text:
    A14A1725.
    REINHARD v. THE STATE.
    (770 SE2d 314)
   Miller, Judge.

A jury convicted Andrew C. Reinhard of rape (OCGA § 16-6-1 (a) (1)), aggravated sexual battery (OCGA § 16-6-22.2 (b)), and four counts of child molestation (OCGA § 16-6-4 (a) (1)) against his daughter, as well as enticing a child for indecent purposes (OCGA § 16-6-5 (a)) and two counts of child molestation against his roommate’s niece. Reinhard appeals from the trial court’s denial of his motion for new trial, contending that: (1) insufficient evidence supported the verdict; (2) the trial court should have excluded the testimony of two bolstering witnesses; (3) the trial court erred in refusing to grant a mistrial after a witness testified that Reinhard’s daughter suffered from post-traumatic stress disorder (PTSD); (4) the trial court erred in denying his request for a continuance or a mistrial based on the State’s late disclosure of discovery; and (5) the trial court erred in denying his request for a mistrial based on the State’s improper opening argument. For the reasons that follow, we affirm.

Viewing the evidence in the light most favorable to the jury’s verdict, the record shows that Reinhard’s daughter and son lived with their mother and visited Reinhard on weekends. Reinhard’s daughter, who was 13 years old at trial, testified that when she was 12 years old, Reinhard frequently asked her to undress in front of him and touched her in his bedroom at his home in Warner Robins. Reinhard touched, kissed, and licked his daughter’s breasts on numerous occasions. Reinhard also grabbed his daughter’s hand and made her touch his “thingy.” Two or three times, Reinhard touched the inside and outside of her vagina with his finger. Reinhard also touched the inside and outside of her vagina with his penis more times than she could count. Reinhard’s daughter told her father “no,” but he would not stop. Reinhard’s daughter described how he got on top of her, put his “thingy” in her, far enough in that it hurt, and moved up and down.

Reinhard’s son, who was ten years old at trial, saw his sister go into Reinhard’s bedroom with Reinhard. The door to Reinhard’s bedroom would be locked, Reinhard would tell his son not to come near the door, and Reinhard’s son could hear his sister screaming and crying in the bedroom.

Approximately six weeks after the abuse began, Reinhard’s daughter told her mother that Reinhard asked her to take off her clothes in front of him. When her mother confronted Reinhard, he said that he had his daughter take off her clothes, but that they were just playing around and “it got out of control.” Shortly thereafter, Reinhard’s daughter told her mother that Reinhard had touched her, and her mother then called the police.

A forensic investigator interviewed Reinhard’s daughter in November 2008. A recording of her forensic interview was played for the jury. Reinhard’s daughter’s therapist, who treated her for childhood sexual abuse, testified that Reinhard’s daughter suffered from PTSD and that her symptoms — including aggression, withdrawal, and intrusive or recurring thoughts — were consistent with a child experiencing serious trauma. Reinhard’s daughter also disclosed to her therapist that Reinhard raped her and digitally penetrated her.

Reinhard’s roommate’s niece testified that Reinhard took her for a ride in his car in October 2008, when she was 14 years old. Reinhard pulled over on the side of the road, kissed her, told her that he wanted to see her breasts, and tried to put his hand in her shirt. Later that week, she rode in Reinhard’s car again, and he once again tried to get her to show him her breasts. They returned to his home, and he kissed her on the lips. After the second incident, the roommate’s niece told her aunt that Reinhard kissed her and told her to show him her breasts. She also told her grandmother what happened, and her mother ultimately learned about the abuse. When confronted by his roommate, Reinhard admitted to kissing her niece.

After the child’s mother learned that Reinhard had been arrested, she reported what had happened to the police. A forensic investigator also interviewed Reinhard’s roommate’s niece, and a recording of her interview was also played for the jury.

Apsychologist reviewed both girls’ forensic interviews, as well as the police reports, and testified that each girl’s demeanor and behavior during her interview was consistent with that of a child who had been molested.

1. Reinhard contends that insufficient evidence supported the verdict because there were no eyewitnesses to his abuse of his daughter, no DNAwas recovered from her clothing, and he worked six days a week. We disagree.

(a) As to his daughter, Reinhard was charged with rape, aggravated sexual battery based on his act of placing his finger in her vagina, and four counts of child molestation.

To prove the offense of rape, the State must show that a defendant had “carnal knowledge of... a female forcibly and against her will.” OCGA § 16-6-1 (a) (1). Reinhard’s daughter testified that when she was 12 years old, Reinhard put his penis in her vagina more times than she could count. She told her father “no,” but he would not stop. During her forensic interview, which was played for the jury, she described how Reinhard got on top of her and put his “thingy” in her, far enough in that it hurt, and he moved up and down.

“Aperson commits the offense of aggravated sexual battery when he intentionally penetrates with a foreign object the sexual organ or anus of another person without that person’s consent.” (Footnote omitted.) Colton v. State, 297 Ga. App. 795, 796 (1) (678 SE2d 521) (2009); see also OCGA § 16-6-22.2 (b). A person’s finger may constitute a foreign object. See Colton, supra, 297 Ga. App. at 796 (1). Reinhard’s daughter also testified that Reinhard touched the inside of her vagina with his finger two or three times.

“A person commits the offense of child molestation when such person ... [d]oes any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person[.]” OCGA § 16-6-4 (a) (1). Reinhard was charged with four counts of child molestation against his daughter. At trial, she testified that Rein-hard asked her to undress in front of him more times than she could count, and he touched, kissed, and licked her breasts. During her forensic interview, she also described how Reinhard grabbed her hand and made her touch his “thingy.”

(b) As to his roommate’s niece, Reinhard was charged with one count of enticing a child for indecent purposes and two counts of child molestation based on his acts of kissing her and asking her to expose her breasts to him. A person commits the offense of child enticement when he solicits, entices, or takes a child under the age of 16 years to any place for the purpose of child molestation. See OCGA § 16-6-5 (a).

She testified that Reinhard took her for a ride in his car when she was 14 years old, pulled over on the side of the road, kissed her, and told her that he wanted to see her breasts. On another occasion, Reinhard again tried to get her to show him her breasts. At his home, he kissed her on the lips.

(c) The victims’ testimony alone is sufficient to sustain Rein-hard’s convictions. See Newton v. State, 296 Ga. App. 332, 335 (1) (a) (674 SE2d 379) (2009); see also OCGA § 24-4-8 (2010) (testimony of a single witness is sufficient). The witnesses to the victims’ outcries, including Reinhard’s daughter’s mother and therapist and his roommate’s niece’s family members, also corroborated the victims’ accounts. Furthermore, Reinhard admitted having his daughter undress in front of him and kissing his roommate’s niece, and his son’s testimony also corroborated his daughter’s version of events. As to the lack of physical evidence or other eyewitnesses to the crimes, the “lack of [further] corroboration only goes to the weight of the evidence and the credibility of the testifying witness, which is solely within the purview of the jury.” (Citation and punctuation omitted.) Manuel v. State, 289 Ga. 383, 385 (1) (711 SE2d 676) (2011). Accordingly, the evidence was sufficient to support all of Reinhard’s convictions.

2. Reinhard contends that the trial court should have excluded the testimony of his daughter’s therapist and the psychologist because their testimony bolstered the testimony of his daughter and of one another. We disagree.

We have held that the testimony of experts that certain medical or scientific tests resulted in findings consistent with molestation is admissible and proper. The fact that such testimony may also indirectly, though necessarily, involve the child’s credibility does not render it inadmissible.

(Citations and punctuation omitted.) Noe v. State, 287 Ga. App. 728, 730 (1) (652 SE2d 620) (2007); see also Odom v. State, 243 Ga. App. 227 (1) (531 SE2d 207) (2000) (“[T]here is absolutely nothing wrong with expert opinion testimony that bolsters the credibility of the indicted allegations of sexual abuse, e.g.,... the victim’s psychological evaluation was consistent with sexual abuse.”) (punctuation omitted).

Both the therapist and the psychologist testified that the victims’ demeanor and behavior were consistent with sexual abuse. Specifically, the therapist testified that Reinhard’s daughter’s symptoms and behavior were consistent with a child experiencing serious trauma from sexual abuse. The psychologist testified that each girl’s demeanor and behavior during her forensic interview was consistent with that of a child who had been molested. Accordingly, their testimony was properly admitted. See Odom, supra, 243 Ga. App. at 229 (1) (b) (holding admissible a doctor’s testimony that victim’s behavior was consistent with sexual abuse). Moreover, we note that the trial court instructed the jury that it was for the jury to determine the credibility of the witnesses, and, specifically, it was for the jury, not any witness, to determine if Reinhard’s daughter was credible.

Reinhard further asserts that the psychologist’s testimony would only be admissible if the therapist or forensic examiners had been impeached. Expert testimony is permitted on the propriety and effect of interviewing techniques in child sexual abuse cases. See Barlow v. State, 270 Ga. 54, 55 (507 SE2d 416) (1998); Ogle v. State, 270 Ga. App. 248, 249 (2) (606 SE2d 303) (2004) (expert’s opinion that victim’s interview was consistent with one given by child who has been sexually abused left to jury issues of victim’s credibility and whether sexual abuse actually occurred). Contrary to Reinhard’s argument, there is no requirement that an interviewer be impeached before a trial court allows testimony regarding interviewing techniques.

3. Reinhard contends that the trial court erred in refusing to grant a mistrial based on the therapist’s testimony that his daughter suffered from PTSD. We disagree.

“Whether to declare a mistrial is in the discretion of the trial court and will not be disturbed on appeal unless it is apparent that a mistrial is essential to the preservation of the right to a fair trial.” (Citations and punctuation omitted.) Rafi v. State, 289 Ga. 716, 720 (4) (715 SE2d 113) (2011).

Reinhard argues that the testimony was inadmissible because the State did not establish that the tests that the therapist administered to his daughter were admissible under Harper v. State, 249 Ga. 519, 524-525 (1) (292 SE2d 389) (1982).

Under the longstanding precedent of [Harper,] scientific evidence is not admissible in criminal cases unless the procedure or technique in question has reached a scientific stage of verifiable certainty.... It is the role of the trial court to determine whether a scientific procedure or technique constitutes competent evidence under Harper, and the trial court’s determination will not be disturbed absent a clear abuse of discretion. The trial court may make this determination from evidence presented to it at trial by the parties; in this regard expert testimony may be of value.

(Citations and punctuation omitted.) Fortune v. State, 304 Ga. App. 294, 298 (2) (696 SE2d 120) (2010).

Here, the therapist testified that her evaluations of children are based on her conversations with and observations of them, as well as standardized assessments and tests. The therapist explained that the standardized assessments that she uses and that she administered to Reinhard’s daughter can only be administered by credentialed therapists, after they have gone through a period of supervised use of the tests. The therapist had been administering these tests for more than five years. The tests are highly reliable; they are designed to give consistent results even if read by different people; they have been used by many people; and research shows that they are accurate and measure what they are designed to measure. Additionally, one standardized assessment used in evaluating Reinhard’s daughter, the Trauma Symptoms Checklist, has a built-in validity scale that indicates whether a child is over-reporting or under-reporting. Rein-hard cross-examined the therapist as to her qualifications, the assessments she used, and her treatment of his daughter.

The State established through the therapist’s testimony that the use of these assessments has reached a scientific state of verifiable certainty justifying their admission. See Morgan v. State, 189 Ga. App. 795, 796 (2) (377 SE2d 707) (1989) (doctor’s testimony that scientific technique was routinely used and accepted within the medical profession was sufficient to show that technique was reliable under Harper). Accordingly, the trial court did not abuse its discretion in allowing the therapist to testify that she had diagnosed Reinhard’s daughter with PTSD based, in part, on these tests. Since the evidence was admissible, a mistrial was not required to preserve Reinhard’s right to a fair trial.

4. Reinhard contends that the trial court erred in refusing to grant a mistrial or a continuance after the State failed to turn over ten pages of notes from the therapist until just before trial began, in violation of the discovery statute. We discern no error.

Under the criminal discovery statute, the State must disclose, at least ten days prior to trial, any medical records or test results it plans to use against the defendant. OCGA § 17-16-4 (a) (4).

If at any time during the course of the proceedings it is brought to the attention of the court that the [Sjtate has failed to comply with the [discovery statute], the court may order the [S]tate to permit the discovery or inspection, interview of the witness, grant a continuance, or, upon a showing of prejudice and bad faith, prohibit the [S]tate from introducing the evidence not disclosed or presenting the witness not disclosed, or may enter such other order as it deems just under the circumstances. . . .

OCGA § 17-16-6.

In enacting this statute, the legislature did not impose a rigid formulation or grant an exclusive remedy for a defendant or a fatal consequence to the State for failure to comply with the discovery mandates. Instead, it cloaked the trial court with the discretion to use its own judgment to ensure a fair trial.

(Citation omitted.) Jones v. State, 290 Ga. 576, 577 (2) (722 SE2d 853) (2012).

Approximately two weeks prior to trial, as soon as the State learned that Reinhard’s daughter had been seeing a therapist, the State gave notice that the therapist might testify. The State disclosed the therapist’s notes shortly after receiving them. Before the therapist testified, Reinhard asked for a continuance on the grounds that trial counsel had not yet read the therapist’s notes, which had been disclosed the previous day, and Reinhard had not had time to retain his own expert to review the notes. Although the trial court considered granting an overnight continuance, the therapist was due to leave the country the next day, and the trial court instead granted Reinhard a short continuance to read the therapist’s notes before she testified. The trial court denied Reinhard’s motion for a further continuance to retain an expert to review the notes. The trial court also denied Reinhard’s subsequent motion for a mistrial.

Reinhard argues that the trial court erred in refusing to grant a mistrial based on the State’s discovery violation. “[A] trial court may grant a mistrial for such a discovery violation only upon a showing by the defendant of both bad faith and prejudice or that a mistrial would otherwise be just under the circumstances.” (Citations omitted.) Prince v. State, 295 Ga. 788, 794 (3) (764 SE2d 362) (2014). Here, Reinhard asserted no bad faith on the part of the State. Accordingly, the trial court did not abuse its discretion in denying Reinhard’s mistrial request. See Jones, supra, 290 Ga. at 578 (where there was no showing of bad faith in State’s untimely disclosure of a witness’s statement, exclusion of testimony and mistrial were not available remedies).

Moreover, Reinhard has not shown that the trial court abused its discretion in granting him only a short continuance. The trial court gave Reinhard a limited continuance to review the materials, taking into account the fact that the witness would not be available the following day. See Holmes v. State, 284 Ga. 330, 332-333 (6) (667 SE2d 71) (2008) (trial court did not abuse its discretion in permitting witness to testify despite discovery violation where State disclosed witness’s statement shortly after it learned of it and trial court gave defendant time to question the witness before he testified). Reinhard had notice two weeks before his trial began that the therapist might testify, and in that time he could have retained an expert to counter the therapist’s testimony. Instead, Reinhard waited until his trial had begun to request a continuance. Accordingly, the trial court did not abuse its discretion in denying Reinhard’s motion for a further continuance to review the notes or obtain an expert.

5. Reinhard contends that the trial court erred in denying his motion for a mistrial based on the State’s improper opening argument. We discern no error.

During opening argument, the State argued that the therapist would testify that Reinhard’s daughter suffered from PTSD and withdrew into herself after the abuse. Reinhard argues that the trial court should have given curative instructions or granted a mistrial in accordance with OCGA § 17-8-75.

Decided March 18, 2015.

Daniell Law Firm, David G. Daniell, for appellant.

George H. Hartwig III, District Attorney, Marie R. Banks, Assistant District Attorney, for appellee.

OCGA § 17-8-75 provides:

Where counsel in the hearing of the jury make statements of prejudicial matters which are not in evidence, it is the duty of the court to interpose and prevent the same. On objection made, the court shall also rebuke the counsel and by all needful and proper instructions to the jury endeavor to remove the improper impression from their minds; or, in [the court’s] discretion, [the court] may order a mistrial if the prosecuting attorney is the offender.

A defendant must contemporaneously object to any alleged impropriety in opening argument so that the trial court can take remedial action, if any is warranted. See Gomez v. State, 315 Ga. App. 898, 899-900 (1) (728 SE2d 691) (2012). Reinhard did not object to the comments in the opening statement at the time they were made. Instead, he waited until the end of opening argument to raise his objection.

“Having failed to assert a contemporaneous objection, [Rein-hard] has waived his right to complain about the remarks on appeal.” (Citation omitted.) Gomez, supra, 315 Ga. App. at 900 (1). Moreover, even assuming the State’s comments were prejudicial and that Reinhard had not waived the issue, it is highly unlikely that any alleged error in failing to give a curative instruction or grant a mistrial contributed to the jury’s verdict since the trial court instructed the jury that opening statements are not evidence. See id. Essentially, the trial court did not abuse its discretion in denying Reinhard’s motion for a mistrial.

Judgment affirmed.

Doyle, P. J., and Dillard, J., concur.

       The jury also found Reinhard guilty of incest (OCGA § 16-6-22 (a) (1)), another count of child molestation, and statutory rape (OCGA § 16-6-3 (a)) against his daughter, and the trial court merged these counts into Reinhard’s rape conviction.
      As to his roommate’s niece, the jury found Reinhard not guilty of one count of child molestation and one count of enticing a child for indecent purposes.

         Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).

       We note that expert testimony based solely on an expert’s observations of physical objects does not generally constitute scientific evidence for purposes of Harper. See Belton v. State, 270 Ga. 671, 673 (4) (512 SE2d 614) (1999) (expert’s testimony regarding shoe print identification was based on observation, skill, and experience, not scientific principles, and was thus not subject to Harper).

       The therapist testified that she generally administers the Trauma Symptoms Checklist, the Child Sexual Behavior Inventory, and other inventories for youth, all of which are commonly used. She administered the Trauma Symptoms Checklist and the Beck Youth Inventory to Reinhard’s daughter.

       Reinhard also argues that the trial court’s failure to grant a longer continuance violated his right to confrontation since trial counsel did not have time to prepare to cross-examine the therapist. Reinhard has not shown, however, that his trial counsel’s cross-examination was inadequate or pointed to any additional challenges that trial counsel should have raised on his behalf. See Eskew v. State, 309 Ga. App. 44, 46 (1) (709 SE2d 893) (2011). Under these circumstances, the trial court did not abuse its discretion in denying a longer continuance. See id.


source: Caselaw Access Project

author: Boggs, Judge.

license: Public Domain

text:
    A14A1803.
    AMEY v. THE STATE.
    (770 SE2d 321)
   Boggs, Judge.

Marcus Amey appeals from his convictions for armed robbery, aggravated assault, possession of a firearm during the commission of a felony, and possession of a firearm by a first offender probationer. He contends that the trial court erred by admitting evidence of a prior attempted robbery and that his trial counsel provided ineffective assistance of counsel. We find merit in Amey’s contention that the prior attempted robbery should not have been admitted into evidence, and we therefore reverse.

The record shows that the charges at issue in this appeal arose from the September 26, 2011 robbery and aggravated assault of a woman in an apartment complex parking lot. The prior crime took place on September 29, 2008 and involved the attempted robbery of a woman outside her home.

September 26, 2011 Robbery

The victim testified that when she drove into her apartment complex around 2:00 a.m., she saw a “very noticeable” red car that looked as if it was leaving the apartment complex. After she passed it, she checked her rear view mirror and noticed that it was following her. She parked and waited a couple of minutes “to let the car park or go wherever they’re going to go,” because she “felt at that moment that something wasn’t right.” She saw the car park in front of a different building in the apartment complex and heard a car door close before getting out of her car and walking toward her building.

When she looked behind her, she saw a fit, six-foot tall black male, wearing all black with a tight-fitting tank top. She locked eyes with him, “[a]nd that’s when he got the gun and came at me and pointed it to my head.” She tried to dial 911, but was unable to do so. The man placed the gun to the back of her head, told her to turn around, and stated, “I know you have money.” After the victim denied having any money, he told her to lie on the ground and start counting. While she was counting, he grabbed her Coach purse which contained $10, her wallet, a rim lock, and papers. When she glanced up as he started to walk away, he told her, “Turn around.” She heard him get into a car and leave. After she “felt that the car left, [she] called 911.” Following her initial report to the police, the victim called back to add that she had determined from online research that the red car she had seen was a Dodge Magnum.

The victim testified that a street light “was working that night, which is angling to where — toward where the incident happened, so it’s visible.” She believed that there was more than one person in the red car and that the person who robbed her was the passenger, but she acknowledged that she could not see how many people were in the car. She heard the car running during the entire encounter and it was “an in-and-out type thing.” She was not certain how long she interacted with the robber, but guessed it was “anywhere between five and ten minutes.”

On September 27, 2011 at 7:19 p.m., a police sergeant stopped a red Dodge Magnum after it made an unsafe lane change and based upon a BOLO for the same make and model. The car was occupied by three women and one man, Amey, who occupied the right rear passenger seat. After giving the driver a warning, the sergeant “sent everybody on their way.” While completing paperwork on the traffic stop, the sergeant realized that one of the female passengers had an outstanding arrest warrant.

Based upon his recollection of where the driver lived, he went to a nearby gas station to keep watch for the car. At 8:09 p.m., he saw the red Dodge Magnum approaching with one front headlight out. When he stopped the car again, it was occupied by the same four people sitting in the same location. He placed the female passenger under arrest for the outstanding warrant. After she stated that she wanted to give her personal belongings to Amey, the sergeant asked Amey to step out of the car.

The victim drove past the location of the traffic stop and called 911 to report that the police had stopped a car similar to the one involved in her robbery. A detective investigating the robbery testified that when he called the victim back, she stated that “a large, heavyset black male standing outside of the vehicle . . . appeared to be the person that had robbed ... her.” The victim testified that the location where she saw the red Magnum was “[l]iterally across the street from one of the entrances of my apartments.” Based upon a conversation with the detective investigating the robbery, the sergeant transported Amey and the vehicle “up to headquarters” while a search warrant was being obtained.

A search of the car revealed a handgun in the rear hatch compartment behind a large speaker box mounted on the backside of the rear passenger seat. At the time of the second traffic stop, a retractable cover used to hide the contents of the hatch compartment was in place; the detective who searched the vehicle testified that it would have been possible for a rear passenger to place the gun in the hatch compartment by reaching “between the [rear] seat and that retractable cover into the back cargo area of the vehicle.” No items belonging to the victim were found in the car or in a search of the apartment where Amey was staying.

A detective showed the victim a photographic lineup several hours after she called to report that the police had stopped the red Magnum involved in her robbery. The victim pointed to Amey’s photograph and stated, “This one looks closer to the description than any other. Do you know his height?” The detective responded, “Do me a favor, go ahead and circle number 3.” At trial, he explained that he asks all witnesses to circle a picture to which they have pointed. The victim testified that at the time of the lineup, she was 75 percent certain that the man she identified was the one who had robbed her. At trial, she stated that she “was more than 50% sure” and that she selected “[t]he one that [she] thought was the best one that [she] felt was available at the time of the incident.” The victim explained that she was not 100 percent certain because “it was nighttime. It wasn’t perfect.. . lighting, but enough for me to see.” She testified that she was able to identify him as the robber during the trial because “[h]e looks like the individual that attacked me that night.”

September 29, 2008 Robbery

The victim testified that after she arrived home around 10:00 p.m. and parked in her driveway, two men approached her while she was unloading items from the trunk of her car. The men were wearing black bandanas over their faces, and one of them pointed a gun at her head. When they told her they wanted money, she gave them her purse. After searching the purse and finding no money, the men asked for the victim’s car keys. She asked for permission to remove something from the trunk before they took her car, and the men then decided to leave without taking anything from her.

The victim called the police and gave the following description of the men: they were dressed in all black; one was tall and carrying a book bag; and the other was “short and chubby.” According to the victim, the tall one held the gun and did most of the talking. She explained that she could not identify their race because she could not see their faces.

A few minutes after a description of the men was dispatched, a patrol officer saw two men matching the description walking out of a subdivision “in the immediate area of the robbery.” The officer testified that “[o]ne of the individuals was wearing a red shirt and black shorts, and the other was wearing a white shirt and black shorts.” Additionally, one of them, later identified as Mr. Hitchins, was carrying a backpack. The officer explained that he believed they matched the description even though they were not wearing all black because “in instances of robbery or even burglaries,... it’s... common for the people that are responsible to shed clothing or have an extra shirt with them.” When the officer patted Hitchins down for weapons while talking with him about the recent robbery, a gun fell out of his shorts. Both Hitchins and the second man, Amey, were arrested, and a search of Amey revealed a black do-rag in his shorts. The officer discovered two black t-shirts and a black bandana when he searched the backpack. The officer testified that one of the t-shirts was large enough to fit Amey.

After the State presented the above evidence, it introduced, without objection, a copy of Amey’s first offender plea to criminal attempt to commit robbery, as well as a copy of the indictment for armed robbery.

Admission of Prior Robbery

After the State gave notice of its intent to present evidence of the prior robbery, the trial court held a hearing as required by Uniform Superior Court Rule 31.3 (B). In July 2012, the trial court ruled that the prior robbery could be admitted “to show intent, course of conduct [,] and bent of mind.” During the trial, which took place in January 2013, the State acknowledged application of the new Evidence Code and sought to admit the prior robbery for “identity, proof of motive, and opportunity.” After again weighing the probative value of the evidence against its prejudicial impact, the trial court allowed the evidence for each of the new reasons identified by the State. The court also granted Amey’s request for a continuing objection to the evidence.

1. Amey contends the trial court erred by admitting evidence of the other crime because it was not admitted for a proper purpose. As Amey’s trial took place after January 1,2013, we must apply Georgia’s new Evidence Code to determine if the trial court properly admitted evidence of the attempted robbery that took place nearly three years before the robbery for which Amey was tried. Ga. L. 2011, p. 99, § 101.

The Supreme Court of Georgia recently held that “where the new Georgia rules mirror their federal counterparts, it is clear that the General Assembly intended for Georgia courts to look to the federal rules and how federal appellate courts have interpreted those rules for guidance.” Parker v. State, 296 Ga. 586, 592 (3) (a) (769 SE2d 329) (2015). See also Jones v. State, 326 Ga. App. 658, 660 (1) (757 SE2d 261) (2014). Additionally, in the event of any conflicting interpretations between the Eleventh Circuit and other federal circuit courts, we must follow the Eleventh Circuit rule. Bradshaw v. State, 296 Ga. 650, 655 (3) (769 SE2d 892) (2015). The new Georgia evidence rule governing the admission of other crimes, OCGA § 24-4-404 (b), tracks Federal Rule of Evidence 404 (b), and the balancing test embodied in OCGA § 24-4-403 mirrors Federal Rule of Evidence 403. Id.

The Eleventh Circuit uses a three-part test to determine if evidence of other crimes or acts can be admitted pursuant to Federal Rule of Evidence 404 (b): “(1) the evidence must be relevant to an issue other than defendant’s character; (2) the probative value must not be substantially outweighed by its undue prejudice; and (3) the government must offer sufficient proof so that the jury could find that defendant committed the act.” (Citation, punctuation and footnote omitted.) Bradshaw, supra, 296 Ga. at 656 (3). On appeal, we review a trial court’s decision to admit evidence of other crimes “for a clear abuse of discretion.” (Citation and punctuation omitted.) Id.

Amey contends that the evidence of the other robbery attempt was inadmissible because the State failed to prove that it was relevant to an issue other than his character. As the United States Supreme Court explained more than 60 years ago:

The state may not show defendant’s prior trouble with the law, specific criminal acts, or ill name among his neighbors, even though such facts might logically be persuasive that he is by propensity a probable perpetrator of the crime. The inquiry is not rejected because character is irrelevant; on the contrary, it is said to weigh too much with the jury and to so overpersuade them as to prejudge one with a bad general record and deny him a fair opportunity to defend against a particular charge. The overriding policy of excluding such evidence, despite its admitted probative value, is the practical experience that its disallowance tends to prevent confusion of issues, unfair surprise and undue prejudice.

(Citations and footnotes omitted.) Michelson v. United States, 335 U. S. 469, 475-476 (69 SCt 213, 93 LE 168) (1948).

To satisfy the first prong of the test for admission of another crime, the State must show that evidence of Amey’s prior attempted robbery is relevant to an issue other than his character, such as “proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” OCGA § 24-4-404 (b). “Any evidence is relevant which logically tends to prove or to disprove a material fact which is at issue in the case, and every act or circumstance serving to elucidate or to throw light upon a material issue or issues is relevant.” (Citation and punctuation omitted.) Woodall v. State, 294 Ga. 624, 632 (7) (754 SE2d 335) (2014).

(a) Identity. “Evidence of independent crimes, wrongs, or acts only proves identity, as distinguished from the defendant’s bad character, or propensity to commit a crime, when the other incidents are similar to the charged defense in distinct ways that serve as the defendant’s signature.” Paul S. Milich, Georgia Rules of Evidence § 11:13 at 326 (2014-2015 ed.). See also Maggard v. State, 259 Ga. 291, 293 (2) (380 SE2d 259) (1989) (“If, for example, the evidence is being presented to prove the identity of the perpetrator of the offense charged, a long list of similarities between or among the crimes might be necessary to show that the crime on trial bears the defendant’s ‘criminal signature’ ”) (emphasis in original).

A much greater degree of similarity between the charged crime and the uncharged crime is required when the evidence of the other crime is introduced to prove identity than when it is introduced to prove a state of mind. Much more is demanded than the mere repeated commission of crimes of the same class, such as repeated murders, robberies, or rapes.

(Citation and punctuation omitted.) Harper v. State, 330 Ga. App. 561, 566 (2) (b) (768 SE2d 755) (2015). The inference of identity flowing from the other crime “must be extremely strong” and “bear such peculiar, unique, or bizarre similarities as to mark them as the handiwork of the same individual.” (Citation and footnote omitted.) United States v. Myers, 550 F2d 1036, 1045-1046 (5th Cir. 1977). See also Usher v. State, 290 Ga. App. 710, 712 (1) (659 SE2d 920) (2008) (physical precedent only) (“the prior bad act and the charged offense must be ‘so nearly identical in method so as to earmark both the prior act and the charged offense as the handiwork of the accused’ ”) (citation and punctuation omitted).

In this case, the State failed to prove that Amey’s prior attempted robbery was so similar to the charged offense that the charged offense must have been his handiwork. Robbery of a woman alone at night after she has parked her car “is not in the nature of a signature so as to be proof of the perpetrator’s identity.” Jones v. State, 236 Ga. App. 330, 333 (1) (c) (511 SE2d 883) (1999) (prior guilty pleas to armed robbery not probative of identity in subsequent robbery). See also Cole v. State, 216 Ga. App. 68, 69-70 (1) (453 SE2d 495) (1994) (previous robbery inadmissible to prove identity in later robbery); United States v. Lail, 846 F2d 1299, 1301 (11th Cir. 1988) (traits common to many bank robberies did not provide evidence of a signature trait). Compare Peoples v. State, 295 Ga. 44, 54-55 (4) (b) (757 SE2d 646) (2014) (evidence of prior robbery admissible to prove identity where same gun used in robbery and charged offense of home invasion).

(b) Motive. Evidence of another crime may be admitted “to show the defendant’s motive for committing the crime with which he is charged,” but not to demonstrate “a propensity to act in accordance with the character indicated by that [other crime or] conduct.” United States v. Cunningham, 103 F3d 553, 556 (7th Cir. 1996). “Motive has been defined as the reason that nudges the will and prods the mind to indulge in the criminal intent. United States v. Beechum, 582 F2d 898, 912 n. 15 (5th Cir. 1978).” (Punctuation omitted.) Bradshaw, supra, 296 Ga. at 657 (3). “For example, the prosecution may establish impecuniousness as a motive for robbery by showing that the defendant had been threatened for nonpayment of a debt incurred in a drug transaction.” Beechum, supra, 582 F2d at 912, n.15.

As the Seventh Circuit Court of Appeals has explained in more detail:

“Propensity” evidence and “motive” evidence need not overlap. They do not, for example, when past drug convictions are used to show that the defendant in a robbery case is an addict and his addiction is offered as the motive for the robbery. They do overlap when the crime is motivated by a taste for engaging in that crime or a compulsion to engage in it (an “addiction”), rather than by a desire for pecuniary gain or for some other advantage to which the crime is instrumental in the sense that it would not be committed if the advantage could be obtained as easily by a lawful route. Sex crimes provide a particularly clear example. Most people do not have a taste for sexually molesting children. As between two suspected molesters, then, only one of whom has a history of such molestation, the history establishes a motive that enables the two suspects to be distinguished. But the principle that we are discussing is not limited to sex crimes. A “firebug” — one who commits arson not for insurance proceeds or revenge or to eliminate a competitor, but for the sheer joy of watching a fire — is, like the sex criminal, a person whose motive to commit the crime with which he is charged is revealed by his past commission of the same crime. . . . The greater the overlap between propensity and motive, the more careful the district judge must be about admitting under the rubric of motive evidence that the jury is likely to use instead as a basis for inferring the defendant’s propensity, his habitual criminality, even if instructed not to. But the tool for preventing this abuse is Rule 403, not Rule 404 (b).

(Citations omitted.) Cunningham, supra, 103 F3d at 556-557.

Here, the State asserts that the “evidence makes clear that the motive for the instant and the prior crime was to gain money” because “Appellant demanded money from both women.” But

[t]he fact that the accused has committed one kind of crime in the past does not, without more, prove his motive to commit the same kind of crime again. Such logic would make all prior robberies admissible in any robbery case, all prior murders admissible in any murder case, and so on.

Milich, § 11:13 at 318.

“Numerous courts have recognized that evidence of an imminent financial burden on the defendant is admissible for the purpose of proving motive.” United States v. Reed, 700 F2d 638, 643 (III) (11th Cir. 1983). In the case before us, the State presented evidence that Amey had no job and was sleeping on a futon in the living room of friends at the time of the 2011 charged offense. But in order for the prior attempted robbery to be relevant to the issue of motive, the State would also have had to present evidence showing that Amey lacked a job or had some other specific need for money at the time of the 2008 attempted robbery. The attempted robbery would then be relevant to show that Amey was willing to commit robbery when he had a specific need for money. See Bradshaw, supra, 296 Ga. at 657 (3) (“evidence of the Ohio murder was relevant to motive because it demonstrated appellant’s willingness to use violence when he or someone close to him is cheated in a drug deal”).

Based upon the State’s failure to present evidence of Amey’s impecuniousness at the time of the prior attempted robbery, we conclude that motive was not a proper purpose for admitting such evidence. As a sister state has recognized, “[t]he general motive of gaining wealth, which could be the underlying basis for almost any crime, is not sufficient to establish a motive.” State v. Leday, 97 S3d 501, 506 (La. App. 2012) (concluding evidence of prior robbery inadmissible to show motive in later robbery case). See also Reed, supra (trial court erred in allowing evidence of defendant’s past bankruptcy in embezzlement case where there was no showing that defendant was unable to pay off his debts at the time of the embezzlement).

(c) Opportunity. Professor Milich characterizes opportunity as “probably the most rarely used purpose of those listed in [Rule] 404 (b). It admits evidence that relates to the defendant’s specific ability or wherewithal to commit the crime charged.” (Emphasis supplied.) Milich, § 11:13 at 318.

In this case, the prior attempted robbery has no connection to the charged robbery that took place almost three years later; it therefore did not provide evidence of Amey’s specific ability to commit the charged crime. Compare United States v. DeJohn, 638 F2d 1048, 1051-1052 (II) (7th Cir. 1981) (defendant’s prior bad act of taking a check from an internal YMCA mailbox provided evidence of his opportunity to take different checks from the same area that he later attempted to cash). While the State presented evidence showing that Amey was living in close proximity to the location of the charged offense at the time it was committed, it did not present corresponding evidence of Amey’s proximity in connection with the prior robbery at the time it was committed almost three years before. Consequently, opportunity was not a proper ground for admission of the prior robbery evidence.

(d) Harm. Having concluded that none of the reasons identified by the trial court provided a proper purpose for admission of the prior attempted robbery, we must now determine whether the trial court’s error in admitting such evidence requires a new trial. The Supreme Court recently reiterated:

The test for determining nonconstitutional harmless error is whether it is highly probable that the error did not contribute to the verdict. In determining whether trial court error was harmless, we review the record de novo, and we weigh the evidence as we would expect reasonable jurors to have done so as opposed to viewing it all in the light most favorable to the jury’s verdict.

(Citations and punctuation omitted.) Peoples, supra, 295 Ga. at 55 (4) (c).

Here, we cannot say that it is highly probable that the admission of the prior attempted robbery did not contribute to the verdict. The evidence against Amey was not overwhelming. He was not apprehended in the distinctive car immediately after the robbery, but instead over a day later. None of the victim’s belongings were recovered, and her identification of him was far from certain. At the time of the photographic lineup, the victim knew that the police had stopped a car matching the one involved in her robbery. She initially stated that he looked “closer to the description than any other” person in the lineup and asked the detective for information about his height. Instead of providing the requested information, the detective instructed her to circle the number associated with Amey’s photograph. At the time of the lineup, she was only 75 percent certain that she had identified the robber, and at trial she stated that she “was more than 50% sure” and that she selected “[t]he one that [she] thought was the best one that [she] felt was available at the time of the incident.”

As in Usher, supra, the evidence against Amey “was legally sufficient, [but] not overwhelming.” 290 Ga. App. at 711-713 (1). Based upon the inherently prejudicial nature of other crime evidence and the lack of overwhelming evidence against Amey, we must reverse. Id. Lail, supra, 846 F2d at 1301-1302 (erroneous admission of prior robbery not harmless).

Decided March 18, 2015

Lynn M. Kleinrock, for appellant.

Daniel J. Porter, District Attorney, Christopher M. Quinn, Lindsay B. Gardner, Assistant District Attorneys, for appellee.

2. We need not address Amey’s ineffective assistance of counsel claim as it is rendered moot by our holding in Division 1.

Judgment reversed.

Barnes, P. J., and Branch, J., concur.

       In her testimony, the victim denied seeing Amey standing near the car.

       OCGA § 24-4-404 (b) provides in relevant part:
      Evidence of other crimes, wrongs, or acts shall not be admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. .. .

       Federal Rule of Evidence 404 (b) states in relevant part:
      (1) Prohibited Uses. Evidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character. (2) Permitted Uses; Notice in a Criminal Case. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. . . .

       OCGA § 24-4-403 states: “Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.”

       Federal Rule of Evidence 403 provides: “The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.”

       While this decision preceded the adoption of the Federal Rules of Evidence, it provides the historical context behind the prohibition of such evidence. See Pub. L. 93-595, 88 Stat. 1926 (1975).

       The Eleventh Circuit has adopted as binding precedent decisions made by the Fifth Circuit handed down on or before September 30,1981. Bonner v. City of Prichard, 661 F2d 1206, 1209 (II) (11th Cir. 1981).

       As pointed out by Professor Milich, “ ‘similarity’ per se is not an exception to the character rule but only a piece of the larger issue of whether the evidence” can be admitted for a proper purpose. Milich § 11:13 at 338.


author: Miller, Judge. DILLARD, Judge,

text:
    A14A1927.
    DUNCAN v. THE STATE.
    (770 SE2d 329)
   Miller, Judge.

Lisa Smoak Duncan was charged with possession of methamphetamine (OCGA § 16-13-30 (a)), possession of drug-related objects (OCGA § 16-13-32.2 (a)), and speeding (OCGA § 40-6-181). Duncan filed a motion to suppress the drugs seized from her car after a traffic stop, arguing that the officer detained her beyond the time necessary to issue the speeding ticket. Following a hearing, the trial court denied Duncan’s motion to suppress and her motion for reconsideration, but instead issued a certificate for immediate review. We granted Duncan’s application for interlocutory review, and this appeal ensued. For the reasons that follow, we reverse the trial court’s ruling.

[There are] three fundamental principles which must be followed when conducting an appellate review of a trial court’s ruling on a motion to suppress. First, when a motion to suppress is heard by the trial judge, that judge sits as the trier of facts. The trial judge hears the evidence, and his findings based upon conflicting evidence are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support them. Second, the trial court’s decision with regard to questions of fact and credibility must be accepted unless clearly erroneous. Third, the reviewing court must construe the evidence most favorably to the upholding of the trial court’s findings and judgment. These principles apply equally whether the trial court ruled in favor of the State or the defendant.

(Citations and punctuation omitted.) Brown v. State, 293 Ga. 787, 802-803 (3) (b) (2) (750 SE2d 148) (2013). The trial court’s application of the law to undisputed facts is subject to de novo review. See State v. Palmer, 285 Ga. 75, 78 (673 SE2d 237) (2009).

Viewing the record in the light most favorable to the trial court’s ruling, the evidence shows that on the evening of October 10, 2013, a Clayton County sheriff’s office deputy observed Duncan driving at approximately 85 miles per hour on Interstate 75, where the speed limit is 65 miles per hour. The officer stopped Duncan for speeding, approached Duncan’s car, advised her of the reason for the stop, and asked for her license. Duncan gave the officer her license and appeared nervous, shifting around in her seat and looking away. The officer went back to his patrol car, where he wrote up a speeding citation and ran Duncan’s license information. Dispatch advised the officer that Duncan’s license was clear and that she was on probation. Dispatch, however, could not identify why Duncan was on probation.

The officer returned to Duncan’s car and asked her to step out of her vehicle. While standing at the rear of Duncan’s vehicle, the officer explained the citation to Duncan. After Duncan signed the citation, the officer gave her a copy of it and returned her driver’s license to her.

The officer then asked Duncan a series of questions about her probation, including why she was on probation, what were the conditions of her probation, and whether she was reporting in a timely manner. Duncan informed the officer that she was on probation for possession of methamphetamine and driving under the influence. Then, the officer asked Duncan whether she was using drugs and if she had any drugs in the car. Duncan, who appeared very nervous and had labored breathing, responded that she did not have any drugs in the car.

The officer then asked for and received Duncan’s consent to search the car. A backup officer arrived approximately two minutes later, at which point the officer searched the car. The search revealed a small amount of methamphetamine in a glass pipe in a zippered pouch on the passenger seat.

Duncan contends that the trial court erred in denying her motion to suppress because the officer, without reasonable suspicion, continued to detain her after the completion of the traffic stop. We agree.

In this case, there is no dispute that the initial traffic stop for speeding was valid. See Forsman v. State, 239 Ga. App. 612, 613 (5) (521 SE2d 410) (1999) (officer was authorized to stop driver upon witnessing driver speeding). Nonetheless, “a seizure that is lawful at its inception can violate the Fourth Amendment if its manner of execution unreasonably infringes interests protected by the Constitution.” (Citation omitted.) Illinois v. Caballes, 543 U. S. 405, 407 (125 SCt 834, 160 LE2d 842) (2005).

To be valid, an investigative stop of a vehicle must be brief and limited in time to that minimally necessary to investigate the allegation invoking suspicion, and limited in scope to identification and limited questioning reasonably related to the circumstances that justified the initiation of the momentary stop.

(Punctuation and footnote omitted.) Bennett v. State, 285 Ga. App. 796, 798 (648 SE2d 126) (2007). Moreover,

[i]t is well settled that if the officer continues to detain the subject after the conclusion of the traffic stop and interrogates him or seeks consent to search without reasonable suspicion of criminal activity, the officer has exceeded the scope of a permissible investigation of the initial traffic stop.

(Punctuation and footnote omitted.) Id.; see also Caballes, supra, 543 U. S. at 407 (“A seizure that is justified solely by the interest in issuing a warning ticket to the driver can become unlawful if it is prolonged beyond the time reasonably required to complete that mission.”).

The State argues that the overall length of the detention — by the officer’s estimate, no more than 12 minutes — was reasonable. “However, in assessing the reasonableness of an investigative stop, no ‘bright-line’ or rigid time limitation is imposed.” (Punctuation and footnote omitted.) Heard v. State, 325 Ga. App. 135, 139 (1) (751 SE2d 918) (2013). Where an officer continues a traffic stop beyond the conclusion of the investigation that warranted the stop in the first place, even for a short time, that continuation is unreasonable unless the officer has reasonable suspicion of illegal activity. See Rodriguez v. State, 295 Ga. 362, 369 (2) (b) (761 SE2d 19) (2014); see also Davis v. State, 306 Ga. App. 185, 186 (1) (702 SE2d 14) (2010). Notwithstanding the State’s argument, the evidence showed that the officer issued Duncan’s ticket, fulfilling the purpose of the traffic stop, before he inquired into her probation status and the contents of her car.

Once the officer issued Duncan’s ticket, the initial traffic stop was over and any continued inquiry constituted a second detention. See Salmeron v. State, 280 Ga. 735, 736 (1) (632 SE2d 645) (2006); Weems v. State, 318 Ga. App. 749, 752 (1) (734 SE2d 749) (2012) (officer had no reason to continue detaining suspect once ticket was written). To be lawful, the second detention had to be supported by reasonable suspicion. See Rodriguez, supra, 295 Ga. at 369 (2) (b).

Although Duncan was on probation, there was no evidence presented that she was subject to a search condition. Even if Duncan had been subject to a search condition, the officer would still have needed “reasonable or good-faith suspicion” to conduct a search because a person’s probation status, alone, is not sufficient to justify a search. (Citation omitted.) Adkins v. State, 298 Ga. App. 229, 230 (679 SE2d 793) (2009); see also United States v. Knights, 534 U. S. 112, 121 (122 SCt 587, 151 LE2d 497) (2001). Similarly, Duncan’s nervous behavior, even coupled with her looking away and shifting around — conduct consistent with nervousness — was not sufficient to constitute reasonable suspicion of other illegal activity. See Bell v. State, 295 Ga. App. 607, 610 (2) (672 SE2d 675) (2009) (nervousness and dry mouth do not justify search); see also State v. Thompson, 256 Ga. App. 188, 190 (569 SE2d 254) (2002) (nervousness alone cannot establish reasonable suspicion).

Moreover, the traffic stop never became a consensual encounter. See State v. Felton, 297 Ga. App. 35, 37 (676 SE2d 434) (2009). Normally, a traffic stop ends when a police officer informs the driver that she is free to leave. See Arizona v. Johnson, 555 U. S. 323, 333 (II) (B) (129 SCt 781, 172 LE2d 694) (2009). Notably, the officer never told Duncan that she was free to go and a reasonable person in her position, asked to step out of her car on the highway and interrogated by an officer, would not likely have felt free to go about her business. See Felton, supra, 297 Ga. App. at 37; compare Davis, supra, 306 Ga. App. at 187 (1).

Although a request to search made contemporaneously, or nearly so, with the fulfillment of the traffic stop does not unreasonably prolong the detention, the request must occur immediately, or almost immediately, with the conclusion of the stop. See Davis v. State, 303 Ga. App. 785, 787 (694 SE2d 696) (2010) (request made immediately after giving warning ticket); Hayes v. State, 292 Ga. App. 724, 731 (2) (e) (665 SE2d 422) (2008) (request made 30 seconds after issuing ticket). Here, after the officer concluded the stop by giving Duncan the citation and returning her license, he interrogated Duncan about her probation status, conditions, and reporting, and asked whether she had drugs in her vehicle before he requested consent to search the vehicle. Accordingly, the officer’s request to search was not made contemporaneously with the conclusion of the traffic stop.

Decided March 18, 2015

T. Bryan Lumpkin, for appellant.

Tracy Graham-Lawson, District Attorney, Elizabeth A. Baker, William F Carter III, Assistant District Attorneys, for appellee.

In sum, the officer exceeded the scope of a permissible investigation by continuing to detain Duncan and asking for her consent to search after he completed the traffic stop. Accordingly, the trial court erred in denying Duncan’s motion to suppress.

Judgment reversed.

Doyle, P. 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 State argues that the officer requested consent to search before completing the traffic stop, but this contention is belied by the officer’s own uncontradicted testimony.

       See also Bennett v. State, 326 Ga. App. 577, 579 (754 SE2d 813) (2014) (physical precedent only) (trial court erred in denying driver’s motion to suppress where officer never issued a ticket hut instead began inquiring about drugs).


author: DOYLE, Presiding Judge.

text:
    A14A2101.
    AMAH v. WHITEFIELD ACADEMY, INC.
    (770 SE2d 650)
   DOYLE, Presiding Judge.

George U. Amah appeals from the grant of partial summary judgment to Whitefield Academy, Inc., in the Academy’s suit against him for trespass, ejectment, lost use and enjoyment of property, declaratory and injunctive relief, and punitive damages. Amah contends that the trial court erred by (1) ruling that Whitefield’s easement unambiguously established an unlimited use for access, and (2) relying on unauthenticated hearsay documents. For the reasons that follow, we affirm in part, reverse in part, and remand the case.

To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. On appeal from the grant of summary judgment this Court conducts a de novo review of the evidence to determine whether there is a genuine issue of material fact and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.

The relevant portions of the record show that in 2003, the Academy acquired certain property that included a 20-foot easement over undeveloped property held by Amah’s predecessor. The following year, Amah acquired his parcel and began the process of building a house on the property. During this process and thereafter, Amah allegedly encroached on several of his neighbors’ property in various ways, including encroaching on the Academy’s easement for ingress and egress, erecting fences, building decorative entryway features on property he did not own, and regrading neighboring property. After the parties were unable to resolve their disputes with Amah, Whitefield and the other neighbors sued Amah, seeking remedies including injunctive and declaratory relief, ejectment, and damages for trespass.

After Amah answered, the plaintiffs moved for partial summary judgment as to Amah’s liability, reserving damages for trial. In two separate orders, the trial court granted partial summary judgment to the plaintiffs; one order addressed the Academy, and the other order addressed the other neighbors. Amah appeals the grant of partial summary judgment to the Academy, wherein the trial court ruled that the Academy had unrestricted use of the 20-foot wide easement incorporated in its deed.

1. The Academy order resolves the debate as to the Academy’s right to use a 20-foot easement recorded in 1983, explicitly referenced in the Academy’s deed, and generally referenced in Amah’s deed. Amah contends that the trial court erred by ruling as a matter of law that the easement grants the Academy unlimited access for any purpose without restriction. In particular, he contends that the easement grants a use only for residential purposes, but not for commercial or other purposes involving regular traffic by Academy school buses and trucks.

A deed is a contract, and whether a deed and any documents incorporated in the deed by reference create an easement is a question of law that properly is resolved by the trial court to the extent that the deed is unambiguous or that any ambiguities can be resolved by application of accepted rules of construction. If the contract is clear and unambiguous, a court must enforce the contract according to its terms. If the contract is ambiguous, a court must apply the pertinent rules of contract construction to resolve the ambiguity and determine the intent of the parties. But if an ambiguity remains even after the application of the rules of construction, the ambiguity must be resolved at trial by a jury.

Here, the easement provides as follows, in relevant part:

Grantors [including Amah’s predecessor] grant unto [the Academy’s predecessor] ... an easement for the purposes and uses hereinafter set forth over, through and across [certain property owned by Amah’s predecessor]. Said property is adjacent to the south side of [Academy property] and this Easement is granted as app[u]rtenant thereto, for the purpose of a non-exclusive easement for ingress and egress over, across and through said described property to and from a residence which [Academy’s predecessor] [has] constructed.

Amah takes issue with the trial court’s ruling that the emphasized language above unambiguously granted the Academy unlimited ingress and egress for any purpose. At the conclusion of the hearing, the trial court explained:

I don’t think it was... the intention of the parties ... [to limit the use for residential purposes. T]hey could have said that he can only use this for the purpose of accessing his residence____[I]t doesn’t say any of this____[T]hey were just trying to describe more accurately to and from where it would go. And so it’s not... an easement that is only useable for residential purposes. That’s clearly not what the intention of the parties was.

But this ignores an equally plausible and opposite construction of the easement language, “for the purpose of.. . ingress and egress over [the servient estate] to and from a residence,” i.e., that the purpose was to allow access to and from a residence. Otherwise, the reference to the residence is superfluous, a disfavored construction under the rules of contract construction. For example, the easement conveyed to Amah for his own access is described as “a non-exclusive perpetual right of ingress and egress to such property [Amah’s property] over Field Road as shown on the . . . plat of survey.” This language more plainly states that it is for ingress and egress “to . . . property,” without limitation on the character or use of the property accessed. In converse to the trial court’s comments in reaching the opposite conclusion, had the drafters of the Academy’s easement intended this more general access, they could have used this more general, unrestricted language.

In light of the uncertainty created by the language “ingress and egress ... to and from a residence” in the Academy’s easement, the trial court erred by ruling that the easement was clear and unambiguous. In the face of such an ambiguity, the trial court should have applied the rules of statutory construction, including looking to the surrounding circumstances and considering parol evidence to explain the ambiguity. If the court cannot resolve the ambiguity that way, then the issue must be submitted for trial. Accordingly, the trial court erred by ruling as a matter of law on the present record that the Academy’s easement granted it an unrestricted right of access for all purposes.

2. Amah also contends that the trial court erred by relying on unauthenticated hearsay documents referred to in the hearing and included as exhibits to motions in the record. As an initial matter, we note that the recorded deeds and easement at issue in this appeal are subject to the hearsay exception in OCGA § 24-8-803 (14):

Decided March 18, 2015.

Russell H. Hippe III, for appellant.

Antonio L. Thomas, ODell & O’Neal, Justin B. O’Dell, Maner Crumly Chambliss, SamuelM. Chambliss III, J. William Fawcett, for appellee.

The following shall not be excluded by the hearsay rule, even though the declarant is available as a witness .. . (14) Records of documents affecting an interest in property. The record of a document purporting to establish or affect an interest in property, as proof of the content of the original recorded document and its execution and delivery by each person by whom it purports to have been executed, if the record is a record of a public office and an applicable law authorizes the recording of documents of that kind in such office [.]

Further, because Amah did not object to the use of the documents presented to the trial court, he has presented no ruling to review as to the documents’ lack of authentication.

3. In light of our holding in Division 1, we conclude that the trial court correctly ejected Amah from encroaching on the Academy’s 20-foot easement. What remains to be determined on remand is the scope of use authorized by the Academy’s easement.

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

Miller and Dillard, JJ., concur.

       (Citation and punctuation omitted.) Home Builders Assn. of Savannah v. Chatham County, 276 Ga. 243, 245 (1) (577 SE2d 564) (2003), quoting Youngblood v. Gwinnett Rockdale Newton Community Svc. Bd., 273 Ga. 715, 717 (4) (545 SE2d 875) (2001) and Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

       The order addressing the other neighbors is not a part of this appeal, so we do not address any rulings as to those parties.

       (Citations omitted.) Higginbotham v. Knight, 312 Ga. App. 525, 528 (719 SE2d 1) (2011). See also Roberson v. Leone, 315 Ga. App. 459, 462 (726 SE2d 565) (2012) (whether a writing is ambiguous is a question of law for the court).

       (Emphasis supplied.)

       See generally Brown v. Tomlinson, 246 Ga. 513, 514 (272 SE2d 258) (1980), quoting Black’s Law Dictionary (“An easement is the ‘right in the owner of one parcel of land... to use the land of another for a special purpose not inconsistent with a general property in the owner.’ ”) (emphasis supplied).

       See Duke Galish, LLC v. Manton, 308 Ga. App. 316, 319 (1) (707 SE2d 555) (2011) (“No contractual provision should be rendered meaningless, nor any of its terms mere surplusage.”).

       See generally Kammerer Real Estate Holdings v. PLH Sandy Springs, 319 Ga. App. 393, 396 (1) (740 SE2d 635) (2012) (“An ambiguity is defined as duplicity, indistinctness, an uncertainty of meaning or expression used in a written instrument, . . . open to various interpretations.”), overruled on other grounds by Artson, LLC v. Hudson, 322 Ga. App. 859, 862, n. 1 (747 SE2d 68) (2013).

       See Kammerer Real Estate Holdings, 319 Ga. App. at 395-396 (1); Duke Galish, 308 Ga. App. at 319 (1) (“Although parol evidence is inadmissible to add to, take from, or vary a written contract, all the attendant and surrounding circumstances may be proved and, if there is an ambiguity, latent or patent, it may be explained.”).

       See Higginbotham, 312 Ga. App. at 530.

       See generally Doss v. Clearwater Title Co., 551 F3d 634, 640 (III) (7th Cir. 2008) (“Statements in documents affecting an interest in property do fall within an exception to the hearsay rule.”). Because the hearing in this case was held after January 1,2013, Georgia’s new Evidence Code applied. “Given the similarity between Georgia’s new Evidence Code and the Federal Rules of Evidence, it is proper that we give consideration and great weight to constructions placed on the Federal Rules by the federal courts.” (Punctuation omitted.) Rivers v. K-Mart Corp., 329 Ga. App. 495, 496-497 (1) (765 SE2d 671) (2014).

       (Emphasis in original.)

       See, e.g., Typographical Svc. v. Itek Corp., 721 F2d 1317, 1320 (11th Cir. 1983) (“By failing to object when the records were tendered or to conduct a cross-examination limited to their admissibility at that time, [appellant] waived any objection to their admissibility.”).