author: Phipps, Chief Judge.

text:
    A14A0145.
    ASSAF v. CINCINNATI INSURANCE COMPANY.
    (759 SE2d 557)
   Phipps, Chief Judge.

In this insurance coverage dispute, Eugene F. Assaf, the insured, appeals from the trial court’s order granting summary judgment to Assaf’s insurer, Cincinnati Insurance Company. For the reasons set forth below, we agree with Assaf that issues of material fact remain as to whether he was entitled to $1,000,000 in excess uninsured/ underinsured motorist coverage. Accordingly, we reverse.

Summary judgment is warranted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” We review the grant or denial of a motion for summary judgment de novo, and we view the evidence, and the reasonable inferences drawn therefrom, in a light most favorable to the nonmovant.

So viewed, the evidence shows that on August 10, 2009, an uninsured vehicle driven by Gerald Stein struck and injured Assaf as he was walking alongside a road. Assaf filed a personal injury action against Stein in the State Court of Fulton County and served Cincinnati with a copy of the complaint as Assaf’s uninsured/underinsured motorist insurance carrier. Cincinnati answered in its own name and filed a cross-claim against Stein. Assaf later amended his complaint to assert a claim against Cincinnati that refusal to provide $1,000,000 in uninsured/underinsured motorist coverage (“UM Coverage”) constituted a breach of contract.

Before his injury, Assaf had applied to Cincinnati for automobile liability insurance and a personal liability umbrella policy through Little and Smith, Inc. (“L&S”), an insurance agency. On April 18, 2008, Assaf spoke by telephone with Joy Chastain, an L&S employee, and she bound Assaf’s automobile and umbrella insurance coverage at that time. Assaf testified that during the telephone conversation he told Chastain that he wanted an umbrella policy which included $1,000,000 in UM Coverage. On April 25, 2008, Assaf went to the offices of L&S, where he signed documentation pertaining to the insurance and received copies of the automobile and umbrella insurance policies issued to him by Cincinnati.

The automobile policy, as issued, provided liability and UM Coverage of $100,000, each person, and the umbrella policy provided coverage of $1,000,000, each occurrence. The umbrella policy, however, did not provide excess UM Coverage. The lack of such coverage was consistent with the umbrella policy application submitted by L&S to Cincinnati. The umbrella policy application included a coverage rejection form on which a box indicating, “I reject Excess Uninsured/Underinsured Motorists Coverage under this policy” was checked, and which was purportedly signed by “Eugene F. Assaf.”

Notwithstanding what appeared on the application, Assaf testified that he did not sign the form rejecting excess UM Coverage under the umbrella policy and that he did not check the box indicating his rejection of such coverage. Rather, Assaf contends, his signature was forged by Chastain, who was the only other person who had access to the insurance applications before they were submitted to Cincinnati, and who was later asked to resign from L&S because, among other things, she had signed another insured’s name to a policy cancellation without that insured’s consent.

Acknowledging that Assaf contended that the signature evidencing a rejection of excess UM Coverage was not his, Cincinnati moved for summary judgment, arguing that even assuming Assaf’s signature was forged: (i) Cincinnati reasonably relied on the application in issuing coverage; (ii) Cincinnati could not be held liable for the alleged wrongful acts of an independent insurance agent; and (iii) Assaf was precluded from seeking excess UM Coverage because he had not read the umbrella policy. Cincinnati asked the trial court to limit its liability to $100,000 and to rule that Assaf was not entitled to recover an additional $1,000,000 in excess UM Coverage. The trial court granted the motion and entered final judgment in favor of Cincinnati.

1. On appeal, Assaf contends that because there remain genuine issues of material fact, particularly as to whether he signed the rejection of the excess UM Coverage and whether L&S was the dual agent of Assaf and Cincinnati, the trial court erred in granting summary judgment to Cincinnati. We agree.

(a) At the time Cincinnati issued Assaf’s original umbrella policy, Georgia law required that “without a written waiver, all automobile policies provide UM coverage equal to the policies’ overall liability limits.” Umbrella and excess policies that included motor vehicle or automobile liability coverage were then subject to this requirement. Thus, absent other considerations, if Assaf did not reject the excess UM Coverage in writing, then, even if his “original policy purported to exclude uninsured motorist coverage, such coverage was required by law and, therefore, implied into [his] original policy by operation of law.”

(b) Cincinnati maintains that it was nevertheless entitled to rely on the apparent rejection of UM Coverage in the application even if Assaf did not actually sign the rejection. Generally, “it is implicit that an insurer is entitled to rely on statements of an applicant as true, without conducting an independent investigation.” For example, where an insured contended that an independent insurance broker forged his signature on an insurance application, but there was no evidence that the insurance broker was the agent of the insurer, we found that the authenticity of the signature was not material to the insurer’s liability under the policy.

Here, however, Assaf contends that L&S was not only his agent, but also the agent of Cincinnati.* And, as to this point, Cincinnati represented to the trial court that for the purpose of its motion for summary judgment Cincinnati assumed that L&S was the dual agent of both Cincinnati and Assaf. As a rule,

where an agent represents two adverse parties in a transaction with the knowledge and consent of both, neither principal is liable to the other for the tortious acts of the agent so situated where the opposite principal is not in complicity with the agent or in no way participates in the tortious act. Another way of stating this same principle is that the misconduct of a dual agent by consent cannot be imputed to either of the principals who is not actually at fault, since each of the principals is under an equal duty to exercise ordinary care in selecting and supervising the agent to protect his own interest.

Notwithstanding the foregoing, Georgia law, pursuant to OCGA § 10-6-56, also provides that “[t]he principal shall be bound by all representations made by his agent in the business of his agency and also by his willful concealment of material facts, although they are unknown to the principal and known only by the agent.” In considering whether this statute is negated by the rule that neither principal is civilly liable to the other for the tortious conduct of the dual agent, absent participation or collusion in such acts, our Supreme Court has held that “equity will not allow [a principal] to be relieved of responsibility for misrepresentations of the dual agent upon which the other principal relied to his detriment when the action is in contract.” Thus, an insurer cannot “escape the usual effects of estoppel because the agent is also the agent of the insured party.”

This court applied the foregoing holding in Southern Guaranty Ins. Co. v. Cotton States Mut. Ins. Co., a dispute which, as in this case, involved allegations that an insured’s signature on a coverage rejection form had been forged. At the time Southern Guaranty issued the insurance policy in question, Georgia law required insurers to offer certain optional personal injury protection coverage to applicants for no-fault insurance and required waiver of such coverage to be made knowingly and in writing. Following an accident, the insureds sued their insurer, Southern Guaranty, to recover additional personal injury benefits that they claimed were not offered to them as required by statute. The trial court directed a verdict to the insureds on the coverage issue at trial, and we affirmed that ruling, noting that “the evidence is uncontroverted that the [insureds] did not knowingly and in writing waive their right to obtain” the optional coverage. Although the signature of a named insured appeared on the coverage rejection form, the evidence was undisputed that neither insured signed the rejection form or authorized anyone else to sign the form on their behalf. Furthermore, the insurance agent that submitted the application occupied the status of a dual agent. Noting that, in contract, a principal may be held liable for the misrepresentations of a dual agent on which the other principal detrimentally relied, we held that “any knowledge by the employees of the [insurance agent] that the signature on the form was not authentic was imputable to Southern Guaranty for the purpose of establishing its liability on the policy.”

In this case, the trial court distinguished Southern Guaranty on the ground that Assaf did not contend that Cincinnati was complicit in any wrongdoing by L&S or Chastain. In Southern Guaranty, this court found as to the insureds’ claims for a bad-faith penalty, attorney fees, and punitive damages that the trial court erred in refusing to charge the jury that Southern Guaranty could not be liable to the insureds unless it was in complicity with the dual agent or participated in forgery. This holding, however, did not affect our affirmance of the directed verdict in favor of the insureds on the coverage issue, and we reiterated that

[a]lthough a principal may be liable to the other principal in contract for the misrepresentations of a dual agent, neither principal is liable to the other for the tortious acts of the dual agent, where the opposite principal is not in complicity with the agent or in no way participates in the tortious act.

In light of Southern Guaranty, if L&S’s employee signed Assaf’s name on the form as rejecting excess UM Coverage without his authorization, and L&S was the dual agent of Cincinnati and Assaf, then knowledge that Assaf’s signature was not authentic could be imputed to Cincinnati. Under such circumstances, Cincinnati could not prevail on Assaf’s contract claim either by claiming that it was entitled to rely on the purported signature as an apparent rejection by Assaf of the excess UM Coverage or by claiming that it could not be held liable in tort for the misrepresentations of L&S.

(c) Cincinnati argues that it was also entitled to summary judgment because (i) Assaf failed to examine the policy documents for errors and was thereby estopped from challenging the terms of the insurance contract, and (ii) Assaf’s contractual claims were actually claims for equitable relief through reformation and, as such, beyond the jurisdiction of the State Court of Fulton County. We disagree.

Generally, an insured has a “legal duty to examine his contract, observe what coverage it provided to him, and, if the coverage was not correct, either reject the policy as written when tendered or renegotiate his contract with the insurer.” “[A]nd if the applicant neglects to examine the policy delivered to him the contract is binding.” An insured’s failure to read an insurance contract will not bar an action for reformation of the contract, although such affirmative equitable relief is within the jurisdiction of the superior courts.

Accepting, arguendo, that Assaf did not examine the insurance policy after it was issued, Assaf may not be barred thereby from claiming excess UM Coverage. As we explained above, if Assaf did not reject the excess UM Coverage in writing then such coverage was “implied into [his] original policy by operation of law,” even if Cincinnati’s policy purported to exclude such coverage. Cincinnati argues that without a burden of inspection an insured could later collect unbargained-for benefits by claiming that an insurer failed to include desired coverage. In this case, however, in light of unresolved issues of fact, the policy as issued by Cincinnati may have included the excess UM Coverage notwithstanding a stated exclusion. Assaf’s failure to discover or object to an ineffective exclusion of UM Coverage “will not serve to bar [Assaf] from seeking to recover benefits pursuant to such coverage as was provided to [him] as a matter of law.” Similarly, if the policy provided the UM Coverage by operation of law, Assaf need not reform the contract to receive the benefit of that coverage, and Cincinnati fails to show Assaf’s claim for breach of contract was beyond the jurisdiction of the state court.

Decided June 5, 2014

James A. Rice, Jr., for appellant.

Goodman, McGuffey, Lindsey & Johnson, Judy F. Aust, David M. Abercrombie, for appellee.

In light of the foregoing, we conclude that because genuine issues of material fact remain for a trier of fact, the trial court erred in granting Cincinnati’s motion for summary judgment.

2. In light of our holding in Division 1, we need not address Assaf’s other claims of error.

Judgment reversed.

Ellington, P. J., and McMillian, J., concur.

       OCGA § 9-11-56 (c).

       See Woodcraft by MacDonald v. Ga. Cas. and Sur. Co., 293 Ga. 9, 10 (743 SE2d 373) (2013).

        Cowart v. Widener, 287 Ga. 622, 624 (1) (a) (697 SE2d 779) (2010).

       The declarations page of the umbrella policy refers to an “Excess Uninsured/Underinsured Motorist Coverage Exclusion,” although the parties have not identified what the exclusion actually says. However, no one contends that the express (as opposed to the implied) terms of the umbrella policy included UM Coverage.

       Cincinnati also asked for summary judgment on the issues of punitive damages and bad faith attorney fees but, as Cincinnati notes, those claims are not addressed in the trial court’s ruling or in Assaf’s appeal. Accordingly, we do not address them here.

        Abrohams v. Atlantic Mut. Ins. Agency, 282 Ga. App. 176, 180 (1) (638 SE2d 330) (2006). See OCGA § 33-7-11 (a) (1), (3) (2008); St. Paul Fire & Marine Ins. Co. v. Hughes, 321 Ga. App. 738, 742 (742 SE2d 762) (2013) (finding that as “there was no written rejection of UM benefits for the Policy, the Policy’s UM exclusion conflicts with the plain terms of OCGA § 33-7-11 and was therefore void”). Effective January 1,2009, OCGA § 33-7-11 (a) (3) was amended to provide that “[t]he coverage required under [OCGA § 33-7-11 (a) (1)] excludes umbrella or excess liability policies unless affirmatively provided for in such policies or in a policy endorsement.” Ga. L. 2008, p. 1192, §§ 1,5. The umbrella policy at issue here, originally issued April 18, 2008, was renewed for a policy period of April 18, 2009 to April 18, 2010, and so a renewal policy was in effect when Assaf was allegedly struck by Stein’s vehicle on August 10, 2009. For purposes of this appeal, the parties do not contend that the renewal policy, albeit issued after the J anuary 1, 2009 effective date of the 2008 amendment to OCGA § 33-7-11 (a) (3), had any less coverage than the original policy. See generally OCGA § 33-24-45 (b) (2) (“ ‘Renewal’ means issuance and delivery by an insurer of a policy superseding at the end of the policy period a policy previously issued and delivered by the same insurer and providing no less than the coverage contained in the superseded policy . . . .”).

        See Abrohams, supra, 282 Ga. App. at 180 (1).

        Wilson v. The Automobile Ins. Co. of Hartford, Conn., 293 Ga. 251, 252 (744 SE2d 732) (2013).

        Graphic Arts Mut. Ins. Co. v. Pritchett, 220 Ga. App. 430, 432 (2) (469 SE2d 199) (1995).

        Morris v. Fidelity & Cas. Co. of N. Y., 169 Ga. App. 883, 884 (1) (315 SE2d 451) (1984). Accord National Indem. Co. v. Smith, 172 Ga. App. 415, 415-416 (323 SE2d 274) (1984) (holding that “[w]here an insurer is compelled to issue a policy of automobile insurance pursuant to the Georgia assigned risk plan, based upon an application initially taken by an insurance broker not acting as the insurer’s agent, a dispute over the authenticity of the signatures on the application is not material to the issue of the insurer’s liability for optional PIP benefits”).

       Assaf points to evidence that, among other things, L&S had the authority to collect premiums on behalf of Cincinnati and to bind insurance coverage for Cincinnati. See Bowen Tree Surgeons v. Canal Indem. Co., 264 Ga. App. 520, 523 (591 SE2d 415) (2003) (finding that where independent agent customarily accepted premiums and notices of claims on insurer’s behalf, questions of fact remained as to whether the agent acted as a dual agent). Compare Canal Ins. Co. v. Harrison, 189 Ga. App. 681, 683 (1) (376 SE2d 923) (1988) (concluding that, among other things, there was a lack of evidence that insurance agent was an agent of the insurer where unequivocal testimony showed that the agent could not bind coverage for the insurer).

       Cincinnati argues that L&S was its independent contractor and not its employee, such that the alleged fraud by L&S could not be imputed to Cincinnati. See, e.g., Fieldstone Center v. Stanley, 216 Ga. App. 803, 805 (3) (456 SE2d 61) (1995) (noting that “[generally, an employer is not responsible under the theory of respondeat superior for the torts of one employed as an independent contractor”) (citation and punctuation omitted). Cincinnati does not show, however, as discussed below, that if L&S was also its agent, Assaf’s claim for coverage under the contract, as opposed to a tort claim, would be precluded by a showing that L&S was an independent contractor.

        Home Materials v. Auto Owners Ins. Co., 250 Ga. 599, 602 (2) (300 SE2d 139) (1983) (citation and punctuation omitted).

       Id. at 603 (2).

       Id. See, e.g., GFA Business Solutions v. Greenway Ins. Agency, 243 Ga. App. 35, 36 (1) (531 SE2d 134) (2000) (finding that “[a]n insurance company clearly may be held liable for the fraud, misconduct, or negligence of an agent in an action for a breach of an insurance contract”).

       176 Ga. App. 140, 143 (3) (335 SE2d 598) (1985).

       Id. at 142 (3). See Flewellen v. Atlanta Cas. Co., 250 Ga. 709, 714 (300 SE2d 673) (1983).

        Southern Guaranty, supra, 176 Ga. App. at 141.

       Id. at 142-143 (3).

       Id. at 140, 142 (3).

       Id. at 143 (3).

       Id.

       Id. at 144 (6).

       Id. (citation and punctuation omitted; emphasis supplied).

       See id. at 143 (3) (distinguishing authority that insurer could rely on authenticity of signed rejection form where the agent that submitted the application could not have been the agent of the insurance company). Compare Canal Ins. Co., supra, 189 Ga. App. at 683-684 (1) (finding that because there was no evidence that the independent broker represented the insurer, the insurance company could not be held liable to the insured in contract on the basis of the agent’s alleged misrepresentations).

        Barnes v. Levenstein, 160 Ga. App. 115, 116 (286 SE2d 345) (1981) (citation and punctuation omitted).

        Southern Gen. Ins. Co. v. Mathis, 183 Ga. App. 823, 826 (3) (360 SE2d 19) (1987) (citation and punctuation omitted). See Parris & Son v. Campbell, 128 Ga. App. 165, 173-174 (13) (196 SE2d 334) (1973).

        Ga. Farm Bureau Mut. Ins. Co. v. Wall, 242 Ga. 176, 179-180 (2) (249 SE2d 588) (1978).

       SeeOCGA§ 23-1-1 (“All equity jurisdiction shall be vested in the superior courts of the several counties.”); Parris & Son, supra, 128 Ga. App. at 174 (15) (noting that a state court would not have jurisdiction of a claim for reformation of contract).

        Wilson, supra.

        Southern Gen. Ins. Co., supra, 183 Ga. App. at 827 (3).

       See, e.g., Ly v. Jimmy Carter Commons, LLC, 286 Ga. 831, 833 (2) (691 SE2d 852) (2010).


source: Caselaw Access Project

author: McMillian, Judge.

license: Public Domain

text:
    A14A0466.
    AMERICAN STRATEGIC INSURANCE CORP. v. HELM et al.
    (759 SE2d 563)
   McMillian, Judge.

This case arises out of a May 26, 2012 accident in which a motorized golf cart driven by William Helm struck and injured Tracy Self. In July 2012, Tracy and Michael Self filed suit against Helm for alleged negligence in the operation of the golf cart. In August 2012, American Strategic Insurance Corp. (“ASI”) filed a declaratory judgment action, seeking a determination as to whether Helm’s insurance policy provided coverage for the accident. The parties filed cross-motions for summary judgment, and after a hearing on June 4, 2013, the trial court denied ASI’s motion and granted the Selfs’ motion. ASI now appeals, arguing that the trial court erred in determining that Helm’s policy did not exclude coverage for the accident.

We review the denial or grant of summary judgment de novo 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. Johnson v. Bartley, 321 Ga. App. 59, 59-60 (741 SE2d 275) (2013). The material facts of this case are not in dispute. At the time of the accident, Helm was driving his golf cart at the Frederick Brown Jr. Amphitheater within the master-planned community of Peachtree City, Georgia. The golf cart was a 2003 EZGO Freedom SE, designed by the manufacturer with four seats. ASI issued a homeowner’s policy to Helm, effective June 2, 2011 through June 2, 2012 (the “Policy”). Thus, ASI concedes that the accident at issue occurred during this effective policy term.

The Policy first identifies the types of coverage available, including in pertinent part:

SECTION II — LIABILITY COVERAGES

A. Coverage E — Personal Liability
If a claim is made or a suit is brought against an “insured” for damages because of “bodily injury” or “property damage” caused by an “occurrence” to which this coverage applies, we will:
1. Pay up to our limit of liability for the damages for which an “insured” is legally liable. . . . ; and
2. Provide a defense at our expense by counsel of our choice, even if the suit is groundless, false or fraudulent. . . .
B. Coverage F — Medical Payments To Others
We will pay the necessary medical expenses that are incurred or medically ascertained within three years from the date of an accident causing “bodily injury.” ... As to others, this coverage applies only: . . .
2. To a person off the “insured location,” if the “bodily injury”:
b. Is caused by the activities of an “insured[.]”

The Policy then identifies various exclusions, including the following relevant provision, which excludes coverage for all motor vehicles, except motorized golf carts designed to carry up to four persons:

SECTION II — EXCLUSIONS

A. “Motor Vehicle Liability”
2. If Exclusion A. 1 does not apply, there is still no coverage for “motor vehicle liability” unless the “motor vehicle” is:
e. A motorized golf cart that is owned by an “insured,” designed to carry up to 4 persons, not built or modified after manufacture to exceed a speed of 25 miles per hour on level ground . . .

In addition, Helm’s Policy included a “Georgia Special Provision Endorsement” (“Special Endorsement”), which by its terms superseded and modified certain other terms contained within the Policy, including the golf cart coverage. Thus, the Special Endorsement replaced the exclusion language in Section II (2) (e), above, with the following:

e. A motorized golf cart:
(1) Owned by an “insured”;
(2) Designed to carry up to 2 persons;
(3) Designed to carry 2 golf club bags;
(4) Not built or modified after manufacture; and
(5) Which does not exceed a speed of 25 miles per hour on level ground;

At the trial level, ASI asserted that the Policy did not provide coverage for the accident because Helm’s four-seater golf cart was excluded by the Special Endorsement as it was designed to carry more than the maximum of two persons. The Selfs, however, claimed that based on the language of the exclusion, a reasonable insured could understand the exclusion to mean that “up to 2 persons” instead imposed a minimum requirement that the golf cart must seat at least two people in order to be covered. In granting summary judgment in favor of the Selfs, the trial court found that the exclusion ASI attempts to rely on “does not clearly and unequivocally exclude from coverage the underlying personal injury claims the Selfs have asserted against Mr. Helm.” For the reasons set forth below, we affirm.

In its sole enumeration of error, ASI argues that the trial court erred in determining that the Policy could be construed as covering the accident and granting summary judgment to the Selfs. Construction and interpretation of an insurance policy are matters of law for the court. Landmark American Ins. Co. v. Khan, 307 Ga. App. 609, 612 (1) (705 SE2d 707) (2011). An insurance policy is a contract and subject to the ordinary rules of contract construction, and the parties are bound by its plain and unambiguous terms. Hurst v. Grange Mut. Cas. Co., 266 Ga. 712, 716 (4) (470 SE2d 659) (1996). “However, if a provision of an insurance contract is susceptible of two or more constructions, even when the multiple constructions are all logical and reasonable, it is ambiguous, and the statutory rules of contract construction will be applied.” (Citations and punctuation omitted.) Fireman’s Fund Ins. Co. v. Univ. of Ga. Athletic Assn., Inc., 288 Ga. App. 355, 356-357 (654 SE2d 207) (2007).

The initial issue to be resolved then is whether the language of the exclusion is plain and unambiguous or subject to two or more interpretations. Beginning with the text of the Policy as it is originally issued, the exclusion provides that there is no coverage for motor vehicle liability unless the motor vehicle is a golf cart that is designed to carry up to four persons. By its express terms, the Policy appears to exclude coverage for any golf carts that are designed to seat only one to three persons. When the Policy is read as modified by the Special Endorsement, the applicable exclusion provides that there is no coverage for motor vehicle liability “unless” the motor vehicle is a golf cart that is designed to carry “up to two persons.” According to the Selfs, a reasonable reading of the Policy is that, although two-seater golf carts would not have been covered under the base Policy, once the Special Endorsement is added, a two-seater golf cart is covered, whereas a one-person cart remains excluded. And thus, the Special Endorsement, like the base Policy, establishes a minimum, rather than a maximum. To support their interpretation, the Selfs point out other instances in which the phrase “up to” can be used to set a minimum, noting for example that if a job posting stated that applicants must be capable of lifting up to 40 pounds or typing up to 90 words per minutes, those applicants who are capable of lifting more or typing faster would not be excluded.

ASI argues, in turn, that it clearly meant for the exclusion to set a maximum number of persons by using the phrase “up to,” also giving examples of when the phrase is used to set a maximum number. However, “the test is not what the insurer intended its words to mean, but rather what a reasonable person in the insured’s position would understand them to mean.” (Citation and punctuation omitted.) Kerr-McGee Corp. v. Ga. Cas. & Sur. Co., 256 Ga. App. 458, 460 (568 SE2d 484) (2002); see also Fidelity Nat. Title Ins. Co. v. Keyingham Investments, LLC, 288 Ga. 312, 313 (1) (702 SE2d 851) (2010) (“it is the understanding of the average policyholder which is to be accepted as a court’s guide to the meaning of words, with the help of the established rule that ambiguities and uncertainties are to be resolved against the insurance company”) (citation and punctuation omitted). Moreover, “an insurer seeking to invoke a policy exclusion carries the burden of proving its applicability in a given case,” with the exclusion to be strictly construed against the insurer. (Citation and punctuation omitted.) Nationwide Mut. Fire Ins. Co. v. Kim, 294 Ga. App. 548, 552 (1) (669 SE2d 517) (2008); see also Ga. Farm Bureau Mut. Ins. Co. v. Meyers, 249 Ga. App. 322, 324 (548 SE2d 67) (2001) (“The insurer, in preparing the language of its policy, has the burden of using language that is clear and precise.”).

Thus, while ASI’s interpretation of the Policy as excluding coverage may be reasonable, the language does not unambiguously compel this interpretation. Rather, we find that although the language at issue “appears at first blush to be plain and unambiguous,” when properly examined within the context of the Policy as a whole, the exclusion is ambiguous and subject to at least two reasonable interpretations, one providing coverage for the accident and one excluding coverage. Kerr-McGee Corp., 256 Ga. App. at 459 (“Such language... causes a reasonable person to be unsure of what appears at first blush to be plain and unambiguous but, upon examination under the facts of this case, is ambiguous.”); see also Meyers, 249 Ga. App. at 324 (“Ambiguity in an insurance contract is duplicity, indistinctiveness, uncertainty of meaning of expression, and words or phrases which cause uncertainty of meaning and may be fairly construed in more than one way.”).

Our finding is supported by — but by no means dependent on — the deposition testimony of ASI’s director of underwriting:

Q: All right. Fm just reading here the language. It says, There is still no coverage for motor vehicle liability unless the motor vehicle is a motorized golf cart designed to carry up to four persons. So unless it’s a motorized golf cart designed to carry up to four persons, that could be read to not cover a two-seater golf cart?
A: A two person? I could see that.
Q: . . . So e (2) where it says, Designed to carry up [to] two persons, ASI reads that as designed to carry no more than two persons —
A: Correct.
Q: — is that correct? All right. As with the — the other provision that we just talked about, there’s no coverage unless the golf cart is designed to carry up to two persons under this provision. So if it was a one-seater golf cart, it would not be covered under this provision?
A: Correct.

See Certain Underwriters at Lloyd’s of London v. Rucker Constr., 285 Ga. App. 844, 849 (2) (648 SE2d 170) (2007) (“If this is how the insurance adjuster understood it, certainly this is what a reasonable insured could expect it to mean.”).

Because the exclusion is susceptible to two reasonable interpretations and is thus ambiguous, we apply three well-known rules:

any ambiguities in the contract are strictly construed against the insurer as drafter of the document; any exclusion from coverage sought to be invoked by the insurer is likewise strictly construed; and the insurance contract is to be read in accordance with the reasonable expectations of the insured where possible.

(Citation and punctuation omitted.) Fireman’s Fund Ins. Co., 288 Ga. App. at 357. When applying these rules, the policy must be considered as a whole and each provision is to be given effect and interpreted so as to harmonize with the others. See ALEA London Ltd. v. Woodcock, 286 Ga. App. 572, 576 (2) (649 SE2d 740) (2007).

When the ambiguity is resolved against ASI as the drafter and in favor of coverage, the exclusion does not apply. Accordingly, we adopt the interpretation in accordance with the insured’s reasonable expectations and find that the Policy provides coverage. See Hurst, 266 Ga. at 716-717 (4); Kerr-McGee Corp., 256 Ga. App. at 460 (“Policies of insurance will be liberally construed in favor of the object to be accomplished, and conditions and provisions therein will be strictly construed against the insurer, as they are issued upon printed forms, prepared by experts at the insurer’s instance, in the preparation of which the insured has no voice.”) (citations omitted).

Decided June 9, 2014.

Lueder, Larkin & Hunter, Kevin T. Shires, Hillary A. Shawkat, Ashley N. Gowder, for appellant.

Dari H. Champion, Jr., Beck, Owen & Murray, Samuel A. Murray, Hill, Kertscher & Wharton, Blakely H. Frye, for appellees.

Judgment affirmed.

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

       This interpretation is supported by the fact that several manufacturers distribute various types of single-person golf carts.

       To the extent ASI raises new arguments in its reply brief, those arguments are waived and will not be considered. See Vann v. Finley, 313 Ga. App. 153, 154, n. 2 (721 SE2d 156) (2011).

       Our holding in this regard does not mean that the use of the phrase “up to” is always, or even often, ambiguous. However, within the context of this specific exclusion, a reasonable insured could find that the phrase, as used here, sets a minimum.


author: McFADDEN, Judge.

text:
    A14A0520.
    McLAURIN v. OTT.
    (759 SE2d 567)
   McFADDEN, Judge.

Joshua McLaurin filed a petition and supporting brief requesting permission to make video recordings of the July 15,2013 and July 18,2013 criminal calendar proceedings in the Alcovy Judicial Circuit. After an extended colloquy, the trial court denied the petition, and McLaurin filed this appeal. Because the trial court erred in his application of OCGA § 15-1-10.l,thestatute setting out the factors to be considered when determining whether to allow video recording in a courtroom, we vacate that decision and remand.

1. Facts and proceedings below.

McLaurin petitioned to record the criminal calendar proceedings in Walton County on July 15,2013, and in Newton County on July 18, 2013. The petition and brief cited OCGA § 15-1-10.1 and Uniform Superior Court Rule 22, which addresses electronic and photographic news coverage of judicial proceedings.

Following a form set out at Rule 22, the petition recited that McLaurin was “Representing” the Yale Law School and that his “Position” was “Student.” Before ruling, the trial court engaged McLaurin in an extended colloquy. During the course of that colloquy, McLaurin explained that he was engaged in a project examining the Georgia criminal justice system and the varying experiences of indigent defendants in different parts of the state. The trial court expressed concerns about McLaurin’s inability to produce credentials confirming that he was in fact a law student engaged in an academic project, that McLaurin might actually be engaged in a for-profit venture, and that the finished product might be edited so as to create a false impression. And, noting that there were 30 cases on the calendar, the trial court expressed concerns about the administrative burden of notifying the parties and any witnesses of their right to object.

At the end of the colloquy the trial court held that Rule 22 applies only to “news media” and was therefore inapplicable and that OCGA § 15-1-10.1 was controlling. That statute directs courts considering requests to televise, videotape, or film a judicial proceeding to consider the following factors:

(1) The nature of the particular proceeding at issue;
(2) The consent or objection of the parties or witnesses whose testimony will be presented in the proceedings;
(3) Whether the proposed coverage will promote increased public access to the courts and openness of judicial proceedings;
(4) The impact upon the integrity and dignity of the court;
(5) The impact upon the administration of the court;
(6) The impact upon due process and the truth finding function of the judicial proceeding;
(7) Whether the proposed coverage would contribute to the enhancement of or detract from the ends of justice;
(8) Any special circumstances of the parties, victims, witnesses, or other participants such as the need to protect children or factors involving the safety of participants in the judicial proceeding; and
(9) Any other factors which the court may determine to be important under the circumstances of the case.

OCGA § 15-1-10.1 (b).

At the end of the colloquy, the trial court analyzed the case under those factors; and his subsequent written order incorporated that oral analysis by reference. As to the first factor, nature of proceeding, the trial court simply noted that McLaurin sought to record all proceedings on the days in question. The trial court did not reach the second factor, consent or objection of the parties or witnesses, because doing so would have required “an individualized hearing with every case, with every witness in a balancing test,” which, the trial court found, would have entailed an excessive administrative burden. As to the third factor, the trial court found that McLaurin’s project would have done nothing to promote increased public access to the courts and openness of judicial proceedings because the proceedings “are open a hundred percent now.” As to the fourth, the trial court found that there would be no impact upon the integrity and dignity of the court because the courtroom has an attached media room from which the proceedings could be recorded without disturbing the participants. The trial court found dispositive the fifth factor, impact upon the administration of the court:

I find it does have a tremendous impact upon the administration of the court, because it doubles the court time and slows down the court time, and as the District Attorney has indicated, and the Public Defender would probably agree, they can’t work on other things while they are in court, and we have just got a case load that everybody needs to be continuing working on.

The trial court did not address the sixth factor, impact upon due process and the truth finding function of judicial proceedings. The trial court did not reach the seventh factor, enhancement of or detraction from the ends of justice, because, he held, he could not do so without seeing the finished product. The trial court also declined to reach the eighth factor, special circumstances of the parties, victims, witnesses, or other participants, because he was declining to have the sort of hearing necessary to address it. The trial court added no additional considerations under the ninth, catchall, factor.

2. Jurisdiction.

McLaurin’s direct appeal “was not rendered moot by the completion of [the criminal calendar proceedings specified in his petition], because the underlying dispute is capable of repetition, yet evading review.” Multimedia WMAZ v. State, 256 Ga. 698, 699 (1) (353 SE2d 173) (1987) (citation and punctuation omitted).

3. Uniform Superior Court Rule 22.

McLaurin enumerates as error the trial court’s finding that Rule 22 applies only to members of the news media. But any error in that findingwas harmless. The trial court also found that OCGA § 15-1-10.1 applies to the requests of private individuals like McLaurin, and the standards set out in that statute are incorporated into section (P) of Rule 22.

We note however that the introductory paragraph to Rule 22 provides that “representatives of the public media utilizing [electronic or photographic] equipment are subject to the following restrictions and conditions . . .” and section (B) of Rule 22 provides, “Approval of the judge to broadcast/record/photograph a proceeding, if granted, shall he granted without partiality or preference to any person ... or type of electronic or photographic coverage, who agrees to abide by and conform to these rules.” (Emphasis supplied). See also Brown v. Entertainment Merchants Assn.,_U. S._,_(II) (131 SCt 2729, 180 LE2d 708) (2011) (“[W]hatever the challenges of applying the Constitution to ever-advancing technology, the basic principles of freedom of speech and the press, like the First Amendment’s command, do not vary when a new and different medium for communication appears.”) (citation and punctuation omitted); Lovell v. City of Griffin, 303 U. S. 444, 452 (58 SCt 666, 82 LE 949) (1938) (“The press in its historic connotation comprehends every sort of publication which affords a vehicle of information and opinion.”). More fundamentally, we note that any effort by the courts to decide who is and who is not entitled to be treated as legitimate “news media” impinges on a core foundational principle. See Lovell v. City of Griffin, supra, 303 U. S. at 451-452.

4. OCGA § 15-1-10.1.

The trial court’s analysis of the statute, while thoughtful, overlooks our Supreme Court’s direction that when ruling on requests under OCGA § 15-1-10.1, trial courts “should bear in mind this State’s policy favoring open judicial proceedings.” Morris Communications v. Griffin, 279 Ga. 735, 736 (620 SE2d 800) (2005). “[Although the decision whether to allow electronic and photographic coverage of a trial is within the discretion of the trial court, if a trial court denies such coverage, there must be a factual basis in the record that supports the denial.” Id. (citation omitted).

In light of that policy, we must vacate the trial court’s determination, under factor three, that because proceedings are open to anyone who wants to travel to the courthouse, the proposed coverage would not promote increased public access to the courts and openness of judicial proceedings. “A camera generally will increase the openness of a judicial proceeding, and there is nothing in the record in this case to indicate that [McLaurin’s] camera would not have done so.” Morris Communications, supra, 279 Ga. at 737.

And we must vacate the trial court’s determination, under factor five, that it would be an excessive administrative burden to determine whether any party, witness or other participant has an objection. We defer, of course, to the trial court’s finding that he could not notify all of the participants with a single announcement. But we still must determine whether there is a “factual basis in the record for finding that” the administrative burden would be excessive. See WALB-TV v. Gibson, 269 Ga. 564, 566 (501 SE2d 821) (1998). We conclude, notwithstanding our acceptance of the trial court’s finding that a single announcement would be insufficient, that the record does not support his conclusion that the administrative burden would be excessive. The trial court has broad discretion in deciding how best to provide the requisite notice and opportunity to be heard. Under Georgia’s policy favoring open judicial proceedings as well as the text ofOCGA § 15-1-10.1, a petitioner is entitled to consume a reasonable amount of judicial resources in adjudicating the petition and the merits of any objections.

We therefore conclude that the trial court erred in excluding the camera, and remand for reconsideration. See WALB-TV, supra; Morris Communications, supra, 279 Ga. at 737-738 (“[I]n WALB-TV, the trial court found that a videotape camera on a tripod would detract from the dignity and the administration of the court. Because the evidence showed that the camera would be stationary and silent, we concluded that the trial court abused its discretion in excluding the camera.”).

Where, as here, it appears from the trial court’s stated explanation for its ruling that it engaged in an incomplete exercise of discretion based on an erroneous theory of law, the proper remedy from this court is to remand the case to the trial court for its full consideration of the appropriate factors.

Daniel v. Fulton County, 324 Ga. App. 865, 867-868 (752 SE2d 1) (2013).

Because it may arise on remand, we question whether evaluation of “the finished product” is authorized by the seventh factor, enhancement of or detraction from the ends of justice, which the trial court did not reach. We sympathize with the trial court’s stated concern that McLaurin might ultimately produce a report or video that is disrespectful or misleading. Such things have been known to occur. And members of the Supreme Court of the United States have expressed similar concerns in defending that Court’s continuing policy excluding cameras. But “Georgia law, as we perceive it, regarding the public aspect of hearings in criminal cases is more protective of the concept of open courtrooms than federal law.” R. W. Page Corp. v. Lumpkin, 249 Ga. 576, 578 (3) (292 SE2d 815) (1982).

Decided June 9, 2014.

Joshua McLaurin, pro se.

Layla H. Zon, District Attorney, Anthony S. Carter, for appellees.

Judgment vacated and case remanded.

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

       McLaurin initially filed his appeal in our Supreme Court on the basis of WALB-TV v. Gibson, 269 Ga. 564, n. 2 (501 SE2d 821) (1998) (because order denying request for electronic media access to court proceedings was entered in the context of a murder prosecution and the trial court ruled that murder defendants’ constitutional rights would be affected by the requested access, appeal was properly before Supreme Court pursuant to Ga. Const. of 1983, Art. VI, Sec. VI, Par. III (8)).That court transferred the appeal to us, finding that “there is no indication in the record that [its] jurisdiction over murder cases is invoked in this appeal.”
      The Supreme Court styled the case, “Joshua McLaurin v. John M. Ott, Judge,” and we do the same, although Judge Ott is not a party.

       We likewise question whether OCGA§ 15-1-10.1 authorizes trial courts to consider whether a petitioner’s project is for profit or nonprofit. See Huminski v. Corsones, 396 F3d 53, 84-85 (2) (2d Cir. 2005).


author: McFadden, Judge.

text:
    A12A1785.
    JOHNSON v. THE STATE.
    (759 SE2d 571)
   McFadden, Judge.

la Johnson v. State, 320 Ga. App. 231 (739 SE2d 718) (2013), we affirmed the trial court’s denial of a motion to suppress evidence seized pursuant to a roadblock, finding that, contrary to appellant Johnson’s claim, there was evidence to support the finding that the decision to implement the roadblock was made by supervisory personnel. The Supreme Court of Georgia remanded the case to us, with direction that we reconsider it in light of two subsequent opinions, Brown v. State, 293 Ga. 787 (750 SE2d 148) (2013), and Williams v. State, 293 Ga. 883 (750 SE2d 355) (2013). Having done so, we again find that because there is some evidence to support the trial court’s ruling, it is not clearly erroneous and we thus affirm.

In Brown, the Supreme Court reaffirmed that in the case of LaFontaine v. State, 269 Ga. 251 (497 SE2d 367) (1998), it had identified five requirements that must be met for a roadblock to be upheld as constitutional.

A roadblock is satisfactory where (1) the decision to implement the roadblock was made by supervisory personnel rather than the officers in the field; (2) all vehicles are stopped as opposed to random vehicle stops; (3) the delay to motorists is minimal; (4) the roadblock operation is well identified as a police checkpoint; and (5) the screening officer’s training and experience is sufficient to qualify him to make an initial determination as to which motorists should be given field tests for intoxication.

Brown, supra at 793 (2) (b) (citation and punctuation omitted).

The Court further noted that two years after LaFontaine, the United States Supreme Court, in City of Indianapolis v. Edmond, 531 U. S. 32 (121 SCt 447, 148 LE2d 333) (2000), “added another layer to the constitutional analysis” by holding that a checkpoint program must have “a primary purpose other than the general interest in crime control.” Brown, supra at 794 (2) (c) (citation and punctuation omitted). “Thus, Edmond supplemented LaFontaine’s requirements for the implementation and operation of a constitutionally valid checkpoint by adding the requirement of an inquiry into the primary purpose of the checkpoint program.” Id. at 796 (2) (d) (footnote and emphasis omitted). As the Court noted, Williams, supra, decided on the same day as Brown, “focus [ed] ... on the Edmond requirement.” Brown, supra at 788, n. 2.

The Court in Brown went on to explain that after Edmond, opinions from this court failed to recognize that Edmond had supplemented LaFontaine’s five requirements, and instead they improperly conflated the Edmond requirement with the first LaFontaine requirement. Brown, supra at 798 (2) (e). The Court held that to the extent “subsequent Court of Appeals’ cases conflate these issues, those cases are disapproved.” Id. at 799 (2) (e).

In summary, the Court explained that when a roadblock is challenged, the state must meet the Edmond requirement by

showing] that the law enforcement agency’s checkpoint program had an appropriate primary purpose other than ordinary crime control — a purpose examined at that programmatic level, rather than by trying to determine the motives of the supervisor who implemented and the officers who conducted the particular checkpoint at issue. The [s]tate must also prove that the particular checkpoint at which the defendant was stopped was properly implemented and operated — that the five requirements enumerated in LaFontaine were met.

Brown, supra at 799-800 (2) (f) (citations omitted).

The instant case, like Brown, “involves no Edmond issue.” Id. at 800 (3) (a). Appellant Johnson has not enumerated or argued that the law enforcement agency’s checkpoint program had an inappropriate primary purpose. Indeed, even if such an argument had been made, evidence presented at the suppression hearing shows that the checkpoint program of the sheriff’s department in this case did not have a primary purpose of ordinary crime control; and instead had an appropriate purpose of utilizing checkpoints to verify compliance with traffic safety, licensing and insurance laws. See Brown, supra at 799 (2) (e) (traffic safety is an appropriately limited purpose for checkpoints). Regardless, this Edmond issue was not raised in the instant case; rather, as noted in our prior opinion, only the first LaFontaine factor was contested. Johnson, supra at 233 (1).

With regard to that factor, it is true that in listing all five of the LaFontaine requirements, we quoted from a case that did conflate the Edmond requirement with the first LaFontaine requirement. Johnson, supra at 233 (1). However, that merging of requirements in the quotation did not affect our analysis, which did not conflate the factors and instead focused only on the first LaFontaine requirement that the decision to implement the roadblock was made by supervisory personnel rather than officers in the field. As explained in our opinion:

Sergeant David Martin gave unrefuted testimony that he is a unit supervisor, that he has been authorized by the sheriff and department policy to establish roadblocks, that he made the decision to implement this particular roadblock, and that he was the supervisor on the scene who set up the checkpoint and ordered all the other officers where to be and what to do. In addition, a deputy who participated in the roadblock testified that Sergeant Martin is a supervisor, that Sergeant Martin initiated the roadblock and that Sergeant Martin told him and others what to do during the roadblock. This uncontradicted testimony that Sergeant Martin was a supervising officer authorized to order roadblocks was sufficient to establish that fact. [Cits.]

Johnson, supra at 233 (1) (punctuation omitted). Indeed, under similar facts involving a sergeant who was a shift supervisor authorized to implement traffic safety checkpoints and who was on the scene of the checkpoint in question, the Brown court ruled that the sergeant qualified as “supervisory personnel” under LaFontaine’s first requirement. Brown, supra at 800-802 (3) (b) (1). Accordingly, in this case, the trial court did not err in finding that the decision to implement the roadblock was made by a supervisor.

To the extent Johnson’s argument can be construed as also claiming that the state failed to prove that Sergeant Martin made the decision to implement the checkpoint in advance while acting in a supervisory role, instead of while acting as an officer in the field, it is without merit. This is the very ground upon which the Court in Brown affirmed the trial court’s grant of a motion to suppress, ruling that there was some evidence to support the trial court’s finding that the sergeant in that case had not acted in a supervisory role when implementing the checkpoint and thus it was unconstitutional. Id. at 802-804 (3) (b) (2). However, the instant case is in a different posture than the Brown case, since the trial court here did not grant the motion to suppress based on such a finding, and instead denied the motion to suppress by finding that the roadblock was constitutionally implemented by the supervising officer.

As the Supreme Court reiterated in Brown, on appeal from atrial court’s ruling on a motion to suppress, this court must construe the evidence most favorably to the upholding of the trial court’s findings and judgment. Id. at 803 (3) (b) (2) (citations and punctuation omitted). So construed, the evidence shows that Sergeant Martin’s shift started at 6:00 p.m. on April 29,2011, that he decided to have the roadblock begin later that night at approximately 11:00 p.m., but that he did not know the exact time when he decided to implement the roadblock. However, Sergeant Martin testified that he was sure he told his deputies about his decision to implement the roadblock when they were eating dinner in the dining hall; that he told them they would go to a specific location in front of the high school for the roadblock between 11:00 p.m. and 12:00 a.m.; and that he told them to meet after dinner to load up the department’s breath-alcohol-testing (BAT) trailer, which has an Intoxilyzer 5000 machine and jail cell in it, for use at the roadblock. In addition, a captain from the city police department testified that he was working a shift on April 29 that ended at midnight, and earlier that evening he was contacted by Sergeant Martin, who wanted the police department to be involved with the roadblock since it was going to be within the city limits.

Thus, when construed in favor of the judgment, the evidence shows that Sergeant Martin was not acting merely as an officer already in the field who made a spur-of-the-moment decision to conduct a roadblock. Rather, the evidence shows that at the start of an evening shift, before going into the field, while still at department headquarters with his deputies and while acting in his role as their supervisor, he made the decision to implement the roadblock. See Bennett v. State, 283 Ga. App. 581, 583 (642 SE2d 212) (2007) (supervisor’s decision to implement roadblock not a spur-of-the-moment decision in the field). Compare Thomas v. State, 277 Ga. App. 88, 90-92 (625 SE2d 455) (2005) (patrol officer was acting as an officer in the field when he met with other officers in a convenience store parking lot and impermissibly decided to implement a checkpoint). And as the Supreme Court noted in Brown, “a checkpoint [is not] rendered unconstitutional solely because the supervisor who authorized the checkpoint later participates to some extent in the checkpoint’s operation. [Cits.]” Brown, supra at 805 (3) (c), n. 15 (this court’s prior opinion in the instant case was actually one of the cases cited as authority for this proposition). Accordingly, because there is evidence supporting the trial court’s finding that the roadblock was authorized by a supervisor, we affirm the denial of the motion to suppress.

Decided June 10, 2014

Scott P. Semrau, for appellant.

Matthew C. Krull, Solicitor-General, for appellee.

Judgment affirmed.

Barnes, P. J., and McMillian, J., concur.


author: Miller, Judge.

text:
    A14A0248.
    MENDEZ v. THE STATE.
    (759 SE2d 574)
   Miller, Judge.

Following a bench trial, Robert Mendez was convicted of one count of felony theft by taking (OCGA §.§ 16-8-2; 16-8-12 (2011)) and sentenced to ten years, with twelve months to serve in custody. On appeal of the denial of his subsequent motion for new trial, Mendez contends that there was insufficient evidence of the value of the stolen merchandise and that his trial counsel was ineffective. Discerning no error, we affirm.

Viewed in the light most favorable to the verdict, the evidence at trial shows that on August 27, 2011, Mendez entered the wireless center at the front of a Walmart store in Dawsonville, Georgia. Mendez viewed a Blackberry Torch cell phone, pulled the cord out, placed the phone in his pocket, and then walked out of the store without paying for the phone. In October, another phone was taken from the wireless center, and Walmart’s loss prevention officer asked the wireless display clerk to alert her if Mendez returned to the store. Subsequently, Mendez returned to the Walmart store to cash a check. In November, Walmart’s loss prevention officer turned Mendez’s name and address over to police, along with surveillance video from the parking lot showing Mendez’s vehicle, which had a distinctive paint job. Apolice officer stopped Mendez in his vehicle that day, and found both stolen cell phones in the possession of Mendez’s passenger.

1. On appeal, Mendez argues that there was insufficient evidence of the value of the stolen merchandise to sustain his felony conviction for theft by taking. We disagree.

The appropriate standard for reviewing the sufficiency of the evidence in a criminal case is whether, construing the evidence in favor of the State, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. Jackson, supra, 443 U. S. 307. The appellate court reviews the sufficiency of the evidence, not its weight or credibility. London v. State, 235 Ga. App. 30, 31 (508 SE2d 247) (1998).

At the time of Mendez’s offense, theft by taking was punished as a misdemeanor, unless the stolen property exceeded $500 in value, in which case the offense was a felony. OCGA § 16-8-12 (a) (1) (2011).

While the price tag of the merchandise taken or a copy thereof may be used to prove value, testimony on that issue will also suffice if the witness has an opportunity to form a correct opinion on the matter. We have routinely permitted store employees who were familiar with the items taken to establish their value.

(Citations omitted.) Scott v. State, 234 Ga. App. 378, 379 (1) (506 SE2d 880) (1998). See also Pippin v. State, 166 Ga. App. 658, 659 (305 SE2d 408) (1983) (employee’s testimony as to the value of stolen equipment was sufficient because employee had knowledge, experience, and familiarity with the value of the property in question). Store employees may obtain personal knowledge and familiarity with the price of store items based on price tags, or by “ringing up” the item at the cash register. Bell v. State, 262 Ga. App. 788, 789 (586 SE2d 455) (2003).

Here, the subject matter of the theft by taking charge is the Blackberry Torch cell phone. At trial, Walmart’s loss prevention officer testified that Walmart’s system listed the Blackberry Torch cell phone at $700 and that, although she did not observe the price tag on the particular phone that Mendez took, the price tag should match the list price. Thus, Walmart’s loss prevention officer had personal knowledge of the price of the phone. Bell, supra, 262 Ga. App. at 789. Accordingly, her testimony as to the price of the phone was sufficient to support Mendez’s felony conviction. See, e.g., Scott, supra, 234 Ga. App. at 379 (1); Moncus v. State, 229 Ga. App. 803, 804 (1) (a) (495 SE2d 118) (1997) (store employees who are familiar with the item taken are competent to testify to item’s value).

Decided June 10, 2014.

Christopher R. Geel, for appellant.

Lee Darragh, District Attorney, Ryan B. Schwartz, Conley J. Greer, Assistant District Attorneys, for appellee.

• 2. Mendez also contends that his trial counsel was ineffective for failing to object to hearsay testimony as to the list price of the phone. We discern no error.

To establish a claim of ineffective assistance of counsel, [Mendez] must show both that his trial counsel’s performance was deficient and that counsel’s deficiency so prejudiced his defense that a reasonable probability exists that the result of the trial would have been different but for that deficiency. There is a strong presumption that trial counsel’s assistance was adequate and that counsel’s decisions were made within the bounds of reasonable professional judgment. Moreover, a trial court’s finding that a defendant has been afforded effective assistance of counsel must be upheld unless that finding is clearly erroneous.

(Citation, punctuation and footnote omitted.) Owens v. State, 271 Ga. App. 365, 369-370 (5) (609 SE2d 670) (2005).

At the motion for new trial hearing, the trial judge found that Walmart’s loss prevention officer was credible, that she was qualified to provide her opinion as to the value of the phone, that the evidence she presented as to the value was admissible, and that any objection to her testimony to that fact would not have been sustained. As discussed above, the loss prevention officer’s testimony as to the price of the phone was admissible. Trial counsel was not ineffective for failing to make a meritless or futile objection. Owens, supra, 271 Ga. App. at 370 (5). Accordingly, the trial court did not err in denying Mendez’s motion for new trial based on his claim of ineffective assistance of counsel.

Judgment affirmed.

Doyle, P. J., and Dillard, J., concur.

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

       We note that even if the State had failed to present evidence showing that the stolen item was valued at more than $500, such failure would not have entitled Mendez to an acquittal, hut would have gone merely to the issue of punishment. See Moncus v. State, 229 Ga. App. 803, 804 (1) (a) (495 SE2d 118) (1997).


author: Branch, Judge.

text:
    A14A0254.
    SANCHEZ v. THE STATE.
    (759 SE2d 576)
   Branch, Judge.

On appeal from his conviction for child molestation, Antonio Sanchez argues that his trial counsel was ineffective for failing to request a jury charge on sexual battery as a lesser included offense. We find no error and affirm.

“On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, with the defendant no longer enjoying a presumption of innocence.” Reese v. State, 270 Ga. App. 522, 523 (607 SE2d 165) (2004) (citation omitted). We neither weigh the evidence nor judge the credibility of witnesses, but determine only whether, after viewing the evidence in the light most favorable to the prosecution, a “rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979) (citation omitted).

So viewed, the record shows that in the spring of 2011, the victim was 15 years old and living with her mother, her stepfather Sanchez, and her younger siblings when Sanchez entered her bedroom while she was asleep and got into her bed. Sanchez covered the victim’s mouth with his hand, forced her left arm and leg away from her body, and touched her breasts under her t-shirt and bra. When the victim succeeded in pushing Sanchez away, he got up, opened the window, and left the room. During Thanksgiving break the same year, while the victim’s mother was in the hospital following the birth of another child, Sanchez called the victim into an empty bedroom and attempted to force her down on a bed. When the victim’s brother entered the room, the victim succeeded in pushing Sanchez away.

Soon after the second incident, a teacher visiting the victim’s health class encouraged anyone who had been the victim of a sexual assault to write an anonymous letter to the teacher. Following this suggestion, the victim wrote an anonymous letter including a statement that her stepfather had tried to rape her. The victim’s health teacher gave the letter to a school counselor, who identified the victim as the author of the letter and confirmed with the victim her account of Sanchez’s attack. The counselor then reported the matter to the Department of Family and Children Services, who referred the matter to City of Smyrna police. When the victim again confirmed her account to police, they interviewed Sanchez, who admitted that he had covered the victim’s mouth in the course of a game, that he might have touched the victim’s body under her shirt inadvertently at that time, and that he had apologized to the victim for the incident.

At Sanchez’s trial, the victim testified as to the details of the attacks. Sanchez was charged with and found guilty of child molestation. His motion for new trial was denied.

1. The evidence outlined above was sufficient to sustain Sanchez’s conviction for child molestation. See OCGA § 16-6-4 (a) (1) (defining child molestation as performing “any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person”); Cobb v. State, 254 Ga. App. 48 (1) (561 SE2d 124) (2002) (victim’s testimony alone was sufficient to sustain conviction for crimes including child molestation); Jackson, supra.

2. Sanchez’s sole argument on appeal is that trial counsel was ineffective in failing to request a jury charge on sexual battery as a lesser included offense of child molestation. We disagree.

To show ineffective assistance of counsel, a defendant must show that counsel’s performance was deficient and that the deficient performance prejudiced the defense. Smith v. Francis, 253 Ga. 782, 783 (1) (325 SE2d 362) (1985), citing Strickland v. Washington, 466 U. S. 668, 687 (II) (104 SCt 2052, 80 LE2d 674) (1984). As to deficient performance, “every effort must be made to eliminate the distorting effects of hindsight,” and the trial court “must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” White v. State, 265 Ga. 22, 23 (2) (453 SE2d 6) (1995) (citation and punctuation omitted). As to prejudice, a defendant need only show “a reasonable probability of a different outcome” due to trial counsel’s deficient performance. Cobb v. State, 283 Ga. 388, 391 (2) (658 SE2d 750) (2008) (punctuation and footnote omitted). Finally, the question of ineffectiveness is a mixed one of both law and fact: “we accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.” Suggs v. State, 272 Ga. 85, 88 (4) (526 SE2d 347) (2000) (footnote omitted).

On the morning of trial, Sanchez filed his request for jury charges, including a charge on sexual battery as a lesser included offense of child molestation. At the hearing on Sanchez’s motion for new trial, trial counsel testified that Sanchez had not wanted to give the jury the opportunity to convict him on the lesser offense of sexual battery, and that Sanchez and trial counsel decided to adopt an “all-or-nothing” strategy under which the jury would face the choice of finding Sanchez guilty of either child molestation or no crime at all. Sanchez and counsel made this decision because they agreed that they had a substantial chance of obtaining an acquittal on the child molestation charge. Trial counsel also testified that Sanchez had told him that any felony conviction, including one for sexual battery, would make his federal prosecution for illegal re-entry to the United States much more likely and thus endanger his relationship with all of his children. For these reasons, counsel testified, Sanchez “felt strongly” that an all-or-nothing strategy was appropriate. After these deliberations with Sanchez, trial counsel decided to withdraw a request for a jury charge on the crime of sexual battery.

As this Court has held, a decision not to request a jury instruction on a lesser offense in order to obtain an outright acquittal “is a matter of trial strategy” best left to the judgment of counsel after consultation with a client. Owens v. State, 288 Ga. App. 771, 774 (2) (655 SE2d 244) (2007) (citation and punctuation omitted). Here, the testimony of trial counsel authorized the trial court to conclude that trial counsel did not perform deficiently when, after consultation with Sanchez, he made the reasonable strategic decision not to request a charge on the crime of sexual battery. Allen v. State, 286 Ga. App. 469, 474 (2) (b) (649 SE2d 583) (2007) (“an informed tactical decision to make an all-or-nothing defense,” and abandoning any charge on lesser included offenses, could not provide a basis for a claim of ineffective assistance) (citation omitted). Finally, in his statement to the investigating detective, Sanchez denied any contact with the intimate parts of the victim’s body. Because Sanchez was therefore guilty of either child molestation (under the State’s version of the facts) or of nothing at all (under Sanchez’s version of the same), he cannot show that he was prejudiced by counsel’s failure to request a charge on sexual battery as a lesser included offense of child molestation. Smith v. State, 310 Ga. App. 392, 396 (3) (713 SE2d 452) (2011) (where evidence showed either completed offense of child molestation as indicted “or no crime at all,” a trial court did not err when it failed to instruct the jury on sexual battery); Goss v. State, 305 Ga. App. 497 (699 SE2d 819) (2010) (defendant convicted of child molestation was not prejudiced by counsel’s failure to obtain charge on sexual battery when it was “highly unlikely” that defendant “inappropriately touched the victim but did not do so for sexual gratification”).

Judgment affirmed.

Barnes, P. J., and Boggs, J., concur.

Decided June 10, 2014.

David D. Marshall, for appellant.

D. Victor Reynolds, District Attorney, JohnR. Edwards, Maurice Brown, Assistant District Attorneys, for appellee.

       In passing, Sanchez also asserts that the trial court erred in failing to deliver a sexual battery charge and that counsel should have objected to a charge on criminal attempt to commit child molestation. Both of these assertions impermissibly expand Sanchez’s assertion of error, which is limited to whether trial counsel provided effective assistance when she failed to request a charge on sexual battery as a lesser included offense of child molestation. See Kohlhaas v. State, 284 Ga. App. 79, 85 (2) (e) (643 SE2d 350) (2007) (defendant could not expand enumeration of error concerning ineffective assistance “to an issue not contained in the original enumeration”).


text:
    A14A0421.
    DeKALB MEDICAL CENTER v. Whittley.
    (759 SE2d 579)
   Branch, Judge.

DeKalb Medical Center (“DMC”) appeals from an order of the DeKalb County Superior Court reversing a decision by the Georgia Department of Labor (“DOL”), which had denied unemployment benefits to Sharie Whittley, a former employee of DMC. On appeal, DMC contends that the trial court erred in reversing the DOL’s benefit determination because some evidence supported the factual findings on which that determination was based. DMC further argues that given those factual findings, Whittley is not entitled to unemployment benefits under Georgia law. We agree with DMC and therefore reverse the order of the trial court.

The record shows that Whittley was employed by DMC as a mammographer in the Breast Center from July 2008 through October 12,2012. Beginning in April 2012, significant performance issues arose with respect to Whittley’s job. Ellis Carter, Whittley’s immediate supervisor, counseled Whittley at least six times between April 3, 2012 and September 27, 2012 about these job performance issues. On June 18,2012, Carter met with Whittley regarding complaints he had received about her from DMC’s MRI Department. At that time, the MRI Department was understaffed, and its employees were mostly male. Thus, until that Department could hire more staff, DMC policy was that mammographers from the Breast Center would be called into the Department to help position patients who were undergoing a breast MRI. Carter explained to Whittley that he had received several complaints that when called to assist with an MRI, Whittley did not report to the MRI Department promptly and that once there she displayed a negative attitude. Whittley expressed to Carter her disagreement with DMC’s staffing policy, indicating that she did not think it was fair that Breast Center employees were being required to cover two departments. Carter responded that this was a “team effort” and that until more staff could be hired in the MRI Department, assisting with breast MRIs was part of Whittley’s job as a mammographer. According to Carter, Whittley appeared to “understand fully” that responding in a timely manner to any request for assistance from the MRI Department constituted one of her job duties.

Less than two weeks after this counseling session, Carter received yet another complaint from the MRI Department regarding Whittley. In this instance, Whittley had waited 45 minutes before reporting to the MRI Department after being called and despite receiving additional phone calls from the MRI Department repeating its request for her assistance. At the administrative hearing, Whittley explained that on this occasion her delayed response resulted from the fact that the Breast Center was “busy” and she felt that her most important obligation was to take care of Breast Center patients “as quickly as I possibly [could].” Carter disputed the claim that the Breast Center was too busy for Whittley to respond timely to the MRI Department, and stated that Whittley could have gone immediately to that Department without causing any work delay at the Breast Center. Carter met with Whittley on June 29, 2012 about this incident; following that meeting, and having discussed the incident with the supervisors in the MRI Department, Carter concluded that Whittley had deliberately delayed responding to the MRI Department.

After this meeting, Carter conferred with the DMC Human Resources Department and the decision was made to demote Whittley from her position as lead mammographer to staff mammographer. On July 5, Carter informed Whittley of her demotion and explained that Whittley would be allowed to remain as the lead mammographer until DMC hired someone to fill that position. It was Whittley’s understanding that she was being demoted because of her failure to respond as quickly as possible to the MRI Department as well as her alleged failure to communicate effectively with her co-workers. After being informed of her demotion, Whittley had what was described as an “increasingly poor attitude,” ceased communicating directly with the Breast Center staff, and often refused even to acknowledge her co-workers.

On September 27, Carter had another meeting with Whittley in which he explained that she needed to communicate better with her co-workers. He also told Whittley that the new lead mammographer would be starting the following week and that he needed Whittley to help train the new lead on the operations of the Breast Center and to communicate any and all information to the new lead that was relevant to that position. Carter further informed Whittley that because of her responsibilities with respect to the new lead, she would continue to be paid the salary of a lead mammographer during the transition period. During this meeting, Carter made clear to Whittley thatifshe didnot improve her job performance she wouldloseher job. When she filed for unemployment benefits, Whittley acknowledged that she had received this warning.

Despite this counseling session, Whittley did not improve her communications with the other staff at the Breast Center. Notably, she continued the practice she had developed following her demotion of failing to handle effectively written work orders that she received on behalf of the Breast Center. According to Carter, Whittley would not even deliver written work orders directly to the employee who would be performing the work. Instead, she would place any such orders she received in the drawer of the assigned employee, and would not tell the employee that an order was waiting for them. As a result, there were times when Breast Center staff did not realize they had a patient waiting to be seen or that they had been assigned some other task.

Additionally, after the new lead mammographer started, Whittley failed on at least three occasions to provide the lead with relevant information. Specifically, Whittley failed to inform the lead of pending cases that required follow-up by the lead mammographer; the new lead learned of these cases after several days on the job, when she discovered the patients’ charts. On another occasion, when the new lead asked Whittley about two biopsy patients being seen in the Breast Center, Whittley denied any knowledge of the cases; when the new lead proceeded to work on those cases, she learned that Whittley had already performed the necessary tasks. Finally, when a surgeon came to the Breast Center with concerns, Whittley handled the situation herself, rather than directing the surgeon to the new lead.

As a result of Whittley’s refusal to communicate with her coworkers and the new lead mammographer, DMC terminated Whittley’s employment on October 12, 2012. Following her termination, Whittley filed a claim for unemployment benefits. The DOL denied those benefits on November 1, 2012, finding that Whittley had been fired for failing to perform her job duties despite having the ability to do so. Whittley appealed this decision and requested an administrative hearing, which was held on December 5,2012. The day after that hearing, the administrative hearing officer issued a written decision in which she found that Whittley was aware of her job duties and responsibilities; that Whittley had been counseled several times regarding her employer’s expectations as to those duties; that her failure to meet those expectations resulted in her demotion from the position of lead mammographer; that following her demotion Whittley was instructed to improve her communications with staff; and that despite these instructions Whittley failed to communicate relevant information to the new lead mammographer on at least three occasions. Based on these findings, the hearing officer concluded that Whittley was terminated for failing to meet her employer’s expectations regarding her job performance. The officer therefore affirmed the DOL’s initial determination that Whittley was disqualified from unemployment benefits pursuant to OCGA § 34-8-194 (2) (A).

Whittley appealed the hearing officer’s decision to the DOL Board of Review (“the Board”), arguing that “there was no willful or deliberate act on my part that violated [a] company rule or order. I continued to communicate with staff at all times.” The Board affirmed the decision of the administrative hearing officer. Whittley then filed a petition in the DeKalb County Superior Court seeking review of the DOL’s decision to deny her unemployment benefits. The trial court reversed that decision, finding that DMC had failed to meet its burden of showing that Whittley deliberately and consciously failed to follow instructions or perform her job duties. The trial court further found that much of the evidence on which the hearing officer based her factual findings constituted inadmissible hearsay. DMC then filed an application for a discretionary appeal, which this Court granted. This appeal followed.

Under Georgia law, when considering an appeal from a decision by a DOL board of review “the findings of the board of review as to the facts, if supported by evidence and in the absence of fraud, shall be conclusive, and the jurisdiction of the court shall be confined to questions of law.” OCGA § 34-8-223 (b). Thus, both the trial court and this Court must affirm the Board’s factual findings if there is any evidence to support those findings. Case v. Butler, 325 Ga. App. 123, 125 (1) (751 SE2d 883) (2013). And because both the superior court and this Court apply the same standard of review, when we review a superior court’s order affirming or reversing a board decision, “our duty is not to review whether the record supports the superior court’s decision but whether the record supports the final decision of the administrative agency.” Davane v. Thurmond, 300 Ga. App. 474, 475 (685 SE2d 446) (2009) (citation and punctuation omitted).

As noted above, a person will be disqualified from receiving unemployment benefits “when he or she has been discharged for failure to obey orders, rules, or instructions or for failure to discharge the duties for which the individual was employed.” Robinson v. Butler, 319 Ga. App. 633, 635 (737 SE2d 731) (2013) (punctuation and footnote omitted). See also OCGA § 34-8-194 (2) (A). Before an individual may be disqualified under this Code section, however, the employer must show, by a preponderance of the evidence, “that the discharge was caused by the deliberate, conscious fault of the claimant.” Id. (punctuation and footnote omitted).

DMC’s stated reason for terminating Whittley’s employment was her failure to improve her communications with the Breast Center staff and to communicate relevant information to the lead mammographer. The trial court found that under the circumstances, Whittley’s termination for this reason did not support denying her unemployment benefits. In reaching this conclusion, the trial court disagreed with at least three of the Board’s factual findings. First, the trial court disputed the Board’s conclusion that Whittley was aware of her job duties at the time she failed to perform them. Specifically, the court stated that Whittley “was only aware of her job duties and responsibilities insofar as they were given to her progressively throughout her tenure” and that those duties and responsibilities were “often changing and consisted] of conflicting directives.” The court further found that although Whittley was counseled a number of times regarding her failure to perform to her employer’s expectations, such counseling did not show that Whittley was aware of her duties prior to the time she was counseled about not having performed them. Finally, the trial court rejected the Board’s finding that Whittley had failed to communicate with the new lead mammographer on at least three occasions.

The trial court’s findings with respect to Whittley’s knowledge of her job duties and her failure to perform those duties conflict with the findings of the Board and reflect that the lower court failed to apply the appropriate standard of review, i.e., the court failed to limit its review to the question of whether any evidence supported the Board’s findings on this issue. The trial court’s order demonstrates that it was overturning the Board’s findings because the court interpreted the evidence differently than did the Board. Moreover, unlike the Board, the trial court chose to credit Whittley’s testimony over that of Carter. In weighing the evidence and judging the credibility of the witnesses, however, the trial court erred. We have repeatedly explained that in reviewing a DOL decision concerning unemployment benefits, “it is improper for the trial court to weigh and evaluate the evidence,” MCG Health v. Whitfield, 302 Ga. App. 408, 410 (690 SE2d 659) (2010) (citation omitted), and that the superior court may not engage in independent factfinding. Case, 325 Ga. App. at 125 (1). Moreover, neither the superior court nor this Court may make credibility determinations, “[n]or may either court ‘substitute its judgment on disputed issues of fact for that of the [Board].’ ” Solinet v. Johnson, 280 Ga. App. 227, 229 (633 SE2d 626) (2006) (punctuation and footnote omitted). And when the correct standard of review is applied, it is clear that the trial court erred in overturning the decision of the DOL, as that decision was supported by some evidence.

Despite the superior court’s finding to the contrary, the record shows that Whittley was counseled on at least three occasions that she needed to improve her communication with Breast Center staff. Moreover, at her September 27 meeting with Carter, Whittley was specifically advised that when the new lead started the following week, Whittley would need to provide the new lead with all relevant information necessary for the new lead to perform her job effectively. Carter also explained to Whittley that in recognition of these additional job duties, DMC would provide Whittley with additional compensation. Carter’s unrebutted testimony on this issue supports the Board’s conclusion that Whittley was aware both that she needed to improve her communications with staff and that she had been tasked specifically with providing all relevant and necessary information to the new lead.

In rejecting the Board’s finding that Whittley had failed to communicate relevant information to the new lead on at least three occasions, the trial court summarily concluded that Carter’s testimony on this issue constituted inadmissible hearsay. See Robinson, 319 Ga. App. at 635-636 (1) (“inadmissible hearsay is not competent to prove a violation of an employer’s policies or rules sufficient to disqualify the employee for benefits”) (punctuation and footnote omitted). The record, however, shows that not all of Carter’s testimony on this issue was hearsay. See Miller Brewing Co. v. Carlson, 162 Ga. App. 94, 95 (290 SE2d 200) (1982) (“[w]hile the record reveals that the supervisor who terminated petitioner’s employment based his conclusions and actions partly on hearsay, we are not prepared to say this would serve to render his testimony worthless [,]” given that the supervisor also provided testimony “based on his personal knowledge and what the petitioner told him”). Carter, who was Whittley’s direct supervisor, testified as to his personal observations, conversations he had with Whittley directly, and information he had been provided in his capacity as Whittley’s supervisor (i.e., information he had received as part of his job duties).

Even assuming that some of Carter’s testimony did constitute hearsay, his testimony concerning Whittley’s failure to communicate with the new lead was corroborated by Whittley. With respect to whether she provided the new lead with all the relevant information about the two biopsy patients, Whittley testified that she had informed the new lead where “certain things were and where I kept everything,” and that the new lead “knew exactly where all documentation was. I had all my notes, who I spoke to, what needed to be done, everything [that] was done.” This testimony shows that Whittley may have provided the new lead with information as to where the new lead could find the biopsy patients’ files; it does not show that Whittley communicated with the new lead directly about these cases. Whittley also testified that she “expected” the new lead to “come to [Whittley] and ask [her] . . . more in depth questions,” thereby indicating that instead of providing the new lead with all necessary information, Whittley was relying on the new lead to come to her seeking that information.

Additionally, when asked about the assertion that she had failed to communicate with the new lead regarding patients requiring follow-up, Whittley stated that patient charts “not being followed up ... that has been an ongoing issue that we’ve had and one thing... that I did was make sure... that I went through that case load at least three times a week.” Notably, Whittley did not testify that she had informed the new lead about the need to go through those files. Nor did she otherwise dispute Carter’s testimony that she did not provide the new lead with such information. Finally, Whittley admitted that when a surgeon came to her with an issue regarding the Breast Center, she addressed the problem with the surgeon rather than referring the surgeon to the new lead. Thus, Whittley’s own testimony constitutes some evidence to support the Board’s finding that Whittley failed to communicate relevant information to the new lead, despite having been informed that providing such information was one of her job duties.

The evidence also supports the Board’s conclusion that Whittley acted deliberately and consciously in failing to fulfill her job duties and was therefore disqualified from receiving unemployment benefits. Because intent is rarely susceptible of direct proof, a factfinder may infer such intent from all of the circumstances surrounding the conduct at issue. See, e.g., Danforth v. Apple Inc., 294 Ga. 890, 892-893 (1) (a) (757 SE2d 96) (2014); Nebo Ventures, LLC v. NovaPro Risk Solutions, 324 Ga. App. 836, 840 (1) (c) (752 SE2d 18) (2013). Here, the finding that Whittley failed to fulfill her job duties despite her knowledge of those duties and despite the fact that she was receiving additional compensation to perform some of those duties supports an inference that Whittle/s conduct was both knowing and deliberate. Solinet, 280 Ga. App. at 229 (evidence showing that employee charged with distributing parking passes failed to comply with employer’s policy regarding issuance of such passes after having been instructed previously to comply with that policy supported a finding that the employee had deliberately and consciously failed to fulfill her job duties).

Decided June 10, 2014.

McKenna Long & Aldridge, Mark L. Keenan, for appellant.

Marx & Marx, Robert N. Marx, for appellee.

Accordingly, “[b]ecause there was some evidence to support the DOL’s decision to deny benefits, the superior court erred in reversing the DOL’s decision.” Solinet, 280 Ga. App. at 229 (footnote omitted). We therefore reverse the order of the trial court.

Judgment reversed.

Barnes, P. J., and Boggs, J., concur.

       Carter testified that at the June 29 meeting, Whittley again expressed her disagreement with the DMC policy of using mammographers to assist with MRIs, and told Carter Breast Center employees should be used by the MRI Department only as a “last resort.” This testimony was corroborated by Whittley.

       Under this statute, an individual is disqualified from receiving unemployment benefits following his discharge or suspension “from work with the most recent employer for failure to obey orders, rules, or instructions or for failure to discharge the duties for which the individual was employed as determined by the Commissioner according to the circumstances in the case.” OCGA § 34-8-194 (2) (A).

       We note that the trial court did not identify-those parts of Carter’s testimony it considered hearsay, nor did it analyze whether any such alleged hearsay would have otherwise been admissible under one or more exceptions to the hearsay rule.


author: Boggs, Judge.

text:
    A12A2469.
    COSMO v. THE STATE.
    (759 SE2d 622)
    Decided June 11, 2014.

      Adam M. Hames, for appellant.
   Boggs, Judge.

In State v. Cosmo, 295 Ga. 76 (757 SE2d 819) (2014) (“Cosmo IP’), the Supreme Court reversed Division 1 of our opinion in Cosmo v. State, 320 Ga. App. 397 (739 SE2d 828) (2013) (“Cosmo 7”). We therefore vacate Division 1 of our earlier opinion and adopt the opinion of the Supreme Court as our own with respect to that division. While sufficient evidence supports Cosmo’s conviction under OCGA § 16-12-100.2 (d) (1), he is entitled to a “retrial as a result of the trial court’s failure to charge on entrapment.” Cosmo II, 295 Ga. at 76, n. 1.

Judgment reversed.

Doyle, P. J., and Andrews, P. J., concur.

Herbert E. Franklin, Jr., District Attorney, Alan C. Norton, Assistant District Attorney, for appellee.


author: BARNES, Presiding Judge.

text:
    A14A0170.
    STOKES v. THE STATE.
    (759 SE2d 585)
   BARNES, Presiding Judge.

Following the denial of his motion for new trial, Jimmie Lee Stokes appeals from his burglary conviction. On appeal, Stokes contends that the evidence was insufficient to sustain his conviction. Upon our review, we affirm.

On appeal from a criminal conviction, this Court

view[s] the evidence in the light most favorable to the verdict [,] and an appellant no longer enjoys the presumption of innocence. [The appellate court] determines whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979), and does not weigh the evidence or determine witness credibility. Any conflicts or inconsistencies in the evidence are for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, [the appellate court] must uphold the jury’s verdict.

(Citations omitted.) Rankin v. State, 278 Ga. 704, 705 (606 SE2d 269) (2004).

So viewed, the evidence demonstrates that on November 14, 2008, the victim received a call from his home security provider that the security system in his home had been activated. When he arrived home, he looked through his back door and noticed several items were out of place, so he called the police and waited outside for them to come. When the police arrived, they checked the premises but did not locate an intruder; however, they determined that the point of entry was a bathroom window because the window was broken and the glass was located inside the room. They recovered a cigarette butt on the floor of the home’s foyer near the living room, and took it into evidence when the victim said that there were no cigarette smokers in the house. The intruder had removed several items, including a television set and video gaming unit, from various locations in the home and placed them together on the kitchen counter, and another television was recovered in the woods near the victim’s home. The television recovered from the woods was wet, and there was a creek located between the victim’s house and the woods.

On the day of the burglary, a neighbor saw a suspicious man in her yard, and called police. The man was wearing shorts, and his legs and shoes were wet, and he had mud on his pants. A visitor who was at the neighbor’s house testified that although it had rained that day, it did not look like he had been rained on, but looked as if “he had walked through the creek.” The neighbor allowed the man to use her telephone, and after police did not show up, her visitor gave him a ride to apartments off Steven Creek Road. The visitor later told the police who responded to the burglary at the victim’s home about the encounter and provided them with the telephone number the man had called. She also described the man to police, and, at trial, identified Stokes as the man she saw that day.

Police called the numbers and reached Stokes’ sister, who told them that she did not know where her brother was, and that he frequently moved around. In October 2009, Stokes was arrested on an unrelated charge, and the DNA obtained from the cigarette matched DNA samples retrieved from Stokes with a 1 in 70 trillion probability.

Stokes contends that the circumstantial evidence was insufficient to sustain his conviction for burglary. We do not agree.

“A person commits the offense of burglary in the first degree when, without authority and with the intent to commit a felony or theft therein, he or she enters or remains within [the] . . . dwelling house of another[.]” OCGA § 16-7-1 (b).

For a conviction based on circumstantial evidence to stand, the facts must prove not only the hypothesis of guilt, but must exclude every other reasonable hypothesis but the guilt of the accused. Circumstantial evidence must exclude only reasonable hypotheses save the defendant’s guilt; it need not exclude every other inference or hypothesis except the defendant’s guilt.

(Punctuation, footnotes and emphasis omitted.) Smith v. State, 309 Ga. App. 466, 468 (710 SE2d 654) (2011). It is for the jury to determine whether the circumstances are sufficient to exclude every reasonable hypothesis except that of the defendant’s guilt, and we will not disturb the jury’s finding unless the verdict is insupportable as a matter of law. Id.

Decided June 11, 2014.

Trotter Jones, James S. V. Weston, for appellant.

Ashley Wright, District Attorney, Titus T. Nichols, Assistant District Attorney, for appellee.

Here, the circumstantial evidence demonstrated that Stokes’ DNA was on a cigarette butt found in the victim’s home with no explanation of any other reason it would be there, that Stokes was in the area of the burglary during the time period, that his clothing was wet and muddy when he was in the neighbor’s yard, and that some of the recovered items were also wet. This combined evidence was sufficient to support Stokes’ conviction under Jackson, 443 U. S. 307. See Marion v. State, 276 Ga. App. 553, 554 (623 SE2d 739) (2005) (holding that defendant’s fingerprints atthe scene of the crime, which were otherwise unexplained, combined with circumstantial evidence was sufficient to support burglary conviction). “[Circumstantial evidence must exclude only reasonable inferences and hypotheses and it is not necessary that such evidence be devoid of every inference or hypothesis except that of the defendant’s guilt.” (Emphasis in original.) White v. State, 263 Ga. 94, 97 (1) (428 SE2d 789) (1993).

Judgment affirmed.

Boggs and Branch, JJ., concur.

       “To warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.” Former OCGA § 24-4-6 (now codified at OCGA § 24-14-6).