text:
    A16A0772.
    LUCAS v. BECKMAN COULTER, INC. et al.
    (793 SE2d 119)
   Dillard, Judge.

In this civil action, Claude Lucas sued Beckman Coulter, Inc. (“BCI”) and its employee, Jeremy Wilson, alleging that the defendants are liable for injuries he suffered when Wilson accidentally shot him with a handgun while on a service call for BCI at Lucas’s place of employment. Following discovery, BCI moved for summary judgment, which the trial court granted. On appeal, Lucas contends that the trial court erred in granting summary judgment, arguing that BCI is not immune in this instance from firearm-related tort liability under OCGA § 16-11-135 and that genuine issues of material fact remain as to whether BCI is liable for Wilson’s negligent conduct under theories of respondeat superior and negligent supervision. For the reasons set forth infra, we affirm.

Viewed in the light most favorable to the nonmovant, the record shows that BCI is a company based out of Southern California that develops, manufactures, markets, and services biomedical testing equipment for medical facilities. In furtherance of this business, BCI employs field-service engineers, whose responsibilities include traveling to BCI’s clients’ medical facilities, usually in a vehicle provided by BCI, and performing onsite maintenance and repair of BCI equipment. At the time of the incident giving rise to this case, Wilson had been employed as a field-service engineer for BCI since 1999, and serviced accounts in South Georgia, including the Albany area.

On July 10, 2013, Wilson traveled in a company van to the Albany Area Primary Healthcare (“AAPH”) facility to perform maintenance work on BCI equipment. Upon arriving at the facility around 10:00 a.m., Wilson entered and saw that the equipment he was there to service was currently in use and, thus, he could not immediately begin working on it. Consequently, Wilson went back outside to the facility’s parking lot where he found Lucas, an AAPH lab technician whom he had known for several years, taking a personal break. After chatting for a few minutes, the two men started heading back toward the facility, at which point Lucas mentioned that several vehicles in the parking lot had been broken into recently.

This information concerned Wilson because, although doing so violated company policy, he regularly took his personal handgun with him while traveling for BCI. And now worried that his handgun might be stolen, Wilson retrieved it from the van and followed Lucas back toward the entrance of the medical facility. Then, shortly after entering the building, Wilson attempted to clear the weapon, but as he did, the gun discharged, striking Wilson in the hand and Lucas in the abdomen. Emergency medical personnel quickly arrived, and both men were transported to a local hospital for treatment. Two days later, BCI terminated Wilson’s employment for violating company policy by transporting his handgun in a company vehicle.

Thereafter, Lucas filed a lawsuit against Wilson and BCI, alleging that Wilson’s negligence resulted in his injuries and that BCI was liable for Wilson’s conduct under theories of respondeat superior and negligent supervision. BCI answered and, following discovery, filed a motion for summary judgment, arguing that, as a threshold matter, it was immune from firearm-related tort liability under OCGA § 16-11-135, and that, regardless, it was not liable under Lucas’s claims of respondeat superior or negligent supervision. Lucas responded, and the trial court held a hearing on the matter, after which it granted summary judgment in favor of BCI as to all of Lucas’s claims. This appeal follows.

At the outset, we note that summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” If summary judgment is granted by a trial court, it enjoys no presumption of correctness on appeal, “and an appellate court must satisfy itself de novo that the requirements of OCGA § 9-11-56 (c) have been met.” Moreover, in our de novo review of a trial court’s grant of a motion for summary judgment, we are charged with “viewing the evidence, and all reasonable conclusions and inferences drawn from the evidence in the light most favorable to the nonmovant.” With these guiding principles in mind, we turn now to Lucas’s specific claims of error.

1. Lucas contends that the trial court erred in granting summary judgment, arguing that, under the circumstances at issue here, BCI is not immune from firearm-related tort liability under OCGA § 16-11-135. We disagree.

Tasked in this matter with construing statutory language, we necessarily begin our analysis with “familiar and binding canons of construction.” Indeed, in considering the meaning of a statute, our charge as an appellate court is to “presume that the General Assembly meant what it said and said what it meant.” And toward that end, we must afford the statutory text its plain and ordinary meaning, consider the text contextually, read the text “in its most natural and reasonable way, as an ordinary speaker of the English language would,” and seek to “avoid a construction that makes some language mere surplusage.” In summary, when the language of a statute is “plain and susceptible of only one natural and reasonable construction, courts must construe the statute accordingly.”

Turning to the statute at issue, OCGA § 16-11-135 (e), which was enacted in 2008 as part of comprehensive legislation regarding firearm use, provides:

No employer, property owner, or property owner’s agent shall be held liable in any criminal or civil action for damages resulting from or arising out of an occurrence involving the transportation, storage, possession, or use of a firearm, including, but not limited to, the theft of a firearm from an employee’s automobile, pursuant to this Code section unless such employer commits a criminal act involving the use of a firearm or unless the employer knew that the person using such firearm would commit such criminal act on the employer’s premises. Nothing contained in this Code section shall create a new duty on the part of the employer, property owner, or property owner’s agent. An employee at will shall have no greater interest in employment created by this Code section and shall remain an employee at will.

Here, there is no dispute that Lucas’s injuries and subsequent civil action arose out of Wilson’s possession and/or use of a firearm. Similarly, it is undisputed that the shooting was not the result of a criminal act by Wilson or BCI. Thus, under the plain language of the statute, BCI cannot be held liable for the firearm-related injury Lucas suffered as a result of Wilson’s alleged negligence.

Nevertheless, Lucas contends that the immunity provided by OCGA § 16-11-135 (e) does not apply here because Wilson transported and stored his handgun in a vehicle provided to him by BCI. In support of this contention, Lucas cites to limiting language in previous (alphabetically) subsections of OCGA § 16-11-135, in which prohibitions and limitations are contingent upon whether an individual keeps a handgun in his or her own private vehicle as opposed to an employer-provided vehicle. Specifically, Lucas first cites to OCGA § 16-11-135 (a), which provides:

Except as provided in this Code section, no private or public employer, including the state and its political subdivisions, shall establish, maintain, or enforce any policy or rule that has the effect of allowing such employer or its agents to search the locked privately owned vehicles of employees or invited guests on the employer’s parking lot and access thereto.

He then goes on to note that OCGA § 16-11-135 (b) provides:

Except as provided in this Code section, no private or public employer, including the state and its political subdivisions, shall condition employment upon any agreement by a prospective employee that prohibits an employee from entering the parking lot and access thereto when the employee’s privately owned motor vehicle contains a firearm or ammunition, or both, that is locked out of sight within the trunk, glove box, or other enclosed compartment or area within such privately owned motor vehicle, provided that any applicable employees possess a Georgia weapons carry license.

And finally, Lucas cites to OCGA § 16-11-135 (c) (2), which in detailing the exceptions contemplated in subsection (a), states: “Subsection (a) of this Code section shall not apply... [t]o vehicles owned or leased by an employer[.]” Then, extrapolating from the language contained in these three statutory subsections (which draw distinctions between an employee’s private vehicle and employer-provided vehicles), Lucas argues that all of the prohibitions and limitations in every subsection of OCGA § 16-11-135, including the immunity provision in subsection (e), apply only to incidents involving privately owned vehicles. We disagree. There is no textual basis for construing the exclusionary language contained in OCGA § 16-11-135 (c) so broadly as to permeate the entire statute.

Subsection (c) (2) explicitly provides that the exclusion for employer-provided vehicles pertains solely to subsection (a). In stark contrast, there is no language in subsection (e) limiting the scope of employer immunity to incidents involving employee-owned vehicles; nor is there a separate subsection of the statute expressly providing a limitation or exception to subsection (e). As a result, we construe subsection (c) (2), as it plainly states, to only apply to subsection (a). And our plain reading of the statute is in keeping with longstanding tenets of statutory construction: “expressio unius est exclusio alterius (expression of one thing implies exclusion of another) and expressum facit cessare taciturn (if some things are expressly mentioned, the inference is stronger that those not mentioned were intended to be excluded).” Indeed, if the General Assembly had desired to except incidents involving employer-provided vehicles from the immunity provision in subsection (e), it could have done so as it did with subsection (a). Accordingly, the trial court did not err in finding that, under these particular circumstances, BCI is immune from firearm-related tort liability under OCGA § 16-11-135 (c) (2) and granting summary judgment in its favor on that ground.

2. Lucas also contends that the trial court erred in granting summary judgment in favor of BCI because genuine issues of material fact remain as to whether BCI is liable for Wilson’s negligent conduct under theories of respondeat superior and negligent supervision. But given our holding in Division 1, supra, that OCGA § 16-11-135 (e) bars Lucas’s tort claims against BCI in this matter, we need not address Lucas’s remaining enumerations of error or the trial court’s analyses regarding those arguments.

Decided October 26, 2016

Daughtery, Crawford & Brown, Peter J. Daughtery, Dustin T. Brown, for appellant.

Hunton & Williams, Kurtis A. Powell, Robert T. Dumbacher; Brown & Adams, Jeffrey A. Brown, Clayton M. Adams, for appellees.

Judgment affirmed.

Phipps, P. J., and Peterson, J., concur.

        See Martin v. Herrington Mill, LP, 316 Ga. App. 696, 697 (730 SE2d 164) (2012) (“[A] de novo standard of review applies to an appeal from a grant or denial of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.” (punctuation omitted)).

       OCGA § 9-11-56 (c).

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

        Holcomb v. Long, 329 Ga. App. 515, 517 (765 SE2d 687) (2014) (punctuation omitted).

        Id. at 517 (1).

        Deal v. Coleman, 294 Ga. 170, 172 (1) (a) (751 SE2d 337) (2013) (citation and punctuation omitted); see also Arby’s Restaurant Group, Inc. v. McRae, 292 Ga. 243, 245 (1) (734 SE2d 55) (2012) (same); Martinez v. State, 325 Ga. App. 267, 273 (2) (750 SE2d 504) (2013) (same).

        See Deal, 294 Ga. at 172 (1) (a) (“To that end, we must afford the statutory text its plain and ordinary meaning.” (citation and punctuation omitted)); State v. Able, 321 Ga.App. 632, 636 (742 SE2d 149) (2013) (“A judge is charged with interpreting the law in accordance with the original and/or plain meaning of the text at issue (and all that the text fairly implies). . . .”).

        See Arizona v. Inter Tribal Council of Arizona, Inc.,_U. S._(II) (B) (133 SCt 2247, 2254, 186 LE2d 239) (2013) (“Words that can have more than one meaning are given content, however, by their surroundings.” (citation and punctuation omitted)); Deal, 294 Ga. at 172 (1) (a) (“[W]e must view the statutory text in the context in which it appears[.]”); see also Tibbles v. Teachers Retirement Sys. of Ga., 297 Ga. 557, 558 (775 SE2d 527) (2015) (“The common and customary usages of the words are important, but so is their context.” (citation and punctuation omitted)).

        Deal, 294 Ga. at 172-73 (1) (a); see also Luangkhot v. State, 292 Ga. 423, 424 (1) (736 SE2d 397) (2013) (same).

        In the Interest of L. T., 325 Ga. App. 590, 592 (754 SE2d 380) (2014) (citation and punctuation omitted); see also Ga. Transmission Corp. v. Worley, 312 Ga. App. 855, 856 (720 SE2d 305) (2011) (same).

        Holcomb, 329 Ga. App. at 518 (1) (punctuation omitted); see also Deal, 294 Ga. at 173 (1) (a) (“[I]f the statutory text is clear and unambiguous, we attribute to the statute its plain meaning, and our search for statutory meaning is at an end.” (punctuation omitted)).

        See Ga. L. 2008, p. 1199, § 7.

        See OCGA § 16-11-135 (e).

        See OCGA § 16-11-135 (c) (2) (“Subsection (a) of this Code section shall not apply ... [t]o vehicles owned or leased by an employer [.] ”).

        Turner v. Ga. River Network, 297 Ga. 306, 308 (773 SE2d 706) (2015) (punctuation omitted); see also Alexander Props. Group, Inc. v. Doe, 280 Ga. 306, 309 (1) (626 SE2d 497) (2006) (holding that based on the principles of expressum facit cessare taciturn and expressio unius est exclusion alterius, the list of actions in a statute is presumed to exclude actions not specifically listed); Hammock v. State, 277 Ga. 612, 615 (3) (592 SE2d 415) (2004) (holding that because one subsection of statute expressly excluded application of defense of habitation between members of the same family, other sections that did not contain such limiting language showed the General Assembly’s intent to allow such defense).

        See WMW, Inc. v. Am. Honda Motor Co., 311 Ga. App. 1, 4 (1) (714 SE2d 689) (2011) (holding that if the General Assembly had intended for a corporate “dealership” or “dealer” to be defined according to the corporation’s facilities, it could have done so as it did with a noncorporate or individual dealer in another section of the statute).

        See Banks v. Brotherhood Mut. Ins. Co., 301 Ga. App. 101, 104 (2) (686 SE2d 872) (2009) (“A grant of summary judgment must be affirmed if right for any reason. It is the grant itself that is to be reviewed for error, and not the analysis employed.” (punctuation omitted)).


source: Caselaw Access Project

author: BARNES, Presiding Judge.

license: Public Domain

text:
    A16A1328.
    WILLS v. CLAY COUNTY et al.
    (793 SE2d 432)
   BARNES, Presiding Judge.

Bobby Wills appeals from the order of the superior court affirming the award of the Georgia Board of Workers’ Compensation, which granted Johnnie Brown’s claim for benefits because of an injury he suffered while under Wills’ employ For the reasons that follow, we affirm.

“Upon appeal from an award of the State Board of [Workers’] Compensation granting compensation, evidence will be construed in a light most favorable to [the] party prevailing before the board.” Howard Sheppard, Inc. v. McGowan, 137 Ga. App. 408, 410 (2) (224 SE2d 65) (1976). “It is axiomatic that the findings of the State Board of Workers’ Compensation, when supported by any evidence, are conclusive and binding.” Chambers v. Monroe County Bd. of Commrs., 328 Ga. App. 403, 404 (762 SE2d 133) (2014).

So viewed, the evidence shows that Wills bid on a construction project to renovate a community gymnasium for Clay County. When Clay County accepted Wills’ bid for the construction project, it asked him to sign a contract that memorialized the details of their agreement. The contract included a provision in Article 17 that required Wills to supply his additional workers with workers’ compensation insurance. However, before signing the contract, Wills told the county that the law did not require him to have the insurance, and the Article was removed from the contract.

To complete the project, Wills hired the claimant Brown and two other men. Wills and Brown had a previous working relationship for six to seven years before this project, and Wills would usually reach out to Brown first when hired for a new project. Wills would pay Brown in cash, and they had an unwritten agreement that if anyone got hurt on a job, that person would be responsible for his own medical bills. During the project for Clay County, Brown slipped off the roof and injured his leg, which affected his ability to return to work.

Brown filed a claim against Wills and Clay County, as the statutory employer, with the Georgia Board of Workers’ Compensation. The Board granted Brown’s claim against Wills but denied his claim against the county, finding that the county was not a statutory employer. Brown appealed the award to the Appellate Division of the Board, and Wills filed a cross-appeal. The Appellate Division affirmed the Board’s initial finding, and the superior court thereafter affirmed under the any evidence standard.

1. Wills contends that the superior court erred in affirming the Appellate Division’s finding that he had at least three employees regularly in service, which subjected him to the provisions of the Workers’ Compensation Act. We disagree.

OCGA § 34-9-2 (a) (2) reads in pertinent part: “This chapter shall not apply to ... any person, firm, or private corporation, including any public service corporation, that has regularly in service less than three employees in the same business within this state, unless such employees and employers voluntarily elect to be bound[.]” Wills argues that although he had three additional people for the county job, these employees were not “regularly in service.” The burden of showing that the employer has the requisite number of employees to be subject to the Act rests upon the claimant. Goolsby v. Wilson, 150 Ga. App. 611, 612 (1) (258 SE2d 216) (1979).

The phrase “regularly in service” “has reference to such employment as is more or less permanently adapted to the business of the employer at the particular time, and continues through a reasonably definite period of time and possesses the characteristics as applied to the business of being unvarying in practice^]” Jones v. Cochran, 46 Ga. App. 360 (167 SE 751) (1933) (holding a bakery business that hired the requisite amount of people only certain times of the year was subject to the Workers’ Compensation Act). Additionally,

[t]he word “regularly,” as used in the statute, refers to the question whether the occurrence is or is not an established mode or plan in the operation of the business, and has no reference to the constancy of the occurrence. The word “regularly” is not synonymous with “constantly” or “continuously” The work may be intermittent and yet regular.

McDonald v. Seay, 62 Ga. App. 519, 520 (8 SE2d 796) (1940) (finding that an employer who admitted to hiring the requisite number of employees 30 percent of the time was subject to the Act).

At the hearing, Brown testified that he and Wills have worked with an additional person about two to three times a year and Wills testified that near the time of the county job, he had two other jobs for which he had hired three to four employees. We have held that an employer is subject to the Workers’ Compensation Act if the volume of the business increases such that an employer needs to hire more people, and such that the employees were likely to be retained for a reasonably definite amount of time, during which the work they were employed for was unvarying and steadily pursued. Jones, 46 Ga. App. at 360. Wills was in the practice of hiring additional employees when a construction project required it.

Viewing the evidence in the light most favorable to Brown, we find no error in the superior court’s order affirming the decision of the Appellate Division, which found that Wills employed three employees regularly and, thus, was subject to the Workers’ Compensation Act. Cox v. Advoni, 222 Ga. App. 413, 414 (474 SE2d 290) (1996).

2. Wills also contends that the superior court erred in affirming the Appellate Division’s finding that Clay County was not a statutory employer pursuant to OCGA § 34-9-8 (d). We find no error.

OCGA § 34-9-8 (a) lists the entities that may be considered statutory employers subject to the Workers’ Compensation Act, which are a principal contractor, an intermediate contractor, and a subcontractor. Typically,

[ojwners or entities merely in possession or control of the premises would not be subject to workers’ compensation liability as statutory employers, except in the isolated situation where the party also serves as a contractor for yet another entity and hires another contractor to perform the work on the premises.

Creeden v. Fuentes, 296 Ga. App. 96, 98 (1) (673 SE2d 611) (2009) (citation and punctuation omitted).

“In ordinary meaning and common usage, therefore, an owner who undertakes to execute a work or complete a project under his own general supervision, contracting with others for specialized services, is not a ‘principal contractor.’ ” Yoho v. Ringier of America, 263 Ga. 338, 342 (434 SE2d 57) (1993) (citation and punctuation omitted). Therefore, an owner or entity in control of the property is not subject to the Act unless “the party also serves as a contractor for yet another entity and hires another contractor to perform the work on the premises.” Id. at 340 (citation and punctuation omitted). This is not the case in the present action.

Clay County owned the gymnasium where Brown was injured, but did not have control over Wills’ construction project or the management of his employees. Wills and the county discussed some of the details of the project under the initial contract, including payment and supplies, but then the county stepped back and Wills undertook to execute the contract. The county had no direct control over Wills’ employees, and the superior court did not err in affirming the Appellate Division’s determination that the county was not a statutory employer.

3. Lastly, Wills contends that the superior court erred in affirming the Appellate Division’s finding that he wilfully failed to obtain workers’ compensation coverage and assessing a penalty and attorney fees against him.

OCGA § 34-9-121 requires an employer liable under the Act to secure and maintain insurance against its liability to pay benefits to injured employees, or to provide sufficient financial information for the Board to determine the employer’s ability to self-pay. OCGA § 34-9-126 (b) provides that if an employer who is subject to the Act “refuses or willfully neglects” to file evidence with the Board showing his compliance with OCGA § 34-9-121, the Board may assess an additional ten percent compensation to a claimant and “shall also fix a reasonable attorney’s fee to be paid by the employer to the representative of the employee.”

In the present case, Wills argues that he should not be assessed a penalty and attorney fees because the law did not require him to be insured and therefore he did not “willfully fail” to obtain insurance. As discussed supra, in Division 1, however, the superior court did not err in affirming the Appellate Division’s conclusion that Wills was subject to the Workers’ Compensation Act. Unlike the attorney fee provision of OCGA § 34-9-108 (b), under which the Board may assess fees upon making a determination that a claim was brought or defended against unreasonably, OCGA § 34-9-126 (b) makes mandatory an award of attorney fees for failure to obtain coverage. Accordingly, we find no error in the superior court’s affirmance of the attorney fee award against Wills.

Decided October 26, 2016.

C. Todd Ross, Eric M. Nestale, for appellant.

Hall Booth Smith, W. Brian Mallow, for appellees.

The statute also grants the Board discretion on whether to award penalties. OCGA § 34-9-126 (b). Some evidence supports the Board’s factual finding that Wills knew he would need three workers besides himself to complete the job but told the county he was not required to obtain coverage under the Act. Therefore, the superior court also did not err in affirming the Board’s conclusion that Wills wilfully violated the Act by failing to maintain coverage and in the assessment of a penalty and attorney fees.

Judgment affirmed.

Boggs and Rickman, JJ., concur.

       Clay County’s motion to strike this enumeration of error is denied.


author: Dillard, Judge.

text:
    A16A1371.
    In re WHITTLE.
    (793 SE2d 123)
   Dillard, Judge.

Clay Whittle, sheriff of Columbia County, Georgia, appeals from the trial court’s denial of his motion to quash a subpoena filed by Carneluis White to obtain the investigative file maintained by the sheriff’s department for charges upon which the State sought to revoke his probation. Whittle argues on appeal that the trial court erred in denying the motion to quash because the court’s order (1) grants previously convicted defendants greater access to investigative-file information than similarly situated individuals who have merely been indicted; (2) grants previously convicted defendants an opportunity to bypass the reciprocal discovery process; (3) compels production of investigative-file documents despite a lack of any showing that the materials are relevant, material, or favorable to White’s defense, or that the materials cannot be otherwise obtained; and (4) fails to recognize that White waived his right to subpoena the file when presented with an opportunity to examine the file during cross-examination at the probation-revocation hearing. For the reasons set forth infra, we affirm.

The record reflects that in August 2013, White pleaded guilty to the felony offenses of theft by deception and theft by receiving stolen property He was thereafter sentenced to ten years probation on each count, to run concurrent with one another. But on June 4, 2015, the State filed a petition to revoke White’s probation, alleging that he had violated the terms of his probation by, inter alia, “being charged with the new offense of [t]heft by conversion (2 cts.) by the Columbia County Sheriff’s [Department] on or about 3/20/2015.” As a result, White was ordered to show cause why his probation should not be revoked or modified.

On October 29, 2015, White served Whittle with a subpoena for the production of evidence in preparation for his probation-revocation hearing. Specifically, he sought

[a]ny and all incident reports, written witness statements, arrest reports, investigation notes, documents, etc.f] connected with [his] arrest by the Columbia County Sheriff’s Office on or about March 20, 2015, or connected with the Sheriff’s Office charging [him] with theft by conversion on or about the same date. Documents include any written agreements between Mr. White [and the alleged victims].

Whittle refused to comply with the subpoena for evidence, citing exceptions to the Open Records Act, and on November 9, 2015, White filed a motion to enforce the subpoena. In response, Whittle filed an emergency motion to quash the subpoena, again citing exceptions to the Open Records Act, and White filed a brief in opposition to the emergency motion. Whittle then responded to the brief in opposition, adding arguments that the subpoena was unreasonable and oppressive, and thereafter, the trial court heard testimony as to the probation revocation and argument as to the motion to enforce subpoena on November 10, 2015.

On January 22, 2016, the trial court issued an order denying the motion to quash the subpoena. The court also later issued an order permitting an application for interlocutory appeal, which we granted. Whittle’s appeal follows, in which he makes the enumerations of error set forth supra.

At the outset, we note that a trial court’s ruling on a motion to quash a subpoena is reviewed for an abuse of discretion. And whether or not the trial court should quash a subpoena “depends on the nature and scope of the discovery request.” With these guiding principles in mind, we will now address Whittle’s enumerations of error.

1. First, Whittle argues that the trial court’s denial of the motion to quash White’s subpoena grants previously convicted defendants greater access to investigative-file information than similarly situated individuals who have merely been indicted. Separately, but similarly, Whittle also argues that the trial court’s denial of the motion to quash grants previously convicted defendants an opportunity to bypass the reciprocal-discovery process. We disagree that the trial court erred in denying the motion to quash in light of these strictly policy-based arguments.

Whittle strenuously argues that, as a policy matter, the trial court’s denial of the motion to quash was erroneous because the decision “essentially grants a convicted criminal at a revocation hearing who is charged with a new offense greater rights than an individual with no criminal record who is indicted on felony charges” and allows a probationer to “circumvent the discovery parameters set forth by the legislature and obtain access to the investigative file . . . via subpoena at any time.” Whittle contends that the General Assembly could not have intended for this to be possible. However, despite Whittle’s many policy-based assertions, “[t]he General Assembly does not enact a general intention; it enacts statutes.” And statutes have words with a reasonable range of meaning “that we interpret and apply,” rather than some “amorphous general intention.” This is because, in the context of legislation, discerning “collective intent is pure fiction because dozens if not hundreds of legislators have their own subjective views on the minutiae of bills they are voting on—or perhaps no views at all because they are wholly unaware of the minutiae.” Thus, in considering the meaning of a statute, our charge as an appellate court is to “presume that the General Assembly meant what it said and said what it meant.” And toward that end, we must afford the statutory text its plain and ordinary meaning, consider the text contextually, read the text “in its most natural and reasonable way, as an ordinary speaker of the English language would,” and seek to “avoid a construction that makes some language mere surplusage.” In summary, when the language of a statute is “plain and susceptible of only one natural and reasonable construction, courts must construe the statute accordingly.”

Specifically, OCGA § 24-13-23 permits subpoenas for the production of evidence, which a trial court may, upon written motion, (1) quash or modify if the subpoena is unreasonable and oppressive, or (2) condition denial of the motion “upon the advancement by the person [on] whose behalf the subpoena is issued of the reasonable cost of producing the evidence.” Moreover, OCGA § 24-13-20 provides that Article 2 of Chapter 13 to Title 24 applies to “all civil proceedings and, insofar as consistent with the Constitution, to all criminal proceedings.” And the subpoena power is, of course, contained within Georgia’s Evidence Code, which is entirely separate from Georgia’s Criminal Procedure Code. Finally, Georgia’s Criminal Procedure Code contains provisions for reciprocal discovery, which are applicable to “all criminal cases in which at least one felony offense is charged,” as well as the discovery provisions applicable to misdemeanor cases.

Here, of course, we are considering and applying the forgoing statutory provisions in the context of a probation-revocation proceeding, which the Supreme Court of the United States has held “is not a stage of a criminal prosecution,” though probationers are certainly entitled to due process. And indeed, we have explained that “[a] criminal prosecution and a probation[-]revocation proceeding based on the same occurrence actually have nothing to do with each other.” Instead, a probation-revocation proceeding is “somewhat like an application for a change of venue, which is of a civil nature,” though it is not completely a civil proceeding. Furthermore, because probation-revocation proceedings are not criminal trials, we have previously held that a trial court cannot err in denying a Brady motion filed in reference to such a proceeding.

Thus, the power to subpoena evidence and the requirements of reciprocal discovery are entirely separate matters within the Georgia Code, just as “[a] criminal prosecution and a probation revocation proceeding based on the same occurrence .. . have nothing to do with each other.” Nevertheless, in his first two enumerations of error, Whittle argues that permitting probationers to subpoena investigative files for purposes of probation-revocation hearings (1) provides probationers with greater rights of discovery than people merely indicted for a crime; (2) allows probationers to bypass nonparty and witness protections afforded by the reciprocal-discovery statute; (3) places an undue burden upon sheriff’s offices and police departments; (4) removes the scope of proper criminal discovery from the hands of attorneys, who are better able to manage such requests; (5) materially prejudices co-defendants who do not have similar early access to discovery materials; and (6) greatly prejudices district attorney offices by permitting a probationer to “opt out” of reciprocal discovery by obtaining investigative files directly from sheriff’s offices. But even if we were inclined to agree with Whittle on all of these points, we are not at liberty to graft his policy concerns onto statutory text that is plain and unambiguous. If Whittle’s policy arguments are ultimately to prevail, he must make them to our General Assembly, not this Court. Judges are charged with “interpreting the law in accordance with the original and/or plain meaning of the text at issue (and all that the text fairly implies), as well as with faithfully following the precedents established by higher courts.” And both our constitutional system of government and the law of this State “prohibit the judicial branch from amending a statute by interpreting its language so as to change the otherwise plain and unambiguous provisions . . . .”

And here, nothing in the plain language of the relevant statutes prohibits a probationer from obtaining the file at issue by way of a subpoena duces tecum in anticipation of a probation-revocation hearing. Thus, so long as White met his initial burden of showing that the documents sought were relevant (which the trial court determined he did), and so long as the trial court did not deem the subpoena unreasonable and oppressive (which it did not), the court did not abuse its discretion by denying Whittle’s motion to quash.

2. Next, Whittle argues that the trial court’s denial of the motion to quash the subpoena compels production of investigative-file documents despite a lack of any showing that the materials are relevant, material, or favorable to White’s defense, or that the materials cannot be otherwise obtained.

It is well established that when a motion to quash is filed, “the party serving the subpoena has the initial burden of showing the documents sought are relevant.” And here, in its order denying Whittle’s motion to quash, the trial court determined that White met this burden. Indeed, the court noted that White had shown, “and [Whittle] did not dispute, that the records sought would be relevant to the determination of whether [White] violated either statute” criminalizing theft by conversion. The court concluded that the investigatory documents sought from the sheriff would likely reflect “the words, conduct, demeanor, motive, and all other circumstances connected with an act,” which may be considered by a trier of fact, under OCGA § 16-2-6, to determine intent. Additionally, the court noted that “any written contracts would clearly be relevant to determine if [White] was in violation of the agreements with the complaining witnesses.” Thus, the trial court found that White had met his burden of showing that the requested items were relevant. And because Whittle challenges the relevancy of the requested documents for the first time on appeal, we need not consider this argument. Nevertheless, given the trial court’s wide discretion to determine what evidence is relevant, Whittle has likewise failed to show that the trial court abused its discretion.

Additionally, Whittle cites to no authority in support of his suggestion that the trial court should have quashed the subpoena because White could have obtained the information through other means (i.e., by the reciprocal discovery provisions for purposes of trial upon the new charges, an argument rejected in Division 1 supra). Thus, we deem this argument abandoned for appellate review.

Moreover, to the extent that Whittle argues that the subpoena was unreasonable or oppressive based upon the policy considerations set forth in Division 1, supra, we reiterate that broad policy arguments should be directed toward the General Assembly and not to this Court. As for the suggestion that White’s subpoena is oppressive because it “requests an entire investigative file,” the trial court determined that the subpoena was neither unreasonable nor oppressive because it “only sought documents related to the specific investigation forming the basis for the new charges against [White],” because “[c]ompliance would mean the production of a file the Sheriff has already compiled for evidentiary purposes and use in court,” and because the “cost and time for production would be minimal.” As a result, we cannot say that the trial court abused its discretion in this regard either.

Decided October 26, 2016.

Hull Barrett, William J. Keogh III, Brooks K. Hudson, for appellant.

Thomas E. McCants, John M. Kraft, for appellee.

3. Finally, Whittle argues that the trial court’s denial of his motion to quash the subpoena fails to recognize that White waived his right to subpoena the investigative file when presented with an opportunity to examine same during cross-examination at the probation-revocation hearing. But Whittle provides no citation to authority in support of this final enumeration of error and, thus, has abandoned it for appellate review.

For all of the foregoing reasons, we affirm the lower court’s denial of Whittle’s motion to quash White’s subpoena.

Judgment affirmed.

Phipps, P. J., and Peterson, J., concur.

       When the trial court denied Whittle’s motion to quash, it modified the subpoena to delete instances of “etc.”

       In his initial appellate brief, Whittle does not reassert his argument that OCGA § 50-18-72, which excepts certain records from required public disclosure under the Open Records Act, see OCGA § 50-18-70 et seq., applies to exclude disclosure of those same records for purposes of a subpoena duces tecum filed under Georgia’s Evidence Code, see OCGA § 24-13-23. We decline to adopt White’s suggestion that we reform the enumerations of error to address arguments that Whittle has outright abandoned and waived for appellate review. And although Whittle argues the applicability of the Open Records Act in his reply brief, we do not consider an expansion of arguments contained in a reply brief. See Leonard v. State, 325 Ga. App. 577, 577 n.1 (754 SE2d 155) (2014) (holding that appellant’s attempt to expand the scope of his arguments with additional argument for reversal in reply brief was an assertion of an argument “beyond the scope of the enumerated error and will not be considered by this Court”); Perez v. Atlanta Check Cashers, Inc., 302 Ga. App. 864, 867 n.3 (692 SE2d 670) (2010) (“[A] party may not use his reply brief to expand his enumeration of errors by arguing the incorrectness of a trial court’s ruling not mentioned in the enumeration.” (punctuation omitted)).

       Though it heard testimony on the issue as a courtesy to witnesses who had been waiting for hours to testify, the court continued the probation-revocation matter pending resolution of this appeal.

        See Price v. State, 269 Ga. 222, 224 (2) (498 SE2d 262) (1998) (noting that a trial court has the discretion to quash an unreasonable and oppressive subpoena); Bazemore v. State, 244 Ga. App. 460, 463 (2) (535 SE2d 830) (2000) (“Atrial court has discretion to quash an unreasonable and oppressive subpoena, and abuse of discretion is the appropriate standard of review in such situations.” (punctuationomitted)); Townsend v. State, 236 Ga.App. 530, 532 (3) (511 SE2d 587) (1999) (same).

        Bazemore, 244 Ga. App. at 463-64 (2) (punctuation omitted); see also Price, 269 Ga. at 224 (2) (same); Townsend, 236 Ga. App. at 532 (3) (same).

        Malphurs v. State, 336 Ga.App. 867, 870-71 (785 SE2d 414) (2016).

        Id. at 871.

       Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Statutory Texts 392 (1st ed. 2012); see also Malphurs, 336 Ga.App. at 871 (noting that “our concern is with the actual text of statutes, not the subjective statements of individual legislators expressing their personal intent in voting for or against a bill”).

        Deal v. Coleman, 294 Ga. 170, 172 (1) (a) (751 SE2d 337) (2013) (citation and punctuation omitted); see also Arby’s Restaurant Group, Inc. v. McRae, 292 Ga. 243, 245 (1) (734 SE2d 55) (2012) (same); Martinez v. State, 325 Ga.App. 267, 273 (750 SE2d 504) (2013) (same).

        See Deal, 294 Ga. at 172 (1) (a) (“To that end, we must afford the statutory text its plain and ordinary meaning.” (citation and punctuation omitted)); State v. Able, 321 Ga.App. 632, 636 (742 SE2d 149) (2013) (“A judge is charged with interpreting the law in accordance with the original and/or plain meaning of the text at issue (and all that the text fairly implies). . . .”).

        See Arizona v. Inter Tribal Council of Arizona, Inc.,_U. S._(II) (B) (133 SCt 2247, 2254, 186 LE2d 239) (2013) (“Words that can have more than one meaning are given content, however, by their surroundings.” (citation and punctuation omitted)); Deal, 294 Ga. at 172 (1) (a) (“[W]e must view the statutory text in the context in which it appears[.]”); see also Tibbles v. Teachers Retirement Sys. of Ga., 297 Ga. 557, 558 (775 SE2d 527) (2015) (“The common and customary usages of the words are important, but so is their context.” (citation and punctuation omitted)).

        Deal, 294 Ga. at 172-73 (1) (a); see also Luangkhot v. State, 292 Ga. 423, 424 (1) (736 SE2d 397) (2013) (“[When] the language of a statute is plain and susceptible to only one natural and reasonable construction, courts must construe the statute accordingly!.]” (punctuation omitted)).

        In the Interest of L. T., 325 Ga. App. 590, 592 (754 SE2d 380) (2014) (citation and punctuation omitted); accord Ga. Transmission Corp. v. Worley, 312 Ga. App. 855, 856 (720 SE2d 305) (2011).

        Holcomb v. Long, 329 Ga.App. 515, 518 (1) (765 SE2d 687) (2014) (punctuationomitted); see also Deal, 294 Ga. at 173 (1) (a) (“[I]f the statutory text is clear and unambiguous, we attribute to the statute its plain meaning, and our search for statutory meaning is at an end.” (punctuation omitted)).

       OCGA § 24-13-23 (a) (“A subpoena may also command the person to whom it is directed to produce the evidence designated therein.”).

       OCGA § 24-13-23 (b) (1).

       OCGA § 24-13-23 (b) (2).

        See generally OCGA § 24-1-1 et seq.

        See generally OCGA § 17-1-1 et seq.

        See OCGA § 17-16-4 (providing for the mutual disclosure of evidence by the prosecution and defendants); see also State v. Lucious, 271 Ga. 361, 362 (1) (518 SE2d 677) (1999) (“[Georgia’s Criminal Procedure Discovery Act], which applies only to those cases in which the defendant elects by written notice to have it apply, broadens discovery in felony cases by imposing corresponding discovery obligations upon both the defendant and the State. ... [T]he Act provides a comprehensive scheme of reciprocal discovery in criminal felony cases.”).

       OCGA § 17-16-2. But see OCGA § 17-16-20 (providing that Article 2 to Chapter 16 of Title 17 is applicable to, inter alia, “felony cases docketed, indicted, or in which an accusation was returned prior to January 1, 1995, if the prosecuting attorney and the defendant do not agree in writing that the provisions of Article 1 of this chapter shall apply”).

        See OCGA § 17-16-20 (providing that Article 2 to Chapter 16 of Title 17 is applicable to, inter alia, misdemeanor cases); see also Ford v. State, 285 Ga. App. 106, 109 (2) (645 SE2d 590) (2007) (“The discovery provisions applicable to misdemeanor prosecutions are not the same as those applicable to felony prosecutions. In a misdemeanor case, the elective, optional mutual discovery provisions of OCGA § 17-16-1 et seq. are not available.” (punctuation omitted)); Brooks v. State, 267 Ga. App. 663, 664 (1) (600 SE2d 737) (2004) (same).

        Gagnon v. Scarpelli, 411 U. S. 778, 782 (II) (93 SCt 1756, 36 LE2d 656) (1973).

        Brown v. State, 294 Ga. App. 1, 2 (1) (668 SE2d 490) (2008) (punctuation omitted) (emphasis supplied); accord Walker v. State, 289 Ga. App. 879, 882 (8) (658 SE2d 375) (2008); Morris v. State, 166 Ga. App. 137, 140 (2) (303 SE2d 492) (1983).

        Sellers v. State, 107 Ga. App. 516, 518 (130 SE2d 790) (1963) (punctuation omitted).

        See State v. Huckeba, 258 Ga. App. 627, 632 (2) (b) (574 SE2d 856) (2002) (physical precedent only) (acknowledging that a probation-revocation hearing is not a criminal proceeding but noting that it is also not “completely a civil proceeding” because probation “is an act of grace extended to one already convicted of a crime in a trial providing the full protection of due process of law” (punctuation omitted)).

        Brady v. Maryland, 373 U. S. 83 (83 SCt 1194, 10 LE2d 215) (1963).

        See Baltimore v. State, 165 Ga.App. 741, 742 (1) (302 SE2d 427) (1983) (“[T]he defendant sought discovery with reference to the offense of shoplifting which was the primary ground alleged in a petition for revocation of defendant’s probation. A revocation hearing is not a criminal trial. Therefore, the trial court could not err in denying a Brady motion for discovery with reference to the charge of shoplifting.” (citations omitted)); see also Poole v. State, 167 Ga. App. 321, 322 (306 SE2d 394) (1983) (“[A] revocation proceeding is not a criminal trial and for that reason the trial court does not err in denying a Brady motion for discovery with reference to a criminal charge [.] ”).

        Brown, 294 Ga. App. at 2 (1) (punctuation omitted); accord Walker, 289 Ga. App. at 882 (8); Morris, 166 Ga. App. at 140 (2).

        See OCGA § 17-16-4 (d) (“Upon a sufficient showing that a discovery required by this article would create a substantial threat of physical or economic harm to a witness, the court may at any time order that the discovery or inspection be denied, restricted, or deferred or make such other order as is appropriate.”).

        See Gary v. State, 338 Ga. App. 403, 409 (2) (790 SE2d 150) (2016) (“The remedy for this problem ... lies with the General Assembly, not with this Court.”); Ariemma v. Perlow, 223 Ga. App. 360, 363 (477 SE2d 590) (1996) (“Although this may seem a harsh result, it is an issue for the legislature to address, not the courts.”).

        Able, 321 Ga. App. at 636.

        Gary, 338 Ga. App. at 409-10 (2); see also Richardson v. State, 276 Ga. 639, 640 (1) (581 SE2d 528) (2003) (“Courts of last resort must frequently construe the language of a statute, but such courts may not substitute by judicial interpretation language of their own for the clear, unambiguous language of the statute, so as to change the meaning.” (punctuation omitted)).

        Cf. OCGA § 42-8-40 (“All reports, files, records, and information of whatever kind relative to the supervision of probationers and parolees are declared to be confidential and shall be available only to the probation system officials, the judge handling a particular case, the Board of Community Supervision, DCS, the Department of Corrections, the Department of Juvenile Justice, and the State Board of Pardons and Paroles, as appropriate. Such reports, files, records, and information shall not be subject to process of subpoena; provided, however, that the commissioner of community supervision may by written order declassify any such records.”); Penney v. State, 157 Ga. App. 737, 739 (3) (278 SE2d 460) (1981) (construing prior version of OCGA § 42-8-40 to hold that because the relevant “records have been declared confidential and not subject to process of subpoena by statute, the trial court did not err in refusing to admit testimony relating to them” when appellant “served the chief probation officer . . . with a subpoena duces tecum requiring in part that he produce at [the] probation revocation hearing ‘all records and petitions to revoke probation in Dougherty County in which the petition to revoke alleged that the probationer had been convicted of D.U.I. within the past two years’ ”).

        See Bazemore, 244 Ga. App. at 460 (1) (“When a motion to quash is filed, the party serving the subpoena has the initial burden of showing the documents sought are relevant.” (punctuation omitted)); Tuttle v. State, 232 Ga. App. 530, 531-32 (2) (502 SE2d 355) (1998) (“The defense must make a prima facie showing that the requested materials are relevant to his defense and that he has a right to the materials].]”); see also Hickey v. RREF BB SBL Acquisitions, LLC, 336 Ga. App. 411, 414 (2) (a) (785 SE2d 72) (2016) (“The only requirements placed by the Georgia legislature on discovery requested from nonparties is that the documents must be relevant and nonprivileged.” (punctuation omitted)). For additional discussion, see Division 2 infra.

        See OCGA § 24-13-23 (b) (1); see also Blake v. Spears, 254 Ga. App. 21, 23 (2) (561 SE2d 173) (2002) (“OCGA § 24-10-22 (b) (1) gives the trial court discretion upon timely motion to quash or modify such a subpoena if it is unreasonable and oppressive. This standard is tested by the peculiar facts arising from the subpoena itself and other proper sources.” (punctuation omitted)). For additional discussion, see Division 2 infra.

       It is worth noting that there may well be a simple, nonlegislative solution to this dilemma. As appellee’s counsel conceded at oral argument, the State can choose not to revoke White’s probation or seek a postponement of the probation-revocation proceeding. This prosecutorial flexibility matters greatly because until and unless such a proceeding occurs, Whittle need not produce the documents in question. See OCGA § 24-13-21 (a) (“As used in this Code section, the term ‘subpoena includes a witness subpoena and a subpoena for the production of evidence.”); OCGA § 24-13-21 (b) (“A subpoena shall state the name of the court, the name of the clerk, and the title of the proceeding and shall command each person to whom it is directed to attend and give testimony or produce evidence at a time and place specified by the subpoena.”). That said, to the extent there are public-safety concerns behind the State’s decision to seek revocation of an individual’s probation, this is not the only mechanism by which it may protect the public from those who pose a danger to society (e.g., request the denial of bail). See generally Ayala v. State, 262 Ga. 704, 705-06 (1) (425 SE2d 282) (1993).

        Bazemore, 244 Ga. App. at 460 (1) (punctuation omitted).

       (Emphasis supplied).

        See OCGA § 16-8-4 (theft by conversion); OCGA § 16-8-15 (theft by conversion of payments for property improvements).

        See, e.g., GCCFC 2007-GGP Abercorn Street Ltd. Partnership v. Abercorn Common, LLP, 316 Ga. App. 879, 881 (1) n.4 (730 SE2d 589) (2012) (“An appellate court need not consider arguments made for the first time on appeal.”).

        See Smith v. State, 290 Ga. 428, 432-33 (6) (721 SE2d 892) (2012) (“We see no error in the trial court’s refusal to enforce the subpoena duces tecum in light of the trial court’s wide discretion in determining what evidence is relevant and material.”); Davenport v. State, 316 Ga. App. 234, 241 (4) (729 SE2d 442) (2012) (“Given the trial court’s wide discretion in determining what evidence is relevant and material, [the defendant] has failed to show [on appeal from the denial of a motion for new trial] that the trial court abused its discretion in refusing to enforce the subpoena.”). Cf. Taylor v. State, 172 Ga. App. 827, 827 (1) (324 SE2d 788) (1984) (holding that trial court did not abuse its discretion in quashing subpoenas that “sought all of the driving under the influence of alcohol reports compiled by the arresting officer during the month in which defendant was arrested” because the defendant could not “point to any specific report which will cast doubt upon the officer’s credibility” and the “file can have no relevance to the guilt or innocence of the defendant in this case” (punctuation omitted)).

       We note that OCGA § 9-11-26 (b) (3) of Georgia’s Civil Practice Act provides:
      [A] party may obtain discovery of documents and tangible things otherwise discoverable . . . and prepared in anticipation of litigation or for trial by or for another party or by or for that other party’s representative ... only upon a showing that the party seeking discovery has substantial need of the materials in the preparation of his case and that he is unable without undue hardship to obtain the substantial equivalent of the materials by other means.
      Not only has this Code section not been argued, it appears to be wholly irrelevant to the issues in this appeal.

        See Court of Appeals Rule 25 (c) (2) (“Any enumeration of error which is not supported in the brief by citation of authority or argument maybe deemed abandoned.”); see also Johnson v. State, 290 Ga. App. 255, 259 (1) (d) (659 SE2d 638) (2008) (deeming abandoned an argument that was unsupported by citation to authority).

        See supra notes 31-33 and accompanying text.

        See Blake, 254 Ga. App. at 23 (2) (holding that trial court did not err in failing to quash subpoena in face of the argument that “the subpoena was unreasonable because [party] was already required to produce the same documents under the court’s preliminary injunction order” and party had largely failed to comply with the.order). Cf. Kamensky v. S. Oxygen Supply
        Co., 127 Ga.App. 343, 344 (1) (193 SE2d 164) (1972) (“The irrelevancy of most of the subpoenaed matter being recognized, the basis for the trial judge’s finding that the subpoena was unreasonable and oppressive is clearly established.”).

        See, e.g., Amaya v. State, 308 Ga. App. 460, 463-64 (3), 464 (4) (708 SE2d 28) (2011) (deeming enumerations of error abandoned when unsupported by citations to authority); see also Court of Appeals Rule 25 (c) (2) (“Any enumeration of error which is not supported in the brief by citation of authority or argument may be deemed abandoned.”).


author: Per curiam.

text:
    A16A1697.
    HILL-BLOUNT v. THE STATE.
    (793 SE2d 436)
   Per curiam.

A jury found Corey Hill-Blount guilty of armed robbery and possession of a firearm during the commission of a crime; he was acquitted of theft by receiving stolen property and possession of marijuana. Hill-Blount appeals, asserting that there was an improper communication between the court bailiff and a juror and that the trial court abused its discretion in removing the same juror after deliberations had begun. For the reasons that follow, we affirm.

Viewed in a light most favorable to the verdict, the evidence shows that two men with guns confronted the victim while she was working as a cashier at a convenience store. A third man came behind the counter and demanded money. He took a money bag and a coin box from the cash drawer and the safe. The victim could not identify the robbers because their faces were covered, but she gave police a description of the clothing worn by the perpetrators.

Later that night, an officer initiated a traffic stop on a vehicle that had a headlight out. As he approached the car, the officer noticed that the occupants were wearing clothing similar to that issued in an earlier BOLO after the robbery He also observed two of the occupants kicking items under the seat. The driver gave permission to search the car, and police discovered two guns and a large bag of change in the car. When Hill-Blount was confronted with the surveillance video showing that one of the robbers had worn the same clothing he had on when arrested, Hill-Blount confessed to the crime.

The case proceeded to trial, and, following a recharge requested during deliberations, one ofthe jurors asked, “[D]oes the past comein any way that would be relevant to this case?” The court replied that the defendant’s past would be irrelevant. In a later colloquy, Hill-Blount’s attorney expressed concern that the juror who asked the question might know something about Hill-Blount’s past, and the bailiff stated, “He asked me before they ever went back the first time if I could get him a copy of [Hill-Blount’s] criminal history, and I told him that that was not available, we didn’t have anything on him, nothing to go back to the jury” Hill-Blount’s attorney did not object to any communication between the juror and the bailiff. The attorneys and the trial judge discussed their concern about this juror bringing irrelevant information to the jury room and adjourned for the evening after deciding to address any issues with the juror in the morning.

The next morning, the jury foreman asked to address the court and counsel. According to the foreman, one juror cited to irrelevant Georgia Code sections in the jury room and another brought outside material, including a dictionary and religious books, into the jury room and persisted in reading the outside material to the other jurors, explaining that the material pertained to spiritual matters. The foreperson stated that this particular juror refused to stop reading and talking about his outside material, he would not participate in the discussion of the case with other jurors in a relevant manner, and he was “very disruptive.” The same juror had requested a recharge on intent the previous day and asked about Hill-Blount’s past criminal history The State asked that the juror be excused and replaced with the alternate due to his disregard of the court’s admonishment to decide the case solely on the evidence and law before it. Hill-Blount objected to the removal.

The trial court determined that “we have a wayward juror who has violated the directives of the Court,” excused the juror, and replaced him with the alternate. The bailiff searched the jury room and located a dictionary and several printed religious materials, including a book titled “Saint Joan of Arc’s Message for Today” and a magazine entitled “One Minute Wisdom.”

1. In his first enumeration of error, Hill-Blount asserts that during jury deliberations the court bailiff improperly communicated with the juror. According to Hill-Blount, the bailiff’s comment to the juror intimated that “there was a criminal history but it was not then ‘available’ to the jury” We find no reversible error.

The State concedes that it was improper for the bailiff to answer the juror’s question about Hill-Blount’s criminal history. See Turpin v. Todd, 271 Ga. 386, 389-390 (519 SE2d 678) (1999). However, Hill-Blount’s trial counsel waived any claim of error by not voicing an objection when he was made aware of the improper communication. See Lawson v. State, 280 Ga. App. 870, 871 (1) (635 SE2d 259) (2006) (defendant waives issue of improper communication between the bailiff and jurors when counsel fails to move for a mistrial or object to judge’s subsequent remarks to the jury); Hanifa v. State, 269 Ga. 797, 808 (6) (505 SE2d 731) (1998) (a defendant waives appellate review of an allegedly improper communication between the court and the jury when, prior to verdict, defendant is aware of the communication and fails to voice an objection). Counsel who is aware of misconduct “cannot remain silent and take the chances of an acquittal for his client, and upon failure, make it a good ground for a new trial.” Hand v. State, 205 Ga. App. 467, 468 (1) (422 SE2d 316) (1992).

Furthermore, even had trial counsel preserved the matter for appeal, Hill-Blount has failed to show that the improper communication was prejudicial. See Causey v. State, 319 Ga.App. 841, 843 (738 SE2d 672) (2013) (to disturb a jury’s verdict, the improper communication must involve “statements that were so inherently prejudicial to the defendant ‘that the verdict must be deemed inherently lacking in due process’ ”). The bailiff’s statement in this case did not involve extrajudicial information, discussion of the facts or legal issues in the case, or improper conduct by the jurors themselves. See id.

Although Hill-Blount argues that the statement implied that he had a criminal background, we do not read the bailiff’s innocuous statement to imply that Hill-Blount possessed a criminal record. When asked if he could get the jury a copy of Hill-Blount’s criminal history, the bailiff responded, “that was not available, we didn’t have anything on him, nothing to go back to the jury” If anything, this communication reflects that Hill-Blount had no criminal history, which is information favorable to the defendant. In addition, the trial judge instructed the jury that any past history would be irrelevant to its consideration in this case. This enumeration of error does not set forth a basis for reversal.

Decided October 26, 2016.

Peter D. Johnson, for appellant.

Ashley Wright, District Attorney, Joshua B. Smith, Assistant District Attorney, for appellee.

2. Hill-Blount also contends that the trial court erred in removing a juror after deliberations had begun. However, it is well established that “[t]he trial court has [broad] discretion to replace a juror with an alternate at any time in the trial, whether before or after submission to the jury.” Murray v. State, 276 Ga. 396, 398-399 (4) (578 SE2d 853) (2003). We find no abuse of discretion in this case.

The trial court here instructed the jury not to “go looking for other information,” but to decide the case solely on the testimony and the exhibits admitted into evidence. Nonetheless, the following morning, the juror brought to the jury room a dictionary and a number of religious materials, and he refused to stop reading and talking about his outside material despite admonishments from the foreman. After the foreman brought the disruptive juror’s conduct to the trial court’s attention, the trial court spoke with the juror, who explained that he wanted to find out what “intent” meant. Contrary to Hill-Blount’s assertion, the trial court did not excuse the juror “based solely on his use of a dictionary to look up a single word.” The trial court listened to the foreperson’s and juror’s statements and excused the juror after determining that the juror refused to decide the case solely on the evidence and the law charged by the trial court. Accordingly, the trial judge properly exercised his discretion in replacing this juror with the alternate. See McGuire v. State, 200 Ga. App. 509, 510 (3) (408 SE2d 506) (1991) (trial court did not err in replacing juror who violated court’s instructions by visiting crime scene).

Judgment affirmed. Division Per Curiam.

All Judges concur.

       Hill-Blount filed an earlier appeal in this court, but we dismissed it as untimely. Hill-Blount v. State, Case No. A16A0758 (dismissed April 5, 2016). The current appeal follows the trial court’s order permitting Hill-Blount to file an out-of-time appeal.


text:
    A16A1279.
    JONES v. THE STATE.
    (791 SE2d 625)
   Dillard, Judge.

Following a trial by jury, Torrell Jones was convicted of possessing a controlled substance outside of its original container, trafficking in heroin, and possessing heroin with the intent to distribute. Jones appeals from the trial court’s denial of his motion for new trial, contending that (1) the State failed to present sufficient evidence to support his conviction for trafficking in heroin; (2) the court improperly admitted into evidence a recorded telephone call between Jones and a person who did not testify at trial; (3) the court erred by permitting a law-enforcement officer to testify about the effects of heroin; (4) the court failed to consider the conviction as the “thirteenth juror” when it denied his motion for new trial; and (5) the court erred in denying a motion for mistrial after an improper comment from a State witness. For the reasons set forth infra, we affirm.

Viewed in the light most favorable to the jury’s verdict, the record reflects that in April 2012, law enforcement received information that, upon placing a phone call to a certain individual, a black Chrysler 300 would approach a Piggly Wiggly in Athens, Georgia, traveling from the east on Highway 78, for purposes of making a drug transaction. As a result of this information, law enforcement searched the area around the Piggly Wiggly and located a black Chrysler 300 parked in front of a nearby apartment. Officers then learned through a trace of the license plate that the vehicle belonged to Torrell Jones and another person not relevant to this appeal.

With this information in hand, law enforcement engaged in surveillance of the black Chrysler 300 at the apartment complex, and an officer was instructed to stop the vehicle if it left the apartment and was en route to the Piggly Wiggly following a monitored phone call. A call was then placed by an informant and recorded by law enforcement, with a detective monitoring the call as it was made. During the call, a negotiation was made for a drug transaction. Then, after the call concluded, officers observed the black Chrysler 300 depart from the apartment complex and travel to the Piggly Wiggly with Jones driving. A stop was executed, and in addition to Jones, officers encountered a passenger, Nytasia Pope, who appeared to be “very nervous.” Officers found $3,100 in cash on Jones, and a small bag containing 1.89 grams of heroin was found hidden in Pope’s private area. After interacting with Jones during the investigation, the detective who monitored the earlier call identified Jones and Pope’s voices as those heard on the receiving end of the call placed by the informant.

After their vehicle was stopped, Jones and Pope were taken back to the apartment where the vehicle had previously been parked, and officers subsequently executed a search warrant at the residence. Inside the apartment’s kitchen, officers located a tea box containing a bag of rice surrounding another plastic bag with 81.68 grams of heroin—the largest amount of heroin ever seized at one time in Athens-Clarke County. Additionally, officers found a small knife, a mortar, and a pestle, all with residue that was consistent with heroin. They also located tally sheets used to record drug transactions, a bottle of a cutting agent commonly used in the distribution of heroin, and three sets of digital scales. Finally, officers located a checkbook with Jones’s name and the address of that apartment. Jones was subsequently tried for and convicted of the offenses enumerated supra. This appeal follows.

At the outset, we note that when a criminal conviction is appealed, the appellant no longer enjoys a presumption of innocence, and the relevant question is whether, “after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” We are not at liberty to weigh the evidence or determine witness credibility, and the jury’s verdict will be upheld so long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case. With these guiding principles in mind, we turn now to Jones’s enumerations of error.

1. First, Jones challenges the sufficiency of the evidence as to his conviction for trafficking in heroin. Specifically, Jones contends that the evidence was insufficient to show that he constructively possessed the heroin discovered in the apartment and that, even if he did possess the heroin, the evidence was insufficient to show that he knew the weight of the heroin. We disagree as to both contentions.

(a) Jones jointly and, constructively possessed the heroin . Jones maintains that the evidence was insufficient to show that he constructively possessed the heroin discovered in the apartment’s kitchen. We disagree.

At the time Jones was alleged to have committed trafficking in heroin (April 23, 2012), OCGA § 16-13-31 (b) provided: “Any person who knowingly sells, manufactures, delivers, brings into this state, or has possession of 4 grams or more of . . . heroin, as described in Schedules I and II, . . . commits the felony offense of trafficking in illegal drugs[.]” It is well established that possession of drugs can be “actual or constructive, sole or joint.” A person has actual possession of a thing if he or she “knowingly has direct physical control of it at a given time.” And a person who, though not in actual possession, “knowingly has both the power and intention at a given time to exercise dominion or control over a thing is then in constructive possession of it.” Finally, if one person alone has actual or constructive possession of a thing, that person has sole possession, but “if two or more persons share actual or constructive possession of a thing, possession is joint.”

Here, Jones and Pope were jointly indicted for possessing more than 28 grams of heroin. And as we have previously held, the equal-access rule has no application when, as here, “all persons having access to the contraband are alleged to have been in joint, constructive possession of that contraband.” Of course, when constructive possession is based upon circumstantial evidence, the facts must both be consistent with the hypothesis of guilt and exclude every other reasonable hypothesis. The proved facts, however, need exclude only “reasonable hypotheses—not bare possibilities that the crime could have been committed by someone else,” and the jury generally decides questions of reasonableness.

As previously noted, the 81.68 grams of heroin were discovered inside of a tea box in the kitchen of the apartment. And during a protective sweep performed before execution of the search warrant, officers did not locate any other individuals inside the apartment. Later, officers found a checkbook inside the apartment that listed both the apartment’s address and Jones’s name. Moreover, in addition to the large amount of heroin found hidden in the tea box, officers also discovered numerous other items throughout the apartment that were related to the distribution of heroin and were not hidden—i.e., the drug-transactions tally sheet; three sets of digital scales (one of which was in the kitchen with powder residue and rice fragments); the knife, mortar, and pestle with residue consistent with heroin; and the cutting agent commonly used in the distribution of powdered drugs. Finally, when Jones and Pope were searched, officers discovered $3,100 in cash on Jones and a small baggie of heroin hidden in Pope’s private area. This combined circumstantial evidence was sufficient for the jury to conclude that Jones jointly and constructively possessed the large quantity of heroin discovered in the kitchen.

(b) Jones knew the weight of the heroin. Jones also argues that even if the evidence was sufficient to show that he constructively possessed the heroin located in the kitchen, the evidence was insufficient to show that he knew the weight of the heroin exceeded 28 grams. Again, we disagree.

As previously noted, at the time Jones was alleged to have committed trafficking in heroin (April 23,2012), OCGA § 16-13-31 (b) provided: “Any person who knowingly sells, manufactures, delivers, brings into this state, or has possession of 4 grams or more of . . . heroin, as described in Schedules I and II, . . . commits the felony offense of trafficking in illegal drugs[,]” and “[i]f the quantity of such substances involved is 28 grams or more, the person shall be sentenced to a mandatory minimum term of imprisonment of 25 years and shall pay a fine of $500,000.00.”

In Scott v. State, the Supreme Court of Georgia ruled that the plain language of the statute, as it then existed, “dictates the conclusion that knowledge of the quantity of the drug was an element of the crime.” In so holding, the Court explained that this (prior) version of the statute “contains express scienter requirements, that is, knowledge of the nature and amount of the drug and of being in possession of it.” Thus, because “knowledge” was part of the offense, our Supreme Court held that the State had the burden of proving the defendant’s guilty knowledge. Accordingly, in prosecutions for this offense under the prior statute, the State was required to prove that the defendant had knowledge of the weight of the controlled substance.

Here, the quantity of heroin discovered in the kitchen weighed 81.68 grams—nearly three times the threshold weight of 28 grams under the relevant statute. And as discussed supra, although the heroin was hidden within a tea box in the kitchen, other items commonly associated with drug distribution were located in the kitchen in plain view—including a digital scale, a cutting agent, cutting tools, and a tally sheet to record amounts of drugs sold. This circumstantial evidence was sufficient to show that Jones knew that the heroin found in the kitchen weighed 28 grams or more.

2. Next, Jones asserts that the trial court erred in permitting the State to play a recording of the monitored phone call between the informant and Jones when the informant did not testify at trial. Jones asserts both that the informant’s statements amounted to inadmissible hearsay and that he was deprived of his Sixth Amendment right of confrontation. Yet again, we disagree.

The recording of the monitored phone call reflects that when the call was placed, Pope answered and then handed the phone to Jones when the informant asked for “TJ.” The informant then told Jones that he needed a “G,” and Jones replied, “Alright. I got you.” The informant also inquired as to whether Jones had another unintelligible substance available, and Jones replied, “No, not at all. Not right now.” The informant then asked about a price break on “two Gs,” to which Jones responded, “No, it’s still $150. Let me know what you got [sic] toward the second one and I’ll work with you.” Hearing this, the informant advised Jones that he could “throw you $75 now for the second one” or, in other words, pay “half of it.” Jones responded, “Oh yeah. Bring the other piece. Yeah, I could do that for you.” The detective who monitored the call testified that, based upon his training and experience, this conversation was a negotiation of a drug transaction, and that “G” is a slang term used to refer to a gram of heroin.

In admitting the recording, the trial court ruled that the informant’s statements were admissible to provide context for Jones’s responses to those statements, not that the informant’s statements were admitted to prove the truth of the matter asserted. As for Jones’s statements, the court determined that they were admissible as admissions of a party opponent. Jones argues that the trial court erred in making these determinations.

In a case that predates the decision of the Supreme Court of the United States in Crawford v. Washington, the United States Court of Appeals for the Eleventh Circuit held that the introduction of taped conversations did not violate a defendant’s Sixth Amendment right to confrontation when “the trial court ruled that the tapes as they relate to [the nontestifying speaker] are not offered to prove the truth of the matter, and are therefore not hearsay.” And because the statements were not inadmissible hearsay, “but rather were offered to put into context those statements of [the defendant], [the nontestifying speaker] is not subject to impeachment[.]”

Post-Crawford, the Eleventh Circuit has continued to hold that statements offered by a nontestifying speaker are not hearsay and do not violate the Confrontation Clause when the statements are “not offered for their truth, but only to place . . . [the defendant’s] statements in context.” And here, that is exactly what the informant’s recorded statements did—provided context for Jones’s portion of the telephone conversation, which entailed admissions of a party opponent. Thus, because the informant’s statements were not hearsay, “and because the Confrontation Clause does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted,” the trial court did not err in admitting the recording, and this enumeration of error is without merit.

3. Jones also argues that the trial court erred by permitting a law-enforcement officer to testify about the pernicious effects of heroin and addiction. We disagree that the trial court abused its discretion in this regard.

Over numerous objections by Jones, the State was permitted to present the testimony of an officer who described heroin’s deleterious effect on individuals and its addictive nature. The State argued that this testimony “puts in context what the substance is” and that it was “trying to provide some context for what heroin is.” And on appeal, the State further argues that the testimony was “relevant to explain . . . why someone may engage in an enterprise to distribute heroin and possess a trafficking amount,” to “demonstrate ... how heroin’s effect on [a] user . . . would provide a motive for an individual to engage in distributing heroin to make money,” and to explain why heroin is a Schedule I controlled substance.

The State’s assertions as to the relevancy of the subject testimony are not especially convincing, but OCGA § 24-4-401 sets a low threshold for relevancy, while OCGA § 24-4-403 requires that relevant evidence be “substantially outweighed by the danger of unfair prejudice” in order to be excluded. And in evaluating a trial court’s ruling under OCGA § 24-4-403, we must “view the evidence in the light most favorable to admission, maximizing its probative value and minimizing its undue prejudicial impact.” Given these considerations, we affirm the trial court’s admission of the testimony in question.

4. Next, Jones contends that the trial court failed to consider the conviction as the “thirteenth juror” when it denied his motion for new trial. Once again, we disagree.

On motion for new trial, even if the evidence is legally sufficient to sustain a conviction, the trial court may order a new trial if the “verdict of a jury is found contrary to evidence and the principles of justice and equity” or if the verdict is “decidedly and strongly against the weight of the evidence even though there may appear to be some slight evidence in favor of the finding.” That said, the trial court’s discretion to grant a new trial under these circumstances “should be exercised with caution and invoked only in exceptional cases in which the evidence preponderates heavily against the verdict.” And in exercising discretion as the “thirteenth juror,” the trial court must consider some of the things that it cannot when “assessing the legal sufficiency of the evidence, including any conflicts in the evidence, the credibility of witnesses, and the weight of the evidence.” When the record reflects that the trial court failed to exercise this discretion, we will vacate and remand for the court to fulfill this obligation.

Here, Jones argues that it cannot be determined by the trial court’s order whether the court exercised its discretion as the “thirteenth juror.” But as the State correctly notes, nothing in the trial court’s order indicates that it did not exercise its discretion or that it in any way applied the incorrect standard to its review. And as we have previously explained,

in interpreting the language of an order overruling a motion for a new trial, it must be presumed that the trial judge knew the rule as to the obligation thus devolving upon him, and that in overruling the motion he did exercise this discretion, unless the language of the order indicates to the contrary and that the trial judge agreed to the verdict against his own judgment and against the dictates of his own conscience, merely because he did not feel that he had the duty or authority to override the findings of the jury upon disputed issues of fact.

There being no such indication here, this enumeration of error is without merit.

5. Finally, Jones argues that the court erred in denying a motion for mistrial after an improper comment from a State witness. But because Jones failed to provide citations to the record and legal authorities in support of this contention, he has abandoned it for appellate review.

Decided October 13, 2016

Reconsideration denied October 27, 2016

Benjamin A. Pearlman, for appellant.

Kenneth W. Mauldin, District Attorney, Kalki Yalamanchili, Assistant District Attorney, for appellee.

For all of the foregoing reasons, we affirm Jones’s convictions.

Judgment affirmed.

Peterson, J., concurs. Phipps, P. J., concurs in Divisions 1, 2, 4, and 5 and in judgment only in Division 3.

        See, e.g., Muse v. State, 323 Ga. App. 779, 780 (748 SE2d 136) (2013).

        Arbegast v. State, 332 Ga. App. 414, 415 (1) (773 SE2d 283) (2015); Westbrooks v. State, 309 Ga. App. 398, 399 (1) (710 SE2d 594) (2011).

        Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979).

        Miller v. State, 273 Ga. 831, 832 (546 SE2d 524) (2001); Westbrooks, 309 Ga. App. at 399-400 (1).

       Former OCGA § 16-13-31 (b) (2012).

        Maddox v. State, 322 Ga. App. 811, 812 (746 SE2d 280) (2013) (punctuation omitted); accord Richardson v. State, 305 Ga. App. 850, 852 (700 SE2d 738) (2010).

        Maddox, 322 Ga. App. at 812 (punctuation omitted); accord Vines v. State, 296 Ga. App. 543, 545 (1) (675 SE2d 260) (2009).

        Maddox, 322 Ga.App. at 812 (punctuationomitted); accord Vines, 296 Ga.App. at 545 (1).

        Maddox, 322 Ga.App. at 812 (punctuationomitted); accord Vines, 296 Ga.App. at 545 (1).

       Pope was not tried with Jones.

       We note that the equal-access defense is “based on the rule that merely finding contraband on premises occupied by a defendant is not sufficient to support a conviction if it affirmatively appears from the evidence that persons other than the defendant had equal opportunity to commit the crime.” Nelson v. State, 199 Ga. App. 487, 487-88 (1) (405 SE2d 310) (1991) (punctuation omitted); see also Ely v. State, 241 Ga. App. 896, 898 (528 SE2d 532) (2000) (“[T]he equal access rule applies only if persons other than the defendant and members of his immediate household had equal opportunity to commit the crime.”).

        McDade v. State, 175 Ga.App. 204, 205 (1) (332 SE2d 672) (1985); see, e.g., McCants v. State, 338 Ga. App. 733 (791 SE2d 611) (2016) (“The equal access rule, conceptually and historically, has no application [when], as here, all persons allegedly having equal access to the contraband are alleged to have been in joint constructive possession of that contraband.” (punctuationomitted)); Castillo v. State, 166 Ga.App. 817, 822 (2) (305 SE2d 629) (1983) (same).

        Prather v. State, 293 Ga.App. 312, 313 (1) (667 SE2d 113) (2008); see also O’Neill v. State, 285 Ga. 125, 125 (674 SE2d 302) (2009) (“The law is well-established that to warrant a conviction based on circumstantial evidence, the State must prove not only that the evidence is consistent with the hypothesis of guilt, but that every other reasonable hypothesis of nonguilt is excluded.” (punctuation omitted)).

        Prather, 293 Ga. App. at 313 (1) (punctuation omitted); see also Samsell v. State, 222 Ga. 235, 238 (149 SE2d 367) (1966) (“It is not necessary to sustain a conviction based upon circumstantial evidence, that the evidence exclude every possibility or every inference that may be drawn from the proven facts, but only that it exclude every reasonable inference and reasonable hypothesis.”).

        Prather, 293 Ga.App. at 313 (1); see also Chapa v. State, 288 Ga. 505, 506 (1) (705 SE2d 646) (2011) (“Questions as to reasonableness are generally to be decidedby the jury which heard the evidence and [when] the jury is authorized to find that the evidence, though circumstantial, was sufficient to exclude every reasonable hypothesis save that of guilt, the appellate court will not disturb that finding, unless the verdict of guilty is unsupportable as a matter of law.” (punctuation omitted)).

       When officers surveilled Jones’s vehicle as it was parked at the subject apartment—with the exception of a person who arrived and left after only two to three minutes and another person who left but whose arrival had not been observed—law enforcement did not see anyone else arrive at or leave the apartment except for Jones and Pope, who departed after the monitored phone call in which Jones negotiated a drug transaction.

        See Cox v. State, 300 Ga. App. 109, 111 (684 SE2d 147) (2009) (holding that evidence was sufficient to find that defendant constructively possessed narcotics discovered in kitchen when “[the defendant’s] personal papers were found in the apartment, and the fact that he had a key to the apartment supported] the jury’s finding that [the defendant] possessed control over the apartment”); Whitfield v. State, 217 Ga. App. 402, 405 (3) (457 SE2d 682) (1995) (holding that evidence was sufficient to show defendant’s constructive possession of controlled substances when, although others were present in apartment at time substances were seized, defendant resided in apartment with named lessee, a large amount of cash was found on defendant’s person, and defendant had previously sold cocaine). Cf. Jackson v. State, 306 Ga. App. 33, 36 (1) (b) (701 SE2d 481) (2010) (holding that evidence was insufficient to find that defendant constructively possessed baggies of cocaine discovered in upstairs bedroom of apartment when defendant was located on the first floor of apartment as law enforcement entered and was “trying to eat a baggie of marijuana,” but “[n] o other drugs, drug-related paraphernalia, or cash were found on the first floor” and “no evidence was introduced to show that [the defendant] resided in the apartment, which might authorize an inference that he possessed the property therein”).

       Former OCGA § 16-13-31 (b) (2012) (emphasis supplied).

       Former OCGA § 16-13-31 (b) (3) (2012).

       2 95 Ga. 39 (757 SE2d 106) (2014).

       The General Assembly amended the statute, effective July 1, 2013, to remove “knowingly.” See Ga. L. 2013, p. 222, § 4; see also Scott, 295 Ga. at 41 (2) (explaining that “[i]n a 2013 amendment to OCGA § 16-13-31, the General Assembly deleted ‘knowingly’ ”).

        Scott, 295 Ga. at 40 (1).

        Id.

        Id.

        Id. at 42 (3).

        See Scott v. State, 331 Ga. App. 395, 398 (1) (771 SE2d 93) (2015) (holding that evidence was sufficient to show that defendant knew he possessed at least 28 grams of cocaine when the discovered cocaine weighed more than double the amount for trafficking, and officers discovered tools used to weigh and distribute the drug); Robinson v. State, 331 Ga. App. 872, 877 (772 SE2d 223) (2015) (physical precedent only) (holding that evidence was sufficient to show defendant knew weight of cocaine when cocaine weighed nearly ten times the statutory trafficking threshold amount); Freeman v. State, 329 Ga. App. 429, 432 (1) (765 SE2d 631) (2014) (holding that evidence was sufficient to show defendant knew that he possessed more than 28 grams of crack cocaine when, inter alia, the discovered crack cocaine weighed nearly two times the trafficking threshold and was hidden in a plastic bag in defendant’s bedroom). Cf. Childs v. State, 330 Ga. App. 727, 731 (1) (769 SE2d 147) (2015) (holding that evidence was insufficient to show that defendant knew weight of cocaine when quantity was just in excess of 28 grams and there was no evidence of scales or other items used to measure, weigh, or package contraband).

        See U.S. Const. Amend. VI (“In all criminal prosecutions, the accused shall enjoy the right.. .to be confronted with the witnesses against him [.] ”); see also Ga. Const, art. 1, § 1,1XIV (“Every person charged with an offense against the laws of this state ... shall be confronted with the witnesses testifying against such person.”).

       We note that because this case was tried after January 1, 2013, our new Evidence Code applies. See Ga. L. 2011, pp. 99, 214, § 101 (providing that Georgia’s new Evidence Code applies “to any motion made or hearing or trial commenced on or after” January 1, 2013).

       SeeOCGA § 24-8-801 (c) (defining “hearsay” as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted”); OCGA § 24-8-802 (“Hearsay shall not be admissible except as provided by this article; provided, however, that if a party does not properly object to hearsay, the objection shall be deemed waived, and the hearsay evidence shall be legal evidence and admissible.”).

        See OCGA § 24-8-801 (d) (2) (A) (“Admissions shall not be excluded by the hearsay rule. An admission is a statement offered against a party which is[ ] ... [t]he party’s own statement, in either an individual or representative capacity [.] ”); see also Ronald L. Carlson & Michael Scott Carlson, Carlson on Evidence 534 (4th ed. 2016) (“While courts and commentators refer to ‘admissions,’ statements admissible under the doctrine need not ‘admit’ anything in the colloquial sense of the word. Rather, the doctrine covers any statement that a party has made that is offered against him at a later trial.”).

       541 U. S. 36, 50-51 (124 SCt 1354, 158 LE2d 177) (2004) (holdingthat the Confrontation Clause applies with equal force to in-court testimony and “testimonial” out-of-court statements).

        United States v. Price, 792 F2d 994, 996 (11th Cir. 1986).

        Id.

        United States v. Makarenkov, 401 Fed. Appx. 442, 445 (I) (11th Cir. 2010); see United States v. Boykins, 380 Fed. Appx. 930, 933 (II), 934 (II) (11th Cir. 2010) (noting that “a confidential informant’s recorded statements offered... to give context to a defendant’s statements are not hearsay because they are not offered for the truth of the matter asserted,” and holding that “the district court did not err in admitting the recorded conversations because they were neither hearsay nor barred by the Confrontation Clause,” the defendant’s “statements on the tape are not hearsay because they are his own admissions,” and the informant’s statements “are not hearsay because they were not offered for the truth of the matter asserted”); United States v. Valdes, 214 Fed. Appx. 948, 950 (I) (11th Cir. 2007) (holding that district court did not err in admitting recorded conversations between defendant and nontestifying informant when defendant’s statements were admissions of a party opponent and nontestifying informant’s statements were “admitted not to prove the truth of the informant’s statements but to provide context for [the defendant’s] half of the telephone conversations”).

        See United States v. Tolliver, 454 F3d 660, 662-63 (I), 665-66 (II) (A) (7th Cir. 2006) (Manion, J.) (holding that the admission of recorded conversations entailing controlled purchases of crack cocaine did not violate the Confrontation Clause when, although participant did not testify, his “statements were admissible to put [the defendant’s] admissions on the tapes into context, making the admissions intelligible for the jury,” and further holding that defendant’s statements were admissions of a party opponent).

        Valdes, 214 Fed. Appx. at 950 (I) (punctuation omitted).

        See Tolliver, 454 F3d at 662-63 (I), 665-66 (II) (A); see also United States v. Gajo, 290 F3d 922, 930 (II) (A) (7th Cir. 2002) (“[Statements are not hearsay to the extent they are offered for context and not for the truth ... of the matter asserted.”).

        See, e.g., Thornton v. Hemphill, 300 Ga. App. 647, 650 (2) (686 SE2d 263) (2009) (“[T]he trial court has wide discretion to admit testimony of questionable relevance.” (punctuation omitted)); Collins & Assocs. v. Henry Cty. Water & Sewerage Auth., 290 Ga. App. 782, 784 (2) (661 SE2d 568) (2008) (same).

        See OCGA § 24-4-401 (“As used in this chapter, the term ‘relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”); see also OCGA § 24-4-402 (“All relevant evidence shall be admissible, except as limited by constitutional requirements or as otherwise provided by law or by other rules, as prescribed pursuant to constitutional or statutory authority, applicable in the court in which the matter is pending. Evidence which is not relevant shall not be admissible.”). See generally Carlson, supra note 30, at 98 (“Rule 401 is a clear statutory preference for jurors to hear all admissible and helpful evidence because there is a correlation between the amount of information admitted and the accuracy of verdicts.” (quoting Lee D. Schinasi, Teaching the “Portraits, Mosaics and Themes” of the Federal Rules of Evidence, 29 Miss. C. L. Rev. 83, 93 (II) (A) (1) (2010))).

       OCGA § 24-4-403 (emphasis supplied). See generally Carlson, supranote 30, at 97 (“The adoption of the prejudice standard from the Federal Rules of Evidence marks a change authorizing the admission of a greater volume and variety of evidence for litigants at trial. This is because it places a heavier burden on parties seeking to exclude evidence on grounds of prejudice, requiring them to demonstrate that its probative value is substantially outweighed by the danger of unfair prejudice.”).

        See OCGA § 24-4-403 (“Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.”).

        United States v. LaFond, 783 F3d 1216, 1222 (III) (A) (11th Cir. 2015) (punctuation omitted); accord United States v. Bradberry, 466 F3d 1249, 1253 (I) (11th Cir. 2006).

        See United States v. Worthington , 145 F3d 1335 (Table), 1998 WL 279379, at *8 (II) (D) (3) (6th Cir. 1998) (affirming district court’s admission of testimony as to the effects of crack cocaine addiction on the body, despite less than overwhelmingly convincing arguments by the prosecution as to the testimony’s relevancy, because Rule 401 sets low threshold as to relevancy, Rule 403 sets high threshold for exclusion, and district court’s decision must be reviewed with high level of deference); see also Bradberry, 466 F3d at 1253 (I) (“[T]he [trial] court is uniquely situated to make nuanced judgments on questions that require the careful balancing of fact-specific concepts like probativeness and prejudice, and we are loathe to disturb the sound exercise of its discretion in these areas. Close questions of admissibility under Rule 403 give rise to the abuse of discretion standard of review and fall squarely within the ambit of the [trial] court’s sound discretion.” (citation and punctuation omitted)).

       OCGA § 5-5-20.

       OCGA § 5-5-21.

        Wiggins v. State, 330 Ga.App. 205, 210 (c) (767 SE2d 798) (2014) (punctuation omitted); accord White v. State, 293 Ga. 523, 524 (2) (753 SE2d 115) (2013).

        Wiggins, 330 Ga. App. at 210 (c) (punctuation omitted); accord White, 293 Ga. at 524 (2).

        Leggett v. State, 331 Ga. App. 343, 344 (2) (771 SE2d 50) (2015); Copeland v. State, 325 Ga. App. 668, 672 (3) (754 SE2d 636) (2014).

        Cf. Wiggins, 330 Ga. App. at 211 (c) (“[TJhere is no evidence that the . .. judge exercised discretion, weighed the evidence, and determined as the ‘thirteenth juror’ whether the verdict was against the great weight of the evidence or offended the principles of justice and equity. The order denying [the] motion for new trial shows that the trial court made only the legal determination that the evidence was sufficient . . . .”).

        Leggett, 331 Ga.App. at 344-45 (2) (punctuation omitted); accord Conley v. State, 329 Ga. App. 96, 100 (2) (763 SE2d 881) (2014).

        See Court of Appeals Rule 25 (c) (2) (“Any enumeration of error which is not supported in the brief by citation of authority or argument may be deemed abandoned.”); Court of Appeals Rule 25 (c) (2) (i) (“Each enumerated error shall be supported in the brief by specific reference to the record or transcript. In the absence of such reference, the Court will not search for or consider such enumeration.”); see also Slmbey v. State, 288 Ga. App. 717, 718 (655 SE2d 223) (2007) (deeming arguments abandoned due to failure to provide citations to the record and supporting legal authority).