author: RAY, Judge. MILLER, Presiding Judge,

text:
    A12A1343.
    MORDICA v. STATE OF GEORGIA.
    (736 SE2d 153)
   RAY, Judge.

Following a hearing, the trial court granted the State’s petition for forfeiture of $63,339 seized from Jeffrey Mordica’s vehicle following a traffic stop. Mordica appeals, arguing that the State’s complaint for forfeiture failed to comply with statutory pleading requirements, and that the trial court erred in admitting uncertified criminal records into evidence, in admitting a certain police officer as an expert in bulk drug and cash smuggling, and in finding that the funds were subject to forfeiture. Finding no error, we affirm.

Viewed with all inferences in favor of the trial court’s findings, the record reveals that, on June 7, 2011, Officer Chris Webster of the Lamar County Sheriff’s Office was patrolling interstate traffic, and upon noticing Mordica’s car go by with excessively tinted windows, he initiated a traffic stop of the vehicle. As he approached the vehicle, the officer noted that the car emitted the “[o]verwhelming odor of some type of air freshener.” Using a window tint meter, the officer determined that the tint was 12 percent, in violation of Georgia law. Officer Webster asked Mordica for his license and insurance information and then, noting his Florida license plate, asked where he was going. Mordica responded that he was on his way to buy a restaurant in Atlanta, but that he could not remember the name of the restaurant. Upon further questioning, Mordica then clarified that he was intending only to lease the restaurant and that he had learned about the opportunity on the internet. During this conversation, the officer noticed that Mordica was demonstrating an “unusual level of nervousness” and that he could see Mordica’s carotid artery “just pounding in his neck.”

Based upon his conversation with Mordica, the officer “felt like [Mordica] was engaged in some type of criminal activity” and that “something wasn’t right” with him. The officer then returned to his patrol car and ran Mordica’s license. At this point, Officer Webster received a call from another officer located up the road asking for assistance in taking a federal fugitive into custody. Officer Webster then told Mordica that he would be issued a written warning, but asked Mordica to drive about 350 yards up the road so that Officer Webster could assist the other officer first. Mordica complied, and after assisting the other officer, Officer Webster instructed Mordica to step out of the car and asked if he had any contraband or large amounts of money in the vehicle. After Mordica responded that he did not, Officer Webster asked if he could search the vehicle. Mordica declined, and Officer Webster then informed him that he would be using the canine in his patrol car to do a free-air sniff. This resulted in a positive response for odor by the dog. At that point, Officer Webster detained Mordica, placed him in handcuffs, and again asked if there was anything suspect in the car. Mordica then told the officer that he had about $60,000 hidden in the car. Officer Webster then searched the car and found $63,339 in cash, divided into $1,000 bundles secured with rubber bands, as well as three cell phones.

Officer Webster asked Mordica about his finances, and Mordica replied that he had worked for a restaurant for the past two years and made about $500 a week, that he had received $6,700 from a legal settlement, and had recently taken out a $10,000 business loan. Officer Webster then ran a criminal report and found that Mordica had a criminal history with several drug-related convictions.

It is undisputed that the police found no drugs in the car or on Mordica’s person and that Mordica was not charged with any crime.

The State filed a forfeiture complaint against the $63,339 and served process on Mordica. Mordica answered and asserted a claim to the currency, which he contended was derived from lawful means, including the proceeds from his ownership in three businesses, and not from a violation of the Georgia Controlled Substances Act. After a hearing, the trial court entered an order granting the State’s petition for forfeiture of the funds. Mordica appeals.

1. In several enumerations, Mordica contends that the trial court erred in finding that the funds seized from his vehicle were subject to forfeiture. Specifically, Mordica argues that the following findings by the trial court were erroneous: that Officer Webster’s request that Mordica drive up the road did not impermissibly extend the traffic stop, that the canine free-air sniff was conducted during a legal detention, and that the money found in Mordica’s car was intended for use in a drug transaction. Mordica filed a motion to suppress the contraband on these issues, which the trial court treated as a motion in limine, and denied. Finding that the trial court did not err, we affirm.

Under the Georgia Controlled Substances Act, all property which is “directly or indirectly, used or intended for use in any manner to facilitate a violation ... of the laws of the United States or any of the several states relating to controlled substances... or any proceeds derived or realized therefrom” is subject to forfeiture. An action for forfeiture is a civil proceeding, and “[t]he State, as plaintiff, was required to prove its case by a preponderance of the evidence rather than by the higher burden of proof applicable to criminal cases.” On appeal from an order of forfeiture, the trial court’s findings of fact will not be reversed unless clearly erroneous, and due regard must be given to the trial court’s opportunity to judge the credibility of the witnesses who appeared before it. This means that we will not disturb a trial court’s findings if any evidence exists to support them. “This is true even where, as in the case sub judice, such findings are based upon circumstantial evidence and the reasonable inferences which flow therefrom.”

(a) Neither party disputes that Officer Webster was authorized to conduct a brief investigative traffic stop when he observed Mordica’s illegally tinted windows. Rather, Mordica argues that the traffic stop was impermissibly prolonged because although Officer Webster testified that it takes only two or three minutes to write a traffic warning under normal circumstances, Mordica’s traffic stop was extended to about twenty minutes. We disagree.

It is well settled that

[t]he investigative stop of a vehicle cannot be unreasonably prolonged beyond the time required to fulfill the purpose of the stop----Once an officer’s purpose for conducting a traffic stop has been fulfilled, the continued detention of the vehicle and its occupants is constitutional only if the officer has a reasonable articulable suspicion of other illegal activity or when the valid traffic stop has de-escalated into a consensual encounter.

Here, the trial court correctly concluded that the first delay in issuing the warning, when Officer Webster assisted another officer, was caused by exigent circumstances and did not constitute an unlawful detention. “We will defer to the trial court’s determination that the prolongation of a detention was reasonable or unreasonable unless the facts are truly egregious.” While Officer Webster was running a license and warrant check,* he received a call from a nearby officer asking for assistance in taking a federal fugitive into custody. Officer Webster then asked Mordica if would consent to driving about 350 yards up the road so that the officer could provide the needed assistance before issuing the warning, and Mordica consented. Officer Webster had not yet issued the warning to Mordica at this time, and the time required for Officer Webster to assist the other officer was less than twenty minutes, as Officer Webster testified that the entirety of Mordica’s traffic stop lasted only twenty minutes. In light of the totality of the circumstances, the trial court did not abuse its discretion in finding that Mordica’s detention was not impermissibly prolonged by this first delay.

Further, the trial court correctly concluded that the second delay in issuing the warning, when Officer Webster sought Mordica’s consent to search the car and then used his drug dog was “justified by the reasonable articulable suspicion.” After returning to the traffic stop, Officer Webster asked Mordica to step out of his car so that a warning could be issued. As discussed above, as soon as Officer Webster approached the vehicle, he noticed that the vehicle emitted a strong scent of air freshener, that Mordica exhibited unusual nervousness, and although Mordica explained that he was on his way from Tallahassee to Atlanta in order to purchase a restaurant, he could not remember the restaurant’s name. Although “extreme nervousness alone does not constitute a valid reason for detention based on suspicion of criminal activity,” such behavior combined with the strong scent of air freshener and Mordica’s strange explanation regarding the reason for his trip “constituted evidence on which the trial court could conclude that under the totality of the circumstances, [Officer Webster] had a reasonable, articulable suspicion of criminal activity justifying a brief detention.”

Because of the above indicators and the fact that Mordica’s nervousness did not diminish after learning that he was only to receive a warning, Officer Webster asked consent to search the vehicle, and Mordica declined. Based upon the totality of the circumstances, Officer Webster was authorized to utilize his drug dog to conduct a free-air sniff at that time. There was no wait as the officer had the dog in his vehicle. Moreover, the continued detention to perform the free-air sniff was minimal given that the drug dog was already in the officer’s patrol car. Once the dog alerted on the outside of the car, Officer Webster had probable cause to believe that contraband would be found inside and was authorized to conduct a search.

(b) Mordica asserts that the trial court erred in determining that the currency found in Mordica’s vehicle was used or intended for use in a drug transaction. We disagree.

Although there were conflicts in the evidence presented at trial, the trial court was authorized by the evidence to find that the money seized from Mordicáis vehicle was directly or indirectly used to facilitate the possession or sale of illegal controlled substances. As stated above, this Court will not disturb a trial court’s findings of fact if any evidence exists to support them, even if such findings are based wholly upon circumstantial evidence.

Citing only persuasive authority, Mordica argues that because no drugs were found in the car and no criminal charges were filed, the State’s circumstantial evidence was insufficient to connect the funds to illegal activity. Although Mordica was not convicted of any crime and no drugs were found in the car, the following circumstantial evidence supports the trial court’s determination that the money found in the car was connected to a violation of controlled substances laws: Lieutenant Chad Payne, who was admitted as an expert in drug and bulk cash smuggling, testified that bundling large amounts of cash in $1,000 increments was common in drug transactions, there was testimony that it is common for someone engaged in the drug trade to possess multiple cell phones, Officer Webster’s drug dog gave a positive alert indicating that a controlled substance had recently been in the vehicle, Mordica had spent over 12 of the past 25 years incarcerated for drug-related offenses, and the trial court found that Mordica’s explanations for how he obtained the funds and why they were in his car at the time of the traffic stop were not credible. Although we do not evaluate evidence, many courts have found that “a positive canine alert for narcotics on currency does not necessarily suggest that the money was involved in a drug transaction, as much of the currency in circulation contains narcotics residue that a trained dog can detect,” the drug dog’s positive alert was not the only circumstantial evidence connecting the money to controlled substances.

2. Mordica argues that the State’s complaint for forfeiture failed to comply with the statutory pleading requirements of OCGA § 16-13-49. Although Mordica raised this defense in his secondamended answer, he did not seek, and the trial court did not provide, a ruling on this issue. It is well settled that “this [C]ourt may not address issues on appeal which were not addressed by the trial court, because this [C]ourt is a court for the correction of errors and it does not consider matters which were not raised and ruled on by the trial court.” Without a ruling by the trial court on this particular issue, there is nothing for this Court to review upon appeal.

3. Mordica contends that the trial court erred in qualifying Lieutenant Chad Payne as an expert in drug and cash smuggling, arguing that the State failed to lay a proper foundation required to qualify Lieutenant Payne as an expert because it failed to elicit testimony from Lieutenant Payne about his training, experience, or expertise as to drugs or bulk cash smuggling. Although Mordica objected at the hearing to the trial court qualifying Lieutenant Payne as an expert, his objection was solely on the basis that although Lieutenant Payne “may be an expert, . . . he’s also an active participant in this investigation.” Because Mordica did not object to the qualification of Lieutenant Payne as an expert on the same grounds he asserts on appeal, he has not preserved this issue for appeal. Accordingly, this enumeration of error presents nothing for our review.

4. Mordica contends that the trial court erred in allowing the State’s attorney to prove Mordica’s prior convictions by a report provided by the Georgia Crime Information Center (“GCIC”) when the report was neither certified nor introduced with a proper foundation. Finding that Mordica did not properly preserve this issue for appeal, we disagree.

We have determined that OCGA § 24-3-17 (b) “allows for the introduction of records obtained from any terminal lawfully connected to the GCIC, without the need for additional certification.” However, “a witness must lay the foundation for the admission of the [uncertified GCIC] printout” by stating that it was, indeed, pulled from a lawfully connected GCIC terminal before it can be admitted into evidence.

At the hearing, Officer Webster testified that he utilized the GCIC database to determine that Mordica had a history of drug convictions beginning in 1984, and that he had spent more than 12 of the past 25 years in prison. The State then admitted the GCIC computer printout detailing those convictions into evidence. After Mordica’s counsel objected to the admission of the GCIC printout, the State’s counsel accurately stated the law that GCIC printouts are admissible “as long as the officer can state that he ran the history on a GCIC terminal here in Georgia.” However, the State never elicited testimony from Officer Webster that he had, in fact, pulled the GCIC report from such a terminal.

Despite the absence of this testimony, Mordica objected to the admission of this GCIC printout solely on the basis that the State should have presented certified copies of the convictions from both Georgia and other jurisdictions. However, on appeal, Mordica now objects on the basis that the State failed to meet the foundational requirements of OCGA § 24-3-17 (b) because “the officer never testified that the GCIC was pulled from a terminal lawfully connected to the GCIC.” Mordica’s failure to specifically object to the lack of this foundational requirement at the hearing is fatal to this objection as he has not preserved the issue for us on appeal.

Judgment affirmed.

Branch, J., concurs. Miller, P. J., concurs specially.

MILLER, Presiding Judge,

concurring specially.

While I agree with the majority’s final decision, I write separately in this forfeiture case because of concerns about the fairness of forfeiting an individual’s money where no criminal charges were filed, no drugs were found, and the trial court’s decision rested upon consideration of the individual’s prior drug convictions. In Georgia, forfeiture cases typically involve the presence of some amount of drugs. Here, no drugs were present in the vehicle. Therefore, the link between the money and suspected illegal drug activity was attenuated and difficult to prove. See Baker v. State of Ga., 269 Ga. App. 722, 727 (605 SE2d 126) (2004).

I disagree with the majority that Mordica’s prior convictions could be considered for the purpose of determining whether the money was connected to illegal drug activity. Evidence of prior bad acts is not admissible to show a propensity to commit criminal acts in general or a certain type of crime in particular. See OCGA § 24-2-2; see also King v. State, 230 Ga. App. 301, 303-304 (1) (496 SE2d 312) (1998).

Nevertheless, there is some evidence to support the trial court’s finding in this case. Notably, Mordica was in possession of a large sum of money, which is strong evidence of narcotics trafficking. See United States v. $242,484 in United States Currency, 389 F3d 1149, 1161 (IV) (B) (1) (11th Cir. 2004). Additionally, the fact that the currency was packaged in bundles wrapped with rubber bands is probative of a connection to illegal activity, given the law enforcement officer’s testimony that, in his experience, individuals engaged in drug activity commonly package money in that manner. See $242,484, supra, 389 F3d at 1161-1162 (IV) (B) (2) (noting that the manner of bundling a large amount of currency in rubber bands may be indicative of connection to drug activity). More importantly, the evidence showed that the drug dog alerted to the vehicle. Additionally, Mordica initially told the police officer that he did not have cash in the vehicle, but later confirmed that he did after the drug dog’s alert. Mordica’s inconsistent statements about the currency and the purpose of his trip, along with the drug dog’s alert to the vehicle, were probative of possible illegal drug activity. See id. at 1164-1166 & n. 10 (IV) (B) (7)-(ll) (observing that conflicting stories and a positive drug dog alert to currency are probative facts in determining whether the currency has a connection to illegal drug activity). Consequently, I agree with the majority that the evidence, although entirely circumstantial, was sufficient to support the trial court’s finding that the currency was connected to illegal drug activity.

Decided November 30, 2012

William K. Boddie, Jr., for appellant.

Richard G. Milam, District Attorney, Jason S. Johnston, Assistant District Attorney, for appellee.

       Mordica additionally argues that the trial court’s finding that the funds were derived from an illegal source was clearly erroneous because Mordica provided documents intending to show his involvement in legitimate business ventures. However, Mordica did not support this argument with any citation to legal authority. Accordingly, it has been deemed abandoned. See Court of Appeals Rule 25 (c) (2).

       Because a forfeiture proceeding is “quasi-criminal in nature, the exclusionary rule has been held to apply.” (Citation omitted.) Pitts v. State of Ga., 207 Ga. App. 606, 607 (1) (428 SE2d 650) (1993). Accordingly, “if the search was illegal, it would render the evidence produced by the search tainted and inadmissible.” Id.

       OCGA § 16-13-20 et seq.

       OCGA § 16-13-49 (d) (2), (3).

       (Citations and punctuation omitted.) Bettis v. State of Ga., 228 Ga. App. 120, 121 (491 SE2d 155) (1997).

       Id.

       (Citation and punctuation omitted.) Id.

        Wilson v. State, 318 Ga. App. 59, 62 (1) (733 SE2d 365) (2012) (“[A]n officer may conduct a brief investigative stop ... if the officer observes a traffic offense”) (punctuation and footnotes omitted). See OCGA § 40-8-73.1.

       (Footnote omitted.) Wilson, supra at 63 (2). Accord Salmeron v. State, 280 Ga. 735, 736 (1) (632 SE2d 645) (2006).

       (Citation and punctuation omitted.) State v. Long, 301 Ga. App. 839, 841, n. 10 (689 SE2d 369) (2010).

       See Harris v. State, 269 Ga. App. 48, 50 (603 SE2d 476) (2004) (“an officer conducting a routine traffic stop may request and examine a driver’s license and vehicle registration and run a computer check on the documents”) (punctuation and footnote omitted).

       See State v. Grant, 195 Ga. App. 859, 863 (3) (394 SE2d 916) (1990) (“20-minute detention of an automobile driver did not exceed the bounds of an investigative stop”).

       (Citations omitted.) Jones v. State, 259 Ga. App. 849, 852 (578 SE2d 562) (2003).

       Id.

       See Rowe v. State, 314 Ga. App. 747, 752 (2) (b) (ii) (725 SE2d 861) (2012). Accord State v. Whitt, 277 Ga. App. 49, 51-53 (625 SE2d 418) (2005) (second detention reasonable where, inter alia, driver appeared to be nervous and did not know where he was going).

        Wilson, supra at 63 (2) (delay of ten minutes between traffic stop and sniff of the vehicle by a narcotic-detection dog was justified by reasonable suspicion of other illegal activity).

        Jones, supra at 851 (1).

       See OCGA § 16-13-49 (d) (2), (3).

        Bettis, supra.

       (Citations omitted.) Baker v. State of Ga., 269 Ga. App. 722, 727, n. 20 (605 SE2d 126) (2004).

       (Citation and punctuation omitted.) Morman-Johnson v. Hathaway, 312 Ga. App. 300, 301 (1) (718 SE2d 132) (2011).

        Wellons, Inc. v. Langboard, Inc., 315 Ga. App. 183, 186 (1) (726 SE2d 673) (2012).

       (Citation and punctuation omitted.) Jackson v. State, 228 Ga. App. 877, 877-878 (1) (492 SE2d 897) (1997).

       (Footnote omitted.) Smith v. State, 247 Ga. App. 516, 517 (1) (544 SE2d 208) (2001). Accord Worthy v. State, 252 Ga. App. 852, 853 (1) (557 SE2d 448) (2001).

       See Worthy, supra at 853 (1) (although defendant objected to the admission of the GCIC printouts at trial on the basis of “lack of foundation,” this objection was not specific enough to allow the trial court to rule on the issue and preserve it for appeal because “ ‘lack of foundation’ has no single defined meaning, an obj ection of ‘lack of foundation’ generally is of little or no use to a trial judge”) (punctuation andfootnote omitted). Compare Tipton v. State, 213 Ga. App. 764, 765 (2) (445 SE2d 860) (1994) (conviction reversed because the State did not lay an adequate foundation for introduction of GCIC when prosecutor merely represented in his argument that the record was obtained from such a lawfully connected terminal and did not elicit the necessary testimony from the witness).

       As in Georgia’s forfeiture proceedings, the federal forfeiture law requires the federal government to prove by a preponderance of the evidence that the defendant’s property is subject to forfeiture. See United States v. $291,828 in United States Currency, 536 F3d 1234, 1236-1237 (11th Cir. 2008).

       In Baker, this Court noted that “a positive canine alert for narcotics on currency does not necessarily suggest that the money was involved in a drug transaction, as much of the currency in circulation contains narcotics residue that a trained dog can detect.” (Citations omitted.) Baker, supra, 269 Ga. App. at 726, n. 20. To support this statement, the Court in Baker relied upon the Sixth Circuit Court of Appeals decision in United States v. $5,000 in United States Currency, 40 F3d 846, 849-850 (III) (6th Cir. 1994). More recently, however, the Sixth Circuit called into question this “currency contamination theory” and referred to newer research indicating that trained detection dogs likely “will alert to currency only if it has been exposed to large amounts of illicit cocaine within the very recent past.” (Citation and punctuation omitted.) United States v. Terry, 522 F3d 645, 650, n. 5 (II) (6th Cir. 2008). The trial court was authorized to find that the drug dog’s alert in this case was probative of whether the currency had a connection to illegal drug activity. See $242,484, supra, 389 F3d at 1166 (TV) (B) (11) (holding that without evidence supporting a “currency contamination theory,” a drug dog’s alert is a probative fact of a possible connection to illegal drug activity).


source: Caselaw Access Project

author: PHIPPS, Presiding Judge.

license: Public Domain

text:
    A12A1348.
    JMJ PLUMBING et al. v. CUDIHY.
    (735 SE2d 148)
   PHIPPS, Presiding Judge.

We granted the application for discretionary appeal of JMJ Plumbing and its workers’ compensation insurer, United Business Insurance (collectively, “JMJ”). JMJ appeals from the superior court’s order reversing the award of the appellate division of the State Board of Workers’ Compensation (the “Board”), which had reversed the award of the administrative law judge (“ALJ”); the ALJ had awarded disability income and medical benefits to Derek Cudihy. JMJ contends that the superior court erred in reversing the Board’s award when there was some evidence to support it and the Board had committed no legal error. We agree and reverse the decision of the superior court.

“In resolving this appeal, we must keep in mind the various standards of review applicable in this case. The [Board] is authorized to review the evidence adduced before the ALJ, weigh that evidence, and assess witness credibility.” The Board is authorized to “draw factual conclusions different from those reached by the ALJ who initially heard the dispute.”

If the [Board] determines that the preponderance of evidence supports the ALJ’s decision, it will accept and affirm that award. But, if the [Board] concludes that the award does not meet the applicable evidentiary standards, it may substitute its own alternative findings for those of the ALJ, and enter an award accordingly. When reviewing awards in workers’ compensation cases, both the appellate court and the superior court must construe the evidence in the light most favorable to the party prevailing before the [Board], It is axiomatic that the findings of the [Board] . . . , when supported by any evidence, are conclusive and binding.

“[N] either the superior court nor this court has any authority to substitute itself as a fact finding body in lieu of the Board.”3 If there is any evidence to support a finding of the Board, the superior court may not reverse the award, unless errors of law were committed. Unlike the Board, which may weigh the evidence and substitute its own alternative findings for those of the ALJ, a superior court reviewing a decision of the Board performs a more limited review. The Board’s decisions based on erroneous legal theories are subject to the de novo standard of review. 89The question of whether the superior court applied the correct legal standard in evaluating the evidence is one of law, which this court reviews de novo. Every presumption in favor of the Board’s award is indulged.

Viewed in the light most favorable to JMJ as the party prevailing before the Board, the record shows that Cudihy worked for JMJ as a plumber. On Tuesday, September 2,2008, while performing a digging task on the job, Cudihy felt a sharp pain in his back that radiated to his leg. He took a break for a few minutes, then went back to work. Cudihy did not report the injury to his employer, and continued to perform his regular work duties.

After work, Cudihy went to “Physician’s Immediate Med” for treatment. He told the treating physician that he had developed back pain over the weekend and had experienced pain while digging that morning; he was diagnosed with muscle spasms and prescribed muscle relaxers. Cudihy sought further treatment at Physician’s Immediate Med in January 2009 and was diagnosed with low back pain. Cudihy went to a chiropractor in March 2009, where he was diagnosed with muscle spasms. In May and June 2009, he saw an orthopedist, who diagnosed him with possible disk herniation. On June 3,2009, the orthopedist recommended that Cudihy be placed on light duty work and stated that he might need surgery.

On June 25, 2009, Cudihy first reported the injury to JMJ, which placed him on light duty work full-time. Cudihy continued to work at JMJ on light duty until August 2009, when he was terminated for reasons unrelated to his injury.

Cudihy subsequently applied for workers’ compensation benefits, alleging a June 25, 2009 injury date. JMJ controverted the claim but, after a hearing, an ALJ awarded Cudihy disability income and medical benefits. The ALJ found, among other things, that Cudihy had sustained a work-related injury to his back on September 2,2008 and, citing the “new accident” theory (regarding a gradual worsening of condition) explained in Central State Hosp. v. James, found that he had sustained a work-related injury on June 25, 2009.*

The Board vacated the ALJ’s award and denied Cudihy’s claim. The Board found, inter alia, that the preponderance of the evidence did not support the ALJ’s finding that Cudihy had sustained a new accident on June 25, 2009 related to his work. The Board found that Cudihy had not established or reported the occurrence of an initial work injury, making the theory of a fictional new injury (on June 25, 2009) inapplicable; and, no disability manifested on the designated new accident date of June 25, 2009, inasmuch as that date did not represent the date Cudihy’s condition had worsened as a result of his work activities to the point he could no longer perform his job; the Board noted that Cudihy had continued working beyond that date (June 25) and he had acknowledged that he was capable of working as a plumber at the time he was terminated. The Board also found that no September 2, 2008 injury was compensable because: (a) Cudihy did not establish that he sustained a work injury on September 2, 2008; and (b) Cudihy did not give adequate notice of a work injury to JMJ.

Cudihy appealed to superior court. In reversing the Board’s award, the superior court found that the Board’s findings of fact appeared to be supported by evidence of record, but that the Board’s legal analysis was erroneous. According to the superior court, the Board erred in considering only whether the legal theory of new accident applied and whether Cudihy had established that an injury occurred on September 2, 2008; the superior court further found that the Board should have considered whether the legal theory of cumulative trauma applied to the facts found. The superior court found that the evidence showed a gradual injury, and that Cudihy had established a cumulative trauma injury arising out of and in the course of his employment.

To support its finding that Cudihy had established a cumulative trauma injury, the superior court made various findings of fact. Among the court’s findings: Cudihy “began having back pain related to his work duties” and, as he continued to work full-duty, “his injury gradually worsened from simple back pain to a herniated disk”; and Cudihy’s pain, symptoms, and diagnoses worsened between the time he first began experiencing pain and June 25, 2009, when he became unable to perform the same work. Finding that Cudihy had established a gradual injury causedby deterioration of his back due to daily work activities and that, under the cumulative trauma theory, Cudihy was not required to prove he was injured on September 2, 2008, the court concluded that Cudihy was entitled to medical benefits.

JMJ contends that the superior court exceeded its authority when it found that Cudihy had sustained a cumulative trauma injury on June 25, 2009. JMJ asserts that the court failed to employ the proper standard of review of the Board’s award and substituted itself as finder of fact. We agree.

The Board found that Cudihy had failed to show that he sustained a new accident on June 25,2009. The Board cited, among other things, evidence that Cudihy had injured his back during the weekend preceding September 2, 2008; when seeking medical treatment on September 2, 2008, he did not indicate that he was injured on the job, even when specifically asked; he admitted he had not sustained any injury on June 25, 2009; he did not become unable to work on June 25, 2009, as he continued working until August 12, 2009, when he was fired for unrelated reasons; and, by his own admission, at the time of his termination he was physically capable of continuing to perform his job, he worked as a plumber after his termination, and his work activity did not worsen his condition. There was also evidence that Cudihy suffered no injury on the job after September 2, 2008, that his symptoms were the same on September 2, 2008 as they were at the time of the administrative hearing, and that all of his pain was attributable to the September 2, 2008 accident.

“For accidental injury to be compensable under the Workers’ Compensation Act, the injury must . . . occur in the course of the employment [and] arise out of the employment.” “An injury that occurs during a time when the employee is off duty and is free to do as he or she pleases and when the employee is not performing any job duties is not compensable under the Workers’ Compensation Act.” Whether an injury arose out of and in the course of employment is an issue of fact, as is the issue of whether a new accident occurred. The superior court must defer to the Board’s findings because the factfinding body must in each case remain the final arbiter of the compensability of the injury. The Board’s findings, when supported by any evidence, are conclusive and binding. Because some evidence supported the Board’s findings that Cudihy had failed to prove that he was injured on the job and that he continued to perform his job duties until he was forced to stop work due to a gradual worsening of his condition, the superior court erred in not accepting that finding and in reversing the Board’s award.

Cudihy counters that the superior court did not engage in factfinding, but simply applied the correct legal theory to the facts found by the Board. As noted above, the superior court is authorized to reverse the Board’s award where legal errors were committed. However, as discussed above, the superior court made its own findings of fact, though it lacked authority to do so.

Decided November 30, 2012.

Cuzdey, Ehrmann, Wagner, Stine, Sansalone & Bobe, Glenn B. Bobe, Jr., Michelle I. Cooper, for appellants.

Shannon D. Rolen, J. Franklin Burns, for appellee.

The Board performed the appropriate review, and its award was not based upon an erroneous legal theory. Indeed, the Board fully considered the legal theory raised by JMJ in its appeal to the Board (and the legal theory upon which the ALJ’s award was based) — that of “new accident.” In deciding the applicability of the new accident theory, the Board cited and applied appropriate authority to the facts it found. In finding no new accident, the Board specifically found that Cudihy’s work activity had not worsened his condition. That finding was supported by record evidence, such as Cudihy’s testimony that as of March 2009, his pain had not subsided and “never completely went away”; the pain was “not going to be something that would just go away on its own”; he continued regular duty work for several months; his symptoms were the same at the time of the hearing as they were on the date of the injury (September 2, 2008); and all of his pain was due to the September 2, 2008 accident.

Notwithstanding the Board’s finding that Cudihy’s condition had not worsened due to his work activity, the superior court found that Cudihy’s injury had worsened “due to daily work activities,” and then used that finding to support an alternative legal theory as grounds for reversing the Board’s award. It was not the superior court’s role to find its own facts and then determine whether an alternative theory required a different outcome. Instead, where possible, the Board’s award should be given a construction which will uphold and validate it rather than one that would defeat and invalidate it. Because the Board’s award was not legally erroneous and was supported by some evidence, the superior court erred in reversing it.

Judgment reversed.

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

        St. Joseph’s Hosp. v. Ward, 300 Ga. App. 845 (686 SE2d 443) (2009).

        Bonus Stores v. Hensley, 309 Ga. App. 129, 132 (1) (710 SE2d 201) (2011) (citation and punctuation omitted).

        St. Joseph’s Hosp., supra at 845-846 (citation and punctuation omitted).

        John W. Rooker & Assocs. v. Patterson, 276 Ga. App. 410 (623 SE2d 258) (2005) (footnote omitted).

        Parker v. American Carpet Mills, 168 Ga. App. 171, 172 (308 SE2d 409) (1983).

        Bonus Stores, supra at 132 (2).

        R. R. Donnelley v. Ogletree, 312 Ga. App. 475 (718 SE2d 825) (2011).

        Bonus Stores, supra at 133 (2).

        Parker, supra.

       147 Ga. App. 308 (248 SE2d 678) (1978).

       Id. at 309 (1) (a) (explaining that a “new accident,” also referred to as a “new injury,” occurs “where the claimant is injured on the job but continues to perform the duties of his employment until such time that he is forced to cease work because of the gradual worsening of his condition which was at least partly attributable to his physical activity in continuing to work subsequent to his injury”; “the date of the ‘new accident’ is the date that the disability manifests itself”).

       It was undisputed that Cudihy did not sustain an actual injury on June 25, 2009.

       See OCGA § 34-9-80 (pertinently providing that every injured employee shall immediately on the occurrence of any accident or as soon thereafter as practicable, give or cause to be given to the employer a notice of the accident; until such notice is given, the employee shall not be entitled to any physician’s fees nor to any compensation which may have accrued under the terms of this chapter prior to the giving of such notice; and, with certain exceptions, no compensation will be payable unless the required notice is given within 30 days after the occurrence of an accident).

       The court reversed the award as to medical benefits, but did not disturb the Board’s ruling that Cudihy was not entitled to income benefits due to his failure to satisfy the job-search requirements of Maloney v. Gordon County Farms, 265 Ga. 825, 827-828 (462 SE2d 606) (1995). The Board’s ruling as to income benefits was therefore affirmed by operation of law. See Miller v. Merck & Co., 199 Ga. App. 722 (405 SE2d 761) (1991).

       See D. W. Adcock, M.D., P.C. v. Adcock, 257 Ga. App. 700, 702 (1) (572 SE2d 45) (2002) (“Cumulative trauma over time, which does not lend itself to identifying a specific incident or date as the onset of the injury, nevertheless may be found to be an injury under [the Workers’ Compensation Act].”).

        St. Joseph’s Hosp., supra at 848 (1) (citations and punctuation omitted).

        Stokes v. Coweta County Bd. of Ed., 313 Ga. App. 505, 509 (722 SE2d 118) (2012) (citations omitted).

        Davidson v. Employers Ins. of Wausau, 139 Ga. App. 621 (229 SE2d 97) (1976).

        Northbrook Property &c. Ins. Co. v. Babyak, 186 Ga. App. 339, 341 (367 SE2d 567) (1988); United States Fidelity &c. Co. v. Reynolds, 146 Ga. App. 615 (247 SE2d 199) (1978).

        St. Joseph’s Hosp., supra.

        Jones County Bd. of Ed. v. Patterson, 255 Ga. App. 166, 167 (564 SE2d 777) (2002).

       See Central State Hosp., supra.

       See St. Joseph’s Hosp., supra; Bibb County v. Short, 238 Ga. App. 291, 292 (518 SE2d 484) (1999); United Family Life Ins. Co. v. Sasser, 224 Ga. App. 871, 873 (482 SE2d 491) (1997).

         See Parker, supra.

       See John W. Rooker & Assocs., supra.

       See Bonus Stores, supra.

       See Central State Hosp., supra.

       See St. Joseph’s Hosp., supra.

        Dixie-Cole Transfer Trucking Co. v. Fudge, 147 Ga. App. 306, 307 (3) (248 SE2d 694) (1978).


author: Ray, Judge.

text:
    A12A1471.
    SMITH v. THE STATE.
    (735 SE2d 153)
   Ray, Judge.

After a jury trial, Nicole Smith was convicted of two counts of first degree homicide by vehicle, one count of forgery, one count of reckless driving, and one count of giving a false name. Smith appeals the denial of her motion for new trial, contending that the evidence was insufficient to sustain her conviction and that the trial court erred in refusing to allow her to impeach a prosecution witness with evidence of prior felony convictions and pending charges, erred in allowing prejudicial and irrelevant testimony, erred in allowing the admission of prejudicial character evidence, and erred in improperly charging the jury. For the reasons that follow, we affirm.

1. The evidence was sufficient to support the guilty verdict as to all charges. When reviewing a criminal conviction,

the evidence must be construed in a light most favorable to the verdict, and [Smith] no longer enjoys a presumption of innocence. In evaluating the sufficiency of the evidence to support a conviction, we do not weigh the evidence or determine witness credibility, but only determine whether a rational trier of fact could have found the defendant guilty of the charged offenses beyond a reasonable doubt.

So construed, the evidence shows that on April 9, 2006, Smith had been spending the night with her sister, Falisha Scott, in Lithonia. While Scott was sleeping, Smith borrowed Scott’s Ford Trailblazer SUV without her knowledge or permission.

At approximately 3:00 a.m., Smith was driving the Trailblazer northbound on 1-285 at a high rate of speed when she struck the rear of a slower moving Nissan Sentra occupied by Constance Daniel and Charisma Sanders. Smith never applied her brakes before the collision and, in fact, had been accelerating at the time of impact. The impact sent the victims’ Sentra into the median wall, where it rebounded and spun back out into oncoming traffic. A Lexus SUV then hit the Sentra head on, killing Daniel and critically injuring Sanders. Sanders was taken to a hospital immediately after the crash, but she died from her injuries 20 days later.

Jimmy Lottie, who had been driving alongside the Sentra at the time of the accident, testified that he was driving northbound in the far right lane of1-285 when he looked in his rear-view mirror and saw a vehicle approaching at a high rate of speed. He observed the speeding vehicle crash into the rear of the Sentra, sending it into the median wall and back out into traffic. Lottie testified that the Sentra’s headlights, which had been functioning normally prior to the accident, were knocked out when the Sentra collided with the median wall. The Sentra came to a rest facing oncoming traffic with its headlights out. Lottie pulled over and ran across the interstate to the median wall to render assistance, but another car struck the Sentra head on before he could reach it.

Jason Ouimette was driving northbound on 1-285 in the second lane from the median wall when he observed smoke, debris, and what he believed to be a “chunk of metal” just ahead in the lane closest to the median wall. The chunk of metal was the Sentra. Darius Vaughn was driving a Lexus SUV in the left lane beside Ouimette. Both Ouimette and Vaughn slammed on the brakes, but only Ouimette managed to avoid hitting the Sentra. Vaughn testified that he did not see the Sentra until he was right up on it. Vaughn further testified that he could not avoid hitting the Sentra because it was blocking the two left lanes of the interstate and Ouimette’s car was to his right.

Officer C. E. Flood, a DeKalb County police officer, was the first to respond to the accident scene. Officer Flood talked to the witnesses present and ascertained that the Trailblazer driven by Smith had initiated the accident by hitting the rear of the Sentra. When Smith was questioned by law enforcement at the scene, she admitted that she was the driver of the Trailblazer but identified herself as “Falisha Scott.” When Smith was taken to the police station to be questioned further about the accident, she was given a Miranda form and advised of her rights. Smith signed her name as “Falisha Scott” on the Miranda form, as well as on her written statement.

During the subsequent investigation of the accident, Donald Shaver, an accident reconstruction expert, retrieved crash data from the Trailblazer’s sensing diagnostic module (SDM). The SDM records the change in the velocity of the vehicle resulting from the initial impact of the crash. The SDM also provides the speed of the vehicle during the last five seconds before the crash and indicates whether the brakes were applied during that time. The data retrieved by Shaver indicated that the Trailblazer was accelerating from 87 mph to 91 mph during the last five seconds before impact, and that the brakes were never applied. Shaver testified that his analysis of the SDM data, combined with the physical evidence on the vehicles, witness statements, photographs, and the investigative reports and diagrams of the accident, indicate that the Trailblazer was moving at the speed of 90 mph and approximately 30 mph faster than the Sentra at the time of impact.

Detective Charles Thomas, the DeKalb County police officer who investigated the accident, testified that he received a phone call from Scott the day after the accident. It was at that time that he discovered that Smith had taken Scott’s Trailblazer without her permission and had used Scott’s name.

Smith did not testify at trial, but relied on her own accident reconstruction expert who testified that the accident could not have occurred in the manner described by the witnesses, police officers, and the State’s accident reconstruction experts.

This evidence was sufficient for the jury to reject Smith’s claims that her expert’s testimony proved that she was not driving recklessly and that most of the damage to the victims’ car was caused when it struck the median wall, and to find that Smith was guilty of two counts of first degree vehicular homicide, one count of reckless driving, one count of forgery, and one count of giving a false name.

2. Smith contends that the trial court erred in refusing to allow her to impeach the State’s witness, Jimmy Lottie, with his 1995 and 1998 drug convictions.

Pursuant to OCGA § 24-9-84.1 (a) (1),

[f]or the purpose of attacking the credibility of a witness ... [ejvidence that a witness has been convicted of a crime shall be admitted if the crime was punishable by... imprisonment of one year or more under the law under which the witness was convicted if the court determines that the probative value of admitting the evidence outweighs its prejudicial effect to the witness.

However, evidencé of such a conviction is not admissible

if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness ... from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interest of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect.

Finding that Lottie’s 1995 drug conviction occurred more than ten years ago and that its probative value did not substantially outweigh its prejudicial effect, the trial court refused to allow evidence of the conviction for impeachment purposes. In doing so, the trial court noted that it did not believe that a drug conviction was relevant to Lottie’s testimony in his capacity as an eyewitness to an automobile accident. Further, the importance of Lottie’s credibility was minimized by the fact that his testimony merely corroborated other overwhelming evidence regarding how the accident occurred. We find that the trial court did not abuse its discretion in finding Lottie’s 1995 conviction inadmissible under OCGA § 24-9-84.1 (b).

With regard to Lottie’s 1998 drug conviction, the trial court initially applied the wrong standard for determining the admissibility of this conviction. Applying the analysis set forth in OCGA § 24-9-84.1 (b), the trial court stated that the probative value of the 1998 conviction did not “substantially” outweigh its prejudicial effect. However, the 1998 conviction was not outside the ten-year time limitation because Lottie had been released from prison seven years before Smith’s trial. Thus, the appropriate standard for the admissibility of this conviction, as set forth in OCGA § 24-9-84.1 (a) (1), is whether the probative value merely outweighs its prejudicial effect. However, the trial court clarified its ruling and applied the correct standard in its order denying Smith’s motion for new trial. We find, no error.

3. Smith argues, and the State concedes, that the trial court erred in refusing to allow Smith to cross-examine Lottie about his pending drug charge in Indiana. However, because we find that the error did not harm Smith’s defense, we affirm.

Smith was permitted to cross-examine Lottie outside the presence of the jury regarding his pending charge of possession of cocaine in Indiana. Smith attempted to elicit testimony that Lottie may have been testifying favorably toward the State because he hoped that it may have some beneficial effect on the disposition of the pending drug charge. However, Lottie stated unequivocally that he had no hope of benefitting from providing testimony in this case. The trial court ruled that Smith would not be allowed to cross-examine Lottie regarding the subject in front of the jury, and Smith objected.

On appeal, Smith contends that this limitation on her cross-examination of Lottie prevented her from showing that Lottie had a reason to be biased against her, thereby impeaching his credibility. “[T]he constitutionally improper denial of a defendant’s opportunity to impeach a witness for bias, like other Confrontation Clause errors, is subject to [a] harmless-error analysis.” In determining whether a defendant suffered harm, we examine factors such as

the importance of the witness’ testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution’s case.

At trial, Lottie’s testimony regarding his observation of the speed of Smith’s vehicle and its collision with the victims’ car was corroborated by the police officers’ analysis of the accident scene, the physical evidence on the vehicles involved, the data retrieved from the Trailblazer’s SDM, and investigations of the State’s accident reconstruction experts. Thus, there was evidence independent of Lottie’s testimony that was sufficient to support the jury’s conviction of Smith on the charges arising out of the collision. Moreover, the trial court allowed Smith’s counsel to cross-examine Lottie for the purposes of impeachment with respect to an unrelated conviction in Indiana for giving false information. Given these facts, any error by the trial court in limiting Lottie’s testimony did not harm Smith.

4. Smith contends that the trial court erred by allowing Marva Peters, the mother of victim Charisma Sanders, to testify about the extent of her daughter’s injury and the length of her hospital stay and to introduce a photograph that Peters took of her daughter as she lay injured in the hospital shortly after the accident. Smith contends that the testimony and photograph were irrelevant and prejudicial.

Generally, photographs of the extent and nature of a victim’s wounds are material and relevant, regardless of whether the cause of death is disputed. Such photographs are not objectionable merely because other evidence may have been presented to show the extent of the victim’s injuries. A trial court exercises its discretion in admitting photographic evidence, and we will not reverse the court’s ruling absent an abuse of discretion.

Here, because no autopsy was performed and because the defense refused to stipulate to the causation of Sanders’ death, both Peters’ testimony and the photograph were relevant to establish that Sanders died as a result of the injuries she sustained in the collision. The State was required to prove that Smith caused the death through her reckless driving, and the severity of Sanders’ injuries and her subsequent death was relevant to the State’s case. The trial court, therefore, did not err in admitting the testimony and photograph.

5. Smith contends that the trial court erred in allowing the State to introduce the testimony of Smith’s sister, Falisha Scott, who testified that Smith had driven the Trailblazer without permission on the night of the accident. Smith contends that such testimony was irrelevant and prejudicial. Because we find that the trial court did not abuse its discretion, we disagree.

The “[ajdmission of evidence is a matter committed to the sound discretion of the trial court, and the trial court’s evidentiary decisions will not be disturbed on appeal absent an abuse of discretion.” In general, “the circumstances connected with a defendant’s arrest may be admitted into evidence, even if those circumstances incidentally place the defendant’s character in issue. However, such evidence still must be shown to be relevant.” Further, “[t]he State is permitted to present evidence of [Smith’s] possible motive for committing a crime, and such relevant evidence is not rendered inadmissible because it may incidentally place [Smith’s] character into evidence.”

Prior to Scott taking the witness stand, the trial court conducted a conference with counsel outside the presence of the jury regarding the substance and admissibility of Scott’s testimony. Smith contended that Scott’s testimony regarding Smith’s unauthorized use of Scott’s car and name would be irrelevant and overly prejudicial. The State argued, and the trial court agreed, that Scott’s testimony regarding Smith’s unauthorized use of her name was relevant to prove the State’s case regarding the offenses of forgery and giving a false name, and that her testimony regarding Smith’s unauthorized use of her car was relevant to show the possible motive for Smith’s reckless manner of driving because it was possible that, since Smith did not have permission to use the car, she was “trying to get where she’s going, and get back before Falisha would realize that the car was gone.” We find that the trial court did not abuse its discretion in finding that the testimony was relevant and admissible.

6. Smith contends that the trial court erred in denying her motion for mistrial after the State’s witness, Detective Thomas, improperly put Smith’s character into evidence. We disagree.

As a threshold matter, we note that

the decision to deny a mistrial is within the trial court’s discretion, and we will not reverse it unless the grant of a mistrial is necessary to preserve the right to a fair trial. And in reviewing the trial court’s decision, this [C]ourt may consider the nature of the statement, the other evidence in the case, and the court’s and counsel’s action in dealing with the impropriety.

During the trial, the prosecutor questioned Detective Thomas about the circumstances surrounding his discovery that Smith was not Falisha Scott, contrary to what Smith had told officers at the time of her arrest. The prosecutor asked Detective Thomas whether Scott seemed surprised when she was informed that he had spoken to another woman who was impersonating her. Detective Thomas responded that Scott “wasn’t surprised that her sister used her name. She stated she’d done that before.” Defense counsel objected, and the trial court immediately instructed the jury to disregard the statement, stating that the response was outside the scope of the question. The jury was then excused from the courtroom, defense counsel moved for a mistrial, and the trial court conducted a conference with counsel to address the impropriety. After hearing from both parties, the trial court denied the motion for mistrial, finding that the inappropriate response was not elicited by the prosecutor, that the witness’ answer was not responsive to the question, and that the curative instruction given to the jury immediately after the response was adequate. The trial court also noted that the statement that Smith had used her sister’s name before did not necessarily mean that such use constituted a crime. Furthermore, the trial court offered to give an additional curative instruction to the jury. Defense counsel acknowledged that a curative instruction had already been given to the jury and ultimately decided that an additional curative instruction would just highlight the response at issue.

It is well settled that evidence of the character of the defendant, “including evidence which in any manner shows or tends to show that the accused has committed other criminal acts,” usually is inadmis-' sible. In this case, however, the witness’ reference to Scott’s statement did not identify any specific instance in which Smith had previously used her sister’s name, nor did it specify that such use was unauthorized.

Furthermore, “a mistrial is not always required when testimony improperly touches upon the character of the accused, especially when the testimony is not purposefully elicited by the State.” Here, the trial court correctly found that the prosecutor did not purposefully elicit the witness’ response and that the witness’ answer was not responsive to the specific question. The trial court immediately gave a curative instruction to the jury directing them to disregard the statement of the witness. In this case, we find that the curative instruction was sufficient to remedy any prejudice that may have arisen from the witness’ statement.

7. In her last enumeration of error, Smith contends that the trial court improperly charged the jury by giving the State’s requested charge regarding “strict liability” and refusing to give Smith’s requested charge regarding “accident” with regard to the moving traffic offenses of homicide by vehicle and reckless driving. We disagree.

(a) Smith first asserts that the trial court erred in charging the jury on strict liability, arguing that the evidence presented at trial did not support such a charge.

At trial, the trial court instructed the jury that “[t]he moving traffic violations defined in the Official Code of Georgia Title 40, Chapter 6 are strict liability offenses,” and that the State is therefore not required to prove mental fault. The trial court further instructed the jury that, in the context of the offense of reckless driving, “the State will have met its burden of proof as to the Defendant’s criminal intent if you find beyond a reasonable doubt that the defendant operated her motor vehicle in a reckless disregard for the safety of persons or property.”

“[V]iolations of the offenses set forth in Title 40, Chapter 6, unless otherwise indicated, are strict liability offenses. As such, the [S]tate is not required to prove mental fault.” When prosecuting “strict liability” traffic offenses, the State is still required to show criminal intent, but “[c]riminal intent does not always equate to mental fault, guilty knowledge, or purposeful violation of the law.” Rather, the State meets its burden of proof as to criminal intent in strict liability traffic offenses if it establishes beyond a reasonable doubt that the defendant voluntarily committed the act that the statute prohibits. In this case, to prove the offense of reckless driving, the State must show that the defendant committed a specified act evidencing a reckless disregard for the safety of persons or property; speeding can form the basis for a reckless driving conviction. Here, the basis for the reckless driving charge was that Smith was driving at an excessive rate of speed, and the State presented evidence that Smith was driving at 90 mph when she collided with the victims’ vehicle. As the trial court’s jury instructions regarding strict liability were supported by case law and by the facts of the present case, we find no error.

Decided November 30, 2012.

Kenneth W. Sheppard, for appellant.

Robert D. James, Jr., District Attorney, Daniel J. Quinn, Assistant District Attorney, for appellee.

(b) Although Smith contends that the trial court erred in failing to give her requested charge on accident, the record shows that the trial court gave a charge on accident that tracked the language in her requested charge.

Judgment affirmed.

Miller, P. J., and Branch, J., concur.

       OCGA § 40-6-393 (a).

       OCGA § 16-9-1 (b).

       OCGA § 40-6-390.

       OCGA § 16-10-25.

       (Citation omitted.) Nelson v. State, 317 Ga. App. 527 (731 SE2d 770) (2012).

       See Shy v. State, 309 Ga. App. 274, 278 (4) (709 SE2d 869) (2011) (“whether [Smith’s] manner of driving under the circumstances demonstrated a reckless disregard for the safety of others is a question that is reserved for the jury”) (citation omitted); Hamilton v. State, 281 Ga. 501, 502 (1) (640 SE2d 28) (2007) (it is for the jury to determine the credibility of witnesses, as well as the weight to be accorded the expert testimony).

       “Any person who, without malice aforethought, causes the death of another person through the violation of [OCGA §] 40-6-390... commits the offense of homicide by vehicle in the first degree[.]” OCGA § 40-6-393 (a).

       “Any person who drives any vehicle in reckless disregard for the safety of persons or property commits the offense of reckless driving.” OCGA § 40-6-390 (a).

       “A person commits the offense of forgery in the first degree when with the intent to defraud... she knowingly makes... any writing, other than a check, in a fictitious name or in such manner that the writings as made .. . purports to have been made by another person ... and utters or delivers such writing.” OCGA § 16-9-1 (b).

       “Aperson who gives a false name... to a law enforcement officer in the lawful discharge of his official duties with the intent of misleading the officer as to [her] identity... is guilty of a misdemeanor.” OCGA § 16-10-25.

       We note that this statute has been repealed effective January 1, 2013, and will be replaced by OCGA § 24-6-609.

       OCGA § 24-9-84.1 (b).

       See Crowder v. State, 305 Ga. App. 647, 650 (2) (700 SE2d 642) (2010) (prejudicial effect of victim’s prior drug conviction outweighed any probative value, and thus evidence of victim was inadmissible to impeach victim in prosecution for aggravated assault).

        Clay v. State, 290 Ga. 822, 838 (3) (B) (725 SE2d 260) (2012) (although trial court must provide “on-the-record finding of the specific facts and circumstances upon which it relies in determining that the probative value of a prior conviction that is more than ten years old substantially outweighs its prejudicial effect before admitting evidence of the conviction for impeachment purposes under OCGA § 24-9-84.1 (b),” no such findings are required when the trial court refuses to admit such evidence) (emphasis supplied).

       OCGA § 24-9-84.1 (b).

       See Carter v. State, 303 Ga. App. 142, 146-147 (2) (692 SE2d 753) (2010) (permissible for trial court to make findings on evidence admissibility required by OCGA § 24-9-84.1 in its motion for new trial order); Hogues v. State, 313 Ga. App. 717, 719 (2) (a) (722 SE2d430) (2012) (permissible for trial court to amend the balancing test it applied to conform with that required by OCGA § 24-9-84.1 in its order on motion for new trial).

       (Citations and punctuation omitted.) Hawkins v. State, 316 Ga. App. 415, 418(2) (a) (729 SE2d 549) (2012).

       Id. at 419 (2) (a).

       See Fields v. State, 285 Ga. App. 345, 346-347 (3) (646 SE2d 326) (2007) (trial court’s error in barring cross-examination of a witness about pending charges for purpose of exploring bias was harmless when witness’ credibility was put in doubt by another witness).

       See Smith v. State, 284 Ga. 599, 609 (4), n. 21 (669 SE2d 98) (2008) (constitutional error does not require reversal of a criminal conviction if the record on the whole shows it harmless beyond a reasonable doubt).

        Smith v. State, 280 Ga. 490, 492 (2) (629 SE2d 816) (2006).

        Maxwell v. State, 250 Ga. App. 628, 629 (2) (552 SE2d 870) (2001).

       See Morris v. State, 276 Ga. App. 775, 778 (3) (624 SE2d 281) (2005).

       OCGA § 40-6-393 (a).

       See Taylor v. State, 304 Ga. App. 573, 576 (2) (b) (696 SE2d 498) (2010) (post-collision photographs depicting victims’ injuries were relevant and admissible at defendant’s trial for vehicular homicide to show that defendant caused victims’ deaths through his reckless driving);
        Bailey v. State, 261 Ga. App. 291, 295 (6) (582 SE2d 487) (2003) (trial court enjoys broad discretion in balancing probative and prejudicial nature of crime scene photographs); Maxwell, supra at 629 (2) (“Photographs which are relevant to any issue in the case are admissible although they will have an effect upon the jury which the defendant feels is damaging to him”).

       (Citation and punctuation omitted.) Askew v. State, 310 Ga. App. 746, 747 (1) (713 SE2d 925) (2011).

       (Citations omitted.) Rucker v. State, 291 Ga. 134, 136-137 (2) (728 SE2d 205) (2012).

       (Punctuation and footnote omitted.) Donald v. State, 312 Ga. App. 222, 229 (4) (d) (718 SE2d 81) (2011).

       (Punctuation and footnotes omitted.) Tolbert v. State, 313 Ga. App. 46, 56 (4) (720 SE2d 244) (2011).

        Crane v. State, 294 Ga. App. 321, 325 (2) (670 SE2d 123) (2008); see also OCGA § 24-2-2.

        Russell v. State, 308 Ga. App. 328, 330 (707 SE2d 543) (2011).

        See Dukes v. State, 273 Ga. 890, 892-893 (3) (b) (548 SE2d 328) (2001) (prompt curative instruction was sufficient to remedy prejudice from unsolicited testimony that defendant had been incarcerated for 22 years); Sims v. State, 268 Ga. 381, 382 (2) (489 SE2d 809) (1997) (prompt curative instruction sufficient to remedy prejudice from unsolicited testimony suggesting that defendant was on probation).

        Augustin v. State, 260 Ga. App. 631, 633-634 (2) (580 SE2d 640) (2003); Hoffer v. State, 192 Ga. App. 378, 380 (1) (384 SE2d 902) (1989) (moving traffic violations are strict liability offenses, “[t]hus there is no requirement to prove mental fault or mens rea”).

       See State v. Ogilvie, 292 Ga. 6, 8 (2) (a) (734 SE2d 50) (2012).

       Id.

       See Fraser v. State, 263 Ga. App. 764, 765 (1) (589 SE2d 329) (2003).

       See Ogilvie, supra at 9 (2) (b).


text:
    A12A1567.
    In the Interest of L. B., a child.
    (735 SE2d 162)
   Ray, Judge.

L. B.’s mother appeals from an order issued by the Douglas County Juvenile Court granting permanent guardianship of her son, L. B., to L. B.’s great-aunt. On appeal, the mother contends that there was no showing on the record that L. B. had been adjudicated deprived, and thus the juvenile court was without authority to appoint a permanent guardian for L. B. under OCGA § 15-11-30.1. The mother also argues that the juvenile court was without authority to grant the permanent guardianship on the theory that OCGA § 15-11-30.1 requires that the child be placed in the custody of the Division of Family and Children Services (“DFCS”) prior to the appointment of a permanent guardian. We disagree and affirm.

Viewed in the proper light, the record shows that in 2009, DFCS became involved in L. B.’s welfare after he suffered a broken arm and a broken tooth. After the housing assistance the mother received through DFCS ended abruptly, L. B.’s mother asked his great-aunt to care for L. B. so that she could look for a job and an apartment. The great-aunt agreed, and petitioned the Douglas County Probate Court for temporary guardianship of L. B. Several months later, L. B.’s mother attempted to remove him from his great-aunt’s home, but the great-aunt did not allow her to do so and advised the probate court of the danger of removal. The probate court then transferred the case to the Douglas County Juvenile Court on January 4, 2010, and counsel was appointed to represent the mother. During a hearing, L. B.’s mother told the trial court that she did not wish to dissolve the temporary guardianship at that time.

A deprivation action was filed by the great-aunt on August 23, 2010, and was assigned a new case number in the juvenile court. Although the record from this action is not before us, in the order awarding permanent guardianship to the great-aunt, the juvenile court noted that an adjudicatory hearing was held on September 1, 2010, and a final order finding that L. B. was deprived was entered.

On September 16, 2011, L. B.’s great-aunt filed the present action petitioning the juvenile court for permanent guardianship. At the hearing, L. B.’s mother testified that she had little contact with her son in the past 18 months, that she had not completed the steps required in the case plan set up by the juvenile court in the deprivation action, that she had not submitted to drug tests sought by the court, and that she was living at a family member’s home. The guardian ad litem testified, and after expressing concern about the lack of contact between the child and his mother and her failure to complete her case plan or submit to drug screens, she recommended that the juvenile court award permanent guardianship to the great-aunt to assure stability in L. B.’s life. Finding that it was in the best interest of the child to remain in the care of his great-aunt, the juvenile court granted her petition for permanent guardianship of L. B. L. B.’s mother appeals.

l.OCGA § 15-11-30.1 requires that a childbe adjudicated deprived before a juvenile court has the jurisdiction to grant an award of permanent guardianship over that child. L. B.’s mother contends that the juvenile court was without authority to award permanent guardianship to the great-aunt because although the juvenile court entered an order adjudicating L. B. deprived in an earlier case with a different case number, that order was not made part of the record in the current permanent guardianship proceeding.

Despite the absence of the juvenile court’s order adjudicating L. B. deprived in the present record, the juvenile court referenced the deprivation order in its order awarding permanent guardianship to the great-aunt. As a general matter, a juvenile court may take judicial notice of prior proceedings and orders in the same court if it indicates on the record that it is taking judicial notice of such prior orders and the parties do not object. In the present case, the juvenile court did not specifically inform the parties during the hearing or in its order that it was taking judicial notice of the prior deprivation order. However, L. B.’s mother gives us no reason to believe that any objection to taking judicial notice of the deprivation order in this case would have had any merit, nor does she identify specific evidence that she would have brought forward to challenge the earlier deprivation order. For this reason, L. B.’s mother cannot show that the taking of judicial notice is reversible error.

2. L. B.’s mother contends that OCGA § 15-11-30.1 (a) (2) (A) requires a child to have been placed in DFCS custody before the juvenile court is vested with the jurisdiction to appoint a permanent guardian for that child, and thus, the juvenile court erred in awarding permanent guardianship to L. B.’s great-aunt. For the reasons below, we disagree.

OCGA § 15-11-30.1 (a) (2) (A) provides that prior to any entry of an order appointing a permanent guardian, the juvenile court shall find, among other things, “that reasonable efforts to reunify the child with his or her parent would be detrimental to the child in accordance with subsection (h) of Code Section 15-11-58 or find that the living parents or parent of the child have consented to the permanent guardianship.” OCGA § 15-11-58 (h) provides that

[w]hen reviewing the determination by [DFCS] that a reunification plan is not appropriate, the court shall determine by clear and convincing evidence whether reasonable efforts to reunify a child with his or her family will be detrimental to the child and that reunification services, therefore, should not be provided or should be terminated. There shall be a presumption that reunification services should not be provided if the court finds by clear and convincing evidence that:

(1) a parent unjustifiably failed to complete a previously ordered reunification plan, (2) the child had been removed from the home on at least two previous occasions, (3) any of the grounds for terminating parental rights set forth in OCGA § 15-11-94 (b) exist, or (4) if reasonable efforts to reunify are deemed unnecessary under OCGA § 15-11-58 (a) (4).

L. B.’s mother argues that by referencing OCGA § 15-11-58 (h)’s “reasonable efforts” analysis, which applies only to those children in DFCS custody, the legislature intended to restrict OCGA § 15-11-30.1 (a) (2) (A)’s application to only those children who were in the custody of DFCS or those children whose parents consented to such an arrangement. Therefore, L. B.’s mother argues, the juvenile court was without jurisdiction to award L. B.’s great-aunt, a private petitioner, permanent custody under OCGA § 15-11-30.1.

When considering the meaning of a statute, we apply the following analysis:

First, courts should construe a statute to give sensible and intelligent effect to all of its provisions and should refrain, whenever possible, from construing the statute in a way that renders any part of it meaningless. Second, a court’s duty is to reconcile, if possible, any potential conflicts between different sections of the same statute, so as to make them consistent and harmonious. Third, in construing language in any one part of a statute, a court should consider the entire scheme of the statute and attempt to gather the legislative intent from the statute as a whole.

With these principles in mind, we note that OCGA § 15-11-58, titled “[reunification of family,” is the statute governing what services are appropriate to help reunify a child with his or her parents after the child has been placed in DFCS custody by court order. As noted above, the “reasonable efforts” analysis set forth in subsection (h) of that statute establishes the standard of proof and factors to be considered by the trial court when determining whether reasonable efforts to reunify a child with his or her parents would be detrimental to the child and thus, would not be appropriate.* We find that the most sensible reading of the reference to the “reasonable efforts” analysis in OCGA § 15-11-30.1 (a) (2) (A) (i) indicates that the legislature’s intent was not to restrict the juvenile court’s jurisdiction to appoint a permanent guardian for only those children in DFCS custody, but rather to provide the juvenile court with the standard of proof and factors to consider when determining if reunification services would be detrimental to the child, and thus an award of permanent guardianship would serve the best interests of the child.

Further, “it is elementary that in all interpretations of statutes, the courts shall look diligently for the intention of the legislature [and such intent shall be] determined from a consideration of the entire statute.” Other subsections of OCGA § 15-11-30.1 reveal that the legislature did not intend to restrict the juvenile court’s jurisdiction to appoint a permanent guardian to only those children in DFCS custody. OCGA § 15-11-30.1 (a) (2) (F), which sets forth the requirements of pleading a petition for the appointment of a permanent guardian, clearly contemplates a petition filed by a private party. In pertinent part, subsection (a) (2) (F) provides that

Decided November 30, 2012.

Carolyn J. Altman, for appellant.

Thinel Bishop, Ernest C. Crosby, for appellee.

[t]he petition for the appointment of a permanent guardian ... shall set forth:... (iii) The name, address, and county of domicile of the petitioner and the petitioner’s relationship to the child, if any, and, if different from the petitioner, the name, address, and county of domicile of the individual nominated by the petitioner to serve as guardian and that individual’s relationship to the child, if any.

This Court must construe a statute “to make all its parts harmonize and to give a sensible and intelligent effect to each part.” The interpretation that L. B.’s mother advocates would have us ignore the language of subsection (a) (2) (F), which clearly contemplates that a private petitioner can file a pleading seeking permanent guardianship of a child.

Further, OCGA § 15-11-30.1 (a) (2) (F) (iv) requires that such a private petitioner include in his or her pleading a statement indicating that reasonable efforts to reunify the child with his or her parents would be detrimental to the child. It would make no sense to require a private petitioner to allege and prove that reunification efforts would be detrimental to the child if the legislature intended DFCS to shoulder that burden. Accordingly, this confirms our conclusion that there is no requirement that a child must be placed in DFCS custody prior to the appointment of a permanent guardian under OCGA § 15-11-30.1.

Judgment affirmed.

Miller, P. J., and Branch, J., concur.

       OCGA§ 15-11-30.1 (a) (2) (A) provides that “the juvenile court shall be vested with jurisdiction to appoint a permanent guardian for a child whose custody is a subject of controversy before the court as a result of an adjudication that the child is deprived. . . .”

       “A court may take judicial notice of records in the same court.” (Citation and punctuation omitted.) In the Interest of S. H. P., 243 Ga. App. 720, 722 (1) (a) (534 SE2d 161) (2000).

        In the Interest of S. N. H., 300 Ga. App. 321, 328(3) (685 SE2d 290) (2009) (in a proceeding on termination of parental rights, trial court was authorized to take judicial notice of orders in underlying deprivation proceeding in the same court); In the Interest of J. A., 298 Ga. App. 11, 14 (1) (679 SE2d 52) (2009) (court took judicial notice of its prior findings in determining whether the children continued to be deprived and informed the parties during the hearing that it was doing so).

        In the Interest of A. A., 293 Ga. App. 471, 475 (3) (667 SE2d 641) (2008) (no reversible error where father was unable to demonstrate that the juvenile court’s admission of prior orders involving the child without notice was harmful in light of other evidence presented).

        See In the Interest of D. W., 294 Ga. App. 89, 94 (3) (a) (668 SE2d 533) (2008) (“An appellant must show harm as well as error to prevail on appeal; error to be reversible must be harmful”) (punctuation and footnote omitted). As evidence that a deprivation order had not been properly entered in a prior proceeding, L. B.’s mother quotes language from the trial court’s permanent guardianship order indicating that it had difficulty reconstructing the sequence of events in this case because the “attorneys did not consistently prepare orders following each hearing.” However, a close reading of the juvenile court’s order reveals that it was referring only to the difficulties it had in interpreting the proceedings before the probate court, before the case was transferred to the juvenile court.

       OCGA § 15-11-30.1 (a) (2) (A) (i).

       OCGA § 15-11-58 (h) (l)-(4).

       See In the Interest of J. W. K, 276 Ga. 314, 316 (2) (578 SE2d 396) (2003).

       (Citation omitted.) Fulton County v. Colon, 316 Ga. App. 883, 887 (2) (730 SE2d 599) (2012).

       OCGA § 15-11-58 (a) provides, in pertinent part, that “[i]f the court places custody of the child in [DFCS], the court shall also determine as a finding of fact whether reasonable efforts were made by [DFCS] to preserve and reunify families prior to the placement of a child in the custody of the Department of Human Services. . . .”

       The legislature has noted that in certain cases, “efforts to reunify a deprived child with his or her natural parents can be detrimental to the child, making reunification services inappropriate” and that in some circumstances, reunification efforts can cause a child to be “caught in the system for years” and prevent “children from backgrounds of neglect and abuse [from being placed in] a permanent, stable adoptive home.” (Footnotes omitted.) COURTS: Juvenile Proceedings, Parental Rights: Provide Guidance for Reunification of Termination of Parental Rights, 13 Ga. State U. L. Rev. 91, 93 (1996).

       (Citation and punctuation omitted.) Dept. of Human Resources v. Hutchinson, 217 Ga. App. 70, 72 (1) (456 SE2d 642) (1995).

       (Citation and punctuation omitted.) Rock v. Head, 254 Ga. App. 382, 384 (2) (562 SE2d 768) (2002).

       OCGA § 15-11-30.1 (a) (2) (F) (iv) provides, in pertinent part, that
      [t]he petition for the appointment of a permanent guardian ... shall set forth: (iv) [a] statement that: (I) [r] easonable efforts to reunify the child with his or her parent would be detrimental to the child in accordance with subsection (h) of Code Section 15-11-58 or that the living parents or parent of the child have consented to the permanent guardianship. . . .


text:
    A12A0375.
    NASH et al. v. UNITED BANK-THOMASTON.
    (734 SE2d 238)
   Ray, Judge.

When a dispute arose between Richard Nash and James Edwards, Jr., over who was authorized to access funds in an account held in the name of Christ Temple Ministries, United Bank-Thomaston (“United Bank”) filed an interpleader action in the Superior Court of Upson County. Nash and Christ Temple Ministries filed an answer to the petition contending that interpleader was not the appropriate method for resolving the dispute, and Christ Temple Ministries asserted a counterclaim against United Bank for conversion of the funds. On the parties’ cross-motions for summary judgment, the trial court found that interpleader was appropriate and awarded attorney fees to United Bank pursuant to OCGA § 23-3-90 (a) and (b).

On appeal, Nash and Christ Temple Ministries contend that the trial court erred in granting United Bank’s petition for interpleader. Specifically, they argue that the requirements for interpleader were not met, and thus the award of attorney fees was unauthorized; that the trial court substituted its judgment for that of the church congregation in a church dispute; and that the existence of genuine issues of material fact regarding the claim for conversion precludes interpleader. For the following reasons, we affirm.

Properly viewed, the evidence shows that Christ Temple Ministries is an unincorporated church. On November 18, 2006, James Edwards, Jr., as “Pastor & Founder,” opened a bank account in the name of Christ Temple Ministries with United Bank. At that time, Edwards was the sole signatory on the account. On November 22, 2006, Edwards and another church member, Latrina Pennamon, submitted a resolution on behalf of Christ Temple Ministries to United Bank adding Nash as an authorized signatory on the account. Thereafter, any withdrawal or transfer of the funds on deposit required the signatures of both Edwards and Nash.

On or about September 9, 2009, Nash and Pennamon sent a letter on behalf of Christ Temple Ministries to United Bank requesting that Edwards be removed as a signatory on the account and replaced with another church member. On or about September 30, 2009, Edwards sent United Bank a letter stating that he did not authorize his removal as a signatory and requesting that his name remain as a required signatory on the account. Edwards further stated that the funds in the account were in dispute.

Edwards, Nash, and Pennamon disagree as to who is the proper governing authority for the church. Edwards asserts that he is still the pastor of Christ Temple Ministries even though he is not currently pastoring Nash and some other members of the congregation and that he is the governing body of Christ Temple Ministries with the authority to control its funds. Edwards also claims that the funds were used primarily for the purpose of paying back a loan that he and his wife obtained to buy land for Christ Temple Ministries. Nash contends that Christ Temple Ministries is a congregational church governed by a majority of its members, and that the decision to change the signatories on the account had been approved by the majority of the church members.

Upon receiving notice of the dispute as to who should have control over the funds in the account, United Bank filed an interpleader action pursuant to its policy regarding account disputes. The relevant portion of the Deposit Account Disclosures (“deposit agreement”) for the account at issue provides as follows:

3. Claims and Disputes Concerning your Account. If another person or entity makes a claim against the funds in your account, or if we have reason to believe there is or may be a dispute over matters such as the ownership of the account or the authority to withdraw funds, we may, in our sole discretion, (1) continue to rely on current signature cards, resolutions or other account documents, (2) freeze all or part of the funds until the dispute is resolved to our satisfaction, or (3) pay the funds into an appropriate court of law for resolution.

OCGA § 23-3-90 (a) provides that “[w]henever a person is possessed of property or funds or owes a debt or duty, to which more than one person lays claim of such a character as to render it doubtful or dangerous for the holder to act, he may apply to equity to compel the claimants to interplead.” The four basic requirements for obtaining relief under Georgia’s equitable interpleader statute 6 are as follows:

(1) The same thing, debt, or duty must be claimed by both or all of the parties against whom the relief is demanded;
(2) all their adverse titles or claims must be dependent, or be derived, from a common source;
(3) the plaintiff must not have or claim any interest in the subject matter; [and]
(4) the plaintiff must have incurred no independent liability to either of the claimants, but must stand indifferent between them merely as a stakeholder.

In its ruling on summary judgment, the trial court found that United Bank satisfied all of the requirements for interpleader.

1. Nash and Christ Temple Ministries contend that the trial court erred in granting interpleader because United Bank was not an “indifferent stakeholder” because it had incurred an independent liability for conversion by withholding the funds of the church during the dispute and instituting this interpleader action. This argument is without merit.

Once United Bank received notice of the conflicting claims over access and control of the funds held in the deposit account, it was authorized by the express terms of the deposit agreement to, in its sole discretion, decide whether to continue to rely on the current signature card, to freeze the funds, or to pay the funds into court for resolution.

Under Georgia law, “Conversion consists of an unauthorized assumption and exercise of the right of ownership over personal property belonging to another, in hostility to his rights; an act of dominion over the personal property of another inconsistent with his rights; or an unauthorized appropriation.” Conversion has also been defined as “[a]ny distinct act of dominion wrongfully asserted over another’s property in denial of his right or inconsistent with it.” Here, United Bank’s actions were not unauthorized, as they were permitted under the express terms of the deposit agreement. Therefore, no conversion has occurred.

Furthermore, because the provisions for interpleader are intended to be remedial in nature, they are liberally construed in order to effectuate their utilitarian purposes. “The holder of contested funds need not decide at his peril either close questions of fact or of law to entitle him to have the parties at interest set up their claims for determination.”

The right to interpleader... should depend merely upon the stakeholder’s good-faith fear of adverse claims, regardless of the merits of those claims or what the stakeholder bona fide believes the merits to be. The complainant’s offer to deposit the disputed fund into the registry of the court and to be discharged from the litigation should not be denied merely because the claim advanced by one of the claimants is weak or rests on tenuous grounds. Indeed, it will normally be the case that the assertions of one or more of the claimants will be lacking in merit, but that fact alone does not relieve the stakeholder of the substantial risk of vexatious litigation.*

Because United Bank was authorized to file a petition for inter-pleader based upon the terms of the deposit agreement and under Georgia law, we find that the trial court did not err in granting United Bank’s petition.

2. In their remaining enumerations of error, Nash and Christ Temple Ministries contend that the trial court erred when it granted interpleader because the court, by agreeing to adjudicate the dispute over the funds, was substituting its judgment for that of the church. Specifically, they argue that Nash represented the majority of the membership of Christ Temple Ministries when he requested United Bank to change the signatures on the bank account, and that the trial court was bound by this decision. Nash and Christ Temple Ministries further contend that the existence of genuine issues of material fact regarding the conversion claim preclude the trial court’s grant of summary judgment in favor of United Bank. Based on our determination in Division 1, and for the reasons set out below, these enumerations fail.

Decided November 14, 2012

Reconsideration denied December 5, 2012

Edwards & Youmas, Lonzy F. Edwards, for appellants.

Mallory & Trice, Matthew T. Mallory, Pasley & Nuce, Derek C. Nuce, for appellee.

In its order, the trial court noted that “[b]oth parties equally dispute who is authorized to control transfer of the funds” and that “[s]everal inconsistencies as to these facts pepper the affidavits, depositions, and arguments presented to the [c]ourt.” Accordingly, the trial court determined that interpleader was an appropriate method for United Bank to resolve the dispute. Although Edwards contends he is the pastor and governing body of Christ Temple Ministries with the authority to control its funds, neither Edwards nor Nash has presented any evidence of Christ Temple Ministries’ governing church law. We find that interpleader is an appropriate method to resolve the dispute over control of the funds because the dispute is secular and not of a religious nature, and “the resolution of this dispute does not necessitate an impermissible intrusion or excessive entanglement into ecclesiastical matters.”

Judgment affirmed.

Miller, P. J., and Branch, J., concur.

       The appeal was transferred to this Court from the Supreme Court of Georgia because “the propriety of the grant of equitable interpleader is ancillary to the underlying legal issues involved in the interpretation of the relevant hank deposit agreement” between the parties.

       On appeal from the grant of a motion for summary judgment, we apply a de novo standard of review, viewing the evidence and all reasonable inferences and conclusions drawn from it in the light most favorable to the nonmovant. Jenkins v. Wachovia Bank, Nat. Assn., 309 Ga. App. 562, 562 (711 SE2d 80) (2011).

       There is no evidence in the record of any bylaws, charters, articles or other governing instruments for Christ Temple Ministries.

       (Emphasis supplied.)

       OCGA § 23-3-90.

       (Citations and punctuation omitted.) Almand, v. Reese, 209 Ga. 138, 142 (2) (71 SE2d 223) (1952). See also Gilbert v. Montlick & Associates, P. C., 248 Ga. App. 535, 537 (2) (546 SE2d 895) (2001) (it is appropriate to dismiss holder of disputed funds in interpleader when “no further relief against the holder is being sought or necessary”) (punctuation and footnote omitted).

       (Citation omitted; emphasis supplied.) Trey Inman & Assocs. v. Bank of America, N.A., 306 Ga. App. 451, 457 (4) (702 SE2d 711) (2010) (to establish conversion, a party must show title to the property or right to possession, actual possession in other party, a demand for return of the property, and a refusal by the other party to return the property).

       (Citation and punctuation omitted; emphasis supplied.) Farm Credit of Northwest Florida, ACA v. Easom Peanut Co., 312 Ga. App. 374, 381 (3) (a) (718 SE2d 590) (2011).

        Algernon Blair, Inc. v. Trust Co. of Ga. Bank of DeKalb, 224 Ga. 118, 120 (160 SE2d 395) (1968). Accord American Gen. Life & Accident Ins. Co. v. Vance, 297 Ga. App. 677, 678 (678 SE2d 135) (2009).

       (Citation and punctuation omitted.) Evans v. Cushing Properties, 197 Ga. App. 380, 381 (2) (a) (398 SE2d 306) (1990).

        Algernon Blair, Inc., supra at 121.

       In their second enumeration of error, Nash and Christ Temple Ministries claim that the trial court erred in awarding United Bank attorney fees pursuant to OCGA § 23-3-90 (b) because United Bank failed to satisfy the threshold requirements for interpleader. In light of our holding in Division 1, this enumeration is moot.

       See generally Pritchett v. Wesleyan Pentecostal Church at Holly Springs, 265 Ga. App. 565, 567 (2) (594 SE2d 750) (2004) (“Georgia law recognizes two basic types of church government, congregational and hierarchical, although some decisions have also recognized a hybrid of these two”) (citation omitted); Crumbley v. Solomon, 243 Ga. 343, 343 (254 SE2d 330) (1979) (“If the church government is congregational, then a majority of its members control its decisions and local church property”); Jones v. Wolf, 244 Ga. 388, 388 (2) (266 SE2d 84) (1979) (In resolving church disputes, Georgia has adopted a “presumptive rule of majority representation, defeasible upon a showing that the identity of the local church is to be determined by some other means”) (citation and punctuation omitted).

        First Born Church of the Living God, Inc. v. Bank South, N.A., 221 Ga. App. 739, 740 (472 SE2d 469) (1996) (interpleader was appropriate method to resolve dispute between church members regarding access to funds in a bank account and trial court did not impermissibly intrude in religious matters when deciding the issue).