text:
    A12A1549.
    SCARBOROUGH v. THE STATE.
    (731 SE2d 396)
   Miller, Judge.

Following a bench trial, Jimmy Scarborough was convicted of 21 counts of sexual exploitation of a minor (OCGA § 16-12-100 (b) (8)). Scarborough filed a motion for new trial, which the trial court denied. On appeal, Scarborough contends that (1) the evidence was insufficient to support his convictions; and (2) the trial court erred in admitting photographs as evidence of lustful disposition. For the reasons set forth below, we affirm.

“On appeal from a criminal conviction, a defendant no longer enjoys the presumption of innocence, and the evidence is viewed in the light most favorable to the guilty verdict.” (Punctuation and footnote omitted.) Goss v. State, 305 Ga. App. 497 (699 SE2d 819) (2010).

So viewed, the evidence shows that in approximately July 2008, the property manager of a motel in Augusta, Georgia, was in the process of cleaning out the former property manager’s apartment when she found a CD labeled “Jimmy’s Pics and Music 2006.” The property manager put the CD in a bag with some other items and gave the bag to one of her tenants who was leaving the property. The tenant brought the CD back the next day, complaining that there were some “horrible pictures” on it. The owner of the motel, and the property manager’s boss, told the property manger to put the CD in her office, and that he would take care of it later. As the property manager and owner were busy with other matters, the CD was forgotten about and sat in the property manager’s desk for several weeks.

Scarborough was a tenant who rented a room at the motel. Scarborough had asked the property manager several times about any paperwork or CDs that had been left in the former property manager’s apartment.

On or around August 6, 2008, the property manager’s husband, who was the maintenance manager at the motel, located the CD when he was cleaning his wife’s desk. The property manager’s husband viewed the CD and told his wife what he had seen — pornographic pictures depicting children and adult men, as well as pictures of Scarborough and his family. The property manager and her husband called the police.

The responding officer viewed the CD at the motel property, and as he was exiting the motel office, he was stopped by a woman with a complaint of loud music from one of the motel rooms. The room to which the woman directed him was Scarborough’s. After a brief discussion with Scarborough, the responding officer ran his information and discovered that there was an outstanding warrant for Scarborough’s arrest. The officer arrested Scarborough and took him into custody.

The officer turned over the CD to an investigator. During his custodial interview, Scarborough admitted that he owned the CD, and that he had downloaded child pornography materials from the Internet.

1. Scarborough contends that the evidence was insufficient to support his convictions for three counts of sexual exploitation of a minor. Scarborough specifically argues that the photographs attached to these counts do not depict any lewd exhibition of genitals. We disagree.

Under OCGA § 16-12-100 (b) (8), “[i]t is unlawful for any person knowingly to possess or control any material which depicts a minor or a portion of a minor’s body engaged in any sexually explicit conduct.” The statute defines “sexually explicit conduct” in relevant part as “[l]ewd exhibition of the genitals or pubic area of any person[.]” OCGA § 16-12-100 (a) (4) (D).

All three counts which Scarborough challenges on appeal allege that he knowingly possessed a visual medium which depicted a minor engaged in sexually explicit conduct, to wit: a lewd exhibition of the genitals and pubic area. The exhibits attached to these three counts depict young girls, in full frontal nudity, standing on a stage. The pubic area of the young girls is clearly exhibited in each photograph. While Scarborough does not dispute the content of the photographs, he nevertheless contends that because the children “may actually have been participants, or perhaps contestants, in some type of pageant,” the photographs do not exhibit the children’s genital areas in an objectively lewd way.

Though the term [“lewd exhibition of genitals”] has not been defined in Georgia,. .. unless an act is found not to be lewd as a matter of law, whether such act is lewd under the attendant circumstances usually is best left to a jury for determination. In this case, there was a bench trial. When the trial court sits as the trier of fact, its findings are analogous to a jury verdict and will not be disturbed if there is any evidence to support them.

(Citations, punctuation and footnotes omitted.) Craft v. State, 252 Ga. App. 834, 839-840 (1) (558 SE2d 18) (2001). This Court has found that photographs depicting children with their genitals partially or completely exposed are not lewd as a matter of law where the children were shown engaged in innocent, nonsexual activities, such as sleeping, just sitting, playing with a toy, climbing a wall, taking a bath, or running around the house playing. See Phillips v. State, 269 Ga. App. 619, 625 (4) (b), 630 (9) (a) (604 SE2d 520) (2004); Craft, supra, 252 Ga. App. at 840-842 (1). In this case, however, it is not clear as a matter of law that the minors in the photographs were engaged in innocent, nonsexual activities. We conclude that a rational trier of fact could infer that, by being exhibited nude on stage, the young girls were engaged in the lewd exhibition of their genitals, and therefore, the evidence was sufficient to support Scarborough’s convictions on the three challenged counts. Cf. Craft, supra, 252 Ga. App. at 840 (1) (a) (photograph depicting minor female child in the nude and in the process of taking off her clothes constituted the lewd exhibition of genitals and was sufficient to support conviction for sexual exploitation of minors).

2. Scarborough next contends that the trial court abused its discretion in admitting, over his objection, certain photographs as evidence of lustful disposition.

The Georgia rule favors the admission of any relevant evidence, no matter how slight its probative value, and evidence is relevant if it renders the desired inference more probable than it would be without the evidence. The admission or exclusion of evidence which is objected to on the ground of relevancy lies within the sound discretion of the trial court, whose decision will not be disturbed on appeal absent a clear abuse of discretion.

Decided August 29, 2012.

Peter D. Johnson, for appellant.

R. Ashley Wright, District Attorney, Charles R. Sheppard, Assistant District Attorney, for appellee.

(Citation and punctuation omitted.) Phillips, supra, 269 Ga. App. at 624 (4).

The 20 photographs that Scarborough challenges include the depictions of his 13-year-old daughter, some of which display her posing while fully clothed, but the majority of which display her posing suggestively on a bed in a scant two-piece fairy costume. During trial, the State introduced these photographs to show Scarborough’s state of mind and his predisposition of having an interest in the sexual depictions of children, including his own daughter.

Even assuming the trial court abused its discretion in admitting the photographs of Scarborough’s daughter, the error was harmless in light of the overwhelming evidence against Scarborough. Cf. Phillips, supra, 269 Ga. App. at 627 (5) (b) (“Even assuming the trial court abused its discretion in admitting pornography which was not linked to the crimes charged, however, the error was harmless in light of the overwhelming evidence against Phillips on the issue of his intent [with respect to the charged crimes], and ... offer [ed] no basis for reversal.”) (citations and punctuation omitted). Notably, in addition to the three exhibits discussed in Division 1 above, the remaining photographs attached to each count of the indictment display young girls performing oral sex on men, young girls being penetrated by a man’s penis or finger, young girls having sexual intercourse with older men, or young girls fully nude and exhibiting their genitals in a suggestive manner. Therefore, any error in admitting the additional photographs of Scarborough’s daughter certainly offers no basis for reversal.

Judgment affirmed.

Mikell, P. J., and Ray, J., concur.


source: Caselaw Access Project

author: Miller, Judge.

license: Public Domain

text:
    A12A0812.
    NELSON v. THE STATE.
    (731 SE2d 770)
   Miller, Judge.

Raquel Nelson was convicted of misdemeanor homicide by vehicle in the second degree (OCGA § 40-6-393 (c)) after her four-year-old son, A. J., was tragically struck by an oncoming vehicle when he attempted to cross the street. The trial court granted Nelson a new trial on its own motion pursuant to OCGA § 5-5-40 (h). Nelson filed a post-conviction plea in bar on the ground of double jeopardy, contending that the evidence was insufficient to sustain her conviction at the former trial. The trial court denied Nelson’s plea in bar, from which Nelson appeals. For the reasons that follow, we must affirm.

On appeal from a criminal conviction, the evidence must be construed in a light most favorable to the verdict, and [Nelson] no longer enjoys a presumption of innocence. In evaluating the sufficiency of the evidence to support a conviction, we do not weigh the evidence or determine witness credibility, but only determine whether a rational trier of fact could have found the defendant guilty of the charged offenses beyond a reasonable doubt [under the standard set forth in] Jackson v. Virginia [, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979)].

(Citation, punctuation and footnotes omitted.) Mattox v. State, 305 Ga. App. 600 (699 SE2d 887) (2010). “The appellate standard of review of a grant or denial of a double jeopardy plea in bar is whether, after reviewing the trial court’s oral and written rulings as a whole, the trial court’s findings support its conclusion.” (Citation, punctuation and footnote omitted.) Id. at 603 (2).

So viewed, the trial evidence showed that on April 10, 2010, Nelson had spent the day running errands with her eight-year-old daughter, her two-year-old daughter, and her four-year-old son, A. J. At approximately 9:15 that evening, Nelson and her three young children were returning home, traveling on a public transportation bus.

The apartment complex where Nelson resided was located across a four-lane highway from the bus stop on Austell Road in Cobb County. The four-lane highway contained a raised center median that divided two southbound lanes, two northbound lanes, and a turn lane. The area of the roadway was straight. There was no crosswalk in the portion of the roadway between the bus stop and the apartment complex, but there were sidewalks leading to crosswalks at intersections located approximately 50 yards away from the bus stop. Nelson testified that on a prior occasion, she had walked to one of the intersection crosswalks, but she did not like walking the extra distance.

When Nelson and her children exited the bus, it was dark outside. Nelson was carrying three grocery bags, which she wrapped around her wrists so that she could hold her children’s hands while guiding them off of the bus. Nelson testified that she had never previously crossed Austell Road with her children at night, and thus, she was feeling apprehensive. After exiting the bus, A. J. immediately began to walk into the street, prompting Nelson to pull him back and scold him.

Two other women had exited the bus with Nelson and her children, and they all began to cross the four-lane highway outside of the crosswalk. Nelson stated that before crossing the first two lanes of the roadway, she looked both ways to ensure that no vehicles were approaching. Nelson and her children successfully crossed the first two lanes and reached the raised median that divided the highway.

Thereafter, Nelson and her children began attempting to cross the last two lanes of the highway toward the apartment complex. An eyewitness who had been driving on the roadway testified that she observed Nelson and her children step off of the median and cross into the street “a very short distance” ahead. The eyewitness stated that Nelson and her children were crossing in a line, and Nelson was leading in front of A. J. Suddenly, a van drove down the roadway toward Nelson and her children. The driver of the van quickly swerved in efforts to avoid hitting Nelson and her children. The van, however, struck A. J., who was then standing in the dotted lines between the lanes of the roadway.

The driver of the van testified that he was driving down the roadway, and “all of the sudden, just out of nowhere, people just ran out in front of [him].” The driver further stated that the pedestrians “jumped out in front of [him]” and Nelson ran four to five feet in front of his van. The driver tried to stop and swerved to avoid hitting the pedestrians, who were in the middle of the lane. The driver stated that he never saw A. J. and thought that he had only hit a basket and a post on the side of the road. The driver did not stop and left the scene of the accident.

After A. J. was struck, Nelson was distraught and attempted to render aid to A. J. in the roadway. A. J. died as a result of blunt head trauma that he sustained during the accident.

Following the accident, officers assigned to the Cobb County police department’s Selective Traffic Enforcement Program (“S.T.E.P.”) conducted an investigation and performed an accident reconstruction. The investigating officers testified as to the conditions that existed on the roadway at the time of the accident, including the facts that there was no crosswalk at that particular location, the roadway was mostly dark, and the speed limit along the highway was 45 miles per hour. The investigating officer further testified that an individual’s perception is greatly reduced at night, and that an individual’s ability to recognize a threat and react accordingly are lengthened at night. It was undisputed that A. J. was in the lane of travel when he was hit by the vehicle. After the investigation was completed, the investigating officers concluded that A. J.’s death was caused by Nelson’s act of leading A. J. into the roadway under unsafe conditions.

Nelson was charged, in pertinent part, with homicide by vehicle in the second degree under OCGA § 40-6-393 (c) and a pedestrian crossing violation under OCGA § 40-6-92 (a). Following the presentation of the evidence at trial, the jury found Nelson guilty of the charged offenses.

After sentencing Nelson to 12 months of probation and 40 hours of community service, the trial court offered Nelson the choice to either have a new trial or to proceed serving the sentence that had been imposed. The trial court subsequently entered an order granting a new trial. Thereafter, Nelson filed a double jeopardy plea in bar, contending that her retrial was barred since the evidence was insufficient to sustain her conviction. We disagree.

“[T]he Double Jeopardy Clause precludes a second trial once the reviewing court has found the evidence legally insufficient [.]” (Citations and punctuation omitted.) Ricketts v. Williams, 242 Ga. 303 (248 SE2d 673) (1978). Significantly, however, the trial court’s exercise of its discretion in granting a new trial based upon its finding that the verdict is against the weight of the evidence differs from a judgment of acquittal holding that the evidence is legally insufficient. See id. at 304. “[T]he grant of a new trial by the trial court on the discretionary ground that the verdict is against the weight of the evidence is not a finding by the trial court that the evidence is legally insufficient so as to bar a second trial under the Double Jeopardy Clause of the Federal Constitution.” (Punctuation omitted.) Id. at 304-305; see also Ramsey v. State, 258 Ga. 151 (366 SE2d 286) (1988) (“The granting of a new trial in the absence of a finding of not guilty or a finding of insufficiency of evidence does not ordinarily expose a defendant to double jeopardy or multiple prosecutions.”) (citations omitted). Here, the trial court did not specify its ground for granting a new trial. Notably, however, the trial court subsequently denied Nelson’s plea in bar and rejected her claim that the evidence was insufficient. In our review, we likewise conclude that the evidence presented at trial was sufficient to support the jury’s guilty verdict. Consequently, the trial court did not err in denying Nelson’s double jeopardy plea in bar.

Under OCGA § 40-6-393 (c),

[a]ny person who causes the death of another person, without an intention to do so, by violating [provisions of the title pertaining to motor vehicles and traffic, including OCGA § 40-6-92,] commits the offense of homicide by vehicle in the second degree when such violation is the cause of said death [.]

(Punctuation omitted.) In turn, OCGA § 40-6-92 (a) provides that “[e] very pedestrian crossing a roadway at any point other than within a marked crosswalk or within an unmarked crosswalk at an intersection shall yield the right of way to all vehicles upon the roadway unless he has already, and under safe conditions, entered the roadway.” (Punctuation omitted.)

As an initial matter, we note that the instant appeal presents a case of first impression in Georgia where a pedestrian or the parent of a child pedestrian has been criminally charged and convicted of second degree vehicular homicide after being struck by a vehicle while crossing the roadway in an unlawful manner. Nevertheless, nothing in the statutory language of OCGA § 40-6-393 (c) prohibits a vehicular homicide conviction against a pedestrian or a nondriver in this regard. Indeed, “this Court has held that an individual may be a p arty toa violation of the traffic laws without driving.” (Citation and punctuation omitted.) Guzman v. State, 262 Ga. App. 564, 566 (1) (a), 568 (1) (b) (586 SE2d 59) (2003) (affirming a nondriver defendant’s vehicular homicide conviction since the defendant’s actions in supplying the minor with alcohol and then allowing the intoxicated minor to drive played a substantial part in causing the two deaths).

In this case, Nelson’s vehicular homicide conviction under OCGA § 40-6-393 (c) was predicated upon her alleged pedestrian crossing violation under OCGA § 40-6-92 (a). She was also charged with the pedestrian crossing violation in a separate count of the accusation. Accordingly, we address both of these pertinent charges in turn below.

1. Pedestrian Crossing Violation. OCGA § 40-6-92 (a), as previously defined, mandates that a pedestrian crossing a roadway outside of a crosswalk must yield to vehicular traffic unless he has already made safe entry into the roadway.

Nelson initially argues that there was no evidence supporting this alleged violation since the meaning of the term “roadway” in the statute is ambiguous and the evidence did not establish when the entry into the roadway actually occurred. Nelson’s claim is without merit. OCGA § 40-1-1 (53) defines the term “roadway” as

that portion of a highway improved, designed, or ordinarily used for vehicular travel, exclusive of the berm or shoulder. In the event a highway includes two or more separate roadways, the term “roadway” shall refer to any such roadway separately, but not to all such roadways collectively.

Nelson correctly notes that the statutory definition excludes the berm or shoulder from being a part of the roadway, and that the four-lane highway in this case was separated by a raised median which would not be included in the roadway as defined. Nevertheless, there was no evidence that A. J. was standing on the berm, the shoulder, or the median at the time that he was hit. Rather, the undisputed evidence definitively established that A. J. had entered the roadway, had progressed into the middle of the lanes, and was in the path of oncoming vehicular travel at the time that he was struck.

Moreover, it was undisputed that there was no crosswalk in the area of the roadway where Nelson and her children had attempted to cross. While OCGA § 40-6-92 (a) does not absolutely prohibit a pedestrian from crossing the roadway outside of a crosswalk, the statute mandates that under those conditions, the pedestrian “shall yield the right of way to all vehicles upon the roadway unless he has already, and under safe conditions, entered the roadway.” (Emphasis supplied.) Nelson contends that the State failed to present any evidence that she and her children had entered the roadway in an unsafe manner. Again, Nelson’s contention is without merit.

Viewed in the light most favorable to the verdict, the trial evidence authorized a finding that Nelson had unsafely led her children into the path of oncoming vehicular traffic. An eyewitness testified that as she was driving down the roadway, she observed Nelson lead her children off of the median and into the roadway “a very short distance” ahead of the quickly approaching van. In addition, the driver of the van that struck A. J. testified that while he was driving down the roadway, Nelson and the pedestrians suddenly ran in front of his van. Moreover, the investigating officer testified that an individual’s perception is greatly reduced at night. This combined evidence authorized a finding that Nelson had led her children into the dark roadway as vehicles were approaching and under dangerous circumstances. Accordingly, the evidence was sufficient to establish that Nelson had violated OCGA § 40-6-92 (a) by crossing the roadway outside of a crosswalk and by failing to enter the roadway in a safe manner.

2. Homicide by Vehicle in the Second Degree. In order to prove vehicular homicide, the State is required to show a causal connection between the defendant’s violation and the victim’s death. See Leachman v. State, 286 Ga. App. 708, 710 (649 SE2d 886) (2007); Williams v. State, 165 Ga. App. 831, 832 (302 SE2d 736) (1983) (the conduct of the accused must be the cause of death in order to warrant a conviction for homicide by vehicle in either the first or second degree). In essence,

[t]he State must prove that the defendant’s conduct was the “legal” or “proximate” cause, as well as the cause in fact, of the death. An injury or damage is proximately caused by an act or a failure to act whenever it appears from the evidence in the case that the act or omission played a substantial part in bringing about or actually causing the injury or damage and that the injury or damage was either a direct result or a reasonably probable consequence of the act or omission. It is not sufficient to show that the defendant only contributed to the cause of the injury.

(Citations and punctuation omitted.) Guzman, supra, 262 Ga. App. at 568 (1) (b).

Notwithstanding Nelson’s challenge, the jury was authorized to conclude that Nelson’s actions in crossing the roadway had caused A. J.’s death within the meaning of OCGA § 40-6-393 (b). As stated above, the State presented evidence reflecting that Nelson had led A. J. into the dark roadway while vehicular traffic was approaching. The evidence reflected that Nelson’s action placed A. J. in the path of the quickly approaching van, which caused him to be struck and fatally injured. In light of the evidence, and the totality of the circumstances, the jury was authorized to find that Nelson’s crossing violation under OCGA § 40-6-92 (a) played a substantial part in causing A. J.’s death. The evidence also permitted a finding that A. J.’s death after being struck by a vehicle was a reasonable probable consequence of the act of crossing the highway in the path of the oncoming vehicular traffic.

Nelson nevertheless argues that this Court should weigh the evidence and consider the driver’s duty under OCGA § 40-6-93 to exercise due care to observe children and avoid pedestrians in the roadway. Nelson further argues that the evidence supported a theory of a mere accident, which would not authorize a conviction in light of OCGA § 16-2-2. Nelson’s arguments, however, are unavailing at this procedural posture. In evaluating the sufficiency of the evidence to support a conviction on appeal, this Court does not weigh the evidence, determine witness credibility, or resolve evidentiary conflicts. See Mattox, supra, 305 Ga. App. at 600. Rather, those duties rest within the province of the jury and “[i]t is the jury’s function to draw an inference from the evidence when more than one inference can be drawn.” (Citation and punctuation omitted.) Young v. Kitchens, 228 Ga. App. 870, 874 (3) (492 SE2d 898) (1997); Tucker v. Love, 200 Ga. App. 408, 409-410 (2) (408 SE2d 182) (1991) (“The obligation to weigh the evidence and to determine witness credibility rests with the jury. This court considers only the sufficiency of the evidence. On appeal an appellate court is bound to construe the evidence in support of the verdict and judgment, and if there is some evidence to support the verdict, we will uphold the judgment.”) (citations and punctuation omitted).

The evidence in this case presented a jury question as to whether the collision was caused by the driver’s negligence. See Young, supra, 228 Ga. App. at872-874 (3) (ruling that a jury was required to resolve the questions as to whether the pedestrian fatality was caused by the pedestrian’s failure to comply with the statutory provisions regarding walking on a roadway or the driver’s failure to exercise due diligence to ensure that the lane was clear of pedestrian traffic). Since there was some evidence reflecting that Nelson and A. J. had darted into the roadway in front of the oncoming van when A. J. was struck, the jury was not required to find that the collision was caused by the driver’s negligence. See Etheredge v. Kersey, 236 Ga. App. 243 (510 SE2d 544) (1998) (ruling that the driver was not negligent when the evidence revealed that the driver had the right of way when the pedestrian proceeded heedlessly from the safety of the center median without using the crosswalk and ran in front of the driver’s vehicle); Tucker, supra, 200 Ga. App. at 409-410 (1), (2) (affirming jury verdict in favor of bus driver in a wrongful death action since there was evidence that the pedestrian ran in front of the bus’s path under circumstances in which the driver’s visibility was impaired). Likewise, the evidence presented a question for the jury’s resolution as to whether the collision was caused by mere misfortune or accident, rather than the alleged criminal negligence of Nelson. Cf. Ogilvie v. State, 313 Ga. App. 305, 308-310 (2) (a), (b) (721 SE2d 549) (2011) (ruling that the defendant in a vehicular homicide case was entitled to a jury charge for the jury’s determination of the accident defense); Morris v. State, 210 Ga. App. 617, 618 (2) (436 SE2d 785) (1993) (same).

We recognize that the trial witnesses gave conflicting testimony in describing the events leading to the collision. Nelson testified in her defense, asserting that while she stood on the median and looked to ensure that there was no oncoming traffic before attempting to cross the second two lanes of the highway, she suddenly felt A. J. let go of her hand and saw him dart into the roadway. Nelson described that she yelled for A. J. to stop, which caused him to pause in the middle of the roadway. According to Nelson, A. J. was halfway across the roadway when she saw lights approaching, but she could not determine the distance of the vehicles. Nelson testified that as she ran into the roadway to help A. J. across the remaining lane, the van hit her, her youngest daughter, and A. J.

Another eyewitness testified that the accident occurred in “a matter of seconds.” Consistent with Nelson’s version of the events, the same eyewitness stated that prior to the accident, he observed A. J. dart into the roadway and Nelson immediately ran after him. However, the conflicts in the testimony as to whether Nelson had led her children into the roadway in the manner described by one eyewitness, or whether A. J. had darted into the roadway as described by Nelson and another eyewitness, presented a question of fact for the jury’s resolution.

A parent is required to comply with the standard of care which a reasonable person would exercise in the situation, and cannot consciously disregard a substantial and unjustifiable risk that her conduct would cause harm or endanger the safety of the child. See, , e.g., Bohannon v. State, 230 Ga. App. 829, 834 (1) (b) (498 SE2d 316) (1998). Here, there were questions regarding whether Nelson had been criminally negligent and had unintentionally caused A. J.’s death by leading her children across a four-lane highway outside of a crosswalk and into the path of approaching traffic during the dark of night. To resolve this question, the jury was required to consider all of the circumstances surrounding the incident, including evidence that it occurred at night when visibility was limited; the posted speed limit on the highway was 45 miles per hour; Nelson had never crossed the highway with her children at night, which caused her to feel apprehensive and indicated her awareness of the potential danger; Nelson had to scold A. J. when they exited the bus because A. J. had attempted to walk into the roadway without her direction, which served as a further alert of the potential dangers involved in attempting to cross the highway with small children; there were sidewalks leading from the bus stop to crosswalks at intersections in the area, but Nelson chose not to walk the extra distance to those crosswalks; and Nelson and her children entered the roadway to cross when vehicles were approaching. After hearing the totality of the evidence during Nelson’s first trial, the jury was convinced to resolve the questions against Nelson and to render a guilty verdict. This Court cannot usurp the jury’s factfinding role in order to reach a different result.

Decided August 30, 2012

Steven H. Sadow, for appellant.

Barry E. Morgan, Solicitor-General, Jimmy L. Newkirk, Assistant Solicitor-General, for appellee.

While we have the greatest sympathy for [Nelson’s] plight, this Court must interpret the law and apply it with an even hand; the appellate process affords us no latitude to make adjustments for the ill-earned good fortune of the lucky or, as in this case, the heart-rending misfortune of the unlucky.

(Citation and punctuation omitted.) Bohannon, supra, 230 Ga. App. at 835 (1) (b). Since there was evidence authorizing the jury’s verdict, double jeopardy does not bar Nelson’s retrial. Therefore, the trial court’s denial of Nelson’s plea in bar was proper.

Judgment affirmed.

Mikell, P. J., and Ray, J., concur.

       The Cobb County jury also found Nelson guilty of a pedestrian crossing violation (OCGA § 40-6-92 (a)) and reckless conduct (OCGA § 16-5-60 (b)). During sentencing, however, the trial court merged the pedestrian crossing charge with the homicide by vehicle charge. The trial court also granted Nelson’s post-conviction motion to quash the reckless conduct charge. Nelson was sentenced to 12 months of probation and 40 hours of community service, with a requirement that 20 hours of community service be performed in a pre-approved child safety program.

       This Court heard oral arguments in this case. Nelson’s appellate counsel presented oral arguments to this Court; the State’s prosecutors appeared in court, but elected not to participate in the oral argument proceeding.

       The driver was subsequently arrested and charged with offenses related to the accident. The driver entered a guilty plea to leaving the scene of the accident, and was sentenced to serve a term of probation. The driver admitted that he had taken oxycodone pain medication and had consumed “two swallows” of beer earlier in the morning on the day of the accident. However, there was no evidence establishing that the medication remained in his system or that he was under the influence of drugs and alcohol at the time of the accident, which occurred later that night. The driver also testified that he had glaucoma in his left eye, which is the same side of the roadway from which the pedestrians were crossing. The investigating officer testified that he could not rule out that the driver’s visual impairment may have contributed to the accident. After the investigation was completed, however, the officers ultimately concluded that Nelson’s actions, and not the driver’s actions, caused A. J.’s death due to her failure to safely enter the roadway.

       Notably, OCGA § 40-6-393 (c) expressly excludes violations of OCGA § 40-6-163 (a) (governing the duty of a driver meeting or overtaking a school bus), OCGA § 40-6-270 (b) (governing the duty of a driver to stop at or return to the scene of an accident), OCGA § 40-6-390 (proscribing reckless driving), OCGA § 40-6-391 (proscribing DUI), and OCGA § 40-6-395 (a) (proscribing fleeing or attempting to elude a police officer), from the offenses upon which a vehicular homicide charge may be predicated. See OCGA § 40-6-393 (c). Significantly, however, the violation for a pedestrian crossing outside of a crosswalk under OCGA § 40-6-92 (a) has not been designated as one of the excluded violations. See id.

       The witnesses described the distance between Nelson and the oncoming vehicular traffic by referring to locations in the courtroom. Although the judge and the jury were able to observe the witnesses’ demonstrations describing those distances, the record on appeal does not contain any visual aids reflecting the witnesses’ demonstrations. Since the jury had the benefit of observing the witnesses’ demonstrations, and we do not, we must defer to the jury’s implicit findings that the roadway was not clear of approaching vehicles when Nelson and her children entered the roadway. Cf. Hurston v. State, 278 Ga. App. 472, 476-477 (4) (629 SE2d 18) (2006) (when the appellate record does not contain the visual aid presented at trial and the transcript does not fully disclose what transpired at trial, this Court’s review is hampered).

       OCGA § 40-6-93 pertinently provides that “every driver of a vehicle shall exercise due care to avoid colliding with any pedestrian upon any roadway, . . . and shall exercise proper precautions upon observing any child[.]”

       OCGA § 16-2-2 provides that “[a] person shall not be found guilty of any crime committed by misfortune or accident where it satisfactorily appears there was no criminal scheme or undertaking, intention, or criminal negligence.”

       In reaching our conclusion that the evidence was sufficient to authorize Nelson’s convictions in this case, we express no opinion as to whether a parent may be held responsible for a child’s impulsive, unanticipated act of darting into the path of oncoming traffic on a roadway. It is generally recognized that a parent’s “[fjailure to keep an unremitting watch and restraint over [her] children ... in the absence of knowledge of facts and circumstances requiring such action is not negligence.” (Citation and punctuation omitted.) Scarboro v. Lauk, 133 Ga. App. 359, 361-362 (3) (210 SE2d 848) (1974). “In our society, strict control of children is today so rare that its absence is no indication of a lack of reasonable care.... Moreover, the mere fact that an injury occurred does not establish that the supervision was negligent.” (Citations and punctuation omitted.) McKelvey v. Plaisted, 278 Ga. App. 531, 533 (1) (629 SE2d 464) (2006). Nevertheless, a parent is required to exercise reasonable care commensurate with the reasonably foreseeable risk of harm. See Bohannon v. State, 230 Ga. App. 829, 833-834 (1) (b) (498 SE2d 316) (1998).


text:
    A12A0904.
    SABB v. THE STATE.
    (731 SE2d 399)
   Miller, Judge.

Following a jury trial, Alicia Veleka Sabb was convicted of trafficking in cocaine (OCGA § 16-13-31 (a) (l)). Sabb filed a motion for new trial, which the trial court denied. On appeal, Sabb contends that the evidence was insufficient to sustain the drug trafficking conviction. We disagree and affirm.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, and the defendant no longer enjoys the presumption of innocence. We do not weigh the evidence or determine witness credibility, but only determine if the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offense beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

(Punctuation omitted.) Johnson v. State, 279 Ga. App. 98, 99 (630 SE2d 612) (2006).

So viewed, the trial evidence showed that on the evening of January 3, 2010, an officer with the Gwinnett County highway interdiction team initiated a traffic stop of a car driven by Sabb and occupied by her co-defendant boyfriend. Upon approaching, the officer smelled the odor of burnt marijuana emanating from inside the car. Sabb and her co-defendant avoided eye contact with the officer and gave inconsistent responses to the officer’s inquiries as to their destination. When the officer asked Sabb for the co-defendant passenger’s name, Sabb misinformed the officer of the co-defendant’s last name. The officer observed that Sabb’s co-defendant was extremely nervous, visibly shaking, and sweating heavily although it was very cold that night.

While the officer continued to engage in procedures related to the stop, Sabb exited the car and went with the officer to his patrol car. The officer explained that he had smelled marijuana inside the car and requested Sabb’s permission to search the car for narcotics. Sabb gave the officer consent for the search.

A backup officer arrived at the scene to assist with the search. The backup officer observed that Sabb’s co-defendant was sweating profusely “as if he had been running a marathon” and avoided eye contact by looking straight ahead. Sabb’s co-defendant was asked to step out of the car so that the search could proceed. As the co-defendant exited the car, the officers observed a broken, white rock substance in the passenger seat and white powder on the co-defendant’s hands. Based upon the officers’ training and experience, they suspected that the substance was cocaine.

During the search of the car, the officers also found a large quantity of the white powder substance in a clear plastic bag that was between the driver and the front passenger seats. The officers testified that there was no center console or discernible space between the seats, and the bag was in plain view between the seats. The officers also testified that they did not observe Sabb or her co-defendant making any furtive movements at the time of the stop, and therefore, the bag must have been present between the seats prior to the stop. In addition to finding the bag of suspected cocaine, the officers found a small marijuana blunt inside the car’s ashtray and a bag of marijuana inside Sabb’s purse.

The bag containing the suspected drug substance was delivered to the GBI state crime lab for testing. The test results revealed that the substance was cocaine weighing approximately 44.78 grams, with a purity of 14.4%.

The evidence further reflected that the car had been rented in Sabb’s name on December 29, 2009, and should have been returned on December 30, 2009, but Sabb still had possession of the car at the time of the stop on January 3,2010. Sabb’s co-defendant testified that although Sabb had her own personal vehicle, she had obtained the rental car pursuant to his request. Sabb’s co-defendant also stated that he had never used the rental car without Sabb being present in the car with him. The officer testified that rental cars are commonly used in drug trafficking because they are usually nondescript, blend in with other vehicles on the roadway, and are not subject to forfeiture and seizure if the perpetrators are caught with drugs in the car.

Sabb and her co-defendant were jointly charged, tried, and convicted of the cocaine trafficking offense. Sabb contends that the evidence was insufficient to support her conviction. Her contention is without merit.

OCGA § 16-13-31 (a) (1) pertinently prescribes that “[a]ny person ... who is knowingly in possession of 28 grams or more of cocaine or of any mixture with a purity of 10 percent or more of cocaine, as described in Schedule II,... commits the felony offense of trafficking in cocaine[.]”

Possession of contraband, may be actual or constructive. Moreover, joint constructive possession with another will sustain a conviction for possession of contraband. A person who knowingly has direct physical control over a thing at a given time is in actual possession of it. A person who, though not in actual possession, knowingly has both the power and intention at a given time to exercise dominion or control over a thing is then in constructive possession of it. The law recognizes that possession may be sole or joint. If one person alone has actual or constructive possession of a thing, possession is sole. If two or more persons shared actual or constructive possession of a thing, possession is joint.

(Citation and punctuation omitted.) Cochran v. State, 300 Ga. App. 92, 94 (1) (a) (684 SE2d 136) (2009). Here, Sabb and her co-defendant passenger were both charged with the cocaine trafficking offense. Consequently, the State could establish the element of possession by showing that Sabb and her co-defendant were in joint constructive possession of the cocaine found in the car. See id. at 94-95 (1) (a).

Evidence that Sabb was the driver of the car gave rise to a rebuttable presumption that she exercised possession and control of the drug contraband found inside the car. See Ramirez v. State, 290 Ga. App. 3, 4 (1) (658 SE2d 790) (2008). Sabb nevertheless claims that the car was rented and others may have had equal access to the car. Her claim, however, is unavailing.

It is true... that the presumption of possession flowing from a defendant’s status as driver of a vehicle may be rebutted if the driver presents evidence that other persons had equal access to the vehicle and contraband. Notably, however, the equal access rule does not apply to eliminate the presumption of possession where all persons allegedly having equal access to the contraband are alleged to have been in joint constructive possession of the contraband.

(Citations and punctuation omitted.) Id. at 4 (1); see also Gamble v. State, 223 Ga. App. 653, 655 (1) (478 SE2d 455) (1996) (“The equal access doctrine does not apply to those charged with being in joint constructive possession of contraband.”) (citation omitted). Since Sabb and her co-defendant passenger were jointly charged with constructive possession of the drug contraband, Sabb was not entitled to rely on the equal access rule to rebut the presumption. See Ramirez, supra, 290 Ga. App. at 4-5 (1). Moreover, the evidence showed that Sabb had maintained control over the rental car for several days prior to the stop. Thus, the jury could infer that Sabb had possessed the car for a sufficient period of time to have knowledge of the car’s contents, and that others did not have equal access to the car. See Robinson v. State, 175 Ga. App. 769, 772 (2) (334 SE2d 358) (1985).

Although circumstantial, the evidence was sufficient to establish Sabb’s power and intent to exercise control over the cocaine found in the car. “To warrant a conviction on circumstantial evidence, the proved facts need exclude only reasonable hypotheses — not bare possibilities that the crime could have been committed by someone else. And questions of reasonableness are generally decided by the jury.” (Citation and punctuation omitted.) Cochran, supra, 300 Ga. App. at 95-96 (1) (a). “As long as there is slight evidence of access, power, and intention to exercise control or dominion over the contraband, the question of fact regarding constructive possession remains within the domain of the trier of fact.” (Punctuation and footnote omitted.) Ferrell v. State, 312 Ga. App. 122, 124 (1) (717 SE2d 705) (2011). A defendant’s power to exercise control over the drugs may be inferred from access to the drugs, while the matter of intent may be derived from the surrounding circumstances. See In the Interest of Q. P., 286 Ga. App. 225, 227 (648 SE2d 731) (2007). Significantly, the evidence in this case showed that Sabb was the driver of the car, and she exercised dominion and control over the car throughout its use over the course of several days; the baggie containing the cocaine was in plain view between her driver’s seat and the front passenger seat, which showed Sabb’s access to the drugs; and Sabb’s demeanor in avoiding eye contact with the officer, along with her inconsistent responses to the officer’s inquiries concerning her destination and her co-defendant’s name, reflected Sabb’s consciousness of guilt. See, e.g., Cochran, supra, 300 Ga. App. at 94 (1) (a); see also Allen v. State, 191 Ga. App. 623, 625 (2) (382 SE2d 690) (1989) (ruling that a “[defendant’s intent to exercise control over the contraband can be inferred by the suspicious and inconsistent explanations defendant gave to the trooper before he conducted the search”) (punctuation omitted). Moreover, the evidence established that the amount of cocaine that Sabb possessed exceeded the statutory threshold quantities for the trafficking offense. See OCGA § 16-13-31 (a) (1); Johnson, supra, 279 Ga. App. at 99 (1). Since the evidence supported a finding that Sabb at least had joint constructive possession of the trafficking amount of cocaine, her conviction was authorized.

Decided August 30, 2012.

William H. Sheppard, for appellant.

Daniel J. Porter, District Attorney, Marlene S. Zekser, Assistant District Attorney, for appellee.

Judgment affirmed. Mikell,

P. J., and Ray, J., concur.

       Sabb was also charged with misdemeanor possession of marijuana (OCGA §§ 16-13-2 (b); 16-13-30 (j) (1)). Sabb entered a negotiated guilty plea to the possession of marijuana drug offense. Sahb does not challenge the propriety of her guilty plea and misdemeanor conviction.

       Although Sabb points to evidence of her co-defendant’s culpability and asserts that he had “a contrasting demeanor and posture,” there was also evidence of Sabb’s own demeanor and conduct from which the jury could infer her consciousness of guilt. The officer testified that both Sabb and her co-defendant avoided eye contact with him and gave inconsistent explanations concerning their destination. In addition, Sabb gave misinformation to the officer when he asked for the co-defendant’s last name.


author: Andrews, Judge.

text:
    A12A1058.
    HINES v. THE STATE.
    (731 SE2d 782)
   Andrews, Judge.

At a bench trial on facts stipulated to by the prosecution and the defense, Jeffrey Kyle Hines was found guilty of five counts of sexual exploitation of children in violation of OCGA § 16-12-100 (b) (8). Evidence showed that Hines possessed five video files located on a computer at his residence depicting minors engaging in sexually explicit conduct. Police found the video files during a search of Hines’s residence pursuant to a warrant. Hines contends that the trial court erred by denying his motion to suppress evidence of the video files because the warrant was insufficient to justify the search. We find no error and affirm.

An investigator with the Cherokee County sheriff’s office conducted an investigation over the Internet which revealed that a computer attached to a Comcast-owned internet protocol (IP) address located in Cherokee County was using a specific software program to share known and suspected child pornography files. After being served with a search warrant, Comcast informed the investigator that the IP address was assigned to a customer located at 547 Toonigh Road in Woodstock, Georgia. Based on a finding that there was probable cause to believe that a crime in violation of OCGA § 16-12-100 was being committed at that location, the investigator obtained a warrant to search the property. The property was described in the warrant as a house located at 547 Toonigh Road with attached garages and a single mailbox, and the warrant authorized the investigator to search the house and any vehicles and buildings located on the property for computer hardware or software containing images of children depicting sexually explicit conduct as defined in OCGA § 16-12-100, together with indicia of use, ownership, possession, or control of those items.

When the investigator executed the search warrant at the property, the wife of the Comcast customer appeared at the door of the house. The investigator told her that an investigation led him to believe that a computer connected to the Internet at her address contained child pornography, and that he had a search warrant. She told the investigator that she and her husband and their daughter lived in the house, and that Hines, her husband’s nephew, lived in a recreational vehicle owned by them and parked on the property behind the house. She also told the investigator that she and her husband had computers in the house connected to the Internet by a wireless router, and that Hines had a computer in the recreational vehicle and had their permission to use the signal from their wireless router to connect to the Internet. The investigator searched the recreational vehicle pursuant to the warrant and found Hines’s computer. Evidence showed that Hines’s computer was the same computer which the investigator’s Internet investigation showed was sharing child pornography files, and the computer contained the five video files used as evidence to convict Hines of five counts of violating OCGA § 16-12-100 (b) (8).

Hines contends that, when the investigator learned for the first time prior to the search of the recreational vehicle that the vehicle was his separate residence, the investigator was required to obtain a separate warrant to search that vehicle. To the contrary, the warrant to search the property at 547 Toonigh Road provided that there was probable cause to search the house and any other buildings and vehicles located on the property. Hines does not dispute that there was probable cause for issuance of the warrant to search the property located at 547 Toonigh Road, including the house, other buildings, and vehicles on the property, nor does he dispute that the recreational vehicle in which he was living was located on the described property. This is not a case where a warrant was issued based on probable cause to search only one residence at a described street address, but other residences were also located at the address. In that case an issue may arise as to whether more than the street address is needed in the warrant to sufficiently describe the property to be searched. See State v. Capps, 256 Ga. 14, 15-16 (342 SE2d 676) (1986). Here, the search warrant provided that there was probable cause to search the house and any other buildings and vehicles located at the described street address. See Fletcher v. State, 284 Ga. 653, 655-656 (670 SE2d 411) (2008) (warrant found probable cause to search two residences located in a multiple-occupancy building at a single street address). We find that the search warrant sufficiently identified the recreational vehicle located at the street address as property to be searched such that “it enable [d] a prudent officer executing the warrant to locate the . . . place definitively and with reasonable certainty,” and sufficiently limited the searching officer’s discretion. Day v. State, 304 Ga. App. 195, 197 (695 SE2d 719) (2010) (citation and punctuation omitted); Reaves v. State, 284 Ga. 181, 187-188 (664 SE2d 211) (2008); Price v. State, 303 Ga. App. 859, 862 (694 SE2d 712) (2010); Felix v. State, 234 Ga. App. 509, 511 (507 SE2d 172) (1998), vacated on other grounds, 271 Ga. 534 (523 SE2d 1) (1999). The warrant described the place to be searched with sufficient particularity; the search did not exceed the scope of the warrant; and the trial court correctly denied the motion to suppress. The evidence was sufficient for a rational trier of fact to find Hines guilty beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Decided August 30, 2012.

Sharon L. Hopkins, for appellant.

Garry T. Moss, District Attorney, Lara A. Snow, Cliff Head, Assistant District Attorneys, for appellee.

Judgment affirmed.

Doyle, P. J., and Boggs, J., concur.


text:
    A12A1193.
    FEAGIN v. THE STATE.
    (731 SE2d 778)
   Miller, Judge.

Following a jury trial, Courtney Feagin was convicted of aggravatedbattery (OCGA § 16-5-24 (a)), criminal trespass (OCGA § 16-7-21 (a)), andhindering an emergency telephone call (OCGA § 16-10-24.3). Feagin filed a motion for new trial, which the trial court denied. On appeal, Feagin challenges the sufficiency of the evidence supporting his convictions. For the reasons that follow, we affirm Feagin’s convictions for aggravated battery and criminal trespass. However, we must reverse Feagin’s hindering an emergency telephone call conviction for lack of evidence. Accordingly, Feagin’s convictions are affirmed in part and reversed in part.

On appeal from a criminal conviction, we view the evidence in a light most favorable to the verdict, and [Feagin] no longer enjoys a presumption of innocence. We neither weigh the evidence nor judge the credibility of witnesses, but only determine whether the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offense beyond a reasonable doubt.

(Punctuation and footnotes omitted.) Ferrell v. State, 283 Ga. App. 471, 472 (1) (641 SE2d 658) (2007).

So viewed, the trial evidence showed that this incident arose out of an argument on December 24, 2010 between Feagin and his sister, the victim. A few weeks prior to the incident, the victim allowed Feagin to move into her home, where their mother and the victim’s two young children also resided. On the morning of the incident, the victim began having a conversation with Feagin regarding the rules of the house and shared household duties. The victim gave Feagin an ultimatum, telling Feagin that he would have to leave if he did not comply with the rules. The conversation escalated into an argument. The victim testified that as the heated exchange continued, she grabbed her cell phone because she was “looking for something to ... throw at that point in time” and “just in case [she] did need to call someone.” The victim stated that she did not think about calling 9-1-1 and that “9[-] 1[-] 1 wasn’t on [her] mind.” After initially grabbing her cell phone, the victim subsequently placed it on the kitchen counter. Thereafter, Feagin grabbed the victim’s cell phone and “snapped it in half,” rendering it inoperable. The victim testified that her cell phone was worth less than $500.

The victim retreated to the upstairs area of the residence, but Feagin followed her as they continued to argue. At that point, a physical altercation ensued. The victim described that Feagin began “swinging at [her] and [she] started swinging back at him, but [Feagin] got the first lick in[.]” The victim testified that Feagin hit her in the face, then fled from the residence.

The mother called 9-1-1 to report the incident. The responding officers observed that the victim’s left eye was swollen shut. An officer took photographs depicting the victim’s eye injuries. Another officer testified that the victim’s eye injury was one of the worst that he had seen in handling a domestic fight call.

The victim was taken to the hospital for treatment. The emergency room physician who treated the victim testified that the victim had bruising and swelling around her eye such that her eye was swollen shut. A CAT scan further revealed that the victim’s eye socket was fractured. The victim’s injuries required treatment with narcotic pain medications and an antibiotic. The physician testified that the victim’s eye injuries were clearly caused by trauma. The victim stated that her eye remained swollen for approximately two weeks, and that the bruising around her eye remained for approximately two months after the incident.

The responding officers apprehended Feagin approximately one mile from the residence. After being advised of his Miranda rights, Feagin gave a statement to police, admitting that he had punched the victim in her face during the argument. Feagin was arrested, charged, and subsequently convicted of the aggravated battery, criminal trespass, and hindering an emergency call offenses stemming from the incident.

1. Feagin contends that the evidence was insufficient to support his aggravated battery conviction. The aggravated battery charge was based upon Feagin’s alleged act of seriously disfiguring the victim’s eye. Feagin argues that there was no evidence that the victim’s eye was seriously disfigured as alleged. We disagree.

“A person commits the offense of aggravated battery when he or she maliciously causes bodily harm to another ... by seriously disfiguring his or her body or a member thereof.” OCGA § 16-5-24 (a). Although OCGA § 16-5-24 does not define the term “serious disfiguring,” this Court has ruled that the crime of aggravated battery does not require that the victim’s disfigurement be permanent; however, the injury must be more severe than a mere visible or superficial wound. See Williams v. State, 248 Ga. App. 316, 318-319 (1) (546 SE2d 74) (2001). Notwithstanding this threshold for determining whether the disfiguring injuries meet the requisite level of seriousness to constitute an aggravated battery, we have further acknowledged that the circumstances of each aggravated battery vary; thus, whether a disfigurement is serious is almost always a question for the jury to resolve on a case-by-case basis. Id. at 318 (1).

The trial evidence in this case included photographs depicting the victim’s severely swollen and bruised left eye, along with testimony that the victim’s eye was swollen shut and her eye socket was fractured. The victim’s injuries required treatment with narcotic pain medications and an antibiotic. The victim’s eye injuries took several weeks to heal. The jury was authorized to find that the victim’s severely swollen, bruised eye and eye socket fracture constituted serious disfigurement. See Ferrell, supra, 283 Ga. App. at 473 (2) (concluding that evidence of the victim’s broken eye socket sufficiently supported the defendant’s aggravated battery conviction); Christensen v. State, 245 Ga. App. 165, 167-168 (3) (537 SE2d 446) (2000) (concluding that testimony that the victim’s eye socket was fractured and pictures showing the severity of the victim’s eye injury caused by the attack sufficiently supported the defendant’s aggravated battery conviction).

2. Feagin also challenges the sufficiency of the evidence supporting his criminal trespass conviction. He argues that there was no evidence that he broke the victim’s cell phone as alleged in the indictment. His argument is without merit.

OCGA § 16-7-21 (a) pertinently provides that “[a] person commits the offense of criminal trespass when he or she intentionally damages any property of another without consent of that other person and the damage thereto is $500.00 or less[.]” The victim testified that during the incident, Feagin snapped her cell phone in half, rendering it inoperable. A photograph depicting the broken cell phone was admitted into evidence. The victim testified that her cell phone was worth less than $500. Although there was no evidence of the specific monetary amount of damage done to the cell phone, the jurors were authorized to draw from their own experience in forming an estimate of the damage to the cell phone, which is an everyday object. See Burrell v. State, 293 Ga. App. 540, 542-543 (2) (667 SE2d 394) (2008). The evidence was sufficient to authorize a rational trier of fact to find Feagin guilty beyond a reasonable doubt of the criminal trespass offense. See OCGA § 16-7-21 (a); see, e.g., Ginn v. State, 251 Ga. App. 159, 161 (2) (553 SE2d 839) (2001) (affirming defendant’s conviction for criminal trespass based upon evidence that defendant damaged the family’s keyboard during a dispute with his wife).

3. Feagin also contends that the evidence was insufficient to support his conviction for hindering an emergency telephone call. We agree, and therefore, Feagin’s conviction of this charge must be reversed.

A person commits the misdemeanor offense of hindering an emergency telephone call when he

physically obstructs, prevents, or hinders another person with intent to cause or allow physical harm or injury to another person from making or completing a 9-1-1 telephone call or a call to any law enforcement agency to request police protection or to report the commission of a crime [.]

OCGA § 16-10-24.3. Significantly, the victim testified that when she grabbed her cell phone, she was not thinking of or attempting to call 9-1-1. Rather, the victim claimed that she picked up the cell phone during the argument because she was looking for something to throw. The victim’s testimony in this regard did not support a finding that Feagin had hindered a telephone call to 9-1-1 or to police. Consequently, Feagin’s conviction of this offense was unauthorized.

The State nevertheless argues that Feagin’s conviction of this offense was proper based upon the responding officer’s testimony regarding the victim’s prior report that she had grabbed the cell phone to call 9-1-1 when Feagin took the cell phone out of her hand and broke it in half. The State asserts that evidence of the victim’s prior inconsistent statement to the responding officer was substantive evidence pursuant to Gibbons v. State, 248 Ga. 858, 862 (286 SE2d 717) (1982), ruling that “a prior inconsistent statement of a witness who takes the stand and is subject to cross-examination is admissible as substantive evidence, and is not limited in value only to impeachment purposes.” The State’s reliance upon this principle, however, is unavailing.

Notably, a proper evidentiary foundation must be laid before a witness’s prior inconsistent statement can be admitted. See Edmond v. State, 283 Ga. 507, 510 (6) (661 SE2d 520) (2008); Duckworth v. State, 268 Ga. 566, 567-568 (1) (492 SE2d 201) (1997); Armour v. State, 265 Ga. App. 569, 572-573 (3) (594 SE2d 765) (2004). “Before contradictory statements may be proved against [the witness], the time, place, person, and circumstances attending the former statements shall be called to [the witness’s] mind with as much certainty as possible.” (Punctuation and footnote omitted.) Armour, supra, 265 Ga. App. at 573 (3). “The purpose of laying such a foundation is to give the witness the opportunity to explain or deny the prior contradictory statement.” (Citations and punctuation omitted.) Edmond, supra, 283 Ga. at 510 (6); see also Duckworth, supra, 268 Ga. at 567-568 (1).

Here, however, [the victim] testified before the issue of her alleged statement to [the responding officer] had been raised, and she was never questioned with the specificity necessary to establish the foundation for admission of any such statement. Thus, the trial court erred in admitting the testimony at issue as a prior inconsistent statement.

(Punctuation and footnote omitted.) Edmond, supra, 283 Ga. at 510 (6). Since the prior inconsistent statement was inadmissible due to lack of foundation, it could not serve as substantive evidence in this case. See id.; Armour, supra, 265 Ga. App. at 573 (3). Compare Gibbons, supra, 248 Ga. at 864-865 (concluding that a proper foundation for the use of the prior inconsistent statements was laid since the witness was questioned about his prior statements and given a chance to explain or deny them); Buchanan v. State, 282 Ga. App. 298, 299-300 (1) (638 SE2d 436) (2006) (concluding that the proper foundation had been laid for admission of the witness’s prior inconsistent statements regarding the aggravated battery incident since the witness was questioned about his prior statements and was given the opportunity to admit, explain, or deny the prior statements).

Decided August 30, 2012.

Jennifer F. Arndt, for appellant.

Layla H. Zon, District Attorney, Melanie M. Bell, Assistant District Attorney, for appellee.

Thus, the victim’s prior statement to the responding officer was inadmissible hearsay, which is wholly without probative value and cannot be considered in determining the sufficiency of the evidence, even if introduced without objection. See Patterson v. State, 287 Ga. App. 100, 103-104 (2) (a) (650 SE2d 770) (2007). Since there was no proper evidence supporting the hindering an emergency telephone call offense, we must reverse Feagin’s conviction of that charge.

Judgment affirmed in part and reversed in part.

Mikell, P. J., and Ray, J., concur.

       Although the victim also stated that she grabbed her cell phone “just in case [she] did need to call someone,” she testified that she was not thinking about calling 9-1-1. There was no evidence that the victim had attempted to make an emergency call to police during the argument, and in fact, the victim subsequently placed her cell phone down on the kitchen counter.


author: Mikell, Presiding Judge. Ray, Judge,

text:
    A12A1374.
    BRITTINGHAM v. DATTILIO.
    (731 SE2d 784)
   Mikell, Presiding Judge.

Cortney Brittingham brings this pro se appeal from the trial court’s order changing her son’s surname to that of the child’s father, Terry Dattilio. Brittingham argues that Dattilio’s petition to change the child’s name was not verified, that she received insufficient notice of the petition and did not consent to the change, and that Dattilio did not comply with applicable publication requirements. We find no error and affirm.

A trial court “has broad discretion ... to change the name of a child, and the court’s decision will not be reversed unless it clearly abuses its discretion by ignoring the best interests of the child.”

So viewed, the record shows that in December 2009, having moved to Georgia the previous year, Brittingham began proceedings in DeKalb County Superior Court to domesticate New Jersey court orders as to custody of the unmarried couple’s then-two-year-old son. In July 2011, the trial court entered temporary orders modifying the New Jersey orders. In August 2011, Dattilio moved to an apartment near the home of Brittingham and the child. On September 29, 2011, the trial court set a final hearing for December 1, 2011.

In the meantime, on November 7, 2011, Dattilio filed a counterclaim to change the child’s surname. At the final hearing, Dattilio testified that his son had told him that he wanted to be “just like daddy” and that he wanted “to be a Dattilio.” Brittingham did not raise any procedural objections concerning the father’s name change petition at the hearing. Instead, she testified that she had seen the child use Dattilio as his surname and that “it’s upsetting to him to be so confused” about his last name.

Brittingham argues that the trial court erred when it ordered the name change because Dattilio has not complied with the procedural requirements of OCGA § 19-12-1. Specifically, Brittingham asserts that Dattilio did not obtain her consent, did not verify his counterclaim, and did not serve her with a copy of that pleading, either personally or by publication.

Dattilio served his counterclaim for name change by mail some weeks before the final hearing, and Brittingham has not disputed that she had actual notice of the pleading well before that event. In any event, however, Brittingham neither filed her procedural objections in writing nor raised them at the final hearing; instead, she litigated the merits of the name change. Because Brittingham litigated the issue of the name change in the trial court without raising any procedural objections, she has waived consideration of those objections on appeal. It also appears that the trial court had some evidence before it, including the father’s testimony and the mother’s admission that the child had used the father’s surname and needed finality on the subject, that adopting the father’s surname would be in the best interests of the child. It follows that the trial court did not abuse its discretion when it ordered the name change.

Judgment affirmed.

Miller, J., concurs. Ray, J., concurs specially.

Ray, Judge,

concurring specially.

While I fully concur in the majority’s opinion, I write separately to address an argument raised by Dattilio in his brief and to point out a shortcoming in existing law that might be addressed by the General Assembly, namely that there may be situations in which the best interests of the child are not served by requiring the consent of both parents to a child’s name change.

Brittingham pursued this appeal claiming that Dattilio was not entitled to relief because he had not complied with the statutory requirements set forth in OCGA § 19-12-1, including the requirement that Dattilio obtain Brittingham’s written consent to his request to change the child’s name and that he file such written consent with the counterclaim seeking the name change. As set forth in the majority’s opinion, any such requirement was waived when the counterclaim proceeded to trial on its merits without any objection by Brittingham that the issue was not properly before the trial court.

At the same time, Dattilio has argued that he was not required to obtain Brittingham’s written consent before filing his counterclaim, or for that matter to have complied with any of the other provisions of OCGA § 19-12-1, as his right to seek a name change for the child arose out of OCGA § 9-7-20 et seq., which is the statutory scheme wherein a biological father seeks to legitimate a child born out of wedlock. This argument is without merit. The counterclaim was filed to the consolidated action in the Superior Court of DeKalb County. This was an action to domesticate a foreign judgment from New Jersey regarding child custody, support and visitation (Civil Action No. 09-1427-1) and a petition to modify child support and visitation of the same New Jersey order (Civil Action No. 10-3241-1). Thus, it cannot be fairly argued that Dattilio’s effort to obtain a name change for the child was part of an action to legitimate the child, which is what OCGA § 19-7-22 contemplates. The legitimation already had occurred in New Jersey, with the instant action being only to register it and to modify its terms.

Decided August 30, 2012.

Cortney Brittingham, pro se.

Cordell & Cordell, Kevin Mammola, for appellee.

Had Brittingham raised her procedural objections prior to the final hearing in the trial court, she may very well have prevailed. It is that fact that should cause concern; that is, that a parent who might have a compelling reason to change the name of his or her child, and that it might be in the best interest of the child to do so, could not succeed without first obtaining the written permission of the other parent, as required pursuant to OCGA § 19-12-1 (c). One can think of many instances where the non-moving parent might unreasonably withhold consent, even when the best interest of the child suggests a name change should occur. One such example might be when a father has been convicted of a crime against his child and the mother then wishes to seek a name change to remove the father’s name from that of the child. Under OCGA § 19-12-1 (c), both parents would have to agree to the change for the trial court to have authority to make it, no matter what the best interest of the child might be in that regard.

While I obviously believe that the outcome could be unfair and potentially damaging for a child if one parent were to withhold consent unreasonably, it is for the General Assembly to consider the issue in its wisdom, balancing the competing interests at stake. The Judiciary’s role is limited to enforcing the laws as enacted, so long as they are constitutional.

       (Citation, punctuation and footnote omitted.) Carden v. Warren, 269 Ga. App. 275, 277 (2) (a) (603 SE2d 769) (2004).

       See OCGA § 19-12-1 (a) (petition for name change “shall be verified by the petitioner”); (b) (requiring publication “[w]ithin seven days of the filing of the petition” in “the official legal organ of the county [in which the petition is brought] once a week for four weeks”); (c) (“If the petition seeks to change the name of a minor child, the written consent of his parent or parents if they are living and have not abandoned the child . . . shall be filed with the petition”); (d) (requiring personal service “[i]f the parent or parents reside within this state,. . . except that if the location or address of the parent is unknown, service of the petition on the parent shall be made by publication as provided in this Code section”).

       Compare Brown v. Waters, 208 Ga. App. 866 (432 SE2d 817) (1993) (trial court erred in granting petition to change child’s name when incarcerated father raised objections including lack of personal service and when trial court granted the petition without holding a hearing).

       See Carden, supra at 278 (3); Howington v. Howington, 281 Ga. 242, 244 (2) (637 SE2d 389) (2006) (wife who permitted issue not raised in pleadings to be litigated at hearing had waived any objections); compare In re Scott, 288 Ga. App. 374, 375 (654 SE2d 221) (2007) (trial court erred in denying petition for name change without holding a hearing).

       See Carden, supra at 278 (2) (a) (trial court did not abuse its discretion when it granted a petition for name change).


author: Doyle, Presiding Judge.

text:
    A12A1386.
    WATT v. THE STATE.
    (732 SE2d 96)
   Doyle, Presiding Judge.

Following a jury trial, Alphanso Watt appeals his conviction for trafficking in marijuana, arguing that there was insufficient evidence to corroborate the testimony of his alleged accomplice and that the trial court erred by denying his motion to suppress and by admitting similar transaction evidence. We affirm, for the reasons that follow.

On appeal the evidence must be viewed in the light most favorable to support the verdict, and the defendant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility.

So viewed, the evidence shows that on August 17, 2009, Drug Enforcement Agency (“DEA”) agents in Tucson, Arizona, were contacted by the local manager of Old Dominion Freight Lines about a suspicious crate being shipped to Douglas County, Georgia. A DEA agent determined that the package contained marijuana and contacted law enforcement officials in Douglas County to arrange for a controlled delivery of the crate to Old Dominion loading docks there.

The crate arrived on August 19, 2009, and Sergeant Mauney of the Douglas County Sheriff’s Office secured the package. A K-9 unit was deployed to perform a free-air sniff, and a dog signaled the presence of narcotics in the crate. After the dog’s alert, police obtained a search warrant.

The day the crate arrived, Old Dominion received a call inquiring about it. Acting as an employee, Mauney told the caller the crate would not be delivered until the next day but that the caller could retrieve the crate from the warehouse instead if he wanted to do so. There were two other calls inquiring about the crate; Mauney testified he believed all three calls were made by the same person. During the third call, the caller said he would arrive shortly to pick up the crate.

Within 20 minutes, law enforcement agents stationed at the Old Dominion warehouse observed a silver Toyota Camry and a gold Ford pickup truck parked in the road just outside the gated entrance to the property. The occupants of the vehicles were observed engaging in conversation before driving up the driveway to the loading docks and parking outside the warehouse office. There, two individuals talked outside of the vehicles while one remained inside; law enforcement was unable to identify them at a distance. The driver of the truck, later identified as Oswald Forsyth, entered the office and claimed the crate, while the Camry left the premises. Officers present at the scene recorded the license plate number of the Camry. As soon as Forsyth took possession of the crate, law enforcement approached and took him into custody. The crate contained five large bales of marijuana, totaling approximately 150 pounds.

Officers then issued a “be on the lookout” alert (“BOLO”) for the silver Toyota Camry with the last four digits of the recorded license plate number pulling out onto Riverside Parkway where the Old Dominion property was located. Deputy Aaron Smith responded immediately to the BOLO and spotted a silver Camry leaving a nearby neighborhood recreation center. The driver turned in the opposite direction upon seeing the police car, and Smith followed the Camry for two miles, confirmed the license plate number and vehicle description on the BOLO, and initiated a traffic stop. Only five to ten minutes had elapsed from the issuance of the BOLO to the time Smith stopped the Camry.

Watt, who was driving the Camry, and the passenger were placed in handcuffs and taken into custody. A search of the Camry revealed various tools in the trunk, including a blue crowbar, hammers, screwdrivers, and a cordless electric drill. Investigator Randy Folsom testified at trial that those were the types of tools that could have been used to open the crate. Watt’s father-in-law, who owned the Camry, testified that the tools were his, but he also said his crowbar was black and that he owned a Black and Decker cordless drill; the tools found in the car only included a blue crowbar and a Craftsman drill.

Forsyth, Watt’s brother-in-law, testified at trial that Watt asked to borrow his truck on August 20, 2009, in order to pick up a package. According to Forsyth, Watt instructed him to pick up the crate from the Old Dominion facility and said that they would switch vehicles after Forsyth had done so.

Following a jury trial, Watt was convicted of the alleged charge, and this appeal followed.

1. Watt argues that the there was insufficient evidence to support his conviction because the only evidence connecting him with the crime was the testimony of an alleged accomplice. We disagree.

“The testimony of a single witness is generally sufficient to establish a fact. However,... where the only witness is an accomplice, the testimony of a single witness is not sufficient.” “And as the Supreme Court of Georgia has further noted, the corroboration rule of OCGA § 24-4-8 is made more stringent by the requirement, not contained in the statute, that the [S]tate must provide corroboration of an accomplice’s testimony regarding the identification and participation of the defendant.”

The conduct of a defendant before, during the time of, and after the commission of a crime may be considered by the jury in establishing his intention and his participation, to determine whether or not such intention and conduct were sufficient corroboration of the testimony of an accomplice to sustain a conviction. This may be done by circumstantial as well as by direct evidence.

Here, the evidence offered by the State corroborated Forsyth’s testimony. Less than 15 minutes after Forsyth was arrested, Watt — Forsyth’s brother-in-law — was pulled over in the same vehicle that was present at the scene immediately before Forsyth retrieved the crate from the warehouse. Deputy Smith testified that it appeared as if Watt was “waiting for something” at the recreation center entrance, which corroborates Forsyth’s testimony that he and Watt planned to switch vehicles after taking delivery of the crate. Finally, the Camry that Watt was driving contained various tools that could have been used to open a large wooden crate. This evidence was sufficient to corroborate Forsyth’s testimony regarding Watt’s involvement.

2. Watt argues that the trial court erred by denying his motion to suppress because Deputy Smith’s stop of Watt’s vehicle was not predicated on a reasonable, articulable suspicion of criminal activity. This enumeration is without merit.

On appeal from a motion to suppress, the evidence is viewed in a light most favorable to upholding the trial court’s judgment. The credibility of witnesses and the weight accorded their testimony rest with the trier of fact. Thus, the trial court’s findings on disputed facts and credibility must be accepted unless clearly erroneous. Where the evidence is uncontroverted and there is no issue as to witness credibility, however, we review de novo the trial court’s application of the law to the undisputed facts.
A law enforcement officer is authorized to stop an automobile and conduct a limited investigation of its occupants, without probable cause, if that officer has reasonable grounds for such action and the stop is not arbitrary or harassing. There needs to be a particularized and objective basis for suspecting the particular person stopped of criminal activity.

Here, a BOLO had been issued for the Toyota Camry, which police observed at the Old Dominion warehouse; the BOLO included a description of the vehicle, the last known road the driver had turned onto, and the last four digits of the vehicle’s license plate. Deputy Smith observed a car matching the BOLO description within five to ten minutes after the BOLO was issued in the area of the warehouse. According to Smith, the Camry was just “sitting there,” until Smith passed them in his patrol car, at which time the driver pulled out and drove away. Under these circumstances, Smith “had an objective, reasonable suspicion of criminal activity that would justify the stop.”

3. In his final enumeration, Watt argues that the trial court erred by admitting similar transaction evidence. We disagree.

Prior to trial, the trial court conducted a similar transaction hearing at which the State argued that it sought to introduce evidence of a 2003 arrest in Tucson, Arizona, to show Watt’s bent of mind and course of conduct. Karen Couture, a sheriff’s detective assigned to the DEA in Tucson, was investigating possible narcotics trafficking at an apartment complex in June 2003. After observing a suspicious transaction between occupants of an apartment and men in a truck, Couture and other agents approached, and the suspects fled the area. Watt was apprehended fleeing the scene. A subsequent search of the apartment that Watt exited revealed several large bales of marijuana, scales, plastic wrap, and Watt’s cell phone next to one of the bales on the coffee table in the living room immediately inside the apartment, as well as a bale of marijuana on the kitchen counter and marijuana scattered on the kitchen floor. Watt was charged with “possession of marijuana for sale”; the charge was ultimately dismissed.

To introduce evidence of a similar transaction, the State must show three things: (1) that evidence of the independent offense is being introduced for an appropriate purpose and not to impugn the defendant’s character; (2) sufficient evidence establishes that the defendant committed the independent offense; and (3) the independent offense is sufficiently connected or similar to the crime charged so that proof of the former tends to prove the latter. When considering the admissibility of similar transaction evidence, the proper focus is on the similarities between the prior act and the charged crime, not the differences.

“When reviewing the trial court’s factual findings regarding whether the [Sjtate satisfied the three-prong test, we apply the clearly erroneous standard. The decision to admit similar transaction evidence which satisfies the three-prong test is within the trial court’s discretion and will not be disturbed absent an abuse of that discretion.”

(a) Watt argues that the State failed to prove that there was sufficient similarity between the independent offense and the instant case, pointing out certain differences between the two transactions. As we have previously noted, however, the prior offense

does not have to be identical to the crime charged to be admissible as a similar transaction. The issue of admissibility of extrinsic transactions has never been one of mere similarity. It is, rather, relevance to the issues in the trial of the case. When similar transaction evidence is being introduced to prove motive, intent, or bent of mind, it requires a lesser degree of similarity to meet the test of admissibility than when such evidence is being introduced to prove identity. Similar transaction evidence can be introduced to prove motive [or bent of mind] when there exists some logical connection between the similar transaction evidence and the charged offense so that the similar transaction evidence tends to establish the charged offense.

Decided August 30, 2012.

James K. Luttrell, for appellant.

Here, in both transactions, Watt was in possession of or attempted to possess substantial amounts of marijuana. The independent transaction occurred in Tucson, Arizona, which was the origination of the shipment of 150 pounds of baled marijuana that was delivered to the warehouse in the instant case. Under these facts, the trial court did not abuse its discretion in concluding that sufficient similarities existed between the prior offense and the crime charged.

(b) Watt also contends that the State failed to prove that he committed the separate offense, asserting that spatial proximity or mere presence at the scene of the crime is insufficient to support a conviction. That was not, however, the only evidence connecting Watt to the marijuana. According to the evidence at the similar transaction hearing, Watt exited the apartment immediately before the police approached, and he fled when police approached. His cell phone was on the table adjacent to the large amount of marijuana, scales, and plastic wrap on the coffee table in the living room immediately inside the apartment, and there was an additional bale of marijuana on the kitchen counter and marijuana scattered on the kitchen floor.

The circumstantial evidence in this case shows a connection between [Watt] and the [marijuana] found in the apartment beyond mere presence and spatial proximity, or at least a rational trier of fact could find that it does. It also is sufficient to exclude every reasonable hypothesis, save that [W&ff] intended to exercise dominion and control over the [marijuana].

Accordingly, the trial court did not abuse its discretion by admitting the similar transaction evidence.

Judgment affirmed.

Andrews and Boggs, JJ., concur.

David McDade, District Attorney, James A. Dooley, Emily K. Richardson, Assistant District Attorneys, for appellee.

       OCGA § 16-13-31 (c) (1).

       (Punctuation omitted.) Clyde v. State, 298 Ga. App. 283 (680 SE2d 146) (2009).

       (Punctuation omitted.) James v. State, 316 Ga. App. 406, 408 (1) (730 SE2d 20) (2012), citing OCGA § 24-4-8.

       (Punctuation omitted.) Gilmore v. State, 315 Ga. App. 85, 87 (1) (726 SE2d 584) (2012).

       (Citation and punctuation omitted.) Alatise v. State, 291 Ga. 428, 432 (5) (728 SE2d 592) (2012).

       See Copeny v. State, 316 Ga. App. 347, 350 (1) (b) (729 SE2d 487) (2012); Jackson v. State, 289 Ga. 798, 801-802 (716 SE2d 188) (2011); Clanton v. State, 208 Ga. App. 669, 670 (1) (a) (431 SE2d 453) (1993).

       (Punctuation omitted.) Groves v. State, 306 Ga. App. 779 (703 SE2d 371) (2010).

       (Punctuation and footnote omitted.) Murray v. State, 282 Ga. App. 741, 742 (639 SE2d 631) (2006).

        McNair v. State, 267 Ga. App. 872, 874 (1) (600 SE2d 830) (2004) (traffic stop justified because a BOLO had been issued for the car the suspects were driving based on a police officer’s observation of the car leaving the scene of a crime). See also Faulkner v. State, 277 Ga. App. 702, 704-705 (1) (627 SE2d 423) (2006) (traffic stop justified because the BOLO provided the make, model, and color of the vehicle, the number and race of the occupants, and the location and-direction of travel).

       (Citations omitted.) Nelson v. State, 305 Ga. App. 425, 428 (3) (699 SE2d 783) (2010).

       (Punctuation and footnote omitted.) Wright v. State, 313 Ga. App. 829, 831 (1) (a) (723 SE2d 59) (2012).

       (Punctuation and footnote omitted.) Celestin v. State, 296 Ga. App. 727, 736 (4) (675 SE2d 480) (2009).

       See id. at 735-736 (4); Sherrer v. State, 289 Ga. App. 156, 158 (1) (a) (656 SE2d 258) (2008).

        Holiman v. State, 313 Ga. App. 76, 83 (1) (720 SE2d 363) (2011) (physical precedent only) (evidence sufficient to show possession of large amount of drugs found in the apartment that the defendant shared with his brother where the drugs were plain and visible in the common sitting area of the apartment and the defendant hid and attempted to flee when the police forcibly entered the apartment). See also Moody v. State, 232 Ga. App. 499, 501-503 (1) (502 SE2d 323) (1998) (evidence supported possession conviction of cocaine found in plain view in an apartment where the defendant was visiting based on evidence that the defendant attempted to flee and elude police).


text:
    A12A1527.
    ANDERSON v. CANUP.
    (731 SE2d 786)
   Doyle, Presiding Judge.

Linda Anderson brought suit against Lamar Canup, individually and doing business as ALC Properties, seeking to recover damages for injuries she sustained when she fell while exiting Canup’s business. The trial court granted summary judgment to Canup, and Anderson appeals. We affirm, for the reasons that follow.

To prevail on summary judgment, the moving party must establish

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.

So viewed, the record shows that on February 13, 2008, Anderson went to Canup’s insurance agency. Anderson parked her vehicle, stepped up onto the sidewalk, stepped up one step onto the concrete landing immediately outside the office, and entered the premises. After she completed her business, Anderson exited the office and stepped onto the landing. As she attempted to step down from the landing to the sidewalk, Anderson stumbled and fell, seriously injuring herself.

Anderson was alone at the time of her fall. At her deposition, Anderson testified that she did not know how she fell:

Q:... Do you believe that you could have placed your foot on either the front edge or the side edge of that landing or stoop and that the placement of your foot there resulted in you falling? Do you understand what I’m asking?
A: I do not remember what happened.
Q: Okay. So you’re not sure?
A: I’m not sure. All I know is I fell as I was coming off the stoop. I don’t know if I stepped on the edge or the fact that — well, the stoop is not that high, but it’s ... a good step.
Q: Okay.
A: I don’t — I may have misjudged the height of the step.

Anderson conceded that numbness in her legs resulting from diabetic neuropathy may have played a part in her fall, and she also testified that approximately two months before her fall, she visited Canup’s office and traversed the sidewalk and landing as she entered and exited the building.

Canup filed a motion for summary judgment on multiple grounds, including that Anderson failed to establish that he breached any duty owed to her and that Anderson’s knowledge of the conditions of the premises was equal to his. The trial court granted Canup’s motion for summary judgment, concluding that Anderson failed to establish causation, and Anderson appeals.

In Georgia,

an owner or occupier of land is liable to its invitees for injuries caused by its failure to exercise ordinary care in keeping the premises and approaches safe. It is axiomatic that causation is always an essential element in slip or trip and fall cases, and, therefore, where the plaintiff does not know of a cause or cannot prove the cause, there can be no recovery because an essential element of negligence cannot be proven.

“A mere possibility of causation is not enough and when the matter remains one of pure speculation or conjecture, it is appropriate for the court to grant summary judgment to the defendant.”

Here, Anderson admitted that she does not know what caused her to fall, and there is no evidence in the record as to the cause of her fall. Accordingly, the trial court did not err by granting summary judgment to Canup.

Decided August 30, 2012.

Michael T. Bennett, Andrea Bennett, for appellant.

Lloyd B. Hedrick, Jr., for appellee.

Judgment affirmed.

Andrews and Boggs, JJ., concur.

       (Citation omitted.) Benton v. Benton, 280 Ga. 468, 470 (629 SE2d 204) (2006). See also OCGA § 9-11-56 (c).

       (Emphasis supplied.)

       (Punctuation omitted). Willingham, Loan & Realty Co. v. Washington, 311 Ga.App. 535, 536 (716 SE2d 585) (2011), citing OCGA § 51-3-1.

       (Citation and punctuation omitted.) Pinckney v. Covington Athletic Club & Fitness Center, 288 Ga. App. 891, 893 (655 SE2d 650) (2007).

       See Willingham, 311 Ga. App. at 536 (summary judgment proper because the record contained no evidence of causation); Pickney, 263 Ga. App. at 893 (same); Pennington v. WJL, Inc., 263 Ga.App. 758, 760 (1) (589 SE2d 259) (2003) (same); Shadburn v. Whitlow, 243 Ga. App. 555, 556 (533 SE2d 765) (2000).