author: Ellington, Presiding Judge.

text:
    A16A1444.
    HARRIS et al. v. DEUTSCHE BANK NATIONAL TRUST COMPANY.
    (792 SE2d 111)
   Ellington, Presiding Judge.

Clarence and Althea Harris filed this action in the Superior Court of Oconee County against Deutsche Bank National Trust Company, alleging claims for breach of contract and wrongful foreclosure of their home in March 2012. Deutsche Bank filed a motion to dismiss for failure to state a claim under OCGA § 9-11-12 (b) (6). The trial court granted this motion on the basis that these claims are barred under the doctrine of res judicata. The Harrises appeal, contending that the trial court erred because there was not identity of the cause of action with a prior judgment. We affirm the trial court’s ruling for the reasons explained below.

The record shows that, in ruling on Deutsche Bank’s motion, the trial court considered matters outside the pleadings in this case, including the pleadings and judgments in two cases previously prosecuted by the Harrises against Deutsche Bank and other defendants. Therefore, “we will treat the appealed order as one granting summary judgment to [Deutsche Bank,]... [and] [w]e review de novo a trial court’s grant of summary judgment, construing the evidence in a light most favorable to the nonmoving party.” (Citation and punctuation omitted.) Host Intl. v. Clayton County, 311 Ga. App. 414, 415 (1) (715 SE2d 805) (2011) (applying the de novo standard of review to a lower court’s grant of motion to dismiss for collateral estoppel because lower court considered matters outside the pleadings in the case at bar).

Viewed in the light most favorable to the Harrises, the record shows the following undisputed facts. The Harrises purchased their home in Oconee County in 1993. In 2006, they refinanced their mortgage. Through a series of transfers, the loan and security deed were assigned to Deutsche Bank. American Home Mortgage Servicing, Inc. (“AHM”) serviced the loan. The Harrises began to experience financial difficulties and fell behind on their loan payments. In March 2012, Deutsche Bank conducted a foreclosure sale and purchased the home at the auction.

In April 2012, the Harrises filed their first lawsuit in the Superior Court of Oconee County. The case was removed to the federal district court for the Middle District of Georgia. The Harrises alleged numerous counts against Deutsche Bank including “contractual breach of good faith and fair dealing and fraud” and wrongful foreclosure. The breach of contract claim rested upon the allegations that Deutsche Bank did not have the right to proceed with foreclosure and nonjudicial sale of the property for two reasons: Deutsche Bank did not provide notice as required by OCGA § 44-14-162.2, and Deutsche Bank was not the actual holder of the note with authority to foreclose. The wrongful foreclosure claim was based on similar allegations. Ultimately, the district court dismissed the first case for failure to state a claim in February 2013. Although the Harrises appealed this dismissal, the appellate court accepted their voluntary dismissal of their appeal in April 2013.

In November 2013, the Harrises filed a second lawsuit against Deutsche Bank in the Superior Court of Oconee County As amended, the complaint sought only declaratory and injunctive relief as to the identity of the note holder and of the entity to whom the proceeds of the foreclosure sale should be paid. In April 2014, the trial court dismissed the complaint with prejudice; among other reasons the court held that the Harrises could not seek equitable relief on a security deed and note for which they were in default. In May 2014, the Harrises appealed the order to this Court. Pursuant to Court of Appeals Rule 36, in an unpublished decision, this Court upheld the trial court’s dismissal.

The Harrises filed the instant action, in the Superior Court of Oconee County Civil Case No. 2015-CV-0113, in April 2015, shortly after this Court’s decision in their second suit. They alleged two counts against Deutsche Bank: breach of contract and wrongful foreclosure. Both claims rested on allegations that Deutsche Bank did not provide proper notice to the Harrises as provided in the security deed and as required under Georgia law. Additionally, they alleged that they were not in default on their loan at the time of the notice of default because of payments the loan servicer, AHM, made to Deutsche Bank. The trial court dismissed the case as barred by the doctrine of res judicata in February 2016, leading to the instant appeal.

Georgia’s res judicata doctrine, as codifiedunderOCGA § 9-12-40, provides:

A judgment of a court of competent jurisdiction shall be conclusive between the same parties and their privies as to all matters put in issue or which under the rules of law might have been put in issue in the cause wherein the judgment was rendered until the judgment is reversed or set aside.

Three distinct elements must be met before the doctrine applies. Body of Christ Overcoming Church of God v. Brinson, 287 Ga. 485, 486 (696 SE2d 667) (2010). There must be: “(1) identity of the cause of action, (2) identity of the parties or their privies, and (3) previous adjudication on the merits by a court of competent jurisdiction.” (Citation and punctuation omitted.) Id.

The Harrises challenge only the first element, identity of the cause of action. “[Ojne must assert all claims for relief concerning the same subject matter in one lawsuit and any claims for relief concerning that same subject matter which are not raised will be res judicata[.]” (Citation omitted; emphasis in original.) Lawson v. Watkins, 261 Ga. 147, 149 (2) (401 SE2d 719) (1991). Thus, to determine whether there is identity of the cause of action, the court must examine “the subject matter and the issues raised by the pleadings in the two cases[.]” (Citation omitted.) Crowe v. Elder, 290 Ga. 686, 688 (723 SE2d 428) (2012). Under Georgia law, “[a] cause of action [is] deemed to be the entire set of facts which give rise to an enforceable claim.” (Citation and punctuation omitted.) Id.

The Harrises contend that, although the subject matter of the case at bar is “linked” to that of the previous cases, there is not an identity of the cause of action because some of the operative facts are different, citing Haley v. Regions Bank, 277 Ga. 85, 91 (2) (586 SE2d 633) (2003) (“Where some of the operative facts necessary to the causes of action are different in the two cases, the later suit is not upon the same cause as the former, although the subject matter may be the same, and even though the causes arose out of the same transaction.”) (citations and punctuation omitted). Specifically, they point to their allegation, made for the first time in their most recent complaint, that, because of the advance payments made by AHM, they were not in default on their loan when any notice of default was sent in early 2012. They did not include this specific allegation in any previous action. In addition, they argue that in the present complaint they raised for the first time that the notice of foreclosure was defective because it omitted notice of intent to accelerate and omitted the name and contact information for the person or entity with authority to negotiate, as required under OCGA § 44-14-162.2.

It is the relevant facts themselves, once they occur, however, that give rise to the cause of action, regardless of whether the party fails to include certain facts in the first action to proceed to judgment. See Kaylor v. Rome City School Dist., 267 Ga. App. 647, 649 (1) (b) (600 SE2d 723) (2004) (finding identity of the cause of action where the first suit was for breach of contract and second suit was for fraudulent inducement to enter that contract). The doctrine of res judicata

applies even if some new factual allegations have been made, some new relief has been requested, or a new defendant has been added. It is only where the merits were not and, could not have been determined under a proper presentation and management of the case that res judicata is not a viable defense. If, pursuant to an appropriate handling of the case, the merits were or could have been determined, then the defense is valid.

(Punctuation and footnote omitted; emphasis supplied and in original.) Neely v. City of Riverdale, 298 Ga. App. 884, 887 (2) (681 SE2d 677) (2009). Thus, in Leggett v. Gibson-Hart-Durden Funeral Home, 123 Ga. App. 224 (180 SE2d 256) (1971), this Court observed that res judicata applied to bar a widow in a later suit against a funeral home for the improper interment of her husband where the widow failed to allege the allegations asa counterclaim in a previous suit between the parties under the burial contract. This was despite the widow’s argument that she did not know that the funeral home did not perform the burial in the manner provided in the contract and only learned of the breach when the body was exhumed four days after judgment in the previous suit. Id. at 225. The court held that the widow had “a duty to litigate each and every issue which existed between the parties touching the subject matter of this action when she was sued on open account for the burial expenses incurred in interment of her husband.” Id. at 224-225. The widow did not claim that the funeral home defrauded her, preventing her from learning of the alleged discrepancy between the funeral ordered and the funeral provided. Id. Thus, the claim was required to be litigated in the first suit because the claim could have been litigated then. Id. at 225.

Here, the alleged breach — foreclosing on the Harrises if they were not actually in default — occurred before they filed the first suit. Haley v. Regions Bank, cited by the Harrises, is inapposite, because the plaintiff in that case based claims on operative facts that arose after previous litigation, and therefore the merits of the claim could not have been determined in the earlier action. Id. at 91 (2) (“[T]he former [suit] resolved the nature and transferability of the defeasible and reversionary interests under the will, while the latter [suit] concerned] the validity of a subsequen t transfer[.]” Thus, the operative facts were different because the second suit involved questions which “arose after the holding in [the first suit].”) (emphasis supplied). See also Humphrey v. JP Morgan Chase Bank, 337 Ga. App. 331, 334 (2) (787 SE2d 303) (2016) (holding no identity of causes of action for breach of contract of a security deed and wrongful foreclosure because the allegations in the subsequent complaint arose after the two previously dismissed actions). In both cases, the plaintiffs could not have litigated the operative facts of the second suit at the time of the first suit because the underlying circumstances had not yet occurred.

In this case, the record shows that the Harrises alleged in their wrongful foreclosure claim in their first lawsuit in Oconee County that Deutsche Bank “had [no] right to proceed with a foreclosure and non-judicial sale of [their] property, as proper notice was not given as required by OCGA § 44-14-162.2[.]” In their wrongful foreclosure claim in the instant action, they alleged that Deutsche Bank “failed to provide in any notice of foreclosure the name, address, and telephone number of the individual or entity who had full authority to negotiate, amend, and modify all terms of the mortgage as required by OCGA § 44-14-162.2,” which exactly mirrors the statutory language from that Code section. In their first lawsuit, the Harrises alleged that Deutsche Bank’s “notice of default did not comply with the terms of the security deed.” The breach of contract claim in the instant action alleged that Deutsche Bank “breached the contract by failing to provide accurate notices [of default] as required by paragraph 22 of the Security Deed.” The subject matter of both of the Harrises’ claims in the instant action concern the 2012 foreclosure, specifically whether proper notice was given. The operative fact concerns the notice given once foreclosure proceedings were initiated; whether that was adequate according to statute or contract does not convert the operative fact into something different. The alleged misconduct that gives rise to the claims is the same. See Crowe v. Elder, 290 Ga. at 688 (holding identity of causes of action although first action was based in fraud and second action in contract because the allegation of the misconduct forms the basis of each and is the same; the recasting of the same alleged conduct does not constitute a new or different cause of action).

The Harrises argue that they could not have based the causes of action in their previous litigation on the present operative facts because they were unaware of them at the time. The doctrine of res judicata still operates even where the plaintiff is unaware of the potential claim through no fault of another. See Neely v. City of Riverdale, 298 Ga. App. at 887 (2) n. 10 (“We find entirely unpersuasive [the plaintiff’s] argument that res judicata does not apply here since he was not aware of his contract claims at the time he filed his federal complaint because his lawyer had not yet found a [particular] Court of Appeals case . . . that he asserts supported his breach of contract claim.”) (punctuation omitted); see also Leggett v. Gibson-Hart-Durden Funeral Home, 123 Ga. App. at 225-226.

A judgment rendered in a litigation arising under a contract is conclusive of all of the accrued rights of the parties arising under the contract, whether they were actually inquired into or not; and such judgment may, in a subsequent suit between the parties arising under the same contract, be pleaded as res judicata.

Decided October 11, 2016.

Wayne Charles, Ernest De Pascóle, Jr., for appellants.

Baker, Donelson, Bearman, Caldwell & Berkowitz, Teresa L. Bailey, Montoya M. Ho-Sang, for appellee.

(Citation omitted; emphasis supplied.) Missouri State Life Ins. Co. v. Pilcher, 179 Ga. 231, 232-233 (1) (175 SE 586) (1934).

Here, the record shows that the operative facts at issue (that AHM’s advance payments to Deutsche Bank kept the Harrises’ account current) could have been presented when the Harrises brought their first suit against Deutsche Bank concerning the 2012 foreclosure and nonjudicial sale of the property. Because “[t]he doctrine of res judicata prevents re-litigation of matters that were or could have been litigated in a previously adjudicated action[,]” the Harrises’ new challenge to the 2012 foreclosure and nonjudicial sale of the property is barred. (Punctuation and footnote omitted; emphasis supplied.) Neely v. City of Riverdale, 298 Ga. App. at 886 (2). “A litigant must discharge all his weapons, and not reserve a part of them for use in a future re[e]ncounter. He must realize that one defeat will not only terminate the campaign, but end the war.” (Citation and punctuation omitted.) Piedmont Cotton Mills v. Woelper, 269 Ga. 109, 111 (498 SE2d 255) (1998). The trial court did not err in ruling that the current suit is barred by res judicata.

Judgment affirmed.

Branch and Mercier, JJ., concur.

       “If, on a motion to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in [OCGA §] 9-11-56[.]” OCGA § 9-11-12 (b). See also Johnson v. RLI Ins. Co., 288 Ga. 309, 309-310 (704 SE2d 173) (2010) (outlining process for appellate review when lower court goes beyond pleadings and a motion to dismiss is converted into motion for summary judgment).

        Harris v. American Home Mtg. Servicing, Civil Action File No. 2012-CV-0322-SW.

        Harris v. American Home Mtg. Servicing, Case No. 3:12-CV-00083-CDL.

        Harris v. Deutsche Bank National Trust Co., Civil Action File No. 2013-CV-0578.

        Harris v. Deutsche Bank National Trust Co., 330 Ga. App. XXIII (Case No. A14A2209) (February 20, 2015) (unpublished).

       The other elements are plainly satisfied. Deutsche Bank was a defendant in the previous litigation. Further, “[a] dismissal for failure to state a claim is a dismissal on the merits and is with prejudice.” (Footnote omitted.) Comprehensive Pain Mgmt. v. Blakely, 312 Ga. App. 721, 722 (719 SE2d 579) (2011). See also Johnson v. Bank of America, 594 Fed. Appx. 953, 955 (11th Cir. 2014) (“[U]nder Georgia law the granting of a motion to dismiss operates as an adjudication on the merits of the dismissed claims.”) (citation omitted).

       (a) Notice of the initiation of proceedings to exercise a power of sale in a mortgage, security deed, or other lien contract shall be given to the debtor by the secured creditor no later than 30 days before the date of the proposed foreclosure. Such notice shall be in writing, shall include the name, address, and telephone number of the individual or entity who shall have full authority to negotiate, amend, and modify all terms of the mortgage with the debtor, and shall be sent by registered or certified mail or statutory overnight delivery, return receipt requested, to the property address or to such other address as the debtor may designate by written notice to the secured creditor.
      OCGA § 44-14-162.2.

       Paragraph 22 specifies the contents of the notice the lender shall provide when the borrower breaches the contract, prior to acceleration of the borrower’s obligations. Paragraph 15 provides: “If any notice required by this Security Instrument is also required under Applicable Law, the Applicable Law requirement will satisfy the corresponding requirement under this Security Instrument),]” OCGA § 44-14-162.2 in this case.


source: Caselaw Access Project

author: MILLER, Presiding Judge.

license: Public Domain

text:
    A16A1018.
    CLEMONS v. DELTA AIRLINES, INC.
    (790 SE2d 814)
   MILLER, Presiding Judge.

Carlos Clemons was fired from his job as a Delta Airlines customer service agent after allegedly mishandling a customer’s lost purse and the money it contained. Clemons filed a pro se complaint in the Superior Court of Fulton County, naming Delta Airlines (“Delta”), its CEO, and various Delta employees involved in investigating the claim and terminating his employment. The trial court dismissed the individual defendants and later granted Delta’s motion to dismiss the complaint on the ground of res judicata, as well as the alternate grounds of statute of limitation and for failure to state a claim. Clemons now appeals, arguing that the trial court erred by dismissing the complaint. Clemons also argues that the trial court erred by denying his motion to recuse. Although we conclude that res judicata was not a proper basis on which to dismiss the complaint, we agree with the trial court’s alternate conclusions that some of Clemons’s claims were barred by the statute of limitation and the remaining claims failed to state a claim for relief. Accordingly, we affirm.

We review a trial court’s decision to grant or deny a motion to dismiss de novo. Chandler v. Opensided MRI of Atlanta, 299 Ga. App. 145 (682 SE2d 165) (2009). “In deciding a motion to dismiss, all pleadings are to be construed most favorably to the party who filed them, and all doubts regarding such pleadings must be resolved in the filing party’s favor.” (Citation omitted.) Austin v. Clark, 294 Ga. 773, 774-775 (755 SE2d 796) (2014).

So viewed, the evidence shows that Clemons was employed with Delta for over ten years until 2011, when he was terminated as the result of an investigation into allegations — which Clemons denies — that he mishandled a passenger’s lost purse, removed money from the purse, and lied about his actions. In 2013, Clemons, represented by counsel, filed suit in federal court, alleging gender discrimination and retaliation in connection with his termination. The district court in that case granted Delta’s motion for summary judgment, and Clemons filed an appeal. See Clemons v. Delta Air Lines, 625 Fed. Appx. 941, 942-943 (11th Cir. 2015).

In March 2015, while the federal case was pending on appeal, Clemons filed the instant action in the Superior Court of Fulton County, alleging defamation, fraudulent misrepresentation, negligent misrepresentation, fraudulent concealment, negligent retention, false promise, intentional infliction of emotional distress (“IIED”), and tortious interference with a contractual relationship. Clemons also requested injunctive relief and attorney fees. Delta moved to dismiss the instant case, alleging that it failed to state a claim and was barred by the applicable statutes of limitation.

In September 2015, the Eleventh Circuit Court of Appeals affirmed the district court’s order in an unpublished opinion. Clemons, supra, 625 Fed. Appx. at 943. Thereafter, Delta filed a supplemental brief in support of its motion to dismiss, arguing that Clemons’s claims were barred by res judicata in light of the Eleventh Circuit’s opinion. Attached to the supplemental motion was a copy of the Eleventh Circuit’s opinion. At a hearing on Delta’s motion to dismiss less than 30 days after Delta filed its supplemental brief, the trial court dismissed Clemons’s complaint on res judicata grounds. The trial court further concluded that the complaint was subject to dismissal as time-barred and for failure to state a claim.

1. Clemons argues that the trial court should not have dismissed his complaint because his claims were not barred by res judicata. We agree that this was not an appropriate ground for dismissal.

Under OCGA § 9-12-40,

[a] judgment of a court of competent jurisdiction shall be conclusive between the same parties and their privies as to all matters put in issue or which under the rules of law might have been put in issue in the cause wherein the judgment was rendered until the judgment is reversed or set aside.

The doctrine applies to any matter that was or “could have been” litigated in the prior case and applies to new factual allegations and new defendants. Neely v. City of Riverdale, 298 Ga. App. 884, 886-887 (2) (681 SE2d 677) (2009). Moreover, state law claims will also be barred if they “could have been litigated in the federal court under its pendent jurisdiction.” Id. at 887 (2).

Here, the trial court did not have a copy of the Eleventh Circuit’s decision when Delta filed its original motion to dismiss and in fact did not have it until Delta filed a supplemental brief attaching a copy of the appellate decision, which was less than a month before the trial court dismissed the complaint. By considering evidence submitted after the initial motion to dismiss was filed, the trial court impermis-sibly converted the motion to dismiss into one for summary judgment without giving Clemons any notice. Garner v. US Bank Nat. Assn., 329 Ga. App. 86, 88-90 (1) (763 SE2d 748) (2014) (physical precedent only). As a result, we will not affirm the motion to dismiss on this ground.

2. Clemons also argues that the trial court should not have dismissed his complaint on the alternate grounds that some of his claims were barred by the statute of limitation and the remaining allegations failed to state a claim for relief. After a thorough review of the complaint, we conclude that the trial court properly dismissed Clemons’s state law claims on these grounds.

As our Supreme Court has explained:

[A] motion to dismiss for failure to state a claim should not be granted unless it appears to a certainty that the plaintiff would be entitled to no relief under any state of facts which could be proved in support of his claim. If, within the framework of the complaint, evidence may be introduced which will sustain a grant of relief to the plaintiff, the complaint is sufficient.

(Citation and punctuation omitted.) Austin, supra, 294 Ga. at 775. Clemons raised the following counts in his complaint: defamation, fraudulent misrepresentation, negligent misrepresentation, fraudulent concealment, negligent retention, false promise, IIED, and tor-tious interference with a contractual relationship.

(a) As the trial court correctly found, Clemons’s claims for defamation, IIED, and negligent retention are barred by the applicable statute of limitation. See OCGA § 9-3-33 (one year for defamation and two years for negligent retention and IIED). Clemons was terminated in May 2011, and he filed his state law complaint nearly four years later on March 30, 2015. Moreover, Clemons’s claim that the statute of limitation was tolled due to the defendants’ fraudulent concealment is without merit. Clemons knew of the alleged fraudulent conduct no later than the day he filed his federal action, and yet he still waited more than two years from that time to file his state law complaint. Accordingly, we affirm the trial court’s dismissal of these claims as barred by the statute of limitation.

(b) Additionally, the trial court properly dismissed Clemons’s claim for fraudulent misrepresentation because Clemons failed to state a claim for this cause of action.

To state a claim for fraudulent misrepresentation, Clemons must establish that (1) Delta made false representations; (2) Delta knew the representations were false at the time (scienter); (3) Delta made the representations intending to deceive Clemons and induce him to perform the work; (4) Clemons justifiably relied upon such representations; and (5) Delta’s misrepresentations resulted in damages. Grand Master Contracting v. Lincoln Apt. Mgmt. Ltd. Partnership, 314 Ga. App. 449, 451 (2) (724 SE2d 456) (2012). Clemons does not allege how he was induced to rely on any of Delta’s statements, what the alleged statements were supposed to induce him to do, or how he justifiably relied on any statements to his detriment. Moreover, an at-will employee has no cause of action for an oral promise or fraudulent misrepresentation in connection with his termination. Balmer v. Elan Corp., 261 Ga. App. 543, 545 (1) (c) (583 SE2d 131) (2003).

(c) Clemons’s remaining claims for tortious interference, negligent misrepresentation, and fraudulent concealment are not properly before us on appeal because these claims arise from allegations against the individual defendants. As noted above, Clemons did not appeal from the dismissal of the individual defendants, he does not enumerate as error the trial court’s dismissal of the individual defendants, and he makes no argument on appeal that dismissal of the individual defendants was improper. Additionally, the only order he identified in his notice of appeal was the order dismissing his claims against Delta. Cf. Roberts v. Windsor Credit Svcs., 301 Ga. App. 393, 394-395 (1) (687 SE2d 647) (2009) (concluding that court could consider all rulings by the trial court unless not enumerated as error); Headrick v. Stonepark of Dunwoody Unit Owners Assn., 331 Ga. App. 772, 780 (5) (771 SE2d 382) (2015) (issues not argued on appeal are deemed abandoned). Thus, we do not address the claims against the individual defendants.

3. Clemons argues that the trial judge erred by failing to recuse himself because the judge’s former law firm has a business relationship with Delta. Although he sets out the law for recusal, Clemons makes no argument as to why the trial judge here abused his discretion in failing to recuse. Thus, we need not address it. Headrick, supra, 331 Ga. App. at 780 (5); Court of Appeals Rule 25 (c) (2).

4. Finally, to the extent that Clemons raises issues of due process and constitutional violations, his arguments fail. Clemons did not raise such issues before the trial court, and we will not address them for the first time on appeal. Sherman v. Dev. Auth. of Fulton County, 320 Ga. App. 689, 695-696 (4) (740 SE2d 663) (2013) (“The law in Georgia is that because the appellate courts are for correction of errors of law, issues which have not been ruled on by the trial court may not be raised on appeal.”) (citation and punctuation omitted).

Accordingly, we affirm the dismissal of Clemons’s complaint.

Judgment affirmed.

McFadden, J., concurs. McMillian, J., concurs in judgment only.

Decided August 31, 2016

Reconsideration denied October 12, 2016

Carlos Clemons, pro se.

Munger & Stone, Thomas J. Munger, for appellee.

       On appeal, Clemons does not challenge the trial court’s dismissal of all claims against the individual defendants, the denial of his request for attorney fees, or his claims for an injunction. Thus, he has abandoned these issues. Headrick v. Stonepark of Dunwoody Unit Owners Assn., 331 Ga. App. 772, 780 (5) (771 SE2d 382) (2015).

       Clemons did not raise any of his state law claims in his federal action.

       We note that, at the time Delta filed its initial motion to dismiss, Clemons’s federal action remained pending on appeal. Under Georgia law, the federal district court’s decision was not “final” for purposes of res judicata until the conclusion of the appeal. See CS-Lakeview at Gwinnett v. Retail Dev. Partners, 268 Ga. App. 480, 483 (2) (602 SE2d 140) (2004).

       In his appellate brief, Clemons also argues the merits of his fraud claims and argues that his federal due process rights have been violated.


author: Peterson, Judge.

text:
    A16A0715.
    THE STATE v. WARREN.
    (792 SE2d 116)
   Peterson, Judge.

The State appeals the trial court’s orders granting in part a motion to suppress filed by Charles Albert Warren and denying the State’s subsequent motion to reopen evidence in this DUI case. The trial court ruled that the results of a preliminary breath test performed on Warren were inadmissible because the State did not lay the proper foundation for admission of those results. The State argues that its failure to lay the proper foundation for admission of the test results is due to the trial court’s error in sustaining an objection to a question of the officer who performed the breath test. Because the State does not proffer the testimony that the officer would have given but for the sustained objection, we affirm the trial court’s order granting in part Warren’s suppression motion. The trial court did not abuse its discretion in declining to reopen the evidence to allow the State to ask the objected-to question again.

1. “On appeal from a ruling on a motion to suppress, we construe the evidence most favorably to affirming the trial court’s factual findings and judgment.” Brooks v. State, 285 Ga. App. 624, 626 (647 SE2d 328) (2007). So viewed, on June 20, 2014, a sergeant with the Union County Sheriff’s Office observed Warren driving a motorcycle in his direction. The sergeant saw Warren, driving at a high rate of speed, pass a camper in a no-passing zone. The sergeant activated his blue lights and pursued Warren. Warren turned onto a dirt road and parked behind a house, where the sergeant found him sitting on his motorcycle.

The sergeant noticed that, after Warren dismounted from his motorcycle, he was unsteady on his feet, his eyes were bloodshot, his speech was slurred, and he had an odor of alcohol. Warren asked whether he was in North Carolina — the sergeant replied that he was in Georgia — and at one point appeared to be talking to himself. The sergeant asked a deputy who had arrived to administer a preliminary breath test with his handheld device. Warren complied, yielding a result positive for the presence of alcohol. Warren declined the sergeant’s request to perform some field sobriety tests, citing a prior injury. The sergeant informed Warren that he was under arrest, handcuffed him, and placed him in a patrol car. The sergeant read Warren the implied consent notice and requested that he submit to a blood test. Warren declined.

Warren was charged by accusation with DUI less safe, driving with an expired license, speeding, and improper passing. Warren filed several motions seeking exclusion of various evidence, including the results of the preliminary breath test. The trial court held a suppression hearing at which both the sergeant who stopped Warren and the deputy who administered the breath test testified.

To be considered valid for use in a DUI case, a chemical analysis of a defendant’s breath

shall have been performed according to methods approved by the Division of F orensic Sciences of the Georgia Bureau of Investigation on a machine which was operated with all its electronic and operating components prescribed by its manufacturer properly attached and in good working order and by an individual possessing a valid permit issued by the Division of Forensic Sciences for this purpose. The Division of Forensic Sciences of the Georgia Bureau of Investigation shall approve satisfactory techniques or methods to ascertain the qualifications and competence of individuals to conduct analyses and to issue permits, along with requirements for properly operating and maintaining any testing instruments, and to issue certificates certifying that instruments have met those requirements, which certificates and permits shall be subject to termination or revocation at the discretion of the Division of Forensic Sciences.

OCGA § 40-6-392(a)(l)(A).

At the suppression hearing, the State attempted to show that the preliminary breath test satisfied these requirements through the testimony of the deputy who administered the breath test to Warren. After the deputy testified that Warren had performed the test on his handheld aleo-sensor, the prosecutor began to ask the deputy, “And was that device, the handheld [a]lco-[s]ensor, authorized by the Division of Forensic Sciences —Before the prosecutor could complete her question, defense counsel objected to the question as leading. The trial court sustained the objection. The prosecutor tried to reframe her question, but apparently did not get the answer she was looking for:

Q: Have you used that device before?
A: Yes.
Q: And is it issued to you by your department?
A: Yes.
Q: And what approval or certification does that device have?
A: I’m not sure how to answer that question. It was — it was handed out from chain of command for use for those types of tests.

The prosecutor continued on later:

Q: As a law enforcement officer, who, if anyone, is responsible for establishing protocols for preliminary breath tests, to your knowledge and experience?
A: Normally it’s the investigating officer, the officer that first made contact with the subject.
Q: Maybe I asked it wrong. As a law enforcement [officer], in your knowledge and experience, who, if anyone, is responsible for authorizing the use of certain devices for preliminary breath tests?
A: Anyone that actually was given a handheld [a]lco-[s]ensor and they know its functions and how to use it. Not everyone in the department has one.
Q: Right. Do you know who authorizes — in your experience as a law enforcement officer, who, if any [one], authorizes particular devices to be used?
A: That would be the sheriff.
Q: Who authorizes the sheriff to use certain devices?
A: I would imagine GBI.

No further evidence regarding the permitting or certification of the breath testing device was presented.

At the suppression hearing, defense counsel argued that the breath test results should be excluded for the State’s failure to lay a foundation. In response, the State complained that it had tried to lay a foundation but had been stymied by the defense objection, arguing that the State may ask leading questions when laying the foundation for scientific evidence and reports. The prosecutor added that a foundation would be laid at trial.

The trial court denied most of Warren’s motions, but excluded the results of the preliminary breath test. The trial court concluded that the State did not lay a foundation that the device used for the test was approved by the Division of Forensic Sciences of the Georgia Bureau of Investigation for use as a preliminary screening device. “The officer just didn’t have it[,]” the trial court said at the hearing. “He didn’t have the knowledge.” The State filed a motion to reconsider and a motion to reopen the evidence. Both were denied after a hearing.

The State filed an interlocutory appeal. On appeal, the State argues that the objected-to question was not leading because it called for a “yes” or “no” answer. Alternatively, the State argues that even if the question were leading, the deputy should have been permitted to answer because the question was necessary to developing his testimony The State seeks remand so that it may ask the objected-to question again in order to lay the proper foundation for the admission of the breath test results.

Regardless of whether the question was leading, however, we must affirm. “This court is not an expounder of theoretical law,” and it “corrects only such errors as have practically wronged the complaining party” Hall v. State, 202 Ga. 619, 620 (2) (44 SE2d 234) (1947) (punctuation omitted). A judgment will not be reversed on the basis that the trial court refused to allow a witness to testify “where the record does not show what testimony the witness was expected to give.” Williams v. Ricks, 152 Ga. App. 555, 558 (2) (263 SE2d 457) (1979). Here, the prosecutor did not tell the trial court what the deputy’s answer to the prosecutor’s question would have been had he been allowed to answer. Instead, in responding to defense counsel’s argument that the breath test results should be excluded due to the State’s failure to lay a foundation, the State merely argued that the officer had testified that he believed the breath testing device “was authorized for the use by the sheriff, by the GBI,” complained that the State’s attempts to lay a foundation had been frustrated by the defense objection, and represented that any additional steps needed to lay a foundation would be taken at trial. Therefore, the ruling on the defense objection to the question is not a basis for reversal. See Hall, 202 Ga. at 620 (2) (no basis for reversal in trial court’s refusal to allow defendant to call prosecutor to testify; given that defense counsel “failed even so much as to intimate to the court what he expected to prove by the witness”); Murphy v. Milo, 272 Ga. App. 200, 202 (3) (612 SE2d 56) (2005) (affirming civil verdict despite appellant’s argument that his attorney was not permitted to ask him leading questions, as appellant “fail[ed] to cite a proffer of any evidence that the court’s instruction precluded him from presenting to the jury” or “even argue how the exclusion of the unidentified evidence harmed him”); Williams, 152 Ga. App. at 558 (2) (rejecting appeal based on trial court’s refusal to allow a particular question of a witness; appellants abandoned line of questioning and attorney did not “make an offer as to what he thought the witness’ answer might be”).

Decided October 12, 2016.

W. Jeffrey Langley, District Attorney, Leslie A. Coots, Assistant District Attorney, for appellant.

Without knowing how the deputy might have answered the prosecutor’s question, we do not know whether the State was harmed by any erroneous ruling on the defense objection. We cannot assume the answer to the prosecutor’s question would have been “yes,” and, indeed, the State merely requests that it be given a new chance to ask it on remand. And testimony by the deputy strongly suggests that he did not know the answer to the question: When he finally thought of the GBI as a potential suspect in the prosecutor’s quest for an answer as to who authorized the preliminary screening device, he merely said he “would imagine” that agency was responsible. Because the State did not offer a contrary proffer as to how the deputy might have answered the objected-to question, we affirm the trial court’s ruling on the suppression motion.

2. The State also included in its Notice of Appeal a challenge to the trial court’s denial of its motion to reopen the evidence.

Whether to reopen the evidence is a matter which rests within the sound discretion of the trial court. A trial court’s ruling in this regard will not be reversed in the absence of an abuse of discretion. Whether there has been a reversible abuse of discretion requires a consideration of the totality of the circumstances.

Carruth v. State, 267 Ga. 221, 221-22 (476 SE2d 739) (1996) (citations omitted). Here, the trial court ruled that it would not reopen the evidence because the suppression hearing “was the day to get [the foundational evidence] in” and, if the court were to grant the motion, it “would be inviting everyone to ask to open evidence every time [the court] ruled against them.” The State has not challenged this reasoning on appeal, or even argued specifically in its brief that the trial court erred in denying the motion to reopen evidence. The State on appeal merely asks that it be given a new opportunity to ask the objected-to question because it was improperly deemed a leading question. We cannot say the trial court abused its discretion in denying the State’s request to reopen the evidence.

Judgment affirmed.

Phipps, P. J., and Dillard, J., concur.

Jeffrey L. Wolff, for appellee.


text:
    A16A0966.
    MACK v. THE STATE.
    (792 SE2d 120)
   Peterson, Judge.

Chandler Mack appeals from the denial of his motion for new trial following his convictions for rape, armed robbery, aggravated assault, and possession of a firearm during the commission of a felony. Mack argues that the evidence was insufficient to sustain his convictions for rape and aggravated assault, and that the trial court erred in failing to instruct the jury on the crime of pointing a firearm as a lesser included offense of aggravated assault. We affirm Mack’s convictions in part because the evidence was sufficient to support his rape conviction. Because Mack’s conviction for aggravated assault should have merged with his armed robbery conviction, we vacate his aggravated assault conviction and his sentence and remand the case to the trial court for resentencing, which moots his challenges to his aggravated assault conviction.

“On appeal, the evidence must be viewed in the light most favorable to support the verdict, and the appellant no longer enjoys a presumption of innocence.” Culver v. State, 230 Ga.App. 224, 224 (496 SE2d 292) (1998) (citation omitted). So viewed, the evidence shows that the victim, who said she worked part-time as a paid “companion for older lonely gentlemen,” went to a DeKalb County apartment complex after receiving a midnight phone call soliciting her services. Mack met the victim in the parking lot, took her into an apartment, and led her to the bedroom. Mack talked to co-defendant Anthony Celestine while the victim sat on the bed in the bedroom. Mack entered the bedroom, leaned over the bed, pulled out a gun, and directed the victim’s attention to the gun while it was pointed at her.

Upon seeing the gun, the victim put her hands in the air and said, “You can have it all. I don’t have nothing.” Celestine had walked into the bedroom by this time. Celestine and Mack (the “Defendants”) began to go through the victim’s purse and call her banks to determine whether she had any available money The Defendants took the victim into the bathroom where the lighting was better. Mack continued to rummage through the victim’s purse, Celestine told the victim to take her clothes off, forced her to spread her legs, and inserted his finger inside her vagina. Celestine then directed the victim back into the bedroom, at which time she “begged him to put on a condom” because she knew what was about to happen. Celestine put on a condom and had sex with the victim.

Celestine went to the bathroom after he was finished, and the victim put on her clothes and went to the living room where Mack had been sitting. When Celestine joined them in the living room, he and Mack began sending text messages to people that had called the victim’s phone in an attempt to lure them to the apartment to rob them. At some point, Mack unbuckled his trousers and asked the victim to perform oral sex on him. The victim repeatedly asked Mack not to make her do that. Mack then directed the victim to the bedroom, where she begged him to put on a condom before having sex with her. Celestine kept the gun while the victim and Mack were in the bedroom.

After Mack and the victim finished having sex, they returned to the living room, and the victim told the Defendants that she had to go home because her aunt was taking care of her daughter. The victim also told the Defendants that she had to go to her job at a warehouse and that her aunt and her employer would know something was wrong if she did not return home soon. The Defendants discussed taking the victim to and from work and pimping her after she left her job. They allowed the victim to call her aunt, and the victim made arrangements to meet her aunt at a nearby gas station to pick up her daughter. The aunt became alarmed and called 911 because the victim never telephoned at 3:00 a.m. to ask for her daughter and she seemed nervous and afraid.

The victim and Celestine left the apartment complex and drove to the gas station. While the victim and Celestine waited at the gas station, 911 dispatch called the victim for her location, and the victim pretended to be talking to her aunt. Several police officers later arrived at the gas station, approached the victim’s vehicle, talked to Celestine and the victim, and then attempted to arrest Celestine. When one police officer placed a hand on Celestine, he pushed the officer and began to run. The officers gave chase and apprehended Celestine when he fell. The victim subsequently gave a description of Mack to a detective, and the detective composed a photo lineup of several individuals. The victim identified Mack in the photo lineup and also made an in-court identification. The victim testified that she did not consent to sex with Mack or Celestine, and that she did what she was told because the Defendants had a gun and she believed they would shoot her if she did not comply.

1. On appeal, Mack argues that the evidence was insufficient to convict him of rape because there was no evidence of force or intimidation and the evidence shows that the victim willingly agreed to have sex. He alternatively argues that he could not be convicted as a party to the crime of Celestine’s raping of the victim. We conclude that the evidence was sufficient to establish that Mack raped the victim.

When we review challenges to the sufficiency of the evidence, “[w] e neither weigh the evidence nor judge the credibility of witnesses, but determine only whether, after viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Otuwa v. State, 319 Ga. App. 339, 339-40 (734 SE2d 273) (2012) (citing Jackson v. Virginia, 443 U.S. 307, 319 (99 S. Ct. 2781, 61 LE2d 560) (1979)) (punctuation omitted).

“A person commits the offense of rape when he has carnal knowledge of. . . [a] female forcibly and against her will[.]” OCGA § 16-6-1(a)(1). Carnal knowledge is statutorily defined as “any penetration of the female sex organ by the male sex organ.” OCGA § 16-6-1(a). The term “forcibly” means the use of “acts of physical force, threats of death or physical bodily harm, or mental coercion,” and the phrase “against her will” means without the victim’s consent. Ponder v. State, 332 Ga. App. 576, 580 (1) (b) (774 SE2d 152) (2015) (citing State v. Collins, 270 Ga. 42, 43 (508 SE2d 390) (1998)) (punctuation and footnote omitted).

Here, there is no dispute that Mack had sexual intercourse with the victim, and the victim testified that the sex was not consensual. Although there is no evidence that Mack used physical force against the victim, the victim testified she generally agreed to the Defendants’ requests because they had a gun, which Mack had previously pointed at her, and she believed they would shoot her if she did not comply Lack of resistance, induced by fear, is force within the meaning of OCGA § 16-6-1(a)(1), and intimidation may be a substitute for force. See Derr v. State, 239 Ga. 582 (1) (238 SE2d 355) (1977); Curtis v. State, 236 Ga. 362, 362 (1) (223 SE2d 721) (1976). The victim’s testimony that she did not consent to sex and did not resist the Defendants’ directions to have sex because she was afraid was sufficient to sustain Mack’s conviction for rape. See OCGA § 24-14-8 (“The testimony of a single witness is generally sufficient to establish a fact.”); Ellis v. State, 316 Ga. App. 352, 356 (1) (c) (729 SE2d 492) (2012) (the jury was authorized to conclude that the defendant raped the victim when the victim explained she had sexual intercourse only because the defendant had a knife in his hand).

Mack argues that the State did not prove beyond a reasonable doubt that the victim was intimidated into sexual intercourse because she refused his request for oral sex without suffering any repercussions and, therefore, she had no reason to believe that she would be harmed if she refused to have sexual intercourse with him. Mack also argues that the victim had “plenty of control” over the situation because she made Mack put on a condom before having sex, and that the victim’s fear of the gun was negated by the fact that Mack did not have the gun when they had sex. In making these arguments, Mack is essentially stating that the victim’s fear was not reasonable and, because it was not reasonable, it was not believable. But Mack’s belief that her fear was unreasonable is immaterial. It was up to the jury, not Mack or this Court, to determine the credibility of the victim’s testimony as to lack of consent and whether she did not resist because she was intimidated. See Roberts v. State, 242 Ga. App. 621, 624 (1) (a) (530 SE2d 535) (2000) (“It is ... for the jury to determine whether the victim consented or whether any lack of resistance sprang from reasonable apprehension of great bodily harm, violence, or other dangerous consequences to herself or another.”) (punctuation and footnote omitted); Clark v. State, 197 Ga. App. 318, 321 (3) (398 SE2d 377) (1990) (“If it is reasonable to believe the victim did not consent in this case but complied out of fear, it is immaterial that the defendant thought her fears were ‘unreasonable.’ ”). The fact that the jury answered these issues adversely to Mack does not render the evidence insufficient. Because we conclude that the evidence was sufficient to show that Mack raped the victim, we need not address his alternative arguments about not being a party to the crime of Celestine’s rape of the victim.

2. Mack also raises challenges to his conviction for aggravated assault, arguing that the evidence was insufficient to support that conviction and that the trial court erred in refusing to give a jury charge on the lesser included offense of pointing a firearm. We need not address these challenges to the aggravated assault conviction, because we vacate that conviction on the ground that it should have merged with his armed robbery conviction.

In his motion for new trial, as amended, Mack argued that his conviction for aggravated assault should have merged with his conviction for armed robbery Although the trial court denied Mack’s motion for new trial on all grounds, it concluded that the aggravated assault conviction should have merged into the armed robbery conviction, and stated that it would set a date for resentencing. The State notes that Mack filed his notice of appeal before the trial court scheduled a resentencing hearing, appropriately concedes that Mack’s merger argument has merit, and requests that we remand the case for resentencing.

Decided October 12, 2016.

Christina Bennett, Tyler R. Conklin, for appellant.

Robert D. James, Jr., District Attorney, Gerald Mason, Eric K. Dunaway, Assistant District Attorneys, for appellee.

Here, Mack was charged with aggravated assault with a deadly weapon by pointing a handgun in the victim’s direction. See OCGA § 16-5-21(b)(2). A conviction for aggravated assault with a deadly weapon merges into an armed robbery conviction. See Long v. State, 287 Ga. 886, 889 (2) (700 SE2d 399) (2010). Therefore, his aggravated assault conviction must be vacated and the case remanded to the trial court for resentencing. Id. This conclusion moots Mack’s arguments that the evidence was insufficient to sustain his aggravated assault conviction and that the trial court erred in refusing to give a charge on a lesser included offense of aggravated assault. See id. at 889-90 (2) (erroneous jury charge argument mooted when sentence was vacated on ground it should have merged with another conviction); Wickerson v. State, 321 Ga. App. 844, 848 (1) n.6 (743 SE2d 509) (2013) (insufficiency of evidence argument mooted when the sentence was vacated on merger ground).

Judgment affirmed in part and vacated in part, sentence vacated, and case remanded with direction.

Phipps, P. J., and Dillard, J., concur.

       The victim’s “aunt” was a long-time friend.

       The filing of the notice of appeal divested the trial court of jurisdiction over the case. See Brown v. State, 322 Ga. App. 446, 448 (1) (745 SE2d 699) (2013) (the filing of a notice of appeal in a criminal case deprives the trial court of its power to execute the sentence and precludes the court from altering a judgment while the appeal from that judgment is pending).


text:
    A16A1013.
    McCARTHY v. ASHMENT
    (790 SE2d 651)
   Peterson, Judge.

Annie Ashment sought and obtained a permanent protective order enjoining her ex-husband, Joseph McCarthy, from having any contact with her or her immediate family. McCarthy filed a motion to set aside the protective order and a motion to modify it, and the trial court denied both motions. McCarthy appeals from that ruling and argues that the trial court erred in five ways: (1) the trial court lacked personal jurisdiction; (2) the protective order was procured by fraud; (3) the protective order was not supported by sufficient evidence; (4) the permanent condition that McCarthy not have contact with Ashment’s immediate family prevents him from visiting his children and was thus an unauthorized modification of his parental rights; and (5) the order amounted to an unconstitutional termination of his parental rights. We affirm the denial of McCarthy’s motion to set aside the protective order because his challenges to the protective order based on lack of personal jurisdiction, fraud, and sufficiency of the evidence have either been waived or are otherwise without merit. We reverse the denial of his motion to modify the protective order, however, because the trial court lacked the authority to permanently enjoin him from visiting his children.

The record shows that Ashment and McCarthy married in 2004, had four children together, and divorced in May 2012. The entire divorce decree is not included in the record, but it appears that Ashment was granted physical custody of the children and McCarthy had visitation rights.

In September 2013, the trial court granted Ashment’s petition for a family violence protective order against McCarthy In May 2014, a Paulding County magistrate judge issued a bench warrant for McCarthy’s arrest for the crime of aggravated stalking based on evidence that he was violating the protective order.

In August 2014, Ashment filed a motion for a permanent stalking order against McCarthy under the Family Violence Act in the Superior Court of Paulding County. Ashment asked the court to extend the existing temporary protective order and make it a permanent one because McCarthy was continuing to stalk her through friends, neighbors, and church associates, which led to the May 2014 bench warrant for aggravated stalking. Ashment also alleged that McCarthy resided at an address in Acworth that she claimed was in Paulding County Although there was no allegation that McCarthy was harming the children, Ashment sought sole physical and legal custody of the children and an order requiring McCarthy to stay away from her and the children.

On the same day that Ashment filed her petition for a permanent protective order, McCarthy was arrested and incarcerated in Cobb County for civil contempt related to his failure to pay child support. As a result of his incarceration, McCarthy was unable to attend the hearing on Ashment’s petition for a permanent protective order, although McCarthy’s mother was present for the hearing. Following the hearing, the trial court granted the permanent protective order, enjoining McCarthy from approaching within 300 yards of Ashment or her immediate family and enjoining him from any contact with her or her immediate family. The trial court did not specifically rule on Ashment’s request for sole physical and legal custody of the children.

During his incarceration, McCarthy was served with the 2014 bench warrant for aggravated stalking. McCarthy paid the amounts required to dispose of the contempt order and was released on bond on the aggravated stalking charges. Following his release from jail, McCarthy filed his motion to set aside the permanent protective order, arguing that the Paulding County Superior Court lacked personal jurisdiction over him because he was a resident of Cobb County and that Ashment procured the protective order through fraud. McCarthy later filed a motion to modify the permanent protective order in an effort to remove the prohibition on contact with his minor children, and he also argued that the protective order imper-missibly interfered with his parental rights. Following a hearing, the trial court denied McCarthy’s motions.

1. On appeal, McCarthy first argues that the trial court erred in failing to grant his motion to set aside the permanent protective order because the Paulding County Superior Court that entered the order lacked personal jurisdiction over him. We disagree.

A trial court’s ruling on a motion to set aside a judgment under OCGA § 9-11-60(d) is reviewed for abuse of discretion. Stamey v. Policemen’s Pension Fund Bd. of Trustees, 289 Ga. 503, 504 (1) (712 SE2d 825) (2011). A motion to set aside is the proper vehicle for attacking a judgment on the basis that the trial court lacked jurisdiction over the person. OCGA § 9-11-60(d)(1). But the lack of personal jurisdiction arising from the defects of invalidity of service or improper venue may be waived if such defenses are not made either by motion under OCGA § 9-11-12 or in the original responsive pleading. OCGA § 9-11- 12(h)(1)(B); Burch v. Dines, 267 Ga. App. 459, 461 (2) (600 SE2d 374) (2004).

McCarthy’s argument that the Paulding County Superior Court did not have jurisdiction over him is based on a claim that venue for the permanent protective order was in Cobb County. But McCarthy received service of Ashment’s motion for a permanent protective order, he filed no responsive pleading, and he conceded that he never objected to venue. Because McCarthy did not raise the defense of lack of personal jurisdiction or improper venue prior to the entry of the protective order, the trial court did not err in refusing to grant McCarthy’s motion to set aside for lack of personal jurisdiction. See Euler-Siac S.P.A. v. Drama Marble Co., Inc., 274 Ga. App. 252, 255-56 (1) (617 SE2d 203) (2005) (a defendant cannot set aside a judgment based on lack of jurisdiction where the defendant had the opportunity to raise the defense before entry of judgment); McDonough Contractors, Inc. v. Martin & DeLoach Paving & Contracting Co., 183 Ga. App. 428, 429 (1) (359 SE2d 200) (1987) (same).

2. McCarthy next argues that the trial court was required to set aside the permanent protective order because it was procured by fraud and was not supported by sufficient evidence. Specifically, McCarthy argues that Ashment lied about venue, made false allegations of stalking, and intentionally hindered him from attending the hearing.

In order to set aside a judgment based on fraud under OCGA § 9-ll-60(d)(2), the movant must demonstrate that the fraud was extrinsic or collateral to the merits of the case. Harris v. State, 278 Ga. 280, 282 (600 SE2d 592) (2004); Herringdine v. Nalley Equip. Leasing, Ltd., 238 Ga. App. 210, 216 (4) (517 SE2d 571) (1999) (physical precedent only). Fraud is extrinsic or collateral within the meaning of OCGA § 9-11-60(d)(2) when “the effect of [the fraud] prevents a party from having a trial, or from presenting all of his case to the court, or which operates, not upon matters pertaining to the judgment itself, but to the manner in which it is procured.” Harris, 278 Ga. at 282 (citation and punctuation omitted). A fraud is “intrinsic” when it pertains to an issue raised or which could have been raised in the original action. Dixie Cash Register Co., Inc. v. S. D. Leasing, Inc., 172 Ga. App. 424, 424 (323 SE2d 284) (1984). If the fraud was or could have been discovered and raised in the court below, a party is prevented from setting aside a judgment allegedly procured by fraud. Id. at 424-25; see also Gordon v. Gordon, 237 Ga. 171, 172 (1) (227 SE2d 53) (1976); Herringdine, 238 Ga. App. at 217 (4).

Here, none of McCarthy’s allegations of fraud entitled him to set aside the judgment. With respect to his claim that Ashment fraudulently alleged that he lived in Paulding County, that allegation was made plain in her petition for a permanent protective order. McCarthy knew whether this allegation was true or not, and he conceded that he failed to raise the issue below. Consequently, he is not entitled to set aside the judgment now based on allegations that Ashment misrepresented his residence. See Herringdine, 238 Ga. App. at 217 (4) (defendant could not set aside judgment for fraud where defendant failed to exercise proper diligence to discover forgery prior to judgment); Shepherd v. Metro. Property & Liability Ins. Co., 163 Ga. App. 650, 652 (3) (294 SE2d 638) (1982) (appellant could not set aside judgment on ground that he had known or could have discovered through reasonable diligence).

McCarthy also claimed that Ashment presented false testimony and failed to meet the elements of stalking in order to obtain the permanent protective order. The hearing on Ashment’s petition for the protective order was not transcribed, however, and in the absence of a transcript or an acceptable substitute, we must assume that the evidence presented at the hearing was sufficient to support the trial court’s decision to award a permanent protective order. See Holmes v. Roberson-Holmes, 287 Ga. 358, 361 (1) (695 SE2d 586) (2010); Vaughn v. Stafford, 306 Ga. App. 536, 537 (702 SE2d 761) (2010).

McCarthy also argues that Ashment intentionally hindered his ability to attend the hearing on her petition for a permanent protective order. McCarthy essentially argues that, had Ashment not worked to prevent his attendance at the hearing, he would have been able to refute Ashment’s false allegations. But the undisputed evidence shows that McCarthy did not attend the hearing because he was incarcerated for failing to pay over $30,000 in child support. McCarthy’s failure to pay — not Ashment’s attempts to collect on child support he owed — was the reason McCarthy could not attend the hearing. McCarthy conceded that he never filed a motion to be produced for the September 2014 hearing or otherwise contacted the trial court seeking a production order. McCarthy also did not file an answer to Ashment’s petition for a permanent protective order. Because McCarthy’s failure to attend the hearing or otherwise challenge the validity of Ashment’s allegations was his own doing, he was not entitled to set aside the judgment on the basis that Ashment’s allegations of continued stalking were untrue. Ne. Atlanta Sur. Co. v. State of Ga., 197 Ga. App. 399, 401 (398 SE2d 435) (1990) (“Relief under OCGA § 9-11-60(d)(2) may only be granted where the grounds are unmixed with the negligence or fault of the movant.”) (citation and punctuation omitted); see also Granite Loan Solutions, LLC v. King, 334 Ga. App. 305, 307 (3) (a) (779 SE2d 86) (2015) (where a judgment is entered because the defendant failed to refute the allegations in the complaint by failing to file an answer, a trial court does not err in refusing to set aside the resulting judgment).

3. McCarthy argues that the trial court erred by failing to set aside the permanent protective order on the basis that it prohibited him from contacting his children. Alternatively, he argues that the trial court erred by failing to modify the order to exclude his children from its dictates. He argues that the protective order effectively modified custody such that Ashment would have permanent custody of the children, and he would be permanently enjoined from visiting them, and further argues that such a modification amounted to an unconstitutional termination of his parental rights. McCarthy is at least partially correct.

The permanent protective order expressly states that McCarthy is enjoined from contacting Ashment’s “immediate family.” There is no dispute that Ashment’s immediate family includes McCarthy’s children. Indeed, prohibiting McCarthy from having any contact with the children is precisely the relief that Ashment requested when she asked the trial court to award her sole legal and physical custody of the children and to require McCarthy to stay away from her and the children. But in the context of this case, the trial court lacked authority to permanently enjoin McCarthy from having contact with his children.

In granting any protective order, the trial court is authorized to “[ajward temporary custody of minor children and establish temporary visitation rights[.]”OCGA § 19-13-4(a)(4). In Chatman v. Palmer, 328 Ga. App. 222, 226 (1) (761 SE2d 616) (2014), we relied on the plain text of subsection (a)(4), providing for temporary changes to custody and visitation, and concluded that the trial court erred when granting the petitioner permanent custody of the children when awarding a permanent protective order. Because a trial court considering a request for a protective order has the authority to change custody and visitation only temporarily, the trial court erred in this case by entering a protective order that permanently enjoined McCarthy from having any contact with his children.

Ashment does not attempt to defend the trial court’s action, but argues that McCarthy waived the issue because he later withdrew the motion in which he first asserted this argument. But although McCarthy withdrew that motion, he also filed a separate motion to modify raising the same challenges and presented argument and evidence to support his request at the hearing on his motion. Ashment does not address this in her brief. Thus, McCarthy preserved the issue.

Ashment also argues that, in order to modify the protective order, McCarthy had to establish a change in conditions. The trial court concluded this as well and denied McCarthy’s motion to modify on this basis. But the court’s conclusion was wrong, because it was based on an assumption that it had the authority under OCGA § 19-13-4 to enter the permanent injunction regarding McCarthy’s children in the first place. That assumption was wrong. McCarthy had existing visitation rights. There was no allegation that he posed any threat to his children. The trial court lacked authority in this posture to end permanently McCarthy’s visitation rights under OCGA § 19-13-4, and it erred by failing to modify its protective order to allow McCarthy to exercise his visitation rights.

Decided September 22, 2016

Reconsideration denied October 13, 2016.

Joseph B. McCarthy, pro se.

Hill Macdonald, Brad E. Macdonald, for appellee.

Accordingly, we affirm the denial of McCarthy’s motion to set aside the permanent protective order and reverse the denial of his motion to modify the order to remove his children as protected parties. Based on this determination, we need not address McCarthy’s other arguments.

Judgment affirmed in part and reversed in part.

Phipps, P. J., and Dillard, J., concur.

       “Family violence” is statutorily defined to include the act of stalking between persons who are parents of the same child. See OCGA § 19-13-1(2).

       The Family Violence Act provides that, except for proceedings involving a nonresident respondent, “the superior court of the county where the respondent resides shall have jurisdiction over all proceedings under this article.” OCGA § 19-13-2(a). Additionally, OCGA § 16-5-94, which authorizes a party to petition a court for a stalking protective order, similarly provides that jurisdiction is governed by OCGA § 19-13-2. See OCGA § 16-5-94(a), (b).

       McCarthy also admitted that he was a Paulding County resident when Ashment filed her 2013 petition for a temporary protective order, although he argued that the 2014 petition, which sought to convert the initial protective order into a permanent one, should not be treated as a continuance of the initial proceedings because it received a new case number.


author: BARNES, Presiding Judge.

text:
    A16A1270.
    HAMPTON v. THE STATE.
    (792 SE2d 124)
   BARNES, Presiding Judge.

A jury convicted Justin Kyle Hampton of trafficking in methamphetamine, and the trial court sentenced him to serve twenty years in prison, followed by ten years on probation. He appeals, arguing that the trial court erred in denying his Sixth Amendment right to confront witnesses against him by refusing to let him call the State’s informant as a witness to testify regarding Hampton’s defense of entrapment, on which the trial court charged the jury. Hampton also argues that the trial court erred in refusing to allow him to see the transcript of the court’s in camera hearing with the informant, that his counsel was ineffective, and that the evidence was insufficient. While we find the evidence sufficient to sustain the judgment of conviction, for the reasons that follow, the trial court erred in refusing to allow Hampton to call the known informant as a witness. Because Hampton has shown harm as well as error, we reverse.

1. On appeal, we review the evidence in the light most favorable to the jury’s verdict to determine whether the State presented sufficient evidence for a rational trier of fact to find the defendant guilty of the crimes for which he was convicted. Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979); Hardin v. State, 277 Ga. 242 (1) (587 SE2d 634) (2003). The jury resolves conflicts in the testimony and weighs and draws reasonable inferences from the evidence, and we will uphold the verdict if some competent evidence is presented that supports each fact necessary to make out the State’s case. Lomax v. State, 319 Ga. App. 693 (738 SE2d 152) (2013).

So viewed, the evidence showed that Hampton’s employer asked him to put together a drug deal for a friend to buy 28 grams of methamphetamine for $1,400. Hampton’s employer was actually an informant, and the informant’s “friend” was an undercover agent with a local drug task force. Hampton called an acquaintance, David Thompson, who contacted Dwayne Eddie Collett and reported back to Hampton that he and Collett could meet him that afternoon in Fayette County to complete the sale.

The case agent who oversaw the informant was not ready that afternoon to organize a $1,400 “buy-bust” of 28 grams of methamphetamine, and the informant asked Hampton to reset the sale for the following afternoon. Hampton and his contact Thompson agreed to meet at a Fayette County convenience store the next day at 2:00 p.m. The informant and the undercover agent met with the case agent at the sheriff’s office, and the undercover agent then drove the informant to the store, where they met Hampton. The three men waited for the sellers in the undercover agent’s truck for almost three hours before the agent finally decided to call the deal off. The State secretly recorded the conversation while they waited, and most of that recording was played for the jury

About 30 minutes after the undercover agent called off the deal, Hampton received a phone call from the sellers, who were at the convenience store ready to make the sale. Hampton called the informant, who contacted the case agent, who decided there was not enough time to set up a buy-bust and that therefore the informant did not need to be present. Instead, the case agent decided he had enough evidence to arrest “the subjects that are involved in this situation.”

While the officers were en route to the convenience store, they passed Hampton walking back and decided to watch and see if he made contact with the sellers, Thompson and Collett. Thompson got out of his vehicle and met Hampton at the front door of the convenience store, then returned to the driver’s seat while Hampton went inside. The officers moved in with lights and sirens and Thompson fled on foot, but was caught a short distance away. In the area where he was caught, the officers found a bag containing 26.26 grams of methamphetamine.

Collett did not run, and the officers found another bag containing almost 12 grams of methamphetamine in the car, and several small bags of methamphetamine as well as several alprazolam pills in Collett’s pockets. The officers recovered five bags of methamphetamine at the arrest scene that contained a total of 40.54 grams, the largest bag being the one found near Thompson. Hampton left the store by the back door and was arrested a week later.

Collett, Thompson, and Hampton were charged with trafficking in methamphetamine for possessing more than 28 grams of a mixture containing the controlled substance. Collett was also charged with possession of alprazolam, and Thompson was charged with obstruction and hindering law enforcement by refusing an officer’s lawful commands. As of Hampton’s trial, Collett and Thompson had pled guilty and were sentenced respectively to fifteen years to serve and fifteen years to serve ten in custody Neither testified at Hampton’s trial.

Former OCGA § 16-13-31 (e), the statute in effect in November 2011, when the crime occurred, provided: “Any person who knowingly sells, delivers, or brings into this state or has possession of 28 grams or more of methamphetamine ... as described in Schedule II, in violation of this article commits the felony offense of trafficking.” The State concedes that Hampton never had actual possession of the drugs, and Hampton concedes the evidence is sufficient to show he had constructive possession of the 26.26 grams of methamphetamine discovered near the area where Thompson was apprehended. Hampton argues that the evidence was not sufficient to establish he also had constructive possession of the methamphetamine found in Col-lett’s car or on his person, and therefore he did not knowingly possess the 28 grams required for a trafficking conviction.

The plain language ofthe version of former OCGA § 16-13-31 [(e)] at issue dictates the conclusion that knowledge of the quantity of the drug was an element of the crime. It contains express scienter requirements, that is, knowledge of the nature and amount of the drug and of being in possession of it. And, certainly where “knowledge” is made part of an offense, the State has the burden to prove the defendant’s guilty knowledge.

Scott v. State, 295 Ga. 39, 40 (1) (757 SE2d 106) (2014).

The evidence as outlined above showed that Hampton made phone calls to Thompson to arrange for the informant to buy 28 grams of methamphetamine. Thompson and Collett came to the prearranged meeting location with more than 28 grams in their possession. While Hampton argues that only 26.26 grams were delivered to support the sale in which he was involved, the evidence did not demand such a finding. The jury could also infer that Thompson and Collett brought some of the additional methamphetamine in case the buyer insisted on delivery of the full weight for which he had bargained. The evidence as outlined was sufficient for a rational trier of fact to find Hampton in constructive possession of at least 28 grams of methamphetamine and therefore guilty of trafficking. Hardin, 277 Ga. at 242 (1).

2. Hampton argues that the trial court denied him his Sixth Amendment right to confront witnesses against him by not allowing him to call the informant, his employer, as a witness. His defense was entrapment, and he filed motions before trial both to reveal the identity of the informant and to compel the State to produce the informant as a witness. The State represented to the trial court that Hampton’s motion to compel production was encompassed completely by his motion to disclose the informant’s identity While the State responds on appeal that the trial court properly denied Hampton’s motion to compel disclosure of the identity of its “confidential informant,” Hampton knew the identity of the informant. It was the man who employed him, who had to be removed from the courtroom twice before the parties argued Hampton’s motions, and who appeared in an almost-three-hour video introduced by the State in its case-in-chief. The issue is whether Hampton should have been allowed to call the informant and question him related to Hampton’s entrapment defense.

The function of law enforcement is the prevention of crime and the apprehension of criminals. Manifestly, that function does not include the manufacturing of crime. Criminal activity is such that stealth and strategy are necessary weapons in the arsenal of the police officer. However, a different question is presented when the criminal design originates with the officials of the Government, and they implant in the mind of an innocent person the disposition to commit the alleged offense and induce its commission in order that they may prosecute.

Sherman v. United States, 356 U. S. 369, 372 (78 SCt 819, 2 LE2d 848) (1958) (citations and punctuation omitted).

[T]he entrapment defense consists of three distinct elements: (1) the idea for the commission of the crime must originate with the state agent; (2) the crime must be induced by the agent’s undue persuasion, incitement, or deceit; and (3) the defendant must not be predisposed to commit the crime. OCGA § 16-3-25[.]

Keaton v. State, 253 Ga. 70, 71-72 (316 SE2d 452) (1984). If a defendant raises the affirmative defense of entrapment, he must generally admit that the act charged was committed, unless it is the State that injects evidence of entrapment and the defendant insists he did not commit the crime charged. Gregoroff v. State, 248 Ga. 667 (285 SE2d 537) (1982) (physician denied having prescribed controlled substances without a legitimate medical purpose).

Even if a defendant knows or suspects who the informant is, “the public and the informant have a clear interest which can ... be protected even when the informant’s identity has been disclosed or discovered.” State v. Mason, 181 Ga. App. 806, 809 (3) (353 SE2d 915) (1987), overruled in part on other grounds, Watts v. State, 274 Ga. 373, 375 (1) (552 SE2d 823) (2001). The purpose behind the government’s privilege to prevent the informant from testifying “is the furtherance and protection of the public interest in effective law enforcement” by allowing citizens to remain anonymous and thus encourage them to fulfill their obligation “to communicate their knowledge of the commission of crimes to law-enforcement officials. . . . [But t]he scope of the privilege is limited by its underlying purpose.” Roviaro v. United States, 353 U. S. 53, 59-60 (77 SCt 623, 1 LE2d 639) (1957).

Our Supreme Court analyzed the confidential informant disclosure issue under both Brady v. Maryland, 373 U. S. 83 (83 SCt 1194, 10 LE2d 215) (1963) (disclosure of evidence favorable to defendant required if material to guilt or punishment) and Roviaro, 353 U. S. 53 (balancing government interests against defendant’s rights and concluding that, under facts presented, government was required to disclose informant’s name at trial). Thornton v. State, 238 Ga. 160 (231 SE2d 729) (1977). The Court observed:

[T]he basis of both Brady and Rouiaro is fundamental fairness to the accused. Therefore, they must be read together where, as here, the question is disclosure of the identity of the state’s informer-witness or informer-participant if material to the defense on the issue of guilt or punishment. When such an informer’s identity is required under the standards set forth in Brady, the trial court must go further and weigh the materiality of the informer’s identity to the defense against the state’s privilege not to disclose his name under Rouiaro.

Thornton, 238 Ga. at 164-165 (2).

Where a defendant charges that a confidential informant has entrapped him outside the presence of any other witnesses, Rouiaro would ordinarily require disclosure of the informant’s identity, since the defense of entrapment would rest upon allegations which only the informant could confirm or deny

(Footnote omitted.) State v. Royal, 247 Ga. 309, 312 (2) (275 SE2d 646) (1981); Griffiths v. State, 283 Ga. App. 176, 177-178 (1) (641 SE2d 169) (2006).

When this case was called for trial, Hampton noted that he had a pending motion to reveal the identity of the “confidential informant,” his defense being that the informant had threatened his job unless he found a local methamphetamine connection. The State responded that Hampton had the burden of proving both the materiality and the necessity of the witness’s testimony for his entrapment defense, and to rebut that argument, the State introduced the video of the informant, the undercover agent, and Hampton that was recorded while they waited in the agent’s truck for almost three hours for the sellers to show up. The State then called the informant’s case agent, who testified about his participation in the setup and confirmed that he had not been privy to conversations between the informant and Hampton and had no personal knowledge about whether the informant made threats to or coerced Hampton into setting up the deal.

The parties argued at length about Hampton’s entrapment defense. Hampton proffered that the conversations he had with the informant were conducted outside the privy of the State, that the informant originated the idea of the crime, and that but for the informant’s undue influence and duress, Hampton would never have committed the act. Hampton further proffered that he had a tenth grade education, that he had difficulty finding employment, and that the informant had threatened to withhold work from Hampton unless he found a local methamphetamine connection for the informant.

The trial court conducted an in camera hearing with the informant and the State, absent the defendant and his counsel, to determine whether to grant Hampton’s request to reveal the informant’s name at trial and compel the State to produce the informant as a witness. The trial court conducted most of the examination during the in camera hearing, and in response to the trial court’s direct questions, the informant denied planting the idea to commit the crime in Hampton’s mind. He admitted that Hampton came to him looking for work and that he had given him a few days of work. He also testified that he had known Hampton for about eight years, and added, “But I went the wrong way and started doing time. And then he started doing a lot of pills and stuff.”

The informant further testified that, in his capacity as an informant, he had previously told Hampton to let him know if Hampton knew where he could “get anything at,” and that Hampton “kept saying I got somebody, I can bring it.” The informant admitted that, while waiting for the sellers to show up with the drugs, he told Hampton, “man, if these people don’t show up — because he’s going to make me look bad in front of them — then I said I’m going to work you an extra day for 5 dollars or something like that. I was just playing with him.”

The trial court asked the informant if he was testifying that it was not his idea to procure the methamphetamine, and he responded:

I wasn’t on him like that. I mentioned it to him, you know where can we get some of that good stuff, and — some ice or something, because I do work for [the case agent] and them. And he said I can get some; I can get some of it. And then I just — I said well, okay, let’s finish this job. Went to the next job; and he said I made that call, I can get it. I was like, man, I ain’t talking about no nickel and dime stuff. And then he kept pursuing it from there.

The State asked the informant if he had ever arranged a deal with Hampton before or known of him to deal drugs, and the informant replied that he had bought pills from Hampton before, who had acted as a go-between or broker. The informant denied thinking that he would personally benefit from having Hampton set up the deal, because he thought that his latest Fayette County offense — having pawned a neighbor’s lawn equipment without permission — had been resolved by then. He also testified that his name was “crap” in the county because people knew he was an informant, and that he had been severely beaten a year before the trial by eight or nine men, including the nephew of a man the informant had set up.

When the parties returned to court the next morning, the trial court ruled from the bench, noting first that once Hampton presented evidence of entrapment, the burden shifted to the State to prove there was no entrapment. The court found that, based on the informant’s in camera testimony, evidence from him would be inculpatory, not exculpatory, and further noted that the jury would be able to see the informant, Hampton, and the undercover agent interact during the video recording.

The State then presented its case-in-chief to the jury, which consisted of the testimony of the case agent, the video recording of Hampton, the informant, and the undercover agent waiting in the agent’s truck, the testimony of a deputy sheriff about chain of custody, and the testimony of a forensic chemist about the weight and composition of the methamphetamine placed in evidence. After the State rested and the trial court denied Hampton’s motion for a directed verdict of acquittal, Hampton testified.

Hampton testified that he had never sold or taken methamphetamine before, but set up this methamphetamine deal because his employer, the informant, told him that if he did not do so, the informant would not employ him any more, and Hampton needed the job so he could feed himself. Hampton, who was 22 when the incident took place, said he began working part-time for the informant in October 2011. He explained that his father died when he was 2, his mother died when he was 10, and the aunt he had gone to live with kicked him out of her house when he was 17. He slept on couches and in friends’cars, quit school, andbegan working full-time. He described his economic difficulties, and said that in fall 2011, when his usual work cutting grass was unavailable, he began working for the informant a couple of days a week for $60 to $100 cash until he could join the Army the following summer. He testified that the informant initially asked him if he knew where to get “pills and stuff,” and that he replied he did not “mess with” anything like that any more. He admitted that he used to smoke marijuana and take pills, and that he had sold some of his personal stash to friends at cost, but denied ever making a profit selling drugs. He also denied selling, using, or even seeing methamphetamine before the trial, and testified he had not expected to make any money on the deal he set up for the informant.

Hampton testified that the first time the informant asked him if he knew where to find some methamphetamine was the day before the drug bust took place. In response, Hampton said he asked the informant if he was using drugs, because the informant used to be a crack addict and Hampton did not want to ride around with him if he was carrying drugs. The informant said he was looking for a friend who wanted to find a local connection for methamphetamine by the ounce. Hampton testified that he asked why the informant would be talking to someone who wanted to find that drug and said he should tell his friend to “get lost.”

Hampton further testified that the informant responded that it was important for him to help his friend make a connection, and when Hampton again said he did not know anyone, the informant “started to get frustrated.” According to Hampton, the informant finally said, “Justin, I’m helping you with a job. If you don’t help me find my friend a new connection, then I’m not going to work you. You’re no good to me.” Hampton testified that he believed that the informant would not give him any work if he did not find someone to sell the informant’s friend an ounce of methamphetamine, and that he needed the job to feed himself because no one else was going to take care of him. He called a friend who knew someone who sold pills and asked if the friend knew anyone who could find methamphetamine for his boss’s friend. Hampton’s friend gave him the phone number of a girl named Chris, whose boyfriend was David Thompson. Thompson said he thought his guy “Eddie” could get an ounce of methamphetamine. Thompson checked and called Hampton back to set up a time and place for the sale.

Hampton admitted that while he waited with the informant and the undercover agent for the sellers to show, he tried to impress both men by saying he used to sell drugs. He also testified that after the undercover agent called off the deal, the informant cussed at him on the phone for wasting his friend’s time and hung up on him, although his attitude was different, when Hampton called back to say the sellers had finally arrived at the agreed-upon meeting place. The informant told Hampton to return to the store and introduce the informant’s friend to the seller. After Hampton returned to the store, he identified Thompson’s truck over the phone to the informant’s friend and briefly met with Thompson at the door to the store. Hampton then went inside, bought a drink, and left through the back door, he said, never having seen the cops who arrived then to arrest Thompson and Eddie Collett.

After Hampton rested, his trial counsel asked the trial court for a copy of the court’s written order denying his motion to reveal the informant so he could address the trial court’s findings when he argued his renewed motion, but the order had not been finalized. The court added that the video recording had been a key factor in its decision to deny Hampton’s motion, finding that the video weighed against the need for the informant’s testimony. Hampton argued that the entrapment occurred before the recording and that no evidence rebutted his testimony about his job being threatened. The State responded that Hampton admitted having previously exchanged drugs for money, which was sufficient to establish his predisposition to sell drugs, and that his statements on the video were inconsistent with his entrapment defense. The trial court denied the renewed motion. In its instructions, the court charged the jury on Hampton’s affirmative defense of entrapment, including the proposition that the State had the burden of proving beyond a reasonable doubt that Hampton had not been entrapped.

After deliberating for almost an hour, the jury asked the court to recharge them on the definition of parties to a crime and entrapment. After the trial court did so, the jury deliberated for another 15 minutes and returned a verdict of guilty.

The issue in this case is not whether the trial court erred in declining to require the State to identify the informant. Hampton knew who the informant was. The informant’s identity was also known to the jury, who watched the informant onscreen during the lengthy video recording of him sitting with Hampton and the undercover agent. In fact, the informant had come into the courtroom twice and had to be removed. The issue is whether the trial court erred in finding that the State’s interest in preventing the informant from testifying outweighed Hampton’s right to compel the attendance of the only witness besides Hampton who had evidence related to Hampton’s entrapment defense.

The informant’s testimony was material to Hampton’s entrapment defense, as it was the only source of evidence about it other than Hampton himself. Further, the informant was not a “mere tipster” — “one who provides information about criminal activity” and whose relevant testimony would be inadmissible hearsay, but a “ ‘decoy’ — a person used to obtain evidence (the informer-participant) or to establish facts (the informer-witness) upon which to base a prosecution.” Thornton, 238 Ga. at 163 (2). See also Wingfield v. State, 159 Ga. App. 69, 71 (282 SE2d 713) (1981) (defendant had right to compel attendance of informant who was not a mere tipster, whose “ ‘cover’ had been blown,” whose picture was in evidence, and whose testimony was highly material to defendant’s only defense of misidenti-fication). The informant here testified in camera that he brought up the subject of drug sales in the first place, that he told Hampton not to set up “no nickel and dime stuff,” and that he threatened to work Hampton for $5 a day if the sellers did not show up. The informant was not even sure if he had been in trouble with the county when he orchestrated this deal. Neither the trial court nor the State questioned the informant during the in camera hearing about any quid pro quo he received for his facilitation of the drug deal.

The Sixth Amendment to the U. S. Constitution guarantees the right of an accused in a criminal prosecution to be confronted with the witnesses against him. The main and essential purpose of the right of confrontation is to secure for the opponent the opportunity of cross-examination. The partiality of a witness is subject to exploration at trial, and is always relevant as discrediting the witness and affecting the weight of his testimony. This principle is particularly important with witnesses who have substantial incentives to cooperate with the government. . . . Accordingly, defense counsel is entitled to a reasonable cross-examination on the relevant issue of whether a witness entertained any belief of personal benefit from testifying favorably for the prosecution.

Manley v. State, 287 Ga. 338, 340 (2) (698 SE2d 301) (2010) (citations and punctuation omitted). While the trial court retains wide latitude to impose reasonable limits on such an examination, id., in this case the defendant had no opportunity to question the informant about his partiality as it might affect his testimony about whether he coerced Hampton into setting up the deal. Hampton’s conduct and statements during the video may be relevant to his credibility, but it is not the only proof of whether he set up the deal under duress.

Further, post-trial counsel moved the court for both a copy of the in camera transcript and to compel the attendance of the informant at the new trial hearing to establish what kind of benefits he might have obtained from the police while working as an informant, but the trial court denied both motions.

Hampton must show harm as well as error to obtain a new trial. Moore v. State, 187 Ga. App. 387, 392 (2) (370 SE2d 511) (1988).

In Roviaro, the Supreme Court, after applying the balancing test, held that it was prejudicial error not to reveal the informant’s identity where the informant was the sole participant, other than the accused, in the transaction and, thus, “was the only witness in a position to amplify or contradict the testimony of government witnesses.” (Emphasis supplied.) Id. at 64. Further, although the defendant in Rouiaro was not in a position to interview the unidentified informant (decoy) and thereby ascertain the anticipated scope and content of his testimony, the Supreme Court concluded that “[t]he circumstances of this case demonstrate that [the informant’s] possible testimony was highly relevant and might have been helpful to the defense.” (E mpha-sis supplied.) Id. at 63-64.

Id. at 388-389 (2).

Here, the informant himself testified in camera that his identity as an informant for the police was well known in Fayette County and that he had been severely beaten a year before because of his informant activities. Thus, the government no longer has an overriding interest in maintaining the informant’s anonymity to continue securing the flow of information from him. See Roviaro, 353 U. S. at 60 (“The scope of the privilege is limited by its underlying purpose. Thus,... once the identity of the informer has been disclosed to those who would have cause to resent the communication, the privilege is no longer applicable.”).

Although the informant denied during the in camera hearing that the idea for committing the crime originated with him and denied that he used undue persuasion or incitement to induce Hampton to set up the methamphetamine sale, Hampton testified otherwise. As the Supreme Court of Georgia observed, “if the confidential informant acts as the entrapper, and if the defendant can show that he has an arguably persuasive defense of entrapment — the [S]tate might have a duty to produce such a witness.” Boatright v. State, 260 Ga. 534, 536 (1) (c) (397 SE2d 689) (1990). Hampton obviously made an arguably persuasive case of entrapment, as the trial court charged the jury on the defense. Further, the trial court’s conclusion that the informant’s testimony was inculpatory, not exculpatory, is not dis-positive. Regardless of whether the informant disputes or corroborates Hampton’s testimony, Hampton is entitled under Rouiaro to confront the informant and let a jury determine the relative credibility of both men.

Accordingly, because the trial court erred in not granting Hampton’s motion to compel the State to produce the informant to testify at trial, we must reverse the conviction and remand for a new trial.

Decided October 13, 2016.

James E. Bischoff, for appellant.

Scott L. Ballard, District Attorney, B. Ashton Fallin, Assistant District Attorney, for appellee.

3. Hampton’s remaining enumerations of error are without merit or unlikely to arise upon retrial.

Judgment reversed and case remanded.

Boggs and Rickman, JJ., concur.

       The version of the statute applicable to Hampton was effective July 1, 2003 to June 30, 2012. Ga. L. 2003, p. 177, § 4. The statute was amended, effective July 1, 2012 to June 30, 2013, and its present version became effective July 1, 2013. Ga. L. 2012, p. 899, § 3-8/HB 1176; Ga. L. 2013, p. 222, § 4/HB 349.

       The record does not contain a written order.