author: Peterson, Judge.

text:
    A16A1583.
    ADAMS v. THE STATE.
    (795 SE2d 330)
   Peterson, Judge.

Dana Marie Adams bought marijuana for a 13-year-old boy before having sex with him several times. For these acts, she was convicted of aggravated child molestation, child molestation, and two counts of contributing to the delinquency of a minor. We affirm those convictions because the boy’s testimony was sufficient evidence to support the jury’s verdict, and because the trial court did not commit reversible error in admitting a 911 tape for purposes of impeachment.

But these were not Adams’s only convictions. When Adams left her house to purchase marijuana, she left her two young children asleep at home alone for less than an hour. For the act of leaving her children alone for less than an hour, she was also convicted of two counts of contributing to the deprivation of a minor. But construing the relevant criminal statute strictly against the State requires us to conclude that merely leaving a child alone for less than an hour — without more — does not violate that statute. We reverse Adams’s convictions for contributing to the deprivation of a minor.

1. On appeal from a criminal conviction, we view the evidence in the light most favorable to the jury’s verdict. See Watkins v. State, 336 Ga. App. 145, 146 (1) (784 SE2d 11) (2016). We neither weigh the evidence nor determine witness credibility, but only determine whether the evidence was sufficient to allow a jury to find guilt beyond a reasonable doubt. See id.

So viewed, the evidence shows that Adams has three children, K. R. and two children both with the initials R. A. and R. A. At the time in question, K. R. was twelve years old and R. A. and R. A. were both under the age of five. Adams also spent a fair bit of time with her nephews, including T. B. In October 2011, T. B. and his cousin C. C. — both 13 years old — were spending the night at Adams’s house. Also present were Adams’s three children and K. R.’s friend, J. M. At some point, C. C. asked Adams if she would give him $20 for washing her camper so that he would have money to buy some marijuana. Adams not only agreed to give C. C. the money, she said she would drive him to get the marijuana after she put her youngest two children to bed.

After putting those children to bed, Adams drove C. C., T. B., K. R., and J. M. to a location 10-15 minutes away where they waited another 15-20 minutes for the marijuana dealer to arrive. Adams, who had been drinking, backed into a fence and swerved all over the road during the drive. After they returned to Adams’s house, Adams and the two boys went into the camper where they were joined by Adams’s friend, Karen Morris. The four smoked marijuana, and Adams drank alcohol, which she shared with C. C. Both C. C. and Morris described Adams as drunk.

Morris left around midnight and took J. M. and K. R. back to her house to sleep. J. M. wanted to leave because Adams was drunk, and she was not sure what would happen. T. B. also left the camper and returned to the house. When Adams and C. C. were alone in the camper, Adams performed oral sex on C. C., and the two had intercourse. They returned to the house, where C. C. told T. B. what he had been doing. T. B. fell asleep in the computer room, and C. C. joined Adams in K. R.’s bed, where the two again had intercourse. K. R. returned home the next morning to get some clothes. When she found the front door locked, she went to her bedroom window and saw two people in her bed. Later that morning, C. C. and Adams went into Adams’s bedroom where they again engaged in intercourse.

Adams drove C. C. home, and C. C.’s mother and her boyfriend both noticed a hickey on C. C.’s neck. C. C. initially did not tell any adult about the night’s events because he did not want Adams to get in trouble. But the mother’s boyfriend was suspicious and kept asking questions until C. C. finally told him what had happened. C. C.’s parents were then told, and his father contacted law enforcement.

Adams was indicted for aggravated child molestation for performing oral sex on C. C., child molestation for engaging in intercourse with C. C., contributing to the delinquency of a minor for encouraging and aiding C. C. in committing the delinquent act of possessing marijuana and alcohol, contributing to the delinquency of a minor for encouraging T. B. to commit the delinquent act of possessing marijuana and alcohol, and two counts of contributing to the deprivation of a minor for leaving her two youngest children unattended at home while she drove C. C. to purchase marijuana. At trial, Adams testified in her own defense and claimed that the allegations against her were untrue. The jury found Adams guilty of all charges.

(a) Adams argues that the evidence was insufficient to sustain her convictions for aggravated child molestation and child molestation. We disagree.

Aperson commits the offense of child molestation when... she does 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. A person commits the offense of aggravated child molestation when [she] commits an offense of child molestation which involves an act of sodomy

Frankmann v. State, 281 Ga. App. 1, 2 (635 SE2d 272) (2006) (punctuation and footnotes omitted). Here, C. C. testified that Adams performed oral sodomy on him and engaged him in sexual intercourse. This testimony was sufficient to establish the offenses of child molestation and aggravated child molestation. See id. (the testimony of the victim alone was sufficient to establish the offenses of child molestation and aggravated child molestation).

According to Adams, C. C.’s testimony should be disregarded because he had a motive to lie. It is, however, “the function of the jury to determine the credibility of the witnesses. The jurors must weigh and resolve any conflicts presented by the evidence. The appellate court must view the evidence in the light most favorable to the jury’s verdict.” Scott v. State, 207 Ga. App. 334, 334 (427 SE2d 832) (1993) (citation and punctuation omitted). Given C. C.’s testimony, the jury was authorized to find Adams guilty of molestation and aggravated molestation. See id.

(b) Adams argues that the evidence was insufficient to sustain her convictions for contributing to the deprivation of a minor. We agree.

The evidence indicates that the two youngest children were left alone for less than an hour. Adams argues that such an isolated act does not constitute deprivation unless it results in emotional or physical harm to the child. The State responds that it need not prove that the children suffered “actual harm” as a result of Adams’s actions, suggesting that leaving the children alone for any length of time violates the law. As explained below, this case presents the question of whether leaving sleeping young children home alone during the night for less than an hour — without more, and without any harm occurring to them — deprives a child of the physical, mental, emotional or moral needs essential to the child’s well-being. And here we must resolve that question in the criminal law context, which requires us to construe the relevant statute strictly against the State. That requirement ultimately leads us to conclude that Adams’s actions did not violate the statute so construed.

Under the version of OCGA § 16-12-1(b)(3) in effect at the time of the actions giving rise to this prosecution, a person committed the offense of contributing to the deprivation of a minor when he or she “willfully commits an act or acts or willfully fails to act when such act or omission would cause a minor to be found to be a deprived child as such is defined in Code Section 15-11-2[.]” The version of OCGA § 15-11-2 then in effect provided that a child may be “deprived” in several ways; the State relies on the provision that defined as deprived a child who “[i] s without proper parental care or control, subsistence, education as required by law, or other care or control necessary for the child’s physical, mental, or emotional health or morals[.]” OCGA § 15-11-2(8)(A) (2012).

“Proper parental care or control” is not a term defined in the statute. And at first blush, it might seem as though the General Assembly simply enacted a statute making it a crime to act willfully in a manner that fails to provide “proper care” for a child and left it up to the courts to determine what care is proper and what is not. But our Supreme Court has already resolved a vagueness challenge to this very statute, and has done so by narrowing the statute’s scope. See Bagby v. State, 274 Ga. 222 (552 SE2d 807) (2001).

To survive a vagueness challenge, it is necessary only that a “challenged statute convey sufficiently definite warning as to the proscribed conduct when measured by common understanding!)]” Id. at 223 (1). The Court observed that, like all criminal statutes, the statute must be strictly construed against the State. Id. at 224 (1). AndtheCourtconcludedthatdoingsorenderedOCGA § 16-12-1(b)(3) sufficiently definite: construing it against the State, and “[m]easured by common understanding, the statute prohibits a person from wilfully committing an act or omission that deprives a child of the physical, mental, emotional or moral needs essential to the child’s well-being.” Id. The Court concluded that this prohibition had been violated when the evidence showed that a mother left her child alone with the mother’s boyfriend, who had repeatedly committed violent acts against the child during the preceding months and promised to do so again, and then failed timely to ensure medical attention upon returning and seeing the child with a head injury Of course, any person of ordinary understanding would agree that willfully failing to protect one’s child from someone who has expressed an intent to harm them is sufficient evidence that the defendant has deprived their “child of the physical. . . needs essential to the child’s well-being.”

But that conclusion, viewed in the context of the appalling facts of that case, shows that this case is quite different. It is far from obvious that all persons of ordinary understanding would agree that leaving young children home alone asleep for less than an hour — without any unusual risk factors present and without the children experiencing any harm — similarly deprives those children of needs essential to their well-being.

Our own limited case law applying this statute, like Bagby, has also involved considerable harm to children. In Ellis v. State, 283 Ga. App. 808 (642 SE2d 869) (2007), one of the very few cases in which we considered a sufficiency of the evidence challenge to a conviction under OCGA § 16-12-1(b)(3), the defendant left two children, ages one and two, home alone on a very cold morning for what he claimed was only a few minutes while he purportedly assisted a neighbor. Id. at 809-10. Citing evidence that one child left the house long enough to develop hypothermia, and both children were emotionally upset, we rejected the defendant’s argument that the incident was merely a “close call” that did not rise to the level of criminal conduct. Id. at 810 (1). Although our opinion in that case supports the notion that leaving children at home alone for some period of time, under some circumstances, can support a conviction under OCGA § 16-12-1(b)(3), it also rested heavily on the evidence of harm to the children. Id. (rejecting defendant’s argument that his conduct was not criminal and affirming conviction “in light of the evidence showing” the emotional and physical impact of the defendant’s conduct on the children). See also Hoang v. State, 250 Ga. App. 403, 408-09 (2) (551 SE2d 813) (2001) (infant died after defendant babysitter failed to seek medical care).

The State’s position would mean that the prior version of OCGA § 16-12-1(b)(3) required all parents everywhere to surveil their children at all times; the State argues in its brief, “[a] s the recent event at the Cincinnati Zoo involving a three-year-old boy and a 450-pound silverback gorilla illustrates, failing to supervise a child for even a moment can lead to catastrophe.” But merely to repeat this suggestion is to refute it; indeed, under this interpretation, parental sleep may well be a crime. Surely leaving one’s sleeping child alone in the house for a brief moment while walking to the end of the driveway to collect the mail was not a crime under this statute. Likewise, it surely was a crime under this provision to leave toddlers home alone for a week to go on a cruise.

Neither the statutory text nor the case law allows us to say with precision where the statutory line lies between these two examples. What we can say with sufficient certainty is that, considering all of the various statutory provisions discussed above and the relevant case law, we cannot conclude with confidence that Adams’s act of leaving her sleeping children for less than an hour was an act that persons of ordinary understanding would conclude deprived those children of needs essential to their well-being. Construing the criminal law strictly against the State, we must reverse Adams’s misdemeanor convictions for the offense of contributing to the deprivation of a minor. Certainly Adams’s reason for leaving the children home alone was far from compelling; indeed, it was criminal (but a different, crime, the conviction for which we are affirming). But regardless of the reason, we cannot say that evidence of leaving young children home alone asleep in bed for a few minutes — without more — is sufficient to prove beyond a reasonable doubt a crime under the applicable version of OCGA § 16-12-l(b)(3). Accordingly, we reverse Adams’s two convictions for contributing to the deprivation of a minor.

2. Given that those are the only two convictions we reverse on the basis of insufficient evidence, we also consider Adams’s argument that her convictions should be reversed because the trial court erred in allowing the State to introduce the recording of a 911 call. We disagree with Adams’s argument on that point.

At trial, Adams testified in her own defense and portrayed herself as a dutiful, loving mother. During the trial, the lead investigator learned about allegations that Adams had struck K. R. The investigator thus looked to see if any 911 calls had been made, and he discovered a 911 recording from Adams’s husband in which he complained that Adams had slapped K. R. The State sought to impeach Adams’s testimony by playing the 911 call for the jury Adams objected to the introduction of the evidence because she had not been given a copy of the recording before trial. The trial court overruled the objection, and the recording was admitted into evidence. Adams appeals that ruling.

The record shows that Adams elected to proceed under the reciprocal discovery provisions of OCGA § 17-16-1 et seq. by serving written notice on the State, as requiredby OCGA § 17-16-2(a). Accordingly, the State was required “no later than ten days prior to trial” to disclose to Adams any recording it intended to use as evidence in the case-in-chief or as rebuttal evidence. See OCGA § 17-16-4(a)(3)(A). The State’s failure to comply with this statute permits a trial court, upon a showing of prejudice and bad faith, to exclude the evidence. See OCGA § 17-16-6. We review a trial court’s ruling in this regard for abuse of discretion. See Burton v. State, 330 Ga. App. 503, 506 (767 SE2d 510) (2014). And we affirm the trial court’s exercise of discretion here for two independent reasons.

First, even if the State was required to disclose the 911 tape prior to trial, the admission of the evidence does not constitute reversible error. OCGA § 17-16-6 provides the trial court broad authority to craft a remedy in the event of a discovery violation. The trial court may “permit the discovery or inspection, . . . grant a continuance, or, upon a showing of prejudice and bad faith, prohibit the state from introducing the evidence not disclosed ... or may enter such other order as it deems just under the circumstances... .’’OCGA § 17-16-6. “Exclusion of evidence is a particularly harsh sanction and should be imposed only where there is a showing of prejudice to the defense and bad faith by the State.” Leger v. State, 291 Ga. 584, 586 (2) (732 SE2d 53) (2012) (citation and punctuation omitted). Here, Adams has not shown the State acted in bad faith. Rather, the record shows that neither the prosecutor nor the prosecutor’s investigator knew about the existence of the 911 tape prior to the start of trial. Under these circumstances, it cannot be said that the State acted in bad faith in failing to provide the 911 recording prior to trial. See Brown v. State, 281 Ga. App. 557, 559 (636 SE2d 717) (2006); Boykin v. State, 264 Ga. App. 836, 840 (3) (592 SE2d 426) (2003).

Decided December 20, 2016.

Jacob D. Rhein, for appellant.

Ashley Wright, District Attorney, Joshua B. Smith, Assistant District Attorney, for appellee.

Second, Adams did not seek any remedy authorized by the statute except for the exclusion of the evidence. And a defendant’s failure to request a continuance to cure the State’s failure to produce discovery generally results in waiver of the issue on appeal. See Spencer v. State, 296 Ga. App. 828, 830 (1) (676 SE2d 274) (2009); Thompson v. State, 262 Ga. App. 17, 21 (4) (585 SE2d 125) (2003). Accordingly, Adams’s failure to seek a continuance to cure any alleged failure of the State to comply with discovery precludes her from raising the issue on appeal. See id.

Judgment affirmed in part and reversed in part.

Dillard, P. J., and Reese, J., concur.

       Adams is not the biological mother of K. R., who is actually Adams’s cousin. Adams and her husband gained custody of K. R., who had been abused by her biological parents. Both Adams and K. R. referred to Adams as K. R.’s mother.

       C. C. is T. B.’s cousin, but he is not related to Adams.

       C. C. testified that the children were put to bed “in their bedroom”; Adams testified that the youngest child slept in her crib in the children’s shared room that night, while the other young child slept in Adams’s bed per their usual routine.

       Adams testified at trial that C. C.’s mother and her boyfriend had stolen Adams’s debit card. She claims that C. C. fabricated the molestation accusations to discredit her after she pressed charges against the mother’s boyfriend.

       OCGA § 16-12-1 has since been amended consistent with the new Juvenile Code. The current version now provides that “[a] person commits the offense of contributing to the . . . dependency of a minor . . . when such person . . . [wjillfully commits an act or acts or willfully fails to act when such act or omission would cause a minor to be adjudicated to be a dependent child as such term is defined in Code Section 15-11-2 [.] OCGA § 16-12-1(b)(3).

       Because the Supreme Court has construed the statute in this fashion, we lack the authority separately to consider what different meaning the statute’s language might have. But in any event, we note that the statute’s key terms were undefined, and what definitional help we can find from other statutes in pari materia is largely circular. See OCGA § 15-11-2(8)(A) (2012) (defining “deprived child” in pertinent part as one without “proper parental care or control,” but not defining “proper parental care or control”); compare also OCGA § 15-11-94 (b)(4)(B) (2012) (in termination context, court “shall consider” in “determining whether the child is without proper parental care and control” six factors, most relevantly including “[p]hysical, mental, or emotional neglect of the child,” but not defining “neglect”) with Webster’s New World Dictionary 951 (2d College ed. 1980) (defining “neglect” in part as “to fail to care for or attend to sufficiently or properly”).


source: Caselaw Access Project

author: Per curiam.

license: Public Domain

text:
    A16A1726.
    SURRY v. THE STATE.
    (795 SE2d 336)
   Per curiam.

Robert Latron Surry filed a pro se appeal from the trial court’s order denying his motion for out-of-time appeal. For the reasons that follow, we affirm.

In January 2009, Surry pled guilty to theft by receiving, fleeing or attempting to elude a police officer, and possession of cocaine. As part of his negotiated plea, Surry waived his rights to seek a sentence modification and to appeal his conviction. He also initialed and signed a detailed form acknowledging the same. In its order accepting the guilty plea, the trial court stated that it had reviewed the form, questioned Surry about its contents, and concluded that Surry was freely and voluntarily entering his plea.

Shortly after entering his plea, Surry filed a motion to withdraw the plea on the ground that it was not made freely and voluntarily Following a hearing, the trial court denied the motion, and Surry did not appeal from that order.

In September 2010, Surry filed a pro se motion for an out-of-time appeal. Surry’s sole argument was that his appointed counsel was negligent in failing to either file a timely notice of appeal or to inform him of the trial court’s ruling. The trial court denied the motion, and this appeal followed.

On appeal, Surry raises numerous arguments that he did not raise before the trial court, and he asserts that appointed counsel was constitutionally deficient for failure to file an appeal.

“We review a trial court’s denial of a motion for an out-of-time direct appeal for an abuse of discretion.” (Citation omitted.) Arrington v. State, 332 Ga. App. 481 (773 SE2d 430) (2015).

When a conviction is entered based on a plea of guilty, a direct appeal is available only if the issue on appeal can be resolved by reference to facts on the record. Thus, if the issues that the defendant seeks to appeal cannot be resolved from the record, he had no right to file a direct appeal, and therefore he [had] no right to file an out-of-time appeal. If the issues a defendant wishes to raise in an out-of-time appeal can be resolved against him on the face of the record, so that even a timely appeal would have been unsuccessful, then plea counsel’s failure to advise the defendant to file such an appeal was not professionally deficient, nor did any prejudice result.

(Citations, punctuation and emphasis omitted.) Rhodes v. State, 296 Ga. 418, 420 (2) (768 SE2d 445) (2015). Surry bears the burden of showing that he is entitled to an out-of-time appeal. Moore v. State, 285 Ga. 855, 856 (1) (684 SE2d 605) (2009).

A review of the limited record in this case shows that Surry is not entitled to file an out-of-time appeal. First, the only argument Surry raised in his motion in the trial court was that counsel was negligent by failing to file a direct appeal from the denial of his motion to withdraw his plea. On appeal, he raises various arguments challenging his underlying conviction and sentence. We will not consider arguments that were not presented to the trial court and that are raised for the first time on appeal. See Hammond v. Paul, 249 Ga. 241 (1) (290 SE2d 54) (1982). Moreover, the waiver-of-appeal provision in Surry’s negotiated plea bars his claims. See Bryan v. State, 296 Ga. App. 341, 342-343 (674 SE2d 390) (2009).

[I]t is well established that a defendant can waive his right to seek post-conviction relief as part of a negotiated plea agreement, so long as the waiver is voluntary, knowing, and intelligent. The fact that a waiver of the right to appeal is voluntary, knowing, and intelligent may be shown either by (1) a signed waiver form indicating that the defendant understood the rights he was waiving or (2) detailed questioning of the defendant by the trial court revealing that the defendant was informed of and agreed to waive his rights. When the record shows that the defendant understood the rights he was waiving, he will be held to his bargain.

(Citations omitted.) Arrington, supra, 332 Ga. App. at 483. Here, the record includes a signed waiver form establishing that Surry knowingly and voluntarily waived his right to appeal. Accordingly, Surry has not shown a right to an out-of-time appeal with respect to these claims.

As to any claim regarding the validity of his plea — and, by extension, the validity of the waiver provision — the record includes a detailed rights form showing that Surry was advised of his rights and voluntarily waived them. Although the record does not include a transcript from the plea colloquy or the motion to withdraw the plea, the record before us establishes that Surry was advised of his rights and voluntarily pled guilty. Moore, supra, 285 Ga. at 857 (1) (although there is no transcript of the colloquy, the record shows that the plea was voluntary).

Decided December 20, 2016.

Robert L. Surry, pro se.

Ashley Wright, District Attorney, Joshua B. Smith, Assistant District Attorney, for appellee.

Accordingly, the record demonstrates that the arguments Surry raises on appeal would be decided against him, and therefore, Surry has not met his burden of showing he is entitled to bring an out-of-time appeal. Rhodes, supra, 296 Ga. at 420 (2); Moore, supra, 285 Ga. at 856 (1). Accordingly, we affirm the trial court’s order denying Surry’s motion for an out-of-time appeal.

Judgment affirmed. Division Per Curiam.

All Judges concur.

       Four additional counts were nolle prossed.

       We note that Surry filed his notice of appeal on October 15, 2010, but the appeal was not transmitted until April 2016. This type of delay “puts at risk the rights of defendants .... It is the duty of all those involved in the criminal justice system, including trial courts and prosecutors as well as defense counsel and defendants, to ensure that the appropriate post-conviction motions are filed, litigated, and decided without unnecessary delay.” Hill-Blount v. State, 336 Ga. App. 633, 634 (1) (785 SE2d 309) (2016) (citation and punctuation omitted).

       To the extent that Surry argues double jeopardy violations arising out of sentencing in both state court and superior court, the record does not support his argument. Surry pled guilty in superior court to three felonies, and the state nolle prossed the remaining misdemeanor charges. Nothing in the record shows any other sentencing related to these crimes.

       Having concluded that Surry cannot establish prejudice, we need not address whether trial counsel informed Surry of his right to appeal. Rhodes, supra, 296 Ga. at 420 (2).


author: Peterson, Judge. DILLARD, Presiding Judge,

text:
    A16A2072.
    WESTBROOK et al. v. ATLANTA GAS LIGHT COMPANY.
    (796 SE2d 320)
   Peterson, Judge.

Kevin Westbrook and Shaun da Gould brought this lawsuit against Atlanta Gas Light Company (“AGL”) over a residential natural gas explosion that physically injured the plaintiffs. The plaintiffs appeal the trial court’s grant of summary judgment to AGL, arguing that the trial court erred by finding that AGL’s actions involving a pre-explosion service call did not proximately cause their injuries and that a warning provided by AGL was adequate as a matter of law. With the benefit of oral argument, we find that the trial court did not err in granting summary judgment for those reasons.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-ll-56(c). We review a grant or denial of summary judgment de novo and construe the evidence in the light most favorable to the nonmovant. Home Builders Ass’n of Savannah v. Chatham Cty., 276 Ga. 243, 245 (1) (577 SE2d 564) (2003).

So viewed, this case stems from an explosion that occurred on November 4, 2010, at a detached apartment on residential property owned by Herschel Thomas. Some time prior to the accident, Thomas had arranged for the natural gas to both the apartment and the main house (in which he lived with his family) to be turned off, because the outbuilding was vacant and gas was not being used in the main house. Thomas subsequently agreed to rent the outbuilding to Westbrook, a co-worker.

In anticipation of Westbrook living in the apartment, Thomas requested (via a natural gas marketing company) that AGL turn the gas back on. An AGL field representative, Kenny Newell, visited the home on October 22, 2010. Thomas was not at home at the time. Tiffany “Buffy” Northcutt, the 20-year-old girlfriend of Thomas’ stepson, Vincent Gardner, was at the house to meet the AGL representative. Gardner informed Northcutt that the AGL representative was coming, based on a conversation with his stepfather. Although Thomas testified that Northcutt was not his “agent,” Northcutt testified that meeting the AGL representative was her reason for being at the house:

Q: Did you give [a warning card left by the AGL representative] to Mr. Thomas at some point?
A: I can’t recall but he wasn’t home so I might have left it there and left the house. We didn’t stay all day. We just were there for the gas guy so we might have left after he left.
Q: Mr. Gardner gave you — Mr. Gardner was living at the house; is that correct?
A: Yes.
Q: And he gave you permission to remain there at the house and let the gas man in when he came?
A: Yes.
Q: And as far as you know, was that acceptable to Mr. Thomas as well?
A: Yes, as far as I know.

After being let into the house, Newell found a note in the kitchen asking him to check the gas line behind the electric range to see if it needed to be capped. He capped the line behind the stove and inspected a furnace in the attic. He subsequently examined the gas meter, unlocked it, and turned the gas on. The meter showed there was a leak in the fuel line or an open line so he turned the gas back off. After confirming that “everything was off” in the house, Newell turned the gas back on and let it run for a few seconds before going into the house again and determining that he “didn’t smell anything inside.” Newell deposed that, rather than take further steps to determine the location of the leak, he “left the meter off in a safe and secure position where no gas would escape unless it was physically turned on by someone.” He did not, however, replace the lock that he previously had removed from the meter. Newell deposed that, at the time he made his service call, he was not aware of the existence of the apartment behind the house.

Newell filled out a warning card before he left. The top of the card read: “DANGER. This meter or appliance must not be turned on until the condition(s) indicated below have been corrected.” Below that warning, an X indicated that there was a “[l]eak in house piping[.]” Newell also handwrote, “Leak in fuel line. Left meter off but unlocked for plumber.” Newell marked with an X a line that said, “Have the qualified agency/person connect and/or activate the appliance.” An affirmation on the same card, which was signed by Northcutt, read:

I have been duly notified of the condition of the foregoing equipment and I will not use nor permit its use by any person until the listed condition(s) is corrected. I further understand that I must ensure that only a qualified agency or person performs the repairs. A person not experienced and qualified in this type work is not allowed to perform the repairs or turn the gas on.

Newell left one copy of the card with Northcutt. Consistent with a checked entry on the card, Newell testified that he left another copy of the card on the meter. In his deposition, however, Thomas disputed whether Newell really left a card on the meter.

Newell deposed that he explained the situation to both Northcutt and Gardner, telling them that there was a leak in the fuel line, that he was leaving the meter off, and that a plumber was needed. Northcutt deposed that she did not recall having such a conversation with the AGL representative:

Q: Is it fair to assume that no employee from Atlanta Gas Light told you a dangerous condition existed?
[Objection.]
A: I don’t recall. I don’t know whether — I don’t remember a conversation but I don’t recall, but as far as you asking me like would I remember if someone told me that a house could catch on fire, I think I would remember that but I don’t recall the conversation.

Gardner testified that, in fact, he was not home when Newell came by, but had gone out to pick up some food.

Northcutt told Thomas that the AGL employee told her that Thomas needed to arrange for someone else to come to the house to turn on the gas. Northcutt did not tell Thomas that the AGL employee could not turn the gas on because there was a leak in the line. Northcutt deposed that she did not recall whether she gave Thomas the copy of the card the AGL representative left with her, saying she might have left the card at the house when she left, but Thomas testified that he saw it. Specifically, Thomas testified as follows:

Q: Did you go over this or did you read it when Tiffany gave it to you?
A: Basically
Q: You read it?
A: Gazed over it.
Q: Did you ever tell Tiffany that she didn’t have your permission to sign that document at the bottom?
A: Did I tell her she didn’t?
Q: Yes, sir.
A: No, I didn’t tell her that.
Q: And at the top of that exhibit, or the card, what’s that word right there?
A: Danger.
Q: Do you need anybody to explain to you what danger means?
[Objection.]
[A:] Pretty much not.
Q: You don’t need anybody to tell you what that means, do you?
A: Huh-uh.
Q: No? And under [line] 11, can you read that handwritten note there?
A: “Leak, fuel left off but unlocked for plumber.”
Q: It says “leak in fuel line, left meter off but unlocked for plumber.” Is that correct?
A: Uh-huh.
Q: Is that right?
A: Yes.
Q: And you read that at the time that Tiffany gave it to you?
A: I think I glazed over that.
Q: And she gave you that on or about October 22nd when she signed for it?
A: Yeah, let’s go with that.
Q: And at the bottom it gives you a phone number to call for assistance with repairs, correct?
A: Yeah, I see it.
Q: Did you ever call anyone from AGL once you saw this document?
[Objection.]
[A:] No.
Q: Did you ever call up AGL to find out what this document meant?
A: No.
Q: Did you ever advise Atlanta Gas Light that you didn’t understand what this document —
A: Didn’t nobody ask me.
Q: But you never picked up the phone and called AGL and said what is —
A: AGL didn’t call me and ask me either. I didn’t call them. They didn’t call me.
Q: But they left this document at your house?
A: They left that.
Q: And Tiffany gave it to you?
A: Yeah. They left it with Buffy.

Thomas deposed that he did not understand the card to mean that he had a leak in his gas system. Thomas understood “that the meter had been left off and that a plumber was supposed to come and do whatever needed to be done before the gas was turned on” and that “everything was good.”

Thomas asked a friend named John, who had performed odd jobs for him in the past, to turn the gas on. Thomas was not home when John came to perform the work, but Thomas understood that John “turned [the gas] on.” Thomas testified that he did not know the extent of John’s background in plumbing, but doubted John was trained as a plumber.

On the morning of November 4, 2010, Westbrook visited the apartment to move in some of his personal belongings. Westbrook was accompanied by Gould, an acquaintance. Westbrook unloaded items from his vehicle and placed them in the apartment, making several trips between the vehicle and the apartment. Westbrook did not smell anything unusual in the apartment, although he noted that it smelled “old,” as was the case during his earlier visits. As West-brook prepared to leave, he ignited a lighter to light some incense while standing by the open door of the apartment, to get rid of the “old” smell. As soon as Westbrook ignited his lighter, there was an explosion that set the apartment on fire. Westbrook was hospitalized for burns on his hands and face. Gould, who was further into the house behind Westbrook when he ignited his lighter, also was injured. A fire department investigation determined that an open natural gas line was the source of the explosion.

On September 27, 2010, a few weeks before Newell visited Thomas’ property, AGL’s corporate superintendent decreed via e-mail that anytime an AGL representative turns off an AGL-owned gas meter valve, “it needs to be locked.” Newell was trained on this new policy, and multiple AGL witnesses testified that Newell violated it when he serviced Thomas’ home.

Westbrook and Gould brought suit against AGL, alleging that AGL’s negligence caused their injuries. The plaintiffs alleged that AGL was negligent in identifying and eliminating a leak in the gas line or failing to close an open line, including by locking the gas meter in the off position. They also alleged that AGL was negligent in failing to train its service representatives and in failing to sufficiently warn them or Thomas about the dangerous nature of the gas leak. AGL moved for summary judgment. The trial court granted AGL’s motion, concluding that the intervening actions of Northcutt, Thomas, and Thomas’ handyman broke the causal connection between any negligence by AGL in failing to lock the meter (or train its representative to do so) and the plaintiffs’ injuries. The trial court also rejected the plaintiffs’ failure to warn claim on the basis that the warning card provided by AGL was adequate. The plaintiffs filed this appeal, arguing that the trial court erred in granting summary judgment, specifically by finding that the plaintiffs’ injuries were not proximately caused by AGL and by finding that the warning provided was adequate as a matter of law.

1. The plaintiffs first argue that the trial court erred by finding that their injuries were not proximately caused by the AGL representative’s failure to lock the meter or AGL’s failure to train him to do so. The trial court did not err.

Negligence is actionable only if it is the proximate cause of the injuries sued upon. Granger v. MST Transp., 329 Ga. App. 268, 270 (1) (764 SE2d 872) (2014). This requirement reflects a policy decision that in certain circumstances — i.e., where there is an intervening act — the defendant’s conduct and the plaintiff’s injury are too remote for the law to allow recovery. Jim Tidwell Ford, Inc. v. Bashuk, 335 Ga. App. 668, 670 (1) (782 SE2d 721) (2016). “[T]he general rule is that if, subsequently to an original wrongful act, a new cause has intervened, of itself sufficient to stand as the cause of the misfortune, the former must be considered as too remote[.]” Ontario Sewing Mach. Co. v. Smith, 275 Ga. 683, 686 (2) (572 SE2d 533) (2002) (citation and punctuation omitted). But the causal connection is not broken, and the original wrongdoer may be held responsible, if the intervening act “was such that its probable or natural consequences could reasonably have been anticipated, apprehended, or foreseen by” the original wrongdoer. Id. Although the question of proximate cause is usually one for a jury, it may be decided asa matter of law when the jury could conclude only that the defendant’s acts were not the proximate cause of the injury. Atlanta Gas Light Co. v. Gresham, 260 Ga. 391, 393 (4) (394 SE2d 345) (1990); Beasley v. A Better Gas Co., 269 Ga. App. 426, 427-28 (1) (604 SE2d 202) (2004).

In concluding that the plaintiffs had failed to point to evidence of proximate cause sufficient to create a jury issue, the trial court relied heavily on our decision in Stegall v. Cent. Ga. Elec. Membership Corp., 221 Ga. App. 187 (470 SE2d 782) (1996). In that case, the plaintiffs, tenants in a mobile home, contacted the electric membership corporation (“EMC”) servicing the home after noticing they were receiving “tingling” electric shocks when, for example, they simultaneously touched two pieces of metal in or on the mobile home. Id. at 187. An EMC service technician tested several areas inside the home and determined that the home contained potentially life-threatening voltage levels, but discovered that the voltage reading registered zero when he shut off one particular circuit breaker. Id. The technician personally informed one of the plaintiffs that the situation was dangerous — even noting that a friend had been killed by that same level of voltage — and advised her not to turn the circuit breaker back on until someone had checked and repaired it. Id. at 188. The plaintiffs’ landlord and another man subsequently changed the receptacles on the identified circuit, but one of the plaintiffs testified that within a day or two of that work she again received electric shocks from touching objects on the premises. Id. at 189. She testified that she kept the circuit on, per her landlord’s assurances, for two months, until her six-month-old child was fatally electrocuted. Id. at 187, 189. Affirming summary judgment for the EMC, we found as a matter of law that the EMC’s actions were not the proximate cause of the child’s death. Id. at 190-91 (2). We concluded that the acts and statements of third parties that resulted in the breaker being turned on constituted an intervening act that was not foreseeable by the EMC, particularly in the light of the detailed warning that the technician had provided the plaintiff. Id. at 191 (2).

We agree with the trial court that, as in Stegall, this is a case in which the jury could conclude only that no action of AGL proximately caused the plaintiffs’ injuries. Even assuming that the AGL representative’s failure to reinstall a lock on the gas meter was a but-for cause of the explosion, it is plain that the subsequent actions of Thomas, assisted by his handyman, to turn on the gas without fixing the leak was a “new cause . . . sufficient to stand as the cause of” the explosion. Ontario Sewing Mach. Co., 275 Ga. at 686 (2). Ajury could not conclude that AGL reasonably could have foreseen that Thomas would have taken that action in derogation of the clear written warning left by the AGL representative specifying that Thomas’ natural gas system had a dangerous leak that needed to be corrected before the gas could be turned on.

Faced with the obvious similarities between Stegall and this case, the plaintiffs spend considerable effort on appeal attempting to distinguish the two. They argue that while the EMC service technician made a dangerous condition more safe by turning off the circuit breaker, the AGL representative made the gas system on Thomas’ property less safe by failing to replace the lock that had been present on the meter valve, thereby creating a dangerous condition of which the explosion and their serious injuries were a foreseeable result. The plaintiffs also argue that the cases are distinguishable because AGL was under a federal regulatory mandate to lock the meter valve, while EMC was under no federally-imposed duty to lock the circuit breaker. Regardless of whether AGL’s characterization of the applicable federal regulatory frameworks is correct, both of these distinctions speak to the extent of AGL’s negligence, not whether that negligence has a sufficient causal connection to the plaintiffs’ injuries to permit recovery Evidence of a statutory violation constituting negligence per se does not obviate the need to prove that this negligence proximately caused a plaintiff’s injury. See Howard v. Gourmet Concepts Int’l, 242 Ga. App. 521, 523-24 (1) (c) (529 SE2d 406) (2000).

The plaintiffs also attempt to distinguish Stegall on the basis that the service representative in that case personally delivered a warning to the customer that was more detailed than the warning provided by the AGL representative. But we see no pertinent distinction between the content of the warnings given in the two cases. Although there was evidence that the EMC technician warned the Stegall plaintiff of a potentially deadly hazard, this is not remarkably different from the warning card provided to Thomas, which began with the warning of “DANGER” and twice noted a gas leak. As we have noted in a different, context, “it is common knowledge that the escape of inflammable gas under high pressure is dangerous[.]” Armor Gas Corp. v. Davis, 93 Ga. App. 563, 565 (2) (92 SE2d 244) (1956).

As for the plaintiffs’ argument that Stegall is distinguishable because here the AGL representative did not personally deliver a warning to Thomas, we note the undisputed evidence shows that Newell explained to Northcutt, who was waiting at Thomas’ house for the express purpose of meeting the AGL representative in Thomas’ absence, that there was a leak in the fuel line and a plumber was needed. Although Northcutt testified that she did not recall such a conversation, this is insufficient to create a genuine dispute of fact as to whether the conversation occurred given the direct evidence in the form of Newell’s testimony that it did. See Perdue v. Atlanta Bldg. Maint. Co., 311 Ga. App. 81, 84-85 (2) (714 SE2d 611) (2011) (plaintiff’s testimony that she could not recall a warning being made over school intercom cannot create issue of fact in the face of direct evidence that the warning was in fact given). But even setting that conversation aside, we see no reason to disregard Stegall based on the fact that the plaintiff in Stegall received an oral warning, and Thomas received a warning on a card that was hand-delivered to the person he arranged (via his stepson) to meet the AGL representative. There is no dispute that Thomas received and read the card. The plaintiffs offer no basis for their argument that an oral warning would have been a superior means of communication, and Thomas’ testimony that he would have followed “explicit instructions” if the AGL representative “had sat [him] down and explained... what the issues were” is mere speculation. Indeed, a written warning may prevent the loss of information in translation (as shown by the affidavit testimony of the plaintiff in Stegall, who said that she did not understand that the friend referenced by the EMC technician had been killed under conditions similar to those in her home or that the voltage level referenced by the technician “had anything to do with our trailer”). Stegall, 221 Ga. App. at 189.

Finally, the plaintiffs’ attempt to distinguish Stegall on the basis that in that case the mobile home’s electrical system “was substantially altered” between the day that the EMC technician visited the home and the day the plaintiffs’ child was electrocuted, whereas in this case there is no evidence that Thomas’ handyman attempted to fix the problem. But this is a distinction without a difference. In both cases, the premises were left in a condition that did not pose an immediate danger — the EMC technician turned off the circuit breaker, and the AGL representative turned off the gas (after having turned it on as requested). And in each case, a third party took an action — turning on the circuit breaker or turning on the gas — that created a dangerous condition. It does not matter that Thomas’ handyman apparently did not try to fix the gas leak; although the Stegall plaintiffs’ landlord attempted to fix the problem, the attempt obviously was unsuccessful.

The cases cited by the plaintiffs do not require a result different from that in Stegall. The plaintiffs rely on Beasley, in which we affirmed a denial of summary judgment to a propane gas company based on evidence that a company employee, when sealing a gas line in the plaintiff’s bathroom, negligently left the line sticking four to five inches out of the floor. 269 Ga. App. at 427-29 (1). The line was later damaged, leading to a gas leak that fueled a fire. Id. at 428 (1). The plaintiffs argue that if there was sufficient evidence of proximate causation in that case to avoid summary judgment, there is sufficient evidence here, as in both cases the natural and probable consequences of leaving the property the way the defendant did was that someone might take some action that could create the conditions necessary for an explosion. But Beasley does not apply here because there is no indication that in that case the propane gas company representative warned anyone that the protruding gas line was a hazard that needed to be remedied. In Beasley, we found that a jury could conclude that “the natural and probable consequence” of leaving a gas line exposed was that the gas line would be damaged. Id. at 429 (1). But, as explained above, it was not a natural and probable consequence of the AGL representative leaving Thomas’ gas meter unlocked that Thomas would allow someone to turn on the gas before repairing the leak, in contravention of the representative’s written warning. Another case cited by the plaintiffs, Atlanta Gas Light Co. v. Mills, 78 Ga. App. 690 (51 SE2d 705) (1949), similarly lacks evidence of any kind of warning by the defendant. In that case, we allowed a plaintiff to proceed with his lawsuit on the theory that holes the defendant gas company cut into street pavement exacerbated his injuries in an automobile accident. Id. at 694-97 (1). Mills does not apply here because there it was alleged that the gas company used no lights, signs or barricades to warn motorists of the hazard, id. at 691-92, unlike here, where the defendant representative provided a specific warning card.

2. The plaintiffs also argue that the trial court erred by concluding that the warning AGL provided was adequate as a matter of law. We disagree.

After granting summary judgment to AGL on the plaintiffs’ claims regarding the service representative’s failure to lock the meter, based on the proximate cause analysis discussed above, the trial court stated that the plaintiffs’ failure to warn claim “arguably survives this causation analysis[.]” The trial court then went on to conclude that AGL nonetheless was entitled to summary judgment on the failure to warn claim because the warning provided was adequate as a matter of law. The plaintiffs’ failure to warn claim encompasses multiple theories, including that the warning was insufficient in substance because the AGL representative did not communicate that turning on the gas “could cause a catastrophic leak and explosion” or that the gas could be ignited by so benign an act as flipping on a light switch. The plaintiffs also argue that the warning was not effectively communicated in that it was not placed on the meter and was not orally communicated to the homeowner himself. We will address the plaintiffs’ two types of failure to warn theories separately

Considering first the plaintiffs’ complaint that the warning given was insufficient in substance, we agree with AGL that the written warning was substantively adequate as a matter of law. The warning informed Thomas that he had a leak in his gas system and that he should not turn the gas on until the leak was repaired by a qualified person. It warned that this condition posed a “DANGER[.j” The plaintiffs complain that it did not inform Thomas that a leak could cause an explosion. But “[t]he open and obvious nature of a danger obviates the duty to warn of that danger.” White v. Ga. Power Co., 265 Ga. App. 664, 666 (1) (595 SE2d 353) (2004) (citation omitted) (power company did not have duty to warn of danger of drowning posed by deep, swiftly-moving river downstream from company’s dam); see also Royal v. Ferrellgas, Inc., 254 Ga. App. 696, 705 (3) (a) (ii) (563 SE2d 451) (2002) (where all of the information the plaintiff alleges that the defendant propane gas company should have told her was known by her and her employer, the gas company’s failure to warn could not be the proximate cause of her injury). The standard is not whether Thomas subjectively knew of the dangers of natural gas, but whether, objectively, a person of ordinary prudence would be aware of those dangers. See Newill v. Atlanta Gas-Light Co., 48 Ga. App. 226, 231 (2) (172 SE 232) (1933) (“Whether a person is negligent in using a lighted match in searching for a gas leak depends on whether he has notice that the gas is escaping in large quantities, or whether a man of ordinary prudence, placed in the same situation, would believe that there was danger of an explosion; and such a question is one for the determination of the jury.”). A person of ordinary prudence knows about the dangers of natural gas because, as noted above, “it is common knowledge that the escape of inflammable gas under high pressure is dangerous[.]” Armor Gas Corp., 93 Ga. App. at 565 (2). Thus, assuming AGL had a duty to give Thomas any warning about the conditions on his property, it did not have a duty to warn him exactly why the leak posed a danger. To the extent the plaintiffs complain that the warning did not make explicit that an innocuous act such as flipping a light switch could ignite natural gas, this argument is unavailing given that such an innocuous act was not the cause of their injuries. Rather, the explosion resulted from West-brook’s use of a lighter — which, as is common knowledge, could ignite a combustible gas.

The plaintiffs also complain that the communication of the warning was inadequate in that the written card was not placed on the meter and the AGL representative did not talk to Thomas directly Regarding their complaint about the lack of oral communication, the plaintiffs point to AGL’s Field Service Manual, which instructs AGL service representatives who encounter a leak while the customer is not home to make “an attempt to contact and inform the customer” if “time permits and circumstances warrant.” However, this is not evidence that an oral warning would have been a means of communication superior to a written one, and the plaintiffs do not present any Moreover, as explained above, the plaintiffs have not pointed to evidence disputing the AGL representative’s testimony that he explained the situation to Northcutt, as Northcutt’s testimony that she did not recall such a conversation was not sufficient to create a genuine issue of material fact on this point. We have said that there can be no breach of a duty to warn when a warning was actually given but was not passed along to someone who needed to hear it. Specifically, in Royal, the plaintiff brought suit against a propane distributor for injuries she suffered in a fire in the kitchen of her employer. 254 Ga. App. at 696. The plaintiff argued that the propane company had a duty to warn her about the dangers of propane. Id. at 704 (3) (a) (ii). Noting that the plaintiff’s employer was provided safety booklets warning of these very dangers, and that the plaintiff testified to her knowledge of those dangers, we held that the trial court erred in denying summary judgment to the gas company. Id. at 705 (3) (a) (ii). In short, we said, “[tjhere can be no breach of a duty to warn when the warning was actually given, but [the plaintiff]’s employer did not pass on the warning or [the plaintiff] herself failed to heed it.” Id. Similarly, here, to the extent that Northcutt failed to relay accurately what the AGL representative told her, that cannot create liability for AGL on a failure to warn theory. Moreover, it is undisputed that Thomas read the warning provided on the card, so he was informed of the dangers the plaintiffs now complain that AGL failed to discuss with Thomas personally

Decided December 20, 2016

Karsman, McKenzie & Hart, Jeremy S. McKenzie, C. Dorian Britt, for appellants.

Ellis, Painter, Ratterree & Adams, R. Clay Ratterree, John P. Connell; Thompson Hine, Russell J. Rogers, Alexandra C. Nelson, for appellee.

For this same reason, the plaintiffs cannot complain that AGL did not leave a duplicate card on the meter. This is not a case in which a plaintiff can say that a warning was inadequate because it was communicated in such a way that it would go unnoticed. See, e.g., Rhodes v. Interstate Battery Sys. of Am., 722 F.2d 1517, 1519-20 (I) (11th Cir. 1984) (reversing grant of summary judgment to defendant where plaintiff complained that warning on battery that he failed to read was inadequate because he would not see it in poor lighting), superseded by statute on other grounds as stated in Freeman v. United Cities Propane Gas of Ga., 807 F. Supp. 1533, 1539-40 (B) (1) (M.D. Ga. 1992). Rather, Thomas in fact did seethe card warning him of the dangerous condition on his property. He simply did not heed that warning, and the explosion that injured the plaintiffs was the tragic result.

Judgment affirmed.

Reese, J., concurs. Dillard, P. J., concurs in Division 1 and concurs in judgment only in Division 2.

DILLARD, Presiding Judge,

concurring in judgment only.

I concur fully in Division 1 of the majority’s opinion. As to Division 2,1 concur in judgment only because I do not agree with all that is said in that division of the opinion. As a result, Division 2 of the majority’s opinion decides only the issues presented in that division and may not be cited as binding precedent. See Court of Appeals Rule 33 (a).

       AGL argues that the trial court’s order must be affirmed because the plaintiffs made no attempt to distinguish Stegall in their brief responding to AGL’s summary judgment motion and did not designate the transcript of the hearing on the motion as something to be included in the record on appeal. But any failure to address Stegall in responding to AGL’s summary judgment motion is not fatal to the plaintiffs’ appeal. See Hall v. Massally, 329 Ga. App. 136, 138 (1) (764 SE2d 161) (2014) (“The failure of a nonmoving party to file responsive material. .. does not automatically entitle the moving party to judgment, for there is no such thing as a ‘default summary judgment.’ To affirm a grant of summary judgment, it must affirmatively appear from the record that no question of material fact exists and the moving party is entitled to judgment as a matter of law.”) (citations and punctuation omitted). We have an obligation to apply the law faithfully, regardless of what specific arguments about the case law the parties made below, and we appreciate the parties’ efforts on appeal to assist us in that task.

       The service representative testified that a lock would not make the meter more secure because the lock could be broken off with a wrench. But we recognize that the presence of a lock might have signaled Thomas’ handyman to reconsider his actions as he proceeded to turn the gas back on.

       The plaintiffs cite 49 CFR § 192.727(d), which requires that:
      Whenever service to a customer is discontinued, one of the following must be complied with:
      (1) The valve that is closed to prevent the flow of gas to the customer must be provided with a locking device or other means designed to prevent the opening of the valve by persons other than those authorized by the operator!;]
      (2) A mechanical device or fitting that will prevent the flow of gas must be installed in the service line or in the meter assembly!; or]
      (3) The customer’s piping must be physically disconnected from the gas supply and the open pipe ends sealed.


author: MILLER, Presiding Judge.

text:
    A16A2143.
    ROGERS v. THE STATE.
    (795 SE2d 328)
   MILLER, Presiding Judge.

Hanna Rogers appeals from the denial of her motion to dismiss charges for DUI per se, DUI less safe, reckless driving, and two traffic offenses on speedy trial grounds. Rogers contends that the trial court erred in finding that her statutory speedy trial demand was invalid under OCGA § 17-7-170. For the reasons that follow, we agree. Consequently, we reverse and remand for proceedings consistent with this opinion.

The denial of a statutory speedy trial demand presents a question of law which this Court reviews de novo. Hudson v. State, 311 Ga. App. 206 (715 SE2d 442) (2011).

So viewed, the record shows that on December 23,2015, the State filed accusations against Rogers in the State Court of Fulton County for DUI, reckless driving and the traffic offenses. On February 25, 2016, Rogers filed multiple documents and motions in the state court, including an entry of appearance, waiver of formal arraignment, and not guilty plea; general and special demurrers; a motion for discovery and production of documents; motions to exclude her blood and field sobriety test results, statements, and other evidence; and a demand for speedy trial pursuant to OCGA § 17-7-170. The speedy trial demand was clearly titled “DEMAND FOR SPEEDY TRIAL”; it was served by hand-delivery on the trial judge, the Solicitor-General’s office, and the state court clerk; it was not stapled or otherwise bound to any other document filed that day; and it specifically identified the accusation number for Rogers’s case. Finally, the speedy trial demand specifically cited OCGA § 17-7-170.

Rogers’s case was set for a jury trial on May 6, 2016, and during a hearing that day, defense counsel orally moved to dismiss the charges against her based on the State’s failure to try the case within two terms of court following the filing of Rogers’s speedy trial demand. The trial court subsequently denied Rogers’s motion, and this appeal ensued.

OCGA § 17-7-170 (a) pertinently sets forth the required form of a statutory speedy trial demand: A demand for speedy trial filed pursuant to this Code section shall be filed as a separate, distinct, and individual document and shall not be a part of any other pleading or document. Such demand shall clearly be titled “Demand for Speedy Trial”; reference this Code section within the pleading; and identify the indictment number or accusation number for which such demand is being made[.]

Decided December 20, 2016.

The Sessions Law Firm, D. Benjamin Sessions, for appellant.

Carmen D. Smith, Solicitor-General, R. Leon Benham, Assistant Solicitor-General, for appellee.

(Punctuation omitted.) Hudson, supra, 311 Ga. App. at 206.

Here, the record shows that Rogers filed multiple documents on the same day, including her statutory speedy trial demand. Each document had a separate certificate of service, and each document was clearly and distinctly titled, including Rogers’s speedy trial demand. Moreover, Rogers’s speedy trial demand referenced OCGA § 17-7-170, it was not stapled or otherwise bound to any other document filed that day, and it specifically identified the accusation number for Rogers’s case. Consequently, Rogers’s speedy trial demand complied with the pleading requirements set forth in OCGA § 17-7-170, and the trial court erred in denying her motion to dismiss. See Hudson, supra, 311 Ga. App. at 207.

In light of this error, we reverse the trial court’s order and remand this case for further proceedings to determine whether Rogers’s speedy trial demand satisfied the remaining requirements ofOCGA § 17-7-170, including the requirement of showing that there were jurors impaneled and qualified to try Rogers within the term of court in which she filed her speedy trial demand or in the following term of court.

Judgment reversed and case remanded.

McFadden, P. J., and McMillian, J., concur.

       The charges arose out of a motor vehicle accident in which Rogers allegedly made an illegal left turn and collided with another vehicle. Rogers also allegedly admitted that she consumed alcohol and took a prescription medication prior to the crash.


author: BARNES, Presiding Judge.

text:
    A16A1849.
    EPPERSON v. THE STATE.
    (796 SE2d 1)
   BARNES, Presiding Judge.

A jury found Rodney Rodriguez Epperson guilty of armed robbery, aggravated assault, aggravated battery, and three counts of possession of a firearm during the commission of a felony. The trial court subsequently denied Epperson’s motion for new trial. On appeal, Epperson contends that the trial court erred in denying his motion to dismiss the indictment based on the alleged violation of his constitutional right to a speedy trial, that the evidence was insufficient to support his convictions, and that the trial court should have merged his aggravated battery conviction into his armed robbery and aggravated assault convictions for purposes of sentencing. For the reasons discussed below, we affirm.

“Following a criminal conviction, the defendant is no longer presumed innocent, and we view the evidence in the light most favorable to sustain the verdict.” (Citation omitted.) Anthony v. State, 317 Ga. App. 807 (732 SE2d 845) (2012). So viewed, the evidence showed that on the evening of April 20, 2010, the victim and his girlfriend were at their friend’s house smoking crack cocaine. Several times that night, when the group ran out of drugs, the victim would provide more money, and a member of the group would walk over to the neighboring apartments and buy more drugs from Epperson and one of his associates. When the victim ran out of money, he decided to return to his apartment to get more money for drugs. The victim did not have transportation, but Epperson came over to the friend’s house where the victim and the others had been smoking crack cocaine and agreed to give the victim a ride so that he could get his money. The victim then got into a cream-colored car with Epperson and another individual, and they drove to the victim’s apartment.

Upon arriving at his apartment, the victim woke up his brother, who lived with the victim and had previously agreed to safeguard the victim’s money for him. After retrieving the victim’s money, the brother noticed a man with dreadlocks standing at the doorway of the bedroom next to the victim. The victim’s brother, however, did not get a good look at the man because he was sleepy from having just been awakened by the victim. While the victim and man were leaving the apartment, the brother overheard the man asking the victim for the money, but the victim told him he would have to wait until they got back to the car. The brother looked out the window, where he saw a cream-colored car drive up and the victim and the man get inside and leave together.

The victim then was driven in the cream-colored car to the apartment complex next to his friend’s house where he had been smoking crack cocaine. The victim got out of the car and bought more drugs at one of the apartment units, but as he was returning to the car, he was robbed at gunpoint. The victim initially took his wallet and the drugs out of his pockets to hand over to the gunman, but the victim then attempted to disarm the gunman using a maneuver he had learned in the military The victim’s attempt was unsuccessful, and the gunman shot him several times.

The victim’s friend had been standing on the porch of her house next to the apartment complex and had seen the cream-colored car travel over to the neighboring apartments a few minutes before the gunshots. When she heard the gunshots, the victim’s friend ran from her house over to the apartment complex, where she saw Epperson running away from the victim’s body with a gun in his hand. Epper-son looked up and saw the victim’s friend, jumped into the cream-colored car, and fled from the scene.

The friend ran back to her house and told the victim’s girlfriend that the victim had been shot. The girlfriend ran over to the apartment complex, where she found the victim lying motionless in the street. The victim told his girlfriend that he had just been robbed. The victim later testified that he did not remember anything after the first shot was fired, and he did not identify the person who had robbed him at trial.

The police and an ambulance responded to the scene. The victim was transported to the hospital and treated for his gunshot wounds. One of the gunshots damaged his spinal cord, paralyzing the victim from the chest down.

Epperson was arrested in June 2010 for the armed robbery incident at issue in this case and for two other unrelated armed robberies, and he was not released on bond and remained in jail while awaiting trial. In December 2010, a grand jury indicted Epperson in the present case on charges of armed robbery, aggravated assault, aggravated battery, and three counts of possession of a firearm during the commission of a felony. The trial of the case thereafter was delayed several times because of, among other things, Epper-son’s consent to a continuance, an overcrowded docket, turnover in the district attorney’s office, and the fact that the paralyzed victim was often medically unstable and unavailable for trial.

In July 2013, Epperson filed a motion to dismiss the indictment based on the alleged violation of his constitutional right to a speedy trial. After conducting a hearing, the trial court denied the motion, and the case proceeded to a jury trial in June 2014.

At trial, the State called several witnesses, including the victim, the victim’s brother, the victim’s girlfriend, and the victim’s friend who lived at the house next to the apartments where the group had been smoking crack cocaine. Epperson elected not to testify and did not call any defense witnesses. After hearing all the evidence, the jury found Epperson guilty of the charged offenses.

For purposes of sentencing, the trial court merged Epperson’s aggravated assault conviction into his armed robbery conviction and merged together his three firearm possession convictions. The trial court sentenced Epperson to life in prison for armed robbery, a consecutive sentence of twenty years in prison for aggravated battery, and a consecutive sentence of five years in prison for the firearm possession conviction.

Epperson filed a motion for new trial, challenging the trial court’s failure to grant his motion to dismiss the indictment on constitutional speedy trial grounds, the sufficiency of the evidence to convict him of the charged offenses, and the trial court’s failure to merge his aggravated battery conviction into his armed robbery and aggravated assault convictions. Because the original trial judge who had presided over the trial and sentencing of Epperson retired, a new trial judge was assigned to hear the motion for new trial. Following a hearing, the newly-assigned trial judge addressed Epperson’s motion for new trial in a detailed order, which included specific findings related to Epperson’s speedy trial claim. The trial judge noted that, “[i]n an abundance of caution,” he had independently reevaluated Epperson’s motion to dismiss the indictment on constitutional speedy trial grounds and had concluded that no constitutional violation had occurred. The trial court also concluded that the evidence was sufficient to sustain the verdict and that Epperson’s aggravated battery conviction did not merge with his other convictions. In light of these conclusions, the trial court denied Epperson’s motion for new trial, and this appeal followed.

1. Epperson first contends that the trial court erred in denying his motion to dismiss the indictment because his constitutional right to a speedy trial was violated as a result of the delay between his arrest and trial. We disagree.

A criminal defendant is guaranteed a speedy trial under the Sixth Amendment to the United States Constitution and the Georgia Constitution. See U. S. Const., Amend. VI; Ga. Const., Art. I, Sec. I, Par. XI (a). “Speedy trial rights attach at the time of arrest or formal indictment, whichever is earlier.” (Footnote omitted.) Salahuddin v. State, 277 Ga. 561, 562 (2) (592 SE2d 410) (2004).

When considering a motion to dismiss on speedy trial grounds, the trial court must conduct a two-part test as set forth in the United States Supreme Court decisions in Barker v. Wingo, 407 U. S. 514, 530 (92 SCt 2182, 33 LE2d 101) (1972), and Doggett v. United States, 505 U. S. 647, 651-652 (112 SCt 2686, 120 LE2d 520) (1992). First, the trial court must determine whether the interval from the defendant’s arrest, indictment, or other formal accusation to trial is sufficiently long to be considered presumptively prejudicial. If the delay is presumptively prejudicial, the trial court must then determine whether the defendant has been deprived of his right to a speedy trial by analyzing a four-part balancing test that considers (1) the length of the delay, (2) the reason for the delay, (3) the defendant’s assertion of the right to a speedy trial, and (4) prejudice to the defendant.

(Citation omitted.) Smith v. State, 336 Ga. App. 229, 230-231 (2) (784 SE2d 76) (2016).

Application of the Barker-Doggett test “to the circumstances of a particular case is a task committed principally to the discretion of the trial courts, and it is settled law that our role as a court of review is a limited one.” (Citation and footnote omitted.) State v. Buckner, 292 Ga. 390, 391 (738 SE2d 65) (2013). “In reviewing the trial court’s resolution of a speedy trial claim, we must accept the court’s findings of fact if the record contains any evidence to support them, and we will defer to the trial court’s ultimate conclusion unless it amounts to an abuse of discretion!)]” (Citation and punctuation omitted.) York v. State, 334 Ga. App. 581, 584 (2) (780 SE2d 352) (2015).

As previously noted, the newly-assigned trial judge who heard Epperson’s motion for new trial conducted a hearing and independently reviewed and reevaluated all of the evidence and the pleadings associated with Epperson’s motion to dismiss the indictment on speedy trial grounds. In a detailed order, the trial judge found that the delay of several years was presumptively prejudicial, triggering consideration of the four-factor balancing test set forth in Barker and Doggett. Analyzing those four factors, the trial judge found that the length of the delay was uncommonly long and weighed heavily against the State; that the reason for the delay was the negligence of the State rather than bad faith, which weighed minimally against the State; that Epperson’s delay in asserting his speedy trial right weighed heavily against him; and that the prejudice factor weighed slightly against Epperson. The trial judge then balanced the four factors and concluded that Epperson had not been deprived of his constitutional right to a speedy trial and that his motion to dismiss the indictment on speedy trial grounds thus had been properly denied.

On appeal, Epperson contends that the trial judge assigned to hear his motion for new trial erred in finding that his motion to dismiss the indictment on speedy trial grounds had been correctly denied. Specifically, Epperson maintains that the newly-assigned trial judge erred by finding that the fourth and final factor of the Barker-Doggett balancing test, the prejudice factor, weighed slightly against him. According to Epperson, the prejudice factor shouldhave been weighed against the State because he was not required to present particularized proof of prejudice, the length of the delay created a presumption of prejudice, and the case was not complex and could have been brought to trial more quickly by the State. Epperson maintains that if the prejudice factor had been properly weighed against the State, three of the four Barker-Doggett factors then would have weighed in his favor, and the balancing of those factors would have led the trial court to find that his speedy trial right had been violated. We are unpersuaded.

The prejudice factor of the Barker-Doggett balancing test

addresses three interests which the right to a speedy trial was designed to protect, with the last interest being of the most import; these interests are to prevent pre-trial incarceration from being oppressive, to minimize any anxiety and concern on the part of the accused, and to limit possible impairment of the defense.

(Citation and punctuation omitted.) Jones v. State, 296 Ga. 561, 571 (7) (769 SE2d 307) (2015). Additionally, “consideration of prejudice is not limited to the specifically demonstrable, and... affirmative proof of particularized prejudice is not essential to every speedy trial claim.” (Citations omitted.) Doggett, 505 U. S. at 655 (III) (A). Hence, as part of its analysis of the prejudice factor, a trial court should take into account any presumption of prejudice that has arisen as a result of the length of the delay between the defendant’s arrest and trial, with the presumption intensifying over time. See Wilkie v. State, 290 Ga. 450, 451 (721 SE2d 830) (2012); Smith v. State, 338 Ga. App. 62, 72-73 (1) (d) (i) (789 SE2d 291) (2016).

In analyzing Epperson’s speedy trial claim as part of the motion for new trial, the trial court noted that Epperson was not required to present affirmative proof of particularized prejudice and factored this into its analysis. The trial court then considered the specific interests addressed by the prejudice factor of the Barker-Doggett balancing test and found that, while Epperson’s pre-trial incarceration was excessive, Epperson was also being held on other, unrelated charges during the same time period. The trial court further noted that Epperson never testified about his speedy trial claim, never offered any evidence regarding his level of anxiety or concern, and never presented any evidence that his defense had been impaired by the delay. In light of these findings, the trial court found that the prejudice factor weighed slightly against Epperson.

We discern no error by the trial court in its analysis of the prejudice factor. Where, as in the present case,

the defendant has made no attempt at all to demonstrate (or even argue) that he has suffered any particular prejudice to his mental or physical condition or to his defense strategy, any prejudice that might be presumed by virtue only of the passage of time will carry very little weight in the Barker[-Doggett] analysis.

Phan v. State, 290 Ga. 588, 596 (1) (d) (723 SE2d 876) (2012). Accordingly, we conclude that “[gjiven the paucity of evidence of actual prejudice, the trial court did not abuse his discretion in weighing the prejudice factor in the [S]tate’s favor.” Cawley v. State, 330 Ga. App. 22, 28 (2) (d) (766 SE2d 581) (2014). See Dillard v. State, 297 Ga. 756, 761-762 (4) (778 SE2d 184) (2015) (trial court did not err in weighing prejudice factor against defendant, where defendant failed to show that his pre-trial incarceration harmed his mental health, that “the delay interfered with his ability to present evidence which would have strengthened his defense,” or that he suffered “any harm other than the incarceration itself”); Smith, 336 Ga. App. at 234-235 (2) (b) (iv) (although delay of approximately three years and three months between arrest and trial was presumptively prejudicial, the trial court did not err in weighing prejudice factor against defendant, where defendant was confined on other charges, did not testify regarding any anxiety he suffered, and failed to show that his defense was impaired by the delay).

2. Epperson contends that the evidence was insufficient to support his convictions because the State failed to prove that he was the perpetrator of the charged offenses. Epperson emphasizes that the victim was unable to identify him as the gunman, and he argues that the testimony of the other State’s witnesses provided insufficient circumstantial evidence to prove his identity as the perpetrator. Again, we disagree.

When an appellant challenges the sufficiency of the evidence to support his conviction, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

(Punctuation and footnote omitted; emphasis in original.) Ward v. State, 312 Ga. App. 609, 609-610 (1) (718 SE2d 915) (2011). See Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979). Furthermore, the testimony of a single witness is generally sufficient to establish a fact, OCGA § 24-14-8, and the credibility of a particular witness’s testimony is for the jury to determine. Reyes v. State, 334 Ga. App. 552, 557 (3) (780 SE2d 674) (2015).

“To warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.” OCGA § 24-14-6. As the language of the statute reflects, the

circumstantial evidence does not have to exclude every possible hypothesis other than the defendant’s guilt, but only reasonable hypotheses. And whether circumstances are sufficient to exclude every reasonable hypothesis is a question for the jury, and that finding will not be disturbed unless the verdict of guilt is insupportable as a matter of law.

(Citations and punctuation omitted; emphasis in original.) Clemente v. State, 331 Ga. App. 84, 87 (769 SE2d 790) (2015).

Guided by these principles, we turn to the testimony in this case. The victim’s girlfriend testified that on the evening of the robbery, she saw the victim get into a car with Epperson at their friend’s house, and the victim’s friend similarly testified that she saw the victim get into a car with Epperson and leave to go to his apartment to get his money for more drugs. The victim’s brother testified that when the victim subsequently came to their apartment and got money for more drugs, he saw a man with dreadlocks asking the victim for the money and then saw the victim and the man get into a car and drive away The description of the car given by the victim’s brother matched the description of the car given by the victim’s friend, and Epperson was identified as having dreadlocks during the trial. The victim’s friend also testified that later that evening, she saw the same car pull into the apartment complex next to her house, and, immediately after hearing gunshots, saw Epperson run away from the victim’s body with a gun in his hand and flee in the same car.

While the victim could not identify the gunman, the combined testimony of the other witnesses, construed in favor of the verdict, was sufficient to enable a rational jury to find Epperson guilty beyond a reasonable doubt as the perpetrator of the charged crimes and to exclude every reasonable hypothesis except that of his guilt. Jackson, 443 U. S. at 319 (III) (B). How much weight and credibility to afford the witness testimony identifying Epperson and linking him to the victim was for the jury to determine rather than this Court. See Sutton v. State, 295 Ga. 350, 352 (1) (759 SE2d 846) (2014); Trammell v. State, 328 Ga. App. 45, 47 (1) (761 SE2d 470) (2014). Furthermore, evidence of Epperson’s presence at the scene of the shooting and his conduct before and after the shooting of the victim, including his flight from the crime scene, gave rise to an inference that he participated in the shooting. See Babbage v. State, 296 Ga. 364, 367 (1) (768 SE2d 461) (2015); Johnson v. State, 277 Ga. App. 499, 503 (1) (a) (627 SE2d 116) (2006). Because the jury was authorized to convict Epper-son based on the testimony of the State’s witnesses, his challenge to the sufficiency of the evidence is without merit.

3. Epperson contends that the trial court should have merged his aggravated battery conviction into his armed robbery and aggravated assault convictions for purposes of sentencing. We do not agree.

(a) We first address Epperson’s contention that his aggravated battery conviction should have been merged into his armed robbery conviction. “Georgia law prohibits multiple convictions if one crime is included in the other.” (Citations and punctuation omitted.) Ledford v. State, 289 Ga. 70, 71 (1) (709 SE2d 239) (2011). See OCGA § 16-1-7 (a) (1). A crime is included in the other when “[i]t is established by proof of the same or less than all the facts or a less culpable mental state than is required to establish the commission of the crime charged.” OCGA § 16-1-6 (1). To determine whether one crime is included in another under OCGA § 16-1-6 (1), we apply the required evidence test as adopted in Drinkard v. Walker, 281 Ga. 211, 215-217 (636 SE2d 530) (2006).

Under the required evidence test, neither offense is included in the other if each statutory provision requires proof of a fact which the other does not. Consequently, when each of two statutes requires proof of an additional fact which the other does not, an acquittal or conviction under one statute does not exempt the defendant from prosecution and punishment under the other, even though the charges are based on a single act.

(Citation omitted.) Petro v. State, 327 Ga. App. 254, 259 (2) (758 SE2d 152) (2014).

As to aggravated battery, the indictment charged that Epperson “maliciously cause[d] bodily harm to [the victim] by depriving said person[ ] of the use of his legs, members of said victim’s body,” in violation of OCGA § 16-5-24 (a). As to armed robbery, the indictment charged that Epperson, with the intent to commit a theft, took money from the victim by use of a handgun, an offensive weapon, in violation of OCGA § 16-8-41 (a). Based on these charges and the underlying criminal statutes, Epperson’s aggravated battery conviction did not merge into his armed robbery conviction. Because the taking of the victim’s property was not a fact required to establish the aggravated battery offense, and because depriving the victim of a member of his body was not a fact required to establish the armed robbery offense, the two offenses did not merge under the required evidence test. See Blanch v. State, 306 Ga. App. 631, 635 (4) (703 SE2d 48) (2010); Smashum v. State, 293 Ga. App. 41, 43 (2) (666 SE2d 549) (2008).

Epperson, however, argues that his aggravated battery conviction should have been merged into his armed robbery conviction in light of our Supreme Court’s recent decision in Regent v. State, 299 Ga. 172 (787 SE2d 217) (2016). His argument is unavailing under the circumstances of this case.

In Regent, our Supreme Court reiterated that even if two crimes do not merge under the required evidence test applicable under OCGA § 16-1-6(1), that does not necessarily end the merger analysis. 299 Ga. at 175. Rather, the Supreme Court explained, merger of the offenses still may be required under Georgia’s other statutory definitions of included offenses, including OCGA § 16-1-6 (2), which provides that one crime is included in another if that crime differs from the other “only in the respect that a less serious injury or risk of injury to the same person, property, or public interest or a lesser kind of culpability suffices to establish its commission.” (Punctuation omitted.) Regent, 299 Ga. at 175. See also Ledford, 289 Ga. at 73 (1); Hernandez v. State, 317 Ga. App. 845, 851-852 (3) (733 SE2d 30) (2012). Applying OCGA § 16-1-6 (2), our Supreme Court in Regent held that the defendant’s convictions for aggravated assault and aggravated battery, which were based on the single criminal transaction of the defendant twice cutting the victim in quick succession, merged because they differed only with respect to the seriousness of the injury or risk of injury suffered by the victim. 299 Ga. at 176.

Contrary to Epperson’s contention, Regen t does not support the merger of his aggravated battery and armed robbery convictions. While the aggravated battery and armed robbery in the present case were based on the same criminal transaction, aggravated battery and armed robbery do not differ only with respect to the seriousness of the injury or risk of injury suffered by the victim. Aggravated battery and armed robbery do not simply prohibit different, degrees of injury or risk of injury; rather, the two crimes prohibit entirely different, categories of injury — depriving a victim of a member of his body versus depriving a victim of property Thus, the two offenses serve different primary purposes and do not merge under OCGA § 16-1-6 (2), in contrast to the offenses in Regen t. See Sullivan v. State, 331 Ga. App. 592, 596 (1) (771 SE2d 237) (2015) (offenses did not merge under OCGA § 16-1-6 (2) where they “prohibit different risks of injury” and serve different primary purposes, such as protecting human life and safety versus protecting private property).

For these combined reasons, Epperson’s convictions for aggravated battery and armed robbery did not merge under the required evidence test applicable under OCGA § 16-1-6 (1) or under the statutory definition for included offense found in OCGA § 16-1-6 (2). Consequently, the trial court committed no error in sentencing Epper-son for both offenses.

(b) We next address Epperson’s contention that his aggravated battery conviction should have been merged into his aggravated assault conviction under the reasoning of the Regent case. Regent arguably supports the merger of Epperson’s aggravated battery and aggravated assault convictions under OCGA § 16-1-6 (2), see Regent, 299 Ga. at 176, but the merger of those crimes would not change the sentencing in this case. If those two convictions merged, Epperson’s aggravated assault conviction would be the included offense and thus would be merged into his aggravated battery conviction. See id. (concluding that, as charged, the aggravated assault was “included in” the aggravated battery for sentencing); Emberson v. State, 271 Ga. App. 773, 775 (1) (611 SE2d 83) (2005) (“Since the trial court merged the convictions for sentencing but did not specify which conviction merged into the other, the trial court is directed on remand to specify that the aggravated assault merged into the aggravated battery and that the sentence imposed was for the offense of aggravated battery.”) (citation and footnote omitted); Mills v. State, 187 Ga. App. 79, 80-81 (4) (369 SE2d 283) (1988) (because aggravated assault should have been merged into aggravated battery, defendant should only have been sentenced for aggravated battery).

Decided December 28, 2016.

Kevin A. Anderson, for appellant.

Robert D. James, Jr., District Attorney, Lenny I. Krick, Allison Layton, Assistant District Attorneys, for appellee.

Here, as previously noted, the trial court merged Epperson’s aggravated assault conviction into his armed robbery conviction, and then sentenced Epperson for armed robbery and aggravated battery Thus, even if the trial court should have merged Epperson’s aggravated battery and aggravated assault convictions, the end result would have been the same — Epperson would have been sentenced for aggravated battery rather than aggravated assault, given that the aggravated assault would constitute the included offense. See Regent, 299 Ga. at 176; Emberson, 271 Ga. App. at 775 (1); Mills, 187 Ga. App. at 80-81 (4). Consequently, any error by the trial court in failing to merge Epperson’s aggravated battery and aggravated assault convictions was harmless and provides no basis for vacating his sentence.

Judgment affirmed.

Boggs and Rickman, JJ., concur.

       Epperson also was indicted for possession of a firearm by a convicted felon, but the State later requested and obtained entry of a nolle prosequi order on that count.

       Epperson also challenges the initial denial of his motion to dismiss the indictment on speedy trial grounds by the trial judge originally assigned to the case. However, as noted above, Epperson’s motion to dismiss was later revie wed de novo and independently decided by the trial judge assigned to his motion for new trial. Consequently, the original trial judge’s ruling on the motion to dismiss was rendered moot and will not be separately considered on appeal. We also note that Epperson has not challenged the newly-assigned trial judge’s rulings with respect to the first three Barker-Doggett factors.

       The State concedes in its brief that Epperson’s aggravated battery conviction merged into his armed robbery and aggravated assault convictions, but we are not bound by the State’s concession and must perform our own independent analysis of the merger question. See Shelton v. State, 251 Ga. App. 34, 36 (1) (553 SE2d 358) (2001).


author: Boggs, Judge.

text:
    A16A2224.
    VANCE et al. v. FD 2011-C1 GROVE ROAD LIMITED PARTNERSHIP.
    (795 SE2d 747)
   Boggs, Judge.

Gene Vance, Cary Rhodes, and Paula Adams, the guarantors of a $1.65 million loan, appeal from the trial court’s grant of summary judgment to FD 2011-C1 Grove Road Limited Partnership (“Grove”) on its claim for damages. Because material issues of fact remain regarding the amount of those damages, we reverse.

Summary judgment is proper where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). “On a motion for summary judgment the plaintiff, as movant, has the burden of establishing the absence or non-existence of any defense raised by the defendant. We review the grant of summary judgment de novo, construing the evidence in favor of the nonmovant.” (Citations and punctuation omitted.) Greenstein v. Bank of the Ozarks, 326 Ga. App. 648, 649 (1) (757 SE2d 254) (2014).

The relevant facts here are undisputed. In 2006, Grove’s predecessor-in-interest, Crescent Bank-Cartersville West, loaned PCG, LLC, $1.65 million. The loan was secured by certain real property, and Vance, Rhodes, and Adams were the guarantors for the loan. On April 2, 2013, after PCG defaulted for failing to pay the note upon maturity and the guarantors failed to fulfill their obligation under the guaranty, Grove foreclosed on the property and was the highest bidder at the non-judicial foreclosure sale. The trial court denied Grove’s motion to confirm the sale, which would ordinarily prevent Grove from seeking a deficiency judgment. See OCGA § 44-14-161. But the guarantors waived this requirement via language in the guaranties. See PNC Bank, Nat. Assn. v. Smith, 298 Ga. 818, 820-821 (3) (785 SE2d 505) (2016) (guarantors may waive condition precedent requirement of confirmation statute); Nine Twenty v. Bank of the Ozarks, 337 Ga. App. 180, 181 (2) (786 SE2d 555) (2016) (same).

Grove subsequently filed a complaint against the guarantors seeking to recover the deficiency owed on the debt, which it claimed included the outstanding principal balance owed on the note of $1,297,112.88, and interest of $498,091.35. The parties filed cross-motions for summary judgment, and following a hearing, the trial court entered a judgment in favor of Grove and against the guarantors in the amount of $1,297,112.88 for outstanding principal and $845,049.46 in interest and attorney fees. The court entered this judgment after reviewing the “only evidence submitted,” the affidavit of Ana Castro, a representative of LNR Partners, LLC, the service provider for the loan. The guarantors now appeal.

1. The guarantors argue that the evidence offered by Grove is “internally inconsistent and fails to establish the purported amount of the debt due.” We agree. Castro averred as follows: (1) the loan history in “Exhibit F,” attached to her affidavit, “shows the history for payments made on the Note and the history of credits given for payments on the Note from the time LNR began servicing the loan”; (2) “LNR did not receive any payments on the Loan after the foreclosure sale”; (3) Exhibit F “shows that the indebtedness evidenced by the Note remains outstanding and that the principal balance of the indebtedness owed on the Note was $1,474,709.11 as of April 2 2013”; and (4) another LNR accounting record, “Exhibit G,” “shows that the principal balance of the indebtedness owed on the Note was $1,474,709.11 as of April 2, 2013.”

Decided December 29, 2016.

As Castro averred, Exhibit G is a LNR payoff statement dated April 2, 2013, showing a principal balance of $1,474,709.11 and a “Payoff Amount” of $1,970,296.01 including fees and interest. But contrary to Castro’s assertion that Exhibit F shows that the “principal balance of the indebtedness owed on the Note was $1,474,709.11 as of April 2, 2013,” this exhibit, a loan history spreadsheet, shows that the balance on that date was $1,468,903.97, with two regular payments of $11,525.63, a “miscellaneous free credit” of $26,036.10, and a “credit suspense” of $1,610.00, all listed under “unapplied” on the same date. And, although Castro stated that there were no payments made after the foreclosure on April 2, 2013, the loan history shows multiple payments of $11,525.63, and a late-charge waiver of $13,254.44, all with a transaction date of March 5, 2014.

Where a party sues for damages, it has the burden of proof of showing the amount of loss in a manner in which the trial judge can calculate the amount of the loss with a reasonable degree of certainty Thus, in a suit to enforce a promissory note or guaranty, the plaintiff has the burden of proving that the defendant is indebted to him and in a definite and correct amount.

(Citations and punctuation omitted.) Patrick Malloy Communities v. Community & Southern Bank, 334 Ga. App. 76, 82 (2) (778 SE2d 242) (2015). To prove its damages, Grove relied upon the affidavit and loan records provided by Castro. As explained above, her affidavit was inconsistent with the attached payment history, and no explanation was given for the discrepancies. “[Bjecause the discrepancies are material to the amount of unpaid principal... owed by the appellants, we conclude that material issues of fact exist as to the amount of damages.” Id. at 83 (2); see also Jackson v. Cavalry Portfolio Svcs., 314 Ga. App. 175, 176-177 (723 SE2d 475) (2012) (summaryjudgment inappropriate in face of discrepancy between account statement and averment in affidavit of amount due). For this reason, we must reverse the trial court’s grant of summary judgment to Grove as to the amount of damages owed under the note and guaranty

2. The guarantors’ remaining enumeration is rendered moot by our holding in Division 1.

Judgment reversed.

Schreeder, Wheeler & Flint, John A. Christy, Debbie A. Wilson, for appellants.

Nelson, Mullins, Riley & Scarbrough, Gregory M. Taube, for appellee.

       Although the loan was made in 2006, LNR’s loan history begins on April 5,2011, with a transaction description of “loan conversion” and an amount of $1,477,520.44. Castro provided no testimony or records for the loan history prior to the date LNR began servicing the loan.