author: ANDREWS, Presiding Judge.

text:
    A16A1237.
    THE STATE v. REID.
    (786 SE2d 694)
   ANDREWS, Presiding Judge.

The State appeals the grant of a motion to suppress results of a blood test taken pursuant to the Georgia implied consent law. We reverse.

On the evening of February 8, 2015, a Georgia state trooper pulled Jessica Reid over for speeding. In the course of that traffic stop, the trooper suspected Reid had been driving under the influence of alcohol, and he arrested her after conducting some field sobriety tests. After reading her the Georgia implied consent notice, the trooper transported Reid to a county fire department EMS to have a blood test. Before the blood draw, Reid signed an EMS form stating: “I hereby consent to allow SSFD/EMS, acting at the request of the Officer identified below and as an agent of a licensed law enforcement agency, to draw a blood sample for the purpose of determining the presence of alcohol or any other drug.” The state trooper also executed the EMS form below Reid’s signature, stating that his request for a blood draw was made pursuant to the Georgia implied consent law.

Reid subsequently moved to suppress the blood test results on the ground she had not given actual consent to the blood draw as required by Williams v. State, 296 Ga. 817 (771 SE2d 373) (2015). Considering the totality of the circumstances, the trial court found the State only showed that Reid acquiesced to the blood draw in the context of the implied consent law, i.e., out of concern she would lose her license if she refused the test. As such, the trial court suppressed Reid’s blood test results on the ground Reid’s consent to the blood test was not free and voluntary

Williams rejected [a] per se rule automatically equating an affirmative response to the implied consent notice with actual consent to a search within the meaning of the Fourth Amendment. Instead, courts must now conduct a case-by-case analysis, considering the totality of the circumstances. ... A consent to search will normally be held voluntary if the totality of the circumstances fails to show that the officers used fear, intimidation, threat of physical punishment, or lengthy detention to obtain the consent.

Decided April 22, 2016

Reconsideration denied May 10, 2016.

MegE. Heap, District Attorney, Burt A. Burton, Assistant District Attorney, for appellant.

Scheer & Montgomery, Donald L. Montgomery, for appellee.

Kendrick v. State, 335 Ga. App. 766, 769 (782 SE2d 842) (2016) (citation and punctuation omitted).

In the instant case, Reid verbally agreed to submit to the requested blood test, and she also executed a written consent that specifically indicated it was for the purpose of determining the presence of alcohol in her blood. The state trooper’s video of the stop and administration of the field sobriety tests shows Reid clearly understood the situation and articulately pleaded with the officer not to arrest her. The video also fails to show any coercive circumstances that would undercut the voluntariness of Reid’s consent.

[W]e do not read Williams’ rejection of a per se rule of consent under the implied consent statute as authorizing us to replace it with its opposite — that is, a per se rule that the State must always show more than consent under the implied consent statute. . . . An affirmative response to the question posed by the implied consent language may be sufficient. . . to find actual consent, absent reason to believe the response was involuntary

Kendrick v. State, supra at 771-772.

As there is no evidence that Reid’s consent was anything but free and voluntary, the trial court erred in granting the motion to suppress.

Judgment reversed.

Doyle, C. J., and Ray, J., concur.


source: Caselaw Access Project

author: Boggs, Judge.

license: Public Domain

text:
    A16A0339.
    THE STATE v. FLORES-GALLEGOS.
    (786 SE2d 911)
   Boggs, Judge.

The State of Georgia appeals from the trial court’s order suppressing Mario Flores-Gallegos’ Intoxilyzer test results. The court concluded that Flores-Gallegos “did not give actual, knowing and voluntary consent to the administration of the State’s breath test.” For the following reasons, we remand this case for the trial court to consider the motion to suppress under the proper standard.

When reviewing the trial court’s ruling on a motion to suppress, this court applies the following principles:

First, when a motion to suppress is heard by the trial judge, that judge sits as the trier of facts. The trial judge hears the evidence, and his findings based upon conflicting evidence are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support them. Second, the trial court’s decision with regard to questions of fact and credibility must be accepted unless clearly erroneous. Third, the reviewing court must construe the evidence most favorably to the upholding of the trial court’s findings and judgment.

(Citation and punctuation omitted.) State v. Barnes, 331 Ga. App. 631, 632 (770 SE2d 890) (2015). To this end, “we owe no deference to the trial court’s conclusions of law and are instead free to apply anew the legal principles to the facts.” (Citation and punctuation omitted.) Id. We “review de novo the court’s application of the law to the undisputed facts.” (Citation, punctuation and footnotes omitted.) State v. Mosley, 321 Ga. App. 236 (739 SE2d 106) (2013).

In this case, the trial court ruled based upon the testimony of the witness whose vehicle Flores-Gallegos rear-ended, the officer on the scene of the accident, and the officer at the police precinct who administered the breath test. The officer on the scene testified that the first thing he noticed upon speaking with Flores-Gallegos “was a smell of alcohol. It wasn’t overly strong, but when I stood close to him, I could smell it coming off his breath.” This officer observed that Flores-Gallegos “had an accent. His speech was slow, a little thick, like he had a hard time getting words out. . . . He was speaking English, but he had an accent, as if his native language was Spanish.” After Flores-Gallegos told the officer he had been drinking that day but had his last drink an “hour-and-a-half prior to this incident,” the officer asked Flores-Gallegos to perform field sobriety tests. The officer explained that Flores-Gallegos was able to give him responsive answers to questions and stated in English that he was unable to complete the walk-and-turn test in its entirety. On cross-examination, the officer testified that Flores-Gallegos took 12 steps on the “walk- and-turn” evaluation instead of nine as the officer had instructed.

The officer arrested Flores-Gallegos based upon his performance on the field sobriety evaluations, unsteadiness on his feet, smell of alcohol, and positive aleo-sensor reading. The officer read the implied consent warning to Flores-Gallegos in English while he was seated in the back of the officer’s patrol car. When the officer asked Flores-Gallegos for a breath test pursuant to the warning, Flores-Gallegos responded, “no English.” The officer found this response to be “unusual” because “during the entire encounter [Flores-Gallegos] was speaking English to [him]He explained further that at no point during the 30 to 40 minute encounter did Flores-Gallegos ever indicate that he had trouble understanding him.

The officer transported Flores-Gallegos to the police precinct where he again read him the implied consent warning, after which a second officer “presented the test to him for — if he’d like to take it.” Flores-Gallegos nodded and gave two breath samples while still handcuffed. The first officer explained that Flores-Gallegos “was asked if he wanted to obey implied consent, again,... and based upon that, he ended up blowing.” He could not recall whether Flores-Gallegos was seated or standing or whether the second officer put the tube in his mouth.

The second officer testified that he conducted the Intoxilyzer test at the police precinct, and that he did not recall the first officer reading Flores-Gallegos the implied consent notice: “[Flores-Gallegos] stood up under his own power and walked over. As to whether he had said yes or no, that was — [the first officer] had said that he needed the Intoxilyzer run.”

Under these facts, Flores-Gallegos was charged with DUI less safe, DUI unlawful alcohol concentration, and following too closely He moved to suppress all evidence gathered at the scene, but the trial court granted the motion only with respect to the Intoxilyzer testing and results. The court ruled:

In this case, after the arresting officer read him the implied consent notice, the defendant said, “no English,” indicating that he did not understand the notice. Law enforcement personnel made no further efforts to gain the defendant’s actual and voluntary consent, other than placing him in front of the Intoxilyzer and instructing him to blow. The State argued that the defendant understood English because the arresting officer conducted his pre-arrest investigation in English and the defendant complied with the officer’s requests throughout.
The Court finds that the defendant’s pre-arrest conduct did not establish that the defendant sufficiently understood English to allow him to understand the consequences of refusing to take the State’s test or that he had the option to refuse. The command of English required by the defendant to respond to the officer’s simple questions (aided by gestures) and to attempt to imitate the officer’s demonstrations of the field sobriety tests, does not necessarily indicate that he possessed the ability to understand the mandated implied consent notice. Rather, taking into account the totality of the circumstances and the entirety of the transactions between the defendant and law enforcement personnel, the Court finds that the State showed no more than that the defendant acquiesced to the officers’ claims of lawful authority Thus, under Williams v. State, [296 Ga. 817 (771 SE2d 373) (2015)], the Court is constrained to find that the defendant did not give actual, knowing and voluntary consent to the administration for the State’s breath test.
WHEREFORE, Defendant’s Motion to Suppress is hereby granted as to the Intoxilyzer testing and the results thereof.

“Because a breath test is a search within the meaning of the Fourth Amendment, absent a warrant, the State must show that it falls into one of the ‘specifically established and well-delineated exceptions’ to the warrant requirement.” (Citation omitted.) Kendrick v. State, 335 Ga. App. 766, 768 (782 SE2d 842) (2016). The analysis in this case therefore must focus on the voluntary consent exception to the warrant requirement. Williams, supra, 296 Ga. at 821. In Schneckloth v. Bustamonte, 412 U. S. 218 (93 SCt 2041, 36 LE2d 854) (1973), the Supreme Court of the United States addressed at length what the prosecution must “prove to demonstrate that a consent [to search] was ‘voluntarily’ given.” Id. at 223. Accordingly, when the State relies upon the consent exception to the warrant requirement, “[it] has the burden of proving that the accused acted freely and voluntarily under the totality of the circumstances.” (Citations and punctuation omitted.) Williams, supra, 296 Ga. at 821.

This court has noted:

A “totality of the circumstances” analysis is not new to Georgia courts. “A consent to search will normally be held voluntary if the totality of the circumstances fails to show that the officers used fear, intimidation, threat of physical punishment, or lengthy detention to obtain the consent.” Cuaresma v. State, 292 Ga. App. 43, 47 (2) (663 SE2d 396) (2008). Nor may consent be “coerced, by explicit or implicit means, by implied threat or covert force.” Schneckloth[, 412 U. S. at 228 (II) (B)]. Other factors to be considered are “prolonged questioning; . . . the accused’s age, level of education, intelligence . . . and advisement of constitutional rights; and the psychological impact of these factors on the accused.” State v. Austin, 310 Ga. App. 814, 817-18 (1) (714 SE2d 671) (2011). Moreover, “[w]hile knowledge of the right to refuse consent is one factor to be taken into account, the government need not establish such knowledge as the sine qua non of an effective consent.” Schneckloth, 412 U. S. at 227 (II) (B). Instead, the court should consider whether “a reasonable person would feel free to decline the officers’ request to search or otherwise terminate the encounter.” Austin, 310 Ga. App. at 820 (1) (citing Johnson v. State, 297 Ga. App. 847, 849 (678 SE2d 539) (2009)); State v. Durrence, 295 Ga. App. 216, 218 (671 SE2d 261) (2008). “Mere acquiescence to the authority asserted by a police officer cannot substitute for free consent.” State v. Jourdan, 264 Ga. App. 118, 121 (1) (589 SE2d 682) (2003) (citation omitted); Hollenback v. State, 289 Ga. App. 516, 519 (657 SE2d 884) (2008).

Decided May 11, 2016.

Kendrick, supra, 335 Ga. App. at 769.

Here, the trial court concluded that Flores-Gallegos did not give “actual, knowing and voluntary consent” to have his breath tested by considering whether he understood the implied consent notice and the consequences of refusing to take the test. But “knowing consent” is not required under our law. The State must show only that the accused acted “freely and voluntarily” in giving “actual consent.” Williams, supra, 296 Ga. at 821-822. While the trial court considered the totality of the circumstances in concluding that Flores-Gallegos acquiesced to the breath test, as Williams instructs, it did so by employing an improper standard. Id. at 822. We therefore vacate the trial court’s judgment and remand this case for the court to consider Flores-Gallegos’ motion to suppress under the proper standard.

Judgment vacated and case remanded with direction.

Barnes, P. J., and Rickman, J., concur.

Rosanna M. Szabo, Solicitor-General, R. Tyler Fisher, Assistant Solicitor-General, for appellant.

Cuadra & Patel, Norman H. Cuadra, Chirag B. Patel, Jessica N. Autry, for appellee.


author: Peterson, Judge.

text:
    A16A0486.
    TINSON v. THE STATE.
    (785 SE2d 914)
   Peterson, Judge.

Roderick Tinson appeals his convictions and sentence for aggravated child molestation, rape, incest, and two counts of sexual battery. He argues that the evidence was insufficient to support his convictions and that the trial court erred by failing to merge the rape and incest convictions for sentencing purposes. Because the evidence was sufficient to authorize the jury’s guilty verdicts and the trial court did not err in sentencing Tinson for both rape and incest, we affirm.

1. When appellate courts review the sufficiency of the evidence, they do not “re-weigh the evidence or resolve conflicts in witness testimony” but instead defer “to the jury’s assessment of the weight and credibility of the evidence.” Greeson v. State, 287 Ga. 764, 765 (700 SE2d 344) (2010) (citation omitted). We determine whether, “after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (99 S. Ct. 2781, 61 LE2d 560) (1979) (citation omitted) (emphasis in original).

So viewed, Tinson’s daughter, A. A., testified that Tinson began touching her breasts and genital area when she was 14 years old. After A. A.’s mother would leave their home in the morning, Tinson would enter A. A.’s room and touch her breasts, thighs, and, in A. A.’s words, “my whole body, places that he didn’t need to be touching.” He did not stop when she told him to. This escalated to vaginal intercourse between Tinson and A. A. after she turned 15. Tinson and A. A. had sexual intercourse more than 10 times but less than 20. A. A. told him the intercourse was painful, but he persisted. A. A. testified that she did not desire or consent to the sexual activity with her father.

In 2011, when A. A. was 15, A. A. made outcries to family members, telling her mother that her father had been “messing with” her. Tinson briefly moved out of the family home, but police were not involved at that time. A. A.’s mother later said she had difficulty believing A. A.’s outcry because her daughter had been lying about minor matters and had just been punished by her father for bad grades. A. A. testified that when Tinson moved back in, he punished her for her outcry by whipping her, and the sexual touching and intercourse resumed. On August23,2012, when A. A. was 16, she told a teacher at her school that her father had touched her breast and vaginal area. A. A. testified that she had engaged in sexual intercourse with her father that same morning. Sometime prior to making the report to her teacher, A. A.’s mother had grounded her and taken away her cell phone.

On August 24, 2012, the day after she made an outcry to her teacher, A. A. was taken by police to a non-profit center that conducts medical evaluations of and interviews alleged victims of sexual assault or physical abuse. A. A. had engaged in sexual intercourse with her father that morning. The center’s director conducted a forensic interview of A. A., but A. A. did not tell the investigator everything her father had done to her because she was afraid. A nurse examined A. A. and found some abnormal discoloration in her genital area that the nurse testified could be the result of friction or blunt force consistent with penetration or masturbation. The nurse also observed that A. A.’s hymen had an abnormal contour, which also could indicate an injury consistent with the account A. A. had given, although the nurse could not say what caused the injury The nurse did not observe bleeding or injuries elsewhere on A. A.’s body. A swab of A. A.’s vagina revealed the presence of human male DNA, but not enough to develop a profile of that DNA’s donor. Police retrieved linens from Tinson’s home, but they were not tested for DNA.

A jury acquitted Tinson of rape and incest based on charges that he had sex with A. A. in 2011, but found him guilty of rape and incest based on charges that he had sex with her on or about August 24, 2012. The jury also found Tinson guilty of two counts of sexual battery based on charges of actions toward A. A. on or about August 23, 2012, as well as aggravated child molestation based on alleged actions toward A. A. in 2011. The trial court sentenced Tinson to two terms of life without parole for aggravated child molestation and rape and 20 additional years for incest, all to be served concurrently, and sentenced him to time served for the sexual battery convictions.

The evidence was sufficient to authorize the jury’s guilty verdicts. A. A. testified that, prior to her turning 16, Tinson touched her genitals and engaged in sexual intercourse with her, evidence from which the jury could conclude that Tinson molested A. A. while she wasstillachildunderthemeaningofthestatute. SeeOCGA § 16-6-4(a) (defining child molestation as “any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person”). She also testified that the intercourse was physically painful, supporting an aggravated child molestation conviction. See OCGA § 16-6-4(c) (aggravated child molestation requires proof of physical injury or act of sodomy); Mangham v. State, 291 Ga. App. 696, 697 (662 SE2d 789) (2008) (victim’s testimony that molestation was painful sufficient to prove physical injury element). She testified that the sexual touching and intercourse continued up to and including August 24, 2012, the date she went to the non-profit center. That the intercourse took place between father and daughter supports the incest conviction. See OCGA § 16-6-22(a)(l). A. A.’s testimony that she did not consent to the intercourse or intimate touching also supported convictions for sexual battery and rape. See OCGA § 16-6-1 (a)(1) (rape); OCGA § 16-6-22.1(b) (sexual battery). Although unnecessary to support Tinson’s convictions, we note that A. A.’s testimony was corroborated by the medical evidence that A. A.’s genital area appeared abnormal in ways consistent with her account.

Tinson’s sufficiency arguments largely consist of (1) attacks on A. A.’s credibility and (2) complaints that her testimony was insufficiently corroborated by physical evidence. He challenges A. A.’s credibility based on a variety of factors, such as a lack of specificity in her initial outcries, inconsistency between her trial testimony and what she told an investigator, and evidence that A. A. had lied on occasion and been punished prior to making allegations against her father. He also argues that his own cooperation with investigators is evidence of his innocence. But it is for a jury, not this Court, to assess the weight and credibility of the evidence. See Greeson, 287 Ga. at 765. The jury had the opportunity to hear trial counsel cross-examine A. A. on the credibility issues that he raises now. Moreover, none of the evidence to which Tinson points is inconsistent with a conclusion that he was guilty of the crimes of conviction.

Addressing the physical evidence, Tinson complains about a lack of DNA evidence tying him to the crime, as well as the examining nurse’s testimony that she could not say what caused the abnormal appearance of A. A.’s genital area and that she observed no bleeding or additional injuries. But Georgia law does not require corroboration of a sexual crime victim’s testimony See Newton v. State, 296 Ga. App. 332, 336 (1) (b) (674 SE2d 379) (2009) (rejecting argument that evidence was insufficient to support rape and aggravated child molestation convictions given lack of scientific evidence such as DNA results or physical examination); Scales v. State, 171 Ga.App. 924, 924-25 (2) (321 SE2d 764) (1984) (no corroboration required for a conviction of sexual offenses, including incest and child molestation). Moreover, the physical evidence, as well as A. A.’s outcries over time, provided some corroboration of A. A.’s account. The evidence was sufficient for a rational trier of fact to find the essential elements of the crimes of conviction beyond a reasonable doubt.

2. Tinson also argues that the trial court erred by not merging his rape and incest convictions for sentencing purposes because those convictions were predicated on the same act of penetration. We disagree.

Evidence showing that the same conduct established the commission of two crimes does not necessarily mean that those crimes merge. See Ledford v. State, 289 Ga. 70, 72 (1) (709 SE2d 239) (2011). Under OCGA § 16-1-7(a)(1), an accused may not be convicted of more than one crime if “[o]ne crime is included in the other[.]” A crime is considered to be included in the other if “[i]t is established by proof of the same or less than all the facts ... than is required to establish the commission of the crime charged[.]” OCGA § 16-1-6(1). In considering whether crimes merge under that standard, we apply the “required evidence” test, which considers whether each statute requires proof of an additional fact that the other does not. Ledford, 289 Ga. at 72 (1). See also Drinkard v. Walker, 281 Ga. 211, 214-17 (636 SE2d 530) (2006).

Here, Tinson’s rape and incest convictions do not merge because each crime requires proof of an additional fact that the other does not. To establish the crime of rape, the State had to prove that Tinson lacked consent, which is not an element of incest. To establish the crime of incest, the State had to prove that the victim was of a certain relation to Tinson, which is not an element of rape. Compare OCGA § 16-6-1(a) with OCGA § 16-6-22(a). See also Drinkard, 281 Ga. at 213-17 (incest not established by the same or less than all of the facts required to establish the crime of rape); Dew v. State, 292 Ga. App. 631, 634-35 (3) (665 SE2d 715) (2008) (same). The cases cited by Tinson are distinguishable in that they find the merger of different, crimes, aggravated child molestation and rape. See Barber v. State, 283 Ga. App. 129, 130 (1) (640 SE2d 696) (2006); Lay v. State, 264 Ga. App. 483, 484-85 (2) (591 SE2d 427) (2003). The trial court did not err in sentencing Tinson for both rape and incest.

Judgment affirmed.

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

Decided May 12, 2016.

Troy E. Golden, Joshua D. Holt, for appellant.

Gregory W. Edwards, District Attorney, Cania R. Brown-Gordon, Melinda A. Wynne, Assistant District Attorneys, for appellee.

       Even if that standard is met, crimes still might merge under other provisions of OCGA §§ 16-1-6 and 16-1-7, i.e., if one crime is established by “proof of... a less culpable mental state” than the other, if one crime differs from the other only in that it involves a “less serious injury or risk of injury to the same person, property, or public interest or a lesser kind of culpability,” or if one crime differs from another “only in that one is defined to prohibit a designated kind of conduct generally and the other to prohibit a specific instance of such conduct.” See Drinkard, 281 Ga. at 216 n.32. However, these apply to the sort of closely-related offenses not at issue here. See id.


text:
    A16A0657.
    GWINNETT HOSPITAL SYSTEM, INC. et al. v. HOOVER.
    (785 SE2d 918)
   Peterson, Judge.

Gwinnett Hospital System, Inc. d/b/a Gwinnett Medical Center, Megan Edwards, R.N., and Shawn Grier, R.N. (collectively, “Gwin-nett Medical Center”) appeal from the denial of their motion to compel the production of a journal written by Muriel Hoover, the plaintiff in this wrongful death lawsuit. Gwinnett Medical Center argues the trial court erred by (1) determining that the entire journal was a privileged communication, and (2) failing to conduct an in camera review of the journal to determine whether any part of it was unprivileged and subject to production. We affirm because the entire journal is a privileged communication with the agent of a licensed professional therapist.

Hoover’s husband died shortly after he was treated at Gwinnett Medical Center. Hoover filed this lawsuit asserting a wrongful death claim. As part of discovery in that lawsuit, Gwinnett Medical Center requested that Hoover identify and produce any diaries or journals memorializing the care and treatment of her husband. In her discovery responses, Hoover indicated that she was unaware of any responsive material but reserved the right to supplement.

During her deposition, however, Hoover testified that she maintained a “grief journal” that she started after it was recommended to her during a counseling session. Hoover attended counseling sessions with a licensed associate professional counselor (“LAPC”) who was supervised outside of the patient sessions by a licensed professional counselor. Following the deposition, Gwinnett Medical Center requested that Hoover supplement her discovery responses to produce the journal. Hoover refused, claiming the journal was privileged under OCGA § 24-5-501(a)(7) because the journal constituted confidential communications between a licensed professional counselor and a patient. Gwinnett Medical Center moved to compel the production of the journal for, at a minimum, the court’s in camera inspection. Gwinnett Medical Center argued that Hoover’s journal is not privileged because it was not made pursuant to the direction of a licensed professional counselor, but rather by an associate professional counselor who was studying to become a licensed professional counselor, and because it may not qualify as a communication. The trial court denied the motion, finding that the journal was not subject to production because it is a privileged communication under OCGA § 24-5-501 (a)(7), and this appeal followed.

We review “a trial court’s decision as to discovery matters, including the application of a privilege, for an abuse of discretion.” Brown v. Howard, 334 Ga. App. 182, 183 (778 SE2d 810) (2015) (citations omitted).

1. Gwinnett Medical Center argues that the trial court erred by finding the journal was protected as a confidential communication between a licensed professional counselor and a patient. We disagree.

OCGA § 24-5-501(a)(7) protects “[cjommunications between a licensed clinical social worker, clinical nurse specialist in psychiatric/ mental health, licensed marriage and family therapist, or licensed professional counselor and patient[.]”

Under the clear language of the statute, in order for the privilege to apply here, the journal must be a “communication” between Hoover and a “licensed professional counselor[.]” OCGA § 24-5-501(a)(7). The parties do not dispute that Hoover went to counseling sessions with an LAPC who was studying to become a licensed professional counselor. Due to a scheduling conflict, Hoover was referred to the LAPC at the suggestion of the licensed professional counselor. But Hoover remained the licensed professional counselor’s patient, and the recommendation that Hoover begin a grief journal was part of a treatment plan developed by both the licensed professional counselor and LAPC. Hoover brought her grief journal to her counseling sessions and communicated their contents to the associate professional counselor as part of her therapy. Based on these sessions, the licensed professional therapist would then suggest or approve treatment for Hoover in conjunction with the LAPC. Therefore, the contents of the grief journal were communicated to the licensed professional counselor through the LAPC as part of Hoover’s treatment plan. Moreover, the LAPC was working for and was under the direct supervision of the licensed professional counselor in providing care and treatment for Hoover. We find that, under the circumstances here, the LAPC was acting as the agent of the licensed professional counselor. See Satisfaction & Service Housing, Inc. v. SouthTrust Bank, Inc., 283 Ga. App. 711, 712-13 (642 SE2d 364) (2007) (“an agency relationship is created wherever one person, expressly or by implication, authorizes another to act for him or subsequently ratifies the acts of another in his behalf”) (punctuation and footnote omitted).

We have observed on many occasions in dicta that the mental health privilege does not cover patient communications with individuals such as nurses or attendants who support the qualifying professional unless those individuals were acting as agents of the professional. See, e.g., Brown, 334 Ga. App. at 186 (1); Plunkett v. Ginsburg, 217 Ga. App. 20, 21 (456 SE2d 595) (1995); Annandale at Suwanee, Inc. v. Weatherly, 194 Ga. App. 803, 804 (392 SE2d 27) (1990). And we have noted that, in the attorney-client context, the privilege extends to communications among attorneys, their agents, and their clients. See Neuman v. State, 297 Ga. 501, 504 (2) (773 SE2d 716) (2015). The exclusion from evidence of attorney-client communications arises from the same statute that excludes mental health communications. See OCGA § 24-5-501(a)(2), (7). Because these two privileges are analogous, we extend this same reasoning to communications with agents of a licensed professional counselor, meaning that communications with an agent of a licensed professional counselor are privileged under OCGA § 24-5-501(a). Thus, the grief journal falls squarely within the privilege created by the statute, and we find no abuse of discretion in the trial court’s denial of Gwinnett Medical Center’s motion to compel.

2. Gwinnett Medical Center next argues that the trial court erred by failing to conduct an in camera inspection of the journal to determine if any part was not privileged and could be produced. In support of this argument, Gwinnett Medical Center cites a number of cases pertaining to mental health records generally.

Gwinnett Medical Center is correct in its assertion that mental health records “ ‘are not absolutely privileged.’ ” Brown, 334 Ga. App. at 186 (1). Exceptions to the privilege exist for communications between a patient and nurses or attendants (except where the nurses or attendants are acting as agents of the qualifying professional), mental health provider communications with someone other than the patient or another mental health provider, situations where no mental health treatment is given or contemplated, and the mere existence of treatment or its dates. See id. But none of these exceptions for mental health records applies here.

“[(Communications between a [licensed professional counselor] and patient are absolutely privileged and that privilege must be waived as a pre-condition of discovery” Dynin v. Hall, 207 Ga. App. 337, 338 (1) (428 SE2d 89) (1993) (citations omitted) (emphasis in original). Gwinnett Medical Center does not argue on appeal that Hoover waived her privilege. And because Hoover’s journal constitutes a communication between herself and her licensed professional counselor, it is absolutely privileged and in camera inspection by the court was not warranted. Therefore, we find no abuse of discretion here.

Decided May 12, 2016.

Hall Booth Smith, John E. Hall, Jr., Beth W. Kanik, for appellants.

Mahaffey Pickens Tucker, Steven A. Pickens, Joshua P. Johnson, Christopher D. Holbrook; Schlachter Law Firm, LawrenceB. Schlachter; The McGarity Group, J. Michael McGarity, Anne M. Braham, Stephen B. Tippins, Jr., for appellee.

Judgment affirmed.

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

       Due to scheduling conflicts, Hoover began seeing the associate professional counselor at the licensed professional counselor’s request.


text:
    A16A0096.
    OLIVER v. THE STATE.
    (786 SE2d 701)
   Peterson, Judge.

After a jury trial, Stanley James Oliver was convicted of kidnapping with bodily injury, rape, and aggravated assault of his former girlfriend, F. W. He appeals the denial of his motion for a new trial, arguing that his counsel was ineffective for (1) failing to subpoena Oliver’s telephone records for potential use at trial; (2) opening the door to admission of evidence of Oliver’s acquittal on prior charges; and (3) failing to request a limiting instruction on that prior bad acts evidence. Because trial counsel’s questioning that opened the door to admission of Oliver’s prior acquittals did not constitute deficient performance, and because the other complained-of actions by defense counsel did not create a reasonable probability of a different, outcome, we affirm.

“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, F. W. had been romantically involved with Oliver but broke off contact with him after he became violent with her on at least one occasion in February 2008. On March 8, 2008, Oliver came to F. W.’s mother’s house, where F. W. was staying, and she went with him to his home. F. W. testified that Oliver indicated he “wanted to talk” and “work things out,” but she went with him because she was scared. She testified that she remained at the house until March 12, smoking methamphetamine with Oliver but having no food or drink during that time. Oliver took the battery from F. W.’s phone. Shortly after F. W. arrived at Oliver’s house, two visitors came over, but F W. didn’t seek help from them because she “didn’t think that it was gonna get as bad as it got.” The following day, however, Oliver began beating her, hitting her with his fists, a strap and a fireplace poker, ripping out some of her hair, and threatening to kill her. When F. W. would fall off a couch, he would hit her again and tell her to get back on the couch and not move. At one point, F. W. approached the door to the home, and Oliver stabbed her in the leg with a knife. On her last night in the home, F. W. and Oliver had sexual intercourse; she testified that she did not want to but “thought that was the only way I was gonna get to leave.” On March 12, while Oliver was in the bathroom, F. W. saw her mother’s car in the driveway and left with her.

F. W. went to a hospital, where she underwent a medical examination and received treatment. The sheriff’s deputy who was dispatched to the hospital testified that F. W. was “contused from head to foot,” with a large patch of hair having been pulled out of her scalp, a puncture wound in her thigh, and various lacerations and abrasions over her body A Georgia Bureau of Investigation agent took pictures of F. W.’s injuries that were entered into evidence. Agents who investigated the scene at Oliver’s home recovered a fire poker, leather strap and knife. They also found a large clump of hair that was shown to have been forcibly removed from F. W.’s head.

Oliver defended himself through extensive cross-examination of F. W, testimony by friends, and his own testimony. Several defense witnesses gave testimony to the effect that they had seen F W. during the time period in question, and she did not appear held against her will. Defense witnesses testified in particular that during that time, F. W. mentioned plans to marry Oliver and had several personal items such as toiletries at his home.

Oliver testified that on March 8, 2008, he telephoned F W., invited her to go out to a bar, and picked her up near her mother’s home, per her instructions. Oliver testified that F. W. never asked to be let out of the house and the two left his house at least once during her visit. He denied stabbing her with the knife, hitting her with his fists or the fire poker or strap that were in evidence, or pulling out her hair. Oliver said that at one point, F W. left the house and came back looking as though she had been in a fight and suggested that her injuries were caused by another man. Oliver declined to dispute that the clumps of hair found in his home belonged to F. W. He said he and F. W. had consensual sex multiple times during her visit and denied that he raped her.

Oliver was convicted on all counts at trial. He moved for a new trial, arguing, among other things, that the trial judge had erred in allowing F. W. to testify about Oliver’s earlier acquittal on similar crimes against another person. The judge who considered his motion for new trial (not the judge who presided over the trial) granted Oliver a new trial on that ground. We reversed, with the clarification that our ruling did not affect the motion judge’s ability to consider remaining issues raised in the motion for new trial. State v. Oliver, 326 Ga. App. 759 (755 SE2d 293) (2014). The motion judge subsequently considered, and rejected, Oliver’s claims of ineffective assistance of counsel. That is the ruling before us now.

In order to prevail on an ineffective assistance of counsel claim, Oliver “must show that trial counsel’s performance fell below a reasonable standard of conduct and that there existed a reasonable probability that the outcome of the case would have been different had it not been for counsel’s deficient performance.” Scott v. State, 290 Ga. 883, 889 (7) (725 SE2d 305) (2012) (citing Strickland v. Washington, 466 U.S. 668 (104 S. Ct. 2052, 80 LE2d 674) (1984)). In reviewing a claim of ineffective assistance, the appellate courts give deference to the lower court’s factual findings and credibility determinations unless clearly erroneous, but review a lower court’s legal conclusions de novo. Grant v. State, 295 Ga. 126, 130 (5) (757 SE2d 831) (2014) (citation omitted).

1. Oliver first argues that his trial counsel’s failure to subpoena Oliver’s telephone records for possible use at trial amounted to ineffective assistance of counsel. We disagree.

The phone records in question apparently would have shown that F. W. made telephone calls to Oliver in the days leading up to the kidnapping. The records also appear to show calls back and forth between the two on March 8, the day F. W. says Oliver picked her up at her mother’s home. At the motion for new trial hearing, trial counsel testified that those records would have been helpful to rebut F. W.’s testimony that she had not had “consensual contact” with Oliver in the weeks leading up to the incident, did not call him or answer his calls, and was surprised when he showed up at her mother’s home. The defense also suggests on appeal that the State’s case would have been rebutted by phone record entries showing that Oliver placed calls on his phone while outside of his home during the weekend that F. W. claimed she was being involuntarily held there. Although counsel introduced Oliver’s cell phone into evidence at trial, he did not pursue any questioning about its call log, apparently because the battery was dead. The motion judge rejected Oliver’s claim of ineffectiveness on this basis, finding that counsel’s performance in failing to subpoena the records was not deficient, but strategic, in the light of trial counsel’s testimony that he thought the defense had “overwhelming evidence” that Oliver and F. W. were “living as man and wife.”

The motion judge’s conclusion that trial counsel made a strategic decision not to use the records because he had enough other evidence to make the defense case is undermined by trial counsel’s apparent failed attempt to present evidence about the phone calls using Oliver’s phone itself. But, assuming without deciding that trial counsel’s performance was deficient in this regard, we find that there is not a reasonable probability that the outcome of the case would have been different had counsel obtained and introduced the records. Although F. W.’s credibility was an important issue at trial, the considerable physical evidence corroborating F. W.’s testimony — and rebutting Oliver’s — kept this case far from the kind of “he said, she said” credibility contest in which we might find prejudice. See State v. Crapp, 317 Ga. App. 744, 748 (2) (732 SE2d 806) (2012) (failure to introduce available documents corroborating defendant’s testimony prejudicial where trial was “pure credibility contest” with State’s case “resting largely upon the identification testimony of one witness”). F. W. presented at the hospital with bruising all over her body, a large clump of hair missing, and a wound in her leg, supporting her claim that Oliver had assaulted her, including stabbing her when she tried to leave his home. Police found at Oliver’s home clumps of F. W.’s hair, and the items she claimed Oliver had assaulted her with. This is not a “he said, she said” case, but a “he said, she said, with a lot of physical evidence corroborating what she said” case. See generally Wallace v. State, 294 Ga. 257, 260 (3) (b) (754 SE2d 5) (2013) (considering strength of State’s case in evaluating whether prejudice is shown).

Once the jury concluded, based in part on this physical evidence, that Oliver was lying when he denied assaulting F. W. or keeping her in his home, it also was entitled to disbelieve his claim that their sexual activity was consensual. Although the phone records might have tended to show that events did not transpire exactly as F. W. had claimed — i.e., that she may have been in contact with him more than she admitted, or that Oliver left the home at some point during the time she was staying at his house — they did not refute the core claims at issue: that Oliver had assaulted and raped F. W. and, for at least some period of time, held F. W. against her will. See Crapps v. State, 329 Ga. App. 820, 827 (3) (a) (766 SE2d 178) (2014) (no prejudice given that phone records that allegedly showed victim repeatedly phoned defendant prior to the incident would not refute evidence showing that defendant harassed and intimidated victim on the evening in question). Any deficient performance by counsel in failing to obtain or present Oliver’s phone records did not prejudice the defense to the extent required to merit reversal.

2. Oliver next argues that his trial counsel was ineffective when he opened the door to admission of the evidence of Oliver’s earlier acquittal on similar charges involving a different victim. We disagree.

The evidence of the earlier acquittal was the subject of the prior appeal in this case, in which we held that the trial judge had not erred in admitting the evidence. See Oliver, 326 Ga. App. at 763-64 (3). The admission of the evidence came during the testimony of F. W., after Oliver’s counsel questioned her about her failure to call law enforcement on the earlier occasion when, she claimed, Oliver beat her. The State successfully argued that Oliver’s counsel had opened the door for F. W. to testify about what Oliver told her about the prior charges of which he was acquitted and how that related to her failure to call the police. Id. at 759-60 (1). On redirect, F. W. testified that Oliver had been acquitted on similar charges, she had overheard some conversation indicating that Oliver was, in fact, guilty of those charges, and that the acquittal had influenced her not to contact police. Id. at 760-61 (1). In particular, F. W. testified that, regarding the woman who had testified against him in the other case, Oliver had told F. W. that he “was gonna nail their door shut and burn them out.” Id. at 761. F. W. also testified that Oliver had said that if he were convicted of the prior offenses, he would “get the ... jailer’s gun and shoot” the woman who had testified. Id. Defense counsel did not request a limiting instruction, and one was not given by the trial judge. Rejecting Oliver’s claim that opening the door to this line of questioning by the State amounted to ineffective assistance of counsel, the motion judge found that a central part of the defense strategy was attacking F. W.’s credibility, including her failure to report Oliver’s previous uncharged offenses against her, and that the strategy was a reasonable one.

The motion judge’s conclusion that questioning F. W. about her failure to report the earlier beating was strategic is not clearly erroneous. Although trial counsel moved in limine to exclude evidence of Oliver’s prior encounters with the criminal justice system and testified that opening the door to the admission of prior bad acts was not part of a strategic plan, he also testified that attacking F. W.’s credibility was of “paramount importance.”

Whether an attorney’s trial tactics are reasonable is a question of law, not fact. Jefferson v. Zant, 263 Ga. 316, 318 (3) (a) (431 SE2d 110) (1993). And in assessing the objective reasonableness of a lawyer’s performance, we are not limited to the subjective reasons offered by trial counsel for his conduct; “[i]f a reasonable lawyer might have done what the actual lawyer did — whether for the same reasons given by the actual lawyer or different reasons entirely — the actual lawyer cannot be said to have performed in an objectively unreasonable way” Hughley v. State, 330 Ga. App. 786, 791-92 (4) (769 SE2d 537) (2015). We agree with the motion judge that questioning F. W. about her prior failure to contact law enforcement was a reasonable strategy How to conduct cross-examination is a tactical decision within the exclusive province of counsel. Mack v. State, 242 Ga. App. 256, 258 (2) (c) (529 SE2d 393) (2000). We can see few avenues of defense in this case other than challenging F. W.’s story by attacking her credibility.

Moreover, it was not a foregone conclusion that trial counsel’s questioning was going to result in admission of Oliver’s acquitted charges. Although the State’s lawyer had elicited on direct examination F. W.’s testimony that she did not call police after the earlier incident because she was afraid of Oliver, defense counsel did not ask F. W. about the source of her fear. Instead, he confirmed her earlier testimony that she had not reported the matter due to fear, questioned her about her mother’s failure to report the incident, then sought to undermine her story by asking about her lack of documentation of her injuries and the steps she would have had to take to hide them from others. We ultimately ruled that this opened the door to admission of the prior acquittals, but the motion judge’s earlier ruling to the contrary indicated that reasonable minds can differ on this point. Cf. Marshall v. State, 275 Ga. 740, 745 (10) (571 SE2d 761) (2002) (not deficient performance where it would not have been unreasonable for counsel to believe that questioning would not open the door to the introduction of defendant’s prior conviction). “[T]ac-tical decisions, even if they misfire, do not generally equate with ineffectiveness.” Crawford v. State, 252 Ga. App. 722, 725 (3) (556 SE2d 888) (2001).

3. Oliver also argues that his trial counsel was ineffective in that he failed to request a limiting instruction once evidence of the prior charges against Oliver was admitted. We disagree.

Oliver suggests that his lawyer should have asked for an instruction that the jury should consider the evidence of the acquittal only for its effect on F. W.’s state of mind. The motion judge found that trial counsel performed deficiently in this regard. On appeal, the State effectively concedes that trial counsel’s performance was deficient, in the light of the motion judge’s factual finding that trial counsel had offered up no strategic reason for not requesting a limiting instruction. But the State argues that the motion judge correctly concluded that any deficiency in failing to ask for a limiting instruction did not prejudice the defense.

As suggested by the State’s concession, the evidence supports the motion judge’s finding that there was no strategy involved in failing to request a limiting instruction. Asked whether he could think of any strategic reason why he would not have wanted a limiting instruction, trial counsel replied that he “felt absolutely overwhelmed” when the motion judge ruled that the evidence would be admitted. Compare Phillips v. State, 285 Ga. 213, 220 (5) (c) (675 SE2d 1) (2009) (no ineffectiveness where counsel testifies he did not request a limiting instruction because such an instruction might draw attention to the evidence); but see Hughley, 330 Ga. App. at 791-92 (assessment of objective reasonableness of lawyer’s performance not limited to subjective reasons offered by trial counsel).

However, assuming without deciding that trial counsel performed deficiently by failing to request the instruction, we agree with the State that this failure was not prejudicial. As discussed in Division 1, the evidence against Oliver was strong. See Wallace, 294 Ga. at 260 (3) (b). Moreover, the State did not bring out the specific facts of the underlying charges, merely eliciting testimony that Oliver had faced similar charges involving another female victim. Failure to request a limiting instruction was deemed not prejudicial in Wallace, even though it was a prior conviction that was at issue. See id. (no prejudice in failure to request limiting instruction when evidence was relevant to the indicted charge, the State did not bring out the specific facts of the underlying conviction, offense of prior conviction was not one likely to inflame jury’s passions, and the evidence against the defendant was strong). The prejudicial effect of an acquittal, put before the jury here, would have been even less. “Since there is no reasonable probability that the outcome of the trial would have been different if counsel had requested the limiting instruction, the [motion judge] correctly denied [Oliver]’s claim of ineffective assistance of counsel.” Freeman v. State, 269 Ga. App. 435, 440 (3) (c) (604 SE2d 280) (2004).

Judgment affirmed.

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

Decided May 2, 2016

Reconsideration denied May 13, 2016

Howard W. Anderson III, for appellant.

Brian M. Rickman, District Attorney, J. Edward Staples, George R. Christian, Assistant District Attorneys, for appellee.

       The case apparently was transferred from the trial judge to a different judge after trial. For clarity, we will refer to the judge who presided over the trial as the “trial judge” and the judge who ruled on the motion for new trial as the “motion judge.”

       We have assumed for the sake of analysis that trial counsel performed deficiently in multiple ways. Given the totality of the evidence before the jury and the strong record support for the verdict, even assuming that trial counsel had performed deficiently both by failing to subpoena Oliver’s telephone records and by failing to request a limiting instruction, there is no reasonable probability that the outcome of the trial would have been different. See Daughtry v. State, 296 Ga. 849, 862 (2) (k) (770 SE2d 862) (2015).


author: MERCIER, Judge.

text:
    A16A0293.
    MUTHU v. THE STATE.
    (786 SE2d 696)
   MERCIER, Judge.

Gajendra Muthu appeals his convictions for driving under the influence of alcohol, driving under the influence of alcohol-less safe, and failure to maintain lane. He raises three enumerations of error, arguing that the trial court erred by improperly commenting on the credibility of his expert witness in violation of OCGA § 17-8-57; by restricting the testimony of his expert as to the effects of acid reflux disease on the results of breath tests; and, when faced with a deadlocked jury, by failing to declare a mistrial, reading the Allen charge, and refusing to consider the post-conviction affidavit of a juror claiming the verdict was not unanimous. Finding no error, we affirm.

On November 3, 2012, Deputy Baxter of the Forsyth County Sheriff’s Office initiated a stop of a vehicle driven by Gajendra Muthu on Highway 400 northbound in Forsyth County after observing the vehicle fail to maintain its lane. When he approached Muthu, Deputy Baxter observed that he had bloodshot eyes and detected a faint odor of alcohol. After Muthu had been stopped, Deputy Maddox of the DUI Task Force arrived and took over the investigation.

Deputy Maddox noted that Muthu had bloodshot eyes and also detected a faint odor of alcohol. Deputy Maddox inquired whether Muthu had any medical problems, and Muthu replied that he did not. Deputy Maddox asked Muthu to step out of the vehicle and, after asking a few more questions, the deputy conducted a series of field sobriety tests on Muthu. After administering the field sobriety tests, Deputy Maddox placed Muthu under arrest for driving under the influence to the extent that he was a less safe driver. Deputy Maddox then proceeded to read to Muthu the Georgia Implied Consent warning and requested that Muthu submit to a state-administered breath test. After hearing the implied consent warning twice, Muthu consented to taking the state-administered test. Deputy Maddox took Muthu to the Forsyth County jail to administer the test. At the jail, Deputy Maddox obtained two breath samples from Muthu; the first sample indicated a blood-alcohol concentration of 0.103, and the second indicated a blood-alcohol concentration of 0.098.

Muthu was charged with driving under the influence of alcohol per se, in violation of OCGA § 40-6-391 (a) (5); driving under the influence of alcohol-less safe, in violation of OCGA § 40-6-391 (a) (1); and failure to maintain lane, in violation of OCGA §§ 40-6-48 and 40-6-1. After a jury trial, Muthu was found guilty on all three counts in the State Court of Forsyth County. Muthu filed a motion for a new trial, which the trial court denied. This appeal followed.

1. In his first enumeration of error, Muthu argues that the trial court violated OCGA § 17-8-57 when it commented on the credibility of one of Muthu’s expert witnesses. This contention is without merit.

OCGA § 17-8-57 provides:

(a) (1) It is error for any judge, during any phase of any criminal case, to express or intimate to the jury the judge’s opinion as to whether a fact at issue has or has not been proved or as to the guilt of the accused. . . . (c) Should any judge express an opinion as to the guilt of the accused, the Supreme Court or Court of Appeals or the trial court in a motion for a new trial shall grant a new trial.

Violations of OCGA § 17-8-57 are “subject to a sort of ‘super-plain error’ review; not only may they be raised on appeal without any objection at trial, but, if sustained, they automatically result in reversal without consideration of whether the error caused any actual prejudice.” Freeman v. State, 295 Ga. 820, 822 (2) (764 SE2d 390) (2014) (citation and punctuation omitted); see also Wells v. State, 295 Ga. 161, 167 (3) (758 SE2d 598) (2014); Murphy v. State, 290 Ga. 459, 460 (2) (722 SE2d 51) (2012).

During the direct examination of M. M., one of Muthu’s witnesses, whom the trial court had recognized as an expert in standardized field sobriety, forensic breath alcohol testing, and the Intoxi-lyzer 5000, the trial court stated the following in a ruling on an objection by the State: “So to the extent you are asking him a medical — to testify as to a medical condition, I don’t think he is competent to testify to that.” Muthu contends that this statement improperly conveyed the court’s opinion to the jury regarding the credibility of Muthu’s expert and thus violated OCGA § 17-8-57.

We have held that “[a] ruling by the court on a point of law is not an expression of opinion; neither are remarks by the court explaining the court’s rulings. Quite simply, OCGA § 17-8-57 is not violated by the remarks of the trial court when giving reasons for a ruling.” Artis v. State, 299 Ga. App. 287, 290 (2) (682 SE2d 375) (2009) (citation, punctuation and footnote omitted); see also Rogers v. State, 294 Ga. App. 195, 196 (1) (670 SE2d 106) (2008); Norris v. State, 240 Ga. App. 231 (523 SE2d 80) (1999).

Here, the comment which is challenged does not constitute a statement of opinion as to whether a fact at issue has been proved, the credibility of Muthu’s expert, or as to Muthu’s guilt. See OCGA § 17-8-57. The trial court made the statement in the context of ruling on an objection. A closer examination of the context reveals the trial court was not commenting on the credibility of Muthu’s expert. Immediately before the court made the remark at issue the court stated “this witness can’t testify to medical issues related to a particular person. This witness can testify to issues relating to breath testing equipment and how it is affected by various things including alcohol in the oral cavity”

Thus, the trial court was merely explaining its ruling as to what the witness was competent to testify to in his capacity as an expert. “Remarks of a judge assigning a reason for his ruling are neither an expression of opinion nor a comment on the evidence.” Corley v. State, 192 Ga. App. 35, 37 (3) (383 SE2d 586) (1989) (citation and punctuation omitted). Because the trial court was not commenting on the credibility of the witness, but only on what he was competent to testify to in his capacity as an expert witness, the trial court did not violate OCGA § 17-8-57.

2. In his second enumeration of error, Muthu alleges the trial court erred when it restricted his expert witness from testifying that acid reflux disease could render a breath test result unreliable and so deprived Muthu from introducing testimony to support his primary defense.

“The admissibility of expert testimony is a matter within the trial court’s sound discretion. We will not reverse the trial court’s ruling on such evidence absent an abuse of that discretion.” Lott v. State, 281 Ga. App. 373, 375 (3) (636 SE2d 102) (2006) (citation and punctuation omitted).

Viewed in this light, the evidence shows that the trial court qualified M. M. as an expert in standardized field sobriety, forensic breath alcohol testing, and the Intoxilyzer 5000. M. M. was asked: “If a person had GERD and the lower sphincter allowed stomach contents into the esophagus, can that cause an effect on the breath test?” The State objected, and the trial court ruled, “Well, but this witness is not being qualified to testify to medical matters. He is qualified to testify as to the breath testing machines . . . this witness can’t testify to medical issues related to a particular person.” Muthu argues that his primary defense was that he had an acid reflux condition which made the breath test results unreliable, and by limiting the expert’s testimony in this way the court prevented him from presenting this defense. However, this contention is not supported by the record.

The trial court permitted C. A., Muthu’s first expert, a physician certified in gastroenterology, to testify that acid reflux can cause the contents of an afflicted person’s stomach to enter the esophagus. The trial court also allowed M. M. to testify about what a “mouth-alcohol condition” was, how acid reflux might bring about such a condition, and how a “mouth-alcohol condition” could affect the results of a Breathalyzer test. Thus, the trial court did permit testimony supporting Muthu’s defense. The testimony by M. M. that was not permitted concerned how a particular medical condition might affect a breath test when there was no evidence that Muthu had that condition on the date he was tested.

In explaining its decision to sustain the objection, the trial court stated: “It’s not in evidence that he [Muthu] was experiencing GERD [acid reflux] at the time that this test was taken... [s]o ... asking him to answer that question is asking him to assume facts that are not in evidence.”

The trial court did not prevent Muthu from presenting his defense. Rather, the court prohibited him from introducing testimony about matters outside the scope of the witness’ expertise or about facts not in evidence. “For an expert to give his opinion based upon a certain state of facts, those facts must be supported by evidence admitted into the record.” Columbus v. State, 270 Ga. 658, 666 (5) (513 SE2d 498) (1999). We find no abuse of discretion.

3. In his final enumeration of error, Muthu contends the trial court erred when after the jury announced that it was deadlocked as to one count, it failed to declare a mistrial, it read the Allen charge, Allen v. United States, 164 U. S. 492 (17 SCt 154, 41 LE 528) (1896), and it failed to consider the post-conviction affidavit of a juror in which the juror averred that the verdict was not unanimous.

(a) First we consider Muthu’s contention that the trial court erred by failing to declare a mistrial. After deliberating for some time, the jury twice returned the question “Do we have to agree on all counts or can we be deadlocked on one?” Muthu moved for a mistrial, asserting that the jury appeared to be deadlocked. The trial court denied the motion for a mistrial and elected to give an Allen charge first. “The decision to grant a mistrial is within the discretion of the trial court and will not be disturbed on appeal unless there is a showing that a mistrial is essential to the preservation of the right to a fair trial.” Evans v. State, 328 Ga. App. 16, 19 (3) (761 SE2d 443) (2014); see also Jackson v. State, 292 Ga. 685, 689 (4) (740 SE2d 609) (2013); Norwood v. State, 252 Ga. 292, 294 (3) (313 SE2d 98) (1984).

Here, the trial court considered granting a mistrial as to the count the jury was deadlocked on, but chose instead to give an Allen charge. After receiving the Allen charge, the jury continued deliberating and returned a unanimous verdict on all counts. Thus, because Muthu fails to make a showing that declaring a mistrial was essential to preserve his right to a fair trial, we cannot say the trial court abused its discretion in refusing to grant a mistrial.

(b) Next we consider Muthu’s argument that the trial court erred by giving an Allen charge.

When a jury reports difficulty in reaching a unanimous verdict, whether to give an Allen charge is committed to the sound discretion of the trial court, and we review the decision to give such a charge only for an abuse of discretion. We have explained before that the giving of an Allen charge amounts to an abuse of discretion when the terms of the charge itself, or the circumstances in which it is given, are coercive, “so as to cause a juror to abandon an honest conviction for reasons other than those based upon the trial or the arguments of other jurors.”

Contreras v. State, 314 Ga. App. 825, 826 (2) (726 SE2d 107) (2012) (citations and punctuation omitted); see Johnson v. State, 278 Ga. 136, 138 (4) (598 SE2d 502) (2004). In this case the jury twice informed the trial court that it was deadlocked on one count. After the trial court was informed a second time of the deadlock, it elected to give the Allen charge.

Muthu contends that the circumstances of this case rendered the Allen charge coercive, and thus the trial court abused its discretion. We disagree. After the jury indicated it was deadlocked as to one count, the court was “required to make its own determination as to whether further deliberations were in order.” Contreras at 827. After sending the first note about being deadlocked, the jury continued deliberations, which is evidenced by its subsequent question concerning specific testimony given at trial. After further deliberations, the jury again returned a note stating it was deadlocked as to one count. In those circumstances, it was not an abuse of discretion to give an Allen charge and require the jury to continue deliberating. See id.; see also Sears v. State, 270 Ga. 834, 838 (1) (514 SE2d 426) (1999) (where jury first indicated it was deadlocked after six hours of deliberation and announced it was deadlocked again after another three hours, the trial court did not abuse its discretion in requiring the jury to deliberate further).

Decided April 26, 2016

Reconsideration denied May 13, 2016

(c) Muthu’s final contention is that the trial court erred when it refused to consider the post-conviction affidavit of a juror stating that the verdict was not unanimous. At the hearing on his motion for new trial, Muthu sought to introduce the testimony of P. H., who had served as a juror during his trial. The trial court determined that the juror’s testimony and affidavit would amount to an impeachment of the verdict by a juror. Accordingly, the trial court did not permit P. H. to testify, nor did it consider her affidavit.

Upon an inquiry into the validity of a verdict or indictment, a juror shall not testify by affidavit or otherwise nor shall a juror’s statements be received in evidence as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon the jury deliberations or any other juror’s mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror’s mental processes in connection therewith; provided, however, that a juror may testify on the question of whether extraneous prejudicial information was improperly brought to the juror’s attention, whether any outside influence was improperly brought to bear upon any juror, or whether there was a mistake in entering the verdict onto the verdict form.

OCGA § 24-6-606 (b). Here, neither Muthu nor P H.’s affidavit alleged that any extraneous prejudicial information was improperly brought to P H.’s attention, that any outside influence was improperly brought to bear upon P H., or that there was an error in entering the verdict on the verdict form. Instead P H.’s affidavit addressed the deliberations amongst the jurors. This evidence is explicitly excluded by the plain language of OCGA § 24-6-606 (b). Therefore, the trial court did not err when it refused to consider the affidavit of P H.

Judgment affirmed.

Ellington, P. J., and Branch, J., concur.

Banks, Stubbs & McFarland, R. Parker McFarland, Jr., for appellant.

William A. Finch, Solicitor-General, Caroline Yi, Assistant Solicitor-General, for appellee.

       Gastroesophageal reflux (GER), is commonly referred to as acid reflux, while Gastro-esophageal reflux disease (GERD) is a long-lasting and more serious form of GER. See http://www.niddk.nih.gov/health-inforniation/health-topics/digestivediseases/ger-and-gerd-in-adults/Pages/overview.aspx.


author: Dillard, Judge.

text:
    A16A0332.
    NAVY FEDERAL CREDIT UNION v. McCREA.
    (786 SE2d 707)
   Dillard, Judge.

In this interlocutory appeal, Navy Federal Credit Union (“NFCU”) seeks reversal of the trial court’s denial of its motion for reconsideration of the court’s earlier denial of its motion for summary judgment in its declaratory-judgment action against Pearl McCrea involving a dispute over title to land. On appeal, NFCU argues that it was entitled to summary judgment because the undisputed evidence shows that it owns the subject property and that McCrea has no interest in it. NFCU further contends that McCrea presented no evidence to support any of her counterclaims. For the reasons set forth infra, we reverse the trial court’s denial of summary judgment to NFCU.

Viewing the evidence in the light most favorable to McCrea, the nonmoving party, the record shows that on January 30, 2007, McCrea purchased the subject property, which is located in Ellen-wood, Georgia (the “property”), and she obtained a warranty deed from the seller. On the same day, McCrea executed a “Joint Tenancy with Survivorship Warranty Deed,” conveying the property in fee simple to Gary and Vickie Fox. A few months later, in June 2007, the Foxes used the property to secure a loan from NFCU for $70,000 and executed a security deed in favor of NFCU to that effect.

In 2011, McCrea filed suit against the Foxes for, inter alia, breach of contract, undue influence, and fraud (the “Foxes Case”), claiming that the Foxes fraudulently induced her to purchase the property and convey it to them in exchange for promises that they would take care of her and the property. McCrea alleged that the Foxes did not fulfill their promises, and she was unaware that they secured a loan with the property In addition to damages, McCrea requested that the property be returned to her free and clear of any liens or encumbrances incurred by the Foxes. On April 25, 2011, McCrea also filed a notice of lis pendens regarding her dispute with the Foxes over the property And although the Foxes Case had not yet been resolved, on January 30, 2012, McCrea executed a quitclaim deed purporting to transfer title to the property to a third party. Eventually, in August 2012, the Foxes Case proceeded to a jury trial, and the jury found in favor of McCrea, awarding her $88,300 in damages. The trial court then issued an order, affirming the jury’s verdict and awarding McCrea a total of $88,575 in damages, interest, and costs.

Thereafter, on December 4, 2012, NFCU, which was not a party to the Foxes Case, sold the property in a foreclosure sale because the Foxes defaulted on their loan. Then, on June 26, 2013, NFCU filed this action against McCrea to quiet title to the property and to set aside her lis-pendens notice. McCrea filed an answer, asserting several affirmative defenses, as well as counterclaims for intentional infliction of emotional distress, unjust enrichment, and stubborn litigiousness. NFCU next filed an amended complaint, removing its quiet-title claim and adding a claim for declaratory relief. On December 3, 2013, McCrea filed a motion for summary judgment, and after responding to the motion, NFCU filed a second amended complaint, seeking only a declaratory judgment that it owns the property unencumbered by any claim of interest made by McCrea. In her response, McCrea added an additional counterclaim for the foreclosure sale to be declared void and set aside.

Subsequently, NFCU filed a competing motion for summary judgment, arguing that the outcome of the Foxes Case had no bearing on its ownership of the property and that McCrea’s counterclaims, which were all derivative of her claimed interest in the property, lacked evidentiary support. Ultimately, the trial court denied summary judgment to both parties, noting only that there were “genuine issues of material fact, including, but not limited to, any notice that [NFCU] may have had of the particular legal encumbrances on [the] property.” The order, however, did not mention McCrea’s counterclaims. NFCU then filed a motion for reconsideration, which the court also denied. Thereafter, we granted NFCU’s application for an interlocutory appeal, and this appeal follows.

At the outset, we note that summary judgment is proper when “there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law.” Additionally, a de novo standard of review applies to an appeal from a grant or denial of summary judgment, and we “view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.” With these guiding principles in mind, we turn now to NFCU’s specific claims of error.

1. NFCU first argues that the trial court erred in denying its motion for summary judgment as to its request for declaratory relief because the undisputed evidence establishes that it owns the property free and clear of any claimed interest by McCrea. We agree.

In the case sub judice, McCrea, who has not filed an appellate brief, essentially argued to the trial court that the warranty deed she executed, transferring the property to the Foxes, was “declared void” in the Foxes Case, and, as a result, they had no interest in the property to convey to NFCU in the security deed. Moreover, she contended below that NFCU was not a bona fide purchaser of the property because it had notice of the F oxes Case and yet chose not to intervene. However, there is no evidence in the record to support these assertions. As previously noted, the trial court found that there was a genuine issue of material fact regarding whether NFCU had notice of any legal encumbrances on the property But the only “legal encumbrance” ever identified by McCrea of which NFCU could have been notified was the pendency and outcome of the Foxes Case, and contrary to her claims, the final judgment in that case had no bearing on the validity of any deeds relevant to this case.

In support of her motion for summary judgment, McCrea submitted the trial court’s initial judgment in the Foxes Case, which merely awarded damages to McCrea on her breach-of-contract and tort claims against the Foxes. However, on April 15, 2014, during the pendency of this case, the trial court in the Foxes Case modified its initial judgment to declare that the warranty deed in dispute was void. Thereafter, NFCU filed a motion to intervene in the Foxes Case and set aside the modified judgment. Then, on December 15, 2014, one day before summary judgment was denied in this case, the trial court in the Foxes Case granted NFCU’s motion to intervene, vacated the modified order, and reinstated its initial judgment. In doing so, the trial court in the Foxes Case noted that, by declaring the warranty deed void, the modified judgment made a substantial and impermissible change to the jury’s verdict, which only awarded monetary damages to McCrea. And in support of its motion for reconsideration of the denial of summary judgment in this case, NFCU submitted the final judgment by the trial court in the Foxes Case to establish that the warranty deed transferring the property to the Foxes was not declared void by that court.

Here, the entire basis for McCrea’s claimed interest in the property stems from the outcome of the Foxes Case, but she presented no evidence to show that she ever regained any interest in the property after she conveyed it to the Foxes as a result of that lawsuit or otherwise. Instead, the undisputed evidence referenced supra establishes that, although McCrea was awarded monetary damages in her action against the Foxes, the court ultimately did not declare her transfer of the property to the Foxes void because such a judgment was unauthorized by the jury’s verdict. And, of course, it is well settled that summary judgment cannot be avoided based on “speculation or conjecture; once the pleadings are pierced with actual evidence, the [nonmovant] must point to admissible evidence showing a genuine issue of fact.” Here, McCrea simply failed to present any such evidence.

Finally, to the extent that the trial court’s cursory summary-judgment order suggests that there was a genuine issue of material fact as to whether McCrea’s lis-pendens notice informed NFCU that there was a “legal encumbrance” on the property, we note that the doctrine of lis pendens, which has been codified in OCGA § 44-14-610 et seq., merely “impute [s] to all third parties constructive notice of the litigation and of the claims against property being asserted in the pleadings and [binds] third parties to the outcome of the litigation.” And here, even assuming that NFCU had either actual or constructive knowledge of McCrea’s claims regarding the property in the Foxes Case, the outcome of that case did not ultimately create a legal encumbrance on the property impacting any of the deeds executed in this case. Thus, McCrea’s lis-pendens notice ultimately had no negative binding effect on NFCU’s ownership of the property. For these reasons, the trial court erred by denying summary judgment to NFCU as to its claim for declaratory relief.

2. In four separate enumerations of error, NFCU also argues that the trial court erred in denying its motion for summary judgment on McCrea’s counterclaims because they lacked any evidentiary support. Again, we agree.

As previously mentioned, McCrea asserted counterclaims against NFCU for intentional infliction of emotional distress, unjust enrichment, stubborn litigiousness, and setting aside the foreclosure sale. And all of McCrea’s counterclaims, except her claim for unjust enrichment, hinged on her contention that the warranty deed she executed transferring the property to the Foxes had been declared void. However, as discussed in Division 1 supra, this claim was belied by the record. Moreover, as to her unjust-enrichment claim, she alleged only that NFCU made a profit in the foreclosure sale. Needless to say, even if that were true, it does not give McCrea, who was not a party to that sale, a cause of action for unjust enrichment against NFCU.

Decided May 4, 2016

Reconsideration denied May 16, 2016.

Shapiro, Pendergast & Hasty, Denise R. Griffin, for appellant.

Thandiwe Law Group, Lynnae F. Thandiwe, for appellee.

F or all of the foregoing reasons, we reverse the trial court’s denial of NFCU’s motion for reconsideration of the court’s summary-judgment order and instruct the court to enter judgment in favor of NFCU as to its claim for declaratory relief and all of McCrea’s counterclaims.

Judgment reversed.

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

       An application for interlocutory appeal was the proper avenue for obtaining appellate review at this stage in the proceedings. See Mayor & Aldermen of City of Savannah v. Norman J. Bass Constr Co., 264 Ga. 16, 17 (1) (441 SE2d 63) (1994) (“[A]n order denying a motion for reconsideration [of the denial of a motion to dismiss] is an interlocutory order that, just as any other interlocutory order, can be the subject of an application for interlocutory appeal if a certificate of immediate review is obtained from the trial court.”); Rollins Communications v. Henderson, Few & Co., 140 Ga. App. 504, 504 (1) (231 SE2d 412) (1976) (holding that an appellant properly sought interlocutory review of the trial court’s denial of a motion for reconsideration of a prior order that was not a final, appealable judgment).

       After NFCU initially filed its appeal in this Court, we transferred its appeal to the Supreme Court of Georgia, believing that it was subject to that Court’s jurisdiction over cases respecting title to land. But the Supreme Court transferred the appeal back to this Court, explaining that the case did not fall within its title-to-land jurisdiction because, although NFCU sought to establish the validity of its title to land, it had not “filed an ejectment or other similar action that seeks to recover possession of the land from [McCrea].” See, e.g., Graham v. Tallent, 235 Ga. 47, 49 (218 SE2d 799) (1975) (“[T]he case before us is not a case respecting title to land for the reason that this case is not an action of ejectment or a statutory substitute, and it seeks sale by foreclosure rather than recovery of the land.”).

        See, e.g., Vratsinas Constr. Co. v. Chitwood, 314 Ga. App. 357, 357-58 (723 SE2d 740) (2012).

        Id. at 357 (punctuation omitted).

        Id. at 357-58 (punctuation omitted).

       We note that the modified order itself was never presented to the trial court, and the parties presented no other evidence referencing the modification or suggesting that the warranty deed to the Foxes was ever “declared void” until NFCU filed its motion for reconsideration.

        See Erdmier v. Eunice, 143 Ga. App. 505, 507 (3) (239 SE2d 192) (1977) (holding that the trial court was unauthorized to add interest to the jury’s award of damages absent direction to do so in the verdict); Fried v. Fried, 208 Ga. 861, 861 (3) (69 SE2d 862) (1952) (“After the dispersal of the jury [,] the judge has no power either to add to or take from their findings, and has not the power, by amendment or reformation, to supply substantial omissions or make substantial changes in the verdict as rendered by the jury.”), reversed on other grounds by Massengale v. Massengale, 209 Ga. 154 (71 SE2d 211) (1952); see also OCGA § 9-12-9 (“Judgment and execution shall conform to the verdict.”).

        Cowart v. Widener, 287 Ga. 622, 633 (3) (c) (697 SE2d 779) (2010); accord McManus v. Taylor, 326 Ga. App. 477, 485 (4) (756 SE2d 709) (2014).

       We note that NFCU also contends that, even if McCrea retained any interest in the property after she conveyed it to the Foxes, she transferred that interest to someone else via a quitclaim deed during the pendency of the Foxes Case, and, as a result, she lacks standing to dispute its claim for declaratory relief or to assert her counterclaim for setting aside the foreclosure sale. While this may have been an alternative basis upon which the trial court could have granted summary judgment to NFCU, we need not address it separately because NFCU was also entitled to summary judgment for the reasons set forth herein.

        Vance v. Lomas Mortg. USA, Inc., 263 Ga. 33, 35 (1) (426 SE2d 873) (1993), accord Boca Petroco, Inc. v. Petroleum Realty II, LLC, 285 Ga. 487, 488 (678 SE2d 330) (2009); see Baxter v. Bayview Loan Servicing, LLC, 301 Ga. App. 577, 584 (1) (b) (688 SE2d 363) (2009) (“One who purchases the property with notice of the lis pendens ... is then bound to the outcome of the pending litigation, even though they were not otherwise a party to it.”).

        See Tuvim v. United Jewish Communities, Inc., 285 Ga. 632, 635 (2) (680 SE2d 827) (2009) (“Unjust enrichment applies when as a matter of fact there is no legal contract, but when the party sought to be charged has been conferred a benefit by the party con tending an unjust enrichmen t which the benefitted party equitably ought to return or compensate for.” (punctuation omitted) (emphasis supplied)); Rommelman v. Hoyt, 295 Ga. App. 19, 20 (670 SE2d 808) (2008) (same); Engram v. Engram, 265 Ga. 804, 807 (2) (463 SE2d 12) (1995) (same).


author: Ray, Judge.

text:
    A16A0304.
    KEMP v. GREEN et al.
    (786 SE2d 503)
   Ray, Judge.

Pamela Elaine Kemp filed this interlocutory appeal following a trial court order disqualifying her attorney. The trial court disqualified Gary Bunch and his law firm, Gary Bunch, PC. (collectively “Bunch”), from representing Kemp in a tortious interference action against attorneys Henry D. Green, Jr., David A. Sapp, and their law firm, Green & Sapp, LLP (collectively, “Green & Sapp”). Kemp argues, inter alia, that the trial court erred in failing to hold an evidentiary hearing and in finding that Bunch was an essential witness. She also argues that the testimony sought from Bunch is shielded by attorney-client privilege and the attorney work-product doctrine. As discussed more fully below, because we believe that a decision whether to disqualify counsel is premature, we vacate the trial court’s order and remand the case for further proceedings consistent with this opinion.

We review a trial court’s decision on a motion to disqualify counsel for an abuse of discretion. Cardinal Robotics, Inc. v. Moody, 287 Ga. 18, 22 (694 SE2d 346) (2010).

Such a standard is appropriate because both the trial court and the appellate court must be mindful that the client’s right to counsel of choice is an important interest which requires that any curtailment of it be approached with great caution.

Id.

This is Kemp’s second appearance before this Court. Both of Kemp’s appellate court cases spring from her underlying medical malpractice suit against WellStar Health Systems following the death of her husband. In her first case before this Court, WellStar Health Systems, Inc. v. Kemp, 324 Ga. App. 629 (751 SE2d 445) (2013), we upheld the trial court’s decision to disqualify WellStar’s attorney, Sapp, as well as his partner, Green, and their law firm. Id. at 633-637 (1) (b). The trial court disqualified the lawyers after determining that they intentionally interfered with Kemp’s medical expert witness, Dr. William Stinnette, by contacting the general counsel for his employer, Northside Hospital, such that Stinnette felt pressured to withdraw as an expert. See id. at 629-632. Following our appellate decision in WellStar, supra, Kemp sued Green & Sapp for tortious interference.

In the instant appeal, Green & Sapp moved to disqualify Kemp’s lawyer and law firm from the instant tortious interference suit filed against them. Bunch had represented Kemp in all of the aforementioned permutations of this litigation, and Green & Sapp argued that he should be disqualified because he was a material witness regarding Stinnette’s withdrawal and its impact on Kemp. The trial court agreed, and this appeal followed.

As an initial matter, it is unclear whether Kemp has a valid tortious interference claim. Financial injury is an essential element of a tortious interference claim. Cochran v. Mullinax, 276 Ga. App. 81, 86-87 (3) (622 SE2d 455) (2005). Kemp, however, admitted in response to Green & Sapp’s first request for admissions that she “is making no claim . . . for any alleged diminution in the value of her medical malpractice claims[.]” She also unequivocally states in her appellate brief that she is not asserting a claim for intentional infliction of emotional distress, despite the fact that her complaint alleges that the tortious interference had a “devastating impact” on her and caused her to “suffer much anguish[.]” While we may doubt the validity of Kemp’s claims, we cannot at this early juncture say that Bunch’s disqualification is wrong if, in fact, Kemp has a valid claim. A determination on the validity of her claim is therefore essential prior to any decision about disqualification.

Further, if Kemp has a valid claim, a decision on counsel’s disqualification may be premature because the same information sought from Bunch may possibly be obtained from Kemp. Alternatively, if Kemp asserts her right of attorney-client privilege or attorney work-product protection, there is a possibility that this information may be available from Stinnette or other sources. See Clough v. Richelo, 274 Ga. App. 129, 132-133 (1) (616 SE2d 888) (2005); Martinez v. Housing Auth. of DeKalb County, 264 Ga. App. 282, 288 (5) (590 SE2d 245) (2003). Also, as Kemp argues in her brief, because of his history with her medical malpractice case, Bunch may indeed be the best person to represent her in her tortious interference action, if there is a valid claim of such, and Kemp’s right to the counsel of her choice is an important one. Martinez, supra. These issues, however, are unripe prior to a determination on the validity of Kemp’s claim.

Decided May 16, 2016.

Gary P. Bunch, for appellant.

Parks, Chesin & Walbert, David F. Walbert, M. Travis Foust, for appellees.

Kemp also argues that she should have been given an evidentiary hearing. See Befekadu v. Addis Intl. Money Transfer, LLC, 332 Ga. App. 103, 108 (1) (c) (772 SE2d 785) (2015) (although an eviden-tiary hearing is not required prior to counsel’s disqualification, it is appropriate in some instances to allow parties to submit evidence in support of their positions). Here, the trial court held a hearing prior to counsel’s disqualification, but on remand, prudence might dictate that an evidentiary hearing be held to address the precursor issues set forth above. Accordingly, we vacate the trial court’s order and remand the case for further proceedings consistent with this opinion.

Judgment vacated and case remanded.

Andrews, P. J., concurs. Doyle, C. J., concurs in judgment only.


author: PHIPPS, Presiding Judge.

text:
    A16A0314.
    In the Interest of S. W., a child.
    (786 SE2d 499)
   PHIPPS, Presiding Judge.

A juvenile court adjudicated S. W. delinquent for acts which, if committed by an adult, would have constituted aggravated assault with a deadly weapon, a pistol. S. W. appeals, contending that the evidence was insufficient to support his adjudication of delinquency For the reasons set forth below, we affirm.

In considering a challenge to the sufficiency of the evidence supporting an adjudication of delinquency, we construe the evidence and every inference from the evidence in favor of the juvenile court’s adjudication to determine if a reasonable finder of fact could have found, beyond a reasonable doubt, that the juvenile committed the acts charged.

So viewed, the evidence showed that the two victims walked to a convenience store after leaving Crim Open Campus High School around 6:00 p.m. one evening in November 2012. Two other boys, one of whom the victims recognized as someone they knew as “Little Robert,” confronted the victims regarding a prior altercation. The victims started to walk away, but the boys (now part of a group which included four more boys) began following them. One of these four was S. W., then 16 years old, whom the victims recognized from having gone to high school with him.

Seeing that they were now outnumbered and that Little Robert had pulled out a gun, the victims started running. As they passed a Checkers restaurant, the victims heard the sound of a gun being cocked and turned around to see S. W. leading the group and holding a gun. The victims ran into traffic and onto the expressway in order to escape the group of boys chasing them.

1. S. W. asserts that the State failed to prove venue because the two victims, X. C. and Z. W., provided confusing lay testimony on whether the Checkers restaurant was in DeKalb County

A delinquency proceeding may be commenced either where the juvenile resides or where the alleged delinquent acts occurred. “The standard of review on appeal to determine whether venue was sufficiently proved is the same as any other sufficiency review — whether, in the light most favorable to the prosecution, any rational trier of fact could have found venue beyond a reasonable doubt.”

In response to a question regarding where the convenience store was located, X. C. testified, “I guess DeKalb.” He later stated that the Checkers restaurant was on “Memorial” and responded affirmatively to whether “that” was in DeKalb County as well. However, during cross-examination, X. C. clarified that the incident occurred in DeKalb County

The prosecution did not elicit any testimony regarding venue from Z. W. on direct examination. However, on redirect, the following exchange took place:

Q: When all this happened at that Checkers, what county was this all in? Was this in DeKalb County?
A: It was in DeKalb County, but I don’t really know, because I know on one side, it cross over to Atlanta. I think it was DeKalb, though. It had to be DeKalb ’cause it was right there at the Checkers at Crim.

This testimony constituted sufficient evidence for the trial court to find beyond a reasonable doubt that venue was properly laid. Although both witnesses initially expressed some uncertainty, and Z. W. noted that the county line was nearby, they ultimately concluded that the incident occurred in DeKalb. Moreover, “[i]t is not for us to determine or question how the trier of fact resolved any apparent conflicts or uncertainties in the evidence. Rather, on appeal, we indulge every contingency in favor of the verdict.” We find no reversible error.

2. S. W. argues that the evidence was insufficient to support an adjudication of delinquency for acts which, if committed by an adult, would have constituted aggravated assault. He contends that there was no testimony that he threatened or even spoke to the victims and no evidence that he pointed the gun at the victims or cocked the gun.

The elements of aggravated assault relevant to this case are (1) assault (2) with a deadly weapon. S. W. raises no issue with respect to the second element. As to the first element, “simple assault” is defined as either attempting to commit a violent injury to the person of another or committing an act which places another in reasonable apprehension of immediately receiving a violent injury.

Here, the victims both testified that they heard the sound of a gun being cocked and turned around to see S. W. holding a gun while chasing them with a group of other young men. The victims were so afraid that they ran into traffic and onto the expressway to get away Although the victims testified that S. W. was pointing the gun down and not at them, S. W.’s conduct was sufficient to place them in reasonable apprehension of immediately receiving a violent injury. This evidence was sufficient to support the adjudication of delinquency.

Decided May 16, 2016.

Arianne E. Mathé, for appellant.

Robert D. James, Jr., District Attorney, Gerald Mason, Assistan t District Attorney, for appellee.

Judgment affirmed.

Dillard and Peterson, JJ., concur.

       OCGA § 16-5-21 (b) (2).

        In the Interest of D. M., 308 Ga. App. 589-590 (708 SE2d 550) (2011) (citation omitted).

       OCGA § 15-11-490 (a).

        In the Interest of D. D., 287 Ga. App. 512, 513 (2) (651 SE2d 817) (2007) (citation omitted).

       See Martin v. McLaughlin, 298 Ga. 44, 46, n. 3 (779 SE2d 294) (2015) (discussing standard of review and disapproving decisions employing an “any evidence” or “slight evidence” standard).

        Harris v. State, 257 Ga. App. 42, 44 (1) (570 SE2d 353) (2002) (finding that State proved venue beyond a reasonable doubt where the witness testified that he did not think any of the events occurred outside of the county).

        In the Interest of J. L. H., 289 Ga. App. 30, 31 (656 SE2d 160) (2007) (citation and punctuation omitted).

       OCGA § 16-5-21 (b) (2).

       OCGA § 16-5-20 (a).

       See Veasey v. State, 322 Ga. App. 591, 595 (1) (c) (745 SE2d 802) (2013) (“A pistol is a deadly weapon. Indeed, the presence of a gun would normally place a victim in reasonable apprehension of being injured violently.”).

       OCGA § 16-5-21 (b) (2).