author: DOYLE, Chief Judge.

text:
    A15A1527.
    GARVIN v. ATLANTA GAS LIGHT COMPANY.
    (779 SE2d 687)
   DOYLE, Chief Judge.

Kareem Shamed Garvin suffered severe injuries in a natural gas explosion in an outbuilding on his mother’s property. He filed a negligence claim against Atlanta Gas Light Company (“AGL”), which reactivated the gas to the property the day after his mother purchased it, approximately six years before the explosion. Garvin appeals the trial court’s grant of summary judgment to AGL, as well as the court’s denial of his subsequent motion for reconsideration. We affirm for the reasons that follow.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

“We will uphold a trial court’s decision granting or denying a motion for reconsideration absent an abuse of discretion.”

Viewed in the proper light, the record shows that John Gary Busy owned a home in Savannah. In 1982, he erected an outbuilding with a roll-up garage door for use as a workshop, which was located behind the main house, and he subsequently installed a gas line in the outbuilding to fuel a space heater. When Busy sold the property in 1985, he removed the space heater, but he cannot recall whether he capped the gas line at the outbuilding. The property was sold again in 1994 and in 2002.

In April 2005, Cynthia Sanders, Garvin’s mother, purchased the property. Before moving in, she arranged for AGL to re-initiate natural gas service to the property. Greg King, an AGL field service representative with 30 years of experience, arrived to connect the natural gas on April 26, 2005. King’s usual practice was to ask the homeowner to point out all of the places where natural gas would be used on the property, and Sanders showed him three appliances — the water heater, the stove, and the furnace. After ensuring that the shut-off valve to each of the appliances was turned off, King then conducted a leak test, also known as “spotting the meter.” The leak test consists of turning on the gas service to the house at the meter after closing the valves upstream of each gas-fueled appliance and observing the meter for approximately five minutes to determine if there is any gas flowing into the house. The meter had three lines running from the meter, and there were three gas-fueled appliances at Sanders’s home. After the leak test did not show any gas flowing into the house, indicating that the pipes were air-tight and free of leaks, King visually inspected the gas appliances, lit the pilot lights, and observed the appliances in operation. Sanders was not aware that there was a gas line to the outbuilding, so she did not notify King about it, and he left without inspecting the structure. Before King reconnected the natural gas at Sanders’s property, a prior field agent specifically noted in an accessible computer database the presence of “customer buried piping” at the property. King’s field notes from Sanders’s job also reflected customer buried piping.

After Sanders moved into the home, Garvin began spending time in the outbuilding, turning it into a “guesthouse” by adding a television, chairs, and a bed. On July 30, 2011, Garvin invited his girlfriend, Sherri Pratt, over to watch television in the outbuilding as they had done in the past. Garvin turned on the air conditioning, but turned it off after smelling an “odd[,] ... rotten egg” odor. He turned it on again, and the smell reappeared. Garvin then sat down on the couch and lit a cigarette, igniting the natural gas, and the building exploded. Garvin suffered severe burns in the explosion, and Pratt died from her injuries. An inspection of the scene after the explosion revealed that the gas line was uncapped, with only a valve at the end.

AGL’s Field Service Manual (“the Manual”) governs its service personnel’s operations, including King’s 2005 meter activation at Sanders’s property. According to the Manual, “[t]he goal of any meter activation (turn-on) is to complete the order while leaving the premise conditions safe.” For field service representatives activating a meter, the Manual requires them to: test the customer’s fuel lines by “spotting the meter” for three to five minutes; visually inspect all gas-fueled appliances; list gas stubs with no connected appliances; light the appliances and check for gas leaks and compliance with applicable codes and safety requirements; and leave a warning on those appliances that cannot be safely lit. The Manual does require AGL personnel to cap “all open lines,” which are lines that allow the flow of gas and that are revealed when an AGL technician “spots the meter” because open lines leak. A line ending in an uncapped, but closed valve is not an “open line.” The Manual does not require AGL field service personnel to trace customer buried gas lines to their end points to ensure that every pipe connects to an appliance or terminates in a cap.

Garvin filed this negligence action against AGL, alleging that AGL breached its duty to inspect the entire existing natural gas system at Sanders’s property, including the shed, discover the hazardous uncapped line to the shed, and cap it. Garvin also asserted a failure to warn claim. AGL moved for summary judgment, and the trial court granted it, concluding that “there was no duty in 2005 for AGL to conduct an inspection of the existing piping system at Ms. Sanders’[s] home and to discover and cap the uncapped gas stub in the outbuilding.” The trial court subsequently entered an order denying Garvin’s motion for reconsideration, concluding that AGL was also entitled to summary judgment on Garvin’s failure to warn and negligence per se claims. This appeal followed.

1. Negligence claim. Garvin contends that the trial court erred by granting summary judgment to AGL on his claim that it was negligent in failing to inspect the natural gas pipe system at Sanders’s property and to discover and cap the uncapped line running to the shed. We disagree.

The essential elements of a negligence claim are the existence of a legal duty; breach of that duty; a causal connection between the defendant’s conduct and the plaintiff’s injury; and damages. Thus, the threshold issue in a negligence action is whether and to what extent the defendant owes a legal duty to the plaintiff. This issue is a question of law. A legal duty sufficient to support liability in negligence is either a duty imposed by a valid statutory enactment of the legislature or a duty imposed by a recognized common law principle declared in the reported decisions of our appellate courts.

On appeal, Garvin contends that AGL breached duties to him arising out of common law and based on its negligent undertaking as established by Section 324A of the Restatement (Second) of Torts.

(a) Common law.

Absent actual knowledge of a dangerous condition, a gas supplier is not generally liable beyond the meter and service pipes.

[Wjhere wiring, or other electrical or gas appliances on private property, is owned or controlled by the owner or occupant of the premises, a company which merely furnishes electricity or gas for such respective appliances is not responsible for the insulation of the electrical appliances or the condition of the wiring or electrical or gas appliances, and is not liable to the owner or occupant or to third persons on the premises for injuries, caused by such defective condition. The rule is subject to the exception that whenever such electrical current or gas is supplied with actual knowledge on the part of the one supplying it of the defective and dangerous condition of the customer’s appliances he is liable for injuries caused by the electricity or the gas thus supplied for use on such defective and dangerous appliances, but no duty of inspection rests on the one supplying the electricity or the gas from the mere fact of rendering such service to the customer owning or controlling the equipment.

Constructive knowledge on the part of the utility does not give rise to a duty to inspect.

It is undisputed in this case that AGL/King had no actual knowledge of a dangerous and defective condition on the property. As instructed by the AGL Manual, when King reported to Sanders’s property to re-initiate gas service, he conducted a leak test by spotting the meter, which indicated no leaks. And knowledge of the existence of the customer installed gas line to the outbuilding, without knowledge of an actual gas leak, is simply insufficient to give rise to a duty on the part of AGL to inspect the line to ensure that it was capped, instead of terminating with a valve.

(b) Section 324A of the Restatement (Second) of Torts. Garvin’s argument that AGL owed him a duty under Section 324A of the Restatement (Second) of Torts to search for and cap all uncapped lines is also unavailing.

Section 324A of the Restatement (Second) of Torts does provide for liability to third persons for negligent performance of an undertaking, and was adopted by the Supreme Court of Georgia in Hug gins v. Aetna Cas. & Sur. Co.

“One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if (a) his failure to exercise reasonable care increases the risk of such harm, or (b) he has undertaken to perform a duty owed by the other to the third person, or (c) the harm is suffered because of reliance of the other or the third person upon the undertaking.”

The duty assumed under Section 324A applies only to an undertaking, and it “will not support a cause of action based on the theory that a party who did not undertake to render services should have done so.”

Here, King performed all of the services he undertook to do — spotting the meter to check for leaks, visually inspecting the gas appliances, and lighting the pilot lights and observing the appliances in operation. There is no evidence that King undertook to perform a safety inspection of Sanders’s gas pipes, including following them to their endpoints. Under these circumstances, the trial court properly concluded that Section 324A did not give rise to a duty on the part of AGL.

We further note that none of the subparts of Section 324A apply here.

[Subpart (a)] applies when a nonhazardous condition is made hazardous through the negligence of a person who changed its condition or caused it to be changed. Liability does not attach for failing to decrease the risk of harm. . . . [T]he mere failure to abate a hazardous condition — without making it worse — does not trigger the application of Section 324A (a).

Decided November 12, 2015

The Summerville Firm, J. Darren Summerville, Angela R. Fox; Karsman, McKenzie & Hart, Jeremy S. McKenzie, Ronald P. Hart III; Walker Morgan, Charles T. Slaughter, for appellant.

Ellis, Painter, Ratterree & Adams, R. Clay Ratterree; Thompson Hine, Russell J. Rogers, for appellee.

Brickley, Sears & Sorett, Henry P. Sorett, amicus curiae.

There is no evidence here that AGL changed the condition of the valve. Subpart (b) applies only if Sanders owed a duty to Garvin, for which there is no proof. Subpart (c) applies only if Sanders or Garvin relied on AGL, and there is no evidence in the record that either of them did or refrained from doing anything in reliance on AGL.

2. Failure to warn. Garvin argues that the trial court erred by granting summary judgment to AGL on his claim that AGL failed to warn him of the dangers of an uncapped gas line. Given King’s and AGL’s lack of superior knowledge that the gas line to the outbuilding was uncapped, AGL is not liable for failure to warn.

3. In light of our rulings in Divisions 1 and 2, we need not address AGL’s argument that Garvin’s claims are precluded by the liability limitations provided in AGL’s tariff approved by the Georgia Public Service Commission.

Judgment affirmed.

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

        Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

        Stephens v. Alan V. Mock Constr. Co., 302 Ga. App. 280, 281 (1) (690 SE2d 225) (2010).

       The outbuilding has shutters and siding that match the main house on the property.

       At his 2012 deposition, King could not actually remember performing any of these tasks at Sanders’s home when he reactivated natural gas to the property some seven years before the deposition. Instead, he testified to his usual custom and habit.

       Some time after Sanders moved in, she and Garvin noticed the gas line protruding from the wall in the outbuilding, but they did not recognize it as such.

       King spent approximately 30 minutes at Sanders’s property.

       The outbuilding was serviced by electricity and an air conditioner when Sanders purchased the property.

       Pratt’s estate claim and wrongful death action are the subject of a separate lawsuit.

       A gas line that terminates without being attached to an appliance is commonly referred to as a “gas stub.”

       On appeal, Garvin does not challenge the trial court’s grant of summary judgment to AGL on his negligence per se claim.

       (Punctuation and footnotes omitted; emphasis supplied.) Boller v. Robert W. Woodruff Arts Center, 311 Ga. App. 693, 695-696 (1) (a) (716 SE2d 713) (2011).

       We note that Garvin also argued to the trial court that AGL breached multiple statutes and regulations, including the National Fuel Gas Code 34 (1996 ed.), which he alleged was adopted by the legislature and'the Georgia Department of Community Affairs; the Georgia State Minimum Gas Code (Ga. Comp. R. & Regs. r. 110-11-1-.14); the Georgia State Minimum Fire Safety Standards (Ga. Comp. R. & Regs. r. 120-3-3); the International Fuel Gas Code; and the International Plumbing Code. The trial court rejected this argument, and Garvin does not enumerate this ruling on appeal.

       (Punctuation omitted.) Young v. Blalock Hauling Co., 106 Ga. App. 590, 594-595 (127 SE2d 689) (1962), quoting Milligan v. Ga. Power Co., 68 Ga. App. 269 (1) (22 SE2d 662) (1942).

       See Milligan, 68 Ga. App. at 269 (rejecting argument that constructive knowledge of defective wires to a meter reader was sufficient to place the power company under a duty to inspect). See also Ga. Power Co. v. Kinard, 47 Ga. App. 483, 487-488 (170 SE 688) (1933).

       See, e.g., Maynard v. Atlanta Gas-Light Co., 24 Ga. App. 5, 5-6 (99 SE 472) (1919) (gas company had no duty to inspect gas appliances and pipes in the house and was not negligent for failing to have the fixtures properly connected to prevent the escape of gas). Compare Bray v. Atlanta Gas-Light Co., 46 Ga. App. 629 (1) (168 SE 96) (1933) (reversing grant of demurrer to gas company after the plaintiff was injured in a natural gas explosion because the gas company terminated natural gas service to a vacant home knowing that there were unconnected gas lines in the house, and the gas could be easily reconnected by an individual without the assistance of the gas company).

       245 Ga. 248 (264 SE2d 191) (1980).

       (Emphasis supplied.) Bing v. Zurich Svc. Corp., 332 Ga. App. 171, 172 (1) (770 SE2d 14) (2015), citing Huggins, 245 Ga. at 249 (1).

       (Emphasis in original.) Davenport v. Cummins Alabama, Inc., 284 Ga. App. 666, 673 (2) (644 SE2d 503) (2007).

       See id.

       (Citation and punctuation omitted.) Herrington v. Gaulden, 294 Ga. 285, 288 (751 SE2d 813) (2013).

       See Gainey v. Smacky’s Investments, 287 Ga. App. 529, 532 (2) (e) (652 SE2d 167) (2007).


source: Caselaw Access Project

author: Doyle, Chief Judge.

license: Public Domain

text:
    A15A0834.
    HARRIS v. THE STATE.
    (779 SE2d 692)
   Doyle, Chief Judge.

Marcus Anthony Harris was tried by a jury and convicted of armed robbery. He was sentenced as a recidivist to life imprisonment, with no possibility of parole before serving 30 years in prison. Harris appeals the denial of his motion for new trial, contending that his trial counsel was ineffective because she gave him inaccurate advice about his possible sentence, which advice he contends he relied on when deciding to reject the State’s plea offer and go to trial. For reasons that follow, we affirm.

Harris was indicted for armed robbery, kidnapping, false imprisonment, possession of a firearm during the commission of a crime, possession of a firearm by a convicted felon, and criminal trespass. Harris’s trial counsel filed a plea in bar and motion to dismiss based on the statute of limitation, successfully eliminating all charges against him except armed robbery.

Prior to trial, Harris’s counsel filed a motion to suppress identification evidence. At the conclusion of the motion to suppress hearing, after the trial court denied the motion, the following transpired:

COURT: Now, Mr. [Harris] is facing armed robbery. He has rejected a plea agreement which was offered to him, a 20-year sentence, 15 to serve, which as I understand it includes a wrap up offer including two other cases, which the State would allow him to plead to with ten-year concurrent sentences. Is that right. . . ?
STATE: Your honor, that’s correct. . . .
COURT: If he is, in fact, convicted of armed robbery he could be sentenced up to life in the penitentiary, and what you’re telling me now is if he were to get a life sentence he’d have to serve a mandatory 30 years without parole. Is that correct?
STATE: That’s correct. Yes, Your Honor.
COURT: Do you understand that, Mr. Harris?
HARRIS: Yes, sir. . . .
COURT: But you could be given a 30-year sentence without parole or a 20-year sentence without parole, 25-year sentence without parole, could be given life, which would also require you to serve at least 30 years without parole. Do you understand that?
HARRIS: Yes, sir.
COURT: How old are you?
HARRIS: 30.
COURT: 30. All right. So you’re looking at the possibility of getting out at age 45 versus getting out at age 60.
HARRIS: I’ll let the Lord decide.

At the motion for new trial hearing, trial counsel testified that the State made an initial plea offer of life in prison on the armed robbery charge, which she communicated to Harris. After further discussions, the State offered a sentence of twenty years, fifteen to serve with five on probation, which would resolve the armed robbery in this case and charges in at least two other cases. Trial counsel discussed with Harris the fact that he was a recidivist and told him that, if he was convicted, the minimum sentence he could receive was ten years without parole and the maximum was life without parole. Trial counsel did not advise him that the life sentence was mandatory. Trial counsel did advise Harris that it would be in his best interest to accept the second plea offer and had his mother and girlfriend come in to help explain the “mountain of evidence against him in the case,” but Harris refused to accept the State’s offer.

Harris also testified at the motion for new trial hearing, stating that after his trial counsel informed him of the State’s second plea offer, he told her that he wanted a lower sentence and instructed her to ask for 12 years. Trial counsel informed him that the State was no longer negotiating. Harris admitted that he had been told by his attorney and the court that he could get a life sentence, but testified that if he had known that the life sentence was mandatory, he would have accepted the second plea offer.

The trial court denied Harris’s motion for new trial, rejecting Harris’s argument that he received ineffective assistance of counsel. The court found that Harris was advised many times that a life sentence was a possibility and was aware of that possibility when he rejected the State’s offer and decided to go to trial.

On appeal, Harris contends that his trial counsel provided ineffective assistance by incorrectly advising him that, if he was convicted, the trial court had discretion to give him a sentence between the minimum and maximum for armed robbery, and by failing to advise him that a life sentence was mandatory if he was convicted because he was a recidivist. He argues that he relied on this improper advice in making his decision to go to trial.

To prevail on his claim of ineffective assistance of counsel, Harris must show that counsel’s performance was deficient and that the deficient performance prejudiced the defense. This two-prong test from Strickland ordinarily applies to ineffective assistance of counsel claims in the plea process.

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.

We first address the performance prong. “The defendant is entitled, under the Sixth Amendment, to competent counsel who performs to the standards expected in the legal profession when deciding whether or not to plead guilty.”

Objective professional standards dictate that a defendant, absent extenuating circumstances, is entitled to be told that an offer to plead guilty has been made and to be advised of the consequences of the choices confronting him. For counsel to do otherwise amounts to less than reasonably professional assistance.

In Whitehead v. State, this Court addressed a very similar situation and found that although the appellant may not have been made aware that a life sentence was mandatory, he had been told that a life sentence was a possibility when he decided to reject the State’s offer and go to trial. As a result, this Court concluded that “counsel’s evaluation of the case and advice to Whitehead fell within the range of professionally reasonable judgments.” This Court reached the same result in Carson v. State in which the defendant was not informed that a mandatory life sentence was probable, but was informed that it was possible. This Court held that Carson failed to establish that he was prejudiced by counsel’s performance because he presented no evidence “that at the time [he] rejected a plea he was amenable to the offer made by the [S]tate.” And in Sutton v. State, this Court addressed a situation in which the trial court failed to inform a defendant that his conviction would result in a mandatory life sentence, but instead stated that a range of punishment was possible. This Court held that because the defendant knew that he could receive a life sentence, he was “sufficiently apprised of the risks of going to trial.”

Harris relies on Johnson v. State, to support his contention that his trial counsel’s performance was deficient. In that case, the public defender appointed to represent Johnson at trial was aware of an outstanding plea offer from the State, but failed to discuss the matter with Johnson until after counsel should have known that the offer had expired. Additionally, “counsel, prior to the expiration of the plea offer, made no independent examination of the facts in Johnson’s case nor tried to contact the alleged alibi witnesses so that he could offer his informed opinion as to what plea should be entered.” Finally, counsel failed to inform Johnson, before he rejected the State’s plea offer, that he was facing a mandatory life sentence without parole if convicted at trial. The Supreme Court of Georgia held that the combination of these failures by trial counsel showed that trial “counsel’s representation fell below an objective standard of reasonableness.” The Court did not hold that trial counsel’s failure to notify Johnson of the mandatory life sentence alone would have been sufficient to fulfill Johnson’s burden of showing deficient performance.

Here, Harris’s trial counsel discussed both of the State’s plea offers with him, told him that a life sentence was a possibility, and told him that it would be in his best interest to accept the State’s second plea offer. Although trial counsel did not inform Harris that he faced a mandatory life sentence if convicted, Harris knew that a life sentence was possible and was therefore aware “that the consequences of refusing the State’s plea offer could be harsher than the consequences of accepting it.” Based on these facts, as found by the trial court and supported by the record, we conclude that Harris has failed to establish ineffective assistance of counsel. Accordingly, the trial court did not err by denying his motion for new trial.

Decided November 13, 2015.

Tracy J. Mullís, for appellant.

S. Hayward Altman, District Attorney, Tony A. May, Assistant District Attorney, for appellee.

Judgment affirmed.

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

       OCGA § 16-8-41 (a).

       OCGA § 16-5-40 (a).

       OCGA §16-5-41 (a).

       OCGA § 16-11-106 (b).

       OCGA § 16-11-131 (b).

       OCGA § 16-7-21 (b) (2).

       The court acknowledged that at trial, the judge had given confusing instructions as to possible sentences, but found that the judge had advised Harris that he could face a life sentence.

        Strickland v. Washington, 466 U. S. 668, 687 (III) (104 SCt 2052, 80 LE2d 674) (1984).

       See Cleveland v. State, 285 Ga. 142, 144 (674 SE2d 289) (2009).

       (Citations and punctuation omitted.) Hughes v. State, 289 Ga. 98, 100 (3) (709 SE2d 764) (2011).

       (Citation omitted.) Lloyd v. State, 258 Ga. 645, 646 (2) (373 SE2d 1) (1988).

       Id. at 648 (2) (a).

       211 Ga. App. 121 (438 SE2d 128) (1993).

       See id. at 122.

       Id. at 123. See also Biggins v. State, 322 Ga. App. 286, 291 (3) (a) (744 SE2d 811) (2013) (holding that even if Biggins was not informed that a life sentence was mandatory, he knew that he could receive a life sentence and was therefore “sufficiently apprised of the risks of going to trial”) (citation and punctuation omitted).

       264 Ga. App. 763 (592 SE2d 161) (2003).

       See id. at 764.

       (Punctuation omitted.) Id. at 765.

       263 Ga. App. 188 (587 SE2d 379) (2003).

       See id. at 190 (1).

       Id.

       2 89 Ga. 532 (712 SE2d 811) (2011).

       See id. at 534-535.

       (Citation and punctuation omitted.) Id. at 534.

       Id.

       (Citation and punctuation omitted.) Id. at 535.

       (Citation and punctuation omitted.) Carson, 264 Ga. App. at 764.


text:
    A15A0862.
    STEWART v. McDONALD.
    (779 SE2d 695)
   DOYLE, Chief Judge.

This case arises from claims for violations of the Georgia Fair Housing Act (“the Act”), breach of professional duty under the Brokerage Relationships in Real Estate Transactions Act, and intentional infliction of emotional distress, filed by Brandon Stewart against the real estate agent who represented the seller from whom he purchased a home. After the appellee filed a motion for summary judgment on the claim arising under the Act, the trial court granted the motion. For the reasons that follow, we affirm.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. On appeal from the grant or denial of a motion for summary judgment, we review the evidence de novo, and all reasonable conclusions and inferences drawn from the evidence are construed in the light most favorable to the nonmovant.

On March 13,2013, Stewart, an African-American male, entered into a real estate contract to purchase property for $370,000 ($20,000 over the asking price, but with the seller paying $8,000 in closing costs) from Brad Goldman and his wife; Stewart’s was the highest of three offers on the table as of March 10, 2013. Prior to the contract being signed, neither Goldman nor his real estate agent, Collette McDonald, had met Stewart. On March 17, 2013, however, Stewart was driving past the property and met Goldman, and thereafter, Goldman spoke about the meeting to McDonald; he averred that he could not recall whether or not he told McDonald that Stewart was African-American. McDonald deposed that Goldman did not mention Stewart’s race.

Prior to closing but after the March 17 meeting, Stewart gathered homeowner’s insurance quotes, and he discovered the property was not insurable without the addition of a four-foot high fence around the property swimming pool. On March 25, Stewart’s agent, Patricia Berholtz, contacted McDonald about the issue, and the following exchange occurred:

BERHOLTZ: We are having a problem getting insurance on the house due to the pool fence not being 4 feet. . .
MCDONALD: I’m on it. I’ll get back to you asap.
BERHOLTZ: Thank you[.] Nothing is easy[.]
MCDONALD: Seriously! I’m wondering if we can just transfer the current home owners policy. Not that it would answer all the issues but it would help.
BERHOLTZ: Who is it with[?] If it is the GAlaw now that the fence has to be 4 ft out of the ground[ ], I don’t think that would work.
MCDONALD: I got an idea . . . let’s put barbed wire on the top of the fence and pretend we are in South Africa [laugh out loud]. We’ll have to figure this one out for sure.

Berholtz did not disclose the last e-mail to Stewart immediately because she believed it to be a racial slur against Stewart, and she was shocked and highly offended.

Eventually, Goldman agreed to remove the old fence and replace it with a code compliant fence. And shortly thereafter, Stewart’s inspector completed his inspection and discovered water leaking into the foundation and mold in the house. Despite the fact that this normally is a repair that a seller will complete, McDonald responded on behalf of Goldman that he would not assist with repairs or complete them himself; however, he would pay $3,200 toward repairs. McDonald threatened that Goldman would cancel the contract and move on to another buyer in the event that this agreement was not acceptable to Stewart.

Another issue arose when the appraisal of the home established a market value of $5,000 less than the contract price. Berholtz sent to Goldman via McDonald an amended sales contract with the reduced sales price of $365,000 in order to comply with the appraisal, but McDonald returned to Stewart a different amended contract, which included (in addition to the reduced sales price) a reduction in the amount of closing costs paid by Goldman; McDonald threatened that the sale would be terminated if Stewart disagreed with the reduction.

Because of the change in seller-paid closing costs, Stewart wanted to reduce the overall closing costs due by $3,000 by using his mortgage lender’s preferred closing attorney. In response to the request to use a specific closing attorney instead of the closing attorney normally used by McDonald, she refused, stating, “Deal breaker. We are done here unless [Stewart] gets off this. We are using [our preferred closing attorney].” Berholtz complained to McDonald’s supervising broker, asking for assistance getting the closing completed. McDonald was reprimanded by the broker, and the closing proceeded using the mortgage lender’s preferred closing attorney as Stewart had requested. Berholtz averred that she had never experienced having the issue of a specific closing attorney be a “deal breaker” as McDonald had threatened it would be.

After this, McDonald requested that the closing be split so that she and Goldman did not have to be there simultaneously with Stewart and Berholtz. Stewart, however, arrived while McDonald and Goldman were still at the closing, but instead of staying in the same room with him, McDonald took Goldman to a separate room. McDonald later re-entered the closing room, demanding checks for Goldman and herself, but due to McDonald’s own request for a wire transfer of the funds, the closing attorney had not prepared checks; the transfers were delayed because McDonald had failed to provide instructions prior to the closing. After closing but prior to completion of the transfer, McDonald refused to provide keys to Stewart. Finally, Berholtz requested transmission of the termite letter from Goldman, who had so agreed in the sales contract but had never provided it, and McDonald instructed Goldman that he was not obligated to do so because the closing had extinguished all unfulfilled contingencies in the sales contract.

Shortly before the closing, Stewart’s agent told him about the South Africa comment from McDonald’s March 25 e-mail, which caused him upset, shock, hurt, sadness, and anger. Stewart reasoned that because McDonald lived in the same neighborhood as the Goldman property, her statement and actions regarding the post-contract issues and closing were a targeted attempt to prevent the sale based on his race. Stewart’s agent agreed that she seemed to be going out of her way to prevent the sale, and he noted that her confrontational behavior and threats to terminate arose immediately after Stewart’s meeting with Goldman at which point she could have learned his race.

As a result of McDonald’s comment and behavior, Stewart claimed to have suffered lost wages due to lack of focus and concentration at work, difficulty sleeping, and worry about not being welcome in the neighborhood in which both McDonald and Goldman continue to reside.

Stewart filed suit against McDonald, and the trial court granted summary judgment to McDonald, finding that (1) Stewart failed to show that McDonald’s conduct was racially motivated, and (2) Stewart had not suffered a distinct, palpable injury. Under each of the three subsections of the Act under which Stewart has asserted injury, the trial court held that he had failed to show McDonald’s conduct was discriminatory because (1) there was no evidence McDonald knew Stewart’s race; (2) the message related to the fence was not a racist statement or evidence of racial animus; (3) McDonald’s actions threatening to kill the deal were reasonable negotiations; (4) McDonald’s refusal to give Stewart the keys at closing “was... prudent”; and (5) the failure of Goldman to provide the termite letter could not “be tied to any discriminatory conduct by McDonald.”

1. Stewart argues that the trial court erred by finding that he failed to show that McDonald’s conduct and statement was discriminatory.

“The ... Act, which is nearly identical to the Federal Fair Housing Act (“FHA”), allows aggrieved persons to seek actual and punitive damages for violations of the Act.” “Given that the . . . Act and the FHA are nearly identical, we consider federal cases construing the FHA persuasive precedent applicable to the instant dispute.” Under the Act,

it shall be unlawful... [t]o discriminate against any person in the terms, conditions, or privileges of sale... of a dwelling, or in the provision of services or facilities in connection therewith, because of race...; [or t]o make, print, or publish or cause to be made, printed, or published any notice, [or] statement... with respect to the sale ... of a dwelling, that indicates any preference, limitation, or discrimination based on race ... or an intention to make any such preference, limitation, or discrimination.

Additionally, “[i]t shall be unlawful for any person or other entity whose business includes engaging in residential real estate related transactions to discriminate against any person in making available such a transaction or in the terms or conditions of such a transaction because of race----” And “[i]t shall be unlawful to coerce, intimidate, threaten, or interfere with any person in the exercise or enjoyment of, or on account of such person’s having exercised or enjoyed . . . any right granted or protected by this article.”

We apply Title VII discrimination analysis in examining Fair Housing Act discrimination claims. A plaintiff can establish a FHA discrimination claim under a theory of disparate treatment or disparate impact. To bring a disparate treatment claim, the plaintiff must first establish a prima facie case. Adapted to this situation, the prima facie case elements are: (1) plaintiff’s rights are protected under the FHA; and (2) as a result of the defendant’s discriminatory conduct, plaintiff has suffered a distinct and palpable injury. Establishing the prima facie case affords the plaintiff a presumption of discrimination. This test does not permit the court to consider rebuttal evidence at the prima facie case stage. After the plaintiff has established the prima facie case, the burden then must shift to the defendant to articulate some legitimate, nondiscriminatory reason for the action. To accomplish this, the defendant is only required to set forth a legally sufficient explanation. Assuming the defendant can successfully rebut the presumption of discrimination, the burden shifts back to the plaintiff to raise a genuine factual question as to whether the proffered reason is pretextual. Aplaintiff may succeed in persuading the court that she has been a victim of intentional discrimination, either directly by persuading the court that a discriminatory reason more likely motivated the defendant or indirectly by showing that the defendant’s proffered explanation is unworthy of credence. The trier of fact may consider the same evidence that the plaintiff introduced to establish a prima facie case in determining whether the defendant’s explanation is merely pretext. Once a prima facie case is established summary judgment for the defendant will ordinarily not be appropriate on any ground relating to the merits because the crux of a discrimination claim is the elusive factual question of intentional discrimination.

(a) The alleged discriminatory statement.

The Act

prohibits oral or written statements with respect to [the sale] of a dwelling that indicate a “preference, limitation, or discrimination” based on certain protected statuses .... Thus, to establish [McDonald’s] liability [Stewart had to show that] (1) [McDonald] made a statement; (2) the statement was made with respect to the sale or rental of a dwelling; and (3) the statement indicated a preference, limitation, or discrimination on the basis of [race]. To determine whether a statement meets the third prong, courts use an “ordinary listener” standard. If an ordinary listener would believe that the statement suggests a preference, limitation, or discrimination based on a protected status, the statement is deemed discriminatory. Evidence of the speaker’s motivation for making the discriminatory statement is unnecessary to establish a violation.

“[D]irect [verbal] evidence is composed of only the most blatant remarks, whose intent could be nothing other than to discriminate on the basis of some impermissible factor.” Thus, the alleged discriminatory statement in this case is not an overtly discriminatory statement. McDonald deposed that her statement about barbed wire fencing was an off-hand comment based on her viewing news footage regarding Oscar Pistorius, a South African facing murder charges at the time. In her mind, she was trying to get the issue handled so her sellers would not lose the deal; but it was a “silly” reply to Berholtz’s earlier communication, which had also been “silly.” While McDonald’s statement is altogether nonsensical in response to the issue of fence height, we simply cannot say that an ordinary listener would understand this statement as one that indicated McDonald had a preference or distaste for buyers of a certain race. To the extent that Stewart contends that Berholtz’s averment that she found the statement prejudicial and hurtful provides evidence that an “ordinary hearer” would view the statement as racist (thereby defeating a grant of summary judgment), he provides no citation to authority showing that the trial court’s inquiry into “ordinary hearer” is anything other than what a hypothetical “ordinary hearer” would understand with regard to the statement. Accordingly, we hold that the trial court did not err by denying Stewart’s claim pursuant to OCGA § 8-3-202 (a) (3) to the extent that he argues that the statement was an overt statement in violation of the Act.

(b) Instances of alleged discriminatory conduct.

We now address Stewart’s claims that the statement and other conduct, including (1) McDonald’s threats to terminate the deal based on the issues of (a) mold and foundation remediation, the sales price reduction and closing costs reduction, and the closing attorney; (b) the split closing; and (2) the failure to provide the keys and the termite letter, are circumstantial evidence of violations of the Act pursuant to OCGA §§ 8-3-202 (a) (2) and (a) (3), 8-3-204 (b), and 8-3-222. We hold that the trial court did not err by finding that Stewart failed to rebut McDonald’s legitimate, nondiscriminatory reasons for these occurrences.

First, although McDonald’s statements threatening to cancel the deal occurred after Goldman’s discovery of Stewart’s race (at which point the information could have been conveyed to McDonald), McDonald testified that the statements were made in an effort to negotiate a good deal for her clients by limiting the amount they paid in repairs and closing costs. Stewart argues that this reason was merely pretext because, as McDonald conceded, the fence repair, mold and foundation remediation, and the low appraisal, were issues that would have arisen with any purchaser, regardless of race. Stewart has not shown, however, that McDonald would not have made the same threats to terminate the sale to a buyer of a different race.

With regard to the closing attorney issue, the split closing, the termite letter, and the refusal to provide the keys at the end of the closing (but prior to a complete transfer of funds), McDonald deposed that Goldman, not she, was the impetus for the refusals to use Stewart’s attorney, for the decision to have a split closing, and for refusing to provide the termite letter and keys because he was upset with the amount of repairs to the house and changes to the contract that were being made after signing the sales agreement.

While we question whether a seller would care about the identity of the closing attorney or would know to request a split closing independent of McDonald, and McDonald conceded in her deposition that she counseled Goldman that he was not required to provide the termite letter after closing, even if we attribute each of these actions to McDonald and take into account the statement about barbed wire fencing, we cannot say that the trial court erred by finding that Stewart failed “to provide evidence that the reasons asserted by [McDonald] were mere pretext.” Accordingly, the trial court did not err by granting the motion for summary judgment.

Decided November 13, 2015.

Dovin Malkin & Fichen, Edward J. Dovin, for appellant.

Weissman, Nowack, Curry & Wilco, Ned Blumenthal, Ashoo N. Sharman, for appellee.

2. Stewart argues that the trial court erred by finding that he had not presented sufficient evidence to show he had suffered a distinct, palpable injury. But based on our conclusion in Division 1 of this opinion, we need not address this enumeration.

Judgment affirmed.

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

       OCGA § 8-3-200 et seq.

       OCGA § 10-6A-5 (a) (4).

       Although Stewart’s claims for breach of professional duty and intentional infliction of emotional distress were voluntarily dismissed, the trial court addressed them in its order granting summary judgment to McDonald. Regardless, because Stewart enumerates error only as to the grant of summary judgment regarding the violations of the Act, we do not address the portion of the trial court’s order dealing with those other claims.

       (Citations and punctuation omitted.) Bailey v. Stonecrest Condo. Assn., 304 Ga. App. 484, 485 (696 SE2d 462) (2010).

       We note that the trial court’s order did not contain a recitation of the burden-shifting framework generally used when allegations of circumstantial evidence of discrimination arise. See, e.g., Bailey, 304 Ga. App. at 488 (1) (“Claims based on circumstantial evidence are subject to a burden-shifting analysis that was first developed by the United States Supreme Court for employment discrimination cases in McDonnell Douglas Corp. v. Green[, 411 U. S. 792 (93 SCt 1817, 36 LE2d 668) (1973)].”). Nevertheless, we presume that the trial court understood and applied the correct law unless the plaintiff shows otherwise. See Infinite Energy v. Ga. Public Svc. Commission, 257 Ga. App. 757, 759 (1) (572 SE2d 91) (2002) (“ ‘The trial judge is presumed to know the law and presumed to faithfully and lawfully perform the duties devolving upon it by law. This [C]ourt will not presume the trial court committed error where that fact does not affirmatively appear.’ ”).

       (Footnote omitted.) Bailey, 304 Ga. App. at 487 (1). See OCGA § 8-3-217.

        Bailey, 304 Ga. App. at 487 (1), n. 3.

       OCGA § 8-3-202 (a) (2), (a) (3).

       OCGA § 8-3-204 (b).

       OCGA § 8-3-222.

       (Citations and punctuation omitted.) Harris v. Itzhaki, 183 F3d 1043, 1051 (II) (A) (9th Cir. 1999).

       (Citations and punctuation omitted.) Corey v. U. S. Dept. of Housing & Urban Dev., 719 F3d 322, 326 (II) (A) (2013). See also OCGA §§ 8-3-222; 8-3-204 (b).

       (Punctuation omitted.) Bailey, 304 Ga. App. at 488(l) (a). See also Coldwell Banker Real Estate Corp. v. DeGraft-Hanson, 266 Ga. App. 23 (596 SE2d 408) (2004) (addressing evidence of overtly racist comments regarding a home sale including “those people” and “[w] e don’t need their kind here”).

       Compare with id.

       See, e.g., Ragin v. Harry Macklowe Real Estate Co., 6 F3d 898, 905-906 (B) (2nd Cir. 1993).

       See also OCGA § 8-3-204 (b) (applying the Act to real estate agents).

       See also id.

       See Bailey, 304 Ga. App. at 490-492 (1) (b).

       McDonald noted, however, that the type of fence installed (wood versus chain-link) was an upgrade rather than a remediation; nevertheless, she previously had explained that if the deal fell through it would have been much more likely that a new buyer would have been attracted by a wood rather than chainlink fence.

       See, e.g., Grant v. The Phoenix on Peachtree Condo. Assn., 331 Ga. App. 306, 308-311 (2) (a), (b) (771 SE2d 15) (2015) (affirming summary judgment because there was no showing that white owners were treated differently with regard to the rule enforced against a black owner to support claims under OCGA §§ 8-3-202 (a) (2), 8-3-222).

        Bailey, 304 Ga. App. at 491-492 (1) (b) (“pretext is established by a direct showing that a discriminatory reason more likely motivated the defendant or by an indirect showing that the defendant’s explanation is not credible”) (punctuation omitted), quoting Blockum v. Fieldale Farms Corp., 275 Ga. 798, 802 (4) (573 SE2d 36) (2002).


text:
    A15A0990.
    JACKSON v. THE STATE.
    (779 SE2d 700)
   DOYLE, Chief Judge.

Alexander Lorenzo Jackson was convicted of rape and false imprisonment. Jackson appeals, arguing that (1) the evidence was insufficient, and that the trial court erred (2) by finding his statement was admissible, (3) by denying his motion to bar the investigating officer from the courtroom pursuant to the rule of sequestration, (4) by failing to charge the jury on the rights of juveniles, and (5) by allowing the State to replay a recorded copy of his interrogation. For the reasons that follow, we affirm.

Following the denial of a motion for new trial,

we view the evidence in the light most favorable to the verdict and an appellant no longer enjoys the presumption of innocence. This Court determines whether the evidence is sufficient under the standard of Jackson v. Virginia, [ ] and does not weigh the evidence or determine witness credibility. Any conflicts or inconsistencies in the evidence are for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make outthe State’s case, we mustupholdthe jury’s verdict.

So viewed, the evidence shows that on July 17, 2009, S. T., who was 17 years old at the time, arrived in the early morning hours at the home of Florence Smith and slept for a few hours, sharing a bed with her female cousin, T. B. Around 10:00 or 11:00 a.m., S. T. awoke and went to the bathroom to take a shower. Jackson, who also was 17 years old at the time, followed S. T. into the bathroom, locking the door behind him. When S. T. verbally resisted, Jackson put a hand over her mouth to the point of causing her to bleed, removed her remaining clothes, and forcibly performed vaginal intercourse.

While this occurred, T. B. was attempting to get into the bathroom to find out what was going on, and she contacted some older relatives with the intent to tell them about what was transpiring. Those relatives later told Ms. Smith, who came home and made Jackson leave; another relative reported the incident to the police.

Jackson was interviewed by police later that day, and he acknowledged that he put at least the “head” of his penis in S. T.’s vagina, and although he conceded that he pushed his way into the bathroom, that he held S. T. to prevent her from leaving, that he covered her mouth with his hand to prevent her from screaming, he thought that at the time of the actual act S. T. was consenting to the intercourse. In the interview, Jackson conceded that he called S. T.’s mother and admitted he was wrong. Jackson was convicted of rape and false imprisonment, and this appeal followed.

1. Jackson contends that the trial court erred by determining that the statement he made to police was admissible. Jackson also argues that the trial court erred by denying his request to charge the jury as to the rights of juveniles.

(a) Relying on J. D. B. v. North Carolina, Jackson contends that the trial court erred by finding that his Mirandized statements to police were freely and voluntarily given because he was 17 years old at the time, which the trial court should have heavily weighed in its Jackson-Denno analysis.

In ruling on the admissibility of an in-custody statement, a trial court must determine whether a preponderance of the evidence demonstrates that the statement was made freely and voluntarily. Unless clearly erroneous, we accept the trial court’s factual findings and credibility determinations relating to the admissibility of the defendant’s statement. When controlling facts discernible from a videotape are not disputed, our standard of review is de novo.

Here, Jackson was accompanied on the day of the incident to the police station by his aunt, and his stepfather joined them there, and Jackson was separated from them only by a partition instead of being taken to a separate room. Agent Carl Murray, who conducted the interrogations, utilized a waiver form to advise Jackson of his Miranda rights prior to interviewing him.

Jackson specifically argues that he asked to have his stepfather in the interview and wanted to speak with him prior to signing the waiver form and was prevented from doing so. But at the hearing, Jackson also acknowledged that he understood his rights at the time of the interrogation and he understood that he was waiving them. Jackson also acknowledged that he spoke with his stepfather in the two-minute break between the first interview and the second.

Based on the record before us, we cannot say that the trial court clearly erred by finding that Jackson was advised of his Miranda rights and that he voluntarily waived them without any hope of benefit, coercion, or fear of injury. Although Jackson may have preferred to speak with his stepfather prior to the interview, based on Jackson’s own statements in the record, the trial court could conclude properly that he understood his rights and what he was waiving even without the benefit of speaking with his parent and even though he would not reach the age of majority for another year, which would only be factors among many for the court to weigh. Accordingly, the trial court did not err by allowing the State to play the interview to the jury.

(b) Because we have determined that the trial court did not err by finding Jackson’s statement admissible, and because Jackson presents no other argument against the second playing of the interrogation apart from his contention that the interrogation was involuntary, his argument that the second playing was erroneous is without merit.

(c) Jackson also argues that the trial court erred by declining to charge the jury as to knowing and voluntary waiver involving a minor.

Jackson requested that the trial court instruct the jury as to his constitutional rights regarding his interrogation:

In considering whether a statement by a juvenile defendant was made with a knowing and intelligent waiver of his/her constitutional rights, you are to consider the totality of the circumstances. Factors you may consider to determine whether the defendant has made a knowing and intelligent waiver include but are not limited to (1) the age of the defendant, (2) the education of the defendant, (3) the knowledge of the defendant as to the substance of the charge and nature of his/her rights to consult an attorney, (4) whether the defendant was allowed to consult with relatives or an attorney, (5) whether the defendant was interrogated before or after formal charges had been filed, (6) methods used in questioning, (7) length of questioning, (8) whether the defendant refused to voluntarily give statements on prior occasions, and (9) whether the defendant withdrew or denied making the statement at a later date.

While the trial court did not give this charge, it did charge the jury as to constitutional rights of defendants regarding statements, the burden of proof as to waiver of rights, conditions precedent to consideration of a statement, and corroboration of a defendant’s statement. Pretermitting whether it was erroneous for the trial court to fail to give this charge, we discern no reversible error because (1) the majority of the charge was covered by the other voluntariness charges; (2) Jackson was not of so tender an age to make his situation substantially different than that of an 18-year-old in a custodial interrogation; and (3) there was overwhelming evidence that his statement was voluntary as concluded in Division 1 (a).

2. In five enumerations of error, Jackson essentially argues that the evidence was insufficient to support the verdict, and thus, the trial court erred by denying his motion for a directed verdict and for a new trial.

Jackson contends that the State failed to submit scientific evidence to support the verdict, there was no credible, consistent, direct evidence other than S. T.’s testimony, and S. T.’s testimony was not credible because of the lapse of a few hours prior to telling someone. Nevertheless, S. T.’s testimony standing alone was sufficient to support the verdict, and issues of consistency and credibility were for the jury to decide.

3. Finally, Jackson argues that the trial court erred by overruling his objection and allowing the investigating officer to be present in the courtroom prior to Jackson’s testimony.

The practice of separating witnesses or, as generally called, putting under the rule, is of ancient origin and salutary in the proper administration of justice, the object being, of course, to prevent one witness from being taught by another as to the testimony he should give. The mandate of the law is that in all cases either party shall have the right to have the witnesses of the other party examined out of the hearing of each other, and[ ] hence, the rule is applicable and mandatory in an interlocutory hearing. Exceptions to the rule exist. The trial court may allow an investigative officer to remain in the courtroom to assist the prosecutor in the orderly presentation of evidence. Thus, while application of the rule is mandatory, the trial court has the discretion to grant an exception if it appears that in making the exception to the rule, the fair rights of the opposite party are secured or the impairment of the efficiency of the court avoided by allowing a deputy or other officials, who are witnesses, to remain in the courtroom. The trial court’s exercise of its discretion to allow an exception to the rule will not be reversed on appeal unless it was abused.

Decided November 13, 2015.

David E. Morgan III, for appellant.

Denise D. Fachini, District Attorney, Lauren T. Warbington, Bradford L. Rigby, Assistant District Attorneys, for appellee.

Jackson specifically contends that the trial court failed to exercise its discretion in allowing Agent Murray to remain in the courtroom because the State did not present argument as to why it was necessary. In response to Jackson’s invocation of the rule, the State responded, “[w]e would just request that you allow our prosecutor to sit at the table.” No other explanation, however cursory, was provided by the State for needing Agent Murray in the courtroom prior to his time to testify. Thus, it was error for the trial court to allow Agent Murray to remain in the courtroom. Nevertheless, because the evidence against Jackson was overwhelming, including Jackson’s own statements and the testimony of the victim and T. B., reversal is not required.

Judgment affirmed.

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

       OCGA § 16-6-1 (a) (1).

       OCGA § 16-5-41 (a). Jackson was acquitted of one count of battery.

       See Stephens v. State, 247 Ga. App. 719 (545 SE2d 325) (2001).

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

       (Punctuation omitted.) Traylor v. State, 332 Ga. App. 441, 442 (773 SE2d 403) (2015), quoting Rankin v. State, 278 Ga. 704, 705 (606 SE2d 269) (2004).

       Ms. Smith died prior to trial.

       564 U. S. 261, 277 (II) (B) (131 SCt 2394, 180 LE2d 310) (2011) (“[S]o long as the child’s age was known to the officer at the time of police questioning, or would have been objectively apparent to a reasonable officer, its inclusion in the custody analysis is consistent with the objective nature of that test.”).

        Miranda v. Arizona, 384 U. S. 436 (86 SCt 1602, 16 LE2d 694) (1966).

        Jackson v. Denno, 378 U. S. 368 (84 SCt 1774, 12 LE2d 908) (1964).

       (Citation and punctuation omitted.) Bunnell v. State, 292 Ga. 253, 255 (2) (735 SE2d 281) (2013), quoting Humphreys v. State, 287 Ga. 63, 73 (6) (694 SE2d 316) (2010), citing Sosniak v. State, 287 Ga. 279, 279-280 (1) (695 SE2d 604) (2010).

       Although there is an audio recording of the second portion of the interview, there is no recording of the first portion or the break during which time Jackson contends that he asked to speak with his stepfather.

       See Bunnell, 292 Ga. at 255 (2) (“Whether a defendant waives his rights ... and makes a voluntary and knowing statement depends on the totality of the circumstances.”) (citation omitted).

       See McKoon v. State, 266 Ga. 149, 151 (2) (465 SE2d 272) (1996) (“This Court has held that there is no requirement that a parent be present during questioning of a minor. The absence of a parent is just one of nine factors that this Court considers.”).

       Suggested Pattern Jury Instructions Vol. II: Criminal Cases (2015), § 1.32.22.

       SuggestedPatternJuryInstructionsVol.il: Criminal Cases (2015), §§ 1.32.21,1.32.40, 1.32.50, 1.32.70.

       See, e.g., Tran v. State, 246 Ga. App. 153, 160 (7) (539 SE2d 862) (2000) (a trial court does not err in failing to give a requested charge “when its charge as a whole contains the same principles of law set forth in the request”).

       See J. D. B., 131 SCt at 2406 (II) (B) (“a child’s age will [not] be a determinative, or even a significant, factor in every case”).

       See Robinson v. State, 272 Ga. 752, 754 (2) (533 SE2d 718) (2000) (no reversible error based on trial court’s failure to give requested voluntariness charge); Chase v. State, 277 Ga. 636, 639-640 (2) (592 SE2d 656) (2004) (explaining circumstances in which failure to give a jury instruction is harmful as a matter of law).

       See Ruffin v. State, 333 Ga. App. 793 (1) (777 SE2d 262) (2015) (“the victim’s testimony, standing alone, would have been sufficient to authorize a verdict of guilt/’); Warren v. State, 265 Ga. App. 109, 110 (592 SE2d 879) (2004) (“[T]he General Assembly long ago removed the corroboration requirement from the rape statute. Therefore [the defendant’s] corroboration argument has no support in the law and will not be considered by this [C]ourt.”) (punctuation omitted); Greulich v. State, 263 Ga. App. 552, 554 (2) (588 SE2d 450) (2003) ("The jury obviously believed the victim’s testimony as to the two counts on which [the defendant] was found guilty. Determining the credibility of witnesses is entirely within the province of the jury.”) (punctuation omitted); OCGA § 16-6-1 (a) (1) (“Aperson commits the offense of rape when [the defendant penetrates the female sex organ with his sex organ] forcibly and against [the victim’s] will.”); OCGA § 16-5-41 (a) (“Aperson commits the offense of false imprisonment when, in violation of the personal liberty of another, he arrests, confines, or detains such person without legal authority.”).

       (Citations, punctuation and footnote omitted.) Smith v. State, 324 Ga. App. 100, 102-103 (1) (749 SE2d 395) (2013).

       See, e.g., Warner v. State, 281 Ga. 763, 765 (2) (642 SE2d 821) (2007).

       See Carter v. State, 271 Ga. App. 588, 590-591 (2) (610 SE2d 181) (2005).

       See id.

       See Glass v. State, 289 Ga. 542, 548 (6) (c) (712 SE2d 851) (2011).


author: Branch, Judge.

text:
    A15A1024.
    RANDOLPH v. THE STATE.
    (780 SE2d 19)
   Branch, Judge.

Based on his sworn testimony during a prior murder trial, a jury found Davan Randolph guilty of distributing marijuana, conspiring to distribute marijuana, and violating the Georgia Street Gang Terrorism and Prevention Act. Randolph appeals, arguing that his prosecution was barred by procedural double jeopardy, the state engaged in selective prosecution, venue was not proven, and there was insufficient evidence of the gang crime. We affirm the drug convictions, but reverse the gang activity conviction.

Viewed in a light favorable to the verdict, the record shows that on August 29, 2006, a Camden County residence burned down and authorities discovered the body of Michael Ryan Foley, who had lived there with several roommates, in the remains. Foley had been shot to death before the fire. Special Agent Richard Dial of the Georgia Bureau of Investigation, the lead investigator on the case, soon learned that Foley was a marijuana seller who had scheduled a drug deal for the morning of August 29. Dial and other agents tried “to find out who the deal was with and track that because those are the last people we believe had been present with [Foley] prior to his death.”

Dial interviewed two of Foley’s roommates, Josh Bordelon and Richard Allen Wessinger, and prepared summary reports that he later turned over to the prosecutor. Bordelon told Dial that on August 28, the night before the fire, Foley had said that a former neighbor, along with two of the neighbor’s friends, wanted to buy a pound of marijuana and were planning to come over on the morning of August 29 to complete the transaction. According to Bordelon, the prospective buyers wished to sample the marijuana first, so Foley rode around in their car and smoked a “blunt” with them the night of August 28. Foley reportedly told Bordelon that he was uneasy about the pending deal because “the buyers wished to pay more than the going rate for the marijuana.”

Wessinger gave a similar account. He told Dial that upon arriving home on the night of August 28, he saw a car with two black males inside pulling out of the driveway. Wessinger said that Foley was standing in the driveway as the car was backing out and that Foley later told him that the men wanted to buy a pound of marijuana from him. According to Wessinger, Foley said that “he did not know the boys but knew one of the boy’s brother.” Foley’s girlfriend also told Dial that Foley had told her he “didn’t really know” the people involved in the pending deal.

Through further investigation, Dial identified Randolph as the former neighbor and “brother” to whom Bordelon and Wessinger had referred. Inside Randolph’s car, authorities found a slip of paper with Foley’s cell phone number written on it. Foley’s cell phone records showed that he had received multiple calls on August 28 from the residences of two of Randolph’s girlfriends. Several people told Dial that they had seen Foley sell small amounts of marijuana to Randolph in the past.

Randolph was arrested and charged with murder, armed robbery, arson, and gun possession. He was not charged with any drug or gang-related crimes. After the arrest, Dial took pictures of Randolph’s chest, which bore several tattoos characteristic of the Folk Nation gang. Randolph — who was then in his thirties — told Dial that he had gotten the tattoos a long time ago.

Randolph testified at trial in his own defense. He said that he had met Foley 11 months before his death, smoked marijuana with him, and regularly bought small amounts of the drug from him for personal use. Randolph said that he had introduced other people — some of whom he knew and some of whom he did not know — to Foley as potential customers. Randolph explained that he had also helped Foley deliver marijuana: “[I]f I had friends that wanted some and I was already going to get some and me and a friend of mine were planning to get together or something I would ... go ahead and get theirs and take it to them.” Finally, Randolph testified that Foley would bring his marijuana and scales to Randolph’s girlfriend’s house, where he and Foley “would weigh it up and we would put it in bags.” According to Randolph, Foley would repay him for this assistance with approximately $25 worth of marijuana.

Randolph testified that he used to belong to the Folk Nation gang and that he had introduced Foley to some fellow gang members, or “brothers,” who then bought marijuana from him. Randolph said that these people • — • not him — were the ones who arranged to buy a large quantity of marijuana from Foley, met with him on the night of August 28, and killed him and burned the house the next day. Randolph, however, refused to name the men. When asked the reason for his silence, he responded, “Did you see what they did to [Foley] ? Do you think I’m going to let them do that to me and my family? Do you think I’m going to call these people’s names?” The jury found Randolph not guilty of all charges.

The state then brought a new indictment against Randolph charging him with four crimes based on his testimony in the first trial: (1) conspiracy to distribute marijuana, in that he had “put Ryan Foley in contact with other persons ... for the purpose of distributing marijuana”; (2) conspiracy to distribute marijuana, in that he had weighed and packaged marijuana for the purpose of distribution; (3) distribution of marijuana, party to a crime, in that he had aided and abetted Foley by packaging marijuana for distribution and contacting purchasers; and (4) violation of the Georgia Street Gang Terrorism and Prevention Act, in that he had been associated with a gang and participated in gang activity by distributing marijuana. Randolph moved to dismiss the indictment on the ground that it violated the procedural double jeopardy protections in OCGA § 16-1-7 (b), which prohibits multiple prosecutions arising from the same conduct. The trial court denied the motion. Randolph also moved to dismiss on the ground that he was the victim of selective prosecution in retaliation for his acquittal in the first trial, but the trial court apparently denied this motion as well.

The case proceeded to trial, and the state called two witnesses — Dial and the assistant district attorney who had prosecuted the first case. Dial testified that Randolph was not charged with any drug distribution crimes in his first trial because at that point, “all we had information was that Davan Randolph had purchased small amounts of marijuana.” It was not until Randolph took the stand during the first trial that Dial learned that he had “been more involved in Ryan Foley’s marijuana deals” and had introduced prospective customers — including gang members — to Foley. Dial further testified that Randolph was not charged with any gang crimes in his first trial because Dial “didn’t have any knowledge that he was using gang affiliation to distribute drugs until he testified during the first trial.”

The assistant district attorney who prosecuted the first case likewise testified that no drug or gang charges had been brought against Randolph at that time because he had no information to support such charges. The assistant district attorney also stated that the first time he learned that Randolph had introduced buyers to Foley, packaged marijuana for distribution, and actively associated with gang members was when Randolph testified at the first trial. Excerpts from Randolph’s testimony at the first trial were read aloud to the jury.

Randolph again took the stand in his own defense. He testified that he had joined the Folk Nation gang for self-protection years ago while he was in prison in Tennessee, but was no longer an active gang participant. Randolph moved to Georgia in 2005, lived with relatives, and worked a variety of jobs. He testified that one day he was playing basketball and wearing a tank top that revealed his tattoos when some men recognized the tattoos, approached him, identified themselves as members of Folk Nation, and asked if Randolph was also affiliated with the gang. Randolph said that he told the men he was “retired.” Randolph encountered the men again later, and they asked him, “[Y]ou know anybody who got some bud because we can’t find any.” At that point — two months before Foley’s murder — Randolph arranged a meeting between Foley and the men. Randolph claimed that he did not know the men well and did not regularly associate with them. Randolph also claimed that he believed the men were “just weed smokers just like me” who wanted small quantities of marijuana for personal use; “they weren’t buying for the gang.” According to Randolph, the men “just happened to be gang members. But this wasn’t like you’re buying five or ten pounds for the gang ... to make money off of it. . . . [T]his wasn’t a gang issue.”

After the close of the evidence, the trial court instructed the jury that Randolph had raised a double jeopardy defense, that his prosecution would be barred if the crimes charged in the second indictment were known to the proper prosecuting authority at the commencement of the first trial, and that the jury had to decide “what facts the prosecutor knew” at that time. The jury was given a special verdict form asking if “any or all o[f] this prosecution is barred by Double Jeopardy.” After deliberating, the jury answered the question in the negative and found Randolph guilty on all four counts. For the purpose of sentencing, the trial court merged counts one and two with count three and sentenced Randolph to ten years on the drug crimes and fifteen years on the gang crime, to run consecutively. Randolph filed a motion for new trial, which the court denied. This timely appeal followed.

1. Randolph contends that the trial court erred by denying his motion to dismiss the indictment on procedural double jeopardy grounds. “The procedural aspect of the double jeopardy rule prohibits multiple prosecutions arising from the same conduct.” White v. State, 284 Ga. App. 805, 806 (644 SE2d 903) (2007) (citation and punctuation omitted). OCGA § 16-1-7 (b) requires the state to prosecute crimes in a single prosecution “[i]f the several crimes arising from the same conduct are known to the proper prosecuting officer at the time of commencing the prosecution and are within the jurisdiction of a single court.” “A second prosecution is barred under OCGA § 16-1-8 (b) (1) if it is for crimes which should have been brought in the first prosecution under OCGA § 16-1-7 (b).” Nicely v. State, 305 Ga. App. 387, 388 (1) (699 SE2d 774) (2010) (citation and punctuation omitted). Randolph argues that his second prosecution is barred because the state was aware of his marijuana distribution and gang crimes before the first trial.

To prevail upon his motion to dismiss, Randolph bore the burden of showing that the prosecutor had actual knowledge before the first prosecution of the facts supporting the charges in the second prosecution. Nicely, 305 Ga. App. at 388 (1); see also Billups v. State, 228 Ga. App. 804, 807 (1) (c) (493 SE2d 8) (1997) (“The prosecutor’s knowledge of all the facts determines whether a single prosecution is required.”) (emphasis in original). The trial court concluded that what the prosecutor knew before the first trial was a question of fact that should be resolved by the jury rather than by the court as a matter of law. See Daniels v. State, 78 Ga. 98, 103 (2) (1886) (fact questions related to applicability of double jeopardy defense “would have to be submitted to the jury”); Harris v. State, 193 Ga. 109,117(17 SE2d 573) (1941); compare Bell v. State, 249 Ga. 644, 645 (1) (292 SE2d 402) (1982) (“No question of fact was at issue in this special plea in bar [asserting double jeopardy], so it was unnecessary to have a jury hear the plea.”). Randolph has failed to show that he was entitled to judgment as a matter of law on his double jeopardy defense.

At the second trial, the state presented evidence that before the first trial, the only information it had about Randolph’s involvement in marijuana distribution was witness statements that he had previously bought small quantities of marijuana from Foley and had arranged, along with two other men, to buy a pound of marijuana from Foley on the morning of the murder. These witness statements did not demand a finding, as a matter of law, that the prosecutor had actual knowledge that Randolph had committed the crimes of conspiring to distribute marijuana and distributing marijuana. With regard to the gang crime, there was evidence that the state knew only that Randolph had joined a gang years, before, not that he was currently involved in drug-related gang activity. Under these circumstances, the trial court did not err by denying Randolph’s motion to dismiss on double jeopardy grounds.

2. Randolph argues that the trial court erred by denying his motion to dismiss based on selective prosecution because he was “the only one prosecuted for a drug offense after the murder trial of Ryan Foley” even though the evidence at the first trial showed that many other witnesses had committed drug crimes. Even assuming these factual assertions are accurate, Randolph failed to establish a claim of selective prosecution.

A defendant has the burden of proving, by the weight of the evidence, that his prosecution represents an intentional or purposeful discrimination which is deliberately based upon an unjustifiable standard, such as race, religion, or other arbitrary classification. A showing that others were not prosecuted for doing what the defendant allegedly did is not, in itself, sufficient to establish selective prosecution.

Mooney v. State, 266 Ga. App. 587, 588 (1) (597 SE2d 589) (2004) (citations and punctuation omitted). Randolph has neither alleged nor shown that he was singled out on the basis of any arbitrary classification. Thus, the trial court did not err by denying his motion.

3. Randolph asserts that the state failed to prove venue in Camden County because there was no testimony to establish the location of the store where he introduced Foley to the other gang members. This claim of error lacks merit, as Dial testified that the store was in Camden County.

4. Randolph maintains that there was insufficient evidence to support his conviction for violating the Georgia Street Gang Terrorism and Prevention Act, OCGA § 16-15-1 et seq. Because the state failed to present evidence that Randolph’s marijuana distribution crimes were intended to further the interests of the gang, we agree.

The Georgia Street Gang Terrorism and Prevention Act prohibits a person associated with a criminal street gang from participating in criminal street gang activity through the commission of a number of listed offenses. OCGA § 16-15-4 (a). “Criminal street gang” is defined as “any . . . group of three or more persons associated in fact, whether formal or informal, which engages in criminal gang activity [.]” OCGA § 16-15-3 (2). “Criminal gang activity,” in turn, is defined as “the commission, attempted commission, conspiracy to commit, or solicitation, coercion, or intimidation of another person to commit” any of a number of offenses, including “racketeering activity.” OCGA § 16-15-3 (1) (A). “Racketeering activity” includes violations of the Georgia Controlled Substances Act. OCGA § 16-14-3 (5) (A) (xxxiv). It is not enough, however, for the state simply to show that the defendant and other gang members committed a criminal act; rather, “there must be some nexus between the act and an intent to further street gang activity.” Rodriguez v. State, 284 Ga. 803, 807 (1) (671 SE2d 497) (2009) (punctuation omitted); see also Jones v. State, 292 Ga. 656, 659 (1) (h) (740 SE2d 590) (2013) (state must prove that “the commission of the predicate act was intended to further the interests of the [gang]”).

Thus far, we have uniformly rebuffed challenges that there was insufficient evidence of the requisite nexus between the crime and an intent to further gang interests. Our case law has supplied no test, guidelines, or list of factors relevant to determining whether the commission of a predicate crime was meant to “further the interests of the [gang],” Jones, 292 Ga. at 659 (1) (b); rather, we have simply analyzed the evidence in each particular case and found it to be sufficient. And in each case, the state has shown something more than the mere commission of a crime by gang members.

In Zamudio v. State, 332 Ga. App. 37 (771 SE2d 733) (2015), for example, we rejected the gang-member defendant’s argument that the state failed to prove that the fight that formed the basis of the criminal charges against him was undertaken to further the gang’s interest. We noted that the victim was a former member of a rival gang who had recently rej ected the defendant’s overture to “hang out” and that immediately before the fight broke out, the defendant “started arguing about gang-related stuff.” Id. at 42 (2) (b). We held that this evidence authorized the jury to find

a nexus between the defendant [’s] actions in seeking out and beating up the victim and [his] intent to further gang activity by ensuring that the gang responded strongly to the victim’s disrespect of a gang member’s offer of association.

Id. at 43 (2) (b).

Similarly, in Alston v. State, 329 Ga. App. 44, 46-47 (1) (763 SE2d 504) (2014), we held that evidence that the defendant and two fellow gang members wore gang colors to “represent” and talked about their gang affiliation moments before committing an armed robbery was sufficient to demonstrate a nexus between the crime and an intent to further gang activity. In addition, the state presented evidence that after the crime, one defendant wrote a letter acknowledging that he had violated gang rules by implicating his fellow gang members in the crime, and there was expert testimony that “the gang’s reputation is furthered by committing highly visible crimes in a manner which allows the witnesses and the victims to discern that a particular gang committed the crime.” Id. at 47 (1). See also Morey v. State, 312 Ga. App. 678, 686 (2) (b) (719 SE2d 504) (2011) (affirming conviction under OCGA § 16-15-4 where there was testimony that defendant was “repping his gang” while committing crimes); In the Interest of D. M., 307 Ga. App. 751, 752 (1) (706 SE2d 683) (2011) (nexus between crime and gang activity was shown by evidence that defendant and other gang members shot two people while wearing black bandannas over their faces, which “proclaims to the world that they are a [gang] member and that this is a gang act”) (punctuation omitted).

Decided November 13, 2015.

Earle J. Duncan III, for appellant.

Here, the state’s case against Randolph rested almost entirely on his sworn testimony in the first trial, which was read aloud to the jury. That former testimony showed that Randolph, who was a member of Folk Nation, had introduced Foley, who was not affiliated with a gang, to a variety of other people — some gang-affiliated and some not — and had helped Foley distribute small amounts of marijuana to those people. Thus, while the state may have shown that Randolph intended, by distributing marijuana, to further the interests of individual gang members in obtaining small quantities of marijuana for personal use, the state did not show that Randolph meant to further the interests of Folk Nation as an entity. There was no evidence, for example, that Randolph wore gang colors or accessories, talked about his gang affiliation, or otherwise “represented” the gang while he was committing drug crimes. Nor was there any evidence that Randolph’s distribution of personal-use amounts of marijuana to individual gang members benefitted the gang itself through monetary profit, enhanced reputation, or other means. Because the state failed to present evidence of the necessary nexus between Randolph’s drug crimes and an intent to further gang interests, his conviction under the Georgia Street Gang Terrorism and Prevention Act must be reversed.

5. Randolph maintains that the trial court erred by failing to merge his sentence for the drug crimes with his sentence on the gang crime. In light of our ruling in Division 4, we need not reach this issue.

Judgment affirmed in part and reversed in part.

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

Jacquelyn L. Johnson, District Attorney, Andrew J. Ekonomou, Assistant District Attorney, for appellee.

       See Falay v. State, 320 Ga. App. 781, 781 (740 SE2d 738) (2013).

       Wessinger later testified that he did not know who was in the oar.

       In his appellate brief, Randolph also refers to a statement that Dial took during the murder investigation from a Mr. Griffith or Griffin, who supposedly implicated Randolph in marijuana distribution. Randolph provides no citation to the statement, and it does not appear to be part of the appellate record. Therefore, we are unable to consider it. See Parker v. State, 283 Ga. App. 714, 717 (2) (d) (642 SE2d 111) (2007) (“factual assertions in briefs that are unsupported by the record cannot be considered in the appellate process”) (citation and punctuation omitted).

       Although the state does not raise this argument on appeal, we question whether the drug charges in the second indictment arose from the same conduct as the charges in the first indictment. In determining whether multiple offenses arose from the same conduct, courts should consider whether they involved the “same parties, circumstances, locations, and times.” Morgan v. State, 220 Ga. App. 198, 199 (469 SE2d 340) (1996) (citation and punctuation omitted). The drug activity to which Randolph admitted at the first trial, and which formed the basis for the second indictment, predated the planned one-pound drug deal between Foley and the people who killed him and involved different people and different quantities of marijuana in different locations.

       The record in this appeal does not contain the transcript from the first trial, and Randolph has cited no evidence to substantiate his assertion that no one else was prosecuted for drug crimes.