author: Andrews, Judge.

text:
    A11A1518.
    BUFORD v. THE STATE.
    (718 SE2d 605)
   Andrews, Judge.

On appeal from his conviction for DUI and the trial court’s previous denial of his motion to suppress positive blood-alcohol results, Robert Buford argues that the results should have been suppressed because he was neither under arrest nor unconscious when the tests were taken. We find no error and affirm.

On review from the denial of a motion to suppress, we consider all the evidence of record, including evidence introduced at trial. Jackson v. State, 280 Ga. App. 716 (634 SE2d 846) (2006). Where the evidence at a hearing on a motion to suppress is uncontroverted and no question of credibility is presented, we review the trial court’s application of the law to these undisputed facts de novo. Vansant v. State, 264 Ga. 319, 320 (1) (443 SE2d 474) (1994). As to questions of fact and credibility, however, we construe the evidence in favor of the trial court’s findings and judgment, which must be accepted unless clearly erroneous. Tate v. State, 264 Ga. 53, 54 (1) (440 SE2d 646) (1994).

So viewed, the record shows that on the evening of Thursday, June 18, 2009, Buford lost control of the car he was driving in Cherokee County. The car flipped over and hit a tree. Emergency personnel transported Buford by helicopter to Grady Memorial Hospital and advised the trooper at the scene that Buford smelled of alcohol. The trooper, who assumed from the helicopter transport that Buford’s condition was “pretty serious,” drove to Grady, where hospital personnel told him that Buford was conscious.

When the trooper entered the room on the early morning of June 19, Buford was “taped to the spine board,” had “tubes coming from every which direction,” and “had a [stabilizing] collar on.” His eyes were closed, and he was silent. The trooper, who could smell alcohol on Buford’s breath and in the room, told Buford who he was and attempted to get Buford to respond, but concluded from Buford’s silence that he was under the influence of alcohol. The trooper also learned that Buford was taking narcotics for back pain. The trooper then told Buford that he was “going to charge him with DUI” and read him the implied consent notice. Although Buford opened his eyes at one point during these proceedings, he remained silent throughout and appeared to the trooper to be going in and out of consciousness.

After hospital staff drew a blood sample showing a blood alcohol level of 0.157, nearly twice the legal limit, they told the trooper that Buford was going to be admitted and that they did not know how long he would be there. The trooper responded that he would obtain a warrant for Buford’s arrest. The warrant issued the same day. Buford was arrested the following November.

1. Buford first argues that the implied consent notice given pursuant to OCGA § 40-5-67.1 (b) was ineffective because he was not under arrest at the time it was given. We disagree.

“OCGA § 40-5-55 provides that consent is implied only if a person is placed under a third-tier arrest based on probable cause to believe he has violated OCGA § 40-6-391.” (Footnotes omitted.) State v. Norris, 281 Ga. App. 193, 195 (635 SE2d 810) (2006). “A third-tier arrest is thus a full-blown custodial arrest as opposed to a temporary second-tier investigative detention.” Id. It follows that the question whether an implied consent notice was adequate turns on “ ‘whether the individual was formally arrested or restrained to a degree associated with a formal arrest, [and] not whether the police had probable cause to arrest.’ ” Suluki v. State, 302 Ga. App. 735, 738 (1) (691 SE2d 626) (2010), quoting State v. Fisher, 293 Ga. App. 228, 230 (666 SE2d 594) (2008). “ ‘The test is whether a reasonable person in the suspect’s position would have thought the detention would not be temporary.’ ” Id. Finally, the question whether someone is under custodial arrest

is a mixed question of law and fact. Therefore, to the extent that determination of the issue hinges on resolution of factual questions, [an appellate court] construe[s] the evidence most favorably to uphold the trial court’s findings and accept those findings unless they are clearly erroneous; but [the appellate court] independently applfies] the legal principles to those facts.

Norris, 281 Ga. App. at 196; see also State v. Lucas, 265 Ga. App. 242, 243 (2) (593 SE2d 707) (2004).

It is undisputed that at the time of his encounter with the trooper, Buford was secured to a board in a hospital room with tubes attached to his body. Even assuming that Buford was alert rather than coming in and out of consciousness at the time, a reasonable person in his situation could not have thought that he was free to leave when the trooper announced that he was charging him with DUI. “ ‘[A] defendant may voluntarily submit to being considered under arrest without any actual touching or show of force.’ ” Hough v. State, 279 Ga. 711, 716 (620 SE2d 380) (2005), quoting Clements v. State, 226 Ga. 66, 67 (2) (172 SE2d 600) (1970). It follows that this trial court did not clearly err when it found that Buford was under arrest when the trooper announced that he was being charged with DUI. Lucas, 265 Ga. App. at 244 (affirming suppression of defendant’s statement on the basis of trial court’s factual finding that defendant’s “freedom was significantly curtailed” at the time the statement was obtained); compare Hough, 279 Ga. at 717 (reversing trial court’s finding that defendant was under arrest where there was “no indication of an arrest at [the time the implied consent notice was given,] whether by citation or otherwise”).

2. In light of the above, we need not determine whether Buford’s injuries were serious enough to justify the administration of a blood test without the reading of the implied consent notice for the purpose of preserving evidence. See Hough, 279 Ga. at 713 (1); Gilliam v. State, 295 Ga. App. 358 (671 SE2d 859) (2008).

Judgment affirmed.

Phipps, P. J., and McFadden, J., concur.

Decided November 4, 2011.

Banks & Riedel, Jeffrey S. Banks, for appellant.

David L. Cannon, Jr., Solicitor-General, for appellee.


source: Caselaw Access Project

author: Mikell, Judge.

license: Public Domain

text:
    A11A1612.
    PERALTA v. THE STATE.
    (718 SE2d 326)
   Mikell, Judge.

Rodolfo Jimenez Peralta, convicted by a jury of one count of kidnapping, appeals from the denial of his motion for new trial, contending that the evidence was legally insufficient and his trial counsel rendered ineffective assistance of counsel. Finding no error, we affirm.

1. Peralta contends that the trial court erred in denying his motion for directed verdict on the kidnapping count.

That count alleged that Peralta and Nelson Delgiudice “on the 20th day of June, 2006, did then and there unlawfully abduct Alizeth Dorian Cardoza, a human being, without lawful authority and hold said person against her will . . . .”

A review of the proceedings below, however, reveals that Peralta made no motion for directed verdict. Nonetheless, we review the legal sufficiency of the evidence.

On appellate review of a criminal conviction, we view the evidence in the light most favorable to the jury’s verdict, and the defendant no longer enjoys the presumption of innocence. We do not weigh the evidence or judge the credibility of witnesses, but determine only if the evidence was sufficient for a rational trier of fact to find the defendant guilty of the offenses charged beyond a reasonable doubt.

The facts of this incident are fully set out in our recent decision in the appeal of Nelson Delgiudice, Jr., co-defendant of Peralta. They will be supplemented here as necessary. Cardoza had been forcibly pulled into the apartment, thrown onto the living room floor, and tied up by Delgiudice, who had a gun. As set out in Delgiudice, Cardoza had been forced by Delgiudice to go from the living room into a bathroom to see Romero tied up and stabbed and to watch another man place a hot iron on his back. Her boyfriend knocked on the door, looking for her, and Delgiudice then told Peralta to kill her after Delgiudice had made Cardoza look out the living room window at her boyfriend. Instead, Peralta, who also had a gun, took her back down the hallway into a back bedroom. He told her to calm down, he did not murder or rape women or children. Peralta stayed with her in the bedroom and was the last one of the perpetrators to leave the apartment. After Gwinnett County Police Officer John Rowell entered the apartment and the others had jumped off the balcony, he saw a man in a white tee shirt near the bedroom door where Cardoza was later found. Between the officer and this man was a revolver in the hallway. When Rowell ordered the man to come out, he, instead, sprinted past the officer and jumped off the second floor balcony.

Numerous officers responded to hunt for the suspects, and Investigator Michael Forrester was patrolling a business area with a barbed wire fence behind it when he encountered a suspect, Peralta, coming over the barbed wire fence. Forrester held Peralta at gunpoint until Officer Ndegwa Washington arrived, placed handcuffs on Peralta, and sat him in his patrol car. Washington transported Peralta back to the apartment complex where Cardoza identified him as one of the men involved. Peralta’s fingerprints were found on a return air vent cover which had been removed from the ceiling and was on the floor in one of the bedroom closets.

Peralta argues that the evidence does not support his kidnapping conviction under Garza v. State, because the state did not establish the required element of asportation. In Garza, our Supreme Court held that four factors should be assessed to determine whether movement constitutes asportation:

(1) the duration of the movement; (2) whether the movement occurred during the commission of a separate offense; (3) whether such movement was an inherent part of that separate offense; and (4) whether the movement itself presented a significant danger to the victim independent of the danger posed by the separate offense.

Decided November 4, 2011.

Clark & Towne, Jessica R. Towne, for appellant.

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

Peralta argues that the movement of Cardoza to the bedroom here was merely incidental to the aggravated assault alleged against him when he pointed a gun at Cardoza in the hallway. We disagree.

The movement of Cardoza down the hall into the bedroom occurred after Peralta had pointed the gun at her, completing the aggravated assault. Further, this movement created an additional danger to her by moving her further away from the front door and possible rescue, and it enhanced Peralta’s control over her.

Therefore, we find this enumeration without merit.

2. Peralta’s second enumeration is that trial counsel was ineffective for failing to request a jury charge on the lesser included offense of false imprisonment “as the evidence was insufficient to support the verdict in this case.”

As held in Division 1, however, we have found the evidence legally sufficient to support the jury’s verdict of guilty on the kidnapping charge. Therefore, there is nothing further we need review on this issue.

Judgment affirmed.

Smith, E J., and Dillard, J., concur.

       Peralta was acquitted of three counts of aggravated assault against Gamaliel Comancho Romero (one each with a gun, a knife, and a hot iron) and one count of aggravated assault against Alizeth Dorian Cardoza with a gun.

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

        Al-Amin v. State, 278 Ga. 74 (1) (597 SE2d 332) (2004).

       Id., citing Jackson u. Virginia, supra.

        Delgiudice u. State, 308 Ga. App. 397-400 (1) (707 SE2d 603) (2011).

       Id.

       284 Ga. 696 (670 SE2d 73) (2008).

       Although the crime occurred in 2006, Garza is retroactive. Hammond u. State, 289 Ga. 142, 143-144 (1) (710 SE2d 124) (2011). Following Garza, the kidnapping statute was amended, but applies only to crimes committed on or after July 2009. Therefore, we consider this case under Garza.

       (Citation omitted.) Garza, supra at 702 (1).

        Bryant v. State, 304 Ga. App. 755, 757 (1) (697 SE2d 860) (2010) (forcing victim from open backyard by forcing metal object in his back and then taking him into kitchen constituted asportation, following the aggravated assault). Accord Williams v. State, 307 Ga. App. 675, 678 (1) (705 SE2d 906) (2011) (moving victim from hotel room into bathroom created additional danger to her by increasing Williams’ control over her and was not inherent part of aggravated assault); Dixon v. State, 303 Ga. App. 517, 519 (1) (693 SE2d 900) (2010) (pulling victim back into hotel room from hallway sufficient to prove asportation because it occurred before Dixon threatened her with a razor and raped her).

        Williams, supra.

        Hall v. State, 308 Ga. App. 858, 863 (2) (709 SE2d 348) (2011), the only authority cited by Peralta to support his argument, is physical precedent only and not binding. Court of Appeals Rule 33 (a). Also, that case dealt with failure to give a jury charge when the defendant submitted a written request for an instruction on false imprisonment as a lesser included charge of kidnapping. Here, trial counsel, during the charge conference, stated that “I don’t believe that any lesser-includeds are appropriate based on how the evidence has come out.”


text:
    A11A1720.
    PALEVEDA v. THE STATE.
    Decided November 4, 2011.

      Ashleigh B. Merchant, for appellant.

      Donald R. Donovan, District Attorney, Steven J. Messinger, Assistant District Attorney, for appellee.
    (718 SE2d 329)
   Mikell, Judge.

Following a hearing, Anthony Paleveda entered a plea of guilty pursuant to North Carolina v. Alford to enticing a child for indecent purposes (Count 2) and a non-negotiated guilty plea to two counts of child molestation (Counts 3 and 4). Pursuant to OCGA § 17-10-6.2, Paleveda was sentenced to fifteen years, to serve ten in confinement and the balance on probation, on each of Counts 2, 3, and 4, with the sentences to be served concurrently. Paleveda appeals, challenging the constitutionality of OCGA §§ 16-6-5 and 17-10-6.2. Careful review of the record and of the transcript of the guilty plea hearing in this case reveals, however, that constitutional objections to these Code sections were not raised at any time prior to this appeal nor were they ruled upon by the trial court. “It is well settled that such questions must be raised at the first opportunity and cannot be raised for the first time in this [CJourt.” Accordingly, because this claim was not raised and ruled upon in the trial court, it has not been preserved for appellate review.

Judgment affirmed.

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

       400 U. S. 25 (91 SC 160, 27 LE2d 162) (1970).

       OCGA § 16-6-5 (a).

       OCGA § 16-6-4 (a).

       An order of nolle prosequi was entered on Count 1, aggravated child molestation (OCGA § 16-6-4 (cl).

       OCGA § 17-10-6.2 provides for mandatory minimum sentences for sexual offenses except in limited circumstances not applicable here. See OCGA § 17-10-6.2 (a) (5), (6); (b).

       (Citations omitted.) Bowman v. State, 231 Ga. 220, 221 (2) (200 SE2d 880) (1973). Accord Hammontree v. State, 283 Ga. App. 736, 738 (1), n. 2 (642 SE2d 412) (2007); Johnson v. State, 134 Ga. App. 67, 68 (1) (213 SE2d 170) (1975) (“A court of review is to correct errors of the lower court, and the judge in the lower court can not err as to a matter which he is not called upon to adjudicate”) (citations and punctuation omitted).

       See Beaver v. State, 308 Ga. App. 380, 381 (1) (707 SE2d 590) (2011).


author: Phipps, Presiding Judge.

text:
    A11A1272.
    ZACHERY v. THE STATE.
    (718 SE2d 332)
   Phipps, Presiding Judge.

Quinton Zachery and Leroy McMath were jointly indicted for financial identity fraud. Prior to trial, McMath pled guilty. At trial, McMath testified and implicated Zachery in the commission of the crime. A jury found Zachery guilty. On appeal, Zachery argues that the evidence was insufficient to support his conviction. We disagree, and affirm.

1. Zachery contends the evidence was insufficient to support his conviction because the state failed to prove that he was the person who applied for a credit card in the victims’ names; therefore, he argues, the state failed to prove that he used the victims’ identifying information to access their resources.

“When reviewing a challenge to the sufficiency of the evidence used to support a conviction, we view the evidence in the light most favorable to the jury’s verdict, and the defendant no longer enjoys the presumption of innocence.” We do not weigh the evidence or determine witness credibility, but only determine if the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offense beyond a reasonable doubt. “Circumstantial evidence need not exclude every other hypothesis save that of the accused’s guilt but only reasonable inferences and hypotheses, and it was for the jury to determine whether all reasonable hypotheses had been excluded.”

OCGA § 16-9-121 (a) (1) provides: “A person commits the offense of identity fraud when he or she willfully and fraudulently [wjithout authorization or consent, uses or possesses with intent to fraudulently use identifying information concerning a person[.]” As used in the financial identity fraud statutes, the term “identifying information” includes tax identification numbers. The term “resources” includes a person’s or entity’s credit, as well as “[c]redit, charge, and debit accounts.”

Viewed in the proper light, the evidence shows that Mickey Layman was co-owner of a swimming pool company named Atlanta Pools, Inc. On January 29, 2007, Layman found in Atlanta Pools’s mailbox six Home Depot commercial credit cards bearing Atlanta Pools’s name. One of the cards was issued to Layman and another was issued to his brother (Kenneth Layman) who was co-owner of Atlanta Pools; the remaining four were issued to individuals, including Zachery, whom Layman did not know. Layman did not know Zachery or McMath, and he did not give them authority to conduct his business or to access his credit. Layman’s brother testified that he did not open a commercial account at Home Depot, nor did he authorize anybody to open a commercial account in the name of Atlanta Pools or in his name. Layman’s brother also did not know Zachery or McMath.

From January 21, 2007 to January 28, 2007, Zachary charged items to the Home Depot credit card account issued in Atlanta Pools’s name. Zachery’s purchases totaled $11,773.26, and consisted primarily of household items, building materials, and gift cards. The purchases were made with a temporary charge pass, which is what a customer uses until receipt of an actual credit card. There was no evidence that purchases were made on the account after January 28, 2007.

Before a creditor issues a temporary charge pass, either an electronic or a paper credit card application must be submitted; the application requires a federal tax identification number. An operations manager for Home Depot testified that in order to open a commercial credit card account, a person must complete a commercial credit application that requires, among other things, a taxpayer identification number. Atlanta Pools and Layman had been issued federal tax identification numbers.

McMath testified that Zachery told him McMath could purchase merchandise from Home Depot at a discount by buying Home Depot gift cards from Zachery and by using a Home Depot credit card account to which Zachery had added McMath’s name. At Zachery’s direction and using account and other information about Atlanta Pools provided to McMath by Zachery, McMath used the temporary pass to make purchases on accounts bearing Atlanta Pools’s name. McMath made purchases on the account between January 24, 2007 and January 27, 2007. McMath testified that Zachery told him that he had to use the account within seven days.

Zachery, on the other hand, testified that he thought he was working for Atlanta Pools, which he thought was affiliated with McMath, and that he was merely following McMath’s orders to pick up supplies that were already selected and to deliver them to various locations.

The evidence shows that the only persons who made purchases on the credit card account issued in Atlanta Pools’s name were Zachery and McMath. Layman and his brother testified that they did not know Zachery or McMath and did not authorize Zachery or McMath to open a credit card account in the Laymans’ names or Atlanta Pools’s name. Zachery and McMath admittedly made purchases on the account. Even most of the gift cards purchased by Zachery and McMath were redeemed within the same week they were purchased.

Although Zachery testified that he believed he was working for Atlanta Pools (which he thought was affiliated with McMath) and that he was merely following McMath’s orders to pick up supplies that were already selected, the jury could have reasonably found that the evidence belied Zachery’s claim; for instance, there was evidence that Zachery never scanned an order form at the check out counter; rather, all of the merchandise was individually scanned, an indication that he selected the merchandise for purchase. And one credit card was issued in Zachery’s name, whereas McMath’s name was added to the account only later.

Because the federal tax identification number of either Atlanta Pools or Layman was required as part of the credit card application to obtain temporary charge pass(es) which, according to the evidence, Zachery and McMath used to purchase thousands of dollars worth of merchandise in a short period of time, the circumstantial evidence was sufficient to authorize a jury to find that Zachery either directly or as a party to a crime committed financial identity fraud by accessing the resources of Atlanta Pools and Layman through the use of identifying information without the authorization or permission of Atlanta Pools or Layman, with the intent to unlawfully appropriate the resources of Atlanta Pools and Layman to his own use. Accordingly, Zachery’s challenge to the sufficiency of the evidence on the basis that the state failed to prove that he applied for credit using Atlanta Pools’s or Layman’s identifying information is without merit.

2. Zachery argues that his conviction should be reversed because the state did not establish venue.

In considering whether venue was properly proved, “[t]he standard of review is whether, considered in the light most favorable to the prosecution, the State proved the essential element of venue beyond a reasonable doubt.”

Decided November 7, 2011.

Mary Erickson, for appellant.

Penny A. Penn, District Attorney, Sandra A. Partridge, Assistant District Attorney, for appellee.

Generally, venue in a criminal case is in the county where the crime was committed. Under the financial identity fraud statutes, however, a crime will be considered to have been committed in any county where the consumer or business victim, i.e., the entity whose means of identification or financial information was appropriated, resides or is found, or in any county in which any other part of the offense took place, regardless of whether the defendant was ever actually in such county. Venue is a jurisdictional fact and must be proved beyond a reasonable doubt.

The indictment named the victims as Atlanta Pools and Layman and alleged that the crimes occurred in Forsyth County. Layman testified that he partly owned Atlanta Pools. Layman further testified that he had been a resident of Forsyth County for 12 years and that Atlanta Pools had been located in Forsyth County for 17 years. A rational trier of fact was authorized to find beyond a reasonable doubt that the victims resided or were found in Forsyth County at the time the offense was committed, as alleged in the indictment. Zachery’s argument that the state failed to prove venue is without merit.

Judgment affirmed.

Andrews and McFadden, JJ., concur.

        Arroyo v. State, 309 Ga. App. 494 (711 SE2d 60) (2011) (citation omitted).

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

        Hewitt v. State, 277 Ga. 327, 330 (1) (b) (588 SE2d 722) (2003) (citation omitted).

       OCGA § 16-9-120 (4) (O), (Q).

       OCGA § 16-9-120 (5) (A), (C).

        Johnson v. State, 299 Ga. App. 706, 708 (1) (a) (683 SE2d 659) (2009); see OCGA § 16-2-20 (b) (3), (4) (A defendant is a party to a crime if he “[¿Intentionally aids or abets the commission of the crime),] or [¿Intentionally advises, encourages, hires, counsels, or procures another to commit [it].”).

       See Powell v. State, 293 Ga. App. 442, 444 (667 SE2d 213) (2008); see OCGA §§ 16-2-20 (a) (“Every person concerned in the commission of a crime is a party thereto and may be charged with and convicted of commission of the crime.”); 16-9-121 (a) (1); Reese v. State, 308 Ga. App. 125, 126 (706 SE2d 623) (2011) (in affirming burglary and theft convictions, court held although there was no direct evidence that the defendant entered the storage garage or acted with intent to commit a theft, “combined circumstantial evidence was sufficient to entitle a jury to infer that [defendant] either directly committed burglary by entering the storage garage without authority and with the intent to commit a theft, or was a party to that crime.”).

        Powell, supra, 293 Ga. App. at 444.

        Brewster v. State, 300 Ga. App. 143, 144 (684 SE2d 309) (2009) (citation omitted).

        Green v. State, 259 Ga. App. 195 (1) (576 SE2d 554) (2002); Ga. Const. 1983, Art. VI, Sec. II, Par. VI; OCGA § 17-2-2 (a).

       OCGA § 16-9-125.

        Green, supra.

       See id.; see generally Arroyo, supra.

       See Green, supra.


author: Miller, Presiding Judge.

text:
    A11A1300.
    WHITE v. THE STATE.
    (718 SE2d 335)
   Miller, Presiding Judge.

Following a jury trial, Kelvin White, Jr., was convicted of voluntary manslaughter (OCGA § 16-5-2 (a)), two counts of aggravated assault (OCGA § 16-5-21 (a) (2)), two counts of possession of a firearm during the commission of a crime (OCGA § 16-11-106 (b) (1)), one count of carrying a concealed weapon (OCGA § 16-11-126 (b)), and one count of possession of a firearm by a convicted felon (OCGA § 16-11-131 (b)). White moved for a new trial, but the trial court denied his motion. On appeal, White contends that (1) the evidence was insufficient to sustain his conviction; (2) the trial court gave an improper charge on the issue of knowledge; and (3) his trial counsel was ineffective in several respects. We discern no error and affirm.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, and the defendant no longer enjoys a presumption of innocence. We do not weigh the evidence or resolve issues of witness credibility, but merely determine whether the evidence was sufficient to find the defendant guilty beyond a reasonable doubt.

(Citations and punctuation omitted.) Fogerty v. State, 304 Ga. App. 546 (1) (696 SE2d 496) (2010).

So viewed, the trial evidence shows that, on April 30, 2008, White and his girlfriend visited the Clayton County residence belonging to the girlfriend’s mother. When White and his girlfriend arrived at the residence, they were greeted by one of the victims, Terrell Favors.

While White’s girlfriend went to a different part of the house to talk to her mother, White asked Terrell to talk with him outside. Upon going outside, White and Terrell engaged in a heated argument concerning the relationship between White and his girlfriend.

During the argument, Terrell’s brother, Tybias Favors, arrived at the house with his girlfriend. According to Terrell, Tybias observed the argument, but did not get involved. Terrell’s argument with White became more “heated” with the two men standing “face-to-face.” Terrell went inside the house to tell White’s girlfriend about the argument and to get her to intervene and “straighten [it] out.”

When Terrell returned outside, he and White continued the argument and were preparing for a physical altercation. White then pulled out a gun and shot Terrell and Tybias. When Tybias dropped to the ground, White put a gun to his head and threatened to kill him. White subsequently fled, and Tybias ultimately died from the gunshot wound.

In his defense, White claimed that Terrell instigated the argument and threatened to kill him. During the argument, Terrell allegedly said that he had “something for [White]” and ran inside the residence. According to White, when he and Terrell were arguing, Tybias was “creeping behind him” and yelling at him. White testified that when Terrell went inside the residence, he asked Tybias to move his car so that White could leave, but Tybias refused.

White also testified that he tried to convince Terrell not to fight, but that Terrell and Tybias “rushed” him. White stated that Terrell appeared to reach under his shirt to grab a pistol. White testified that he feared for his life because he believed that Terrell had a weapon based upon seeing a “print” or bulge under Terrell’s shirt and Terrell’s statement that he “had something for him.” White conceded that he did not actually see Terrell or Tybias with a firearm, but claimed that, as he was leaving, he saw Terrell give Tybias’s girlfriend a black object that she placed into a car. Law enforcement officers conducted a search of the residence, but no firearms were found at the scene.

White was subsequently arrested, charged, and convicted of the criminal offenses related to the incident.

1. White contends that the evidence was insufficient to sustain his conviction. We disagree. Based on the evidence set forth above, the jury was authorized to find White guilty of each of the offenses. See OCGA §§ 16-5-2 (a); 16-5-21 (a) (2); 16-11-106 (b) (1); 16-11-126 (b); 16-11-131 (b).

(a) White nevertheless argues that the State’s evidence failed to prove venue. His argument is without merit.

“Generally, a criminal action must be tried in the county in which the crime was committed, and the State may establish venue by whatever means of proof are available to it, including direct and circumstantial evidence.” (Citations and footnote omitted.) Scott v. State, 302 Ga. App. 111, 112 (1) (a) (690 SE2d 242) (2010). Here, the witness testimony showed that Tybias was shot at a residence located in Clayton County. White’s claim that the State failed to show that certain cities were included in Clayton County is inapposite. To establish venue, the State needed only to show that the events occurred within the county, which it did.

(b) White also contends that his voluntary manslaughter conviction was against the weight and sufficiency of the evidence. In particular, he contends that his conviction was precluded since the evidence showed that he acted in self-defense. We disagree.

OCGA § 5-5-21 specifically empowers trial courts with the authority to weigh the evidence. It provides that a trial judge, in the exercise of a sound discretion, may grant a new trial in cases where the verdict may be decidedly and strongly against the weight of the evidence even though there may appear to be some slight evidence in favor of the finding. On a motion for new trial alleging this ground, the court sits as a “thirteenth juror.” The motion is addressed to the discretion of the court, which should be exercised with caution, and the power to grant a new trial on this ground should be invoked only in exceptional cases in which the evidence preponderates heavily against the verdict.

(Citations and punctuation omitted.) Rutland v. State, 296 Ga. App. 471, 476 (3) (675 SE2d 506) (2009).

The trial court considered White’s arguments in the context of OCGA § 5-5-21, but ultimately decided this claim against him. We discern no error.

“When a defendant presents sufficient evidence raising a claim of self-defense, the State must disprove that defense beyond a reasonable doubt.” (Citations omitted.) Richards v. State, 288 Ga. App. 814 (655 SE2d 690) (2007).

Under OCGA § 16-5-2 (a),

[a] person commits the offense of voluntary manslaughter when he causes the death of another human being under circumstances which would otherwise be murder and if he acts solely as the result of a sudden, violent, and irresistible passion resulting from serious provocation sufficient to excite such passion in a reasonable person[.]
Evidence of voluntary manslaughter may be found in a situation which arouses the sudden passion in the person killing so that, rather than defending himself, he wilfully kills the attacker, albeit without malice aforethought, when it was not necessary for him to do so in order to protect himself.

(Citations and punctuation omitted.) Crane v. State, 300 Ga. App. 450, 452 (1) (685 SE2d 314) (2009). Furthermore, “heated arguments, physical beatings and fear of some danger present sufficient provocation for a voluntary manslaughter conviction.” (Citations and punctuation omitted.) Id.

Here, the evidence establishing that White, Terrell, and Tybias had engaged in a heated argument, which escalated to preparations for a mutual, physical altercation, was sufficient to sustain the voluntary manslaughter conviction. In particular, the evidence shows that White and Terrell were “face-to-face” and ready to fight. Given this heated exchange and White’s belief that he was in serious danger based on Terrell’s statement that he “had something for [White]” and Tybias’s lurking presence, there was sufficient provocation to excite the passion necessary for voluntary manslaughter. Crane, supra, 300 Ga. App. at 452.

Notwithstanding White’s argument to the contrary, his self-defense claim did not preclude his conviction. Even if White was authorized to use some force to defend himself, he could not use excessive force. OCGA § 16-3-21 (a) provides:

A person is justified in threatening or using force against another when and to the extent that he or she reasonably believes that such threat or force is necessary to defend himself or herself or a third person against such other’s imminent use of unlawful force; however, except as provided in Code Section 16-3-23, a person is justified in using force which is intended or likely to cause death or great bodily harm only if he or she reasonably believes that such force is necessary to prevent death or great bodily injury to himself or herself or a third person or to prevent the commission of a forcible felony.

The jury was authorized to reject White’s claim of self-defense and conclude that he “was so influenced and excited that he reacted passionately rather than simply to defend himself” when he shot an unarmed Tybias. (Punctuation and footnote omitted.) Williams v. State, 245 Ga. App. 670, 671 (1) (538 SE2d 544) (2000); see also Roper v. State, 281 Ga. 878, 880 (1) (644 SE2d 120) (2007) (witness credibility is for the jury to decide, as is the question of justification; therefore the jury is free to reject a claim that defendant acted in self-defense); Thomas v. State, 296 Ga. App. 231, 233 (1) (674 SE2d 96) (2009) (evidence showing that the victim was unarmed at the time of the incident authorized the jury to conclude beyond a reasonable doubt that defendant was not justified in using deadly force).

Since there was sufficient evidence of provocation at the time of White’s shooting of an unarmed individual, the court did not err in refusing to grant White’s motion for a new trial on this basis. Rutland, supra, 296 Ga. App. at 476 (3).

2. White further argues that the trial court gave an improper jury charge on the issue of knowledge. Again, we discern no error.

Here, although White contends that the trial court should have given his requested pattern charge on the issue of knowledge, the record fails to show that he requested any charge on this issue. Specifically, White did not request a jury charge on the issue of knowledge either in writing or orally, and there was no discussion of a charge on knowledge at the charge conference. Additionally, after the trial court charged the jury, White did not object to the court’s omission of the charge on the issue of knowledge.

A defendant, who was tried after the effective date of the 2007 amendment to OCGA § 17-8-58, waives any challenge to a jury charge when he fails to specifically object at the conclusion of the jury charge. See OCGA § 17-8-58 (b) (providing that a defendant’s failure to object precludes appellate review unless the challenged jury charge constitutes plain error which affects his substantial rights); Collier v. State, 288 Ga. 756, 758-759 (4) (707 SE2d 102) (2011) (holding first that the failure to object results in a waiver, and alternatively reasoning that there was no plain error). When plain error review is appropriate, such error “is that which is so clearly erroneous as to result in a likelihood of a grave miscarriage of justice or which seriously affects the fairness, integrity or public reputation of a judicial proceeding.” (Citations and punctuation omitted.) Rogers v. State, 247 Ga. App. 219, 226 (9) (543 SE2d 81) (2000). Plain error is that “which is obvious and affects the appellant’s substantial rights and where exceptional circumstances make it necessary to avoid a clear miscarriage of justice.” (Citations and punctuation omitted.) Id. at 227 (9).

Here, White’s failure to object to the lack of a jury instruction on knowledge results in a waiver of that claim. See Collier, supra, 288 Ga. at 758-759 (4). Notwithstanding White’s waiver of this asserted error, we find that the trial court’s charge, when read and considered as a whole, did not mislead the jury. See Gathuru v. State, 291 Ga. App. 178, 179 (1) (661 SE2d 233) (2008). “[W]here a [jury] charge as a whole substantially presents issues in such a way as is not likely to confuse the jury even though a portion of the charge may not be as clear and precise as could be desired, a reviewing court will not disturb a verdict [which is] amply authorized by the evidence.” (Citation, punctuation and footnote omitted.) McWilliams v. State, 287 Ga. App. 585, 588 (651 SE2d 849) (2007).

The charge on knowledge that White now asserts should have been given reads as follows:

Knowledge on the part of the defendant that the crime of_was being committed and that the defendant knowingly and intentionally participated in or helped in the commission of such crime, must be proved by the State beyond a reasonable doubt.
If you find from the evidence in this case that the defendant had no knowledge that a crime was being committed or that the defendant did not knowingly and intentionally commit, participate, or help in the commission of (and was not a conspirator in) the alleged offense, then it would be your duty to acquit the defendant.
On the other hand, should you find, beyond a reasonable doubt, that the defendant had knowledge that the crime of_was being committed and that the defendant knowingly and intentionally participated or helped in the commission of it, then you would be authorized to convict the defendant.

Suggested Pattern Jury Instructions, Vol. II: Criminal Cases, § 1.43.10 (2007).

White has not, however, established that the requested charge was an applicable instruction. The above instruction is typically given when there are multiple individuals charged with committing, or aiding in the commission of, a crime, such that an accused’s knowledge of a co-defendant’s action is relevant, not where, as here, there is only one perpetrator. See, e.g., Garland v. State, 311 Ga. App. 7, 8 (1) (714 SE2d 707) (2011) (knowledge charge given when two offenders went to trial and one pled guilty); Eckman v. State, 274 Ga. 63, 66-68 (3) (a) (548 SE2d 310) (2001) (involving two collaborators who proceeded to trial separately); Leigh v. State, 223 Ga. App. 726, 727, 731 (3) (478 SE2d 905) (1996) (knowledge charge given when one individual proceeded to trial after two co-defendants pled guilty). Because the charge on knowledge was not applicable to the case, the trial court did not err in failing to provide it. See generally Leonard v. Miller, 207 Ga. App. 602, 604 (3) (428 SE2d 646) (1993) (holding that a court does not err by refusing to give an inapplicable charge).

Even if the charge on knowledge were applicable to this case, White’s claim still fails. In its charge to the jury, the trial court read the counts against White, explained that the State was required to prove every element of the offense, including intent, beyond a reasonable doubt, and read the elements for each offense against White. Additionally, the court charged on intent in general, and charged that there is no presumption of criminal intent. The court also charged on affirmative defenses, and instructed the jury that it was the State’s burden to disprove beyond a reasonable doubt that a defendant’s actions were not justified. As a whole, the charge given in this case covered substantially the same principles as the charge requested by White, and therefore the charge on knowledge was unnecessary. Copeland v. State, 263 Ga. App. 776, 780 (2) (589 SE2d 319) (2003) (holding that the trial court did not err in failing to give a jury charge on knowledge when the charge given to the jury, in their totality, substantially covered the principles in the requested charge). Consequently, White has not established that his substantial rights were affected because he has not demonstrated that the omission of the pattern jury charge resulted in a miscarriage of justice. See Rogers, supra, 247 Ga. App. at 226 (9).

3. In his last enumeration of error, White contends that his trial counsel was ineffective in several respects. To prevail on a claim of ineffective assistance of counsel, White must show both that trial counsel’s performance was deficient and that the deficient performance was prejudicial to his defense. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984); Smith v. Francis, 253 Ga. 782, 783 (1) (325 SE2d 362) (1985).

To meet the first prong of this test, he must overcome the strong presumption that counsel’s performance fell within a “wide range of reasonable professional conduct,” and that counsel’s decisions were “made in the exercise of reasonable professional judgment.” (Citation omitted.) Smith, supra, 253 Ga. at 783 (1). The reasonableness of counsel’s conduct is examined from counsel’s perspective at the time of trial and under the particular circumstances of the case. Id. To meet the second prong, White must demonstrate there is a reasonable probability that, absent any unprofessional errors on counsel’s part, the result of his trial would have been different. Id. at 784 (1). “In reviewing a lower court’s determination of a claim of ineffective assistance of counsel, an appellate court gives deference to the lower court’s factual findings, which are upheld unless clearly erroneous; the lower court’s legal conclusions are reviewed de novo.” (Citations omitted.) Boatright v. State, 308 Ga. App. 266, 267 (1) (707 SE2d 158) (2011). Applying these standards, we turn to address White’s claims.

(a) White first argues that his counsel was ineffective for failing to challenge the validity of the indictment because it did not have a “True Bill” on it, the grand jury foreman did not sign the indictment, it was not received in “open court” from a sworn grand jury bailiff and then filed in the clerk’s office, and the clerk of the court also did not sign the indictment.

OCGA § 17-7-54 governs the form of an indictment, and any indictment that “states the offense in the terms and language of this Code or so plainly that the nature of the offense charged may easily be understood by the jury shall be deemed sufficiently technical and correct.” There is no express requirement that the indictment contain a written statement that it was received in “open court,” or that it be signed. OCGA § 17-7-54.

Here, the indictment as filed in the record shows that it is a “True Bill,” and was signed by the grand jury foreperson. Additionally, it was filed with the clerk’s office with the clerk of the court’s name prior to White’s arraignment, where he and his attorney signed the indictment.

In any event, even if White was able to show that his counsel was deficient for failing to challenge an imperfect indictment, he is unable to establish prejudice.

A defendant is entitled to be tried on an indictment that is perfect in form. And, if an indictment is imperfect, a defendant may file a special demurrer challenging the form of the indictment. If no special demurrer is filed, any error in the indictment’s form is waived. If the demurrer is granted, the trial court quashes the indictment. However, the quashing of an indictment merely bars trial on the flawed indictment; it does not bar the State from reindicting the defendant. Thus, even if [White’s] attorney had filed a demurrer, it would not have prevented the State from reindicting and trying [White]. And [White] does not argue that the imperfect indictment prejudiced his defense in any way. Under these circumstances, [White] has failed to show that he was prejudiced by his attorney’s failure to file such demurrer.

(Citation and punctuation omitted.) Cuzzort v. State, 307 Ga. App. 52, 56-57 (2) (b) (703 SE2d 713) (2010); see also Williams v. State, 257 Ga. App. 206 (570 SE2d 645) (2002) (holding that a defendant’s failure to show that he was prejudiced by an alleged defect in the indictment does not require reversal, because it would be a mere windfall that contributed nothing to the administration of justice).

(b) White also argues that his trial counsel was ineffective for failing to address the State’s requirement to establish venue. Based on our discussion in Division 1 (a) above, counsel did not perform deficiently because the State clearly established venue. Therefore, counsel’s failure to object cannot constitute grounds for ineffective assistance. See Mitchell v. State, 287 Ga. App. 517, 519 (1) (a) (651 SE2d 821) (2007) (“trial counsel’s failure to pursue a futile objection does not constitute ineffective assistance”) (citation and punctuation omitted).

(c) White contends that his trial counsel erred by failing to follow proper procedures to introduce evidence, in the form of an examining psychologist’s notes, that he suffered from post-traumatic stress disorder (“PTSD”). He asserts, without explanation, that the PTSD evidence was important to the guilt/innocence determination.

In his motion for new trial, White suggested that a psychologist evaluated him and opined that he suffered from a mental disease, namely PTSD. He did not, however, attach a copy of the psychologist’s notes, proffer any testimony, or otherwise provide any information to support his claim. As a result, we cannot review this claim. Sutton v. State, 261 Ga. App. 860, 864 (2) (b) (583 SE2d 897) (2003) (unable to review a claim that trial counsel was ineffective for failing to request a continuance to secure certain medical records when the subject records were not included in the record).

Decided November 7, 2011.

Thomas S. Sunderland, for appellant.

Tracy Graham-Lawson, District Attorney, Travis J. Meyer, Assistant District Attorney, for appellee.

(d) Finally, White contends that his trial counsel was ineffective for failing to request the jury charge regarding knowledge.

White’s ineffective assistance claim fails because he has not shown prejudice from the alleged error. As we held in Division 2 above, the charge on knowledge was unnecessary because it was not applicable to the case and, even if it was pertinent, the trial court’s charge covered substantially the same principles as the charge requested by White. Copeland, supra, 263 Ga. App. at 780 (2) (holding that it was not necessary for the trial court to give a jury charge on knowledge when the charge given, in its totality, substantially covered the principles in the requested charge). As such, no basis for reversal has been shown. See Laing v. State, 304 Ga. App. 15, 20 (3) (b) (695 SE2d 363) (2010) (holding that a defendant did not establish prejudice because the charge given substantially covered the principle of the suggested charge, and therefore, there was no reversible error from counsel’s failure to request the suggested charge).

Judgment affirmed.

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


author: Barnes, Presiding Judge.

text:
    A11A1379.
    FLYNT v. LIFE OF THE SOUTH INSURANCE COMPANY.
    (718 SE2d 343)
   Barnes, Presiding Judge.

In this dispute over credit life insurance, the widow of the insured, individually and as executrix of his estate, appeals the denial of her motion for partial summary judgment against the insurer and the grant of the insurer’s motion for summary judgment on all of her claims. In its summary judgment order, the trial court concluded that the uncontroverted evidence showed that the insured decedent had made material misrepresentations regarding his health in his applications for credit life insurance coverage, thereby entitling the insurer to rescind coverage and deny the widow’s claims to the insurance proceeds. The trial court further concluded that an incontestability clause contained in the certificates of insurance, which limited the time period within which the insurer could rescind coverage based upon misrepresentations made by an insured, did not apply under the circumstances of this case. Accordingly, the trial court ruled that the widow was not entitled to recover the insurance proceeds, prejudgment interest, or bad faith penalties and attorney fees under OCGA § 33-4-6.

Based upon the intent of the parties reflected in the language of the applicable certificates of insurance and group life insurance policy, we conclude that the incontestability clause applied such that the insurer could not deny or rescind coverage. Consequently, the trial court should have granted summary judgment in favor of the widow on her claims to the insurance proceeds and prejudgment interest. However, because the insurer’s reasons for refusing to pay the insurance proceeds to the widow were erroneous, but not frivolous or unreasonable, the trial court did not err in granting summary judgment in favor of the insurer on the widow’s claim for bad faith penalties and attorney fees.

Summary judgment is appropriate if the pleadings and evidence show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. On appeal from the grant or denial of summary judgment, we conduct a de novo review, with all reasonable inferences construed in the light most favorable to the nonmoving party.

(Citation omitted.) Richardson v. Phillips, 302 Ga. App. 305 (690 SE2d 918) (2010). See OCGA § 9-11-56 (c). With these principles in mind, we turn to the record in the instant case.

The Three Loans to the Decedent. The relevant facts are undisputed. Linda Smith Flynt is the widow of Gifford H. Flynt, Jr., and the executrix of his estate. The decedent was a crop duster who died in the course of that work when his plane crashed on July 12, 2008. At the time of his death, the decedent had three outstanding loans with Pelham Banking Company (the “Bank”), each of which was evidenced by a promissory note. Each of the three loans had been in effect for a number of years and each had been renewed periodically by the decedent. The three loans are discussed in detail below.

First, in August 2003, the decedent borrowed approximately $23,000 from the Bank under a promissory note which matured in August 2004. The promissory note subsequently was renewed in August 2004, August 2005, August 2006, November 2006, and November 2007.

Second, in December 2003, the decedent borrowed approximately $20,000 from the Bank under a promissory note which matured in December 2004. The promissory note thereafter was renewed in December 2004, November 2005, November 2006, and November 2007.

Third, in December 2004, the decedent borrowed approximately $109,000 from the Bank under a promissory note which matured in December 2005. The promissory note was renewed in December 2005, December 2006, and December 2007.

The Group Life Insurance Policies. The Bank has made credit life insurance available to its borrowers through a group policy issued by Life of the South Insurance Company for many years. In May 1998, Life of the South issued a group policy to the Bank that remained in effect until 2006. Under the policy, the Bank would make credit life insurance available to its borrowers who wished to purchase coverage. The Bank would collect premiums at the rates specified by Life of the South and would provide the borrower purchasing insurance with a certificate of coverage under the group policy, using a certificate form provided by Life of the South. The Bank remitted the premiums to Life of the South and earned a commission on each transaction.

In 2006, Life of the South revised its group policy and its certificate forms, and a revised group policy was issued to the Bank effective May 2006. As part of the revisions, the application for the certificate of insurance, which had to be completed by a borrower when applying for coverage, included a “Statement of Debtor’s Physical Condition” that read as follows:

In applying for life coverage, I (we) hereby represent that I (we) have not been diagnosed, treated (including medication), consulted or received advice from a physician within the past twenty-four (24) months for any of the following: a heart disease, condition or disorder; cancer (excluding basal cell carcinoma); diabetes-, drug or alcohol abuse; Acquired Immune Deficiency Syndrome (AIDS) or Aids Related Complex (ARC); or tested positive for HIV virus.

(Emphasis supplied.) The version of the application in effect prior to May 2006 did not include diabetes as one of the diseases that had to be disclosed by the applicant. Other than the revisions to the group policy and the certificate forms, the Bank’s relationship with Life of the South and the manner in which it provided insurance coverage to its borrowers did not change.

The Decedent’s Credit Insurance Coverage. The decedent applied for and obtained credit life insurance from Life of the South when he acquired each of the three loans in 2003 and 2004, respectively. He also applied for and obtained credit life insurance from Life of the South each time he renewed the promissory note on each of the loans. At the time of each renewal, the Bank would issue the decedent a certificate reflecting coverage under the Life of the South group policy then in effect. In applying for coverage in 2006 and 2007, the decedent signed an application for each certificate of insurance that for the first time included diabetes as one of the diseases listed in the Statement of Debtor’s Physical Condition. Although the decedent signed the statement representing that he had not been diagnosed with that disease, a physician had diagnosed him with Type II diabetes in the late 1990s.

The Dispute over Payment of Insurance Proceeds. The decedent died on July 12, 2008. Outstanding balances remained on his three loans from the Bank. The three certificates of credit life insurance issued to the decedent in 2007, evidencing coverage under the Bank’s 2006 group policy, were in effect at the time of his death.

Following the death of the decedent, his widow submitted claims under the three insurance certificates that were in effect at the time. In response, Life of the South conducted an investigation and decided to rescind coverage, asserting that the decedent misrepresented the state of his health in his applications for insurance beginning in 2006, and that, if the applications had been accurate, the certificates of insurance would not have been issued.

The widow responded through counsel that Life of the South was precluded from denying or rescinding coverage in light of an incontestability clause contained in the certificates of insurance that provided: “We cannot contest the insurance evidenced by the Certificate after it has been in force two (2) years during your . . . lifetime.” The 2006 group policy likewise contained an incontestability clause that provided: “We cannot contest the insurance evidenced by the Certificate after it has been in force two (2) years during the lifetime of the Insured Debtor[.]” Life of the South disputed whether the incontestability clause had taken effect and refused to pay out the insurance proceeds.

The Litigation. The widow, individually and as executrix of the decedent’s estate, then commenced this action against Life of the South to recover the proceeds of the three insurance certificates. She sought the face amount of each certificate, prejudgment interest, and bad faith penalties and attorney fees under OCGA § 33-4-6. Life of the South answered, admitting that it had issued the insurance coverage to the decedent but denying liability on the ground that the application for each certificate of insurance contained materially false representations entitling it to rescind coverage. The parties cross-moved for summary judgment, with the widow seeking partial summary judgment on the issue of her entitlement to the insurance proceeds and prejudgment interest, and Life of the South seeking summary judgment on all of the widow’s claims.

The trial court denied summary judgment to the widow but granted it to Life of the South on all of her claims. The trial court concluded that each certificate of credit life insurance was a separate and distinct insurance policy such that the two-year incontestability clause began to run anew upon the issuance of each new certificate. Because two years had not passed from the time that the decedent was issued his last certificates in 2007 to the time of his death, the trial court ruled that the incontestability clause had not become operative and could not be invoked by his widow. The trial court further concluded that there was no continuation of insurance coverage because the 1998 group policy and the 2006 group policy were not substantially similar. Additionally, the trial court found that the terms of the applications for insurance were unambiguous; that by signing the applications in 2006 and 2007 the decedent misrepresented the status of his health with respect to Type II diabetes; and that these misrepresentations were material. Lastly, the trial court concluded that Life of the South did not act in bad faith in denying the widow’s claims, precluding an award of bad faith penalties and attorney fees, and that the widow could not introduce evidence of Life of the South’s conduct in two prior insurance cases to demonstrate bad faith.

1. The widow argues that the trial court erred in concluding that she was not entitled to recover the proceeds of the three insurance certificates issued to the decedent. According to the widow, the trial court should have enforced the two-year incontestability clause contained in the certificates of insurance and the 2006 group policy based upon well-recognized principles of insurance contract construction. We agree.

Under Georgia law, insurance is a matter of contract, see Richards v. Hanover Ins. Co., 250 Ga. 613, 614 (1) (299 SE2d 561) (1983), and the cardinal rule of contract construction is to determine the intent of the parties. See Municipal Elec. Auth. of Ga. v. Gold-Arrow Farms, 276 Ga. App. 862, 866 (1) (625 SE2d 57) (2005). “To determine the intent of the parties, all the contract terms must be considered together in arriving at the construction of any part, and a construction upholding the contract in whole and every part is preferred.” (Citations omitted.) Id. Thus, an insurance policy, like other contracts, should not be construed in a manner that would render any of its provisions meaningless or mere surplusage. See York Ins. Co. v. Williams Seafood of Albany, 273 Ga. 710, 712 (1) (544 SE2d 156) (2001); VATACS Group v. Homeside Lending, 276 Ga. App. 386, 389-390 (1) (623 SE2d 534) (2005). Moreover, ambiguities in an insurance policy are strictly construed against the insurer as the drafter, see Richards, 250 Ga. at 615 (1), and a policy should be read as a layman would read it rather than as it would be construed by an insurance expert or attorney. See Williams Seafood of Albany, 273 Ga. at 712 (1); Greer v. IDS Life Ins. Co., 149 Ga. App. 61, 63 (1) (b) (253 SE2d 408) (1979). Applying these interpretive rules and construing a written insurance policy are matters of law for resolution by the trial court which are subject to de novo review on appeal. See Resource Life Ins. Co. v. Buckner, 304 Ga. App. 719, 726 (1) (698 SE2d 19) (2010).

We now turn to the relevant provisions of the insurance policy in this case that were effective at the time of the decedent’s death. A contract of group insurance is composed of the master group policy and the certificate of insurance, the terms of which must be construed together. See Adana Mtg. Bankers v. Bankers Ins. Svc. Corp., 186 Ga. App. 76 (366 SE2d 408) (1988). As previously noted, the three certificates of insurance in effect at the time of the decedent’s death provided: “We cannot contest the insurance evidenced by the Certificate after it has been in force two (2) years during your . . . lifetime.” (Emphasis supplied.) The 2006 group policy contained an incontestability clause that similarly provided: “We cannot contest the insurance evidenced by the Certificate after it has been in force two (2) years during the lifetime of the Insured Debtor[.]” (Emphasis supplied.) The widow argues that this language shows that the parties intended for the incontestability clause to become operative two years after insurance was first obtained on a loan. In other words, the two-year incontestability period began to run when coverage was originally issued to the decedent for his three loans (i.e., in 2003 and 2004), not each time the master group policy was revised or a new insurance certificate was issued.

The widow’s interpretation of the incontestability clause makes interpretive sense for several reasons. First, the incontestability clause, when construed together with another provision of the 2006 group policy, was not intended by the parties to begin running anew when the group policy was revised in 2006. Specifically, the 2006 group policy contains a provision separate from the incontestability clause, entitled “Renewal or Refinanced Indebtedness,” which states in relevant part:

If the indebtedness insured under this Group Policy [i.e., the 2006 group policy] is discharged prior to the scheduled maturity date due to renewal or refinancing, the effective date for the renewed or refinanced indebtedness will be the first date on which the Insured Debtor became insured under this Group Policy. . . . Nothing in this provision shall preclude the Incontestability Clause.

(Emphasis supplied.) In essence, this provision states that if a borrower’s loan is renewed or refinanced, the effective date for insurance purposes is the first date upon which the borrower became insured under the 2006 group policy. But the provision contains a carve-out for the incontestability clause, indicating that when a loan is renewed or refinanced, the effective date for the running of the incontestability clause is not limited to when the borrower first became insured under the 2006 group policy. Moreover, by referring to “this Group Policy” in the “Renewal or Refinanced Indebtedness” provision, Life of the South demonstrated that if it wanted to restrict the effective date of a policy provision to the date that the 2006 group policy was issued, it knew how to do so; its failure to do so with regard to the incontestability clause thus should be treated a matter of considered choice. See Ins. Co. of Pa. v. APAC-Southeast, 297 Ga. App. 553, 558-559 (677 SE2d 734) (2009).

Second, principles of contract construction indicate that the incontestability clause should not be construed as running anew each time a new certificate of insurance was issued upon the renewal or refinancing of a loan. If the incontestability clause were interpreted to mean that the two-year period would begin to run upon the issuance of each new certificate of insurance, it would render the clause ineffectual because each of the certificates issued to the decedent had no more than a one-year term of duration. As such, if the two-year period ran anew upon the issuance of each certificate, the incontestability clause could never become operative. Courts must avoid “giving the contract a construction which entirely neutralizes one provision if it is susceptible of another which gives effect to all of its provisions.” VATACS Group, 276 Ga. App. at 389-390 (1). Thus, to avoid neutralizing the incontestability clause, the two-year incontestability period should be interpreted as beginning to run from when insurance coverage on a loan was first obtained rather than from when a particular certificate was issued.

Third, to the extent that the incontestability clause is ambiguous concerning when the two-year incontestability period should begin to run, “ambiguities in the contract are strictly construed against the insurer as the drafter of the document,” as previously noted. (Citation and punctuation omitted.) Guaranty Nat. Ins. Co. v. Brock, 222 Ga. App. 294, 296 (2) (474 SE2d 46) (1996). Hence, even if ambiguous, the incontestability clause must be strictly construed against Life of the South and in favor of coverage. See id.

For these three primary reasons, we conclude that the interpretation of the incontestability clause put forward by the widow is consistent with the applicable rules of insurance contract construction. Accordingly, the two-year incontestability period began to run from the time that the decedent first obtained credit life insurance from Life of the South on his three loans, which was in 2003 and 2004, respectively. It follows that the incontestability provision had become operative by the time of his death in 2008 and precluded Life of the South from denying or rescinding insurance coverage based upon his representations in 2006 and 2007 concerning his health. The trial court erred in concluding otherwise and should have ruled that the widow was entitled to the insurance proceeds as a matter of law.

2. The widow also argues that the trial court erred in concluding that she was not entitled to recover prejudgment interest. Again, we agree.

OCGA § 7-4-15 provides: “All liquidated demands, where by agreement or otherwise the sum to be paid is fixed or certain, bear interest from the time the party shall become liable and bound to pay them; if payable on demand, they shall bear interest from the time of the demand.” Such prejudgment interest is mandatory rather than discretionary and is awarded by a judge as a matter of law. Liquidated insurance claims are subject to prejudgment interest.

(Punctuation and footnotes omitted.) Florida Intl. Indent. Co. v. Osgood, 233 Ga. App. 111, 116 (4) (503 SE2d 371) (1998).

Here, the only issue contested by Life of the South was the existence of coverage, not the amount of the widow’s claim; thus, the widow’s claim to the insurance proceeds was liquidated. See Enfinger v. Intl. Indem. Co., 257 Ga. 385 (359 SE2d 884) (1987) (per curiam). It follows that because the widow was entitled to collect the insurance proceeds as explained in Division 1, she likewise was entitled to an award of prejudgment interest as a matter of law. See OCGA § 7-4-15; Osgood, 233 Ga. App. at 116 (4).

3. The widow further argues that the trial court erred in concluding that she was not entitled to recover bad faith penalties and attorney fees under OCGA § 33-4-6. We disagree.

Under OCGA § 33-4-6,

additional liability is not automatically imposed on an insurance company every time it refuses to pay the underlying claim prior to trial and the insured successfully litigates the dispute. Instead, the insurer is liable for the penalty and attorney! ] fees only if it acts in “bad faith” in refusing to pay the claim. The burden of proof is on the insured to establish bad faith.

(Citations omitted.) Winningham v. Centennial Ins. Co., 708 F2d 658, 659 (11th Cir. 1983) (per curiam) (applying Georgia law). See Osgood, 233 Ga. App. at 115-116 (3). “ ‘[B]ad faith’ means a frivolous and unfounded refusal to pay the claim.” Businessmen’s Assurance Co. of America v. Tilley, 109 Ga. App. 529, 535 (3) (136 SE2d 514) (1964). An insurer’s refusal to pay is not frivolous or unfounded if is predicated upon “a reasonable question of law or a reasonable issue of fact,” even if the insurer’s position ultimately is rejected by a court or jury. Colonial Life &c. Ins. Co. v. McClain, 243 Ga. 263, 265 (1) (253 SE2d 745) (1979).

While Life of the South’s interpretation of the 2006 group policy and the certificates of insurance was erroneous, we do not believe that the interpretive issues involved in this case were so clear that the insurer’s interpretation should be considered frivolous or unreasonable. The trial court thus did not err in concluding that, as a matter of law, the widow was not entitled to bad faith penalties and attorney fees under OCGA § 33-4-6.

Decided November 7, 2011

Powell & Erwin, William A. Erwin, for appellant.

Heyman & Sizemore, Jacqueline Marcucci, for appellee.

4. Additionally, the widow argues that the trial court erred in concluding that the reference to diabetes in the “Statement of Debtor’s Physical Condition” contained in the 2006 and 2007 insurance applications signed by the decedent was not ambiguous and in ruling as a matter of law that the decedent’s misrepresentations regarding his health were material. We need not address these alleged errors, given our conclusion in Division 1 that the incontestability clause had become operative and precluded Life of the South from denying or rescinding coverage in this case.

In summary, for the reasons discussed above, we reverse the trial court’s denial of the widow’s motion for partial summary judgment; reverse the trial court’s grant of summary judgment in favor of Life of the South on the widow’s claims for the insurance proceeds and prejudgment interest; and affirm the trial court’s grant of summary judgment in favor of Life of the South on the widow’s claim for bad faith penalties and attorney fees under OCGA § 33-4-6. The case is remanded with the instruction that judgment be entered in favor of the widow on her claims for the insurance proceeds and prejudgment interest, and in favor of Life of the South on the widow’s claim for bad faith penalties and attorney fees.

Judgment affirmed in part and reversed in part. Adams, J., concurs.

Blackwell, J., concurs in Divisions 2, 3 and 4 and in the judgment.

       “Credit life insurance’’ refers to “insurance on the life of a debtor pursuant to or in connection with a specific loan or other credit transaction.” OCGA § 33-31-1 (2). In general terms, a credit life insurance policy provides that the insurer will pay off the amount due on the debt if the debtor dies. See Resource Life Ins. Co. v. Buckner, 304 Ga. App. 719, n. 1 (698 SE2d 19) (2010). Credit life insurance policies are governed by Chapter 31 of Title 33 of the Georgia Code.

       An incontestability clause contained in an insurance policy “is an agreement by which the insurance company limits the period of time in which it will interpose objections to the validity of the policy or set up any defense except such as may be reserved to it in the contract.” Judy E. Zelin, 16 Ga. Jurisprudence: Insurance § 11:1 (updated June 2011). See Blue Cross &c. v. Sheehan, 215 Ga. App. 228, 229 (1) (450 SE2d 228) (1994).

       In a separate enumeration of error, the widow argues that the trial court erred in failing to enforce the incontestability clause in light of Founders Life Assurance Co. of Fla. v. Poe, 242 Ga. 748 (251 SE2d 247) (1978). We need not address this argument in light of the decision in Division 1.

       OCGA § 33-25-10 governs the entitlement to prejudgment interest on life insurance proceeds, see Southwestern Life Ins. Co. v. Middle Ga. Neurological Specialists, 262 Ga. 273, 276 (2) (416 SE2d 496) (1992), but the statute expressly states that it does not apply “to policies of credit life insurance.” OCGA § 33-25-10 (c) (3).

       The widow also contends that the trial court erred in ruling that she could not introduce evidence of Life of the South’s conduct toward insureds in two prior cases in which it refused to honor incontestability clauses to demonstrate bad faith. We conclude, however, that the trial court did not abuse its discretion in disallowing evidence of the two prior cases. The trial court was entitled to find that the prior cases were materially dissimilar from the present one, given that neither of those cases involved coverage under the 2006 group policy and the revisions to the certificate of insurance forms made that year. See Metropolitan Property &c. Ins. Co. v. Shepherd, 166 Ga. App. 300, 301 (1) (304 SE2d 74) (1983) (.trial court did not abuse its discretion in disallowing evidence of prior fire incidents, given that, unlike in the case-at-hand, there was no evidence that the incidents were of incendiary origin or were attributable to criminal conduct).


author: Andrews, Judge. McFadden, Judge,

text:
    A11A0933.
    DUNBAR v. ERTTER et al.
    (718 SE2d 350)
   Andrews, Judge.

Denise Dunbar is the maternal grandmother of A. L., a minor child born in May 2006 whose parents are deceased. After the Juvenile Court of Coweta County found the child deprived and gave Dunbar long-term custody pursuant to OCGA § 15-11-58 (i), the Superior Court of Cobb County entered an order on a petition for custody brought by Shannon and Michael Ertter, the child’s aunt and uncle, which granted permanent custody of the child to the Ertters. We agree with Dunbar that the superior court erred by giving custody of the child to the Ertters while the juvenile court’s prior custody order in the deprivation proceeding was unchallenged and still in effect.

Pursuant to a deprivation proceeding commenced on June 27, 2008, the juvenile court found that the minor child’s parents were deceased; gave temporary custody of the child to the Coweta County Department of Family and Children Services (DFACS) by order dated July 29, 2008; and on October 10, 2008, ordered that long-term custody of the child (subject to periodic review) be given to Dunbar until the child’s eighteenth birthday pursuant to OCGA § 15-11-58 (i). On August 5, 2008, while the deprivation proceeding was pending, the Ertters filed a petition in the Superior Court of Cobb County, the county where Dunbar resided, seeking permanent custody of the child. When they filed the superior court petition, the Ertters knew about the pending deprivation petition and knew the juvenile court had given temporary custody of the child to DFACS. According to Ms. Ertter, she contacted DFACS in early July; told the child’s caseworker to consider her as a relative willing to take custody of the child in the deprivation proceeding; and was informed that her mother, Dunbar, had indicated a willingness to take custody and was being favorably considered. On September 17, 2008, the juvenile court held a hearing (at which the Ertters did not appear) to consider a DFACS motion to transfer custody of the child to Dunbar, and on October 10, 2008, the juvenile court entered an order granting the motion and giving Dunbar long-term custody until the child’s eighteenth birthday. OCGA § 15-11-58 (i). On December 16, 2009, the Ertters amended their superior court petition to seek a change of custody from Dunbar, and on June 17, 2010, the superior court ordered that permanent custody of the child be given to the Ertters based on the best interest of the child.

In the deprivation action, over which the juvenile court had exclusive original jurisdiction pursuant to OCGA § 15-11-28 (a) (1) (C), the Court granted Dunbar long-term custody of the child until the child’s eighteenth birthday subject to periodic review as set forth in OCGA § 15-11-58 (i). Accordingly, the juvenile court’s long-term custody order remained in effect when the superior court entered its permanent custody order. Compare OCGA § 15-11-58.1 (providing that “[ejxcept as otherwise provided by law, an order of disposition in a proceeding involving deprivation, except an order involving the appointment of a guardian of the person or property of a child, continues in force for not more than two years”). Pursuant to the juvenile court order, Dunbar obtained long-term physical custody of the child, but not permanent custody. OCGA §§ 15-11-13; 15-11-58 (i); Douglas v. Douglas, 285 Ga. 548, 549 (678 SE2d 904) (2009) (juvenile court does not have authority to award permanent custody absent a transfer order from the superior court; OCGA § 15-11-28 (c) (1)). The Ertters brought their action seeking permanent custody in the Superior Court of Cobb County, the county where the physical custodian, Dunbar, resided with the child. See Gordon v. Gordon, 269 Ga. App. 224, 225 (603 SE2d 732) (2004). The superior court had original jurisdiction over contests for permanent child custody in the nature of a habeas corpus between parents, parents and third parties, or between parties who are not parents. See In re J.R. T, 233 Ga. 204, 205 (210 SE2d 684) (1974); In the Interest of K. R. S., 253 Ga. App. 678-679 (560 SE2d 292) (2002). Nevertheless, because the prior juvenile court order in this case giving long-term physical custody to Dunbar remained in effect, we find that the superior court erred by exercising jurisdiction in the custody dispute. West v. Cobb County Dept. of Family &c., 243 Ga. 425 (254 SE2d 373) (1979); Segars v. State of Ga., 309 Ga. App. 732 (710 SE2d 916) (2011) (superior court correctly refused to exercise jurisdiction in custody dispute in light of prior existing juvenile court custody order in deprivation case); compare Wiepert v. Stover, 298 Ga. App. 683 (680 SE2d 707) (2009) (superior court properly exercised jurisdiction where a deprivation petition was “apparently pending” in juvenile court, but was not in the record; it was not clear why DFACS had custody of the child; DFACS moved in juvenile court to be divested of custody and dismiss the case; and juvenile court declined to exercise jurisdiction). “The statutory procedure by which [the Ertters] may seek relief is set out at [OCGA § 15-11-40],” West, 243 Ga. at 426.

Judgment reversed.

Smith, P. J., Phipps, P J., and Dillard, J., concur. Barnes, P. J., Mikell and McFadden, JJ., dissent.

McFadden, Judge,

dissenting.

Because I believe that the superior court did not err by exercising its jurisdiction over the Ertters’ petition for permanent custody of A. L., I respectfully dissent.

As the majority recognizes, a superior court has jurisdiction over a petition for permanent custody of a child, and a juvenile court cannot grant permanent custody absent a transfer order from the superior court. See OCGA § 15-11-28 (c) (1); Douglas v. Douglas, 285 Ga. 548, 549 (1) (678 SE2d 904) (2009). In this case, the juvenile court in which the deprivation action was brought and the superior court in which the petition for permanent custody was brought are in two different circuits. Accordingly, this case does not involve a transfer order; and the juvenile court could not grant permanent custody. Nevertheless, the majority holds that the superior court could not exercise its jurisdiction over the case, either. Although the majority suggests that the Ertters could instead bring their claim under OCGA § 15-11-40, that Code section merely authorizes the juvenile court to modify its rulings; it does not allow the juvenile court to grant the permanent custody sought by the Ertters in this case.

The practical result of the majority opinion is that no court may exercise jurisdiction to consider and rule on a petition for permanent custody of A. L. during the duration of the order granting long-term temporary custody to Dunbar, an order not scheduled to expire until 2024, when the child turns 18. By its nature, an award of permanent custody provides more stability and permanency for a child. An award of permanent custody constitutes a final adjudication of the rights of the parties. Pace v. Pace, 287 Ga. 899, 900 (700 SE2d 571) (2010). In contrast, an award of long-term temporary custody is subject to periodic review and possible modification. See OCGA § 15-11-58 (i) (2). See generally In the Interest of A. H., 278 Ga. App. 192, 197 (5) (628 SE2d 626) (2006) (discussing instability inherent in long-term temporary custody arrangement).

A juvenile court’s decision to enter a long-term temporary custody order pursuant to OCGA § 15-11-58 (i) should not prevent a superior court from later granting permanent custody of the child to an appropriate person or persons. And the authority cited by the majority does not require such a prohibition.

In West v. Cobb County Dept. of Family &c., 243 Ga. 425 (254 SE2d 373) (1979), the Supreme Court of Georgia held that the superior court lacked jurisdiction over the custody petition of a father, who had participated in a deprivation proceeding that had resulted in the juvenile court’s ruling that his child was deprived, during the two-year pendency of an order placing the child in the temporary custody of the Department of Family and Children Services. The decision in West did not foreclose the future possibility that the father (or someone else) could later obtain permanent custody of the child. Instead, it prevented the father from essentially making an end-run around the juvenile court’s deprivation proceeding, which presumedly had addressed whether the child should be placed in the father’s custody.

Here, in contrast, the Ertters were not parties to the deprivation proceedings in the juvenile court. They were not afforded notice or opportunity to be heard in the juvenile court proceeding. See OCGA §§ 15-11-55.1 (listing persons, other than parties, entitled to notice of deprivation hearing); 15-11-78 (2008) (version of Code section in effect at time of A. L.’s deprivation proceeding; excluding public from deprivation hearings except in certain enumerated circumstances). Consequently, the juvenile court’s order granting long-term temporary custody of the child to Dunbar did not address the central contention in the Ertters’ petition for permanent custody: that granting permanent custody of A. L. to the Ertters would be in her best interest. Instead, the juvenile court determined, as required by OCGA § 15-11-58 (i) (1), that referral for termination of parental rights and adoption was not in A. L.’s best interest, and it found that a placement with Dunbar would “provide a family home because . . . [t]he child and mother lived with . . . Dunbar prior to the mother’s death and the child is familiar with . . . Dunbar and doing well in her custody.” No findings or conclusions relating to the Ertters were reached. And because the parties to the juvenile proceedings were not the same as the parties to the custody action, principles of abatement did not apply. Cf. OCGA § 9-2-44 (a) (a former recovery or the pendency of a former action for the same cause of action between the same parties in the same or any other court having jurisdiction shall be a good cause of abatement).

Thus, unlike the father’s petition in West, the Ertters’ petition cannot be viewed as an end-run around the juvenile court’s order. And, unlike West, no possibility exists for a grant of permanent custody after the expiration of the temporary custody order in this case, because the temporary custody order is not set to expire until A. L. reaches the age of majority.

Segars v. State of Ga., 309 Ga. App. 732 (710 SE2d 916) (2011), likewise is distinguishable from this case and does not compel the result reached by the majority. In Segars, we upheld a superior court’s decision not to exercise jurisdiction over a custody dispute, where the juvenile court had not yet ruled on a termination proceeding pending before it. Id. The petitioners for custody in Segars had unsuccessfully sought to intervene in the juvenile court deprivation proceeding; they had not sought to intervene in the termination proceeding. Id. at 733. We noted that, by taking jurisdiction of the deprivation action and, later, the termination action, the juvenile court was the first court to exercise its concurrent jurisdiction over the issues of custody that arose pursuant to OCGA §§ 15-11-58 (involving placement of child where reunification is not in child’s best interest) and 15-11-103 (involving placement of child following termination order). Segars, supra at 735-736. Pertinently, however, we distinguished the facts presented in Segars from the circumstance where “a deprivation action in juvenile court had concluded with an award of temporary custody to the grandparents,” and we stated that in the latter circumstance “the legal custodians’ petition seeking a modification of that custody must be brought in superior court.” Id. at 736, n. 4 (citing In the Interest of C. C., 193 Ga. App. 120, 121 (387 SE2d 46) (1989)).

Rather than being analogous to Segars, the instant case presents the circumstance distinguished by Segars — the deprivation action in juvenile court concluded with the award of long-term temporary legal custody to Dunbar. I disagree that the case remains a pending deprivation proceeding until A. L. turns 18 in 2024. The implication, through the majority’s use of the term “physical custody,” that another person or entity will retain legal custody of the child during the order’s duration, is unfounded. The juvenile court awarded “legal custody and control” of A. L. to Dunbar, making Dunbar the child’s temporary legal custodian. See generally Edgar v. Shave, 205 Ga. App. 337, 338-339 (2) (422 SE2d 234) (1992) (holding that deprivation order had conveyed to party status of temporary legal custodian and noting that OCGA § 15-11-2 (5) defines “custodian” to include a person to whom legal custody of the child has been given by order of a court). Under the juvenile court’s order, the court’s role over the remaining years of A. L.’s minority would be to receive a report every 36 months regarding Dunbar’s continued qualification to care for her. Such a monitoring role would exist in any grant of temporary custody under OCGA § 15-11-58 (i). See OCGA § 15-11-58 (i) (2).

Decided November 8, 2011

Bruce W. Phillips, for appellant.

Dupree & Kimbrough, Hylton B. Dupree, Jr., Ronne G. Kaplan, Jean M. Kutner, for appellees.

I find this case analogous to Wiepert v. Stover, 298 Ga. App. 683 (680 SE2d 707) (2009), in which two sets of nonparent relatives of a child filed competing petitions for permanent custody in superior court during the pendency of a deprivation proceeding in juvenile court. In Wiepert, as here, the superior court did not enter an order transferring jurisdiction over the permanent custody petitions to juvenile court, and the petitions for permanent custody were not deprivation petitions. Under these circumstances, we held in Wiepert that the superior court did not err in exercising jurisdiction over the petitions for permanent custody. I believe that we should reach the same result here.

I am authorized to state that Presiding Judge Barnes and Judge Mikell join in this dissent.

       Shannon Ertter is the deceased mother’s sister and Dunbar’s daughter.

       The juvenile court found that the child’s father killed the child’s mother and committed suicide.

       We note that the superior court action was not brought in Cobb County pursuant to the Georgia Child Custody Intrastate Jurisdiction Act (OCGA § 19-9-20 et seq.) because that Act directs where complaints must be filed which seek a change of custody by or against the “legal custodian” of the child. OCGA § 19-9-23 (a), (b); Gordon, 269 Ga. App. at 225. A “legal custodian” is defined under the Act as a person, including but not limited to a parent, who has been awarded permanent custody of a child by court order. OCGA § 19-9-22 (2).

       We render no opinion on the juvenile court’s order in the deprivation case entered pursuant to OCGA § 15-11-58.

       I do not disagree with the majority’s conclusion that Dunbar is not a “legal custodian” as that term is defined under the Georgia Child Custody Intrastate Jurisdiction Act (OCGA § 19-9-20 et seq.), and thus that the Act is not implicated in this case. See generally Gordon v. Gordon, 269 Ga. App. 224, 225 (2) (603 SE2d 732) (2004).