author: Boggs, Judge. BARNES, Presiding Judge,

text:
    A14A2161.
    THOMPSON v. THE STATE.
    (770 SE2d 364)
   Boggs, Judge.

A jury convicted Harold Wesley Thompson of felony shoplifting, aggravated assault, and possession of methamphetamine. Based on the drug possession conviction and its determination that Thompson was a recidivist, the trial court sentenced Thompson to thirty years, with the first ten years in confinement without the possibility of parole and the remainder on probation. Thompson filed a motion for new trial, which the trial court denied. On appeal, Thompson contends that the trial court erred in admitting a store shoplifting report under the business record exception to hearsay; that there was insufficient evidence to convict him of felony shoplifting and aggravated assault; that his sentence for possession of methamphetamine constituted cruel and unusual punishment; and that the trial court erred in sentencing him as a recidivist. For the following reasons, we affirm.

Following a criminal conviction, we view the evidence in the light most favorable to the verdict. Anthony v. State, 317 Ga. App. 807 (732 SE2d 845) (2012). So viewed, the evidence showed that on November 28, 2010, Thompson entered a Costco store in Catoosa County. The store’s loss prevention officer, who was responsible for monitoring customers for suspicious activity, saw Thompson pick up a camera and a video game console and take them to a different area of the store. Thompson then pulled out a “razor blade or box cutter type knife,” used it to remove the camera from its packaging, and placed the camera in his pants pocket. Thompson also removed the game console from its box, hid the box in a suitcase on a shelf in the store, and shoved the game console down into the waistband of his pants. The officer notified the assistant manager and called the police about the suspected shoplifter.

The loss prevention officer followed Thompson to the exit of the store, where the assistant manager was waiting and observed the encounter. When Thompson approached the exit door, the officer confronted him and ordered him not to leave. Thompson pushed through the officer, who fell to the ground with Thompson on top of him; with both of them falling outside the store. Thompson then jumped up, took a few steps forward into the parking lot, and pulled a knife out of his pocket when he was “maybe 15 feet” from the officer. He waved the knife toward the officer “[i]n a threatening manner.” When the officer saw the knife, he stepped back, “put his hands back,” and stopped attempting to physically apprehend Thompson. Thompson then took off running across the parking lot.

Police who had responded to the 911 call saw Thompson running through the store parking lot. The loss prevention officer and the assistant manager stepped outside of the store, pointed at Thompson, who the police then ordered to the ground and apprehended. After speaking with the store employees, a police lieutenant searched Thompson and found the camera in his pants pocket and the game console in the waistband of his pants, as well as a “razor knife,” a glass pipe containing methamphetamine, a small digital scale, and a waterproof container with “plastic baggy squares” inside it. The police lieutenant later testified that, based on his training and experience, the type of container and “plastic baggy squares” he found on Thompson were commonly used for storing and transporting illegal drugs.

Thompson was indicted on one count of felony shoplifting, two counts of aggravated assault, and one count of possession of methamphetamine. The store’s loss prevention officer did not testify at trial. Rather, the State called the store’s assistant manager, who testified to what he had observed in the exit area of the store between Thompson and the loss prevention officer. Through the assistant manager, the State also introduced, over a defense hearsay objection, a report prepared by the loss prevention officer on the day of the shoplifting incident that, among other things, identified Thompson as the suspect, provided a physical description of him, and listed the stolen items and their prices. The trial court allowed the admission of the loss prevention report under the business records exception to hearsay. Additionally, the State called as witnesses the police lieutenant involved in Thompson’s apprehension and a forensic chemist from the State crime lab who confirmed that the pipe found on Thompson contained methamphetamine. After the State rested, Thompson elected not to testify and did not call any defense witnesses.

The trial court directed a verdict on one of the two aggravated assault counts, and the jury convicted Thompson on the remaining counts. At the sentencing hearing, the State introduced certified copies of Thompson’s prior convictions in aggravation of punishment. Because Thompson had a prior conviction for possession of a Schedule II narcotic, the sentencing range for his possession of methamphetamine conviction was imprisonment “for not less than five years nor more than 30 years” based on the sentencing statute in effect at the time of his offense. OCGA § 16-13-30 (c) (2010). In light of its finding that Thompson was a recidivist under OCGA § 17-10-7 (c), the trial court sentenced him to thirty years for possession of methamphetamine, with the first ten years served in confinement without the possibility of parole and the remainder on probation. This appeal followed.

1. Thompson contends that the trial court committed reversible error in admitting the loss prevention report under the business records exception to hearsay, OCGA § 24-8-803 (6). Because the jury trial in this case was conducted in April 2013, Georgia’s new Evidence Code applies. See Ga. L. 2011, p. 99, § 101. Under the new Evidence Code, business records are admissible as an exception to hearsay if certain criteria are satisfied:

Unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness and subject to the provisions of Chapter 7 of this title, [] a memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses [is admissible], if (A) made at or near the time of the described acts, events, conditions, opinions, or diagnoses; (B) made by, or from information transmitted by, a person with personal knowledge and a business duty to report; (C) kept in the course of a regularly conducted business activity; and (D) it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness or by certification that complies with paragraph (11) or (12) of Code Section 24-9-902 or by any other statute permitting certification. . . .

OCGA § 24-8-803 (6).

“This Court reviews a trial court’s ruling on the admission of evidence under an abuse of discretion standard.” (Citation and punctuation omitted.) Gant v. State, 313 Ga. App. 329, 335 (2) (721 SE2d 913) (2011); see also Rock v. Huffco Gas & Oil Co., 922 F2d 272, 277 (II) (A) (5th Cir. 1991).

A proper application of the abuse-of-discretion review recognizes “the range of possible conclusions the trial judge may reach,” and that there will often be occasions in which we will affirm the evidentiary ruling of a trial court “even though we would have gone the other way had it been our call.”

(Citation, punctuation and footnote omitted.) Williams v. State, 328 Ga. App. 876, 880 (1) (763 SE2d 261) (2014).

In the present case, the police lieutenant testified that after Thompson was apprehended, he returned the stolen camera and game console to the store’s loss prevention officer so that he could complete his report and check the prices of the items. The loss prevention officer at that point prepared the loss prevention report in which he identified Thompson by his first and middle names as the shoplifter, provided a physical description of Thompson, listed the assistant manager as a witness, and identified the stolen items and their prices. Thompson argues that the loss prevention report did not qualify under the business records exception because it was prepared in anticipation of prosecution, and “did not have the degree of trustworthiness associated with business records.” We disagree.

It is true that a record prepared in anticipation of prosecution is not made in the regular course of business. Cf. Rackoff v. State, 281 Ga. 306, 309 (2) (637 SE2d 706) (2006). But the type of report created by Costco cannot be used by Costco to anticipate prosecution, because the parties to the prosecution are the State and the shoplifting suspect. See, e.g., Brown v. State, 274 Ga. 31, 33-34 (1) (549 SE2d 107) (2001) (police report prepared in State prosecution for possession of cocaine). While Costco may have an interest in seeing that a shoplifting suspect is prosecuted and incarcerated and thus no longer able to shoplift from its store, it simply is not a party to any potential prosecution and cannot anticipate what action the State may take, as not all shoplifters are apprehended and not all apprehended shoplifters are prosecuted.

Even without considering Costo’s nonparty status, Costco did not make the report at the request of the State. See United States v. Blackburn, 992 F2d 666, 670 (7th Cir. 1993) (report prepared at request of FBI in robbery case). Indeed, the officer on the scene testified that he was not sure that Costco was “familiar with what we needed for that criminal case.” Since Costco prepares a loss prevention report in every instance of shoplifting, concerns about reliability and trustworthiness are minimized. Therefore, under the facts of this case, Costco’s report was not made in anticipation of prosecution and is therefore admissible.

The dissent cites Professor Milich for the proposition that “[incident reports prepared by a business after an accident or other event likely to lead to litigation are normally inadmissible as business records, even if the business routinely prepares such records in such circumstances.” (Emphasis supplied.) Paul S. Milich, Georgia Rules of Evidence, § 19:11, pp. 760-761 (2014-2015). Milich relies upon Palmer v. Hoffman, 318 U. S. 109 (63 SCt 477, 87 LE 645) (1943), for this conclusion. The Palmer Court considered whether the report regularly recorded was for “the systematic conduct of the enterprise.” Id. at 114 (I). Palmer was decided before the formulation and adoption of the Federal Rules of Evidence. See BP Amoco Chemical Co. v. Flint Hills Resources, 2009 U. S. Dist. LEXIS 131268 at 17 (III) (N.D. Ill. 2009). The Palmer Court analyzed the business record standard found in 28 USC § 695, which contained language similar to the language of OCGA § 24-8-803 (6), but required only that the record was “made in the regular course of any business.” Palmer, supra, 318 U. S. at 111 (I), n. 1. OCGA § 24-8-803 (6) (C) provides that the record may be admissible if “kept in the course of a regularly conducted business activity.” The statute incorporated language equivalent to the “systematic conduct of the enterprise” language in Palmer.

The Palmer Court held that the basis for the requirement that records are made for the “systematic conduct of the enterprise” is the “probability of trustworthiness of records because they were routine reflections of the day to day operations of a business.” Id. at 113-114 (I). It explained that to be admissible, and as now required by OCGA § 24-8-803 (6) (C), the regularly produced reports must have something to do with the management or operation of the business. Id. at 113 (I). The court concluded that a statement made by a train engineer during an interview by an assistant superintendent and a representative of the state public utilities commission about a grade crossing accident was calculated for use in court, and not for the business of railroading. Id. at 112-114 (I). Thus, it lacked the reliability inherent in a record made for the systematic conduct of an enterprise and was therefore inadmissible.

As noted by Professor Milich, the rule generally prohibiting the admission of an incident report is not absolute. Certainly the day-today operations of a retail business include preventing the loss of the merchandise it sells and keeping a record of that merchandise, as the title of the report suggests. The inclusion of other information, such as the identity of any witnesses to a shoplifting incident and whether police were called to the scene, does not alter the analysis here. As Professor Milich explains further, “[t]he more routine the type of record involved, the more likely the business has developed, through repetition and experience, a reliable system for creating the records.” Milich, supra at § 19:11, p. 760. Moreover, “if the report is routinely prepared in response to an event that normally would not lead to litigation, but in this instance subsequently does, the report may be admissible under the business record exception.” Milich, supra at § 19:11, pp. 760-761. See, e.g., Hill Aircraft & Leasing Corp. v. Cintas Corp., 169 Ga. App. 747, 749-750 (2) (315 SE2d 263) (1984) (physical precedent only) (memorandum made by employer concerning facts of employees’ termination admissible as routine business entry). The routinely prepared report here meets these criteria.

Finally, we conclude that because the foundational elements of OCGA § 24-8-803 (6) were satisfied here, “a rebuttable presumption of trustworthiness of the evidence is created.” Ronald L. Carlson & Michael Scott Carlson, Carlson on Evidence, p. 546 (3d ed. 2015). And, as the opponent to the admission of the evidence, Thompson was required to rebut this presumption, which he failed to do. The trial court therefore did not err in allowing the admission of the loss prevention report under the business record exception to the hearsay rule.

Because we conclude that the loss prevention report was properly admitted, we need not address Thompson’s claim that insufficient evidence supports this count because the report was the sole source of value for the felony shoplifting conviction. See OCGA § 16-8-14 (b) (2).

2. Thompson further contends that the evidence was insufficient to support his conviction for aggravated assault. We disagree.

A person may be found guilty of aggravated assault if the State proves (1) an assault and (2) aggravation by use of any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury. The State may prove an assault by showing that the defendant committed an act that placed the victim in reasonable apprehension of immediately receiving a violent injury.

(Citations and punctuation omitted.) Myrick v. State, 325 Ga. App. 607, 608 (1) (754 SE2d 395) (2014). See OCGA §§ 16-5-20 (a) (2) (2010); 16-5-21 (a) (2) (2010). The aggravated assault count of the indictment averred in relevant part that Thompson made an assault upon the store’s loss prevention officer "with a Sheffield razor knife, an object which when used offensively against a person is likely to or actually does result in serious bodily injury.”

At trial, the store’s assistant manager testified regarding the encounter between Thompson and the loss prevention officer that he witnessed in the exit area of the store. The assistant manager testified that, after pushing down the loss prevention officer and falling on top of him, Thompson jumped up, took a few steps forward, and pulled a knife out of his pocket. According to the assistant manager, Thompson held the knife out in front of him and waved it toward the officer “[i]n a threatening manner,” and when the officer saw the knife, he stepped back, “put his hands back,” and stopped trying to physically apprehend Thompson. Thompson then took off running through the parking lot. The police lieutenant who subsequently apprehended Thompson described the knife found on his person as a “razor knife,” and the State introduced the knife into evidence. This combined testimony was sufficient to sustain Thompson’s conviction for aggravated assault. See, e.g., Hartley v. State, 299 Ga. App. 534, 534-535, 537 (1) (683 SE2d 109) (2009). In reaching this conclusion, we note that the victim of the aggravated assault, the loss prevention officer, was not required to testify to sustain Thompson’s conviction, given the eyewitness testimony of the assistant manager. See, e.g., Bostic v. State, 294 Ga. 845, 847 (1) (757 SE2d 59) (2014) (noting that “the failure of a victim of an assault to testify at trial does not necessarily result in the evidence against the defendant being insufficient”); Petro v. State, 327 Ga. App. 254, 257-258 (1) (a) (758 SE2d 152) (2014) (although victim did not testify, testimony of eyewitness who saw the encounter was sufficient to sustain aggravated assault conviction).

Thompson emphasizes that the assistant manager testified that Thompson was “maybe 15 feet” from the loss prevention officer when he waved the knife toward him in a threatening manner, and argues that, as a result, the officer was not in reasonable apprehension of immediately receiving a violent injury as a matter of law. We disagree. To prove that a victim had a reasonable apprehension of immediately receiving a violent injury,

there need not be an actual present ability to commit a violent injury upon the person assailed, but if there be such a demonstration of violence, coupled with the apparent ability to inflict the injury, so as to cause the person against whom it is directed reasonably to fear the injury unless he retreat to secure his safety, and under such circumstances he is compelled to retreat to avoid an impending danger, the assault is complete, though the assailant may never have been within actual striking distance of the person assailed.

(Citation and punctuation omitted.) King v. State, 213 Ga. App. 268, 269 (444 SE2d 381) (1994). Moreover, “[t]he focus of a reasonable apprehension of harm is on the apprehension of the victim, and it is for the factfinder to determine whether the victim’s apprehension was reasonable.” (Citations and punctuation omitted.) Bearden v. State, 291 Ga. App. 805, 807 (662 SE2d 736) (2008).

As noted above, the assistant manager testified that in response to Thompson brandishing the razor knife, the loss prevention officer stepped back, put his hands back, and stopped trying to physically apprehend Thompson. Hence, the evidence, construed in favor of the prosecution, showed that even assuming Thompson was not in actual striking distance of the loss prevention officer, the only reason for that distance was that he brandished the knife in a manner that caused the officer to stop moving toward Thompson out of fear for his safety. Under these circumstances, a rational jury could find that the loss prevention officer was placed in reasonable apprehension of immediately receiving a violent injury, even if Thompson was not within actual striking distance with the knife. See King, 213 Ga. App. at 269.

3. Thompson also contends that the trial court’s decision to sentence him to thirty years for possession of methamphetamine, with the first ten years served in confinement without the possibility of parole and the remaining twenty years on probation, constitutes cruel and unusual punishment under the Eighth Amendment to the United States Constitution. We do not agree.

The Eighth Amendment to the United States Constitution, applied to the states through the Fourteenth Amendment, provides: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” A punishment is cruel and unusual “in the rare circumstance where the defendant’s sentence is ‘grossly disproportionate’ to the underlying crime.” Middleton v. State, 313 Ga. App. 193, 194 (721 SE2d 111) (2011). See Graham v. Florida, 560 U. S. 48, 60 (II) (130 SCt 2011, 176 LE2d 825) (2010).

With respect to whether a sentence is grossly disproportionate, courts must begin by comparing the gravity of the offense and the severity of the sentence. If this threshold comparison does not create an inference of gross disproportionality, the Eighth Amendment analysis extends no further. It is the rare case in which a threshold comparison of the crime committed and the sentence imposed leads to an inference of gross disproportionality.

(Citations and punctuation omitted.) Jones v. State, 325 Ga. App. 845 (1) (755 SE2d 238) (2014). If the defendant’s sentence falls within the statutory range of punishment for the crime set by the legislature, a presumption arises that the sentence does not violate the Eighth Amendment, and the “presumption remains until a defendant sets forth a factual predicate showing that such legislatively authorized punishment was so overly severe or excessive in proportion to the offense as to shock the conscience.” (Citation omitted.) Cuvas v. State, 306 Ga. App. 679, 683 (2) (703 SE2d 116) (2010).

Thompson concedes that his sentence fell within the statutory range for possession of methamphetamine under the sentencing provision applicable to a second drug possession conviction that was in effect at the time he committed the current offense. See OCGA § 16-13-30 (c) (2010) (authorizing “imprison[ment] for not less than five years nor more than 30 years” for second or subsequent convictions of certain drug offenses). But Thompson argues that his sentence nevertheless was grossly disproportionate to the offense, given that the General Assembly subsequently amended OCGA § 16-13-30 to reduce the sentence to one-to-three years for the amount of methamphetamine he possessed in this case. See OCGA § 16-13-30 (c) (1) (2014). Quoting from Humphrey v. Wilson, 282 Ga. 520, 528 (3) (c) (652 SE2d 501) (2007), Thompson argues that “no one has a better sense of the evolving standards of decency in this State than our elected representatives,” and that the statutory amendments to OCGA § 16-13-30 thus “reflect a decision by the people of this State that the severe felony punishment imposed on [defendants under the prior law] makes no measurable contribution to acceptable goals of punishment.” While we are sympathetic to Thompson’s argument here, we are constrained to uphold the sentence existing at the time of his offense.

In Humphrey, 282 Ga. at 520-521 (1), the defendant received an eleven-year sentence, with ten years to serve in confinement and one year on probation, for aggravated child molestation for engaging in consensual oral sex when he was seventeen years old and the victim was fifteen years old. Relying in part on the General Assembly’s 2006 amendment to the aggravated child molestation statute, which would have afforded the defendant misdemeanor punishment if it had been enacted before he committed his crime, our Supreme Court held that the defendant’s sentence was grossly disproportionate to the offense and thus constituted cruel and unusual punishment. Id. at 527-530 (3) (c).

Subsequently, however, in Bradshaw v. State, 284 Ga. 675, 678 (2) (a) (671 SE2d 485) (2008), our Supreme Court rejected an expansive reading of Humphrey and “decline [d] to engraft onto every statutory change enacted by the General Assembly an interpretation that the legislature is thus making a pronouncement of constitutional magnitude.” (Citation and punctuation omitted.) The Supreme Court concluded that the most recent legislative pronouncement on a punishment “does not preclude or in any manner limit [a court’s] evaluation of [a defendant’s] sentence to determine whether it comports with the constitutional prohibition against cruel and unusual punishment.” (Citation and punctuation omitted.) Id. The Court then went on to examine the gravity of the offense and the severity of the sentence to determine whether the case raised a threshold inference of gross disproportionality. Id. at 679-680 (2) (b), (c). Thus, when read together, Humphrey and Bradshaw make clear that a statutory amendment by the legislature is one factor to consider as part of a court’s analysis into gross disproportionality, but it is not dispositive; courts still must examine the gravity of the offense and the severity of the sentence to determine whether a threshold inference of gross disproportionality has been raised.

Applying these principles to the present case, we conclude that Thompson has failed to show that this is one of those rare cases that raises a threshold inference of gross disproportionality, even though the General Assembly has amended OCGA § 16-13-30 to reduce the range of punishment for possession of methamphetamine. Notably, while the statute has been amended to reduce the range of punishment, the General Assembly included a savings clause making clear its intention to maintain the sentencing structure for crimes committed prior to the effective date of any amendment. See Ga. L. 2012, p. 899, § 9-1 (b)/HB 1176. Therefore, the General Assembly itself has made clear that it did not intend for the changes to OCGA § 16-13-30 reducing the range of punishment to serve as “a pronouncement of constitutional magnitude” or to “preclude or in any manner limit” our evaluation of a defendant’s sentence under the old version of the statute “to determine whether it comports with the constitutional prohibition against cruel and unusual punishment.” (Citation and punctuation omitted.) Bradshaw, 284 Ga. at 678 (2) (a).

Here, given the fact that Thompson faced a potential sentence of thirty years in confinement, his sentence of ten years in confinement followed by twenty years on probation does not raise a threshold inference of gross disproportionality. Accordingly, Thompson has failed to demonstrate that his sentence constitutes cruel and unusual punishment under the Eighth Amendment. See Bragg v. State, 296 Ga. App. 422, 425-426 (674 SE2d 650) (2009) (defendant’s sentence to twenty years, with ten years in confinement and the remainder on probation, for child molestation, did not raise threshold inference of gross disproportionality, despite certain legislative amendments to the statute in question).

4. Lastly, Thompson contends that the trial court erred in sentencing him as a recidivist under OCGA § 17-10-7 (c). According to Thompson, five of his prior felony cases should have been considered “consolidated for trial” under OCGA § 17-10-7 (d), thereby rendering his recidivist designation improper. We discern no reversible error by the trial court.

OCGA § 17-10-7 (c) states that any person convicted of three prior felonies, upon conviction of a fourth felony, must “serve the maximum time provided in the sentence of the judge... and shall not be eligible for parole until the maximum sentence has been served.” But if two or more of the prior felony convictions were “consolidated for trial,” they must be treated as one prior conviction for purposes of recidivist sentencing. OCGA § 17-10-7 (d). “In determining whether separate offenses should be considered ‘consolidated for trial’ for purposes of recidivist sentencing, we look to the totality of the circumstances.” (Citations and footnote omitted.) Stone v. State, 245 Ga. App. 728, 728 (538 SE2d 791) (2000).

“If separate offenses are charged under separate charging instruments and a defendant is sentenced under separate orders, the offenses are generally not consolidated for trial within the meaning of OCGA § 17-10-7 (d).” (Citation and punctuation omitted.) Baker v. State, 306 Ga. App. 99, 103 (2) (701 SE2d 572) (2010). If the prior offenses “were the result of separate indictments and a separate order of sentence was entered on each indictment,” there is no consolidation even if the sentences for the offenses were entered on the same day and were run concurrent to one another. Philmore v. State, 263 Ga. 67, 70 (6) (428 SE2d 329) (1993).

At the sentencing hearing, the State introduced certified copies of the indictment, guilty pleas, and sentences received by Thompson for multiple prior felony offenses that were charged in six different cases, hereinafter referred to as the Drug Possession Case and the Five Theft Cases. In the Drug Possession Case, Thompson pled guilty to possession of methadone and was sentenced in May 2011. In the Five Theft Cases, Thompson pled guilty on the same day in May 1998 to multiple theft-related offenses. Each of the Five Theft Cases involved different incidents involving different victims and different property and had its own accusation or indictment. The sentences entered in the Five Theft Cases were documented on separate sentencing orders.

Thompson argues that his convictions in the Five Theft Cases should have been treated as consolidated for trial and thus treated as one prior felony offense. Thompson emphasizes that, although the trial court entered separate sentencing orders for the Five Theft Cases, the sentencing order entered in the Fifth Theft Case includes a provision under “other conditions of probation” that addresses restitution that must be paid'by Thompson for property that was the subject of the Third and Fourth Theft Cases. Additionally, the sentencing order entered in the Second Theft Case incorporates by reference all of the conditions of probation imposed in the Fifth Theft Case.

The First Theft Case had a separate indictment and sentencing order from the other Theft Cases and was not referenced in the sentencing orders entered in the other Theft Cases. Consequently, the First Theft Case could be treated as a separate prior felony offense from the other four Theft Cases for purposes of recidivist sentencing. See Philmore, 263 Ga. at 69 (6). Therefore, even if we were to assume without deciding, that the trial court erred in not treating the Second, Third, Fourth, and Fifth Theft Cases as consolidated for trial, the Theft Cases still could provide two of the three prior felony offenses necessary for the imposition of a recidivist sentence under OCGA § 17-10-7 (c).

Thompson’s conviction in the Drug Possession Case provided the third prior felony offense. Accordingly, any error by the trial court in failing to treat four of the Theft Cases as consolidated for trial under OCGA § 17-10-7 (d) was harmless, given that, even with the error, there still were three prior felony offenses authorizing recidivist sentencing under OCGA § 17-10-7 (c). See Williams v. State, 326 Ga. App. 418, 423 (8) (756 SE2d 650) (2014) (even if trial court erred in determining number of prior felonies, error was harmless because there still were a sufficient number of prior felonies to authorize defendant’s recidivist sentence). It follows that Thompson was properly sentenced as a recidivist.

Judgment affirmed.

Ellington, P. J., Dillard and Branch, JJ., concur. Doyle, P. J., concurs in Divisions 2, 3 and 4 and in the judgment. Barnes, P. J., and Miller, J., concur in Divisions 2, 3 and 4 and dissent in Division 1.

BARNES, Presiding Judge,

concurring in part and dissenting in part.

Because the store shoplifting report relied upon by the prosecution was prepared in anticipation of litigation, the trial court erred in admitting it under the business record exception to hearsay. And admission of the shoplifting report harmed Thompson because it provided the only evidence of the value of the items stolen from the store to support his felony shoplifting conviction. We therefore should reverse Thompson’s conviction for felony shoplifting. Because the majority concludes otherwise, I respectfully dissent to Division 1 of the majority opinion.

Under Georgia’s new Evidence Code, a document is admissible under the business record exception to hearsay if, among other things, the document is of the type routinely made in the regular course of business. OCGA § 24-8-803 (6). But it is well established that a record prepared in anticipation of litigation is not made in the “regular course” of business and lacks the requisite degree of reliability and trustworthiness for admission under the business record exception. See Stewart v. State, 246 Ga. 70, 74 (3) (268 SE2d 906). (1980) (forms containing payroll information inadmissible as business records because prepared in anticipation they would be used as part of government investigation and litigation); Goss v. Mathis, 188 Ga. App. 702 (373 SE2d 807) (1988) (documents providing estimation of expenses and value of labor inadmissible as business records because prepared in anticipation of litigation); Reach Out v. Capital Assoc., 176 Ga. App. 585, 585-586 (1) (336 SE2d 847) (1985) (report listing outstanding rental payments and amounts owed on lease inadmissible as business record because prepared in anticipation of litigation). Thus, “[i]ncident reports prepared by a business after an accident or other event likely to lead to litigation are normally inadmissible as business records.” Paul S. Milich, Ga. Rules of Evidence, § 19:11, p. 758 (2013-2014 ed.). See Palmer v. Hoffman, 318 U. S. 109, 113-115 (63 SCt 477, 87 LE 645) (1943) (accident report prepared by railroad after train accident was inadmissible as business record because “those reports are not for the systematic conduct of the enterprise as a railroad business” but rather “are calculated for use essentially in the court”); Scheerer v. Hardee’s Food Systems, 92 F3d 702, 706-707 (8th Cir. 1996) (incident report prepared by restaurant after slip-and-fall accident was inadmissible as business record); Rock v. Huffco Gas & Oil Co., 922 F2d 272, 279 (5th Cir. 1991) (accident reports and logs documenting plaintiff’s injuries were inadmissible as business records). Incident reports are excluded from the business record exception under the rationale that they are prepared by a business “with the knowledge that the incident could result in litigation” and therefore are susceptible to manipulation, Scheerer, 92 F3d at 706-707, and are not “made for the systematic conduct of the business as a business” but rather have their “primary utility ... in litigating.” Palmer, 318 U. S. at 112, 114.

While we review a trial court’s decision to admit or exclude evidence under an abuse-of-discretion standard, Owens v. State, 329 Ga. App. 455, 458 (1) (b) (765 SE2d 653) (2014), a trial court’s discretion is not without limits. See Williams v. State, 328 Ga. App. 876, 880 (1) (763 SE2d 261) (2014) (noting that abuse-of-discretion standard “does not permit a ‘clear error of judgment’ or the application of ‘the wrong legal standard’ ”) (footnote omitted). We have not hesitated to reverse a trial court that erroneously admits a document under the business record exception to the hearsay rule, where the document was prepared in anticipation of litigation rather than in the regular course of the business. See, e.g., Reach Out, 176 Ga. App. at 585-586 (1). This is because the presumption of reliability and trustworthiness normally afforded business records “collapses when any person in the process is not acting in the regular course of the business.” (Citation and punctuation omitted.) Rock, 922 F2d at 279.

In the present case, the evidence introduced at trial reflects that after the police lieutenant apprehended Thompson in the store parking lot, the lieutenant returned the stolen camera and game console to the store’s loss prevention officer so that the officer could “complete his report and check the prices on the items, the things that are necessary for that case file.” The loss prevention officer at that point prepared a report about the shoplifting incident (the “Shoplifting Report”). He checked the box at the top of the form for “shoplifting,” listed the time and date of the incident, identified Thompson by name as the shoplifter, provided a physical description of Thompson, listed the assistant manager as a witness, and identified the stolen items and their prices. The Shoplifting Report also included a section entitled “Disposition Information” in which the loss prevention officer listed the time the police were called, the time they arrived on the scene, the time Thompson was detained by the police, the name of the responding police officer, the police officer’s identification number and telephone number, and the police department case number. The loss prevention officer checked a box on the Shoplifting Report indicating that the returned merchandise would be “retained as evidence at warehouse,” and the bottom of the report included an instruction for the person completing it to provide a “copy to police department.”

Given this record, the evidence shows that the loss prevention officer prepared the Shoplifting Report to memorialize the facts surrounding the shoplifting incident with the anticipation that Thompson would be criminally prosecuted, and, therefore, that the report was prepared “in anticipation of litigation” such that it could not qualify as a business record. See Scheerer, 92 F3d at 707 (concluding that the “incident report shows on its face that it was prepared in anticipation of litigation” in light of the information sought in the report and the directions on the report to the employee completing it). And although the store’s assistant manager testified that reports were routinely prepared by loss prevention agents whenever there was a shoplifting incident, his testimony did not transform the Shoplifting Report into an admissible business record. See Milich, supra, § 19:11, p.. 758 (incident reports excluded “even if the business routinely prepares such records in such circumstances”). See also Palmer, 318 U. S. at 113 (noting that “the fact that a company makes a business out of recording its employees’ versions of their accidents does not put those statements in the class of records made ‘in the regular course’ of the business”); Reach Out, 176 Ga. App. at 585-586 (1) (“Although the appellee’s collection manager uses the appropriate legal incantation in his description of the referral status report, the report fails to qualify as a business record[.] Rather, the report was an ‘in-house’ information summary prepared in anticipation of litigation.”). Accordingly, the trial court erred in admitting the Shoplifting Report as a business record.

In reaching the opposite conclusion, the majority maintains that Thompson failed to rebut “the presumption of trustworthiness” afforded the Shoplifting Report. However, because the Shoplifting Report was prepared in anticipation of litigation, it was not made in the “regular course” of business. See Echo Acceptance Corp. v. Household Retail Svcs., 267 F3d 1068, 1091 (10th Cir. 2001) (noting that “one who prepares a document in anticipation of litigation is not acting in the regular course of business”). One of the foundational elements of OCGA § 24-8-803 (6) thus was not satisfied, and no presumption was created. See Ronald & Michael Scott Carlson, Carlson on Evidence, p. 546 (3d ed. 2015) (presumption of trustworthiness applies “[w]hen a party offers documentary evidence under Rule 803 (6) and establishes the requisite foundation for its admission”) (emphasis supplied). See also Rock, 922 F2d at 279 (presumption of trustworthiness “collapses” when document not prepared in the regular course of business) (citation and punctuation omitted); AAMCO Transmissions v. Baker, 591 FSupp.2d 788, 798 (E.D. Pa. 2008) (holding that “the assumption of reliability, accuracy, and trustworthiness underlying Rule 803 (6) [did] not apply” where the party seeking admission of the memorandum at issue “failed to show [that it was created] in the course of regularly conducted business activity, and not in anticipation of litigation”).

The majority also places undue emphasis on the fact that the store was not a party to the criminal prosecution. While not a party to the criminal prosecution, a business, as the majority concedes, still has “an interest in seeing that a shoplifting suspect is prosecuted and incarcerated and thus no longer able to shoplift from its store.” Given the business’s interest in the success of the prosecution, the same trustworthiness and reliability concerns arise, irrespective of whether the litigation is civil or criminal. See, e.g., United States v. Blackburn, 992 F2d 666, 670 (7th Cir. 1993) (treating documents prepared by business in anticipation of criminal prosecution of robbery suspect as raising the same concerns over trustworthiness and reliability as other documents “made in anticipation of litigation”). This is particularly true where, as in this case, the business initiates contact with the police and has the shoplifting suspect arrested. Because the business could face civil liability for malicious prosecution if the criminal prosecution is later dismissed, the business has a vested interest in ensuring that the State succeeds in its prosecution of the suspect.

Finally, the majority glosses over the incomplete record developed by the State with respect to the Shoplifting Report, which fails to show that the Report was prepared by the store for some underlying business purpose other than anticipated litigation. The State failed to elicit any testimony whatsoever from the store’s assistant manager or any other witness explaining whether or to what extent shoplifting reports were used in the store’s underlying business operations, such as for inventory control or insurance purposes, rather than simply to memorialize shoplifting incidents for purposes of anticipated criminal or civil litigation. Given the entire absence of any testimony on this issue, there is simply no evidence that shoplifting reports were “made for the systematic conduct of the business as a business,” Palmer, 318 U. S. at 113, and thus in the regular course of the store’s business under OCGA § 24-8-803 (6).

For these reasons, I would conclude that the trial court erred in admitting the Shoplifting Report as a business record. Furthermore, nonconstitutional error is harmless in a criminal case only if it is “highly probable that the error did not contribute to the judgment,” Leverette v. State, 303 Ga. App. 849, 852 (2) (696 SE2d 62) (2010) (footnote omitted), and when that test is applied in this case, it is clear that the erroneous admission of the Shoplifting Report was harmful with respect to Thompson’s conviction for felony shoplifting.

To prove felony shoplifting under the law as it existed at the time of the offense, the State was required to show that the value of the property stolen by Thompson was over $300. OCGA § 16-8-14 (b) (1) (2010). “Value,” according to the statute, “means the actual retail price of the property at the time and place of the offense,” and “[t]he unaltered price tag or other marking on property, or duly identified photographs thereof, shall be prima-facie evidence of value and ownership of the property.” OCGA § 16-8-14 (c) (2010).

Decided March 30, 2015

Reconsideration denied April 14, 2015

Long D. Vo, Cara E. Clark, for appellant.

Herbert E. Franklin, Jr., District Attorney, Kay Baker, Assistant District Attorney, for appellee.

The State did not introduce the price tags for the stolen camera and game console, photographs of the tags, or testimony regarding the prices from an employee at the store with personal knowledge regarding pricing. Instead, the sole evidence of the value of the stolen items introduced by the State was the Shoplifting Report. Consequently, the improper admission of the Shoplifting Report contributed to Thompson’s felony shoplifting conviction, and we should reverse his conviction and sentence on that count of the indictment.

I am authorized to state that Judge Miller joins in this dissent.

       The assistant manager also testified to what the loss prevention officer said he had observed while following Thompson around the store. Thompson waived any hearsay objection to this testimony from the assistant manager by failing to object on that ground at trial, and the testimony thus was “legal evidence and admissible.” OCGA § 24-8-802.

       On the aggravated assault count, the trial court sentenced Thompson to twenty years, to serve ten years in confinement and the remainder on probation, and on the felony shoplifting count, the court sentenced him to serve ten years in confinement. Both sentences ran concurrent to Thompson’s thirty-year sentence for possession of methamphetamine.

       Thompson also argues that the admission of the loss prevention report violated his Sixth Amendment right to confrontation under Crawford v. Washington, 541 U. S. 36 (124 SCt 1354, 158 LE2d 177) (2004). However, Thompson waived any objection under Crawford by failing to object on this ground at trial. See Melendez-Diaz v. Massachusetts, 557 U. S. 305, 314, n. 3 (129 SCt 2527, 174 LE2d 314) (2009); Lane v. State, 324 Ga. App. 303, 314 (6) (750 SE2d 381) (2013).

       Chapter 7 addresses “Opinions and Expert Testimony.”

       The dissent argues that the State failed to come forward with evidence that the reports were “made for the systematic conduct of the business as a business” or as required under the new Evidence Code, “kept in the course of a regularly conducted business activity.” But the report itself and the testimony of the records custodian satisfy this requirement. Costco is in the business of selling merchandise, and the loss prevention report is a record of merchandise lost by shoplifting that is entered into the business filing system. Indeed, Costco employs a loss prevention agent. The report was therefore “kept in the course of a regularly conducted business activity,” satisfying the third foundational requirement of OCGA § 24-8-803 (6) (C).

       While technically physical precedent only, Hill Aircraft & Leasing Corp., supra, has been cited repeatedly with approval and without notation of its precedential status. See, e.g., Jerkins v. Jerkins, 300 Ga. App. 703, 707 (3) (686 SE2d 324) (2009).

       As noted by Carlson, OCGA § 24-8-803 (6) closely tracks Federal Rule 803 (6). Carlson & Carlson, supra at 543.

       We applied Humphrey in another aggravated child molestation case involving nonviolent sexual contact between teenagers. See Morris v. State, 300 Ga. App. 355, 358-359 (685 SE2d 348) (2009).

       I concur fully in Divisions 2, 3 and 4.

       See also United States v. Arias-Izquierdo, 449 F3d 1168, 1183-1184 (11th Cir. 2006) (report documenting airline passenger information was inadmissible as business record because prepared in anticipation of trial); Noble v. Alabama Dept. of Environmental Mgmt., 872 F2d 361, 366-367 (11th Cir. 1989) (letter with attachments inadmissible as business record because prepared in anticipation of litigation).

       The current version of the statute requires the State to show that the value of the stolen property was over $500 to sustain a conviction for felony shoplifting. See OCGA § 16-8-14 (b) (1) (2014).


source: Caselaw Access Project

author: Branch, Judge.

license: Public Domain

text:
    A14A2208.
    PATTERSON v. THE STATE.
    (770 SE2d 62)
   Branch, Judge.

Following a trial by jury, Ricky Patterson was convicted of several crimes arising out of driving his Chevrolet van into Nathaniel Silvers and pinning Silvers between the van and a mobile home. Patterson appeals following the denial of his motion for new trial, asserting only that the trial court erred by refusing to give a charge on three lesser included offenses of aggravated assault as charged in Count 4 of the special presentment. Patterson does not challenge the sufficiency of the evidence.

The evidence presented at trial shows that on November 1,2011, Patterson’s live-in girlfriend, Wanda Bartley, and her adult son Silvers were at Patterson’s mobile home, that the two had been working on the trailer that afternoon, and that Bartley and Silvers had been drinking beer. Bartley and Silvers were sitting by a fire outside the home when Patterson returned from work in his van and parked the van facing toward, and about 20 feet from, one end of the mobile home. Patterson and Bartley almost immediately began arguing about Silvers being there to help Bartley work on the home. Patterson went into the home, took a roast out of the oven and threw it out the back door; Patterson also threw a cell phone through a glass gun cabinet. Bartley went inside, the couple continued to argue, and Bartley asked Patterson to leave. Silvers defended his mother and also urged Patterson to leave. At some point Patterson went outside and got into his van; Bartley was outside near the fire, and Silvers was on the porch telling Patterson to leave. Then, at the moment that Silvers walked off the porch near the same end of the trailer as the van, Patterson shifted the van into low gear, revved the engine, and drove rapidly and directly toward the end of the mobile home and Silvers. Silvers’s path off the porch took him toward the van initially; Silvers then turned away from the trailer briefly but reversed and tried to run past the end of the trailer as the van approached. The van struck Silvers and pinned him to the side of the trailer, resulting in internal injuries that required a multi-day stay in the hospital; the trailer sustained a dent from Silvers’s body being pinned against it.

Silvers later signed a statement stating that he had taken no part in the argument, that he and Patterson had a good relationship, that Silvers thought the incident was not intentional, that Patterson appeared to lose control of the van, and that after the incident Patterson asked Silvers if he was okay. Silvers also testified that the incident was an “accident,” that he was not arguing with Patterson that day, that he did not remember getting hit, and that he had no time to react before being struck. But a fellow detainee at the county jail testified that Patterson stated that he had struck Silvers intentionally. And both Silvers and Bartley told a responding officer that the act was “intentional.”

Patterson later was indicted. In the first four counts, Patterson was charged with four forms of aggravated assault: (Count 1) aggravated assault with intent to commit murder by attempting to commit a violent injury on the victim; (Count 2) aggravated assault with intent to commit murder by placing the victim in reasonable apprehension of immediately receiving a violent injury; (Count 3) aggravated assault with an object which, when used offensively against a person, is likely to and actually does result in serious bodily injury; (Count 4) aggravated assault by placing another in reasonable apprehension of immediately receiving a violent injury with an object which, when used offensively against a person, is likely to and actually does result in serious bodily injury. In the remaining counts, Patterson was charged with the following: (Count 5) aggravated battery by seriously disfiguring the victim; (Count 6) aggravated battery by rendering the victim’s legs useless; and (Count 7) disorderly conduct. The State later dismissed Count 6.

With regard to Count 4, Patterson filed written requests to charge the jury on simple assault, reckless conduct, and reckless driving as lesser included offenses of aggravated assault as charged in that count. The trial court denied the requests and counsel objected to the ruling. At the conclusion of the trial, the jury returned a verdict. With regard to the four counts of aggravated assault, the jury found Patterson guilty on the lesser included offense of simple assault on Counts 1 and 2, not guilty on Count 3, but guilty on Count 4. The jury also found Patterson not guilty on Count 5 (aggravated battery) but guilty on Count 7 (disorderly conduct). Counts 1 and 2 merged into Count 4 for the purpose of sentencing, and Patterson was sentenced to 20 years on Count 4 and 12 months on Count 7 to run concurrent with Count 4. On appeal, Patterson contends the trial court erred by refusing to charge the jury on three requested lesser included offenses for Count 4: simple assault, reckless conduct, and reckless driving.

1. Georgia law provides that “[a]n accused may be convicted of a crime included in a crime charged in the indictment or accusation.” OCGA § 16-1-6.

A crime is so included when: (1) It is established by proof of the same or less than all the facts or a less culpable mental state than is required to establish the commission of the crime charged; or (2) It differs from the crime charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest or a lesser kind of culpability suffices to establish its commission.

Id. The analysis of whether a lesser included charge is warranted is determined based on a comparison with the alleged greater crime as “set forth in the indictment or accusation.” Bowers v. State, 177 Ga. App. 36 (1) (338 SE2d 457) (1985) (emphasis omitted). The test employed to determine whether a jury charge should be given on any such lesser included offense turns on whether any evidence was presented to support the lesser charge:

[W]here the state’s evidence establishes all of the elements of an offense and there is no evidence raising the lesser offense, there is no error in failing to give a charge on the lesser offense. ... Where a case contains some evidence, no matter how slight, that shows that the defendant committed a lesser offense, then the court should charge the jury on that offense.

Edwards v. State, 264 Ga. 131, 133 (442 SE2d 444) (1994) (citations omitted; emphasis in original); see also Mobley v. State, 279 Ga. App. 476, 479 (2) (631 SE2d 491) (2006) (same). The question before us, therefore, is whether the evidence established only the greater offense as charged in Count 4 or whether some evidence was presented to establish any of the three lesser offenses requested by Patterson.

2. In Count 4, Patterson was charged with “aggravated assault with an object” in that

he did commit an act which placed another person, to wit: Nathaniel Lane Silvers, in reasonable apprehension of immediately receiving a violent injury, said assault having been committed with an object which when used offensively against a person, is likely to and actually does result in serious bodily injury, by driving a motor vehicle in the direction of Nathaniel Silvers, striking Mr. Silvers with said vehicle, and pinning him up against a mobile home with said vehicle.

Thus, the charge specifies the two elements of an aggravated assault required by OCGA § 16-5-21 — the commission of a simple assault and the presence of a statutory aggravator — as well as which form of each element is being charged. First, the indictment shows that the State chose to charge the type of simple assault whereby a person “[c]ommits an act which places another in reasonable apprehension of immediately receiving a violent injury.” OCGA § 16-5-20 (a) (2). There is no specific intent requirement for this type of simple assault; rather, it is a general intent crime. Guyse v. State, 286 Ga. 574, 577 (2) (690 SE2d 406) (2010); Daniels v. State, 298 Ga. App. 736, 738 (681 SE2d 642) (2009); compare OCGA § 16-5-20 (a) (1) (a specific intent crime requiring proof that the defendant intended to violently injure someone). “All that is required [for a simple assault as defined in OCGA § 16-5-20 (a) (2)] is that the assailant intend to commit the act which in fact places another in reasonable apprehension of injury, not a specific intent to cause such apprehension.” Smith v. State, 280 Ga. 490, 491-492 (1) (629 SE2d 816) (2006) (citation omitted); Daniels, 298 Ga. App. at 738 (same). This form of simple assault focuses on the reasonable apprehension of harm of the victim; it is not concerned with the defendant’s intent to injure. Crane v. State, 297 Ga. App. 880, 883 (2) (678 SE2d 542) (2009); Smith, 280 Ga. at 492 (1).

The indictment also shows that the State charged Patterson with the second statutory aggravator, i.e., where a person “assaults . . . [wjith a deadly weapon or with any object, device or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injuryf.]” OCGA § 16-5-21 (b) (2). The second statutory aggravator does not change the type of intent necessary to prove the charge in Count 4, i.e., an OCGA § 16-5-20 (a) (2) simple assault aggravated by OCGA § 16-5-21 (b) (2); rather, the crime only requires placing the victim in reasonable apprehension of harm by intentionally using the aggravating object. Smith, 280 Ga. at 491 (where aggravated assault with a deadly weapon is alleged to have placed the victim in reasonable apprehension of harm, “intent to injure is not an element of the charged offense”); Collins v. State, 199 Ga. App. 676 (405 SE2d 892) (1991) (same).

Accordingly, based on Count 4 as charged, the State was required to show that Patterson intended to drive his van in the direction of Silvers, that Silvers was placed in reasonable apprehension of injury, and that the van was an object that when used offensively against a person, was likely to or actually did result in serious bodily injury. The State was not required to show an intent to injure or that Patterson intended to place Silvers in reasonable apprehension of injury.

(a) Patterson contends the trial court erred by refusing to give his requested charge of simple assault as to Count 4. He largely contends that he was entitled to the charge because the evidence showed a less culpable mental state than required to establish Count 4 as charged. See OCGA § 16-1-6 (1). Even though simple assault is by definition a lesser included offense of aggravated assault, a charge on simple assault is not necessary in every case:

Simple assault is necessarily a lesser included offense of the greater crime of aggravated assault and is an essential part thereof. Thus, any defendant who has committed the greater offense of aggravated assault has necessarily committed the lesser offense of simple assault. But this does not mean that the trial court should authorize the jury to enter a verdict for the lesser crime in every case.

Dickerson v. State, 207 Ga. App. 241 (1) (427 SE2d 591) (1993) (citation and punctuation omitted). Rather, where a person is charged with a reasonable-apprehension-of-injury assault and the indictment charges and the undisputed evidence shows that the assault was committed with the second aggravating factor listed in OCGA § 16-5-21 (b), a charge on simple assault is not required. Id. (“Where . . . the undisputed evidence shows that the assault was committed with a deadly weapon, it is not error to refuse to give a charge on simple assault as a lesser included offense.”) (citation and emphasis omitted); Davis v. State, 308 Ga. App. 7, 17 (5) (b) (706 SE2d 710) (2011) (where defendant was charged with and evidence showed that defendant “took a swing” at victim with hand holding a screwdriver, an instrument that when used offensively is likely to or actually does result in serious bodily injury, and victim immediately retreated, there was no evidence of simple assault and no error refusing a charge on simple assault).

Even if there was an issue of fact regarding whether Silvers was in reasonable apprehension of immediately receiving a violent injury, it is undisputed that Patterson hit Silvers while driving his van toward Silvers from only 20 or so feet away after revving his engine and that his action resulted in serious bodily injury to Silvers. Accordingly, Patterson was either guilty of the greater crime of aggravated assault as charged in Count 4 or not guilty at all. Thus, the evidence did not support an instruction on simple assault as a lesser included offense of aggravated assault.

Patterson offers three theories for why he was entitled to a charge on simple assault. He first argues that the evidence could show that he lacked the general intent to cause an injury even though he intentionally drove in a manner that placed Silvers in reasonable apprehension of injury. As shown above, however, the State was not required to show an intent to injure but only that Patterson’s driving placed Silvers in reasonable apprehension of injury. Thus, Patterson either committed the crime as charged or committed no charged crime.

Second, Patterson argues that he was entitled to a charge on simple assault because the evidence could have shown that Patterson drove recklessly but never intended to cause any injury and that the law allows conviction of reasonable-apprehension-of-injury assault based on reckless conduct, citing one statement in Flores v. State, 277 Ga. 780, 784 (3) (596 SE2d 114) (2004) (“an assault conviction under OCGA § 16-5-20 (a) (2) does not exclude a finding of guilt for reckless conduct”). The flaw in Patterson’s reasoning is that, as already shown, Count 4 only required the State to prove that Patterson intended to drive the van, not that he acted with intent to injure. In this case, therefore, reckless conduct would not show a less culpable mental state than that which was required to establish the commission of the crime as charged. See OCGA § 16-1-6 (1). This argument therefore fails.

Finally, Patterson argues that there was evidence upon which the jury could conclude that the van was not used in a way likely to cause serious bodily injury. Patterson relies on Cordis v. State, 236 Ga. App. 629 (513 SE2d 45) (1999), in which this Court held that the defendant was entitled to a charge on simple assault as a lesser included offense of aggravated assault in a case where the defendant “poked [an officer] with a piece of broken plexiglass,” thereby causing “small lacerations [that] required no bandaging or other treatment.” Id. at 630. Thus in Cordis, whether the assault was committed with a deadly weapon “was clearly disputed.” Id. at 630 (1). Here, there was no such dispute over the object (the van), which in fact caused serious injuries; injuries requiring a multi-day hospital stay are obviously serious. We agree with the trial court’s conclusion in its order denying Patterson’s motion for new trial that “there was no evidence on the record, however slight, to suggest that the van was not intentionally used as an object, which when used offensively against a person, is likely to or actually does result in serious bodily injury.” (Punctuation omitted.) See Davis, 308 Ga. App. at 17 (5) (b) (counsel not deficient in failing to request a charge on simple assault where there was no evidence that defendant did not use screwdriver in an offensive manner, which was likely to result in serious bodily injury).

We therefore conclude that the trial court did not err by refusing to charge the jury on simple assault as a lesser included offense of Count 4 as charged.

(b) Patterson contends the trial court erred by refusing to give his requested charge of reckless conduct as to Count 4. He essentially argues that he was entitled to the charge because the evidence showed a less culpable mental state than required to establish Count 4 as charged. See OCGA § 16-1-6 (1).

But as with simple assault, because the State charged Patterson with aggravated assault by placing another in reasonable apprehension of immediately receiving a violent injury, a charge on reckless conduct was not warranted. Craft v. State, 309 Ga. App. 698, 707 (7) (a) (710 SE2d 891) (2011). In Craft, the defendant shot a gun into the air several times, causing one bullet to go into a nearby apartment where the residents were cowering in fear as a result of the gunfire. As explained in that decision, a charge on reckless conduct was not warranted “because evidence that a defendant fired a gun into the air, and thereby placed another in reasonable apprehension of immediately receiving a violent injury, demonstrates the intent required for aggravated assault, not the criminal negligence required for reckless conduct.” Id. (footnote omitted).

The facts in this case are undisputed that Patterson drove his van and struck and injured Silvers. Thus, under Count 4 as charged, if Silvers reasonably feared an immediate violent injury from Patterson driving the van, the crime of aggravated assault occurred, not reckless conduct. Craft, 309 Ga. App. at 707; see also Shaw v. State, 238 Ga. App. 757, 759 (1) (519 SE2d 486) (1999) (“[A] reckless conduct charge is not warranted for an aggravated assault committed by placing another in reasonable apprehension of immediately receiving a violent injury. If the victim reasonably fears an immediate violent injury from a firearm, the aggravated assault has occurred.”) (citations omitted). Accordingly, a charge on reckless conduct was not warranted.

Decided March 30, 2015

Reconsideration denied April 14, 2015

G. Brandon Sparks, Michael P. Manfredi, for appellant.

Herbert M. Poston, Jr., District Attorney, Susan L. Franklin, Assistant District Attorney, for appellee.

(c) Patterson contends the trial court erred by refusing to give his requested charge of reckless driving as to Count 4. He essentially argues that he was entitled to the charge because the evidence showed a less culpable mental state than required to establish Count 4 as charged. See OCGA § 16-1-6 (1).

The same analysis applicable to reckless conduct applies to Patterson’s contention that the trial court erred by failing to give a charge on reckless driving because the evidence showed a less culpable mental state. Like reckless conduct, reckless driving requires an act of criminal negligence, rather than an intentional act. Young v. State, 294 Ga. App. 227, 230 (669 SE2d 407) (2008). Count 4 only required the State to prove that Patterson had the general intent to drive the van. In this case, therefore, reckless driving would not show a less culpable mental state than that which was required to establish the commission of the crime as charged. See OCGA § 16-1-6 (1).

For all of the above reasons, we hold that the trial court did not err by refusing to charge simple assault, reckless conduct, and reckless driving as lesser included offenses of Count 4 as charged.

Judgment affirmed.

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

       Patterson was also charged with being a habitual offender, hut this count was used for sentencing and not submitted to the jury.

       The jury was charged with simple assault as a lesser included offense of Counts 1 and 2.

       Although a defendant is entitled to jury charges on proper lesser included offenses, beyond that, a defendant is not entitled to charges on separate crimes not charged in the indictment:
      [Wjhere the defendant is charged by a narrowly drawn indictment with a specific crime it is not within the power of the judge or the jury to interpret the facts as presented at trial to support an alternative, separate offense. Criminal indictments are not deemed amendable to conform to the evidence.

        State v. Hightower, 252 Ga. 220, 223 (312 SE2d 610) (1984) (citation omitted).

       “It is well established that an automobile can constitute an offensive weapon within the meaning of OCGA § 16-5-21 (a) (2), when used to risk or cause a serious bodily injury.” Guyse, 286 Ga. at 577 (2).

       We recognize that there are opinions from both this Court and the Supreme Court stating in general that an aggravated assault with a deadly weapon/offensive object requires a “general intent to injure”; in these cases, however, the defendant was charged with aggravated assault based on either the specific intent form of simple assault (OCGA § 16-5-20 (a) (1)), or charged without specifying a form of simple assault, thus including both the specific intent form and the reasonable-apprehension-of-injury form. For example, in Bostic v. State, 289 Ga. App. 195 (656 SE2d 546) (2008), the opinion states that Bostic was indicted for aggravated assault against a police officer, but it appears that Bostic was charged with either form of simple assault, thus including the specific intent form. Id. at 196. Accordingly, Bostic is distinguishable. See also Guyse, 286 Ga. at 577 (“The State did not specify in the indictment which form of simple assault was being alleged.”) (citation omitted); Barnes v. State, 296 Ga. App. 493, 495 (675 SE2d 233) (2009) (same).

       “If the indictment sets out the offense as done in a particular way, the proof must show it." Mackey v. State, 296 Ga. App. 675, 678 (2) (c) (675 SE2d 567) (2009) (citation and punctuation omitted).

       Counts 1 and 2 charged Patterson, respectively, with each form of simple assault aggravated by the intent to murder. Because the evidence raised the possibility that Patterson acted without the intent to murder, simple assault could be charged as a lesser included offense of those crimes.

       Reckless conduct is defined as follows:
      Aperson who causes bodily harm to or endangers the bodily safety of another person by consciously disregarding a substantial and unjustifiable risk that his act or omission will cause harm or endanger the safety of the other person and the disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation is guilty of a misdemeanor.
      OCGA § 16-5-60 (b).

       Reckless driving is defined as follows: “Any person who drives any vehicle in reckless disregard for the safety of persons or property commits the offense of reckless driving.” OCGA § 40-6-390 (a).


author: BARNES, Presiding Judge.

text:
    A14A1520.
    AYERS v. ASSOCIATION OF COUNTY COMMISSIONERS OF GEORGIA-INTERLOCAL RISK MANAGEMENT AGENCY.
    (771 SE2d 743)
   BARNES, Presiding Judge.

This appeal addresses the trial court’s order in a declaratory judgment as to coverage in a case involving the shooting death of a victim by a deputy sheriff. The trial court determined that liability coverage was limited to $1 million contained in an insurance policy issued to one of three counties that participated in a drug task force initially funded by a grant from the federal government. The plaintiff appeals this order. For the reasons that follow, we reverse.

Jonathan Paul Ayers was shot and killed by Billy Shane Harrison, who was a Stephens County deputy working for the Mountain Judicial Circuit Narcotics Criminal Investigation and Suppression Team (“the NCIS Team”), which covered Stephens County, Haber-sham County, and Rabun County. In her capacity as Ayers’ surviving spouse and the administratrix of his estate, Abigail Marilyn Ayers sued Harrison and others in federal court under 42 USC § 1983, but after the United States Court of Appeals for the Eleventh Circuit reversed in part and affirmed in part the district court’s order on the parties’ motions for summary judgment, the only claims remaining were 42 USC § 1983 excessive force claims and state assault, battery, and false arrest claims against Harrison. Ayers v. Harrison, 506 Fed. Appx. 883, 885 (11th Cir. 2013).

In its opinion, the Eleventh Circuit Court of Appeals summarized the facts then in the record as follows:

Viewed in the light most favorable to Plaintiff [Ayers], the record reveals the following facts. Although Officer Harrison concededly did not have probable cause to arrest Ayers at the time, Officer Harrison, while in plain clothes as an undercover officer, approached Ayers’s car at a gas station to investigate possible drug activity. Only Ayers, as the driver, was in the car. Taking together Ayers’s dying declaration and eyewitness testimony, Officer Harrison did not identify himself to Ayers as a police officer, but drew his gun, either waved the gun at Ayers or tapped the gun on the car window, and told Ayers to get out of the car. Thinking that he was being robbed, Ayers attempted to drive out of the gas station, but Officer Harrison fired two shots at Ayers’s car. The second bullet pierced the windshield and struck Ayers in the abdomen, and he died shortly thereafter from the gunshot wound.

Ayers, 506 Fed. Appx. at 884.

The Association of County Commissioners of Georgia-Interlocal Risk Management Agency (“IRMA”), which had issued insurance policies to all three counties, defended Harrison in federal court under a reservation of rights letter which stated that the anticipated defense costs plus the requested damages may exceed its liability coverage of $1 million in the Stephens County policy.

After the Eleventh Circuit issued its opinion on the parties’ summary judgment motions in February 2013, IRMAfiled a petition for declaratory judgment against Harrison and Ayers in the Superior Court of Banks County in May 2013. IRMA asserted that it had been providing a defense for Harrison under the Stephens County policy under a reservation of rights, and further asserted that Ayers had contended that Harrison is also covered under insurance policies issued to Habersham and Rabun Counties and that the limits of all three policies may be stacked. IRMA thus sought a declaration that its maximum potential liability to indemnify Harrison in the civil rights suit was $1 million under the Stephens County policy, that Harrison was not covered under either the Habersham or the Rabun County policies, and that those policies could not be stacked to provide an additional $3 million in coverage.

Ayers removed the declaratory judgment to the Northern District of Georgia, but the district court granted IRMA’s motion to remand the case to the superior court, finding that Ayers had failed to show federal jurisdiction over the matter. Assn. County Commrs. of Ga.-Interlocal Risk Mgmt. Agency v. Harrison, Civil Action No. 2:13-CV-00107-RWS (N.D. Ga., June 27, 2013).

Following discovery, the parties filed cross-motions for summary judgment. IRMA argued that its potential exposure should be capped at the limits of the liability policy issued to Stephens County because (1) Harrison was not covered under the Rabun County or Habersham County policies, and (2) even if he were covered, the policies contain anti-stacking provisions. Ayers argued that IRMA sought an improper advisory opinion because it had already denied coverage to the deputy under its Habersham and Rabun County policies and its duty to indemnify Harrison had not yet arisen absent a final judgment on Ayers’ claim. She also argued that Harrison was covered under all three policies and that they do not contain anti-stacking provisions.

The trial court denied Ayers’ motion for summary judgment and granted IRMA’s motion, first finding that IRMA’s reservation of rights letter was adequate to show its uncertainty as to whether the policies could be stacked, and thus IRMA’s petition for declaratory judgment stated a claim. The court continued, “Turning to the question of coverage, the Court finds that, for all of the reasons set forth by [IRMA, its] total liability in the underlying case cannot exceed the $1 million limit of the Stephens County Policy.”

Ayers contends on appeal that the trial court erred in granting summary judgment to IRMA and denying summary judgment to her, arguing that each county’s policy “simultaneously and collectively provide coverage for the underlying occurrence.” She asserts that (1) Harrison was insured under each policy because he was acting on behalf of all three counties, under the supervision of the NCIS Team Commander, when the shooting occurred, and that (2) the policies do not contain anti-stacking language.

On appeal from the grant of summary judgment this [c]ourt conducts a de novo review of the evidence to determine whether there is 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.

(Citation omitted.) Donovan v. State Farm Mut. Auto. Ins. Co., 329 Ga. App. 609, 610 (765 SE2d 755) (2014).

So viewed, the record shows that the NCIS task force was created by a Memo of Intergovernmental and Intra-agency Agreement for Grant Year 2009-2010 that was signed by the sheriffs of Habersham, Rabun, and Stephens County, the district attorney for the Mountain Judicial Circuit, and the police chiefs of 12 municipalities within the counties. The Stephens County Sheriff’s Office had previously been a member of a different task force, but Stephens County Sheriff Randy Shirley, who was elected to begin serving office in January 2009, withdrew from that task force and decided to join a task force to which the sheriffs of Rabun and Habersham Counties belonged. The task force was renamed the NCIS Team in the 2009 Agreement, in which the governing bodies of the counties and municipalities authorized the Habersham County Commissioner’s office to apply for and receive federal funding to “implement [ ] and provide [ ] the resources necessary to facilitate the investigation, arrest, prosecution and conviction of drug and violent crime offenders whose illicit activity impacts the collective jurisdictions.” Habersham and Rabun Counties agreed to be “the implementing agencies . . . responsible] for assuring compliance with [the grant] program regulations and applicable local, state, and federal laws.” The implementing agencies also agreed “to provide proof that all employees maintain full liability coverage when conducting law enforcement activities outside the boundaries of the employees’ respective agencies.”

The Agreement provided that all of the NCIS Team’s “operational and management policies shall be established and unanimously approved by a control group comprised of the primary executive officer of each participating agency,” including “bylaws governing the conduct of its routine oversight responsibilities” and Standard Operating Procedures governing the activities of the Team. All personnel assigned to the team were required to meet or exceed certain minimal qualifications, training, and experience, and applicants would be disqualified for various reasons including drug use or certain prior convictions. The Agreement further provided that the signatories concurred with “the NCIS Team Strategic Plan attached to this 2009-2010... Grant... Program,” but no such plan is included in this record.

Finally, the Agreement set forth the NCIS Team budget for the 2009-2010 grant year. The budget indicates that each county and the City of Cornelia would each hire an agent and specified the annual salary each agent would receive. Each “hiring agency” was to budget 100 percent of its agent’s salary but would be reimbursed for a portion of that salary from the federal grant. The Agreement also provided that each of the three counties would pay a portion of the NCIS Team Commander and Secretary’s salaries, and would be reimbursed at least in part by federal funds under a specific formula and order. All of the Team’s operational expenses were to be paid from seized condemned funds, which were to be placed in the Team’s Master Fund; each county would be apportioned funds to reimburse its “cash match requirement,” but any remaining balance would be used by the Team “for continued drug and violent crime control initiatives” rather than used by the counties to supplement their local funding for law enforcement activities.

The NCIS Team received the federal grant of $291,000, and in May 2009 the Control Board, which consisted of the three county sheriffs, and the district attorney for the Mountain Judicial Circuit, hired Kyle Bryant to serve as the NCIS Commander. Bryant was paid with federal grant money that passed to him through the host agency, Habersham County, and he reported to the Control Board, more specifically to the chair of the Board, who was Rabun County Sheriff Frank Andrews, Jr. In 2009 the NCIS Team was comprised of five officers in addition to Bryant: one from the National Guard’s Counter-Drug Task Force who did not report directly to Bryant, one from each of the three counties and one from the City of Cornelia, the four of whom did report directly to Bryant.

Habersham County Sheriff Joseph Terrell testified that he, the Rabun County sheriff, and the district attorney decided to hire Commander Bryant, who was responsible for the day-to-day operations of the NCIS Team. Once an agent was hired by a county and assigned to the Team, that agent was detailed exclusively to the Team and was subject to Commander Bryant’s oversight rather than to the oversight of the county sheriff’s department that hired him.

In July 2010, Stephens County hired Harrison to be its agent assigned to the NCIS Team. Although Harrison was technically an employee of and paid by Stephens County, once hired, Harrison “immediately went under the auspices of the NCIS unit and their policies and procedures” and was “totally” under the control, direction, and supervision of NCIS Team Commander Bryant. Bryant issued Harrison his handgun and a shotgun. While each sheriff’s deputy acquired state-wide arrest powers when sworn in by the county sheriff’s office that hired him, as a courtesy the NCIS Team agents were also sworn in by the other two counties that were NCIS Team members. Accordingly, Harrison was sworn in as a deputy in Habersham and Rabun Counties in addition to Stephens County.

On the day of the shooting, Harrison was working undercover with another NCIS Team member, Ronnie Cronic, when they saw a drug dealer who had sold some cocaine to a third agent lean into Ayers’ car, and saw Ayers give the dealer some money. Harrison found the exchange notable because the dealer had told the third agent, Chance Oxner, that she was going to meet someone else to obtain more cocaine. Cronic and Harrison retrieved Oxner from the Relax Inn, where he had executed the undercover buy, and Cronic, Harrison, Oxner, and a fourth agent met Commander Bryant in the courthouse parking lot. Harrison and Oxner got into Commander Bryant’s undercover Escalade to return to surveilling the motel, but after they passed the motel and turned around, Harrison realized that Ayers happened to be in front of them.

The agents watched Ayers pull into a convenience store and Bryant pulled the Escalade into a pawn shop parking lot across the street and turned to face the convenience store. When Ayers came out of the store and went to his car, Harrison told the others that he needed to go talk to Ayers to find out how he was involved with the drug dealer. Bryant pulled the Escalade into the convenience store parking lot and Harrison got out and approached Ayers, who put his car in reverse and backed up quickly. Harrison fired his weapon twice into the car. Ayers drove out of the parking lot but was mortally wounded and died four hours later.

1. Under the rules of contract interpretation, courts must attempt to give meaning to all provisions of the contract and look to “the whole contract... in arriving at the construction of any part.” OCGA § 13-2-2 (4); see Horwitz v. Weil, 275 Ga. 467, 468 (569 SE2d 515) (2002). “Although an ambiguous insurance contract must be construed in favor of the insured, a court may not strain to find an ambiguity and must enforce an unambiguous contract as written.” Thornton v. Ga. Farm Bureau Mut. Ins. Co., 287 Ga. 379, 384 (2) (b) (695 SE2d 642) (2010). When construing a contract, “[w]ords generally bear their usual and common signification.” OCGA § 13-2-2 (2).

The three IRMA policies at issue here contain the same language, differing only in their limits of liability for law enforcement activities and deductible amounts. Each policy identifies the “Named Member” as the county itself, and “[a]ny official, trustee, director, officer, or employee of the Named Member while acting within the scope of his or her duties as such [and] any [authorized] volunteer acting for or on behalf of the Named Member[.]” Under the Law Enforcement Liability section of all three policies, IRMA agreed

to pay on behalf of the Member all sums which the Member shall be obligated to pay as Money Damages by reason of liability imposed upon the Member by law or assumed by the Member under a Covered Contract, by reason of Personal Injury, Bodily Injury or Property Damage that is caused by an Occurrence as defined in this section.

(Emphasis supplied.) The policies define “Occurrence” as “an accident or a happening or event... that results from the conduct of Law Enforcement Duties and which results in Bodily Injury, Personal Injury or Property Damage during the Agreement Period.” (Emphasis supplied.) Finally, “Law Enforcement Duties” are defined as “any of the duties or obligations performed or fulfilled by or for, or authorized by, any Law Enforcement Agency of the Named Member. . . .” (Emphasis supplied.)

The parties do not dispute that Harrison was an employee of Stephens County when he shot Ayers, but IRMA argues that regardless of any other policy language, Harrison was not a “member” covered under the Habersham and Rabun County policies because he was neither an “official, trustee, director, officer or employee” of Habersham or Rabun County acting within the scope of his duties when he shot Ayers, nor was he a volunteer authorized to act for or on behalf of Habersham or Rabun County. Ayers concedes that Harrison was not an official, trustee, or director of these counties, but argues that he was a covered Member because he was acting on all three counties’ behalf as a police “officer,” as a “volunteer,” and as an employee of each county that was participating in the joint venture of the task force.

As noted previously,

[u]nder Georgia rules of contract interpretation, words in a contract generally bear their usual and common meaning. OCGA § 13-[2]-2 (2). However, “if the construction is doubtful, that which goes most strongly against the party executing the instrument or undertaking the obligation is generally to be preferred.” OCGA § 13-2-2 (5). Georgia courts have long acknowledged that insurance policies are prepared and proposed by insurers. Thus, if an insurance contract is capable of being construed two ways, it will be construed against the insurance company and in favor of the insured.

Claussen v. Aetna Cas. & Surety Co., 259 Ga. 333, 334-335 (1) (380 SE2d 686) (1989). In other words, “the risk of any lack of clarity or ambiguity in an insurance contract must be borne by the insurer.” Id. at 337 (3).

The policy does not define “officer,” and we may look to dictionary definitions to “supply the plain and ordinary sense of a word.” Market Place Shopping Center v. Basic Business Alternative, Inc., 213 Ga. App. 722 (1) (445 SE2d 824) (1994). As Ayers notes, a common dictionary definition of “officer” is “one charged with police duties.” See Fowler v. Mitcham, 249 Ga. 400, 401-402 (291 SE2d 515) (1982) (city policeman was a “municipal officer” and thus ineligible to also hold the position of city councilman under predecessor to OCGA § 36-30-4). Construing the ambiguity against the insurer, Harrison is an “officer” of Rabun and Habersham Counties and therefore a “Member” under those counties’ policies.

We next consider whether Harrison’s liability in the underlying event arose from a covered Occurrence under the Law Enforcement Liability section of those policies. The contracts provide that, to be covered, an Occurrence must arise from the conduct of Law Enforcement Duties “performed or fulfilled by or for, or authorized by any Law Enforcement Agency of the Named Member.” (Emphasis supplied.) IRMA argues that the police powers of one county do not extend into another county without that county’s consent, that the authority of a sheriff as a county officer is limited to the geographic territory of his county, and that the evidence showed that the sheriffs of Rabun and Habersham Counties deputized Harrison only so he could arrest people in their counties, not to authorize him to perform law enforcement duties on their behalf in Stephens County. But the issue is not the extent of the legal powers the sheriffs granted to Harrison; the issue is whether, under the terms of the insurance contract, Harrison was conducting law enforcement duties that were authorized by the sheriffs, who are the “Law Enforcement Agency” of each county.

Under the terms of the Agreement that created the Mountain Judicial NCIS Team, the three sheriffs each agreed to cede control of one deputy sheriff each to the NCIS Team Commander and to allow that deputy to operate under the policies and procedures of the Team, as set by the Control Board. The record establishes that Harrison was working for the NCIS Team when he shot Ayers. The sheriffs authorized the Team to act within all three counties “to facilitate the investigation, arrest, prosecution and conviction of drug and violent crime offenders whose illicit activity impacts the collective jurisdictions.” (Emphasis supplied.) In his deposition, the NCIS Team Commander agreed that the Team was not a unit of any of the three county sheriffs’ departments but was “a law enforcement unit that reports to a control board of the collaborating agencies involved in the task force.” Further, while each deputy assigned to the NCIS Team was paid by the county that hired him, each county was reimbursed for part of that salary from the grant money that flowed through the NCIS Team. All of the NCIS Team’s operational expenses were paid by either the grant money or civil forfeiture proceeds that flowed from criminal prosecutions initiated by the NCIS Team, and any money that exceeded expenses would be divided among the counties.

According to the Habersham County Sheriff, the NCIS Team Commander was responsible for providing the training for the team members, including the required annual training to maintain POST certification, although the Commander testified that the deputies were responsible for overseeing their own annual training. The deputies assigned to the NCIS Team were subject to the oversight of the Team Commander, who was in charge of the unit, dealt with day-to-day operations, and was expected to adhere to the standard operating procedures (SOPs) enacted by the Control Board. Operational activities related to drug investigations were governed by the SOPs of the NCIS Team, although the SOPs were not formally approved by the Control Board until after Ayers was shot and killed.

Just before the shooting occurred, Harrison was riding in an unmarked Cadillac Escalade that was titled to the NCIS Team, owned by all three counties, and driven by the Team Commander. The Commander had authorized Harrison to carry a gun and to use force. The shooting was investigated by the Georgia Bureau of Investigations, not the Stephens County Sheriff’s Department, and the NCIS Team Commander gave each sheriff a copy of the resulting GBI report.

In summary, Harrison was acting on behalf of the NCIS Team when the shooting occurred. In the Intergovernmental and IntraAgency Agreement, all three counties authorized agents assigned to the NCIS Team to act on their behalf in a concerted effort to stem violence and the drug trade in the three-county region. Accordingly, the insurance policies of Rabun and Habersham Counties also provide liability coverage for Harrison’s law enforcement activities that resulted in the occurrence at issue, and the trial court erred in holding otherwise.

2. Ayers also argues that the trial court erred in concluding that she was precluded from recovering under the Habersham and Rabun County insurance contracts due to anti-stacking provisions.

Keeping in mind that the definition of “stacking” means that two or more coverages must be otherwise applicable to a given loss, an uninsured should generally have the right to stack these coverages as long as stacking is not prohibited by any statute, regulation, unwritten public policy, or valid contract term.

12 Couch on Ins. 3d § 169:13. “In general, Georgia law allows an insured to stack the limits of liability provided by [s]eparate policies to the extent of the insured’s expense. However, the policy language itself may bar the stacking of such coverage.” (Citations omitted.) Ga. Farm Bureau Mut. Ins. Co. v. Shook, 215 Ga. App. 66, 67 (449 SE2d 658) (1994). Further,

[i]n construing an insurance policy, the test is not what the insurer intended its words to mean, but what a reasonable person in the position of the insured would understand them to mean. The policy should be read as a layman would read it and not as it might be analyzed by an insurance expert or an attorney. And, it is the insurer’s duty to define clearly and explicitly limitations on coverage.

(Punctuation and footnotes omitted.) Continental Ins. Co. v. American Motorist Ins. Co., 247 Ga. App. 331, 334-335 (1) (542 SE2d 607) (2000).

IRMA contends that the following language prevents the stacking of coverage:

IRMA’s liability for damages as the result of any one Occurrence or Wrongful Act shall be only the maximum Agreement limit less the amount of the Named Member’s deductible.... This is the maximum amount IRMA will pay for damages as the result of any one Occurrence or Wrongful Act regardless of the number of Members, automobiles or vehicles involved, claims made or Suits brought, persons or organizations making claims or bringing suits, or premiums paid.

IRMA further argues that the policies’ language limiting its liability for damages resulting from any one Occurrence is “clear and prevents the stacking of limits,” “clearly state[s]” that IRMA’s maximum liability for an Occurrence is the maximum amount provided by the policy, and that the policies’ “clear intent was to limit the exposure of the counties’ insurance pool.”

IRMA has offered no authority for the proposition that limiting the payment under one policy to the maximum limits of liability per occurrence also limits the coverage under an entirely different contract, rather than simply limiting the maximum liability under the contract containing the limiting language. “The insurer in preparing its policy has the burden of using language that is clear and precise,” and absent clear and precise language of exclusion, none exists. Travelers Indem. Co. v. Whalley Constr. Co., 160 Ga. App. 438, 440-441 (287 SE2d 226) (1981).

Because the insurance policies issued to Rabun and Habersham Counties do not explicitly limit their coverage to prohibit stacking, the trial court erred in granting summary judgment to IRMA and denying summary judgment to Ayers.

Decided April 14, 2015

Finch McCranie, Richard W. Hendrix, for appellant.

Morris, Manning & Martin, Lewis E. Hassett, Kelly A. Christian, for appellee.

Judgment reversed.

Boggs and Branch, JJ., concur.

       Rabun County’s liability coverage is limited to $2 million, and Habersham County’s is $1 million.

       The underlying federal case was tried in early 2014, and the jury returned a damages verdict in Ayers’ favor of $2,305,352, which the district court affirmed after post-trial motions. Ayers v. Harrison, Civil Action No. 2:10-CV-0032-RWS (N.D. Ga., April 23, 2014). The district court subsequently granted $710,998 in attorney fees and $121,202 in expenses to Ayers. Ayers v. Harrison, Civil Action No. 2:10-CV-00032-RWS (N.D. Ga., June 13, 2014).

       Oxner had been hired by and assigned to the Team by the Habersham County sheriff.

       See Merriam-Webster’s Online Dictionary, http://www.merriam-webster.com/dictionary/ officer.

       Ayers also argues that Harrison should be covered under all three county policies due to public policy considerations, noting that legal liabilities arise in a number of ways against officers who are assigned by one jurisdiction to work on behalf of other jurisdictions and that this task force was recently implicated in the use of a flash grenade against an infant. Because we conclude that Deputy Harrison is covered under the terms of the insurance contracts, we need not reach this issue.