes, neither prohibits utilization of a class action, nor expressly requires individual exhaustion of administrative remedies. See Arizona Dept. of Revenue v. Dougherty, 29 P3d 862, 869 (B) (Ariz. 2001). Compare OCGA § 48-2-35 (c) (5).

281 Ga. at 257-258 (1).

Based upon Barnes II and the General Assembly’s failure to preclude class actions under OCGA § 48-5-380 followingthe Supreme Court’s decision in Barnes I, we conclude that a class action for a tax refund can be maintained under OCGA § 48-5-380. See Nuci Phillips Mem. Foundation v. Athens-Clarke County Bd. of Tax Assessors, 288 Ga. 380, 383 (1) (703 SE2d 648) (2010) (courts should presume that General Assembly has full knowledge of existing condition of statutory and case law at time statute is enacted). Cf. Bd. of Regents of the Univ. System of Ga. v. Rux, 260 Ga. App. 760, 764 (2) (580 SE2d 559) (2003) (waiver of sovereign immunity for contract cases generally allows for class action even though no explicit waiver for class actions in a contract case). We therefore find no merit in the County’s claim on appeal that the Colemans were precluded from maintaining a class action for a tax refund under OCGA § 48-5-380.

3. In each of the cases before us, the County asserts that the trial court erred by certifying class action claims for injunctive relief, mandamus, and declaratory judgment. In its orders certifying the classes, however, the trial court did not address the merits of the County’s specific claims with regard to the relief available. Instead, it merely held that nonmonetary relief can be sought in class actions generally. As this is a correct conclusion generally, Mabry, supra, 274 Ga. at 499-500 (1), we affirm the trial court’s class certification orders, but only as to this general principle. We express no opinion about whether the certified class actions are subject to dismissal based upon the doctrine of sovereign immunity, limitation periods within the tax refund statute, or alleged fatal flaws with the Cole-mans’ claims for nonmonetary relief, as these issues have not yet been ruled upon by the trial court. See Luyando v. Bowen, 124 FRD 52, 56 (III) (C) (S.D. N.Y. 1989) (refusing to address merits of sovereign immunity when considering motion for class certification).

Decided November 16, 2015

Brown, Readdick, Bumgartner, Carter, Strickland & Watkins, G. Todd Carter, Emily R. Hancock, for appellant.

Roberts Tate, James L. Roberts TV, Jason M. Tate, for appellees.

For all of the above-stated reasons, we affirm the trial court’s orders certifying classes in Case No. A15A1522, Case No. A15A1523, and Case No. A15A1524, as well as the trial court’s order denying the County’s motion to dismiss in Case No. A15A1522.

Judgments affirmed.

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


author: Miller, Judge.

text:
    A15A1609.
    METROPOLITAN ATLANTA RAPID TRANSIT AUTHORITY v. MORRIS et al.
    (779 SE2d 726)
   Miller, Judge.

Kimberly Morris and Marlon Hatchett filed a personal injury suit against the Metropolitan Atlanta Rapid Transit Authority (“MARTA”), alleging that it was vicariously liable for the negligence of an unidentified MARTA bus driver who struck their vehicle. Following a trial, the jury returned a verdict for the plaintiffs. MARTA appeals, contending that (1) the trial court erred in denying its motion for directed verdict, (2) the trial court erred in refusing to instruct the jury on the plaintiffs’ negligence, and (3) the jury was not authorized to award attorney fees. For the reasons that follow, we affirm.

Construed in favor of the verdict, the evidence shows that on November 19, 2011, Morris and Hatchett arrived in Atlanta and checked into their hotel on Peachtree Street. They left the hotel and had dinner at a restaurant. At dinner, Morris had one margarita. After dinner, around 10:30 p.m., they drove back toward the hotel.

Morris was driving south on Peachtree Street when she stopped at a red light at the 14th Street intersection. Morris was in the right-hand lane. A MARTA bus was in the lane to her left. The bus had “MARTA” and “Five Points” written on the side of it, and there is a MARTA bus route that travels on Peachtree Street from Lenox Station to Five Points. There is only one MARTA corporation and only MARTA bus operators are permitted to drive MARTA buses. The bus was driven by a man wearing a white shirt and black pants, and a MARTA supervisor informed Morris that all MARTA bus drivers wear white shirts and black pants.

When the light turned green, both Morris and the MARTA bus began to proceed through the light. The MARTA bus veered into the right lane and sideswiped Morris’s vehicle, causing it to hit the curb. The bus pulled over into the right-hand lane and then stopped at the MARTA bus stop at the next corner. At the bus stop, passengers got on and off the bus. The bus then left the area. Both Hatchett and Morris sustained injuries, and Morris’s car was damaged.

Hatchett called 911. MARTA police arrived on the scene and, about 45 minutes after the accident, a MARTA supervisor arrived. Eventually, an Atlanta Police Department officer arrived and completed an investigation. The officer saw no evidence that Morris was intoxicated and administered no field sobriety tests.

At trial, a passerby, who rode MARTA everyday, testified that she was walking on Peachtree Street when she heard a crash and then saw a MARTA bus drive by Morris’s vehicle and tear off the front bumper. The bus had MARTA markings, including three colored stripes. Another witness to the accident was not available at trial, but his previous statement to a MARTA claims representative was read at trial, and the videotape of his deposition was played for the jury. That witness also observed the MARTA bus sideswipe Morris’s vehicle.

1. MARTA contends that the trial court erred as a matter of law in denying its motion for directed verdict because the plaintiffs failed to prove vicarious liability and negligence. We discern no error.

On appeal from the denial of a motion for a directed verdict, we construe the evidence in the light most favorable to the party opposing the motion, and the standard of review is whether there is any evidence to support the jury’s verdict. However, we review questions of law de novo.

(Citation and punctuation omitted.) Cumberland Contractors v. State Bank and Trust Co., 327 Ga. App. 121, 122 (755 SE2d 511) (2014).

(a) As an initial matter, MARTA argues that the trial court erred in relying on hearsay testimony in denying its motion for a directed verdict. We disagree.

(i) Statement of MARTA Supervisor.

MARTA argues that the trial court erred in relying on Morris’s hearsay statement that, after she described the driver’s appearance and clothing to the MARTA supervisor who responded to the scene, the supervisor told her that all MARTAbus drivers wear white shirts and black pants. MARTA did not object to Morris’s testimony at trial. Pursuant to the new Evidence Code, which went into effect in January 2013, almost two years before the trial in this case, “ifaparty does not properly object to hearsay, the objection shall be deemed waived, and the hearsay evidence shall be legal evidence and admissible.” OCGA § 24-8-802. Accordingly, the supervisor’s statement was properly admitted. See id.

(ii) Eyewitness’s Deposition Testimony.

MARTA also argues that the trial court erred in relying on the deposition testimony of one of the eyewitnesses who identified the bus as a MARTA bus because the witness only learned that Atlanta municipal buses were called MARTA buses after the accident. Any error in relying on this testimony was harmless since Morris, Hatchett and the other eyewitness also identified the bus as a MARTAbus. See Fortner v. Town of Register, 289 Ga. App. 543, 547 (1) (657 SE2d 620) (2008) (admission of incompetent evidence is harmless when cumulative of other legally admissible evidence).

(b) MARTA argues that the trial court erred in denying its motion for a directed verdict because the plaintiffs failed to prove that MARTA owned the bus that hit them, that the driver was a MARTA employee and that the driver was acting in the course and scope of his employment. We disagree.

“When a servant causes an injury to another, the test to determine if the master is liable is whether or not the servant was at the time of the injury acting within the scope of his employment and on the business of the master.” (Citation omitted.) Hicks v. Heard, 286 Ga. 864, 865 (692 SE2d 360) (2010).

A vehicle’s insignia, alone, is insufficient to show ownership of that vehicle or that it was operated in the course and scope of employment. See Sellers v. Air Therm Co., 231 Ga. App. 305, 307-308 (498 SE2d 167) (1998) (evidence that vehicle that hit plaintiff bore defendant’s name and logo was insufficient to establish that hit-and-run driver was an employee of defendant or was driving vehicle in the course and scope of his employment, as required to establish plaintiff’s vicarious liability claim). Here, there was not only evidence that the bus was marked as a MARTAbus, but there was also undisputed evidence that the driver was wearing the same outfit that would be worn by a MARTA bus driver, evidence that only MARTA bus drivers are permitted to operate MARTA buses, and, most importantly, evidence that the driver let passengers on and off at a MARTA bus stop immediately after the accident. This evidence was sufficient to establish that the bus driver was a MARTA employee acting in the scope of his employment and was sufficient to support the jury’s verdict. Accordingly, the trial court did not err in denying MARTA’s motion for a directed verdict.

(c) MARTA also argues that the trial court erred in denying its motion for a directed verdict because there was no evidence showing that the bus driver was negligent. Again, we disagree.

In Georgia, the essential elements of a cause of action for negligence are: (1) a legal duty; (2) a breach of this duty; (3) an injury; and (4) a causal connection between the breach and the injury. As to the issue of legal duty, the Uniform Rules of the Road require that a driver maintain and control the vehicle within the lane and not run off the roadway. The failure to maintain such control may be negligence per se.

(Citations and punctuation omitted.) Vaughan v. Glymph, 241 Ga. App. 346, 348 (526 SE2d 357) (1999). Both Morris and Hatchett testified that the bus driver failed to maintain his lane. This evidence was sufficient to establish negligence on the part of the driver and was sufficient to support the jury’s verdict. See OCGA § 24-14-8; see also Smith v. Carter, 305 Ga. App. 479, 480 (1) (699 SE2d 796) (2010) (“testimony of a single witness is generally sufficient to establish a fact”) (citation and punctuation omitted).

2. MARTA contends that the trial court erred in refusing MARTA’s request to charge the jury, pursuant to OCGA § 51-12-33, that it could apportion liability to the plaintiffs. We disagree.

“A charge on a given subject is justified if there is even slight evidence from which a jury could infer a conclusion regarding that subject.” (Citation and punctuation omitted.) Hendley v. Evans, 319 Ga. App. 310, 311 (2) (734 SE2d 548) (2012).

Here, MARTA requested that the trial court instruct the jury that it must determine the percentage of the plaintiffs’ fault, if any, and that the plaintiffs were not entitled to recover any damages if the plaintiffs were 50 percent or more responsible for the injury or damages, and if the plaintiffs were less than 50 percent responsible for any injury or damages, then the jury was to apportion the total damage award. See Suggested Pattern Jury Instructions, Vol. I: Civil Cases (5th ed.), §§ 60.140; 60.141. MARTA also requested that the trial court give the following instruction:

Where an action is brought against one or more persons for injury to person or property and the plaintiffs are to some degree responsible for their injuries or damages claimed, the trier of fact (which is you the jury) in its determination of the total amount of damages to be awarded, if any, shall determine the percentage of fault of the plaintiffs and the judge shall reduce the amount of damages otherwise awarded to the plaintiffs in proportion to their percentage of fault.

The trial court found that there was no evidence that contradicted the plaintiffs’ testimony that the bus veered into their lane and refused to give the requested instructions.

Pursuant to OCGA § 51-12-33 (a), where “the plaintiff is to some degree responsible for the injury or damages claimed, the trier of fact, in its determination of the total amount of damages to be awarded... shall determine the percentage of fault of the plaintiff[.]” See also Double View Ventures v. Polite, 326 Ga. App. 555, 558 (1) (a) (757 SE2d 172) (2014). Fault, as used in OCGA § 51-12-33 (a) “refers to a breach of the legal duty that a plaintiff owes to exercise ordinary care to avoid injury to himself that is a proximate cause of the injury for which he now seeks to recover damages from a defendant.” Zaldivar v. Prickett, 297 Ga. 589, 594 (1) (774 SE2d 688) (2015).

Where there is evidence from which the jury could conclude that the plaintiff was negligent, the jury should be instructed to apportion damages according to its determination of the percentage of fault. See Clark v. Rush, 312 Ga. App. 333, 334 (1) (718 SE2d 555) (2011). It is, however, error to charge on the plaintiffs’ contributory or comparative negligence when there is no evidence of such negligence. See Beadles v. Bowen, 106 Ga. App. 34, 36 (4) (126 SE2d 254) (1962); see also Lovell v. Howard, 182 Ga. App. 891 (2) (357 SE2d 600) (1987) (no error to refuse to charge on comparative negligence when there was no evidence to support such a charge).

In the instant case, Morris and Hatchett testified that the bus veered into their lane, and their testimony was corroborated by two eyewitnesses, who saw the MARTA bus sideswipe Morris’s vehicle and tear off the bumper. No evidence contradicted this testimony.

Moreover, contrary to MARTA’s argument, the fact that the investigating officer could not determine the cause of the accident and that the eyewitnesses heard, rather than saw, the moment of initial impact, does not contradict the plaintiffs’ testimony that the bus veered into their lane or establish that they were negligent.

MARTA also argues that the evidence that Morris had a margarita at dinner before the accident establishes that Morris was negligent. The responding officer noted in his report that he saw no evidence that Morris was intoxicated and administered no field sobriety tests, and there is no evidence in the record that Morris was intoxicated or impaired. Additionally, to the extent that MARTA argues that Morris was impaired based on her consumption of one alcoholic drink, the presence of alcohol in a person’s body, by itself, does not support an inference that the person was an impaired driver. See State v. Frost, 297 Ga. 296, 305 (773 SE2d 700) (2015). Since there was no evidence in the record that the plaintiffs were negligent, the trial court did not err in refusing MARTA’s requested instructions. Compare Clark, supra, 312 Ga. App. at 334 (1) (charge on plaintiff’s negligence authorized where there was evidence that plaintiff was driving too fast); Jimenez v. Morgan Drive Away, 238 Ga. App. 638, 641 (2) (b) (519 SE2d 722) (1999) (charge on plaintiff’s contributory negligence authorized where there was some evidence that plaintiff’s truck was parked partially in the travel lane).

3. MARTA contends that the jury was not entitled to award attorney fees pursuant to OCGA § 13-6-11 because there was a bona fide controversy as to whether MARTA was vicariously liable for the actions of the bus driver. We discern no error.

OCGA § 13-6-11 provides that “where the defendant has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense, the jury may” award the plaintiff attorney fees and expenses of litigation. (Emphasis supplied.) “Questions concerning bad faith, stubborn litigiousness, and unnecessary trouble and expense are generally questions for the trier of fact to decide. An award of attorney fees under OCGA § 13-6-11 will be affirmed if there is any evidence to support it.” (Citations omitted.) Charter Drywall Atlanta v. Discovery Technology, 271 Ga. App. 514, 517 (2) (610 SE2d 147) (2005).

Contrary to MARTA’s argument, the existence of a bona fide controversy negates the possibility of a statutory award of attorney fees only “[w]here bad faith is not at issue.” Lamb v. State Farm Mut. Auto Ins. Co., 240 Ga. App. 363, 365 (1) (522 SE2d 573) (1999). Here, the plaintiffs alleged that MARTA acted in bad faith.

Decided November 16, 2015

Vincent D. Hyman, for appellant.

McAleer Law Firm, Charles H. McAleer, Katherine L. Jackson, for appellees.

Bad faith warranting an award of attorney fees must have arisen out of the transaction on which the cause of action is predicated.... [D] espite the existence of a bona fide controversy as to liability, a factfinder may find that defendant acted in the most atrocious bad faith in his dealing with the plaintiff.

(Citations and punctuation omitted.) Burlington Air Express v. Georgia-Pacific Corp., 217 Ga. App. 312, 313 (457 SE2d 219) (1995). In Georgia, it is a crime for a driver to leave the scene of an accident resulting in injury or damage to a vehicle. See OCGA § 40-6-270. Here, the undisputed evidence in this case showed that the MARTA bus driver hit the plaintiffs in the course and scope of his employment and then fled the scene. Based on this evidence, the jury could have concluded that the driver, and thus, MARTA, acted in bad faith in dealing with the plaintiffs, and the jury was entitled to award attorney fees to the plaintiffs on that basis.

Judgment affirmed.

Andrews, P. J., and Branch, J., concur.

       See Double View Ventures v. Polite, 326 Ga. App. 555 (757 SE2d 172) (2014).

       Compare McCoy v. Southern Bell Tel. & Telegraph Co., 172 Ga. App. 26, 27 (1) (322 SE2d 76) (1984) (evidence of vehicle’s distinctive insignia, alone, is insufficient to establish ownership of a vehicle or that it was being operated by an agent or employee of defendant in the course of his employment); Burns v. United Parcel Svcs., 135 Ga. App. 890 (219 SE2d 624) (1975) (without more, testimony that plaintiff’s vehicle was hit by a brown and silver tractor trailer with letters “UPS” on the door was insufficient to prove a prima facie case of liability).

       MARTA also contends that the trial court erred in overruling its objection to the verdict form on the ground of vicarious liability. Our review of the record shows that MARTA only objected to the verdict form on the ground of its failure to permit the jury to decide the issue of contributory negligence. Accordingly, any objection to the verdict form on the basis of vicarious liability is waived. See Ploof Truck Lines v. Bennett, 221 Ga. App. 789, 791 (3) (472 SE2d 552) (1996).


text:
    A15A1616.
    In re SPRAYBERRY.
    (779 SE2d 732)
   Branch, Judge.

While Lauren King Sprayberry was appearing as counsel at a motions calendar in a trial court, her cell phone began to vibrate. The trial court held her in criminal contempt and imposed a fine of $25. On appeal, Sprayberry argues that she was not afforded an opportunity to be heard and that the evidence did not support the judgment. We agree with the first of these contentions and therefore reverse.

“[T]he contempt power is inherent in every court and, as such, is not subject to abridgement or restriction by the Legislature.” In re Jefferson, 283 Ga. 216, 217 (657 SE2d 830) (2008), citing Bradley v. State, 111 Ga. 168, 170 (1), (2) (36 SE 630) (1900). “ £[T]he broad authority of a judge to preserve good order in the courtroom by the use of contempt power is well recognized and must be preserved if the courts are to perform their public duty.’ ” Jefferson, 283 Ga. at 217 (footnote omitted), quoting Garland v. State, 253 Ga. 789, 791 (2) (325 SE2d 131) (1985). “Where misconduct occurs in open court, the affront to the court’s dignity is more widely observed, justifying summary vindication.” Ramirez v. State, 279 Ga. 13, 15 (2) (608 SE2d 645) (2005) (punctuation and footnote omitted).

During trial, a trial judge has the power, when necessary to maintain order in the courtroom, to declare conduct committed in his presence and observed by him to be contemptuous and, after affording the contemnor an opportunity to speak in his or her own behalf, to announce punishment summarily and without further notice or hearing.

In re Kendall, 220 Ga. App. 591, 594 (1) (469 SE2d 836) (1996) (emphasis supplied), quoting Dowdy v. Palmour, 251 Ga. 135, 141-142 (2) (b) (304 SE2d 52) (1983); see also In re Willis, 259 Ga. App. 5, 7 (2) (576 SE2d 22) (2002). “Nevertheless, in view of the nature of the power to punish for contempt, courts should limit their orders to the least possible exercise of power required, and should not impose punishment without first affording minimum due process to the accused.” In re Siemon, 264 Ga. 641 (1) (449 SE2d 832) (1994) (citations omitted).

The record shows that on February 26, 2015, during the calling of a criminal motions calendar, Sprayberry’s cell phone began to vibrate. When Sprayberry apologized, the trial court said, “We’ll deal with Ms. Sprayberry” and opined that “the Obama White House [was] calling” to offer her “a position with the Federal Public Defender’s Office paying a hundred and fifty thousand a year.” The trial court then ordered bailiffs to “cut the thing off” and “put that thing outside somewhere.”

After the conclusion of other business, the trial court returned to the matter of Sprayberry’s cell phone. As Sprayberry repeated that “all I did was stop it from vibrating,” the trial court interrupted her to say that on the same morning, in drug court, the court had notified counsel that they would be fined $50 for any cell phone that disrupted the proceedings. As the prosecutor confirmed that this rule had been set that morning, Sprayberry stated that the matter had not been discussed in drug court that morning and repeated that her phone had only vibrated. The trial court then said that “since [Sprayberry] had [the phone] on . . . vibrate,” it would “reduce [the fine] to [$25].” When Sprayberry protested that she did not think that she “should get a fine at all,” the prosecutor noted that the trial court had already “hit the gavel.” When Sprayberry again protested, the trial court noted that Sprayberry “may be like me” in that “her mama or her daddy might have spoiled her” and then adjourned the proceedings.

One minute later, Sprayberry succeeded in reestablishing a record and explained that if she did not keep her phone on vibrate mode, she would not be able to communicate with her office. The trial court responded that “[a]ll you got to do is pay your fine” and refused any further discussion, twice saying, “The best thing to do is not talk about it.” On the same day, the trial court entered an order finding that Sprayberry had allowed her telephone to ring during court and imposing a fine of $25.

1. On this record, we cannot say that the trial court afforded Sprayberry any meaningful opportunity to be heard. The trial court was conducting a motions hearing, not a trial, such that a short time could have been spent allowing her to offer an explanation to the court before it reached judgment as to her contempt. The transcript also shows that the trial court repeatedly interrupted Sprayberry as she attempted to explain herself, with the result that the question whether she had notice of the rule barring cell phones, which had been promulgated by the court only that morning, remained unexplored. “Because this was a summary criminal contempt hearing, it was incumbent upon the court to afford [Sprayberry] an opportunity tobe heard” on this issue. Coleman v. State, 269 Ga. App. 827, 827-828 (605 SE2d 424) (2004) (citation omitted). The trial court failed to provide Sprayberry with such an opportunity, with the result that the judgment of contempt against her must be reversed. Id. at 828 (reversing judgment of contempt against attorney who twice refused to turn over his cell phone, which had interrupted proceedings, without a receipt, and who was held in contempt without a hearing when he returned to the courtroom); Kendall, 220 Ga. App. at 594 (1) (reversing judgment of contempt because where trial court erred in failing to hold a hearing as promised and in announcing punishment summarily, “it was incumbent upon the court to afford Kendall an opportunity to speak in his own behalf”).

2. Given our disposition of Division 1, we need not address the sufficiency of the evidence supporting the trial court’s judgment. Coleman, 269 Ga. App. at 827; Willis, 259 Ga. App. at 7.

Judgment reversed.

Andrews, P. J., and Miller, J., concur.

Decided November 16, 2015.

Lauren K. Sprayberry, pro se.

Scott L. Ballard, District Attorney, Marie G. Broder, Assistant District Attorney, for appellee.

       SeeOCGA § 15-6-8 (5) (a superior court has the power to punish acts of criminal contempt “by fines not exceeding $1,000.00, by imprisonment not exceeding 20 days, or both”); Murtagh v. Emory Univ., 321 Ga. App. 411, 415 (2) (741 SE2d 212) (2013) (“criminal contempt imposes unconditional punishment for prior acts of contumacy, whereas civil contempt imposes conditional punishment as a means of coercing future compliance with a prior court order”) (citations, punctuation and emphasis omitted).


author: Miller, Judge

text:
    A15A0452.
    WOODRUFF v. CHOATE.
    (780 SE2d 25)
   Miller, Judge

Rita Dawn Woodruff filed a petition for modification of child custody and visitation against her ex-husband, William Choate. The trial court dismissed Woodruff’s petition and awarded attorney fees to Choate. Woodruff appeals, contending that the trial court erred in (1) dismissing sua sponte her petition and (2) awarding Choate attorney fees and expenses of litigation. For the reasons that follow, we reverse and remand to the trial court.

“We review a trial court’s sua sponte order of dismissal de novo.” (Citation omitted.) Haygood v. Head, 305 Ga. App. 375, 377 (1) (699 SE2d 588) (2010). “In deciding a motion to dismiss, all pleadings are to be construed most favorably to the party who filed them, and all doubts regarding such pleadings must be resolved in the filing party’s favor.” (Citation omitted.) Scott v. Scott, 311 Ga. App. 726, 727 (1) (716 SE2d 809) (2011).

So viewed, Woodruff’s complaint alleged that she and Choate, who have a 16-year-old child together, divorced in 2002. Under a 2010 consent order, the parties shared joint legal custody; Choate had primary physical custody of the child; and Woodruff, who then lived out of state, was entitled to visitation every other weekend during the school year.

In September 2011, Woodruff purchased a home in Woodstock, near Choate’s home. At the beginning of the 2012-2013 school year, Woodruff and Choate, with the help of a parenting coach, agreed to deviate from the 2010 consent order and adopted an informal joint parenting plan, whereby they alternated custody of the child every few days during the school year and every two weeks during the summer. In July 2013, Choate ended the informal parenting plan, and the parties reverted to the custody and visitation schedule set forth in the 2010 consent order.

In August 2013, Woodruff filed the instant petition for modification of custody and visitation, alleging changed circumstances and seeking joint legal and physical custody and equal parenting time. Woodruff specifically alleged:

Since the date of the most recent modification action,... the circumstances of the parties and the needs of the minor child have changed to the degree that the [2010 consent order] is no longer in the best interest of the child and should be modified accordingly.

Woodruff also requested child support and attorney fees. Choate filed an answer to Woodruff’s petition, denying her allegations and requesting attorney fees.

In September 2013, the child signed an election, indicating a preference to live with Choate. At a status conference in January 2014, the trial court ordered the parties and their attorneys to avoid discussing the litigation with the child. Despite the court’s order, in February 2014, the child signed a different election, indicating a preference to live with Choate and Woodruff on an equal basis. In March 2014, after reserving the issue of attorney fees and hearing opening arguments, the trial court struck the child’s February 2014 election and, without accepting any other evidence from Woodruff, dismissed her petition. In June 2014, Choate sought and the trial court awarded approximately $47,000 in attorney fees and expenses of litigation under OCGA §§ 9-15-14 and 19-9-3. This appeal ensued.

1. As an initial matter, Choate argues that Woodruff is barred from seeking review in this Court because she failed to timely appeal from the trial court’s March 2014 dismissal of her petition to modify custody and failed to file an application for discretionary review from the trial court’s June 2014 order awarding attorney fees under OCGA §§ 9-15-14 and 19-9-3 (g). This Court initially dismissed Wood-ruff’s appeal on those grounds, but we later granted Woodruff’s motion for reconsideration, reinstated the appeal, and directed the parties to address the issue of jurisdiction. Woodruff argues that she is entitled to a direct appeal under OCGA § 5-6-34 because the trial court’s June 2014 order was a final judgment in a child custody case. After careful consideration, we conclude that we have jurisdiction over this direct appeal.

(a) The Appellate Practice Act “shall be liberally construed so as to bring about a decision on the merits of every case appealed and to avoid dismissal of any case[.]” OCGA § 5-6-30. “The policy of the Appellate Practice Act is against multiple appeals and piecemeal litigation.” (Citation omitted.) Mays v. Rancine-Kinchen, 291 Ga. 283, 283-284 (729 SE2d 321) (2012).

“Two Code sections determine the method for pursuing appeals to this Court: OCGA § 5-6-34, which describes the trial court’s judgments and orders that may be appealed directly, and OCGA § 5-6-35, which lists cases in which an application for appeal is required.” Collins v. Davis, 318 Ga. App. 265, 266 (1) (733 SE2d 798) (2012).

Pursuant to OCGA § 5-6-34 (a) (1), “[d]irect appeals are generally authorized from lower court orders that are final, meaning that there are no issues remaining to be resolved in the lower court.” Mays, supra, 291 Ga. at 284. Here, in its March 2014 order, the trial court specifically reserved the issue of attorney fees. In its June 2014 order, the trial court awarded Choate attorney fees under OCGA §§ 9-15-14 and 19-9-3. Thus, contrary to Choate’s assertion, the trial court’s March 2014 order was not a final judgment because it did not adjudicate all the pending claims. See Miller v. Miller, 288 Ga. 274, 282 (4) (705 SE2d 839) (2010) (holding that there was no final judgment in a divorce action until the reserved issue of attorney fees was resolved). Moreover, the March 2014 order did not terminate the custody action, and the trial court’s custody order was subject to revision at any time before the entry of final judgment. OCGA § 9-11-54 (b). Rather, the June 2014 order, which awarded attorney fees under not only OCGA § 9-15-14 but also OCGA § 19-9-3, disposed of all the claims in this case, and thus was the final judgment. Accordingly, the June 2014orderwassubjecttodirectappealunderOCGA § 5-6-34 (a) (1).

(b) We must also consider, however, whether an application is nonetheless required based on the “underlying subject matter” at issue. See Todd v. Todd, 287 Ga. 250, 251 (1) (703 SE2d 597) (2010). Here, the underlying subject matter is Woodruff’s petition for modification of custody.

Both of our jurisdictional statutes, OCGA §§ 5-6-34 and 5-6-35, have been substantially amended in recent years and those amendments bear directly on this issue. Prior to 2007, child custody cases were explicitly identified as domestic relations cases for appellate purposes and a party was required to file an application for discretionary review. See Collins, supra, 318 Ga. App. at 266 (1) (“Prior to 2007, there was no right to a direct appeal in any domestic relations or child custody case[;] former OCGA § 5-6-35 (a) (2)... provided that applications for discretionary review were to be filed from appeals from judgments or orders in divorce, alimony, child custody, and other domestic relations cases.”) (punctuation omitted).

The 2007 amendment to OCGA § 5-6-34 (a) (11) stated that parties could file direct appeals from all judgments and orders in child custody cases, and the 2007 amendment to OCGA § 5-6-35 (a) (2) removed child custody cases from the list of cases that required an application for discretionary review. See Ga. L. 2007, p. 554, § 2; Ga. L. 2007, p. 554, § 3 (requiring applications for discretionary review in “[a]ppeals from judgments or orders in divorce, alimony, and other domestic relations cases”). With the 2007 amendments, “the legislature intended for child custody cases to be treated differently from other domestic relations cases for purposes of appeals” and intended that such cases no longer be subject to discretionary review. Moore v. Moore-McKinney, 297 Ga. App. 703, 707 (1) (678 SE2d 152) (2009). Accordingly, following enactment of the 2007 amendments, appellants were no longer required to file applications for discretionary review to appeal any judgment or order in a child custody case.

In 2013, the legislature again amended OCGA § 5-6-34 (a) (11), thereby clarifying that this subdivision extended a right of direct appeal only to “judgments or orders in child custody cases awarding, refusing to change, or modifying child custody or holding or declining to hold persons in contempt of such child custody judgment or orders[j\” (Emphasis supplied.) Murphy v. Murphy, 295 Ga. 376, 377 (761 SE2d 53) (2014); see also Ga. L. 2013, p. 735, § 1. Although the 2013 amendment limited the scope of OCGA § 5-6-34 (a) (11) to those orders — such as the trial court’s March 2014 order — that changed or refused to change child custody, the legislature did not amend OCGA § 5-6-35 (a) (2). Rather, the current version of OCGA § 5-6-35 (a) (2), which requires applications for discretionary review in domestic relations cases and explicitly includes divorce and alimony cases in that designation, is silent as to child custody cases.

The legislature is presumed to know that, based on its 2007 amendments to OCGA § 5-6-35 (a) (2) and our decision in Moore v. Moore-McKinney, supra, 297 Ga. App. at 707 (1), child custody cases are no longer considered domestic relations cases for purposes of discretionary appellate review and, thus, final judgments in child custody cases are thereby subject to direct review. See Avnet v. Wyle Laboratories, 263 Ga. 615, 619-620 (2) (437 SE2d 302) (1993) (“All statutes are presumed to be enacted by the legislature with full knowledge of the existing condition of the law and with reference to it. They are therefore to be construed in connection and in harmony with the existing law, and their meaning and effect is to be determined in connection, not only with the common law and the constitution, but also with reference to other statutes and the decisions of the courts.”) (citation and punctuation omitted). Accordingly, final judgments in child custody cases, such as the trial court’s June 2014 order in this case, are directly appealable under the current statutory scheme.

Choate argues that Woodruff’s appeal of attorney fees awarded pursuant to OCGA § 9-15-14 is governed by OCGA § 5-6-35 (a) (10), which requires a party to follow the discretionary appeals procedure to obtain review of an OCGA § 9-15-14 award. Since Woodruff’s appeal is properly before this Court as a direct appeal of a final judgment under OCGA § 5-6-34 (a) (1), however, she was not required to also file a discretionary application to challenge the award of attorney fees under OCGA § 9-15-14. See Mitcham v. Blalock, 268 Ga. 644, 646-647 (4) (491 SE2d 782) (1997) (no application required when appeal of attorney fees under OCGA § 9-15-14 is part of a judgment that is otherwise directly appealable); see also OCGA § 5-6-34 (d). Since she is properly before this Court on the child custody issue, we can also address the attorney fees issue.

2. Woodruff contends that the trial court erred in dismissing her petition to modify custody and visitation. We agree.

(a) A trial court should only dismiss a complaint on the ground that it fails to state a claim upon which relief can be granted if:

(1) the allegations of the complaint disclose with certainty that the claimant would not be entitled to relief under any state of provable facts asserted in support thereof; and (2) the [opposing party] establishes that the claimant could not possibly introduce evidence within the framework of the complaint sufficient to warrant a grant of the relief sought.

(Citation omitted.) Scott, supra, 311 Ga. App. at 727 (1).

In dismissing Woodruff’s complaint for failure to state a claim, the trial court found that Woodruff had failed in her petition to offer details of the alleged change in circumstances, and had not claimed a change in material conditions or circumstances. Contrary to the trial court’s order,

it is no longer necessary for a complaint to set forth all of the elements of a cause of action in order to survive a motion to dismiss for failure to state a claim. If, within the framework of the complaint, evidence may be introduced which will sustain a grant of relief to the plaintiff, the complaint is sufficient.

(Citations and punctuation omitted.) Scott, supra, 311 Ga. App. at 729 (1). Woodruff alleged in her petition that “the circumstances of the parties and the needs of the minor child have changed to the degree that the [2010 consent order] is no longer in the best interest of the child.” Accordingly, the allegations in Woodruff’s petition are sufficient to state a complaint for modification of custody. See id.; see also Carley v. Lewis, 221 Ga. App. 540, 542 (472 SE2d 109) (1996) (allegations in petition to change custody need only be sufficient to give respondent fair notice of petitioner’s claim).

(b) Moreover, the trial court also found that Woodruff had alleged no change of circumstances since September 2013, when the child signed an election indicating a preference to live with Choate. In dismissing Woodruff’s petition based on the child’s September 2013 election, the trial court considered a matter outside the pleadings, thereby converting its dismissal order into one for summary judgment. See Aycock v. Calk, 222 Ga. App. 763 (476 SE2d 274) (1996); see also Cox Enterprises, Inc. v. Nix, 273 Ga. 152, 153 (538 SE2d 449) (2000).

Although our law concerning motions for summary judgment allows a trial court to grant, sua sponte, a summary judgment, a trial court’s authority to do so is not unlimited. The grant of summary judgment must be proper in all other respects. This means that in addition to ensuring the record supports such a judgment, the trial court must ensure that the party against whom summary judgment is rendered is given full and fair notice and opportunity to respond prior to entry of summary judgment.

(Citations and punctuation omitted; emphasis supplied.) Aycock, supra, 222 Ga. App. at 763-764. The party opposing summary judgment may, if she so desires, have 30 days notice in which to submit evidence in response. See Cox Enterprises, supra, 273 Ga. at 153.

Pursuant to OCGA § 19-9-3 (a) (5), “[i]n all custody cases in which the child has reached the age of 14 years, the child shall have the right to select the parent with whom he or she desires to live.” Although the child’s election is presumptive, it is not conclusive, and the trial court must still consider the child’s best interest. See Driver v. Sene, 327 Ga. App. 275, 277 (1) (758 SE2d 613) (2014); OCGA § 19-9-3 (a) (5) (“The child’s selection for purposes of custody shall be presumptive unless the parent so selected is determined not to be in the best interests of the child.”).

The relevant time period to consider in deciding whether to grant Woodruff’s petition for modification based on a change of condition, however, is whether “there has been a material change of condition affecting the welfare of the child since the last custody award.” (Citation omitted; emphasis supplied.) Viskup v. Viskup, 291 Ga. 103, 105 (2) (727 SE2d 97) (2012). At the hearing, Woodruff stated, during opening argument, that the evidence would show that the parties had deviated from the 2010 consent order for a year to engage in equal parenting time and that the equal parenting time worked well and was in the child’s best interest. The trial court did not allow Woodruff to submit any evidence in support of her argument prior to dismissing her complaint.

Since Woodruff’s petition was sufficient to state a claim, and the trial court considered evidence outside of the pleadings but did not permit Woodruff an opportunity to respond, the trial court erred in dismissing Woodruff’s complaint. We reverse the trial court’s order and remand for further proceedings consistent with this opinion.

3. Woodruff contends that the trial court erred in awarding Choate approximately $47,000 in attorney fees and expenses of litigation under OCGA §§ 9-15-14 (a) and (b) and 19-9-3 (g). We agree.

OCGA § 9-15-14 (a) authorizes a trial court to award attorney fees when a party asserts a position “with respect to which there existed such a complete absence of any justiciable issue of law or fact that it could not be reasonably believed that a court would accept the asserted” position. OCGA § 9-15-14 (b) authorizes a trial court to award attorney fees when a party has brought an action that “lacked substantial justification.” OCGA § 19-9-3 (g) authorizes the trial court to “order reasonable attorney’s fees and expenses of litigation, experts, and the child’s guardian ad litem and other costs of the child custody action and pretrial proceedings to be paid by the parties in proportions and at times determined by the judge.”

Decided November 17, 2015.

Alan Mullinax, for appellant.

Mayoue Gray Eittreim, John C. Mayoue, Renee H. Neary, for appellee.

Although the trial court found that Woodruff failed to demonstrate that the circumstances had changed and contravened the trial court’s order by discussing the case with the child, it did not allocate the fee award between the statutes. Since, as set forth above, the trial court erred in dismissing Woodruff’s petition for modification and failed to give Woodruff an opportunity to respond to Choate’s evidence, we vacate the award of attorney fees and remand for reconsideration in light of this opinion.

Judgment reversed and case remanded.

Andrews, P. J., and Branch, J., concur.

       See Sharpe v. Perkins, 284 Ga. App. 376, 378 (1) (644 SE2d 178) (2007) (election indicating that child wishes to live with both parents is invalid because OCGA § 19-9-3 (a) (5) requires child to choose one parent).

       The trial court’s March 2014 child custody order was directly appealable pursuant to OCGA § 5-6-34 (a) (11), even though it was not a final judgment in the case. See Taylor v. Curl, 298 Ga. App. 45 (679 SE2d 80) (2009).

       The mere designation by the trial court of its March 2014 order as a “Final Order” is not controlling and does not equate to an express determination that there was no just reason for delay and an express direction for the entry of final judgment under OCGA § 9-11-54 (b). See Sotter v. Stephens, 291 Ga. 79, 82-83 (727 SE2d 484) (2012).

       The fact that Woodruff was also entitled to a direct appeal of the trial court’s March 2014 child custody order pursuant to OCGA § 5-6-34 (a) (11) does not necessarily limit or alter her right to directly appeal the June 2014 order under OCGA § 5-6-34 (a) (1).

       Confusingly, the trial court’s order both denies and dismisses Woodruff’s petition. A review of the hearing transcript and order, however, shows that the trial court dismissed Woodruff’s petition for failure to state a claim upon which relief could be granted.


text:
    A15A1013.
    YORK v. THE STATE.
    (780 SE2d 352)
   Miller, Judge.

Following a jury trial, Abdur Raashidyd York was convicted of burglary (OCGA § 16-7-1 (a) (2011)). York appeals from the denial of his motion for new trial, contending that the trial court erred in admitting evidence of other crimes at his trial under OCGA § 24-4-404 (b), and that the trial court erred in denying his motion to dismiss based on constitutional speedy trial grounds. For the reasons that follow, we affirm the trial court’s admission of other acts evidence and vacate the denial of York’s motion to dismiss and remand this case back to the trial court with direction.

Viewing the evidence in the light most favorable to the verdict, the evidence shows that on the early morning of April 27, 2011, Kristina Craig drove York and David Robinson from Atlanta to Buford in Gwinnett County. Craig dropped off York and Robinson near a gas station, and York and Robinson were carrying book bags when they left. When York and Robinson returned to the vehicle, they were wearing gloves, and they discussed having to sell some cigarettes.

A few hours later, the owner of a Chevron gas station in Buford arrived at work to find that the front glass door had been shattered. The owner observed that several items, including cigarettes, phone cards, and a blue bank bag containing receipts, were missing. The gas station owner called 911 and relayed his observations.

At trial, the trial court, over York’s objection, allowed the State to introduce other acts evidence showing that York, Robinson, and Craig burglarized two convenience stores in Forsyth County on April 28, 2011. Specifically, York and Robinson entered the first convenience store by breaking the glass front door, and entered the second convenience store in a similar manner. Shortly after responding to the alarm calls, Forsyth County deputy sheriffs stopped Craig’s vehicle, in which York and Robinson were passengers, because it was the only vehicle in the area at the time of the burglaries. The deputy sheriffs conducted a search pursuant to Craig’s consent and uncovered a pry-bar, backpacks, gloves, rolled and loose coins, and merchandise, including cartons of cigarettes, belonging to the burglarized convenience stores. The deputy sheriffs also found a blue bank bag on the floorboard where York had been sitting.

The Forsyth County Sheriff’s Office turned over the blue bank bag to the Gwinnett County Police Department, and a Gwinnett County police detective took the bag to the owner of the gas station that was burglarized on April 27. The gas station owner testified at trial and identified the blue bank bag and its contents as having been taken from his store.

1. On appeal, York contends that the trial court erred in admitting other acts evidence showing that he burglarized two Forsyth County convenience stores. We discern no error. Under OCGA § 24-4-404 (b),

[ejvidence of other crimes, wrongs, or acts shall not be admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

Moreover, under OCGA § 24-4-403, “[rjelevant evidence maybe excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” These provisions track their federal counterparts. See Federal Rules of Evidence 403 and 404 (b). For this reason, in determining the admissibility of evidence of other acts under our own Rules 403 and 404 (b), Georgia appellate courts have adopted the same three-part test used by the Eleventh Circuit Court of Appeals for determining the admissibility of other acts evidence under the federal rules. See Bradshaw v. State, 296 Ga. 650, 656 (3) (769 SE2d 892) (2015).

Under that three-part test, the State must show that: (1) evidence of extrinsic, or other, acts is relevant to an issue other than a defendant’s character; (2) the probative value of the other acts evidence is not substantially outweighed by its undue prejudice; and (3) there is sufficient proof so that the jury could find that the defendant committed the act in question. See Bradshaw, supra, 296 Ga. at 656 (3). The trial court’s decision to admit evidence of other acts is reviewed on appeal for a clear abuse of discretion. Id. at 657 (3).

Here, York only challenges the second prong of the three-part test, arguing that the undue prejudice from admitting evidence of the two Forsyth County burglaries substantially outweighed their probative value. His claim has no merit, because the Forsyth County burglaries were factually similar to the charged offense, as all three burglaries targeted convenience stores and in each case entry was made by breaking the glass front door. Additionally, the charged offense was in close temporal proximity to the other acts, as the charged offense occurred one day before the Forsyth County burglaries, and evidence recovered from the Forsyth County burglaries, i.e., the blue bank bag, connected the other acts to the charged offense. In light of these circumstances, we conclude that the trial court did not abuse its discretion in admitting evidence of the Forsyth County burglaries. See Bradshaw, supra, 296 Ga. at 657-658 (3) (providing that whether the probative value of the other acts evidence is substantially outweighed by its unfair prejudice calls for a discretionary determination in which the trial court exercises “a common sense assessment of all the circumstances surrounding the extrinsic offense, including prosecutorial need, overall similarity between the extrinsic act and the charged offense, as well as temporal remoteness”) (citation and punctuation omitted); see also United States v. Sanders, 668 F3d 1298, 1314 (III) (B) (11th Cir. 2012) (Federal Rule of Evidence 404 (b) is a rule of inclusion allowing “extrinsic evidence unless it tends to prove only criminal propensity”) (emphasis supplied).

2. York contends that the trial court erred in denying his motion to dismiss on constitutional speedy trial grounds. We conclude that the trial court failed to adequately address York’s claim and, for this reason, we vacate the denial of York’s motion to dismiss and remand the case.

When considering a motion to dismiss on speedy trial grounds, the trial court must conduct a two-part test as set forth in the United States Supreme Court decisions in Barker v. Wingo, 407 U. S. 514, 530 (92 SCt 2182, 33 LE2d 101) (1972), and Doggett v. United States, 505 U. S. 647, 651-652 (112 SCt 2686, 120 LE2d 520) (1992). See Stewart v. State, 310 Ga. App. 551, 552-553 (713 SE2d 708) (2011). First, the trial court must determine whether the interval from the defendant’s arrest, indictment, or other formal accusation to trial is sufficiently long to be considered “presumptively prejudicial.” (Citations omitted.) Stewart, supra, 310 Ga. App. at 552. If the delay is presumptively prejudicial, the trial court must then determine whether the defendant has been deprived of his right to a speedy trial by analyzing a four-part balancing test that considers (1) the length of the delay, (2) the reason for the delay, (3) the defendant’s assertion of the right to a speedy trial, and (4) prejudice to the defendant. Id. at 553.

In reviewing the trial court’s resolution of a speedy trial claim, we must accept the court’s findings of fact if the record contains any evidence to support them, and we will defer to the trial court’s “ultimate conclusion . . . unless it amounts to an abuse of discretion, even though we might have reached a different conclusion were the issue committed to our discretion.” State v. Buckner, 292 Ga. 390, 391 (738 SE2d 65) (2013). “[T]he trial court’s order must provide sufficient findings of fact and conclusions of law to permit this Court to determine if the trial court properly exercised its discretion under the Barker[-Doggett] analysis.” (Citation omitted.) State v. Porter, 288 Ga. 524, 526 (2) (a) (705 SE2d 636) (2011).

(a) Presumptive Prejudice.

“The pretrial delay is measured from the accused’s arrest, indictment, or other formal accusation, whichever comes first, to the trial or, if the accused files a motion to dismiss the indictment, until the trial court denies the motion.” (Citation and punctuation omitted.) State v. Curry, 317 Ga. App. 611, 613 (2) (a) (732 SE2d 459) (2012).

The indictment in this case was returned in September 2011, and York was arrested on the charged offenses in May 2013. The trial court ruled on York’s motion to dismiss in April 2014. The 31-month delay between the return of the indictment and the trial court’s order was presumptively prejudicial. See Ditman v. State, 301 Ga. App. 187, 189 (1) (687 SE2d 155) (2009) (pretrial delay exceeding 12 months is presumptively prejudicial). Therefore, we will proceed to review the trial court’s findings with respect to the second stage of the BarkerDoggett analysis.

(b) Barker-Doggett Balancing Test.

With regard to the balancing test,

[n]o one factor is either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial. The four factors emphasized in Barker and Doggett do not constitute an exhaustive list; they have no talismanic qualities and must be considered together with such other circumstances as may be relevant given the animating principles behind the speedy trial guarantee. Thus, the second stage of the constitutional speedy trial analysis requires courts to engage in a difficult and sensitive balancing process and necessarily compels them to approach speedy trial cases on an ad hoc basis.

(Punctuation and footnotes omitted.) Ruffin v. State, 284 Ga. 52, 55-56 (2) (b) (663 SE2d 189) (2008). This Court is not permitted to weigh the Barker-Doggett factors in the first instance where the trial court has failed to do so. See State v. Pickett, 288 Ga. 674, 679-680 (2) (d) (706 SE2d 561) (2011). Accordingly, we look to the trial court’s order in this case and examine each factor in turn.

(i) Length of the delay.

It is important that trial courts not limit their consideration of the lengthiness of the pretrial delay to the threshold question of presumptive prejudice and remember to count it again as one of four criteria to be weighed in the balancing process at the second stage of the Barker-Doggett analysis. This is because uncommonly long delays have a tendency to compromise the reliability of trials in ways that neither party can prove or, for that matter, identify. As a result, the weight accorded the other factors in the balancing test depends, to a large degree, on the length of the delay.

(Citations and punctuation omitted.) Hayes v. State, 298 Ga. App. 338, 341 (2) (a) (680 SE2d 182) (2009).

Here, the trial court listed the length of a delay as a separate factor and concluded that “the disposition of this case has not been timely” and caused prejudice to the defendant. This, however, is merely a rehash of the trial court’s finding that the delay was presumptively prejudicial. There is nothing in the trial court’s order indicating that it considered whether the pretrial delay was uncommonly long given the circumstances of the case. “To the extent the trial court overlooked this factor in the four-factor balancing process, it erred.” Ruffin, supra, 284 Ga. at 59 (2) (b) (i).

(ii) Reasons for the delay.

The second Barker-Doggett factor requires trial courts to analyze “both the reason for the delay and whether this is attributable to the defendant or the [Sjtate.” (Citation and punctuation omitted.) Hayes, supra, 298 Ga. App. at 341 (2) (b). In evaluating the reasons for the delay, courts are required to “assign[ ] various degrees of weight to the different reasons provided by the prosecution and the defense respectively.” Layman v. State, 284 Ga. 83, 85 (663 SE2d 169) (2008). The second Barker-Doggett factor is “pivotal in evaluating the strength of a constitutional speedy trial claim, as it can color the consideration of all other factors.” (Citation and punctuation omitted.) Phan v. State, 290 Ga. 588, 593 (1) (b) (723 SE2d 876) (2012).

In its order denying York’s motion to dismiss, the trial court found that York’s case was delayed due to an overcrowded docket, because three different prosecutors had been assigned to the case, and because the trial court effectively stayed the case pending resolution of York’s Forsyth County case. The trial court also noted that the case was continued for four consecutive months at the State’s request because certain witnesses were unavailable, even though there is evidence that York objected to at least three months of that continuance. The trial court also concluded that at least two months of the delay were attributable to York because his trial counsel was granted a leave of absence, and that an unspecified period of delay was due to York’s attempts to obtain the transcript of his Forsyth County trial.

The trial court’s analysis on the second Barker-Doggett factor is incomplete. First, the trial court failed to consider the delay between the return of the indictment in September 2011 and the first call to trial in March 2012, and there is no apparent reason for this delay. “[Wjhen there is no apparent reason for a delay, we must treat the delay as caused by the negligence of the State in bringing the case to trial.” (Citation and punctuation omitted.) Goddard v. State, 315 Ga. App. 868, 872 (2) (b) (729 SE2d 397) (2012).

Next, although the trial court considered the delay after the case was initially called in March 2012, and concluded that the State and York were both responsible for the delay after this date, it erred because it failed to determine whether this factor was neutral or whether one party was more responsible for the delay, and it failed to assign weights to the different delays. See Culbreath v. State, 328 Ga. App. 153, 161 (4) (b) (ii) (761 SE2d 557) (2014); Teasley v. State, 307 Ga. App. 153, 160 (2) (b) (704 SE2d 248) (2010).

(iii) Assertion of the right to a speedy trial.

“The relevant question for purposes of the third Barker-Doggett factor is whether the accused has asserted the right to a speedy trial in due course.” (Punctuation and footnote omitted.) Ruffin, supra, 284 Ga. at 63 (2) ft) (iii).

Here, York was indicted in September 2011, and he filed his motion to dismiss on constitutional speedy trial grounds in February 2014. The trial court did not err in concluding that York’s failure to assert his speedy trial claim for more than two years weighed heavily against him. See Brown v. State, 287 Ga. 892, 896 (2) (c) (700 SE2d 407) (2010) (defendant’s two-year delay in asserting right to speedy trial weighed heavily against him).

(iv) Prejudice.

As to the prejudice factor, there are three interests which the speedy trial right was designed to protect, the last being the most important: (a) to prevent oppressive pre-trial incarceration; ft) to minimize anxiety and concern of the accused; and (c) to limit the possibility that the defense will be impaired. Impairment of the defense is the most important component of the prejudice factor because the inability of a defendant adequately to prepare his case skews the fairness of the entire system.

(Citations and punctuation omitted.) Brown, supra, 287 Ga. at 895-896 (1) (d).

York did not claim below that he was subjected to oppressive pretrial incarceration. Rather, he asserted that he suffered great anxiety and concern while he was incarcerated, because he was moved to several detention centers, he was separated from his young daughter, he lost income, and he learned that his brother died. The trial court correctly concluded that these anxieties were insufficient to establish a constitutional violation. See Brewington v. State, 288 Ga. 520, 524 (3) (b) (iv) (705 SE2d 660) (2011) (generalized anxieties stemming from incarceration, such as being separated from one’s family, do not rise to the level of a constitutional violation).

Decided November 17, 2015.

Lucas O. Harsh, for appellant.

York also claimed that he was prejudiced because an alibi witness died in December 2011. York proffered that the witness would have testified that York was at a recording studio in Atlanta at the time of the Gwinnett burglary. Without deciding whether this witness’s testimony would have been favorable, the trial court concluded that York suffered no prejudice because the alibi witness’s death occurred before York’s case first appeared on a trial calendar in March 2012. As noted above, however, the trial court failed to consider the pretrial delay between York’s indictment in September 2011 and the first scheduled trial date of March 2012. If witnesses die or disappear during a delay, the prejudice is obvious, and the trial court erred in finding no prejudice. See State v. Redding, 274 Ga. 831, 834 (561 SE2d 79) (2002).

(c) Balancing the four factors.

The Supreme Court of Georgia has made clear that trial courts must “consider and weigh all four factors under the circumstances of each case[.]” (Emphasis supplied.) Porter, supra, 288 Ga. at 533 (2) (d). As set forth above, the trial court’s order failed to make findings of fact regarding whether the delay was uncommonly long; the trial court failed to indicate whether York or the State was more responsible for the delay and what weight it gave to this factor; and the trial court erred in finding that York suffered no prejudice from the death of a potential alibi witness. In light of these circumstances, the trial court did not properly balance the four Barker-Doggett factors. Accordingly, the trial court’s order on York’s motion to dismiss on speedy trial grounds must be vacated and the case remanded for trial court action consistent with this opinion. Porter, supra, 288 Ga. at 533-534 (2) (e).

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

Andrews, P. J., and Branch, J., concur.

Daniel J. Porter, District Attorney, Thomas L. Williams, Richard C. Armond, Assistant District Attorneys, for appellee.

       For purposes of our analysis under OCGA § 24-4-404 (b), we use the term “other acts” to include “other crimes, wrongs, or acts” as set forth in the statute. See State v. Jones, 297 Ga. 156, 158 (1), n. 1 (773 SE2d 170) (2015).

       See Thomas v. State, 296 Ga. App. 231, 232 (674 SE2d 96) (2009).

       Craig pled guilty to two counts of burglary arising out of the April 28 incidents in Forsyth County.

       Since York’s trial was held after January 1, 2013, Georgia’s new Evidence Code governs this contention. See Bradshaw v. State, 296 Ga. 650, 655 (3) (769 SE2d 892) (2015).

       Of the thirty-one months of pretrial delay, the trial court held York responsible for two months of delay due to trial counsel’s absence. Although the trial court also held York responsible for an unspecified amount of time while he attempted to get the trial transcript from his Forsyth County case, the trial court noted, and our review of the record confirms, that the evidence on this matter is unclear. Although this Court cannot make such factual findings or assign blame in the first instance, we note that the majority of the delay appears to be attributable to the State based on overcrowded dockets, changes in prosecuting attorneys, and the trial court’s decision to allow the Forsyth County trial to proceed first. See Ruffin, supra, 284 Ga. at 60 (2) (b) (ii) (delays caused by overcrowded dockets, the government’s failure to provide adequate prosecutors, and mere convenience of the prosecution are attributable to the State).

       To the extent York argues oppressive pretrial incarceration now, for the first time on appeal, he is precluded from doing so. See Alexander v. State, 279 Ga. 683, 685 (2) (b) (620 SE2d 792) (2005).