text:
    A17A0422.
    GIBBS v. THE STATE.
    (800 SE2d 385)
   BARNES, Presiding Judge.

Milton Gibbs appeals his convictions of DUI less safe and failure to maintain lane. He argues that the trial court erred by admitting evidence of his prior DUI conviction and that his lawyer rendered ineffective assistance by failing to object to the admission of that evidence. We find no error and affirm.

Viewed in a light favorable to the jury verdict, the record shows that at approximately 3:00 a.m. on April 20, 2014, Gibbs drove his SUV off the roadway around a curve on a two-lane road in Douglas County The SUV struck a telephone pole located approximately 30 feet off the road, breaking it in half, and came to rest in a ditch. Gibbs, who was not injured, called his brother-in-law for help removing the SUV from the ditch. After his brother-in-law arrived at the scene, Gibbs called his insurance company, which summoned a tow truck. The tow truck driver arrived and dialed 911 after seeing the damage to the telephone pole. A county sheriffs deputy was dispatched to the scene, and she requested that a Georgia State Patrol trooper investigate the accident.

The trooper arrived at 5:42 a.m. and spoke with Gibbs, who told him that he had swerved to avoid hitting a deer that had run into the road. The trooper, however, saw no yaw or skid marks or any other evidence that Gibbs had swerved or braked. The trooper concluded that Gibbs’s vehicle had simply “proceeded off the roadway . . . going straight towards the pole.” The trooper noticed a “slight odor of alcoholic beverage coming from [Gibbs’s] person” and saw that his eyes were watery and bloodshot. The trooper asked Gibbs multiple times if he had been drinking, but Gibbs said no. Gibbs also denied spilling alcohol on his clothing or being around anyone that night who had been drinking. When the trooper got closer to Gibbs, he determined that the alcoholic smell was on Gibbs’s breath. The trooper performed a horizontal gaze nystagmus (“HGN”) test on Gibbs, which showed six out of six possible clues of impairment. Gibbs told the trooper that he had an astigmatism and a weak muscle in one eye. The trooper responded that those conditions would neither cause nystagmus nor affect the HGN test, and the trooper later checked with a supervisor to confirm that assessment. The trooper was unable to administer other field sobriety tests because the terrain was unsuitable.

The trooper asked Gibbs to take a portable breath test that would indicate the presence or absence of alcohol, but Gibbs refused. Gibbs told the trooper that he was afraid the test would detect medication, but the trooper assured him that it would not. The trooper asked whether Gibbs was on medication, and he said no. The trooper then arrested Gibbs, read him his implied consent rights, and asked him to submit to a state-administered test of his blood. Again, Gibbs refused. A video of the encounter taken from a camera in the trooper’s patrol car was played for the jury.

Gibbs was charged with failure to maintain lane and DUI less safe. Before trial, the State notified Gibbs that it intended to introduce evidence of his prior DUI conviction. Defense counsel did not object to the admission of this evidence. At trial, a Cobb County police officer testified that he stopped Gibbs after seeing him weaving on 1-75 late one night in 2009; that he smelled alcohol on Gibbs’s person but Gibbs denied drinking; that he administered the HGN test, which showed six out of six clues of impairment; that Gibbs agreed to take a portable breath test, which showed he had been drinking; and that Gibbs later consented to a state-administered Intoxilyzer test of his breath, which gave a reading of 0.110. Gibbs was arrested and later pled guilty to DUI. A certified copy of the conviction was entered into evidence.

Gibbs took the stand in his own defense. He again claimed that he had not been drinking on the night of April 20, 2014, and that the accident had occurred because he swerved to avoid a deer. He also stated that he had a “lazy eye” that “wander[ed],” but he offered no proof that these conditions would have affected his performance on the HGN test. He testified that he refused to take the portable breath test because he “didn’t feel that [he] needed to. [He] wasn’t drinking.”

The jury found Gibbs guilty of both charges. He later filed a motion for new trial, making the same arguments he makes here — that the trial court erred by admitting the evidence of his prior DUI and that his trial counsel was ineffective for failing to object to that evidence under OCGA § 24-4-403 (“Rule 403”). The trial court denied the motion, ruling that the prior DUI was admissible under OCGA §§ 24-4-404 (b) (“Rule 404 (b)”) and 24-4-417 (“Rule 417”) and that it was not unduly prejudicial under Rule 403. Gibbs appeals.

1. It is undisputed that Gibbs’s trial counsel did not object to the admission of evidence concerning the prior DUI. Therefore, Gibbs waived any objection to the admissibility of that evidence. See Johnson v. State, 276 Ga. App. 505, 508 (3) (a) (623 SE2d 706) (2005) (“a defendant waives an objection to similar transaction evidence by not protesting its introduction at trial”).

2. Gibbs also argues that his trial counsel rendered ineffective assistance by failing to object to evidence of the prior DUI. To prevail on a claim of ineffective assistance of trial counsel, the defendant must show that his lawyer’s performance was deficient and that he was prejudiced by the deficient performance. Aikens v. State, 297 Ga. 229, 231 (3) (773 SE2d 229) (2015). Because “[tjhere is no deficient performance when an attorney fails to object to admissible evidence,” id. at 233 (3), quoting Perera v. State, 295 Ga. 880, 884-885 (3) (b) (763 SE2d 687) (2014) (punctuation omitted), we begin by addressing whether the evidence in question was admissible.

Rule 417, enacted in 2011 as part of Georgia’s new Evidence Code, provides in relevant part that in DUI prosecutions, evidence that the accused committed another DUI on a different, occasion “shall” be admissible when “[tjhe accused refused in the current case to take the state administered test required . . . and such evidence is relevant to prove knowledge, plan, or absence of mistake or accident.” OCGA § 24-4-417 (a) (1). Based on the presence of the word shall, the Supreme Court concluded that Rule 417 “contains a presumption in favor of the admission of [such] evidence.” (Citation and punctuation omitted.) State v. Frost, 297 Ga. 296, 302 (773 SE2d 700) (2015). The Court further ruled that evidence of a prior DUI “could strengthen the inference that the factfinder could draw from [the accused’s] refusal to take the state-administered test this time, that had he done so, it would have shown the presence of alcohol.” Monroe v. State, 340 Ga. App. 373, 375 (2) (797 SE2d 245) (2017), citing Frost, 297 Ga. at 304.

Specifically, proof of Gibbs’s prior DUI could allow the factfinder to infer that

[Gibbs] had an awareness that his ingestion of an intoxicant impaired his ability to drive safely Such awareness, in turn, would offer an explanation for why [Gibbs] refused the test on this occasion, namely, that he was conscious of his guilt and knew that the test results likely would tend to show that he was, in fact, under the influence of [alcohol].

Frost, 297 Ga. at 305, citing State v. Jones, 297 Ga. 156, 159 (2) (773 SE2d 170) (2015). Evidence of the prior DUI also could show that Gibbs

had acquired knowledge about the means by which law enforcement officers determine whether and to what extent a driver is under the influence of an intoxicant, and such awareness likewise might help to explain a refusal in the present case to submit to a test.

Frost, 297 Ga. at 305. Accordingly, the evidence of Gibbs’s prior DUI was admissible under Rule 417.

Gibbs argues that even if his prior DUI was admissible under Rule 417, counsel nevertheless was ineffective for failing to object that the evidence was unduly prejudicial under Rule 403. Rule 403 provides, pertinently, that “[Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.” In Frost, the Supreme Court explicitly declined to address whether evidence otherwise admissible under Rule 417 may be excluded as too prejudicial under Rule 403:

We have no occasion in this case to decide whether Rule 403 applies to evidence that “shall be admissible” under Rule 417. The Court of Appeals did not base its decision on Rule 403, and the parties do not make any argument about Rule 403 in their briefs. Accordingly, we leave questions about the extent to which Rule 403 applies to Rule 417 evidence for another day.

(Citation omitted.) 297 Ga. at 301-302 n. 6. Those questions remain open, as neither this Court nor the Supreme Court has yet determined whether Rule 403 applies to Rule 417.

In Kim v. State, 337 Ga. App. 155 (786 SE2d532) (2016), decided after Frost, the defendant argued on appeal that the trial court had erred by admitting evidence of his prior DUI conviction under Rule 417 because “the facts of the prior conviction were more prejudicial than probative under Rule 403.” Id. at 157. We presumed without deciding that Rule 403 applied to evidence admissible under Rule 417, but we concluded that the trial court had properly admitted the prior conviction. Id. at 157-158. As we did in Kim, we will assume without deciding here that Rule 403 applies to Rule 417. Accordingly, we turn to the question of whether the failure of Gibbs’s trial counsel to make a Rule 403 objection constituted deficient performance.

Rule 403 [is] an extraordinary remedy which the courts should invoke sparingly, and the balance should be struck in favor of admissibility Obviously, the reason for such caution is that relevant evidence in a criminal trial is inherently prejudicial, and, as a result, Rule 403 permits exclusion only when unfair prejudice substantially outweighs probative value. The primary function of Rule 403, then, is to exclude evidence of scant or cumulative probative force, dragged in by the heels for the sake of its prejudicial effect.

(Citations and punctuation omitted.) Williams v. State, 328 Ga. App. 876, 879 (1) (763 SE2d 261) (2014). Atrial court has “considerable discretion in determining whether the potential for prejudice substantially outweigh[s] any probative value.” Moss v. State, 298 Ga. 613, 618 (5) (b) (783 SE2d 652) (2016); see also Olds v. State, 299 Ga. 65, 70 (2) (786 SE2d 633) (2016) (“[t]he application of the Rule 403 test is a matter committed principally to the discretion of the trial courts”).

In its order denying Gibbs’s motion for new trial, the trial court ruled that Gibbs’s prior DUI was “properly introduced by the State to show knowledge or awareness on [Gibbs’s] part,” was not offered solely for its prejudicial effect, and was not merely of “scant or cumulative” probative value. (Punctuation omitted.) Thus, the court concluded that even if counsel had lodged a Rule 403 objection to the evidence, such objection “would not have borne fruit.” We agree that the prior DUI was highly probative of the reasons for Gibbs’s refusal of the portable breath and state-administered blood tests because it tended to show his knowledge of the effects of alcohol consumption on his driving and of law enforcement’s use of testing to determine impairment. Further, the trial court did not abuse its discretion by concluding that the evidence would have survived a Rule 403 objection because its probative value was not substantially outweighed by the danger of unfair prejudice. Trial counsel was not ineffective for failing to make an evidentiary objection that would not have succeeded. See Perera, 295 Ga. at 884-885 (3) (b).

Decided May 4, 2017

Thomas J. Thomas, for appellant.

Matthew C. Krull, Solicitor-General, Michelle L. Dissman, Assistant Solicitor-General, for appellee.

Judgment affirmed.

McMillian and Mercier, JJ., concur.

       See Masood v. State, 313 Ga. App. 549, 550 (722 SE2d 149) (2012).

       Counsel initially asked the court to restrict the State from mentioning the prior conviction in opening statements “since the similar transaction officer is not here yet,” but counsel stipulated to the admissibility of the evidence after learning that the officer was present in court.

      . See State v. Frost, 297 Ga. 296, 299 (773 SE2d 700) (2015).

       Having found that the evidence was admissible under Rule 417, we need not consider whether it also may have been admissible under Rule 404 (b), which provides that evidence of “other crimes, wrongs, or acts” may be admissible to show “proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.”


source: Caselaw Access Project

author: Branch, Judge.

license: Public Domain

text:
    A17A0464.
    FREEMAN v. THE PARK AT HAIRSTON APARTMENTS.
    (800 SE2d 21)
   Branch, Judge.

In this dispossessory proceeding, Yevette Freeman appeals pro se from an order of the DeKalb County Superior Court denying her application to proceed in forma pauperis. For reasons explained below, we vacate the trial court’s order and remand the case for further proceedings.

The relevant facts are undisputed and show that on May 4, 2016, the DeKalb County Magistrate Court entered final judgment against Freeman and in favor of The Park at Hairston Apartments in a dispossessory action brought by the apartment complex. Freeman appealed that judgment to the Superior Court. On May 10, 2016, the clerk of the Superior Court sent Freeman a notice stating that before her appeal could be filed, Freeman was required to pay the filing fee of $214. The notice further stated that “[i]f the costs are not paid within (30) days, the case will be dismissed for want of prosecution and will be returned to Magistrate Court.” The notice was sent via certified mail to Freeman at an address that we presume she provided to the clerk at the time she filed her notice of appeal. On June 8, 2016, that notice was returned to the clerk’s office as “unclaimed.” Approximately one week later, on June 16, 2016, Freeman filed an application to proceed without paying costs together with a supporting affidavit of poverty.

The trial court considered Freeman’s application under OCGA § 9-15-2, which provides that when a pro se litigant in a civil action files an affidavit of poverty and seeks to proceed without paying costs,

the clerk of court shall not file the matter but shall present the complaint or other initial pleading to a judge of the court. The judge shall review the pleading and, if the judge determines that the pleading shows on its face such a complete absence of any justiciable issue of law or fact that it cannot be reasonably believed that the court could grant any relief against any party named in the pleading, then the judge shall enter an order denying filing of the pleading. If the judge does not so find, then the judge shall enter an order allowing filing and shall return the pleading to the clerk for filing as in other cases. . . .

OCGA § 9-15-2 (d).

After considering Freeman’s application, the trial court denied the same based on its finding that the application was untimely Specifically, the trial court reasoned that because the clerk’s office had directed Freeman to pay the bill of costs by June 9, 2016, Freeman was required either to pay the costs or file an affidavit of poverty by that date. Freeman challenges this ruling on appeal.

We find that the trial court erred in relying on OCGA § 9-15-2 (d) to deny as untimely Freeman’s application to proceed in forma pauperis. Assuming arguendo that OCGA § 9-15-2 applies to notices of appeal filed in the Superior Court, the language of that Code section does not authorize a dismissal for failure to file a timely application to proceed in forma pauperis. Instead, it allows the trial court to refuse to accept a pro se complaint or other pleading for filing only if the court determines “that it cannot be reasonably believed that the court could grant any relief against any party named in the pleading.” Here, the trial court made no such determination, and therefore it could not rely on OCGA § 9-15-2 to deny Freeman’s application.

Decided May 4, 2017.

Yevette B. Freeman, pro se.

Moreover, the Code section that authorizes a superior court to dismiss an appeal for failure either to pay costs or file an affidavit of poverty is OCGA § 5-3-22 (a), which provides:

No appeal shall be heard in the superior or state court until any costs which have accrued in the court... below have been paid unless the appellant files with the superior or state court... an affidavit stating that because of indigence he or she is unable to pay the costs on appeal. In all cases, no appeal shall be dismissed in the superior or state court because of nonpayment of the costs below until the appellant has been directed by the court to do so and has failed to comply with the court’s direction.

(Emphasis supplied.) This case, however, does not involve Freeman’s failure to pay costs in the Magistrate Court. Instead, it involves Freeman’s failure either to pay the filing fee owed in Superior Court or file an affidavit of poverty in that court. Accordingly, OCGA § 5-3-22 (a) provides no basis for affirming the trial court’s order.

For the reasons set forth above, we vacate the order of the trial court denying Freeman’s motion to proceed in forma pauperis, and we remand the case for further proceedings consistent with this opinion.

Judgment vacated and case remanded.

McFadden, P. J., and Bethel, J., concur.

       The clerk did not include a copy of Freeman’s notice of appeal to the Superior Court in the appellate record.

       Acopy of Freeman’s application was not included in the appellate record. The trial court’s order denying that application, which was entered on June 17, states that Freeman filed the application on June 16.

       This date represented 30 days from the date of the notice sent to Freeman by the clerk’s office.

       The plain language of OCGA § 9-15-2 states that the statute applies to “complaint [s]” and other “initial pleading[s].” And the Civil Practice Act, which governs actions in the superior court, does not include a notice of appeal within its definition of “pleadings.” See OCGA § 9-11-7 (defining “pleadings” to include a complaint, an answer, a third-party complaint, a third-party answer, a reply to a counterclaim, an answer to a cross-claim, and a reply to an answer or a third-party answer). The current appeal, however, does not require us to decide whether OCGA § 9-15-2 applies where a party seeks to proceed in forma pauperis on an appeal in superior court from a judgment entered against him in magistrate or state court.

       The trial court may also “inquire into the truth of the affidavit of indigence,” even where that affidavit has not been challenged by the filing of a traverse affidavit. OCGA § 9-15-2 (b).


author: BARNES, Presiding Judge.

text:
    A17A0620.
    CONSUMER CREDIT RESEARCH FOUNDATION v. BOARD OF REGENTS OF THE UNIVERSITY SYSTEM OF GEORGIA et al.
    (800 SE2d 24)
   BARNES, Presiding Judge.

At issue in this appeal is whether state agencies have the discretion to release materials related to academic research in response to a request made under the Georgia Open Records Act, even if the Act specifically exempts the materials from disclosure to the public and a private party has sued to enjoin their release. The trial court concluded that state agencies have such discretionary authority, leading the court to grant summary judgment to the Board of Regents of the University System of Georgia and the Campaign for Accountability (collectively, the “University Defendants”) and to deny summary judgment to the Consumer Credit Research Foundation (the “Foundation”). However, in Bowers v. Shelton, 265 Ga. 247, 248-249 (1) (453 SE2d 741) (1995), the Supreme Court of Georgia held that a state agency’s compliance with the specific exceptions to disclosure contained in the Open Records Act is mandatory rather than discretionary and that private parties may sue to enjoin an agency from releasing records that fall within one of those exceptions. Based on the Bowers decision, the trial court erred in holding that a state agency’s compliance with the specific exceptions to disclosure for materials related to academic research was discretionary Accordingly, because the trial court relied on an erroneous legal theory, we vacate the trial court’s summary judgment order and remand for further proceedings consistent with this opinion.

The relevant facts are undisputed. In November 2013, the Foundation entered into a consulting agreement with the Kennesaw State University Research and Service Foundation. In accordance with the agreement, a Kennesaw State University (“KSU”) professor conducted statistical research and analysis relating to “payday” loans, which the professor incorporated into a paper that was published in 2014.

In June 2015, the Campaign for Accountability (“CFA”) sent a request to KSU under the Georgia Open Records Act, OCGA § 50-18-70 et seq., for copies of certain correspondence, including e-mails and other communications between the KSU professor and the Foundation relating to the professor’s payday-loan research (the “research correspondence”). KSU informed the CFA that it did not oppose the release of the research correspondence in redacted form and notified the Foundation that it planned to release the redacted correspondence to the CFA in response to the open records request.

The Foundation objected to KSU releasing the research correspondence to the CFA. Because KSU is part of the University System of Georgia, the Foundation filed the instant action for declaratory and injunctive relief against the Board of Regents in the Superior Court of Fulton County to prevent the release of the research correspondence under the Open Records Act. The trial court granted the CFA’s motion to intervene in the action as a party defendant.

The parties filed cross-motions for summary judgment regarding the release of the research correspondence. The Foundation emphasized that the Open Records Act contains a list of specific exceptions to public disclosure in OCGA § 50-18-72 (a) and argued that the research correspondence was specifically exempt from disclosure under two of those exceptions for academic research-related materials, OCGA § 50-18-72 (a) (35) and (36) (the “research exceptions”). The Foundation further argued that because the research exceptions to disclosure applied, KSU was prohibited from releasing the research correspondence to the CFA.

The University Defendants responded that the Foundation had failed to prove that the research correspondence fell within either of the two research exceptions found in the Open Records Act. The University Defendants further responded that even if the research correspondence fell within the two research exceptions, those exceptions simply permitted, but did not require, KSU to withhold the correspondence from disclosure. Consequently, the University Defendants argued, KSU had the discretionary authority to release the research correspondence to the CFA even if the research exceptions found in OCGA § 50-18-72 (a) (35) and (36) applied.

In response to the cross-motions for summary judgment, the trial court granted summary judgment to the University Defendants and denied it to the Foundation. The trial court ruled that the two research exceptions in the Open Records Act authorized a state agency to withhold research materials covered by the exceptions from public disclosure but that the Act did not mandate nondisclosure. Based on its conclusion that the research exceptions did not place a mandatory duty on state agencies to withhold research materials covered by the exceptions from public disclosure, the trial court ruled that KSU had the discretion to release the research correspondence in response to the Open Records Act request made by the CFA, even assuming that the correspondence fell within one or both of the research exceptions. The trial court ultimately did not resolve whether any of the research correspondence fell within the two research exceptions contained in the Open Records Act. The Foundation now appeals the trial court’s summary judgment order.

Our review of a trial court’s statutory interpretation is de novo, Kennedy Dev. Co. v. Camp, 290 Ga. 257, 258 (719 SE2d 442) (2011), and we begin our review with a summary of the applicable statutory framework. The Georgia Open Records Act authorizes the personal inspection and copying of public records, “except those which by order of a court of this state or by law are specifically exempted from disclosure.” OCGA § 50-18-71 (a). As previously noted, several specific exceptions to disclosure are listed in OCGA § 50-18-72 (a) of the Act, including the two research exceptions found in OCGA § 50-18-72 (a) (35) and (36).

“Because public policy strongly favors open government, any purported statutory exemption from disclosure under the Open Records Act must be narrowly construed.” (Citation, punctuation and emphasis omitted.) City of Atlanta v. Corey Entertainment, 278 Ga. 474, 476 (1) (604 SE2d 140) (2004). See OCGA § 50-18-70 (a). “However, although exemptions from disclosure under the Open Records Act are narrowly construed, the Act obviously should not be construed in derogation of its express terms.” (Citation and punctuation omitted.) Evans v. Ga. Bureau of Investigation, 297 Ga. 318, 319 (773 SE2d 725) (2015). “[E]ven when documents are found to be public records, and therefore open for inspection by the public, there may be some material contained therein which for competing public policy reasons are not subject to disclosure.” Harris v. Cox Enterprises, 256 Ga. 299, 300 (348 SE2d 448) (1986) (per curiam) (on motion for reconsideration).

The Open Records Act also authorizes actions to enforce its provisions. Specifically, the Act grants legal and equitable jurisdiction to the superior courts of this state “to entertain actions against persons or agencies having custody of records open to the public under [the Open Records Act] to enforce compliance with the provisions of [the Act].’’OCGA § 50-18-73 (a). Enforcement actions “maybe brought by any person, firm, corporation, or other entity.” Id. And while the Open Records Act does not authorize an award of compensatory or punitive damages to a party bringing a civil enforcement action, McBride v. Wetherington, 199 Ga. App. 7, 8 (403 SE2d 873) (1991), a court can sanction state agencies that negligently violate the Act with civil penalties and award attorney fees under certain circumstances. OCGA §§ 50-18-73 (b); 50-18-74 (a).

Mindful of this statutory framework, we turn to the specific arguments raised here. On appeal, the Foundation argues that the trial court erred in ruling that KSU had the discretion to release the research correspondence to the CFA, even if the correspondence was specifically exempt from disclosure under the research exceptions found in OCGA § 50-18-72 (a) (35) and (36) of the Open Records Act. According to the Foundation, the trial court’s ruling is inconsistent with the reasoning and analysis of the Supreme Court of Georgia in Bowers, 265 Ga. at 248-249 (1). We agree.

In Bowers, the Supreme Court addressed the question of whether a private party can bring suit to enjoin the disclosure of public records under the Open Records Act. 265 Ga. at 248-249 (1). In addressing this question, the Supreme Court compared the Georgia Open Records Act to the federal Freedom of Information Act, 5 USC § 552 et seq. (“FOIA”). Bowers, 265 Ga. at 248-249 (1). The Supreme Court noted that the FOIA’s “provisions exempting specified information from disclosure [are] meant only to permit the governmental agency to withhold certain information, and [are] not meant to mandate nondisclosure.” Id. at 248 (1). See 5 USC § 552 (b); Chrysler Corp. v. Brown, 441 U. S. 281, 290-294 (II) (99 SCt 1705, 60 LE2d 208) (1979). Thus, the Supreme Court of Georgia pointed out, the FOIA “imposes no affirmative duties on an agency to withhold information sought,” even if the information is specifically exempted from disclosure. Bowers, 265 Ga. at 248 (1).

The Supreme Court emphasized, however, that the Georgia Open Records Act “materially differs from the FOIA.” Bowers, 265 Ga. at 249 (1). As the Supreme Court explained,

[t]he Georgia Act relating to the inspection of public records, OCGA § 50-18-70 et seq., requires disclosure of public records, with certain exceptions enumerated at OCGA § 50-18-72 (a). While the enumerated exceptions are similar to those contained in the FOIA, this Court has determined that the Georgia Act man dates the nondisclosure of certain excepted information.

(Emphasis in original.) Id. at 248 (1).

In concluding that the nondisclosure of statutorily-excepted information is mandatory rather than discretionary under the Georgia Open Records Act, the Supreme Court in Bowers relied in part on its prior decision in Harris, 256 Ga. at 299. Bowers, 265 Ga. at 248-249 (1). In Harris, the Supreme Court held that the Georgia Open Records Act “requires a custodian of public records to preserve the confidentiality of information that the public does not have a right to see,” and that the State could not “by waiver, inadvertent or not, allow exempted information to be made public.” (Citation and punctuation omitted.) 256 Ga. at 300. The Harris Court reasoned that the State could not waive the rights of third parties who had an interest in confidential information that was statutorily exempted from disclosure under the Open Records Act. Id.

In addition to relying on Harris, the Supreme Court in Bowers also focused on the plain language of the Georgia Open Records Act in concluding that the nondisclosure of statutorily-excepted information is mandatory rather than discretionary under the Act. 265 Ga. at 248-249 (1). In this regard, the Supreme Court pointed out that, as noted supra, the Open Records Act grants superior courts jurisdiction over actions brought “to enforce compliance” with the Act’s provisions, OCGA § 50-18-73 (a), and the Act allows for the inspection of public records, “except” for those which, among other things, are “specifically exempted” by law from being disclosed. (Emphasis supplied.) OCGA § 50-18-71 (a). Bowers, 265 Ga. at 248-249 (1). In light of this statutory language and framework, the Supreme Court concluded that the Georgia Open Records Act creates a cause of action for private parties “to enjoin disclosure of legally protected information,” id. at 249 (1), and that injunctive relief is appropriate if the public documents at issue are not “subject to inspection and disclosure under the Open Records Act.” Id. at 249 (2).

Bowers establishes that when a state agency plans to disclose public records to the public in response to an Open Records Act request, a private party is entitled to bring suit under the Act and enjoin the agency from disclosing the records, if the records are not “subject to inspection and disclosure,” i.e., if they fall within a statutory exception listed in OCGA § 50-18-72 (a) or another statute. Bowers, 265 Ga. at 248-249 (1), (2). Injunctive relief against the state agency is warranted because, as the Supreme Court later reiterated in Howard v. Sumter Free Press, 272 Ga. 521, 522 (1) (531 SE2d 698) (2000), a state agency’s “compliance with the Act is not discretionary, but mandatory” See also Doe v. Bd. of Regents of Univ. System of Ga., 215 Ga. App. 684, 692 (4) (452 SE2d 776) (1994) (whole court) (“The Open Records Act requires [the Board of Regents] to preserve the confidentiality of information that the public does not have a right to see.”) (citation and punctuation omitted).

“It is axiomatic that this Court is bound by the precedent of the Supreme Court.” Dillard v. Bishop Eddie Long Ministries, 258 Ga. App. 507, 511 (3) (574 SE2d 544) (2002). Accordingly, in light of the Supreme Court’s decision in Bowers, the trial court erred in ruling that KSU had the discretion to release the research correspondence in response to CFA’s open record request, even if the Foundation brought suit to enjoin the disclosure and demonstrated that the correspondence was exempt from disclosure under OCGA § 50-18-72 (a) (35) or (36). Rather, pursuant to the analysis and reasoning of the Bowers decision, the Foundation was entitled to enjoin KSU from disclosing the research correspondence to the CFA, if the Foundation showed that the correspondence fell within one or both of the research exceptions found in the Open Records Act.

Because the trial court erroneously concluded that KSU had the discretion to disclose the research correspondence to CFA, the trial court never addressed the parties’ arguments regarding whether or to what extent the correspondence fell within the research exceptions contained in OCGA § 50-18-72 (a) (35) or (36). Consequently, we vacate the trial court’s summary judgment order and remand for the trial court to consider in the first instance the parties’ arguments regarding the application of one or both of the research exceptions to the correspondence at issue in this case. See Harris, 256 Ga. at 302 (2) (remanding case for trial court to consider whether records at issue fell within a statutory exception to disclosure). See generally Community Renewal and Redemption v. Nix, 279 Ga. 840, 842 (2) (621 SE2d 722) (2005) (declining to apply the right-for-any-reason rule, where trial court’s summary judgment ruling was based upon an erroneous legal theory and other issues were left unresolved as a result of the trial court’s ruling); City of Gainesville v. Dodd, 275 Ga. 834, 838-839 (573 SE2d 369) (2002) (appellate courts have discretion to vacate a trial court’s summary judgment order and remand for the trial court to consider alternative arguments in the first instance).

Judgment vacated and case remanded with direction.

McMillian and Mercier, JJ., concur.

Decided May 4, 2017

Dentons US, Thurbert E. Baker, Nathan L. Garroway, Mark A. Silver, for appellant.

Christopher M. Carr, Attorney General, Annette M. Cowart, Deputy Attorney General, Russell D. Willard, Sen ior Assistant Attorney General, Jennifer Colangelo, Assistant Attorney General; Arnall Golden Gregory, Henry R. Chalmers, Megan P. Mitchell, for appellees.

       The two research exceptions provide in relevant part:
      (a) Public disclosure shall not be required for records that are:

      (35) Data, records, or information of a proprietary nature produced or collected by or for faculty or staff of state institutions of higher learning, or other governmental agencies, in the conduct of, or as a result of, study or research on commercial, scientific, technical, or scholarly issues, whether sponsored by the institution alone or in conjunction with a governmental body or private concern, where such data, records, or information has not been publicly released, published, copyrighted, or patented;
      (36) Any data, records, or information developed, collected, or received by or on behalf of faculty, staff, employees, or students of an institution of higher education or any public or private entity supporting or participating in the activities of an institution of higher education in the conduct of, or as a result of, study or research on medical, scientific, technical, scholarly, or artistic issues, whether sponsored by the institution alone or in conjunction with a governmental body or private entity, until such information is published, patented, otherwise publicly disseminated, or released to an agency whereupon the request must be made to the agency. This paragraph shall apply to, but shall not be limited to, information provided by participants in research, research notes and data, discoveries, research projects, methodologies, protocols, and creative works ....
      OCGA § 50-18-72 (a) (35), (36).

        Harris, in turn, relied on the earlier Supreme Court case of Griffin-Spalding County Hosp. Auth. v. Radio Station WKEU, 240 Ga. 444, 447 (3) (241 SE2d 196) (1978), where the Court held that “the intent of the General Assembly was to afford to the public at large access to public records with the exceptions of certain information which the [applicable law] exempts from disclosure,” and that the law “requires a custodian of public records to preserve the confidentiality of information that the public does not have a right to see.”

       Former OCGA § 50-18-70 (b), in effect at the time of the Bowers decision, provided that public records were open for inspection “except those which by order of a court of this state or by law are prohibited or specifically exempted from being open to inspection by the general public.” Current OCGA § 50-18-71 (a) provides that public records are open for public inspection “except those which by order of a court of this state or by law are specifically exempted from disclosure.”


author: McMlLLIAN, Judge.

text:
    A17A0227.
    HASLAM v. THE STATE.
    (801 SE2d 61)
   McMlLLIAN, Judge.

In this out-of-time appeal, Devon Haslam appeals from the judgment entered after a jury convicted him of rape, aggravated sodomy, false imprisonment, robbery by force, and hindering a person making an emergency phone call. As his sole enumeration of error, Haslam asserts that the evidence was insufficient to support his convictions for rape and two counts of aggravated sodomy.

Under Georgia law, “[a] person commits the offense ofrape[, inter alia,] when he has carnal knowledge of [an adult] female forcibly and against her will. . . . Carnal knowledge in rape occurs when there is any penetration of the female sex organ by the male sex organ.” OCGA § 16-6-1 (a). “A person commits the offense of aggravated sodomy[, inter alia,] when he or she commits sodomy with force and against the will of the other person[.]” OCGA § 16-6-2 (a) (2). Sodomy is defined as “any sexual act involving the sex organs of one person and the mouth or anus of another.” OCGA § 16-6-2 (a) (l).

“On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to the verdict, and the defendant no longer enjoys the presumption of innocence [.] ” Walker v. State, 267 Ga. App. 155, 155 (1) (598 SE2d 875) (2004). That is because it is within the province of the jury to determine the credibility of witnesses, including the victim, and the weight to be given to their testimony McIntosh v. State, 247 Ga. App. 640, 641 (1) (545 SE2d 61) (2001). An appellate court cannot substitute its judgment for that of the jury; we neither weigh the evidence nor determine the credibility of witnesses. Our task is simply to ascertain whether the evidence is sufficient to support the jury’s verdict under the standard set forth in Jackson v. Virginia, 443 U.S. 307 (99 SCt 2781, 61 LE2d 560) (1979). See Nolan v. State, 255 Ga. App. 63, 63 (1) (564 SE2d 464) (2002). If some competent evidence exists to support each essential element in the State’s case, even if contradicted, the jury’s verdict must be upheld. Walker, 267 Ga. App. at 155 (1).

So viewed, the evidence at trial showed that Haslam responded to an advertisement placed by the victim, who was working as a prostitute. The two arranged via text messages to meet at a hotel for sex. The victim let Haslam into her hotel room, and when she turned around at Haslam’s request, he grabbed her by the neck. Haslam told the victim not to scream and, with his arm still around her neck, instructed her to take off her “bottoms.” Haslam then shoved the victim down on the bed and began to penetrate her both vaginally and anally for a period of three to four minutes, causing her to experience pain and bleed from her anus. Haslam ordered the victim to wipe off her face and threatened to kill her. He then forced his penis into her mouth. Afterwards, Haslam penetrated her both anally and vaginally again. Afterwards, Haslam took the victim’s money and cellphone and snatched the hotel phone out of the wall; he then raped her anally again. At that point, he tied the victim’s wrists to her ankles, placed a towel in her mouth, and left.

A doctor who later examined the victim testified that her pelvic exam showed signs of possible injuries to the vaginal cavity and anal region, which were consistent with the victim’s story that she was forcibly penetrated.

We find that this and other evidence at trial was sufficient to support Haslam’s convictions for rape and aggravated sodomy as charged in this case. See Ruffin v. State, 333 Ga.App. 793, 793 (1) (777 SE2d 262) (2015) (“the victim’s testimony, standing alone, would have been sufficient to authorize a verdict of guilty”); Bradberry v. State, 297 Ga.App. 679, 681 (1) (678 SE2d 131) (2009) (sufficient direct and circumstantial evidence of forcible rape by victim’s testimony that she was forced against her will and that intercourse was painful). Although on appeal, Haslam points to inconsistencies and discrepancies between details in the victim’s report of the incident to her boyfriend, health workers, and law enforcement, including how she met Haslam, whether she was working as a prostitute, and the nature of the acts performed, she consistently maintained that she had been sexually assaulted by Haslam. Moreover, any “such inconsistencies and how they may impact the credibility or veracity of witnesses are for a jury to reconcile.” Dinkins v. State, 300 Ga. 713, 715 (3) (797 SE2d 858) (2017). See also Vega v. State, 285 Ga. 32, 33 (1) (673 SE2d 223) (2009) (“‘It was for the jury to determine the credibility of the witnesses and to resolve any conflicts or inconsistencies in the evidence.’ ”) (citation omitted). Because the record contains evidence supporting the jury’s findings on the charges of rape and aggravated sodomy, we affirm.

Decided May 5, 2017.

Genevieve A. Holmes, for appellant.

Paul L. Howard, Jr., District Attorney, Paige Reese Whitaker, Michael V. Snow, Assistant District Attorneys, for appellee.

Judgment affirmed.

Barnes, P. J., and Mercier, J., concur.

       Haslam was charged in three separate indictments arising out of three separate incidents involving three separate victims. The indictments were consolidated for trial, and Haslam was convicted on each of them. Haslam filed three appeals, each based on a separate indictment, and this Court denied his motion to consolidate those appeals. Haslam does not contest the sufficiency of the evidence supporting his convictions in Case Nos. A17A0226 and Al 7A0228, but instead only argues that his convictions for rape and aggravated sodomy in Case No. A17A0227 are not supported by the evidence. Nevertheless, Haslam argues that if we grant him a new trial on those two charges, he would be entitled to a new trial on all charges in all three indictments. We find no merit to that argument. See Wiggins v. State, 280 Ga. 268, 272 (2) (626 SE2d 118) (2006). Accordingly, we have dismissed, by separate order, the appeals in Case Nos. A17A0226 and A17A0228 for failure to enumerate any error by the trial court in connection with those cases. See Adamson v. Sanders, 279 Ga. 187, 188 (611 SE2d 44) (2005); Complete Wiring Solutions, LLC v. Astra Group, Inc., 335 Ga. App. 723, 726 (781 SE2d 597) (2016).

       Haslam does not contest the sufficiency of the evidence supporting his other convictions in this case, and thus we do not address them.


author: Bethel, Judge.

text:
    A17A0317.
    BATTEN v. THE STATE.
    (801 SE2d 57)
   Bethel, Judge.

Jesse Lamar Batten appeals from the denial of his motion for a new trial. He argues that the trial court erred in denying his motions to suppress and in admitting certain statements that he made to law enforcement officers. We disagree and affirm because the trial court did not err in denying the motions.

Following a conviction, we view the evidence “in the light most favorable to support the verdict,” and the defendant “no longer enjoys a presumption of innocence.” Everhart v. State, 337 Ga.App. 348, 348 (786 SE2d 866) (2016) (quoting Culver v. State, 230 Ga.App. 224, 224 (496 SE2d 292) (1998)). So viewed, the evidence shows that the Ben Hill County Sheriff’s Office and the Georgia Bureau of Investigation (“GBI”) placed a tracking device on Batten’s vehicle as part of their investigation into Batten’s drug distribution activities. On December 4, 2013, the vehicle tracker indicated that Batten had stopped at several locations associated with the distribution of narcotics. The tracker went dead during Batten’s return trip home, and the GBI investigator monitoring Batten’s activities conducted surveillance on the interstate to look for Batten’s vehicle. The investigator observed Batten’s vehicle and began following him, while informing the Sheriff’s office of his whereabouts. Investigators from the Sheriff’s office continued to follow Batten and conducted surveillance as he stopped first at the house of an associate who investigators believed may have also been involved in the distribution of methamphetamine, and later at an apartment complex. One of the investigators continued to follow Batten as he left the complex and drove into Ben Hill County. Shortly after crossing the county line, the investigator observed Batten cross the centerline and decided to activate his lights and stop Batten out of concern that he may have been under the influence. An officer in a marked patrol car assisted in the stop. The investigator instructed Batten to step out of his vehicle, requested identification and proof of insurance, and asked whether Batten had anything illegal in the vehicle, which Batten denied. Another officer asked Batten if he had “a problem with [the officer] searching [Batten’s] truck?” Batten replied, “No, go ahead.” After officers discovered methamphetamine hidden in a box under the vehicle, Batten was placed in handcuffs.

Batten spoke with police while handcuffed, and officers admit that he had not been informed of his Miranda rights; however, the State did not introduce these statements at trial. Batten was not taken into custody following the stop, but came into the Sheriff’s office the next day to be interviewed regarding his drug distribution activity Batten was informed of his Miranda rights prior to that interview, and he signed a form acknowledging them. During that interview, which was later played for the jury, Batten admitted to hiding methamphetamine in a box hidden under his vehicle. Batten was arrested sometime later.

Prior to trial, Batten filed a motion to suppress evidence arising from the stop, arguing that officers lacked probable cause to stop Batten and that Batten did not consent to the search of his vehicle. Batten also moved to suppress his statements made to police because he was not informed of his Miranda rights. The trial court denied these motions.

A jury found Batten guilty of trafficking in methamphetamine and operating a vehicle containing a secret compartment. Batten filed a motion for a new trial, which the trial court denied following a hearing. This appeal followed.

Batten argues that the trial court erred in denying his motions to suppress.

While the trial court’s findings as to disputed facts in a ruling on a motion to suppress will be reviewed to determine whether the ruling was clearly erroneous, where the evidence is uncontroverted and no question regarding the credibility of witnesses is presented, the trial court’s application of the law to undisputed facts is subject to de novo appellate review.

Johnson v. State, 305 Ga. App. 635, 636 (700 SE2d 612) (2010) (citation and punctuation omitted). Because the relevant facts here are undisputed, we review the trial court’s ruling de novo.

(a) Batten first argues that he did not consent to a search of his vehicle, but merely acquiesced to the authority of the police. Batten argues that there were several police officers present, some of whom were shining flashlights, and that the State did not meet its burden in establishing that consent was freely and voluntarily given. Batten is correct that the State “has the burden of proving the validity of a consensual search and must show the consent is given voluntarily.” State v. Jourdan, 264 Ga. App. 118, 120 (1) (589 SE2d 682) (2003) (citation and punctuation omitted). “Consent which is the product of coercion or deceit on the part of the police is invalid. Consent is not voluntary when it is the result of duress or coercion, express or implied.” Id. at 121 (1) (citations and punctuation omitted).

The voluntariness of consent is determined by the totality of the circumstances; no single factor controls. The standard for measuring the scope of a suspect’s consent under the Fourth Amendment is that of objective reasonableness — what would the typical reasonable person have understood by the exchange between the officer and the suspect. The appropriate inquiry is whether a reasonable person would feel free to decline the officers’ request to search or otherwise terminate the encounter. Mere acquiescence to the authority asserted by a police officer cannot substitute for free consent. And, we are required to scrutinize closely an alleged consent to search.

Id. (citations and punctuation omitted).

Even though there were several police officers present during the stop holding flashlights (as it was dark), the videotape of the traffic stop corroborates the officers’ testimony regarding the consensual nature of the search yielding the methamphetamine sought to be suppressed. See Morris v. State, 239 Ga. App. 100, 101 (1) (520 SE2d 485) (1999) (consent voluntary where officer asked the defendant if he minded if the officer examined a matchbox, and the defendant responded “no, go ahead”). Batten was not in handcuffs prior to the search, and there is no evidence that he was being threatened in any way, that he was misled, or that he was subject to a lengthy detention before giving his consent to search. See Kendrick v. State, 335 Ga. App. 766, 769 (782 SE2d 842) (2016) (“A consent to search will normally be held voluntary if the totality of the circumstances fails to show that the officers used fear, intimidation, threat of physical punishment, or lengthy detention to obtain the consent.” (citation and punctuation omitted)); State v. Westmoreland, 204 Ga. App. 312, 313-314 (2) (418 SE2d 822) (1992) (consent was just acquiescence where defendant consented to search only after an officer told him that the officer did not need a warrant). Moreover, the mere fact that four officers were present and holding flashlights when Batten was asked for permission to search his vehicle does not mean that his consent was merely an acquiescence to their authority See Smith v. State, 165 Ga. App. 333, 334-335 (2) (299 SE2d 891) (1983) (consent voluntary where defendant was initially ordered out of his car at gunpoint, but police were no longer pointing weapons at him when he was asked for permission to search his vehicle). Rather, the officers testified that Batten was asked whether he would consent, and he did so. Compare Hollenback v. State, 289 Ga. App. 516, 519 (657 SE2d 884) (2008) (consent was not freely and voluntarily given and was mere acquiescence to authority where the officer informed the defendant he was going to search her vehicle and she did not object, but handed the officer her keys). Once “voluntary consent is legally obtained, it continues until it either is revoked or withdrawn.” Morris, 239 Ga. App. at 101 (1) (a) (citation and punctuation omitted). There is no evidence either occurred here. Therefore, we agree with the trial court that the search was consensual.

(b) Batten next argues that the stop was unlawful under OCGA § 40-8-91 because an investigator conducted the traffic stop in an unmarked vehicle. OCGA § 40-8-91 (a) requires that any vehicle used to make arrests for traffic violations be “distinctly marked on each side and the back with the name of the agency responsible^]” But Batten failed to raise this argument below and cannot make it for the first time on appeal. See West v. State, 300 Ga.App. 583, 585 (2) (685 SE2d 486) (2009) (“Issues and objections not raised in the trial court and ruled on by the trial court are deemed waived and cannot be raised for the first time on appeal.”). We find no error here.

Decided May 5, 2017.

Dove Law Firm, Andrew M. Dove, for appellant.

(c) Batten further argues that as a result of his allegedly illegal arrest, any statements he subsequently provided to police were tainted and inadmissible. More specifically, in his enumeration of error, Batten argues the trial court erred in allowing the jury to hear his statements made to police during his interview at the Sheriff’s office. Batten fails to support this particular enumeration with any argument or authority in his brief, which is contrary to the requirements of this Court’s rules. See Court of Appeals Rule 25 (a) (3). Batten’s failure to support his assertion of error with any authority hinders our ability to determine the substance of his argument on appeal. As our rules make clear, “[a]ny enumeration of error which is not supported in the brief by citation of authority or argument may be deemed abandoned.” Court of Appeals Rule 25 (c) (2); Hafeez v. State, 339 Ga. App. 467, 470 (2) (793 SE2d 632) (2016) (defendant abandoned his enumeration of error because he made no argument in support of it). Therefore, because Batten abandoned this error on appeal, we will not address it.

Judgment affirmed.

McFadden, P. J., and Branch, J., concur.

Bradford L. Rigby, District Attorney, Christian L. Brown, Assistant District Attorney, for appellee.

       In reviewing the denial of a motion to suppress, we may consider both the transcript of the motion hearing and the trial transcript. Davidson v. State, 257 Ga.App. 260, 261 (570 SE2d 698) (2002).

       Installation of the tracking device had been approved by a judge.

       During cross-examination, the officer admitted that he did not include his observation of Batten’s traffic offense in his written report.

       The officer obtained Batten’s identification from the vehicle for him.

       Even if Batten had not waived this argument, it would still fail because OCGA § 40-8-91 (f) provides that “ [a] n otherwise lawful arrest shall not be invalidated or in any manner affected by failure to comply with this Code section.” See also State v. Carter, 215 Ga.App. 647, 648 (451 SE2d 541) (1994) (reversing grant of motion to suppress despite failure to comply with OCGA § 40-8-91 where officers pulled defendant over in an unmarked car after observing him crossing the centerline several times). Further, because of Batten’s erratic driving and the officer’s concerns about Batten’s potential impairment, the officer was authorized to stop him even in an unmarked vehicle. See Thomas v. State, 261 Ga.App. 493, 497 (2) (b) (583 SE2d 207) (2003) (“[n]othing in [OCGA § 40-8-91] . . . invalidates traffic arrests, or investigatory stops, made in an unmarked vehicle!,]” and “an officer in an unmarked car may stop an erratic driver”); Sapp v. State, 297 Ga.App. 218, 220-221 (1) (676 SE2d 867) (2009) (stop by an officer-in an unmarked vehicle was not unlawful where officer observed defendant’s vehicle cross the centerline); Carter, 215 Ga. App. at 648. Additionally, the record indicates that an officer in a marked patrol car also effected the stop simultaneously with the unmarked vehicle.

       The State did not seek to introduce at trial any of the statements Batten made to police during the stop.


author: DOYLE, Chief Judge.

text:
    A17A0592.
    MILLSAPS v. THE STATE.
    (801 SE2d 63)
   DOYLE, Chief Judge.

After pleading guilty in municipal court to reckless driving, resisting an officer, and speeding, Harvest Adam Millsaps appeals from the denial of his motion to dismiss on double jeopardy grounds an accusation brought in superior court alleging separate charges of fleeing or attempting to elude an officer, misdemeanor obstruction of an officer, reckless driving, and speeding. He contends that the trial court erred because (1) the superior court prosecution was barred by OCGA § 16-1-7 (b), and (2) the subsequent offenses were “included in” the former offenses. For the reasons that follow, we affirm.

On appeal from the denial of a motion to dismiss on double jeopardy grounds, we review “the factual findings of the trial court under the standard of clear error, but this Court . . . independently examine[s] the trial court’s conclusions of law” de novo.

In this case, the relevant facts are undisputed, and the record shows that on May 22, 2014, the Bartow County Sheriff’s Office issued citations to Millsaps for several offenses occurring while Millsaps allegedly led police on a high-speed chase at speeds exceeding 100 miles per hour: fleeing or attempting to elude, reckless driving, and speeding. These offenses allegedly occurred in unincorporated Bartow County On May 23, 2014, the Emerson City Police Department issued traffic citations to Millsaps for related offenses committed within the city limits: reckless driving, resisting an officer, and speeding.

In March 2015, Millsaps appeared in the Emerson Municipal Court and pleaded guilty to the Emerson citations for reckless driving and resisting an officer, and the speeding offense merged with the reckless driving offense. In June 2015, the State filed an accusation in the Superior Court of Bartow County alleging separate occurrences of fleeing or attempting to elude an officer, obstruction, reckless driving, and speeding. Millsaps then moved to dismiss the accusation on double jeopardy grounds, and, following a hearing, the superior court denied the motion. Millsaps now appeals.

1. Millsaps contends that the trial court erred by concluding that his prosecution was not barred by OCGA § 16-1-7 (b). Under that Code section, when “several crimes arising from the same conduct are known to the proper prosecuting officer at the time of commencing the [first] prosecution and are within the jurisdiction of a single court, they must be prosecuted in a single prosecution except as provided in subsection (c) of this Code section,” which subsection does not apply here.

Millsaps’s appeal focuses on the requirement that the prosecuting officer “know” of the other crimes arising from the same conduct. Millsaps’s burden is to show in the record “that the prosecuting attorney .. . who handled the first prosecution had actual knowledge of the facts supporting the charge allegedly subject to a [double jeopardy defense],” i.e., the fleeing, obstruction, reckless driving, and speeding that occurred outside of the city limits of Emerson.

Millsaps relies on Billups v. State, which held that the prosecutor was expected, “[a]s an expert in the law,” to know of the several crimes arising from the facts and evidence actually known to her. Millsaps argues that the municipal court prosecutor had actual knowledge of all of the facts supporting the subsequent charges in superior court, so he argues that the trial court erred by concluding that the municipal court prosecutor did not know of the crimes arising from the same transaction for which he was punished in municipal court.

Millsaps’s argument is not borne out by the record. The evidence in the record is limited to the actual citations issued by the Emerson Police Department and the testimony of the municipal court prosecuting attorney. Those citations make no mention of conduct occurring outside of Emerson, and the prosecutor explained that the only way cases come to him is by way of a citation issued by the city Any state warrants or reports associated with this case did not and would not have gone to him. Therefore, even though each of the offenses at issue in this case arose from the same transaction, there is no evidence that the municipal prosecutor was aware of the factual basis for the offenses occurring outside of Emerson.

In this circumstance, the trial court correctly relied on State u. Hill, in which this Court reversed the grant of a plea in bar. In Hill, due to a clerical mistake, a citation for having an expired tag was somehow separated from related charges for driving under the influence (“DUI”) and following too closely. Hill pleaded guilty to the expired tag charge in recorder’s court, whereas the DUI and following-too-closely charges were bound over to the state court. Even though all of those charges arose from the same transaction, the expired-tag file available to the prosecutor in recorder’s court did not reveal to that prosecutor the facts supporting the other offenses (DUI and following too closely). Accordingly, this Court held that the trial court erred by concluding that the prosecutor in recorder’s court had actual knowledge of the facts supporting the other crimes pending in state court.

As in Hill, there is no evidence that the municipal court prosecutor had actual knowledge of the criminal conduct taking place outside of the city limits, however related that conduct was to the Emerson charges. Accordingly, Millsaps’s argument is without merit.

2. Millsaps also contends that the second prosecution is barred because those offenses were “included in” the offenses from the former prosecution. Millsaps relies on the “required evidence” test adopted in Drinkard v. Walker to argue that the subsequent offenses were included in the former offenses. But that analysis “does not apply unless the same conduct of the accused establishes the . . . multiple crimes.” Even though the offenses allegedly were part of the same police chase, the record before us is unclear as to the precise factual predicates of each offense, and it does not show that the superior court accusation is predicated on the same conduct as the municipal offenses. For example, the obstruction and resisting arrest charges each involve different, victims, so it is clear that one of those offenses is not included in the other. Also, it appears from the record that the two prosecutions focus on conduct occurring at different points in the police chase, and absent anything in the record clearly demonstrating otherwise, Millsaps has failed at this time to meet his burden to show that any of the superior court offenses were included in the municipal court offenses.

Decided May 8, 2017.

John R. Greco, for appellant.

Rosemary M. Greene, District Attorney, Suzanne Z. Brookshire, Assistant District Attorney, for appellee.

Judgment affirmed.

Miller, P. J., and Reese, J., concur.

       OCGA § 40-6-395 (a).

       OCGA § 16-10-24 (a).

       OCGA § 40-6-390 (a).

       OCGA § 40-6-181 (b) (5).

        Jenkins v. State, 294 Ga. 506, 508 (1) (755 SE2d 138) (2014).

       Subsection (c) provides: “When two or more crimes are charged as requiredby subsection (b) of this Code section, the court in the interest of justice may order that one or more of such charges be tried separately.”

       (Punctuation and emphasis omitted.) State v. Hill, 333 Ga.App. 785, 787 (777 SE2d 265) (2015), quoting Nicely v. State, 305 Ga. App. 387, 388 (1) (699 SE2d 774) (2010).

       228 Ga. App. 804 (493 SE2d 8) (1997).

       Id. at 808 (1) (c) (“The prosecutor in this case read the arrest report[,] and she actually knew all the facts and evidence of appellant’s conduct.”).

       333 Ga. App. 785 (777 SE2d 265) (2015).

       See id. at 789. See also Sellers v. State, 332 Ga. App. 14, 18 (1) (770 SE2d 31) (2015) (holding that a second felony prosecution was not barred because “[t]he disposition form [available in the first prosecution] was legally insufficient to show that the solicitor-general handling Sellers’s guilty plea in state court actually knew that there were felony [drug] offenses arising out of the same conduct as the misdemeanor traffic offense”).

        See Sellers, 332 Ga.App. at 18 (1). Compare Dean v. State, 309 Ga.App. 459, 461-462 (711 SE2d 42) (2011) (defense counsel advised prosecutor of other pending charges); Nicely, 305 Ga.App. at 390 (1).

       281 Ga. 211, 215 (636 SE2d 530) (2006).

       (Emphasis supplied.) Robertson v. State, 306 Ga.App. 721, 725 (4) (703 SE2d 343) (2010).

       See Culbreath v. State, 328 Ga. App. 153, 157 (2) (b) (i) (761 SE2d 557) (2014) (holding that two offenses against two different victims did not merge).


author: Andrews, Judge.

text:
    A17A0790.
    BILL v. THE STATE.
    (799 SE2d 28)
   Andrews, Judge.

Following a jury trial, Jason Anthony Bill was convicted of kidnapping, aggravated assault, aggravated sodomy, aggravated sexual battery, rape, and false imprisonment. Bill appeals, challenging several evidentiary rulings, the denial of his motion for mistrial, and the trial court’s jury instructions. Finding no error, we affirm.

Viewed favorably to the jury’s verdict, see Moorer v. State, 290 Ga. App. 216 (659 SE2d 422) (2008), the evidence shows that the victim, who is originally from El Salvador and speaks no English, lived at the same Cobb County apartment complex as Bill and worked at a nearby bar. Bill, a Cobb County Sheriff’s deputy, occasionally visited the bar.

On the evening of July 14, 2008, Bill entered the bar while the victim was working. He appeared angry and drunk, and the bar’s owner asked him to leave. Bill left but returned a short time later with a gun. He called the victim over, displayed his badge, and grabbed her arm. Bill then placed her in his truck and locked the doors.

At that point, the victim believed she was under arrest. Instead of taking her to jail, however, Bill drove to his apartment, where he handcuffed the victim and told her to “suck” his penis. When the victim refused, Bill pulled out his gun, and she complied. He then beat the victim with his hands and a belt, tore off her clothing, and tried to choke her with her brassiere. Bill also raped her and placed his finger in her anus. To prevent escape, Bill bound the victim’s hands to her feet with a rope and gagged her by stuffing a shirt in her mouth. Eventually, however, she managed to untie the rope and ran from Bill’s apartment, knocking on neighboring apartment doors for help.

An 11-year-old girl testified that she was watching television at her grandmother’s apartment just before midnight on July 14, 2008, when she heard a knock at the door. She opened the door and found the victim, who was naked, handcuffed, and appeared to have been beaten. The girl’s grandmother gave the victim a robe, and the police were called. Although the family could not understand the victim, who was speaking in Spanish, she pointed at a man on a motorcycle that was slowly circling the complex. When the police arrived, the grandmother’s boyfriend told the officers where the motorcycle had gone. The police found Bill next to the motorcycle and placed him under arrest. The victim subsequently identified Bill as her attacker.

Bill testified at trial, denying that he assaulted the victim. He asserted that he had previously paid the victim for sex and that although they had planned another sex-for-money encounter for July 14, 2008, they only kissed that night. The jury, however, found him guilty of kidnapping, aggravated assault, aggravated sodomy, aggravated sexual battery, rape, and false imprisonment.

1. In several claims of error, Bill argues that the trial court improperly excluded evidence that the victim had engaged in prostitution. Specifically, he sought to introduce testimony that (a) after the assault, someone had written “hooker” on her apartment door, and (b) a previous roommate had kicked her out of her residence because she was a prostitute and brought too many men to the home.

(a) Pursuant to former OCGA § 24-2-3 (a), the Rape Shield Statute applicable at the time of trial, evidence relating to a victim’s past sexual behavior generally is not admissible in a rape trial, either as direct evidence or on cross-examination of the victim or other witnesses. Past sexual behavior, however, may be admitted when the trial court finds that such behavior “directly involved the participation of the accused and... that the evidence expected to be introduced supports an inference that the accused could have reasonably believed that the complaining witness consented to the conduct complained of in the prosecution.” Former OCGA § 24-2-3 (b).

Bill does not argue that evidence of the victim’s prostitution demonstrates consent; in fact, he testified that no sexual relations occurred on July 14, 2008. Instead, he claims that the prostitution evidence was relevant to show that someone else could have been angry at the victim and caused her injuries. According to Bill, “any one of the men who came into contact with [the victim through her prostitution] could have been responsible for her physical and/or psychological injuries.”

But even if such evidence might be admissible under certain circumstances, despite the limitations of the Rape Shield Statute, the trial court found it irrelevant, speculative, and highly prejudicial here. We agree. Bill has pointed to nothing — other than rank speculation — linking the July 14, 2008 sexual assault to the victim’s prior prostitution with other men. There was no evidence that she was previously threatened or physically injured by any of these individuals. Simply put, Bill has drawn no nexus between her history of prostitution and the assault in this case. The trial court, therefore, properly excluded the evidence. See Moorer, supra at 219 (4) (evidence of victim’s prior prostitution not relevant to aggravated assault charge where defendant “failed to show any nexus whatsoever between the alleged prostitution and the conclusion that someone else could have inflicted the victim’s injuries”); Stargel v. State, 210 Ga. App. 619, 622 (5) (436 SE2d 786) (1993) (trial court properly excluded evidence where only “possible relevance was purely speculative”).

Moreover, even if some nexus had been shown, exclusion of this evidence was harmless. Although the trial court refused to admit certain prostitution-related testimony, it allowed Bill to assert that he had previously paid the victim for sex. Evidence of her prostitution, therefore, was before the jury, and further testimony regarding this behavior would have been cumulative. Accordingly, its exclusion provides no basis for reversal. See Brooks v. State, 313 Ga. App. 789, 794 (2) (b) (723 SE2d 29) (2012) (defendant not harmed by exclusion of evidence that was cumulative of defendant’s trial testimony).

(b) Bill claims that the trial court erred in preventing him from impeaching the victim with the prostitution-related evidence. According to Bill, the victim opened the door to cross-examination “concerning [her] prior acts of prostitution” when she denied having sex with him before July 14, 2008. It is true that evidence of prior sexual behavior may be admissible to impeach a victim’s contradictory trial testimony See Tidwell v. State, 306 Ga. App. 307, 311 (5) (701 SE2d 920) (2010). The “impeachment” evidence cited by Bill, however, does not relate to his prior contact with the victim. It involved general allegations that she had engaged in prostitution. Bill has not cited us to any place in the record where the victim denied being a prostitute; she simply stated that she had not had sexual relations with him. The general prostitution evidence, therefore, did not contradict or impeach the victim’s testimony, and Bill was not entitled to cross-examine her on it. See id.; see also former OCGA § 24-9-82 (“A witness may be impeached by disproving the facts testified to by him.”).

(c) Finally, Bill argues that portions of the prostitution-related evidence did not directly involve sexual behavior and thus fell outside of the Rape Shield Statute. As discussed above, however, the trial court properly concluded that the evidence was speculative, irrelevant, and subject to exclusion. Although Bill claims that this ruling unduly restricted his cross-examination of the State’s witnesses, a trial court “retain[s] broad discretion to impose reasonable limits on cross-examination to avoid harassment, prejudice, confusion, repetition, or irrelevant evidence.” Sanders v. State, 290 Ga. 445, 446 (2) (721 SE2d 834) (2012).

2. Bill contends that the trial court erred in excluding evidence that the victim had previously filed a “false” sexual assault report on behalf of a roommate, who was allegedly raped by her boyfriend. Before trial, the State moved in limine to exclude evidence of this report. Arguing that the rape report was “false” because the boyfriend was only convicted of battery, Bill asserted that the report was admissible to show that the victim had a history of fabricating sexual assault allegations. He further argued that she was motivated to file false reports because: (a) she was trying to secure a special visa available for crime victims; and (b) she wanted to obtain money by suing the apartment complex and Cobb County for failing to protect her.

The trial court concluded that Bill had not demonstrated a reasonable probability of falsity with respect to the prior report involving the victim’s roommate, rendering it inadmissible. See Clements v. State, 279 Ga. App. 773, 774 (2) (632 SE2d 702) (2006) (“Before evidence of previous false allegations of sexual abuse can be admitted, the trial court must determine outside the jury’s presence that a reasonable probability of falsity exists.”). After further discussion, however, Bill’s counsel made the following proposition:

What about this? What if we just don’t even — what if we don’t even tender [the report] as a prior false claim? Merely, that it is what it is. And the claims were made, and the results were what they were. Because, really, the core reason that we offer it is, as I said, to show — it’s part of her motive to fabricate. It’s part of this lawsuit that is coming into this trial, and it’s directly related to that. I certainly am not going to tell the jury that it was false, because I wasn’t there. I don’t know.

The trial court stated that it would allow the report to “[be] tendered in that fashion.” The record further shows that evidence regarding the prior sexual assault report, the victim’s civil lawsuit against various defendants, and her efforts to obtain a special visa was introduced at trial, forming the basis for a key defense argument — that the victim fabricated the assault allegations against Bill. Despite Bill’s claim to the contrary, therefore, the trial court admitted evidence of the prior report. And to the extent the defense was limited in labeling the prior report as “false,” that limitation was suggested and agreed to by defense counsel. This claim of error, therefore, provides no basis for reversal. See Gorman v. State, 318 Ga.App. 535, 540 (4) (734 SE2d 263) (2012) (“One cannot complain of a result he procured or aided in causing, and induced error is not an appropriate basis for claiming prejudice.”) (citation and punctuation omitted).

3. Next, Bill argues that the State improperly called the victim as a rebuttal witness to bolster her prior testimony. After the defense rested its case, the prosecution briefly re-called the victim to ask her whether she had: (a) engaged in sexual relations with Bill before July 14, 2008; (b) visited his apartment prior to July 14, 2008; (c) voluntarily entered his apartment on July 14, 2008; and (d) agreed to have sex with him for money on that date. To each question, the victim replied, “no.” According to Bill, this testimony did not constitute rebuttal because it “was not offered to refute or explain any of the Defendant’s evidence.”

“A trial court’s rulings concerning the scope of rebuttal testimony are subject to review only for an abuse of discretion.” Galvan v. State, 330 Ga.App. 589, 594 (2) (768 SE2d 773) (2015). In this case, the trial court concluded that the State re-called the victim to rebut evidence presented by the defense, including testimony from Bill that he had previously had sex with the victim and that she willingly came to his apartment on July 14, 2008, to engage in sex for money. We find no error. Atrial court may “allow relevant evidence during rebuttal even if such evidence tends to bolster the State’s case more than to directly impeach defense evidence.” Id. (citation and punctuation omitted). The trial court did not abuse its discretion in permitting the victim’s rebuttal testimony. See id.

4. Evidence at trial showed that Bill, an Iraq War veteran, had a drinking problem. To help explain his alcohol use, Bill sought to introduce testimony that his best friend had been killed in Iraq. The trial court excluded the evidence, and Bill challenges this ruling on appeal, asserting that the trial court erred in limiting relevant testimony.

We disagree. Evidence regarding the death of Bill’s friend shed no light on the July 14,2008 assault or the fact that Bill had an alcohol problem and was drinking that night. The trial court did not abuse its discretion in finding such evidence irrelevant. See Chambers v. State, 308 Ga. App. 748, 751 (1) (708 SE2d 651) (2011) (applying abuse of discretion standard); former OCGA § 24-2-1 (“Evidence must relate to the questions being tried by the jury and bear upon them either directly or indirectly. Irrelevant matter should be excluded.”). Moreover, Bill testified that he served two tours of duty in Iraq and began drinking more heavily when he returned from his second tour, raising a link between his military service and his alcohol use. Given this evidence, we find it highly probable that the trial court’s decision to exclude additional testimony regarding Bill’s war experience did not contribute to the verdict. Even if the trial court erred in excluding the testimony, therefore, the error was harmless. See McWilliams v. State, 280 Ga. 724, 727 (4) (632 SE2d 127) (2006).

5. The trial court permitted the State, over objection, to cross-examine Bill about his failure to offer evidence corroborating his claim that he had communicated with the victim via cell phone prior to July 14, 2008. When Bill responded that he had hoped the State would present such evidence, the prosecutor retorted: “I didn’t know before today, or before yesterday, that you and [the victim] had some prior relationship.” Defense counsel objected and moved for a mistrial, asserting that the prosecutor had improperly testified and commented on Bill’s right to remain silent. Although the trial court denied the motion for mistrial, it sustained the objection and gave the following curative instruction to the jury:

Ladies and gentlemen, I sustained an objection by the Defense, and I’ll instruct you that the State should not comment on evidence or on what it knows or does not know from the evidence. And so I’ll ask you to disregard the last question that was asked by the State.

Bill now claims that the trial court erred in denying his motion for mistrial. The record shows, however, that he did not object to the curative instruction or renew his motion after the trial court gave it. “It is well settled that where a defendant objects and moves for mistrial and the trial court denies the motion but takes some corrective action, if the defendant is dissatisfied with that action, he must renew the objection or motion.” Gaines v. State, 339 Ga. App. 527, 529 (2) (792 SE2d 466) (2016) (citations and punctuation omitted). This claim of error, therefore, has been waived. See id.; Mauldin v. State, 313 Ga. App. 228, 234 (3) (a) (721 SE2d 182) (2011).

Decided April 20, 2017

Reconsideration denied May 9, 2017

The Merchant Law Firm, Ashleigh B. Merchant, for appellant.

D. Victor Reynolds, District Attorney, John R. Edwards, Assistant District Attorney, for appellee.

6. Finally, Bill argues that the trial court improperly commented on the evidence by charging the jury that “[vjaginal or anal trauma and physical injury are not constituent elements of the criminal offense of rape or aggravated sexual battery” The cited charge, however, did not comment on the evidence produced at trial. Rather, it accurately stated that physical harm is not needed to establish rape or aggravated sexual battery See Skipper v. State, 257 Ga. 802, 804 (1) (b) (364 SE2d 835) (1988) (“Other than the penetration of the female sex organ by the male sex organ, the infliction of physical injury is not an element of the offense of rape.”); Lee v. State, 306 Ga. App. 144, 145 (1) (701 SE2d 582) (2010) (physical injury need not be shown to prove aggravated sexual battery).

“The only requirement regar ding jury charges is that the charges, as given, were correct statements of the law and, as a whole, would not mislead a jury of ordinary intelligence.” Sims v. State, 296 Ga. App. 461, 464 (3) (675 SE2d 241) (2009) (citation and punctuation omitted). The court’s charge correctly stated the law and was not misleading. Accordingly, the trial court did not err in giving the instruction. See id.; Corbin v. State, 305 Ga. App. 768, 771 (2) (700 SE2d 868) (2010).

Judgment affirmed.

Ellington, P. J., and Rickman, J., concur.

       Bill was tried in February 2011, before Georgia’s new Evidence Code took effect in 2013. The current Rape Shield Statute is codified at OCGA § 24-4-412.


author: Reese, Judge.

text:
    A17A0019.
    In re LIONEL JOHN WILLIAMS et al.
    (800 SE2d 34)
   Reese, Judge.

In this closed adoption case, the potential adoptive parents of a child appeal from the trial court’s order to provide notice of the pending adoption proceedings to the child’s alleged biological father. The Appellants allege that the lower court: (1) improperly disregarded the legal effect of an underlying termination order; (2) failed to recognize and apply the purpose and intent of the Georgia Putative Father Registry; and (3) failed to recognize the legal distinction between the notice requirements for alleged biological fathers and legal fathers. For the reasons set forth infra, we reverse.

The record shows that the subject child was born on November 1, 2015. The child’s biological mother relinquished her parental rights in favor of a licensed child-placement agency, which facilitated the adoptive placement of the child with the Appellants. In her affidavit, which she provided pursuant to OCGA § 19-8-26 (h), the biological mother did not identify her child’s biological father. She stated that she and the biological father were not married, explaining that the child was the result of a one-time sexual encounter. The child-placement agency searched the Georgia Putative Father Registry and found no registrant who had asserted a paternal interest in the child. On January 12, 2016, the trial court entered an order terminating the parental rights of the biological mother and any unknown, unnamed biological father.

During the week of January 25, 2016, a man contacted the agency and “verbally claimed paternity of the child.” According to the Appellants, he refused to provide his address and refused to meet with the agency to discuss his claim. When the Appellants filed their petition to adopt on February 2, 2016, their counsel informed the trial court that an alleged biological father had recently contacted the agency. The trial court entered a sua sponte order on February 4, 2016, directing the Appellants to obtain the alleged biological father’s contact information and serve him with a copy of the termination order and a copy of the adoption petition. The trial court’s order also stated that the alleged biological father had 15 days from the date of service to file a motion to set aside the termination order. This appeal followed.

“[I]n an adoption case, the trial judge sits as both judge and jury and is vested with a broad range of legal discretion.” On appeal, “we construe the evidence to uphold the trial court’s findings and judgment and affirm if there is any evidence to support the findings.” If there are questions of law, however, we apply a de novo standard of review. With these guiding principles in mind, we turn now to the Appellants’ specific claims of error.

1. The Appellants argue that the trial court improperly disregarded the legal effect of the underlying termination order. We agree.

OCGA § 15-11-283 (c) provides as follows:

If the identity of the biological father whose rights are sought to be terminated is not known to the petitioner or the petitioner’s attorney and the biological father would not be entitled to notice in accordance with subsection (a) of this Code section, [] then it shall be rebuttably presumed that he is not entitled to notice of the [termination] proceedings. The court shall be authorized to require the mother to execute an affidavit supporting the presumption or show cause before the court if she refuses. Absent evidence rebutting the presumption, no further inquiry or notice shall be required by the court, and the court may enter an order terminating the rights of the biological father.

In this case, the mother executed an affidavit in which she swore under oath that she and the biological father had a one-time encounter that resulted in the pregnancy and that the identity of the biological father was unknown to her. Further, there is no evidence that any man claiming to be the biological father provided any financial support for the mother or child, lived with the child, or made any attempts to legitimate the child before the court issued the termination order. Finally, a certificate of a search of the Georgia Putative Father Registry was filed that indicated that no man had acknowledged paternity of the child or indicated possible paternity of a child born to the child’s mother. Under these circumstances, the trial court properly concluded that the unknown biological father was not entitled to notice of the termination proceedings, pursuant to OCGA § 15-11-283 (c).

Once the trial court terminated the rights to “any unknown, unnamed biological father” of the child, the alleged biological father who subsequently contacted the agency, was no longer “entitled to notice of proceedings for the adoption of his . .. child by another,” nor did he have “any right to object to the adoption or otherwise to participate in such proceedings.” Consequently, because the termination order in this case has not been set aside, the alleged biological father was not entitled to any notice of the adoption proceedings. It follows that the trial court erred in ordering the Appellants to provide him with such notice through the documents listed in its February 4, 2016 order.

2. In light of our decision in Division 1, supra, the Appellants’ remaining enumerations of error are moot.

Judgment reversed.

Doyle, C. J., and Miller, P. J., concur.

Decided May 9, 2017.

Josie Redwine, for appellants.

James B. Outman, amicus curiae.

       In 2016, the Georgia General Assembly revised some of the relevant adoption statutes. See Ga. L. 2016, pp. 87, 89, § 2; Ga. L. 2016, pp. 304, 305-312, §§ 3, 8, 14, 19. The revisions became effective on July 1, 2016, and do not apply to this case.

       See OCGA § 19-11-9 (d) (1).

       The Georgia Putative Father Registry provides a method for a person claiming to be the biological father, but is not the legal father, of a child to confidentially identify himself. See OCGA § 19-11-9 (d), (e). See also former OCGA § 19-8-13 (h) (2015) (“X petition for adoption regarding a child ... whoha[s] a living biological father who is not the legal father and who has not surrendered his rights to the child . . . shall include a certificate from the putative father registry disclosing the name, address, and social security number of any registrant acknowledging paternity . . . for a period beginning no later than two years immediately prior to the child’s date of birth.”).

       Recognizing the importance of its order, the trial court issued a Certificate of Immediate Review the same day. This Court granted the Appellants’ Application for Interlocutory Review.

         Park v. Bailey, 329 Ga. App. 569, 571 (765 SE2d 721) (2014) (punctuation and footnote omitted).

       Id. (punctuation and footnote omitted).

       Id.

       Under OCGA § 15-11-283 (a), notice of termination proceedings shall be served on a biological father who has not surrendered his parental rights and:
      (1) Whose paternity has been previously established in a judicial proceeding to which the father was a party;
      (2) Whose identity is known to the petitioner or the petitioner’s attorney;
      (3) Who is a registrant on the putative father registry and has acknowledged paternity of the child named in the petition brought pursuant to this article;
      (4) Who is a registrant on the putative father registry who has indicated possible paternity of the child named in the petition brought pursuant to this article that was born to such child’s mother during a period beginning no more than two years immediately preceding such child’s date of birth; or
      (5) Who, if the court finds from the evidence including but not limited to the affidavit of the mother of a child named in the petition brought pursuant to this article, has performed any of the following acts:
      (A) Lived with such child;
      (B) Contributed to such child’s support;
      (C) Made any attempt to legitimate such child; or
      (D) Provided support or medical care for such mother either during her pregnancy or during her hospitalization for the birth of such child.

       See OCGA § 15-11-283 (a).

       OCGA § 15-11-261 (b). See OCGA § 15-11-261 (a) (“An order terminating the parental rights of a parent shall be without limit as to duration and shall divest the parent and his or her child of all legal rights, powers, privileges, immunities, duties, and obligations with respect to each other, except: (1) The right of such child to receive child support from his or her parent until a final order of adoption is entered; (2) The right of such child to inherit from and through his or her parent. The right of inheritance of such child shall be terminated only by a final order of adoption; and (3) The right of such child to pursue any civil action against his or her parent.”).

       See generally Howell Mill/Collier Assoc. v. Gonzales, 186 Ga.App. 909, 910 (1) (368 SE2d 831) (1988) (physical precedent only) (“[A] judgment which is not void on its face is valid until it is set aside.”).

        Richardson v. Phillips, 302 Ga. App. 305, 310-311 (2) (690 SE2d 918) (2010) (“A case is considered moot if the parties’ dispute has been resolved, such that the issues involved have become academic or dead.”) (citations and punctuation omitted).