text:
    A15A2207.
    BLAKE et al. v. KES, INC. et al.
    (783 SE2d 432)
   Doyle, Chief Judge.

This is the second appearance before this Court of this case, which arises from a tort claim by plaintiffs Carl and Yvonne Blake (collectively, “the plaintiffs”) following the death of their son in a day habilitation facility. In our previous opinion, we vacated the grant of summary judgment to defendants, KES, Inc., Sandra and Kenneth Browner, Mabel Sempler, and Nicole Wise (collectively, “KES”) and remanded with direction that the trial court consider a specific expert deposition and certain exhibits in deciding the summary judgment motion. Upon remand, after reconsideration of the motion, including those documents, the trial court again granted summary judgment to KES. The plaintiffs appeal, and for the reasons that follow, we vacate the trial court’s order and remand.

In order to prevail on a motion for summary judgment under OCGA § 9-11-56, the moving party must show that there exists no genuine issue of material fact, and that the undisputed facts, viewed in the light most favorable to the nonmoving party, demand judgment as a matter of law. Moreover, on appeal from the denial or grant of summary judgment the appellate court is to conduct a de novo review of the evidence to determine whether there exists a genuine issue of material fact, and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.

As set forth in our previous opinion, the facts in this case, so viewed,

show that Paul Blake was an adult diagnosed with several developmental disabilities from birth, including organic personality disorder, moderate intellectual disability, and partial complex seizures. By 2005, Paul resided with caretakers at a personal care home and generally spent his days at a KES day habilitation facility, where he received services pursuant to a contract between KES and his parents. In addition to his seizures, Paul had a history of leaving his assigned area without notice or permission, and he needed constant line-of-sight supervision, in addition to daily medication.
On September 22,2009, Paul arrived at the KES facility at approximately 9:00 a.m. and complained of dizziness and feeling poorly. Paul’s immediate care giver allowed him to rest without joining other activities. Around noon, while Paul was finishing his lunch, he asked if he could return to his assigned task of cleaning a computer desk, but he was asked to stay at the lunch table so he could finish eating and continue to rest. When the care giver was out of the room, Paul left the classroom and walked out of the building. Paul was not immediately followed, but staff began tracing his path thereafter.
At approximately 12:19 p.m., security camera footage shows that as Paul walked alongside a van parked at the side of the building, he faltered, leaned into the side of the van, and fell forward down to the ground. Approximately 22 seconds later, a KES worker arrived at Paul’s body, and despite the worker’s prompting, Paul remained unresponsive. Approximately 40 seconds later another worker, Mabel Semper, arrived and called into the building to advise the staff that they had located Paul. She had to make two calls to reach someone, and in the minutes that followed, Semper called 911 and remained on the line with the operator. During this time, a third employee, Kenneth Browner, arrived and checked Paul’s mouth for foreign objects, and Paul was observed to be breathing with a faint pulse. Other employees arrived, and they repositioned Paul to aid in his breathing, and they began CPR chest compressions as instructed by the 911 operator over speakerphone. There was a several minute time gap between Paul’s fall and the administration of CPR. Emergency personnel arrived minutes later, took over emergency care, and prepared him for transport. Treatment continued en route and at the hospital, but Paul was pronounced dead at the hospital soon thereafter. The cause of death listed by the emergency room physician was “cardiac arrest status post likely seizure.”
Based on Paul’s death, the Blakes sued KES, alleging claims for negligence, negligence per se, wrongful death, intentional infliction of emotional distress, breach of contract, and negligent supervision and training. KES answered, discovery ensued, and both parties moved for summary judgment. Following a hearing, the trial court granted summary judgment to KES and denied the Blakes’ motion. The trial court based its ruling, in part, on the exclusion of certain unauthenticated documents and depositions not filed 30 days before the hearing.

The plaintiffs appealed, arguing in part that the trial court erred by failing to consider an unsigned copy of the deposition of their expert, Dr. Anthony Kimani, and certain exhibits. This Court vacated the grant of summary judgment to KES and remanded the case with direction that the trial court consider the deposition of Dr. Kimani and the aforementioned exhibits.

Following remand, upon reconsideration of KES’s motion for summary judgment, including Dr. Kimani’s deposition and the plaintiffs’ exhibits, the trial court again granted summary judgment to KES on all claims. In so doing, the trial court concluded that there was no evidence in the record “sufficient to create a dispute that any action or inaction undertaken by [KES] before [Paul’s] collapse on September 22, 2009[,] caused his subsequent seizure or cardiac arrest, which was determined to be his cause of death.” The court also concluded that there was insufficient evidence to support the plaintiffs’ claim that KES’s failure to promptly administer CPR to Paul was a proximate cause of his death. In reaching the latter conclusion, the trial court found that although Dr. Kimani’s deposition testimony created a material issue of fact as to causation for wrongful death based on KES’s failure to render aid, he was not competent to testify as an expert as a matter of law, and the trial court therefore disregarded his testimony. This appeal followed.

The plaintiffs contend that the trial court erred by granting summary judgment to KES on the basis that there was insufficient evidence to support their claim that KES’s failure to promptly administer CPR to Paul was a proximate cause of his death, arguing in part that the trial court erred by again excluding the deposition testimony of Dr. Kimani.

Dr. Kimani testified at his deposition that KES failed to timely provide CPR to Paul and that had they done so, Paul’s “chance of a successful resuscitation was at least 50 percent.” The trial court concluded that this testimony “creates a material issue of fact as to causation for wrongful death for failure to render aid under Cowart, thereby precluding summary judgment for [KES] ” The trial court, however, disregarded Dr. Kimani’s testimony because he was not competent to testify as an expert pursuant to OCGA § 24-7-702 (c) (2) (D) (formerly OCGA § 24-9-67.1).

As the plaintiffs point out, KES did not challenge Dr. Kimani’s qualification to testify as an expert in this case. Instead, the trial court sua sponte determined that he did not meet the requirements of OCGA § 24-7-702 (c) (2) (D). Pretermitting whether the trial court erred by excluding his testimony in the absence of such a challenge, we conclude that the trial court erred by finding that Dr. Kimani had to meet the requirements of that Code section in order to testify as an expert in this case.

“We review a trial court’s decision concerning an expert’s qualifications under [OCGA § 24-7-702 and former] OCGA § 24-9-67.1 for an abuse of discretion.” Nevertheless, “in all appeals involving the construction of statutes, our review is conducted under a de novo standard.”

Because this case concerns the meaning [and application] of [OCGA § 24-7-702] (c) (2) ([D]), we begin with the familiar and settled principles that govern our consideration of the meaning of a statute. A statute draws its meaning, of course, from its text. When we read the statutory text, we must presume that the General Assembly meant what it said and said what it meant, and so, we must read the statutory text in its most natural and reasonable way, as an ordinary speaker of the English language would. The common and customary usages of the words are important, but so is their context. For context, we may look to the other provisions of the same statute, the structure and history of the whole statute, and the other law — constitutional, statutory, and common law alike — that forms the legal background of the statutory provision in question.

OCGA § 24-7-702 governs the admissibility of opinion testimony by expert witnesses in civil actions. The standard for the admissibility of such testimony is found in subsection (b):

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

Subsection (c) addresses the requirements for expert witnesses in professional malpractice actions:

Notwithstanding the provisions of subsection (b) of this Code section and any other provision of law which might be construed to the contrary, in professional malpractice actions, the opinions of an expert, who is otherwise qualified as to the acceptable standard of conduct of the professional whose conduct is at issue, shall be admissible only if, at the time the act or omission is alleged to have occurred, such expert:
(1) Was licensed by an appropriate regulatory agency to practice his or her profession in the state in which such expert was practicing or teaching in the profession at such time; and
(2) In the case of a medical malpractice action, had actual professional knowledge and experience in the area of practice or specialty in which the opinion is to be given as the result of having been regularly engaged in:
(A) The active practice of such area of specialty of his or her profession for at least three of the last five years, with sufficient frequency to establish an appropriate level of knowledge, as determined by the judge, in performing the procedure, diagnosing the condition, or rendering the treatment which is alleged to have been performed or rendered negligently by the defendant whose conduct is at issue; or
(B) The teaching of his or her profession for at least three of the last five years as an employed member of the faculty of an educational institution accredited in the teaching of such profession, with sufficient frequency to establish an appropriate level of knowledge, as determined by the judge, in teaching others how to perform the procedure, diagnose the condition, or render the treatment which is alleged to have been performed or rendered negligently by the defendant whose conduct is at issue; and
(C) Except as provided in subparagraph (D) of this paragraph:
(i) Is a member of the same profession;
(ii) Is a medical doctor testifying as to the standard of care of a defendant who is a doctor of osteopathy; or
(iii) Is a doctor of osteopathy testifying as to the standard of care of a defendant who is a medical doctor; and
(D) Notwithstanding any other provision of this Code section, an expert who is a physician and, as a result of having, during at least three of the last five years immediately preceding the time the act or omission is alleged to have occurred, supervised, taught, or instructed nurses, nurse practitioners, certified registered nurse anesthetists, nurse midwives, physician assistants, physical therapists, occupational therapists, or medical support staff, has knowledge of the standard of care of that health care provider under the circumstances at issue shall be competent to testify as to the standard of that health care provider. However, a nurse, nurse practitioner, certified registered nurse anesthetist, nurse midwife, physician assistant, physical therapist, occupational therapist, or medical support staff shall not be competent to testify as to the standard of care of a physician.

Based upon its reading of Dr. Kimani’s deposition transcript and curriculum vitae, the trial court found that he was not qualified to testify as an expert in this case because the record “affirmatively reñect[ed] that Dr. Kimani did not, for three of the five years immediately preceding [Paul’s] collapse in September 2009 supervise, teach, or instruct medical support staff such as [individual defendants Semper and Browner]” as required by OCGA § 24-7-702 (c) (2) (D). But, “OCGA § [24-7-702] (c) (2) by its plain terms applies only in cases of alleged medical malpractice.”

OCGA § 9-3-70 defines “the term ‘action for medical malpractice’ ” as

any claim for damages resulting from the death of or injury to any person arising out of: (1) [hjealth, medical, dental, or surgical service, diagnosis, prescription, treatment, or care rendered by a person authorized by law to perform such service or by any person acting under the supervision and control of the lawfully authorized person; or (2) [c]are or service rendered by any public or private hospital, nursing home, clinic, hospital authority, facility, or institution, or by any officer, agent, or employee thereof acting within the scope of his employment.

However,

[n]ot all injuries that occur in a hospital, nursing home or other health care facility are the result of professional negligence; they may be solely attributable to ordinary or simple negligence. For that reason, our appellate courts have consistently looked to the claim stated rather than the entity or person sued when determining whether an action is for professional malpractice or ordinary negligence. Simply because an alleged injury occurs in a hospital setting, a suit to recover for that injury is not necessarily a medical malpractice action. Likewise, not every suit which calls into question the conduct of one who happens to be a medical professional is a medical malpractice action. A professional malpractice action is merely a professional negligence action and calls into question the conduct of a professional in his area of expertise. Consequently, we must look to the substance of an action against a medical professional, hospital, or health care facility in determining whether the action is one for professional or simple negligence.

In this case, the plaintiffs do not allege medical malpractice, instead asserting claims for simple negligence and negligence per se, in addition to wrongful death, intentional infliction of emotional distress, breach of contract, and negligent supervision and training. Indeed, KES concedes on appeal that “this case is not a medical malpractice action.” And the record shows that the facility where Paul collapsed is a day facility that provides “education, life skills, job assistance,] and rehabilitation services to people with mental and physical disabilities.” The individual defendants listed in this case were nonmedical personnel and personal care givers. Under these particular circumstances, the plaintiffs were not required to establish that Dr. Kimani met the requirements of OCGA § 24-7-702 (c) (2) (D), which apply only to medical malpractice actions, in order to testify as an expert as to causation in this case. Accordingly, the trial court erred by excluding Dr. Kimani’s testimony on this basis.

Decided March 2, 2016.

Bobby C. Aniekwu, for appellants.

Leitner, Williams, Dooley & Napolitan, Robert A. Butler, Michael D. Newton, for appellees.

Therefore, we vacate the order granting summary judgment and remand for the trial court to consider the merits of KES’s summary judgment motion.

Judgment vacated and case remanded.

Phipps, P. J., and Boggs, J., concur.

       See Blake v. KES, Inc., 329 Ga. App. 742 (766 SE2d 138) (2014).

       (Citation omitted.) Benton v. Benton, 280 Ga. 468, 470 (629 SE2d 204) (2006).

       Blake, 329 Ga. App. at 743-744.

       See id. at 744 (1) (a).

       Id. at 746 (1) (b).

       See id. at 745-746 (1) (a), (b). This Court also affirmed the denial of the plaintiffs’ motion for summary judgment. See id. at 746 (2).

       (Punctuation omitted; emphasis in original.) We agree that there is no evidence in the record that any conduct on the part of KES caused Paul’s seizure or cardiac arrest.

        Cowart v. Widener, 287 Ga. 622 (697 SE2d 779) (2010).

       Certainly, trial judges are assigned a gatekeeping role with regard to expert testimony. See Daubert v. Merrell Dow Pharmaceuticals, 509 U. S. 579,589 (II) (B) (113 SCt 2786, 125 LE2d 469) (1993); Dubois v. Brantley, 297 Ga. 575, 580 (2) (775 SE2d 512) (2015). Nevertheless, “the proffering party bears the burden of presenting evidence of reliability in order to meet the standards of [former] OCGA § 24-9-67.1.” HNTB Georgia v. Hamilton-King, 287 Ga. 641, 646 (2) (697 SE2d 770) (2010). In this case, in the absence of a challenge to Dr. Kimani’s qualifications, the plaintiffs were not placed on notice that they needed to present such evidence before the trial court ruled, and they were denied the opportunity to request a hearing on this issue. See OCGA § 24-7-702 (d) (“Upon motion of a party, the court may hold a pretrial hearing to determine whether the witness qualifies as an expert and whether the expert’s testimony satisfies the requirements of subsections (a) and (b) of this Code section. Such hearing and ruling shall be completed no later than the final pretrial conference contemplated under Code Section 9-11-16.”).

        Hope v. Kranc, 304 Ga. App. 367, 370 (1) (696 SE2d 128) (2010).

        Hankla v. Postell, 293 Ga. 692, 693 (749 SE2d 726) (2013).

       (Citations and punctuation omitted.) Dubois, 297 Ga. at 579 (2).

       OCGA § 24-7-702 (b).

       (Emphasis supplied.) OCGA § 24-7-702 (e).

       (Punctuation omitted; emphasis in original.) The record does establish that Dr. Kimani was board-certified in internal medicine, with a specialty in pulmonary and critical care medicine, and he was certified in cardiac life support. He was the medical director of the respiratory therapy department of the Emory University geriatric center from 1994 through 1998, and he was in private practice from 1999 through the time of his 2013 deposition.

        Wilson v. McNeely, 307 Ga. App. 876, 879 (2) (705 SE2d 874) (2011).

       (Citations and punctuation omitted; emphasis in original.) Moore v. Louis Smith Mem. Hosp., 216 Ga. App. 299, 299-300 (454 SE2d 190) (1995).

       Although the trial court already has determined that Dr. Kimani’s deposition testimony created a material issue of fact as to causation for wrongful death based on KES’s failure to timely render aid, it has not, to date, ruled upon the multiple remaining bases for summary judgment as alleged by KES. Although we are mindful of the delay a remand will cause in this litigation, we decline to review rulings not made by the trial court in this case. See City of Gainesville v. Dodd, 275 Ga. 834,838-839 (573 SE2d 369) (2002) (upon appellate determination that the trial court relied on an erroneous legal theory or reasoning in reviewing an order on summary judgment involving “a variety of grounds advanced,” the appellate court may remand the case to the trial court “to issue rulings on grounds advanced, which could then serve as a basis for appellate review”).


source: Caselaw Access Project

author: DOYLE, Chief Judge.

license: Public Domain

text:
    A15A2268.
    NORTON et al. v. UNITED HEALTH SERVICES OF GEORGIA, INC. et al.
    (783 SE2d 437)
   DOYLE, Chief Judge.

Bernard Norton, by and through Kim Norton, sued United Health Services of Georgia, Inc.; UHS-Pruitt Holdings, Inc.; Pruitt-Health, Inc.; PruittHealth Care Management, Inc.; PruittHealthProperty Management, LLC; PruittHealth Consulting Services, Inc.; PruittHealth Therapy Services, Inc.; PruittHealth-Toccoa, LLC; and Tracy Ivester, NHA (collectively, “the defendants”) for the wrongful death of Bernard’s wife, Lola Norton, alleging, among other things, that negligence at a nursing home owned and/or operated by the defendants caused her death. The defendants moved to dismiss the complaint or, alternatively, to stay the proceedings and compel arbitration of all claims. The trial court granted the motion to stay and compel arbitration, and this Court granted Bernard’s application for interlocutory appeal. For the reasons that follow, we reverse the trial court’s order compelling arbitration.

The underlying facts are undisputed for purposes of this appeal. From April 25, 2013, until her death on April 18, 2014, Lola was a resident of PruittHealth-Toccoa, a facility owned, operated, and managed by defendants. While at the facility, Lola allegedly suffered injuries and harm, including falls, fractures, weight loss, and death. Bernard, by Kim Norton through power of attorney, and on behalf of Lola’s wrongful death beneficiaries, filed a complaint in superior court asserting several causes of action against the defendants, including negligence, medical malpractice, a statutory cause of action pursuant to Georgia’s Bill of Rights for Residents of Long-Term Care Facilities (OCGA § 31-8-100 et seq.), fraud, and wrongful death. According to the complaint, Lola’s injuries and death were the result of the defendants’ failure to provide adequate care and staff.

The defendants sought to compel arbitration based on the arbitration agreement. The trial court granted the motion to stay the proceedings, specifically finding that a wrongful death claim is derivative of a decedent’s right of action because the arbitration agreement was signed by someone with a general power of attorney, it is binding on all claims, including the wrongful death claims asserted by parties who were not signatories to the arbitration agreement. This interlocutory appeal followed.

At the time of Lola’s admission to the facility, Kim, as general power of attorney for Lola, signed an arbitration agreement, which states that claims subject to arbitration include

[a]ny and all claims or controversies arising out of or in any way relating to ... the Patient/Resident’s stay at, or the care or services provided by, the Healthcare center, or any acts or omissions in connection with such care or services . . . whether sounding in breach of contract, tort, or breach of statutory or regulatory duties.

The parties also expressly agreed that the arbitration agreement would apply to wrongful death beneficiaries:

Parties. This Agreement shall inure to the benefit of and bind the Patient/Resident and the Healthcare Center, their successors, assigns, and intended and incidental beneficiaries. . . . The term “Patient/Resident” shall include the Patient/Resident, his or her guardian, attorney-in-fact, agent, sponsor, representative, or any person whose claim is derived through or on behalf of the Patient/Resident, including, in addition to those already listed in this Paragraph, any parent, spouse, child, executor, administrator, heir, or survivor entitled to bring a wrongful death claim.

On appeal, Bernard argues that the arbitration agreement does not bind the wrongful death beneficiaries. We agree.

The question of arbitrability, i.e., whether an agreement creates a duty for the parties to arbitrate the particular grievance, is undeniably an issue for judicial determination. In reviewing the denial of a motion to compel arbitration, we determine whether the trial court was correct as a matter of law. . . . Arbitration in Georgia is a matter of contract. As such, the construction of an arbitration clause in a contract is subject to the ordinary rules of contract construction.

And when “determining whether a particular claim falls within the scope of the parties’ arbitration agreement, we focus on the factual allegations in the complaint rather than the legal causes of action asserted.”

Here, as Bernard impliedly concedes, Kim bound Lola and her estate to arbitrate, requiring arbitration of the five counts in the complaint alleging medical malpractice, negligence, fraud, and the violation of Georgia’s Bill of Rights for Residents in Long-Term Care Facilities. Bernard challenges, however, the enforceability of the arbitration clause for the wrongful death claims brought by him and on behalf of Lola’s beneficiaries.

As the defendants point out, it is well settled that in Georgia, “a suit for wrongful death is derivative to the decedent’s right of action. A survivor cannot recover for the decedent’s wrongful death if the decedent could not have recovered in... her own right.” But this does not end our analysis, which requires examination of the nature of a wrongful death claim.

[A] wrongful death claim ... is a claim belonging to [the survivors] of the [decedent] for the full value of the life of the decedent. It is not addressed to the injuries suffered by the decedent prior to death, but to the injury suffered by the beneficiaries resulting from the death of the decedent.

Thus, a wrongful death action presents a new, distinct, and separate cause of action, as evidenced by the fact that a wrongful death action has its own statute of limitation. Thus, although any substantive defenses that would have been good against the decedent are good against her beneficiaries in a wrongful death action, a procedural defense such as expiration of the statute of limitation may bar a claim by the decedent, but not a wrongful death action by her beneficiaries.

Decided March 2, 2016

McHugh Fuller Law Group, D. Bryant Chaffin, for appellants.

Arnall Golden Gregory, Jason E. Bring, J. Ryan Hood, Tyler L. Arnold, for appellees.

“Arbitration is a matter of consent, not coercion, and a party can be compelled to arbitrate only upon a showing that he entered into an enforceable agreement to arbitrate.” Here, there is no evidence that Lola’s wrongful death beneficiaries entered into an agreement to arbitrate their separate, distinct claims. And those claims never “belonged” to Lola, so neither she nor her power of attorney could bind the beneficiaries to arbitration with regard to such claims.

Thus, although litigation of any tort claims by Lola’s estate against the defendants is barred by the arbitration agreement, litigation of the wrongful death claims asserted by her beneficiaries is not so barred. Accordingly, the trial court erred by granting the defendants’ motion to compel arbitration with regard to those claims.

Judgment reversed.

Phipps, P. J., and Boggs, J., concur.

       The general power of attorney document appointed Kim as Lola’s “true and lawful attorney-in-fact and hereby delegate [d] to said attorney-in-fact full power and authority for [Lola] in [her] name, place[,] and stead to do and perform all things that [Lola] could do [herself] in the transaction of any business of [hers], on such terms and in such manner as said attorney-in-fact may deem appropriate.”

       The arbitration agreement contains a provision stating that the nursing home’s business activities substantially affect, relate to, and involve interstate commerce. . . . [Therefore], this Agreement shall be governed by and enforced under federal law, specifically, the Federal Arbitration Act [“FAA”] (9 USC §§ 1-6), as opposed to state arbitration law, notwithstanding any provision of state law or any other understanding or agreement between the parties. The parties specifically exclude the application of the Georgia Arbitration Code.

        In its order compelling arbitration, the trial court found that OCGA § 9-9-2 (c) (10), which exempts personal injury and wrongful death claims from arbitration is preempted, citing Marmet Health Care Center v. Brown,_U. S._(132 SCt 1201, 182 LE2d 42) (2012), and Davidson v. A. Q. Edwards & Sons, Inc., 324 Ga. App. 172, 173 (1) (a) (748 SE2d 300) (2013) (holding that “[ajlthough this Court has not previously addressed whether the FAA preempts OCGA § 9-9-2 (c) (10), insofar as it exempts from arbitration ‘personal bodily injury’ claims, we find no reason why there should not be preemption in this regard as well. The FAA preempts any state law that conflicts with its provisions or undermines the enforcement of private arbitration agreements”). The parties do not challenge this ruling on appeal.

       (Citation and punctuation omitted.) DBGS, LLC v. Kormanik, 333 Ga.App. 33,33-34(775 SE2d 283) (2015), quoting Order Homes v. Iverson, 300 Ga. App. 332, 332-333 (685 SE2d 304) (2009) and Wedemeyer v. Gulfstream Aerospace Corp., 324 Ga. App. 47, 50 (1) (749 SE2d 241) (2013).

       (Punctuation omitted.) DBGS, 333 Ga. App. at 35, quoting Genesco, Inc. v. T. Kakiuchi & Co., 815 F2d 840, 846 (II) (2nd Cir. 1987).

       We note however that neither Lola’s estate’s legal representative, executor, nor administrator is listed as a party plaintiff.

       (Punctuation and footnotes omitted.) Mowell v. Marks, 269 Ga. App. 147, 149 (603 SE2d 702) (2004), quoting Atlanta Cas. Co. v. Gordon, 266 Ga. App. 666, 667 (598 SE2d 70) (2004), and citing Turner v. Walker County, 200 Ga. App. 565, 566 (1) (408 SE2d 818) (1991). See also Smith v. Rowell, 176 Ga. App. 100 (335 SE2d 461) (1985).

       (Citation and punctuation omitted.) Pope v. Goodgame, 223 Ga. App. 672, 676 (6) (b) (478 SE2d 636) (1996), quoting OCGA § 51-4-2.

       See Vo v. Yamaha Golf Car Co., 267 Ga. App. 742, 744 (600 SE2d 594) (2004); Smith v. Mem. Med. Center, 208 Ga. App. 26, 27 (1) (430 SE2d 57) (1993) (“[A]n individual’s claim for wrongful death and an estate’s claim for the decedent’s pain and suffering are distinct causes of action. The plaintiff in his individual capacity and in his capacity as administrator are legally different persons.”) (citations omitted).

       See Clark v. Singer, 250 Ga. 470, 471 (298 SE2d 484) (1983), superseded on other grounds by statute as stated in Quinn v. Stafford, 257 Ga. 608 (362 SE2d 49) (1987) (the statute of limitation for a wrongful death action arising out of medical malpractice begins to run from the date of death, not from the date of the negligent act or omission of the practitioner).

       See Mowell, 269 Ga. App. at 149.

       See Clark, 250 Ga. at 471-472. Cf. Mowell, 269 Ga. App. at 150 (declining to address whether a procedural defense should be applied derivatively to bar a wrongful death action).

       (Citation and punctuation omitted.) Benedicto. State Farm Bank, 309 Ga.App. 133, 139 (2) (709 SE2d 314) (2011), quoting Volt Information Sciences v. Bd. of Trustees of Leland Stanford Junior Univ., 489 U. S. 468, 479 (109 SCt 1248, 103 LE2d 488) (1989). See also Life Care Centers of America v. Smith, 298 Ga. App. 739, 741 (1) (681 SE2d 182) (2009) (“[An arbitration] agreement is, at base, a contract, and the Federal Arbitration Act does not require parties to arbitrate when they have not agreed to do so.”) (punctuation omitted).


author: MERCIER, Judge.

text:
    A15A1807.
    MAYES v. THE STATE.
    (783 SE2d 659)
   MERCIER, Judge.

A jury found Juan Mayes guilty of rape, kidnapping, false imprisonment, and contributing to the delinquency of a minor. Mayes appeals, contending that the evidence presented at trial was insufficient to support the convictions for rape, kidnapping and false imprisonment. We disagree, and affirm.

Where an appellant challenges the sufficiency of the evidence 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.

Franklin v. State, 325 Ga. App. 728, 728-729 (754 SE2d 774) (2014) (citation, punctuation and footnote omitted).

Viewed in the light most favorable to the verdict, the evidence presented at trial included the following. J. B. testified that on December 8, 2004, Mayes approached her and her friend, S. M., and told them he could get them jobs at his car wash. Mayes arranged to pick them up later that evening to discuss employment. J. B. and S. M. were 15 years old.

Mayes picked J. B. and S. M. up at about 7:00 p.m. and drove them to his apartment. While in the car, Mayes gave J. B. a 12-ounce bottle of wine, which she shared with S. M. Inside the apartment, Mayes retrieved an open bottle of an alcoholic beverage from the kitchen and gave it to J. B., directing her to drink it. J. B. took a few sips and, about five minutes later, “everything [was] foggy.” J. B. saw the room spinning and she felt as though she could not move. She became confused and could only recall “bits and pieces” of what happened between about 8:00 p.m. and 12:30 a.m.

J. B. testified that she remembered that, around midnight, she and S. M. walked away from the apartment, though her legs felt like “rubber,” as if she were paralyzed, and she could barely walk. J. B. tried to withdraw money from a grocery store ATM so they could take a taxi, but she was unable to complete the transaction because she was confused and could not remember her password.

Mayes arrived and told J. B. and S. M. to get in his vehicle. They complied at first, but then S. M. got out of the car and J. B. followed her. Mayes grabbed J. B.’s arm and pulled her back in the car. J. B.’s next memory was of being at a Western Union location, where Mayes had her attempt to withdraw money using her ATM card. Mayes then drove J. B. back to his apartment. Still confused, J. B. lay down. J. B. later recalled having seen Mayes standing over her while she was lying down, and remembered saying “no, no” and “ ‘condom’ because I knew I couldn’t stop it because I felt like I couldn’t move.” When J. B. awoke at about 8:00 a.m., she was no longer wearing underwear, her tampon had been removed from her vagina, and her vagina was sore. She began walking to a bus stop. Mayes followed her in his car, approached her, and told her he would give her a ride home. J. B. got in the vehicle. Instead of taking J. B. home, however, Mayes drove around, making multiple stops. When J. B. asked Mayes and another passenger if she could get out of the car, they told her she could not. J. B. was afraid. Mayes eventually exited the car, at which time J. B. used his cell phone to call S. M.’s mother and tell her that Mayes was refusing to take her home and would not let her out of the car. When Mayes returned to the car, S. M.’s mother yelled at him on the phone. Mayes became nervous, said something about the police, then drove J. B. to a transit station and allowed her to exit the car. Believing she had been drugged and unsure of what else had happened, J. B. reported the incident to police and went to the hospital, where she underwent medical treatment, including an examination for sexual assault. A physician testified that the examination was consistent with her stated history, but that it did not indicate whether she had or had not been sexually assaulted.

S. M. also testified at trial. She stated that Mayes had given J. B. alcohol from an open bottle at the apartment, and that J. B. had consumed a small amount of that beverage. S. M. noticed that J. B. had become very intoxicated within minutes of consuming the beverage, and was crawling on the floor and speaking unintelligibly. J. B. and Mayes went into a bedroom. Later, S. M. knocked on the bedroom door. In response, Mayes exclaimed, “hold on,” and eventually opened the door, sweating. Mayes said he was “almost finished,” or words to that effect, then closed and locked the door. A while later, Mayes walked out of the bedroom shirtless, holding up a used condom. S. M. entered the bedroom and found J. B. asleep on the bed, wearing no clothes. S. M. told her to get dressed and helped her up and out of the apartment. The two walked to a store and tried to withdraw money from an ATM. Mayes arrived in a car, and offered to drive the girls home. They got into the car, but Mayes did not take them home. J. B. and S. M. exited the car; J. B. was barely able to walk or speak. Mayes followed J. B. and grabbed her arm, telling her to go with him. S. M. continued walking away by herself, and was picked up by her mother. When S. M. spoke to J. B. by phone later that morning, J. B. still sounded intoxicated.

1. Mayes contends that the evidence was insufficient to support the rape conviction because no witness could definitively testify whether penetration (or any sexual activity) occurred. The evidence was sufficient.

OCGA § 16-6-1 (a) provides:

(a) A person commits the offense of rape when he has carnal knowledge of: (1) A female forcibly and against her will[.]
Carnal knowledge in rape occurs when there is any penetration of the female sex organ by the male sex organ. . . .

“The necessary penetration need be only slight and may be proved by indirect or circumstantial evidence.” Winkfield v. State, 275 Ga. App. 456, 458 (2) (620 SE2d 670) (2005) (citation omitted); Payne v. State, 231 Ga. 755 (1) (204 SE2d 128) (1974). Notably, “[e]vidence of a victim’s inability to give consent can be used to impute the element of force in certain sexual abuse cases involving a victim who is intoxicated, drugged, or mentally incompetent.” Melton v. State, 282 Ga. App. 685, 691 (2) (c) (639 SE2d 411) (2006) (citation omitted). And, “the same evidence of penile penetration could be used to prove . . . force when the victim was unable to consent due to mental incompetence or severe intoxication.” Id. at 692 (2) (c).

“When the jury is authorized to find that the evidence, though circumstantial, excluded every reasonable hypothesis except the defendant’s guilt, the verdict will not be disturbed unless the verdict is insupportable as a matter of law.” Joyner v. State, 267 Ga. App. 309, 310 (1) (599 SE2d 286) (2004) (citation omitted).

The circumstantial evidence outlined above (including Mayes’s remark from inside the bedroom that he was “almost finished,” his display of a used condom upon emerging from the bedroom, and evidence that J. B.’s underwear and tampon had been removed and her vagina was sore) was sufficient for a rational trier of fact to find beyond a reasonable doubt that penetration had occurred; the evidence presented was also sufficient to show force and lack of consent, as required by the rape statute. See generally Wightman v. State, 289 Ga. App. 225, 227 (1) (656 SE2d 563) (2008); Winkfield, 275 Ga. App. at 458-459 (2); Page v. State, 271 Ga. App. 541 (610 SE2d 171) (2005); Demetrios v. State, 246 Ga. App. 506, 507 (1) (a) (541 SE2d 83) (2000) (“When the victim is physically or mentally unable to give consent to the act, as when she is intoxicated, drugged, or mentally incompetent, the requirement of force is found in the constructive force, that is, in the use of such force as is necessary to effect the penetration made by the defendant.”). The enumerated error is without merit.

2. Mayes contends that the evidence was not sufficient to support the kidnapping conviction because the evidence showed that J. B. had entered Mayes’s car willingly, that Mayes did not tell J. B. that he would not take her home, and that she did not demand to either get out of the car or to be immediately taken home. The evidence was sufficient.

“A person commits the offense of kidnapping when such person abducts or steals away another person without lawful authority or warrant and holds such other person against his or her will.” OCGA § 16-5-40 (a).

Here, there was testimony that Mayes grabbed J. B.’s arm when she tried to walk away from his car, pulled her back in the car, and then drove her to his apartment and that she was afraid, confused, and had difficulty walking and speaking. We have held that a jury was authorized to conclude that a person was abducted within the meaning of the kidnapping statute when he had been induced by persuasion, enticement, or fraud to get back in an assailant’s car so he could get medical assistance for his injuries, and that he had been held against his-will because his injuries had rendered him unable to make a voluntary choice to remain with his abductor. Wright v. State, 209 Ga. App. 128, 129 (2) (433 SE2d 99) (1993) (overruled on other grounds in Mullins v. State, 270 Ga. 450, 451 (2) (511 SE2d 165) (1999)). Further, even if J. B. had willingly entered the vehicle when Mayes first told her to get in the car, a jury was authorized to find — based on the subsequent events — an abduction and holding sufficient to sustain a kidnapping conviction. See Wright, 209 Ga. App. at 129 (2); Winfrey v. State, 286 Ga. App. 450, 452 (1) (a) (649 SE2d 561) (2007). “[A]ny evidentiary weaknesses, conflicts, or inconsistencies were for the jury to resolve. . . . Where as here, there was sufficient evidence ... to support each fact necessary to make out the state’s case, we must uphold the jury’s verdict.” Franklin, 325 Ga. App. at 732 (footnote omitted).

3. Mayes challenges the sufficiency of the evidence to support the false imprisonment conviction, asserting that there was no evidence that J. B. had been confined, arrested, or detained against her will. We disagree.

A person commits the offense of false imprisonment when, in violation of the personal liberty of another person, he arrests, confines or detains such person without legal authority. OCGA § 16-5-41 (a).

As detailed above, there was evidence showing that false imprisonment occurred after the kidnapping was accomplished. When J. B. walked away from the apartment in the morning, Mayes approached her in his car and promised to drive her home. Still afraid, “mildly intoxicated,” and not knowing where she was or how she would get home, J. B. got into the car. But instead of taking J. B. home as promised, Mayes made multiple stops, during which he stayed in or near the car. When J. B. asked to get out of the car, she was not allowed to do so. Mayes did not allow her to leave until S. M.’s mother threatened to call the police. Accordingly, Mayes’s challenge to the sufficiency of the evidence to prove the crime of false imprisonment is without merit. See generally Scott v. State, 268 Ga. App. 889, 891 (a) (602 SE2d 893) (2004); Johnson v. State, 195 Ga. App. 723, 724 (2), n. 1 (394 SE2d 586) (1990).

Judgment affirmed.

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

Decided March 3, 2016.

Brock Law, Chaunda F. Brock, for appellant.

Paul L. Howard, Jr., District Attorney, Joshua D. Morrison, Assistant District Attorney, for appellee.


author: McFADDEN, Judge.

text:
    A15A1848.
    WILSON v. THE STATE.
    (783 SE2d 662)
   McFADDEN, Judge.

Kevin Wilson appeals from his conviction for aggravated assault against William Cade. He challenges the sufficiency of the evidence, but it was sufficient to support his conviction. He argues that the trial court erred in admitting evidence of an earlier altercation he had with Cade’s sister (who was Wilson’s former girlfriend); but we hold that the trial court did not abuse his discretion in admitting that evidence as other act evidence under OCGA § 24-4-404 (b) (“Rule 404 (b)”), and consequently we do not reach the trial court’s alternative ground for admitting it. Finally Wilson argues that he received ineffective assistance because his trial counsel objected to only one of the two grounds upon which the trial court admitted that evidence; but as it was admissible, Wilson’s trial counsel was not ineffective in failing to object to it on an alternative ground. We therefore affirm.

1. 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.” Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979) (citation omitted; emphasis in original). “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.” Miller v. State, 273 Ga. 831, 832 (546 SE2d 524) (2001) (citations and punctuation omitted).

Viewed in this light, the evidence showed that Wilson had been in a relationship with Cade’s sister but the two had broken up in October 2011. Nevertheless, Wilson continued to share an apartment with his former girlfriend, their young child, and Cade, among others. On the morning of January 4, 2012, Wilson intercepted his former girlfriend as she was leaving the apartment with the child in her arms, approached her holding an open pocketknife with a six-inch blade, pointed the knife at her, backed her and the child into a corner outside the apartment, threatened to cut her, and demanded that she give him the child. Wilson took the child into the apartment, and his former girlfriend called the police. She did not press charges against Wilson but told the police and Wilson that she wanted him out of the apartment. She also told Wilson that she would pack his belongings for him to retrieve.

About 2:00 the next morning, Wilson returned to the apartment to retrieve his belongings, which had been placed near the front door. He entered the bedroom he had shared with his former girlfriend and began throwing things about and destroying her personal property. Cade entered the room, and Wilson approached him, cursing, talking about having pulled a knife on Cade’s sister, and “getting more and more .. . hyped up.” Cade told Wilson to leave, and the two began to argue. Wilson reached for his knife and charged at Cade, who ran into another room; Wilson then grabbed Cade around the waist and the two began fighting. During the fight, Wilson stabbed Cade five times with the knife.

This evidence authorized the jury to find that Wilson committed aggravated assault against Cade. See OCGA § 16-5-21 (b) (2) (“A person commits the offense of aggravated assault when he or she assaults . . . [w]ith a deadly weapon or with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury.”). Although Wilson challenges the credibility of some of the state’s witnesses regarding his fight with Cade, it was for the jury, rather than this court, to determine those witnesses’ credibility and resolve any conflicts or inconsistencies in the evidence. Vega v. State, 285 Ga. 32, 33 (1) (673 SE2d 223) (2009).

2. Admission of “other acts” evidence under Rule 404 (b).

Pursuant to Rule 404 (b), the trial court permitted the state to introduce evidence of the earlier altercation between Wilson and his former girlfriend for purposes other than to show Wilson’s character. Wilson argues that this was error. We disagree.

“Rule 404 (b) permits the admission in cases of all sorts of evidence of ‘other acts’ relevant to any fact of consequence to the determination of the action, so long as the evidence is not offered to prove ‘the character of a person in order to show action in conformity therewith.’ ” State v. Frost, 297 Ga. 296, 300 (773 SE2d 700) (2015) (footnote omitted). It is “an evidentiary rule of inclusion which contains a non-exhaustive list of purposes other than bad character for which other acts evidence is deemed relevant and may be properly offered into evidence.” State v. Jones, 297 Ga. 156, 159 (2) (773 SE2d 170) (2015) (citations omitted).

Georgia employs a three-prong test to determine the admissibility of evidence of other acts under Rule 404 (b): “(1) the evidence must be relevant to an issue other than defendant’s character; (2) the probative value must not be substantially outweighed by its undue prejudice; (3) the government must offer sufficient proof so that the jury could find that defendant committed the act.” Bradshaw v. State, 296 Ga. 650, 656 (3) (769 SE2d 892) (2015) (citation and footnote omitted). As detailed below, the trial court did not abuse his discretion in applying this test and admitting the other acts evidence. See Curry v. State, 330 Ga. App. 610, 616 (1) (768 SE2d 791) (2015). (Because Wilson failed to provide the transcript of the Rule 404 (b) hearing in the record on appeal, our review is limited to the trial record and the transcript of the hearing on the motion for new trial, at which the Rule 404 (b) ruling was discussed. See Smith v. State, 304 Ga. App. 708, 709 (1) (699 SE2d 742) (2010).)

(a) Prong one: relevance to an issue other than character. The trial court admitted the evidence of Wilson’s altercation with his former girlfriend for the purpose of proving his criminal intent, among other purposes. Wilson argues that this purpose was improper because aggravated assault is a crime of general intent. See generally Cline v. State, 199 Ga. App. 532, 533 (2) (405 SE2d 524) (1991) (“aggravated assault committed by means of a deadly or offensive weapon . . . requires only a general criminal intent”) (citations omitted). But our Supreme Court has held that “other acts evidence may be relevant under Rule 404 (b), without regard to whether the charged crime is one requiring a specific or general intent, when it is offered for the permissible purpose of showing a criminal defendant’s intent[.]” Jones, 297 Ga. at 162 (2) (citation omitted). And Wilson’s counsel argued to the jury at trial that Wilson’s lack of criminal intent was “the biggest thing” in the case.

In this case, the state of mind required for the charged offense (aggravated assault against Cade) was the same as the state of mind required for the uncharged act against Wilson’s former girlfriend (an act that also could constitute an aggravated assault). In both instances, Wilson intentionally pulled a knife during an altercation. See generally Dunagan v. State, 269 Ga. 590, 594 (2) (b) (502 SE2d 726) (1998) (offense of aggravated assault can require “criminal intent to commit the acts which caused the victim to be reasonably apprehensive of receiving a violent injury”). “[Wjhere the state of mind required for the charged and extrinsic offenses is the same, the first prong of the Rule 404 (b) test [relevance] is satisfied.” Bradshaw, 296 Ga. at 657 (3). Accord Silvey v. State, 335 Ga. App. 383, 386 (1) (a) (780 SE2d 708) (2015). “Having determined that the evidence was admissible as to intent..., we need not examine whether it was also admissible on the [other issues for which the trial court admitted it].” Bradshaw, 296 Ga. at 657 (3), n. 5 (citation omitted).

(b) Prong two: undue prejudice does not substantially outweigh probative value. Wilson argues that the evidence of his earlier altercation with his former girlfriend should have been excluded on the ground that, under OCGA § 24-4-403 (“Rule 403”), “[Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.” But “[i]t is only unfair prejudice, substantially outweighing probative value, which permits exclusion of relevant matter under Rule 403.” United States v. Terzado-Madruga, 897 F2d 1099, 1119 (B) (11th Cir. 1990) (citation and punctuation omitted; emphasis in original), cited by Bradshaw, 296 Ga. at 658 (3). “Rule 403 is an extraordinary remedy that must be used sparingly because it results in the exclusion of concededly probative evidence.” United States v. US Infrastructure, 576 F3d 1195, 1211 (II) (B) (2) (11th Cir. 2009) (citation omitted). Even in close cases, “the balance ... is struck in favor of admissibility in determining whether its probative value is outweighed by the danger of unfair prejudice.” Terzado-Madruga, 897 F2d at 1119 (B). Although Wilson argues to this court that the probative value of evidence of the earlier altercation was “low or non-existent,” the evidence was probative of the issue of his intent, which, as mentioned above, his trial counsel argued to the jury was “the biggest thing” in the case. The trial court did not abuse his discretion in balancing the other act’s probative value against its prejudicial effect. See Bradshaw, 296 Ga. at 657 (3).

(c) Prong three: proof that Wilson committed the other act. Although Wilson argues that the evidence “was insufficient to show that this prior bad act even occurred at all,” his former girlfriend testified that Wilson had accosted and threatened her with the knife, and another person testified to witnessing that altercation. This evidence was sufficient for the jury to find by a preponderance of the evidence that the other act was committed, thereby satisfying the third prong required for the admission of the other act evidence under Rule 404 (b). Bradshaw, 296 Ga. at 658 (3).

3. Admission of “other acts” evidence on alternative ground.

Wilson argues that the trial court erred in admitting the evidence of his altercation with his former girlfriend on an alternative ground — that the altercation was intrinsic to the subsequent aggravated assault against Cade. See generally United States v. Wilson, 788 F3d 1298, 1313-1314 (II) (A) (11th Cir. 2015) (discussing admissibility of intrinsic evidence). Given our determination that the trial court did not err in admitting the evidence under Rule 404 (b), we need not address this claim of error.

Decided March 3, 2016.

Angela B. Dillon, for appellant.

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

4. Ineffective assistance of counsel.

Wilson argues that his trial counsel was ineffective in failing to challenge admissibility of the evidence of his altercation with his former girlfriend as intrinsic evidence. We find no merit to Wilson’s argument because, as discussed above, the evidence was admissible on another ground, under Rule 404 (b). See Daughtie v. State, 297 Ga. 261, 266 (4) (773 SE2d 263) (2015) (counsel is not obligated to object to admissible evidence).

Judgment affirmed.

Ellington, P. J., and Mercier, J., concur.


author: MILLER, Presiding Judge.

text:
    A15A1928.
    A15A1929.
    WILLIAMS v. THE STATE. ESPINOZA v. THE STATE.
    (783 SE2d 666)
   MILLER, Presiding Judge.

Following a joint jury trial, Stephen Williams and Felix Espinoza were convicted of cocaine trafficking (OCGA § 16-13-31 (a) (1) (2011)). Williams and Espinoza appeal from the denial of their motions for new trial, contending that the trial court erred in denying their motions to suppress and in charging the jury. Espinoza also contends that the trial evidence was insufficient to sustain his conviction. For the reasons that follow, we affirm.

Viewed in the light most favorable to Williams’ and Espinoza’s convictions, the evidence shows that, on July 9, 2010, based on information from a confidential informant, a DeKalb County sergeant set up an undercover surveillance at an apartment complex off Buford Highway in DeKalb County. At approximately 5:00 p.m., Williams and Espinoza drove into the apartment complex in a blue 2005 Ford F-250, and pulled up toward an apartment in Building E.

Williams and Espinoza entered the building and then walked back out together. When they exited the building, Williams and Espinoza were talking back and forth, and Williams was carrying a black and grey Ralph Lauren duffle bag, which he did not have when he entered. Williams and Espinoza returned to the F-250, drove away from the apartment complex and proceeded onto 1-85 North. Shortly thereafter, a detective saw the driver of the F-250 make an improper lane change on 1-85 in DeKalb County and initiated a stop of that vehicle. Williams was driving, and Espinoza was sitting in the front passenger seat.

The detective approached the vehicle and asked Williams for his driver’s license. Williams handed the detective a temporary paper license without a picture. Williams then told the detective that he was a truck driver from McDonough and he was “up here” to pick up a friend to take him to work. Espinoza told the detective that he had just gotten off one job and was on his way to his second job to lay concrete. The detective then noticed that Espinoza was well dressed, wearing expensive loafers, had manicured hands and did not appear to be someone in the construction business who was on his way to lay concrete.

The detective asked Williams and Espinoza to step out of the vehicle. The detective then asked Williams to step in front of the vehicle and told him that he needed a picture ID in order to confirm Williams’ identity. While Williams looked through his wallet for another form of identification, he told the detective that he and Espinoza were on their way to purchase liquor at the liquor store on Highway 78. Williams’ statement caught the detective off guard so he asked Williams why they could not buy alcohol at one of the stores in the nearby vicinity of Buford Highway. Williams’ demeanor then changed from calm to nervous, and he started rubbing his hand, looking around, and pacing. The change in Williams’ demeanor prompted the detective to pat Williams down.

During the pat-down, the detective noticed a large bulge in Williams’ left pocket. When the detective commented on the bulge, Williams pulled approximately $15,000 in cash out of his pocket. Williams then produced a picture identification, which the detective compared to the temporary license.

The detective returned Williams’ identification and then asked Espinoza for his identification. When Espinoza produced a fake Georgia ID card, the detective asked Williams if he knew Espinoza, and Williams responded that he did not. The detective was concerned about Williams’ and Espinoza’s conflicting stories, as well as Espinoza’s fake identification, so he asked Williams for consent to search the vehicle. When Williams hesitated, the detective got his K-9 out of his patrol vehicle and conducted an open-air search. The K-9 alerted to the rear passenger side of the vehicle where the detective saw the black and grey Ralph Lauren duffle bag sitting in the middle of the back seat floorboard. The detective searched the bag and found three kilos of 70 percent pure cocaine with a street value of approximately $81,000 to $96,000.

1. Williams and Espinoza contend that the trial court erred in denying their motions to suppress the evidence found during the search of the F-250, which Williams was driving. Specifically, Williams and Espinoza argue that the detective impermissibly prolonged the stop beyond the time required to complete his investigation of the traffic offense. We disagree.

First, when a motion to suppress is heard by the trial judge, that judge sits as the trier of facts. The trial judge hears the evidence, and his findings based on conflicting evidence are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support it. Second, the trial court’s decision with regard to questions of fact and credibility must be accepted unless clearly erroneous. Third, the reviewing court must construe the evidence most favorably to the upholding of the trial court’s findings and judgment.

(Citation and footnote omitted.) Miller v. State, 288 Ga. 286 (1) (702 SE2d 888) (2010); see also Brown v. State, 293 Ga. 787, 803 (3) (b) (2) (750 SE2d 148) (2013). “These corollaries apply to the extent that the material facts are disputed.” Hughes v. State, 296 Ga. 744, 746, n. 4 (770 SE2d 636) (2015). “[T]he State has the burden of proving the legality of a search and seizure pursuant to a defendant’s motion to suppress.” State v. Haddock, 235 Ga. App. 726, 728 (510 SE2d 561) (1998).

[A] seizure that is lawful at its inception can violate the Fourth Amendment if its manner of execution unreasonably infringes interests protected by the Constitution. A seizure that is justified solely by the interest in issuing a [traffic] ticket to the driver can become unlawful if it is prolonged beyond the time reasonably required to complete that mission. Thus, the tolerable duration of police inquiries in the traffic-stop context is determined by the seizure’s mission — to address the traffic violation that warranted the stop, and attend to related safety concerns.

(Citations, punctuation and footnote omitted.) State v. Allen, 298 Ga. 1, 4-5 (2) (a) (779 SE2d 248) (2015).

Conducting an open-air dog sniff around a vehicle during a traffic stop does not in and of itself violate the Fourth Amendment. See Allen, supra, 298 Ga. at 5 (2) (a). Like any other investigation unrelated to the traffic stop, an open-air dog sniff can be lawfully done as long as it does not prolong the stop for any amount of time. See id.; see also Rodriguez v. United States,_U. S._(135 SCt 1609, 1615, 191 LE2d 492) (2015). Accordingly, in this case, we must determine whether the open-air dog sniff that resulted in probable cause to detain Williams and Espinoza and to search their vehicle “was done while some other task related to the mission of the traffic stop was still being conducted, so that the sniff did not add any time to the stop.” Allen, supra, 298 Ga. at 5 (2) (a).

Tasks related to the mission of the traffic stop include “checking the driver’s license, determining whether there are outstanding warrants against the driver, and inspecting the automobile’s registration and proof of insurance.” (Citation omitted.) Allen, supra, 298 Ga. at 6 (2) (b). Additionally, during a traffic stop, the investigating officer may order the occupants out of the vehicle and ask them for identification. See id. at 8 (2) (b), (c).

Here, the evidence shows that prior to conducting the open-air sniff, the detective was conducting the ordinary activities of a traffic stop — he approached the F-250, questioned Williams about the traffic violation, and asked for both Williams’ and Espinoza’s identification. See Allen, supra, 298 Ga. at 8 (2) (b)-(c). The detective conducted the open-air sniff right after Espinoza produced a fake Georgia ID, and the open-air sniff took only about five minutes to complete. Moreover, at the time of the open-air sniff, the detective was still confirming Williams’ and Espinoza’s identities. Under these circumstances, the open-air sniff did not lengthen the stop. See Allen, supra, 298 Ga. at 5 (2) (a); Rodriguez, supra, 135 SCt at 1618 (II). Consequently, the trial court properly denied Williams’ and Espinoza’s motions to suppress.

2. Espinoza contends that the evidence was insufficient to sustain his conviction for cocaine trafficking. We do not agree.

Under Georgia law, any person “who is in possession of 28 grams or more of cocaine or of any mixture with a purity of 10 percent or more of cocaine . . . commits the felony offense of trafficking in cocaine[.]” OCGA § 16-13-31 (a) (1). Evidence that a defendant had joint constructive possession of contraband with another will sustain a conviction. See Martinez v. State, 303 Ga. App. 71, 73 (1) (692 SE2d 737) (2010). Moreover, one who intentionally aids or abets in the commission of a crime is a party to it. OCGA § 16-2-20 (b) (3).

It is true [that] mere presence at the scene of a crime, even coupled with knowledge and approval, is insufficient to convict one of being a party. However, presence, companionship, and conduct before and after the offense are circumstances from which one’s participation in the criminal intent may be inferred. A person will not be presumed to act with criminal intention, but the trier of facts may find such intention upon consideration of the words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted. If the totality of circumstantial evidence is sufficient to connect the defendant with the possession ofthe drugs, the conviction will be sustained[.]

(Citations and punctuation omitted.) Martinez, supra, 303 Ga. App. at 73-74 (1).

Here, regardless of whether Espinoza had physical possession of the cocaine, the evidence as set forth above authorized the jury to find that he actively participated in, and was a party to, the trafficking of the three kilos of 70 percent pure cocaine that the detective found in the duffle bag which was in the back seat of the F-250. See Dukes v. State, 186 Ga. App. 815 (369 SE2d 259) (1988) (“actual possession required by OCGA § 16-13-31 to authorize a conviction for trafficking refers not merely to physical custody but refers to actual active participation in the possession of such substances so as to be a party to the crime of trafficking”) (citation and punctuation omitted); Martinez, supra, 303 Ga. App. at 74 (1) (given defendant’s conduct and surrounding circumstances, jury was authorized to find him guilty as a party to the crime of cocaine trafficking). Consequently, we affirm Espinoza’s conviction for cocaine trafficking.

3. Williams and Espinoza contend that the trial court erred in charging the jury.

(a) Jury Charge on Probable Cause

(i) Williams and Espinoza argue that the trial court erred in charging the jury on probable cause. We disagree.

In evaluating jury charges, this Court looks to the charge as a whole in determining whether there is error. Sapp v. State, 290 Ga. 247, 251 (2) (719 SE2d 434) (2011). Here, the trial court gave the following jury charge on probable cause:

During a lawful traffic stop an officer is permitted to use a drug sniffing dog to conduct an open-air search around the exterior of the vehicle. If the drug sniffing dog alerts, the officer has probable cause and is authorized to search the vehicle. Where there is probable cause to search a vehicle for contraband, an officer is permitted to search bags, containers, and packages within the vehicle.

The trial court also charged the jury on the presumption of innocence, the State’s burden of proof, knowledge, mere presence, mere association, and party to a crime. Given the charge as a whole, and the overwhelming evidence which showed that both Williams and Espinoza actively participated in the crime of cocaine trafficking, it is highly probable that the trial court’s charge on probable cause did not contribute to the jury’s verdict. Edwards v. State, 264 Ga. 131, 133 (442 SE2d 444) (1994). Accordingly, the trial court did not reversibly err in charging the jury on probable cause. Stacey v. State, 292 Ga. 838, 841 (2) (741 SE2d 881) (2013).

(ii) Williams and Espinoza also argue that the trial court’s charge on probable cause as set forth above constituted an impermissible comment on the evidence in violation of OCGA § 17-8-57. We disagree.

“Pursuant to OCGA § 17-8-57, it is error for any judge in any criminal case, during its progress or in his charge to the jury, to express or intimate his opinion as to what has or has not been proved or as to the guilt of the accused.” (Punctuation and footnote omitted.) McLean v. State, 297 Ga. 81, 82 (2) (772 SE2d 685) (2015). Here, viewing the charge as a whole, we conclude that the trial court’s charge as given did not violate OCGA § 17-8-57, because the charge did not assume certain facts or intimate to the jury what the trial court believed the evidence to be. See Vergara v. State, 287 Ga. 194, 197 (2) (695 SE2d 215) (2010) (trial court did not impermissibly comment on the evidence in charging the jury that “an armed robbery may be committed by killing the victim first and then taking the property”) (punctuation omitted).

Decided March 3, 2016.

Brock Law, Chaunda F. Brock, for appellant (case no. A15A1928).

Bethany A. Lindstrom, Natalie E. Stephenson, for appellant (case no. A15A1929).

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

(b) Espinoza contends that the trial court erred in failing to give his requested charge on knowledge of the presence of and activity surrounding illegal drugs. We discern no error.

Here, as given, the trial court’s pattern charges on knowledge, mere presence, and party to a crime substantially covered the correct principles of law. Accordingly, the trial court did not abuse its discretion in refusing to give the exact language of Espinoza’s requested charge. See Francis v. State, 296 Ga. 190, 194 (2) (766 SE2d 52) (2014). Moreover, as set forth above, any error in failing to give Espinoza’s requested charge was harmless in light of the overwhelming evidence showing that he actively participated in the crime of cocaine trafficking. Edwards, supra, 264 Ga. at 133. Accordingly, we affirm Williams’ and Espinoza’s convictions.

Judgment affirmed.

Andrews, P. J., concurs. Branch, J., concurs fully as to Divisions 1 and 2 and in judgment only as to Division 3.

       Williams was also convicted of making an improper lane change.

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

       The detective was also involved in setting up the undercover surveillance of the apartment complex.

       A backup officer stood with Williams and Espinoza during the open-air search.

       We owe less deference to the trial court where facts can be definitively and exclusively ascertained by reference to uncontradicted evidence. Hughes, supra, 296 Ga. at 746 & n. 5.

       Williams and Espinoza objected to the charge on probable cause on the grounds that the charge was not relevant and that the charge invaded the jury’s province.

       Neither Williams nor Espinoza objected to the instruction at trial on the ground that it was an improper comment on the evidence. Their failure to object, however, “is inconsequential because a violation of OCGA § 17-8-57 is always plain error and failure to object will not preclude appellate review.” (Citation and punctuation omitted.) McLean v. State, 297 Ga. 81, 82 (2), n. 2 (772 SE2d 685) (2015).

       Espinoza’s requested instruction stated:
      Knowledge of the presence of illegal drugs, and knowledge of the activity surrounding illegal drugs, and even approval of it which does not amount to encouragement, is not sufficient to support a guilty verdict.


text:
    A15A2137.
    JACKSON v. THE STATE.
    (783 SE2d 672)
   McFADDEN, Judge.

After a jury trial, Arreon Lashun Jackson was convicted of four counts of armed robbery, one count of burglary, and one count of possession of a firearm during the commission of a crime. He argues on appeal that the evidence was insufficient to support his conviction on one of the armed robbery counts, that the trial court erred in dismissing a juror during trial, and that he received ineffective assistance of trial counsel. We find, however, that the evidence was sufficient, that the trial court did not abuse his discretion in dismissing the juror, and that Jackson has not shown that his trial counsel performed deficiently. Accordingly, we affirm.

1. 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.” Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979) (citation omitted; emphasis in original). “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.” Miller v. State, 273 Ga. 831, 832 (546 SE2d 524) (2001) (citations and punctuation omitted).

Viewed in this light, the evidence showed that early in the morning of March 6, 2012, Jackson and others entered the residence of several farmworkers. The intruders fired nine bullets through a closed door leading from the kitchen into the workers’ bedroom, striking and injuring one man. Then Jackson and at least one other man entered the bedroom, where one of them hit a worker in the face with a gun, briefly knocking him unconscious. The intruders rifled among the workers’ belongings, taking money and other items, then fled in a vehicle.

Jackson argues that the evidence was insufficient to support his conviction on one of the counts of armed robbery, which alleged that he had committed armed robbery against farmworker Antolin Sanchez by using a firearm to take Sanchez’s cell phone from him. He argues that the evidence did not authorize a finding that the cell phone was taken from Sanchez’s immediate presence because Sanchez was not in the room at the time of the taking. We disagree.

“A person commits the offense of armed robbery when, with intent to commit theft, he or she takes property of another from the person or the immediate presence of another by use of an offensive weapon[.]” OCGA § 16-8-41 (a). “[0]ne’s ‘immediate presence’in this context stretches fairly far[.j” Patterson v. State, 312 Ga. App. 793, 797 (3) (720 SE2d 278) (2011) (citation omitted). “An armed robbery may be committed even out of the physical presence of the victim if what was taken was under the victim’s control or responsibility and if the victim was not too far distant.” Matthews v. State, 268 Ga. 798, 804 (7) (a) (493 SE2d 136) (1997) (citation and punctuation omitted).

In this case, the evidence viewed in the light most favorable to the verdict showed that the cell phone was under Sanchez’s control and responsibility; it belonged to him and was taken off his bed. The evidence also showed that, although Sanchez was not in the room when the cell phone was taken, he was nearby and “not too distant”: the evidence showed that Sanchez had been in the bedroom and was struck by splintered wood when the shots were fired; he then escaped the room through another door and ran to an adjacent building to call for help; as he was calling for help, and within five minutes of the shooting, the intruders fled in a vehicle; and when Sanchez returned to the bedroom shortly thereafter his cell phone was gone. We have held under similar circumstances — in which a victim faced with an offensive weapon fled the scene, leaving behind property that the defendant then took — that the evidence was sufficient to support an armed robbery conviction. See Lester v. State, 267 Ga. App. 795, 796-798 (1) (600 SE2d 787) (2004) (after defendant beat store clerk with bat, clerk fled store but remained in vicinity; defendant then tookitems from store); Baldivia v. State, 267 Ga. App. 266,267-269 (1) (599 SE2d 188) (2004) (defendant shot at victims who fled scene for ten to fifteen minutes; defendant then took their car); Coburn v. State, 252 Ga. App. 315, 315-316 (1) (555 SE2d 750) (2001) (defendant pulled gun on victim, who dropped her backpack and fled; defendant then took backpack); Kemper v. State, 251 Ga. App. 665, 665-666 (1) (555 SE2d 40) (2001) (defendant pointed gun at victim and told her to get into trunk of vehicle; instead victim placed money in trunk and fled, and defendant then drove away with money); Wilson v. State, 207 Ga. App. 528, 528-529 (1) (428 SE2d 433) (1993) (restaurant cashier left her register and went to her manager’s office after defendant displayed gun; when she returned, cash from register was gone); Heard v. State, 204 Ga. App. 757, 758 (1) (420 SE2d 639) (1992) (after defendant shot into victims’ car, striking one victim and forcing them from road, victims left car and fled into woods; defendant then stole car); Morgan v. State, 195 Ga. App. 732, 732-734 (1) (394 SE2d 639) (1990) (store clerk fled store after defendants threatened him with a knife; defendants then stole items from store); Maddox v. State, 174 Ga. App. 728, 728-730 (1) (330 SE2d 911) (1985) (from another room, store owner saw defendants enter store, one with a shotgun; after owner fled to a nearby house to call the police, defendants stole items from store). See also Matthews, 268 Ga. at 804 (7) (a) (holding, in connection with a jury charge ruling, that “[e] ven if the robbery victim succeeded in escaping from the store before the money was taken from the cash register, the ‘immediate presence’ requirement of OCGA § 16-8-41 (a) was satisfied”).

2. Dismissal of juror.

During trial, the trial court dismissed a juror over Jackson’s objection and replaced the juror with an alternate. The trial court did so after learning that the juror failed to reveal in response to voir dire questioning that he knew Jackson’s father and after receiving evidence that, during a break in the trial proceedings, the juror had been seen speaking with Jackson’s father in a parking lot. Jackson argues that the trial court abused his discretion in dismissing the juror. We find no abuse of discretion.

Under OCGA § 15-12-172, “[i]f at any time ... a juror dies, becomes ill, upon other good cause shown to the court is found to be unable to perform his duty, or is discharged for other legal cause, the first alternate juror shall take the place of the first juror becoming incapacitated.” (Emphasis supplied.) “It is well established that OCGA § 15-12-172 provides a trial court with discretion to discharge a juror and replace him or her with an alternate at any time, and we will not reverse as long as the court’s exercise of discretion has a sound legal basis.” Worthy v. State, 223 Ga. App. 612, 613 (1) (478 SE2d 421) (1996) (citation and punctuation omitted).

A sound basis may be one which serves the legally relevant purpose of preserving public respect for the integrity of the judicial process. Where the basis for the juror’s incapacity is not certain or obvious, some hearing or inquiry into the situation is appropriate to the proper exercise of judicial discretion. Dismissal of a juror without any factual support or for a legally irrelevant reason is prejudicial.

State v. Arnold, 280 Ga. 487,489 (629 SE2d 807) (2006) (citations and punctuation omitted).

The record shows that after the state brought the issue regarding the juror to the trial court’s attention, the trial court inquired into the situation, receiving testimony from the juror and two witnesses to the juror’s conversation with Jackson’s father, and obtaining representations from the prosecutor about the juror’s voir dire responses. This provided sufficient grounds for the trial court, in his discretion, to dismiss the juror for legal cause. See Smith v. State, 335 Ga. App. 497, 498 (1) (782 SE2d 305) (2016) (trial court did not abuse discretion in dismissing juror who appeared as a friend on defendant’s Facebook page but who had not responded affirmatively when asked in voir dire if she knew defendant); Wooten v. State, 250 Ga. App. 686, 687 (3) (552 SE2d 878) (2001) (trial court did not abuse discretion in dismissing juror who failed to reveal in voir dire that he knew defendant and who indicated to other jurors that he was familiar with defendant and would not consider victim’s testimony); Gurr v. State, 238 Ga. App. 1, 4 (4) (516 SE2d 553) (1999) (trial court did not abuse discretion in dismissing juror who had been contacted by persons interested in case, “for such [dismissal] preserves the integrity of the judicial process”) (citations omitted); Worthy, 223 Ga. App. at 614 (1) (trial court did not abuse discretion in dismissing juror who had been seen talking with defendant during break in trial); Darden v. State, 212 Ga. App. 345, 347 (4) (441 SE2d 816) (1994) (trial court did not abuse discretion in dismissing juror who knew defendants and had been seen talking with them during trial; juror had attempted to inform state that she knew defendants, but prosecutor did not see juror’s raised hand in response to voir dire question).

We do not agree with Jackson’s assertion that “[n]o evidence was entered into the record showing that [the juror] denied knowing Mr. Jackson’s family during voir dire.” The prosecutor made representations to that effect to the trial court. “Attorneys are officers of the court, and [an attorney’s] statement to the court in his place is prima facie true and needs no further verification unless the same is required by the court or the opposite party.” Morris v. State, 228 Ga. 39, 49 (11) (184 SE2d 82) (1971) (citation and punctuation omitted). At trial, the prosecutor stated to the trial court that he “asked specifically about [Jackson’s father], and there was no response at all of any knowledge or friendship or anything by that juror,” and Jackson sought no further verification. Moreover, without a transcript of the voir dire setting forth the questions asked of the jurors and their responses thereto, we cannot say that the trial court erred in finding that the juror at issue failed to respond affirmatively when asked if he knew any members of Jackson’s family. See Nwakanma v. State, 296 Ga. 493, 500 (5) (768 SE2d 503) (2015) (“If counsel raise issues on appeal relating to voir dire, they also must transcribe the voir dire in order for there to be an appellate review, as an appellant carries the burden of showing error by the record.”) (citation and punctuation omitted).

3. Ineffective assistance.

Jackson argues that he received ineffective assistance of trial counsel because his counsel “improperly commented on Mr. Jackson’s invocation of his right to counsel and his right to remain silent.” But as detailed below, the record shows that Jackson’s trial counsel did not comment on his invocation of his right to remain silent, and Jackson has not shown that his counsel was deficient in commenting on his invocation of his right to counsel.

To prevail on his claim of ineffective assistance, Jackson must prove

both that his trial counsel’s performance was deficient and that there is a reasonable probability that the trial result would have been different if not for the deficient performance. Strickland v. Washington, 466 U. S. 668 (104 SCt 2052, 80 LE2d 674) (1984). If an appellant fails to meet his or her burden of proving either prong of the Strickland test, the reviewing court does not have to examine the other prong. In reviewing the trial court’s decision, we accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.

Wright v. State, 291 Ga. 869, 870 (2) (734 SE2d 876) (2012) (citations and punctuation omitted).

Jackson asserts that his trial counsel improperly commented on his invocation of his rights to silence and to counsel at two points during trial. The first instance occurred as his trial counsel cross-examined a law enforcement officer about his investigation of the armed robberies. Trial counsel asked a series of questions establishing that Jackson had turned himself in to the authorities and then asked: “Now when he turned hisself [sic] in obviously you all were going to see if he was going to talk.” The officer responded: “We took him into an interview, advised him of all of his rights, which he requested for his lawyer, that he wanted an attorney.” Jackson’s counsel then moved on to other topics but revisited the issue in closing argument, while discussing evidence that Jackson’s father had taken him to an attorney before Jackson turned himself in to law enforcement. His counsel argued:

My client never attempted to run. As soon as he found out, I guess he did what any good dad would have done, he took him to an attorney in Vidalia, Georgia, a fellow named [name of previous counsel], and it appears that he was turned in from there. He chose to exercise his rights and hire an attorney. There was an attorney involved prior to my involvement.

(The record does not reflect that the state asked any questions about or made any argument referring to Jackson’s invocation of his rights.)

Jackson characterizes these instances as improper comments on his invocation of his right to remain silent. See generally Gordon v. State, 250 Ga. App. 80, 82 (550 SE2d 131) (2001) (“It has been held to be fundamentally unfair to simultaneously afford a suspect a constitutional right to silence following arrest and yet allow the implications of that silence to be used against him for either substantive or impeachment purposes.”) (citations and punctuation omitted). The comments, however, concerned Jackson’s invocation of his right to counsel, a right distinct from his right to silence. See Sears v. State, 292 Ga. 64, 67 (3) (734 SE2d 345) (2012) (distinguishing trial objection to comment upon defendant’s invocation of his right to counsel from appellate objection to comment upon defendant’s invocation of his right to silence). “[E]vidence of a defendant’s invocation of the right to counsel is not automatically inadmissible as an improper comment on a defendant’s right to remain silent,” Martin v. State, 290 Ga. 901, 902 (1) (a) (725 SE2d 313) (2012), and we do not view the references to Jackson invoking his right to counsel in this case as comments on his right to remain silent. See Rowe v. State, 276 Ga. 800, 805 (4) (582 SE2d 119) (2003) (rejecting defendant’s argument that portion of interview recording in which he invoked his right to counsel was inadmissible as an improper comment on his right to remain silent); Cornelius v. State, 273 Ga. App. 806, 809-810 (2) (a) (616 SE2d 148) (2005) (rejecting defendant’s argument that investigator’s testimony that she attempted to speak with defendant at jail was an improper comment on his right to remain silent since investigator never stated whether defendant had answered her questions), disapproved in part on other ground at Schofield v. Holsey, 281 Ga. 809, 811-812 (II), n. 1 (642 SE2d 56) (2007). “It is a comment upon a defendant’s silence by a witness which is impermissible under our law, not mere speculation or conjecture by a defendant that a jury could have inferred such a comment from the witness’ testimony.” Cornelius, 273 Ga. App. at 809 (2) (a) (citation omitted; emphasis in original).

Moreover, Jackson has not shown that his counsel performed deficiently in making or soliciting comments about his invocation of his right to counsel. To meet the deficiency requirement, Jackson “must overcome the strong presumption that counsel’s performance fell within a wide range of reasonable professional conduct, and that counsel’s decisions were made in the exercise of reasonable professional judgment.” Goodman v. State, 293 Ga. 80, 86 (9) (742 SE2d 719) (2013) (citation and punctuation omitted). At the hearing on Jackson’s motion for new trial, counsel testified that the purpose of his cross-examination question to the law enforcement officer was to emphasize that Jackson had turned himself in to the authorities, and he explained that he made the comments in closing argument to rehabilitate and enhance the credibility of Jackson’s father, who had testified as a defense witness and described Jackson’s movements and demeanor the night before and the morning after the crime. On cross-examination, the state had challenged the father’s actions after Jackson was accused of the crime, implying that the father’s actions were inconsistent with Jackson’s claim that he was not involved in the armed robberies. As counsel explained at the motion for new trial hearing: “[T]here were some problems with his dad’s testimony and what his dad may have done or may not have and that sort of thing, and so I was just saying that I guess he did what any good father would have done. He went and hired a lawyer for his son.”

Decided March 3, 2016.

Russell R. Jones, Robert L. Persse, for appellant.

S. Hayward Altman, District Attorney, Charles D. Howard, Assistant District Attorney, for appellee.

In light of the evidence which counsel had to meet, we cannot say that counsel’s effort to [highlight Jackson’s act of turning himself in to authorities and to rehabilitate his father as a defense witness were] unreasonable. As a general rule, matters of reasonable trial tactics and strategy, whether wise or unwise, do not amount to ineffective assistance of counsel.

Id. at 88 (9) (e) (citation and punctuation omitted).

Judgment affirmed.

Dillard and Mercier, JJ., concur.


author: PHIPPS, Presiding Judge.

text:
    A15A1734.
    BALLISTICS RESEARCH, INC. et al. v. BRI FUNDING, LLC.
    (783 SE2d 678)
   PHIPPS, Presiding Judge.

Ballistics Research, Inc., Ballistics Blocks, LLC, Wayne Orr, and James Orr (collectively, “defendants”) appeal from the trial court’s order awarding BRI Funding, LLC, punitive damages in excess of the statutory cap in OCGA § 51-12-5.1 (g). Because BRI Funding cannot recover excess punitive damages, we vacate the award and remand for further proceedings.

This case is before us a second time. The pertinent facts, which are fully outlined in Ballistics Research I, show that beginning in September 2009, several investors agreed to loan money to Ballistics Research. In exchange, Ballistics Research granted the investors a security interest in all patents and intellectual property rights that it owned or might own in the future.

Ballistics Research did not timely repay the loans, and on May 10, 2010, the investors decided to assign their rights under the loan agreements to BRI Funding, an as-yet-unformed company they planned to create for the purpose of bringing suit. Pursuant to the assignment:

All of the . . . parties assign their rights under the September ’09 Agreement effective as of May 18, 2010 to a Georgia limited liability company expected to be formed and called BRI Funding, LLC ... so that [BRI Funding] can either accept the voluntary assignment of Ballistics’ patents or act as the sole plaintiff in a lawsuit to be filed [against] Ballistics and perhaps its members.

At some point after May 10,2010, the investors incorporated BRI Funding. On January 17,2011, they executed an amended document reassigning to the newly formed company their rights to sue Ballistics Research. Approximately one month later, BRI Funding filed suit against Ballistics Research and Wayne Orr, seeking, among other things, damages for breach of contract and protection for its assigned interest in the patents. During discovery, however, BRI Funding learned that Ballistics Research had transferred its patents to Ballistics Blocks on April 29, 2010. BRI Funding thus amended the complaint, adding Ballistics Blocks and James Orr to the litigation and asserting several new claims, including claims for fraudulent transfer, fraud, and punitive damages.

BRI Funding subsequently moved for summary judgment. The trial court granted the motion and awarded the company compensatory damages and attorney fees, as well as punitive damages in the amount of $870,407.25. On appeal, we affirmed the trial court’s judgment as to all claims and damages except punitive damages. We explained that “punitive damages are limited Pay statute] to a maximum of $250,000 for any tort action, unless the trier of fact finds that ‘the defendant acted, or failed to act, with the specific intent to cause harm.’ ” We further noted that to overcome the statutory cap, a factfinder must make a separate finding as to specific intent. In this case, the trial court determined that the defendants intended to defraud BRI Funding. But “it did not find that [the defendants] acted with the specific intent to cause BRI Funding harm.” We thus “vacate[d] the punitive damages award and remand[ed] with direction that the trial court consider whether Ballistics Research acted, or failed to act, with the specific intent to cause harm such that punitive damages were warranted beyond the $250,000 cap provided for in OCGA § 51-12-5.1 (f).”

The trial court refused to accept new evidence on remand, instead basing its decision on the record before it. After reviewing the evidence, the court determined that the defendants acted with specific intent to harm BRI Funding and reinstated the $870,407.25 punitive damages award. The defendants now appeal a second time, arguing that they could not have intended to harm BRI Funding because the company did not exist when the tortious acts occurred.

We agree. As recounted above, we vacated the original punitive damages award because the trial court exceeded the statutory cap without finding that the defendants specifically intended to harm BRI Funding. Although the trial court made the requisite finding on remand, the record does not support that decision. BRI Funding is an assignee created for the sole purpose of suing the defendants on the investors’ behalf. The company does not contest its status as an assignee or argue that its recovery rights arose from something other than assignment. In fact, BRI Funding admits that “the acts supporting the finding of specific intent occurred before [its] existence.” Given these circumstances, the defendants could not have specifically intended to harm BRI Funding.

Moreover, “under Georgia law a right to punitive damages cannot be assigned.” Citing this principle, the defendants claim that BRI Funding’s status as an assignee precludes any punitive damages recovery. But the defendants did not raise this argument in the first appeal, and although we vacated the initial punitive damages award, we remanded the case for consideration of one limited issue: whether a punitive damages award in excess o/the $250,000 cap is appropriate here. In reaching this decision, we tacitly approved the trial court’s award of general punitive damages (up to the statutory cap) — a decision that we cannot reconsider at this point.

Decided March 4, 2016.

Jon McPhail & Associates, Jon B. McPhail, for appellants.

Hulsey, Oliver & Mahar, T. Wesley Robinson, for appellee.

The award of excess punitive damages, however, is squarely before us. And the defendants are correct that BRI Funding’s sole status as an assignee undermines the excess award. To find otherwise would ignore the defendants’ lack of tortious conduct toward BRI Funding. The trial court erred in awarding punitive damages in excess of $250,000. Accordingly, we vacate the punitive damages award and remand for further proceedings consistent with this opinion.

Judgment vacated and case remanded.

Boggs and Mercier, JJ., concur.

       See Ballistics Research v. BRI Funding, 330 Ga. App. XXV (November 21, 2014) (unpublished) (“Ballistics Research I”).

        Ballistics Research I, supra, slip op. at 3, 5.

       Id. at 4-5.

       Id. at 5-6.

       Id. at 6.

       The parties have not provided us with a record reference reflecting the date on which BRI Funding was incorporated. The evidence shows, however, that the incorporation occurred after May 10, 2010. See id. at 6 (May 10, 2010 assignment agreement refers to BRI Funding as a “Georgia limited liability company expected to be formed’) (emphasis supplied).

       Id. at 6-7.

       Id. at 14-15, quoting OCGA § 51-12-5.1 (f). See also OCGA § 51-12-5.1 (g) (establishing $250,000 cap on punitive damages).

        Ballistics Research I, supra, slip op. at 15. See McDaniel v. Elliott, 269 Ga. 262, 265 (3) (497 SE2d 786) (1998) (establishing bright-line rule that trier of fact must make separate finding of specific intent to cause harm to award punitive damages in excess of $250,000).

        Ballistics Research I, supra, slip op. at 15.

       Id. at 16 (punctuation omitted; emphasis in original).

       Id. at 15-16.

        Canal Indemnity Co. v. Greene, 265 Ga. App. 67, 73 (3) (593 SE2d 41) (2003). See also Empire Fire & Marine Ins. Co. v. Driskell, 264 Ga. App. 646, 649 (3) (592 SE2d 80) (2003) (Georgia law prohibits assignment of punitive damages claims).

       See Empire Fire, supra at 648 (1) (appellants cannot relitigate issue resolved against them on prior appeal); Ovrevik v. Ovrevik, 254 Ga. App. 756, 760 (2) (b) (564 SE2d 8) (2002) (law of the case prevented court from reaching newly raised argument during second appeal where case was previously remanded for limited purpose and evidentiary posture had not changed).

       See Empire Fire, supra at 649 (3).