text:
    A15A1037.
    WILLIAMS v. THE STATE.
    (777 S.E.2d 711)
   DOYLE, Chief Judge.

Ronnie O’Neal Williams was convicted of possession of cocaine. He appeals the denial of his subsequent motion for new trial, arguing that the trial court erred by denying his motion for a directed verdict. We disagree and affirm.

On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to support the verdict, and [the defendant] no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility.

So viewed, the record shows that on April 23, 2012, while on patrol, Investigator Donald McNeil observed a pill bottle standing upright at the rear of a vehicle parked near a grocery store. Shortly thereafter, Williams picked up the pill bottle. Investigator McNeil asked Williams what was in his hand, and Williams replied, “[Y]ou know what it is, it’s drugs.” Williams then stated that the drugs belonged to another person, Johnny Donaldson, who Williams indicated was on the other side of the store. Investigator McNeil was unable to find Donaldson, and he returned and arrested Williams, charging him with possession of cocaine.

At trial, another officer testified that he field tested the items in the pill bottle, and they tested positive for the presence of cocaine. A forensic chemist for the Georgia Bureau of Investigation (“GBI”) testified that two tests of the substance found in the pill bottle tested positive for the presence of cocaine. The prosecutor, however, neglected to tender the cocaine for admission into evidence. After the State rested, Williams moved for a directed verdict on the basis that the State had not met its burden of proof. The trial court denied the motion, and then granted the prosecutor’s request to reopen the evidence for the purpose of tendering the cocaine. Williams objected at the time of the tender, but the trial court overruled the objection and admitted the exhibit. The jury found Williams guilty, and the trial court sentenced him to serve 15 years in prison. The trial court denied Williams’s subsequent motion for new trial, and this appeal followed.

On appeal, Williams argues that the trial court erred by denying his motion for directed verdict because the State failed to meet its burden of proof by failing to tender the physical sample of the drug he allegedly possessed. This enumeration is without merit.

“A defendant is entitled to a directed verdict only where there is no conflict in the evidence and the evidence introduced at trial with all reasonable deductions and inferences therefrom demands a verdict of not guilty as the only legal finding possible.” The Supreme Court of Georgia has explained:

[Fjailure of the prosecution in a drug-possession case to introduce physical samples of the drug allegedly possessed does raise substantial questions with respect to whether the evidence is sufficient to authorize a verdict of guilty. However, in our opinion the absence of such proof does not lead ineluctably to the conclusion that there has been no proof of corpus delicti____[T]he concept of corpus delicti requires that in a drug-possession case there be proof by thefSJtate that the defendant possessed (or perhaps attempted to possess) the illegal drug; however, there is no invariable requirement that in every such case, the drug itself be produced,

Here, the State introduced the testimony of the officer who recovered the pill bottle from Williams, as well as that of the officer and the GBI chemist who conducted tests on the contents of the bottle, which tests indicated the presence of cocaine. “Accordingly, the State has given reasonable assurance of the identity of the evidence. That the cocaine [possessed by Williams] was not produced at trial is of no significance [because] the State is not required to introduce the illegal drug itself into evidence.” Thus, the trial court did not err by denying Williams’s motions for directed verdict and for a new trial.

Decided September 23, 2015.

Patrick E. Chisholm, for appellant.

Joseph K. Mulholland, District Attorney, Moruf O. Oseni, Assistant District Attorney, for appellee.

Judgment affirmed.

Phipps, P. J., and Boggs, J., concur.

       OCGA § 16-13-30 (a).

       (Citations and punctuation omitted.) Jackson v. State, 252 Ga. App. 268 (1) (555 SE2d 908) (2001).

       Investigator McNeil had the cocaine diming the trial, and he opened the sealed package containing it and resealed it during his testimony.

        Slade v. State, 222 Ga. App. 407, 408 (474 SE2d 204) (1996).

       (Citations omitted; emphasis supplied.) Chancey v. State, 256 Ga. 415, 421 (III) (1) (A) (c) (349 SE2d 717) (1986).

       (Citation omitted.) Slade, 222 Ga. App. at 408 (1).


source: Caselaw Access Project

author: Miller, Judge.

license: Public Domain

text:
    A15A1250.
    ROYAL v. GEORGIA FARM BUREAU MUTUAL INSURANCE COMPANY.
    (777 S.E.2d 713)
   Miller, Judge.

Robert Royal sustained serious injuries while hauling corn in a truck owned by Kim Eugene Williams. Royal sought to settle under both Williams’s Georgia Farm Bureau Mutual Insurance Company (“Georgia Farm Bureau”) Farm Package Policy and Auto Policy. After settling Royal’s claim under the Farm Package Policy, Georgia Farm Bureau filed for a declaratory judgment to resolve Royal’s claim under the Auto Policy. The trial court granted Georgia Farm Bureau’s motion for summary judgment on the ground that Royal was excluded from coverage under the Auto Policy because he was Williams’s employee at the time of the accident. Royal appeals, contending that the trial court erred in finding that he was an employee, rather than an independent contractor. For the reasons that follow, we affirm.

Summary judgment is proper where there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. On appeal from the grant or denial of summary judgment, we conduct a de novo review, construing the evidence and all reasonable conclusions and inferences drawn therefrom in the light most favorable to the nonmovant.

(Footnotes omitted.) Boatright v. Old Dominion Ins. Co., 304 Ga. App. 119, 120 (695 SE2d 408) (2010).

So viewed, the evidence shows that Williams is a farmer in Hazlehurst. Williams owned two trucks that he used to haul his crops and farming supplies. Williams employs a full-time lead driver on his farm. Williams also has a commercial driver’s license (“CDL”). Williams also occasionally employed independent truckers, who owned their own trucks and paid for their own gas and maintenance, to haul corn. These truck drivers exercised control over how much grain was loaded into their trucks and how many loads they hauled, and they were paid by the bushel.

In August 2013, Williams hired Royal to transport corn from Williams’s farm to a mill for a period of two weeks during the harvest. The only special skills and training required for Royal’s position were knowing how to drive a truck and having a CDL. At the time he began working for Williams, Royal had just received his CDL, he had no previous experience hauling corn or any other commodity and this was his first job driving a truck.

Royal drove one of Williams’s trucks and did not own his own truck. Williams paid for the insurance, gas, and maintenance of the truck that Royal drove. Royal brought his own logbook, but he turned it over to Williams and never used it. All of the equipment that Royal used on the job was owned by Williams, and Williams could fire Royal. Royal worked for Williams full-time, ten to twelve hours a day and did not work for anyone else. Royal understood that he would be paid by the bushel.

Williams or Williams’s lead truck driver told Royal what time to be at work each day, what time to leave, where to go, and how to do his job. Farm workers loaded the truck with corn, and Royal had no control over how much corn he hauled in each load. Royal followed the lead driver from the farm to the mill, and he always followed the instructions of the lead driver. A few days after he began working for Williams, Royal was in a serious accident in Williams’s truck while hauling a load of corn.

On appeal, Royal contends that the trial court erred in finding that he was excluded from coverage under Williams’s Auto Policy because he was Williams’s employee rather than an independent contractor. We disagree.

In construing an insurance policy, we begin, as with any contract, with the text of the contract itself. One of the most well-established rules of contract construction is that the contract must be construed as a whole, and the whole contract should be looked to in arriving at the construction of any part.

(Citation omitted.) Wade v. Allstate Fire and Cas. Co., 324 Ga. App. 491, 492-493 (751 SE2d 153) (2013). Here, Williams’s Auto Policy excluded from coverage any bodily injury to “an employee of the ‘insured’ arising out of and in the course of employment by the ‘insured’ ” or “any fellow employee of the ‘insured’ arising out of and in the course of the fellow employee’s employment.” The Auto Policy does not define “employee.” Therefore, we attribute to that term its usual and common meaning. See Taylor Morrison Svcs., Inc. v. HDI-Gerling America Ins. Co., 293 Ga. 456, 459 (1) (746 SE2d 587) (2013).

To determine whether a person is an employee or an independent contractor, the test

is whether the employer, under the contract, whether oral or written, has the right to direct the time, the manner, the methods, and the means of the execution of the work The right to control the manner and method means the right to tell the employee how he shall go about doing the job in every detail, including what tools he shall use and what procedures he shall follow.

(Citations and punctuation omitted.) RBF Holding Co. v. Williamson, 260 Ga. 526 (397 SE2d 440) (1990).

The undisputed facts in this case show that Williams controlled the time, manner, method, and means of execution of Royal’s work. Notably, the entire time Royal worked for Williams, Royal simply followed the instructions of Williams or Williams’s lead driver. Williams and his lead driver controlled Royal’s hours, where he went, how much corn he hauled, and how he did his job. Williams provided Royal with all of his tools and equipment, and Williams could fire Royal. Accordingly, Royal was an employee of Williams. See Boatright, supra, 304 Ga. App. at 121 (1) (construction worker was an employee where employer provided worker with necessary tools and materials, worker was required to perform work as instructed by employer’s foreman, and employer could discharge worker).

Despite the evidence set forth above, the trial court nonetheless considered additional factors, set out in the Restatement of Agency 2d, § 220, in determining whether Royal was Williams’s employee. Royal argues that he is an independent contractor under the factors set out in the Restatement. Specifically, Royal argues that his occupation as a truck driver is distinct from Williams’s occupation as a farmer; driving a truck is not a regular part of Williams’s business; and Williams never intended for Royal to become a farm employee, as evident by the fact that Royal was never assigned to complete any other tasks besides transporting grain. The record, however, shows that Williams and his employees transport almost all of Williams’s crops, as well as other farm supplies, in Williams’s own trucks. Moreover, Williams employs a full-time driver on the farm and has a CDL himself. Thus, transporting crops is a part of Williams’s farming business. See Fieldstone Center, Inc. v. Stanley, 216 Ga. App. 803, 805 (3) (456 SE2d 61) (1995) (delivery of stones to project site was part of the regular operation of business of selling and installing stone).

Royal also argues that trucking is a highly skilled job and he received little instruction or supervision, which indicates that he was an independent contractor. Even assuming that trucking is a highly skilled occupation, an employee’s special skill is not determinative where an employer has control over the time, method and manner of the employment. See Southern Gen. Ins. Co. v. Boerste, 195 Ga. App. 665, 668 (2) (394 SE2d 566) (1990) (although pilot had special skills, he was an employee, not an independent contractor, because his employer controlled the destination and time of the flight).

Royal also argues that he was an independent contractor because he provided his own logbook, although he turned it over to Williams and never used it. Since Williams provided all of the tools and materials necessary for Royal’s work and paid for the gas and maintenance of the truck, the fact that Royal supplied his own logbook is insufficient to raise a genuine issue of material fact as to Royal’s status. See Boatright, supra, 304 Ga. App. at 121 (1) (although construction worker provided his own hammer, measuring tape and tool belt, employer provided all other necessary tools and materials for work and thus construction worker was an employee as matter of law).

Royal also argues that his short-term employment indicates that he was an independent contractor. Contrary to Royal’s argument, “[m]any seasonal businesses necessarily hire only seasonal employees, but that fact alone does not convert seasonal employees into seasonal independent contractors.” Secretary of Labor, United States Dept. of Labor v. Lauritzen, 835 F2d 1529, 1537 (III) (E) (7th Cir. 1987); see, e.g., Lee v. Satilla Health Svcs., Inc., 220 Ga. App. 885, 886-887 (1) (470 SE2d 461) (1996) (looking to federal cases in deciding whether a doctor was a hospital employee or an independent contractor).

Decided September 23, 2015

Farrar, Hennesy & Tanner, Matthew J. Hennesy, for appellant.

Young, Thagard, Hoffman, Smith, Lawrence & Shenton, J. Holder Smith, Jr., Brian J. Miller, for appellee.

Finally, Royal argues that he was an independent contractor because there was a discrepancy in the evidence as to whether he was to be paid hourly or by the bushel and Williams never paid taxes on his wages. The method of payment, while it might be circumstantial evidence tending to indicate the relationship of the parties, is not a controlling or decisive factor. See, e.g., Golosh v. Cherokee Cab Co., 226 Ga. 636, 639 (176 SE2d 925) (1970). Similarly, even if income tax and social security had been withheld, this could not overcome other undisputed evidence showing that Williams had the right to control the manner and method of Royal’s work. See Boatright, supra, 304 Ga. App. at 122-123 (1).

Given the undisputed evidence that Williams controlled the time, manner, method and means of execution of Royal’s work, none of the facts that Royal points to, even when viewed in the light most favorable to him, are sufficient to raise a genuine issue of material fact as to his work status. Accordingly, the trial court properly granted summary judgment to Georgia Farm Bureau.

Judgment affirmed.

Andrews, P. J., and Branch, J., concur.

       Under the Restatement of Agency 2d, § 220 (1), “[An employee] is a person employed to perform services in the affairs of another and who with respect to the physical conduct in the performance of the services is subject to the other’s control or right to control.” (Emphasis supplied.)
      Although control is the determinant factor under the Restatement:
      In determining whether one acting for another is [an employee] or an independent contractor, the following matters of fact, among others, are considered: (a) the extent of control which, by the agreement, the master may exercise over the details of the work; (b) whether or not the one employed is engaged in a distinct occupation or business; (c) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision; (d) the skill required in the particular occupation; (e) whether the employer or the workman supplies the instrumentalities, tools, and the place of work for the person doing the work; (f) the length of time for which the person is employed; (g) the method of payment, whether by the time or by the job; (h) whether or not the work is a part of the regular business of the employer; [and] (i) whether or not the parties believe they are creating the relationship of master and servantf.]
      Restatement of Agency 2d, § 220 (2); see also Murphy v. Blue Bird Body Co., 207 Ga. App. 853, 854-855 (1) (429 SE2d 530) (1993) (noting that Georgia courts have cited with approval the Restatement factors).

       The trial court, in viewing the record in the light most favorable to Royal, found that Royal believed he would he paid by the bushel.


author: Boggs, Judge.

text:
    A15A1443.
    DRISKELL v. THE STATE.
    (777 S.E.2d 717)
   Boggs, Judge.

A jury acquitted Corroll Driskell of pointing a gun or pistol at another, but found him guilty of simple assault. He now appeals, asserting as error the trial court’s instructions to the jury and the admission of certain evidence. For the following reasons, we affirm.

The evidence showed that Driskell and Fanolla Redmon, the divorced parents of a minor girl, met at a Starbucks location to exchange custody of the child. Driskell was with his wife, Angie Driskell, and Redmon was with her then boyfriend, Joseph Henry. After the parties arrived to exchange the child, Driskell and Redmon were standing outside of their vehicles having a conversation that escalated into an argument. Henry testified that at some point, he exited Redmon’s vehicle and told Driskell to let Redmon “talk so it could be, you know, a regular conversation.” He stated that Driskell became irate, and “began yelling and screaming, telling [him] you don’t tell me what the ‘F’ to do. How dare you insert yourself in this.” Henry asserted that he just stood there with his arms folded while Driskell shouted at him. He explained further that as Driskell continued to yell at him, Driskell “pulled a gun out and said, I’m going to kill you, you are going to die, and he cocked it back. And while he was doing that, pointing it at me, his wife was pushing him back.” Henry explained that Redmon and then Mrs. Driskell attempted to calm Driskell down, and that moments later, the Driskells got into their car and drove away.

Redmon testified that when they arrived at Starbucks, Driskell was upset that she was late in returning the child, and that their discussion escalated into an argument. She explained that when Henry interjected, Driskell lost his temper and she and Mrs. Driskell attempted to calm him down. Redmon stated that at some point Driskell “reache[d] behind his back, he pulled a gun out, and he was pointing ... in the direction of Mr. Henry, like he was going to shoot him.”

Driskell testified in his own defense that after his daughter greeted him and got into his car, he turned to get into the car himself when Redmon immediately began pulling on him. He stated that she pulled on him and “pushed [him] trying to get [his] attention.” Driskell explained that Henry then “jump[ed] out of that car and start[ed] just charging at me.” He stated that Henry started yelling and screaming at him and that his wife then “ran in between [them].” Driskell explained that while Redmon continued to pull on him, he felt his gun, which he had a license to carry, “just shifting back and forth in the holster,” and so he “immediately reached under my jacket. I took the holster and the gun, with the butt facing to my left, I used my off hand, my right hand, and I went to put it in my pocket. It didn’t immediately go in my pocket, but eventually I got it in my pocket once [Redmon] stopped grabbing me.” Driskell testified that he never pointed the gun at Henry.

Mrs. Driskell testified that after the child gave Driskell a hug and got into the back seat of his car, Driskell turned to walk away and Redmon began “pulling on him.” She stated that Henry began shouting profanity at Driskell and moved toward him. Mrs. Driskell explained that she then got out of her vehicle and got in between the two men, while Redmon continued to “pull [ ] and yank [ ] on [Driskell], trying to get him to turn around and talk to her.” She explained that she stood in between Driskell and Henry as they continued to shout at each other, and that at some point, Driskell “reach[ed] in the back, small of his back and pull[ed] out his holster with his gun, and st[u]ck it in his pocket.” Mrs. Driskell testified that Driskell pulled the gun out of the small of his back with his nondominant hand and that the gun was out “no more than a couple of second[s].” She stated that Driskell never pointed or cocked the gun.

After the parties left the scene, Redmon called police, and she and Henry drove to the police station to file a report. Driskell was charged by accusation with pointing a gun or pistol at another and simple assault. A jury found him guilty of the assault, but not guilty of pointing a gun at another. It is from this verdict that he now appeals.

1. Driskell first contends that the trial court erred in its instructions to the jury. As he concedes, his trial counsel made no objection following the court’s instructions, so his claim here is one of plain error.

The failure to object to a charge as given precludes appellate review

unless such portion of the jury charge constitutes plain error which affects substantial rights ofthe parties. OCGA § 17-8-58 (b). An appellate court is required to review for plain error an alleged jury instruction error to which no objection was raised at trial, provided the enumeration of error is properly enumerated and argued on appeal. Since new appellate counsel has properly asserted an error in the jury instructions on appeal, we review the omission of the charge ... to determine whether it constituted plain error, regardless of the lack of preservation below. Reversal is authorized if all four prongs ofthe standard adopted in [State v.] Kelly[, 290 Ga. 29 (1) (718 SE2d 232) (2011)] are met: the instruction was erroneous, the error was obvious, the instruction likely affected the outcome of the proceedings, and the error seriously affects the fairness, integrity or public reputation of judicial proceedings.

(Citations and punctuation omitted.) White v. State, 291 Ga. 7, 8 (2) (727 SE2d 109) (2012).

Driskell complains of the following instruction:

I charge you that the offense of simple assault is complete if there is a demonstration of violence coupled with apparent present ability to inflict injury so as to cause a person, against whom it is directed, reasonably to fear that he will receive a violent injury unless he retreats to secure his safety.

He asserts that this instruction is from Thomas v. State, 99 Ga. 38, 44 (26 SE 748) (1896), and “pertains to the common law version of assault.” Driskell argues that because the only definition of assault that existed when Thomas was decided was “an attempt to commit a violent injury on the person of another,” the court, in giving the instruction, charged the jury on subsection (a) (1) of OCGA § 16-5-20 rather than subsection (a) (2), under which he was charged.

We agree that a portion of the one-sentence instruction was erroneous under these particular circumstances. The trial court gave the standard charge from the Suggested Pattern Jury Instructions, “§ 2.20.11. Assault, Simple; Reasonable Fear” which includes the complained-of sentence. The instruction cites to this court’s opinion in Reeves v. State, 128 Ga. App. 750, 752 (2) (197 SE2d 843) (1973), and Reeves in turn cites to the Supreme Court of Georgia’s opinion in Thomas, decided in 1896. In 1896, assault was defined only as “an attempt to commit a violent injury on the person of another,” currently OCGA § 16-5-20 (a) (1). See Thomas, supra; Georgia Penal Code 1895 § 95. It was not until the Georgia Code was revised in 1968 that the second method of committing simple assault was added and defined as: “commit[ting] an act which places another in reasonable apprehension of immediately receiving a violent injury.” See Ga. L. 1968, p. 1280; see also Rhodes v. State, 257 Ga. 368, 369 (4) (359 SE2d 670) (1987). The Supreme Court’s statement in Thomas defining when an assault is complete therefore related only to when an attempt to commit a violent injury is complete. The court explained:

[T]here need not be an actual present ability to commit a violent injury upon the person assailed, but if there be such a demonstration of violence, coupled with an apparent ability to inflict the injury, so as to cause the person against whom it is directed reasonably to fear the injury unless he retreat to secure his safety, and under such circumstances he is compelled to retreat to avoid an impending danger, the assault is complete, though the assailant may never have been within actual striking distance of the person assailed.

Thomas, supra, 99 Ga. at 44.

Driskell was charged by accusation of simple assault pursuant to the language in OCGA § 16-5-20 (a) (2) for committing “an act which placed . . . Henry[ ] in reasonable apprehension of immediately receiving a violent injury.” But the trial court, in quoting the rule from Reeves and Thomas, instructed the jury on a “demonstration of violence” and an “ability to inflict the injury” involved in an attempt to commit a violent injury pursuant to subsection (a) (1). For this reason, the instruction was erroneous.

Nevertheless, we hold that the instruction failed to satisfy the remaining three prongs of the plain error standard. The error in the instruction was not obvious. A closer look at the rule from Thomas reveals that while it employs language applicable to subsection (a) (1), it also includes language consistent with the reasonable apprehension method of committing simple assault in subsection (a) (2): “so as to cause a person, against whom it is directed, reasonably to fear that he will receive a violent injury.” It appears then that subsection (a) (2) codified a portion of the rule from Thomas. So a portion of the court’s instruction was in fact applicable to subsection (a) (2) as charged here.

We conclude further that the instruction did not likely affect the outcome of the proceedings nor did it seriously affect the fairness, integrity or public reputation of the judicial proceedings. The jury was provided with the charging document, and the trial court correctly instructed the jury on the language of OCGA § 16-5-20 (a) (2) as charged in the accusation. The court further instructed that the State must prove guilt and intent beyond a reasonable doubt, that the jury was authorized to convict if it believed that Driskell committed “the offenses charged in the way and manner alleged,” and that the “issue in this case is formed by these charges as made by these accusations.” Upon reviewing the instruction as a whole, it is unlikely that had the trial court omitted the improper language, the jury would have reached a different verdict. As the Supreme Court of Georgia has held:

While it is true that, where the indictment charges a defendant committed an offense by one method it is reversible error for the court to instruct the jury that the offense could be committed by other statutory methods with no limiting instruction, the defect is cured . . . where the court provides the jury with the indictment and instructs jurors that the burden of proof rests upon the State to prove every material allegation of the indictment and every essential element of the crime charged beyond a reasonable doubt.

(Citations and punctuation omitted.) Faulks v. State, 296 Ga. 38, 39 (2) (764 SE2d 846) (2014); Givens v. State, 294 Ga. 264, 268 (3) (751 SE2d 778) (2013) (court’s sua sponte instruction on criminal negligence in malice murder case not plain error where jury was informed of crime as charged in the indictment, the elements of the crime, and that the State had the burden to prove each element beyond a reasonable doubt).

Driskell also argues that because the jury acquitted him of pointing a gun at Henry, it “rejected the only thing the State argued Driskell did to commit the assault,” and there was therefore an inconsistency between the verdicts demonstrating jury confusion. But the inconsistent verdict rule has been abolished in Georgia. See State v. Springer, 297 Ga. 376, 377-378 (1) (774 SE2d 106) (2015) (“abolition of inconsistent verdict rule is consistent ‘with the principle that it is not generally within the trial court’s power to make inquiries into the jury’s deliberations, or to speculate about the reasons for any inconsistency between guilty and not guilty verdicts. [Cit.]’ ”).

2. Driskell asserts that the trial court erred in allowing the State to elicit testimony from a police detective about hypothetical situations. Driskell called the detective as a witness. On direct examination, he explained that as part of his investigation, he attempted to locate witnesses to the incident, including the 911 caller, as well as surveillance from the Starbucks and nearby businesses, but was unsuccessful. He explained that after interviewing the Driskells, Henry, and Redmon, he concluded that while “all acted inappropriately that day ... it came down to . . . one person’s word against another,” he had “no probable cause to actually charge anyone with anything.”

On cross-examination, the State asked the detective: “Do you feel like somebody would be in fear of their life if you’re saying somebody wanted them to know they had a gun?” The detective responded, “I think it depends on the situation of how they’re trying to go about letting somebody know.” And when asked “If somebody had a weapon and they wanted you to see that they had a weapon, would you be in fear that, oh, they could use that weapon towards you. . . . And therefore that could be simple assault?,” to which the detective responded, “Sure. ... It could be.” In each instance, trial counsel objected that the State was invading the province of the jury, but the objections were overruled. Later during the cross-examination, the State asked the detective if he would have probable cause for arrest in the case of an allegation of rape “if it was a woman stating that she had been raped and the defendant stating that he didn’t do it.” The detective stated that he would not make an arrest based on one person’s word against another, that he had never had a domestic violence case where an arrest was made in the face of no physical injuries, and that he does not make an arrest unless there is probable cause. Trial counsel also objected to this line of questioning on the basis of “relevance and speculation”; the trial court overruled the objection.

While citing no legal authority in support of this claim of error, Driskell complains that the State’s cross-examination was improper because the detective was not admitted as an expert and the hypothetical questions “had no bearing on the facts presented in the instant case.” Even assuming the line of questioning in both of these instances was improper, and that counsel raised the proper objection, we can find no harm here as in each instance the detective gave no definitive answer to the questions posed by the State and stated that he would not make an arrest based only upon one person’s word against another, and even repeated that in this case, he found no probable cause to make an arrest. See, e.g., Turbeville v. State, 160 Ga. App. 818, 819 (2) (287 SE2d 670) (1982) (reversal not required where no harm from cross-examination).

3. Driskell argues that the 911 call violated the Confrontation Clause because the caller did not testify at trial. He contends that the caller’s statements should have been excluded as testimonial in nature.

As the Supreme Court of Georgia has noted, telephone calls made to 911 centers may be nontestimonial and therefore admissible at a later trial if the telephone call is made to avert a crime in progress or to seek assistance in a situation involving immediate danger. The determination of whether the recording of a 911 phone call is testimonial should be made on a case-by-case basis.

Decided September 23, 2015

John R. Monroe, for appellant.

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

(Citation and punctuation omitted; emphasis in original.) Owens v. State, 329 Ga. App. 455, 457 (1) (a) (765 SE2d 653) (2014).

The 911 caller, a manager at the Starbucks, told the dispatcher that a “gentleman that has just left our parking our parking lot. Uh, he just had a gun out on a previous gentleman.” He stated further that there had been a “big commotion,” and that both of the vehicles involved were still in the parking lot. As the caller was speaking to the 911 dispatcher, both vehicles exited the parking lot. The caller declined the dispatcher’s offer to send an officer to the scene or to file a report, explaining that he just wanted to report the incident and that he was just “making sure the pedestrians and everybody in the area is [sic] going to be safe.”

Although the confrontation had ended by the time the call was transferred to a dispatcher, the call was made while the incident was occurring as the caller explained. The caller’s concern was the safety of those in the area. We therefore hold that the 911 call was “made to avert a crime in progress or to seek assistance in a situation involving immediate danger,” and not to establish “evidentiary facts or ‘bear[ ] testimony’against the defendant.” Pitts v. State, 280 Ga. 288, 289-290 (627 SE2d 17) (2006); see also Thompson v. State, 291 Ga. App. 355, 358 (2) (662 SE2d 135) (2008) (where caller advised she had been hit and perpetrator was in a different apartment, call was nontestimonial in light of caller’s need for medical attention and proximity of time between the call and the attack).

Judgment affirmed.

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

       We note that there wouldbe no error in the giving of this portion of the pattern instruction where the indictment or accusation is sufficient to allege that a defendant committed simple assault under both OCGA § 16-5-20 (a) (1) and (a) (2). Cf. Cannon v. State, 223 Ga. App. 248,249 (2) (477 SE2d 381) (1996). We therefore caution trial courts against the giving of this instruction where the indictment or accusation charges simple assault by only one method.

       While Driskell does not challenge the admissibility of the 911 recording, we note that it was an admissible exception to the hearsay rule as a present sense impression. See OCGA § 24-8-803 (1); see also Owens, supra, 329 Ga. App. at 458 (1) (b).


author: Dillard, Judge.

text:
    A15A1521.
    THE STATE v. GUNN.
    (777 S.E.2d 722)
   Dillard, Judge.

The State appeals the trial court’s order granting Shawn Gunn’s motion to exclude a 911 call made by the purported victim in the State’s prosecution of Gunn for family-violence battery. Gunn filed his motion after the victim informed the State that she would not return to Georgia to testify, and the trial court agreed with Gunn that admission of the recorded call at trial would violate his Sixth Amendment right to confrontation. Because the trial court reviewed a transcript of the call, and accordingly, because a recording of the call does not appear in the record before us, we vacate the trial court’s order and remand to the trial court to reconsider the motion after listening to the recorded call.

The record reflects that the alleged victim called 911 following an altercation with Gunn and that, during the course of the call, the victim drove away from the scene of the altercation and to a location where she could meet with law enforcement. The record contains two transcripts that purport to memorialize the conversation between the victim and the 911 operator — one prepared by the State and one prepared by Gunn, and both of which were attached to the parties’ post-motion-hearing briefs filed for the trial court’s consideration.

At the hearing on Gunn’s motion, neither party tendered the recording into evidence, and although the trial court at two different points indicated that it would need to listen to the recording, the court then backtracked and suggested, “Maybe you just need to give me a transcript of it. Let me look at it and then that what [sic] we’d be doing in a motion hearing. I need to find out what’s going on, what’s said.” The court then instructed, “Give me a transcript of the tape and let me see what we’ve got and then y’all brief me on your timeline____” And while the trial court’s order indicates that the court “reviewed the 911 tape,” there is no tape in the record, only the parties’ transcripts. Then, following its review, the trial court granted Gunn’s motion after determining that the victim’s statements were “testimonial in nature” because “there was no emergency’ and the statements “were more about investigation and gathering evidence for apprehension of the Defendant.” This appeal by the State follows.

At the outset, we note that the Sixth Amendment to the United States Constitution provides that “[i]n all criminal prosecutions, the accused shall enjoy the right... to be confronted with the witnesses against him.” This clause applies to witnesses against the accused— “in other words, those who ‘bear testimony.’ ” Consistent with the framers’ original public understanding, “[testimonial statements of witnesses absent from trial have been admitted only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine.” And the Supreme Court of the United States has determined that 911 calls, or portions of 911 calls, can fall under the category of “testimonial statements,” depending on a determination as to the primary purpose for the call. Consistent with this precedent, the Supreme Court of Georgia has also recognized that, “in certain circumstances a [911] caller may shift from a non-testimonial statement into a testimonial one” and that, therefore, trial courts “must decide whether a caller’s primary purpose has shifted in such a manner as to render portions of the call testimonial in nature, and should selectively redact portions of the recording when that is the case.”

To determine the primary purpose of any interrogation, including 911 calls, and to decide whether the primary purpose is “to enable police assistance to meet an ongoing emergency,” a court must “objectively evaluate the circumstances in which the encounter occurs and the statements and actions of the parties.” And the “circumstances in which an encounter occurs — e.g., at or near the scene of the crime versus at a police station, during an ongoing emergency or afterwards — are clearly matters of objective fact.” Furthermore, the parties’ actions and statements must also “be objectively evaluated.”* The relevant inquiry, then, is not the actual or subjective purpose of the individuals who are involved in a particular encounter, but rather “the purpose that reasonable participants would have had, as ascertained from the individuals’ statements and actions and the circumstances in which the encounter occurred.”

The Supreme Court of the United States has explained that the “existence of an ongoing emergency is relevant to determining the primary purpose of the interrogation because an emergency focuses the participants on something other than proving past events potentially relevant to later criminal prosecution.” But whether an emergency exists and remains ongoing is “a highly context-dependent inquiry.” And it is for this reason that we vacate the trial court’s order and remand for reconsideration of Gunn’s motion after listening to a recording of the 911 call, which must also be made part of the record so that this Court — should there be another appeal — can do likewise.

While a review of a transcript of a 911 call may be sufficient to determine the primary purpose of such a call in some cases, under the particular facts and circumstances of this case, listening to the actual recording may impact the trial court’s analysis and conclusions. Indeed, the State’s transcript suggests that at the beginning of the 911 call, Gunn was continuing to approach and pursue the victim: ‘Well, oh, you see, he’s walking at me. He’s now [sic].” Gunn’s transcript differs: “Well... uh ... let’s see ... um ... he’s walking now ... he’s . . . he’s uh . . . Providence Place.” Additionally, the transcript prepared by the State contains statements by the victim that suggest Gunn continued his attack even after she entered her vehicle:

I got blood on my face[.] I probably go[t] a busted lip. I will probably have a black eye. When I was trying to drive away, he was grabbing his hand cause he was trying to punch the window.

But Gunn’s transcript records the victim’s statements differently:

I got blood on my face. I think I probably got a busted lip and I... I’m probably gonna have a black eye. He ... uh ... went outside... went away. He was grabbing his hand ’cause he was trying to punch the window. I got a baby.

In addition to noting these glaring inconsistencies between the parties’ two prepared transcripts, we also again note that the relatively brief 911 call at issue was made while the alleged victim began to and did drive away from the scene of the altercation. And given the timing of the call and the victim’s actions while making the call, listening to the recording would allow the trial court (and this Court) to hear the victim’s tone of voice, assess her level of composure, and glean clues about the environment in which she made her call. Suffice it to say, these details will provide greater context for the circumstances in which the call was made, and this information could certainly impact an assessment of whether the call at any point evolved from a non-testimonial to testimonial statement.

Accordingly, for all of the foregoing reasons, we vacate the trial court’s order and remand to the trial court for reconsideration of Gunn’s motion after listening to a recording of the 911 call, which should also be made part of the record for any subsequent appeal.

Decided September 23, 2015.

Kellie K. McIntyre, Solicitor-General, Nancy B. Johnson, David B. Bell, Assistant Solicitors-General, for appellant.

Constance A. Parks, for appellee.

Judgment vacated and case remanded.

Ellington, P. J., and McFadden, J., concur.

       The court stated, “Well, you know, it deals with his constitutional rights. I mean, we need to listen to what’s going on.” Then later, “[w] ell, I need to listen -1 need a - how long is the tape? It can’t he very long.”

       U.S. Const, amend. VI; see also Ga. Const, art. I, § I, ¶ XIV (“Every person charged with an offense against the law of this state... shall be confronted with witnesses testifying against such person.”).

        Crawford v. Washington, 541 U.S. 36, 51 (III) (A) (124 SCt 1354, 158 LE2d 177) (2004).

        Id. at 59 (IV).

        See Michigan v. Bryant, 562 U.S. 344, 365 (III) (B) (131 SCt 1143, 179 LE2d 93) (2011) (noting that “a conversation which begins as an interrogation to determine the need for emergency assistance can evolve into testimonial statements” and that, when this happens, a trial court can exclude the portions of those statements that are testimonial in nature); Davis v. Washington, 547 U.S. 813, 823-29 (III) (A) (126 SCt 2266, 165 LE2d 224) (2006) (evaluating the primary purpose of a 911 call to determine whether statements were testimonial or non-testimonial); see also Brittain v. State, 329 Ga. App. 689, 694 (2) (a), n.15 (766 SE2d 106) (2014); Philpot v. State, 309 Ga. App. 196, 203 (1) (b) (709 SE2d 831) (2011) (physical precedent only as to Division 1).

        Pitts v. State, 280 Ga. 288, 291 (627 SE2d 17) (2006).

        Id.; see also Owens v. State, 329 Ga. App. 455, 458 (1) (a) (765 SE2d 653) (2014) (“Because... the trial court properly redacted those portions of the calls arguably involving the victim’s narration of past events and his assessment of [the defendant’s] character, the court did not err when it concluded that the 911 calls were nontestimonial.”).

        Bryant, 562 U.S. at 359 (III); Davis, 547 U.S. at 822 (II), 828 (III) (A).

        Bryant, 562 U.S. at 359 (III).

        Id. at 360 (III) (A).

        Id.

        Id.

        Id. at 361 (III) (B) (punctuation omitted).

        Id. at 363 (III) (B) (emphasis supplied).

        See Davis, 547 U.S. at 827 (III) (A) (comparing and contrasting the statements at issue in Crawford v. Washington with those in Davis, and observing that “Crawford was responding calmly, at the station house, to a series of questions, with the officer-interrogator taping and making notes of her answers; McCottry’s frantic answers were provided over the phone, in an environment that was not tranquil, or even (as far as any reasonable 911 operator could make out) safe”); Pitts, 280 Ga. at 290 (noting that during the course of multiple phone calls, victim was heard screaming at the defendant); see also State v. Bratschi, 413 S.C. 97 (775 SE2d 39) (2015) (noting that caller was “frantic” and that, even after caller learned that perpetrator was at the police station, the caller was “still afraid she will come into the trailer at any moment” and that the caller was “not calm and rational and is still operating as though the attack is still in progress”); Hayes v. Adams, No. 1:09-CV-01749 LJO GSA HC, 2011 WL 5040710, at *11 (E.D. Cal. 2011) (noting that, despite the fact that assault had ended and victim did not “desire or require medical assistance,” 911 call was a “bona fide call for help” when victim could be heard throwing up and crying in the background and the “call was not tranquil but was a frantic call for help”); People v. Conyers, 777 NYS2d 274, 277 (N.Y. Sup. 2004) (noting that “audible on the[ ] 911 tapes are the voices of the victim and the defendant while the assault is still in progress” and that it was “clear to this [C] ourt, having heard the panicked and terrified screams of [the victim], that her intention in placing the 911 calls was to stop the assault in progress and not to consider the legal ramifications of herself as a witness in a future proceeding”). Cf. Bryant, 562 U.S. at 364-65 (III) (B) (“The medical condition of the victim is important to the primary purpose inquiry to the extent that it sheds light on the ability of the victim to have any purpose at all in responding to police questions and on the likelihood that any purpose formed would necessarily be a testimonial one. The victim’s medical state also provides important context for first responders to judge the existence and magnitude of a continuing threat to the victim, themselves, and the public.”).

        Cf. Bryant, 562 U.S. at 365 (III) (B) (“This evolution may occur if, for example, a declarant provides police with information that makes clear that what appeared to be an emergency is not or is no longer an emergency or that what appeared to be a public threat is actually a private dispute. It could also occur if a perpetrator is disarmed, surrenders, is apprehended, or, as in Davis, flees with little prospect of posing a threat to the public.”).


author: ELLINGTON, Presiding Judge.

text:
    A14A0718.
    LEGACY ACADEMY, INC. et al v. MAMILOVE, LLC et al.
    (777 S.E.2d 731)
   ELLINGTON, Presiding Judge.

In Legacy Academy v. Mamilove, LLC, 328 Ga. App. 775 (761 SE2d 880) (2014), this Court affirmed the jury’s verdict in favor of plaintiffs Mamilove, LLC, Michele Reymond, and Lorraine Reymond (collectively, “Mamilove”). In Legacy Academy v. Mamilove, LLC, 297 Ga. 15 (771 SE2d 868) (2015), the Supreme Court of Georgia reversed Divisions 4 and 5 of this Court’s opinion, finding that Legacy Academy, Inc. and its officers, Frank and Melissa Turner (collectively, “Legacy”), were entitled to a directed verdict on Mamilove’s claims for rescission, fraud, negligent misrepresentation, and violation of the Georgia RICO statute. Accordingly, we vacate Divisions 4 and 5 of our opinion and adopt the opinion of our Supreme Court as our own in place of those divisions.

In light of the foregoing, Divisions 2, 3, 9, 10, and 11 of our previous opinion address issues which are now moot; accordingly, we vacate these divisions. The Supreme Court did not address Divisions 1, 6, and 8. The analysis in Division 7 of our opinion, in which we considered whether the trial court erred in denying Legacy’s motion for a directed verdict on its counterclaim for breach of contract, was based on two alternate grounds. That portion of Division 7 that is based on our conclusion that the jury found that the franchise agreement was rescinded, particularly the second sentence of the first paragraph of Division 7 and the accompanying citation, is inconsistent with the opinion of the Supreme Court. That portion of Division 7 is therefore vacated. See Shadix v. Carroll County, 274 Ga. 560, 563-564 (1) (554 SE2d 465) (2001).

In accordance with the directive of the Supreme Court, the jury’s verdict, “in its entirety,” must be reversed and the case remanded for a new trial on the parties’ claims, other than for rescission, fraud, negligent misrepresentation, and violation of the Georgia RICO statute.

Decided September 24, 2015.

C. David Joyner; Gregory, Doyle, Calhoun & Rogers, Stuart L. Sims, Charles L. Bachman, Jr., for appellant.

Ichter Thomas, Cary Ichter, W. Daniel Davis, for appellee.

Judgment reversed and case remanded with direction.

Andrews, P. J., Barnes, P. J., Phipps, P. J., McFadden, Ray and McMillian, JJ., concur.


author: ANDREWS, Presiding Judge.

text:
    A15A1096.
    MONOLITH COMPANIES, LLC v. HUNTER DOUGLAS HOSPITALITY, INC.
    (777 S.E.2d 726)
   ANDREWS, Presiding Judge.

In this action on a commercial account, the plaintiff, Hunter Douglas Hospitality, Inc. (“Hunter Douglas”), filed a motion for summary judgment after the defendant, Monolith Companies, LLC (‘Monolith”), failed to respond to requests for admission. The trial court granted Hunter Douglas’ motion, and Monolith now appeals, arguing that the requests for admission were not timely under Uniform Superior Court Rule 5.1 and that the order granting summary judgment in Hunter Douglas’ favor contravened that rule. For the reasons set forth below, we affirm.

“On appeal from the grant of summary judgment, we conduct a de novo review of the record and construe all evidence in the light most favorable to the nonmovant.” Jackson v. Nemdegelt, Inc., 302 Ga. App. 767, 768 (691 SE2d 653) (2010). So viewed, the record shows that Hunter Douglas filed its complaint against Monolith on May 6, 2013 alleging that Monolith was indebted to it in the sum of $23,860.13 in principal, plus interest, on a commercial account. Following service of the summons and complaint, Monolith filed its answer on or about July 13,2013. More than six months later, on January 21,2014, Hunter Douglas served requests for admission, interrogatories, and requests for production on Monolith.

On March 28,2014, Hunter Douglas filed its motion for summary judgment arguing that it was entitled to a judgment as a matter of law because Monolith failed to respond to Hunter Douglas’ requests for admission, one of which requested that Monolith admit that it was “indebted to [Hunter Douglas] for the sum set forth in [Hunter Douglas’] Complaint.” In its response to Hunter Douglas’ motion, Monolith asserted that Hunter Douglas served the requests for admission after the discovery period ended, it was not required to answer them, and the trial court could not require it to do so consistent with Uniform Superior Court Rule 5.1. Monolith also stated that in an abundance of caution it was filing a motion to withdraw admissions. The record on appeal, however, does not include any such motion, and Monolith does not assert on appeal that it filed a motion to withdraw. The trial court subsequently entered an order granting Hunter Douglas’ motion and entering a judgment against Monolith for $23,860.13 in principal, accrued interest of $6,706.99, and court costs and post-judgment interest.

Monolith argues on appeal that the trial court’s order granting Hunter Douglas’ motion was tantamount to requiring or compelling it to answer the requests for admission in violation of Uniform Superior Court Rule 5.1. We disagree.

Uniform Superior Court Rule 5.1 states in relevant part:

In order for a party to utilize the court’s compulsory process to compel discovery, any desired discovery procedures must first be commenced promptly, pursued diligently and completed without unnecessary delay and within 6 months after the filing of the answer. ... At any time, the court, in its discretion, may open, extend, reopen or shorten the time to utilize the court’s compulsory process to compel discovery.

It is undisputed that Hunter Douglas served its requests for admission and other discovery requests shortly after the expiration of the six-month period following the filing of the answer. As such, Hunter Douglas was foreclosed from utilizing the trial court’s compulsory process to compel Monolith to respond to the discovery requests. Contrary to Monolith’s argument, Hunter Douglas’ motion for summary judgment did not seek to compel answers to the requests for admission, nor did the order on appeal purport to require any answers to the requests.

Requests for admission are governed by OCGA § 9-11-36, which provides:

A party may serve upon any other party a written request for the admission, for purposes of the pending action only, of the truth of any matters within the scope of subsection (b) of Code Section 9-11-26 which are set forth in the request and that relate to statements or opinions of fact or of the application of law to fact, including the genuineness of any documents described in the request. . . .

OCGA § 9-11-36 (a) (1). Under OCGA § 9-11-36 (a) (3), a party who has requested admissions may file a motion to determine the sufficiency of the answers or objections. That subsection further provides:

... Unless the court determines that an objection is justified, it shall order that an answer be served. If the court determines that an answer does not comply with the requirements of this subsection, it may order either that the matter is admitted or that an amended answer be served. . . .

Id. To the extent that a motion under OCGA § 9-11-36 (a) (3) constitutes utilizing a court’s compulsory process within the meaning of Uniform Superior Court Rule 5.1, Hunter Douglas never invoked OCGA § 9-11-36 (a) (3) here, and, indeed, it could not do so given that Monolith never served responses or objections to the requests for admission.

Pertinent here is OCGA § 9-11-36 (a) (2), which addresses the obligations of a party served with requests for admission and provides in relevant part:

. . . The matter is admitted unless, within 30 days after service of the request or within such shorter or longer time as the court may allow, the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter, signed by the party or by his attorney[,]

The admission that arises from a failure to respond to a request for admission in the required time frame arises by operation of law, without the necessity of court action. Brougham Casket & Vault Co. v. DeLoach, 323 Ga. App. 701, 703 (1) (747 SE2d 707) (2013) (“Unless a response to requests for admission is timely and properly served upon the party requesting the admission, the requests are deemed admitted as a matter of law.”).

In its order granting Hunter Douglas’ motion for summary judgment, the trial court simply gave effect to the admission that resulted from Monolith’s failure to object or respond to the requests for admission. Acknowledging Monolith’s admission was not tantamount to compelling compliance with discovery contrary to Uniform Superior Court Rule 5.1, and the trial court was bound to recognize the admission under the express terms of OCGA § 9-11-36. Once an admission has been made for purposes of OCGA § 9-11-36, the matter is “conclusively established unless the court, on motion, permits withdrawal or amendment of the admission.” OCGA § 9-11-36 (b). A trial court

may permit withdrawal or amendment when the presentation of the merits of the action will be subserved thereby and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice him in maintaining his action or defense on the merits.

Id. Monolith never filed a motion to withdraw, and, as such, the trial court was without authority to disregard Monolith’s admissions. See Vis v. Harris, 329 Ga. App. 129, 135 (1) (b) (764 SE2d 156) (2014) (“[T]he failure to make a motion to have admissions withdrawn or amended forecloses remedial action under OCGA § 9-11-36 (b), and therefore the requests for admissions which were not answered or objected to are deemed admitted.”) (citation and punctuation omitted).

When Monolith received Hunter Douglas’ requests for admission, it could have availed itself of various options to assert its position that they were untimely. It might have served objections referencing the expiration of the discovery period or moved for a protective order, for example. Later, Monolith could have moved to withdraw its admissions, but it did not do so. As Monolith

did not avail itself of any of the variety of responses available under OCGA § 9-11-36 and chose not to seek the liberal remedies afforded to parties under the statute to avoid the consequences of a failure to respond,. .. the subject matter of [Hunter Douglas’] requests for admission stood admitted.

Decided September 24, 2015.

David H. Wood, for appellant.

Howe & Associates, Karl J. Howe, Jr., Scott M. Stevens, for appellee.

G. H. Bass & Co. v. Fulton County Bd. of Tax Assessors, 268 Ga. 327, 331 (2) (486 SE2d 810) (1997). Monolith thus admitted that it was indebted to Hunter Douglas in the amount alleged in the complaint, removing any genuine issue of material fact from the case. As such, the trial court properly granted Hunter Douglas’ motion for summary judgment. See Brougham Casket & Vault Co., supra, 323 Ga. App. at 705 (1) (trial court properly determined plaintiff in action on open commercial account was entitled to judgment as a matter of law where defendant’s answers to requests for admission were properly stricken and defendant failed to file a proper motion to amend or modify admissions that arose by operation of law); Stephens v. Alan V. Mock Constr. Co., 302 Ga. App. 280, 287-288 (2) (690 SE2d 225) (2010) (in homeowners’ action against remediation company, trial court properly granted summary judgment for defendant on homeowners’ claims based on homeowners’ failure to respond to requests for admission); Jackson v. Nemdegelt, supra, 302 Ga. App. at 769-771 (trial court properly granted summary judgment for plaintiff in action to recover debt owed on retail installment contract based on admissions arising from defendant’s failure to respond to requests for admission).

Judgment affirmed.

Miller and Branch, JJ., concur.

       A defendant, however, normally is not required to file a response to requests for admission before the expiration of 45 days after service of the summons and complaint. See OCGA § 9-11-36 (a) (2).

       The first requirement of this test
      is not perfunctorily satisfied... and the desire to have a trial, standing alone, is not sufficient to satisfy the test. If the burden of proof on the subject matter of the request for admission is on the requestor, the movant is required to show the admitted request either can he refuted by admissible evidence having a modicum of credibility or is incredible on its face, and the denial is not offered solely for purposes of delay.
      (Citation and punctuation omitted.) Turner v. Mize, 280 Ga. App. 256, 257 (1) (633 SE2d 641) (2006).


author: McMlLLIAN, Judge. RAY, Judge,

text:
    A15A1244.
    VINCENT v. VINCENT.
    (777 S.E.2d 729)
   McMlLLIAN, Judge.

Appellants Harvey Vincent and Annie Nell Vincent (collectively “grandparents”) filed a petition seeking, among other things, visitation rights to their minor grandchildren, who are their son’s biological children. The children’s mother, who had been granted a divorce from the father after he was incarcerated, opposed the petition. Following a hearing, the trial court denied the grandparents’ request for visitation under the standard set out in OCGA § 19-7-3 (c). The grandparents appeal, asserting, inter alia, that the trial court applied the wrong legal standard, made certain erroneous factual findings or failed to make certain findings, and failed to rule on their request for notification of the children’s public performances under OCGA § 19-7-3 (g). For the reasons that follow, we vacate the trial court’s order and remand the case with direction.

1. We first consider whether the trial court applied the wrong legal standard in declining to award the grandparents visitation. Generally, grandparent visitation is governed by OCGA § 19-7-3 commonly referred to as the Grandparent Visitation Statute. As we have previously explained, the Grandparent Visitation Statute

was enacted to provide a mechanism for courts to grant a grandparent visitation rights with his or her minor grandchild, where, as here, a child’s parent objects. In this regard, the statute codified a standard for the trial courts to utilize in balancing the wishes of an alienated grandparent, the rights of the parents, and the interests of the child.

(Citation omitted.) Keith v. Callahan, 332 Ga. App. 291, 293 (1) (772 SE2d 386) (2015).

In denying the grandparents’ request for visitation, the trial court relied solely on subsection (c) of the statute, which in part provides that “the court may grant any grandparent of the child reasonable visitation rights if the court finds the health or welfare of the child would be harmed unless such visitation is granted and if the best interests of the child would be served by such visitation.” OCGA § 19-7-3 (c) (1). However, the legislature amended OCGA § 19-7-3 in 2012 to add subsection (d), which sets out a different standard when the parent of the minor child with whom visitation is sought is incapacitated, incarcerated or deceased, and the grandparent seeking visitation is the parent of such incarcerated, incapacitated or deceased parent. Ga. L. 2012, p. 860, § 1. Thus, under that section,

[;notwithstanding the provisions of subsections (b) and (c) of this Code section, if one of the parents of a minor child dies, is incapacitated, or is incarcerated, the court may award the parent of the deceased, incapacitated, or incarcerated parent of such minor child reasonable visitation to such child during his or her minority if the court in its discretion finds that such visitation would be in the best interests of the child. The custodial parent’s judgment as to the best interests of the child regarding visitation shall be given deference by the court but shall not be conclusive.

(Emphasis supplied.) OCGA § 19-7-3(d). As we have recently explained, “[q]uite explicitly, the language italicized above eliminates the provisions of subsections (b) and (c) from impeding an award of reasonable visitation to individuals particularly designated by subsection (d).” Fielder v. Johnson, 333 Ga. App. 658 (773 SE2d 831) (2015).

Because the grandparents’ son was incarcerated, the trial court should have applied the “best interests” standard set out in subsection (d) instead of the less favorable “harmed unless such visitation is granted” standard set out in subsection (c). See Beloate v. Peden, 328 Ga. App. 64, 67 (1) (761 SE2d 487) (2014) (because the mother of the children was deceased, the “more pertinent standard governing” the maternal grandparent’s visitation request is set forth in subsection (d) of OCGA § 19-7-3). Accordingly, the trial court’s order must be vacated and the case must be remanded to allow the trial court to conduct further proceedings and enter a new order in accordance with the standard set forth in OCGA § 19-7-3 (d). Further, the parties shall have the right to file a notice of appeal within 30 days of the entry of any adverse final order.

2. The grandparents also argue that the trial court erred by assigning more weight to the opinion of the mother than was permissible. However, we need not decide this issue, which also must be revisited and a new ruling issued upon remand in accordance with OCGA § 19-7-3 (d). Compare OCGA § 19-7-3 (c)(3) with OCGA § 19-7-3 (d).

3. The grandparents challenge certain factual findings and conclusions made by the trial court and also argue that the trial court failed to make certain findings necessary to support its conclusions. However, because we have vacated that order and directed the trial court to conduct further proceedings and enter a new order applying a different standard, we need not examine the prior order for factual error or omission.

4. Lastly, the grandparents argue that the trial court erred by failing to rule on their request for notification of the children’s public performances, which may be granted under OCGA § 19-7-3 (g), whether or not visitation is awarded to a grandparent. The record reflects that the grandparents’ petition contained a request for such notification, and that the trial court’s order did not include a ruling on their request. Accordingly, the trial court is hereby directed to rule on the grandparents’ request under OCGA § 19-7-3 (g) upon remand.

Decided September 24, 2015.

Hatfield & Hatfield, J. Mark Hatfield, for appellant.

Walters, Pujadas & Walker, Thomas E. Pujadas, for appellee.

Judgment vacated and case remanded with direction.

Barnes, P. J., concurs. Ray, J., concurs in judgment only.

RAY, Judge,

concurring in judgment only.

I join the opinion of the majority in judgment only. I have no quarrel with the analysis included therein. However, I believe that the amendments to the Grandparent Visitation Statute enacted in 2012, particularly OCGA § 19-7-3 (d), which gives the right to the trial court to award visitation to grandparents over the custodial parent’s objection without finding that the child would be harmed without visitation, may well be unconstitutional. Indeed, our Supreme Court found the Grandparent Visitation Statute in effect in 1995 to be unconstitutional when it did not include such a threshold finding by the trial court. Brooks v. Parkerson, 265 Ga. 189 (454 SE2d 769) (1995). However, given that it is not the role of this Court to make such a finding since consideration of the constitutionality of statutes is reserved exclusively to our Supreme Court, I join in the results reached by the majority herein. Certainly, our Supreme Court is likely to consider the constitutionality of this amendment to the Grandparent Visitation Statute in the near future, whether it is in this case or in a similar action.

       Although the mother argues that the trial court did in fact find that visitation was not in the “best interest and welfare of the minor children,” it is clear from the trial court’s order as a whole that the visitation issue was decided based on the considerations set forth in OCGA § 19-7-3 (c) and that remand for further proceedings and entry of a proper order is required.

       By no means do I intend to imply that I am hostile to grandparent visitation. My children have henefitted significantly by having the robust presence in their lives of their grandparents. As I will in the next decade likely join the grandparents’ club, I certainly hope to enjoy access to my grandchildren.


author: Ray, Judge.

text:
    A15A1368.
    THE STATE v. HASSON.
    (778 SE2d 15)
   Ray, Judge.

Lawrence Martin Hasson was charged with driving without headlights (OCGA § 40-8-20); violation of open container law (OCGA § 40-6-253); driving while license suspended (OCGA § 40-5-121 (a)); reckless driving (OCGA § 40-6-390); driving under the influence (less safe — alcohol) (OCGA § 40-6-391 (a) (1)); and driving under the influence (per se) (OCGA § 40-6-391 (a) (5)). He filed a motion challenging venue as improper and seeking a transfer of the case from DeKalb County to Fulton County. After a hearing, a DeKalb County trial court issued an order granting the motion but characterizing the issue as a motion for suppression of evidence. The State appeals, arguing that the trial court erred in finding venue improper in DeKalb County and in considering the venue challenge in the context of a pretrial motion. Finding error, we reverse.

At the hearing on Hasson’s motion challenging venue, Officer John Thompson IV with the Atlanta Police Department’s DUI Task Force testified that on May 24, 2014, another officer was dispatched to check out “a person asleep behind the wheel at Ponce de Leon and Moreland Avenue” after a “concerned citizen” made a 911 call. Thompson testified that the 911 call was placed to “City of Atlanta... Zone 6” which is “partially in DeKalb and partially in Fulton County [.]” He testified that the initial call to the other officer took place “right on the line, but on the Fulton County side.” The other officer activated his blue lights, but the subject vehicle proceeded through an intersection where

Moreland splits the DeKalb and Fulton County line. So the vehicle proceeded over Moreland and into DeKalb County. As it proceeded into DeKalb County, [the other officer] observed [that] the vehicle did not have its lights on. He initiated a traffic stop. The vehicle stopped at Ponce and Springdale, which is within DeKalb County’s jurisdiction.

Officer Thompson testified that Hasson was stopped at “the border of Fulton and DeKalb Countyf,]” which is “literally, the dividing line ... for the zone, and for jurisdiction^]” approximately “a half mile” over the county line. He testified that “we have jurisdiction in DeKalb ... to that particular point, we hadn’t left the City of Atlanta in DeKalb County’s jurisdiction.” Officer Thompson then conducted a DUI investigation in DeKalb County and arrested Hasson. Hasson was booked through the City of Atlanta Jail and had a first appearance hearing in Atlanta Municipal Court.

1. As an initial matter, we must discuss the nomenclature and the substance of both the motion and the order at issue in this appeal.

Hasson filed a motion entitled “Motion to Challenge Venue,” which argues that venue is improper in DeKalb County and requests that venue be transferred from DeKalb County State Court to Fulton County State Court. While Hasson sought a transfer of venue, he did not do so pursuant to OCGA § 17-7-150 (a) (1), which provides for pretrial venue changes where an impartial jury cannot be obtained in the county where the crime was committed. See Moon v. State, 287 Ga. 304, 312 (3) (696 SE2d 55) (2010) (Nahmias, J., concurring). “To prevail on a motion to change venue, the petitioner must show (1) that the setting of the trial was inherently prejudicial or (2) that the jury selection process showed actual prejudice to a degree that rendered a fair trial impossible.” (Citation and punctuation omitted.) Bates v. State, 322 Ga. App. 319, 321 (2) (744 SE2d 841) (2013). Hasson has made no argument or showing on these points.

Nor did Hasson’s pretrial motion seek dismissal of the DeKalb County indictment based on improper venue. See State v. Al-Khayyal, 322 Ga. App. 718, 720-721, 725 (744 SE2d 885) (2013) (reversing a trial court’s grant of a pretrial motion to dismiss indictment for lack of venue where the record did not support a finding that it would be impossible for the State to show defendant committed the offenses in a particular county, as alleged in the indictment); Babbitt v. State, 314 Ga. App. 115, 116-117 (1) (723 SE2d 10) (2012) (reviewing a trial court’s pretrial venue determination following defendant’s motion to dismiss indictment); State v. Johnson, 269 Ga. 370, 372 (2) (499 SE2d 56) (1998) (same); State v. Barber, 193 Ga. App. 397, 398-399 (388 SE2d 350) (1989) (same). See also State v. Mayze, 280 Ga. 5, 5, 10-11 (622 SE2d 836) (2005) (reviewing defendant’s demurrer to indictment in the context of a constitutional challenge to the venue provision of a particular Code section).

We recognize that “[tjhere is no magic in nomenclature, and we judge pleadings, motions and orders not by their name but by their function and substance, being always mindful to construe such documents in a manner compatible with the best interests of justice.” (Citation and punctuation omitted.) Patterson v. Hragyil, 322 Ga. App. 329, 331, n. 2 (744 SE2d 851) (2013). Here, Hasson’s motion functions as a substantive challenge as to whether the State can meet its burden of proving venue, and his motion seeks to transfer venue on that basis.

The trial court responded to that motion with a determination titled “Order Denying Defendant’s Motion to Suppress.” The order states that “Defendant’s [mjotion to [sjuppress is hereby GRANTED [.]” Hasson made no motion to suppress. The trial court’s order does not dismiss the DeKalb County indictment. Rather, it states that it is granting Hassan’s motion because

1. The Defendant’s case was presented to the City of Atlanta Municipal Court for an Inquiry Hearing on July 17, 2014. 2. That the initial proba[ble] cause for the stop of Defendant’s vehicle [occurred] in the City of Atlanta, Fulton County [,] where the officer activated Blue Lights [.] 3. The City of Atlanta Police Dept, prepared the initial police report.

Again, we judge orders not by their names or titles, but by their function and substance. Patterson, supra, 322 Ga. App. at 331, n. 2. The substance of the trial court’s order is a per se determination of venue and, apparently, a grant of Hasson’s motion to transfer the case to Fulton County on the basis that venue is improper in DeKalb County. As the State contends in its second enumeration, a determination of venue in the particular context presented to us is reserved for the finder of fact at trial.

“Venue is a jurisdictional fact and an essential element that the State must prove beyond a reasonable doubt for every crime. The State may use both direct and circumstantial evidence to prove venue. In general, defendants should be tried in the county where the crime occurred.” (Citations and punctuation omitted.) Jones v. State, 329 Ga. App. 439, 444 (1) (b) (765 SE2d 639) (2014) (reiterating that if a crime is committed in transit or in more than one county, Georgia law provides special methods to establish venue). See also OCGA § 17-2-2 (a), (b), (e), (h). Pertinently, “[w]hether venue has been sufficiently proved is an issue for the jury to determine.” (Footnote omitted; emphasis supplied.) Graham v. State, 275 Ga. 290, 292 (2) (565 SE2d 467) (2002). Accordingly, we reverse the trial court’s order and remand the case for further proceedings consistent with this opinion.

Decided September 24, 2015.

Sherry Boston, Solicitor-General, Wystan B. Getz, Assistant Solicitor-General, for appellant.

Raymond V. Giudice, Elizabeth A. Geoffroy, for appellee.

2. Because the trial court erred as outlined above and we reverse on that basis, we do not address the State’s remaining enumeration.

Judgment reversed and case remanded.

Ellington, P. J., and Dillard, J., concur.

       The State moved for reconsideration of the trial court’s grant of the suppression motion, hut filed its notice of appeal before receiving a ruling. Therefore, the trial court lost jurisdiction. See Heard v. State, 280 Ga. 348, 349 (2) (627 SE2d 12) (2006).


author: McFadden, Judge.

text:
    A15A1514.
    THOMAS v. THE STATE.
    (778 SE2d 18)
   McFadden, Judge.

Frank James Thomas was convicted of burglary and sentenced to a term of imprisonment as a recidivist. Years later, Thomas filed a motion to “vacate and correct a void sentence,” arguing that he should not have been sentenced as a recidivist because the state failed to introduce a true copy of the indictment for one of his prior convictions and because the trial court failed to determine that the probative value of his prior convictions outweighed their prejudicial effect. The trial court denied his motion, and Thomas filed this appeal. We, however, lack jurisdiction. Accordingly, we dismiss this appeal.

Under OCGA § 17-10-1 (f), a sentencing court may modify a sentence during the year after its imposition or within 120 days after remittitur following a direct appeal, whichever is later. Frazier v. State, 302 Ga. App. 346, 347-348 (691 SE2d 247) (2010). Once this statutory period has expired, a sentencing court may modify a sentence only if it is void. Jones v. State, 278 Ga. 669, 670 (604 SE2d 483) (2004).

A direct appeal may lie from an order denying a motion to correct a void sentence, but only if the defendant raises a colorable claim that the sentence is, in fact, void. Burg v. State, 297 Ga. App. 118, 119 (676 SE2d 465) (2009).

Frank J. Thomas, pro se.

S. Hayward Altman, District Attorney, for appellee.

Motions to vacate a void sentence generally are limited to claims that — even assuming the existence and validity of the conviction for which the sentence was imposed — the law does not authorize that sentence, most typically because it exceeds the most severe punishment for which the applicable penal statute provides.

von Thomas v. State, 293 Ga. 569, 572 (2) (748 SE2d 446) (2013) (citations omitted). Claims challenging the admissibility of evidence of prior convictions for recidivist sentencing purposes do not amount to claims that the sentence imposed was void. Id. at 572-573 (2). As Thomas has not raised a valid void sentence claim, we lack jurisdiction over this appeal. Id. at 575 (3).

Appeal dismissed.

Ellington, P. J., and Dillard, J., concur.


text:
    A15A1215.
    MORGAN v. U. S. BANK TRUST N.A.
    (778 SE2d 21)
   McFadden, Judge.

Jacquelyn Ann Morgan appeals the default judgment entered in favor of U. S. Bank Trust N.A., as Trustee for Vericrest Opportunity Loan Trust 2012-NPLl Asset Holdings Trust in this action to reform a security deed. Morgan argues that the trial court erred in entering the default judgment because her answer to the complaint was timely filed. We agree and therefore reverse.

U. S. Bank Trust filed a complaint seeking, among other things, to add to Morgan’s security deed a provision allowing it to pursue nonjudicial foreclosure. Morgan was personally served with the complaint on January 13,2014, and filed a pro se answer on February 14, 2014. U. S. Bank Trust filed a motion for default judgment to which Morgan did not respond. The trial court found that Morgan was in default and entered a default judgment in favor of U. S. Bank Trust reforming Morgan’s security deed. Morgan filed this appeal.

Morgan argues that the trial court erred by entering a default judgment because her answer was timely filed. She argues that although her answer would have been due on February 12, 2014, the 30th day after service, see OCGA § 9-11-12 (a), the superior court was closed that day and the next due to inclement weather. Consequently, she argues, her answer, filed the first day the court was open after the due date, was timely.

In accordance with OCGA § 24-2-201 (b) (2), (c) and (f), we take judicial notice of the fact that the office of the Clerk of the Superior Court of DeKalb County was closed on February 12, 2014, and February 13, 2014, due to inclement weather. Triguero v. ABN AMRO Bank, 273 Ga. App. 92, 96 (1) (614 SE2d 209) (2005) (in which we took judicial notice of the deaths of the trial judge and his court reporter); United States v. Rey, 811 F2d 1453, 1457, n. 5 (11th Cir. 1987) (“A court may take judicial notice of its own records and the records of inferior courts”). See also Eisenberg v. Forkin, No. 91-1179, 1991 U.S. App. LEXIS 21186 at *4 (1st Cir. Sept. 3,1991) (appellate court taking judicial notice that trial court was closed the day a filing was due); Garcia v. Vera, No. 01-05-01161-CV, 2006 Tex. App. LEXIS 8701, at *6-*8 (Tex. Ct. App., 1st Div., Oct. 5, 2006) (applying Texas Rule of Evidence 201 (b), which is substantially similar to OCGA § 24-2-201 (b), appellate court took judicial notice that trial court was closed because of hurricane evacuation on day filing was due). Because the office of the Clerk of the Superior Court of DeKalb County was closed due to inclement weather on the 30th and 31st days after service of the complaint, Morgan’s answer, filed on the 32nd day, was timely. Slaughter v. State, 289 Ga. 790, n. 1 (716 SE2d 180) (2011) (“notice of appeal was timely filed on January 14, 2011, inasmuch as the office of the Clerk of the Superior Court of DeKalb County was closed on January 13, 2011, due to inclement weather”). Accordingly, the trial court erred in entering a default judgment. Moore v. State of Ga., 251 Ga. App. 565 (1) (554 SE2d 574) (2001).

U. S. Bank Trust does not dispute that the trial court was closed on February 12 and 13 due to inclement weather. It nonetheless argues that we must affirm because Morgan did not raise her argument in the trial court. But because her answer was timely filed, she was not in default. She thus was not required to move to open default, and she properly proceeded by filing a notice of appeal. Brock Built City Neighborhoods v. Century Fire Protection, 295 Ga. App. 205, 206-209 (1) & 206 (1), n. 1 (671 SE2d 240) (2008) (holding that “the entry of default judgment constitutes a final judgment and is directly appealable pursuant to OCGA § 5-6-34 (a) (1) without the filing of a motion to set aside the default” and addressing defendant’s argument that default judgment was void because defendant had not been properly served).

Decided September 25, 2015.

W. Wright Dempsey, Jr., for appellant.

Pendergast & Associates, Louis G. Fiorilla, Howell A. Hall, Brian D. Klein, for appellee.

Judgment reversed.

Ellington, P. J., and Dillard, J., concur.


author: McFADDEN, Judge.

text:
    A15A1219.
    HOWARD v. THE STATE.
    (778 SE2d 19)
   McFADDEN, Judge.

After a jury trial, Garrett Delmar Howard III was convicted of aggravated assault (OCGA § 16-5-21 (c)) and possession of a firearm during the commission of a crime (OCGA § 16-11-106). Howard argues that the trial court erred in denying his motion for directed verdict, but evidence authorized the jury’s verdict of guilty. Howard argues that the trial court erred in admitting evidence of inculpatory statements he made when he was 15 years old, but the statements were spontaneous utterances that did not implicate Howard’s Fifth Amendment rights. Finally, Howard argues that the trial court erred in failing to give one of his requested jury charges regarding the inculpatory statements, but the record shows that the requested charge was not adjusted to the evidence. Accordingly, we affirm.

1. Directed verdict.

On appeal, we review the denial of a directed verdict of acquittal in a criminal case under the standard of review set forth in Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979). See Rivers v. State, 296 Ga. 396, 404 (10) (768 SE2d 486) (2015); Stansell v. State, 270 Ga. 147, 148 (1) (510 SE2d 292) (1998). Accordingly, “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.” Jackson, 443 U. S. at 319 (III) (B) (citation omitted; emphasis in original).

So viewed, the evidence showed that in the early afternoon of December 3, 2011, a convenience store employee called 911 after seeing 15-year-old Howard, whom he recognized as an occasional store customer, waving a gun and arguing with someone outside the store. Corporal Donald Chad Cheek, a uniformed law enforcement officer driving to a special assignment, heard a dispatch call about “trouble with a subject with a gun,” and shortly thereafter saw someone, whom he later identified as Howard, standing outside, jumping up and down, waving a handgun, and screaming. Officer Cheek pulled his vehicle near Howard and turned on his emergency lights and siren. Howard turned toward the officer, pointed the gun directly at Officer Cheek’s face and shot at him.

Howard fled, and Officer Cheek chased him on foot. The two exchanged gunfire during the chase. Ultimately Howard escaped but was arrested several days later. As a law enforcement officer at the sheriff’s office walked Howard down a hallway to the booking desk, Howard spontaneously “apologized] for what had happened.” He stated “that he was angry at the time and wanted to write Mr. Officer Chad Cheek a letter of apology.” He also asked repeatedly “how much time he was going to get over this.”

Howard argues that the trial court should have granted his motion for directed verdict because the state did not present sufficient evidence that he was the perpetrator, especially given some discrepancies in witness descriptions of his apparent age and height. But Officer Cheek affirmatively identified Howard as the perpetrator, both from a photographic lineup conducted a few hours after the shooting and in court during trial. It was for the jury to gauge the credibility of the officer’s identification. Colzie v. State, 289 Ga. 120, 121 (1) (710 SE2d 115) (2011). The trial court did not err in denying the motion for directed verdict of acquittal. See id. at 121-122 (1).

2. Suppression of evidence of Howard’s statements.

Howard argues that the trial court erred in admitting evidence of the statements of apology he made as a law enforcement officer walked him to the booking desk at the sheriff’s office. He argues that the statements should have been suppressed because some of the statutory booking procedures for juveniles then in effect, see former OCGA §§ 15-11-47 (setting forth procedures for taking child into custody) and 15-11-48 (setting forth procedures for detaining child alleged to have committed violent offense), were not followed, noting that the record was silent as to whether he had been allowed to speak with either a family member or attorney before he made the statements. He also argues that his Fifth Amendment right against self-incrimination was violated. We disagree.

Our Supreme Court has held that a “violation of the Juvenile Code does not render [a juvenile’s] incriminating statement per se inadmissible.” Hanifa v. State, 269 Ga. 797, 805 (3) (505 SE2d 731) (1998); see also Johnson v. State, 261 Ga. App. 98, 101 (3) (581 SE2d 715) (2003). “The relevant inquiry is not whether the [booking] procedures were followed to the letter before [a juvenile made a] statement ..., but whether [the juvenile] made a knowing and intelligent waiver of his constitutional rights when he gave the incriminating statement.” Williams v. State, 273 Ga. App. 42, 45 (4) (614 SE2d 146) (2005); see also Johnson, 261 Ga. App. at 101 (3). Howard argues that he made the statements in violation of his Fifth Amendment right against self-incrimination, and he cites the lack of evidence in the record addressing factors relevant to a juvenile’s waiver of rights. See generally Johnson, 261 Ga. App. at 101 (3). The Fifth Amendment, however, concerns statements made by an accused during custodial interrogation. See Franks v. State, 268 Ga. 238, 239 (486 SE2d 594) (1997). A person’s Fifth Amendment rights are not implicated when that person makes a spontaneous, unprompted utterance while in custody. See Haggins v. State, 277 Ga. App. 742, 745 (2) (a) (627 SE2d 448) (2006). Because the undisputed evidence in this case showed that Howard made the statements at issue to a law enforcement officer spontaneously, and not in response to any police interrogation, the trial court did not err in allowing the jury to hear evidence of those statements. See id.

Decided September 25, 2015.

Russell R. Jones, for appellant.

3. Jury charge.

Howard argues that the trial court erred in declining to give his requested jury charge regarding the factors relevant to a determination of whether a statement by a juvenile was made with a knowing and intelligent waiver of his or her constitutional rights. But as discussed above, because Howard made a spontaneous utterance, his constitutional rights were not implicated. Consequently, Howard’s requested jury charge was not adjusted to the facts of this case, and the trial court did not err in declining to give the charge. See Gardner v. State, 273 Ga. 809, 813 (6) (546 SE2d 490) (2001) (a “requested charge must be legal, apt and precisely adjusted to some principle involved in the case and be authorized by the evidence” and a trial court does not err in not giving a requested charge that fails to meet these requirements) (citations and punctuation omitted).

Judgment affirmed.

Ellington, P. J., and Dillard, J., concur.

Ashley Wright, District Attorney, Joshua B. Smith, Madonna M. Little, Assistant District Attorneys, for appellee.

       Current Code provisions setting forth the procedures for detaining and taking a child into custody are at OCGA § 15-11-500 et seq.


text:
    A15A1348.
    COOPER v. THE STATE.
    (778 SE2d 23)
   McFADDEN, Judge.

After a bench trial, DeMarco Cooper was convicted of four counts of selling cocaine, five counts of distributing cocaine within 1,000 feet of a public housing project, three counts of using a communication facility to commit or facilitate the commission of a felony (sale of cocaine), one count of possessing cocaine with intent to distribute, and one count of possessing a counterfeit controlled substance. Cooper appealed, and this court vacated the judgments of conviction and remanded the case to the trial court for an evidentiary hearing on the issue of whether Cooper knowingly and voluntarily waived his right to a jury trial. See Cooper v. State, 324 Ga. App. 451, 452-453 (1) (751 SE2d 102) (2013). In that prior appeal, this court also went on to review the sufficiency of the evidence supporting the vacated judgments of conviction, reasoning that the trial court, after the remand hearing on the issue of waiver of the right to a jury trial, would not be authorized to reinstate any conviction that the state had failed to prove. Id. at 453 (2). This court then determined that there was insufficient evidence to establish that Cooper had possessed a counterfeit drug or that he had sold drugs within 1,000 feet of a public housing project so those convictions could not be reinstated. Id. at 455-456 (2) (b), (c).

On remand, after holding an evidentiary hearing, the trial court found that Cooper had knowingly and voluntarily waived his right to a jury trial. The trial court reinstated the convictions that were not barred by this court’s prior opinion, dismissed the other charges, and denied Cooper’s request for resentencing him as a first offender. Cooper appeals.

1. Waiver of right to jury trial.

Cooper contends that the trial court erred in finding that he knowingly and voluntarily waived his right to a jury trial. We disagree.

A criminal defendant must personally and intelligently participate in the waiver of the constitutional right to a trial by jury. When the purported waiver of this right is questioned, the [s]tate bears the burden of showing that the waiver was made both intelligently and knowingly, either (1) by showing on the record that the defendant was cognizant of the right being waived; or (2) by filling a silent or incomplete record through the use of extrinsic evidence which affirmatively shows that the waiver was knowingly and voluntarily made. The waiver, however, need not follow any particular form. The only real issue is whether the defendant intelligently agreed to a trial without jury. On appeal, we will affirm a trial court’s determination that a defendant validly waived the right to a jury trial unless that determination is clearly erroneous.

Green v. State, 331 Ga. App. 801, 808 (3) (771 SE2d 518) (2015) (citations and punctuation omitted).

At the evidentiary hearing in this case, the state introduced a written waiver of the right to a jury trial signed by Cooper and his attorney. On the written waiver, Cooper acknowledged that he understood the offenses charged, the maximum possible sentence for those charges, his right to a jury trial and the various rights associated with a jury trial. On the document, Cooper expressly waived his right to a jury trial and requested that his case instead be set for trial before the court, stating that he understood that in such a trial the court would “decide [ ] the issues in the case without a jury present.”

The state also presented the testimony of Cooper’s attorney, who testified that it was his signature and handwriting on the waiver form and that he had executed the document with Cooper. Although he did not specifically recall discussing the matter with Cooper, counsel testified that he would have gone over the form in detail with Cooper and would have explained to him that it gave up his right to a jury trial in favor of a bench trial before only the judge. See Jones v. State, 294 Ga. App. 169, 170 (1) (670 SE2d 104) (2008) (extrinsic evidence showing waiver of jury trial may include testimony by defense counsel about his routine or standard practices).

Based on our review of the record, we conclude that the trial court did not err in determining “that the [sjtate fulfilled its burden of demonstrating that [Cooper] personally, voluntarily, knowingly, and intelligently waived his right to a jury trial. [Cits.]” Green, supra at 809 (3).

2. First offender status.

At the sentencing hearing after the bench trial, the trial court informed Cooper that he was eligible for first offender status and the court indicated that it would grant such status if Cooper requested it. But after the trial court further explained the benefits and risks of first offender sentencing, Cooper declined it, and the court did not sentence him as a first offender. Upon remand of the case, Cooper requested that the court revisit the issue and resentence him as a first offender. The trial court heard arguments from both Cooper and the state, after which it denied the request.

Decided September 25, 2015.

Katherine M. Mason, for appellant.

Richard A. Mallard, District Attorney, J. Barclay Black, Assistant District Attorney, for appellee.

Refusal to consider first offender treatment as part of a sentencing formula or policy of automatic denial constitutes an abuse of discretion and constitutes reversible error. However, there must be a clear statement in the record that constitutes either a general refusal to consider such treatment or an erroneous expression of belief that the law does not permit the exercise of such discretion.

McCullough v. State, 317 Ga. App. 853 (733 SE2d 36) (2012) (citation omitted). Here, the record does not contain any such clear statement by the trial court indicating a general refusal to consider first offender treatment or an erroneous belief that the law does not permit the exercise of such discretion. On the contrary, it is clear from the record that the trial court understood that it could sentence Cooper as a first offender, but properly exercised its discretion in deciding not to do so. Accordingly, “we discern no basis for reconsideration of [Cooper’s] sentence.” Id. at 856.

Judgment affirmed.

Ellington, P. J., and Dillard, J., concur.