text:
    A13A0621.
    DISTRICT OWNERS ASSOCIATION, INC. v. AMEC ENVIRONMENTAL & INFRASTRUCTURE, INC. et al.
    (747 SE2d 10)
   Dillard, Judge.

Richard Corbett filed a premises-liability action against District Owners Association, Inc. (“DOA”), alleging that DOA is liable for the injuries that he sustained on its property when he jumped off a wall that concealed a 33-foot drop between the sidewalk and a parking deck. Thereafter, DOA filed a third-party complaint against AMEC Environmental & Infrastructure, Inc.; Carl Walker, Inc.; Vratsinas Construction Company; and C.W. Matthews Contracting Company, Inc. (collectively “third-party defendants”), as the designers and builders of the wall and parking deck, claiming that the third-party defendants are liable to DOA under theories of common-law indemnification and common-law apportionment. The third-party defendants filed motions to dismiss DOA’s claims, which the trial court granted. DOA now appeals, arguing that the trial court erred in dismissing its common-law indemnification and apportionment claims on the ground that such claims are barred by OCGA § 51-12-33. For the reasons set forth infra, we affirm.

The record shows that on January 18, 2010, Richard Corbett was jogging through the Atlantic Station area of Atlanta on a street that ran between a grocery store and the parking deck of a department store. Adjacent to the sidewalk, upon which Corbett was jogging, was a concrete wall approximately 37 inches in height. From Corbett’s vantage point (as he jogged along the sidewalk), the ground on the other side of the wall appeared to be only three feet or so lower than the top of the wall, and thus, Corbett assumed that if he jumped over the wall, he could continue his jog through the parking deck on the other side. But as Corbett jumped over the wall, he realized, much to his horror, that the drop off was over 30 feet. Consequently, Corbett fell and suffered serious injuries.

On June 2, 2011, Corbett filed a premises-liability action against DOA, the owner of the Atlantic Station property, alleging, inter alia, that DOA was negligent in failing to erect fencing or any other type of barrier to protect pedestrians from jumping or climbing over the wall and injuring themselves. DOA filed an answer and discovery ensued. Several months thereafter, DOA filed a third-party complaint against AMEC, as the successor to the company that designed the concrete wall; Carl Walker, Inc., as the designer of the parking deck; and Vratsinas Construction Company and C.W. Matthews Contracting Company, as the contractors responsible for building the wall and parking deck. In that complaint, DOA sought common-law indemnification or, in the alternative, common-law apportionment for any amount that DOA may ultimately be liable to Corbett.

After filing answers, AMEC, Carl Walker, Inc., and C.W. Matthews filed motions to dismiss DOA’s third-party complaint, arguing that DOA’s common-law indemnity and common-law apportionment claims were barred by OCGA § 51-12-33. Vratsinas Construction also answered and filed a motion for summary judgment, asserting the same argument as the other third-party defendants. Subsequently, the trial court held a hearing on the issue, and at the conclusion of the hearing, the court granted the third-party defendants’ motions. Accordingly, a few weeks later, the trial court issued an order dismissing DOA’s third-party complaint. This appeal follows.

At the outset, we note that this Court reviews “de novo the trial court’s grant of a motion to dismiss.” And a motion to dismiss may be granted only where “a plaintiff would not be entitled to relief under any set of facts that could be proven in support of the plaintiff’s claim.” With these guiding principles in mind, we turn now to DOA’s specific claims of error.

1. DOA contends that the trial court erred in dismissing its common-law indemnity claim on the ground that OCGA § 51-12-33 abrogated such claims. We disagree.

In addressing DOA’s contention, it is first necessary to discuss what OCGA § 51-12-33 actually entails. As the Supreme Court of Georgia has held, “[t]he purpose of the apportionment statute is to have the jury consider all of the tortfeasors who may be liable to the plaintiff together, so their respective responsibilities for the harm can be determined.” Toward that end, OCGA § 51-12-33 (b) provides:

Where an action is brought against more than one person for injury to person or property, the trier of fact, in its determination of the total amount of damages to be awarded, if any, shall after a reduction of damages pursuant to subsection (a) of this Code section, if any, apportion its award of damages among the persons who are liable according to the percentage of fault of each person. Damages apportioned by the trier of fact as provided in this Code section shall be the liability of each person against whom they are awarded, shall not be a joint liability among the persons liable, and shall not be subject to any right of contribution.

Interpreting this subsection of the statute, our Supreme Court has held that “[a]s to contribution, OCGA § 51-12-33 (b) flatly states that apportioned damages ‘shall not be subject to any right of contribution,’ ” and emphasized that “the statute reiterates this point by saying that damages ‘shall not be a joint liability among the persons liable.’ ”

Turning to the issue of indemnity, we note that under Georgia law indemnity is defined “as the obligation or duty resting on one person to make good any loss or damage another has incurred by acting at his request or for his benefit.” And despite the enactment of OCGA § 51-12-33, it is well settled that “Georgia law continues to recognize two broad categories of indemnity: as created by contract, as between a surety and a debtor; and under the common law of vicarious liability, as between principals and agents.” Specifically with regard to the latter category, “[i]f a person is compelled to pay damages because of negligence imputed to him as the result of a tort committed by another, he may maintain an action for indemnity against the person whose wrong has thus been imputed to him.”

In its third-party complaint, DOA alleged that any deficiencies with regard to the concrete wall and parking deck were a result of negligent design and construction by the third-party defendants. Consequently, DOA asserted that “if DOA is found liable in the [plaintiff’s] lawsuit, then [the third-party defendants] should indemnify DOA for any amount that DOA may be liable to plaintiff.” DOA now argues that in dismissing this claim, the trial court erroneously held that common-law indemnity claims have been abrogated by OCGA § 51-12-33. But contrary to DOA’s contention, the trial court actually held that “[t]he common law indemnity claim as set forth by DOA in its Third-Party Complaint has been abrogated by OCGA § 51-12-33.” The trial court went on to add that “[b]ecause DOA has made no allegations of imputed or vicarious liability, it has failed to show that it is entitled to common law indemnity.”

We agree with the trial court’s assessment of DOA’s third-party complaint. Indeed, by its very language the third-party complaint does not allege contractual indemnity or vicarious liability based on any agent-principal or employer-employee relationship. Rather, the complaint seeks payment from the third-party defendants as joint tortfeasors for any amount that DOAis ultimately found liable to the plaintiff. Thus, because no allegations of imputed negligence or vicarious liability have been made in this case, “common law indemnity principles do not apply...." Accordingly, the trial court did not err in dismissing DOA’s common-law indemnity claim.

2. DOAfurther contends that the trial court erred in dismissing its common-law apportionment claim on the ground that OCGA § 51-12-33 precludes a separate cause of action for such claims. We disagree.

Here, DOA’s third-party complaint alleged, in the alternative to its common-law indemnity claim, that “under OCGA § 51-12-33, to the extent that the trier of fact determines that DOA is liable to plaintiff for damages, those damages must be apportioned among [the third-party defendants] .’’And DOAargues that this common-law apportionment claim is perfectly viable despite the enactment of OCGA § 51-12-33, and is merely an alternative means by which to ensure apportionment of damages. We do not find this argument persuasive.

Under OCGA § 51-12-33 (c), “[i]n assessing percentages of fault, the trier of fact shall consider the fault of all persons or entities who contributed to the alleged injury or damages, regardless of whether the person or entity was, or could have been, named as a party to the suit.” OCGA § 51-12-33 (d) (1) further provides: “Negligence or fault of a nonparty shall be considered if the plaintiff entered into a settlement agreement with the nonparty or if a defending party gives notice not later than 120 days prior to the date of trial that a nonparty was wholly or partially at fault.” And OCGA § 51-12-33 (d) (2) describes the means by which to notice nonparties for apportionment, stating “[t]he notice shall be given by filing a pleading in the action designating the nonparty and setting forth the nonparty’s name and last known address . . . .”

Despite the fact that the language in OCGA § 51-12-33 does not mention a separate right of action for apportionment, DOA nevertheless asserts that such a cause of action is still viable. But if the General Assembly had intended to create such a cause of action when it enacted the statute it would have said so. Furthermore, and contrary to DOA’s contention, not only did OCGA § 51-12-33 fail to create a cause of action for apportionment, it abrogated such actions under the common law. Indeed, it is unnecessary for a statute “to expressly say, this is intended to preempt the common law.” And pursuant to this principle, the Supreme Court of Georgia has specifically held that in enacting OCGA § 51-12-33, the General Assembly intended to displace the common law of apportionment.

Decided July 8, 2013

Magill, Atkinson & Dermer, Stephen F. Dermer, Ariel E. Shapiro, for appellant.

Greenfield, Bost & Kliros, John W. Greenfield, Moore, Ingram, Johnson & Steele, William R. Johnson, Angela H. Smith, Cruser & Mitchell, William T. Mitchell, Christopher T. Conway, Kilpatrick, Townsend & Stockton, Burleigh L. Singleton, William H. Dorris, for appellees.

Citing Murray v. Patel, DO A nevertheless argues that third-party actions such as its common-law apportionment claim have not been abolished by the enactment of OCGA § 51-12-33.‘Again, we disagree. In Murray, we concluded that the third-party practice statute was not necessarily incompatible with the apportionment statute, holding that “the plain language of OCGA § 51-12-33 (b) requires that the factfinder apportion liability between the defendant and the third-party defendant, and neither has the right of contribution against the other.” As a general principle of law, this is still correct. In fact, as noted in Division 1, supra, we have no reason to dispute that actual claims for common-law indemnity, which we have held DOA did not allege here, are still viable. However, in the time since Murray was decided, as previously noted, our Supreme Court has held that OCGA § 51-12-33 supplanted claims for common-law contribution and apportionment. Given these circumstances and the resulting legal landscape forged by same, we are dubious as to the extent of Murray’s continuing precedential value. Accordingly, for all of the foregoing reasons, we conclude that the trial court did not err in dismissing DOA’s common-law apportionment claim.

Judgment affirmed.

Andrews, P. J., and McMillian, J., concur.

        Burrowes v. Tenet Healthsystem GB, Inc., 319 Ga. App. 389, 390 (735 SE2d 131) (2012) (punctuation omitted). We apply a similar de novo standard of review to an appeal from the grant of summary judgment. See Roberson v. Leone, 315 Ga. App. 459, 460 (726 SE2d 565) (2012).

        Burrowes, 319 Ga. App. at 390-91 (punctuation omitted).

        Couch v. Red Roof Inns, Inc., 291 Ga. 359, 365 (729 SE2d 378) (2012).

        See OCGA § 51-12-33 (b).

        McReynolds v. Krebs, 290 Ga. 850, 852 (1) (b) (725 SE2d 584) (2012).

        Douglas Asphalt Co. v. Ga. Dep’t of Transp., 319 Ga. App. 47, 49 (1) (735 SE2d 86) (2012) (punctuation omitted).

        City of College Park v. Fortenberry, 271 Ga. App. 446, 451 (3) (609 SE2d 763) (2005); see Douglas Asphalt Co., 319 Ga. App. at 49 (1); see also McKee Foods Corp. v. Lawrence, 310 Ga. App. 122, 124 (712 SE2d 79) (2011) (noting that an employer may be held vicariously liable for the torts of an employee).

        City of Atlanta v. Benator, 310 Ga. App. 597, 608-09 (8) (714 SE2d 109) (2011) (punctuation omitted).

       (Emphasis supplied).

        Cf. Zurich Am. Ins. Co. v. Heard, 321 Ga. App. 325, 331 (2) (740 SE2d 429) (2013) (“The test for determining joint tortfeasors is whether the separate and independent acts of negligence of two or more persons or corporations combine naturally and directly to produce a single indivisible injury ... .” (punctuation omitted)).

        Benator, 310 Ga. App. at 609 (8) (punctuation omitted) (reversing denial of motion to dismiss because city’s cross-claims for indemnity failed to allege imputed negligence or vicarious liability).

        See OCGA § 51-12-33 (c).

        See OCGA § 51-12-33 (d) (1).

        See OCGA § 51-12-33 (d) (2).

        See Ga. Power Co. v. Cazier, 321 Ga. App. 576, 579 (1) (740 SE2d 458) (2013) (holding that if the General Assembly had intended to create a cause of action within a statute allowing persons to seek refunds of erroneously paid sales taxes “it could have simply said so” (punctuation omitted)); see also Couch, 291 Ga. at 362 (1) (holding that if the General Assembly had intended to exclude intentional acts from apportionment, it would have done so).

        Couch, 291 Ga. at 364 (1) (punctuation omitted).

        See id. (noting that the General Assembly’s intent to displace the common law of apportionment is demonstrated by, inter alia, the language in subsection (g) of OCGA § 51-12-33).

       304 Ga. App. 253 (696 SE2d 97) (2010).

        Id. at 255 (2).

        See Couch, 291 Ga. at 364 (1); McReynolds, 290 Ga. at 852 (1) (b).


source: Caselaw Access Project

author: Ellington, Chief Judge.

license: Public Domain

text:
    A13A0623.
    THE STATE v. AL-KHAYYAL.
    (744 SE2d 885)
   Ellington, Chief Judge.

The State indicted Faiz Al-Khayyal on 49 counts of sexual exploitation of children in violation of OCGA § 16-12-100 (b) (8), based upon allegations that he possessed and controlled child pornography in the form of digital files on his laptop computer. The Superior Court of Clayton County sustained Al-Khayyal’s plea in bar and granted his motion to dismiss the indictment for lack of venue, finding that, although Al-Khayyal possessed the computer in Clayton County, he had deleted the digital files before he entered the county and could no longer access the illegal images, and, therefore, that there was no evidence that he committed the offenses as alleged in the indictment. The State appeals this ruling, in part, as to Counts 30 through 49. For the reasons explained below, we reverse in part.

The following facts are undisputed. In 2009, while Al-Khayyal, a professor at the Georgia Institute of Technology, was abroad teaching in China, he became the target of an investigation into child pornography. When he returned to the United States on August 5, 2009, bringing his laptop computer, immigration control officers detained him in the Atlanta airport (in Clayton County) and seized that computer. A forensic computer specialist for the Georgia Bureau of Investigation conducted a forensic examination of the computer, using specialized forensic software, and discovered 29 digital files that contained sexually explicit images of young girls. The files had been placed in the computer’s trash folder, which had then been emptied, so that the files were permanently deleted or “double-deleted” and inaccessible to the user. A subsequent examination of the computer yielded 20 additional files that had been “deleted” but remained saved in the trash folder. Those files were in a compressed “.rar” format, and the images contained in the files could be viewed only with an “uncompressing” or “unzipping” program that at that time was not loaded on the computer. A different unzipping program, however, was loaded on the computer, and the computer’s history files showed that the software had been used, though not on the files at issue in this case. In addition, the computer specialist testified that the software required to access the .rar files is readily available to the public and can be used without special training. When the computer specialist used the required software to “rebuild” the .rar files in the trash folder, she found that the files also contained sexually explicit images of young girls.

The State indicted Al-Khayyal on 49 counts of violating OCGA § 16-12-100 (b) (8). Each count alleges that Al-Khayyal,

in the State of Georgia and County of Clayton, on or about August 5, 2009, did knowingly possess and control material, to wit: a digital file located on a Toshiba laptop and labeled[, giving the file name of one of the 49 digital files recovered from his computer], which depicts a minor engaged in sexually explicit conduct, to wit: [describing the conduct depicted in the specified file].

Counts 1 through 29 concern the double-deleted files; Counts 30 through 49 concern the single-deleted .rar files.

Al-Khayyal filed a plea in bar and motion to dismiss the indictment, arguing that, regardless whether he possessed and controlled the files at one time, he did not do so in Clayton County and, therefore, that the prosecution was barred for lack of venue. After an evidentiary hearing, the trial court sustained the plea in bar and granted the motion to dismiss, finding that there was no evidence that Al-Khayyal was in knowing possession and control of the images in Clayton County.

The State appeals this ruling only as to Counts 30 through 49, which concern the single-deleted .rar files. The State contends that, for purposes of Al-Khayyal’s plea in bar and motion, the evidence establishes that he possessed his computer in Clayton County at a time when the subject .rar files were present on the computer’s hard drive. In addition, the State contends that the evidence establishes that, although the subject files were then assigned to Al-Khayyal’s computer’s trash folder, he could have accessed the files and viewed the contraband images after downloading software that was readily available to the public. Further, the State contends that the evidence supports an inference that Al-Khayyal knew that the files were present on his computer and that he could later access them. Because questions concerning Al-Khayyal’s knowledge and intent are for the jury to decide, the State contends that, under the circumstances presented, the trial court erred in sustaining Al-Khayyal’s plea in bar and granting his motion to dismiss the indictment.

Al-Khayyal contends, on the other hand, that the trial court’s ruling was correct because, while he was in Clayton County, he lacked the ability to access the illegal images stored on his computer. He contends that contraband that is in the form of electronic data “can only be thrown away in one way — [by] rendering it inaccessible on the computer” on which the data is stored. He contends that, before entering Clayton County, he had done “everything he could to discard the [illegal] images and terminate his possession” and that the steps he had taken before he returned to the United States did, in fact, render the subject files “totally inaccessible.” Based on this, he contends that the trial court correctly determined that, as a matter of law, he was not in knowing possession or control of the contraband in that venue. We apply a de novo standard of review to the trial court’s ruling on Al-Khayyal’s plea in bar and motion to dismiss the indictment for improper venue.

Under Georgia law, a person who knowingly has direct physical control over a thing at a given time is in actual possession of it. A person who, though not in actual possession, knowingly has both the power and the intention at a given time to exercise dominion or control over a thing is then in constructive possession of it. In any criminal prosecution for possession, therefore, the State must prove that the defendant was aware he possessed the contraband at issue.

(Citation and punctuation omitted.) Barton v. State, 286 Ga. App. 49, 52 (1) (648 SE2d 660) (2007). “Both knowledge and possession maybe proved, like any other fact, by circumstantial evidence.” (Citation and punctuation omitted.) Hunt v. State, 303 Ga. App. 855, 858 (2) (695 SE2d 53) (2010). Further, “[a]s long as there is slight evidence of access, power, and intention to exercise control or dominion over an instrumentality, the question of fact regarding constructive possession remains within the domain of the trier of fact.” (Citation and punctuation omitted.) Id.

The common thread in child pornography laws is the visual depiction of minors engaged in sexually explicit conduct. Although the iconic example of child pornography may be a photograph, where the illegal image is fixed in a tangible form, child pornography presents special issues in contemporary times because technology allows images to be ephemerally generated from data stored in a variety of media. Georgia law in the arena of child pornography has evolved to reflect the impact of technology. Some offenses are narrowly drawn to prohibit specified conduct involving a “visual medium” or “visual or printed matter” which depicts a minor or a portion of a minor’s body engaged in any sexually explicit conduct. The offense at issue in this case, on the other hand, is more broadly drawn to prohibit possession or control of “any material” which depicts such an image. OCGA § 16-12-100 (b) (8). Georgia’s appellate courts have upheld convictions under this subsection in cases based on the defendant’s possession of a videotape, a compact disc, a DVD, or a USB flash drive that contained prohibited content. Thus, in these storage media cases, evidence that a defendant possessed data capable of generating images of a minor engaged in sexually explicit conduct authorized the jury to find that the defendant possessed prohibited “material” even though actually viewing the prohibited images would require the use of a machine or electronic device (a videocassette player, a computer equipped with particular software, etc.). In this case, it is undisputed that Al-Khayyal physically possessed a computer that served as the storage medium for data files capable of generating visual depictions of minors engaged in sexually explicit conduct.

Despite his undisputed physical possession of the computer in Clayton County, Al-Khayyal contends that the State cannot prove that he possessed the contraband at issue in that venue because, while he was in the county, he lacked the ability to access the illegal images stored on his computer. He relies in part on evidence that the software required to view the prohibited visual depictions was not loaded on his computer at the same time. We find no support in Georgia law, however, for the proposition that possession of prohibited material under OCGA § 16-12-100 (b) (8) exists only in conjunction with the defendant’s present ability to view illegal visual depictions, especially given the evidence that the needed software was readily available to the public. See Veats v. State, 300 Ga. App. 600, 602 (1) (685 SE2d 416) (2009) (A defendant knowingly had constructive possession of a pornographic videotape even when he could not view the content because he did not have a videocassette player or electricity.).

Finally, we turn to Al-Khayyal’s argument that the evidence precludes the requisite finding that he possessed the contraband at issue knowingly, that is, that he was aware that the files containing the illegal images were stored in his computer’s memory. We note initially that there was no evidence presented at the hearing on Al-Khayyal’s plea in bar and motion to dismiss that the type of files at issue in this case, .rar files, could have been saved to his hard drive automatically and without his knowledge. Rather, the evidence authorizes an inference that the subject .rar files originally came to be saved to Al-Khayyal’s computer deliberately. Further, the evidence, including evidence that he actively manipulated the .rar files by deleting them, authorizes an inference that he was aware that the files were saved to his hard drive. Evidence that Al-Khayyal had double-deleted other files authorizes an inference that he knew that deleting a file moves it to the trash folder and that, without further action, a deleted file remains stored there. By extension, this evidence also authorizes an inference that he knew that the .rar files at issue in this case were in the trash folder and still accessible. Evidence that he had used other unzipping software authorizes an inference that he knew about the kind of software needed to access and manipulate compressed files. In addition, all of this evidence must be viewed in light of Al-Khayyal’s educational background and professional expertise. Taking these permissible inferences together, we conclude that the evidence does not establish as a matter of law that, while Al-Khayyal possessed his computer in Clayton County, he had no knowledge of the presence of the .rar files in his computer’s trash folder. Under the facts presented, the question of whether Al-Khayyal’s efforts to abandon the illegal files were successful remains a question of fact for the jury and cannot be determined as a matter of law at this pretrial stage. Bearing in mind that knowledge and possession may be proved by circumstantial evidence and that slight evidence of access, power, and intention to exercise control or dominion over contraband is sufficient to create a jury issue, the record does not support a finding that it will be impossible for the State to prove that Al-Khayyal committed the offenses in Clayton County, as alleged in the indictment. Consequently, as to Counts 30 through 49, the trial court erred in sustaining Al-Khayyal’s plea in bar and his motion to dismiss the indictment for lack of venue. State v. Johnson, 269 Ga. 370, 372 (2) (499 SE2d 56) (1998).

Decided June 19, 2013

Reconsideration denied July 9, 2013

Samuel S. Olens, Attorney General, Laura D. Pfister, Neis S. D. Peterson, for appellant.

Alston & Bird, Michael L. Brown, Angela Adams, for appellee.

Judgment reversed in part.

Phipps, P. J., and Branch, J., concur.

       See OCGA § 5-7-1 (a) (1) (providing that the State may appeal from an order dismissing an indictment); see also OCGA § 5-7-1 (a)(3) (providing that the State may appeal from an order sustaining a plea or motion in bar, when the defendant has not been put in jeopardy).

       See United States v. Seiver, 692 F3d 774, 776-778 (7th Cir. 2012) (When a user deletes a computer file, it goes into a “trash” folder. If the user then directs the computer to “empty” the trash folder, the contents of the folder, including deleted files, are removed from the user interface. In many cases, a computer forensic expert using specialized software may be able to recover double-deleted data, if recovery is undertaken before the file is overwritten with later-saved files either because there is no longer unused space in the computer’s hard drive or at the user’s direction. Most computer users, however, lack the specialized software that is needed to be able to recover a double-deleted file from the hard drive’s “slack space” and the technological knowledge to use such software. In such a case, a computer user who deletes a file and empties the trash folder containing it will no longer knowingly possess the file.).

       See David T. Cox, “Litigating Child Pornography and Obscenity Cases in the Internet Age,” 4 J. Technology L. & Policy 1,100 (Summer 1999) (When computer files are deleted, “the [DOS or Windows] operating system does not actually discard any information, rather, it merely makes note to itself” that the memory space being used by the file is again available for use and may be overwritten. Until overwritten, deleted files can be retrieved with software designed for that purpose. Thus, “[a] deleted file is really not a deleted file, it is merely organized differently.”).

       Pursuant to OCGA § 16-12-100 (b) (8), “[i]t is unlawful for any person knowingly to possess or control any material which depicts a minor or a portion of a minor’s body engaged in any sexually explicit conduct.”

       See Ga. Const. of 1983, Art. VI, Sec. II, Par. VI (“[A]ll criminal cases shall be tried in the county where the crime was committed, except cases in the superior courts where the judge is satisfied that an impartial jury cannot be obtained in such county.”); OCGA § 17-2-2 (a) (In general, “[c]riminal actions shall be tried in the county where the crime was committed, except as otherwise provided by law.”).

       Although the State “does not concede that... Al-Khayyal lacked knowing possession or control over the files in Counts 1-29, [it] will not challenge that ruling of the trial court in this appeal.” Consequently, the trial court’s order stands affirmed in part, as to those counts, by operation of law. Grimes v. State, 297 Ga. App. 720, n. 1 (678 SE2d 167) (2009).

       See State v. Johnson, 269 Ga. 370, 372 (2) (499 SE2d 56) (1998) (reviewing de novo a trial court’s determination that venue for a prosecution for using a false document in a matter within the jurisdiction of a state department did not lie in the county where the state office that received the false documents was located, but lay in the county in which the defendant executed the false documents, and reversing the trial court’s order granting the defendant’s motion to dismiss the indictment for improper venue); State v. Barber, 193 Ga. App. 397, 398-399 (388 SE2d 350) (1989) (reviewing de novo a trial court’s determination that venue for a Medicaid fraud prosecution did not lie in the county where the defendant submitted false reports, but lay in the county in which he falsified the reports, and affirming the dismissal of the indictment for improper venue).

       See, e.g., Aman v. State, 261 Ga. 669, 670 (1) (b) (409 SE2d 645) (1991); 18 USC §§ 2252; 2252A; Utah Code Ann. § 76-5b-103 (1); Mo. Ann. Stat. § 573.010 (2); Colo. Rev. Stat. Ann. § 18-6-403 (2) (j).

       See generally “Obscenity and pornography in digital environments - Federal statutory law,” Law of Computer Technology § 18:43 (database updated April 2013); David T. Cox, “Litigating Child Pornography and Obscenity Cases in the Internet Age,” 4 J. Technology L. & Policy 1 (Summer 1999).

       OCGA § 16-12-100 (b) (1), (2), (5), (6).

       OCGA § 16-12-100 (c).

       See also OCGA § 16-12-100 (b) (7) (“It is unlawful for any person knowingly to bring or cause to be brought into this state any material which depicts a minor or a portion of a minor’s body engaged in any sexually explicit conduct.”).

       See Aman v. State, 261 Ga. at 671 (Hunt, J., concurring); see also Veats v. State, 300 Ga. App. 600, 602-605 (1) (685 SE2d 416) (2009) (probation revocation based on possession of a pornographic videotape).

       See Scarborough v. State, 317 Ga. App. 523, 524-525 (1) (731 SE2d 396) (2012); Dickerson v. State, 304 Ga. App. 762, 766 (2) (697 SE2d 874) (2010).

       See Henderson v. State, 320 Ga. App. 553, 555 (1) (740 SE2d 280) (2013).

       See Hunt v. State, 303 Ga. App. at 857-859 (2).

       See State v. Brown, 250 Ga. App. 376 (551 SE2d 773) (2001), in which we noted that, although all of the listed items in the statutory definition of a “[v]isual medium,” that is, “any film, photograph, negative, slide, [or] magazine,” OCGA § 16-12-100 (a) (5), “are ‘tangible,’in that they can be physically handled, not all of the listed items can be viewed without the assistance of machinery. Negatives require processing; films require projectors^] [t]he images on videotapes ... can be seen only with the aid of a machine.” Id. at 379 (1). We construed the definition of visual media to include “digital code that produces pictures when interpreted by software” and may be distributed electronically. Id. at 378 (1). See also OCGA § 16-12-100.2 (b) (8) (Defining “visual depiction,” as used in the Computer or Electronic Pornography and Child Exploitation Prevention Act of 2007, as “any image and includes undeveloped film and video tape and data stored on computer disk or by electronic means which is capable of conversion into a visual image or which has been created, adapted, or modified to show an identifiable child engaged in sexually explicit conduct.”).

       Cf. Wise v. State, 364 SW3d 900, 904 (Tex. Crim. App. 2012) (Discussing the “present-possession approach” used in some jurisdictions when evaluating the sufficiency of evidence that a defendant knowingly possessed child pornography images found in a computer’s cache or free space. That approach requires evidence that a defendant had the knowledge and ability to access the files “in their present format.” In the context of files deleted by a user or by an automatic computer program, if an ordinary computer could not have accessed the deleted files, then the defendant could not presently have the required custody, control, or management of the images to be deemed to be in knowing possession of them.).

       Cf. Barton v. State, 286 Ga. App. at 50-52 (1) (Where the defendant was charged with possessing child pornography based on temporary internet files that were saved in his computer’s “cache”; where the evidence showed that the cache is “a storage mechanism designed to speed up the loading of internet displays” and that all computers will automatically store pictures or other content that is viewed over the internet; and where there was no evidence that the defendant took any affirmative action to store the images on his computer, that he was aware that, when he viewed the images, the computer had automatically stored the images as files in the cache, or that he had the software and the knowledge required to retrieve or access the images, the State failed to carry its burden of showing that he knowingly possessed the pornography.); see also United States v. Kuchinski, 469 F3d 853, 863 (B) (3) (9th Cir. 2006) (“Where a defendant lacks knowledge about the cache files[, which were automatically downloaded when he accessed web pages], and concomitantly lacks access to and control over those files, it is not proper to charge him with possession and control of the child pornography images located in those files, without some other indication of dominion and control over the images. To do so turns abysmal ignorance into knowledge and a less than valetudinarian grasp into dominion and control.”); Katie Gant, “Crying over the Cache: Why Technology Has Compromised the Uniform Application of Child Pornography Laws,” 81 Fordham L. Rev. 319, 322 (noting the difficulty of proving knowing possession when child pornography images are found exclusively in the defendant’s internet cache) (October 2012).

       Cf. Barton v. State, 286 Ga. App. at 52 (1) (noting the absence of any circumstantial evidence that would have allowed the jury to infer the defendant’s knowledge of particular cache files, such as evidence that the defendant was an experienced or sophisticated computer user who would have been aware of the automatic storage process of such files).

       See Henderson v. State, 320 Ga. App. at 555 (1) (Evidence supported OCGA § 16-12-100 (b) (8) convictions where there was evidence that the defendant viewed movie files containing child pornography, saved some of the files to DVDs, and tried to delete the images from his computer.); Scarborough v. State, 317 Ga. App. at 524-525 (1) (Evidence supported OCGA § 16-12-100 (b) (8) convictions where there was evidence that the defendant saved files containing child pornography to a CD.); Haynes v. State, 317 Ga. App. 400, 401 (1) (731 SE2d 83) (2012) (Evidence supported OCGA § 16-12-100 (b) (8) convictions where there was evidence that files containing child pornography were saved to the defendant’s computer; the files had been intentionally downloaded to the computer using certain file-sharing programs; the defendant admitted using the file-sharing programs; and the files had been modified after being downloaded.); Dickerson v. State, 304 Ga. App. at 766 (2) (Evidence supported OCGA § 16-12-100 (b) (8) conviction where there was evidence that files containing child pornography were deliberately copied to a compact disc found in the defendant’s home and the defendant’s fingerprint was on the CD.); Hunt v. State, 303 Ga. App. at 857-858 (2) (Evidence supported OCGA § 16-12-100 (b) (8) convictions, including proof of venue in Clayton County, where there was evidence that the defendant, who lived in another state, saved files containing child pornography to a USB flash drive and, weeks later, had the flash drive with him when he stayed in a hotel in Clayton County and left the flash drive behind when he returned home.); see also United States v. Romm, 455 F3d 990, 1000-1001 (II) (9th Cir. 2006) (Evidence that the defendant viewed images of child pornography over the internet and then deleted the associated temporary files from the computer’s cache authorized the jury to find that he exercised control over the images in the cache and, therefore, that he committed the act of knowing possession of the images.); United States v. Bass, 411 F3d 1198, 1202 (II) (10th Cir. 2005) (Evidence that the defendant attempted to delete internet child pornography from the computer on which he viewed it authorized the jury to find that the defendant knew that the child pornography was automatically saved to the computer and, therefore, that he knowingly possessed the pornography.).

       We note that the issue of where venue would lie in a case where the State cannot specify where illegal “material” in the form of stored data is located is not before us. See George Blum et al., 21 Am. Jur.2d Criminal Law § 476 (database updated May 2013) (Use of the internet to commit crimes “has led to many issues involving venue.”); David Colarusso, “Heads in the Cloud, a Coming Storm the Interplay of Cloud Computing, Encryption, and the Fifth Amendment’s Protection Against Self-incrimination,” 17 Boston U. J. Science & Technology L. 69, 70 (Winter 2011) (“New technologies . . . present law enforcement with the prospect that information may be stored in unknowable locations behind unbreakable locks.”) (footnote omitted). In this case, the State alleges that Al-Khayyal possessed and controlled material in the form of digital files stored in a knowable location — on a computer that was physically in Clayton County.


author: Dillard, Judge.

text:
    A12A2063.
    CITY OF ATLANTA v. BENNETT et al.
    (746 SE2d 198)
   Dillard, Judge.

Following a trial by jury and the return of a verdict by special interrogatory in this class-action lawsuit brought by City of Atlanta firefighters (“the appellees”), the Superior Court of Fulton County entered a judgment against the City of Atlanta (“the City”), adopting the jury’s finding that a 2010 firefighter promotional examination was tainted by cheating and issuing a permanent injunction related to any promotions that would be made in the aftermath. On appeal, the City argues that (1) the trial court erred by excluding the testimony of a City witness, (2) the trial court erred by denying the City’s motion for directed verdict, (3) the jury’s verdict was not authorized by the evidence, (4) the trial court’s injunction was not supported by evidence, and (5) the trial court erred in submitting the appellees’ claim for OCGA § 13-6-11 fees to the jury when they failed to give ante-litem notice. Because we agree with the City that the trial court abused its discretion in excluding the testimony of a City witness, we reverse and remand for a new trial.

This case arose when the appellees filed a class-action complaint in July 2010, contending that the City of Atlanta Fire-Rescue Department’s 2010 lieutenant promotional examination was tainted by cheating. Based on the appellees’ contention that the City failed to conduct a fair administration of the promotional examination, the lawsuit (1) alleged violations of statutory obligations, breach of contract, and equal protection on behalf of firefighters who “did not cheat,” and (2) sought equitable relief in the form of an injunction and OCGA § 13-6-11 attorney fees.

When the case proceeded to trial, the appellees’ evidence of cheating included the fact that among the 173 test takers, five of the eight highest scorers were in the same study group; the study group in question had close connections to high-ranking fire-department officials, one of whom was involved in vetting the multiple-choice exam questions and answers, and maintained computer access to same prior to the exam’s administration; and expert testimony regarding statistical data that showed the improbability of the 2010 score array based on, inter alia, the highest scores in past exam years, the 2010 high scorers’ significantly lower scores on previous exams, and comparisons between the 2010 high scorers’ outstanding results on the written multiple-choice portion of the exam and their much poorer results on the oral portion of the test.

In the course of the trial, one theory of cheating suggested by the appellees was that the test takers accused of cheating could have accessed the exam questions and answers electronically via a document maintained by a high-ranking fire-department official who assisted in vetting the questions for the 2010 examination. The evidence at trial also focused on the differences between exam development and security in previous years, when the human-resources department was responsible for such matters, and exam development and security in 2010, when the job was outsourced to Booth Research Group in Colorado.

Following the presentation of evidence by both sides, the jury returned a verdict in the appellees’ favor, and the trial court entered judgment on that verdict. This appeal by the City follows, in which it makes the arguments enumerated supra.

1. First, the City contends that the trial court abused its discretion by excluding from trial the testimony of the owner of Booth Research Group, the company that developed the 2010 promotional examination. We agree.

At the outset, we note that the admission of evidence is “within the sound discretion of the trial court and appellate courts will not interfere absent abuse of that discretion.” Likewise, the issue of the admissibility or exclusion of expert testimony “rests in the broad discretion of the court, and consequently, the trial court’s ruling thereon cannot be reversed absent an abuse of discretion.” Nevertheless, we reiterate that “[e]vidence having a tendency to establish facts in issue is relevant and admissible, and no matter how slight the probative value, our law favors admission of relevant evidence.”

In the case sub judice, the record reflects that after the appellees rested their case, the City sought to call Dr. Walter Booth as a witness to rebut the appellees’ criticisms of the security surrounding development of the 2010 exam, particularly the suggestion that cheating could have occurred by accessing the electronic document maintained by a high-ranking fire department official after the exam questions and answers were vetted by three subject-matter experts from the department. The appellees objected to the admission of Booth’s testimony on the basis that he was an undisclosed expert witness, but the City disagreed with the appellees’ characterization of Booth’s expected testimony as being that of an expert and noted that Booth had been listed in the pretrial order as a “may call” witness.

Following argument by the parties, the trial court disallowed Booth’s testimony and took issue with both what it deemed a delayed identification of the witness in the pretrial order and the City’s potential use of Booth as an expert when the City never identified him as one. The City then requested an opportunity to make a proffer of Booth’s proposed trial testimony, which the court allowed outside the jury’s presence.

Thereafter, Booth testified that his company was primarily involved in “promotional written tests, assessment centers, and oral interviews for police and fire departments across the nation” and that the company developed the 2010 lieutenant and captain firefighter promotional examinations for Atlanta. Booth then explained how test bank questions are generally sent to departments for review, detailing that test items are sent under password protection; that more items will be sent for review than will actually appear in the final exam, and the department “never knows which items will be actually used on the final exam”; that the question numbers and order change between review by the department and creation of the final exam; that the multiple-choice-answer letter designations will switch on many items between review by the department and creation of the final exam; and that, in Atlanta, because the lieutenant and captain exams were based on the same source material, some items were moved between the two exams with the company making “the final determination of which items would appear on which test.” Finally, Booth testified that other than his staff, no one is allowed to see a final version of a test prior to exam administration and that the company never had any problems with breaches, hacking, or leaks.

The trial proceeded without the jury hearing Booth’s testimony. But at a later recess, the court expressed reservations about the decision to exclude the testimony, with the judge acknowledging that she “had some concerns about the ruling at the time” and was “afraid that it’s reversible error for me to exclude . . . probative [,] relevant evidence even if it’s a clear discovery violation.”

In voicing her concern, the trial judge cited this Court’s decision in Hart v. Northside Hospital, in which we held that although a party had inexcusably failed to “faithfully engage in discovery in compliance with the extended discovery deadline” and, thus, had failed to timely identify expert witnesses, “the trial court abused its discretion in granting [a] motion in limine seeking to exclude testimony from the... two experts who were identified.” Indeed, we noted that “[t]he only appropriate remedy for [the] alleged failure to update [the] discovery responses . . . was postponement of trial or a mistrial.” Based on this precedent, the trial court in the case sub judice indicated that it would reverse its own ruling and permit Booth’s testimony, and the City offered to make Booth available to the appellees for a deposition later that evening.

But in response to the trial court’s new decision, the appellees argued that Hart was distinguishable based on footnote 9 of that opinion, which emphasized that the case was not one in which “a party violated a court order explicitly directing the party to identify an expert witness for trial, nor did the order at issue warn parties of potential sanctions for failure to meet deadlines, such as the exclusion of evidence or the dismissal of the action.” In light of that fact, we “limit[ed] our holding to the specific issue before us, and [did] not purport to limit a trial court’s authority to issue such orders.” Thus, the appellees thereafter maintained that Booth was an expert witness who had never been identified as such despite repeated scheduling-order deadlines and extensions by the trial court to allow for the identification of expert witnesses. And hearing this argument, the trial court again changed course and determined that, “[i]n light of having three orders saying you need to identify these people and you all failing to identify Booth, I will stick to my original order.” Although the City repeated its assertion that Booth was not being presented as an expert, the trial court disagreed and determined that “the areas of technology and security do rise to the level of expertise . . . .”

On appeal, the City contends that the trial court’s decision to exclude Booth’s testimony as being that of an expert witness who was unidentified in violation of court orders was an abuse of discretion because Booth was presented as a fact witness, not an expert. The appellees, however, still argue that Booth was an expert witness and that the City violated successive court orders in failing to identify him as such. But because we agree with the City that Booth’s proffered testimony was not that of an expert, we likewise agree that the trial court abused its discretion by excluding Booth’s testimony on the basis that he was undisclosed as an expert in violation of successive orders.

In Georgia, when “scientific, technical, or other specialized knowledge will assist the trier of fact in any cause of action to understand the evidence or to determine a fact in issue,” a witness who is qualified as an expert “by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise” if (1) the testimony is based on sufficient facts or data admitted into evidence, (2) the testimony is the product of reliable methods and principles, and (3) the witness applied the methods and principles reliably to the relevant facts.

Here, despite the appellees’ contentions to the contrary, Booth’s testimony was very clearly that of a fact witness with personal knowledge of his company’s general operating procedures in developing promotional exams for review and eventual administration by police and fire departments. And although that testimony touched on basic security features in the manner of password protection and scrambling answers, this testimony was based upon observable facts and was not the sort of testimony that could reasonably be characterized as an expert opining as to the sufficiency or insufficiency of security measures. Accordingly, the trial court abused its discretion by determining that Booth was an expert witness who had never been identified as such in violation of the scheduling orders. And based on this misapprehension, the trial court excluded material testimony that cast doubt on the appellees’ theories of cheating.

Additionally, pretermitting whether Booth could even be deemed a “surprise” factual witness when he was listed in the pretrial order, if the trial court believed that the City failed to properly comply with discovery, the only appropriate remedy was postponement of trial or a mistrial. Indeed, exclusion of probative trial evidence is “not an appropriate remedy for curing an alleged discovery omission.” Because the trial court’s failure to allow Booth’s material testimony was an abuse of discretion, we are constrained to reverse for a new trial.

2. The City also contends that the trial court erred by submitting the issue of OCGA § 13-6-11 fees to the jury when the appellees failed to provide ante-litem notice pursuant to OCGA § 36-33-5. Specifically, the City argues that the court should have granted its motion for summary judgment on this issue. Because the question of OCGA § 13-6-11 fees will likely reoccur, we address this enumeration of error and hold that the trial court did not err in denying the City’s motion for summary judgment when, as a matter of law, the City was not entitled to ante-litem notice.

To begin with, OCGA § 36-33-5 specifies that

[n]o person, firm, or corporation having a claim for money damages against any municipal corporation on account of injuries to person or property shall bring any action against the municipal corporation for such injuries, without first giving notice as provided in subsection (b) of this Code section.

And OCGA § 13-6-11 provides that, although “[t]he expenses of litigation generally shall not be allowed as a part of the damages,” when “the plaintiff has specially pleaded and has made prayer therefor and [when] the defendant has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense, the jury may allow them.”

The City argues that because the appellees failed to provide ante-litem notice as required by OCGA § 36-33-5, they should be barred from recovering OCGA § 13-6-11 fees. In support of this argument, the City relies upon this Court’s decision in Dover v. City of Jackson. But this Court recently overruled the relevant holding in that case, determining that Dover “improperly concluded” that ante-litem notice was required for OCGA § 13-6-11 claims. Indeed, this Court has now held that, consistent with the plain language of OCGA § 36-33-5, a plaintiff is not required to give ante-litem notice on a claim for attorney fees and costs pursuant to OCGA § 13-6-11. Accordingly, this enumeration of error is without merit, and the trial court did not err in denying the City’s motion for summary judgment and submitting this issue to the jury.

Decided July 9, 2013

Greenberg Traurig, Ernest L. Greer, Michael J. King, Mark G. Trigg, for appellant.

3. The City’s final three enumerations of error all focus on the sufficiency of the evidence in the trial below. However, because we have determined that a new trial is necessary, we do not address these remaining enumerations of error.

Accordingly, for all the foregoing reasons, the trial court’s judgment is reversed and the case is remanded for a new trial.

Judgment reversed and case remanded with direction.

Andrews, P. J., and McMillian, J., concur.

Parks, Chesin & Walbert, Allan L. Parks, Jr., Larry Chesin, for appellees.

       We note that the Supreme Court of Georgia recently vacated portions of the trial court’s injunction order in Barham v. City of Atlanta, 292 Ga. 375 (738 SE2d 52) (2013).

        Am. Petroleum Prods., Inc. v. Mom & Pop Stores, Inc., 231 Ga. App. 1, 7 (3) (497 SE2d 616) (1998) (punctuation omitted).

        Levine v. Sun Trust Robinson Humphrey, 321 Ga. App. 268, 275 (3) (740 SE2d 672) (2013) (punctuation omitted).

        Am. Petroleum Prods., 231 Ga. App. at 7 (3) (punctuation omitted).

       291 Ga. App. 208 (661 SE2d 576) (2008).

        Id. at 209 (1).

        Id. at 210 (1).

        Id. (punctuation omitted).

        Id. at 210 (1) n.9.

        Id.

       Former OCGA § 24-9-67.1 (b), repealed by Ga. L. 2011, p. 99, § 2 (effective Jan. 1, 2013). OCGA § 24-7-702 (b), which became effective January 1, 2013, contains language identical to that quoted above from former OCGA § 24-9-67.1, but the provisions of Georgia’s new Evidence Code "apply to any motion made or hearing or trial commenced on or after” January 1, 2013. Ga. L. 2011, p. 99, § 101. Because the relevant trial occurred before this date, the prior evidence code applies in the case sub judice.

       Former OCGA § 24-9-67.1 (b).

        See id.

        Cf. Jones v. Scarborough, 194 Ga. App. 468, 470 (3) (390 SE2d 674) (1990) (holding that trial court erred in prohibiting discovery or testimony from a witness it deemed an expert when appellant merely sought to discover facts that were observed by the witness).

        Cf. Raines v. Maughan, 312 Ga. App. 303, 308 (2) (c) (718 SE2d 135) (2011) (physical precedent only) (explaining that expert witness “was allowed to opine that the security measures at the complex were inadequate and deficient”); Birge v. Dollar Gen. Corp., No. 04-2531 BP, 2006 WL 5179319, at *3 (II) (W.D. Tenn. 2006) (excluding proffered expert testimony when witness did not “have any expertise or training that qualifie[d] him to provide expert testimony concerning the deterrent effect of security measures on criminal defendants”); Bethea v. Bristol Lodge Corp., No. CIV.A. 01-612, 2002 WL 31859434, at *5 (II) (A) (E.D. Pa. 2002) (excluding proffered expert testimony regarding alleged deficiencies in security measures when witness “cite[d] to no industry standard for his opinions on the requisite necessities for adequate security” and did not “provide any explanation that could be tested or subjected to peer review as to how he has reached these opinions”); Newell v. Best Sec. Sys., Inc., 560 So2d 395, 397 (Fla. Dist. Ct. App. 1990) (upholding exclusion of expert testimony as to “propriety of security measures taken in light of the prior criminal activity in the area” when the opinion was not based upon valid underlying data).

        See Ga. Bldg. Servs., Inc. v. Perry, 193 Ga. App. 288, 290 (1) (a) (387 SE2d 898) (1989) (holding that trial court erred in excluding material testimony when court misapprehended party’s awareness of witness).

        See id. (holding that trial court abused its discretion by excluding the testimony of a witness who was listed as a “may call” witness in pretrial order because appellees “could no longer claim they were surprised by appellants’ decision to call” the witness); see also Foster v. Morrison, 177 Ga. App. 250, 250-51 (2) (339 SE2d 307) (1985) (holding that trial court properly denied motions for continuance and mistrial when counsel was notified of new witnesses within five days of trial as specified by pretrial order); Kamensky v. Stacey, 134 Ga. App. 530, 532 (1) (215 SE2d 294) (1975) (“[When] the complaining party cannot legitimately claim surprise, either because he knew of the existence of the witness or had equal means of knowing, it is not error to fail to invoke the sanctions of postponement, mistrial, barring the witness, etc.”). Cf. Malley Motors, Inc. v. Davis, 183 Ga. App. 599, 600 (1) (359 SE2d 394) (1987) (holding that trial court abused its discretion in permitting the testimony of a witness who was not listed in the pretrial order, and no reason was given for the failure to list the witness).

        See Hunter v. Nissan Motor Co. Ltd. of Japan, 229 Ga. App. 729, 730 (1) (494 SE2d 751) (1997) (“The only appropriate remedy for [the] alleged failure to update [appellant’s] discovery responses or her expert witness’ deposition testimony in the case sub judice ... was postponement of trial or a mistrial.”).

        Id. at 729 (1). But see Trustees of Trinity College v. Ferris, 228 Ga. App. 476, 480 (6) (491 SE2d 909) (1997) (“Exclusion of a witness is proper only where there has been a deliberate suppression of the witness’ name.” (punctuation omitted)).

        See Ga. Bldg. Servs., 193 Ga. App. at 290 (1) (a) (“We find the failure of the trial court to allow the witness to testify constituted an abuse of discretion requiring reversal and a new trial.”); see also Skating Clubs of Ga., Inc. v. Hayes, 153 Ga. App. 857, 858 (2) (267 SE2d 285) (1980) (“No matter how competent evidence might he, a new trial will not be granted merely because evidence has been excluded. It must appear that the excluded testimony was material and the substance of what the material evidence is must be called to the attention of the trial court at the time of its exclusion.” (punctuation omitted)).

        See Weir v. Kirby Constr. Co., 213 Ga. App. 832, 836 (4) (446 SE2d 186) (1994) (“[When] the verdict is reversed [and] the case is remanded for new trial..., [i]f the denial of summary judgment is enumerated as error, OCGA § 5-6-34 (d) requires us to address that enumeration if it will affect the proceedings below.” (emphasis omitted)).

       OCGA § 36-33-5 (a) (emphasis supplied).

       OCGA § 13-6-11.

       246 Ga. App. 524 (541 SE2d 92) (2000).

        See Greater Atlanta Homebuilders Ass’n, Inc. v. City of McDonough, 322 Ga. App. 627, 629 (1) (745 SE2d 830) (2013).

        See City of Statesboro v. Dabbs, 289 Ga. 669, 670 (1) (a) (715 SE2d 73) (2011) (“As is clear from the plain text of this statute, it applies to tort claims regarding personal injury or property damage . . ..”).

        See Greater Atlanta Homebuilders Ass’n, 322 Ga. App. at 629 (1). Cf. Dabbs, 289 Ga. at 670 (1) (holding that ante-litem notice statute did not apply to claims for violations of the Open Meetings Act); City of Atlanta v. Benator, 310 Ga. App. 597, 602 (3) (714 SE2d 109) (2011) (holding that ante-litem notice statute did not apply to claims for unjust enrichment, money had and received, and breach of city code “because they are not claims for injury to person or property’); Neely v. City of Riverdale, 298 Ga. App. 884, 886 (1) (681 SE2d 677) (2009) (“[T]he ante litem notice requirement of OCGA § 36-33-5 is not applicable to suits for breach of contract.”).

        See King v. Baker, 109 Ga. App. 235, 238 (14) (136 SE2d 8) (1964) (physical precedent only) (“In view of the fact that this case is being reversed and the evidence may be different and the verdict of the jury may be different upon another trial of the case, it is not necessary to determine whether the evidence presents sufficient data upon which the jury could have based the verdict for special damages, or whether there was sufficient evidence to sustain the verdict for the amount of general damages found, or whether the amount of punitive damages was excessive.”); Atlantic Coast Line R.R. Co. v. Clinard, 93 Ga. App. 64, 66 (6) (90 SE2d 923) (1955) (“Since the case is to be reversed on special grounds, we will not pass upon the general grounds, since, if the case is tried again, the evidence may be different.”).


author:
McFadden, Judge.
      BOGGS, Judge,

text:
    A13A0308.
    THOMAS v. THE STATE.
    (746 SE2d 216)
   McFadden, Judge.

Davin Thomas appeals his robbery and misdemeanor obstruction convictions, arguing that he was entitled to a mistrial because of the improper admission of character evidence and that the evidence does not support his convictions. We conclude that Thomas was not entitled to a mistrial because the evidence did not impermissibly place his character in issue. We also hold that the evidence supports the robbery conviction. But we find insufficient evidence to support the obstruction conviction. We therefore affirm in part and reverse in part.

1. Preservation of error.

As an initial matter, we address the state’s contention that Thomas waived the arguments he raises on appeal because he failed to raise them in his motion for new trial. He did not. The state cites Griffin v. State, 230 Ga. 449, 452 (2) (197 SE2d 723) (1973), for the proposition that Thomas waived his argument regarding the allegedly improper admission of character evidence by failing to raise it in his motion for new trial. The defendant in Griffin, however, failed to raise his argument either in his motion for new trial or at trial. Here, on the other hand, Thomas moved for a mistrial after the admission of the testimony in question and renewed his motion after the trial court gave curative instructions. He thus preserved the issue. Cf. Tarver v. State, 186 Ga. App. 905, 906 (2) (368 SE2d 828) (1988) (defendant waived appellate review of argument regarding the admission of character evidence “because following the curative instruction by the trial court, defendant failed to renew the motion for mistrial”).

We also reject the state’s argument that Thomas waived his challenge to the sufficiency of the evidence to support the obstruction conviction. OCGA § 5-6-36 (a) provides: “[E]ntry of judgment on a verdict by the trial court constitutes an adjudication by the trial court as to the sufficiency of the evidence to sustain the verdict, affording a basis for review on appeal without further ruling by the trial court.” Further, OCGA § 5-5-40 (g) provides: “On appeal, a party shall not be limited to the grounds urged in the motion [for new trial] or any amendment thereof.” Moreover, Thomas did challenge the sufficiency of the evidence in his first motion for new trial, albeit in general terms. Thomas has waived none of his arguments.

2. Sufficiency of the evidence.

When a defendant challenges the sufficiency of the evidence supporting his criminal conviction, “the relevant question is 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.” (Citation omitted; emphasis in original.) Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979). It is the function of the jury, not the reviewing court, to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from the evidence. Id. “As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the [s]tate’s case, the jury’s verdict will be upheld.” (Citations and punctuation omitted.) Miller v. State, 273 Ga. 831, 832 (546 SE2d 524) (2001).

Viewed in this light, the evidence shows that Mihir Patel, the owner of Al’s Discount Liquors, went to the'bank one afternoon just before Christmas to get $28,000 cash for the check-cashing service he provided at his store. The money was in two bank bags, $22,000 in one and $6,000 in the other. Patel returned to his store and, as he was entering, a man snatched the bag containing $22,000 from under his arm.

Shortly after the robbery, Patel described the robber to police as wearing light blue jeans, a gray sweater and a Christmas Santa hat. He recognized the robber as a customer and identified him in a photographic lineup (and eventually, at trial). Although Patel did not know the robber’s name, he knew the nicknames of some of the robber’s associates, and gave the nicknames to the police. One of the associates was known as Rock.

At the time of the robbery, Gregory Sublett was a patrol officer in the area in which the store was located and was familiar with a man called Rasheen Lovett, whose street name was Rock. Sublett learned that Rock’s brother had cashed a check at Patel’s store the day of the robbery. Sublett went to the brothers’ residence to speak with them. While the uniformed officer was waiting, a man who closely matched Patel’s description of the robber walked toward him. Sublett recognized the man as Thomas, whom he had seen at that location multiple times before. He called out, “Hey, come here for a second,” or “Come here, sir, let me talk to you for a second,” but Thomas turned and walked away. Thomas then began running and the officer started chasing him, but Thomas got away.

(a) Robbery.

OCGA § 16-8-40 (a) (3) provides: “A person commits the offense of robbery when, with intent to commit theft, he takes property of another from the person or the immediate presence of another... [b]y sudden snatching.”

The victim’s testimony alone [, including his identification of Thomas as the perpetrator,] established the essential elements of the offense [ of robbery] Based upon the evidence set forth above, [Thomas’s robbery conviction was] authorized under the standard of Jackson v. Virginia[, supra].

(Citations omitted.) Lester v. State, 309 Ga. App. 1, 2 (1) (710 SE2d 161) (2011).

(b) Obstruction.

OCGA § 16-10-24 (a) provides:' “[A] person who knowingly and willfully obstructs or hinders any law enforcement officer in the lawful discharge of his official duties is guilty of a misdemeanor.” The indictment charged Thomas with obstruction for fleeing Sublett. The question is whether Thomas fled knowingly and wilfully so as to hinder Sublett’s discharge of his duties. And this depends on whether Sublett clearly commanded Thomas to stop — if the officer did not clearly communicate to Thomas that he was compelled to comply, then Thomas’s failure to comply was not knowing and wilful obstruction.

[T]he [misdemeanor obstruction] statute was made purposefully broad to cover actions which might not be otherwise unlawful, but which obstructed or hindered law enforcement officers in carrying out their duties. This does not, however, make any actions which incidentally hinder an officer a crime; the accused must have “knowingly and wilfully” obstructed or hindered the officer.

Hudson v. State, 135 Ga. App. 739, 742 (2) (218 SE2d 905) (1975). “Certainly the assertion of one’s constitutional rights cannot be an obstruction of an officer, or every assertion of such rights would lead to obstruction charges.” Ballew v. State, 245 Ga.App. 842, 843 (1) (538 SE2d 902) (2000), disapproved in part on other grounds, Stryker v. State, 297 Ga. App. 493, 495, n. 1 (677 SE2d 680) (2009). A person has a constitutional right to walk away from some encounters with police. That right is founded on the Fourth Amendment to the Constitution of the United States. See Galindo-Eriza v. State, 306 Ga. App. 19, 22-23 (1) (701 SE2d 516) (2010). For that reason, our case law recognizes that we must construe Georgia’s obstruction statute in accordance with the United States Supreme Court’s construction of the Fourth Amendment.

The Supreme Court of the United States has construed the Fourth Amendment to the United States Constitution so as to set forth three tiers of police-citizen encounters. These encounters involve (1) communication between police and citizens involving no coercion or detention, (2) brief seizures that must be supported by reasonable suspicion, and (3) full-scale arrests that must be supported by probable cause.

(Citations and punctuation omitted.) Ewumi v. State, 315 Ga. App. 656, 658 (1) (727 SE2d 257) (2012). Therefore, when we analyze police-citizen encounters and determine whether defendants could lawfully leave those encounters, we follow Terry v. Ohio, 392 U. S. 1 (88 SCt 1868, 20 LE2d 889) (1968). For example, in State v. Dukes, 279 Ga. App. 247, 249 (630 SE2d 847) (2006), we applied the Terry analysis for two purposes: to determine whether the officers were engaged in lawful duties and also to determine whether their initial encounter with the defendant was a second-tier or first-tier encounter from which the defendant could lawfully flee. See also Black v. State, 281 Ga. App. 40, 43-44 (635 SE2d 568) (2006) (police-citizen encounter was a first-tier encounter as “clearly indicated” by police’s actions, so citizen could walk away, and arrest for obstruction was not justified and could not support subsequent search).

Under this analysis, if the encounter between Thomas and Sublett was a first-tier encounter — involving no detention but simply communication — then Thomas had the right to walk away. “[A] citizen’s ability to walk away from or otherwise avoid a police officer is the touchstone of a first-tier encounter. Even running from police during a first-tier encounter is wholly permissible.” (Citations and punctuation omitted.) Galindo-Eriza, supra, 306 Ga. App. at 22-23 (1).

If the encounter between Thomas and the officer was a second-tier encounter — involving a lawful attempt to seize Thomas briefly — then Thomas could not lawfully flee. But to initiate second-tier encounters, officers must make themselves clear, as by giving an order or command. Dukes, supra, 279 Ga. App. at 249 (because “there [was] no evidence that the officers’ presence was threatening, that any weapon was displayed, that any physical touching occurred or that any language indicated that [defendant]” was compelled to comply with the police requests, the initial contact between the officers and defendant did not amount to a seizure but was a first-tier encounter from which defendant could leave). See also Ewumi, supra, 315 Ga. App. at 663 (1) (a) (when “officer did not explain to [defendant] that he wished to speak with him as part of a pending investigation, instead only asking that [defendant] come over to answer some questions,” their encounter was a first-tier encounter which defendant “had every right to terminate.”); Black, supra, 281 Ga. App. at 43-44 (“police simply approached [citizen]... and asked if they could ‘talk to him for a second,’ none of which indicated [citizen] was not free to leave,” so encounter was first-tier and “whether or not the circumstances would have justified a second-tier detention [was] irrelevant and misleading”). Cf. Peters v. State, 242 Ga. App. 816, 817 (1) (531 SE2d 386) (2000) (“Because the officers verbally commanded [defendant] to stop and prevented him from entering his automobile,” their encounter was a second-tier encounter.) (citation omitted). Compare State v. Fisher, 293 Ga. App. 228, 231 (666 SE2d 594) (2008) (given officer’s testimony that at no point prior to defendant’s arrest had he ordered defendant to stop, defendant “was at most simply running from a first-tier encounter”). This is because if an officer had not made clear to a defendant that the defendant was compelled to obey, the defendant’s disobedience cannot have been knowing and wilful.

Here there was no evidence that Sublett used “language or tone of voice indicating compliance with the officer’s request might be compelled.” Dukes, supra, 279 Ga. App. at 249. Most requests are not commands. We recognized the distinction in Ewumi, supra, 315 Ga. App. at 660-661, 663 (1) (a). In that case, we concluded that there was “no probable cause to arrest for obstruction by flight when the flight was from a first-tier encounter that [defendant] had every right to terminate.” That holding, while founded in part on our determination that the evidence was insufficient to sustain a finding of a particularized and objective basis for suspicion, was “[additionally” founded on our holding that “the officer did not explain to [defendant] that he wished to speak with him as part of a pending investigation, instead only asking that [defendant] come over to answer some questions.” Id. at 663 (1) (a). The dissent’s citation to Couch v. State, 246 Ga. App. 106, 107 (2) (a) (539 SE2d 609) (2000), as support for the contention that Sublett’s request was a lawful command is unpersuasive. In Couch, we did not set out the words used by the officers or the circumstances of their encounter with the defendant.

As detailed above, the officer here did have a particularized and objective basis for suspecting Thomas of criminal activity. Had he commanded Thomas to stop, the encounter would have been elevated to the second tier. But as there was no evidence of a command, we must conclude that the encounter was a first-tier encounter and therefore that Thomas did not knowingly obstruct the officer. See Fisher, supra, 293 Ga. App. at 231. “[B]y exercising his right to leave a first-tier encounter, as a matter of law, [Thomas] did not hinder or obstruct the officer’s lawful discharge of his duties. . . .” Ewumi, supra, 315 Ga. App. at 663 (1) (a).

We agree with the dissent that the crucial issue is whether Sublett made it sufficiently clear to Thomas that compliance was mandatory. Contrary to the dissent we decide that issue in light of the Fourth Amendment principles enunciated in Terry, and we hold that the evidence is insufficient.

As in Porter v. State, 224 Ga. App. 276 (480 SE2d 291) (1997),

the evidence shows only that [Thomas] fled at the sight of the police. While the officer[ ] gave chase, there simply is no evidence that [he], in a show of lawful authority, called out to the suspect [ ] to halt and that the defendant failed to submit to that lawful authority. Consequently, the evidence is not sufficient under the standard of Jackson v. Virginia, supra, to sustain defendant’s misdemeanor conviction for obstruction of an officer. . . .

(Citation and punctuation omitted.) Id. at 280 (2).

The misdemeanor obstruction statute requires proof that a defendant’s obstruction be knowing and wilful. OCGA § 16-10-24 (a). Absent evidence of the officer’s clear command to stop, there was no evidence that Thomas knowingly and wilfully obstructed the officer by choosing not to comply with his request to “come here for a second.” Chaplin v. State, 141 Ga. App. 788, 790 (2) (234 SE2d 330) (1977) (flight, or attempted flight, before a command to halt did not support convictionfor obstruction of an officer). Cf. In the Interest of E. G., 286 Ga. App. 137, 139 (2) (648 SE2d 699) (2007) (rejecting juvenile’s claim that no evidence showed he had been told to stop and holding that “flight, or attempted flight, after a command to halt constitutes obstruction of an officer within the meaning of OCGA § 16-10-24”) (citation and punctuation omitted).

Sublett did not testify that he ordered Thomas to stop. The competent evidence introduced at trial established only that the officer said, “Hey, come here for a second,” and “Come here, sir, let me talk to you for a second.” Those are not commands. Those are requests. See Ewumi, supra, 315 Ga. App. at 663 (1) (a); Black, supra, 281 Ga. App. at 44. The assistant district attorney did ask questions that implied Sublett had commanded Thomas to stop. But those questions assumed a fact not in evidence, and questions that assume facts not in evidence do not themselves constitute competent evidence. State v. Gillette, 236 Ga. App. 571, 573 (512 SE2d 399) (1999). Specifically, the attorney asked Sublett, “What happened when Davin Thomas was told to stop by you?” Sublett responded, “He turned around. He turned around and started walking away.” The attorney later asked Sublett, “You’re absolutely sure the person you did chase that ignored your order to stop was the gentleman seated at this table here?” and Sublett responded, “Hundred percent.”

Contrary to the dissent we are not introducing a requirement that officers intone magic words. We have not prescribed any particular language, and we have reaffirmed the significance of other factors, such as the officer’s tone of voice.

3. The admission of character evidence.

In explaining how she compiled the photographic lineup, Detective Nicole Khaalis testified that when Sublett gave her the name of Thomas the day after the robbery, she “went to the Chatham County web site, Sheriff’s Department web site —.” Defense counsel immediately objected and moved for a mistrial on the ground that the reference to the sheriff’s department placed Thomas’s character into issue. The trial court instructed the jury to “disregard the last statement made by the witness about going to the Chatham County web site.” He asked the jurors whether they could disregard the reference, and the jurors answered yes. Defense counsel renewed his motion for mistrial. The court again instructed the jurors to “disregard any statement previously made by this witness about going to a web site by the Sheriff’s Department.”

The reference to the sheriff’s department did not place Thomas’s character into evidence. “[A] mere reference to the fact that defendant’s photograph was already in police records, without more, does not inject the defendant’s character into evidence.” Harris v. State, 191 Ga. App. 399 (381 SE2d 602) (1989). See also Williams v. State, 275 Ga. 622, 623 (2) (571 SE2d 385) (2002) (had defendant argued that his character was placed in evidence when top of photographic lineup display read “Clayton County Sheriff’s Office,” the argument would have had no merit).

And even if the reference had placed Thomas’s character into issue, the trial court did not abuse its discretion in refusing to grant a mistrial. “[Wjhether to grant a mistrial based upon improper character evidence rests within the trial court’s discretion.” (Citations and punctuation omitted.) Pearson v. State, 277 Ga. 813, 816 (4) (596 SE2d 582) (2004). The reference to the sheriff’s office

appears to have been inadvertent and was not the result of improper questioning by the [sjtate. Furthermore, the trial court’s curative instructions were promptly given and clearly informed the jury that it should disregard the improper testimony. Under these circumstances, we conclude that the trial court did not abuse its discretion by giving curative instructions, rather than declaring a mistrial.

Dukes v. State, 273 Ga. 890, 892-893 (3) (b) (548 SE2d 328) (2001). See also Russell v. State, 308 Ga. App. 328, 330 (707 SE2d 543) (2011) (holding that defendant was not entitled to a mistrial because of reference to his photograph being pulled from the website of the State Board of Pardons and Paroles, given that the reference was not purposefully elicited by the prosecutor, it did not identify any specific crime of which defendant had been convicted — although it implied a prior conviction — and trial court immediately gave a curative instruction).

Citing Jackson v. State, 302 Ga. App. 412 (691 SE2d 553) (2010), Thomas argues that the curative instructions were ineffective because they themselves referenced the sheriff’s department. In Jackson, however, two witnesses testified that the defendant had been incarcerated, although they had been cautioned not to do so, and their references were not in passing. Id. at 414. Although we observed that the court twice had to instruct the jury to disregard the testimony, using the same language as the witnesses, that was only one factor upon which we relied in holding that the defendant was entitled to a mistrial. Here, the reference was in passing and it did not imply that Thomas previously had been convicted of a crime. Thomas has not shown that his character was placed into issue or that the trial court abused its discretion in denying his motion for a mistrial.

Judgment affirmed in part and reversed in part.

Phipps, C. J., Ellington, P. J., and Doyle, P. J., concur. Barnes, P. J., Boggs and Branch, JJ., concur in part and dissent in part.

BOGGS, Judge,

concurring in part and dissenting in part.

I fully concur in Divisions 1, 2 (a) and 3 of the majority opinion, but respectfully dissent to Division 2 (b) because I believe that sufficient evidence supports Thomas’ misdemeanor obstruction conviction.

1. Pursuant to OCGA § 16-10-24 (a), “a person who knowingly and willfully obstructs or hinders any law enforcement officer in the lawful discharge of his official duties is guilty of a misdemeanor.” And, “[obstruction of the police in performing their lawful duty includes any act that directly interferes with, impedes, interrupts, or prevents or perverts the public administration of justice.” (Citation omitted.) Panzner v. State, 273 Ga. App. 868, 869 (616 SE2d 201) (2005). Refusing the lawful command of an officer will sustain a conviction under this statute. See, e.g., Arsenault v. State, 257 Ga. App. 456, 457 (1) (a) (571 SE2d 456) (2002). “Conduct constituting obstruction of law enforcement can include arguing with, refusing to cooperate with, lying to, or fleeing from police when they attempt to investigate or prevent a crime or try to effectuate an arrest.” Frasier v. State, 295 Ga. App. 596, 599-600 (2) (b) (672 SE2d 668) (2009). Whether a defendant’s “refusal to obey [a] police officer’s commands ‘had the effect of hindering or obstructing the officer [is] for the trier of fact to decide.’ ” (Citations, punctuation and footnote omitted.) Mayhew v. State, 299 Ga. App. 313, 317 (1) (b) (682 SE2d 594) (2009).

In this case, the officer was authorized to conduct a second-tier Terry detention of Thomas based upon evidence that Thomas closely matched the description of the robber and was seen outside the home of a person known to associate with the robber a few hours later. See Avery v. State, 313 Ga. App. 259, 260 (721 SE2d 202) (2011). Based upon this particularized and objective basis to suspect that Thomas was involved in the robbery, the officer told Thomas, “Hey, come here for a second” or “Come here, sir, let me talk to you for a second.” At the time the officer commanded Thomas to “come here,” he was wearing his full police uniform, his badge was visible, his marked patrol car was parked nearby, and he was approximately six feet away from Thomas.

Simply because we have previously concluded that flight following a police officer’s order to “stop” or “halt” supports an obstruction conviction does not mean that the absence of these magic words in a police officer’s command renders the evidence insufficient. Instead, all that is necessary is “a verbal command within earshot.” Cf. Phillips v. State, 269 Ga. App. 619, 632 (11) (604 SE2d 520) (2004). The word “come” is an imperative in the English language and is used to express a command. In this case, the officer’s use of the imperative “come” as opposed to “stop” or “halt” was reasonable when we examine the context in which it was given. The defendant was walking toward the officer and was about six feet away when the officer ordered him to “come here,” and the use of an alternative imperative such as “halt” or “stop” would not have been as apt a command for an officer seeking to speak with someone to investigate a crime. Additionally, we should not require an officer to use magic words during an unexpected encounter with a robbery suspect.

As we are required to construe the evidence in the light most favorable to the verdict, I would find that the jury was authorized to conclude from the evidence presented that the police officer issued a lawful command to Thomas and that Thomas obstructed the police officer in the lawful discharge of his official duties by fleeing. See Avery, supra. I therefore would affirm Thomas’ conviction for obstruction of a police officer. See Couch v. State, 246 Ga. App. 106, 107 (2) (a) (539 SE2d 609) (2000) (defendant’s failure to come to door at “request” of his probation officers and conduct in hiding in bushes outside sufficient to support obstruction conviction).

2.1 also disagree with the majority’s conclusion that the evidence was insufficient to support Thomas’ misdemeanor obstruction conviction because this was a first-tier Terry encounter.

In a first-tier encounter, police officers may approach citizens, ask for identification, and freely question the citizen without any basis or belief that the citizen is involved in criminal activity, as long as the officers do not detain the citizen or create the impression that the citizen may not leave. There is no threshold requirement and indeed the individual may refuse to answer or ignore the request and go on his way if he chooses, for this does not amount to any type of restraint and is not encompassed by the Fourth Amendment. So long as a reasonable person would feel free to disregard the police and go about his business, the encounter is consensual and no reasonable suspicion is required.

(Citation, punctuation and footnote omitted.) Thomas v. State, 301 Ga. App. 198, 200 (1) (687 SE2d 203) (2009). Stated differently, “[a]n officer may ... inquire about possible criminal or suspicious activity during a first-tier police-citizen encounter, without requiring articulable suspicion, ‘as long as the police do not convey a message that compliance with their requests is required.’ ” State v. Cauley, 282 Ga. App. 191, 197 (2) (638 SE2d 351) (2006). When reviewing a trial court’s ruling on a motion to suppress, “[w]e will sustain a trial court’s ruling that an encounter was a first-tier encounter so long as some evidence supports the facts underlying that determination.” Whitmore v. State, 289 Ga. App. 107, 108-109 (657 SE2d 1) (2008). We review a jury’s verdict of guilt under a similar any evidence standard. See Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).

In this case, the jury could have concluded that the officer’s command to “come here” would cause a reasonable person to believe that compliance was required. Walker v. State, 299 Ga. App. 788, 790 (1) (683 SE2d 867) (2009) (officer’s command of “hey, hold on guys, come here, come here” required particularized and objective basis for suspecting criminal activity); Odom v. State, 304 Ga. App. 615, 620 (5) (697 SE2d 289) (2010) (order to “come here” and “stop” required particularized and objective basis for suspecting criminal activity). Compare Owens v. State, 192 Ga. App. 671, 673 (1) (385 SE2d 761) (1989) (concluding encounter was first-tier based in part upon officer’s failure to “summon defendant to their presence”; officer merely “walked up beside defendant and identified themselves as law enforcement officers”).

3. Finally, our opinions in State v. Fisher, 293 Ga. App. 228 (666 SE2d 594) (2008), Porter v. State, 224 Ga. App. 276 (480 SE2d 291) (1997), Ewumi v. State, 315 Ga. App. 656 (727 SE2d 257) (2012), and State v. Dukes, 279 Ga. App. 247 (630 SE2d 847) (2006), cited by the majority, do not require a different result. In both Fisher and Porter, the police officers said nothing to the defendants, who merely fled after seeing the officer. Fisher, supra, 293 Ga. App. at 231; Porter, supra, 224 Ga. App. at 279-280 (2). In Ewumi, a case addressing whether a motion to suppress should have been granted, we concluded that the police officer did not have “an objective, articulable suspicion of criminal activity to warrant a second-tier detention” and Ewumi acted within his rights to avoid a first-tier encounter. 315 Ga. App. at 660-661 (1) and 662-663 (1) (a). Consequently, any discussion in that case of the defendant’s right to refuse the officer’s request to speak with him is nonbinding dicta that should not be applied here. Finally, in Dukes, we also concluded that the defendant was entitled to flee from a first-tier encounter because the police lacked “reasonable suspicion of criminal activity needed for a second-tier detention prior to [the defendant’s flight.” 279 Ga. App. at 249-250. As in Black, supra, the encounter was first-tier because the police officers approached the defendant and asked numerous questions beginning with the word “if,” indicating that compliance was not mandatory. Id. at 247-248.

Decided July 9, 2013.

Amy L. Ihrig, Jennifer R. Burns, for appellant.

Larry Chisolm, District Attorney, Meg E. Heap, Arvo H. Henifin, Assistant District Attorneys, for appellee.

For all of the above-stated reasons, I respectfully concur in part and dissent in part.

I am authorized to state that Presiding Judge Barnes and Judge Branch join in this writing.

       The assistant district attorney was clearly not attempting to mislead the jury. Rather his failure to introduce evidence of a lawful command appears to have been an oversight. Sublett’s written report — which was not admitted into evidence — indicates that he, “in full uniform stated in a loud manner ‘STOP’ and Thomas ran southbound from our location.” (Emphasis in original.) It appears that the assistant district attorney was under the misapprehension that he had elicited testimony in accord with that part of the report.

       See, e.g., In the Interest of E. C., 292 Ga. App. 798, 800 (665 SE2d 896) (2008); Sprinkles v. State, 227 Ga. App. 112, 113 (1) (488 SE2d 492) (1997).

       While the majority claims it is “not introducing a requirement that officers intone magic words,” the practical effect of its approach will be exactly that.

       As demonstrated by our opinion in Couch, the majority’s attempt to draw a distinction between a request and an order is a distinction without a difference. See also State v. Cauley, 282 Ga. App. 191, 197 (2) (638 SE2d 351) (2006) (proper issue is whether compliance with request is required).

       The majority’s reliance upon Black v. State, 281 Ga. App. 40 (635 SE2d 568) (2006), to conclude this case involves a first-tier encounter is misplaced. In Black, the police approached the defendant and “asked if they could talk to him for a second.” (Punctuation omitted; emphasis supplied.) Id. at 44 (1). The use of the word “if” does not indicate a command; the word “if” is a subordinate conjunction used to link independent and dependent clauses, not an imperative. Additionally, the officers approached the defendant instead of ordering the defendant to come to them.