author: McMlLLIAN, Judge.

text:
    A14A0510.
    SHUFORD v. AAMES PLUMBING AND HEATING, INC.
    (761 SE2d 395)
   McMlLLIAN, Judge.

Sharon Shuford* appeals from the trial court’s order granting summary judgment to Aames Plumbing and Heating, Inc. (“Aames”), on her defense and counterclaim for fraud. Sharon filed the counterclaim in response to Aames’s complaint seeking to recover amounts it claims are due and owing under a financing agreement, which the parties signed in connection with work Aames performed on Sharon’s septic tank.

“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. We review the grant of summary judgment de novo, construing the evidence in favor of the nonmovant.” (Citation and punctuation omitted.) Secured Realty Investment v. Bank of North Ga., 314 Ga. App. 628, 628 (725 SE2d 336) (2012).

Viewed in that light, the evidence shows that on or about October 8, 2011, Sharon hired Aames to perform repairs on her septic tank after sewage began backing up into her kitchen and bathroom. She chose Aames because she had heard an advertisement for the company on the radio. In an affidavit submitted in opposition to Aames’s motion for summary judgment, Sharon’s husband, Dan Shuford, stated that the Aames representative told him that the Shufords’ tank contained over 1,000 gallons of waste, and Aames’s advertised price of $195 only covered the removal of up to 1,000 gallons. Accordingly, he told Dan that Aames would have to assess an additional charge of $320.96 to pump the Shufords’ tank. Dan stated, however, that the tank was not actually full when the Aames representative opened it; rather, the contents were approximately nine inches from the top of the tank.

After pumping the tank, the representative told Dan that the problem was not in the tank, but rather in the field lines. He recommended, in turn, “ ‘hydro-jett[ing]’ ” the field lines, “back-pump[ing]” the field lines, and treating the lines with chemical additives. Dan explained, “At each stage, the Aames representative told me that if we did not agree to purchase [each of these services],... the septic system would very likely fail in days, weeks or months, but definitely in less than a year.” Dan said that Sharon and he relied on “the expertise of Aames” in approving the suggested work.

The Aames representative calculated the total of these services to be $3,051.57. The Shufords gave Aames a check in the amount of $1,678.35 as their initial payment, and Sharon executed an “iCare Payment Plan Agreement” (the “Finance Agreement”), under which she incurred an additional $152.56 administration fee, for the balance. Subsequently, however, the Shufords learned that their septic tank, in fact, held only 750 gallons, and they decided to stop payment on their check.

At some later point, Dan complained to the district supervisor of Northwest Georgia Public Health (“GPH”), alleging that Aames had performed unnecessary work and charged excessive prices. Dan was later copied on a letter dated October 21, 2011, sent to Aames from Virgil Fancher, a program consultant for GPH’s Environmental Health Section (the “GPH letter”). In that letter, Fancher stated that “the State Office of Environmental Health does not recognize the use of additives as an approved method of repair or maintenance to onsitesewage management systems. In addition, it does not recommend, nor approve of jetting as a means to repair or extend the life of a drainfield.”

The Shufords also filed the affidavit of C. L. Tidwell in opposition to Aames’s motion. Tidwell averred that he had been involved in the installation and maintenance of septic systems for over 50 years, during which time he had both installed and serviced over 5,000 septic tank systems. Tidwell stated that he was familiar with industry standards, regulations, and recommended “Health Department” procedures. He said that the Shufords had a 750-gallon tank and that such a tank will not hold 1,000 gallons of waste. Moreover, he averred that any service provider with even “the most basic experience” can identify the difference between a 1,000-gallon tank and a 750-gallon tank “just by looking.” He also said that, based on his experience, he is unaware of any benefit whatsoever in hydro-jetting and/or back-pumping field lines, or in adding any chemical additives to the septic field, noting that these procedures are not recommended by the State of Georgia.

Aames moved for summary judgment on its complaint, without addressing Sharon’s counterclaim. In opposing Aames’s motion, Sharon submitted affidavits to support her affirmative defense of fraud. Without a hearing, the trial court denied Aames’s motion “as to [Sharon’s] defenses of Lack of Consideration and Estoppel regarding alleged contractual obligations stemming from services rendered by [Aames] to [Sharon],” finding that genuine issues of material fact remained. The trial court, however, granted summary judgment to Aames on Sharon’s fraud defense and, sua sponte, on her counterclaim for fraud, finding, without further explanation, that Sharon failed to meet her burden of proving every element of the tort. Because Aames did not appeal the denial of its motion for summary judgment, we will confine our consideration to the grant of summary judgment on Sharon’s fraud defense and counterclaim.

1. We first address the issues Aames raises on appeal with regard to the admissibility of the evidence contained in the affidavits of Dan and Tidwell, which Sharon filed in opposition to Aames’s motion for summary judgment. Aames asserts that Dan’s affidavit “merely recited hearsay evidence about the possible mental state of [Sharon]” and contains statements not made within Dan’s personal knowledge. In particular, Aames takes issue with Dan’s averment that his wife “contacted Aames because she recognized their name and remembered their advertisement for pumping a septic tank for $195.00,” and with his statement that they both relied on the representations of the Aames representative in deciding to approve the services he recommended. Aames also asserts that Tidwell’s affidavit failed to establish his qualifications as an expert in the field of septic tank repair, and thus it “offers only inadmissible opinion evidence at best and inadmissible hearsay at worst.”

However, Aames has failed to cite to any objections it raised to the affidavits in the trial court; therefore, it has waived any objection to any alleged hearsay by failing to object on that ground below. OCGA § 24-8-802. Similarly,

“[objections to affidavits such as [an objection to the affiants’ lacking personal knowledge] will not be entertained for the first time on appeal where such affidavits were considered by the trial judge, without objection, in ruling on motions for summary judgment.” Chapman v. McClelland, 248 Ga. 725, 726 (2) (286 SE2d 290) (1982).

Formaro v. SunTrust Bank, 306 Ga. App. 398, 399-400 (1) (702 SE2d 443) (2010). Likewise, by failing to object to any opinion evidence or lack of foundation for expert opinion evidence in Tidwell’s affidavit, Aames has waived such objections for purposes of summary judgment.

[T]here is no more fundamental principle of appellate review than that preventing consideration of evidentiary objections not raised before the trial court and contained in the record on appeal. This rule is, of course, equally applicable to evidence offered in support of or in opposition to a motion for summary judgment.

(Citations and punctuation omitted.) Perry v. Intl. Indem. Co., 169 Ga. App. 818, 819 (1) (315 SE2d 13) (1984).

In any event, we note that Aames concedes the most pertinent of Tidwell’s averments, expressly stating that it does not dispute “that [the Shufords’] septic tank may hold only 750 gallons,” “that it is impossible that a container which can hold only 750 gallons could ever hold 1,000 gallons,” or “that a septic tank servicer with only minimal training should be able to discern immediately upon sight the difference between a 750 gallon and a 1,000 gallon septic tank.”

Accordingly, we find that Aames has failed to establish a basis for disregarding these affidavits.

2. Turning next to the issue of whether summary judgment was appropriate on Sharon’s fraud defense and counterclaim, we will address each issue separately.

(a) Fraud defense. Once Sharon submitted evidence and briefed the issue of her affirmative defense of fraud in response to Aames’s summary judgment motion, Aames had the burden of demonstrating that the fraud defense did not defeat its claim.

For purposes of summary judgment, although the movant might satisfy its original burden of showing a prima facie right to recover, if the respondent successfully produces rebuttal evidence in the form of an affirmative defense, the burden shifts back to the movant to establish the nonexistence of a genuine issue of fact as to each affirmative defense.

(Citation omitted.) Helton v. Jasper Banking Co., 311 Ga. App. 363, 364 (715 SE2d 765) (2011). Although Aames made no effort to carry this burden, the trial court nevertheless granted summary judgment on Sharon’s affirmative defense of fraud.

Sharon seeks to avoid enforcement of the Finance Agreement because she asserts that she was fraudulently induced into signing it. And

[t]o justify rescission of a contract for fraud in the inducement, the party seeking rescission must prove that the party with whom it contracted made a knowingly false representation; that it did so with the intent of inducing the first party to act in reliance on the deliberate misrepresentation; and that the first party justifiably relied on the misrepresentation, to that party’s detriment.

Champion Windows of Chattanooga, LLC v. Edwards, 326 Ga. App. 232, 236 (1) (756 SE2d 314) (2014). And this Court has recognized that

[gjiven that fraud is inherently subtle, slight circumstances of fraud may be sufficient to establish a proper case. Proof of fraud is seldom ever susceptible of direct proof, thus recourse to circumstantial evidence usually is required. Moreover, it is peculiarly the province of the jury to pass on these circumstances showing fraud.

(Citation omitted.) Levine v. SunTrust Robinson Humphrey, 321 Ga. App. 268, 274 (2) (a) (740 SE2d 672) (2013). Applying these principles to the evidence of record, we find that issues of fact remain precluding summary judgment on this affirmative defense.

(i) Knowingly false representation. According to Dan, Aames’s representative told him that Aames’s advertised price of $195 did not apply in his case because the Shufords’ septic tank contained over 1,000 gallons of matter. But as Aames concedes, the Shufords’ septic tank had a capacity of only 750 gallons, and a septic tank servicer with only minimal training should be able to discern “immediately upon sight” the difference between a 750-gallon and a 1,000-gallon septic tank. Thus, a factual question exists as to whether Aames knowingly misrepresented the situation. Additionally, the representative told Dan that hydro-jetting, back-pumping, and additives for the field lines were necessary to prevent further problems with the septic system, but Tidwell’s affidavit and the GPH letter raise questions as to whether some of these services were State-approved or necessary to repair the Shufords’ septic tank and whether Aames knowingly misrepresented that they were required. We note that “[e]xcept in plain and indisputable cases, scienter in actions based on fraud is an issue of fact for jury determination.” (Citation omitted.) Levine, 321 Ga. App. at 274 (2) (a). Because this is not a plain and indisputable case, this issue is for the jury.

(ii) Intention to induce the Shufords to act. “The intent which constitutes an essential element of fraud is an intent that the representation be acted upon by the other party[, and it] is a jury question except in plain and palpable cases.” (Citations omitted.) Bill Spreen Toyota, Inc. v. Jenquin, 163 Ga. App. 855, 859 (3) (294 SE2d 533) (1982). Here, the evidence raises genuine issues of material fact as to whether Aames intended to induce the Shufords to pay an upcharge in excess of $195 for pumping the septic tank by representing that the tank held more than 1,000 gallons. Similarly, the evidence indicating that some of the procedures performed by Aames were unnecessary or disapproved for the Shufords’ system creates additional jury issues as to whether the agent made misrepresentations with the intent of inducing the Shufords to agree to unnecessary, expensive charges. Thus, an issue of fact also exists as to whether any such misrepresentations were made with the intent to induce Sharon to sign the Finance Agreement.

(iii) Justifiable reliance. We find that the evidence presents jury issues on this element as well. The general rule in Georgia is “that actionable fraud must be based upon a misrepresentation made to the defrauded party, and relied upon by the defrauded party.” (Emphasis in original.) Florida Rock & Tank Lines, Inc. v. Moore, 258 Ga. 106, 106 (1) (365 SE2d 836) (1988). In Florida Rock, our Supreme Court cited with approval the Restatement of Torts (2d) § 533, which provides a limited exception to the general rule:

The maker of a fraudulent misrepresentation is subject to liability for pecuniary loss to another who acts in justifiable reliance upon it if the misrepresentation, although not made directly to the other, is made to a third person and the maker intends or has reason to expect that its terms will be repeated or its substance communicated to the other, and that it will influence his conduct in the transaction or type of transaction involved.

(Emphasis in original.) Id. at 106 (1), n. 1.

Although the representations by Aames were made to Dan, he averred that he “advised my wife Sharon Shuford of all the facts” stated by Aames. Sharon testified that she thereafter signed the invoice and executed the Finance Agreement because she understood that “if [she] signed the contract, they were going to fix the septic tank.” Thus, under Florida Rock, we find that genuine issues of material fact exist as to whether Aames intended or had reason to expect that its representations to Dan would be conveyed to Sharon and that those representations would influence her to enter into the Finance Agreement.

(iv) Detriment. Here, the detriment at issue is Sharon’s potential contractual obligation to pay approximately $3,000 for charges and services that she claims were unnecessary and fraudulently induced.

Accordingly, we conclude that the trial court erred in granting summary judgment to Aames on Sharon’s fraud defense because genuine issues of fact remain for the jury.

(b) Counterclaim. To establish her counterclaim of fraud, Sharon must show

a false representation by [Aames], scienter, intention to induce [Sharon] to act or refrain from acting, justifiable reliance by [Sharon], and damage to [Sharon]. For an action for fraud to survive a motion for summary judgment, there must be some evidence from which a jury could find each element of the tort.

(Citation omitted.) Roberts v. Nessim, 297 Ga. App. 278, 284 (1) (b) (676 SE2d 734) (2009). And a defendant-in-counterclaim, such as Aames,

demonstrates entitlement to summary judgment by showing that the record lacks evidence sufficient to create a jury issue on at least one essential element of the plaintiff[-in-counterclaim]’s case. The defendant[-in-counterelaim] does not need to affirmatively disprove the plaintiff’s case, but may prevail simply by pointing to the lack of evidence.

(Citation omitted.) Brown v. Host/Taco Joint Venture, 305 Ga. App. 248, 248-249 (699 SE2d 439) (2010). But Aames neither moved for summary judgment on Sharon’s counterclaim nor otherwise addressed it in the trial court; thus, Aames has not carried this burden.

Nevertheless, the trial court, acting sua sponte, granted summary judgment on the counterclaim. A trial court’s power to grant a motion for summary judgment sua sponte is not unlimited. Hodge v. SADA Enterprises, Inc., 217 Ga. App. 688, 690 (1) (458 SE2d 876) (1995). Rather,

[t]he grant of summary judgment must be proper in all other respects. This means that in addition to ensuring the record supports such a judgment, the trial court must ensure that the party against whom summary judgment is rendered is given full and fair notice and opportunity to respond prior to entry of summary judgment.

(Citations and punctuation omitted.) Id. And because Aames never moved for summary judgment on the counterclaim, Sharon had no burden

to respond to issues which [were] not raised in the motion for summary judgment or to present its entire case on all allegations in the [counterclaim] — even on issues not raised in [Aames’s] motion. Indeed, until [Aames] pierced the allegations of [Sharon’s counterclaim] on a particular issue, [she] was neither required to respond to the motion on that issue, nor required to produce evidence in support of [her counterclaim] on that issue.

(Citations omitted.) Id.

We have found that genuine issues of fact remain with regard to Sharon’s fraud defense, but we find that the trial court acted prematurely in considering her counterclaim on summary judgment because she was not given full and fair notice and an opportunity to address all the elements of her counterclaim for fraud, which may require additional evidence. Accordingly, we find that the trial court erred in granting summary judgment to Aames on Sharon’s counterclaim.

Judgment reversed.

Phipps, C. J., and Ellington, P. J., concur.

Decided July 3, 2014.

Tilley, Deems, Helton & Trotter, Shepard Helton, for appellant.

Busch, Reed & Jones, Jeffrey S. Leeper, for appellee.

       For ease of identification, we will refer to Sharon Shuford and her husband Dan Shuford by their first names.

       Sharon has not appealed the grant of summary judgment on her counterclaim for deceptive trade practices.

       The appellate record originally received from the trial court did not contain Aames’s motion for summary judgment. Upon request of this Court for all summary judgment pleadings, the trial court supplemented the record with a motion for summary judgment filed by Aames on July 10, 2013, which does not address Sharon’s counterclaim. It is this Court’s understanding that this was the only summary judgment motion filed by either party below.

       Moreover, even where, as here, the affidavits fail to recite that they were made on the affiant’s personal knowledge, we will consider the affidavit on appeal where no objection was raised below and “it is obvious that most of the contents and facts set forth therein were within the personal knowledge of the affiant[.]” Johnson v. Crews, 165 Ga. App. 43, 44 (299 SE2d 99) (1983). See also Reese Realty Co., Inc. v. Pal Realty Co., Inc., 182 Ga. App. 215, 217 (2) (355 SE2d 125) (1987). Here, “it is clear from the context of the affidavits], [that most of the facts asserted] are within the personal knowledge of [Dan or Tidwell] and are to be considered notwithstanding the absence from the affidavits] of a statement that the affidavits] [are] based on personal knowledge.” Reese Realty, 182 Ga. App. at 217 (2).


source: Caselaw Access Project

author: DOYLE, Presiding Judge.

license: Public Domain

text:
    A14A0096.
    YOUNG v. THE STATE.
    (761 SE2d 801)
   DOYLE, Presiding Judge.

Michael Lewis Young appeals from the denial of his motion for new trial following his conviction by a jury of violating the Computer or Electronic Pornography and Child Exploitation Prevention Act of 2007 (“Computer Child Exploitation”) (two counts) and attempting to commit the felonies of aggravated child molestation and child molestation (two counts each). Young contends that (1) the trial court erred by excluding his expert’s testimony on his lack of predisposition to commit the offenses, (2) he was denied his constitutional right to be present during certain bench conferences, (3) the evidence was insufficient to support the guilty verdict, (4) the trial court gave erroneous jury instructions, (5) he received ineffective assistance of counsel, and (6) his sentence was unlawful. For the reasons that follow, we affirm.

Construed in favor of the verdict, the evidence shows that Young visited the Craigslist website and looked in the “Casual Encounters” section for sexual companionship. He encountered a listing from “daddychris.520@gmail.com” seeking a “discreet” male who “would like to teach the finer aspects of life to a young female friend of mine.” The listing was placed by a police detective working with an FBI task force investigating crimes against children. Young responded expressing interest and describing his body and penis size and attaching a photo of himself nude. The detective replied, and the following e-mail exchange occurred:

DETECTIVE: Thank-you for your reply. I just need to know what level of open mindedness and discretion you have. I have two step-daughters, who are not quite the legal age. Both are very beautiful and very much up for this. They are both very mature, open minded, and discreet. If you are interested in this out of the ordinary experience please respond . . . discretion is a must.
YOUNG: I would be interested and will be very discrete [sic] as well [a]s I will need to make sure no one finds out as well. But would be very interested[.] Let me know how we meet[.]
DETECTIVE: My step-daughters are both equally beautiful ... Kara is 12 and Nikki is 14... both are very into this... if this is something you would be interested in tell me in detail what you would do with them . . . cops [cannot] say that . . . and you must send the picture . . . discretion is a must.
YOUNG: Gotcha, As young ladies they would need to know how to [perform oral sex] ... I will teach . . . We can slowly teach them what it is like to receive oral pleaseure [sic] from me as well and finally with full intercourse and my (smaller than average) [penis] inside their vagina they will learn how to relax and have a great orgasm as part of this pleasurable experience. . . .
DETECTIVE: Ok I believe we are thinking on the same level, I believe this could be a good relationship. I am glad to see that you have a smaller penis, that would be better for Kara the 12-year-old.
YOUNG: Would you like to do this [T]hursday evening? I have a nice two bedroom apartment we can all hang out... for a while and work our way to the fun? I am in Dun-woody ....

The detective and Young then proceeded to negotiate a meeting time and place. Young also asked for pictures of the girls, and the detective replied that he did not want to send pictures because “they could one day be traced back to me,” feigning a fear of being caught. Young replied that he understood that concern is “legit,” and that the girls “sound very cute and just tell me if there is anything I missed out on that you want me to teach them when we are together[.]” Young later asked if the girls were developing breasts yet, and the detective and Young continued trading e-mails to arrange a mutually agreeable meeting at a hotel, whereupon Young was arrested. The entire e-mail exchange took place in several e-mails over the course of four days. At the time of his arrest, Young’s license plate had been removed, he had a note with the detective’s e-mail address and phone number and, as discussed in e-mails, Young’s vehicle contained a pack of condoms and some wine coolers.

Young was charged with six counts based on his conduct and, following a trial, a jury found him guilty on all counts. Young moved for a new trial, which was denied, giving rise to this appeal.

1. Young contends that the trial court erred by refusing to admit testimony from his expert witness that would support his sole defense of entrapment. Specifically, he argues that his expert, Dr. Dave Davis, would have testified that Young was not predisposed to have sexual contact with underage children, which is one of the prima facie elements of entrapment he must show. This Court recently addressed this question regarding the same expert under similar facts in Lopez v. State. We find that analysis applicable here:

Under Georgia law, where (a) the path from evidence to conclusion is not shrouded in the mystery of professional skill or knowledge, and (b) the conclusion determines the ultimate issues of fact in a case, the jury must make the journey from evidence to conclusion without the aid of expert testimony. In general, expert testimony that a defendant does not have the psychological characteristics of a person who is predisposed to having sexual contact with underaged children invades the province of the jury as to the ultimate issue, that is, the defendant’s guilt or innocence, and is properly excluded. We conclude that the trial court did not abuse its discretion in ruling that whether [Young] would have committed the crime [s] charged absent the inducement of law enforcement officers was a question the jury could and must resolve without the assistance of expert opinion evidence and that Dr. Davis’s opinions on the subject were therefore inadmissible.

2. Young also argues that the trial court should have granted his motion for new trial because he was denied his constitutional right to be present at a critical stage of his trial when bench conferences occurred during voir dire. But the voir dire process was not transcribed, and Young makes no argument that he objected during trial. At the hearing on Young’s motion for new trial, Young’s trial counsel explained that the trial court instructed jurors to stand and answer questions during voir dire, and if they had something they wanted to speak about more privately, they could approach the bench. Young’s counsel stated that he was present for all of the conferences and each conference would happen while Young was seated at counsel’s table, six or eight feet away. Young’s counsel would tell Young what was happening, and both Young and his counsel were present in the courtroom during the entire process, yet neither objected. Under these circumstances, “because all of the bench conferences in question took place while [Young] was in the courtroom, and [he] voiced no objection to them, [he] has waived appellate review of the alleged improper conferences.”

3. Young next contends that the evidence was insufficient to support the guilty verdict because he never had contact with a child or anyone posing as a child. He relies on Cosmo v. State, which held that the plain meaning of OCGA § 16-12-100.2 (d) (l) “cannot be construed to encompass [a defendant’s] communication with only an adult or a person known to be an adult,” so no violation of that Code section occurred absent some communication with a minor. But, after the briefing in this case, Cosmo was reversed by the Supreme Court of Georgia, which concluded “that direct communication [with a minor] was not required for a conviction pursuant to the crime as charged in this case,” because Cosmo was accused of attempting to solicit or entice a person he believed to be a child. The Court explained:

[A] solicitation [or enticement] of another may be made by communication with a third party. Just as solicitation of prostitution can be made through a third party pimp, solicitation of a child to commit the acts prohibited by OCGA § 16-12-100.2 (d) (1) may be conducted through an adult intermediary who is believed to be in a position of trust or authority with respect to the child. As the Eleventh Circuit Court stated in [United States v.] Murrell, [] “the efficacy of [the statute] would be eviscerated if a defendant could circumvent [the statute] simply by employing an intermediary to carry out his intended objective.”

Here, this analysis applies because Young’s indictment accused him of essentially the same conduct in violation of the same statute. Accordingly, this enumeration is without merit.

4. Young argues that the trial court gave erroneous jury instructions.

(a) Failure to give instruction as to mere preparation. Young argued that his conduct amounted to only mere preparation, and he requested such an instruction, which the trial court declined to give. “In determining whether the trial court’s charge to the jury contains error, we read and consider the instructions as a whole. Moreover, a trial court does not err by failing to give a jury charge where the requested charge is not adjusted to the evidence presented at trial.”

Young’s indictment alleged that he “did intentionally utilize a computer Internet service to attempt to seduce and entice [the victim], a person believed by the accused to be a child, to commit child molestation and aggravated child molestation. . . .” The evidence showed that Young responded to a listing on Craigslist and sent a series of e-mails to arrange a meeting with the purported underage victims to engage in oral sex and intercourse with them. Such a use of a computer constituted the actual crimes, if the requisite intent was found. It was undisputed that Young used the computer to communicate with the detective about meeting the girls; thus the only issue at trial was his intent. As there was no issue regarding Young’s mere preparation to use the computer, the requested charge was not apt. “A defendant is not entitled to a jury charge on legal issues which are irrelevant, not tailored to the evidence or factually inapplicable.”

(b) Instruction on law enforcement officer’s involvement. Over Young’s objection, the trial court instructed the jury that “the sole fact that an undercover operative or law enforcement officer was involved in the detection and investigation of an offense shall not constitute a defense to prosecution under [OCGA § 16-12-100.2].” This language is taken from OCGA § 16-12-100.2 (g), which was in effect when Young committed the offenses and remains so today. Young argues that based on Cosmo v. State, such an instruction was confusing because it implied that the offense can he committed absent any contact with a minor. Nevertheless, as noted in Division 3, that case recently was reversed and as such provides no support for this enumeration.

5. Young argues that he received ineffective assistance of counsel in several ways. We review these assertions under the standard in Strickland v. Washington. To succeed on an ineffective assistance claim, a criminal defendant must demonstrate both that his trial counsel’s performance was deficient and that there is a reasonable probability that the trial result would have been different if not for the deficient performance. “There is a strong presumption that the performance of trial counsel falls within the wide range of reasonable professional assistance. The reasonableness of the conduct is viewed at the time of trial and under the circumstances of the case.” If an appellant fails to meet his burden of proving either prong of the Strickland test, the reviewing court need not examine the other prong. In reviewing the trial court’s decision, “[w]e accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.”

(a) Failure to advocate case. Young argues that his trial counsel failed to zealously advocate his case. In support of this argument, Young points out that his counsel had tried two other felony cases in the same week, stemming from similar facts. Based on his concerns about counsel’s preparation time, Young asked counsel to request a continuance. Nevertheless, Young’s counsel testified at the motion for new trial hearing that he had been representing him since before indictment, and his preparation for the three cases was much the same. He was able to investigate the case and file numerous pre-trial motions and briefs. The State’s case involved only one witness, whom counsel was able to research prior to trial, and it had a straightforward factual scenario. Trial counsel further testified that “I knew this was going to be tried, there was no doubt in my mind about that.... [I]t was clear that... these cases were going to be tried that week—” Under these circumstances, we discern no deficient performance nor has Young met his burden of showing a reasonable probability that the outcome would have been different had his trial counsel elected to seek a continuance.

(b) Failure to seek interlocutory appeals of pre-trial rulings. Young points to several adverse pre-trial rulings and argues that his trial counsel performed deficiently by failing to request the trial court to certify the issues for immediate review and then apply for an interlocutory appeal in this Court.

(i) Denial of special demurrer. Pretermitting the merits of such a claim and the discretionary nature of such an appeal,

[Young] is unable to establish prejudice. A defendant is entitled to be tried on an indictment that is perfect in form. And, if an indictment is imperfect, a defendant may file a special demurrer challenging the form of the indictment. If no special demurrer is filed, any error in the indictment’s form is waived. If the demurrer is granted, the trial court quashes the indictment. However, the quashing of an indictment merely bars trial on the flawed indictment; it does not bar the State from reindicting the defendant. Thus, even if [Young’s] attorney had [successfully] filed a demurrer, it would not have prevented the State from reindicting and trying [Young]. And [Young] does not argue that the imperfect indictment prejudiced his defense in any way. Under these circumstances, [Young] has failed to show that he was prejudiced by his attorney’s failure to [appeal the denial of his special demurrer].

(ii) Exclusion of expert testimony. In light of our ruling in Division 1 finding no error in the exclusion of the testimony proffered by Young’s expert, failing to seek an earlier appeal of this ruling cannot support a claim of ineffective assistance of counsel.

(iii) Failure to request transcription of voir dire and opening and closing arguments. Young asserts that this was deficient performance, but he does not demonstrate how recording these phases of trial would create a reasonable probability of a different trial outcome.

(iv) Waiver of Jackson-Denno hearing. After his arrest, Young was transported back to the sheriff’s department for an interview. An officer read him a written Miranda waiver form, and Young signed it. At trial, the officer testified that he observed Young to be sober and coherent, and he did not make any promises or threats to induce Young to make a statement; and Young never refused to answer questions, nor did he request an attorney or equivocate on speaking to police. Based on our review of the record, we discern no basis for a ruling that Young’s waiver was not knowing and voluntary. Accordingly, this argument fails to support Young’s ineffective assistance claim.

(v) Waiver of right to be present at bench conferences. Young argues that his trial counsel’s failure to object to Young’s nonparticipation in bench conferences during voir dire was somehow deficient performance. Nevertheless, Young does not identify anything that would have changed had he been present, and trial counsel pointed out at the motion for new trial hearing that he had already twice interviewed the exact same jury pool as he tried the other two similar cases that week. In the absence of some showing of prejudice to Young, this argument fails.

(c) Failure to make objections at trial. Young contends that his trial counsel failed to object to or otherwise cure certain testimony elicited from the State’s single witness, Detective Lyons. He points to references to the witness’s experience with “actual victims that have gone through this same type of stuff,” and statements such as “Craig[slist] is a place where children are being victimized. Where there’s predators that go on-line specifically just to locate children.” But trial counsel recalled that he had evaluated the witness, and he decided to not make certain objections or motions to avoid drawing attention to potentially inflammatory testimony: “[The witness] was going to, no matter what you say he was going [to] come back and double up on it. He was that kind of guy.” Instead, trial counsel explained that his strategy was, in part, to show the detective to be a “rogue cop, who was just out there to entrap people and ruin their lives.” “Trial counsel’s strategy was not unreasonable and thus affords no basis for an ineffective assistance of counsel claim.”

(d) Requesting an improperjury instruction. Trial counsel requested an instruction on the Computer Child Exploitation offenses that quoted verbatim the relevant Code section, OCGA § 16-12-100.2 (d), which defines the offense, in part, as attempting to “entice a child or another person believed by such person to be a child to commit” child molestation. Young now argues that this was improper because the indictment merely accused him of attempting to entice “a person believed by the accused to be a child.” Thus, he argues, the jury instruction authorized a conviction in a manner not alleged in the indictment. But “[i]n determining whether the trial court’s charge to the jury contains error, we read and consider the instructions as a whole.” The trial court instructed the jury that

[n]o person can be convicted of any crime unless and until each element of the crime as charged is proven beyond a reasonable doubt. In these cases the burden of proof rests upon the State to prove every material allegation of the indictment and every essential element of the crime charged, again, beyond a reasonable doubt. ... [A] s to each of these individual counts, one through six, if under the evidence and the law you find beyond a reasonable doubt that the Defendant did commit the offense that’s set out in that particular count of the indictment, in that event you would be authorized to convict him. . . .

Further, while the jury did have a copy of the indictment, they did not have a copy of the statute. Under these circumstances, the jury instructions given did not mislead the jury.

6. Young finally contends that his sentence on all six counts is unlawful because (a) certain counts were included in each other and should have merged, and (b) the two alleged victims were fictitious.

(a) Merger. Young was indicted and convicted for committing six offenses: Computer Child Exploitation, attempted aggravated child molestation, and attempted child molestation for each of the two victims. On appeal he contends that the trial court erred by sentencing him for six offenses because the same facts were used to prove multiple offenses. This, however, ignores the language of the indictment, which based each count on different conduct. Each pair of counts, including the Computer Child Exploitation counts, was alleged against a different victim. Further, the two child molestation counts alleged different attempted conduct (intercourse) from the aggravated child molestation counts (oral sex). Thus, “each of those counts was a separate and distinct crime.” The e-mail evidence, which outlines in detail his planned encounter with the victims, supports a finding that Young intended the distinct sex acts with each victim.

(b) Fictitious victims. Young also contends that because the victims were fictitious, and his conduct was limited to a single set of facts leading to the arranged meeting, he should only be convicted of one count for each of the three types of offenses, instead of two as alleged in the indictment. But Young was accused of attempting to do each of the offenses, and the fact that the offenses were not consummated with actual victims does not decriminalize his conduct. “[T]o constitute an attempt there must be an act done in pursuance of the intent,” and there was ample evidence that Young’s intent was to molest two specific victims. For example, each victim was identified to Young by name, age, height, and weight; Young explicitly described the sex acts he would perform with each of them; he referred to meeting “all of you,” i.e., the fictitious stepfather and the two girls; he requested “pictures of them”-, and he sought confirmation that “the girls are willing and up for this.” Thus, it is clear that the steps Young took were toward his goal of molesting two specific victims, which justified a finding of criminal intent as to each count in the indictment.

Decided July 7, 2014

Sanford A. Wallack, Jacobs & King, Scott R. King, Steven M. Lefkoff, for appellant.

Herbert E. Franklin, Jr., District Attorney, Christopher A. Amt, Assistant District Attorney, for appellee.

Further, in Lopez, this Court affirmed convictions for Computer Child Exploitation and attempted aggravated child molestation despite the fact that the victim was fictitious. The Court found the evidence sufficient on both counts because the defendant believed the victim to be a child when he was communicating via a computer and because the defendant took substantial steps toward the molestation offense. This rationale supports the multiple convictions in this case.

Finally, with respect to the Computer Child Exploitation offenses, we are guided by the rationale in State v. Cosmo, which clarified that the offense, as charged in this case, does not require actual interaction with a minor. Therefore, no minor need be involved in the offense at all. There is no evidence that the State took advantage of Young’s interest and fabricated more victims than Young intended to harm. Accordingly, based on the facts of this case, we discern no reversible error in Young’s sentence on all six counts.

Judgment affirmed.

Miller and Dillard, JJ., concur.

       OCGA § 16-12-100.2 (d) (2010). The Code section was amended after Young committed the offenses in this case. See Ga. L. 2013, p. 663, § 3.

       OCGA § 16-4-1.

       OCGA § 16-6-4 (c).

       OCGA § 16-6-4 (a) (1).

       See Short v. State, 234 Ga. App. 633, 634 (1) (507 SE2d 514) (1998).

       See Millsaps v. State, 310 Ga. App. 769, 773 (3) (714 SE2d 661) (2011) (“If the defendant establishes a prima facie case of entrapment, the burden is then upon the State to disprove entrapment beyond a reasonable doubt.”) (punctuation and footnote omitted).

       326 Ga. App. 770, 775-776 (4) (757 SE2d 436) (2014).

       (Citations and punctuation omitted.) Id.

        Kennedy v. State, 274 Ga. 396, 397 (3) (554 SE2d 178) (2001). See also Smith v. State, 284 Ga. 599, 609 (4) (669 SE2d 98) (2008) (because there was “no contemporaneous objection to the trial court’s course of action ... the trial court did not err in denying [the defendant’s] motion for new trial on this ground”).

       At the time of Young’s and Cosmo’s offenses, this Code section provided, in relevant part:
      It shall be unlawful for any person intentionally or willfully to utilize a computer on-line service or Internet service... to seduce, solicit, lure, or entice, or attempt to seduce, solicit, lure, or entice a child or another person believed by such person to be a child to commit any illegal act.. . relating to the offense of sodomy or aggravated sodomy [or] . . . relating to the offense of child molestation or aggravated child molestation;....
      It was later amended to include attempting to solicit “any person having custody or control of a child, or another person believed by such person to have custody or control of a child.” See Ga. L. 2013, p. 663, § 3.

        Cosmo v. State, 320 Ga. App. 397, 402 (1) (739 SE2d 828) (2013), reversed by State v. Cosmo, 295 Ga. 76, 81 (757 SE2d 819) (2014).

        State v. Cosmo, 295 Ga. at 76.

       368 F3d 1283 (11th Cir. 2004).

        State v. Cosmo, 295 Ga. at 80.

       (Punctuation and footnote omitted.) Watson v. State, 261 Ga. App. 562, 565 (2) (b) (583 SE2d 228) (2003).

       See generally Ross v. State, 255 Ga. 1, 4-5 (5) (334 SE2d 300) (1985) (“instructions to the jury should he tailored to the indictment and adjusted to the evidence”).

        Wicks v. State, 278 Ga. 550, 553 (5) (604 SE2d 768) (2004).

       See State v. Cosmo, 285 Ga. at 81.

       466 U. S. 668 (104 SCt 2052, 80 LE2d 674) (1984).

       See id. at 687-688, 694 (III) (A)-(B).

       (Citation and punctuation omitted.) Williams v. State, 277 Ga. 853, 857 (6) (596 SE2d 597) (2004).

       See Strickland, supra, 466 U. S. at 697 (IV); Fuller v. State, 277 Ga. 505, 507 (3) (591 SE2d 782) (2004).

       (Punctuation omitted.) Robinson v. State, 277 Ga. 75, 76 (586 SE2d 313) (2003).

       Counsel for the State had tried the same three back-to-back cases stemming from similar facts. See Maddox v. State, 327 Ga. App. XXVII (2014) (A14A0091) (unpublished opinion). Lopez v. State, 326 Ga. App. 770.

       See Manaois v. State, 300 Ga. App. 176, 179 (4) (684 SE2d 315) (2009) (deciding not to seek a continuance was reasonable trial strategy).

       Compare State v. Marshall, 304 Ga. App. 865, 868 (698 SE2d 337) (2010) (finding similar indictment sufficient).

       (Punctuation omitted.) Coleman v. State, 318 Ga. App. 478, 481-482 (2) (735 SE2d 788) (2012).

       See Watkins v. State, 289 Ga. 359, 363 (4) (711 SE2d 655) (2011) (finding no error in trial court’s conclusion that waiver was knowing and voluntary based on detective’s testimony).

        See Funes v. State, 289 Ga. 793, 796 (3) (a) (716 SE2d 183) (2011) (“trial counsel’s decision not to pursue [a] meritless issue does not constitute ineffective representation”).

        Leonard v. State, 279 Ga. App. 192, 194 (2) (a) (630 SE2d 804) (2006). See Hargrove v. State, 289 Ga. App. 363, 368 (4) (a) (657 SE2d 282) (2008) (reasonable tactical decisions “are within the lawyer’s exclusive province and do not amount to ineffective assistance of counsel”) (punctuation omitted).

        Watson v. State, 261 Ga. App. at 565 (2) (b).

       (Emphasis supplied.)

       Cf. Redding v. State, 293 Ga. 766, 769 (3) (749 SE2d 717) (2013).

        Smith v. State, 320 Ga. App. 408, 413 (2) (a) (740 SE2d 174) (2013), citing Metts v. State, 297 Ga. App. 330, 336 (5) (677 SE2d 377) (2009) (child molestation did not merge into aggravated child molestation because the offenses were proven by different acts of molestation). To the extent that Young argues that the evidentiary basis for each count was “used up” by another count, that analysis was disapproved of in Drinkard v. Walker, 281 Ga. 211, 212, 215 (636 SE2d 530) (2006), which addressed whether the same conduct can support multiple convictions. See Lucky v. State, 286 Ga. 478, 481 (2), n. 5 (689 SE2d 825) (2010).

       See Collins v. State, 297 Ga. App. 364, 365 (1) (677 SE2d 407) (2009) (“An attempt to commit a crime consists of three elements: first, the intent to commit the crime; second, the performance of some overt act towards the commission of the crime; and third, a failure to consummate its commission”) (punctuationomitted; emphasis supplied).

       (Emphasis supplied.) Wittschen v. State, 259 Ga. 448 (1) (383 SE2d 885) (1989), quoting Groves v. State, 116 Ga. 516, 517-518 (42 SE 755) (1902).

       (Emphasis supplied.)

       326 Ga. App. at 773 (1) (a), (b).

       See State v. Cosmo, 295 Ga. at 77.


text:
    A14A0135.
    WELDON v. THE STATE.
    (761 SE2d 421)
   DOYLE, Presiding Judge.

Following a jury trial, Brian Eugene Weldon was convicted of 12 counts of armed robbery,* aggravated assault, and giving a false name to a law enforcement officer. He appeals the denial of his subsequent motion for new trial, arguing that he was deprived of his Sixth Amendment right to a fair trial by the trial court’s requirement that he wear an electronic security device under his clothing during the trial. Weldon also challenges the sufficiency of the evidence. We affirm, for the reasons that follow.

Viewed in favor of the verdict, the record shows that on March 5, 2007, Weldon and two other men rushed into the China Star restaurant in Lawrenceville where Jian Guo, Long Zhang, and Zhi Chen were working. Weldon and at least one of the other men pointed guns at the employees and demanded money, and Weldon struck Guo in the back of the head with a handgun. The men fled after taking money from the employees. Guo identified Weldon at trial, and Zhang identified Weldon in a photographic lineup.

On March 16, 2007, Yun Zheng, Ri Zheng, Mendy Zheng, and Nancy Zheng were working at the Hong Kong restaurant on Center-ville Highway in Gwinnett County when two men armed with guns ran into the restaurant, pointed a gun at the employees, forced them to the ground, took money from the register and the employees, and ran. Mendy Zheng identified Weldon in a photographic lineup and at trial as one of the assailants.

Also on March 16, 2007, Di Liu, Coco Chen, and Liang Zhang were working at the New China Wok restaurant on Centerville Highway when two men with guns entered the restaurant, pointed guns at Zhang and Liu, forced them to the floor, and took money from the two employees and the register. One of the men struck Liu with a gun. Zhang identified Weldon at trial as one of the assailants.

On March 22, 2007, two men entered the Hunan Garden restaurant on Stone Mountain Highway where Mei Hung was working. One of the men pointed a gun at her, demanded that she give him the money from the cash register, took the money, and fled. Hung identified Weldon at trial as the man that wielded the gun, a customer present during the robbery identified him in a photographic lineup, and another customer identified him at trial.

On March 26, 2007, Sung Park was working at the Georgia Cellular store on Annistown Road when Weldon and another man entered the store. One of the men pointed a gun at Park’s head, one demanded his wallet, and the two men took cash and phones from the store. Police recovered a videotape of the robbery taken from a store security camera, which was shown to the jury during the later trial.

Police subsequently obtained a warrant for Weldon in connection with the armed robberies and served it on him on March 29, 2007. When asked for his name, Weldon initially gave his brother’s name. When police showed Weldon the videotape of the robbery at the Georgia Cellular store, he admitted to the officer that he was depicted on the tape, but claimed that the other man shown in the video forced him to participate by locking the front door and fleeing to an awaiting vehicle.

At trial, the State introduced similar transaction evidence, including (1) a March 19, 2007 armed robbery of a China King restaurant in DeKalb County by Weldon and another man during which an employee was shot; (2) a March 17, 2007 armed robbery of a Wings Express in DeKalb County by three men during which one of the employees was struck in the head with a gun; and (3) a March 19,2007 armed robbery of a Fried Rice King restaurant in DeKalb County by two men, one of whom struck an employee in the head with a gun. The State introduced the testimony of Vandre Stewart, who was also charged with armed robbery in connection with the Hunan Garden robbery. Stewart, who pleaded guilty to robbery, testified that he robbed the Hunan Garden with Weldon.

At the conclusion of the evidence, the trial court directed a verdict as to two counts of armed robbery for which the State failed to present evidence. The jury found Weldon not guilty of the sole count of kidnapping, and it found him guilty of the remaining counts. This appeal follows the denial of Weldon’s subsequent motion for new trial.

1. Weldon argues that he was deprived of his Sixth Amendment right to a fair trial by the trial court’s requirement that he wear an electronic security device under his clothing during the trial. We disagree.

On the first day of trial, defense counsel advised the court that Weldon did not “feel comfortable going to trial” and “[did not] feel that [the defense] was prepared to go to trial.” In response, the trial court stated that the trial would proceed, noting that it had been on a calendar for years and that defense counsel had been provided with discovery as well as the transcript of the trial of the case involving the DeKalb Comity charges. The trial court then addressed Weldon:

Now, further, not only at previous hearings but also today, I see you looking around a lot. You don’t seem to be looking up here or [at] anybody else very much, but you seem to be looking around a lot. You’re looking to the door when people come in. You seem to be more concerned with what’s going on around you than what — with what’s going on with your case. I’ve noted that before today. I’ve noted that today as well. Based on the nature of the charges and the risk you’re facing of a life sentence for any one of the [twelve] armed robberies, with a similar transactions pending, a [forty]-year sentence out of DeKalb, and a [twenty]-year rejected offer, the [c]ourt finds that it is necessary in order to conduct a safe and orderly trial in this matter without you making a go for the door, which it appears to me that you may be considering based on your looking to the door more than you look up here, that I am going to have you with an electronic belt on____[The deputies are] going to go over that with you here, shortly. But that will allow us to need [fewer] deputies in the courtroom. You’re facing significant risks[,] and your attention seemed to be elsewhere during all of the proceedings before today. . . . [This was not at the State’s] request, but it’s based on my observation of you coupled with the nature of the charges and coupled with the other issues in the case. I think it’s necessary to do that to [ensure] that we have a safe and orderly trial without this being a field trip for you, to try to get out the back door. . . . The belt will not be visible to the jurors. The jurors will not see a belt on you; that would be prejudicial. ... If you make any runs for the door, the jurors will very quickly be aware that you have a shock belt on, so you will be advised as to the type of things that would cause that to be activated.

The trial court explained to Weldon that he would be allowed to move around the courtroom to view the evidence without activating the device. After a recess, Weldon refused to come into the courtroom because he did not want to wear the shock device, and he was not ready to go to trial.

The trial court then questioned one of the courtroom deputies, who confirmed that he and another deputy both had to instruct Weldon to look forward in the courtroom because “[h]e was looking over his right shoulder, towards the direction of the gallery and the exit door.” After Weldon reiterated his refusal to participate in the trial while wearing the device, the trial court instructed him that the trial would proceed in his absence. After a recess, Weldon finally agreed to wear the device in the courtroom, and the trial court again assured him that he would be able to move around the courtroom to view the evidence without the risk of being shocked.

Weldon moved for a new trial based in part upon the court’s requirement that he wear the device during trial. At the hearing, the courtroom deputy testified that prior to placing the BAND-IT brand shock sleeve on Weldon, the deputy read him a notification form, which provides in relevant part:

This system contains 50,000 volts of electricity. By means of a remote transmitter, an attending officer has the ability to activate the stun package attached to you, thereby possibly causing the following results to take place: 1. Immobilization causing you to fall to the ground [;] 2. Possibility of self-defecation [; and] 3. Possibility of self-urination.

The deputy explained that the BAND-IT device

is a black neoprene sleeve [,] and it’s designed to slide over a person’s leg. It has Velcro strap enclosings and zipper-reinforced enclosings to prevent tampering or removal. . . . [Clothing can be worn over the device] to conceal [it]. There is a remote device that only a certified deputy on the BAND-IT system will carry and will activate. . . .

The deputy further explained that if the button on the transmitter was pressed, the device would emit a “one-second high-pitched beep that is audible to most” before the shock, which could be prevented by releasing the button if the wearer complied with the deputy’s commands. Weldon testified at the motion for new trial hearing that he was not able to focus on jury selection or during witnesses’ testimony because he was worried about activating the shock device.

In Georgia, a trial court has power “[t]o preserve and enforce order in its immediate presence and, as near thereto as is necessary, to prevent interruption, disturbance, or hindrance to its proceedings.” “ ‘It is well established that the use of extraordinary security measures to prevent dangerous or disruptive behavior which threatens the conduct of a fair and safe trial is within the discretion of the trial court.’ ” Our Supreme Court has held that a trial court has discretion to require a defendant to use a remote electronic security device worn under clothing and not visible to jurors if the use of the device is warranted and the defendant fails to show that he was harmed by its use. “To demonstrate error, the defendant must show that the security measure utilized was so inherently prejudicial as to pose an unacceptable threat to his right to a fair trial.”

Here, the trial court explained that based upon the nature of the charges against Weldon (which included multiple incidents of pointing a gun at a victim or striking him or her with the gun) and its observations about his behavior in the courtroom, it required Weldon to use the device, which would not be visible to the jury. The deputy explained the device to Weldon, and the trial court repeatedly assured Weldon that he would be permitted to move around the courtroom to view the evidence without the risk of shock. Under these circumstances, we find no abuse of discretion in the trial court’s requirement that Weldon wear the security device.* Furthermore, Weldon has failed to establish “that the security measure utilized during his trial was so inherently prejudicial as to pose an unacceptable threat to his right to a fair trial.” Although Weldon testified that he was unable to focus at trial, he failed to specifically indicate how his apprehension about the device impeded his ability to participate in his defense, thereby failing to demonstrate harm. Thus, we find no basis for reversal.

2. Weldon also challenges the sufficiency of the evidence. When reviewing the sufficiency of the evidence on appeal,

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. This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Once a defendant has been found guilty of the crime charged, the factfinder’s role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution.

Decided July 7, 2014

So viewed, the evidence presented at trial and summarized above was sufficient to authorize the jury to find Weldon guilty beyond a reasonable doubt of the crimes for which it returned guilty verdicts. Weldon’s arguments that his convictions should be reversed because not every victim testified or was able to identify him at trial or in a photographic lineup are without merit. “The testimony of a single witness is generally sufficient to establish a fact.” “Furthermore, . . . the testimony of a victim is not required to sustain a conviction where there is other evidence that the defendant committed the acts which establish the elements of the offense.” Here, Weldon was identified as one of the assailants in each of the restaurant robberies by a witness either in a lineup or at trial. And the jury viewed the videotape of the robbery of the cellular phone store, and Weldon admitted that he was depicted on the tape. Given this evidence, as well as the testimony of Weldon’s co-defendant, the trial court did not err by denying Weldon’s motion for a new trial based on his claim that the evidence was insufficient.

Judgment affirmed.

Miller and Dillard, JJ., concur.

G. Richard Stepp, for appellant.

Daniel J. Porter, District Attorney, Thomas L. Williams, Assistant District Attorney, for appellee.

       OCGA § 16-8-41 (a).

       OCGA § 16-5-21 (b) (2).

       OCGA § 16-10-25. Weldon was found not guilty of kidnapping, and the trial court directed a verdict as to two additional counts of armed robbery.

       See Short v. State, 234 Ga. App. 633, 634 (1) (507 SE2d 514) (1998).

       The customer who identified Weldon at trial testified that he looked “[v] ery familiar,” hut she was not certain about her identification.

       Park could not recall if the man who demanded his wallet was the same man who pointed a gun at his head.

       OCGA § 15-1-3 (1).

        Nance v. State, 280 Ga. 125, 126-127 (3) (623 SE2d 470) (2005), quoting Young v. State, 269 Ga. 478, 478-479 (2) (499 SE2d 60) (1998), which was overruled on other grounds by Whitehead v. State, 287 Ga. 242, 249 (2) (695 SE2d 255) (2010).

       See Nance, 280 Ga. at 127 (3); Young, 269 Ga. at 479 (2); Brown v. State, 268 Ga. 354, 359 (7) (490 SE2d 75) (1997).

       (Punctuation omitted.) Brashier v. State, 299 Ga. App. 107, 108 (1) (681 SE2d 750) (2009), quoting Young, 269 Ga. at 479 (2).

       See Nance, 280 Ga. at 126-127 (3); Young, 269 Ga. at 479 (2); Brashier, 299 Ga. App. at 108 (1). Compare United States v. Durham, 287 F3d 1297, 1308-1309 (D) (11th Cir. 2002) (reversing conviction of defendant required to wear a stun belt at trial because the belt hampered “the defendant’s ability to participate meaningfully” in his defense, and the trial court’s decision to require the belt was not supported by the record, as there was no evidence regarding the belt, the trial court made no factual findings regarding accidental activation of the belt, and the court failed to consider less restrictive alternatives).

       (Punctuation omitted.) Young, 269 Ga. at 479 (2).

       See id.; Lovelace v. State, 262 Ga. App. 690, 697 (7) (586 SE2d 386) (2003).

       (Citations omitted; emphasis in original.) Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979).

       Former OCGA § 24-4-8. (Because this case was tried in 2010, we apply the former version of the Georgia Evidence Code. See Ga. L. 2011, p. 99, § 101 (“[The revised Evidence Code] shall become effective on January 1, 2013, and shall apply to any... trial commenced on or after such date.”)).

        Wickerson v. State, 321 Ga. App. 844, 850 (1) (743 SE2d 509) (2013).

       The jury was entitled to reject Weldon’s version of his involvement in the robbery of the phone store. See Rudison v. State, 322 Ga. App. 248, 250 (1) (744 SE2d 444) (2013).

       See Jackson, 443 U. S. at 319 (III) (B); Shelley v. State, 255 Ga. App. 360, 361 (1) (565 SE2d 567) (2002).


author: Miller, Judge.

text:
    A14A0150.
    ADAME v. HERNANDEZ.
    (761 SE2d 402)
   Miller, Judge.

This case arises from the trial court’s final order legitimating Jose Roberto Adame’s twin daughters. The trial court’s order also granted joint legal custody of the twins to Adame and their mother, Maria Hernandez; set out a detailed visitation schedule for both parents; and modified an existing child support order that was initiated through the Georgia Department of Human Resources Office of Child Support Enforcement (“DHR”). Adame appeals from the denial of his motion for new trial, contending that the trial court erred in (1) awarding primary physical custody of the twins to Hernandez; (2) allowing the joinder of DHR as a necessary party; and (3) calculating his child support obligation. For the following reasons, we affirm the trial court’s award of custody and its finding that DHR was a necessary party to this case. We reverse the trial court’s child support award and remand this case with direction for the trial court to enter a child support award that includes written findings of fact with regard to the twins’ best interest.

When reviewing a child custody decision, this [Cjourt views the evidence presented in the light most favorable to upholding the trial court’s order. As we consider [Adame’s] claims, we are mindful that the Solomonic task of assigning the custody of children lies squarely upon the shoulders of the judge who can see and hear the parties and their witnesses, observe their demeanor and attitudes, and assess their credibility.

(Footnote omitted.) Mitcham v. Spry, 300 Ga. App. 386 (685 SE2d 374) (2009).

So viewed, the record reflects that the twins were born on August 12,2008. Starting in December 2008, Adame was ordered to pay $149 per week in child support in an active case involving DHR.

In October 2011, Adame filed a petition for legitimation in which he sought custody of the twins. Adame also sought an order terminating his existing child support obligation and requiring Hernandez to pay reasonable child support. Hernandez answered the petition and filed a counterclaim seeking to modify Adame’s existing child support obligation.

In April 2012, the trial court entered a temporary order of legitimation and custody, providing for joint legal custody of the twins, awarding primary physical custody to Hernandez and granting weekly overnight visitation to Adame at his parents’ home. The trial court’s order, however, reserved the issue of child support until the final hearing in this case.

That same month, Hernandez filed a motion for joinder of DHR as a necessary party with an interest in the case pursuant to OCGA § 19-11-6 (c). On August 7, 2012, the trial court granted the motion over Adame’s objection, and DHR was made a party defendant in this case.

The final hearing in this case was held in October 2012. Hernandez testified at the hearing that she has sole custody of her three other children, who live with her and whom she supports with no other assistance. Hernandez further testified that she usually works from 7:00 p.m. to 7:00 a.m. on Monday, Tuesday and Wednesday, as well as some Thursdays. Hernandez pays $120 to $130 per week for child care for all five of her children.

Adame testified at the final hearing that he works between 32 and 48 hours per week at his first job, usually from 7:00 a.m. to 7:00 p.m. on Friday, Saturday and Sunday. Adame stated that he also works an additional 20 hours per week at a second job, usually during the day on Monday and Tuesday. Adame testified that he lives with his mother and younger brother, and Adame’s mother helps care for the twins.

Following the hearing, the trial court entered its final order legitimating the twins and granting joint legal custody of the twins to Adame and Hernandez. The trial court further ordered Adame to pay $814 per month in child support. In determining child support, the trial court specifically found that Adame currently works two jobs, and has a gross monthly income of $3,149.72 per month; Adame pays $152.08 per month for medical insurance on the children; and the prior DHR support order was based on Adame’s previous gross monthly income of $2,349.

1. Adame contends that the trial court erred in awarding custody of the twins to Hernandez. Specifically, Adame argues that the trial court should have adopted his suggested parenting plan due to his work schedule. We discern no error.

In all cases in which the custody of any child is at issue between the parents, there shall be no prima-facie right to the custody of the child in the father or mother. There shall be no presumption in favor of any particular form of custody, legal or physical, nor in favor of either parent. Joint custody may be considered as an alternative form of custody by the judge and the judge at any temporary or permanent hearing may grant sole custody, joint custody, joint legal custody, or joint physical custody as appropriate.

OCGA § 19-9-3 (a) (1). When considering a dispute regarding the custody of a child, “[a] trial court has very broad discretion, looking always to the best interest of the child.” (Citation and punctuation omitted.) Autrey v. Autrey, 288 Ga. 283, 285 (4) (702 SE2d 878) (2010). This Court “will not interfere unless the evidence shows a clear abuse of discretion, and where there is any evidence to support the trial court’s finding, [we] will not find there was an abuse of discretion.” (Citation and punctuation omitted.) Id.

Here, the trial court’s final order specifically states:

The parties shall have joint legal custody of [the twins]. As such, the parents shall consult with each other on major decisions concerning the children including but not limited to the children’s education, health care, and religious training. In the event the parties cannot agree, then Mother shall have the authority to make the final decision. The mother’s residence shall determine the school district for the children.

Contrary to Adame’s contention, the trial court’s order does not mention primary physical custody. The trial court had authority to award joint legal custody as an alternative to granting primary physical custody. See OCGA § 19-9-3 (a) (1). Moreover, Adame admits that the twins’ welfare and best interests require an award of joint legal custody to both parents. Accordingly, Adame has not shown that the trial court abused its discretion in awarding joint legal custody of the twins. Nevertheless, to the extent that Adame challenges the visitation provisions in the trial court’s final order, we address his argument that the trial court abused its discretion in failing to adopt his parenting plan.

Here, the visitation schedule set out in the trial court’s order provides that, at all times, the parties may mutually agree upon visitation provided that such visitation does not interfere with the twins’ school or homework. The visitation schedule also provides for set visitation where the parties do not otherwise agree, including a provision that Adame shall have weekly visitation with the twins from 11:00 a.m. on Tuesday until 5:00 p.m. on Thursday. Moreover, the visitation provisions in the final order are nearly identical to the provisions in the trial court’s temporary order which Adame does not challenge on appeal. Finally, the evidence supports the minimum weekly visitation provided for in the trial court’s final order, which generally corresponds with Adame’s and Hernandez’s work schedules. Notably, the evidence shows that Hernandez works the night shift on Monday, Tuesday and Wednesday, while Adame works as much as 68 hours per week on Friday through Tuesday. Accordingly, Adame has not shown that the trial court abused its discretion.

2. Adame contends that the trial court erred in joining DHR as a necessary party. We disagree.

OCGA § 9-11-19, the Civil Practice Act rule for joinder of per sons needed for just adjudication, provides:

(a) Persons to be joined if feasible. A person who is subject to service of process shall be joined as a party in the action if: (1) In his absence complete relief cannot be afforded among those who are already parties; or (2) He claims an interest relating to the subj eet of the action and is so situated that the disposition of the action in his absence may: (A) As a practical matter impair or impede his ability to protect that interest; or (B) Leave any of the persons who are already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest.

Here, the record shows that starting in December 2008, Adame was ordered to pay $149 per week in child support in a case involving DHR. DHR had an interest in this case, and its absence could have impaired or impeded its ability to protect that interest. See Ga. Dept. of Human Svcs. v. Wright, 293 Ga. 330, 331 (745 SE2d 628) (2013) (Department of Human Services is subrogated to right of child or person having custody to recover any payments ordered by court of this State). Accordingly, Adame failed to show that the trial court abused its discretion in joining DHR as a party defendant.

3. Adame contends that the trial court erred in modifying his existing support obligation. We agree in part, because the trial court failed to make the required finding that an adjustment for Hernandez’s qualified children was in the twins’ best interest.

“The guidelines for computing the amount of child support are found in OCGA § 19-6-15andmustbeconsideredbyanycourtsetting child support.” (Citation and punctuation omitted.) Stowell v. Huguenard, 288 Ga. 628 (706 SE2d 419) (2011). “The child support guidelines . . . shall apply as a rebuttable presumption in all legal proceedings involving the child support responsibility of a parent.” OCGA § 19-6-15 (c) (1).

The child support guidelines specifically provide that the “[gjross income of each parent shall be determined in the process of setting the presumptive amount of child support and shall include all income from any source[.]” OCGA § 19-6-15 (f) (1) (A). The guidelines include a child support obligation table which shall be used in determining the parents’ basic child support obligations. OCGA § 19-6-15 (a) (7), (o). The guidelines provide that additional expenses for a child’s health care insurance premiums and work-related child care costs shall be included in the calculations to determine child support. OCGA § 19-6-15 (h). The guidelines also contemplate an adjustment to a parent’s monthly gross income based on a “[t]heoretical child support order for qualified children, if allowed by the court.” OCGA § 19-6-15 (b) (2) (C), (f) (1) (A).

A qualified child is a child (1) for whom the parent is legally responsible and who lives in the parent’s home; (2) whom the parent is supporting; (3) who is not otherwise subject to a preexisting child support order; and (4) who is not the child before the trial court in the case under consideration. OCGA § 19-6-15 (a) (20). “Qualified children shall not include ... minors in the home that the parent has no legal obligation to support.” Id. Adjustments to gross income for qualified children must be based on the best interest of the child for whom child support is being awarded. OCGA § 19-6-15 (f) (5) (C).

Here, in its final order, the trial court specifically found that Hernandez had a gross monthly income of $2,453.97, and she pays $52 per week for child care for the twins. The trial court also specifically found that Hernandez has three qualified children.

With regard to Adame, the trial court specifically found that he has a gross monthly income of $3,149.72 and he pays $152.08 per month for the twins’ medical insurance. The trial court also found that the previous child support order through DHR was based on the father’s then gross monthly income of $2,349 per month. Accordingly, the trial court concluded that Adame’s financial status has substantially increased since that time.

(a) Adame argues that, in modifying his child support obligation, the trial court erroneously included his part-time income, and erred in allowing an adjustment for Hernandez’s child care expenses.

As set forth above, the child support guidelines specifically provide that the gross income of each parent shall include income from all sources and that work-related child care costs shall be included in the calculations to determine child support. OCGA § 19-6-15 (f) (1) (A), (h). Accordingly, the trial court did not abuse its discretion in considering Adame’s part-time income or in allowing an adjustment for child care expenses.

(b) Adame also argues that the trial court erred in granting Hernandez an adjustment for the qualified children living in her home.

Here, the trial court’s order specifically found that Hernandez had three qualified children, and the evidence supports this finding. Notably, Hernandez testified at the hearing that she has sole custody of her three other children, who live with her and whom she supports with no other assistance.

In ordering Adame to pay increased child support in the amount of $814 per month, however, the trial court made no specific findings with regard to the actual monetary adjustment, if any, it made for Hernandez’s qualified children. More importantly, the trial court failed to find that such an adjustment was in the twins’ best interest. Because the child support guidelines require that an adjustment for qualified children must be based on the best interest of the children for whom child support is awarded, and the trial court failed to make this required finding, we have no choice but to reverse and remand the case to the trial court so that it can make the proper findings to support its award. See Brogdon v. Brogdon, 290 Ga. 618, 623 (5) (b) (723 SE2d 421) (2012) (written findings are mandatory under the revised child support guidelines).

(c) Adame also argues that the trial court should have considered the additional time he spends with the children in calculating his child support obligation. Pretermitting whether Adame has waived his contention by not citing any applicable authority, we note that, on remand, the trial court will have an opportunity to address this argument by setting out specific findings of fact with regard to the twins’ best interest.

In sum, we conclude that the trial court did not abuse its discretion in awarding joint legal custody of the twins to both parents, or in setting out the visitation schedule. We also find that the trial court did not abuse its discretion in adding DHR as a party or modifying Adame’s child support obligation based on his part-time income and Hernandez’s child care expenses. We reverse the trial court’s final order to the extent that it modified Adame’s child support, however, and remand this case for entry of an order that includes specific written findings of fact stating that an adjustment for qualified children, if any, is in the twins’ best interest.

Decided July 7, 2014.

Perrotta & Cahn, James A. Meaney III, for appellant.

Cynthia L. Gibson, Sarah E. Morris, for appellee.

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

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

       The motion requested joinder of the Conasauga office of the Georgia Division of Child Support Services. The Division of Child Support Services is a part of DHR. Accordingly, the trial court effectively ordered joinder of DHR as a party defendant.

       Adame generally cites to OCGA § 19-6-15 (1), which is inapplicable in this case because that statutory provision applies to cases of split parenting, where the father has custody of one child and the mother has custody of another child.


author: Branch, Judge.

text:
    A14A0357.
    CALLAWAY v. GOODWIN.
    (761 SE2d 407)
   Branch, Judge.

Estelle Carroll Callaway sued Harmony Lynn Goodwin for injuries arising from a car accident that took place on August 10, 2010. Callaway filed suit on August 7, 2012, three days before the statute of limitation expired, and the Walton County Sheriff’s Office perfected service on August 22, 2012. Goodwin subsequently moved to dismiss Callaway’s action based on the fact that she had been served after the limitation period had expired, and asserting that Callaway had failed to act diligently to ensure service in a timely fashion. The trial court granted that motion, and Callaway now appeals, arguing that the factual finding on which the trial court based its decision is unsupported by the record, and that the trial court therefore abused its discretion in dismissing her case. We agree with Callaway, and we therefore reverse.

When a complaint is filed within the statute of limitation, but service is not made within five days or within the period of limitation, the plaintiff must establish that service was made in a reasonable and diligent manner in an attempt to ensure that proper service is made as quickly as possible.

Akuoko v. Martin, 298 Ga. App. 364-365 (1) (680 SE2d 471) (2009) (punctuation and footnote omitted). “The trial court has discretion to determine whether a plaintiff has exercised sufficient diligence to effect service after the running of the statute of limitation, and we will not disturb the court’s decision absent an abuse of that discretion.” Id. at 365 (1) (punctuation and footnote omitted).

Callaway filed her complaint for personal injury on August 7, 2012. With her complaint, Callaway filed a properly addressed summons for Goodwin and a check for the service fee to obtain service through the sheriff. The two-year statute of limitation expired on August 10, 2012, three days after Callaway filed suit. The Walton County sheriff perfected service on Goodwin 12 days later, on August 22, 2012.

After the case had been pending for six months, Goodwin filed a motion to dismiss. Goodwin alleged that, because service was not perfected within either the statute of limitation or the five-day grace period available under OCGA § 9-11-4 (c), Callaway was required to prove that she had used due diligence in serving Goodwin, but that Callaway had failed to do so. Callaway disputed this assertion, pointing to the fact that she had filed a properly addressed summons and tendered the service fee at the same time she filed her complaint. The trial court held a hearing on the motion to dismiss and issued an order granting Goodwin’s motion on August 13, 2013. In its order of dismissal, the trial court found that Callaway had paid “the filing fees only,” and not the service fee, at the time she filed the complaint and summons (emphasis in original). The trial court therefore held that Callaway’s lack of diligence had contributed to the delay in service on Goodwin and dismissed her lawsuit. This appeal followed.

The undisputed factual record in this case shows that Callaway did in fact pay the filing fees when she filed the properly addressed summons to be served upon Goodwin. In her response to Goodwin’s motion to dismiss, Callaway presented the trial court with a copy of the $50.00 check for the service fee, made payable to “Sheriff of Walton County, Georgia” and dated July 31, 2012, and a copy of her attorney’s bank statement, showing that the check cleared his bank on August 30, 2012. Goodwin has not disputed this evidence.

Decided July 7, 2014.

James W. Clements III, for appellant.

Worsham, Cor si, Scott &Knighten, Nicholas T. Protentis, Alisa S. Connell, for appellee.

Apart from its unsupported finding that Callaway failed to pay the service fee, the trial court provided no further justification for its conclusion that Callaway lacked due diligence in serving Goodwin, nor does the record show any. Where a plaintiff has elected to serve a defendant via the sheriff’s office, has provided the sheriff with a properly addressed summons, and has received no notice of a problem with service, this Court has held that reliance on the sheriff to perfect service in a timely manner is not, by itself, a reason to find that due diligence was lacking. Jackson v. Nguyen, 225 Ga. App. 599 (484 SE2d 337) (1997) (holding that the plaintiff “should not be penalized for reasonably relying upon the sheriff to fulfill his duty to serve properly addressed process papers”) (citations omitted).

As the foregoing demonstrates, the trial court’s order of dismissal was based upon an unsupported factual finding. Accordingly, we reverse that order.

Judgment reversed.

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

       Callaway also sued Jonathan Lee Davis, but he was never served, and she does not appeal the dismissal of her suit against him.

       OCGA § 9-11-4 (c) provides, in relevant part: “Process shall be served by: (1) The sheriff of the county where the action is brought. . . within five days from the time of receiving the summons and complaint; but failure to make service within the five-day period will not invalidate a later service.” “[T]he Supreme Court has clarified that OCGA § 9-11-4 (c) imposes a five-day burden on the process server, not the plaintiff.” Jackson v. Doe, 243 Ga. App. 210, 211 (532 SE2d 761) (2000) (citing Ga. Farm Bureau Mut. Ins. Co. v. Kilgore, 265 Ga. 836, 838 (462 SE2d 713) (1995)).

       Once the plaintiff becomes aware of a problem with service, “his duty is elevated to an even higher duty of the greatest possible diligence to ensure proper and timely service.” Akuoko, 298 Ga. App. at 365 (footnote omitted). However, Goodwin has pointed to no evidence that Callaway was notified of any problem with service, so cases involving the “greatest possible diligence” standard are distinguishable. In Ziegler v. Hambrick, 257 Ga. App. 356 (571 SE2d 418) (2002), cited by Goodwin, the plaintiff knew the marshal’s office was having trouble serving the defendant due to a heavy workload, but the plaintiff failed to provide evidence that she took any steps to ensure timely service. Id. at 357. The defendant was served twenty-one days after the plaintiff filed her renewal action, and ten days after the renewal period expired. Id. at 356. This Court found that the trial court did not abuse its discretion when it granted the defendant’s motion to dismiss. Id. at 357. Cases involving improperly addressed summonses are similarly inapplicable because Callaway provided the sheriff with the proper address to serve Goodwin. See Parker v. Silviano, 284 Ga. App. 278 (643 SE2d 819) (2007) (plaintiffs supplied process server with an incorrect address and failed to set forth any evidence supporting their claim of due diligence).


text:
    A14A0366.
    SMITH et al. v. TENET HEALTHSYSTEM SPALDING, INC. et al.
    (761 SE2d 409)
   DOYLE, Presiding Judge.

In this slip and fall case, plaintiffs Bettie Sue Smith and David Smith, Sr., appeal from the grant of summary judgment to Hospital Housekeeping Systems, L.P., and Hospital Housekeeping Systems, Ltd. (L.P.) (collectively “HHS”) and Tenet HealthSystem Spalding, Inc., d/b/a Spalding Regional Medical Center (“Spalding”). The plaintiffs contend that summary judgment was not warranted because genuine issues of material fact remain as to the defendants’ liability. For the reasons that follow, we reverse.

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. A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

So viewed, the record shows that Bettie Sue Smith was at Spalding to visit her daughter-in-law’s grandmother, who was hospitalized with an illness. That day, at approximately 3:55 p.m., Miranda Fonfield, an employee of HHS, which provided cleaning services to Spalding, cleaned and restocked her janitorial cart at the end of her shift. Fonfield’s cart was located in a public hallway outside a janitorial closet because the closet was too small to accommodate cleaning the cart inside. The hall floor is tiled, with no carpeting, and there was no “wet floor” warning sign posted. Fonfield’s end-of-shift process included removing the mop water bucket, replacing the pads on “micro mops,” refilling liquid disinfectant containers, and wiping down her cart with a damp rag. Approximately ten minutes after Fonfield finished cleaning the cart and pushed it into the closet, Smith walked down the hallway and slipped and fell in the area where Fonfield had been cleaning her cart. As a result of the fall, Smith suffered a broken hip requiring surgery the next day.

Smith sued Spalding and HHS seeking special and general damages. Following discovery, the defendants filed motions for summary judgment, amending them after Smith’s discovery responses, arguing that Smith failed to present sufficient evidence to create a genuine issue of material fact as to their liability. After a hearing, the trial court granted both motions for summary judgment, and this appeal followed.

1. The Plaintiffs contend that the trial court erred by granting summary judgment to HHS because there is sufficient evidence in the record to create a factual question as to the negligence of HHS’s employee. We agree.

At the summary judgment stage, the trial court, as well as this Court on appeal, must view all of the evidence in the light most favorable to the nonmovant, in this case, the Smiths. When addressing summary judgment motions, every court

must remain mindful of the jury’s role in the process to resolve any and all conflicts in the evidence. It is the jury, not the court, which is the fact-finding body. [The jury] weighs the contradictory evidence and inferences, judges the credibility of witnesses, receives expert instructions, and draws the ultimate conclusion as to the facts. The very essence of its function is to select from among conflicting inferences and conclusions that which it considers most reasonable. The situation is best summed up by the language of Justice Bleckley speaking for the [C]ourt, in Brown v. Matthews:[] “Truth is often dim, but is truth nevertheless. Frequently amongst the facts best proved is one which no witness has mentioned in his testimony, such fact being an inference from other facts.” From this perspective, it is preferable not to have a single trial judge stand in the shoes of the several men and women of various backgrounds who make up a jury and determine what inferences they may draw from the evidence.

For this reason, at the summary judgment stage, courts are required to “construe the evidence most favorably towards the nonmoving party, who is given the benefit of all reasonable doubts and possible inferences.”

Here, it is undisputed that Smith herself did not see any water on the floor where she fell, either before or after she fell. But she explained in deposition testimony that she was in pain, briefly lost consciousness, and was in no position to closely examine the area upon falling. Smith’s inability to personally testify as to what caused her to fall is not fatal to her case because there is other evidence permitting an inference as to the cause of her fall. The Smiths introduced the undisputed evidence of the mop water buckets being removed and the janitorial cart being wiped down with a wet rag in the same area where she fell shortly before she fell. There was testimony from Smith that she heard a nurse who came to help her immediately after she fell say, “go get some paper towels . . . there’s something wet on the floor.” Also, there was deposition testimony from Smith’s daughter-in-law, who was also at the hospital and came to help Smith after hospital staff notified her of the fall, that she noticed “something” on the floor that caused her own foot to slip when she got close to where Smith was lying. Moreover, there was testimony that shortly after Smith’s fall, janitorial staff were called to “come get the spill up,” and the worker who reported to the area noticed a wet spot on the wall where Smith fell.

When viewed in favor of Smith, this evidence supports an inference that her fall was caused by a foreign substance on the floor that the HHS employee could have prevented or noticed and removed. Therefore, the trial court erred by concluding that the record lacks any factual issues as to the negligence of HHS or its employee in cleaning the janitorial cart.

2. Smith likewise argues that the trial court erred by concluding that she failed to present any evidence of Spalding’s negligence. For the reasons above, we agree and reverse the grant of summary judgment to Spalding on a negligence theory.

Decided July 7, 2014.

John H. Peavy, Jr., for appellants.

Hudson & Huestis, Robert S. Huestis, Insley & Race, Kevin P. Race, Brian K. Mathis, for appellees.

With respect to Spalding’s liability under a premises liability theory, Smith

must plead and prove that: (1) the defendant had actual or constructive knowledge of the hazard; and (2) the plaintiff, despite exercising ordinary care for his or her own personal safety, lacked knowledge of the hazard due to the defendant’s actions or to conditions under the defendant’s control.

Smith may show Spalding’s constructive knowledge of the hazard by

demonstrating that (1) an employee of the defendant was in the immediate vicinity of the fall and had an opportunity to correct the hazardous condition prior to the fall, or (2) the hazardous condition had existed for a sufficient length of time that it would have been discovered and removed had the proprietor exercised reasonable care in inspecting the premises.

Here, the record contains evidence that, when viewed most favorably to Smith, shows that Spalding’s j anitorial contractor was in the immediate vicinity of the fall and had an opportunity to prevent or to correct the hazardous condition of a wet floor shortly prior to Smith’s fall. Accordingly, summary judgment was not appropriate as to Spalding’s potential liability under a premises liability theory.

Judgment reversed.

Miller and Dillard, JJ., concur.

       (Citation omitted.) Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

       Smith’s husband, David Smith, Sr., had filed his own lawsuit, and he was later added as a plaintiff in this suit.

       79 Ga. 1 (4 SE 13) (1887).

       (Citation and punctuation omitted.) Svc. Merchandise, Inc. v. Jackson, 221 Ga. App. 897, 898 (1) (473 SE2d 209) (1996).

       (Punctuation omitted.) Norfolk Southern R. Co. v. Zeagler, 293 Ga. 582, 583 (1) (a) (748 SE2d 846) (2013).

       The fact that this testimony was hearsay does not render it inadmissible, because it met the requirements for admission as res gestae. Former OCGA § 24-3-3 provides: “Declarations accompanying an act, or so nearly connected therewith in time as to be free from all suspicion of device or afterthought, shall be admissible in evidence as part of the res gestae.” “To fall within the res gestae, a statement must be contemporaneous with the main fact, but need not be precisely concurrent in point of time; it is sufficient if such declarations spring out of the transaction, if they elucidate it, if voluntary and if made at such time as reasonably to exclude the idea of design.” (Punctuation omitted.) Goldsmith v. Peterson, 307 Ga. App. 26, 31 (3) (703 SE2d 694) (2010). The statement here met these criteria. (For purposes of this appeal, we apply the former version of the Evidence Code because the summary judgment motion was made in June 2011. SeeGa. L. 2011, p. 99, § 101 (“[The revised Evidence Code] shall become effective on January 1,2013, and shall apply to any motion made or hearing or trial commenced on or after such date.”)).

       See OCGA § 51-2-5 (4) (“An employer is liable for the negligence of a contractor... [i]fthe wrongful act is the violation of a duty imposed by statute[.]”); Kroger Co. v. Strickland, 248 Ga. App. 613, 614-615 (1) (a) (548 SE2d 375) (2001) (OCGA § 51-3-1 imposes a nondelegable duty on the premises owner to exercise ordinary care to keep the premises safe for invitees; therefore a premises owner generally cannot rely on the provisions of OCGA § 51-2-4 to disclaim responsibility for the negligence of its independent contractor that rendered the premises unsafe.).

       (Punctuation omitted.) Kroger Co. v. Schoenhoff, 324 Ga. App. 619, 620 (751 SE2d 438) (2013).

       (Punctuation omitted.) Id.

       See id. at 622 (“[Wjhere the evidence raises the inference that the foreign substance was discoverable pursuant to a reasonable inspection, a jury issue arises as to whether the defendant had constructive knowledge of what [a] reasonable inspection would have revealed....”).