author: Barnes, Presiding Judge.

text:
    A12A0586.
    PARGAR, LLC v. CP SUMMIT RETAIL, LLC.
    (730 SE2d 136)
   Barnes, Presiding Judge.

This appeal arises from a declaratory judgment action brought by CP Summit Retail, LLC, a commercial landlord, against Pargar, LLC d/b/a Prudential Georgia Realty (“Prudential”), its commercial tenant. CP Summit asked the trial court to declare that Prudential had exercised its option to renew contained in the parties’ commercial lease and therefore remained liable under the lease for an additional five-year term. The parties filed competing motions for summary judgment. The trial court granted summary judgment to CP Summit and denied it to Prudential, concluding that the uncontroverted evidence showed that Prudential had exercised its option to renew the lease. Prudential now appeals from the summary judgment order. For the reasons discussed below, we reverse the trial court’s ruling and remand for entry of summary judgment in favor of Prudential.

We conduct a de novo review of both the law and the evidence on appeal from the grant or denial of a motion for summary judgment. We view the evidence in a light most favorable to the nonmovant in order to determine whether a genuine issue of material fact exists and whether the moving party was entitled to judgment as a matter of law.

(Footnote omitted.) Piedmont Center 15, LLC v. Aquent, Inc., 286 Ga. App. 673 (649 SE2d 733) (2007).

The record reflects that CP Summit owns and operates a retail and office center called Summit Point in Fayetteville, Georgia. On or about February 28, 2005, CP Summit entered into a written commercial lease agreement whereby Prudential agreed to lease office space in the shopping center for five years. Section 1.1 (L) of the lease gave Prudential the option to renew and extend the original lease term for an additional five years and stated that the “[s]aid option shall be exercised, if at all, by written notice which must be received by [CP Summit] at least one hundred eighty (180) days prior to the expiration of the then current term.” If Prudential exercised the option, Section 1.1 (L) specified that all of the terms and conditions of the original lease would remain in effect during the renewal term, except that the “Fixed Minimum Rent” for each additional year would be the amount set forth in Section 1.1 (Q) of the lease.

The parties subsequently agreed to three amendments to the original lease. The first amendment, which the parties agreed to on May 31,2005, modified, among other things, the commencement date for the lease. The second and third amendments — which the parties agreed to on March 26, 2009, and December 31, 2009, respectively — reduced the amount of rent that Prudential owed for certain periods during the original lease term, in addition to other modifications. Under the lease as amended, Prudential was required to give CP Summit written notice of its decision to exercise its renewal option on or before April 30,2010 —180 days prior to the expiration of the lease term on October 31,2010. None of the amendments modified how rent would be calculated under Section 1.1 (Q) for the renewal term if Prudential exercised its option.

On April 30, 2010, the last day available to exercise its option, Prudential sent a letter to CP Summit that read in relevant part:

This shall serve as official notification of our intent to exercise the option to extend our lease in accordance with the Third (3rd) Amendment to our agreement.
Please contact [us] at your earliest convenience so that we may discuss a rental rate consistent with today’s market, agree to terms, and execute appropriate documents. . . .

CP Summit received the letter that same day.

On May 13, 2010, the senior vice president of Prudential and the executive vice president of CP Summit met to discuss reducing the renewal term to less than five years, lowering the rent for the renewal period, and having certain repairs made to the office space. No agreement on these issues was reached at the meeting.

Later that day, CP Summit’s executive vice president sent the following e-mail to Prudential’s senior vice president:

Thank you for coming by today. It was a pleasure meeting you in person. We are glad that you have exercised the option at Summit Point. Prudential is a welcome addition to our project. Based on our conversation, we are prepared to enter into a lease amendment under the following terms [ ] . . .

The May 13 e-mail then detailed a list of proposed terms that differed from those of the original lease, including a different rent amount for the renewal term and the addition of a clause authorizing Prudential to cancel the lease in the third year of the renewal term. The e-mail concluded by stating: “Please let us know if the above meets your approval and we will draft an amendment for your review. Thank you.”

Prudential did not respond to the May 13 e-mail over the ensuing months. Instead, Prudential located another office space to rent at a new location, and on July 27, 2010, Prudential informed CP Summit by written letter of its intent to vacate the office space at the shopping center at the end of the current lease term on October 31, 2010.

On August 25, 2010, CP Summit filed this declaratory judgment action against Prudential, seeking a declaration from the trial court that Prudential had exercised its option to renew the lease for an additional five-year term through its April 30, 2010 letter, as well as attorney fees and costs. Both parties filed motions for summary judgment on the issue of whether Prudential had exercised its option and thus would remain liable under the lease for an additional five-year term. In seeking summary judgment, Prudential argued that the second sentence of the April 30 letter clearly demonstrated that its acceptance of the renewal option contained in the lease was conditioned on the parties’ agreement to new and different terms for the renewal period. Hence, Prudential argued that the letter was not an operative notice of acceptance of the option, but instead constituted a counteroffer (never accepted by CP Summit) proposing that new rental rates and other terms be reached for renewing and extending the current lease.

In contrast, CP Summit, in seeking summary judgment, focused on the first sentence of the April 30 letter and argued that it reflected that Prudential had unequivocally exercised the renewal option. CP Summit further maintained that the second sentence of the letter did not condition or qualify the exercise of the option reflected in the first sentence, but instead was simply a request to open a dialogue about the possibility of amending some of the terms of the lease that otherwise would apply to the renewal term. Additionally, CP Summit contended that Prudential was estopped from arguing that it had not exercised the renewal option as a result of its failure to respond to the May 15, 2010 e-mail from CP Summit to Prudential. Finally, CP Summit argued that the renewal option should be enforced based upon the doctrine of promissory estoppel.

The trial court agreed with CP Summit’s interpretation of the letter and concluded that it was an operative notice of acceptance of the renewal option such that Prudential was liable under the lease to rent the office space for an additional five-year term. Consequently, the trial court granted summary judgment to CP Summit and denied it to Prudential.

On appeal, it is undisputed by the parties that for Prudential to exercise its renewal option under the terms of the original lease, it had to give timely written notice of its acceptance of the option terms contained in that lease, including the rent schedule set forth in Section 1.1 (Q). It is further undisputed that the only notification by Prudential purportedly accepting or exercising the option was the April 30 letter. Hence, the issue on appeal is whether the trial court properly concluded that the April 30 letter constituted an operative notice of acceptance of the lease renewal option, binding Prudential to an additional five-year term. We conclude that the trial court’s conclusion was erroneous.

Under an option contract, “the offeror accepts consideration in exchange for his promise to keep the offer open” for a stated time. Hewatt v. Leppert, 259 Ga. 112, 113 (376 SE2d 883) (1989). See Amwest Surety Ins. Co. v. Ra-Lin & Assoc., 216 Ga. App. 526, 530 (1) (455 SE2d 106) (1995). While an option contract binds the offeror, the holder of the option retains the discretion whether to accept the offer. Jakel v. Fountainhead Dev. Corp., 243 Ga. App. 844, 846 (534 SE2d 199) (2000).

An option contract, “by its nature unilateral and executory because of the complete discretion granted to the holder of the option,” is converted into a bilateral, mutually binding contract only when the holder of the option gives notice of his election to exercise the option on the same terms stated in the option contract. Kent v. Graham Commercial Realty, 279 Ga. App. 537,543 (2) (631 SE2d 753) (2006). See Martin v. Schindley, 264 Ga. 142, 143 (442 SE2d 239) (1994); Redmond v. Sinclair Refining Co., 204 Ga. 699, 707 (7) (51 SE2d 409) (1949). To create a mutually binding contract, the option must be accepted unconditionally and strictly in accordance with its terms. See Atkinson v. Cook, 271 Ga. 57, 58 (518 SE2d 413) (1999); Piedmont Center 15, LLC, 286 Ga. App. at 676; A&D Asphalt Co. v. Carroll & Carroll of Macon, 247 Ga. App. 77, 83 (2) (b) (543 SE2d 397) (2000). “Otherwise, there has been no exercise of the option, and no valid contract has been formed.” Atkinson, 271 Ga. at 58.

Applying these principles to the case-at-hand, we conclude, as a matter of law, that the April 30 letter sent by Prudential was not an unconditional exercise of the option set forth in the original lease but instead was a counteroffer seeking agreement to a new renewal lease with different terms. The first sentence of the April 30 letter did not state that Prudential was exercising the option, but rather that it was Prudential’s “intent” to exercise it, indicating, when read in conjunction with the second sentence, that a final decision over whether to renew the lease had not yet been made. In that regard, the second sentence of the letter requested that CP Summit contact Prudential so that the parties could discuss and “agree to terms.” Thus, read in its entirety, the April 30 letter on its face qualified and conditioned any renewal of the lease by Prudential on the parties discussing and coming to agreement on new and different rental terms, and, therefore, constituted a counteroffer rather than an operative notice of acceptance of the renewal option. See Butler v. Household Mtg. Svcs., 266 Ga. App. 104, 106 (1) (596 SE2d 664) (2004) (letter stating that party “accepted the offer of settlement,” but further stating that two additional terms needed to be included in the final settlement, was not a valid and binding acceptance of the settlement offer). See also A&D Asphalt Co., 247 Ga. App. at 83 (2) (b) (“A notice of acceptance that is in any respect conditional or that reserves the party giving it a power of withdrawal is not an operative notice of acceptance.”) (footnote omitted); Lamb v. Decatur Fed. S & L Assn., 201 Ga. App. 583, 585 (1) (411 SE2d 527) (1991) (“[Acceptance of an offer must be unconditional, unequivocal, and without variance of any sort; otherwise, there can be no meeting of the minds and mutual assent necessary to contract formation. Accordingly, a subsequent communication by one party to the alleged contract that varies even one term of the original offer is a counteroffer.”) (citation omitted). Compare Pritchett v. Afzal, 293 Ga. App. 302, 303 (1) (666 SE2d 641) (2008) (evidence supported finding that option to renew lease had been exercised by tenant, where attorney for tenant sent letter to landlord stating, without qualification or limitation, that the tenant “is exercising his option to renew the existing lease as per your Lease Agreement”).

CP Summit, however, argues that deposition testimony from Prudential’s senior vice president and assistant controller regarding the drafting of the April 30 letter, as well as internal e-mails within Prudential regarding that issue, indicate that Prudential intended for the April 30 letter to constitute an unconditional acceptance of the renewal option. We disagree with CP Summit’s characterization of the deposition testimony and e-mails. Prudential’s senior vice president, who had the assistant controller draft the April 30 letter for him, testified that he never intended to exercise the renewal option without first renegotiating the terms of the renewal contract. He further testified that the letter was meant to notify CP Summit that Prudential intended to exercise the renewal option if certain rental terms could be renegotiated. The assistant controller who drafted the April 30 letter likewise testified that the intent of the letter was to convey that Prudential intended to exercise the renewal option, contingent upon the parties agreeing to certain new terms.

Furthermore, Prudential’s internal e-mails, when read in context, do not reflect that Prudential intended to exercise the renewal option and accept the terms as established in the original lease contract without any conditions or qualifications. One of the e-mails, dated March 29, 2010, indicated that Prudential’s senior vice president believed that the original lease contract would be “renegotiated and renewed.” Two of the e-mails, dated April 29, 2010 and April 30, 2010, merely pertain to whether Prudential would agree to a five-year renewal term or to some lesser period of time. The final e-mail cited by CP Summit, which also was dated April 30, 2010, simply indicated that Prudential’s senior vice president wanted to ensure that the letter got “done” and was sent out to CP Summit on that date. Accordingly, the e-mails relied upon by CP Summit did not show that the April 30 letter was intended by Prudential to be an unconditional exercise of the renewal option.

In any event, the deposition testimony and internal e-mails were not material to determining whether the April 30 letter constituted an operative notice of acceptance of the renewal option. Georgia courts have adopted an objective theory of intent for determining whether there has been acceptance of the terms of a proposed contract; we look for the intent of the parties as objectively manifested in what they have communicated to one another rather than their unexpressed subjective intent. See Cox Broadcasting Corp. v. Nat. Collegiate Athletic Assn., 250 Ga. 391, 395 (297 SE2d 733) (1982); Greenwald v. Kersh, 275 Ga. App. 724, 727 (621 SE2d 465) (2005); Moore v. Farmers Bank of Union Point, 184 Ga. App. 86, 88 (360 SE2d 640) (1987). Hence, the deposition testimony and internal e-mails, which pertained to Prudential’s unexpressed subjective intent behind the drafting of the April 30 letter, were immaterial under the circumstances here.

Additionally, CP Summit maintains that the April 30 letter must be construed in light of the May 13 e-mail sent by CP Summit to Prudential that stated in part, “We are glad that you have exercised the option at Summit Point.” According to CP Summit, Prudential, by failing to respond to this assertion in the May 13 e-mail, was estopped from arguing that it had not exercised its option or that a renewal contract had not been formed by the parties. We are unpersuaded.

“Acquiescence or silence, when the circumstances require an answer, a denial, or other conduct, may amount to an admission.” OCGA § 24-3-36. See St. Mary’s Hosp. of Athens v. Cohen, 216 Ga. App. 761, 762-763 (1) (456 SE2d 79) (1995). And, “[i]n the ordinary course of business, when good faith requires an answer, it is the duty of the party receiving a letter from another to answer within a reasonable time. Otherwise he is presumed to admit the propriety of the acts mentioned in the letter of his correspondent and to adopt them.” OCGA § 24-4-23. See Jerkins v. Jerkins, 300 Ga. App. 703, 706-707 (2) (686 SE2d 324) (2009). Nevertheless, the particular circumstances of the case must be such as “to create a real or apparent duty to speak”; otherwise, mere silence will not work an estoppel. Peach Consolidated Properties v. Carter, 278 Ga. App. 273, 275-276 (1) (628 SE2d 680) (2006).

We conclude that the rule of estoppel by silence is not applicable in the present case. As an initial matter, the uncontroverted evidence shows that Prudential notified CP Summit by letter on July 27, 2010 of its intent to vacate the office space at the shopping center at the end of the current lease term on October 31, 2010. In light of the July 27 letter, which was sent to CP Summit several months before the original lease term expired, Prudential arguably was not merely silent in the face of the May 13 e-mail. Nonetheless, even if Prudential never responded to the May 13 e-mail, the e-mail itself clearly contained an offer of new and different terms for the renewal of the lease, and it indicated that Prudential should respond if it accepted those proposed terms, after which CP Summit would draft an amended lease for Prudential to review. Under these circumstances, where the e-mail on its face contained a new counteroffer and thus reflected that the parties had not reached mutual agreement on the terms for renewing the lease, Prudential’s mere silence in response to the e-mail cannot be construed as an admission that the lease had in fact been renewed. See Cross v. Tokio Marine & Fire Ins. Co., 254 Ga. App. 739, 743 (2) (563 SE2d 437) (2002).

Lastly, CP Summit maintains that the renewal option should be enforced based on the doctrine of promissory estoppel. But a necessary element of promissory estoppel is reasonable reliance. See Tampa Bay Financial v. Nordeen, 272 Ga. App. 529, 532-533 (2) (612 SE2d 856) (2005). Here, CP Summit could not have reasonably relied on the April 30 letter as constituting the exercise of the renewal option contained in the lease because, as previously discussed, the letter on its face qualified and conditioned any exercise of the option on the parties agreeing to new and different rental terms.

Decided July 6, 2012

Weissman, Nowack, Curry & Wilco, Ashoo N. Sharma, for appellant.

Kitchens, Kelley & Gaynes, Mitchell S. Rosen, for appellee.

For these combined reasons, we conclude that the uncontro-verted evidence shows that Prudential did not exercise its option to renew the lease under the terms and conditions set forth in the original lease between the parties. Prudential instead made a counteroffer, and the parties ultimately were unable to reach agreement on renegotiated terms. Accordingly, the trial court’s order granting summary judgment to CP Summit and denying it to Prudential is reversed, and the case is remanded with direction that summary judgment be entered in favor of Prudential.

Judgment reversed and case remanded with direction.

Adams and McFadden, JJ., concur.

       While the second sentence of the April 30 letter did not expressly use words such as “on condition that,” “if,” or “provided that,” Georgia law does not require specific technical terms to create a contractual condition. See, e.g., Rustin v. Butler, 195 Ga. 389, 391 (24 SE2d 318) (1943); Munford v. Citizens & Southern Nat. Bank, 151 Ga. App. 112, 113-114 (258 SE2d 766) (1979). It is sufficient that the letter, when read as a whole, qualified any exercise of the option on an agreement to different rental terms. See Butler v. Household Mtg. Svcs., 266 Ga. App. 104, 106 (1) (596 SE2d 664) (2004).


source: Caselaw Access Project

author: BARNES, Presiding Judge.

license: Public Domain

text:
    A12A0676.
    SECHLER v. THE STATE.
    (730 SE2d 142)
   BARNES, Presiding Judge.

Errett Christopher Sechler III appeals from the trial court’s order denying his motion for discharge and acquittal for an alleged violation of his constitutional right to a speedy trial. Because the trial court did not abuse its discretion in weighing the relevant factors for determining whether there was a constitutional speedy trial violation, we affirm.

In January 2008, Sechler was arrested and charged with driving under the influence of alcohol (“DUI”) in the City of Madison, Georgia. The case was docketed in the Municipal Court of Madison, where Sechler pled guilty in May 2008. Subsequent to the guilty plea, Sechler filed a petition for a writ of habeas corpus in the Superior Court of Morgan County in October 2008, contending that his guilty plea should be set aside because he was not advised of his constitutional rights under Boykin v. Alabama, 395 U. S. 238 (89 SC 1709, 23 LE2d 274) (1969). In July 2009, the superior court granted the requested habeas corpus relief and set aside the guilty plea.

The case was re-docketed in the Municipal Court of Madison, and Sechler filed a demand for jury trial and motion to transfer the case to the Superior Court of Morgan County in January 2010. After the case was bound over to superior court in April 2010, defense counsel filed a notice of leave of absence in May 2010 for several days in June, July, and October 2010.

In September 2010, the district attorney’s office filed an accusation in the superior court charging Sechler with DUI. Sechler filed a written waiver of arraignment and entered a plea of not guilty in October 2010, and the case was placed on the next available trial calendar set for January 2011. However, Sechler had an outstanding motion to suppress that he wanted heard prior to trial, which initially was set for a hearing in December 2010 but was re-set to April 2011 because both the State and defense counsel had scheduling conflicts. The superior court heard the motion to suppress in April 2011 on the rescheduled date and denied the motion in a written order entered that same month.

A few days after the superior court denied the motion to suppress, defense counsel filed a second notice of leave of absence for several days in May, June, and July 2011. The case originally was placed on the June 2011 trial calendar, but it was not tried that week because defense counsel had a conflict and asked for a continuance. The case then was placed on the next trial calendar set for August 2011.

During the pendency of the case, Sechler never filed a statutory demand for speedy trial. Then, in August 2011, Sechler for the first time filed his motion for discharge and acquittal on the ground that his right to a speedy trial under the United States and Georgia Constitutions had been violated. Later that month, the superior court heard evidence and orally denied the motion for discharge and acquittal. In October 2011, the superior court issued a written order setting forth findings of fact and conclusions of law supporting its decision. This appeal followed.

A speedy trial is guaranteed to an accused by the Sixth Amendment to the United States Constitution as well as by the Georgia Constitution. See U. S. Const., Amend. VI; Ga. Const., Art. I, Sec. I, Par. XI (a). The template for deciding constitutional speedy trial claims is well established and involves application of the analysis set out in Barker v. Wingo, 407 U. S. 514, 522-523 (II) (92 SC 2182, 33 LE2d 101) (1972), and Doggett v. United States, 505 U. S. 647, 651 (112 SC 2686, 120 LE2d 520) (1992). See State v. Porter, 288 Ga. 524, 525-526 (2) (a) (705 SE2d 636) (2011); Ruffin v. State, 284 Ga. 52, 55 (2) (663 SE2d 189) (2008).

The Barker-Doggett analysis has two steps. See State v. Stallworth, 293 Ga. App. 368 (2) (667 SE2d 147) (2008). In the first step, the trial court engages in a threshold inquiry and decides whether the pretrial delay has been sufficiently long to be considered “presumptively prejudicial.” Doggett, 505 U. S. at 651-652 (II); Ruffin, 284 Ga. at 55 (2). If the pretrial delay is considered presumptively prejudicial, the trial court then moves to the second step of the analysis and balances four factors:

(1) whether delay before trial was uncommonly long, (2) whether the government or the criminal defendant is more to blame for that delay, (3) whether, in due course, the defendant asserted his right to a speedy trial, and (4) whether he suffered prejudice as the delay’s result.

Porter, 288 Ga. at 525-526 (2) (a), quoting Doggett, 505 U. S. at 651 (II). Balancing of the four factors is “context-sensitive” and “necessarily compels [trial courts] to approach speedy trial cases on an ad hoc basis.” (Citation and punctuation omitted.) Ruffin, 284 Ga. at 55 (2), 56 (2) (b). “The trial court’s weighing of each factor and its balancing of all four factors — its ultimate judgment — are reviewed on appeal only for abuse of discretion.” Porter, 288 Ga. at 526 (2) (a). Mindful of these principles, we turn to the procedural history and the superior court’s order in the instant case.

1. Presumptive Prejudice. “For serious crimes that do not involve unusual complexities, one year generally marks the point at which expected deliberateness in the prosecution of a criminal matter turns into presumptively prejudicial delay.” (Citation and punctuation omitted.) Ward v. State, 311 Ga. App. 425, 428 (1) (715 SE2d 818) (2011). See Ruffin, 284 Ga. at 55 (2) (a). “Where no trial has occurred, the length of delay should be calculated from the date of arrest or formal accusation to the date on which the motion to dismiss on speedy trial grounds was decided.” Phan v. State, 290 Ga. 588, 593 (1) (a) (723 SE2d 876) (2012).

The superior court found that the pretrial delay experienced by Sechler was presumptively prejudicial. Sechler was arrested on January 30, 2008, and the superior court’s order denying his constitutional speedy trial claim was entered on October 12,2011, for a total pretrial delay of approximately 44 months. The State does not dispute that the approximately 44-month delay crossed the threshold of presumptive prejudice, triggering analysis of the four Barker Doggett factors. See State v. Bazemore, 249 Ga. App. 584, 585 (1) (a) (549 SE2d 426) (2001) (more than 21-month delay in DUI case was presumptively prejudicial); State v. Yates, 223 Ga. App. 403, 404 (1) (477 SE2d 670) (1996) (more than 27-month delay in DUI case was presumptively prejudicial). The superior court, therefore, acted within its discretion in finding presumptive prejudice.

2. The Barker-Doggett Factors.

(a) Whether the Pretrial Delay Was Uncommonly Long. The first Barker-Doggett factor, whether the pretrial delay was uncommonly long, requires consideration of “the extent to which the delay stretches beyond the bare minimum needed to trigger judicial examination of the claim.” (Citation and punctuation omitted.) Ward, 311 Ga. App. at 428 (2).

It 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 SE2d 41) (2012). See Ruffin, 284 Ga. at 56-57 (2) (b) (i).

The superior court’s order does not reflect that it separately considered whether the pretrial delay in this case was uncommonly long. “To the extent the [superior] court overlooked this factor in the four-part balancing process, it erred.” Ruffin, 284 Ga. at 59 (2) (b) (i). See Kemp, 314 Ga. App. at 330 (2) (a); Teasley v. State, 307 Ga. App. 153,158 (2) (a) (704 SE2d 248) (2010). The pretrial delay experienced by Sechler far exceeded the amount of time necessary to establish a presumption of prejudice, and, therefore, was uncommonly long and must be 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).

(b) Whether the Government or the Criminal Defendant is More to Blame for the Pretrial Delay. The second Barker-Doggett factor requires consideration of “both the reason for the delay and whether this is attributable to the defendant or the [S]tate.” (Citation and punctuation omitted.) Hayes v. State, 298 Ga. App. 338, 341 (2) (b) (680 SE2d 182) (2009). In analyzing the reasons for the pretrial delay,

we are required to assign various degrees of weight to the different reasons provided by the prosecution and the defense respectively. For instance, 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 [.]

(Citations and punctuation omitted.) Kemp, 314 Ga. App. at 330-331 (2) (b). At the same time, some pretrial delay is “inherent in the adversarial process itself,” such as the time that normally must be expended by the government to track down witnesses and gather evidence, and the time that must be afforded trial and appellate courts “to decide motions and appeals in a just and thoughtful manner.” (Footnotes omitted.) Ruffin, 284 Ga. at 59-60 (2) (b) (ii). Pretrial delays of this nature, if appropriately limited in duration, “militate neither for nor against a finding of a speedy trial violation; they are truly neutral in the Barker-Doggett balancing process.” Id. at 60 (2) (b) (ii). Finally, there are occasions where the record is simply silent as to the reason for the delay, and in that context, “we must treat the delay as caused by the negligence of the State in bringing the case to trial.” (Citation and punctuation omitted.) Kemp, 314 Ga. App. at 331 (2) (b).

In applying these principles, the superior court weighed the second factor in favor of the State. The court found that the pretrial delay was caused by a variety of factors not attributable to the State, including the unusual procedural history of the case, which involved municipal court proceedings and the grant of habeas relief, “as well as necessary leaves filed by counsel, motions filed by counsel which had to be heard prior to trial[,] and continuances.”

The superior court did not abuse its discretion. As the superior court found, this case is an unusual one procedurally in that it involved the entry of a guilty plea in municipal court, the petition and then grant of habeas relief setting aside that guilty plea, and a transfer of the case from municipal court to superior court at Sechler’s request. Additional pretrial delay was caused by Sechler’s motion to suppress, his notices of leave of absence, and his request for a continuance. In light of these combined circumstances, we conclude that there was evidence to support the superior court’s finding that the pretrial delay was caused by the unusual procedural history of the case and by Sechler’s own actions, rather than any negligence or deliberate delay caused by the State. Consequently, we cannot say that the superior court abused its discretion in weighing the second factor in favor of the State and against Sechler. See Goddard v. State, 315 Ga. App. 868, 872 (2) (b) (729 SE2d 397) (2012) (defendant’s request for continuance could be weighed against him under second Barker-Doggett factor); State v. Takyi, 314 Ga. App. 444, 446 (2) (b) (724 SE2d 459) (2012) (trial court should have taken into account defendant’s demand for jury trial and request for transfer to state court in deciding who was responsible for the pretrial delay); Rackoff v. State, 275 Ga. App. 737, 738 (1) ft) (621 SE2d 841) (2005) (defendant’s filing of pretrial motions attributable to defendant rather than the State); Oliver v. State, 262 Ga. App. 637, 640 (4) (b) (586 SE2d 333) (2003) (delay partially attributable to defendant who filed several of leaves of absence, request for continuance, and pretrial motions that had to be ruled on before trial could commence). See generally Rafi v. State, 289 Ga. 716, 718 (2) (715 SE2d 113) (2011) (weighing second Barker-Doggett factor against defendant); Weis v. State, 287 Ga. 46, 53-54 (1) (b) (694 SE2d 350) (2010) (same).

(c) Assertion of the Right. The third Barker-Doggett factor requires consideration of whether the defendant timely asserted his constitutional right to a speedy trial. See Howard v. State, 307 Ga. App. 822, 827 (2) (c) (706 SE2d 163) (2011).

[Because] the defendant may benefit by delaying a trial, the defendant bears the responsibility for asserting his right to a speedy trial. An extended delay in asserting this right should be weighed heavily against the defendant. Indeed, the failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial. This factor weighs especially strongly against a defendant where he has been represented by counsel since soon after his arrest but does not assert his right to a speedy trial until just before trial.

(Citations and punctuation omitted.) Kemp, 314 Ga. App. at 332 (2) (c).

Sechler has been represented by counsel since soon after his arrest. He was represented by counsel when he entered his guilty plea, and he has been represented by his current counsel since he sought habeas relief in the municipal court. But Sechler failed to assert his right to a speedy trial until August 2011, over three years after his arrest and over two years after he obtained habeas relief. The superior court found that the long delay should be weighed strongly against Sechler, and we conclude that the court acted within its discretion in its assessment of the third Barker-Doggett factor. See Kemp, 314 Ga. App. at 332-333 (2) (c) (approximately 32-month delay in asserting speedy trial right weighed heavily against defendant); Green v. State, 295 Ga. App. 468, 470 (4) (672 SE2d 414) (2008) (nearly three-year delay in asserting speedy trial right weighed heavily against defendant); Beasley v. State, 260 Ga. App. 74, 76 (c) (579 SE2d 19) (2003) (21-month delay in asserting speedy trial right weighed heavily against defendant).

(d) Prejudice to the Defendant. The fourth Barker-Doggett factor requires consideration of “three interests which the speedy trial right is designed to protect: preventing oppressive pretrial incarceration, minimizing anxiety and concern of the defendant, and, most importantly, limiting the possibility that the defense will be impaired.” (Punctuation and footnote omitted.) Weems v. State, 310 Ga. App. 590, 594 (2) (d) (714 SE2d 119) (2011). The superior court found that Sechler had failed to present any persuasive evidence regarding any of these three interests and thus weighed the fourth Barker-Doggett factor in favor of the State.

Sechler raises no claim of oppressive pretrial incarceration. “As to the remaining interests, to establish prejudice, the defendant must show actual anxiety and concern and specific evidence of how the delay impaired his ability to defend himself.” (Citations and punctuation omitted; emphasis in original.) Carder v. State, 312 Ga. App. 61, 66 (2) (d) (717 SE2d 661) (2011).

Sechler testified at the hearing on his motion that he was retired and that he had elected not to seek employment because the pendency of the case meant that he could be called away from a job to appear at court. He further testified that as a result of the case, he has had trouble sleeping, has lost his appetite, and is “just generally very upset.” But “[a]nxiety 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.” (Citation and punctuation omitted.) Mullinax v. State, 273 Ga. 756, 759 (2) (545 SE2d 891) (2001). And there is no evidence demonstrating that Sechler’s alleged loss of job opportunities and his anxiety were unusual for someone in his circumstance. Moreover, Sechler conceded on cross-examination that he had personally benefitted from the pretrial delay, given that a conviction on the case would constitute a second DUI conviction in five years and would have adverse effects on his driver’s license status. See OCGA§ 40-5-63 (a) (2). Consequently, the superior court was authorized to find that Sechler was not prejudiced as a result of undue anxiety or concern. See Ward, 311 Ga. App. at 430 (5) (defendant’s testimony that pretrial delay caused some sleep problems, anger, and emotional strain did not demonstrate unusual anxiety and concern); Weems, 310 Ga. App. at 595 (2) (d) (no evidence that defendant’s alleged employment struggle caused by pretrial delay was unusual for someone in his situation).

“In any event, the possibility of harm to the accused’s defense is the most serious of the elements to be considered regarding potential prejudice to the defendant.” (Citation and punctuation omitted.) Weis, 287 Ga. at 55 (1) (d). Sechler makes the general assertion that “[witnesses may not be available” and their “recollection will not be as sharp” as a result of the pretrial delay. Yet, to prove prejudice resulting from the unavailability of witnesses, a defendant must point to specific witnesses who would have supplied material evidence for the defense but are no longer available due to the pretrial delay. See Lynch v. State, 300 Ga. App. 723, 725 (1) (d) (686 SE2d 268) (2009). Because Sechler failed to make such a showing, the superior court was authorized to find that his defense was not harmed.

Sechler nevertheless contends that because of the length of time that has passed, prejudice should be presumed for purposes of the fourth Barker-Doggett factor. It is true that “the greater the delay between charging and trial, the greater the presumed impairment of witness recollections and other evidence needed for a fair and reliable trial.” (Citation and punctuation omitted.) Phan, 290 Ga. at 596 (1) (d). Nevertheless, although a presumption of prejudice arose as a result of the pretrial delay, the superior court acted within its discretion in weighing the fourth factor in favor of the State. Because Sechler did not suffer any substantial impairment to his mental or physical condition or to his defense strategy, “any prejudice that might be presumed by virtue only of the passage of time ... carried] very little weight in the Barker[-Doggett\ analysis.” Id. See Hill, 315 Ga. App. at 837 (2) (b); Kemp, 314 Ga. App. at 333 (2) (d). Compare State v. Brown, 315 Ga. App. 544, 552 (2) (d) (726 SE2d 500) (2012) (in case where nearly nine years elapsed between defendant’s arrest and the ruling on his speedy trial claim, fourth factor weighed in favor of defendant, despite lack of showing of actual impairment to his defense, because prejudice could be presumed from the “extraordinary length of the delay”).

Decided July 6, 2012

Sean A. Black, for appellant.

(e) Balancing the Barker-Doggett Factors. In sum, the superior court erred in failing to analyze separately whether the pretrial delay was uncommonly long, and it should have weighed that factor against the State. However, the superior court acted within its discretion in finding that the reasons for the delay weighed in favor of the State, that Sechler’s long delay in asserting his speedy trial right weighed heavily against him, and that Sechler had failed to show any prejudice resulting from the delay and in weighing this factor against him. Under these circumstances, we cannot say that the trial court abused its discretion in rejecting Sechler’s constitutional speedy trial claim and denying his motion for discharge and acquittal. See Ruffin, 284 Ga. at 65-66 (3) (concluding that trial court acted within its discretion in denying defendant’s speedy trial claim, despite some errors in the trial court’s legal analysis). Compare State v. Pickett, 288 Ga. 674, 679 (2) (d) (706 SE2d 561) (2011) (“If the trial court significantly misapplies the law or clearly errs in a material factual finding, the trial court’s exercise of discretion can be affirmed only if the appellate court can conclude that, had the trial court used the correct facts and legal analysis, it would have had no discretion to reach a different judgment.”) (emphasis supplied).

Judgment affirmed.

Adams and McFadden, JJ., concur.

Fredric D. Bright, District Attorney, Alison T. Burleson, Assistant District Attorney, for appellee.

       A defendant may directly appeal the pretrial denial of a constitutional speedy trial claim. See Johnson v. State, 313 Ga. App. 895, 897, n. 7 (723 SE2d 100) (2012).

       The superior court judge who ruled on the motion for discharge and acquittal was not the same superior court judge who granted Sechler’s request for habeas relief.

       Additionally, “the trial court’s order must provide sufficient findings of fact and conclusions of law to permit this Court to determine if the trial court properly exercised its discretion under the Barker[-Doggett] analysis.” Porter, 288 Ga. at 526 (2) (a). The superior court’s order met this requirement. Sechler, however, suggests that the order is defective and entitled to less deference because it was drafted and submitted to the superior court by the State. We are unpersuaded. Because the findings of fact and conclusions of law contained in the proposed order submitted by the State ultimately were adopted by the superior court as its own, those findings and conclusions are entitled to the same level of deference on appeal as if drafted by the court in the first instance. See Jefferson v. Zant, 263 Ga. 316, 316-317 (1) (431 SE2d 110) (1993). Nevertheless, while we recognize that trial court judges often face a daunting caseload, the better practice is for them not to adopt verbatim the proposed findings submitted by a prevailing party, given “the potential for overreaching and exaggeration on the part of attorneys preparing findings of fact when they have already been informed that the judge has decided in their favor.” (Citations omitted.) Id. at 317 (1).

       Arguably, the delay in this case should be measured from the date when the superior court granted habeas relief and set aside Sechler’s guilty plea. Cf. Jakupovic v. State, 287 Ga. 205, 206 (1) (a) (695 SE2d 247) (2010) (where the trial court grants a defendant’s motion for new trial without inordinate delay, the delay for constitutional speedy trial purposes is measured from the date that the trial court grants the new trial). But, we need not resolve this issue of calculation, given that the pretrial delay, even if measured from when the superior court granted Sechler habeas relief in July 2009, exceeded one year and thus crossed the threshold of presumptive prejudice. See Ruffin, 284 Ga. at 55 (2) (a); Ward, 311 Ga. App. at 428 (1).


author: Dillard, Judge.

text:
    A12A0296.
    McMULLEN v. THE STATE.
    (730 SE2d 151)
   Dillard, Judge.

Following a jury trial, Tammi Lynn McMullen was convicted on two counts of homicide by vehicle in the first degree stemming from a motor-vehicle accident in which it was determined that McMullen was driving under the influence of a combination of drugs to the extent that it was less safe for her to do so. Among her ten enumerations of error, McMullen challenges the sufficiency of the evidence to support her conviction, argues that the trial court erred in admitting similar-transaction evidence, and further asserts that the trial court erred for various reasons in denying her motion to suppress blood evidence and in admitting testimony regarding the analysis of that evidence. Although we find that the evidence was sufficient to support her convictions, we are constrained to hold that the admission of similar-transaction evidence was erroneous. We therefore reverse McMullen’s convictions. We note, however, that because the evidence of McMullen’s guilt was otherwise sufficient, the State is authorized to retry her without violating the constitutional bar against double jeopardy.

Viewed in the light most favorable to the jury’s verdict, the evidence presented at trial shows that just before 11:11 a.m. on July 21, 2009, McMullen was driving northbound in the left-hand lane on a roadway which consisted of two northbound lanes, two southbound lanes, and a center-turn lane. Also in the left-hand northbound lane was a stationary truck which had been pulling a two-axle trailer loaded with pine straw. Sometime prior to McMullen’s arrival, the trailer became unhitched from the truck, and the victims — the truck’s driver and passenger — were attempting to reattach it. Although the flashing lights on the truck were activated, they were not visible from a distance due to the trailer and its contents. McMullen failed to see the truck in front of her and collided with the rear of the trailer. When she did so, the victims, who had been between the truck and the trailer at the time of the collision, were fatally injured.

A police officer who was in a nearby retail establishment heard the accident and went directly to the scene. He first saw McMullen, who was “shook up” but declined emergency-medical services. Upon discovering the victims and the severity of their injuries, however, the officer immediately called for emergency-response personnel.

The Georgia State Patrol responded to and assumed control of the accident investigation. The first trooper to arrive testified that he spoke to McMullen briefly and inquired into the cause of the accident. McMullen reported to him that she had looked down to set her cruise control and when she looked back up it was too late to avoid striking the trailer. She wanted to seek medical treatment for what was later determined to be a broken collar bone, however, and the trooper offered her an ambulance, which she declined. McMullen instead indicated that she was going to have her husband take her to the hospital, and the trooper allowed her to leave the scene without delay. As McMullen departed in her husband’s vehicle, the police officer who had heard the accident and initially responded was instructed by his supervisor to follow the McMullens to the hospital.

The trooper testified that McMullen was somewhat slow to respond to his questions, which he considered normal for a person involved in a serious accident, but he otherwise noticed no external signs of impairment. He was nonetheless “curious” as to why McMul-len failed to see the stationary truck and trailer which, given the circumstances, he found “suspicious.” He therefore requested that a State Patrol sergeant meet her at the hospital to obtain additional information about the accident and to request a voluntary blood sample.

When the sergeant arrived at the hospital, McMullen was sitting in a wheelchair in the lobby of the emergency room waiting to be seen. The sergeant first inquired about the accident. McMullen stated that she could not remember much about what happened, but she did recall seeing the truck in front of her and, believing it to be moving forward, “tunfing] it out,” then being unable to avoid the collision once she realized that it was not moving. The sergeant then asked McMul-len if she would voluntarily consent to giving a blood sample, and she agreed to do so. McMullen’s consent was witnessed by the police officer who had followed her to the hospital. Her blood was then drawn at 12:40 p.m., and afterward the sergeant and the police officer left the hospital and had no additional contact with McMullen.

Following the blood draw, McMullen freely left the hospital without receiving treatment. Thereafter, a Georgia State Patrol senior trooper went to McMullen’s home at approximately 3:00 p.m. to take a formal recorded statement regarding the accident. The senior trooper left McMullen’s home without taking any further action. McMullen later returned to and was treated by the hospital staff for her injuries.

Some months later, law-enforcement officials learned the results of McMullen’s blood tests, which indicated the presence of methamphetamine, morphine, and phentermine. McMullen was subsequently arrested and charged with two counts of homicide by vehicle in the first degree for driving under the influence of drugs to the extent that it was less safe for her to do so and one count of driving while under the influence of drugs such that she was a less safe driver.

During the ensuing trial, the State presented evidence that the accident occurred on a clear day — free of rain, fog or other visual impairments — and that the immobile truck and trailer were visible from the “straightaway” road for approximately five to seven tenths of a mile prior to the point of impact. The only known eyewitness to the accident testified that she was headed southbound on the same road and observed as McMullen’s vehicle approached and then struck the trailer without appearing to brake, slow down, or swerve to avoid the accident in any way. The witness further stated that there were no other vehicles on the road that would have impeded McMullen’s view or prevented her from changing lanes prior to the collision.

The State also presented expert-witness testimony from a clinical neuropsychopharmacologist, who acknowledged that individuals respond differently to different drugs, but nonetheless discussed in general the anticipated effects on the average human body of the drugs discovered in McMullen’s blood at the identified concentration levels. He opined that, although the drugs may to some extent offset each other in that the morphine may counter the agitation and excitement caused by the methamphetamine and, to a lesser extent, the phentermine, the combined effect of those drugs would likely negatively impact McMullen’s alerting responses, heighten her level of distractibility, and “certainly increase [ ] the probability of impairment” while driving.

Finally, over McMullen’s objection, the State admitted similar-transaction evidence of a 1998 conviction, in which McMullen pleaded guilty to possession of methamphetamine with the intent to distribute.

McMullen testified in her own defense and presented evidence that the source of the morphine in her blood was Avinza, a pain killer that her doctor prescribed for injuries stemming from a prior motor-vehicle accident. She further demonstrated that she was prescribed phentermine for weight control pursuant to a diet program in which she participated. She denied, however, using methamphetamine prior to the accident and suggested that the positive blood reading resulted from her use of a Vicks inhaler the week before.

McMullen also elicited testimony from several witnesses in support of her defense — including her employer (who had worked with her on the morning of the accident), three law-enforcement officials, and another witness who saw her immediately after the accident. Each of these witnesses testified that she exhibited no visible signs of impairment. She called another individual who testified that he had also been driving northbound on the roadway when he came upon the truck and had to swerve to avoid colliding with the trailer after failing to immediately recognize that it was stationary. And finally McMullen presented an expert witness who called into question the techniques used by the drug laboratory and challenged the test results of McMullen’s blood sample.

The jury convicted McMullen on all three counts charged by the State, although the trial court merged the DUI conviction for sentencing purposes. McMullen filed a motion for new trial, which the trial court denied. This appeal follows.

1. McMullen first argues that the evidence was insufficient to sustain her convictions. In support of her position, she points to the conflicts between the results of her blood test and the testimony of several witnesses who stated that she exhibited no physical signs of impairment before or after the time of the accident.

Significantly, however, on appeal from a criminal conviction, we do not engage in a reweighing of the evidence nor do we assess the credibility of the witnesses. Rather, the resolution of conflicts or inconsistencies is a function that falls squarely within the province of the jury. Instead, we determine only whether there is some competent evidence, even if contradicted, to support each fact necessary to prove the crimes charged. As succinctly stated by the Supreme Court of the United States,

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. This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Once a defendant has been found guilty of the crime charged, the factfinder’s role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution.

Turning specifically to the facts of this case, an individual commits the offense of homicide by vehicle in the first degree by, “without malice aforethought, causing] the death of another person” when “driving while under the influence of any drug or the combined influence of any drugs to the extent that it is less safe for the person to drive.” A person cannot defend against the crime by showing that he or she is legally entitled to use the drug(s) at issue if the drug(s) has/have rendered him or her incapable of driving safely.

Here, it is undisputed that McMullen was involved in a motor-vehicle accident that resulted in the tragic deaths of two individuals. The State presented evidence that, at the time of the accident, McMullen had controlled substances — methamphetamine, morphine, and phentermine — in her blood. An expert witness testified that the combined effect of the drugs in the concentrations in which they were found would likely impede McMullen’s alerting responses, enhance her distractibility, and increase the probability of impairment. And the sole witness to the accident testified that, despite having a clear and unobstructed view of the obstacle in her lane of traffic, McMullen proceeded to collide with the truck and trailer without any sign of braking, slowing, or attempting to avoid the impact. This evidence was sufficient to allow the jury to conclude that the various drugs in McMullen’s blood resulted in her being under the combined influence of the drugs to the extent that she was a less safe driver.

2. McMullen next asserts the trial court erred in denying her motion to suppress and allowing the State to introduce, as evidence of a similar transaction or occurrence, a certified copy and testimony regarding her guilty plea, more than ten years prior to the present offense, for possession of methamphetamine with the intent to distribute. McMullen moved to exclude the evidence on the basis that the prior crime was not sufficiently similar and was too remote in time to warrant its admission.

In order to preserve a criminal defendant’s right to a fair and impartial trial, we have long embraced the “fundamental principle that the general character of an accused is inadmissible unless the accused chooses to put his character in issue.” Incident to this fundamental principle, we have held that when a defendant is being tried for the commission of a crime, “proof of a distinct, independent, and separate offense is never admissible, unless there is some logical connection between the two, from which it can be said that proof of the one tends to establish the other.” This rule recognizes that “[a]n accused is entitled to be tried for the offense charged in the indictment, independently of any other offense not connected with the transaction upon which the indictment was based,” because “evidence of an independent offense or act committed by the accused is highly and inherently prejudicial, raising, as it does, an inference that an accused who acted in a certain manner on one occasion is likely to have acted in the same or in a similar manner on another occasion and thereby putting the accused’s character in issue.”

To balance these principles, our Supreme Court has held that, before allowing evidence of an independent offense to be introduced, the trial court is to conduct a hearing in which the State must make three affirmative showings: (1) that “the [S]tate seeks to introduce evidence of the independent offense or act, not to raise an improper inference as to the accused’s character, but for some appropriate purpose which has been deemed to be an exception to the general rule of inadmissibility”; (2) that “there is sufficient evidence to establish that the accused committed the independent offense or act”; and (3) that “there is a sufficient connection or similarity between the independent offense or act and the crime charged so that proof of the former tends to prove the latter.” And depending upon the reason for which the independent crime is offered, the State may be required to “prove a high degree of similarity between relevant characteristics of the extrinsic offenses and the charged crimes, or it may only have the burden of showing a logical connection between crimes which are essentially dissimilar.”

On review of the trial court’s determination to admit similar-transaction evidence, we apply the clearly-erroneous standard to the court’s factual findings regarding whether the State satisfied the three-pronged test set forth supra, and we will not reverse its decision to admit the conforming evidence absent an abuse of discretion.

Here, McMullen’s prior conviction stemmed from an incident in 1997 in which she was the passenger in a vehicle that was stopped by a deputy sheriff conducting a license check. The State called the deputy as a witness, and he testified that the driver of the car was determined to be driving under the influence and gave him consent to search her vehicle. During the search, McMullen was seen trying to swallow an undetermined amount of methamphetamine that had been in her pants, and the deputy found an additional amount of methamphetamine in a small box in the car. The deputy testified that McMullen appeared to be under the influence of methamphetamine and became violent with him and his partner. McMullen ultimately pleaded guilty to possession of methamphetamine with intent to distribute, and the State tendered a certified copy of her conviction.

The trial court determined that the crimes were sufficiently similar so as to allow the evidence of the prior conviction for the limited purpose of showing McMullen’s course of conduct, bent of mind, and intent. We are constrained to conclude, however, that the trial court’s determination in that regard was clearly erroneous.

Other than the fact that both crimes involved methamphetamine, there are virtually no similarities between the two crimes. And although similarity is not “the only factor, nor is it necessarily the controlling factor” that governs admissibility, the ultimate issue is whether the evidence of other crimes has “relevance to the issues in the trial of the case.” Here, we can discern no relevance that a ten-plus year old conviction for possession of methamphetamine with intent to distribute would have to the determination of whether McMullen was under the influence of a combination of drugs to the extent that it rendered her a less safe driver during the accident at issue. The only arguably relevant information to be gleaned from the prior offense — and it comes from the circumstances surrounding the incident and not the conviction itself — is that McMullen may have a propensity to ingest methamphetamine, because it appears that she had done so on a prior (albeit remote) occasion. But in the absence of any similarity or logical connection between the two crimes, this is exactly the type of inadmissible character evidence that the safeguards set forth supra are designed to protect against. Nor can we say, given the conflicts in the evidence, that proof of McMullen’s impairment in this case was so overwhelming as to render the admission of the prior crime harmless. Thus, because evidence of prior crimes is “highly and inherently prejudicial,” we conclude that the trial court’s decision to allow evidence of the prior crime in this case was clearly erroneous. We therefore reverse McMullen’s convictions. As previously mentioned, however, the State is authorized to retry McMullen should it choose to do so.

3. Our holding in Division 2, supra, renders it unnecessary for us to address McMullen’s remaining enumerations of error, which we have determined to be either without merit or unlikely to recur on retrial. We nonetheless take the opportunity to address the following two enumerations, which may recur, in order to clarify the current state of our law.

(a) McMullen asserts that the trial court erred in failing to suppress the blood evidence because she was not given her implied-consent warnings prior to the blood being drawn. In support of her argument, McMullen relies on State v. Morgan, in which we held that “an officer is not permitted to circumvent the implied consent statute by merely requesting consent without giving any implied consent notice or warning.”

The fatal flaw in McMullen’s argument, however, is that in 2006, our General Assembly amended the implied-consent statute to expressly provide that “[njothing in this Code section shall be deemed to preclude the acquisition or admission of evidence of a violation of [Georgia DUI laws] if obtained by voluntary consent... .” And, as we have previously acknowledged, this amendment “eliminates the need to give the notice [when] an individual voluntarily agrees to testing.” Thus, the trial court did not err in denying McMullen’s motion to suppress for failure to give implied-consent warnings.

(b) McMullen contends that the trial court erred in admitting testimony regarding the results of her blood test from the GBI crime laboratory technician who was tendered as an expert in the area of forensic toxicology. She argues that the testimony constituted inadmissible hearsay and violated her Sixth Amendment right to confrontation because the expert did not actually conduct the tests on McMullen’s blood himself.

We agree with McMullen that the law does not generally permit the State to admit an inculpatory forensic laboratory report via the “surrogate testimony” of a scientist who neither participated in, observed, or analyzed a test on a blood sample, but whose opinion instead relies upon the affidavit of a nontestifying laboratory analyst; such testimony violates a defendant’s Sixth Amendment right to confront the witness against him or her. This, however, did not happen in the case sub judice.

McMullen’s blood sample was first subjected to an immunoassay test, which is an initial screening to confirm the presence or absence of drugs, and then it was run through two different types of instrumentation, one called a liquid chromatography-mass spectrometry and the other a gas chromatography-mass spectrometry. Once the blood sample was run through the instrumentation, the machine produced a “phonebook”-sized data report from which it was possible to determine the identity and relative concentrations of the drugs contained in the blood sample.

Although the State’s expert witness admitted that he did not physically place McMullen’s blood sample into the instrumentation and perform the tests himself, he examined and analyzed “every piece of data” that was produced, drew conclusions from that data, and then testified regarding his independent expert opinion derived from that data. The expert further testified that the data report itself contains information regarding calibrations and controls run prior to and after the testing of McMullen’s blood from which it was possible for him to confirm both that the instrument was in proper working order and that the tests were performed correctly.

Under these circumstances, the trial court did not err in allowing the testimony of the expert witness even though he did not actually perform the testing procedure himself. It is well established that “an expert may base his opinion on data collected by others” and that his or her “lack of personal knowledge does not mandate the exclusion of the opinion but, rather, presents a jury question as to the weight which should be assigned the opinion.” Moreover, because the expert personally viewed and analyzed the data which formed the basis of the expert opinion about which he testified, he was not acting as a mere “surrogate,” but rather “had a substantial personal connection to the scientific test at issue.” It follows then, that the expert witness’s testimony did not violate McMullen’s Sixth Amendment confrontation right.

For the foregoing reasons, we are constrained to reverse McMul-len’s convictions.

Judgment reversed.

Ellington, C. J., concurs. Phipps, P. J., concurs fully as to Divisions 1, 2, and 3 (a), and in judgment only as to Division 3 (b).

Decided July 9, 2012.

Milton F. Gardner, Jr., for appellant.

Fredric D. Bright, District Attorney, DeLeigh P. Shelton, Reginald L. Bellury, Assistant District Attorneys, for appellee.

        See Nance v. State, 274 Ga. 311, 311 (553 SE2d 794) (2001) (“The general rule is that the retrial of the defendant is not barred [when] reversal of the conviction results from trial error rather than evidentiary insufficiency.” (punctuation omitted)).

        See Boggs v. State, 304 Ga. App. 698, 698 (1) (697 SE2d 843) (2010); see also Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979).

       Although the police officer did as he was instructed, he was not immediately aware of who was in the vehicle that he had been instructed to follow, and the record contains no evidence as to the supervisor’s reasons behind the request. Indeed, the trooper in charge of the investigation did not know that the police officer had been told to follow McMullen, nor is there any evidence that McMullen herself was aware of it.

       When asked by the sergeant if she was taking any medication that may show up in the blood testing, McMullen responded that she was on both an anti-inflammatory medication and a thyroid medication, but she made no mention of the other drugs.

       Methamphetamine, a Schedule II drug, was present at .18 milligrams per liter, plus or minus 13 percent. See OCGA § 16-13-26 (3) (B) (including methamphetamine in the list of Schedule II drugs). Although certain amphetamines can be used for therapeutic purposes, the concentration in McMullen’s blood was above any expected therapeutic dosage.

       Morphine, also a Schedule II drug, was present at 50 micrograms per liter, plus or minus 16 percent. See OCGA § 16-13-26 (1) (A) (xii) (including morphine in the list of Schedule II drugs). The record contained conflicting evidence as to whether this concentration fell within the expected therapeutic range.

       Phentermine, a Schedule IV diet drug, was present at 66 micrograms per liter, plus or minus 13 percent. See OCGA § 16-13-28 (a) (29) (listing phentermine as a Schedule IV drug). According to the trial testimony, this was within the expected therapeutic range.

        See OCGA § 40-6-393 (a).

        See OCGA § 40-6-391 (a) (4).

       Specifically, the expert testified that methamphetamine, a stimulant, affects the neurotransmitters in the brain that allow nerves to communicate with each other; at the level found in McMullen’s blood, it would be expected to increase a person’s energy level and cause him or her to be more animated, but also result in him or her focusing on the minutiae and forgetting about the global effects of the surrounding environment, likely impeding one’s ability to drive safely. Morphine, an opiate, is a “powerful painkiller” that tends to make a person feel sedated and euphoric, but interferes with his or her ability to focus and/or concentrate; at the level contained in McMullen’s blood, it would be “probab [le]” that one’s driving ability would be impaired. Phentermine is a less powerful amphetamine-derived substance, which is also a stimulant. Alone it would likely not impair one’s ability to drive; however it can have an additive effect when combined with other drugs.

        See Boggs, 304 Ga. App. at 698 (1); see also Jackson, 443 U. S. at 319 (III) (B).

        See Boggs, 304 Ga. App. at 698 (1).

        See id.

        Jackson, 443 U. S. at 319 (III) (B) (citation omitted).

       OCGA § 40-6-393 (a) (“Any person who, without malice aforethought, causes the death of another person through the violation of. . . [OCGA §] 40-6-391 . . . commits the offense of homicide by vehicle in the first degree .. . .”).

       OCGA§ 40-6-391 (a) (4) (“A person shall not drive or he in actual physical control of any moving vehicle while... [u]nder the combined influence of any two or more [drugs] to the extent that it is less safe for the person to drive . . . .”).

        See OCGA § 40-6-391 (b) (“The fact that any person charged with violating this Code section is or has been legally entitled to use a drug shall not constitute a defense against any charge of violating this Code section; provided, however, that such person shall not be in violation of this Code section unless such person is rendered incapable of driving safely as a result of using a drug other than alcohol which such person is legally entitled to use.”).

        See OCGA§§ 16-13-26 (1) (A) (xii), (3) (B); 16-13-28 (a) (29).

       McMullen correctly points out that three separate law-enforcement officials testified that they observed no external signs that she was impaired. Of the same law-enforcement witnesses, however, the jury was also aware that the first police officer to respond to the scene (after having heard the accident from nearby) had never been trained in the area of sobriety or how to recognize the signs of impairment; the Georgia State Patrol trooper in charge of the investigation spoke to McMullen only briefly as she expressed a need for medical treatment and he otherwise sought to control and manage the fatal scene and resulting traffic, but stated he was still “curious” and "suspicious” enough about the circumstances to ensure that a blood sample was obtained; and the sergeant who met McMullen at the hospital and received her consent for the blood sample never saw her get out of the wheelchair in which she sat.

        See Wright v. State, 304 Ga. App. 651, 652-53(1) (697 SE2d 296) (2010) (holding evidence that appellant admitted to taking drugs, lab tests confirming the presence of drugs in his blood, and evidence that his vehicle crossed the centerline and caused a collision was sufficient to establish appellant’s impairment); Howell v. State, 179 Ga. App. 632, 634 (1) (347 SE2d 358) (1986) (“It is not necessary that the defendant he so under the influence as to he incapable of driving. It is necessary only that [s]he be under the influence to a degree which renders [her] less safe or incapable of driving safely.”). Compare Head v. State, 303 Ga. App. 475, 476-77 (1) (693 SE2d 845) (2010) (evidence of a drug in one’s system alone, without additional evidence as to the significance of that drug, i.e., whether the quantity indicates recent or past drug use and/or what effect the drug would have on the average person in the context of impairment, is insufficient to sustain DUI less safe conviction).

       In her appellate brief, McMullen also attributes error to the admission of a prior conviction for possession of cocaine. At no time during the trial, however, did the State introduce evidence of that prior offense.

       The State does not argue, nor did the trial court rely on, any alternative basis to admit evidence of the prior offense. See OCGA § 24-2-2 ("The general character of the parties and especially their conduct in other transactions are irrelevant matter unless the nature of the action involves such character and renders necessary or proper the investigation of such conduct.”).

        Williams v. State, 261 Ga. 640, 641 (2) (a) (409 SE2d 649) (1991); see OCGA § 24-2-2; Smith v. State, 232 Ga. App. 290, 291 (1) (501 SE2d 523) (1998).

        Williams, 261 Ga. at 641 (2) (a) (punctuation omitted); see OCGA § 24-2-2.

        Wiliams, 261 Ga. at 641 (2) (a) (punctuation omitted); see Smith, 232 Ga. App. at 291 (1).

        Wiliams, 261 Ga. at 641 (2) (a); see Smith, 232 Ga. App. at 291 (1).

        Williams, 261 Ga. at 642 (2) (b) (footnotes omitted); see Uniform Sup. Ct. R. 31.3 (B); see also Moore v. State, 290 Ga. 805, 807 (2) (725 SE2d 290) (2012).

        Brockman v. State, 263 Ga. 637, 640 (3) (436 SE2d 316) (1993) (emphasis omitted).

        See Reed v. State, 291 Ga. 10, 13 (3) (727 SE2d 112) (2012) (recognizing that the appellate courts have been inconsistent in their application of the standard of review in this context).

       Intent, course of conduct, and bent of mind have previously been held to be proper purposes for the admission of similar-transaction evidence. See Becker v. State, 280 Ga. App. 97, 98 (2) (633 SE2d 436) (2006) (“A proper purpose for the introduction of the evidence would be to establish motive, intent, plan, identity, bent of mind or course of conduct.”); Hurston v. State, 278 Ga. App. 472, 475-76 (3) (a) (629 SE2d 18) (2006). We note in passing that the new evidence code adopted by the Georgia General Assembly, effective January 1, 2013, eliminates the bent-of-mind and course-of-conduct exception to similar-transaction character evidence. H. B. 24, 2011-2012 Gen. Assem., Reg. Sess. (Ga).

        Ward v. State, 262 Ga. 293, 295 (2) (417 SE2d 130) (1992) (punctuation omitted).

        See King v. State, 230 Ga. App. 301, 302-03 (1) (496 SE2d 312) (1998) (holding that proof that a defendant possessed drugs on one occasion does not tend to prove that he was under the influence of drugs on a different, unrelated occasion).

       Indeed, the State argues in its brief that “[t]he logical connection [between the two crimes] is that proof of ¡McMullen's] condition of being under the influence of methamphetamine on the prior occasion does, in fact, show [her] propensity to ingest that illegal substance . . . .”

        See Williams, 261 Ga. at 641 (2) (a); see also Guyton v. State, 272 Ga. 529, 532 (3) (531 SE2d 94) (2000) (recognizing that the admission of evidence “to show bad character or a propensity to commit a certain type of crime” is improper); Smith, 232 Ga. App. at 291 (“The primary aim of [the rule prohibiting evidence of a party’s conduct in other transactions] is to avoid the forbidden inference of propensity. Just because a defendant has committed wrongful acts in the past is not alone legal grounds to believe he has done so on the occasion under scrutiny.”).

        Compare Strahan v. State, 273 Ga. App. 116, 121-22 (2) (614 SE2d 227) (2005) (concluding that appellant’s prior burglaries were not similar to his present crime of armed robbery and were thus erroneously admitted, but nonetheless holding the error harmless in light of the overwhelming evidence of appellant’s guilt).

        Williams, 261 Ga. at 641 (2) (b).

        See Walraven v. State, 250 Ga. 401, 407-08 (4) (b) (297 SE2d 278) (1982) (holding that the admission of appellant’s confession to incest amounted to nothing more than improper character evidence in his trial for murder); King, 230 Ga. App. at 302-03 (1) (reversing appellant’s conviction after concluding that the trial court erroneously admitted evidence of his prior conviction for sale of methamphetamine in his present trial for possession of methamphetamine in his bodily fluids); see also Usher v. State, 290 Ga. App. 710, 713 (1) (659 SE2d 920) (2008) (concluding that the erroneous admission of appellant’s prior burglary convictions warranted reversal of his present conviction for aggravated assault, burglary, and robbery).

        See Nance, 274 Ga. at 311.

        See OCGA§ 40-5-67.1 (b) (2); see also OCGA§§ 40-5-55; 40-6-392.

       289 Ga. App. 706 (658 SE2d 237) (2008).

        Id. at 708.

       OCGA§ 40-5-67.1 (d.l); see Ga. L. 2006, p. 329, § 2, eff. July 1, 2006. Although Morgan was decided after the effective date of subsection (d.l), that case does not acknowledge or address the statutory amendment. See 289 Ga. App. 706. But because the opinion also does not indicate the date on which the underlying crime occurred, and we have held that the statutory amendment did not apply retroactively, we need not assume that Morgan wrongly failed to consider the effect of the amendment. See Williams v. State, 297 Ga. App. 626, 628 (677 SE2d 773) (2009).

        Williams, 297 Ga. App. at 628; see also Reeves v. Upson Reg’l Med. Ctr., 315 Ga. App. 582, 586 (2) (726 SE2d 544) (2012) (“[W]hen we consider the meaning of a statute, we always must presume that the General Assembly means what it says and says what it means, and an unambiguous statute must be afforded its plain meaning” (citation and punctuation omitted)); In the Interest of L. J., 279 Ga. App. 237, 238 (630 SE2d 771) (2006) (“[When] the language of a statute is plain and susceptible to only one natural and reasonable construction, courts must construe the statute accordingly.”).

        See Crawford v. Washington, 541 U. S. 36, 59 (124 SC 1354, 158 LE2d 177) (2004).

        See Bullcoming v. New Mexico,__U. S._(II) (B) (131 SC 2705, 180 LE2d610) (2011); see also Disharoon v. State, 291 Ga. 45, 46 (727 SE2d 465) (2012).

       The data report itself was not tendered into evidence.

        Dunn v. State, 292 Ga. App. 667, 671 (1) (665 SE2d 377) (2008) (punctuation omitted); see Haywood v. State, 301 Ga. App. 717, 722 (3) (689 SE2d 82) (2009) (“[W]e have long held that an expert need not testify to the validity of every step that went into the formulation of his results as a foundation for their admissibility and may base his opinion on data collected by others.” (punctuation omitted)).

        Compare Bullcoming,_U. S. at_(II) (B).

        Disharoon, 291 Ga. at 48.

        See Dunn, 292 Ga. App. at 669-71 (1) (concluding that “[t]he expert’s testimony was proper ... because the supervisor came to her own independent conclusion” as to the identity of the substance contained in defendant’s blood based upon her review of the test results); Haywood, 301 Ga. App. at 721-23 (3) (permitting testimony from expert who didnot prepare and conduct testing, hut who nonetheless reviewed the results and exercised her own expert judgment as to what the blood contained); Reddick v. State, 298 Ga. App. 155, 157-58 (2) (679 SE2d 380) (2009) (same); see also Williams v. Illinois, 567 U. S._(III) (C) (132 SC 2221, 183 LE2d 89) (2012) (holding that an expert’s testimony regarding her conclusion that the defendant’s DNA profile matched that of the DNA profile taken from the vaginal swabs of the victim, the testing of which the expert had no role in, did not violate the Confrontation Clause). Compare Bullcoming,_U. S. at_(II) (B); Neal v. Augusta-Richmond County Personnel Bd., 304 Ga. App. 115, 118 (1) (695 SE2d 318) (2010) (holding inadmissible the testimony of the medical review officer who merely received the results of a lab test and included them in his report because the witness “could not testify about the accuracy of the test result, and acted as a mere conduit for the non-testifying technician’s findings” (punctuation omitted)).


text:
    A12A0549.
    MARTIN v. HERRINGTON MILL, LP.
    (730 SE2d 164)
   Dillard, Judge.

In this premises-liability action, Catherine Martin sued the owner of her apartment complex, Herrington Mill, LP, alleging that she was sexually assaulted as a result of Herrington Mill’s failure to, inter alia, keep its premises safe. Herrington Mill filed a motion for summary judgment, arguing that Martin’s claims were barred by the applicable statute of limitation. The trial court granted Herrington Mill’s motion, and Martin now appeals, contending that genuine issues of fact exist as to whether she suffered mental incapacity sufficient to toll the statute of limitation. For the reasons set forth infra, we affirm the trial court’s grant of summary judgment in favor of Herrington Mill.

Viewed in the light most favorable to Martin (i.e., the nonmoving party), the record shows that on April 14, 2007, an unknown assailant broke into Martin’s Herrington Mill apartment and sexually assaulted her. Nearly 20 years prior to this assault, Martin was diagnosed as suffering from depression and an anxiety disorder, and as recently as 2006, she sought in-patient psychiatric treatment for those problems. Afew weeks after the assault, Martin was diagnosed with post-traumatic stress disorder (“PTSD”) and began psychological counseling sessions for treatment related to the assault, as well as her other mental-health issues, with a licensed clinical social worker. For the most part, these counseling sessions took place in Martin’s home, but in October 2008, she again voluntarily sought in-patient psychiatric treatment for her depression and anxiety disorder and was therefore hospitalized for two weeks.

On December 7, 2009, Martin filed suit against Herrington Mill, alleging, inter alia, that its failure to keep the apartment-complex premises safe resulted in the unknown assailant breaking into Martin’s apartment and sexually assaulting her. And recognizing that her complaint was filed nearly eight months after the applicable two-year statute of limitation had expired, Martin also alleged that the limitation period for her claims was tolled by her mental incapacity, pursuant to OCGA § 9-3-91. A short discovery period ensued, during which Martin, her treating psychiatrist, and her social worker counselor were deposed. Thereafter, Herrington Mill filed a motion for summary judgment, arguing that Martin had failed to show that she had suffered mental incapacity sufficient to toll the statute of limitation, and thus, her claims were time-barred. The trial court agreed and granted Herrington Mill’s motion. This appeal follows.

Martin contends that the trial court erred in granting summary judgment to Herrington Mill. Specifically, she argues that genuine issues of fact exist as to whether she suffered from mental incapacity during the period between the sexual assault and the filing of her complaint sufficient to toll the statute of limitation. We disagree.

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

Under OCGA § 9-3-90 (a), “persons who are legally incompetent because of... mental illness, who are such when the cause of action accrues, shall be entitled to the same time after their disability is removed to bring an action as is prescribed for other persons.” OCGA § 9-3-91 further provides that “[i]f any person suffers a disability specified in Code Section 9-3-90 after his right of action has accrued and the disability is not voluntarily caused or undertaken by the person claiming the benefit thereof, the limitation applicable to his cause of action shall cease to operate during the continuance of the disability.”

This Court has previously held that decisions construing the foregoing statutes “make plain that the application of the law is confined to situations where it is not fair to charge a suitor with the running of the clock, because of [her] mental condition.” And while a plaintiff need not be so mentally incompetent that she requires confinement or a guardian, she must be so mentally deficient (non compos mentis or insane), so unsound in mind, or so diminished in intellectual capacity, that she is incapable of managing the “ordinary affairs of life.” Thus, the test to be applied is whether “the one claiming the disability has such unsoundness of mind ... as to incapacitate one from managing the ordinary business of life.” Importantly, this determination “may be made by the trial court as a matter of law, and the burden is on the plaintiff to prove incapacity.”

In the case sub judice, Martin testified that immediately after the sexual assault she summoned the courage to assist the police in their investigation and was able to respond to questions posed by counselors at the rape-crisis center. And in the months between the time the assault occurred and the filing of her lawsuit, Martin stated that she renewed her lease for the same apartment several times, which included completing the various HUD Section 8 forms so that she could receive rent subsidies. Martin further testified that during this time period her sister stayed with her for two weeks while Martin helped her recover from back surgery. In addition, Martin testified that she purchased a car, which required obtaining financing and making payments each month. She also testified that she maintained two mobile-phone accounts; used a computer to send e-mails, engaged in social networking, conducted online banking; and that she maintained her banking account by writing checks and making deposits. Martin acknowledged that she considered filing a premises-liability action against Herrington Mill within a month or two after the incident but decided against doing so at that time for financial reasons. And over the course of the months following the incident, Martin wrote numerous letters to the apartment complex’s property manager to discuss possibly moving to a different apartment and to point out the complex’s lack of security and other deficiencies. In fact, while Martin testified that her depression, anxiety disorder, and PTSD caused her significant difficulties, her testimony indicated that the only time during which she was completely unable to manage her own affairs was the two-week period in October 2008 when she voluntarily sought hospitalization for treatment of those mental-health issues. Thus, other than this two-week period, Martin’s own testimony demonstrates that she was able to manage the ordinary affairs of life following her tragic assault.

Nevertheless, citing Tri-Cities Hospital Authority v. Sheats, Martin argues that the testimony of the social worker — who has been providing her with psychological counseling — created a question of fact as to whether she was mentally incapacitated for at least part of the time following the assault. Specifically, Martin asserts that the summary judgment is precluded based on the social worker’s testimony that Martin’s mental-health problems rendered her unable to manage the ordinary affairs of life for about half of the time between the assault and when she filed her complaint, which was two years and nearly eight months later. We find this argument unavailing.

We have previously held that diagnoses of depression, despondency, borderline personality disorder, and even PTSD, without additional evidence that a plaintiff was unable to manage the ordinary business of life, are mental conditions that fall short of the applicable legal standard of incompetence and, thus, are insufficient to trigger the tolling provisions of OCGA § 9-3-90. And although at one point during her deposition, the social worker did state that Martin was unable to manage the ordinary affairs of life for about half of the time between the assault and when she filed her complaint, that testimony was belied by Martin’s own testimony, which demonstrated that, with the exception of two weeks in October 2008, Martin did, in fact, manage the day-to-day affairs of her life. Indeed, the social worker even testified that she was aware of many of the examples of Martin capably managing her own affairs.

Moreover, and contrary to Martin’s contention on appeal, the social worker’s testimony can hardly be characterized as unequivocal. Prior to her statement that Martin could only manage her affairs about half of the time, the social worker was asked if she believed that Martin was mentally incapable of taking care of herself at any time between April 2007 and December 2009, and she responded by stating:

No.... I believe that if she had only herself to cope with, she could take care of herself. I think it is all of these outside pressures from her family. Of course, the rape didn’t help, but I am, I’m saying the people that rely on her or that she perceives them as relying on her and they certainly find her when they need something. So my answer is I think that if she were on her own separated from the stressors that are relevant, that seem to be coming from the family, she probably could get her life back together. And she is dealing with a lot.

Later, the social worker acknowledged that at times Martin is able to overcome her difficulties and manage her affairs but that she often puts the needs of others, particularly family members, before her own. Such testimony is evidence “of one who has merely failed to take control of or simply mismanaged the ordinary affairs of life rather than of an individual lacking in the capacity to manage [her] own affairs.” Furthermore, the social worker conceded that it is difficult to quantify the amount of time that Martin could not manage her own affairs and similarly admitted that she could not answer whether Martin’s alleged incapacity would have rendered her unable to seek legal assistance with regard to the sexual assault. Thus, much of the social worker’s testimony constituted estimates or speculation, but “[a] shadowy semblance of an issue is not enough to defeat the motion for summary judgment.”

Decided July 9, 2012.

Deitch & Rogers, Gilbert H. Deitch, Andrew T. Rogers, for appellant.

Freeman, Mathis & Gary, Sun S. Choy, Jacob E. Daly, for appellee.

As we have previously noted, OCGA § 9-3-90 serves “the legitimate and laudable purpose of protecting those who are in fact legally incompetent because of mental illness or disability.” However, as we have also rightly emphasized, “OCGA § 9-3-33 and other statutes of limitation also servé the legitimate public policy goal of promoting justice and furthering the certainty of time limitations while preventing unfair surprise.” Here, there was significant evidence, including her own testimony, that Martin was capable of managing the ordinary affairs of life during the time between the assault and the filing of her complaint. And other than the two-week period during which she was hospitalized, the only evidence that Martin was mentally incapacitated was equivocal and speculative. Given that Martin did not file her complaint until nearly eight months after the statute of limitation had run, the fact that the statute was tolled for two weeks is of no consequence. Accordingly, the trial court did not err in finding that Martin failed to show mental incapacity sufficient to toll the statute, and summary judgment in favor of Herrington Mill was warranted.

Judgment affirmed.

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

        See, e.g., McCaskill v. Carillo, 263 Ga. App. 890, 890 (589 SE2d 582) (2003) (“On appeal from the grant or denial of a motion for summary judgment, we review the evidence de novo, and all reasonable conclusions and inferences drawn from the evidence are construed in the light most favorable to the nonmovant.”).

        See OCGA§ 9-3-33 (“Actions for injuries to the person shall be brought within two years after the right of action accrues . . . .”).

        Ellis v. Ingle, 306 Ga. App. 674, 675 (703 SE2d 104) (2010); see OCGA § 9-11-56 (c).

        Ellis, 306 Ga. App. at 675.

        See OCGA§ 9-3-90 (a); see also Walker v. Brannan, 243 Ga. App. 235,236 (533 SE2d 129) (2000).

       See OCGA§ 9-3-91.

        Carter v. Glenn, 243 Ga. App. 544, 548 (2) (533 SE2d 109) (2000) (punctuation omitted); see Chapman v. Burks, 183 Ga. App. 103, 105 (1) (357 SE2d 832) (1987).

        Carter, 243 Ga. App. at 548-49 (2) (punctuation omitted).

        Id. at 549 (2) (punctuation omitted).

        Id.

        See Walker, 243 Ga. App. at 237-38 (affirming grant of summary judgment based on plaintiff’s failure to toll the statute of limitation given the fact that plaintiff’s deposition showed that she was not mentally incapacitated but was able to manage her ordinary affairs of life during period following her accident); Jacobs v. Littleton, 241 Ga. App. 403, 406 (3) (b) (525 SE2d 433) (1999) (affirming summary judgment based on trial court’s finding that plaintiff’s own deposition testimony rebutted claim of mental incapacity and showed that she was able to manage day-to-day affairsAlpharetta First United Methodist Church v. Stewart, 221 Ga. App. 748, 752 (1) (472 SE2d 532) (1996) (reversing denial of summary judgment because, inter alia, plaintiff’s deposition affirmatively showed she was capable of managing the ordinary affairs of life); Curlee v. Mock Enters., Inc., 173 Ga. App. 594, 598-99 (3) (327 SE2d 736) (1985) (affirming grant of summary judgment based on plaintiff’s failure to toll the statute of limitation because record was replete with evidence that plaintiff was able to manage his own affairs following the accident).

       156 Ga. App. 28 (273 SE2d 903) (1980).

        See id. at 31 (holding that despite plaintiff’s deposition testimony indicating that he was able to manage the affairs of ordinary life, plaintiff’s somewhat contradictory affidavit that he was mentally incapacitated created a question of material fact).

        See Carter, 243 Ga. App. at 549 (2) (holding that plaintiff’s PTSD diagnosis by itself did not constitute mental incapacity sufficient to toll the statute of limitation); Stewart, 221 Ga. App. at 751-52 (1) (holding that plaintiff’s diagnosis of depression, despondency, and a borderline personality disorder was insufficient to toll statute of limitation).

        Curlee, 173 Ga. App. at 599 (3).

        Anglin v. Harris, 244 Ga. App. 140, 142 (1) (534 SE2d 874) (2000) (punctuation omitted).

        Walker, 243 Ga. App. at 238; see Anglin, 244 Ga. App. at 144 (2).

        Walker, 243 Ga. App. at 238-39; see Anglin, 244 Ga. App. at 144 (2).

        See Stewart, 221 Ga. App. at 752 (1).