author: Dillard, Judge. MILLER, Judge,

text:
    A14A0448.
    BUTLER v. DOE et al.
    (762 SE2d 145)
   Dillard, Judge.

Jane Doe, a minor, by and through her best friend and legal guardian, Mary Roe, filed suit against Kevin Butler, a teacher at Cass Middle School (the “School”), for personal injuries that Doe suffered when she was allegedly sexually assaulted by another student at the School as a result of Butler’s alleged failure to properly supervise the students during an after-school activity. Butler moved for summary judgment on the ground that his supervision of the students in question was a discretionary function that entitled him to official immunity. The trial court denied Butler’s motion, holding that his alleged failure to supervise the students amounted to a ministerial function to which official immunity does not apply. Butler argues on appeal that the trial court erred in concluding that his acts were ministerial rather than discretionary. We agree.

Viewed in the light most favorable to Doe, the record shows that in 2010, Butler was a teacher at the School and also served as a teacher advisor for the color guard. On the afternoon in question, the School had two after-school functions in the gymnasium—a color-guard presentation followed by a choral concert. Doe was participating in both functions.

Butler agreed to supervise and facilitate the color-guard presentation. To that end, he met the four participating color-guard students, including Doe, at a designated time and gathered them in the chorus room, a room directly adjacent to the gymnasium. The group left their personal belongings in the chorus room and Butler then escorted the students to a mobile classroom to retrieve their equipment. Butler thereafter watched the students perform their color-guard presentation and then helped them return their equipment to the mobile classroom.

Afterward, the color-guard group returned to the chorus room to gather their personal belongings. Butler was aware that Doe was performing in the choral concert immediately following the color-guard presentation and, shortly after the group entered the chorus room, Doe left and went to the restroom to change her clothing. There is a factual dispute as to whether the remaining three students stayed in the chorus room and/or whether Butler inquired as to whether those students intended to leave the School or attend the concert. Regardless, Butler, who was not responsible for attending or supervising the subsequent choral concert, left the chorus room and entered the adjoining gymnasium. There, he joined a crowd of 150 to 200 teachers, students, and parents—including Doe’s mother—to watch the first 15 to 20 minutes of the concert before he left the School.

Doe alleges that she reentered the chorus room after returning from the restroom and, although the other three color-guard students were there when she initially entered, two eventually left and she was sexually assaulted by the third. She thereafter sued Butler, asserting that his act in leaving the students unsupervised in the chorus room following the color-guard performance resulted in her sexual assault. The trial court denied Butler summary judgment after concluding that he was not entitled to official immunity because he had “an absolute ministerial duty to protect” the color-guard students remaining in the chorus room and his total failure to supervise them constituted a breach of that ministerial duty. This appeal follows.

Georgia law is well established that the “monitoring, supervising, and controlling the activities of students is a discretionary action protected by the doctrine of official immunity.” Contrary to the holding of the trial court, this is true even if the allegations involve a teacher’s total failure to supervise the students under his or her care. Indeed, the complete failure to perform a discretionary act is “the same as the negligent performance of that act for the purposes of determining whether such action was discretionary or ministerial.”

There is simply no way to construe the evidence so as to conclude that Butler’s alleged failure to supervise was anything other than a discretionary act. Indeed, as is readily apparent from the facts set forth supra, Butler was responsible for monitoring and ensuring the safety of the students while he shuttled them between numerous rooms in the school, aided them in getting their equipment and supplies, facilitated a successful color-guard presentation, and transitioned them from one after-school activity to another. Suffice it to say, the assessment of whether direct supervision and, if so, what degree of oversight was required to accomplish the foregoing tasks necessarily involved Butler’s personal and professional judgment.

The dissent, like the trial court, nonetheless relies upon a purported School policy that Butler was required to ensure his students’ attendance at after-school functions in support of its position that a genuine issue of material fact exists as to whether his failure to make certain that Doe reported to the choral concert constituted the breach of a ministerial duty. This argument fails for two reasons. First, this contention fails because the undisputed record shows that any such duty, to the extent one existed, fell upon the chorus instructor, not Butler. But in any case, even if we accept the dissent’s strained reading of the record and assume that Butler violated an established school policy, “[supervision of students is considered discretionary even where specific school policies designed to help control and monitor students have been violated.”* *** It follows, then, that Butler is protected by the doctrine of official immunity and is entitled to summary judgment.

Judgment reversed.

Andrews, P. J., Ellington, P. J., Doyle, P. J., and McMillian, J., concur. Phipps, C. J., and Miller, J., dissent.

MILLER, Judge,

dissenting.

I dissent from the majority’s opinion because Kevin Butler has failed to establish that there are no genuine issues of material fact.

As the party moving for summary judgment, Butler bore the burden of demonstrating that he was entitled to official immunity by showing that the specific acts he performed were discretionary. See Howell v. Willis, 317 Ga. App. 199, 203 (729 SE2d 643) (2012). Consequently, although the question of whether a governmental employee is entitled to official immunity is a question of law that must ultimately be decided by the trial court, where the relevant facts are in dispute, the trial court cannot resolve the factual issues on a motion for summary judgment. Nichols v. Prather, 286 Ga. App. 889, 896 (4) (650 SE2d 380) (2007). Instead, a jury must resolve the conflicting facts. Id.

Here, Doe alleged that Butler was negligent for leaving her and another student alone in the locked chorus room. In support of her claim that Butler was required to ensure her attendance at the concert, Doe submitted Butler’s job description indicating that he had a duty to maintain prompt and regular attendance. Although Butler presented evidence that attendance taking at after-school events was not mandatory, Doe averred that her attendance was mandatory and that attendance was taken. Moreover, Butler deposed that, as a teacher advisor for the color guard, he had a responsibility to make certain that the participating students either had a ride home following the group’s performance or stayed for the concert. Doe presented evidence that Butler did not ask the students about their plans. Instead, Butler left the students alone in the locked chorus room and went to the concert, whereupon Doe was sexually assaulted by another student.

The evidence does not show as a matter of law that the acts of ensuring that the students had a ride home or were going to attend the concert required Butler to exercise personal judgment, examine facts, reach reasoned conclusions, or act in a way not specifically directed. Instead, making sure that students are either picked up following an after-school activity, or attend a subsequent after-school activity, such as the choral concert in this case, is a simple, absolute, and definite action. See McDowell v. Smith, 285 Ga. 592, 593-594 (678 SE2d 922) (2009). In light of this evidence, there is a question of fact regarding Butler’s duties following the color guard performance that precludes the grant of summary judgment. See Dalton v. City of Marietta, 280 Ga. App. 202, 203 (633 SE2d 552) (2006) (“Even slight evidence will be sufficient to satisfy the plaintiff’s burden of production of some evidence on a motion for summary judgment; such evidence may include favorable inferences drawn by the court from the evidence presented.”) (citation and punctuation omitted).

Teachers and school employees have an important responsibility to protect our children, and it is unwise to advance the “de facto absolute immunity for school employees” that has developed in our case law where questions of fact remain. See McDowell, supra, 285 Ga. at 594 (noting only one recent case in which this Court has held that a school employee’s actions were ministerial). Providing such absolute immunity to school employees

abrogates the constitutional right of citizens to seek redress for injuries inflicted by the ministerial acts of school employees, especially upon young children who are not capable of caring for themselves or exercising judgment. If Georgia school employees are to be clothed with absolute immunity under any and all circumstances, that is a decision to be made by the Georgia General Assembly; it is not the function of this, or any, court.

Smith v. McDowell, 292 Ga. App. 731, 737 (666 SE2d 94) (2008). Since Butler has not shown that the undisputed evidence established that his actions were discretionary, he has failed to establish that he was entitled to official immunity. Accordingly, I would affirm the trial court’s denial of Butler’s motion for summary judgment.

Decided July 16, 2014.

Harben, Hartley & Hawkins, Phillip L. Hartley, Hieu M. Nguyen, for appellant.

Marc P Lubatkin, for appellees.

I am authorized to state that Chief Judge Phipps joins in this dissent.

       Doe’s complaint included claims against the Bartow County School District, the School’s principal, and another School employee. The trial court granted summary judgment as to those defendants and Doe does not challenge that ruling.

        See Martin v. Herrington Mill, LP, 316 Ga. App. 696, 697 (730 SE2d 164) (2012) (“[A] de novo standard of review applies to an appeal from a grant or denial of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.” (punctuation omitted)).

       Butler testified definitively that he ascertained that the three remaining students planned to attend the concert. Doe asserts in her affidavit, however, that Butler “did not inquire as to whether any of the other students were being picked up or remaining at the school for the concert.” We note that Doe is limited to swearing only to those facts that are within her own personal knowledge; consequently, she can aver only that she did not hear any such inquiry by Butler. See OCGA § 9-11-56 (e) (“Supporting and opposing affidavits shall he made on personal knowledge, shall set forth such facts as would be admissible in the evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.” (emphasis supplied)). But even if we assume that Butler did not attempt to ascertain the students’ plans, this in no way impacts our ultimate conclusion that his failure to do so was a discretionary act.

        Perkins v. Morgan Cnty. Sch. Dist., 222 Ga. App. 831, 835 (2) (476 SE2d 592) (1996) (emphasis supplied); accord Leake v. Murphy, 274 Ga. App. 219, 225 (2) (617 SE2d 575) (2005), overruled on other grounds by Murphy v. Bajjani, 282 Ga. 197 (647 SE2d 54) (2007); see also Reece v. Turner, 284 Ga. App. 282, 285 (1) (643 SE2d 814) (2007) (“The determination of whether an action is discretionary or ministerial depends on the character of the specific actions complained of, not the general nature of the job, and is to be made on a case-by-case basis.” (punctuation omitted)); Wright v. Ashe, 220 Ga. App. 91, 94 (469 SE2d 268) (1996) (“[Tjhe general task imposed on teachers to monitor, supervise, and control students has... been held to be a discretionary action which is protected by the doctrine of official immunity.”).

        See Aliffi v. Liberty Cnty. School Dist., 259 Ga. App. 713, 715 (578 SE2d 146) (2003) (holding teacher was immune from suit alleging that she violated school policy by sending a child, totally unsupervised, to the storage garage); Chamlee v. Henry Cnty. Bd. of Educ., 239 Ga. App. 183, 184 (1) (521 SE2d 78) (1999) (concluding that teacher’s inadequate supervision of students during extracurricular activity was discretionary act entitling teacher to official immunity); Kelly v. Lewis, 221 Ga. App. 506, 508 (471 SE2d 583) (1996) (granting official immunity to teacher who failed to be present at the school’s front door to ensure safe arrival of students).

        Kelly, 221 Ga. App. at 509.

       There is a conflict in the record as to whether attendance at after-school functions was mandatory. The School principal testified that students were not required to attend after-school functions, although Doe asserted that her attendance at the choral concert was indeed mandatory. The undisputed record, however, makes clear that the school had no written policies directing how teachers were to supervise their students at after-school functions. Instead, such decisions were left to the “good professional judgment” of the teachers. And to the extent the trial court and dissent rely on Butler’s written job description requiring “prompt and regular attendance,” the argument still fails for the reasons stated infra.

        Chamlee, 239 Ga. App. at 184 (1); see also Perkins, 222 Ga. App. at 836 (2) (holding secretary’s failure to enforce school’s policy regarding early dismissal was discretionary act); Wright, 220 Ga. App. at 93-94 (holding teachers’ failure to enforce school policy governing class attendance was discretionary act).


source: Caselaw Access Project

author: Branch, Judge. BOGGS, Judge,

license: Public Domain

text:
    A14A0468.
    In re ESTATE OF HAWKINS.
    (762 SE2d 149)
   Branch, Judge.

After James Hawkins died unmarried and intestate in 2012, his girlfriend, Yuvette Ridley, filed a petition for letters of administration naming her as the estate’s administrator and listing her son Makaleb, whom Hawkins had never adopted, as Hawkins’s only heir at law. The probate court granted the petition and named Ridley as the estate’s administrator and Makaleb as Hawkins’s sole heir. Hawkins’s sister, Patricia Hutchins, then moved to set aside this judgment. Following a hearing, the probate court held that Hawkins was not the child’s biological father and that the child was not Hawkins’s heir at law. The court also removed Ridley as the estate’s administrator and appointed Hutchins in her stead. On appeal from this judgment, Ridley argues that when Hawkins executed a paternity acknowledgment and obtained the listing of his name as the father on the child’s birth certificate, he complied with the provisions of OCGA § 53-2-3 and made Makaleb his heir at law. We disagree and therefore affirm.

“Where a probate court sits as a finder of fact, we accept its findings if they are supported by any evidence. The probate court’s application of the law is subject to de novo appellate review, however.” In re Estate of Price, 324 Ga. App. 681 (751 SE2d 487) (2013) (citations omitted).

So viewed, the record shows that shortly after Ridley became pregnant by another man, she told Hawkins, her boyfriend, that he was not the biological father of the child. Hawkins himself never believed that he was the child’s biological father. Hawkins continued his relationship with Ridley nonetheless, purchasing maternity clothes and paying for her doctor’s visits. Hawkins was present at the birth of the child. On the day after the birth, the couple went to a State Vital Records Office and completed a State of Georgia Paternity Acknowledgment form. As to paternity, the form stated that “[t]his Acknowledgment attests that James Andrew Hawkins is the natural father of the child born on the 25th day of June 2007,” and that Ridley and Hawkins were “requesting to have the name of the natural father entered on the birth certificate and the child be named Makaleb James Andrew Hawkins.” Both Ridley and Hawkins signed this portion of the form. The second portion of the form, which contains two more signature spaces, specified that “by signing below, [Ridley and Hawkins] voluntarily consent and agree that the relationship between the named child and father shall be considered legitimate for all purposes under the law pursuant to OCGA § 19-7-22 (g) (2).” 3Both Ridley and Hawkins also signed this portion of the form, which stated at its conclusion that “this affidavit must be signed by the mother and the person to be identified as the father in the presence of a witness as set forth in OCGA § 31-10-9 [(e)] (2).”

Eloise DeLaine, a worker at the records office, signed the paternity acknowledgment form as a witness. DeLaine’s name also appears on the child’s birth certificate, which bears the names of Ridley as mother and Hawkins as father. A few days after the child’s birth, Hawkins took a paternity test, which confirmed that he was not the child’s biological father. Nevertheless, Hawkins held Makaleb out as his son, and he named the child as a dependent on his applications for Veterans Administration and Social Security benefits.

After Hawkins died intestate on April 11, 2012, Ridley filed a petition in DeKalb County Probate Court for letters of administration naming Makaleb as Hawkins’s only heir. On May 22, 2012, the probate court issued letters of administration to Ridley. On June 1, 2012, Hawkins’s sister, Patricia Hutchins, filed the instant verified petition to determine heirs and a motion to set aside the probate court’s judgment and to replace Ridley as the estate’s administrator.

At the evidentiary hearing on Hutchins’s petition held on July 23, 2012, Ridley introduced the paternity acknowledgment into evidence. Hutchins objected to Ridley’s characterization of the acknowledgment as an “affidavit,” arguing that it did not amount to a “sworn statement attesting to the parent-child relationship” as required by OCGA § 53-2-3 (2) (A) (iii), the statutory provision governing the rights of inheritance through the father by children born out of wedlock. Hutchins introduced into evidence her petition for guardianship and conservatorship of her mother as well as Hawkins’s paternity test results.

After the hearing, the trial court entered an order concluding that the paternity acknowledgment did not succeed in rendering Makaleb Hawkins’s heir at law. The trial court held that although Ridley and Hawkins had executed a paternity acknowledgment, “this method for legitimating a child does not apply in the present case.” The trial court concluded that Hawkins “was not the biological father” of Makaleb, that Makaleb “is not an heir at law of” Hawkins, and that “no method” of “establishing a right of inheritance for a child born out of wedlock” as provided in OCGA § 53-2-3 “applies in this case.” The court also designated Ella Hawkins as the decedent’s “sole heir at law,” removed Ridley as administrator on the ground that she had “signed [the] paternity acknowledgment with the knowledge that the decedent was not the biological father” of the child, and appointed Hutchins in Ridley’s stead. Ridley then moved for reconsideration, proffering an affidavit from DeLaine attesting that she worked as a medical records analyst at the hospital where the birth took place, that she had “signed and witnessed” the paternity acknowledgment, and that she had certified Makaleb’s birth certificate. The trial court denied the motion for reconsideration.

On appeal, Ridley argues that the trial court erred when it concluded that Makaleb is not Hawkins’s heir at law because Hawkins “signed a sworn statement attesting to [his] parent-child relationship with Makaleb” and “effectively’ signed the child’s birth certificate. We disagree.

OCGA § 53-2-3 provides in relevant part:

(2) (A) A child born out of wedlock may not inherit from or through the child’s father, the other children of the father, or any paternal kin by reason of the paternal kinship, unless: (i) [a] court of competent jurisdiction has entered an order declaring the child to be legitimate, under the authority of Code Section 19-7-22 or such other authority as may be provided by law; (ii) [a] court of competent jurisdiction has otherwise entered a court order establishing paternity; (iii) [t]he father has executed a sworn statement signed by him attesting to the parent-child relationship; (iv) [t]he father has signed the birth certificate of the child; or (v) [t]here is other clear and convincing evidence that the child is the child of the father.

(Emphasis supplied.)

Ridley has not asserted, either below or on appeal, that the execution of that portion of the paternity acknowledgment purporting to legitimate the child succeeds in doing so such that the requirements laid out in OCGA § 53-2-3 do not apply. Under our responsibility to read this and other statutes “not in isolation, but in the context of the other statutory provisions of which it is a part,” Abdel-Samed v. Dailey, 294 Ga. 758, 763 (2) (755 SE2d 805) (2014) (citation omitted), we also note that neither OCGA § 19-7-22 (g) (2) nor OCGA § 19-7-46.1 specifies that a voluntary acknowledgment of paternity and/or legitimation renders the requirements of OCGA § 53-2-3 inapplicable as a matter of law. As there were no court proceedings begun before Hawkins’s death either to legitimate Makaleb or otherwise to establish paternity under subsections (2) (A) (i) and (ii), the only questions remaining are thus whether the paternity acknowledgment amounted to “a sworn statement signed by’ Hawkins “attesting to the parent-child relationship” or whether the presence of Hawkins’s name on the birth certificate amounted to his signature for purposes of OCGA § 53-2-3 (2) (A).

1. The paternity acknowledgment signed by Ridley and Hawkins was not a “sworn statement” for purposes of OCGA § 53-2-3 (2) (A) (iii).

To swear is both “to administer an oath to a person” and “to take an oath.” Black’s Law Dictionary, 9th ed. 2009. Thus a sworn statement, such as an affidavit, is “a statement under oath taken before a person having authority to administer such oath.” Sambor v. Kelley, 271 Ga. 133, 134 (1) (518 SE2d 120) (1999) (punctuation and footnote omitted); see also Shiver v. Norfolk-Southern R. Co., 269 Ga. 168, 169 (496 SE2d 903) (1998) (defining “testimony” as “[a] statement made by a witness under oath or affirmation” (citation and punctuation omitted)). Both judges and notaries public have the power to administer oaths. See OCGA § 15-1-3 (5) (“[e]very court” has power “to administer oaths in an action or proceeding pending therein and in all other cases when it may be necessary in the exercise of its powers and duties”); OCGA § 45-17-8 (a) (granting notaries public authority to “[w]itness or attest signature or execution of deeds and other written instruments,” to “[ajdminister oaths and affirmations in all matters incidental to their duties as commercial officers and all other oaths and affirmations which are not by law required to be administered by a particular officer,” and to “[wjitness affidavits upon oath or affirmation”).

Here, and despite the paternity acknowledgment’s statement that it amounted to an “affidavit,” there was no evidence before the probate court, including the evidence presented on Ridley’s motion for reconsideration, to support the conclusions that DeLaine, the witness to Ridley and Hawkins’s execution of the paternity acknowledgment, was a notary public or other official such that she had authority to administer any oath to Hawkins; that DeLaine administered an oath on Hawkins; or that the acknowledgment was actually notarized by her or any other person. It follows that the probate court did not err when it concluded that the paternity acknowledgment was not a “sworn statement” for purposes of OCGA § 53-2-3 (2) (A) (iii). See Dockery v. State, 287 Ga. 275, 277 (4), n. 2 (695 SE2d 599) (2010) (documents entitled “affidavits” were not such because they “were not executed with any of the legal formalities required of a valid affidavit”); OCGA § 45-17-6 (a) (“An official notarial act must be documented by the notary’s seal”); Hurt v. Norwest Mtg., 260 Ga. App. 651, 654 (1) (a) (580 SE2d 580) (2003) (an affidavit of indigence missing a notarial seal invalidated the attestation in the affidavit).

2. Although documentary and testimonial evidence showed that Georgia birth certificates do not normally bear the signature of either the mother or the father of the named child, it is undisputed that Hawkins never signed Makaleb’s birth certificate. “[T]he ‘golden rule’ of statutory construction... requires us to follow the literal language of the statute unless it produces contradiction, absurdity or such an inconvenience as to insure that the legislature meant something else.” Telecom*USA v. Collins, 260 Ga. 362, 363-364 (1) (393 SE2d 235) (1990) (citation and punctuation omitted). We are not authorized to ignore the plain language of OCGA § 53-2-3 (2) (A) (iv) requiring Hawkins to sign Makaleb’s birth certificate in order to render Makaleb his heir at law. See In re Estate of Garrett, 244 Ga. App. 65 (534 SE2d 843) (2000) (where there was no judicial determination of paternity before a child’s death intestate, and where the father did not sign the child’s birth certificate or execute a sworn statement of paternity before that event, a probate court’s finding of paternity after the child’s death did not satisfy the requirements of OCGA § 53-2-4 (b)); State v. Barnett, 136 Ga. App. 122, 123 (220 SE2d 730) (1976) (absence of affiant’s signature from a search warrant required suppression of the evidence seized under that warrant).

Because Hawkins neither executed a sworn statement of paternity nor signed Makaleb’s birth certificate before his death, the trial court did not err when it concluded that Makaleb was not Hawkins’s heir at law. OCGA § 53-2-3 (2) (A) (iii), (iv); see also Estate of Garrett, 244 Ga. App. at 65 (putative father’s failure to establish paternity before child’s death precluded father’s inheritance from that child).

Judgment affirmed.

Barnes, P. J., concurs. Boggs, J., concurs fully and specially.

BOGGS, Judge,

concurring fully and specially.

I concur with the majority and all that is said there. I write to reiterate my concerns about the unintended consequences of the administrative legitimation process. Rife with frailties, the process is unquestionably inequitable and susceptible to fraud, in irreconcilable conflict with the body of Georgia law on legitimation and adoption, and potentially violative of the constitutional protections guaranteed to biological fathers and their children.

Before 2005, legitimation of a child was reposed in the discretion of the superior court under OCGA § 19-7-22 (a), or of the juvenile court under OCGA § 19-7-22 (d). Inherent in this statutory framework is the recognition that “[i]n making this determination, the court must examine the benefits that might flow to the child if he were legitimated and to consider the legal consequences of the grant of the petition” and may only be reversed for an abuse of discretion. (Citation and punctuation omitted.) Caldwell v. Meadows, 312 Ga. App. 70, 71 (1) (717 SE2d 668) (2011). This judicial oversight includes an inquiry into whether the biological father has abandoned his opportunity interest, his fitness as a parent, and the best interest of the child. Id.; see also Binns v. Fairnot, 292 Ga. App. 336, 337 (665 SE2d 36) (2008). On occasion, this inquiry demands a finding that legitimation is not in the best interest of the child. The court may find, for example, that the attempted legitimation is for some improper purpose, that the father has a history of intractable substance abuse, mental health, family violence or criminal history issues that pose an unreasonable risk to the child, or that the child’s current status quo should not be disrupted.

The most important aspect of this statutory framework is the objective scrutiny afforded by judicial oversight and the mandate that petitions should only be granted when doing so is in the best interest of the child. However, in direct contravention of this process, OCGA § 19-7-21.1 (b), and its predecessor, OCGA § 19-7-22 (g) (2), permit legitimation via a voluntary, administrative process without any oversight whatsoever, judicial or otherwise.

Ga. L. 2005, p. 1491, § 1 created for the first time a nonjudicial process for the acknowledgment of paternity and legitimation, codified in OCGA § 19-7-22 (g) (2):

In any voluntary acknowledgment of paternity which has been made and has not been rescinded pursuant to Code Section 19-7-46.1, when both the mother and father freely agree and consent, the child may be legitimated by the inclusion of a statement indicating a voluntary acknowledgment of legitimation.

The proponents of this amendment contended that legitimation was necessary for the father of a child born out of wedlock to obtain visitation and to provide for inheritance, but this is not accurate. See, e.g., OCGA § 53-2-3 (2) (A), enumerating five methods by which a father may legitimate; OCGA § 19-7-51, providing for visitation privileges upon a determination of paternity, albeit by court order; OCGA § 19-7-22 (c), specifically providing for inheritance. James B. Outman, “Special Topics in Adoption Law & Practice in Georgia,” Institute of Continuing Legal Education, November 7, 2008, at 2-3.

In 2008, the General Assembly added to SB 88, the “Care of a Grandchild Act,” a provision establishing a new Code section, OCGA § 19-7-21.1, with a more elaborate procedure for the administrative acknowledgment of paternity and legitimation. Ga. L. 2008, p. 667, § 4. The Department of Vital Records promulgated a revised form, Form 3940, in response to these changes. But the legislature failed to delete OCGA § 19-7-22 (g) (2) and failed to amend other related Code sections, creating yet more statutory conflict in the areas of guardianship and inheritance. For example, the appeal before us is a direct result of the failure to amend the inheritance statutes to conform with OCGA § 19-7-21.1. See Outman, Special Topics, supra, at 8-11. Moreover, the revision provided that “[voluntary acknowledgment of legitimation shall not authorize the father to receive custody or visitation until there is a judicial determination of custody or visitation,” OCGA § 19-7-21.1 (e), apparently negating the original expressed intention of the proponents to provide for visitation.

Pursuant to OCGA § 19-7-22 (g) (2), a form styled “Paternity Acknowledgment — State of Georgia” was created by the State Department of Vital Records and executed by Ridley and Hawkins in 2007. The majority correctly concludes that the acknowledgment as it existed at that time did not constitute a “sworn statement” for purposes of OCGA § 53-2-3 (2) (A) (iii).* And it also correctly concludes that Hawkins did not in fact “sign” the birth certificate as provided by OCGA § 53-2-3 (2) (A) (iv), although Georgia makes no apparent provision for him to do so.

In Sauls v. Atchison, 316 Ga. App. 792 (730 SE2d 459) (2012), we noted that OCGA § 19-7-21.1 (b)

circumvents the safeguards inherent in our legitimation statute, OCGA § 19-7-22, which requires a petition in Superior Court and a finding that legitimation is in the best interest of the child. There is no statutory time frame for the filing of these forms and thus no meaningful way for the courts or attorneys to know whether the form has been signed. On occasion this causes the filing of unnecessary petitions for legitimation, and could potentially cause inconsistent findings as well. In short, under OCGA § 19-7-21.1, the mother and any male may agree — whether by mistake or by plan — to have someone other than the biological father sign this form. And a male who simply signs a pre-printed form in the hospital (or within 12 months thereafter) is by that minimal act alone placed on the same legal footing as a father whose paternity has been judicially determined with the benefit of formal notice, evidence and a hearing at which the court must determine whether legitimation is in the best interest of the child.

Id. at 793, n. 1. In Sauls, none of these issues was presented squarely for resolution by this court, nor in Allifi v. Raider, 323 Ga. App. 510, 513 (1), 515-516 (746 SE2d 763) (2013) (Ray, J., concurring specially and in judgment only), where the potential problems were noted again by both the majority and the concurring opinion. But now, we are presented with a case in which these anticipated problems come into clearer focus. See also Ray v. Hann, 323 Ga. App. 45, 47 (746 SE2d 600) (2013).

When, as here, the mother of a child born out of wedlock and a man known not to be the father deliberately misrepresent the facts in an administrative acknowledgment of paternity and legitimation, significant harm could result not only to the actual, biological father, but to the child as well. This may and does occur without any judicial inquiry, without any attempt by a factfinder to determine actual paternity by means of a DNA test or otherwise, and without any finding that legitimation is in the child’s best interest, all in direct conflict with OCGA § 19-7-22 (a)-(f.l). And while in a particular case it may be laudable and even heroic for a man known not to be the father to accept the responsibilities of parenthood, this should not occur without some judicial oversight.

Opportunities for fraud and collusion abound in this flawed scheme. Not only to establish a false paternity to obtain dependent benefits, as was alleged in this case, but for revenge following a failed relationship, or for monetary gain through obtaining control over a minor child’s assets or claim for personal injury. Moreover, a man who signs the form believing himself to be the father, but later determines that he is not, may be bound to pay child support and to reimburse the State for public assistance paid to the mother, while the actual, biological father may be excused from his obligations. In all such cases, the opportunity to establish the true state of affairs and the best interest of the child, as well as due process of law for the child and the biological father, are frustrated by these statutes.

In essence, parties to an acknowledgment can unilaterally create a wholly fictitious father-child relationship, which is tantamount to an adoption without any of the procedural and due process safeguards of the adoption statutes for the actual, biological father — notice and an opportunity to be heard before his parental rights are terminated—or for the child’s best interest and natural right to have a relationship with the biological father. This failure to take into account due process concerns, the obligations and rights of the biological father and the rights of the child, could raise significant issues regarding the constitutionality of the administrative process.

Moreover, once a fraudulent administrative legitimation has occurred, there is no procedure under Georgia law for “the de-legitimation of a child” or “the disestablishment of paternity.” Ghrist v. Fricks, 219 Ga. App. 415, 419 (1) (465 SE2d 501) (1995), overruled on other grounds, Brine v. Shipp, 291 Ga. 376, 380 (3) (729 SE2d 393) (2012). While it maybe true that the administrative legitimation process has resulted in fewer illegitimate children in Georgia, it has produced a litany of unintended consequences and conflicts with statutory law, allowed boundless opportunities for fraud, and can arguably deny fathers and children their constitutionally protected rights. Our appellate courts have neither the means nor the authority to address the myriad of problems occasioned by this seemingly well intentioned but flawed process. As we noted in Sauls, supra, “this is for the General Assembly, not this court, to address.” Id. at 793, n. 1.

Decided July 16, 2014 —

Robinson & Blazer, John E. Robinson, Mark A. C. Robinson, for appellant.

Nathaniel H. Blackmon III, R. Victor Page, for appellee.

       At the time the paternity acknowledgment before us was executed, OCGA § 19-7-46.1 provided in relevant part:
      (b) When both the mother and father have signed a voluntary acknowledgment of paternity and the acknowledgment is recorded in the putative father registry estahlishedby subsection (d) of Code Section 19-11-9, the acknowledgment shall constitute a legal determination of paternity, subject to the right of any signatory to rescind the acknowledgment prior to the date of the support order, any other order adjudicating paternity, or 60 days from the signing of the agreement, whichever is earlier. Recording such information in the putative father registry shall constitute a legal determination of paternity for purposes of establishing a future order for support, visitation privileges, and other matters under Code Section 19-7-51.
      In 2008, OCGA § 19-7-46.1 (b) was amended to add that “[acknowledgment of paternity shall not constitute a legal determination of legitimation pursuant to Code Section 19-7-21.1 or 19-7-22.” Ga. L. 2008, p. 667, § 6.

       OCGA § 19-7-22 (g) (2) provides: “In any voluntary acknowledgment of paternity which has been made and has not been rescinded pursuant to Code Section 19-7-46.1, when both the mother and father freely agree and consent, the child may he legitimated by the inclusion of a statement indicating a voluntary acknowledgment of legitimation.” OCGA § 19-7-21.1 (b), which became effective on July 1, 2008, provides:
      Prior to [a] child’s first birthday, a father of a child born out of wedlock may render his relationship with the child legitimate when both the mother and father have freely agreed, consented, and signed a voluntary acknowledgment of paternity and an acknowledgment of legitimation which have been made and have not been rescinded pursuant to Code Section 19-7-46.1. The State Office of Vital Records shall provide notice, in writing, of the alternatives to, legal consequences of, and the rights and responsibilities of signing a voluntary acknowledgment of legitimation.

       OCGA § 31-10-9 (e) provides in relevant part that “[t]he name of the natural father or putative father shall be entered on the certificate of live birth,” on condition that “(2) If the mother is not married at either the time of conception or at the time of birth, the name of the putative father shall not be entered on the certificate of birth without the written consent of the mother and the person to be named as father[.]”

       Hutchins had also petitioned the probate court to become the conservator for Ella Hawkins, the incapacitated mother of both Hutchins and Hawkins.

       Ridley has not raised, and we therefore do not address, whether there was “other clear and convincing evidence” before the probate court that Makaleb was “the child of” Hawkins for purposes of OCGA § 53-2-3 (2) (A) (v).

       OCGA § 53-2-4 (b) authorizes inheritance from an intestate child born out of wedlock to that child’s father or other paternal relations if (1) a court has “entered a court order declaring the child to be legitimate” or (2) “entered a court order establishing paternity”; (3) “[t]he father has, during the lifetime of the child, executed a sworn statement signed by the father attesting to the parent-child relationship”; (4) “[t]he father has, during the lifetime of the child, signed the birth certificate of the child”; or (5) “[a] presumption of paternity... has been established and has not been rebutted by clear and convincing evidence.”

       The general statement in Allifi v. Raider, 323 Ga. App. 510, 512 (746 SE2d 763) (2013) (physical precedent only), that “[a] father’s right to legitimate his child is absolute, subject only to the qualification that the natural mother may object,” is not binding precedent, Court of Appeals Rule 33 (a), and is based upon a 1974 decision construing former Ga. Code Ann. § 74-103.

       I acknowledge with thanks the contributions of James B. Outman, Esq. with regard to the legislative history of the administrative legitimation process, as well as some of the problems it has created. James B. Outman, Adoption Law Update, Institute of Continuing Judicial Education, July 24, 2013; James B. Outman, Special Topics in Adoption Law & Practice in Georgia, Institute of Continuing Legal Education, November 7, 2008.

       The Georgia Department of Human Resources and the Office of Child Support Services supported this legislation, but the latter acknowledged in testimony during the 2008 legislative session that while the number of illegitimate children in Georgia had decreased after the 2005 enactment, the amount of child support received on their behalf did not increase. Id. at 3.

       The majority correctly notes that Ridley has not raised below or on appeal a contention that an acknowledgment of legitimation satisfies or renders unnecessary the requirements set forth in OCGA § 53-2-3. It is also correct that neither OCGA § 19-7-22 (g) (2) nor OCGA § 19-7-46.1 specifies that a voluntary acknowledgment of paternity or legitimation obviates those requirements. But the obvious conflicts, as well as all the other problems noted here, exist whether raised by this appellant or by others in the future.

       This conclusion is supported by the 2008 amendment, which added the provision that the making of a false statement on the voluntary acknowledgment of legitimation “shall be punishable as an act of false statements and writings under Code Section 16-10-20,” OCGA § 19-7-21.1 (f), as well as the revised form promulgated by the Department of Vital Records, which provides a notary certificate form for each signature. But it seems altogether unlikely that an oath is administered and the form signed in the presence of a notary in every instance, particularly in the environment of a hospital maternity department. Outman, Adoption Law Update, supra, at 4. Nor does it seem likely, in my opinion, that any violation of this requirement would ever be prosecuted.

       I take this opportunity to correct a misstatement in Sauls. While that case was decided in 2012, the paternity acknowledgment was executed in 2005 and thus fell under OCGA § 19-7-22 (g) (2) rather than OCGA § 19-7-21.1.

       A determination of paternity may be set aside by a superior court only in a child support action and under strictly limited circumstances, and only when the father was unaware that he was not the biological father and has not “[s]igned a voluntary acknowledgment of paternity as provided in Code section 19-7-46.1.” OCGA § 19-7-54 (b) (5) (F). It appears that a collateral attack based upon fraud, false swearing, mistake, or evidence newly discovered by a third party may be the only available method to declare an administrative acknowledgment of paternity and legitimation void when it is clear that it has been signed by a nonbiological father. See generally In re White, 254 Ga. 678 (333 SE2d 588) (1985) (mistake); see also Venable v. Parker, 307 Ga. App. 880, 884 (706 SE2d 211) (2011) (Dillard, J., concurring fully and specially).


author: Phipps, Chief Judge.

text:
    A14A0505.
    SCARPACI et al. v. KAUFMAN et al.
    (762 SE2d 172)
   Phipps, Chief Judge.

Kaitlyn Scarpaci and Sean Garrett (collectively, “the Garretts”), as next friends and parents of Aubrey Garrett, a minor, sued Paul L. Kaufman, M.D., Jeffrey A. Carlisle, M.D., and Thomas Eye Group, PC., among others, for medical malpractice after Aubrey Garrett lost vision in both eyes within three months of her premature birth. The jury found in favor of the physicians and Thomas Eye Group, and the Garretts appeal. They contend that the trial court erred by failing to strike for cause three jurors who had indicated on voir dire that they were biased in favor of the defendants. For the reasons that follow, we reverse.

Civil litigants have the right to strike a jury from a full panel of qualified and competent jurors. Jurors “must be free from bias and prejudice regarding the trial’s outcome.” “A potential juror must be excused for cause based on partiality... if he or she holds an opinion so fixed and definite that he or she will be unable to set it aside and decide the case based on the evidence and the court’s charge on the evidence.” To rehabilitate a biased juror, a trial court “must conduct an inquiry, either through its own questioning or allowance of questions by counsel, sufficient to evaluate the potential juror’s fairness and impartiality. A trial court has broad discretion in making this evaluation, and we will not reverse its ruling absent a manifest abuse of discretion.”

[T]he broad general principle intended to be applied in every case is that each juror shall be so free from either prejudice or bias as to guarantee the inviolability of an impartial trial. ... In the interest of fair trial, if error is to be committed, let it be in favor of the absolute impartiality and purity of the jurors.

1. During general questioning of the whole jury panel, Juror No. 5 acknowledged that she was a patient of a doctor with Thomas Eye Group. She indicated that she had medical training, that she had “concerns about medical malpractice lawsuits and jury verdicts in general,” and that she was a potential juror who was “already leaning to one side or the other.”

During individual questioning of the whole panel, when the trial court asked “who thinks that they cannot be fair and impartial in this case[?],” Juror No. 5 raised her hand. Soon thereafter, the trial court asked Juror No. 5 to “tell me about your difficulties with being fair and impartial in this case.” Juror No. 5 responded, “I am a health professional and I’m afraid — I’m a little biased towards the health professionals in this case.” The trial court asked Juror No. 5 whether there was anything else she wanted to “bring up about that,” and Juror No. 5 replied, “I just — I don’t know the ins and outs, so I really can’t say for sure, but (unintelligible).” Defense counsel then posed the following, “Grant it you’re a health professional. . . . The bottom line is: Do you believe that you would be able to listen to the evidence in the case fairly and objectively and follow the law as the judge gives it to you on the burden of proof (unintelligible) malpractice? Would you be able to do that?” Juror No. 5 replied, “Probably.”

After the court had excused some jurors, further individual questioning commenced, and Juror No. 5 was questioned. Juror No. 5 stated that she was a physical rehabilitation nurse, and that she had never served on a jury before. The following then ensued.

[PLAINTIFFS’ ATTORNEY]: Earlier in the day we asked you some questions, and I think you said something about — that you would have a bias toward the defense; that it weighed on your conscience the idea of having to rule, if you were a juror, against doctors or hospitals.
JUROR NO. 5: This is the field that I work with, so — yeah, I would — you’d have to prove to me that something was actually done wrong for me to vote against them. I know this is a preponderance and I have a problem with because I don’t know how much — preponderance is really — everybody uses that word differently. I don’t know, I mean, how much of — how much of a percentage or whatever the whole that has to be proved or —
[PLAINTIFFS’ATTORNEY]: You’re a nurse, by training? JUROR NO. 5: Uh-huh (affirmative).
[PLAINTIFFS’ ATTORNEY]: And how long have you been doing nursing?
JUROR NO. 5: Almost 30 years.
[PLAINTIFFS’ ATTORNEY]: And has it all been in clinical nursing?
JUROR NO. 5: Yes.
[PLAINTIFFS’ ATTORNEY]: And where is it that you’ve worked?
JUROR NO. 5: I worked in various hospitals across the country. I’ve worked in Chicago — a suburb of Chicago; Alabama, Florida, and here.
[PLAINTIFFS’ ATTORNEY]: And other than your job as a nurse, have you ever worked in any other capacity in the last 30 years?
JUROR NO. 5: No.
[PLAINTIFFS’ ATTORNEY]: You mentioned a preponderance of the evidence. Isn’t it true, ma’am, that if you were picked as a juror that you would have strong feelings in favor of the defense, no matter what the jury instructions were, because of your life’s experience?
JUROR NO. 5: Like I said, my — my bias is going to lean towards them until I’m shown otherwise.
[PLAINTIFFS’ ATTORNEY]: We’re not starting off equally in this case; isn’t that correct?
JUROR NO. 5: Probably.

An exchange next occurred between the trial court and Juror No. 5 about the “preponderance of the evidence” standard.

THE COURT: [Y]ou had some issues about whether preponderance of the evidence is the right standard?
JUROR NO. 5:1 just don’t know how much the preponderance of — there’s got to be an overwhelming amount of the evidence.
THE COURT: [I]n general, preponderance means more likely than not. That’s all it means. Do you have an issue with applying that in a medical malpractice case?
JUROR NO. 5: No.... But I would still have to say — I need to see proof to show me that there was actually something that could have been done differently for me to go the other direction.

Thereafter, a defense attorney questioned Juror No. 5. He asked her:

[R] egardless of what your leanings were when you came into this courtroom, if you were instructed that—your job in this case is to set your leanings aside, evaluate the facts and the evidence objectively, and then listen to the law the Court gives you. ... Do you think you would be able to do that?

Juror No. 5 replied, “I have an issue with damages.” Upon further questioning, Juror No. 5 indicated that she could follow instructions from the court on “what is awardable” and on what standard to use in the event of a decision to make an award. The following exchange then occurred between a different defense attorney and Juror No. 5.

[DEFENSE ATTORNEY]: [S]o the only burden [of proof] you’re going to hold the plaintiffs to is that the legal burden is they have to prove by whatever the law the judge charges you, what the negligence was?
JUROR NO. 5: If there was or —
[DEFENSE ATTORNEY]: If there wasn’t. And if there was negligence and you believed it caused damages and you were instructed to find for the plaintiff under that circumstance award damages, could you do that?
JUROR NO. 5: Yeah.
[DEFENSE ATTORNEY]: And if there wasn’t negligence and you found the defendants were negligent, you could find for the defendants?
JUROR NO. 5: Correct.

The plaintiffs’ attorney then asked Juror No. 5 whether “in your heart of hearts, even if you were to find for [the child] and against these doctors,... you wouldn’t be able to really award an amount of money above the amount of the cost of her medical care?” Juror No. 5 responded, “I would be reluctant to.” One of the defense attorneys then asked Juror No. 5 whether she would follow the judge’s charge on the law of damages, and Juror No. 5 replied, “I don’t think I have a choice in the matter, do I?”

The trial court denied the Garretts’ motion to strike Juror No. 5 for cause. On appeal, the Garretts argue that the trial court erred in denying its motion to excuse Juror No. 5 for cause because, among other things, she

came into the case biased; was a patient of one of the Defendants; demanded that the Garretts produce an “overwhelming” amount of evidence to overcome those preexisting leanings; professed an inability to weigh and value the evidence fairly; . . . and expressed a “reluctance” to award [the child] what the law would allow.

The Garretts further claim that, “[n]ot once did [Juror No. 5] directly answer a single question about setting aside bias[.]” The appellees maintain that, notwithstanding any initial leanings, the follow-up questions by the trial court and the parties showed that Juror No. 5 could set aside any leanings and fairly judge the case.

(a) Although Juror No. 5 was a patient of a doctor employed by one of the defendants, she was not required to be excused for cause for that reason. Moreover, the ground for the motion to remove the juror for cause was not that she was a patient of one of the defendants, but rather, that she had “indicated that she had a bias in favor of the defendants due to her being in the medical profession.” And Juror No. 5 testified that she was biased because she was a health professional, not because she was a patient of a doctor employed by one of the defendants. Consequently, whether Juror No. 5 was biased because she was a patient of a doctor employed by one of the defendants is speculation, and based on the transcript of voir dire, the Garretts have failed to carry their burden of showing disqualification on that basis.

(b) Nor does it appear that Juror No. 5’s responses regarding the issue of damages in the case mandated her disqualification. “A juror who indicates a willingness to try to be objective and whose reservations relate to an issue in the case rather than to a party may be eligible for service.”

(c) We find, however, that as it concerned Juror No. 5’s ability to be fair and impartial to the parties in the case, the trial court manifestly abused its discretion in failing to strike Juror No. 5 for cause.

Before voir dire, jurors are required to take an oath to “give true answers to all questions as may be asked by the court or its authority.” Where a prospective juror, who has been asked whether he or she can be fair and impartial in the case, answers under oath a plain, “No,” and provides an explanation of her inability to be fair and impartial, the court should limit further questions to clarification of the answer.

And a court cannot “rehabilitate a biased juror simply by asking a talismanic question, such as whether the juror can set aside his personal feelings and decide the case based solely on the evidence and the law.”* Although the proper procedure was followed in this case, the trial court’s denial of the motion to strike Juror No. 5 for cause was not supported by any “evidence brought out by questioning by the trial court or counsel that re-established] the juror’s impartiality[.]”

When the trial court asked whether there were any potential jurors who could not be fair and impartial in the case, Juror No. 5 raised her hand, indicating that she could not do so. Upon request from the trial court, Juror No. 5 provided an explanation of her inability to be fair and impartial — she stated that she was a health professional who would be biased toward the health professionals in the case.

Later in voir dire, further questions to clarify her prior explanation were put to Juror No. 5. The juror discussed her work experience of almost 30 years as a nurse, and she stated that she was biased toward the defense because of her field of work. She further stated that she would lean toward the defendants until she was shown otherwise, and that, in all likelihood, the parties were not starting off equally. By the end of her questioning, although she had indicated an ability to follow the judge’s charges as to the issue of damages, she never retracted her earlier professed inability to be fair and impartial to the parties, she never retracted the “leaning” she said she had toward the defendants, she never retracted her statement that the parties were not starting off equally in her mind, and although she affirmed that she could apply the appropriate preponderance of the evidence burden of proof, she demonstrated an inability to be fair when she affirmatively stated that in order for her to come to the Garretts’ side, she would require proof not mandated by the law — that there was “actually something that could have been done differently.”

During individual questioning, when the talismanic question was put to her whether she could follow the jury’s charge to set aside her leanings, evaluate the facts and the evidence objectively, and listen to the law the court would give, Juror No. 5 did not answer the question. Instead, she stated that she had a problem with the issue of damages, which issue dominated the remaining questions put to her, with the exception of one question which yielded an arguably impartial response from the juror. A defense attorney asked Juror No. 5 a compound (and confusing) question about the “only” burden of proof as to “negligence” to which she would hold the plaintiffs, and about finding for a party if she found that “negligence” did or did not cause “damages.” However, considering the entirety of the voir dire, the juror’s responses in that incomprehensible exchange with a defense attorney, “did nothing to assure that [she] could be so free from either prejudice or bias as to guarantee the inviolability of an impartial trial.”

Decided July 16, 2014 —

O. Mark Zamora, Summerville Moore, Darren Summerville, for appellants.

Peters & Monyak, Robert P. Monyak, Melissa B. Johnson, Car-lock, Copeland & Stair, Wayne D. McGrew, Rebecca C. Wall, for appellees.

In this case, Juror No. 5’s impartiality was never re-established by evidence brought out by questioning by the trial court or counsel. “Because the trial court did not ferret out bias, an abuse of discretion resulted, and a new trial is required.”

2. In view of our ruling in Division 1, we need not address the Garretts’ contentions regarding the other two jurors.

Judgment reversed.

Ellington, P. J., concurs. McMillian, J., concurs in judgment only.

       See Stolte v. Fagan, 291 Ga. 477, 478-479 (1) (731 SE2d 653) (2012).

        Guoth v. Hamilton, 273 Ga. App. 435, 438 (1) (615 SE2d 239) (2005).

        Elliott v. Home Depot U. S. A., 275 Ga. App. 865, 867 (2) (622 SE2d 77) (2005) (footnote omitted).

        Guoth, supra (citation omitted).

        Cambron v. State, 164 Ga. 111, 113-114 (137 SE 780) (1927); see Kim v. Walls, 275 Ga. 177, 178 (563 SE2d 847) (2002).

       During general questioning, Juror No. 5 had raised her hand when the panel was asked if there was anyone who was predisposed to rendering a verdict in favor of the child based on sympathy.

       See Cohen v. Baxter, 267 Ga. 422, 423 (1) (479 SE2d 746) (1997) (“The fact that the doctor-patient relationship exists between a juror and a defendant does not justify removing... discretion from the trial courts” to retain or to dismiss a juror).

       See generally Poole v. State, 291 Ga. 848, 854 (3) (734 SE2d 1) (2012) (reiterating that the burden of proving partiality rests with the party seeking to have the juror disqualified).

        Wood v. B&S Enterprises, 314 Ga. App. 128, 134-135 (4) (723 SE2d 443) (2012) (punctuation and footnote omitted; emphasis supplied).

        Foster v. State, 258 Ga. App. 601, 608 (3) (574 SE2d 843) (2002) (footnotes omitted).

        Elliott, supra (footnote omitted).

        Poole, supra.

        Zwiren v. Thompson, 276 Ga. 498, 499 (578 SE2d 862) (2003) (“Medical malpractice being a civil cause of action, a plaintiff must prove liability^] i.e., duty, negligence, proximate cause[,] by a preponderance of the evidence.”) (citation omitted).

       See Haughton v. Canning, 287 Ga. App. 28 (2) (650 SE2d 718) (2007) (“Three elements are essential to establish a medical malpractice claim: the doctor’s duty to his patient; the doctor’s breach of that duty through the failure to exercise the requisite degree of skill and care; and an injury proximately caused by the doctor’s failure.”) (citation omitted); Zwiren, supra (preponderance of the evidence standard “requires only that the finder of fact be inclined by the evidence toward one side or the other”) (citation and punctuation omitted).

        Brown v. Columbus Doctors Hosp., 277 Ga. App. 891-892, 894 (627 SE2d 805) (2006) (rambling answer could not be read as indicating that juror would be fair and impartial); see Foster, supra at 607-609 (3) (where juror had not withdrawn her statement that she believed that she could not be a fair and impartial juror in case to be tried, and that even after hearing the evidence and instructions from the judge, her preconceived feelings about the case might influence her thoughts, subsequent interrogation by the court and the prosecutor proceeded in a manner calculated to elicit a response contrary to the one originally given and was nothing more than an effort to justify finding a biased juror qualified; juror should have been excused for cause); Ivey v. State, 258 Ga. App. 587, 592 (2) (574 SE2d 663) (2002) (“Atrial court may not rely solely on a prospective juror’s extracted statement of impartiality, where, as here, consideration of the entirety of the voir dire reveals a prospective juror with a fixed and definite bias that she was unable to set aside in deciding the case.”) (footnote omitted).

        Poole, supra.

        Brown, supra at 895 (citations omitted); see generally Foster, supra; Ivey, supra (where juror repeatedly informed trial court that she had already formed an opinion about the defendant’s guilt or innocence and that her personal experience would not permit her to be impartial in the case, juror reiterated the same to the prosecutor during his efforts to rehabilitate her, and after being confronted repeatedly with variations of the “rehabilitation” question, juror abandoned her own answers and adopted the court’s words, trial court manifestly abused its discretion in failing to strike juror for cause; record as a whole failed to support the court’s finding that the juror could put aside her bias to render an impartial verdict); Meintzer v. Weinberg, 212 Ga. App. 307 (1) (441 SE2d 774) (1994); Parisie v. State, 178 Ga. App. 857, 858-859 (2) (344 SE2d 727) (1986) (trial court manifestly abused its discretion in failing to excuse a juror for cause, where juror stated that he was not impartial between the state and the accused, he could not judge the case fairly, he would be influenced by previous events in his life, and there was no indication that juror equivocated about his impartiality).


author: DOYLE, Presiding Judge. MILLER, Judge,

text:
    A14A0635.
    PESTANA v. THE STATE.
    (762 SE2d 178)
   DOYLE, Presiding Judge.

In November 2009, James Andrews Pestaña entered a negotiated plea of guilty to aggravated assault and was sentenced under the First Offender Act to confinement for a period of ten years, which sentence could be served on probation. In July 2013, the superior court signed an order of discharge after Pestana’s probation officer filed a petition for discharge indicating that Pestaña had fulfilled the terms of his probation. The court subsequently rescinded the discharge order and reinstated Pestana’s original sentence, and Pestaña appeals that ruling. Because the superior court has plenary power to correct its own mistaken ruling during the same term of court, we affirm.

The record shows that Pestaña was charged with two counts of aggravated assault with a deadly weapon, a handgun, arising from a single incident between Pestaña and two alleged victims, Gary Berrong and Scott Albach. The incident was part of an escalating neighborhood dispute allegedly involving roving ducks, a “mooning” incident, and land disturbance causing water on a roadway. Pestaña had become estranged with certain neighbors, and in June 2009, after several confrontations, Berrong and Albach stopped their truck in the roadway and began taking photographs of Pestaña for a pending lawsuit while he mowed his grass approximately 50 feet away. Pestaña, who almost always carried a firearm, pulled a handgun out of his pocket, pointed it at the men, and “told them they needed to keep going.” Berrong and Albach immediately complied.

Based on this incident, Pestaña was arrested and charged with two counts of aggravated assault. In November 2009, Pestaña entered a negotiated plea of guilty to count one (assaulting Berrong with a handgun), and the State agreed to nolle prosequi count two (assaulting Albach with a handgun). In accordance with the plea deal, Pestaña was “sentenced to confinement for a period [of] . . . [ten] years,” noting that the sentence could be served on probation. The terms of his probation included conditions that he not possess any firearms nor have direct or indirect contact with Berrong, Albach, or their families.

On July 3, 2013, a probation officer filed a petition for discharge noting that Pestaña was placed on probation for ten years in November 2009, but also stating that he was eligible for discharge “by having fulfilled the terms of said probation.” The district attorney’s office was not notified of the petition for discharge, nor were the victims, so they did not participate in the discharge process. On July 10, 2013, the superior court signed an order of discharge, which order was entered on July 18, 2013.

Upon learning of the discharge, the State filed on September 5, 2013, a motion for reconsideration stating its lack of notice and the failure to notify any victims in accordance with OCGA § 17-17-1 et seq. The superior court held a hearing at which the State, Pestaña, Berrong, and Albach were present. At the hearing, the State explained that the original petition for discharge was apparently mistakenly generated due to a probation office data entry error that created a 2003 conviction date rather than the correct 2009 conviction date. The State did not introduce evidence to this effect, but Pestana’s counsel also stated at the hearing that “[ojbviously there must have been a miscalculation to put his conviction date down wrong.” Under that erroneous scenario, in 2013, the ten-year sentence would have ended, and Pestaña would have been eligible for discharge as successfully completing his probation term. The discharge petition perpetuated this data entry error by accurately stating the ten-year sentence but incorrectly stating that Pestaña had “fulfilled the terms of said probation” in 2013 — after less than four years. Thus, the discharge petition was not couched in terms of early release prior to the end of the probation period, but instead it was phrased to reflect fulfillment of the term of probation. Despite the apparent error, the discharge petition was generated and submitted to the superior court.

The State also explained that the district attorney’s office had not been notified of the discharge petition, and therefore, neither had any of the victims. The State argued that had it been notified, it would have been able to comply with the notification provisions of the Crime Victims’ Bill of Rights under OCGA § 17-17-1 et seq. Albach testified at the hearing that he was afraid of Pestaña, whom he characterized as “unstable” and well-armed. After hearing the evidence and argument, the superior court granted the State’s motion and reinstated Pestana’s sentence, leaving open the option that it could entertain another discharge petition in the future. Pestaña now appeals the reinstatement of his sentence.

1. Pestaña first argues that the superior court erred because the State’s motion for reconsideration, filed 49 days after the court’s discharge order was entered, was untimely. Because of the unusual procedural posture of the case, Pestaña points to no specific statutory provision explicitly requiring the State’s motion to be filed within a certain date, instead arguing that the motion was akin to a motion for new trial or an appeal, both of which must be filed within 30 days. But it appears from the record that the State did not have notice of the discharge order before 30 days would have elapsed. Under these unique factual circumstances, the State sought to invoke the superior court’s authority over its orders and judgments issued within the same term of court. The superior court explicitly proceeded under this authority in its reinstatement order; therefore, under these facts, the motion was functionally like a motion in arrest of judgment, which “must be made during the term at which the judgment was obtained.” Also, the motion arose out of a defect appearing on the face of the discharge petition and order.* Therefore, the State’s failure to take action within thirty days of the discharge order was not fatal to its motion filed in the same term upon becoming aware of the discharge.

2. Pestaña next argues that any failure to notify the victims or allow them to participate in the proceedings did not require reinstatement of his sentence. It is true that, as Pestaña points out, the victim notification provisions at OCGA § 17-17-1 et seq. are typically required “wherever practicable,” “whenever possible,” or “to the extent possible,” so lack of notification does not necessarily reflect an error requiring correction by the trial court. The State’s appellate brief likewise focuses on the importance of such notice, which serves the laudable policy of allowing crime victims to be aware of the proceedings involving the accused. But pretermitting the legal import of the victims’ notification in the discharge process, the discharge in this case was based on a patent error in the discharge petition — that Pestana’s ten-year sentence was complete.

Courts of record retain full control over orders and judgments during the term at which they were made, and, in the exercise of a sound discretion, may revise or vacate them. . . . During the term of court at which a judgment is rendered[,] the [trial] court has power, on its own motion, to vacate the same for irregularity, or because it was improvidently or inadvertently entered. The plenary control of the court over orders and judgments during the term at which they were rendered extends to all orders and judgments save those which are founded upon verdicts. The power of the court, during the term, is described as plenary, to be used for the purpose of promoting justice, but the court’s discretion, although broad, is not unbounded and should be exercised only upon sufficient cause shown. Hence, [courts] have recognized that this inherent power should not be used unless some meritorious reason is given therefor. However, the right to determine what is a meritorious reason is also addressed to the sound discretion of the [trial] judge, and this [C]ourt will not reverse his or her decision unless such discretion is manifestly abused.

Here, the superior court revisited a discharge order which, on its face, contained an internal inconsistency based on what the court later learned was an inadvertent data entry error in the probation office. As a result, the discharge order incorrectly stated Pestaña had “fulfilled the terms” of his ten-year sentence less than four years into it. This is precisely the type of error that a trial court should have discretion to correct.

Further, the discharge order was not a final judgment founded on a jury verdict such that it violated double jeopardy principles or was unreviewable by the trial court absent a timely motion for new trial. The discharge order was part of the procedure effectuating the first offender disposition of Pestana’s case, and Pestana’s sentence remained unaltered from that which was lawfully entered pursuant to his guilty plea. Nor did the court change Pestana’s eligibility for first offender treatment accorded by his original plea and sentence.

The fact that the case was essentially closed after the discharge does not affect the superior court’s authority to revisit it under the facts presented. For example, in Buice v. State, the Supreme Court addressed a trial court’s authority to vacate a nolle prosequi order that it had previously entered. As the Court explained, a “[n]olle prosequi is the State’s formal action on its decision not to further prosecute an indictment. It is well established that entry of a nolle prosequi terminates the prosecution pending on that indictment and that the State cannot try a defendant on a charge that has been nol prossed.” Thus, after the entry of a nolle prosequi order, that case is no longer pending before the trial court, and the defendant is free from prosecution on that indictment. Even so, the Supreme Court explained that the trial court had inherent authority to vacate its own nolle prosequi order within the same term of court (based on new evidence the trial court was not aware of when it entered the nolle prosequi) and effectively reinstate the original indictment. The Court’s rationale was not a narrow one limited to nolle prosequi orders, but instead broadly based on “well-established Georgia law regarding the plenary control courts of record retain to revise or vacate orders and judgments during the term at which they were entered.”

For the foregoing reasons, we conclude that the trial court did not err by rescinding the discharge order and reinstating Pestana’s original sentence.

Judgment affirmed.

Andrews, P. J., Ellington, P. J., Dillard and McMillian, JJ., concur. Phipps, C. J., and Miller, J., dissent.

MILLER, Judge,

dissenting.

I respectfully dissent to the majority’s opinion because a trial court that has lawfully discharged a defendant from a sentence under the First Offender Act, resulting in that defendant’s complete exoneration, cannot subsequently reinstate the defendant’s probation. Although a trial judge has plenary power over its orders and judgments during the term of court in which they are entered, when there is no error, there is nothing to correct, and a trial judge does not have authority to reinstate a defendant’s First Offender sentence, regardless of the term of court. Upon a trial judge’s review and exercise of his discretion to discharge a First Offender, the trial court no longer has any jurisdiction in the matter. The defendant’s constitutional rights have been restored, and the defendant no longer has a criminal record. If this were not the case, the defendant could be placed in double jeopardy, i.e., punished twice for the same crime, even though he did everything he was supposed to do under the terms of the First Offender Act and has relied on the trial court’s order discharging him.

The Supreme Court of Georgia has held that “[t]he underlying humanitarian purpose of the first offender statutes is to protect the first offender from the stigma of having a criminal record[.]” (Citations and punctuation omitted.) Davis v. State, 269 Ga. 276, 277 (2) (496 SE2d 699) (1998). This purpose cannot be overstated. The First Offender Act gives defendants a one-time opportunity for rehabilitation, and an opportunity to be gainfully employed after a criminal infraction with no record where the trial court determines that the defendant is worthy of such an opportunity. A probated sentence entered under this Act is preliminary only. Consequently, unlike other probated sentences, a defendant on First Offender probation “is not merely serving his sentence outside the confines of prison, but is serving a period on probation to determine whether or not [he] may be rehabilitated.” State v. Wiley, 233 Ga. 316, 318 (210 SE2d 790) (1974). Where the defendant successfully fulfills the terms of his probation or is released by the trial court prior to the termination of the probationary period, the defendant’s felony criminal slate is wiped clean, and his civil rights and liberties are unaffected. See OCGA § 42-8-62 (a).

The First Offender Act pertinently provides:

Upon fulfillment of the terms of probation, upon release by the court prior to the termination of the period thereof, or upon release from confinement, the defendant shall be discharged without court adjudication of guilt. . . . [T]he discharge shall completely exonerate the defendant of any criminal purpose ... and the defendant shall not be considered to have a criminal conviction. . . .

(Emphasis supplied.) OCGA § 42-8-62 (a). “Where [as here] the language of a statute is plain and susceptible to only one natural and reasonable construction, [we] must construe the statute accordingly.” Luangkhot v. State, 292 Ga. 423, 424 (1) (736 SE2d 397) (2013).

[T]he plain language of [OCGA § 42-8-62 (a)] provides that, with certain exceptions [not applicable here], once a first offender has been discharged without an adjudication of guilt, he or she stands completely exonerated and shall not be considered as having been convicted of a crime.

(Footnote omitted.) Jackson v. State, 299 Ga. App. 356, 358 (1) (683 SE2d 60) (2009). Based on the plain language of OCGA § 42-8-62 (a), once Pestaña was discharged, he was completely exonerated. Consequently, regardless of the term of court, at this point the case was no longer pending before the trial court, and the trial court lacked authority to reconsider its ruling or enter any order in Pestana’s case.

In so holding, I reject the State’s argument and the majority’s opinion that the trial court retained jurisdiction because the petition for discharge was based on an inadvertent data error entered into a probation supervisor’s computer. At the hearing on the motion for reconsideration, the State argued that “the information that the individual who remains unknown entered into the computer for probation supervision purposes, indicated that [Pestana’s] conviction date was a conviction date of 2003[.]” The State did not support its argument with any documents, testimony or other factual evidence. Moreover, defense counsel specifically emphasized the lack of any supporting evidence by stating at the hearing that nothing presented to the trial court shows that there was a misrepresentation or clerical error.

Decided July 16, 2014.

Kerry B. Morris, for appellant.

W. Jeffrey Langley, District Attorney, T. Buckley Levins, Assistant District Attorney, for appellee.

Contrary to the majority’s contention, Pestana’s discharge under the First Offender Act was lawful and not based on a patent error, or any error, in the discharge petition. Both the petition for discharge and the trial court’s order of discharge clearly state on their face that Pestaña was placed on probation on November 16, 2009 for a period of ten years. Moreover, the fact that the discharge petition was not expressly couched in terms of an early release, does not mean that the probation officer mistakenly believed that Pestaña had fulfilled the entire term of his probation. Rather the probation officer’s language that Pestaña fulfilled the terms of his probation merely reflects that he successfully complied with his probation conditions, which is ordinarily a prerequisite for obtaining an early discharge.

Here, the trial court conducted its own review of Pestana’s criminal record before entering the order discharging Pestaña without an adjudication of guilt. In discharging Pestaña, the trial court was well aware that he had served less than four years on probation, and the First Offender Act specifically authorizes early discharge when a defendant, such as Pestaña, has complied with the terms of his probation. SeeOCGA § 42-8-62 (a). Since there was no error in the discharge petition, there was nothing for the trial court to correct within the term of court.

Pestaña was given First Offender treatment, and his subsequent discharge shows that the First Offender Act served its purpose in this case. While I agree that notification of the victims prior to the early discharge of a First Offender’s probation is the best practice, neither the terms of Pestana’s First Offender probation, nor the First Offender Act required it. Pestana’s lawful early discharge in accordance with the First Offender Act restored his constitutional rights and completely exonerated him, so that going forward he would have no criminal record.

To decide this case as the majority suggests means that defendants, who have been discharged under the First Offender Act, can no longer rely on their discharge order. Accordingly, I would reverse the trial court’s order reinstating Pestana’s probation.

I am authorized to state that Chief Judge Phipps joins in this dissent.

       OCGA § 16-5-21 (b) (2).

       OCGA § 42-8-60 (a) (2).

       Much of the factual background is taken from a transcript of a civil proceeding that was made part of the record in this case. We rely on it primarily for context, as it does not directly bear on the legal issues presented on appeal.

       Pestaña had a valid firearm permit.

       Under the first offender statute, OCGA § 42-8-60 (a), a trial court may, in the case of a defendant who has not been previously convicted of a felony, . . . without entering a judgment of guilt and with the consent of the defendant: (1) [d] efer further proceeding and place the defendant on probation as provided by law; or (2) [s]entence the defendant to a term of confinement as provided by law.
      Based upon the sentencing sheet and the plea colloquy, it is apparent that the trial court sentenced Pestaña to a term of ten years, albeit to be served on probation, pursuant to OCGA § 42-8-60 (a) (2).

       Albach also referred to Pestana’s heavy use of prescription drugs as a basis for his fear. At an earlier civil hearing, Pestaña had explained that he regularly used oxycodone and hydrocodone for chronic pain due to an injury, as well as antidepressants; all of which, Pestaña testified, impair his judgment.

       The order stated that Pestaña was permitted to serve the remainder of his sentence on probation.

       See OCGA §§ 5-5-40 (a) (motion for new trial); 5-6-38 (a) (notice of appeal).

       See, e.g., Buice v. State, 272 Ga. 323, 325-326 (528 SE2d 788) (2000).

       OCGA § 17-9-61 (b). See generally OCGA § 17-9-61 (a) (“When a judgment has been rendered, either party may move in arrest thereof for any defect not amendable which appears on the face of the record or pleadings.”).

       See OCGA § 17-9-61 (a).

       The terms of court for Towns County Superior Court, which is in the Enotah Circuit, are January 1 and July 1. See OCGA § 15-6-3 (17.1) (A). In this case, the superior court entered the order of discharge on July 10, 2013, and the State filed its motion for reconsideration on September 5, 2013, within the same term of court.

       Cf. Pope v. Pope, 277 Ga. 333, 335 (588 SE2d 736) (2003) (applyingBrace andholding that “considering all the circumstances, including the lack of notice to [the respondent] of the final hearing, . . . the trial court did not err in exercising its inherent power to set aside the [final] judgment”).

       OCGA § 17-17-5 (a).

       OCGA § 17-17-7 (a).

       OCGA § 17-17-8 (b).

       See OCGA § 17-17-1.

       See OCGA § 17-17-15 (c) (The Crime Victims’ Bill of Rights “does not confer upon a victim any standing to participate as a party in a criminal proceeding or to contest the disposition of any charge.”).

       (Citations and punctuation omitted; emphasis supplied.) Buies, 272 Ga. at 324-325, citing Jones v. Heilig Meyers, 223 Ga. App. 277, 278 (477 SE2d 411) (1996), Pledger v. State, 193 Ga. App. 588, 589 (2) (a) (388 SE2d 425) (1989), Giddeons v. State, 156 Ga. App. 800, 801 (275 SE2d 370) (1980).

       See generally Hipp v. State, 293 Ga. 415, 416 (746 SE2d 95) (2013) (The “ ‘plenary control of the court over orders and judgments during the term at which they were rendered extends to all orders and judgments save those which are founded upon verdicts.’ ”), quoting Buice, 272 Ga. at 325.

       272 Ga. 323 (528 SE2d 788) (2000).

       See id. at 323-326.

       Id. at 324.

       See id. at 326.

       Id. at 326.

        Hipp v. State, 293 Ga. 415, 416 (746 SE2d 95) (2013).


author: Branch, Judge.

text:
    A14A0643.
    JORDAN v. THE STATE.
    (762 SE2d 157)
   Branch, Judge.

Following his convictions for aggravated assault and sodomy and the denial of his motion for new trial, James William Jordan appeals and contends the trial court erred instructing the jury on the law of sodomy and by allowing evidence of a similar transaction. We agree that the trial court erred when it failed to respond to a question from the jury by informing the jury of the category of sexual acts decriminalized by our Supreme Court’s decision in Powell v. State, 270 Ga. 327 (510 SE2d 18) (1998), which amounted to Jordan’s sole defense to the sodomy charge. We therefore reverse Jordan’s conviction of sodomy and remand for a new trial on that charge.

Construed in favor of the verdict, see Jackson v. Virginia, 443 U. S. 307 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979), the evidence shows that the victim and Jordan ended their romantic relationship in mid-February 2009 but that the victim admitted having sex with Jordan twice in the 24 hours leading up to the incident at issue. On the evening of February 27, 2009, the victim, Jordan, and Liane Miller returned to Miller’s house following an evening at a local establishment. Miller asked Jordan to leave after he discharged a firearm in her house, and the victim left with him. The victim then walked a short distance to the place where she was staying, arguing with Jordan along the way. When the two reached the driveway, Jordan grabbed her hair and shirt, and when the victim resisted, her shirt came off. Jordan told the victim that he had a pistol in his pocket, and he ordered her to go with him to his camper located a short distance away and held her arm as they walked. In the camper, Jordan told the victim to undress, called her a whore, and ordered her to perform oral sex on him. When she refused, he forced her by putting a knife to her throat, and forced her movements during oral sex such that she sustained injuries and threw up. While still holding the victim at knifepoint, Jordan then attempted to have forcible anal sex with her. When that attempt was unsuccessful, Jordan held the victim against a wall by the neck with her feet off the ground and told her he was going to kill her if she left him. To escape, the victim told Jordan that she would call another woman so the three of them could have sex, and she called Miller to ask to borrow her car. When the couple returned to Miller’s house, Jordan asked Miller if he could use the car, but the victim signaled to Miller by putting her hands to her throat and shaking her head “no,” and Miller refused Jordan’s request. Jordan became angry, and the victim ran to the bathroom, locked herself in, and called the police. Jordan threatened to kick the door down, but the victim stayed in the bathroom until the police arrived and arrested Jordan.

The State also introduced evidence showing that Jordan’s uncle suggested to the victim that she testify that she could not recall the events, as well as evidence that Jordan asked the victim to tell the jury that she had lied to the police and that “it was all willing[ ] and rough sex.” In addition, the State introduced a letter from Jordan to the victim in which he professed love to her and stated:

If I get convicted, do not blame yourself for it, but with you on my side, the odds are for me. He does not have a case on me without you . . . but he don’t know that you are going to come to court for me and he don’t know that you are going to be Ms. Jordan when I get out.

The sexual assault nurse who saw the victim within six hours of the incident testified that the victim’s injuries were “the most severe injury to an oral cavity that I’ve seen [since 1996].” The nurse also testified that markings on the victim’s neck were consistent with having a knife held against her neck, that bruises on her neck were consistent with having been choked, and that the victim had injuries in the anal area.

1. The evidence was sufficient to support the convictions of aggravated assault, for threatening to injure the victim with the knife, and nonconsensual sodomy, for forcing the victim to engage in oral sex. See OCGA §§ 16-5-21 (b) (aggravated assault); 16-6-2 (a) (1) (sodomy).

2. Jordan contends the trial court erred by failing to give a correct jury charge regarding sodomy in its initial charge and by failing to respond properly to the jury’s question about the definition of sodomy. We agree with the second of these contentions.

The trial court instructed the jury that Jordan had been charged “with the offense of sodomy for the said accused . . . did perform a sexual act with the person of [the victim] involving the sex organs of the accused and the mouth of said person,” which tracks the language of OCGA § 16-6-2 (a) (1). Following the complete charge to the jury, Jordan asked that the term “by force” be added to the sodomy charge, citing Powell, 270 Ga. at 336 (3) (“OCGA § 16-6-2, insofar as it criminalizes the performance of private, unforced, non-commercial acts of sexual intimacy between persons legally able to consent, manifestly infringes upon a constitutional provision which guarantees to the citizens of Georgia the right of privacy.”) (citation and punctuation omitted). See also State v. Eastwood, 243 Ga. App. 822, 823 (535 SE2d 246) (2000) (applying Powell to uphold the trial court’s decision to void defendant’s sodomy convictions where facts showed that defendant engaged in consensual, unforced, private, and noncommercial acts of sodomy with a person legally able to give consent).

The trial court denied the request. During the deliberations, the jury asked the court about the “legal definition of sodomy.” In response, the court simply read to the jury from the statute as follows: “Aperson commits the offense of sodomy when he performs any sexual act involving the sex organs of one person and the mouth or anus of another.” Jordan did not object to the court’s answer. On appeal, Jordan argues that because consent was argued to the jury as his sole defense, the court’s refusal to add the term “by force” to the charge was clearly harmful and erroneous as a matter of law.

We first point out that Jordan did not present a written request to charge on Powell or consent as a defense to sodomy, and

[a] criminal defendant is ordinarily required to present written requests for any desired jury instructions. OCGA § 5-5-24 (b) . He is relieved of this duty only where the omission is clearly harmful and erroneous as a matter of law in that it fails to provide the jury with the proper guidelines for determining guilt or innocence.

Shepherd v. State, 280 Ga. 245, 252 (4) (626 SE2d 96) (2006) (citation and punctuation omitted). Nevertheless, “[w]hen a given instruction fails to provide the jury with the proper guidelines for determining guilt or innocence, it is clearly harmful and erroneous as a matter of law.” Chase v. State, 277 Ga. 636, 639 (2) (592 SE2d 656) (2004) (citations and punctuation omitted). Specifically, “ ‘[a] trial court must charge the jury on the defendant’s sole defense, even without a written request, if there is some evidence to support the charge.’ ” Price v. State, 289 Ga. 459 (2) (712 SE2d 828) (2011), quoting Tarvestad v. State, 261 Ga. 605, 606 (409 SE2d 513) (1991). In addition, “[w]hen the jury is confused and in doubt and requests further instructions on a particular point, it is the duty of the court to further instruct them.” Freeman v. State, 142 Ga. App. 293, 294-295 (4) (235 SE2d 560) (1977) (citations omitted).

Force is not an “element” of the sodomy statute. Nonetheless, our Supreme Court’s decision in Powell decriminalized “private, unforced, non-commercial acts of sexual intimacy between persons legally able to consent” that would otherwise fall under the purview of the sodomy statute. 270 Ga. at 336 (3). Further, in a case involving solicitation of sodomy that necessarily involved the definition of sodomy under Georgia law, our Supreme Court has held:

[A]s construed in Powell and Howard [v. State, 272 Ga. 242 (527 SE2d 194) (2000)], an individual violates the solicitation of sodomy statute if he (1) solicits another individual (2) to perform or submit to a sexual act involving the sex organs of one and the mouth or anus of the other and (3) such sexual act is to be performed (a) in public; (b) in exchange for money or anything of commercial value; (c) by force; or (d) by or with an individual who is incapable of giving legal consent to sexual activity.

Watson v. State, 293 Ga. 817, 820 (1) (750 SE2d 143) (2013) (emphasis supplied). The facts before us raise no issue as to the scenarios raised in categories (3) (a), (b), or (d) of Watson. Yet even in the wake of the jury’s question on the definition of sodomy, the trial court failed to inform the jury that an absence of force was, under the facts of this case and in light of Powell, Howard, and Watson, a possible defense to that crime. In short, and although the State put on evidence that Jordan forced the victim to engage in sodomy, the trial court should have treated Jordan’s request that the jury be charged on force “as an element” of the sodomy statute as a request to charge on the category of “private, unforced, non-commercial acts of sexual intimacy between persons legally able to consent” decriminalized in Powell, which the record shows was Jordan’s sole defense to the crime. Accordingly, we reverse Jordan’s conviction of sodomy and remand for a new trial on that charge. See Price, 289 Ga. at 461-462 (2) (reversing conviction for burglary when trial court failed to charge jury on defendant’s sole defense of mistake of fact, and when “the charge given actually did nothing to properly inform the jury about the true nature” of that defense); Boone v. State, 250 Ga. App. 133, 144 (16) (549 SE2d 713) (2001) (reversing only those convictions affected by erroneous jury instruction).

3. Jordan contends the trial court erred by allowing similar transaction evidence. Evidence of a similar transaction may be admitted if the State carries its burden of showing that

(1) it seeks to introduce the evidence “not to raise an improper inference as to the accused’s character, but for some appropriate purpose which has been deemed to be an exception to the general rule of inadmissibility’; (2) “there is sufficient evidence to establish that the accused committed the independent offense or act”; and (3) “there is a sufficient connection or similarity between the independent offense or act and the crime charged so that proof of the former tends to prove the latter.”

Moore v. State, 290 Ga. 805, 807 (725 SE2d 290) (2012), quoting Williams v. State, 261 Ga. 640, 642 (409 SE2d 649) (1991). A trial court’s ruling to admit evidence of a similar transaction is reviewed under an abuse of discretion standard, but factual findings are accepted unless clearly erroneous. Reeves v. State, 294 Ga. 673, 676 (2) (755 SE2d 695) (2014) (citation omitted). “Accordingly, we will not disturb the findings on the issue of similarity or connection of similar transaction evidence unless the finding is clearly erroneous.” Id. (citation omitted).

At the beginning of the trial, L. L., the victim in the similar transaction, testified that she had dated Jordan for a few months toward the end of 2005, but that one time in early 2006, Jordan came to her home and told her that he missed her. When she told him she did not want to talk about it, Jordan put his arm across her, pinned her down, choked her, and pulled her pants down as L. L. struggled to pull them back up. Jordan then grabbed L. L., pulled her to the ground, pinned her down and jerked her pants completely off. L. L. pleaded with him to stop, but Jordan told her the she was a whore, and that “he’d see [her] dead before anybody else would have [her].” Jordan then raped her violently and said, “Jordans don’t take no for an answer.” When Jordan saw that L. L.’s roommates were returning, Jordan pulled a knife out of his pants, stuck it to L. L.’s throat, and told her that if she told anyone about what happened, he would kill her and that she “would never see [her] kids again.” Within a couple of days of the incident, L. L. contacted Cynthia O’Barr of the Franklin County Sheriff’s Office and told O’Barr that she had been raped.

“[T]he proper focus in a similar transaction case is on the similarities between the two transactions and not the differences.” Reeves, 294 Ga. at 676-677 (2) (citation omitted). Further, “[t]he exception to the general rule that evidence of independent crimes is inadmissible has been most liberally extended in the area of sexual offenses.” Johnson v. State, 242 Ga. 649, 653 (3) (250 SE2d 394) (1978) (citations omitted).

Here, Jordan contends the two incidents were not sufficiently similar because the evidence did not show that L. L. was raped. But, as shown above, the record belies this assertion. Jordan also contends that the evidence regarding L. L. was not offered for a proper purpose. But prior to the May 2009 trial, the State filed a notice of intent to produce evidence of a similar transaction for the purpose of showing the defendant’s course of conduct and bent of mind, “which were appropriate purposes under Georgia law at the time of appellant’s trial.” Reeves, 294 Ga. at 675 (2) (footnote omitted). Jones does not challenge any other aspect of the trial court’s decision.

Decided July 16, 2014.

Amanda S. Morris, for appellant.

D. Parks White, District Attorney, Jean G. Mangan, Geoffrey L. Fogus, Assistant District Attorneys, for appellee.

Our review shows that both the victim in this case and the victim in the similar transaction were Jordan’s ex-girlfriends and that Jordan called both of them “whores,” threatened to kill both victims, ripped off the victims’ clothing, choked both victims, put a knife to the throat of both victims, asserted that the victims or their bodies were his alone, and sexually assaulted both victims violently. Thus, the trial court’s factual findings regarding similarity of the two transactions are not clearly erroneous. The similar transaction was relevant to Jordan’s course of conduct of taking violent actions with his ex-girlfriends when they refuse to continue the relationship and his bent of mind controlling and sexually assaulting them at knifepoint. Therefore the trial court did not abuse its discretion in admitting the similar transaction evidence.

Judgment affirmed in part and reversed in part, and case remanded with direction.

Barnes, P. J., and Boggs, J., concur.

       Jordan was acquitted of rape and kidnapping.

       We also note that the facts as presented to the jury may well have justified a charge of aggravated sodomy, which is distinguished from sodomy by either the use of “force .. . against the will of” a victim or a victim’s age being ‘less than ten years.” OCGA § 16-6-2 (a) (2).

       Jordan was tried in 2009 under Georgia’s old Evidence Code, which allowed similar transaction evidence to be admitted for the purposes, among others, of showing the defendant’s bent of mind or course of conduct. See Matthews v. State, 294 Ga. 50, 52 (3) (a), n. 2 (751 SE2d 78) (2013).
      Georgia’s new Evidence Code, which applies to trials conducted after January 1, 2013, see Ga. L. 2011, p. 99, § 101, allows admission of “evidence of other crimes, wrongs, or acts” for purposes “including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” OCGA § 24-4-404 (b).
      Id.