author: Andrews, Judge.

text:
    A11A1982.
    FULLER v. THE STATE.
    (722 SE2d 453)
   Andrews, Judge.

On appeal from his conviction for aggravated child molestation and child molestation, Charles Fuller argues that the trial court abused its discretion when it denied his motion for mistrial concerning a juror’s approach to and conversation with the victim during a lunch break. We agree and order a new trial.

“On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, with the defendant no longer enjoying a presumption of innocence.” Reese v. State, 270 Ga. App. 522, 523 (607 SE2d 165) (2004). We neither weigh the evidence nor judge the credibility of witnesses, but determine only whether, after viewing the evidence in the light most favorable to the prosecution, a “rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979).

So viewed, the record shows that in May 2005, when the victim was 12 years old, her stepfather’s brother, Charles Fuller, entered the victim’s bedroom, touched her vagina, and penetrated it with his penis. Charles also put his mouth on the victim’s privates. The victim’s stepfather, James Fuller, participated in the attack. During a previous incident, Charles had held a knife to the victim’s throat and told her that he would kill her if she told anyone about the assaults.

James and Charles Fuller were charged with rape (Count 1) and aggravated child molestation (Count 2) concerning the penetration and oral sex; Charles alone was charged with child molestation (Count 3) concerning the genital touching. A jury found Charles guilty of the lesser included offense of child molestation as to Count 1 as well as the aggravated child molestation charged in Count 2. He was acquitted of Count 3. Fuller’s motion for new trial was denied.

1. The evidence outlined above sufficed to sustain Fuller’s conviction for child molestation and aggravated child molestation. See OCGA § 16-6-4 (a), (c) (defining child molestation and aggravated child molestation); Jackson, supra.

2. Fuller argues that the trial court erred when it denied his motion for mistrial concerning a juror’s misconduct. We agree.

The record shows that after the State rested its case, the trial court indicated that it would take a break for lunch. The trial court instructed the jurors not to “allow anyone to discuss this case in your presence” nor to discuss the case amongst themselves. After the jury was excused, Fuller moved for a directed verdict, which was denied as to Counts 1 and 2 but reserved as to Count 3. Fuller then indicated that he had not yet decided whether to present evidence.

The prosecutors were eating lunch at a café when they saw a juror, who was sitting at a table nearby with three other jurors, get up from her table, approach the victim, who was sitting at another table, and say something to her. One of the prosecutors approached the juror and told her that she was not allowed to talk to the victim. The trial court was informed of these events on the parties’ return to court and examined the juror outside the presence of the rest of the jury as follows:

Q. [D]o you remember who you spoke to?
A. I can’t recall her name but I know her.
Q. Do you know what you said?
A. Oh yes.
Q. What did you say?
A. I said heh, honey, I said keep your head up, I said I’m so proud of you.
Q. [D]id you understand that you were not supposed to speak to anyone in this case?
A. Yes, I did.
Q. Why did you do that?
A. I don’t know. My heart was kinda filled at that time for her. And I thought maybe she was ashamed, you know, and that’s why I told her, hold your head up.

When the trial court asked the juror whether she was prejudiced about the case, she said that she was not; when asked whether she could reach a fair and impartial verdict, she said she could; when asked whether she had “just [been] feeling sorry for a child,” she said, “Yes, yes, yes.”

Fuller’s counsel then asked the trial court to pose specified questions on Fuller’s behalf, which it did as follows:

Q. Have you understood the instructions I’ve given the jurors throughout the course of this trial in terms of don’t discuss the case among yourselves and that sort of thing?
A. Yes, sir.
Q. You haven’t discussed this with any other jurors, have you?
A. No, unh-unh.
Q. [Y]ou haven’t reached any conclusions about the guilt or innocence of the defendant at this time, have you?
A. Oh, no, oh, no.
Q. And are you certain that you can upon hearing the instructions from the court and the evidence you’ve heard and any other evidence be fair and impartial?
A. Oh, yes. . . .
Q. Were you with other jurors when you made this statement to this witness?
A. No, I wasn’t. I was getting out food.
Q. All right, other jurors weren’t right there with you?
A. No, no, no, no.
Q. Have you and other jurors discussed any of the evidence in this case including the [victim’s] testimony and whether or not to believe her?
A. No, none whatsoever.
Q. Have you formed any opinion at this time as to whether the child was telling the truth or whether or not you would believe her? Have you formed any opinion as to that?
A. Not at this time.

Fuller moved for a mistrial on the grounds that the other jurors must have seen the other juror approach and speak to the victim and that the juror’s comments established that she had credited the victim’s testimony concerning the attacks at issue. Fuller also noted that no alternate had been named and that he would not accept a verdict from a jury of less than 12. After further argument, the trial court denied the motion.

OCGA § 15-12-164 mandates that a juror in a felony trial must be asked whether he or she has, “for any reason, formed and expressed any opinion in regard to the guilt or innocence of the accused,” or has “any prejudice or bias resting on your mind either for or against the accused.” Id. at (a) (1), (2). The statute also states that “if a juror answers any of [these questions] so as to render him incompetent or if he is found to be so by the judge, he shall be set aside for cause.” Id. at (c). See also Kim v. Walls, 275 Ga. 177, 178 (563 SE2d 847) (2002) (when a juror has expressed a bias, a trial court “must do more than ‘rehabilitate’ the juror through the use of any talismanic question” such as whether the juror can be impartial); Ivey v. State, 258 Ga. App. 587, 592 (2) (574 SE2d 663) (2002) (“lengthy and repeated” questioning of a juror was “ ‘more an instruction on the desired answer than a neutral attempt to determine the juror’s impartiality’ ”) (citation omitted).

“When irregular juror conduct is shown, there is a presumption of prejudice to the defendant, and the prosecution carries the burden of establishing beyond a reasonable doubt that no harm occurred.” Holcomb v. State, 268 Ga. 100, 103 (2) (485 SE2d 192) (1997). To upset a jury verdict, the misconduct must have been “so prejudicial that the verdict is deemed inherently lacking in due process.” (Punctuation and footnote omitted.) Id.; see also Jones v. State, 282 Ga. 47, 50 (3) (644 SE2d 853) (2007) (“the type of ‘irregularity’ that gives rise to ... a presumption of prejudice involves juror misconduct that has the potential to injure a defendant’s due process rights”). “[A]buse of discretion is the standard applied on appeal to a trial court’s decision whether or not to replace a juror.” State v. Clements, 289 Ga. 640, 645 (1), n. 5 (715 SE2d 59) (2011).

Well over a century ago, in Shaw v. State, 83 Ga. 92 (9 SE 768) (1889), the Supreme Court of Georgia reversed a trial court’s denial of a defendant’s motion for mistrial when the bailiff and jurors had attended an evening prayer meeting conducted by the prosecutor even in the absence of evidence that any discussion of the case took place there. As it did so, the Court expressed the law’s concern for the isolation of a jury after its empanelment in a criminal case:

[The law] contemplates that no outside influence shall be brought to bear on the minds of the jury, and that nothing shall occur outside of the trial which shall disturb their minds in any way; that the minds of the jury shall be entirely occupied with the consideration of the case which they are sworn to try.

Id. at 100. Thus in Golden v. State, 63 Ga. App. 765, 766 (12 SE2d 108) (1940), this Court relied on Shaw to hold that a trial court abused its discretion in failing to grant a motion for mistrial when the victim’s widow approached a juror, shook his hand, and asked “how he and his wife were getting along.” Id. at 766. The juror replied that “[they] were getting along all right.” Id. This Court held that even though neither the trial judge nor the appellate court “can know whether the conduct of the wife of the deceased . . . aroused [the juror’s] sympathy for her and influenced his conduct,” the juror committed harmful misconduct when he received and responded to this greeting. Id. at 768.

Citing Golden, we also granted a new trial in Hendricks v. State, 108 Ga. App. 259 (132 SE2d 845) (1963) (overruled on other grounds, State v. Collins, 201 Ga. App. 500 (411 SE2d 546) (1991)), in which a juror admitted to having lunch with a witness during the progress of the trial and where the witness testified that she had “probably” discussed the case with that juror before the trial. 108 Ga. App. at 259-260. Likewise, in Lamons v. State, 255 Ga. 511 (340 SE2d 183) (1986), the Supreme Court of Georgia granted a defendant a new trial when the chief prosecuting witness, a detective, admitted that he had developed a “confidential” and “unique” relationship with a juror who called him during trial to inform on her ex-boyfriend, even though their conversation had not touched on the case at hand. Id. at 512-513. Citing Shaw, the Court held that “a conclusive statement by the juror that she was not influenced [by the contact] is insufficient to prove lack of harm” to the defendant, such that even if the officer and the juror “acted with the best intentions,” a new trial was necessary. Id. at 513. More recently, in Mullins v. State, 241 Ga. App. 553 (525 SE2d 770) (1999), this Court reversed a trial court’s denial of a defendant’s motion for mistrial where there was some evidence that one of two deliberating jurors had expressed agreement with an acquaintance’s expression that the defendants “would not be in court if they were not guilty.” Id. at 555 (2).

Here, and during a break in the proceedings but before the close of evidence, a juror initiated a conversation with the testifying victim in the case, such that the juror alone had access to the victim’s reaction, silent or otherwise, to her expressions of support. See Turpin v. Todd, 268 Ga. 820, 823 (1) (c) (493 SE2d 900) (1997) (due process concerns are raised when communications to a jury are made outside the presence of defendant and his counsel). The trial court never asked the juror what the victim’s response had been and also failed to examine the victim or the other three jurors, with the result that the record contains only one account — the wayward juror’s — of what occurred. Even accepting the juror’s account as well as the trial court’s conclusion that she intended only to express sympathy for the victim, the juror’s unauthorized contact with a witness was intentional rather than accidental (like the jurors’ attendance of the prayer meeting in Shaw)-, established a personal relationship with that witness (like that between the widow and juror in Golden and between the police officer and juror in Jones)-, and included statements reasonably construed as expressing a judgment concerning the events at issue (like the jurors’ expressions of agreement with the acquaintance’s opinion in Mullins). Finally, there is no evidence to suggest that Fuller has waived his right to a verdict from an unbiased jury of 12. Compare Mullins, 241 Ga. App. at 562 (2) (a) (Eldridge, J., dissenting) (noting defendants’ failure to renew their motion for mistrial after delivery of curative instruction concerning juror misconduct); id. at 564-565 (Barnes, J., dissenting) (noting defendants’ failure to object after removal of offending jurors).

Decided January 27, 2012.

James C. Garner, for appellant.

L. Craig Fraser, District Attorney, Chad A. Pritchett, Assistant District Attorney, for appellee.

Under these circumstances, no rehabilitation of the juror was possible, and the State has failed to show that Fuller was not harmed by the misconduct. The trial court thus abused its discretion when it denied Fuller’s motion for mistrial. Lamons, 255 Ga. at 512; Mullins, 241 Ga. App. at 556-557 (2); Hendricks, 108 Ga. App. at 260; Golden, 63 Ga. App. at 768. Compare Jones, supra, 282 Ga. at 50 (3) (defendant did not show prejudice where sick juror was attended to by physician who was also a witness in the case, and where there was “no discussion by anyone of the case on trial”); Brown v. State, 309 Ga. App. 511, 517 (3) (710 SE2d 674) (2011) (trial court did not abuse its discretion in denying motion for mistrial when juror’s opinion as to defendant’s guilt was not expressed to any other jurors and when offending juror was dismissed before opening statements); Hodges v. State, 249 Ga. App. 268, 270 (2) (547 SE2d 386) (2001) (trial court did not abuse discretion in denying motion for mistrial where juror’s phone call to witness on night before witness’s testimony did not concern the merits of the case, and when the witness “immediately told the juror he could not speak with her”); Hudson v. State, 166 Ga. App. 660, 661 (1) (305 SE2d 409) (1983) (one juror’s allegation concerning another juror’s contact with the victim was insufficient to show that the misconduct contributed to the conviction).

Judgment reversed.

Phipps, P. J., and McFadden, J., concur.


source: Caselaw Access Project

author: Ellington, Chief Judge.

license: Public Domain

text:
    A11A2345.
    PENNINGTON v. THE STATE.
    (723 SE2d 13)
   Ellington, Chief Judge.

A Gwinnett County jury found Derek Pennington guilty beyond a reasonable doubt of false imprisonment, OCGA § 16-5-41 (a); burglary, OCGA § 16-7-1 (a); and aggravated assault, OCGA § 16-5-21 (a) (2). He appeals from the denial of his motion for new trial, contending that the evidence was insufficient to support his convictions and that he received ineffective assistance of trial counsel. For the following reasons, we affirm.

1. Pennington contends that the State presented insufficient evidence to support his convictions, arguing that the victim’s pretrial statements to police officers and her trial testimony were inconsistent, there was insufficient evidence to identify him as the perpetrator of the attack, and the testimony of one witness was improperly influenced by the prior testimony of other witnesses.

When a criminal defendant challenges the sufficiency of the evidence supporting his or her conviction, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Citation omitted; emphasis in original.) Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979). It is the function of the jury, not this Court, to resolve conflicts in the testimony, weigh the evidence, and draw reasonable inferences from the evidence. Id. “As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.” (Citation and punctuation omitted.) Miller v. State, 273 Ga. 831, 832 (546 SE2d 524) (2001). Viewed in this light, the record reveals the following facts.

In May 2006, the female victim lived with her three children in a Lawrenceville duplex, located in Gwinnett County. Pennington lived with his brother, who had a serious chronic illness, and their mother in a duplex that was next to the victim’s. The victim met Pennington two or three months before the incident at issue here, and he subsequently went to her home two times to ask for $10 so that he could buy gas. Both times, Pennington asked the victim to have dinner with him, but the victim declined, telling him that she had a boyfriend.

At approximately 3:00 a.m. on May 6, 2006, the victim suddenly woke up to find a man sitting on top of her, straddling her, and holding down her arms. Because her television set was on and provided some ambient light and the attacker’s face was no more than 18 inches from hers, she was able to see him and observed that he had a gray beard, had tattoos on his arm, smelled heavily of beer, and had a deep voice. She recognized the man as her neighbor, Pennington. Pennington put a large towel over her face and wrapped it behind her head, tightening it so that the victim felt as though she was suffocating. As the victim struggled, she called out that she knew who he was and asked him to leave because her children were in the next room. Pennington repeatedly told her not to look at him and to be quiet, but when she insisted that she knew him, he let go of the towel and left the room.

Immediately after the attack, the victim discovered that her back door was wide open. She ran back to her bedroom to call 911 and discovered that her cell phone had been taken off her nightstand. She called the police on a different phone, and, when they arrived, she showed them that it appeared the intruder had come in through her kitchen window, which did not have a lock and had been opened by someone else after she went to bed, and had left through her back door. While talking to the officers, she found her cell phone on the kitchen counter, near the window. On the porch just outside the back door, the officers found a plastic bag that contained what was later determined to be cocaine residue. According to the victim, she told the officers that Pennington was her attacker and that the cocaine was not hers, but they did not appear to believe her and left after only a few minutes, without collecting any physical evidence, taking photographs, or checking for fingerprints.

The victim immediately called her sister, told her about the attack, and said that she knew the attacker. The sister testified that the victim was crying and was upset because the police officers were leaving, even though they had done nothing about the attack. The victim’s sister then called the officers’ supervisors and the police precinct to complain about the officers’ response to her sister’s 911 call; she also called her (and the victim’s) father.

In the meantime, after calling her sister, the victim looked around her home and realized that Pennington had taken some of her jewelry and $130 in cash from her wallet, which had been taken out of her purse and thrown on her bedroom floor. She also found a cigarette lighter on the back porch, close to where the officer had found the plastic bag containing cocaine residue. At approximately 3:45 a.m., the victim’s father arrived at the victim’s home and nailed the kitchen window shut. About 15 minutes later, the father saw a thin, white male wearing a white t-shirt jump into a black van with another person and leave Pennington’s house very quickly. The van returned at about 4:30 a.m.

In response to the victim’s family’s complaints to the police precinct, the same officers returned to the victim’s home at about 5:30 a.m., almost two and one half hours after the attack. They took the victim’s written statement, and she updated them about what she had found, showed them the lighter, and told them it was not hers. Even so, according to the victim, they picked up the lighter and “handled it all over” without any apparent attempt to protect or secure possible fingerprints.

As the officers were leaving the victim’s home at approximately 5:45 a.m., Pennington was standing in front of his duplex with his dog. The victim saw him and told the officers that he was her attacker. Pennington had a gray beard and tattoos on his arm and, thus, matched the victim’s description of her attacker. The officers approached and talked to Pennington; according to the officers, they did not notice the odor of alcohol on Pennington, who appeared to them to be sober. In response to the officers’ questions, Pennington said that his brother had become very ill during the night and that he started driving his brother to the hospital in his van. At some point during the drive, which typically takes less than ten minutes, Pennington’s brother started to feel better, and they turned the van around and went home. As a consequence, there was no documentation of a hospital visit to corroborate Pennington’s claim.

About seven hours after the attack, an investigator presented the victim with a photographic lineup to see if she recognized her attacker; she chose the photograph of Pennington. The investigator met with Pennington later that day and conducted a videotaped interview; the videotape was played for the jury. Immediately after the interview, the investigator placed Pennington under arrest.

At trial, in support of his alibi defense, Pennington called his brother as a witness. According to the brother, at some point between 1:00 a.m. and 3:00 a.m. on May 6, 2006, he experienced severe stomach pain and was spitting up blood. Pennington started driving him to the hospital, but, about halfway there, his brother started feeling better, so they turned around and went back home.

Although Pennington argues on appeal that there was insufficient credible and admissible evidence to show that he was the victim’s attacker and to support his convictions, determinations of witness credibility and the weight to give the evidence presented is solely within the province of the jury. Jackson v. Virginia, 443 U. S. at 319 (III) (B). Here, defense counsel thoroughly cross-examined the victim, the responding officers, and the investigator regarding the victim’s demeanor after the attack, her description of the attack and the attacker, and the inconsistencies between what she told each of them. Counsel also repeatedly emphasized the inconsistencies and attacked the credibility of the victim and her father during closing arguments.

Given the evidence presented, we conclude that it was sufficient for a rational factfinder to find Pennington guilty beyond a reasonable doubt of the crimes charged. Jackson v. Virginia, 443 U. S. at 319 (III) (B). Therefore, the trial court did not err in denying his motion for new trial on this ground.

2. Pennington contends that his trial counsel provided ineffective assistance due to her failure to invoke the rule of sequestration at the beginning of the trial. According to Pennington, counsel’s failure to invoke the rule of sequestration resulted in a witness testifying and directly refuting his alibi defense after the witness had been sitting in the courtroom during opening statements, when counsel told the jury that this was a case of mistaken identity and described Pennington’s alibi, and the testimony of four other witnesses. Pennington sirgues that, as a result, the trial court erred in denying his motion for new trial on the basis of ineffective assistance of counsel.

In order to prevail on a claim of ineffective assistance of counsel, a criminal defendant must show that counsel’s performance was deficient and that the deficient performance so prejudiced the client that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984)[J The criminal defendant must overcome the strong presumption that trial counsel’s conduct falls within the broad range of reasonable professional conduct. [As the appellate court, we] accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.

(Citations and punctuation omitted.) Robinson v. State, 277 Ga. 75, 75-76 (586 SE2d 313) (2003).

OCGA § 24-9-61 provides that, in all cases, “either party shall have the right to have the witnesses of the other party[] examined out of the hearing of each other. The court shall take proper care to effect this object as far as practicable and convenient, but no mere irregularity shall exclude a witness.” (Emphasis supplied.) “The purpose of the rule of sequestration is to prevent a witness who has not testified from having his testimony affected by that of another witness.” (Citation and punctuation omitted.) Hollis v. State, 295 Ga. App. 529, 530 (1) (672 SE2d 487) (2009).

In this case, the record shows that, during an overnight recess following the first day of the trial — after the victim and three other witnesses had testified — the victim’s father called the prosecutor and told him that he had gone to his daughter’s home shortly after the attack in order to fix her window. While there, he saw a vehicle at Pennington’s home leave about 4:00 a.m. and return about 4:30 a.m., which the prosecutor believed was relevant to Pennington’s alibi defense. The prosecutor immediately notified defense counsel, and, the next morning, notified the court that he wanted to call the victim’s father as a witness, even though the man had been in the courtroom during the trial thus far. The prosecutor also notified defense counsel that the victim’s father was present and could be interviewed prior to his testimony. At that time, both the prosecutor and defense counsel acknowledged that neither had invoked the rule of sequestration at the beginning of trial. Defense counsel then objected to the admissibility of the father’s testimony on the basis that the State had failed to include his name on its list of witnesses. After the State asserted that the father’s testimony was newly discovered evidence, the court allowed him to testify over Pennington’s objection, ruling that the father’s presence in the courtroom may affect the credibility, but not the admissibility, of his testimony.

Both the prosecutor and defense counsel then elicited testimony from the victim’s father that clearly informed the jury that he had been in the courtroom since the trial began, and defense counsel extensively cross-examined him regarding his observations on the date of the attack. Defense counsel also recalled one of the State’s witnesses, a responding police officer, in an attempt to rebut the father’s testimony.

(a) As an initial matter, although Pennington argues that the father’s testimony improperly undermined his alibi defense, the evidence presented by both the State and the defense shows that the father’s testimony about what happened while he was at the victim’s home after the attack did not conflict with Pennington’s claim that he was in the process of driving his brother to the hospital at 3:00 a.m., the time of the attack. In fact, the father specifically admitted that he had no idea whether anyone had left Pennington’s house prior to 3:45 a.m., when he arrived at the victim’s home. Thus, Pennington has failed to show any harm that resulted from the admission of the father’s testimony.

(b) Moreover, the record supports a finding that the State was not aware that the victim’s father had any relevant evidence to provide at trial until the parties had presented their opening statements and the other witnesses had testified. It follows that, because the State had not identified the man as a witness until that point in the trial, he would not have been required to stay out of the courtroom even if defense counsel had invoked the rule of sequestration at the beginning of trial. Therefore, contrary to Pennington’s argument on appeal, any deficiency by trial counsel in failing to request the court to invoke the rule was not the cause of any alleged prejudice to Pennington’s defense. Consequently, Pennington cannot show that, but for such deficiency, there is a reasonable probability that the outcome of his trial would have been different, and this ineffective assistance claim must fail. Robinson v. State, 277 Ga. at 75-76; see also Glass v. State, 289 Ga. 542, 548 (6) (c) (712 SE2d 851) (2011).

Decided January 27, 2012.

Deborah R. Fluker, for appellant.

Daniel J. Porter, District Attorney, William C. Akins, Assistant District Attorney, for appellee.

(c) Finally, even if the rule had been invoked and the victim’s father had violated the rule by staying in the courtroom, such a violation “generally does not affect the admissibility of the testimony, but may impact the offending witness’ credibility.” (Citations omitted.) Rakestrau v. State, 278 Ga. 872, 876 (4) (608 SE2d 216) (2005). Here, the jury was informed of the father’s earlier presence in the courtroom, defense counsel thoroughly cross-examined him, and the court properly instructed the jurors on their role in resolving conflicts in the evidence and in determining the credibility of witnesses, the weight of the evidence, and whether a witness was impeached. Thus, the jury was able to gauge the victim’s father’s credibility and make a determination as to the weight, if any, it should give to his testimony. Id.; Glass v. State, 289 Ga. at 548 (6) (c); Suggs v. State, 272 Ga. 85, 87 (3) (526 SE2d 347) (2000). Consequently, Pennington has failed to carry his burden of showing that he was prejudiced by counsel’s failure to invoke the rule of sequestration. Glass v. State, 289 Ga. at 548 (6) (c).

Judgment affirmed.

Doyle, R J., and Miller, J., concur.

       See Division 2, infra, regarding the alleged error associated with this testimony.

       Neither the videotape nor a transcript of the interview is in the appellate record.

       OCGA § 24-9-61 includes an exception for the victim(s) of a criminal offense. See OCGA § 24-9-61.1.

       See Rakestrau v. State, 278 Ga. 872, 876 (4) (608 SE2d 216) (2005) (“The decision of whether to allow a witness to testify in violation of the rule of sequestration is within the discretion of the trial court and will not be disturbed on appeal unless such discretion is abused.”) (citations omitted).


text:
    A11A2277.
    STATE FARM FIRE AND CASUALTY COMPANY v. BAUMAN et al.
    (723 SE2d 1)
   Andrews, Judge.

Steve and Alisa Bauman’s seven-year-old child suffered serious injuries in a bicycle accident while Lori Van de Veire was providing paid child care for the child at Van de Veire’s home. Van de Veire was an insured under a homeowner’s insurance policy issued to her husband by State Farm Fire and Casualty Company. On behalf of their child, the Baumans sued Van de Veire for negligent child care. State Farm initially provided a defense under a reservation of rights, but then withdrew the defense and informed Van de Veire that the policy excluded coverage for injuries to the child which occurred while she was providing child care services. Pursuant to an agreement between Van de Veire and the Baumans, Van de Veire withdrew her defense to the suit, promised to assign her rights under the homeowner’s policy in the event the Baumans obtained a judgment against her, and the Baumans promised that any judgment they obtained would never be collected against Van de Veire. After the Baumans obtained a judgment in the suit against Van de Veire in the amount of $300,000 for injuries suffered by the child, the Baumans brought a direct action on behalf of the child against State Farm alleging that Van de Veire’s homeowner’s policy provided coverage for the injuries and seeking payment of the unsatisfied judgment from the policy proceeds. In defense of the action, State Farm moved for summary judgment on the basis of the policy’s child care services exclusion. The trial court denied summary judgment, certified its judgment for immediate review, and we granted State Farm’s application for an interlocutory appeal. For the following reasons, we find that State Farm’s policy excluded coverage for the child’s injuries and reverse.

The general rule is that, where an injured party obtains an unsatisfied judgment against a party who has insurance covering the injuries — so that the judgment fixes the liability of the insured party to the injured party — the injured party may bring an action directly against the insurer to satisfy the judgment from the available insurance proceeds. Smith v. Government Employees Ins. Co., 179 Ga. App. 654, 655 (347 SE2d 245) (1986); Hartford Ins. Co. v. Henderson & Son, Inc., 258 Ga. 493, 494 (371 SE2d 401) (1988); Integon Indem. Corp. v. Henry Med. Center, 235 Ga. App. 97, 98 (508 SE2d 476) (1998). Despite its denial of coverage and refusal to defend the Baumans’ suit against Van de Veire, State Farm retained the right to raise the defense that the Baumans’ claim in the direct action was not covered by the policy. Owners Ins. Co. v. Smith Mechanical Contractors, 285 Ga. 807, 810 (683 SE2d 599) (2009); Southern Guaranty Ins. Co. v. Dowse, 278 Ga. 674, 676 (605 SE2d 27) (2004).

In their suit against Van de Veire, the Baumans alleged that their seven-year-old child was injured on September 19, 2007, as a result of negligent child care provided by Van de Veire when, against their instructions, she allowed the child to ride a bicycle and the child was injured in a bicycle accident. The accident occurred while the child was under Van de Veire’s care at her home for which the Baumans paid Van de Veire $65 per week for providing after-school child care for the child from about 2:45 p.m. until about 6:00 p.m. on most school days Monday thru Friday. Van de Veire, who was a neighbor of the Baumans, also cared for her own school-aged child during this time. This child care schedule continued weekly Monday thru Friday from the Spring of 2007 until the end of December 2007, well after the September 2007 injury, with the exception of summer vacation from school, school holidays, days when the Baumans’ child was sick, and occasional days when Van de Veire or the Baumans had other child-related appointments. Van de Veire testified that the norm was that she would keep the Baumans’ child after school at her house four days of each five-day school week. According to Mr. Bauman, Van de Veire typically provided Monday thru Friday after-school child care for his child from 2:45 p.m. to 6:00 p.m. “most of the time.”

Van de Veire’s policy excluded liability and medical payments coverage for

i. any claim made or suit brought against any insured by:
(1) any person who is in the care of any insured because of child care services provided by or at the direction of:
(a) any insured;
(b) any employee of any insured; or
(c) any other person actually or apparently acting on behalf of any insured; or
(2) any person who makes a claim because of bodily injury to any person who is in the care of any insured because of child care services provided by or at the direction of:
(a) any insured;
(b) any employee of any insured; or
(c) any other person actually or apparently
acting on behalf of any insured.
This exclusion does not apply to the occasional child care services provided by any insured, or to the part-time child care services provided by any insured who is under 19 years of age.

State Farm moved for summary judgment on the basis that the policy exclusion excluded coverage for injuries to the Baumans’ child which occurred while its insured, Van de Veire, was providing weekly “child care services” for the child, and because the above-stated exceptions to the “child care services” exclusion do not apply. State Farm contends that: (1) because Van de Veire was over 19 years of age, the exception for “part-time child care services provided by any insured who is under 19 years of age” does not apply; and (2) because Van de Veire provided more than occasional child care services for the child, the exception for “the occasional child care services provided by any insured” does not apply. It is undisputed that Van de Veire was over 19 years of age when she provided the child care at issue and that the exception for part-time child care services by an insured under the age of 19 does not apply. Although the trial court concluded that Van de Veire was providing “child care services” to the Baumans’ child, the court denied summary judgment because it found that the term “occasional” in the policy was ambiguous and that a jury question was presented as to whether or not Van de Veire provided occasional child care services under the exception to the exclusion.

The ordinary rules of contract construction apply to determine the intent of the parties to an insurance contract. Boardman Petroleum, Inc. v. Federated Mut. Ins. Co., 269 Ga. 326, 327 (498 SE2d 492) (1998). However, where an insurance contract contains unambiguous terms excluding coverage, no construction is required, and the plain meaning of the terms must be given full’effect without straining to extend coverage where none was contracted or intended. Jefferson Ins. Co. &c. v. Dunn, 269 Ga. 213, 216 (496 SE2d 696) (1998); Continental Cas. Co. v. HSI Financial, 266 Ga. 260, 262 (466 SE2d 4) (1996). Whether or not an insurance contract contains an ambiguity is a question of law for the court. Infinity Gen. Ins. Co. v. Litton, 308 Ga. App. 497, 500 (707 SE2d 885) (2011). “[A] word or phrase is ambiguous only when it is of uncertain meaning, and may be fairly understood in more ways than one ... [so that it] involves a choice between two or more constructions of the contract.” Western Pacific Mut. Ins. Co. v. Davies, 267 Ga. App. 675, 680 (601 SE2d 363) (2004) (citation and punctuation omitted). The term “occasional” is not defined in the present insurance policy. Unless otherwise defined in the insurance policy, terms in the policy are given their plain, ordinary, and popular meaning as supplied by dictionary. Cunningham v. Middle Ga. Mut. Ins. Co., 268 Ga. App. 181, 183 (601 SE2d 382) (2004); Stagl v. Assurance Co. of America, 245 Ga. App. 8, 10 (539 SE2d 173) (2000). The American Heritage Dictionary (3rd ed.) defines “occasional” as “[occurring from time to time . . . [n]ot habitual; infrequent.” Applying this definition, we find no ambiguity in the term “occasional” as used in the policy, and further find on the present facts that Van de Veire was not providing “occasional” child care services. The record shows that typically or most of the time— an average of four days out of every five-day school week — Van de Veire provided paid after-school child care services for the Baumans’ child. This was not “occasional” child care which occurred only from time to time or infrequently. Rather, Van de Veire provided paid after-school child care services frequently and habitually on a weekly basis. Because the injuries suffered by the Baumans’ child occurred while Van de Veire was providing “child care services” for the child which were not “occasional,” the policy excluded coverage for the injuries. The trial court erred by denying State Farm’s motion for summary judgment. OCGA § 9-11-56.

Decided January 13, 2012

Reconsideration Denied January 30, 2012.

Lloyd B. Hedrick, Jr., for appellant.

Mitchell & Shapiro, Richard C. Mitchell, for appellee.

Judgment reversed.

Phipps, P J., and McFadden, J., concur.

       The rationale for the rule is that an unsatisfied judgment fixing the insured’s liability to the injured party is necessary to establish privity of contract between the injured party and the insurer. Integon Indem., 235 Ga. App. at 98. The issue was not raised as to whether the judgment in this case satisfied the privity requirement by fixing the liability of the insured to the injured party where the Baumans obtained the judgment pursuant to an agreement that the judgment can never be collected against Van de Veire.


author: Adams, Judge.

text:
    A11A1559, A11A1560.
    JOHNSON v. WARE (two cases).
    (723 SE2d 18)
   Adams, Judge.

This appeal arises out of a dispute between divorced parents over the particulars of custody and visitation relating to their child. The father appeals from trial court orders that, among other things, purported to modify the father’s custody rights even though the mother, in her pleadings, sought changes only to the father’s visitation schedule. We have consolidated two cases for the purpose of appeal.

The record shows the following basic facts. On February 10, 2004, Amanda L. Ware and Kenneth A. Johnson had a child, but by December 6, 2006, they were divorced. Neither the divorce decree nor the settlement agreement is in the record. In August 2009, Ware filed a complaint (the “Ware Action”) in which she alleged that there had been a change in circumstances materially affecting the welfare of the child, and she requested that visitation be modified to include a parenting plan “that is specific and not open to debate regarding the parties’ custodial time.” Johnson answered and counterclaimed, seeking, among other things, to have primary physical custody placed with him. In October, Ware amended her complaint to seek a change or clarification of custody, as well; she requested that the court “declare or clarify her as the Primary Physical Custodian” of the child. But both parties then withdrew their claims for modification of custody from the Ware Action. Johnson reasserted his request for a change of custody in a separate action (the “Johnson Action”). In her answer in that action, Ware alleged that “it is in the best interests of the child for her to have primary physical custody but to change the current visitation schedule to provide that the child is with her during the school week.” In a prayer for relief, she requested that “she be awarded such other and further relief as the Court deems appropriate.”

By agreement of the parties, the two matters were tried together. See OCGA § 9-11-42 (a). The trial took place on January 12, 2010 and February 8, 2010, but Johnson elected not to request a takedown, and there is no transcript in the record.

Following the trial, the court issued one final order in each case, as well as a “Parenting Plan & Child Visitation” order that pertained to both cases (the “Parenting Plan”). In the Ware Action, among other things, the court ordered “that [Ware] shall be the Primary Physical Custodian of the parties’ minor child, with both parties having Joint Legal Custody.” In the Parenting Plan, the court ordered that Johnson “shall be entitled to reasonable and liberal rights of visitation with the minor child, ... so long as same does not interfere with the health, welfare and education of the minor child at any time(s) the parties can agree upon.” The court' then laid out specific rules of visitation for Johnson in the event “the parties are unable to agree on reasonable visitation.” The court incorporated the Parenting Plan into the Ware final order and added “All provisions of the Final [Divorce] Judgment and Decree and Settlement Agreement not inconsistent with said Parenting Plan Order shall remain in full force and effect.” Finally, in the final order in the Johnson Action, the court denied Johnson’s motions for a change of custody and for contempt against Ware.

Johnson then changed attorneys and, in both cases, filed three motions: a motion for new trial, reconsideration, or judgment notwithstanding the verdict; a motion for findings of fact and conclusions of law; and a motion for the court to prepare a narrative transcript of the trial. On February 4, 2011, following a hearing that was transcribed, the court issued identical orders in both cases in which it denied Johnson’s request for a narrative transcript, denied Johnson’s request for relief from the prior orders, and entered findings of fact and conclusions of law. On March 1, Johnson filed notices of appeal in both cases.

1. In both cases, Johnson first contends the trial court erred by modifying his custodial rights. He argues that the court’s final order in the Ware Action, including the Parenting Plan, improperly modified the rights he was given in the parties’ divorce decree and settlement agreement. But those documents are not in the record, and therefore Johnson cannot show error by the record. He also argues that there were no pleadings or motions pending in the Ware Action that would allow modification of his custodial rights. But for all we know, that issue was tried by express or implied consent of the parties: “When issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. ...” OCGA § 9-11-15 (b). The Ware and Johnson Actions were tried together pursuant to agreement of the parties; but without a transcript, we have no information about how this issue was treated at trial. In addition, Johnson did not raise this issue at the hearing on the motion for new trial, despite the fact that his trial counsel was present and available to testify, and therefore the issue was not developed factually for our review. In sum, Johnson has not shown reversible error. “The burden is on the party alleging error to show it affirmatively by the record. When the burden is not met, the judgment complained of is assumed to be correct and must be affirmed. [Cit.]” (Citation and punctuation omitted.) Roberts v. Windsor Credit Svcs., 301 Ga. App. 393, 396 (2) (687 SE2d 647) (2009).

2. Johnson asserts in both cases that the court erred by refusing to hear all the evidence he offered, both at tried, and at the hearing on the motion for new trial. But again, without the trial transcript, Johnson cannot rightly prove his assertion, nor can he show that he raised a timely objection.

Furthermore, at the hearing on the motion for new trial, the court stated that it did not exclude any testimony: “that was an incorrect statement. I provided them the opportunity [to present character witnesses] and they chose not to because they recognized as officers of the Court and as trial lawyers[,] a trial strategy would be, don’t overload this case with just stuff.” The court explained that it gave each party the opportunity to offer something other than testimony about each parent’s character, but in their proffer, they were unable to do so. And a witness that Johnson offered at the hearing essentially confirmed the court’s recollection; she testified that at trial the judge said he was not going to hear all the witnesses “because her witnesses would say great things about her, his witnesses would say great things about him and he didn’t need to hear all of us.” See generally White v. Regions Bank, 275 Ga. 38, 40-41 (2) (a) (561 SE2d 806) (2002) (exclusion of cumulative evidence not an abuse of discretion)

Moreover, Johnson’s trial counsel testified that the reason he did not call all of the witnesses was they would be “redundant in nature or they may have offered some — just some general character information.” He also noted that the judge had stated that he did not have a problem with either party’s character, “[s]o [there] wasn’t any point in me calling witness after witness. ... So that may have been why I didn’t call some or all of the witnesses.” He added, “I was never told not to call a witness. Any witness I didn’t call was because the person wasn’t going to add anything that we hadn’t already established.”

Finally, we find no indication in the transcript of the hearing on the motion for new trial that the court prohibited Johnson from presenting witnesses in support of his motion. The only cited excerpt from the hearing shows that the court turned down an offer by Johnson to call witnesses to help the court recall what happened at trial in connection with Johnson’s request that the court prepare a narrative transcript. But Johnson has not appealed the court’s ruling on that issue.

Johnson, therefore, simply has not shown that the trial court prohibited him from calling witnesses, either at the trial or at the hearing on the motion for new trial.

3. In the Ware Action, Johnson raises two additional alleged errors. He first contends the trial court’s award of child support “is not in conformity with OCGA § 19-6-15 as there is no Child Support Worksheet reflecting the child support ordered by the Court.” He also contends the trial court erred by ordering that he pay one-half of the child’s school and summer camp tuition outside of the overall calculation of child support.

Decided January 30, 2012.

Jacquelyn F. Luther, for appellant.

William F. Todd, Jr., for appellee.

Ware concedes that the court’s order regarding child support does not comply with the relevant Code sections. See OCGA § 19-6-15 (c) (2) (E) & (i) (1) (B). And the Supreme Court has explained that, when applicable, as it is here, OCGA § 19-6-15 “makes certain findings mandatory.” Holloway v. Holloway, 288 Ga. 147, 149 (1) (702 SE2d 132) (2010). “The child support guidelines were made mandatory to ensure that the best interests of the children were protected.” Here, the trial court’s order fails to include the necessary findings. Id. See also Turner v. Turner, 285 Ga. 866, 866-867 (1) (684 SE2d 596) (2009). Ware also concedes that the court’s award of tuition outside of the support award was an unexplained deviation, and we agree. See Turner, 285 Ga. at 867-868 (2). “As a result, we must reverse the trial court’s judgment [in the Ware Action] and remand this case to the trial court for further proceedings consistent with this opinion.” Holloway, 288 Ga. at 149 (1).

In summary, the judgment in Case No. A11A1560 is affirmed. The judgment in Case No. A11A1559 is affirmed in part and reversed in part, and that case is remanded with direction.

Judgment affirmed in Case No. A11A1560. Judgment affirmed in part and reversed in part, and case remanded with direction in Case No. A11A1559.

Barnes, P. J., and Blackwell, J., concur.

       Although the court denied Johnson’s motion to provide a narrative transcript of the tried, Johnson has not appealed that decision.


text:
    A11A1626.
    In the Interest of C. B., a child.
    (723 SE2d 21)
   Adams, Judge.

An arrest warrant was issued on July 29, 2009, against then 15-year-old C. B. on charges of aggravated sexual battery, aggravated child molestation, aggravated assault, cruelty to children in the first degree and false imprisonment, and it appears undisputed that C. B. has been detained since that date. Because the offenses C. B. was alleged to have committed included aggravated child molestation and aggravated sexual battery, the superior court was vested with exclusive jurisdiction over the case pursuant to OCGA § 15-11-28 (b) (2) (A) (v), (vi), and an indictment was returned against C. B. charging her with these and other offenses on February 1, 2010.

Because she was not indicted within 180 days of her detention as required by OCGA § 17-7-50.1, the superior court entered an order granting C. B.’s motion to transfer the case to the juvenile court. However, shortly after the case was transferred to the juvenile court, the State filed a motion to transfer the case back to the superior court pursuant to the provisions of OCGA § 15-11-30.2. Following a hearing, the juvenile court granted the motion, and C. B. filed the present appeal from that order. Because we find that the juvenile court erred by transferring the case back to the superior court under the circumstances here, we reverse.

As the superior court properly found, it was required to transfer the case to the juvenile court pursuant to the mandatory provisions of OCGA § 17-7-50.1, which provide in relevant part as follows:

(a) Any child who is charged with a crime that is within the jurisdiction of the superior court, as provided in Code Section 15-11-28 or 15-11-30.2, who is detained shall within 180 days of the date of detention be entitled to have the charge against him or her presented to the grand jury. . . .

Further, subsection (b) of that Code section provides that:

(b) If the grand jury does not return a true bill against the detained child within the time limitations set forth in subsection (a) of this Code section, the detained child’s case shall be transferred to the juvenile court and shall proceed thereafter as provided in Chapter 11 of Title 15.

In this case, the State failed to procure an indictment against C. B. within 180 days of the date she was detained. Thus, pursuant to the mandatory language of that section as well as recent precedent of this Court, the superior court lost jurisdiction of the case and was required to transfer the case to the appropriate juvenile court. Hill v. State, 309 Ga. App. 531 (710 SE2d 667) (2011); see also Nunnally v. State, 311 Ga. App. 558, 559 (1) (716 SE2d 608) (2011). And, in any event, the transfer from the superior to the juvenile court has not been challenged. Rather, the question here is whether the transfer back to the superior court pursuant to OCGA § 15-11-30.2 was proper.

This question appears to be one of first impression. The State argues that the transfer back was proper because nothing in OCGA § 17-7-50.1 explicitly prevents such a transfer and because this Court has previously approved a transfer back to a superior court after the superior court transferred the case to the juvenile court. In the Interest of C. G., 291 Ga. App. 743 (662 SE2d 823) (2008).

Although we agree that nothing in the statute specifically prohibits a transfer back to the superior court, we find the transfer in this case was nevertheless improper. The time limits set forth in OCGA § 17-7-50.1 are plainly stated and mandatory. Hill, 309 Ga. App. at 533-534 (1), and clearly express the legislative intent that when a juvenile is detained and the superior court is exercising jurisdiction under either OCGA § 15-11-28 (b) or OCGA § 15-11-30.2, the State must obtain an indictment within the specified time or the superior court loses the jurisdiction conferred by those provisions. Further, as we also held in Hill,

the statute plainly adopts the date of detention ... as the point from which the time is calculated, and it explicitly applies whether the child is initially subject to the jurisdiction of the superior court through committing an enumerated offense, OCGA § 15-11-28, or via a transfer to the superior court after a petition and hearing, OCGA § 15-11-30.2. OCGA § 17-7-50.1 (a).

Hill, 309 Ga. App. at 534-535. In this case, the reason the case was transferred to the juvenile court by the superior court was because the State failed to procure an indictment within the prescribed 180 days. The same 180-day time limitation applies to both OCGA § 15-11-28 (b) and OCGA § 15-11-30.2 and that 180 days begins to run on the day the juvenile is detained whenever the superior court is exercising jurisdiction under either section. It necessarily follows that anytime the superior court loses jurisdiction which was conferred by OCGA § 15-11-28 (b) because the State failed to obtain an indictment within 180 days of the date the juvenile was detained, the time will also have expired within which the State could procure an indictment if the superior court were proceeding under OCGA § 15-11-30.2. Thus, a transfer back to the superior court under those circumstances is pointless since an indictment returned by the grand jury would be void. Nunnally v. State, 311 Ga. App. at 559 (1).

Moreover, although OCGA § 17-7-50.1 allows the State to request one automatic 90-day extension, as we also recently decided in Nunnally, 311 Ga. App. at 559 (1) this extension cannot be granted after the expiration of the 180 days.

Decided January 30, 2012.

Kimberly A. Gross, Walker L. Chandler, for appellant.

Scott L. Ballard, District Attorney, Christy R. Jindra, Assistant District Attorney, for appellee.

Further, we believe the case of In the Interest of C. G., 291 Ga. App. 743, cited by the State, does not provide contrary authority. In that case, pursuant to OCGA § 15-11-30.4, the superior court had transferred the case, which involved the indictment of a juvenile for involuntary manslaughter, to the juvenile court after concluding that it had neither exclusive nor concurrent jurisdiction over the matter pursuant to OCGA § 15-11-28 (b) because the indicted offense was not one of the offenses enumerated in that section, and the juvenile court transferred the case back to the superior court pursuant to the provisions of OCGA § 15-11-30.2. But that case contained no mention of how long the juvenile had been detained, and did not discuss the time restraints imposed by OCGA § 17-7-50.1. Thus, that case offers no guidance on the issue before us in this appeal.

It is clear to us that the legislature intended to set time limitations for the State to act in those situations in which the juvenile is detained and the superior court is exercising jurisdiction over the matter pursuant to either OCGA § 15-11-28 (b) or OCGA § 15-11-30.2, and those time limitations would be eviscerated if the juvenile court’s transfer order in this case is allowed to stand. Thus, the juvenile court’s transfer order must be reversed and the case transferred back to the juvenile court.

Judgment reversed.

Barnes, P. J., and Blackwell, J., concur.

       C. B. was born on August 2, 1993.

       The transfer order is directly appealable. Rocha v. State, 234 Ga. App. 48, 50 (1) (506 SE2d 192) (1998).

       In this case, the State also sought a “retroactive” extension to present the case to the grand jury, but the trial court denied the State’s motion, and the State apparently did not seek to appeal that order.

       That section provides:
      If it appears to any court in a criminal proceeding or a quasi-criminal proceeding that the defendant is a child, except in cases where the superior court has exclusive or concurrent jurisdiction as provided in subsection (b) of Code Section 15-11-28, the case shall forthwith be transferred to the juvenile court together with a copy of the accusatory pleading and all other papers, documents, and transcripts of testimony relating to the case. . . .


text:
    A11A1712.
    GEORGIA DEPARTMENT OF COMMUNITY HEALTH v. DILLARD.
    (723 SE2d 23)
   Andrews, Judge.

We granted the application of the Georgia Department of Community Health to determine whether the Tift County Superior Court erred when it held that the State Personnel Board exceeded its authority in adopting regulations authorizing an administrative law judge (ALJ) to resolve an appeal from the Board’s termination of a classified state employee, Elizabeth Dillard, without holding an evidentiary hearing. We hold that the regulation at issue does not comport with the Georgia Merit System Act, OCGA § 45-20-1 et seq., in that it denied Dillard, who had been deemed “voluntarily separated” from employment, her statutory right to a hearing. We therefore affirm the decision of the superior court.

A superior court may reverse a decision of the State Personnel Board only

if substantial rights of the petitioner have been prejudiced because the board’s findings, inferences, conclusions, decisions, or orders are: (1) [i]n violation of constitutional or statutory provisions; (2) [i]n excess of the statutory authority of the board; (3) [m]ade upon unlawful procedure; (4) [c]learly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (5) [ajrbitrary, capricious, or characterized by abuse of discretion or clearly unwarranted exercise of discretion.

OCGA § 45-20-9 (m).

The relevant facts are not in dispute. Dillard began working with the Department of Community Health in 1991. In October 2008, by which time she was a classified employee, Dillard went on a leave of absence without pay as a result of a carpal tunnel injury. She returned to work from April 20 through July 31, 2009. On September 2, Dillard requested additional leave in order to have surgery. The Board granted her request, and Dillard was paid workers’ compensation benefits effective September 16, 2009. On October 13, a personnel officer with the Department sent a written reminder to Dillard that the Department had not yet received a physician’s statement concerning her inability to work. Dillard then provided a physician’s statement indicating that she could not return to work until November 17.

When Dillard did not return to work in November, the personnel officer called her to say that in order to maintain her status on unpaid leave, she must provide further documentation showing that she was not yet able to work. When Dillard responded that she had a test scheduled for December 7, the officer agreed that Dillard could wait to submit documentation until after that date. As of December 29, however, the Department had not yet received any further documentation. When the officer called Dillard again, she indicated that her attorney had sent something to the Department. Because it had received no such information, the Department sent Dillard a certified letter on December 30 stating that “[failure to submit required documentation by Monday, January 4, 2009 [sic] will result in a ‘Presumptive Resignation.’ ” Although Dillard signed for delivery of the letter on December 31, neither she nor her attorney responded to it before January 12, 2010. On that date, the Department terminated Dillard as voluntarily separated under State Personnel Board Rule 478-1-.24 (10) (b).

On January 21, 2010, Dillard appealed her separation to the Board and requested a hearing. The ALJ assigned to the matter informed the parties that the appeal would be decided on the written record, that Dillard had 20 days to file submissions to that record, and that “[n]o evidentiary hearing [would] be conducted.” After Dillard submitted written evidence, the ALJ found that the Department had been authorized to conclude that Dillard had resigned voluntarily. Dillard appealed to the superior court, which reversed on the ground that OCGA § 45-20-8 (b) guaranteed her an evidentiary hearing. The superior court also found that the appropriate remedy for Dillard’s unlawful separation was the procedure of reinstatement “as though there had been no break in service” as outlined in Rule 478-1-.24 (9) (f) (4). This appeal followed.

1. The Department’s only argument on appeal is that nothing in the relevant statutes or rules bars the Board from dispensing with an evidentiary hearing in cases arising from separations deemed “voluntary.” We disagree.

OCGA § 45-20-8 provides in relevant part:

(a) Classified employees who have successfully completed a working test period may be dismissed from employment or otherwise adversely affected as to compensation or employment status only if such action is taken in accordance with the rules and regulations of the State Personnel Board governing adverse actions and appeals for classified employees.
(b) This article is not intended to create a property interest in the job, but rather to create only a procedure under which classified employees can be dismissed or otherwise adversely affected. The procedure adopted for dismissing a classified employee from employment or otherwise adversely affecting his or her compensation or employment status shall include, as a minimum, that the appointing authority must provide the classified employee with reasons for the action and an opportunity to file an appeal and request a hearing which may be held before either the board or an administrative law judge. . . .

(Emphasis supplied.) OCGA § 45-20-8; see also Ga. L. 1982, p. 1245, § 1; Clark v. State Personnel Bd., 252 Ga. 548, 550 (2) (314 SE2d 658) (1984) (classified employees “are entitled to such rights as the Merit System Act affords them at the time they assume a classified position”). OCGA § 45-20-9 (a) adds:

Any laws to the contrary notwithstanding, all hearings on dismissals, other adverse personnel actions, and other purported violations of the rules and regulations as applied to classified employees shall be instituted by filing a written appeal with the Office of State Administrative Hearings upon such ground and in such form and under such procedure as may be prescribed by rules and regulations of the office. . . .

Subsections (b), (c) and (d) of OCGA § 45-20-9 detail the authority of the Board and/or an ALJ “in connection with any hearing on a dismissal or other purported violation of the rules and regulations,” including powers to issue subpoenas, to set the time and place of continued hearings, to dispose of motions to dismiss, and to impose contempt sanctions. Finally, Rule 478-1-.24 (8) sets out “hearing procedures” concerning appeals by classified employees as follows:

(a) General Provisions. After an appeal has been properly filed with the Executive Secretary to the Board, the appeal shall be forwarded to the Office of State Administrative Hearings for assignment to an administrative law judge.
1. Notice of the Hearing. Within seven (7) days from the filing of an appeal in accordance with Rule 24.600, the administrative law judge or the Board shall designate an appropriate time and place to conduct the hearing and shall so notify all parties in writing. . . .

(Emphasis supplied.)

“When construing a statute this court must look to the plain meaning of words and if there is only one reasonable construction, the statute must be construed in that manner.” Davis v. State, 213 Ga. App. 212, 213 (2) (444 SE2d 142) (1994).

The test of the validity of an administrative rule is twofold: whether it is authorized by statute and whether it is reasonable. In applying this test, we have explained that the interpretation of a statute by an administrative agency which has the duty of enforcing or administering it is to be given great weight and deference. However, an administrative rule which exceeds the scope of or is inconsistent with the authority of the statute upon which it is predicated is invalid.

(Citations and punctuation omitted.) Ga. Society of Ambulatory Surgery Centers v. Ga. Dept. of Community Health, 309 Ga. App. 31, 34 (710 SE2d 183) (2011).

OCGA §§ 45-20-8 and 45-20-9 both contemplate that a classified employee filing an appeal from an adverse job action has a right to an evidentiary hearing upon “request.” Likewise, the regulation promulgated to enforce these statutes provides that when a classified employee files an appeal, “the Board shall designate an appropriate time and place to conduct the hearing.” Rule 478-1-.24 (8) (a) (1).

The Department points out that subsections (6) and (10) of the Rule dispense with the need for a hearing in cases involving voluntary separation, as follows:

Any employee who is absent from duty for five (5) consecutive workdays or equivalent, without proper authorization thereof, within the discretion of the appointing authority, may be deemed to have resigned voluntarily from employment. ...
Any employee who fails to return to duty at the expiration of a leave of absence may, in the discretion of the appointing authority, be deemed to have resigned voluntarily from employment. . . .

Ga. Comp. R. & Regs. r. 478-1-.24 (10) (b), (c). The Department relies especially on subsection (6) (e) of the Rule, which provides:

Appeals under the provisions of [the rule not concerning voluntary separations] shall be entitled to a hearing which shall be conducted by an administrative law judge unless the Board, in its discretion, elects to grant a hearing before the Board; provided, with the consent of all parties and approval by the administrative law judge, a hearing may be waived and the appeal considered on the written record. All other appeals shall be considered on the written record unless otherwise specified by the Board or the administrative law judge.

(Emphasis supplied.) Subsection (6) (x) likewise provides that in cases involving voluntary separation, and “[u]nless the administrative law judge specifies otherwise, the appeal will be considered on the basis of the written record.” Rule 478-1-.24 (6) (x).

In our view, the curtailed procedure laid out in subsections (6) (e) and (x) of the Rule cannot be reconciled with either the statutory scheme, which contemplates that the Board “must provide the classified employee with reasons for the action and an opportunity to file an appeal and request a hearing,” OCGA § 45-20-8 (b), or the Rule’s own more general procedures, which require that within seven days of the filing of an appeal, “the administrative law judge or the Board shall designate an appropriate time and place to conduct the hearing.” As the Supreme Court of Georgia noted in a 1980 opinion concerning the predecessor to OCGA § 45-20-8, classified employees “have no right to an evidentiary hearing on their involuntary demotions or separations” only when those job actions are the result of a reduction-in-force plan. Brown v. State Merit System &c., 245 Ga. 239, 243 (264 SE2d 186) (1980); see also OCGA § 45-20-8 (b) (“the right to appeal shall not apply when persons are dismissed or otherwise adversely affected as to compensation due to curtailment of funds or reduction in staff”); Brown v. Ga. Dept. of Revenue, 881 F2d 1018, 1020 (11th Cir. 1989) (classified employee cannot be denied “any hearing” concerning his voluntary separation); State Personnel Bd. v. Adams, 216 Ga. App. 341, 343 (2) (453 SE2d 821) (1995) (Board may not refuse to consider an employee’s application for waiver of mandatory retirement when a statute authorized such an application).

On the basis of the plain language of the statutes as well as these authorities, we conclude that those portions of subsections (6) (e) and (x) of Rule 478-1-.24 which dispense with the need for an evidentiary hearing in cases involving the voluntary separation of a classified employee are contrary to law. It follows that the trial court did not err when it reversed the AU’s determination of Dillard’s appeal, which was made without the hearing required by OCGA §§ 45-20-8 and 45-20-9.

2. The Department has not asserted any error concerning the superior court’s remedy of reinstatement as outlined in Rule 478-1-.24 (9) (f) (4). That remedy therefore stands as rendered.

Judgment affirmed.

Phipps, P. J., and McFadden, J., concur.

Decided January 30, 2012.

Samuel S. Olens, Attorney General, Annette M. Cowart, Bryan K. Webb, Assistant Attorneys General, for appellant.

Divine, Finney & Dorough, Kermit S. Dorough, Jr., for appellee.


author: Blackwell, Judge.

text:
    A11A1815.
    TYLICZKA v. CHANCE.
    (723 SE2d 27)
   Blackwell, Judge.

Janice Tyliczka sued Amy Chance to recover damages for injuries that Tyliczka allegedly sustained in an automobile accident, but the court below dismissed the lawsuit for want of prosecution after Tyliczka and her lawyer failed to appear at a calendar call. Tyliczka moved under OCGA § 9-11-60 to set aside the dismissal, asserting that the court failed to notify her of the dismissal, and she did not learn of it until after her time to take an appeal had expired. The court below denied the motion to set aside, but it made no findings about whether it had fulfilled its obligation to notify Tyliczka of the dismissal. Tyliczka now appeals, and we vacate the denial of her motion to set aside and remand for the court below to make findings about whether it notified Tyliczka of the dismissal and then to reconsider the motion to set aside in light of Cambron v. Canal Ins. Co., 246 Ga. 147 (269 SE2d 426) (1980), and its progeny.

From the record, it appears that Tyliczka filed her complaint in October 2004. Tyliczka was represented by the law firm Jones, Jensen & Harris, and her complaint reflects that the firm then maintained its offices at 600 West Peachtree Street in Atlanta. The law firm later filed other pleadings and papers on behalf of Tyliczka that reflect the same address. Then, in June 2008, the law firm wrote to the clerk and asked that the case be set for trial by jury. Although the letterhead of this correspondence reflects that the law firm now maintained its offices at 3001 Lookout Place in Atlanta, the body of the letter does not say anything about a change of address. It is undisputed that the law firm never filed a formal notice of change of address with the court below.

In response to this correspondence, the court set a pretrial conference for August 8, 2008, and notice of this conference was sent to 600 West Peachtree Street. A lawyer appeared for Chance at the pretrial conference on August 8, but no one appeared for Tyliczka. The court then put the case on a November 2008 peremptory calendar, and notice of this calendar also was sent to 600 West Peachtree Street. No one appeared for Tyliczka at the call of the peremptory calendar, and the court below then dismissed her case. The order of dismissal was signed on January 8, 2009, and it was filed with the clerk on the following day. We cannot ascertain from the record whether the order of dismissal was served on counsel of record, either at 600 West Peachtree Street or any other address.

In December 2010, the law firm representing Tyliczka filed a notice of change of address, which reflects that the law firm had moved its offices once again, this time to 4720 Peachtree Industrial Boulevard in Norcross. A couple of months later, an employee of the law firm telephoned the clerk to inquire about the status of the case, and the law firm then learned, purportedly for the first time, that the case had been dismissed more than two years earlier. Tyliczka filed a motion to set aside the order of dismissal, and she now appeals from the denial of this motion.

When a trial judge decides a motion, he has a statutory duty to promptly file his decision with the clerk and “to notify the attorney or attorneys of the losing party of [the] decision.” OCGA § 15-6-21 (c). One purpose of this statutory requirement is to ensure that a party aggrieved by an appealable order has a fair opportunity to appeal from it. As our Supreme Court explained in Cambrón, if a trial judge fails to give the required notice of a decision, a party aggrieved by the decision is entitled to have it set aside under OCGA § 9-11-60 (g). See 246 Ga. at 148-149 (1); see also Veasley v. State, 272 Ga. 837, 838 (537 SE2d 42) (2000). And we have said that, when a court is presented with a motion under OCGA § 9-11-60 (g) that is premised upon the alleged failure of the trial judge to notify a party of its decision on a motion, the court must make a finding about “whether the duty imposed on the court by OCGA § 15-6-21 (c) was met.” Downs v. C.D.C. Fed. Credit Union, 224 Ga. App. 869, 870 (2) (481 SE2d 903) (1997) (citation and punctuation omitted).

Here, although the court below concluded that “[n]o valid grounds exist to set aside the Dismissal in this case,” it made no findings of fact about whether it sent the required notice of the order of dismissal to Tyliczka, as required by OCGA § 15-6-21 (c). Other orders entered by the court below in this case clearly reflect that they were served upon the lawyers, but the order of dismissal does not. And Tyliczka submitted affidavits, in which members and employees of her law firm attest that the firm did not receive notice of the order of dismissal, which also is some evidence that notice was not sent. Consequently, we are unable to determine whether the denial of the motion to set aside was proper under Cambrón. Downs, 224 Ga. App. at 870 (2); see also Whitfield v. State, 313 Ga. App. 297, 299 (1) (721 SE2d 211) (2011) (court unable to determine whether denial of motion to set aside was proper under Cambrón in the absence of findings of fact by trial court).

Decided January 30, 2012.

Jones, Jensen & Harris, Jenny E. Jensen, for appellant.

Magruder & Sumner, J. Clinton Sumner, Jr., Susan D. Taylor, for appellee.

For this reason, we vacate the order denying the motion to set aside, and we remand this case with direction that the court below make any necessary findings under Cambrón and then reconsider the motion to set aside. Id. See also Grant v. State, 302 Ga. App. 739, 742 (691 SE2d 623) (2010); Brown v. E.I. Du Pont de Nemours & Co., 240 Ga. App. 893, 896 (4) (525 SE2d 731) (1999). If the court finds that it failed to fulfill its statutory duty to notify Tyliczka of the dismissal of her case, then the motion to set aside should be granted, and the order of dismissal should be entered again, so that Tyliczka can appeal from it. But if the court below finds that it did provide the required notice to Tyliczka, even if Tyliczka failed to receive that notice, then the motion to set aside should be denied.

Judgment vacated and case remanded with direction.

Barnes, P. J., and Adams, J., concur.

       Tyliczka admits that her lawyer and his law firm moved their office to a new address in March 2008, but she contends that the Postal Service forwarded mail to the new address for at least a year. Even when mail is to be forwarded, however, we note that a lawyer representing a party has a duty to “notify the calendar clerk.. . immediately upon any change of. . . address.” Uniform Superior Court Rule 4.6.

       Chance points out that Tyliczka has not produced an affidavit by the lawyer at the firm who originally handled her case, but it is undisputed that the original lawyer retired from the practice of law in the meantime, and it is undisputed that the law firm Jones, Jensen & Harris has always represented Tyliczka. Although it might make her arguments stronger, we do not think it was absolutely necessary for Tyliczka to produce an affidavit by the original lawyer. Besides, “the issue is not whether the losing party had knowledge that judgment was entered, but whether the court had carried out the duty imposed upon it by OCGA § 15-6-21 (c).” Wal-Mart Stores v. Parker, 283 Ga. App. 708, 710 (642 SE2d 387) (2007).


author: Miller, Judge.

text:
    A11A1816.
    BROOKS v. THE STATE.
    (723 SE2d 29)
   Miller, Judge.

Following a jury trial, Derrick Brooks was convicted of two counts of aggravated stalking (OCGA § 16-5-91 (a)). Brooks filed a motion for new trial, which the trial court denied. On appeal, Brooks contends that the trial court erred by denying his motion for a directed verdict, because the evidence was insufficient to sustain his convictions. He also contends that the trial court erred by excluding or limiting the testimony of certain defense witnesses, and by failing to instruct the jury on lesser included offenses. We discern no error and affirm.

The standard of review for the denial of a motion for directed verdict of acquittal is the same as that for reviewing the sufficiency of the evidence to support a conviction. Under that standard we view the evidence in the light most favorable to the jury’s verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Conflicts in the testimony of the witnesses, including the state’s witnesses, are a matter of credibility for the jury to resolve.

(Punctuation and footnote omitted.) Hargrove v. State, 289 Ga. App. 363 (657 SE2d 282) (2008).

So viewed, the evidence shows that Brooks and the victim began dating in 2003. In July 2005, Brooks and the victim, who was pregnant with the couple’s child, had a physical altercation at their residence, which led to Brooks’s guilty plea to the offense of family violence battery. Although Brooks and the victim reconciled and were married in 2006, they continued to have verbal disputes, which ultimately led the victim to move out of the residence.

Brooks became upset when the victim refused to disclose her new residence, and over the course of several months, Brooks threatened the victim through repeated phone calls and text messages. Brooks told the victim that he would find her, and that he would always keep “tabs” on her. Fearing for her safety, the victim obtained a temporary protective order, which was served upon Brooks on July 29, 2009.

Despite the protective order, Brooks continued to contact and harass the victim. On July 30, 2009, the victim answered a call from Brooks, heard his voice, and terminated the call. Brooks called the victim twice more in August 2009. After the victim reported Brooks’s ongoing harassment to law enforcement, he was arrested for his repeated violations of the temporary protective order, which was extended by another six months as a result of his violations.

On December 4, 2009, Brooks was released from jail on his own recognizance with certain bond conditions, one of which prohibited any type of contact with the victim. From December 2009 through January 2010, Brooks made repeated calls to the victim. Then, on February 20, 2010, Brooks sent the victim 14 text messages. The text messages indicated that Brooks knew of the victim’s recent sexual activity and was otherwise keeping track of the victim’s actions. The repeated phone calls and text messages placed the victim in fear for her safety, and she notified law enforcement that Brooks was still contacting her.

Based upon the alleged violations of the temporary protective order and of the bond conditions, Brooks was charged with two counts of aggravated stalking. Following a jury trial, Brooks was convicted of both counts.

1. Brooks contends that the evidence was insufficient to sustain his convictions for aggravated stalking. Brooks asserts that the State failed to prove that he contacted the victim in violation of the protective order, and that the violation of a protective order, by itself, did not amount to the offense of aggravated stalking. Brooks further argues that the State also failed to establish that his contact with the victim was for the purpose of harassing or intimidating her. We disagree.

OCGA § 16-5-91 (a) provides in pertinent part:

A person commits the offense of aggravated stalking when such person, in violation of... a temporary protective order ... or condition of pretrial release in effect prohibiting the behavior described in this subsection, follows, places under surveillance, or contacts another person at or about a place or places without the consent of the other person for the purpose of harassing and intimidating the other person.

(Punctuation omitted.) Although the aggravated stalking statute does not define “harassing and intimidating,” the phrase is defined in the simple stalking statute, OCGA § 16-5-90 (a) (1). See State v. Burke, 287 Ga. 377, 378 (695 SE2d 649) (2010). That statute defines “harassing and intimidating” as a

knowing and willful course of conduct directed at a specific person which causes emotional distress by placing such person in reasonable fear for such person’s safety or the safety of a member of his or her immediate family, by establishing a pattern of harassing and intimidating behavior, and which serves no legitimate purpose.

OCGA § 16-5-90 (a) (1); see also Placanica v. State, 303 Ga. App. 302, 304 (693 SE2d 571) (2010) (“A defendant need not engage in unequivocally hostile conduct or make explicit threats in order to be convicted of stalking [under OCGA § 16-5-90 (a) (1)].”) (punctuation omitted).

Even a single violation of a protective order may violate OCGA § 16-5-91 (a) if that violation is part of a pattern of harassing and intimidating behavior. See Louisyr v. State, 307 Ga. App. 724, 729 (1) (706 SE2d 114) (2011). To determine whether the evidence shows a pattern of harassing and intimidating behavior, “the jury can consider a number of factors, including the prior history between the parties, the defendant’s surreptitious conduct, as well as his overtly confrontational acts[.]” (Punctuation and footnotes omitted.) Id. We have held that the evidence was sufficient to prove a pattern of harassing and intimidating behavior where it showed that the violation of a protective order was preceded by repeated threats to the victim. See Hervey v. State, 308 Ga. App. 290, 292 (707 SE2d 189) (2011); see also Davidson v. State, 295 Ga. App. 702, 704-706 (673 SE2d 91) (2009) (the evidence was sufficient to prove a pattern of harassing and intimidating behavior and, thus, supports a conviction for aggravated stalking, where the defendant telephoned the victim in violation of a condition of probation, which was preceded by threats and conduct that predated the imposition of the probation condition).

Here, the jury was authorized to find Brooks guilty of both counts of aggravated stalking. The victim testified that she answered the July 30, 2009 call because she recognized Brooks’s cell phone number, and that upon answering the phone, she heard Brooks’s voice, which she recognized based on being with him for more than five years. The victim also testified that she received additional calls in August 2009 from other phone numbers belonging to Brooks. While Brooks denied at trial that he called the victim in July or August 2009, the jury was free to reject his testimony and believe that of the victim. See Hervey, supra, 308 Ga. App. at 291-292 (“[T]he jurors are the judges of credibility and the weight of the evidenced]”) (citation and punctuation omitted).

Furthermore, Brooks does not deny sending text messages to the victim after his release from jail. He nevertheless contends that his text messages to the victim did not amount to aggravated stalking because they were not threatening or otherwise accompanied by any direct contact with the victim. The evidence, however, does not support his claims. The text messages referenced the victim’s recent sexual activity and suggested that Brooks was keeping the victim under surveillance, because he knew about her movements. Even if his messages to the victim “were not overtly threatening, given the history of [Brooks’s] persistent . . . actions, and his refusal to leave the victim alone, a rational jury could have found beyond a reasonable doubt that such acts were intended to harass and intimidate and placed the victim in fear for her safety.” (Citation and punctuation omitted.) Patterson v. State, 284 Ga. App. 780, 784 (4) (b) (645 SE2d 38) (2007); see also Maskivish v. State, 276 Ga. App. 701, 703 (1) (b) (624 SE2d 160) (2005) (holding that a defendant’s letters to the victim that included disparaging remarks about the victim’s appearance and referenced her infidelities, were sufficient evidence to support a finding that the acts were intended to harass and intimidate the victim and reasonably placed the victim in fear for her safety). Given the victim’s testimony that Brooks had previously threatened her, Brooks’s history of violence against the victim, and his repeated phone calls and text messages to the victim, there was sufficient evidence authorizing the jury to find Brooks guilty of both counts of aggravated stalking. See Hervey, supra, 308 Ga. App. at 292.

2. Brooks next contends that the trial court erred by excluding or limiting the testimony of two of his witnesses, which he alleges was critical to his defense. We disagree.

(a) Brooks specifically argues that the trial court erred by excluding the proffered testimony from a Department of Family and Children Services (“DFACS”) employee concerning allegations of abuse by the victim’s son against the couple’s daughter, because this evidence was relevant to show the victim’s motive, and lack of veracity, in applying for the temporary protective order against Brooks.

At a pre-trial hearing, Brooks argued that he wanted to call the DFACS employee as a witness to establish the timing between Brooks’s contact with DFACS on July 28, 2009, and the victim’s request to obtain a temporary protective order on July 29, 2009, contending that such demonstrated the victim sought a temporary protective order in retaliation for Brooks’s report to DFACS. Brooks also argued that the DFACS employee’s testimony raised an issue of veracity as to the victim’s statements made in support of obtaining the temporary protective order. The trial court allowed Brooks to call the DFACS employee as a witness, but limited his questioning to the general nature and timing of Brooks’s call to DFACS.

Brooks’s arguments are without merit. The trial court has wide discretion in determining what evidence is relevant and material, and evidence that does not bear upon the questions being answered by the jury should be excluded. OCGA § 24-2-1; Elrod v. State, 195 Ga. App. 571, 572 (4) (394 SE2d 548) (1990). The trial court was authorized to conclude that the substantive molestation allegations were not relevant to the aggravated stalking charges at issue. Brooks was otherwise allowed to challenge the victim’s motives and truthfulness without interjecting immaterial matter at the trial. As such, no error has been shown. See Mosier v. State, 218 Ga. App. 586, 587 (1) (462 SE2d 643) (1995).

(b) Brooks also contends that the trial court erred by limiting the testimony of a witness who would have testified that he had given Brooks unsolicited information about the victim. Brooks argues that the witness’s testimony would have established that Brooks was not following the victim, as suggested by Brooks’s text messages, but was instead getting unsolicited information from the witness.

Brooks, however, has not established that the witness’s testimony was relevant to the aggravated stalking offenses as charged. Notwithstanding Brooks’s arguments, his aggravated stalking charges were not based upon placing the victim under surveillance, but rather for his acts of contacting the victim in violation of the temporary protective order and his bond conditions. OCGA § 16-5-91 (a). Moreover, regardless of the exclusion of the witness’s testimony, Brooks himself testified that he was not personally following or watching the victim, and that the information he included in the text messages was given to him by other individuals. Therefore, “the excluded evidence would have been cumulative of [Brooks’s] trial testimony that had already been admitted. In light of its cumulative nature, any error in the exclusion of the evidence was harmless.” (Citation omitted.) Bearfield v. State, 305 Ga. App. 37, 42 (2) (699 SE2d 363) (2010).

3. In his remaining enumeration of error, Brooks contends that the trial court erred by failing to give his requested charges on the lesser included offenses of harassing phone calls and violation of a temporary protective order. We disagree.

A crime is considered “included” in another offense when it is established by proof of the same or less than all the facts or a less culpable mental state than is required to establish the commission of the crime charged. OCGA § 16-1-6 (1). However, the complete rule with regard to giving a defendant’s requested charge on a lesser included offense is: where the state’s evidence establishes all of the elements of an offense and there is no evidence raising the lesser offense, there is no error in failing to give a charge on the lesser offense.

(Punctuation omitted.) Patterson, supra, 284 Ga. App. at 783 (3).

Here, the State’s evidence was sufficient to establish all of the elements of the aggravated stalking offenses as indicted. Brooks’s defense was that he never called the victim in July or August 2009. Brooks also denied that any of his text messages to the victim were for the purpose of harassing or intimidating her.

Thus, under the evidence, either [Brooks] was guilty of the indicted offense [s] or he was guilty of no offense whatsoever. Where, as here, the evidence shows either the commission of the completed offense[s] as charged, or the commission of no offense, the trial court is not required to charge the jury on [the] lesser included offense [s]. Accordingly, under the circumstances existing herein, there was no error in the trial court’s refusal to charge the lesser included offense[s].

Decided January 30, 2012

Stephanie R. Lindsey, for appellant.

Layla H. Zon, District Attorney, Melanie M. Bell, Assistant District Attorney, for appellee.

(Punctuation omitted.) Patterson, supra, 284 Ga. App. at 783 (3).

Judgment affirmed.

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


text:
    A11A2058.
    CALLIOPE PROPERTIES, LLC v. FULTON COUNTY BOARD OF ASSESSORS.
    (723 SE2d 34)
   Adams, Judge.

Calliope Properties, LLC (“Calliope”) appeals the trial court’s order setting aside a judgment awarding it attorney fees under OCGA § 48-5-311 arising in connection with an ad valorem property assessment made by the Fulton County Board of Assessors (the “Board”) on a residential parcel located at 2864 Diana Drive (the “Property”). We reverse for the reasons set forth below.

The Board set the 2009 value for the Property at $77,700. Wachovia Mortgage Corporation (“Wachovia”), which apparently was the property owner as of January 1, 2009, conveyed the Property to R. J. Morris by special warranty deed dated January 20, 2009. The same day Morris re-conveyed the Property to Calliope by warranty deed. Calliope filed a 2009 property tax return claiming a tax value for the Property of $15,100, and appealed the Board’s valuation. In response, the Board reduced the valuation to $73,900, and Calliope appealed to the Fulton County Board of Equalization (the “BOE”) and later to the superior court. Although Calliope filed these appeals in its own name, when the Board certified the appeal to the superior court, it listed Wachovia as the taxpayer. Calliope filed a “Motion to Correct a Misnomer,” asserting that it was the taxpayer and real party in interest and thus the proper plaintiff in the appeal. The Board did not oppose the motion, and the trial court granted it.

On the day of the scheduled jury trial, the Board and Calliope stipulated that the fair market value of the Property for tax purposes was $15,100. The Board argued to the trial court that this stipulation obviated the need for any judicial determination of value, and therefore the issue of attorney fees under OCGA § 48-5-311 did not arise. After hearing argument from the parties, the trial court entered an order on November 30, 2010, finding that the value of the Property was $15,100. The court also determined that because that value was less than 85 percent of the value the Board set on the Property, Calliope had established the “threshold conditions” for the recovery of attorney fees under OCGA § 48-5-311 (g) (4) (B) (ii). The trial court indicated that it would hear argument on the reasonableness of such costs and attorney fees at a subsequent hearing.

The Board subsequently filed a motion to set aside that judgment, as well as the order granting Calliope’s motion to correct a misnomer, on the ground that the real party in interest did not prosecute the appeal, and thus the superior court lacked jurisdiction in this matter. The Board argued that Wachovia, not Calliope, was the property owner/taxpayer as of January 1, 2009, which it argued was the crucial date contemplated under OCGA § 48-5-311, and thus Wachovia was the real party in interest. The Board asserted that nothing in the warranty deed from Wachovia assigned its rights to prosecute a tax appeal on the Property to Calliope, and thus it retained such rights. Because Wachovia failed to appeal the tax assessment, the Board argued that the trial court lacked jurisdiction to consider the matter. The trial court agreed, finding that Wachovia was the proper party to prosecute the appeal and thus granting the motion to set aside. Calliope appeals the grant of that motion on a number of grounds.

We find that this case is controlled by our earlier opinion in Fulton County Bd. of Assessors v. Calliope Properties, 312 Ga. App. 875 (720 SE2d 312) (2011) (Calliope I), in which we held that the Board waived its right to contest Calliope’s standing as the real party in interest to prosecute a tax appeal on another property by failing to raise the issue prior to judgment. Similarly in this case, the Board raised no opposition to Calliope’s being named as the plaintiff to the appeal and, in fact, continued to negotiate with Calliope as the plaintiff, ultimately reaching a mutual agreement as to the Property’s value. Thus, the Board raised no opposition to Calliope’s standing as the real party in interest until after the trial court entered judgment on the merits of the appeal and awarded Calliope attorney fees. Under these circumstances, we find that the Board waived the issue as discussed in Calliope I, 312 Ga. App. at 878 (1). Accordingly, the trial court erred in granting the Board’s motion to set aside and we reverse.

Decided January 30, 2012.

Evans, Scholz, Williams & Warncke, Robert W. Scholz, John F. Woodham, for appellant.

Denval A. Stewart, Vincent D. Hyman, for appellee.

Judgment reversed.

Barnes, P. J., and Blackwell, J., concur.

       Calliope paid the 2009 taxes subject to the pending appeals.