author: PHIPPS, Presiding Judge.

text:
    A12A1651.
    REINHARDT UNIVERSITY v. CASTLEBERRY.
    (734 SE2d 117)
   PHIPPS, Presiding Judge.

Reinhardt University, formerly known as Reinhardt College, appeals the denial of its motion to dismiss (for failure to state a claim) the complaint filed against it by Joan Hasty Castleberry. We affirm.

This lawsuit concerns a $1 million donation made to the school with allegedly misappropriated funds in which Castleberry had an expected interest. In her complaint, Castleberry alleged the following. Castleberry’s father died in 2003, leaving a wife and three children. Pursuant to his will, one or more marital trusts (hereinafter, “trust”) were established for the benefit of his wife, with his son 'William Hasty, Jr., named as the trustee. The trust provided that, after the wife died, the trust remainder would be divided among the three children. While the wife was still alive, Hasty — who was also a trustee of then Reinhardt College—pledged a $ 1.5 million donation to the school. Then, through a series of financial transactions, Hasty effectively transferred approximately $1 million from the trust to the school to partially satisfy the pledge. The wife died thereafter, in 2009.

Castleberry alleged further in the complaint that her brother Hasty, as trustee of the (marital) trust, owed a fiduciary duty of utmost good faith and loyalty to her and the other remainder beneficiaries. She asserted that he had breached the fiduciary duty and committed breach of trust contemplated by OCGA § 53-12-301; she alleged that Hasty had lacked authority to transfer the $1 million as a gift to the University, thereby encroaching upon her remainder share. Therefore, Castleberry claimed, the University could not enjoy the beneficial interest in the $ 1 million without violating principles of equity because it had received the money as a result of Hasty’s unauthorized actions.

Given the foregoing, Castleberry sought to impose upon the $1 million donation (or property traced therefrom) a constructive trust pursuant to OCGA § 53-12-132. That Code section provides: “A constructive trust is a trust implied whenever the circumstances are such that the person holding legal title to property, either from fraud or otherwise, cannot enjoy the beneficial interest in the property without violating some established principle of equity.”

The University moved to dismiss the action under OCGA § 9-11-12 (b) (6) for failure to state a claim upon which relief could be granted. The University pointed out that although Castleberry had accused Hasty of wrongdoing, she had not alleged any wrongdoing on its part. The University thus characterized Castleberry’s complaint as having “brought only one count against the University: Constructive Trust Pursuant to OCGA § 53-12-132.” The University then cited St. Paul Mercury Ins. Co. v. Meeks for the proposition that the imposition of a constructive trust is a remedy, not an independent cause of action. The University argued that St. Paul Mercury Ins. Co. and the cited proposition controlled the instant case to an outcome in its favor. Alternatively, the University asserted a policy argument: it should be allowed to keep the money because it relies heavily on donations and a practice of investigating the sources of donated funds would be impractical and would impact charitable giving.

The trial court denied the University’s motion, and this interlocutory appeal ensued.

[A] motion to dismiss for failure to state a claim upon which relief may be granted should not be sustained unless (1) the allegations of the complaint disclose with certainty that the claimant would not be entitled to relief under any state of provable facts asserted in support thereof; and (2) the movant establishes that the claimant could not possibly introduce evidence within the framework of the complaint sufficient to warrant a grant of the relief sought. In deciding a motion to dismiss, all pleadings are to be construed most favorably to the party who filed them, and all doubts regarding such pleadings must be resolved in the filing party’s favor.

This Court reviews the denial of a motion to dismiss for failure to state a claim upon which relief can be granted de novo.

The University contends that the trial court erred by denying its motion to dismiss, maintaining its position that Castleberry’s complaint asserted only a claim for constructive trust, and relying on cases such as St. Paul Mercury Ins. Co. for the proposition that a constructive trust is a remedy and not an independent cause of action.

However, the denial of the motion to dismiss was correct, as illustrated by Kelly v. Johnston, in which the Supreme Court of Georgia allowed a lawsuit seeking the imposition of a constructive trust to proceed based upon circumstances analogous to those here. Like the University here, the defendant in Kelly who held the proceeds at issue was not alleged to have committed any wrongful act. And like Castleberry here, the plaintiff in Kelly alleged that the wrongful acts of a third party (who was not a party to that lawsuit) were sufficient to authorize equity to impose a trust upon the proceeds that had come into the hands of the defendant.

In Kelly, a divorce decree provided that certain real property be sold and the proceeds divided by specified percentages between the spouses. The husband later remarried, then sold the property, but did not pay any proceeds to his former wife. When the husband died, his widow obtained an award of a year’s support. The former wife filed an action seeking to impose a constructive trust on those proceeds, alleging that she had been entitled to a percentage of the proceeds from the sale of the real property. The widow pointed out that there was no allegation of fraud on her part, took the position that her support award was thus not subject to a constructive trust, and sought summary judgment. Determining that the widow was not entitled to summary judgment, the Kelly Court held: “A constructive trust arises with respect to property the title to which was acquired by fraud, or where although acquired originally without fraud, it is against equity that the title should be retained by the one who holds it.” The Court explained:

[T]he alleged fraudulent acts of [the husband] are sufficient to authorize equity to impose a trust upon [the former wife’s] share of the proceeds. The constructive trust is still enforceable even when the proceeds have come into the hands of [the widow]. The proceeds were subject to the trust in the hands of [the husband] and the mere passage of the proceeds through the year’s support proceedings does not divest equity of the power to enforce the trust under the circumstances of this case.

In the instant case, Castleberry’s request for the imposition of a constructive trust is predicated on her allegations that her brother Hasty was not authorized to transfer the $1 million, in that he breached duties owed to her and interfered with her expected gift. To the extent Hasty was thus not authorized to transfer the funds, they are subject to a constructive trust — even in the hands of the University and even without allegation of wrongdoing on the University’s part. Moreover, the University has failed to demonstrate any merit in its assertion that its heavy reliance on donations would divest equity of the power to enforce a constructive trust under the circumstances of this case. Construed in the light most favorable to Castleberry and resolving all doubts in her favor, Castleberry’s complaint sufficiently stated a claim for relief.

Decided November 8, 2012

Freeman, Mathis & Gary, Benton J. Mathis, Jr., for appellant.

Caldwell & Watson, Wade H. Watson III, Laura K. Bonander, for appellee.

Nothing in the decision of St. Paul Mercury Ins. Co., relied upon by the University, leads to a conclusion in its favor. In that case, the plaintiff sought the imposition of a constructive trust, alleging solely the equitable concept of unjust enrichment. Because the plaintiff failed to prove to a jury its allegations of unjust enrichment, the plaintiff failed to demonstrate entitlement to a constructive trust. Given those circumstances, the Court expounded that, while a constructive trust may be employed to remedy unjust enrichment, “it is not an independent cause of action available to [the plaintiff], but a device by which property might be recovered if [the plaintiff’s] unjust enrichment claim were to prevail.” Because St. Paul Mercury Ins. Co. is inapposite, the University’s reliance upon that case (and the cited proposition) is misplaced.

Judgment affirmed.

Ellington, C. J., and Dillard, J., concur.

       While Hasty was not made a party to this lawsuit, Castleberry alleged in her complaint that she had filed a separate suit in the same superior court against Hasty for, inter alia, breach of fiduciary duty and breach of trust.

       (Concerning actions for breach of trust).

       OCGA § 53-12-132 (a).

       270 Ga. 136 (508 SE2d 646) (1998).

       Id. at 138 (2); see Morrison v. Morrison, 284 Ga. 112, 113 (1) (663 SE2d 714) (2008).

       This court transferred the underlying interlocutory application to the Supreme Court of Georgia on the ground that the case invoked its equity jurisdiction, but the Supreme Court returned the application concluding:
      As no equitable relief has been granted or denied and as a determination as to the availability of the equitable relief sought is merely ancillary to the determination of the sufficiency of the facts and legal theories presented below, this case does not invoke this Court’s jurisdiction over equity cases and it hereby is returned to the Court of Appeals.

        Scouten v. Amerisave Mtg. Corp., 283 Ga. 72, 73 (1) (656 SE2d 820) (2008) (citation and punctuation omitted), citing OCGA § 9-11-12 (b) (6).

        Landmark American Ins. Co. v. Khan, 307 Ga. App. 609 (1) (705 SE2d 707) (2011).

       Supra.

       258 Ga. 660 (373 SE2d 7) (1988).

       Id. at 661 (1).

       Id.

       Id. at 660.

       Id. at 660.

       Id. at 660-661.

       Id. at 661.

       Id. at 661 (1).

       Id. (citations omitted).

       Id.

       See id.; see generally Morrison, supra at 112-113 (1) (discussing allegations underlying claims of intentional interference with an expected gift and breach of fiduciary duty).

       See generally Kelly, supra.

       See Scouten, supra.

       See Kelly, supra.

       See St. Paul Mercury Ins. Co, supra at 137 (1) (explaining that unjust enrichment is an equitable concept and applies, inter alia, “when the party sought to be charged has been conferred a benefit by the party contending an unjust enrichment which the benefitted party equitably ought to return or compensate for” (citation and punctuation omitted)).

       Id. at 138 (1) (noting evidence from which the jury could have found that the party had not been unjustly enriched as claimed).

       Id. at 138 (2) (noting that a constructive trust may be employed to prevent unjust enrichment).

       Id.


source: Caselaw Access Project

author: Branch, Judge.

license: Public Domain

text:
    A12A1225.
    In the Interest of J. J. X. C., a child.
    (734 SE2d 120)
   Branch, Judge.

This appeal concerns a Guatemalan boy who, at age 15, came to the United States on his own, was apprehended at the border by customs officials, and was eventually released into the care of his brother Nicolas Xivir and Xivir’s wife, Shaileen Santana, who live in Gwinnett County. Following a deprivation hearing initiated by Xivir and Santana, a juvenile court found the child to be deprived but failed to make two requested findings that are relevant to the child’s immigration status. In their unopposed appeal, Xivir and Santana contend that, in so doing, the juvenile court erred. At oral argument, they asked this Court to reverse and remand the case to the juvenile court with instruction to reconsider the issue. There is no Georgia case law addressing the issues raised herein.

The record shows that on May 19, 2011, Xivir and Santana petitioned the Juvenile Court of Gwinnett County for a finding of deprivation regarding the boy and an order providing them with legal custody. See OCGA §§ 15-11-2 (8), 15-11-35 (4), 15-11-54 (a). In their petition, Xivir and Santana asserted, as one ground of deprivation, that

[p]ursuant to the Immigration and Naturalization Act § 101 (a) (27) (J) (iii) (I). . ., should the Court enter an order finding that [J. J. X. C.] is dependent upon the juvenile court, that reunification with one or both parents is not viable and it is not in the “best interest” of the child to return to his parents’ previous country or last habitual residence, a Special Immigrant juvenile visa may be obtained enabling [J. J. X. C.] to remain in the United States legally, and, if he so wishes, ultimately apply for citizenship.

(Emphasis in original.) In their brief for the court, the petitioners asked the court to make findings in that regard. At the subsequent hearings, the petitioners were represented by counsel, and the child was represented by a guardian ad litem.

The juvenile court held an emergency hearing on June 30, 2011, at which Santana testified that she was legally married to the child’s brother, that she is a stay-at-home mother, and that her husband repairs computers. She introduced a certified copy of the child’s Guatemalan birth certificate and an English translation. She testified that the child came to live with her, her husband, and their child in February 2011 and that the child’s parents live in Guatemala and are engaged in farming. She testified that in Guatemala, the child had been harassed by a gang that wanted him as a member and that he wanted to come to the United States to avoid the gangs and to protect his life. The child told them the gang had threatened to hurt his family. Santana further explained that the child is enrolled in high school, gets good grades, and is beginning to speak English. He has his own bedroom in the house, and the couple are willing and financially able to provide for him at least until he reaches age 18. The Department of Family and Children Services performed a study of their home in connection with the placement of the child.

The juvenile court also accepted the appellants’ tender of documentary evidence. In addition to the child’s birth certificate, this evidence includes the child’s progress report at school, information from the United States Department of State regarding Guatemala, a fact sheet entitled “Gangs in Guatemala” by the Guatemala Human Rights Commission/USA, and a report entitled “Guatemala Profile” by USAID — the United States Agency for International Development — regarding gangs operating in El Salvador, Guatemala, Honduras, Mexico, and Nicaragua. At the end of the hearing, the court stated on the record that it was taking custody of the child on an emergency basis. No written order reflecting this ruling is in the record, but it is noted in the July 6 order.

On July 6, one week later, the court held the final hearing, at which, as in the emergency hearing, there was no opposing party. At this hearing, Xivir testified that his brother (who is not married) was born in Guatemala on October 12, 1995, and that in Guatemala, his brother lived with their parents in a two-bedroom home with electricity and shared a bedroom with other family members. Xivir testified that he, too, was born in Guatemala and that he came to the United States at age 14 because, beginning at age 13, his life was in danger because gangs involved with drug trafficking, violence and murder had “taken over” and were recruiting young boys, including him. Xivir was unable to obtain help because the Guatemalan police were corrupt and his parents were not helpful because “my father most of the time was drunk and my mother spoke only a language that is called Quiche.” He added that his father never cared for him; rather, his mother did. He is equally fearful that his brother would face the same dangers he did in Guatemala. Xivir testified that he did not know his brother was coming until he received a call from immigration. And Xivir averred that he is able to provide food, medical care, and clothing for his brother and that his brother is enrolled in high school and doing well.

J. J. X. C. testified that although his parents do work (in farming), they were not able to provide for their large family. He testified he came to the United States because, starting when he was 14 years old, members of the MS-13 gang, who kill, steal, and sell drugs, were pressuring him to join and to engage in those activities. He testified that initiation in the gang involved being beaten by ten or more other boys and that he would be in fear for his life if he told them he would not join. J. J. X. C. told his father, but when his father tried to do something about it, “the police didn’t do anything.” He added that his father was always drunk when he came home from work and did not care for him. Although his mother cared for him, she did not have the power to stop his father from drinking or to protect him from the gangs, in part because she spoke an indigenous language, not Spanish. J. J. X. C. left Guatemala without telling his parents because he did not want a life of violence, he wanted to continue his studying, and his family did not have other contacts or means to move to another location. He believes that leaving Guatemala was his only option and that if forced to return, the gangs would contact him again and his family would not be able to protect him. J. J. X. C. concluded his testimony by stating that he wanted to live in the United States with his brother and family so that he could “study, graduate and go to the university.”

The petitioners filed notarized statements in Spanish from the child’s parents, along with notarized English translations, which state that the parents are unable to provide completely for their children; that they do not have the means to provide enough food, appropriate medical care, or other support that the child needs; and that it would be in the best interest of the child to be with his brother and family. The mother signed with a fingerprint.

In a written order, the court found that clear and convincing evidence had been presented to show that the child was deprived and dependent upon the court because “the child is within the borders of Georgia and without proper and adequate care and supervision from a biological parent or legal guardian.” The court also found that the child fled Guatemala because gangs were threatening him and trying to recruit him and he was afraid for his life and safety; that the parents had refused reunification; that family reunification was not a viable option; that the child cannot care for himself; and that it would be in the child’s best interest to remain in his current placement with the petitioners as his guardians.

The appellants do not challenge the court’s affirmative findings. The court’s order is silent, however, with regard to the requested findings regarding the child’s immigration status, and the appellants contend the court erred by failing to make those findings. At oral argument on appeal, the appellants stated that the child is currently the subject of removal proceedings.

Federal law provides a path to lawful permanent residency in the United States to resident alien children who qualify for “special immigrant juvenile” (SIJ) status. 8 USC § 1101 (a) (27) (J); 8 CFR § 204.11. “Congress created SIJ classification to protect abused, neglected, and abandoned immigrant youth through a process allowing them to become legal permanent residents.” Perez-Olano v. Gonzalez, 248 FRD 248, 265 (III) (A) (1) (a) (C.D. Ca. 2008); see also Yeboah v. United States Dept. of Justice &c., 345 F3d 216, 221 (III) (A) (3rd Cir. 2003) (“an alternative to deportation”).

To be eligible to petition the federal government for SIJ status, the resident alien must be under age 21 and unmarried. 8 CFR § 204.11 (c). The child must have been declared dependent upon a state juvenile court. 8 USC § 1101 (a) (27) (J). And the juvenile court must have made two additional findings: (1) that “reunification with 1 or both of the immigrant’s parents is not viable due to abuse, neglect, abandonment, or a similar basis found under State law”; and (2) that “it would not be in the alien’s best interest to be returned to the alien’s or parent’s previous country of nationality or country of last habitual residence.” Id. at (i), (ii). See also 8 CFR § 204.11. The language of the first finding is designed to “prevent youths from using this remedy for the purpose of obtaining legal permanent resident status, rather than for the purpose of obtaining relief from abuse or neglect [or abandonment].” (Punctuation omitted.) In re: Erick M., 284 Neb. 340, 347 (820 NW2d 639) (Neb. 2012), quoting 3 Charles Gordon et al., Immigration Law and Procedure § 35.09 (1) at 35-36 (rev. ed. 2001), citing H.R. Rep. No. 105-405 (1997) (Conf. Rep.). See also Yeboah, 345 F3d at 222 (III) (A). Although the juvenile court determines whether the evidence supports the findings, the final decision regarding SIJ status rests with the federal government, and, as shown, the child must apply to that authority. 8 USC § 1101 (a) (27) (J) (iii); Perez-Olano, 248 FRD at 265, n. 11.

Thus, the juvenile court is charged with making the factual inquiry relevant to SIJ status when an unmarried, resident alien child is found to be dependent on the court. “The SIJ statute affirms the institutional competence of state courts as the appropriate forum for child welfare determinations regarding abuse, neglect, or abandonment, and a child’s best interests.” Perez-Olano, 248 FRD at 265 (III) (A) (1) (a). Accordingly, courts in other states have held that a juvenile court errs by failing to consider a request for SIJ findings. See In re Y. M., 207 Cal.App. 4th 892, 916 (II) (B) (144 Cal.Rptr.3d 54) (Cal. App. 2012) (child who is “potentially eligible for SIJ status, . . . was entitled to a hearing where the juvenile court would determine whether findings required for SIJ status existed”) (citation omitted). See also In the Matter of Mohamed B., 83 AD3d 829, 831 (921 NYS2d 145) (N.Y.A.D. 2011) (child moved for SIJ findings during guardianship proceeding in family court); In the Interest of Luis G., 17 Neb. App. 377, 379 (764 NW2d 648) (Neb. App. 2009) (motions regarding SIJ status filed during juvenile cases addressing guardianship and foster care).

Here, however, the juvenile court’s otherwise detailed written order is silent regarding any decision on the SIJ factors. See OCGA § 15-11-54 (a) (“on any petition alleging deprivation, the court shall make and file its findings as to whether the child is a deprived child”). It is apparent that the court started with an order drafted by the petitioners and that the court struck all provisions relevant to SIJ status, including the proposed findings. Nevertheless, it is not clear whether, in so doing, the court simply chose not to address the issue or concluded that it was not authorized to or was otherwise refusing to make the findings. The court did not state a basis for declining to make the SIJ findings nor did it state that it had considered the SIJ findings and rejected them. See, e.g., Erick M., 284 Neb. at 351-352 (Neb. 2012) (juvenile court found that facts failed to show reunification with parent was not viable because of abuse, neglect, or abandonment).

Decided November 9, 2012.

Jessica M. Daman, for appellant.

Although the court was authorized to conclude that the petitioners failed to present evidence to support the SIJ factors or that their evidence was not credible, the court had a duty to consider the SIJ factors and make findings. In this unusual setting, where a state juvenile court is charged with addressing an issue relevant only to federal immigration law, we cannot affirm without some positive indication that the court actually addressed the issue. Our review of the juvenile court’s decision is impaired by the lack of findings, and the child’s immigration status hangs in the balance. See, e.g., In the Interest of Luis G., 17 Neb. App. at 385 (“[Wjithout the order of eligibility, including the required findings from the state court, [applicants] would be barred from proceeding in the federal system with a valid application for special immigrant juvenile status and would face deportation to Guatemala.”). Accordingly, we affirm the juvenile court’s finding of deprivation but remand the case to the juvenile court with instruction to consider the request for SIJ findings in light of the facts and relevant law and to make relevant findings.

Judgment affirmed in part and case remanded with direction.

Miller, P. J., and Ray, J., concur.

       The study performed by DFACS was introduced at the hearing held July 6, 2011.

       The “Gangs in Guatemala” fact sheet states that 80% of gang members in Guatemala belong to Mara Salvatrucha (also known as MS-13) and that “[g]ang members are involved in robbery, extortion, drug dealing, human trafficking, and turf wars with rival gangs.” The “Guatemala Profile” states that gangs have become “public enemy number one” in Guatemala, that the youth of Guatemala are affected because children as young as eight years old are recruited, that “young men are both more likely to be victims of gang violence, as well as perpetrators”; that “large numbers of youth desperately in need of income turn to gangs to fill the economic void”; and that “[t]he judicial system currently does not have the capacity to deal with gang violence.”

       The Conference Report states that in 1997, the language of the statute was modified in order to limit the beneficiaries of this provision to those juveniles for whom it was created, namely abandoned, neglected, or abused children, by requiring the Attorney General [now the Secretary of Homeland Security] to determine that neither the dependency order nor the administrative or judicial determination of the alien’s best interest was sought primarily for the purpose of obtaining the status of an alien lawfully admitted for permanent residence, rather than for the purpose of obtaining relief from abuse or neglect.
      (Emphasis supplied.) H.R. Rep. No. 105-405, at 130 (1997). See also Pub. L. No. 110-457 (2008).

       The applicable statute states that the determination of whether it would not be in the alien’s best interest to be returned must be made in “administrative or judicial proceedings.” 8 USCA § 1101 (a) (27) (J) (ii). See also 8 CFR § 204.11 (a), (c) (6) (“judicial proceedings or administrative proceedings authorized or recognized by the juvenile court”). But the final rule issued in 1993 by the then-immigration and Naturalization Service makes clear that the references to administrative proceedings do not mean proceedings before a federal agency. 58 FR 42843, 42847. As stated in the final rule in 1993,
      [sjuch administrative proceedings would most commonly be conducted by state or local social service agency officials. The Service does not intend to make determinations in the course of deportation proceedings regarding the ‘best interest” of a child for the purpose of establishing eligibility for special immigrant juvenile classification.
      (Emphasis supplied.) Id.


author: Phipps, Presiding Judge.

text:
    A12A0815.
    RAY et al. v. CITY OF GRIFFIN et al.
    (736 SE2d 110)
   Phipps, Presiding Judge.

In this tort action, Danny and Gwenell Ray appeal the dismissal from suit of City of Griffin police officer Gene Mathews, in his official capacity, and the grant of summary judgment to the City of Griffin. Danny Ray claims he was injured when the vehicle he was driving was struck by a vehicle driven by a suspect being pursued by Mathews. Gwenell Ray, Danny Ray’s wife, sued for loss of consortium.

Finding that OCGA § 36-92-3 foreclosed the Rays from recovering against Mathews, the trial court dismissed Mathews from the case as a party defendant. The trial court granted summary judgment to the City based on OCGA §§ 40-6-6 and 24-9-85 (b). Because we agree that under OCGA § 36-92-3 recovery from Mathews was foreclosed, we affirm the trial court’s dismissal of Mathews from the case. But because the Rays presented evidence from which a jury could find that Mathews recklessly disregarded proper law enforcement procedures in his pursuit of the suspect, we find that the trial court erred in granting summary judgment to the City. Accordingly, we affirm the trial court’s dismissal of Mathews and reverse the grant of summary judgment to the City.

1. The Rays contend that the trial court erred in concluding that OCGA § 36-92-3 barred them from recovering against Mathews in his official capacity and thus, dismissing Mathews from the case.

“When a question of law is at issue, as here, we owe no deference to the trial court’s ruling and apply the plain legal error standard of review.”

OCGA § 36-92-3 (a) and (b) provide:

(a) Any local government officer or employee who commits a tort involving the use of a covered motor vehicle while in the performance of his or her official duties is not subject to lawsuit or liability therefor. Nothing in this chapter, however, shall be construed to give the local government officer or employee immunity from suit and liability if it is proved that the local government officer’s or employee’s conduct was not within the performance of his or her official duties.
(b) A person bringing an action against a local government entity under the provisions of this chapter shall name as a party defendant the local government entity for which the officer or employee was acting and shall not name the local government officer or employee individually. In the event that the local government officer or employee is individually named for an act for which the local government entity is liable under this chapter, the local government entity for which the local government officer or employee was acting shall be substituted as the party defendant.

The Rays sued Mathews in his individual capacity and in his official capacity. Within four months of filing the complaint, however, they dismissed their suit against Mathews in his individual capacity. Thus, we do not discuss the doctrine of official (qualified) immunity, which offers public officers and employees limited protection from suit in their personal capacity.

In dismissing Mathews from the case, the trial court relied on, inter alia, DeLoach v. Elliott. In that case, the Supreme Court of Georgia addressed the grant of summary judgment in favor of a police officer in his individual capacity under the provisions of OCGA § 36-92-3. In doing so, “due to the nearly identical language between OCGA §§ 50-21-25 and 36-92-3,” the Court analogized OCGA § 36-92-3 to OCGA § 50-21-25 (the Georgia Tort Claims Act immunity statute for state employees), and held that by the passage of OCGA § 36-92-3, “the legislature intended to foreclose all recovery against municipal employees for torts committed within the scope of employment and involving the use of a covered motor vehicle.” OCGA § 50-21-25 (a) and (b) provide:

(a) This article constitutes the exclusive remedy for any tort committed by a state officer or employee. A state officer or employee who commits a tort while acting within the scope of his or her official duties or employment is not subject to lawsuit or liability therefor. However, nothing in this article shall be construed to give a state officer or employee immunity from suit and liability if it is proved that the officer’s or employee’s conduct was not within the scope of his or her official duties or employment.
(b) A person bringing an action against the state under the provisions of this article must name as a party defendant only the state government entity for which the state officer or employee was acting and shall not name the state officer or employee individually. In the event that the state officer or employee is individually named for an act or omission for which the state is liable under this article, the state government entity for which the state officer or employee was acting must be substituted as the party defendant.

Citing OCGA § 50-21-25, this court has held that a state actor sued in his official capacity is immune from suit if he acted within the scope of his official duties.

In determining whether the trial court properly dismissed Mathews in his official capacity from suit, we look to the nearly identical language of the pertinent provisions of OCGA § 36-92-3 (a) and (b), and OCGA § 50-21-25 (a) and (b), as emphasized above. Analogizing OCGA § 36-92-3 (a) and (b) to OCGA § 50-21-25 (a) and (b), as the Supreme Court has done, and considering applicable case law, we conclude that the trial court properly dismissed Mathews from the suit.

2. The Rays contend that the trial court erred in granting summary judgment to the City because genuine issues of material fact remain as to whether, under OCGA § 40-6-6 (d) (2), Mathews acted with reckless disregard for proper law enforcement procedures, and his actions were thus the proximate cause of the collision between the fleeing suspect and Danny Ray.

[S]ummary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. To obtain summary judgment, a defendant need not produce any evidence, but must only point to an absence of evidence supporting at least one essential element of the plaintiff’s claim. We apply a de novo standard of review to an appeal from a grant of summary judgment and view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

Because the record shows that summary judgment was not authorized, we reverse the grant of summary judgment to the City.

OCGA § 40-6-6 (d) (2) provides:

When a law enforcement officer in a law enforcement vehicle is pursuing a fleeing suspect in another vehicle and the fleeing suspect damages any property or injures or kills any person during the pursuit, the law enforcement officer’s pursuit shall not be the proximate cause or a contributing proximate cause of the damage, injury, or death caused by the fleeing suspect unless the law enforcement officer acted with reckless disregard for proper law enforcement procedures in the officer’s decision to initiate or continue the pursuit. Where such reckless disregard exists, the pursuit may be found to constitute a proximate cause of the damage, injury, or death caused by the fleeing suspect, but the existence of such reckless disregard shall not in and of itself establish causation.

The Rays alleged in their complaint that Danny Ray was injured as a result of an “irresponsible and reckless police chase.” They alleged that Danny Ray drove his vehicle on a roadway “[a]t the same time... Mathews with reckless disregard for the public[’] s safety was pursuing a vehicle driven by [another individual].” The Rays alleged that “[d]uring the pursuit, [Danny] Ray was t-boned causing his vehicle to overturn,” and that Danny Ray was seriously injured.

The Rays alleged that Danny Ray was injured as a direct and proximate result of Mathews’s negligent and reckless actions and omissions, and that the City was liable for the actions of its officers, in this case Mathews. Specifically, the Rays alleged that the acts of negligence and recklessness included, but were not limited to, the following: that Mathews was following too closely, in violation of statutory law and other applicable law; that Mathews struck an individual’s vehicle and caused it to lose control and strike Danny Ray; that immediately prior to the collision Mathews failed to take evasive action; that immediately prior to the collision, Mathews “failed to warn”; and that immediately prior to the collision, Mathews failed to keep a proper lookout.

The City and Mathews answered, denying liability and asserting the defenses of, among other things, sovereign immunity, official immunity, and lack of proximate cause under OCGA § 40-6-6. Discovery ensued; depositions were taken.

The police department’s Standard Operating Procedures (“SOP”) manual was submitted. The SOP manual provided, among other things, that (1) no officer shall initiate a high speed motor vehicle pursuit of any vehicle which, at the time of the contact, is known only to have committed a traffic or misdemeanor offense; (2) during pursuit, deliberate physical contact between vehicles such as bumping or ramming is considered lethal force and will not be justified at any time; (3) the operator of a police vehicle operating under emergency procedures shall drive with care and due regard for the safety of others, and police vehicles operating under emergency conditions shall utilize emergency lights and siren to warn other vehicles and pedestrians along the route; (4) a police vehicle operating under emergency conditions may exceed the posted speed limit so long as life or property are not endangered; (5) when the operator of a pursued vehicle increases his speed or drives in such a manner as to endanger the safety of others, the pursuing officer shall immediately and continuously use both the blue lights and the siren throughout the pursuit; and (6) the initial officer shall terminate pursuit when the gravity of the offense and the prospect of losing the suspect will not balance with the hazards to the officer and public.

The City and Mathews moved for summary judgment, asserting that this action was barred against Mathews in his official capacity; and that Mathews’s actions were taken with due regard for proper law enforcement procedures and as such, could not legally or factually be the proximate cause of the injuries Danny Ray suffered.

In movingfor summary judgment, the City andMathews asserted that on July 17, 2008, Mathews and another officer were on patrol in a marked vehicle when they observed a vehicle that Mathews had, three days before, seen parked at a residence known to local police officers as a place where illegal drugs had been sold and used; at that prior time, dispatch reported that the Georgia Crime Information Center showed that the vehicle’s tag number was not on file. When Mathews saw the vehicle on July 17, 2008, he followed it while inquiring again about the vehicle’s tag and registration. The officers followed the vehicle for several blocks, then they observed it fail to stop before turning right at a red light, fail to maintain its lane of travel, and accelerate in speed.

As Mathews proceeded up a bridge, he activated the police vehicle’s blue lights and siren to initiate a traffic stop. The officers observed that the vehicle was traveling at a high rate of speed, was not stopping, ran a red light, and entered an intersection on the wrong side of the road, colliding with the vehicle being driven by Danny Ray. The City and Mathews asserted that Mathews did not strike the vehicle he was pursuing; did not drive more than ten to twenty miles per hour over the speed limit after he had activated his emergency equipment; did not fail to maintain a proper lookout for traffic and driving conditions; and that when he decided to stop the vehicle, he engaged his emergency equipment, including the flashing blue lights and siren.

On May 21, 2010, the Rays filed a response to the motion for summary judgment, arguing that the City and Mathews were not entitled to summary judgment because, inter alia, Mathews had violated the SOP as listed above. The Rays later filed a supplemental brief in opposition to the motion for summary judgment. They attached to that supplemental brief affidavits executed on July 18,2010, by the driver and passenger of the vehicle which Mathews had pursued and which had collided with Danny Ray’s vehicle.

In his affidavit, the driver stated that as he was driving, he saw a police vehicle turn around and begin to follow him. The driver continued, in pertinent part:

The officer was trying and did catch up with me. I did not know why they were following me. I became scared and began speeding up in my vehicle. I began driving at speeds of over 55 miles per hour in a 30 mile per hour zone and tried to outrun the police. The police were right behind me and were traveling at the same speed I was. The police were driving at least 50 miles per hour at some points during the chase which was in a residential area. I drove through the City down five different streets and made at least six turns trying to get away. When I drove down Sixth Street, the police chased me down Sixth Street____When I took a U-turn by Slaton Avenue, made a right onto . . . drove onto Fifth Street, went through an intersection, and drive onto Solomon Street, the police were chasing me the entire time. At one point, I went through a red light. I did not stop at any intersections or stop lights while the police were pursuing me. The police did not slow down or stop at any intersections or stop lights while they were pursuing me. I accelerated as I approached the Sixth Street Bridge because the police were chasing me. The police officers were right behind me as I crossed over the bridge. At one point, I believe the police car hit the back of the car I was driving. I then lost control and crashed into Danny Ray’s vehicle at the intersection of Chappell Street. The only reason I crashed into Danny Ray’s vehicle was because the police were chasing me. If the police had not been chasing me, I would not have been speeding through the City and trying to outrun them. I never saw or heard the police running lights or sirens until after I collided with Danny Ray’s vehicle. When I slammed into Mr. Ray’s vehicle, it flipped over.

The passenger’s account was similar to the driver’s. The passenger pertinently stated:

As we were driving south on Sixth Street, we saw a police car turn around and begin chasing us. As soon as the officer turned around and started aggressively chasing us, I told [the driver] to stop. [The driver] became scared and began speeding up to get away from the police who were continuing to chase us. He began driving at speeds of 50-60 miles per hour in city streets that are no more than 30 mile per hour areas to outrun the police. [The driver] could not get away from the police, they were right on him and were traveling just as fast. The police had to drive 55-60 miles per hour to stay on our bumper. [The driver], with the police on his tail, drove all through the City down five different streets and made at least six turns trying to get away. When he drove down Sixth Street, the police chased us down Sixth Street____ When he took a U-turn by Slaton Avenue, made a right turn . . . drove onto Fifth Street, went through an intersection, and drove onto Solomon Street, the police were chasing him the entire time. At one point, he went through a red light. He did not stop at any intersections or stop lights while the police were pursuing him. The police did stop at any intersections or stop lights while they were pursuing him. I kept looking back and was afraid for my life. [The driver] continued to accelerate as we approached the Sixth Street Bridge because the police were chasing us. The police officers were right behind us as we crossed over the bridge. At one point, near the top of the bridge, there was a bang from what I think was the police car hitting the back of our car. Then a few seconds later, [the driver] crashed into Danny Ray’s vehicle at the intersection of Chappell Street. The only reason he crashed into Danny Ray’s was because he was speeding and running from the police who kept chasing us. If the police had not been chasing us, [the driver] would not have been speeding through the City and trying to outrun them. I never saw police lights or heard sirens until after we collided with Danny Ray’s vehicle. When we slammed into Mr. Ray’s vehicle, it flipped over.

Subsequent to the execution of these affidavits, the deposition of the driver was taken on September 23, 2010, and of the passenger on October 6, 2010.

The driver’s deposition testimony was equivocal; at one point he stated that most of the information in the affidavit was correct, and at other times he denied material statements therein. For instance, on examination by counsel for the City and Mathews, the driver deposed that he was traveling the speed limit and that no high-speed chase had occurred. But then, on examination by the Rays’ attorney, the driver deposed: “They was following me. Might as well say they was chasing me.”

Contrary to the statement he made in his affidavit, the driver further deposed that the lights on the police vehicle were activated seconds before he collided with Danny Ray’s vehicle. The driver stated that he did stop at intersections and at red lights, only once turning right at a red light; that the police vehicle was not “all on my back,” that the police vehicle was “probably a car and a half” in length behind him; and that only a few houses were on the route he drove.

The passenger deposed that the affidavit he executed was accurate and truthful. Yet, he deposed, contrary to a statement he had made in his affidavit, that he did not know the driver’s rate of speed; that his statement in his affidavit that the driver went through a red light referred to when the driver had made a right turn at a red light, after making a “rolling stop” and looking both ways; that the driver made rolling stops at two lights; and that the police pursuit became a “high speed chase” only “[r]ight before” the collision occurred. The passenger also gave varying accounts of the location, he contended, the police vehicle had struck the vehicle in which he rode.

In ruling on the motion for summary judgment, the trial court held:

[Gjiven the numerous admitted falsehoods contained in [the driver]’s affidavit, OCGA § 24-9-85 (b)[] applies to this situation____As with [the driver], [the passenger]’s affidavit and deposition testimony are replete with admitted and intentional falsehoods____As with [the driver], the Court will apply OCGA § 24-9-85 (b) and disregard the entirety of [the passenger] ’s statements. . . .

We need not address whether the City demonstrated that it was entitled to summary judgment on the merits of the motion because it is clear that the trial court granted the motion based, in part, on its finding that the affidavits and deposition testimony of the driver and passenger as related to the causation issue had been conflicting and false.

In order to make OCGA § 24-9-85 (b) applicable, it must appear, among other things, that the witness admits, on the trial, that he wilfully and knowingly swore falsely, or the testimony must be such as to render the purpose to falsify manifest. Under this rule ... it has several times been held, that if a witness swears at the trial to a certain state of facts in a material matter, and he has previously sworn to the contrary in the same case, and where he admits that his testimony was false, this constitutes a wilful and knowing false swearing, and requires the jury to reject his testimony entirely, unless it be corroborated by circumstances or other unimpeached evidence.

The trial court essentially applied our state’s contradictory testimony rule when it rejected the affidavits and deposition testimony in their entirety. “This is not permitted when the contradictory testimony is of a nonparty witness... .” “[S]uch contradictions go solely to the [nonparty witness] ’s credibility, and are to be assessed by the jury when weighing the [nonparty witness]’s testimony.” The trial court made findings it was not authorized to make when considering motions for summary judgment; such findings are reserved for juries in this state.

Decided November 13, 2012

Thomas P. Mitchell, for appellants.

Carothers & Mitchell, Richard A. Carothers, Michael E. Hobbs, for appellees.

Consequently, notwithstanding the inconsistencies in the affidavits and deposition testimony, the trial court should have given the Rays “the benefit of the most favorable version of such testimony as a whole which the jury would be authorized to accept.” Giving the Rays the benefit of all reasonable doubt and the construction of the evidence and all inferences and conclusions therefrom most favorably as the parties opposing the motion, the driver’s and passenger’s affidavits were sufficient to create genuine issues of material fact regarding whether Mathews acted with reckless disregard for proper law enforcement procedures in his pursuit, which may be found to constitute a proximate cause of Danny Ray’s injuries. Accordingly, the trial court erred in granting summary judgment to the City.

Judgment affirmed in part and reversed in part.

Ellington, C. J., concurs. Dillard, J., concurs in judgment only.

       The Rays contend also that the trial court erred in concluding that OCGA § 36-92-3 barred them from recovering against the City. The trial court, however, did not address the issue of whether the Rays were barred under OCGA § 36-92-3 from recovering against the City. Therefore, we do not address that contention.

        Suarez v. Halbert, 246 Ga. App. 822, 824 (1) (543 SE2d 733) (2000) (citations and punctuation omitted); Hardin v. Phillips, 249 Ga. App. 541 (547 SE2d 565) (2001) (deciding whether a litigant is entitled to immunity is a question of law).

       (Emphasis supplied.)

       See Cameron v. Lang, 274 Ga. 122, 123 (1) (549 SE2d 341) (2001) (qualified immunity protects individual public agents from personal liability for discretionary actions taken within the scope of their official authority, and done without wilfulness, malice, or corruption; under Georgia law, a public officer or employee may be personally liable only for ministerial acts negligently performed or acts performed with malice or an intent to injure).

       289 Ga. 319 (710 SE2d 763) (2011).

       Id. at 322 (1).

       Id. (emphasis supplied).

       (Emphasis supplied.)

       See Bd. of Regents &c. v. Frost, 233 Ga. App. 692, 693-694 (1) (505 SE2d 236) (1998) (trial court erred in not dismissing suit against state officer sued in his official capacity because officer was entitled to immunity under OCGA § 50-21-25); Datz v. Brinson, 208 Ga. App. 455-456 (1) (430 SE2d 823) (1993) (trial court properly dismissed suit filed by inmate against correction officers and officials in their official capacity under OCGA § 50-21-25).

        DeLoach, supra; Bd. of Regents &c., supra; Datz, supra.

       See Cameron, supra at 126-127 (3) (the doctrine of sovereign immunity, also known as governmental immunity, protects all levels of governments from legal action unless they have waived their immunity from suit; municipal corporations may be liable for a city employee’s negligence in performing their j ob to the extent the city has waived its governmental immunity through the purchase of liability insurance). The City’s vehicle which Mathews drove was covered by the City with liability insurance, and therefore, sovereign immunity was waived for purposes of the Rays’ suit against the City. See also Standard v. Hobbs, 263 Ga. App. 873, 878 (2) (589 SE2d 634) (2003).

        Whitley v. Piedmont Hosp., 284 Ga. App. 649, 653 (1) (644 SE2d 514) (2007) (citations omitted).

       See Division 1, supra.

       See Division 1, supra.

       OCGA § 24-9-85 (b) provides: “If a witness shall willfully and knowingly swear falsely, his testimony shall be disregarded entirely, unless corroborated by circumstances or other unimpeached evidence.”

       See Whitley, supra at 653-654 (1).

        All Risk Ins. Agency v. Southern Bell &c. Co., 182 Ga. App. 190, 192-193 (3) (355 SE2d 465) (1987) (citations, punctuation and emphasis omitted; emphasis supplied).

       See Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 28 (1) (343 SE2d 680) (1986) (the testimony of a party who offers himself as a witness in his own behalf at trial is to be construed most strongly against him when it is self-contradictory, vague or equivocal; where the favorable portion of a party’s self-contradictory testimony is the only evidence of his right to recover or of his defense, the opposing party is entitled to a directed verdict).

       See Whitley, supra at 654 (1).

       Id.; Thompson v. Ezor, 272 Ga. 849, 852-853 (2) (536 SE2d 749) (2000) (affirming Ezor v. Thompson, 241 Ga. App. 275, 277-278 (1) (526 SE2d 609) (1999)) (self-contradictory testimony rule, in passing upon a motion for summary judgment, applies to the testimony of party witnesses and not nonparty witnesses).

        Thompson v. Ezor, supra at 853 (2) (noting Furse v. O’Kon, 153 Ga. App. 703-704 (2) (266 SE2d 343) (1980); OCGA §§ 24-9-80, 24-9-85); Ezor v. Thompson, supra at 278 (1).

        Whitley, supra.

       Id.; OCGA § 24-9-80 (credibility of a witness is a matter to be determined by the jury under proper instructions from the court).

        Whitley, supra at 655 (1) (citation and punctuation omitted).

        Moore v. Goldome Credit Corp., 187 Ga. App. 594, 596 (370 SE2d 843) (1988).

       See Whitley, supra; Rahmaan v. DeKalb County, 300 Ga. App. 572, 574-576 (685 SE2d 472) (2009).


author: BARNES, Presiding Judge.

text:
    A12A0841.
    NANGREAVE et al. v. THE STATE.
    (734 SE2d 203)
   BARNES, Presiding Judge.

Appellants Bifford White and Debra Nangreave were convicted of burglary on April 28, 2009. White was sentenced by the trial court to a term of ten years, five to be served in incarceration and five to be served on probation. Nangreave was sentenced as a first offender to ten years with 330 to 360 days to be served in a detention center. Nangreave moved for a new trial on May 4,2009, as did White on May 12, 2009. The trial court denied the motions, and the appellants now appeal, contending that the evidence was circumstantial in nature and did not rule out every other reasonable hypothesis except that of the defendants’ guilt. For the reasons that follow, we affirm.

On appeal, we must view the evidence “in the light most favorable to the verdict and the appellant no longer enjoys the presumption of innocence; moreover, on appeal this court determines evidence sufficiency and does not weigh the evidence or determine witness credibility.” (Citation and punctuation omitted.) Williams v. State, 217 Ga. App. 636, 638 (3) (458 SE2d 671) (1995). So viewed, the evidence shows that a witness approached Nangreave when he noticed her sitting alone in the passenger seat of a white parked car. He asked her if she was having car trouble and needed help, but Nangreave declined, stating that her husband had “gone to get gas.” The witness drove away after Nangreave assured him that she did not require assistance, but he then noticed a man, later identified as White, standing in a nearby alley. The witness testified that White’s “feet [were] on the ground, but he looked as if he was coming out of the window” of a store. He asked White what he was doing, and White “ducked down” behind an air compressor. When the witness exited his truck and approached White, White emerged from behind the air compressor, picked up a bag, and ran away. The witness pursued White but was unable to catch him.

The witness saw Nangreave drive away in the white car and pull into a nearby restaurant parking lot. He then saw White exit the car and run into a nearby wooded area. The witness got back into his truck and pursued Nangreave in the white car, called 911, then “ran” White back into the woods when he saw White try to leave the area. When the police officers arrived, they entered the wooded area, found White, and recovered the bag that he had been carrying.

The officers investigated the alley where White was first seen and noticed a broken window on the side of a store and some merchandise on the outside of the store near the broken window. The officers testified that, upon entering the store, they noticed merchandise had been disturbed throughout the store. The store owner testified that the merchandise recovered from White’s bag was the same type that was missing from her store.

White testified that he often went into the alley looking for discarded items that he could fix and resell, and maintained that, on the day in question, he was in the alley searching for such items, and found the bag of merchandise discarded in the alley. White testified that he only ran from the witness because the witness drove up on him “in a truck with a dog in the back yelling and screaming” at him. Nangreave testified that the couple pulled into the alley, and White told her to wait and he would be right back. She further testified that she was nervous when the witness approached her, and she told him that her husband had gone to get gasoline. Nangreave also testified that she heard White yell for her but she could not locate him and that he never got back into the car. She further testified that she had been harassed by police because she was from the north. Nangreave testified that the witness was personally motivated to lie because he did not like the fact that White, an African-American, was dating Nangreave, who is white.

1. White contends that the circumstantial evidence was insufficient to sustain his conviction and that the evidence presented at trial did not rule out every other reasonable hypothesis except his guilt. He maintains that he could not be guilty of burglary because he was never seen entering or leaving the building.

When a criminal defendant challenges the sufficiency of the evidence supporting his or her conviction, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Citation omitted; emphasis in original.) Jackson v. Virginia, 443 U. S. 307, 318-319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979). The jury, not this Court, resolves conflicts in the testimony, weighs the evidence, and draws reasonable inferences from basic facts to ultimate facts. Id. “As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.” (Citation and punctuation omitted.) Miller v. State, 273 Ga. 831, 832 (546 SE2d 524) (2001). “To warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.” OCGA § 24-4-6.

A person commits the offense of burglary when he or she enters or remains within a building with the intent to commit a felony or theft therein. OCGA § 16-7-1 (b). To warrant a conviction on circumstantial evidence, the proven facts must exclude every other reasonable hypothesis except the guilt of the accused. OCGA § 24-4-6. The State is not required to remove every possibility of innocence of the crime charged, and it is not required to disprove bare possibilities that the crime could have been committed by someone else. Rivera v. State, 293 Ga. App. 215, 216 (666 SE2d 739) (2008). Whether a hypothesis is reasonable and whether every other hypothesis except the guilt of the accused has been excluded are generally questions for the jury to decide. Id. Because jurors are able to hear and observe the witnesses, and thus are better able to judge the reasonableness of a hypothesis raised by the evidence, this Court will not disturb their findings unless it is unsupportable as a matter of law. Moore v. State, 277 Ga. App. 474-476 (1) (627 SE2d 107) (2006).

White was found in close proximity to the window, appeared to be coming out of the window, ran from the scene, and was apprehended with a bag of merchandise confirmed to be from the store. Although circumstantial, the evidence in this case was sufficient to authorize a rational trier of fact to conclude that all reasonable hypotheses were excluded save White’s guilt. Rivera, 293 Ga. App. at 217.

White argued that another person could have entered the store and left the bag of goods in the alley. However, the jury was authorized to disbelieve this testimony and to discount White’s hypothesis. As noted before, it is for the jury, not this Court, to decide questions of reasonableness and witness credibility. Rolling v. State, 275 Ga. App. 902, 905 (1) (622 SE2d 102) (2005). Therefore, we affirm White’s conviction.

2. Nangreave was convicted of burglary as a party to the crime. She also contends that the evidence was insufficient to support her conviction.

OCGA § 16-2-20 (a) provides that “[e]very person concerned in the commission of a crime is a party thereto and may be charged with and convicted of commission of the crime.” A person is concerned in the commission of a crime if he directly commits the crime or intentionally aids or abets in the commission of the crime. OCGA § 16-2-20 (b) (1), (3). “Mere presence at the scene is not sufficient to convict one of being a party to a crime, but criminal intent may he inferred from conduct before, during, and after the commission of a crime.” (Punctuation and footnote omitted.) Buruca v. State, 278 Ga. App. 650, 652 (1) (629 SE2d 438) (2006). Further, “[wjhere a getaway driver waited for his co-defendant[ ] to return to the car, the driver was also guilty of his co-defendant[’s] crimes.” (Footnote omitted.) Jackson v. State, 274 Ga. App. 279, 281 (617 SE2d 249) (2005).

Decided November 13, 2012.

Janice W. Prince, Larry M. Johnson, for appellants.

Catherine H. Helms, District Attorney, Charles M. Stines, Assistant District Attorney, for appellee.

Here, it was reasonable for the jury to conclude that Nangreave acted as the getaway driver, waited for White while he was in the alley, covered for him when she was questioned by the witness, and drove him from the scene when he ran away from the witness after being seen near the broken window. See Head v. State, 261 Ga. App. 185, 187 (1) (582 SE2d 164) (2003) (defendant guilty as a party to the crime of burglary where she drove the perpetrator to the crime, served as the getaway driver, and sped from the scene after the crime was committed). Consequently, we affirm Nangreave’s conviction.

Judgment affirmed.

Adams and McFadden, JJ., concur.


author: Dillard, Judge.

text:
    A12A1067.
    EVERGREEN PACKAGING, INC. et al. v. PRATHER.
    (734 SE2d 209)
   Dillard, Judge.

Larry T. Prather sought workers’ compensation benefits from his employer, Evergreen Packaging, Inc., claiming that he injured his back at work. An administrative-law judge (the “ALJ”) found that Prather suffered a compensable injury, and the superior court affirmed the award. Following our grant of their application for discretionary appeal, Evergreen Packaging and servicing agent Gallagher Bassett Services (collectively, “Evergreen”) contend that Prather sustained a change in condition to an injury he suffered in 2002, for which he received income and medical benefits, and that Prather’s claim was therefore barred by the statute of limitation. Because we conclude that there was some evidence to support the ALJ’s finding (as adopted by the Board) that Prather suffered a new injury, we affirm.

The record reflects that Evergreen manufactures milk and juice cartons. Prather began employment with Evergreen’s predecessor in 1974. In February 2002, Prather was working as a warehouseman loading trucks when he injured his back operating a forklift and was not able to work for a period of time. As a result of this injury, Evergreen paid Prather temporary total disability income benefits for over five weeks and also provided him with medical treatment.

After Prather returned to work with Evergreen, he applied for and was granted a job change to the position of “plate maker” in 2005 or 2006. As a plate maker, Prather made plates for use in Evergreen’s printing presses and cleaned them after the process was completed. As Prather explained below, this job required him to “gather[ ] materials, cut it up,... measure it out, put it on [the] exposure table and burn it and wash it out.” He also handled the plates, which weighed between fifteen to twenty pounds for a set of four. The plate-making position also required that Prather place the plates in numbered bins, which required bending over all the way to the floor and reaching up over his head. According to Prather, his new position also required lifting boxes weighing between 30 and 50 pounds.

The warehouseman position, in which Prather had been previously employed, and the new plate-maker position were, according to Prather, “totally different.” The warehouseman job involved use of a “lift,” which constantly bounced, and Prather attributed his initial injury to “being stuck on an older model” with a flat spot on a tire. The material that Prather was required to lift in the course of the warehouseman job was, however, heavier than the lifting required in the plate-maker position.

According to Prather, after returning to work, his back—which bothered him from “day one”—got progressively worse. Prather also testified that although the pain got worse and worse, he was unable to identify anything “in [his] mind that [he] actually felt that [he] hurt something.” Regardless, Prather missed a week of work in 2007 due to his back condition.

During Prather’s last two years of employment, Evergreen bought a new plate table which required him to bend over farther in performing his duties. Prather testified that “with the new table . . . bending a little bit further over... made [his back] worse.” During the last few months of work, he began experiencing a new problem, which he described as “a numbing feeling like it was going to sleep down to my foot.”

On February 3, 2010, Prather sought treatment from Dr. Erick-sen, a chiropractor, complaining of back and hip pain radiating down his leg. Prather returned to Ericksen for treatment four more times that February. On February 26,2010, Prather was experiencing pain from his back, down his leg, and into his foot, accompanied by tingling and numbness. Prather testified that the pain he was experiencing was worse and a little more intense than the pain he experienced in 2002.

OnMarch 1,2010,Dr. Ericksen recommended that Prather cease working pending further evaluation. According to the doctor’s work-limitation report, “[d]ue to previous history of degenerative disc disease [Prather] should remain out of work until further evaluation can be performed.” Prather was evaluated by another chiropractor, Dr. Cook, on March 11, 2010. According to Dr. Cook’s notes, Prather had numerous back-related problems, and his “condition is an exacerbation of an old injury [and the exacerbation] occurred on 03/01/2010 due to work related activity.” Dr. Cook likewise instructed Prather not to work for a period of time.

Prather then underwent an MRI on March 15, 2010, with his MRI from 2005 being used for comparative purposes. The radiologist’s impression was that, compared to the earlier report, the new MRI showed an increase in the extent of disc extrusion and an increase in stenosis. The 2010 report also noted an annular tear, which the ALJ found was “not present previously.”

Prather continued regular treatment with Dr. Cook. In his reports, Dr. Cook repeatedly noted: “This injury was caused by work related activity.” On July 1, 2010, Prather was treated by Dr. Casazza, M.D., who diagnosed Prather with a lumbar-disc displacement and gave him an epidural injection. On July 2, 2010, Dr. Cook opined that Prather’s back condition was work-related and that Prather could not work for the foreseeable future.

Thereafter, Prather sought workers’ compensation benefits based on a claim that he injured his low back on February 26, 2010. Following a hearing, the ALJ found that Prather’s back condition was related to his position as a plate maker with Evergreen. Specifically, the ALJ found that after Evergreen purchased a new plate table, “the employee was required to bend more to perform his duties, and this activity over time aggravated his pre-existing back condition.” Accordingly, the ALJ found that Prather was entitled to temporary total disability benefits from the time Prather ceased work on March 1, 2010, on the theory that Prather suffered an aggravation of his pre-existing injury while working for Evergreen. Subsequently, Evergreen appealed to the Appellate Division of the State Board of Workers’ Compensation, which adopted the AL J’s award. Evergreen then appealed to the superior court, which affirmed the Appellate Division. Finally, Evergreen filed an application for a discretionary appeal, which this Court granted.

On appeal, Evergreen argues that the AL J’s holding is erroneous because Prather suffered a change in condition and, as a matter of law, was not entitled to a new date of accident. Rather, Evergreen contends, Prather’s claim is barred by the statute of limitation. We disagree.

In reviewing a workers’ compensation award, this Court must construe the evidence in “the light most favorable to the party prevailing before the appellate division.” Further, the findings of the State Board of Workers’ Compensation, when supported by any evidence, are “conclusive and binding, and neither the superior court nor this Court may substitute itself as a factfinding body in lieu of the State Board.” As we have previously explained, “[wjhether an employee’s inability to continue working has been caused by a new accident or a change in condition is a question of fact for the ALJ.” Nevertheless, we review de novo “erroneous applications of law to undisputed facts, as well as decisions based on erroneous theories of law.”

In Central State Hospital v. James, this Court provided guidance for determining whether a claimant’s disability is the result of a new injury or a change in condition. One situation

is where the claimant sustains an injury and is awarded compensation during his period of disability. Subsequent thereto he returns to his employment performing his normal duties or ordinary work. Then as a result of the wear and tear of ordinary life and the activity connected with performing his normal duties and not because of a specific job-related incident his condition gradually worsens to the point that he can no longer continue to perform his ordinary work. This gradual worsening or deterioration would constitute a change in his condition and not a new accident.

Evergreen contends that the foregoing describes exactly what happened in this case, and that Prather, therefore, suffered a change in condition as a matter of law. We disagree.

As this Court has previously explained, subsequent work “such as independently to aggravate the condition” may constitute a new injury in certain cases. Specifically, we have noted that where there is no actual new accident, “ordinarily the distinguishing feature that will characterize the disability as either a ‘change of condition’ or a ‘new accident’ is the intervention of new circumstances.”

Here, the evidence indisputably shows that Prather suffered a back injury which progressed over time and that there was no specifically identifiable accident which injured Prather after he suffered a compensable injury in 2002. Thus, the evidence might have allowed the ALJ to conclude that Prather’s condition gradually worsened due to normal working conditions. But the evidence presented below also indicated that Prather suffered an additional injury, as evinced by the 2010 MRI showing not only greater disc extrusion but also a new tear, that Prather performed different but still physically demanding work after returning from his prior disability; and that his condition worsened when the scope of his work changed.

Evergreen argues that it is nevertheless important to note that Prather returned to work in a lighter-duty position. Assuming without deciding that the performance of plate-making duties by Prather constituted normal or ordinary work when he returned to work with Evergreen, the ALJ placed its ruling in the context of Evergreen’s purchase of a new work table and its finding that Prather was thereafter required to “bend more to perform his duties.” Under these particular circumstances, the ALJ was not required, as a matter of law, to conclude that Prather suffered a gradual worsening or deterioration due to “the wear and tear of ordinary life and the activity connected with performing his normal duties.” Indeed, there is at least “a scintilla of evidence to support a finding” that Prather suffered a new injury because his pre-existing condition was independently aggravated by work that was not normal, and that Prather had not suffered a change in condition.

Shaw Industries v. Scott, relied on by Evergreen, is clearly distinguishable. The facts in Scott, as later summarized by our Supreme Court in a unanimous affirmance, showed that the employee, after she suffered a foot injury and was awarded compensation, “returned to work in a new position that required no strenuous activity, but she developed knee and gait problems as a result of the wear and tear of ordinary life.” Here, however, Prather returned to work in a totally different position that required substantial physical activity, the normal scope of that work changed, and there was some evidence that his condition worsened as a result of the altered working conditions. Accordingly, we conclude that this case is more akin to R.R. Donnelley v. Ogletree, in which we affirmed the ALJ’s finding that an employee suffered a new accident, noting that “[w]hen [claimant] returned to work after his initial work injury, he was no longer performing normal or ordinary duties.”

Decided November 13, 2012

Speed, Seed & Waters, Marion G. Waters TV, Stephanie A. Rockwell, for appellants.

Silver & Archibald, Benjamin J. Johnson, for appellee.

Clements & Sweet, Pamela M. Orenstein, amicus curiae.

in light of the foregoing, the judgment of the superior court upholding the award of the Appellate Division is affirmed.

Judgment affirmed.

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

        See OCGA § 34-9-104 (b) (“[A]ny party may apply under this Code section for another decision because of a change in condition ending, decreasing, increasing, or authorizing the recovery of income benefits awarded or ordered in the prior final decision, provided... that at the time of application not more than two years have elapsed since the date the last payment of income benefits . .. was actually made ....”). A case progress report indicates that Prather would have last received temporary total disability benefits in early 2004.

        Laurens County Bd. of Educ. v. Dewberry, 296 Ga. App. 204, 205-06 (674 SE2d 73) (2009).

         Id.

        Oconee Area Home Care Servs. v. Burton, 275 Ga. App. 784, 785 (621 SE2d 859) (2005) (punctuation omitted).

        Trax-Fax, Inc. v. Hobba, 277 Ga. App. 464, 464 (627 SE2d 90) (2006) (citation and punctuation omitted).

       147 Ga. App. 308 (248 SE2d 678) (1978). As we have explained, however, “the situations described in [Central State Hospital] were not meant to be exclusive; rather, they were the situations which most frequently occur in the workers’ compensation context.” R.R. Donnelley v. Ogletree, 312 Ga. App. 475, 479 (1) (718 SE2d 825) (2011) (punctuation omitted).

       OCGA § 34-9-104 (a) (1) defines “change in condition” as “a change in the wage-earning capacity, physical condition, or status of an employee or other beneficiary covered by this chapter, which change must have occurred after the date on which the wage-earning capacity, physical condition, or status of the employee or other beneficiary was last established by award or otherwise.”

        Central State Hospital, 147 Ga. App. at 309-10 (1) (c).

        Beers Constr. Co. v. Stephens, 162 Ga. App. 87, 91 (2) (290 SE2d 181) (1982); see OCGA § 34-9-1 (4) (injury includes “the aggravation of a preexisting condition by accident arising out of and in the course of employment”); R.R. Donnelley, 312 Ga.App. at 478 (1) (finding “that a specific incident is not a prerequisite to a finding of a new accident based upon an aggravation of a pre-existing injury5’). Compare St. Paul Fire & Marine Ins. Co. v. Hughes, 125 Ga.App. 328, 330 (187 SE2d 551) (1972) (holding that “even if the wear and tear of ordinary life or ordinary work to some extent aggravates a pre-existing infirmity, when that infirmity itself, stemming from the original trauma, continues to worsen, the point where the employee is no longer able to continue his work is not a new accident but is a change of physical and economic condition”).

        Certain v. United States Fidelity & Guaranty Co., 153 Ga. App. 571, 573 (266 SE2d 263) (1980). We have applied this principle when an employee was injured while working for one employer and then worked for a second employer, as well as when an employee was injured, received benefits, and then returned to work for the same employer. See R.R. Donnelley, 312 Ga. App. at 478-79 (1).

        See Carey Hilliard’s Restaurants, Inc. v. Cesaroni, 179 Ga. App. 656, 657 (347 SE2d 306) (1986) (finding that, to establish a new injury, “appellants would have had to present evidence showing that the work appellee performed on his new job was more strenuous than that performed on his old job”); accord Hampton v. Howard Baer, Inc., 172 Ga. App. 513, 514(1) (323 SE2d 701) (1984). Compare Beers Constr. Co., 162 Ga. App. at 90-91 (2) (finding that disability is not presumed the result of wear and tear of ordinary life in connection with performance of normal duties in the case of: work that independently aggravates the employee’s condition; work beyond usual, ordinary, or normal limits; or work more strenuous than or exceeding the limits of light work duty restrictions of previous work).

        Central State Hospital, 147 Ga. App. at 310 (1) (c) (emphasis supplied).

        Haralson County v. Lee, 264 Ga. App. 68, 71 (589 SE2d 872) (2003); Georgia-Pacific Corp. v. Sanders, 171 Ga. App. 799, 804 (2) (320 SE2d 850) (1984) (holding that “[bjeeause the evidence does not conclusively establish either a change in condition or a new accident, our inquiry on appeal is limited to a consideration of whether the board’s finding of a change in condition is supported by any evidence”).

       310 Ga. App. 750 (713 SE2d 917) (2011), aff’d Scott v. Shaw Industries, Inc., 291 Ga. 313 (729 SE2d 327) (2012).

       In its amicus curiae brief, the Georgia Legal Foundation argued that it was “premature” for this Court to treat our decision in Shaw Industries v. Scott as binding precedent because of our Supreme Court’s decision to grant certiorari in that case. Suffice it to say, we are never at liberty to ignore or disregard a binding precedent of this Court. See Court of Appeals Rule 33 (a) (“If an appeal is decided hy a Division, a judgment in which all three judges fully concur is a binding precedent....”). A unanimous decision by a three-judge panel of this Court remains binding precedent until such time as it is modified or reversed by this Court en banc or our Supreme Court.

        Scott, 291 Ga. at 315.

        R.R. Donnelley, 312 Ga. App. at 479 (1).


text:
    A12A1203.
    KEATON v. THE STATE.
    (734 SE2d 220)
   BARNES, Presiding Judge.

Following a jury trial, James Earl Keaton was found guilty of burglary and possession of tools for the commission of a crime and sentenced to 20 years in prison. He filed a motion for new trial, which, following a hearing, was denied. Keaton now appeals, contending that trial counsel was ineffective. Upon our review, we affirm.

We view the evidence on appeal in the light most favorable to the verdict and no longer presume the defendant is innocent. We do not weigh the evidence or decide the witnesses’ credibility[, but instead] construe the evidence and all reasonable inferences from the evidence most strongly in favor of the jury’s verdict.

(Citations omitted.) Ellis v. State, 282 Ga. App. 17, 18 (1) (637 SE2d 729) (2006).

So viewed, the evidence shows that Keaton drove Barbara Ann Howard, Keaton’s girlfriend, and Mario Derico Jackson to a residence on Cooley Street in Bainbridge where Howard had once lived. Howard testified that she told Keaton the morning of the burglary that they could get “some guns” from the house. Jackson drove the group to the residence, and Keaton stayed in the vehicle as the lookout, while Howard and Jackson went into the residence. Several witnesses working in a nearby field saw a purple vehicle drive up to the residence. One witness testified that he saw people get out of the car and walk around the house as if “looking for a way in.” The men called the homeowner and 911.

The homeowner’s sister testified that she drove to her brother’s house after receiving a call from him, and when she arrived there was a car parked in the driveway “back in the trees.” The man in the car said that he was waiting for a friend, but drove off when she told him to leave. She identified Keaton as the person she saw sitting in the car.

The police officer who first responded to the burglary in progress call testified that as he approached the house, he passed a “bluish-purplish” car, and that a young man standing in the road pointed “back toward the direction of the car that [he] had just passed.” He stopped the car, and the driver was later identified as Keaton, who was arrested and charged with the crimes at issue in this appeal. Howard and Jackson were apprehended later after an extensive police search.

In order to prevail on a claim of ineffective assistance of counsel, a criminal defendant must show that counsel’s performance was deficient and that the deficient performance so prejudiced the client that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984). The criminal defendant must overcome the strong presumption that trial counsel’s conduct falls within the broad range of reasonable and professional conduct. [As the appellate court, we] accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.

(Citations and punctuation omitted.) Robinson v. State, 277 Ga. 75, 75-76 (586 SE2d 313) (2003). We need not address both the deficient performance and prejudice prongs of the test if the defendant has made an insufficient showing on either prong. Ledford v. State, 313 Ga. App. 389, 393 (4) (721 SE2d 585) (2011).

Keaton appears to contend that trial counsel was ineffective for failing to move to suppress several statements that he made about why he was present at the burglarized residence. Keaton at various times gave investigators several different reasons for his presence at the residence, including that he was taking a “female” to the residence to pick up her clothing, that he was “just waiting on folks,” and that he had gone to the residence to steal marijuana plants. Keaton asserts that trial counsel was ineffective for failing to move for a Jackson-Denno hearing to suppress the statements because the inconsistent statements “gave the jury concern about [his] veracity.”

Decided November 13, 2012.

Billy M. Grantham, for appellant.

Joseph K. Mulholland, District Attorney, Michael L. Bankston, Assistant District Attorney, for appellee.

“When trial counsel’s failure to file a motion to suppress is the basis for a claim of ineffective assistance, the defendant must make a strong showing that the damaging evidence would have been suppressed had counsel made the motion.” (Citation and punctuation omitted.) Rivers v. State, 283 Ga. 1, 5 (3) (b) (655 SE2d 594) (2008). The evidence shows the officer who stopped Keaton testified that when he stopped Keaton, he placed him in custody and that during a five-minute span, Keaton gave him several different explanations for his presence at the victim’s home. During cross-examination he testified that he had immediately handcuffed Keaton, and that he did not read him his Miranda warning at that time. No other testimony regarding the stop was elicited during the trial.

At the hearing on the motion for new trial, trial counsel testified that he did not move to suppress any statements given to police because of trial strategy, as the statements reflected Keaton’s defense that he “was very cooperative and forthcoming with information from the day of this incident all the way through the day of the trial.” No other evidence regarding the circumstances of the stop, Keaton’s custody, or voluntariness of the statements was presented at the hearing. Keaton did not testify at the hearing on the motion for new trial.

Here, Keaton has made no attempt to show that a motion to suppress would have been successful, nor has he articulated such arguments in this Court. Since he “failed to show that a motion to suppress would have been granted had one been filed, the trial court did not err in finding that trial counsel’s representation of [Keaton] did not amount to ineffective assistance of counsel. [Cits.]” Edenfield v. State, 238 Ga. App. 362, 365 (519 SE2d 452) (1999).

Judgment affirmed.

Adams and McFadden, JJ., concur.

       Keaton states that he was placed in custody and questioned without being given. Miranda warnings; however, he makes no further argument regarding the voluntariness of his statements on this basis.


text:
    A12A1237.
    CROSSON v. THE STATE.
    (734 SE2d 234)
   BARNES, Presiding Judge.

Maureen Carole Crosson appeals from a trial court order denying her motion for discharge and acquittal for violation of her constitutional right to a speedy trial. Following our review, we affirm.

“A trial court’s decision regarding a constitutional speedy trial claim will not be reversed absent an abuse of discretion.” Oni v. State, 285 Ga. App. 342, 343 (2) (646 SE2d 312) (2007). We analyze Crosson’s claim under the mandates of Barker v. Wingo, 407 U. S. 514 (92 SC 2182, 33 LE2d 101) (1972). Barker’s four-part balancing test provides that in analyzing a speedy trial claim the court must consider:

(1) the length of the delay; (2) reasons for the delay; (3) defendant’s assertion of the right to speedy trial; and (4) the prejudice to the defendant. Standing alone, none of these factors are a necessary, or sufficient condition to a finding of deprivation of the right to a speedy trial, but rather should be considered as part of a balancing test. Thus, we must apply and weigh these factors together to determine if [Crosson’s] constitutional right to a speedy trial has been abridged. Before balancing these factors, we must determine whether the length of the delay is presumptively prejudicial, and if so, we then must weigh that factor with the other factors to determine whether the right has been abridged.

(Punctuation and footnotes omitted.) Davis v. State, 301 Ga. App. 155, 156 (687 SE2d 180) (2009).

Crosson was arrested July 3,2010, on an arrest warrant for theft by taking after being stopped for a traffic violation. She posted bond on August 5, 2010, and was indicted on September 13, 2010, and charged with theft by taking and felony theft by deception. On September 16, Crosson was taken into custody again, and on November 2, 2010, filed a demand for speedy trial under OCGA § 17-7-170. The State filed a motion to specially set the trial for the week of January 24, 2011, which Crosson objected to and demanded to be tried immediately, alleging that the motion was a strategic ploy to “keep [her] incarcerated so that the State [could] indict her on additional charges.” On December 2, 2010, Crosson withdrew her motion for speedy trial, after which the State also withdrew its motion to specially set the trial. Crosson was released on bond on December 28, 2010. She was re-indicted on January 6, 2011 for computer theft by deception, computer theft by conversion, two counts of theft by deception, and two counts of conspiracy to commit a crime.

On January 19, 2011, Crosson, pro se, filed a “Judicial Notice” that she was dismissing her attorney and representing herself “in any pending case before this court.” She also filed a motion to dismiss, motion for discovery, and “defendants plea,” in which she pled not guilty, requested a speedy trial, and requested a court reporter. On January 24, she filed a second motion to dismiss and request for speedy trial, motion to stay jury trial pending appeal, and a notice of appeal of a nonfinal order. The filings were not served on the State. Crosson’s attorney filed his intention to withdraw on January 25, 2011, which the trial court granted on the same day.

Crosson was arraigned on the re-indictment on February 3,2011, after which the trial court signed a bench warrant and she was taken into custody. After the State moved to dismiss the bench warrant, Crosson’s bond was reinstated, and she bonded out of the Dawson County jail on February 15, 2011. On April 8, 2011, Crosson filed another pro se statutory motion for speedy trial, and on August 26, 2011, she filed a motion for immediate discharge and acquittal. Crosson was incarcerated in Gwinnett County at that time. She was produced for a hearing on October 20, 2011, after which trial counsel was appointed to represent her. On October 24,2011, Crosson moved to dismiss the indictment based on the denial of her right to a speedy trial. After a hearing, the trial court denied the motion. This appeal ensued.

Crosson contends that the trial court erred in denying her motion for discharge and acquittal pursuant to the Sixth Amendment of the Constitution.

Presumptive prejudice.

In this case, where there has been no trial, the length of delay is calculated “from the date of arrest or other formal accusation to the date on which a defendant’s speedy trial motion was granted or denied.” State v. Porter, 288 Ga. 524, 526 (2) (b) (705 SE2d 636) (2011). Crosson was arrested on July 3, 2010, and her speedy trial motion was denied on November 11, 2011. “A delay approaching one year is generally deemed to be presumptively prejudicial.” State v. Pickett, 288 Ga. 674, 675 (706 SE2d 561) (2011). The State concedes that the delay in this case is presumptively prejudicial, thus triggering the Barker analysis.

Length of delay. Regarding the first Barker factor,

[i]t is important that trial courts not limit their consideration of the lengthiness of the pretrial delay to the threshold question of presumptive prejudice and remember to count it again as one of four criteria to be weighed in the balancing process at the second stage of the Barker-Doggett analysis. This is because uncommonly long delays have a tendency to compromise the reliability of trials in ways that neither party can prove or, for that matter, identify. As a result, the weight accorded the other factors in the balancing test depends, to a large degree, on the length of the delay.

(Citation omitted.) Kemp v. State, 314 Ga. App. 327, 330 (2) (a) (724 SE2d41) (2012). The 16-month delay experienced by Crosson exceeded the amount of time necessary to establish a presumption of prejudice, and, therefore, was uncommonly long and is thus weighed against the State. See Hill v. State, 315 Ga. App. 833, 836 (2) (a) (729 SE2d 1) (2012) (21-month pretrial delay was uncommonly long and should be weighed against the State).

The reason for the delay. Under this factor, courts must determine

whether the government or the criminal defendant is more to blame for the delay. Deliberate delay to hamper the defense weighs heavily against the prosecution. More neutral reasons such as negligence or overcrowded courts weigh less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant. In contrast, delay caused by the defense weighs against the defendant.

(Punctuation omitted.) Jakupovic v. State, 287 Ga. 205, 206 (1) (b) (695 SE2d 247) (2010). The trial court found that it was unable to assign an overriding reason for the delay, but noted that the State’s inability to charge Crosson correctly in the first indictment, and its failure to aggressively push for trial contributed to the delay. It also found that Crosson contributed to the delay by dismissing her appointed counsel, filing numerous pro se motions, including a motion to disqualify the trial judge, and motion to stay the trial pending her appeal. It further noted that the December 2010 withdrawal of her speedy trial motion “would have suggested to the State that [Crosson] was not insistent on moving the case quickly to trial and may have caused it to relax a bit when the better course would have been to move forward.” The State’s “inability to draft a proper indictment” was found to be a negative, but benign factor. As the trial court found, and we agree, although some of the delay could be attributed to Crosson, “more blame can be placed on the State.” We also agree with the trial court that nothing in the record supports an inference “that the State has deliberately attempted to delay the trial in order to hamper the defense, a serious abuse that would be weighted against the State.” Boseman v. State, 263 Ga. 730, 732 (1) (b) (438 SE2d 626) (1994).

Although Crosson contends that the trial court erred in considering the reason for the delay benign because the State intentionally delayed the process until it “could figure out how to charge [her],” the record does not support her contention. Consequently, we cannot say that the superior court abused its discretion in finding that the second factor, though weighed more against the State, was benign. See Perry v. Mitchell, 253 Ga. 593, 594 (322 SE2d 273) (1984).

The defendant’s assertion of the right to a speedy trial. Crosson filed her demand for speedy trial under OCGA § 17-7-170 on December 2,2010, and withdrew it on December 2, 2010. She filed two other statutory speedy trial demands pro se on January 19, 2011, and January 24,2011, while she was represented by counsel. The demands were not served upon the State. The trial court granted her attorney’s motion to withdraw as counsel on January 25, 2011, after which, on April 8,2011, Crossonfiled a third pro se statutory demandfor speedy trial. The motion apparently was not served on the State.

The relevant question regarding how to weigh this factor is whether she asserted the right “ ‘in due course.’ This requires a close examination of the procedural history of the case with particular attention to the timing, form, and vigor of the accused’s demands to be tried immediately.” (Citation omitted.) Ruffin v. State, 284 Ga. 52, 63 (2) (b) (iii) (663 SE2d 189) (2008).

The court found that Crosson’s actions contributed to the delay in that she withdrew her November 2010 request for speedy trial, then while represented by counsel, filed two requests that the State was not served with. The trial court concluded that her actions contributed to the first six months of the delay and “should not be charged heavily against the State.” The accused bears the responsibility for putting the government on notice she does not want a delay, and failure to do so weighs strongly against her. Frazier v. State, 277 Ga. App. 881, 882 (c) (627 SE2d 894) (2006). Thus, the trial court did not err in finding that the first six months of the delay would not be weighed heavily against the State.

Prejudice to the defendant. The trial court found that Crosson had not been prejudiced from the delay of the trial. Per Barker, supra, the constitutional right to a speedy trial is designed to protect three interests, “the last being the most important: (a) to prevent oppressive pretrial incarceration; (b) to minimize anxiety and concern of the accused; and (c) to limit the possibility that the defense will be impaired.” (Citations and punctuation omitted.) Williams v. State, 279 Ga. 106, 109 (1) (d) (610 SE2d 32) (2005).

Crosson argues on appeal that she faced oppressive pretrial incarceration and that the 16-month delay “failed to minimize [her] anxiety and concern.” It was stipulated at the hearing that Crosson spent a total of 104 days incarcerated in the Dawson County jail. Crosson contends that the trial court ignored the months she spent in either the Dawson County jail or the Gwinnett County jail and ignored the “constant detainer” that “remained over [her] head” even after she was out on bond which created anxiety and concern.

Pretermitting whether that time constituted “oppressive pretrial incarceration,” Crosson has failed to show that she suffered undue anxiety or concern attendant to that incarceration. Anxiety and concern of the accused are “always present to some extent, and thus absent some unusual showing are not likely to be determinative in defendant’s favor.” Boseman, 263 Ga. at 733 (1) (d). Additionally, Crosson offered no evidence as to the specific manner in which her defense was impaired, “the most important prejudice component of the speedy trial equation.” Id. at 734 (2). Here, the trial court was entitled to balance the prejudice factor in favor of the State.

In weighing all of the Barker factors, we hold that the trial court did not abuse its discretion in finding that Crosson was not denied her Sixth Amendment right to a speedy trial. See Simmons v. State, 290 Ga. App. 315, 317 (5) (659 SE2d 721) (2008).

Judgment affirmed.

Adams and McFadden, JJ., concur.

Decided November 13, 2012.

Travis A. Williams, H. Bradford Morris, Jr., for appellant.

Lee Darragh, District Attorney, Conley J. Greer, Assistant District Attorney, for appellee.

       Crosson also filed a motion to invoke the standing order in criminal cases, and a cumulative motion to suppress, motion to exclude the crime laboratory report, plea in bar and general demurrer.

       It was noted on the indictment that Crosson had refused to enter a plea at the arraignment and the trial court entered a plea of “not guilty” for her.

       The motions were not served on the State; however, the Clerk notified Crosson that the motions would he forwarded to the State.

       The transcripts of the numerous hearings in this case were not included with the record.

       The superior court’s order does not reflect that it separately weighed the pretrial delay in this case as uncommonly long. “To the extent the [superior] court overlooked this factor in the four-part balancing process, it erred.” Ruffin v. State, 284 Ga. 52, 59 (2) (b) (i) (663 SE2d 189) (2008). See Kemp, 314 Ga. App. at 330 (2) (a). “However, inasmuch as the trial court has effectively weighed this factor in appellant’s favor, it did not abuse its discretion.” Brewington v. State, 288 Ga. 520, 522-523 (3) (b) (i) (705 SE2d 660) (2011).