author: Branch, Judge.

text:
    A16A1392.
    EDVALSON v. THE STATE.
    (793 SE2d 545)
   Branch, Judge.

Thomas Scot Edvalson appeals from an order of the Gwinnett County Superior Court denying his motion to dismiss and plea of former jeopardy. Edvalson asserts that his prosecution is barred by double jeopardy because certain amended bond conditions imposed upon him by the trial court were punitive in nature. Edvalson further contends that because these bond conditions punished him for the indicted crimes, the Double Jeopardy Clause prevents the State from punishing him further, and therefore the State cannot try him for those crimes. Finding that Edvalson has no cognizable double jeopardy claim, we affirm the order of the trial court.

On an appeal from the grant or denial of a double jeopardy plea in bar, we generally review the trial court’s oral and written rulings as a whole to determine whether any factual findings contained therein support the trial court’s ruling as to whether the defendant was entitled to a plea in bar. But in those cases where the relevant facts are undisputed and no question regarding the credibility of witnesses is presented, we review de novo the trial court’s application of the law to undisputed facts.

Honester v. State, 336 Ga. App. 166, 167 (784 SE2d 30) (2016) (citations and punctuation omitted). Here, the relevant facts are undisputed and show that Edvalson was arrested in September 2012 on charges of possession of child pornography, and he was subsequently indicted on four counts of sexual exploitation of children, in violation of OCGA § 16-12-100 (b) (8). In November 2012, the trial court granted Edvalson a bail bond which allowed Edvalson to remain free from incarceration while awaiting trial. The trial court’s bond order contained two special conditions, with the first condition prohibiting Edvalson from having a computer, smart phone, or other Internet-enabled device in his house. The second condition prohibited Edval-son from having unsupervised contact with any child under the age of 16. On November 5, 2014, the State filed an emergency motion seeking to revoke Edvalson’s bond on the grounds that he had violated the first special condition. Two days later, the trial court held a hearing on that motion, at which both Edvalson and his lawyer were present. During that hearing, the State presented the testimony of Detective Jeff Madson, who was a certified forensic computer examiner. Madson’s testimony established that since his release on bond, Edvalson had been online; had submitted images of child erotica to at least one website; had been banned from a website for posting child pornography; and had posted a number of comments regarding child pornography, “including sarcastic comments about certain child pornography laws posted 29 days before the revocation hearing.” Edvalson v. State, 298 Ga. 626, 627 (783 SE2d 603) (2016).

However, on cross-examination, the detective acknowledged that he had not been inside Edvalson’s house or applied for a search warrant for it; that he had no evidence that Edvalson had a computer, smartphone, or internet-enabled [device] in his house; and that he was not alleging that Edvalson had unsupervised contact with anyone under the age of 16 since he posted bond.

Id. at 627.

At the close of the evidence,

[t]he superior court stated that it accepted that Edvalson was the author of the internet posts in question but despite the disturbing nature of the circumstances and the court’s concern, it was going to deny the motion to revoke bond because there was no evidence that Edvalson used, or possessed in his home, any of the devices prohibited in the bond or that he violated the terms and conditions as set forth in the bond order. However, the superior court detailed additional conditions of the bond which would then be in force, and stated that the special conditions of the original bond order would also remain in effect.

Id.

The trial court set forth on the record the additional bond conditions it intended to impose and told Edvalson, “I want it to be very clear, sir, that I don’t intend for you to be on the internet at all or using any computer or electronic devices ....” Following the hearing, the trial court entered an order adding the following special conditions to Edvalson’s bond:

1. [Edvalson] shall not use or otherwise access the internet by any means nor shall he access any online service of any nature.
2. [Edvalson] shall not possess, either directly or indirectly, images in any form depicting a child under 18 years of age.
3. [Edvalson] shall not use or possess a computer, tablet, smart phone, or any other device capable of accessing the internet.

After the trial court denied his motion for reconsideration of the order amending his bond conditions, Edvalson filed a petition for a writ of habeas corpus, “alleging that the additional bond conditions were overbroad, unduly restrictive, and imposed in violation of due process.” Edvalson, 298 Ga. at 628. Following a hearing, the trial court denied the petition, and in a decision issued on March 7, 2016, the Supreme Court of Georgia affirmed the trial court. Id. at 629. In rejecting Edvalson’s claim that the imposition of the amended bond conditions violated his due process rights, the Supreme Court noted that “the superior court had the authority to impose additional reasonable restrictions on Edvalson’s behavior as conditions of his pretrial release on bond”; “Edvalson’s bond was not revoked, and he was not deprived of his freedom by incarceration”; “he had a full and fair opportunity to be heard before his bond was modified”; and the amended bond conditions were neither overbroad nor punitive in nature. Id.

While Edvalson’s appeal on the writ of habeas corpus was pending, the State re-indicted Edvalson, with the new indictment charging Edvalson with 22 counts of sexual exploitation of a minor. Several months after the new indictment was handed down, Edval-son filed a motion to dismiss and plea of former jeopardy, arguing that the amended bond conditions were punitive, rather than remedial; that the Double Jeopardy Clause bars him from being punished twice for the same crimes; and that because the State could not punish him further for the indicted crimes, the charges against him should be dismissed. The trial court held a hearing on that motion, and thereafter denied the same. Edvalson now appeals from that order.

The Fifth Amendment’s Double Jeopardy Clause “protects against a second prosecution for the same offense after acquittal, a second prosecution for the same offense after conviction, and multiple punishments for the same offense.” Moser v. Richmond County Bd. of Commrs., 263 Ga. 63 (1) (428 SE2d 71) (1993), citing North Carolina v. Pearce, 395 U. S. 711, 717 (I) (89 SCt 2072, 23 LE2d 656) (1969). See also Alden v. State, 314 Ga. App. 439, 440 (724 SE2d 451) (2012). In their respective briefs, both Edvalson and the State focus on the Double Jeopardy Clause’s prohibition against multiple punishments, but in doing so, neither party acknowledges the “fundamental principle that an accused must suffer jeopardy before he can suffer double jeopardy” Serfass v. United States, 420 U. S. 377, 393 (IV) (95 SCt 1055, 43 LE2d 265) (1975). Thus, neither party addresses the threshold question presented by this appeal, which is whether jeopardy attached as a result of Edvalson’s pretrial bond revocation proceeding. See Haynes v. State, 245 Ga. 817, 818 (268 SE2d 325) (1980) (“[t]he threshold question to be addressed in any case involving double jeopardy is whether jeopardy has attached to defendant during the proceedings which he contends preclude further prosecution”).

“In the case of a jury trial, jeopardy attaches when a jury is empaneled and sworn. In a non-jury trial, jeopardy attaches when the court begins to hear evidence.” Serfass, 420 U. S. at 388 (III) (citations omitted). See also Hoke v. State, 326 Ga. App. 71, 74 (1) (755 SE2d 876) (2014) (although jury had been selected, it had not been sworn, and therefore jeopardy had not attached at the time the court dismissed the jury). Thus, “jeopardy does not attach, and the constitutional prohibition [against double jeopardy] can have no application, until a defendant is put to trial before the trier of facts, whether the trier be a jury or a judge.” Serfass, 420 U. S. at 388 (III) (citations and punctuation omitted). Accordingly, jeopardy does not attach at any pretrial proceeding, including a bond revocation hearing. See Wells v. Stynchcombe, 231 Ga. 199, 201 (200 SE2d 745) (1973) (a pretrial hearing that does not involve a determination as to the guilt or innocence of the accused does not trigger jeopardy); Strickland v. State, 300 Ga. App. 898, 901 (686 SE2d 486) (2009) (a hearing on the State’s motion to modify the defendant’s bond conditions was not a “prosecution[ ] for the purposes of double jeopardy” and did not cause jeopardy to attach); Smith v. State, 171 Ga. App. 279, 282 (319 SE2d 113) (1984) (“jeopardy [does] not attach to a preliminary hearing”). Given that Edvalson has not yet suffered jeopardy, he has no basis for asserting a claim of double jeopardy.

Moreover, because jeopardy does not attach until the defendant is put to trial, the Double Jeopardy Clause’s prohibition on multiple punishments forbids only the imposition of multiple punishments following the defendant’s conviction upon one or more of the indicted crimes. See Whalen v. United States, 445 U. S. 684, 688 (I) (100 SCt 1432, 63 LE2d 715) (1980) (a claim that a defendant’s sentence violates the double jeopardy clause’s prohibition on multiple punishments presents “the question whether punishments imposed by a court after a defendant’s conviction upon criminal charges are unconstitutionally multiple”) (citations omitted; emphasis supplied). See also State v. Marlowe, 277 Ga. 383-384 (1) (589 SE2d 69) (2003) (discussing whether the Double Jeopardy Clause requires the merger of the defendant’s convictions on multiple crimes, so as to avoid the prohibition on multiple punishments). As Edvalson’s petition for habeas corpus implicitly recognized, it is the Fifth Amendment’s Due Process Clause, not its Double Jeopardy Clause, that protects a defendant from pretrial punishment. See Bell v. Wolfish, 441 U. S. 520, 535-536 (II) (B) (99 SCt 1861, 60 LE2d 447) (1979) (“under the Due Process Clause, a [defendant] may not be punished prior to an adjudication of guilt in accordance with due process of law”). Thus, the appropriate remedy for pretrial punishment (including bond conditions that are punitive, rather than remedial) is to bring a petition for habeas corpus or other proceeding under the Due Process Clause. See Edvalson, 298 Ga. at 628 (noting Edvalson’s contention that the amended bond conditions violated his due process rights because, inter alia, they were “punitive [rather than remedial] in nature”). See also Jones v. Grimes, 219 Ga. 585, 587 (1) (b) (134 SE2d 790) (1964) (the appropriate remedy for excessive bail is a petition for a writ of habeas corpus).

As the foregoing demonstrates, Edvalson has not suffered jeopardy, and therefore he cannot assert a claim of double jeopardy. In reaching this conclusion, we note that three relatively recent decisions from this Court have analyzed a defendant’s challenge to the denial of his motion to dismiss and plea of former jeopardy that, like Edvalson’s plea in bar, was based on the argument that pretrial bond conditions constituted punishment within the meaning of the Double Jeopardy Clause. See Alden, 314 Ga. App at 440, n. 10 (analyzing defendant’s claim that allegedly punitive bond conditions entitled him to a plea in bar and noting that because the defendant had not been tried, and therefore had been neither convicted nor acquitted of the indicted crimes, only the Double Jeopardy Clause’s protection against multiple punishments could arguably apply to that claim); Strickland, 300 Ga. App. at 898-899 (same); Bozzuto v. State, 276 Ga. App. 614, 616 (1) (624 SE2d 166) (2005) (analyzing defendant’s claim that the trial court’s imposition of allegedly punitive bond conditions and subsequent revocation of his bond for violating those conditions “subjected him to multiple punishments in violation of . . . double jeopardy”). To the extent that either Alden, Strickland, or Bozzuto can be read as affording a defendant a right to assert a plea of former jeopardy based on any pretrial punishment, including any allegedly punitive conditions imposed on a defendant’s pretrial bail bond, those holdings are disapproved.

Decided November 8, 2016.

Crawford & Boyle, Eric C. Crawford, for appellant.

Dan iel J. Porter, District Attorney, Christopher M. Quinn, Karen West, Dewayne A. Brown, Jr., Assistant District Attorneys, for appel-lee.

For the reasons set forth above, we affirm the order of the trial court denying Edvalson’s motion to dismiss and plea of former jeopardy

Judgment affirmed.

Doyle, C. J., Andrews, P. J., Barnes, P. J., Miller, P J., Ellington, P J., Phipps, P J., Dillard, McFadden, Boggs, Ray, McMillian, Rickman, Mercier, and Peterson, JJ., concur.

       This case represents the second appeal in which Edvalson has challenged the bond conditions at issue. Before filing his plea in bar, Edvalson filed a petition for habeas corpus in the trial court, asserting that the bond conditions were imposed in violation of due process. The trial court denied Edvalson’s petition, and the Supreme Court of Georgia subsequently affirmed that decision. Edvalson v. State, 298 Ga. 626 (783 SE2d 603) (2016). Where appropriate, we quote from the Supreme Court’s recitation of facts.

       That statute provides: “It is unlawful for any person knowingly to possess or control any material which depicts a minor or a portion of a minor’s body engaged in any sexually explicit conduct.”

       As noted supra, the Supreme Court of Georgia rejected Edvalson’s claim that the amended bond conditions violated his due process rights by subjecting him to pretrial punishment, and both Edvalson and this Court are bound by that holding. See Ross v. State, 310 Ga. App. 326, 327 (713 SE2d 438) (2011).


source: Caselaw Access Project

author: McFadden, Judge.

license: Public Domain

text:
    A16A1093.
    KRITLOW v. THE STATE.
    (793 SE2d 560)
   McFadden, Judge.

After a jury trial, Gary Kritlow was convicted of aggravated sodomy, aggravated sexual battery, aggravated assault, false imprisonment, and sexual battery. He appeals, challenging the sufficiency of the evidence, the admission of evidence of his prior sex offenses, and the trial court’s refusal to allow him to attempt to impeach the victim based on her financial circumstances. However, there was sufficient evidence to support the jury’s verdict, the evidence of prior sex offenses was properly admitted, and the victim’s financial status was immaterial. Accordingly, we affirm.

1. Sufficiency of the evidence.

“On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, and the [defendant] is no longer entitled to the presumption of innocence. [Cit.]” Newsome v. State, 324 Ga. App. 665 (751 SE2d 474) (2013). “We determine only whether the evidence authorized the jury to find the defendant guilty beyond a reasonable doubt, and in doing so we neither weigh that evidence nor judge the credibility of the witnesses. [Cit.]” Byrd v. State, 325 Ga. App. 24 (752 SE2d 84) (2013).

So viewed, the evidence showed that on December 16, 2013, Kritlow and another man went to the victim’s house to load her possessions into a moving truck. At one point, while the other mover was outside the house, Kritlow went inside and asked to use the bathroom. When the victim pointed him toward an upstairs bathroom, Kritlow forced the victim up the stairs and into the bathroom, where he closed the door and sexually assaulted the victim. He fondled her breasts, inserted his finger into her vagina, and forced her to perform oral sex on him until he ejaculated. During the assault, he prevented the victim’s attempts to escape and pushed her so hard that her head banged into a mirror and hit the toilet tank.

After the assault, Kritlow left the victim in the bathroom. She then fled from the house and called the police to report the assault. Kritlow was arrested, and subsequent DNA testing showed that Kritlow’s semen was present on the victim’s pants.

The state also introduced evidence of Kritlow’s two prior convictions for sexual offenses. In 2005, Kritlow pled guilty in Alabama to enticing a child for sexual acts based on an incident when he forced a 14-year-old girl into a bedroom, blocked her attempts to escape, touched her breasts, and inserted his finger into her vagina. Approximately two years later, Kritlow pled guilty in Tennessee to sexual battery based on an incident when he was working at a fast-food restaurant, entered a bathroom that his co-worker was cleaning, closed and locked the door, prevented the co-worker from leaving, pinned her against the wall, touched her breasts and buttocks, and attempted to force his hands inside her pants.

In challenging the sufficiency of the evidence, Kritlow points to alleged conflicts in the evidence. “However, resolving evidentiary conflicts and inconsistencies, and assessing witness credibility, are the province of the factfinder, not this [cjourt. The evidence authorized the jury to conclude that [Kritlow] was guilty of the crimes of which he was convicted.” Hampton v. State, 272 Ga. 284, 285 (1) (527 SE2d 872) (2000) (citations omitted).

2. Evidence of other sexual assaults.

Kritlow contends that the trial court erred in admitting the evidence of his two prior sexual assaults. The claim is without merit.

Because Kritlow’s trial was held after January 1,2013, Georgia’s new Evidence Codeis applicable. SeeGa. L. 2011, pp. 99,101, § 2. The new Evidence Code provides that “[i]n a criminal proceeding in which the accused is accused of an offense of sexual assault, evidence of the accused’s commission of another offense of sexual assault shall be admissible and may be considered for its bearing on any matter to which it is relevant.” OCGA § 24-4-413 (a). “The language of this provision was intended to create a ‘rule of inclusion,’ with a strong presumption in favor of admissibility as it provides that such evidence ‘shall be admissible.’ ” Steele v. State, 337 Ga. App. 562, 566 (3) (788 SE2d 145) (2016) (citations omitted).

Here, the state sought to introduce the prior sex crimes evidence for purposes of showing Kritlow’s intent and lustful disposition. “OCGA § 24-4-401... deems evidence relevant if it has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Olds v. State, 299 Ga. 65, 69-70 (2) (786 SE2d 633) (2016) (citation and punctuation omitted). “With regard to intent, a defendant who enters a not guilty plea makes intent a material issue[.]” Bradshaw v. State, 296 Ga. 650, 656 (3) (769 SE2d 892) (2015) (citation and punctuation omitted). Suchaplea requires the state to meet its burden of proving every element of the crimes charged, and “[a] culpable state of mind — intent or criminal negligence — is an essential element of every crime[.]” Olds, supra at 72 (2) (citation omitted). Moreover,

evidence that an accused committed an intentional act generally is relevant to show — the evidence, in other words, has some tendency to make more or less probable — that the same defendant committed a similar act with the same sort of intent, especially when the acts were committed close in time and in similar circumstances.

Id. (emphasis omitted). Thus, the trial court correctly ruled that the prior sex crimes evidence was relevant to the issue of intent.

As for lustful disposition, although it

is not one of the purposes specifically set out in OCGA § 24-4-404 (b) for the admission of other acts, OCGA § 24-4-413 provides an exception to the general rule in sexual assault cases and allows the admission of [such] propensity evidence. [Cits.] Thus, the provisions of OCGA § 24-4-413 (a) supersede the provisions of OCGA § 24-4-404 (b) in sexual assault cases. [Cits.]

Steele, supra at 566 (3), n. 5.

Moreover, Kritlow claims that the victim was not credible, that her testimony was inconsistent with other evidence, and that she fabricated the assault. Accordingly, the evidence that Kritlow had committed similar sexual assaults was relevant because it

had the tendency to bolster the credibility of the victim by demonstrating that her circumstances were not unique. Indeed, it had the tendency to disprove a claim of fabrication by showing that [Kritlow] preyed on women in the victim’s . . . circumstance[ of being in a place where Kritlow could force them into a smaller room and bar a door preventing escape]. Thus, the evidence satisfied OCGA § 24-4-413’s relevance threshold.

Marlow v. State, 337 Ga. App. 1, 4 (1) (b) (785 SE2d 583) (2016), disapproved in part on other grounds, Quiller v. State, 338 Ga. App. 206, 209, n. 3 (789 SE2d 391) (2016).

Kritlow further argues that the prior acts evidence must be excluded because under OCGA § 24-4-403, relevant evidence maybe excluded where its probative value is substantially outweighed by the danger of unfair prejudice. We need not, in this case, decide “whether that provision [of OCGA § 24-4-403] applies to evidence admissible under OCGA § 24-4-413 (a).” Steele, supra at 567 (3), n. 7 (citations omitted). See also State v. Frost, 297 Ga. 296, 301, n. 6 (773 SE2d 700) (2015). Because even if we assume, without deciding, that it does apply, given the circumstances of this case, the trial court “did not abuse its discretion in finding that the probative value of the evidence of appellant’s prior crimes was not substantially outweighed by its prejudicial effect and in admitting the evidence of appellant’s two prior guilty pleas[.]” Jones v. State, 299 Ga. 377, 383 (4) (788 SE2d 477) (2016) (citations omitted).

3. Victim’s financial status.

Kritlow complains that the trial court erred in preventing him from impeaching the victim as to her purported bias arising from financial difficulties that could have motivated her to falsely accuse Kritlow in order to make some unidentified legal claim against his employer. However, any such bias must arise from a “motive that could be reasonably inferred to cause testimony to be shaded or distorted.” Noellien v. State, 298 Ga. App. 47, 50 (3) (a) (i) (679 SE2d 75) (2009) (citations omitted; emphasis supplied). There is no evidence in the record from which it could be reasonably inferred that the victim had any such bias or motive. Kritlow has failed to point to anything in the record supporting his pure speculation that the victim’s financial status motivated her to fabricate the sexual assault. A witness may not be impeached based on a wholly immaterial matter, and the victim’s financial status “was wholly immaterial to the issue of [Kritlow’s] guilt[.]” Gilbert v. State, 159 Ga. App. 326, 327 (2) (283 SE2d 361) (1981) (citations omitted).

Decided November 9, 2016.

Sean J. Lowe, for appellant.

Herbert E. Franklin, Jr., District Attorney, Alan C. Norton, Assistant District Attorney, for appellee.

Judgment affirmed.

Miller, P. J., and McMillian, J., concur.


author: McMillian, Judge.

text:
    A16A1219.
    COOPER TIRE & RUBBER COMPANY v. KOCH et al.
    (793 SE2d 564)
   McMillian, Judge.

Plaintiff/appellee Renee Koch (“Plaintiff”), individually and as the administrator of the estate of her deceased husband Gerald Raymond Koch (“Mr. Koch”), filed a complaint for damages based on negligent design/manufacture, strict liability, and failure to warn against appellant Cooper Tire & Rubber Company (“Cooper Tire”) and others, alleging that her husband suffered fatal injuries in a single vehicle crash caused by a catastrophic tire tread separation. After it was revealed during discovery that Plaintiff had preserved only the “carcass” of the tire that blew out and had allowed remnants of the detached tread, the wheel on which the tire was mounted, the three companion tires, and the vehicle to be destroyed, Cooper Tire moved to dismiss the complaint or, alternatively, to bar certain evidence as a sanction for spoliation of evidence. The trial court denied the motion but issued a certificate of immediate review, and Cooper Tire filed an application for interlocutory appeal in this Court, which we granted. As more fully set forth below, we now affirm.

The facts pertinent to this appeal are largely undisputed. On April 24, 2012, Gerald Koch was driving eastbound on Interstate 16 in his 2001 Ford Explorer when the tread on his left rear tire detached. According to the State of Georgia Traffic Crash Report, the Explorer then swerved out of control and traveled approximately 79 feet before striking a guardrail. The vehicle continued to travel in an easterly direction for approximately 134 feet, overturning several times before coming to an “uncontrolled” final rest in the eastbound ditch facing west.

Mr. Koch suffered serious injuries in the accident and was transported by emergency vehicle to the Medical Center of Central Georgia (“MCCG”). He was immediately taken to surgery and then to the intensive care unit, where he remained uncommunicative for several days. However, Mr. Koch eventually regained consciousness and was able to talk to his wife about the accident, telling her that the accident occurred when the “tire blew and the car flipped and rolled three or four times.” Unfortunately, Mr. Koch was unable to recover from his extensive injuries, and he died on June 3, 2012, without ever having left the intensive care unit of the hospital.

The Ford Explorer was towed from the accident scene by Brown’s Wrecker Service (“Wrecker Service”), where it was placed in a storage yard. Sometime after the accident but before Mr. Koch died, Plaintiff talked to the owner of the Wrecker Service, Edwin Brown, who explained to her that she was being charged a daily storage fee for the vehicle. Plaintiff told Brown she could not afford to pay the storage costs, and he told her that he would not bill her for storage costs if she would transfer the title to him so he could sell the vehicle to a salvage yard where it would be crushed for scrap. Plaintiff said that she did not see any reason to keep the vehicle since it was totaled, so she agreed to transfer the title instead of paying for the vehicle to be stored. However, at some point prior to transferring the title, Plaintiff talked it over with her husband, who told her to tell the Wrecker Service to “save the tires.” After instructing Brown to save the left rear tire, Plaintiff relinquished control of the vehicle. Brown then stored the tire, and the vehicle and companion tires were crushed for scrap.

Several weeks after Mr. Koch died, his daughter contacted an attorney in her home state of Missouri. The Missouri attorney contacted the Wrecker Service concerning the preservation of the tire and also recommended the daughter contact an attorney in Georgia. Shortly thereafter, Plaintiff retained Georgia counsel, and her attorney retrieved the tire from the Wrecker Service on or about September 26, 2012.

Plaintiff filed suit on March 6, 2014, alleging that Cooper Tire’s defectively designed and/or manufactured tire caused the fatal crash. Cooper Tire subsequently moved to dismiss the complaint or, in the alternative, to bar Plaintiff from presenting evidence to rebut its defenses, arguing that it had suffered irreversible prejudice in presenting its defense as a result of Plaintiff’s spoliation of relevant evidence. The trial court denied the motion, finding that,

[v]iewing the evidence from the perspective of the party having control over the subject vehicle, this Court does not find that the facts and circumstances give rise to litigation being reasonably foreseeable or that it should have been reasonably contemplated by the Plaintiff so as to trigger the duty to preserve the subject vehicle.

On appeal, Cooper Tire argues that the trial court erred by focusing on whether the Plaintiff subjectively knew that litigation was likely at the time she allowed the vehicle and companion tires to be destroyed and instead should have applied the objective standard establishedby our Supreme Court in Phillips v. Harmon, 297 Ga. 386, 397 (II) (774 SE2d 596) (2015) to determine whether, applying the factors listed in Phillips, Plaintiff knew or should have known that the evidence should be preserved for litigation. Cooper Tire consequently argues that because the trial court applied the wrong legal standard in determining Plaintiff’s duty in this case, we must review its decision under a de novo standard of review, rather than the abuse of discretion standard generally applicable to trial court rulings on spoliation issues.

The standard of review on appeal is well settled. A trial court has wide discretion in resolving spoliation issues, and “such discretion will not be disturbed absent abuse.” Phillips, 297 Ga. at 397 (II). “However, an appellate court cannot affirm a trial court’s reasoning which is based upon an erroneous legal theory” Id. Thus, this Court must first consider the proper analysis to be used in determining whether Plaintiff spoliated and then whether the trial court correctly applied the analysis.

“Spoliation” refers to the destruction, failure to preserve, or material alteration of evidence that is relevant to “contemplated or pending litigation.” Phillips, 297 Ga. at 393 (II); Silman v. Assoc. Bellemeade, 286 Ga. 27, 28 (685 SE2d 277) (2009). Because the spoliation of evidence may give rise to sanctions against the spoliator, including dismissal of the complaint, an initial determination must be made that the spoliator had a duty to preserve the evidence at the time it was destroyed. Whitfield v. Tequila Mexican Restauran t No. 1, 323 Ga. App. 801, 807 (6) (748 SE2d 281) (2013) (“A spoliation claim cannot be pursued unless the spoliating party was under a duty to preserve evidence.”), overruled on other grounds, Phillips, 297 Ga. at 398 (II) n. 10.

Logically, the duty to preserve relevant evidence must be viewed from the perspective of the party with control of the evidence and is triggered not only when litigation is pending but when it is reasonably foreseeable to that party. See Graff v. Baja Marine Corp., 310 Fed. Appx. 298, 301 (11th Cir. 2009); West v. Goodyear Tire & Rubber Co., 167 F3d 776, 779 (2d Cir. 1999).

Phillips, 297 Ga. at 396 (II).

In Phillips, our Supreme Court overruled a long line of precedent from this Court in which we had held that a defendant’s duty to preserve arises only when the plaintiff’s actions have provided the defendant with actual or express notice that the plaintiff is contemplating litigation. Phillips enunciated two concepts on the issue of notice: (1) notice may be actual or constructive and (2) “the defendant’s actions may be relevant to that determination” because such activity may be an “expression by the defendant that it was acting in anticipation of litigation.” (Footnote omitted; emphasis supplied.) Phillips, 297 Ga. at 396-97 (II). Additionally, the Court went on to point to other circumstances from which

[n]otice that the plaintiff is contemplating litigation may also be derived from, i.e., litigation may be reasonably foreseeable to the defendant based on,... the type and extent of the injury; the extent to which fault for the injury is clear; the potential financial exposure if faced with a finding of liability; the relationship and course of conduct between the parties[;] and the frequency with which litigation occurs in similar circumstances.

Id. at 397 (II).

However, and understandably since it was only the defendant hospital’s duty that was at issue, the Court in Phillips did not dwell on a plaintiff’s duty, stating only that “[i]n regard to the injured party, usually the plaintiff, the duty arises when that party contemplates litigation, inasmuch as litigation is obviously foreseeable to the plaintiff at that point” and generally that “the duty to preserve relevant evidence arises when litigation is reasonably foreseeable to the party in control of that evidence.” 297 Ga. at 396, 397 (II). Thus, as Cooper Tire acknowledges, the Court in Phillips did not expressly address how the objective “reasonably foreseeable” test set out in Phillips should be applied when it is the plaintiff who has failed to preserve evidence and did not address whether the concept of “constructive notice” applies to a plaintiff who is alleged to have spoliated. Relying on federal case law and cases from other states, however, Cooper Tire argues that the inquiry should be the same whether it is the plaintiff or the defendant who is alleged to have destroyed relevant evidence and that the answer to the question of whether a party anticipated or contemplated litigation at the time they allegedly spoliated relevant evidence should be answered by applying the objective list of factors set out in Phillips to determine if they knew or reasonably should have known that a lawsuit might be filed. Applying those factors here, Cooper Tire argues that the “circumstances of the accident and the .. . decision to retain the [blown] tire objectively establishes a duty to preserve all the material evidence.”

As an initial matter, we do not agree that the Court in Phillips intended that the list of factors from which it might be derived that a party constructively knew it should anticipate a lawsuit was intended to be applied in every case to either party Rather, the Court made it clear that as a general rule, the duty to preserve relevant evidence arises when litigation is reasonably foreseeable to the party in control of the evidence, no matter whether that party is the plaintiff or defendant. Phillips, 297 Ga. at 396, 397 (II). With respect to plaintiffs, the Court further noted that the duty arises when that party actually contemplates litigation because litigation is “obviously forseeable to the plaintiff at that point.” Id. at 396 (II). On the other hand, opposing parties have the duty to preserve evidence when they know or reasonably should know that the injured party is in fact contemplating litigation, which the Phillips court noted has generally been referred to in terms of “notice” to the defendant. Id. It is in the context of how to determine “notice” to the defendant that the Court elucidated the factors that Cooper Tire now asks the Court to apply to the question of whether litigation is reasonably foreseeable to the plaintiff. But the issue of whether litigation was reasonably foreseeable to the plaintiff is separate and distinct from whether a defendant actually or reasonably should have foreseen litigation by the plaintiff, and thus we do not believe that the Supreme Court intended those specific factors to apply in determining whether litigation was reasonably foreseeable to the plaintiff.

That is not to say, however, that the test is a subjective one for an allegedly spoliating plaintiff. To the contrary, the Supreme Court made it clear that reasonable foreseeability is the touchstone for determining whether a plaintiff was contemplating litigation, and that test has traditionally been described with objective and subjective components — what a reasonable person in the same circumstances as those in which the injured party has found himself would do. See Forshee v. Employers Mut. Cas. Co., 309 Ga.App. 621, 624 (711 SE2d 28) (2011). Moreover, in Phillips, the Court made it clear that in determining whether a defendant had constructive notice — an objective standard — trial courts may appropriately consider the conduct of the particular defendant after the injury, including any expressions by the defendant that it was acting in anticipation of litigation. Likewise, the Court clarified that a defendant’s duty does not arise merely from investigating an incident that caused an injury, “because there may be many reasons to investigate incidents causing injuries, from simple curiosity to quality assurance to preparation for possible litigation.” Phillips, 297 Ga. at 397 (II), n.9. Thus, in applying the “reasonably foreseeable” test, it may be appropriate for trial courts to consider similar factors as those described by the Supreme Court in Phillips to determine whether an injured party in that position reasonably should have foreseen litigation at the time the relevant evidence was destroyed.

Having determined the appropriate analysis for an allegedly spoliating injured party, we now turn to whether the trial court applied the correct legal concepts in denying Cooper Tire’s spoliation motion. We first note that the trial court explicitly relied on Phillips and set out the principles enunciated therein. Cooper Tire takes issue with the trial court’s subsequent analysis of the facts, including its reliance on testimony from Plaintiff about what Mr. Koch intended when he asked her to save the left rear tire and why she decided to transfer the vehicle to Brown, asserting that it is improper under Phillips for the trial court to have viewed Plaintiff’s testimony “from her perspective,” instead of a wholly objective reasonable person. We discern no error, however, in considering this testimony in determining whether Plaintiff was actually contemplating litigation or whether litigation was reasonably foreseeable to someone in Plaintiff’s position at the time. And it is clear that the trial court considered and found that under the facts and circumstances of the case, litigation was not “reasonably foreseeable or that it should have been reasonably contemplated by the Plaintiff so as to trigger the duty to preserve the subject vehicle.”

Decided November 9, 2016

Nall & Miller, George R. Neuhauser, Clinton F. Fletcher; Bradley Arant Boult Cummings, Scott B. Smith, Reed T. Warburton, for appellant.

McArthur Law Firm, Katherine L. McArthur, Caleb F. Walker, Laura K. Hinson; Dellacona Law Firm, Tracey L. Dellacona, for appellees.

Because the trial court applied the correct legal theory, the question then is whether the trial court abused its discretion in denying the spoliation motion. As the trial court’s factual findings are amply supported by the record, we find no abuse of discretion.

Judgment affirmed.

McFadden, J., concurs. Miller, P. J., concurs in judgment only.

       There is some question in this case concerning whether Mr. Koch directed Plaintiff to save the “tire” or the “tires.”

       The record suggests that the tread was never recovered from the accident scene. In any event, basically all that was saved from the vehicle was the sidewall portion of the tire that attaches to the rim.

       In Forsh.ee, the Court warned about the “distorting effects of hindsight” in making this evaluation, and we believe that those cautions apply equally in this context. 309 Ga.App. at 624, n.2.

       Nothing in this opinion, however, should be construed to mean that the circumstances under which the tire was saved and the remainder of the vehicle was destroyed is irrelevant or immaterial to Cooper Tire’s defense of this case.


author: McMlLLIAN, Judge.

text:
    A16A1259.
    In re ESTATE OF JIMMY CURTIS.
    (793 SE2d 554)
   McMlLLIAN, Judge.

Jimmy Curtis, an adult ward, appeals from the superior court’s order denying his motion to modify his conservatorship. In that motion, Curtis sought to replace his conservator, Robert Long, with Virginia Hilton or Cuddell Ollis, two of his sisters. We affirm for the reasons set forth below.

Long is Curtis’s brother-in-law, married to a third sister, Jewel Long. The probate court named Long as Curtis’s conservator in an order dated August 28, 2013. Less than two years later, on April 30, 2015, Curtis filed a motion in probate court to modify his conserva-torship, requesting that either Hilton or Ollis replace Long as his conservator. Curtis’s motion asserted that Long had breached his duties under OCGA § 29-5-22, by consistently failing to consider Curtis’s expressed desires and personal values, failing to communicate with or be reasonably accessible to him, and failing to uphold his dignity and respect. See OCGA § 29-5-22 (b) (1), (2). Under Georgia law, where, as here, “the petition for modification does not allege a significant change in the capacity of the ward,” a court has discretion to modify a conservatorship “upon a showing that the modification is in the ward’s best interest.” OCGA § 29-5-71 (c). After holding a hearing on the motion, the probate court denied the motion in an order dated June 4, 2015, based on a finding that “no evidence was offered that proves any misdoing or misusing of any of the ward’s funds by the conservator.”

Curtis appealed the probate court’s order to the superior court in accordance with OCGA § 29-5-110 (a), which provides for a de novo review of the matter. See also OCGA § 5-3-2 (a) (“An appeal shall lie to the superior court from any decision made by the probate court, except an order appointing a temporary administrator.”). Under OCGA § 5-3-29,

[a]n appeal to the superior court in any case where not otherwise provided by law is a de novo investigation. It brings up the whole record from the court below; and all competent evidence shall be admissible on the trial thereof, whether adduced on a former trial or not. Either party is entitled to be heard on the whole merits of the case.

See also OCGA § 29-5-70 (a). “The filing of the de novo appeal in superior court has the same effect as if it had been commenced originally in the superior court,” and the superior court’s task “is to try the issue anew and pass original judgments on the questions involved as if there had been no previous trial.” (Citations and punctuation omitted.) Long v. Greenwood Homes, 285 Ga. 560, 562 (679 SE2d 712) (2009). See also In re Estate of Wade, 331 Ga.App. 535, 536 (771 SE2d 214) (2015).

Thus, Curtis bore the burden on appeal to the superior court to show by clear and convincing evidence that the requested modification was in his best interest. OCGA §§ 29-5-71 (c) (best interest standard); 29-5-110 (a) (burden of clear and convincing evidence). The superior court found that Curtis did not meet his burden. “Absent an abuse of discretion, we will not reverse [a lower] court’s determination as to who will serve an individual’s best interests as conservator.” Cruver v. Mitchell, 289 Ga. App. 145, 146 (1) (a) (656 SE2d 269) (2008).

1. In his first enumeration of error, Curtis asserts that the superior court incorrectly found that Curtis was not denied a right or privilege by Long because Long did not make himself reasonably accessible, improperly disposed of Curtis’s property, and failed to treat him with dignity and respect. See OCGA §§ 29-5-20 (a) (2), (6); 29-5-22 (a), (b) (1), (2); 29-3-35.

The evidence from the hearing on Curtis’s motion demonstrated that Long was substantially performing his duties as Curtis’s conservator, and it is undisputed that Curtis’s health and financial situation had improved since his appointment. Curtis admitted that Long spoke with him on the phone approximately once a month and had come to see him four times in a six-month period. The evidence also supported a finding that they communicated about Curtis’s financial affairs. To the extent that the evidence was disputed, for example, as to whether Long treated Curtis without the requisite respect or whether he properly communicated with him, we must defer to the superior court judge, who observed the testimony in person, to weigh and resolve any conflicts in the evidence. See Cruuer, 289 Ga. App. at 147 (1) (b) (appellate court will uphold lower court’s factual findings if they are supported by any evidence and defer to the court’s credibility determinations). Additionally, Curtis presented no evidence to dispute Long’s testimony that he sold Curtis’s property at the probate court’s specific direction and that the money was placed in Curtis’s bank account. Curtis admitted that he had no evidence to show that Long had ever stolen anything from him.

Although Hilton testified that she was willing to act as his conservator, she was ambivalent about whether he actually needed a conservator, a point Curtis himself did not contest. And though both Ollis and she stated that they frequently spoke with Curtis on the phone, neither had made an effort to visit Curtis in person at the VA facility to investigate his current living conditions, and they had made no apparent effort to determine his financial situation. In addition, there was evidence that Curtis inappropriately spent his allowance on other people, including his sisters, by sending them his debit card in the mail for their use.

Decided November 9, 2016.

Crayon Law Firm, Kevin C. Crayon II, for appellant.

Moore Ingram Johnson & Steele, G. Phillip Beggs, for appellee.

Based on this and the other evidence presented, we cannot say that the superior court abused its discretion in finding that Curtis failed to show by clear and convincing evidence that he was denied a right or privilege by Long as provided in OCGA § 29-5-22.

2. In a related enumeration of error, Curtis contends that the superior court erred in not allowing him to obtain a conservator that is in his best interest. We disagree for the reasons stated in Division 1. In addition, we note that although under OCGA § 29-5-3 (b) (1) and (7), an individual nominated by an adult ward prior to the appointment of a conservator is given the highest ranking in the statutory order of preference for conservators, while a relative like Long is seventh on the list, the probate court originally appointed Long as conservator. Nothing in the record demonstrates that Curtis either nominated anyone else prior to that appointment or appealed the probate court’s order appointing Long. And although the statute provides that a court must give consideration to the order of preference, it may also “disregard a person who has preference and appoint a person who has a lower preference or no preference.” OCGA § 29-5-3 (a). “[U]ltimately[, the court is] required to appoint as conservator that person who shall best serve the interests of the individual.” (Citation and punctuation omitted.) Cruuer, 289 Ga. App. at 146 (1) (a). Accordingly, we likewise find no abuse of discretion in the superior court’s determination that it was in Curtis’s best interest to deny the motion to modify the conservatorship.

Judgment affirmed.

Miller, P. J., and McFadden, J., concur.

       OCGA § 29-5-110 (a) provides, in pertinent part:
      . . . [T]he ward, individually or by the ward’s legal counsel, representative, or guardian ad litem, or the petitioner may appeal any final order of the court to the superior court in the county in which the proceedings were held. The appeal shall be in the same manner as other appeals from the probate court to the superior court but shall be heard as expeditiously as possible. The appeal shall be de novo unless by agreement the parties specifically limit the issues.. .. The burden of proof shall be upon the petitioner and the standard used by the court in reaching its decision shall be clear and convincing evidence.

       OCGA § 29-5-70 (a) provides, in pertinent part: “Upon the petition of any interested person, including the ward, or upon the court’s own motion, the court may conduct a judicial inquiry into whether the ward is being denied a right or privilege provided for by this chapter and may issue appropriate orders.”

       We note that at the superior court hearing on Curtis’s motion, both parties incorrectly framed their arguments under a preponderance of the evidence standard. These arguments apparently were based on OCGA § 29-5-71 (d), which provides that “[i]n any proceeding under this Code section that would restrict the powers of the conservator or restore powers to the ward, the burden is on the petitioner to show by a preponderance of the evidence that the [requested] modification is in the ward’s best interest.” Pretermitting whether Curtis’s probate court motion to change conservators constituted such a proceeding, Curtis’s burden on appeal to the superior court was governed by a different statute, which required a showing of clear and convincing evidence. OCGA § 29-5-110 (a).

       The evidence showed that Long put $450 per month in Curtis’s bank account for his personal spending, $250 more than recommended by the VA facility at which Curtis lived and which provided 100% of his room and board.


text:
    A16A1440.
    COFFEY v. STATE OF GEORGIA.
    (793 SE2d 557)
   McMlLLIAN, Judge.

In this in rem forfeiture action, Shannon Coffey appeals from the judgment and order of forfeiture entered by the Gwinnett County Superior Court after the court struck his answer for failure to comply with the statutory requirements for an in rem forfeiture answer. In his sole enumeration of error, Coffey asserts that the trial court erred because his answer was legally sufficient. For the reasons that follow, we find no error and affirm.

The record shows that on September 22, 2015, following a traffic stop by a Gwinnett County Sheriff’s Department deputy, Coffey was arrested and charged with multiple violations of OCGA § 16-13-30, including possession of methamphetamine with intent to distribute, possession of oxycodone, possession ofhydrocodone, and possession of buprenorphine. At that time, Coffey was also in possession of digital scales, drug packaging materials, two handguns, and U.S. currency in the amount of $53,648 (the “Currency”). Officers seized the Currency, and on October 16, 2015, the State filed its complaint for forfeiture pursuant to OCGA § 9-16-1 et seq. On November 25, 2015, Coffey filed an answer claiming ownership of the Currency Contending that the answer failed to comply with the statutory requirements of OCGA § 9-16-12 (c) (1), the State filed a motion for a more definite statement. The trial court granted the motion and ordered Coffey to amend his answer to comply with OCGA § 9-16-12 (c) (1).

Coffey filed an amended answer claiming ownership of $49,800 of the Currency, but the State thereafter filed a motion to strike, asserting that the amended answer remained inadequate because it (1) did not include the claimant’s address at which he resided; (2) recited inapplicable sections of the relevant statute; (3) did not include sufficient facts supporting the claim that the seized money was not subject to forfeiture; and (4) included a verification that did not indicate it was made under penalty of perjury. Without specifying what inadequacies remained, the trial court found that the answer was “not amended according to law,” granted the motion to strike, and ordered the seized Currency forfeited with title and ownership to vest in the Gwinnett County Sheriff’s Department. This appeal followed.

We review a trial court’s ruling on a motion to strike for an abuse of discretion. See Loveless v. State of Ga., 337 Ga. App. 250, 251 (1) (786 SE2d 899) (2016). “However, we conduct a de novo review of the trial court’s application of the law to undisputed facts, owe no deference whatsoever to the trial court’s conclusions of law, and are free to apply anew the legal principles to the facts.” (Citation omitted.) Id.

It is well established that the General Assembly may impose pleading requirements in special statutory proceedings in addition to those found in our Civil Practice Act. State of Ga. v. Alford, 264 Ga. 243, 245 (2) (a) (444 SE2d 76) (1994). And where our legislature does so, the sufficiency of a pleading must be judged in light of those specific statutory requirements. Id. “In a civil in rem forfeiture action, a claimant’s answer must be in strict compliance with the special pleading requirements of OCGA § [9-16-12 (c) (l)].” (Citation and punctuation omitted.) Loveless, 337 Ga. App. at 251 (1). Thus, “the failure to timely file an answer in strict compliance with the specific pleading requirements of the forfeiture statute results in dismissal of the answer.” (Citation and punctuation omitted.) Id. OCGA § 9-16-12 (c) (1) requires that an answer stating a claim to property subject to forfeiture satisfy not only the general pleading rules applicable to all civil actions, but also “shall set forth”:

(A) The name of the claimant;
(B) The address at which the claimant resides;
(C) A description of the claimant’s interest in the property;
(D) A description of the circumstances of the claimant’s obtaining an interest in the property and, to the best of the claimant’s knowledge, the date the claimant obtained the interest and the name of the person or entity that transferred the interest to the claimant;
(E) The nature of the relationship between the claimant and the person who possessed the property at the time of the seizure;
(F) A copy of any documentation in the claimant’s possession supporting his or her answer; and
(G) Any additional facts supporting the claimant’s answer.

After being given a second chance by the trial court, Coffey alleged in his amended answer:

Claimant shows that said property has a legitimate origin and intended use; it was not proceeds of drug transactions and was not intended to be used for drug transactions or other illegal purposes. The U. S. Currency was acquired legitimately, preceding the date of its seizure, through an inheritance from a joint safety deposit account box located at Citizens Bank & Trust Co. of Grainger County, TN, with Claimant’s Grandmother, Lillie Nora Smith (deceased) [.] Claimant’s mother, Georgia Evette Coffey was a witness to the contents of the joint safety deposit account, including Fifty Thousand Dollars ($50,000) inU.S. Currency.

As argued by the State below and on appeal, Coffey’s answer was insufficient because he did not provide the date that he obtained his interest in the Currency, any documentation supporting his answer as required by OCGA § 9-16-12 (c) (1) (D) and (F), nor the address at which he resided.

Although Coffey essentially concedes that he did not expressly provide the address at which he resides in either his initial answer or his amended answer, Coffey argues that he, in essence, provided his address by virtue of his response to paragraph four of the State’s complaint, which alleged, “Said property was seized from Shannon Todd Coffey, who may be served at the Gwinnett County Jail or at his residence located at 143 Green View Dr. Whitesburg, Tn. 37891.” In his amended answer, Coffey admitted the Currency was seized from him, denied that he could still be served at the Gwinnett County Jail, but did not specifically admit or deny the State’s allegation regarding service at his home address. Thus, Coffey asserts that by not denying that specific portion of the State’s allegations in paragraph four, his response constitutes an admission pursuant to OCGA § 9-11-8 (d).

Decided November 9, 2016.

Filipouits Law Firm, Jeffrey R. Filipouits, for appellant.

Daniel J. Porter, District Attorney, Michael D. Morrison, Assistant District Attorney, for appellee.

Although we are mindful that we must interpret the strict pleading requirements of OCGA § 9-16-12 reasonably, we have serious concerns regarding whether Coffey’s failure to respond to the State’s allegation regarding his address satisfies the unambiguous requirement to affirmatively “set forth . . . [t]he address at which the claimant resides.” OCGA § 9-16-12 (c) (1) (B). However, pretermit-ting whether Coffey’s failure to expressly provide the address renders his answer fatally insufficient, we find that his failure to provide even a time frame in which he acquired an interest in the Currency subjected his answer to be stricken. See Arreola-Soto v. State of Ga., 314 Ga. App. 165, 167 (1) (723 SE2d 482) (2012) (where exact date not provided, the time frame of the acquisition of the ownership interest may suffice); OCGA § 9-16-12 (c) (1) (D).

The trial court acted well within its discretion under the circumstances of this case when Coffey had the opportunity to correct this error after the State, in its motion for more definite statement, specifically noted that Coffey had failed to provide a date on which he obtained an interest in the Currency, yet Coffey chose not to correct the error in his amended answer. See Howard v. State of Ga., 321 Ga. App. 881, 883 (743 SE2d 540) (2013) (no abuse of discretion in striking answers where claimants were afforded opportunity to amend their pleadings yet failed to do so). Accordingly, we find no abuse of discretion in the trial court’s order striking Coffey’s amended answer.

Judgment affirmed.

Miller, P. J., and McFadden, J., concur.

       The State identified two other parties as potentially having an interest in the Currency, but neither is a party to this appeal.

       On appeal, the State concedes that Coffey’s verification was legally sufficient pursuant to Bearing v. State of Ga., 243 Ga.App. 198 (532 SE2d 751) (2000), and we do not reach this issue here.

       The former civil in rem forfeiture statute found at OCGA § 16-13-49 was repealed and replaced with OCGA § 9-16-12 effective July 1, 2015. Ga. L. 2015, p. 693, § 1-1.

       Coffey offered the same response in his initial answer.

       OCGA § 9-11-8 (d) provides:
      Averments in a pleading to which a responsive pleading is required, other than those as to the amount of damage, are admitted when not denied in the responsive pleading. Averments in a pleading to which no responsive pleading is required or permitted shall be taken as denied or avoided.

       See Harris v. State, 222 Ga. App. 267, 268 (474 SE2d 201) (1996) (“Although compliance with the strict pleading requirements is mandated, ... these requirements must be interpreted reasonably.”).

       Morever, the facts of this case highlight the practical difficulties that could arise should we deem a non-response to an allegation to satisfy a claimant’s duty to “set forth” his address. When the State attempted to have Coffey served at the address he had provided at the time of his arrest, which the State alleged was Coffey’s home address, the Hamblen County, Tennessee, law enforcement officer discovered that “no such address or road” existed. The State ultimately received permission to serve Coffey via publication.


author: PHIPPS, Presiding Judge.

text:
    A16A0944.
    McGLOTHLIN v. THE STATE.
    (791 SE2d 645)
   PHIPPS, Presiding Judge.

A jury found Toby Anthony McGlothlin guilty of enticing a child for indecent purposes and child molestation. He appeals, arguing that the state failed to disclose exculpatory information regarding an informant and that he received ineffective assistance of counsel at trial. For reasons that follow, we affirm.

Construed favorably to the jury’s verdict, the evidence shows that in 2004, McGlothlin began living with Maria Bergener, her husband, and their six-year-old son, J. B., who had been adopted out of foster care. As part of his responsibilities around the house, McGlothlin helped Bergener with J. B., babysitting and getting him ready for bed. On these occasions, McGlothlin was alone with the child.

In August 2004, Bergener attended a counseling session with J. B. to address issues he had with his birth mother. J. B. inquired during the session whether he “could tell a secret.” He then stated: “Toby asked me to pee in his mouth.” Following the session, J. B. told Bergener that, while giving him a bath, McGlothlin had washed his penis, asking him if he liked it when McGlothlin put soap or lotion on his penis in different ways. Bergener and her husband sat down with J. B. shortly after the outcry, seeking additional details. At that point, J. B. disclosed that McGlothlin had also wanted to urinate in J. B.’s mouth.

Bergener reported the outcry to the authorities and took J. B. for a forensic interview. J. B. told the interviewer that McGlothlin had washed J. B.’s penis, touching it with his hand, and had asked if J. B. wanted to “pee in [McGlothlin’s] mouth,” but J. B. said “no.” J. B. also stated that McGlothlin had shown J. B. his penis and “[sjometimes it was pointy.”

The police contacted McGlothlin, who submitted to a recorded interview with the lead detective. McGlothlin denied touching J. B. inappropriately, but indicated that his arm might have inadvertently bumped J. B.’s penis while he was washing J. B.’s leg, “or something like that.” Following the interview, McGlothlin called the detective, asking “[w]hatifIneedsomehelp?”and“[w]hatifI did do what [J. B.] said I did but not exactly the way [J. B.] said I did?” McGlothlin was arrested, and the detective subsequently received information from two jail inmates that McGlothlin had made inculpatory statements to them. According to the inmates, both of whom testified at trial, McGlothlin admitted that he had performed oral sex on J. B. and that the boy had urinated in his mouth.

McGlothlin was charged with enticing a child for indecent purposes, aggravated child molestation by placing his mouth on J. B.’s penis, and child molestation by rubbing J. B.’s penis. The jury found McGlothlin guilty of enticing a child and child molestation, but not guilty of aggravated child molestation. McGlothlin filed a motion for new trial, which the trial court denied. This appeal followed.

1. McGlothlin argues that he is entitled to a new trial because the state failed to disclose an agreement that police made with Kevin Kinney, one of the jailhouse informants who testified against him. Kinney asserted at trial that the state had not promised him anything or made any deals in exchange for his testimony. At the new trial hearing, however, McGlothlin offered evidence that, after testifying, Kinney received a sentence reduction pursuant to a consent decree that referenced a pre-trial promise by police officers to help Kinney secure the reduction.

Pursuant to Brady v. Maryland and Giglio v. United States, the state must disclose material evidence that is favorable to the defendant, including impeachment evidence that could be used to show bias or interest on the part of witnesses called by the state. “[T]he [sjtate is under a duty to reveal any agreement, even an informal one, with a witness concerning criminal charges pending against that witness, and a failure to disclose such an agreement constitutes a violation of the due process requirements.” To show a violation, a defendant must demonstrate

that the [sjtate possessed evidence of the deal; that the defendant did not possess the evidence nor could he obtain it himself with any reasonable diligence; that the [sjtate suppressed evidence of the deal; and that, had the evidence of the deal been disclosed to the defendant, there existed a reasonable probability that the result at trial would have been different,.

Pretermitting whether a duty to disclose existed here, McGloth-lin cannot establish a reasonable probability that the trial result would have been different, had the deal with Kinney been revealed. Such evidence might have provided fodder for cross-examining and impeaching Kinney’s testimony But much of that testimony described McGlothlin’s alleged admission that he had engaged in oral sex with J. B., evidence that related to the aggravated child molestation charge. And the jury acquitted McGlothlin of aggravated child molestation. Even without evidence of the deal, therefore, jurors rejected a significant portion of Kinney’s testimony.

Kinney also testified about the child molestation allegation for which McGlothlin was convicted, asserting at trial that McGlothlin had admitted touching J. B.’s “private parts.” The state, however, presented significant other evidence regarding this allegation. J. B. told his mother that McGlothlin had touched his penis, and the jury watched the forensic interview in which J. B. made a similar report. Furthermore, McGlothlin intimated to the lead detective that he might have done “what [J. B.] said.” Given this evidence, McGlothlin cannot demonstrate a reasonable probability that the verdict would have been different, had the state disclosed the alleged deal with Kinney, a witness whom jurors apparently had already found lacking in credibility.

2. McGlothlin contends that he received ineffective assistance of counsel at trial. Specifically, he argues that trial counsel was ineffective because she failed to object to the admission of his recorded police interview, which “contained an agreement to take a polygraph test and a false assertion that [he] was a convicted felon.” To prevail on this claim, McGlothlin must show “(1) that counsel’s performance was deficient and (2) that the deficient performance prejudiced the defense by creating a reasonable probability that but for counsel’s errors, the outcome of the trial would have been different.” Failure to satisfy either prong of this two-part test is fatal to a defendant’s ineffective assistance claim.

(a) During the police interview, the lead detective accused McGloth-lin of being a felon. McGlothlin responded, “It’s not like this. I don’t have felonies,” to which the detective replied, ‘"You’re telling me forgery is not a felony?” McGlothlin stated: “But I was innocent. And it says so. It was dismissed.” He then explained the circumstances underlying the alleged forgery incident, asserting again that “it” was “dropped.” McGlothlin contends that trial counsel should have objected to this portion of the interview because it improperly placed his character in issue.

Even if an objection would have been appropriate, McGlothlin cannot demonstrate a reasonable probability that exclusion of this discussion would have altered the trial result. Although the detective accused McGlothlin of being a “felon” and committing forgery, McGlothlin immediately refuted the statement, explaining that the forgery charge had been dismissed. Moreover, the jury acquitted McGlothlin of aggravated child molestation — the most serious charge against him — undermining his argument that the detective’s “felon” reference prejudiced the jury against him. Given these circumstances, as well as the evidence of guilt presented by the state, this ineffective assistance allegation fails.

(b) McGlothlin also argues that trial counsel should have objected to admission of his police interview because he agreed in the interview to take a polygraph test. According to McGlothlin, reference to this agreement was inadmissible and would have been excluded had counsel objected.

Well before the trial court admitted the recorded interview, however, J. B.’s mother testified without objection that McGlothlin had consented to a polygraph examination. The detective who interviewed McGlothlin also testified about the agreement and McGloth-lin’s ultimate decision not to follow through with the examination. McGlothlin’s enumerated error does not complain about trial counsel’s performance with respect to testimony from J. B.’s mother or the detective. It focuses solely on admission of the police interview, as must we.

Decided October 25, 2016

Reconsideration denied November 10, 2016

Bowers & Roch, Donald R. Roch II, for appellant.

Shannon G. Wallace, District Attorney, Lara A. Snow, Cliff Head, Assistant District Attorneys, for appellee.

The polygraph reference in the interview was cumulative of other evidence admitted at trial. Under these circumstances, and in light of the significant evidence supporting the jury’s verdict, McGloth-lin cannot demonstrate any likelihood that counsel’s failure to object to the interview on this ground impacted the trial result.

(c) Finally, to the extent that McGlothlin has shown or we have assumed that trial counsel’s assistance was deficient, “we also find that the cumulative effect of any such deficiencies did not create a reasonable likelihood that the outcome of the trial would have been different but for any deficient performance.”

Judgment affirmed.

Dillard and Peterson, JJ., concur.

       See Al-Amin v. State, 278 Ga. 74 (1) (597 SE2d 332) (2004) (“On appeal from a criminal conviction, we view the evidence in a light most favorable to the verdict, and the defendant no longer enjoys the presumption of innocence.”) (citation omitted).

       373 U. S. 83 (83 SCt 1194, 10 LE2d 215) (1963).

       405 U. S. 150 (92 SCt 763, 31 LE2d 104) (1972).

        Ford v. State, 273 Ga. App. 290, 291 (614 SE2d 907) (2005).

       Id. (citations omitted).

       Id. (citations omitted).

       See Granger v. State, 320 Ga. App. 580, 582-583 (1) (740 SE2d 313) (2013) (in ineffective assistance context, no reasonable probability that trial result was impacted by trial counsel’s failure to object to testimony that bolstered child victim’s testimony where verdict of acquittal on several charges demonstrated that jury had not found victim credible); Jarrett v. State, 299 Ga. App. 525, 531 (7) (b) (683 SE2d 116) (2009) (in ineffective assistance context, counsel’s failure to object to allegedly improper character evidence implicating defendant in drug trade did not impact verdict where jury acquitted defendant of all drug-related offenses).

       See Moclaire v. State, 215 Ga. App. 360, 361 (1) (451 SE2d 68) (1994) (because non-disclosed evidence did not “undermine confidence in the outcome of the trial, ” the trial court was justified in denying defendant’s motion for new trial).

        Dyer v. State, 295 Ga. App. 495, 498 (1) (672 SE2d 462) (2009) (citation and punctuation omitted).

        Reed v. State, 291 Ga. 10, 16 (4) (b) (727 SE2d 112) (2012); Jarrett, supra at 530-531 (7).

       See Dyer, supra at 500 (2) (defendant not prejudiced by prosecutor’s questions about prior criminal charge where jury “heard no evidence refuting or contradicting [defendant’s] testimony that he was acquitted of this charge”). We recognize that after McGlothlin refuted the felony accusation, the detective stated that he found McGlothlin to be “deceitful.” McGlothlin, however, raises no claim of error concerning this statement. And viewed in context, the detective’s comment related to his belief that McGlothlin was lying about his interaction with J. B., not about the forgery incident.

       See Reed, supra at 17 (4) (b) (acquittal on one of several charges “indicates that the jury likely was not prejudiced against [the defendant] because of” prosecution’s allegedly improper closing argument).

       See id.; Dyer, supra.

       See Riggs v. State, 319 Ga. App. 189, 198 (5) (733 SE2d 832) (2012) (“A party cannot expand his enumerations of error through argument or citation in his brief.”) (citation and punctuation omitted).

        Williams v. State, 292 Ga. 844, 848 (3) (a) (742 SE2d 445) (2013) (defendant not prejudiced by counsel’s failure to object to evidence that was cumulative of other evidence admitted at trial); Anderson v. State, 311 Ga.App. 732, 740 (2) (d) (716 SE2d 813) (2011) (same).

        Williams, supra at 855 (3) (j) (citations omitted; emphasis in original).


author: PHIPPS, Presiding Judge. DILLARD, Judge,

text:
    A16A1274.
    INGLETT & STUBBS INTERNATIONAL, LTD. v. RILEY.
    (791 SE2d 642)
   PHIPPS, Presiding Judge.

Inglett & Stubbs International, Ltd. (“Inglett”) petitioned the Commissioner of the Georgia Department of Revenue (“the Department”) for a refund of approximately $1,900,000 in sales tax. The Department denied the request, and Inglett appealed to the Georgia Tax Tribunal. Following an adverse ruling from the Tax Tribunal, Inglett sought judicial review in the superior court, which upheld the Tribunal’s decision. Finding no error, we affirm.

The parties stipulated below to the pertinent facts. Inglett is a Smyrna-based electrical contractor that provides services in international locations. In 2004 and 2010, the United States Department of the Army awarded Inglett several contracts for construction and installation of electrical distribution systems in Afghanistan. In connection with these contracts, Inglett purchased materials that were delivered to and stored in its Smyrna warehouse, then shipped to Afghanistan for use on the projects. Although Inglett paid sales tax on the materials, it subsequently requested a refund from the Department, asserting that it was a reseller not responsible for sales tax.

The Department rejected the refund request, and Inglett appealed to the Tax Tribunal. An Administrative Law Judge (“ALJ”) on the Tribunal upheld the Department’s decision, finding, among other things, that Inglett was a consumer liable for sales tax, rather than a reseller. Inglett appealed the ALJ’s decision to the Superior Court of Fulton County, which affirmed. We granted Inglett’s application for discretionary review, and this appeal followed.

Pursuant to OCGA § 50-13A-17, any party may appeal a final decision of the Tax Tribunal to the Superior Court of Fulton County The superior court defers to the Tribunal’s factual findings, but may reverse or modify the judgment if

substantial rights of the petitioner have been prejudiced because the tribunal judge’s findings, inferences, conclusions, or judgments are: (1) In violation of constitutional or statutory provisions; (2) In excess of the statutory authority of the tribunal; (3) Made upon unlawful procedure; (4) Affected by other error of law; (5) Clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (6) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.

On further appeal to this Court, we conduct “a de novo review of claimed errors of law in the superior court’s appellate review of an ALJ’s decision.” We also consider de novo any interpretation of a statute or agency regulation. With these standards in mind, we turn to the tax question at issue.

“Every purchaser of tangible personal property at retail in this state shall be liable for a tax on the purchase at the rate of 4 percent of the sales price of the purchase.” A sale “at retail” is “any sale, lease, or rental for any purpose other than for resale, sublease, or subrent.” Although retail sellers generally must collect sales tax and remit it to the State, “the ultimate consumer is the party liable for sales tax.” Whether a party is a consumer, therefore, is key in assessing sales tax liability

Inglett contends that it is a reseller to the United States government — rather than a retail consumer — and thus need not pay sales tax on items bought for the Afghanistan contracts. We disagree. In J. W. Meadors & Co. v. State of Ga., this court addressed whether a contractor purchasing materials for a construction contract should be viewed as a retail consumer or a reseller for sales tax purposes. We ultimately deemed the contractor a consumer, noting:

A contractor when fabricating personalty into realty neither sells, resells, sells at retail, nor can he be considered a retailer. Acontractor who buys building material is not one who buys and sells — a trader. He is not a dealer, or one who habitually and constantly, as a business, deals in and sells any given commodity. He does not sell lime and cement and nails and lumber. Sales to contractors are sales to consumers.

Shortly after Meadors, the General Assembly codified this contractor-as-consumer rule. The relevant language, which appears in OCGA § 48-8-63 (b), provides:

Each person who orally, in writing, or by purchase order contracts to furnish tangible personal property and to perform services under the contract within this state shall be deemed to be the consumer of the tangible personal property and shall pay the sales tax imposed by this article at the time of the purchase. . . .

Under the contractor-as-consumer rule, therefore, a contractor generally is a retail consumer liable for sales tax on property purchased for contract work. On appeal, Inglett argues that the rule does not apply here because the Afghanistan contracts were performed outside of Georgia. It is true that a contractor becomes a consumer when it “contracts to furnish tangible personal property and to perform services under the contract within this state.” But the Afghanistan contracts required Inglett to provide all “materials, tools, equipment, and . . . other items as necessary to complete the work.” And Inglett concedes that it purchased the work-related materials within Georgia, then stored those items in its Smyrna facility pending shipment to Afghanistan.

Decided October 25, 2016

Reconsideration denied November 10, 2016

Andy Clark Law, M. Andrew Clark, for appellant.

Samuel S. Olens, Attorney General, W. Wright Banks, Jr., Deputy Attorney General, Alex F. Sponseller, Nancy M. Gallagher, Senior Assistant Attorneys General, for appellee.

In carrying out its contractual responsibilities, Inglett performed work and services in Georgia, purchasing and storing property in the state. These facts bring Inglett within the contractor-as-consumer rule in OCGA § 48-8-63 (b), subjecting it to sales tax liability The fact that Inglett shipped the purchased materials to Afghanistan makes no difference. To find otherwise would misconstrue OCGA § 48-8-63 (b) andignore the common law rule underlying it. The superior court, therefore, properly affirmed the ruling of the Tax Tribunal.

Judgment affirmed.

Peterson, J., concurs. Dillard, J., concurs in judgment only.

DILLARD, Judge,

concurring in judgment only.

I concur in judgment only because I do not agree with all that is said in the majority opinion. As such, the majority’s opinion decides only the issues presented in the case sub judice and may not be cited as binding precedent. See Court of Appeals Rule 33 (a).

       The Tax Tribunal is an independent, specialized agency created by the General Assembly in 2012 “to resolve disputes between the [Department and taxpayers in an efficient and cost-effective manner.” OCGA § 50-13A-2. See also OCGA §§ 50-13A-1 (“This chapter shall be known and may be cited as the ‘Georgia Tax Tribunal Act of 2012.’ ”); 50-13A-3 (“As used in this chapter, the term ‘tribunal’ means the Georgia Tax Tribunal established by Code Section 50-13A-4 which shall be an independent and autonomous division within the Office of State Administrative Hearings operating under the sole direction of the chief tribunal judge.”); 50-13A-4 (creating the Tax Tribunal).

       See OCGA § 50-13A-5 (a) (“The [Tax Tribunal] shall consist of at least one full-time administrative law judge. If the tribunal has more than one judge, each shall exercise the powers of the tribunal in all matters, causes, or proceedings assigned to him or her.”).

       See OCGA § 50-13A-17 (a), (b).

       OCGA § 50-13A-17 (g).

         Upper Chattahoochee Riverkeeper v. Forsyth County, 318 Ga. App. 499, 502 (734 SE2d 242) (2012) (punctuation and footnote omitted).

       Id.

       OCGA § 48-8-30 (b) (1).

       OCGA § 48-8-2 (31).

        Ciba Vision Corp. v. Jackson, 248 Ga. App. 688, 690 (1) (548 SE2d 431) (2001). See also OCGA §§ 48-8-30 (b) (1) (retail purchasers shall be liable for tax on purchase); 48-8-30 (b) (2) (“No retail sale shall be taxable to the retailer or dealer which is not taxable to the purchaser at retail.”). A retailer that fails to collect sales tax, however, is responsible for the tax. See OCGA § 48-8-30 (b) (1).

       See OCGA § 48-8-3 (1) (sales tax is not levied upon “[s]ales to the United States government . . . when paid for directly to the seller by warrant on appropriated government funds”).

       89 Ga. App. 583 (80 SE2d 86) (1954).

       Id. at 584-585 (2) (citations and punctuation omitted).

       See Ga. L. 1955, pp. 389-390.

       See also OCGA § 48-1-2 (18) (for purposes of the Georgia tax code, a “person” is “any individual, firm, partnership, cooperative, nonprofit membership corporation, joint venture, association, company, corporation, agency, syndicate, estate, trust, business trust, receiver, fiduciary, or other group or combination acting as a unit, body politic, or political subdivision, whether public, private, or quasi-public”).

        See Meadors, supra. See also Strickland v. W. E. Ross & Sons, 251 Ga. 324, 325 (1) (304 SE2d 719)(1983)(“ ‘Contractors’ are persons who contract to furnish tangible personal property and perform services thereunder in constructing or repairing real property and are deemed to be the consumer of such tangible personal property. Contractors must pay the sales tax on this tangible personal property at the time they purchase it.”) (citation and punctuation omitted); ESI Cos. v. Fulton County, 271 Ga. App. 181, 182 (609 SE2d 126) (2004) (“Under Georgia statute, OCGA § 48-8-63, the contractor is treated as the consumer liable for sales and use taxes; even when the state or governmental entity is the actual consumer, the contractor remains liable for such taxes.”) (citation omitted).

       OCGA § 48-8-63 (b) (emphasis supplied).

       At points below, Inglett asserted that it purchased materials outside of Georgia, potentially implicating use tax, rather than sales tax. Compare OCGA § 48-8-30 (b) (1) (purchasers of tangible personal property at retail in Georgia shall be liable for sales tax on the purchase) with OCGA § 48-8-30 (c) (1) (owner or user of tangible personal property purchased outside of state shall be liable for tax “ [u] pon the first instance of use, consumption, distribution, or storage [of the property] within this state”). Inglett now concedes that this case only involves property purchased within Georgia. Use tax, therefore, is not at issue.

        See Nat. Svc. Indus. v. Hawes, 227 Ga. 221, 223 (179 SE2d 765) (1971) (“[P]urchasesfrom sellers in Georgia . . . are taxable, whether or not designated at all times for future shipment outside the State.”).

        See Meadors, supra. See also Cox v. Barber, 275 Ga. 415, 416 (1) (568 SE2d 478) (2002) (“In construing statutes, courts shall look diligently for the intention of the General Assembly. The words of a statute should be given a reasonable and sensible interpretation to carry out the legislative intent and render the statute valid.”) (footnotes omitted); Peachtree-Cain Co. v. McBee, 254 Ga. 91, 93 (1) (327 SE2d 188) (1985) (“All statutes are presumed to be enacted by the General Assembly with full knowledge of the existing condition of the law and with reference to it, and are therefore to be construed in connection and in harmony with the existing law, and as a part of a general and uniform system of jurisprudence, and their meaning and effect is to be determined in connection, not only with the common law and the Constitution, but also with reference to other statutes and decisions of the courts.”) (citations and punctuation omitted). See also Ga. L. 1955, p. 389 (amending the Georgia Retailers’ and Consumers’ Sales and Use Tax Act “so as to provide that contractors shall be deemed to be consumers under this Act and liable for sales and use tax on all tangible personal property used in fulfilling a contract”).