author: DOYLE, Chief Judge.

text:
    A16A1449, A16A1450.
    OTS, INC. et al. v. WEINSTOCK & SCAVO, P.C. et al.; and vice versa.
    (793 SE2d 672)
   DOYLE, Chief Judge.

This appeal arises from a legal malpractice suit filed by OTS, Inc., (“OTS”) and Charlton Lester (collectively with OTS, “the plaintiffs”) against Weinstock & Scavo, P.C., (“W&S”) and Louis Cohan (collectively with W&S, “the defendants”) with regard to the defendants’ representation of the plaintiffs in a sexual harassment lawsuit. The defendants counterclaimed for breach of a note and failure to pay attorney fees arising from the sexual harassment suit. After a trial, the jury returned a verdict on the legal malpractice claim in favor of the defendants, but found in favor of the plaintiffs with regard to the counterclaims.

In Case No. A16A1449, the plaintiffs appeal, arguing that the trial court erred by ruling (1) that OTS could not recover attorney fees, (2) that OTS could not assert claims of breach of fiduciary duty and breach of duty of good faith and fair dealing in addition to claims of malpractice, (3) that Lester released his claims by signing a promissory note, and (4) that W&S’s liability was derivative of Cohan’s; and (5) they argue that the trial court abused its discretion by excluding expert witness testimony In Case No. A16A1450, the defendants argue that the trial court erred (1) by denying summary judgment to them on their counterclaim against Lester; (2) by denying summary judgment on their counterclaim against OTS based on the release provision contained in the promissory note; and (3) by denying their claims for attorney fees and costs under OCGA § 9-11-68. For the reasons that follow, we affirm the judgment in part, reverse the judgment in part, and vacate the order on attorney fees, remanding the case for further proceedings consistent with this opinion.

Viewed in the light most favorable to the verdict, the record shows that Lester is the founder and president of OTS, and in March 2007, OTS hired Candace Terrell to fill an administrative position in its business office. The plaintiffs contend that Terrell was reprimanded for poor performance and eventually moved to OTS’s financial aid office, where she received poor performance reviews. The financial aid office supervisor, Renee Alston, recommended that Terrell be fired, and on June 4, 2007, OTS terminated Terrell.

Harassment Lawsuit

In September 2007, Terrell filed a discrimination charge with the Equal Employment Opportunity Commission (“EEOC”), which issued a right-to-sue letter in December 2008, at which point Terrell sued Lester for assault and battery under Georgia law and sued OTS in the U. S. District Court for the Northern District of Georgia in March 2009 for sexual harassment and retaliation under Title VII of the federal Civil Rights Act, 42 USC §§ 2000e-2 and 2000e-3, and for negligently supervising and retaining Lester. Terrell’s case proceeded to trial on the battery and negligent supervision/retention claims.

While the case against Lester and OTS was pending in the district court, Terrell’s attorneys noticed Cohan as a fact witness based on the many years he had spent as OTS’s and Lester’s employment attorney. Based on the possibility of Cohan being conflicted out of representing Lester and OTS at trial, the plaintiffs terminated Cohan’s representation approximately two weeks prior to trial, and Lester and OTS hired McGuireWoods, LLP, which represented them from March 10, 2011, through trial.

During the sexual harassment trial, five other OTS employees testified to being harassed directly by Lester. The jury found in favor of Terrell, awarding $100,000 against Lester on her battery claim and $200,000 against OTS for negligently supervising and retaining Lester. After the district court denied Lester’s and OTS’s motions for a new trial and for judgment as a matter of law, they appealed to the U. S. Court of Appeals for the Eleventh Circuit, which affirmed the judgment in an unpublished opinion issued May 4, 2012, in Case No. 11-13105.

Malpractice Action

As a result of the Terrell litigation, in September 2011, the plaintiffs filed the instant legal malpractice action against the defendants, alleging ten instances of professional malpractice during the investigation and litigation, breach of fiduciary duty, and breach of good faith and fair dealing, and requesting punitive damages, attorney fees, and costs of litigation. Attached to the complaint was a copy of Terrell’s acknowledgment that she would arbitrate all claims against OTS and the affidavit of attorney Peter Spanos.

On November 2, 2011, the defendants answered and moved to dismiss the complaint, contending that the plaintiffs had failed to state a claim in their complaint because they could not establish causation for any injury based on the defendants’ actions — instead contending that the outcome of the harassment trial was the result of the plaintiffs’ own wrongdoing.

On February 24, 2012, the trial court issued an order granting in part and denying in part the defendants’ motion to dismiss. In its lengthy order, the trial court parsed through the ten instances of alleged malpractice contained in the complaint and dismissed those for which the court found there could be no showing under any provable set of facts that the defendants’ actions in the Terrell matter resulted in harm to the plaintiffs. Specifically, the trial court dismissed the plaintiffs’ claim that they suffered harm as a result of the defendants’ failure to force Terrell to arbitrate her claims as stated in the employee handbook, finding that the claim was too speculative.

The defendants also moved for summary judgment, contending that the plaintiffs had waived their claims against the defendants by executing a promissory note in relation to outstanding legal fees, which note contained a waiver of claims provision. In support of their motion for summary judgment, the defendants filed the affidavit of W&S’s partner Tom Bartolozzi, who stated that (after the malpractice suit had been filed) on October 3, 2011, Lester signed a promissory note to establish a plan to pay outstanding fees owed to W&S for representation of the plaintiffs in the Terrell matter. The note contained the principal sum of $56,522.17, payable in 18 $3,000 payments followed by a final payment of $2,552.17. The waiver provision stated:

Maker [earlier defined as Lester] and Holder agree that this Note is being executed by Maker in Compromise of certain amounts due and owing to Holder, and in consideration of the foregoing and together with all other good and valuable consideration, by execution hereinbelow, except for claims of Holder arising out of this Note, Maker and Holder on behalf of themselves and their respective parents, affiliates, successors, assigns, agents and employees hereby waive and release the other party and their respective parents, affiliates, successors, assigns, agents and employees from and against any and all claims, rights, demands, obligations and liabilities and causes of action, known or unknown of whatever kind and however arising, which either party now has, ever has had, from the beginning of time through the date of this Note.

The note did not define “Maker” as OTS nor did it name OTS as a party to the note. Under Lester’s signature, he printed his title as “Founder.” Of the eight $3,000 payments made, five were drawn from OTS’s account and three from Lester’s account. The defendants maintained that Lester’s inclusion of the title “Founder” established that he was executing the note on behalf of himself individually and on behalf of OTS as he was authorized to do. The defendants also argued that the payments were drawn from both Lester’s and OTS’s accounts, which established that both parties ratified the note and thereby the waiver of rights clause.

On July 2,2012, the trial court issued an order on the defendants’ motion for summary judgment, arguing that the plaintiffs had waived their rights to pursue the claims by executing the promissory note in October 2011. The trial court granted the motion as to Lester, finding that he was the only party included in the note and that his signature or the inclusion of the title “Founder” was insufficient to establish that he was binding both himself and OTS. Nevertheless, the trial court found that OTS was not made a party to the note simply because payments on the note were drawn on OTS’s account. Thus, the trial court denied the motion as to OTS, allowing it to pursue the remaining allegations of the complaint.

Meanwhile, on March 1, 2012, the trial court issued a scheduling order directing the plaintiffs to disclose “the names and opinions of the ... expert witnesses ... no later than August 31, 2012.” The court explained that “[t]he disclosures shall include the names, subject matters, substance of facts and opinions, and a summary of the grounds for each opinion with respect to which any expert is expected to testify at trial on issues to which the party bears the burden of proof.” Citing Hart v. Northside Hospital, the court explained that “failure to abide by the deadlines set out... may include ... exclusion of evidence.”

On August 23, 2012, the defendants filed an amended answer with two counterclaims, contending that the plaintiffs had failed to make any payment on the remaining $32,552.17 in past due fees after March 2012, which resulted in Lester being in breach of the note and OTS being jointly liable for those fees even if it was not a party to the note.

On September 20, 2012, the defendants filed an emergency motion to exclude certain testimony by Spanos that had not been proffered by OTS until September 19, 2012, after the expiration of the August 31, 2012 deadline set forth in the trial court’s scheduling order. Alternatively, the defendants asked the trial court to extend discovery to allow them to investigate the new opinions of Spanos that were not proffered in his affidavit, which concluded only that the defendants breached the standard of care by failing to disclose Cohan’s potential conflict as a fact witness. OTS’s supplemental responses to defendants’ first continuing interrogatories expanded the discrete instances of alleged malpractice about which Spanos would testify to include each of the remaining malpractice claims.

OTS responded that it believed Spanos’s initial affidavit and notification of its intent to call him to testify regarding breach of the standard of care was sufficient to fulfill the scheduling order. Moreover, OTS argued that it provided its supplemental responses to the first continuing interrogatories within the 15-day time period for providing supplemental discovery under the trial court’s order.

On September 25, 2012, the trial court issued an order granting the defendants’ emergency motion to exclude Spanos’s testimony on issues beyond those outlined in his affidavit provided with the complaint. The court found that the plaintiffs’ original disclosures regarding Spanos’s testimony did not fulfill the trial court’s requirement as stated in the scheduling order that all “subject matters, substance of facts and opinions, and a summary of the grounds for each opinion” of each expert be disclosed by a date certain. The trial court also found that it had explicitly warned the parties that failure to abide by the order could result in exclusion of evidence, and thus, it granted the defendants’ motion to exclude.

The defendants filed a second motion for summary judgment based on their counterclaims and OTS’s remaining claims. On February 27, 2013, the trial court issued an order denying in part the defendants’ second motion for summary judgment to the extent that OTS’s claims were based on the expert testimony proffered by Spanos prior to the closing of discovery and granting in part the motion as it related to OTS’s remaining claims based on Spanos’s excluded expert testimony The trial court also denied the motion with regard to the defendants’ counterclaims against Lester and OTS, finding that OTS was permitted to withhold attorney fees during the pendency of its malpractice action and that Lester’s liability for the fees hinged on the jury’s determination of the malpractice claims.

On March 21, 2013, the defendants served an offer of judgment pursuant to OCGA § 9-11-68 in the amount of $10,000 to settle the remaining malpractice claims. OTS did not respond, and a jury trial was held from May 6, 2013, to May 10, 2013; thereafter, the jury returned a verdict in favor of the defendants on OTS’s malpractice claims and a verdict in favor of the plaintiffs on the defendants’ counterclaims, awarding the plaintiffs $0.

On June 6, 2013, the defendants filed a motion for attorney fees of $112,996 and expenses in the amount of $4,996.10 under OCGA § 9-11-68. In an order entered on August 12,2013, the trial court denied the motion, finding that the offer was not made in good faith.

Case No. A16A1449
To prevail on a legal malpractice claim, a client must prove that (1) he employed the defendant attorney; (2) the attorney failed to exercise ordinary care, skill, and diligence; and (3) this failure was the proximate cause of damages to the client. To establish proximate cause, the client must show that but for the attorney’s error, the outcome would have been different; any lesser requirement would invite speculation and conjecture. The defendant attorney is entitled to summary judgment if he shows that there is an absence of proof adduced by the client on the issue of proximate cause.

1. First, OTS contends that the trial court erred by finding that it could not recover attorney fees for the defendants’ failure to force Terrell to arbitrate her claims.

In its February 24, 2012 order granting in part the defendants’ motion to dismiss, the trial court determined that of the plaintiffs’ alleged instances of malpractice, the plaintiffs’ claim for damages based on the defendants’ failure to compel arbitration failed to state a claim because the questions of whether an arbitrator would have found in the plaintiffs’ favor or whether arbitration would have resulted in fewer fees and expenses were too speculative.

OTS argues that the trial court erred by dismissing this claim, but the plaintiffs mischaracterize the basis upon which the trial court granted the motion. In its order, the trial court relied on this Court’s opinion in Houston v. Surrett, affirming the grant of summary judgment in a legal malpractice case based in part on the attorney’s failure to pursue a change of venue because the issue of whether the transferee court would have acted more favorably toward the plaintiff was too speculative to support the claim. Although that case was decided at a different procedural posture, the trial court correctly granted the motion to dismiss based on the speculative nature of this specific allegation of malpractice. OTS fails to cite relevant authority to counter the trial court’s finding that there was no set of circumstances under which it could prove that it incurred additional fees or the judgment against it based on a failure by the defendants to attempt to compel arbitration. Accordingly, this enumeration is without merit.

2. Next, OTS argues that the trial court abused its discretion by excluding Spanos’s expert witness testimony.

Trial judges have broad discretion in controlling discovery, including imposition of sanctions, and appellate courts will not reverse a trial court’s decision on such matters unless there has been a clear abuse of discretion. This policy is peculiarly applicable in the context of allegations of discovery abuse. Historically, it has been the policy of the Georgia appellate courts to refuse to interfere with a trial court’s exercise of its discretion in absence of abuse.

Here, the trial court specified in its scheduling order that all “subject matters, substance of facts and opinions, and a summary of the grounds for each opinion” of every expert was due by a date certain, and OTS failed to comply with this order. The court warned the parties that exclusion of evidence was a possibility, and therefore, we discern no abuse of discretion.

3. OTS contends that the trial court erred by determining that it could not assert claims of breach of fiduciary duty and breach of duty of good faith and fair dealing in addition to claims of malpractice. This claim is of no moment, however, as OTS fails to show how it was prevented from presenting evidence of any intentional conduct on the part of the defendants that constituted breaches of fiduciary duty or the duty of good faith and fair dealing, and the trial court instructed the jury on breach of fiduciary duty.

4. Lester argues that the trial court erred by finding that he released his claims by signing a promissory note.

“Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. We review the grant of summary judgment de novo, construing the evidence in favor of the nonmovant.”

The cardinal rule of contract construction is to ascertain the intention of the parties. Contract construction is a three-step process. Initially, the construction of the contract is a question of law for the court. First, if no ambiguity appears, the trial court enforces the contract according to its terms irrespective of all technical or arbitrary rules of construction. That is, where the terms of a written contract are clear and unambiguous, the court will look to the contract alone to find the intention of the parties. Secondly, if ambiguity does appear, the existence or non-existence of an ambiguity is itself a question of law for the court. Finally, a jury question arises only when there appears to be an ambiguity in the contract which cannot be negated by the court’s application of the statutory rules of construction. This is true even if the contract is difficult to construe. Further, a contract should be construed by examining the agreement in its entirety, and not merely by examining isolated clauses and provisions thereof.

In its July 2, 2012 order, the trial court found that Lester had waived his claims against the defendants by signing the promissory note, which contained a waiver of rights provision. We agree with the trial court. The waiver language in the note is clear, and therefore, the trial court was prohibited from going beyond the note to determine if there was mutual assent.

Although Lester points to the Supreme Court of Georgia’s opinion in Williams v. Physicians & Surgeons Community Hospital, to support his contention that the waiver clause was unenforceable because he did not intend to waive his pending malpractice claims by signing the note, his argument is not persuasive. Williams involved a general release between a tortfeasor and an injured party, who received a second injury during treatment for the first injury by a second tortfeasor. The question in Williams was whether the release language in the contract between the first tortfeasor and the injured party served to release the successive tortfeasor from liability as well; such a factual scenario is inapplicable here. Accordingly, the trial court did not err by dismissing Lester’s claims based on the waiver of rights provision in the promissory note.

5. Finally, OTS maintains that the trial court erred by finding that W&S’s liability was derivative of Cohan’s. Specifically, in its order granting in part and denying in part the defendants’ second motion for summary judgment, the trial court stated in a footnote that a jury question on the remaining issues of malpractice existed as to W&S as well as Cohan despite the fact that, as OTS argued, W&S did not rebut Spanos’s testimony with its own expert testimony The trial court stated that such separate expert testimony was not necessary because W&S’s liability was derivative of Cohan’s liability. OTS cites no authority showing that the trial court’s statement of law is incorrect. Moreover, the issue of W&S’s liability for Cohan’s alleged malpractice based on Cohan’s conflict of interest was presented to the jury Accordingly, OTS fails to establish how it was harmed by the trial court allowing its claim to proceed to trial. To the extent that OTS attempts to claim that W&S had a separate contractual duty, this issue was not raised in its pre-trial order or presented at trial. Accordingly, this enumeration of error is without merit.

Case No. A16A1450

6. W&S argues that the trial court erred by denying summary judgment to it on its counterclaim against Lester. We agree and reverse. Based on its holding that Lester waived his rights to any and all claims against the defendants by signing the promissory note, the trial court erred by denying summary judgment as to whether Lester breached the terms of the note by failing to pay as agreed. To the extent that OTS may have been permitted to withhold fees during the pendency of the litigation, such a conclusion has no bearing on Lester’s liability under the note. Accordingly, we reverse the judgment as to this specific claim, and remand the case for entry of an order consistent with this opinion.

Decided November 16, 2016.

The Molden Law Firm, Regina S. Molden, Mark D. Sperry, for appellants.

Clyde & Co US, Scott F. Bertschi, Nneka A. Egwuatu, for appel-lees.

7. The defendants contend that the trial court erred by denying summary judgment to them with regard to whether OTS waived its claim against them based on the release provision contained in the promissory note. As the defendants concede in their brief, however, based on our affirmance of the trial court’s judgment in Case No. A16A1499, this enumeration of error is moot.

8. Finally, the defendants contend that the trial court erred by denying their claims for attorney fees in the amount of $112,996 and expenses in the amount of $4,996.10 under OCGA § 9-11-68. This Court recently decided the case of Richardson v. Locklyn, in which this Court adopted Florida’s test for determining whether, in the trial court’s discretion, an offer of settlement pursuant to OCGA § 9-11-68 was made in good faith. Although application of this new test in this case may result in the same outcome as the trial court’s original conclusion, we nevertheless vacate the trial court’s order denying fees pursuant to OCGA § 9-11-68 and remand the case for a hearing and application of the new test announced in Richardson .

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

Andrews, P. J., concurs. Ray, J., concurs in Divisions 1 through 7 and in the judgment.

       OTS operated under the names Omni Tech Solutions and OmniTech Institute.

       See Allstate Indem. Co. v. Payton, 289 Ga. App. 202, 203 (656 SE2d 554) (2008).

       See Terrell v. OTS, Inc., Case No. 1:09-CV-00626-RWS (N.D. Ga. 2009). Terrell also filed a similar case in state law during the pendency of her discrimination charge with the EEOC.

       The district court granted a directed verdict on Terrell’s Title VII claims on the ground that OTS had fewer than 15 employees. See id. See also 42 USC § 2000e (b).

       W&S formally withdrew in June 2011.

       See Terrell v. OTS, Inc., 470 Fed. Appx. 845 (11th Cir. 2012) (unpublishedopinion in Case No. 11-13105).

       See id.

       See id. at 846.

       291 Ga. App. 208, 210 n.9 (661 SE2d 576) (2008).

       Discovery did not close until October 31, 2012.

       (Punctuation omitted.) Millsaps v. Kaufold, 288 Ga. App. 44, 44-45 (653 SE2d 344) (2007).

       222 Ga. App. 207, 210-211 (2) (474 SE2d 39) (1996).

       The trial court subsequently clarified this ruling in its February 27, 2013 order on the defendants’ second motion for summary judgment.

       (Citations and punctuation omitted.) Collins v. Dickman, 295 Ga. App. 601, 603 (1) (672 SE2d 433) (2008).

       See id.; Moore v. Cottrell, Inc., 334 Ga. App. 791, 794 (2) (780 SE2d 442) (2015). Compare with Hart, 291 Ga. App. at 209 (1) (discovery failures may not be remedied by the exclusion of probative trial evidence).

       (Citations and punctuation omitted.) White v. Ga. Power Co., 265 Ga. App. 664, 664-665 (595 SE2d 353) (2004).

       (Citations and punctuations omitted.) Duffett v. E&W Properties, 208 Ga. App. 484, 486 (2) (430 SE2d 858) (1993).

       See id.

       249 Ga. 588 (292 SE2d 705) (1982).

       See id. at 589.

       See Weir v. Kirby Constr. Co., 213 Ga. App. 832, 835-836 (4) (446 SE2d 186) (1994).

       3 39 Ga. App. 457 (793 SE2d 640) (2016).

       See id.


source: Caselaw Access Project

author: Boggs, Judge.

license: Public Domain

text:
    A16A0913.
    DEVLIN v. DEVLIN.
    (791 SE2d 840)
   Boggs, Judge.

Margaret Devlin (“the grandmother”), pro se, appeals from a superior court order denying her request for an established schedule of grandparent visitation under OCGA § 19-7-3 (d). She contends that the trial court erred in: (1) denying her requests to present telephonic testimony under OCGA § 19-9-50 (b); (2) denying her request to participate in a mediation by telephone; (3) failing to determine whether she could “travel to Georgia without financial harm”; (4) allowing the daughter-in-law “to enter testimony without legitimate evidence”; (5) failing to discover “conclusively that the [motherj’s testimony was true”; and (6) concluding “that the grandparent visitation would cause harm to the children.” For the reasons explained below, we find no merit in these contentions and affirm.

The record shows that the grandmother first sought visitation through a Pennsylvania court following the death of her son, the minor children’s father, in July 2013. In June 2014, a Pennsylvania court awarded sole physical and legal custody of the children to their mother, allowed limited grandparent visitation, and approved the mother’s relocation to Georgia with the children. In February 2014, the mother moved to Georgia, obtained a Georgia driver’s license and employment, leased a home, and enrolled the children in a Georgia school.

In December 2014, the mother filed an action in Georgia to enforce and modify the custody and visitation order entered by the Pennsylvania court. She alleged that the grandmother failed to cooperate with her efforts to establish a schedule for grandparent visitation time, and asked the court

to provide for an established schedule regarding visitation upon the showing required by OCGA § 19-7-3 (c). Alternatively, the timing, duration and conditions of any visitation should be determined exclusively by Petitioner. Any Court-Ordered visitation should take place in Georgia and at times and dates approved by Petitioner.

Following a hearing in which the Georgia court allowed the grandmother to participate pro se in a limited manner by telephone, it concluded that the mother and children had been continuous residents of the State of Georgia for six months before the Georgia proceeding was filed and that it had “exclusive jurisdiction as to all issues of custody and visitation.”

Two months after this order was entered, the trial court scheduled a mediation for the parties to take place in Georgia in mid-July 2015, almost one month later. The grandmother promptly filed another request to participate by telephone, alleging that she did “not have the funds to travel to Georgia solely for the purposes of this mediation.” The mother opposed this request, asserting that the history between the parties made “it unlikely that the parties could reach a mediated settlement, and Respondent’s request to remotely participate makes the prospect of settlement even less likely.” The record before us does not include a written order on the grandmother’s request to participate in the mediation by telephone, but a later order references that this request was denied. A subsequently-filed brief by the mother states that she appeared for the court-ordered mediation, while the grandmother did not do so.

Shortly after the date for the scheduled mediation, the grandmother filed a motion for an emergency hearing with regard to her request for unsupervised visitation with the children in Pennsylvania for two weeks out of each year. In the same motion she alleged that the mother had committed “perjury by not being truthful throughout this process.” She also asked that she be allowed to testify by telephone in the hearing because she did “not have the funds to travel to Georgia solely for the purpose of this Hearing.” The mother opposed her request to testify by telephone, arguing that

live testimony will aid the Court in determining which party is telling the truth and help the Court understand the true motivations for Respondent’s continued frivolous litigation tactics. This is particularly true since it was clear that Respondent was receiving coaching from an unknown person during her previous telephonic testimony at the jurisdictional hearing.

On October 15, 2015, the trial court denied the grandmother’s request to testify telephonically, stating:

Respondent has filed a Motion for Emergency Hearing. Included in that motion, is Respondent’s requests that she be permitted to testify telephonically A review of the record shows that Respondent failed to attend mediation as ordered by the Court. At that time, the Court denied Respondent’s request to mediate telephonically Additionally the primary purpose of the instant motion appears to be an attempt by Respondent to re-litigate issues that were resolved in a previous hearing and Order by this Court.
IT IS ORDERED that Respondent’s Motion for Emergency Hearing is DENIED WITH REGARD TO HER REQUEST TO TESTIFY TELEPHONICALLY.

In the same order, the trial court scheduled a final hearing on the meritsofthe grandmother’s request for custody for December 1,2015, and expressly required the grandmother “to appear in person at the hearing, if she wishes to be heard on this motion.”

On November 10, 2015, the grandmother filed a pro se “motion for an appeal” of the trial court’s denial of her request to appear by telephone. She asserted that she was “a retired Pennsylvania Correctional Officer surviving on an earned Pension or ‘fixed income’ ” and that she qualified for free legal services but could not receive them in Georgia as a nonresident. The mother opposed the grandmother’s request for an appeal because it was filed 26 days after the trial court’s order, well after the 10-day time period for a party to request a certificate for immediate review of an interlocutory matter under OCGA § 5-6-34 (b). The trial court construed the grandmother’s request for an appeal as a motion for reconsideration and denied it.

The grandmother did not appear for the final hearing at which the trial court heard evidence on the issue of visitation. A transcript of this hearing is not a part of the record before us. The day after the hearing held on December 2, 2015, the trial court issued an order in which it made the following findings of fact:

(1) Respondent has failed to appear for Court-Ordered mediation after receiving notice and after being ordered by the Court to appear in person; (2) Respondent has failed to appear for the Final Hearing after receiving notice and after being ordered by the Court to appear in person; (3) Respondent carries the burden of proof to show that visitation under OCGA § 19-7-3 (d) is in the best interests of the Minor Children; (4) in light of Respondent not appearing at the hearing, Respondent has failed to present any evidence that such visitation is in the best interests of the Minor Children and has otherwise failed to carry her burden of proof; (5) Petitioner presented evidence at the hearing in the form of testimony and documents showing the circumstances surrounding the death of the Minor Children’s father, instances of inappropriate and unsupported accusations by Respondent’s family members directed at Petitioner and her Minor Children that could be harmful to the Minor Children if they were exposed to such, and Respondent’s failure to intervene to protect the Minor Children from this harmful conduct; (6) Petitioner presented testimony that in her judgment visitation under OCGA § 19-7-3 (d) was not in the best interests of the Minor Children, and, while not conclusive, the Court pursuant to the statute, defers to that based upon its review of the record and the evidence presented. Based upon the lack of evidence presented by Respondent and based upon evidence presented at the Final Hearing by Petitioner and the findings of fact above, the Court finds that visitation between the Minor Children and Respondent is not in the best interests of the Minor Children, and the Court hereby DENIES grandparent visitation under OCGA § 19-7-3. Any grandparent visitation with the Minor Children shall occur only at such times, places, and under such conditions as Petitioner deems advisable in her discretion.

On December 28, 2015, the grandmother filed a pauper’s affidavit for the first time in connection with her request for a waiver of the filing fee for an appeal in this court. According to her affidavit, her household received a total of $4,669 per month through pensions and social security. The trial court denied her request based upon the amount of monthly income.

1. As the grandmother’s claims of error regarding her requests to appear by telephone and her financial ability to travel to Georgia are related, we will consider them together.

Georgia has adopted the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”), OCGA § 19-9-40 et seq., which provides: “A court of this state may permit an individual residing in another state to be deposed or to testify by telephone, audiovisual means, or other electronic means before a designated court or at another location in that state. . . (Emphasis supplied.) OCGA § 19-9-50 (b). Although there are no Georgia decisions interpreting this Code section, other states have concluded that this portion of the UCCJEA permits, but does not require, a trial court to allow telephonic testimony. See In re the Marriage of Neubauer, 815 NW2d 410 (IV) (Iowa App. 2012); In re Marriage of Tamasy v. Kovacs, 929 NE2d 820, 830 (II) (B) (Ind. App. 2010); Schwier v. Bernstein, 734 So2d 531 (Fla. App. 1999). In Georgia, “[a] trial judge has broad discretion in regulating the conduct of counsel, parties and witnesses, and in prescribing the manner in which the business shall be conducted.” (Citations and footnote omitted.) Brown v. State, 285 Ga. App. 453, 455 (2) (646 SE2d 289) (2007). See also OCGA §§ 15-1-3 (4); 24-6-611 (a). We will therefore review the trial court’s ruling on the admission of telephonic testimony for an abuse of discretion. See Baars v. Freeman, 288 Ga. 835, 842 (3) (708 SE2d 273) (2011) (reviewing trial court’s decision to allow telephonic testimony under identical provision of former OCGA § 19-11-135 (f) for abuse of discretion).

Other jurisdictions considering whether a trial court has abused its discretion in a ruling on the use of telephonic testimony find an examination of the function served by a personal appearance in court useful. See, e.g., Cenlar, FSB v. Moore, 2009 N.M. App. Unpub. LEXIS 87, *8-9 (B) (Case No. 26,768, decided May 8, 2009). In its oft-cited decision in In re Marriage of Bonamarte, 263 Mont. 170 (866 P2d 1132) (1994), the Montana Supreme Court concluded that a witness’s personal appearance in court served the following important policies and purposes:

1. assists the trier of fact in evaluating the witness’ credibility by allowing his or her demeanor to be observed firsthand;
2. helps establish the identity of the witness;
3. impresses upon the witness, the seriousness of the occasion;
4. assures that the witness is not being coached or influenced during testimony;
5. assures that the witness is not referring to documents improperly; and
6. in cases where required, provides for the right of confrontation of witnesses.

(Citation and punctuation omitted.) Id. at 174.

Here, the trial court allowed the grandmother to appear by telephone in a hearing to determine its jurisdiction. After once allowing the grandmother to appear by telephone, the trial court denied the grandmother’s subsequent requests to appear by telephone for a mediation and the final evidentiary hearing on the issue of grandparent visitation. As outlined above, there are numerous reasons that a personal appearance is preferable, and we cannot conclude that the trial court abused its discretion in requiring the grandmother to travel to Georgia. While the grandmother contends that the trial court should have determined that she was not able to travel to Georgia without financial harm, our law does not mandate that the trial court make such a finding. And even if such a requirement did exist, the grandmother failed to provide the trial court with the necessary evidence to make such a determination, and when she ultimately provided it in connection with the costs of her appeal, the trial court determined that she was not indigent. See OCGA § 9-15-2 (a) (2) (“The judgment of the court on all issues of fact concerning the ability of a party to pay costs or give bond shall be final.”); Penland v. State, 256 Ga. 641, 642 (352 SE2d 385) (1987) (defendant suffers no denial of due process from provision in OCGA § 9-15-2 (a) (2) that trial court’s findings concerning party’s ability to pay costs or post bond are not subject to review).

Decided September 14, 2016

Reconsideration denied November 17, 2016.

Margaret E. Devlin, pro se.

Ney, Hoffecker, Peacock & Hayle, William B. Ney; Blasingame, Burch, Garrard & Ashley, Patrick H. Garrard, for appellee.

For these reasons, we find no abuse of discretion by the trial court in connection with its denial of the grandmother’s request to appear by telephone and its failure to determine that she could not travel without financial harm.

2. The grandmother’s remaining enumerations of error relate to the evidence before the trial court during the final hearing on the issue of grandparent visitation, but the record before us does not include a transcript of the final hearing. “Where the record did not contain a transcript of evidence adduced upon [an evidentiary hearing], questions of whether or not there was any merit in the enumeration of error could not be determined, so the judgment must be affirmed.” (Citation omitted.) Wells Fargo Home Mtg. v. Cook, 267 Ga. App. 368, 369 (1) (599 SE2d 319) (2004). Accordingly, the grandmother’s remaining claims of error do not require a reversal.

Judgment affirmed.

Barnes, P. J., and Rickman, J., concur.

       Former OCGA § 19-11-135 (f) provided: “In a proceeding under [The Uniform Interstate Family Support Act, § 19-11-100 et seq.], a tribunal of Georgia may permit a party or witness residing in another state to be deposed or to testify by telephone, audiovisual means, or other electronic means at a designated tribunal or other location in that state. . . .”

       To the extent the grandmother relies upon OCGA § 19-7-3 (e), this Code section does not apply as it relates only to a trial court’s discretion to require a grandparent seeking visitation to be solely responsible for the expense of mediation, and makes no mention of a grandparent’s financial ability to travel.

       We note that some jurisdictions require a showing of special or exigent circumstances necessitating telephonic testimony, Bonamarte, supra; Aqua Marine Products v. Pathe Computer Control Systems Corp., 229 Ñ.J. Super. 264 (551 A2d 195) (N.J. App. 1988), and in some of these states, financial inability to travel is not considered an adequate special or exigent circumstance. See, e.g., In re B.C., 283 Mont. 423, 429 (942 P2d 106) (1997).


author: PHIPPS, Presiding Judge.

text:
    A16A1150.
    GAINES v. THE STATE.
    (792 SE2d 466)
   PHIPPS, Presiding Judge.

A jury found Markese Gaines guilty of child molestation. The trial court denied Gaines’s motion for new trial, and he appeals, arguing that: the evidence was insufficient to sustain his conviction; the trial court erred in denying his motions for mistrial and to supplement the record; the state improperly commented on his exercise of the right to remain silent; and he received ineffective assistance of counsel at trial. Finding no basis for reversal, we affirm.

On appeal from a criminal conviction, “the evidence must be viewed in the light most favorable to the verdict, and the [defendant] no longer enjoys a presumption of innocence.” We do not weigh the evidence or assess witness credibility, but merely determine “whether a rational trier of fact could have found the defendant guilty of the charged offenses beyond a reasonable doubt.” Accordingly, we will uphold the jury’s verdict “as long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the [s]tate’s case.”

Viewed in this manner, the evidence shows that 15-year-old V. W. met Gaines at her school, where Gaines, who was 20 years old at the time, catered lunches. Although she had minimal contact with him at the school, she would say “Hi” to him and thank him for lunch. One day after school, V. W. saw Gaines at a nearby Burger King restaurant. They talked, “exchanged numbers,” and V. W. left. Sometime later, V. W. again saw Gaines at the Burger King after school. Gaines sat down with her, and they talked for a period of time. They then walked to Gaines’s house to “hang out.”

As they entered the home, V. W. saw several people in the living room. She walked to a back bedroom, where she began doing homework. Gaines came into the room, started kissing her, and the situation became “very uncomfortable.” V. W. tried to move away from Gaines, but he pushed her onto the bed and placed his weight on her. While pinning her down, Gaines removed V. W.’s clothing, put on a condom, and had intercourse with her. V. W. testified that she tried to fight him off, but was unable to stop him.

Gaines left the room after the incident, and V. W. saw the condom that he had used on the bed. She quickly dressed, grabbed the condom, and exited the house without saying anything to the people in the living room. When V. W. arrived home, her mother noticed that she appeared lethargic, scared, and not “her normal self.” The mother also found a used condom in V. W.’s lunch bag. The mother called the police and gave the condom to the responding officers. She then took V. W. to the hospital, where a nurse performed a rape examination.

During the examination, V. W. told the nurse that she had “met a boy, went to his house, and then he forced himself” on her. V. W. further reported that her attacker had bitten her right nipple. Forensic analysis of swabs taken from V. W.’s right nipple revealed the presence of DNA matching that of Gaines. DNA matching both V. W. and Gaines was also identified on the condom that V. W. had brought home.

Gaines was indicted for statutory rape and child molestation “by kissing [V. W] on her breast or by having sexual intercourse with” her. The jury found Gaines not guilty of statutory rape, but guilty of child molestation. Gaines moved for a new trial, which the trial court denied after a hearing. This appeal followed.

1. Gaines argues that the evidence was insufficient to support the jury’s verdict as to child molestation. We disagree. V. W.’s testimony, her statements to the nurse who examined her, and the DNA evidence supported the verdict. The fact that the jury found Gaines not guilty of statutory rape “has no bearing on the sufficiency of the evidence supporting the guilty verdict on the separate offense of child molestation.”

2. Gaines contends that the trial court erred in failing to declare a mistrial during the state’s opening statement. In particular, he claims that the state improperly injected his character into evidence and suggested that he was guilty by association when the prosecutor made the following remark:

[V. W], fearing that no one will believe her if she reports what happened, she realizes now she put herself in a dangerous position because she is naive, she is the child, he is the adult, she thinks to take the condom ... and quickly goes out the front door. She doesn’t say anything to anybody. Remember those are his people. She doesn’t know what they’re going to do to her if she reports this. She figures correctly that they will be on his side. She doesn’t know if they’re dangerous. She doesn’t know anything about it. And by the way, one of those people in the room was later convicted of murder. So perhaps young [V. W.] was at least that smart.

Gaines objected and moved for a mistrial, arguing that the state had impugned his character by asserting that a “murderer” was in his home. The trial court denied the motion, but instructed jurors after the prosecutor completed her opening statement that “what the lawyers say... in their opening statements, their closing arguments, or their questions they ask... is not evidence and should not be taken by you as evidence.”

“It is well settled that where a defendant objects and moves for mistrial . . . and the trial court denies the motion but takes some corrective action, if the defendant is dissatisfied with that action, he must renew the objection or motion.” Gaines did not object to the trial court’s curative instruction or renew his motion for mistrial at that point. This claim of error, therefore, has been waived.

Moreover, even without waiver, we find no error. “Whether to declare a mistrial is a question committed to the discretion of the trial judge, and the denial of a mistrial is reversible error only if it appears that a mistrial was essential to preserve the defendant’s right to a fair trial.” In exercising its discretion, the trial court may determine that curative instructions — rather than a mistrial — are an appropriate response to a prosecutor’s allegedly prejudicial opening statement.

The trial court properly exercised its discretion in determining that a curative instruction was adequate here. Although the prosecutor referenced a “murderer” in the house, she did not connect that reference to Gaines’s character or assert that Gaines was guilty by association with this individual. On the contrary, the prosecutor used the presence of this person to explain why V. W. left Gaines’s home without reporting the assault to other occupants. Given these circumstances, as well as the trial court’s admonition to jurors that statements by counsel do not constitute evidence, a mistrial was not necessary to preserve Gaines’s right to a fair trial.

3. In a related claim of error, Gaines argues that the trial court erred in refusing to include in the record on appeal evidence that the alleged “murderer” in Gaines’s home had not, in fact, been convicted of murder. Again, we disagree.

Following the hearing on his motion for new trial, Gaines moved to supplement the record with evidence regarding the alleged murderer’s criminal record. According to the motion, Gaines’s attorney discovered after the new trial hearing that the individual had pled guilty to two felonies, but that the murder charge originally filed against him had been nolle prossed. Gaines sought to prove the individual’s criminal status by including in the record a certified copy of his conviction. The trial court denied the motion.

Pretermitting whether such post-trial evidence could have properly been added to the appellate record, its absence does not require reversal. The prosecutor admitted at the new trial hearing that she was mistaken at trial and that the individual had not been convicted of murder. The record thus establishes that the individual did not have a murder conviction. Additional evidence of this fact was unnecessary for purposes of appeal. The trial court, therefore, properly denied the motion to supplement.

4. In two claims of error, Gaines complains about the following statement in the prosecutor’s closing argument: “There was his DNA on her nipple where he bit her on the nipple. Have we heard his explanation for that? No. Because he doesn’t have one. Because there isn’t one except that he had sex with her.”

(a) Gaines argues that he was denied a fair trial because this portion of the state’s argument improperly commented on his right to remain silent and his decision not to testify As an initial matter, the record shows that Gaines did not object to the cited comment. He has thus waived this claim of error.

Furthermore, in determining whether a prosecutor improperly referenced the decision to remain silent, we evaluate “whether the prosecutor’s manifest intention was to comment on the accused’s failure to testify or whether the remark was of such a character that a jury would naturally and necessarily take it to be a comment on the accused’s failure to testify.” As we have explained, “[a] mere comment on the accused’s failure to rebut the [sjtate’s evidence is not impermissible.” Ultimately, closing arguments must be “judged in the context in which they are made.”

The record shows that shortly before the prosecutor made the comment at issue, defense counsel asserted in his closing argument that the evidence did not support V. W.’s testimony that Gaines had assaulted her. Focusing on the DNA found on the condom, defense counsel argued that such evidence established only that “both of them had contact with that condom, or a little piece of it.” According to defense counsel, the DNA on the condom was “not enough” to prove that sexual intercourse had occurred.

In response, the prosecutor stated that defense counsel had “to get up here and say something, the most ridiculous stuff.” Urging the jury not to “disregard the actual scientific evidence,” she asserted that there was “conclusive scientific evidence of [Gaines’s] sperm, his semen” on the condom, proving that “[h]e had sex with her.” She then turned to the DNAidentified on V. W.’s breast, asserting that the jury had not “heard [Gaines’s] explanation for” that DNA because “he doesn’t have one.”

Viewing the state’s argument in context, we find that the prosecutor did not comment upon Gaines’s failure to testify She merely suggested that Gaines had not rebutted the DNA evidence on V. W.’s breast, as opposed to the DNA on the condom, which defense counsel had tried to explain in his closing argument. This claim of error, therefore, presents no basis for reversal.

(b) Gaines claims that trial counsel rendered ineffective assistance by failing to object to the prosecutor’s alleged reference to his decision to remain silent. To prevail on this claim, Gaines “must show both that his trial counsel’s performance was deficient and that the deficient performance so prejudiced him as to deprive him of a fair trial.”

Gaines cannot make the necessary showing. As discussed in Division 4 (a), the prosecutor’s closing statement did not comment on his exercise of the right to remain silent. Rather, the prosecutor permissibly suggested that the state’s DNA evidence had not been rebutted. Accordingly, because any objection to this argument would have been futile, counsel’s failure to object does not constitute ineffective assistance.

Decided November 1, 2016

Reconsideration denied November 17, 2016.

Bentley C. Adams III, Robin H. King, for appellant.

Julia F. Slater, District Attorney, Sadhana P. Dailey, Robert B. Bicker staff II, Assistant District Attorneys, for appellee.

Judgment affirmed.

Dillard and Peterson, JJ., concur.

        Sowell v. State, 327 Ga. App. 532, 534 (759 SE2d 602) (2014) (footnote omitted).

       Id. (punctuation and footnote omitted).

       Id. (punctuation and footnote omitted).

       OCGA § 16-6-4 (a) (1) (“A person commits the offense of child molestation when such person . . . [d]oes any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person.”); Powell v. State, 335 Ga. App. 565, 567 (1) (782 SE2d 468) (2016) (“The victim’s testimony alone is sufficient to sustain a [child molestation] conviction.”) (citations omitted); Sowell, supra at 535 (1) (“[T]he [s]tate presented sufficient evidence of [aggravated child molestation] when the hospital nurse testified that [the victim] told her that [the defendant] licked her ‘tootie,’ which was the child’s term for her vagina.”) (footnote omitted).

        O’Rourke v. State, 327 Ga. App. 628, 631 (1) (760 SE2d 636) (2014). See also Rogers v. State, 291 Ga. App. 202, 203 (661 SE2d 615) (2008) (“A conviction on one count and acquittal on another related count may reflect a compromise or lenity by the jury rather than inconsistent factual conclusions, and Georgia courts generally will not look behind the jury’s decision to convict on certain counts and acquit on other counts.”); Wyley v. State, 259 Ga. App. 348 (1) (577 SE2d 32) (2003) (“[T]he jury’s not guilty verdicts on some offenses have no bearing whatsoever on the sufficiency of the evidence supporting the guilty verdicts on other offenses.”).

       (Emphasis supplied.)

        Cook v. State, 276 Ga. App. 803, 806 (3) (625 SE2d 83) (2005) (citation and punctuation omitted). See also Smith v. State, 261 Ga. 512 (2) (407 SE2d 732) (1991) (defendant “waived his right to appellate review [of claim that state’s opening statement deprived him of a fair trial] by failing to make a motion for a mistrial or to renew his objection after the court gave curative instructions”) (citation omitted); Allen v. State, 224 Ga. App. 324, 325 (2) (480 SE2d 328) (1997) (defendant waived claim of error regarding state’s allegedly improper opening statement “by failing to renew the objection following the denial of his motion for mistrial and the administration of curative instructions”) (citation omitted).

       See Smith, supra; Cook, supra; Allen, supra.

        McKibbins v. State, 293 Ga. 843, 848 (3) (750 SE2d 314) (2013) (citation and punctuation omitted).

       See OCGA § 17-8-75 (outlining trial court’s duty “[w]here counsel in the hearing of the jury make statements of prejudicial matters which are not in evidence”); Sanders v. State, 290 Ga. 445, 448 (3) (721 SE2d 834) (2012) (“The trial court has the discretion to decide whether a mistrial is the only corrective measure to take or whether proper instructions withdrawing the testimony from the jury’s consideration can correct the prejudicial effect.”) (citation omitted).

       Compare Cobb v. State, 209 Ga. App. 708, 711 (9) (434 SE2d 513) (1993) (reversing conviction where state introduced substantial irrelevant, prejudicial evidence at trial “by which the [sjtate attempted to show that sexual crimes were a frequent occurrence in appellant’s family, thus to prove appellant’s guilt by association”) (physical precedent only); Freeman v. State, 142 Ga. App. 293, 294 (4) (235 SE2d 560) (1977) (“ ‘Guilt by association’ is not a crime.”).

       See Sanders, supra (mistrial not required where trial court took sufficient precautions to exclude allegedly improper comments during opening statement “from the jury’s consideration as evidence”); Mulkey v. State, 237 Ga. App. 880, 881 (517 SE2d 362) (1999) (trial court properly denied motion for mistrial following prosecutor’s comment during opening statement that defendant had been on probation; although comment incidentally placed defendant’s character in issue, it was relevant to motive).

       See Harp v. State, 204 Ga. App. 527 (1) (420 SE2d 6) (1992) (“Evidence never actually admitted at trial cannot properly become part of the record on appeal pursuant to OCGA § 5-6-41 (f).”) (citation omitted).

       See Godson v. State, 197 Ga. App. 315, 317 (4) (398 SE2d 409) (1990) (indicating that prosecutor may make an admission in judicio during a post-trial hearing).

       See OCGA § 5-6-41 (f) (trial court may supplement the record on appeal where “anything material to either party is omitted from the record ... or is misstated therein”); Michel v. Michel, 286 Ga. 892, 895 (2) (692 SE2d 381) (2010) (“[TJhe discretion granted the trial court by OCGA § 5-6-41 (f) vests it with a necessary control over the designation and transmittal of both record and transcript. The court’s decision in such matters will not be reversed absent a manifest abuse of discretion.”) (citation and punctuation omitted); Carr v. State, 267 Ga. 547, 551 (2) (480 SE2d 583) (1997) (trial court did not abuse its discretion in concluding, pursuant to OCGA § 5-6-41 (f), that nothing material was omitted from trial record); Washburn v. Sardi’s Restaurants, 191 Ga. App. 307, 311 (7) (381 SE2d 750) (1989) (trial court did not abuse its discretion in denying appellant’s motion to supplement the record, particularly where “[i]t cannot be said that anything material to the appellant has been omitted from the record on appeal”) (citation and punctuation omitted).

        Norman v. State, 298 Ga. 344, 347 (3) (781 SE2d 784) (2016) (“In the appeal of a non-capital case, the defendant’s failure to object to the [sjtate’s closing argument waives his right to rely on the alleged impropriety of that argument as a basis for reversal.”) (citation and punctuation omitted); Palmer v. State, 286 Ga. App. 751, 755 (4) (650 SE2d 255) (2007) (defendant waived claim that prosecutor improperly commented on his failure to testify by not objecting to prosecutor’s closing argument).

        Williams v. State, 317 Ga. App. 248, 254 (2) (730 SE2d 726) (2012) (citation omitted).

        Culbertson v. State, 193 Ga. App. 9, 11 (5) (386 SE2d 894) (1989) (citations omitted). See also Culbreath v. State, 328 Ga. App. 153, 159 (3) (761 SE2d 557) (2014) (prosecutor may comment “on the general failure of the defense to produce evidence”); Brown v. State, 267 Ga. App. 642, 647 (2) (600 SE2d 731) (2004) (“[TJhe [sjtate may note in closing argument the defense’s failure to present any evidence to rebut the proof adducedby the [sjtate. It is reference to the failure of the defendant himself to testify which is prohibited.”) (punctuation and footnote omitted).

        Williams, supra at 253 (2) (citation and punctuation omitted).

       See Andrews v. State, 331 Ga. App. 353, 356 (3) (771 SE2d 59) (2015) (prosecutor permissibly commented on defendant’s failure to rebut evidence by stating: “[T]he only other person who knows is the Defendant and he hasn’t admitted to anything. You heard his denial that any of this ever happened. What you’ve also heard is a whole lot of evidence that is absolutely unrefuted.”); Kirkland v. State, 315 Ga. App. 143, 148 (5) (726 SE2d 644) (2012) (given context of closing argument, prosecutor did not comment on defendants’ silence by asserting, while discussing the defendants’ interview with police, that “if the defendants were truly innocent men facing time on charges as serious as these ones, don’t you think they would’ve wanted ... to prove to the investigating officer that they did not do this”); Williams v. State, 285 Ga. App. 190, 195-196 (3) (c) (645 SE2d 676) (2007) (state’s argument that defendant never identified individual he claimed committed the crime did not improperly shift burden of proof to the defendant); Culbertson, supra (prosecutor permissibly commented in closing argument that “[t]here has been no explanation really offered as to why it was done other than to harm the officers”).

        Walker v. State, 280 Ga. App. 457, 462 (6) (634 SE2d 93) (2006) (citation omitted).

       See id. at 463 (6) (b) (trial counsel’s failure to raise a meritless objection to the [s]tate’s closing argument “provides no basis for a claim of ineffective assistance of counsel”) (citation and punctuation omitted).


author: Peterson, Judge.

text:
    A16A1194.
    BARNETT et al. v. ATLANTA INDEPENDENT SCHOOL SYSTEM et al.
    (792 SE2d 474)
   Peterson, Judge.

Jena Barnett and Marc Antoine Williams (“Appellants”) filed a wrongful death suit against Phyllis Caldwell, alleging that leaving students unsupervised in her classroom in violation of a school policy caused the death of Appellants’ child, Antoine Williams. The trial court granted summary judgment to Caldwell and denied Appellants’ partial motion for summary judgment, concluding that the claim against Caldwell in her individual capacity involved a discretionary act for which she was entitled to official immunity Appellants appeal and argue that the trial court erred because the school policy barring teachers from leaving students unsupervised in a classroom created a ministerial duty to which official immunity did not apply Because well-established precedent makes clear that decisions relating to the control and supervision of students are discretionary actions for which teachers are entitled to official immunity, we are left no choice but to affirm the trial court’s grant of summary judgment to Caldwell.

On appeal from the grant of summary judgment, this Court conducts a de novo review of the evidence to determine whether there is a genuine issue of material fact and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.

Leone v. Green Tree Servicing, LLC, 311 Ga. App. 702, 702 (716 SE2d 720) (2011) (punctuation and footnote omitted).

So viewed, the evidence shows that on October 14,2008, Caldwell was an Atlanta Public Schools (“APS”) teacher working at Benjamin E. Mays High School. Caldwell’s classroom was in a cluster system that shared a common entrance with the classroom of another teacher, Gibril Kanu, and their classrooms were divided by a bifold wall. Antoine Williams was a student in Caldwell’s seventh-period American Literature class.

At approximately 2:45 p.m. on October 14, Caldwell left the classroom. During the time that Caldwell was gone, Williams and another student engaged in horseplay that caused Williams to fall to the floor with the other student landing on top of him. Williams subsequently collapsed and was lying unconscious on the ground in the classroom when Caldwell returned at about 3:15 p.m. Caldwell called 911 because Williams appeared to be in distress. Emergency medical technicians took Williams to Grady Memorial Hospital, where he was pronounced dead. The medical examiner determined that Williams died from blood loss resulting from the laceration of a major blood vessel caused by a dislocated collarbone.

After Williams was pronounced dead, the school principal called Caldwell and other school staff into his office to get details about the incident. Caldwell lied, telling the principal that she was in the classroom the entire time. Caldwell reported that she stopped some horseplay, but observed no activity out of the ordinary. She told the principal that Williams complained about his nose bleeding and fell to the ground when he tried to stand.

A few days later, however, the principal learned that Caldwell was not in the classroom when Williams collapsed. A subsequent investigation by an independent company hired by APS also concluded that Caldwell was away from her classroom when Williams was injured. After discovering that Caldwell had lied about being in the classroom, the principal confronted Caldwell about her misrepresentations. Caldwell admitted that she was not in the classroom during the time of the incident and gave several different explanations for leaving the room. Caldwell told the principal that she left (1) to use a telephone, (2) to make copies of papers, or (3) to find another student. The principal deposed that it had never been made clear to him why Caldwell left her classroom.

In her deposition, Caldwell stated that she left her classroom to use the faculty restroom located down the hall from her classroom. Caldwell deposed that, before she left, she asked Kanu to “look out” or “listen” for her class, and that she had asked Kanu to do this on previous occasions. Caldwell stated that she did not specifically recall asking Kanu to go into her classroom, and she admitted that she did not see him go into her class, as Kanu remained seated at his desk when she left. The independent investigator, who talked with Kanu as well as Caldwell, found that Caldwell did ask Kanu to monitor her class and that Kanu did so from his adjoining classroom. Kanu was not deposed in this case.

Caldwell further stated that she returned to the classroom at about 3:00 p.m., heard that students had been “horsing around” in her classroom, saw Williams sitting at his desk, and then left her classroom again to search for students who were no longer there. Caldwell stated that she returned to the classroom for the second time at 3:15 p.m., at which point she saw Williams on the floor. Caldwell admitted that she did not ask Kanu or anyone else to listen out for her classroom when she left the second time.

Appellants filed this wrongful death suit against Caldwell, alleging that Caldwell was liable in her individual capacity because she left her classroom unsupervised in violation of Section 6.5 of the Benjamin E. Mays High School Faculty and Staff Handbook (“Section 6.5”). Section 6.5 provides:

The classroom teacher is solely responsible for the supervision of any student in his or her classroom. Students are never to be left in the classroom unsupervised by an APS certified employee.

(Emphasis in original.) Caldwell told the investigator that she was aware of the policy

The trial court granted summary judgment to Caldwell, concluding that the allegations of negligence involved a duty to supervise students in her classroom, and thus her absence was a discretionary act entitled to official immunity. This appeal followed.

Appellants argue that Caldwell was not entitled to official immunity because she violated a clear and unambiguous school policy, Section 6.5, that imposed an absolute and definite duty to not leave students in her classroom unsupervised. But the complained-of act relates to Caldwell’s responsibility to ensure the supervision of her classroom, a function that we have repeatedly held is entitled to official immunity

The official immunity afforded to teachers arises from subpara-graph (d) of the 1991 amendment to Art. I, Sec. II, Par. IX of the 1983 Georgia Constitution. See Coffee Cty. School Dist. v. Snipes, 216 Ga. App. 293, 296 (454 SE2d 149) (1995); Daniels v. Gordon, 232 Ga. App. 811, 813 (2) (503 SE2d 72) (1998). Subparagraph (d) pertinently provides that public employees

. . . may be liable for injuries and damages if they act with actual malice or with actual intent to cause injury in the performance of their official functions. Except as provided in this subparagraph, officers and employees of the state or its departments and agencies shall not be subject to suit or liability, and no judgment shall be entered against them, for the performance or nonperformance of their official functions. . . .

In Gilbert v. Richardson, 264 Ga. 744 (452 SE2d 476) (1994), the Supreme Court of Georgia held that the term “official functions” means “any act performed within the officer’s or employee’s scope of authority, including both ministerial and discretionary acts.” 264 Ga. at 753 (6). Subparagraph (d) thus “provides no immunity for ministerial acts negligently performed or for ministerial or discretionary acts performed with malice or an intent to injure. It, however, does provide immunity for the negligent performance of discretionary acts[.]” Id.

A ministerial act is commonly one that is simple, absolute, and definite, arising under conditions admitted or proved to exist, and requiring merely the execution of a specific duty. A discretionary act, however, calls for the exercise of personal deliberation and judgment, which in turn entails examining the facts, reaching reasoned conclusions, and acting on them in a way not specifically directed.

McDowell v. Smith, 285 Ga. 592, 593 (678 SE2d 922) (2009) (citation omitted). “Whether the act of a public official is ministerial or discretionary is determined by the facts of each individual case, particularly the facts specifically relevant to the official’s act or omission from which the alleged liability arises.” Grammens v. Dollar, 287 Ga. 618, 620 (697 SE2d 775) (2010) (citations omitted).

Although discerning the line between ministerial and discretionary duties is sometimes difficult, it is well-established that the task of supervising and controlling students is a discretionary act entitled to official immunity. See, e.g., Wright v. Ashe, 220 Ga. App. 91, 94 (469 SE2d 268) (1996) (“[T]he general task imposed on teachers to monitor, supervise, and control students has . . . been held to be a discretionary action which is protected by the doctrine of official immunity”). And this immunity applies “even where specific school policies designed to help control and monitor students have been violated.” Chamlee v. Henry Cty. Bd. of Educ., 239 Ga. App. 183, 184 (1) (521 SE2d 78) (1999); see also Perkins v. Morgan Cty. Sch. Dist., 222 Ga. App. 831, 836 (2) (476 SE2d 592) (1996).

Appellants argue that Section 6.5 created a ministerial duty and Caldwell was not entitled to official immunity for failing to comply with the policy. Although a ministerial duty may be established by a written policy, see Roper v. Greenway, 294 Ga. 112, 114-15 (751 SE2d 351) (2013) (citations omitted), the existence of a written policy does not automatically create a ministerial duty, see Davis v. Effingham Cty. Bd. of Comm’rs, 328 Ga. App. 579, 585 (2) (760 SE2d 9) (2014). When analyzing whether a public employee’s act or omission from which liability arises is a ministerial or discretionary act, our determination “depends on the character of the specific actions complained of, not the general nature of the job[.]” McDowell, 285 Ga. at 594 (citation omitted; emphasis added); see also Daley v. Clark, 282 Ga. App. 235, 238 (2) (638 SE2d 376) (2006). Here, Caldwell did just enough for her actions to be discretionary

Caldwell asked her neighboring teacher to “listen out” for her class when she left the first time, and it is not disputed that the horseplay that led to Williams’s death occurred during Caldwell’s first departure. Caldwell’s request evidenced an exercise of discretion related to the supervision of her students — her reaching the conclusion that the neighboring teacher’s “listening” was sufficient supervision for the time during which she was absent from the classroom. See Grammens, 287 Ga. at 620-21 (affording official immunity to teacher because a school policy requiring the use of protective eyewear during activities involving “explosive materials” did not define the term “explosive materials” and thus “the policy required the instructor to engage in a discretionary act, i.e., to exercise personal deliberation and judgment by examining the facts and reach a reasoned conclusion with regard to the applicability of the dictates of the written policy”). And although Caldwell’s conclusion was tragically wrong, second-guessing her determination is the very sort of thing that official immunity prohibits. See id. at 619 (“The rationale for [official] immunity is to preserve the public employee’s independence of action without fear of lawsuits and to prevent a review of his or her judgment in hindsight.”) (citation omitted); Guthrie v. Irons, 211 Ga. App. 502, 507 (2) (439 SE2d 732) (1993) (concluding that teachers faced with many judgment calls in determining the means to supervise children “should not be deterred or intimidated by the constant threat of personal liability” for exercising their professional judgment), disapproved on other grounds by Gilbert, 264 Ga. at 750.

We are sympathetic to Appellants’ concerns about our case law conferring “de facto absolute immunity for school employees.” McDowell, 285 Ga. at 594 (citation and punctuation omitted). And if the facts here were different, we might rule differently. But Section 6.5 does not impose “simple, absolute[,] and definite” mandatory responsibilities of the sort at issue in McDowell. There, a school policy mandated that school personnel were not to release a student without consulting the student’s information card to determine whether the person picking up the student was authorized to do so; the school employee did not look at the information card before releasing the plaintiff’s child. Id. at 592. No discretion or judgment was involved at all in McDowell, and therefore the school employee was not entitled to official immunity.

Decided November 4, 2016

Reconsideration denied November 17, 2016

The Moore Law Firm, S. Leighton Moore III; The Cochran Firm, Shean D. Williams, Jane M. Lamberti; The Summerville Firm, J. Darren Summerville, for appellants.

McGuireWoods, Robert J. Waddell, Jr., Cheryl L. Haas, Kurt E. Lentz, for appellees.

Accordingly, we affirm the grant of summary judgment to Caldwell.

Judgment affirmed.

Phipps, P. J., and Dillard, J., concur.

On Motion for Reconsideration.

Appellants have moved for reconsideration, arguing that we overlooked material evidence that the principal explained to teachers that Section 6.5 required “a classroom teacher’s proximity within the classroom and that students should not be out of your eyesight,” and that Caldwell’s conduct following the fatal incident supports a finding that she was aware she violated the policy Regardless of whether Caldwell violated the policy as explained to her, binding precedents of our Court are clear that discretionary decisions related to supervision are entitled to official immunity “even where specific school policies designed to help control and monitor students have been violated.” Reece v. Turner, 284 Ga. App. 282, 286 (1) (643 SE2d 814) (2007) (punctuation omitted). And, as our opinion explains, the evidence does show that Caldwell exercised her discretion related to supervision.

Motion for reconsideration denied.

       On appeal, Caldwell challenges the “summary and synthesis” of the investigator’s report. There is no dispute that the investigation was commissioned by APS as a regular course of business, and Caldwell conceded below that the investigator was hired to find facts. Under OCGA § 24-8-803(8)(C), factual findings resulting from an investigation made pursuant to authority granted by law are admissible in civil proceedings, unless the sources of information or other circumstances indicate a lack of trustworthiness. There is no dispute that the independent investigator relied on the statements of several witnesses who have not testified in this case, but there is no challenge, either by Caldwell or by Appellants, that these sources of information were unreliable or lacked trustworthiness. Therefore, the investigator’s report is admissible and competent evidence. See Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 162-70 (109 S. Ct. 439, 102 LE2d 445) (1988) (holdingthat portions of investigatory reports containing findings admissible under Federal Rule of Evidence 803(8)(A)(iii), the federal counterpart to OCGA § 24-8-803(8)(C), are not inadmissible merely because they state a conclusion or opinion). APS did not accept the independent investigator’s opinion that Caldwell left the classroom unsupervised, but otherwise had no issue with the investigator’s investigation, and it relied on the investigator’s report to take subsequent actions.

       If Caldwell’s testimony was the only evidence of that request, we might have to reverse, since Appellants challenge her credibility and we cannot resolve such challenges on summary judgment. But that is not the only evidence: the investigator found that she did make that request, and reached that conclusion based on talking with the neighboring teacher. Appellants do not challenge the investigator’s findings. Accordingly, the fact that she made that request of the neighboring teacher is not legitimately disputed.

       Caldwell suggests that a total failure to comply with Section 6.5 would nevertheless be a discretionary act entitled to official immunity. We view such an argument through skeptical eyes, because a total failure to perform an act may involve no exercise of discretion or deliberation whatsoever, and it is not clear that such a failure would be considered a discretionary act covered by official immunity. But given our resolution of this appeal, it is not necessary to decide this question.


author: McMlLLIAN, Judge.

text:
    A16A1097.
    BONNER v. THE STATE.
    (794 SE2d 186)
   McMlLLIAN, Judge.

Keshaun Jaemer Bonner was indicted in Fulton County on charges of armed robbery, hijacking a motor vehicle, and possession of a firearm during the commission of a felony in connection with an alleged taking of a car on April 3, 2014. Bonner appeals the trial court’s denial of his plea in bar and motion to dismiss this indictment based on double jeopardy and collateral estoppel, asserting that he previously pled guilty in Clayton County to a felony charge of theft by receiving stolen property involving the same car on the same day.

Bonner was indicted on the Fulton County charges on April 11, 2014, and the Clayton County charges were asserted in an accusation dated August 8, 2014. Bonner pled guilty to the Clayton County accusation four months later, on December 8, 2014, while the Fulton County charges remained pending. In reciting the factual basis for the charge of felony theft by receiving during Bonner’s guilty plea hearing, the prosecutor stated that she expected the evidence to show that on April 3, 2014, Bonner was in possession of a stolen car, which was the property of another, which he knew or should have known was stolen. The trial court sentenced Bonner to a total of eight years, with twelve months to serve, on the felony charge of theft by receiving in this case, along with another felony offense of theft by receiving charged in a separate indictment to which Bonner also pled guilty.

On May 12, 2015, Bonner filed his plea in bar and motion to dismiss in the Fulton County action asserting that the charges in both the Clayton County and Fulton County actions arose from the theft of the same car and that he could not be prosecuted for both taking the car and receiving it as stolen property. Bonner argued that because the charge oftheft by receiving under OCGA § 16-8-7 applies only to individuals who were not involved in the actual theft of the stolen property, his conviction under that statute represents a judicial finding that he was not the principal thief, barring any subsequent prosecution for crimes requiring a contradictory finding that he did, in fact, steal the car.

The trial court appeared to agree with Bonner’s analysis regarding the mutually exclusive nature of his conviction for theft by receiving when compared to the armed robbery and car hijacking charges alleged in the Fulton County indictment. Nevertheless, the court denied Bonner’s plea in bar and motion on the ground that Bonner had not yet been convicted of two mutually exclusive crimes. The court found that if the theft by receiving charge somehow were set aside by the time of Bonner’s trial on the Fulton County charges, the jury would be free to consider the charges alleging that he had actually taken the car.

Because the facts here are undisputed and no question arises as to the credibility of any witnesses, our review of the trial court’s ruling is de novo. Garrett v. State, 306 Ga. App. 429, 429 (702 SE2d 470) (2010); Summers v. State, 263 Ga. App. 338 (587 SE2d 768) (2003).

Bonner’s argument in support of his motion and plea in bar is grounded in collateral estoppel, a doctrine incorporated into the Fifth Amendment’s prohibition against double jeopardy. Ashe v. Swenson, 397 U.S. 436, 443 (90 SCt 1189, 25 LE2d 469) (1970). Collateral estoppel “means simply that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.” Id. As the Supreme Court of Georgia has explained,

[cjollateral estoppel may affect a later criminal prosecution in two ways: (1) it may operate to bar the introduction of certain facts necessarily established in a prior proceeding; or (2) it may completely bar a subsequent prosecution where one of the facts necessarily determined in the former proceeding is an essential element of the conviction sought.

(Emphasis supplied.) Malloy v. State, 293 Ga. 350, 354 (2) (a) (744 SE2d 778) (2013). Thus, where a defendant’s prior conviction necessarily includes a factual finding that would prevent his conviction on other charges, further prosecution of those charges is barred, and the trial court erred to the extent that it found that a subsequent prosecution may proceed as long as the defendant is not convicted on the barred charge.

The question, then, is whether Bonner’s plea to theft by receiving by retaining the stolen vehicle barred his subsequent prosecution for armed robbery and hijacking the vehicle. In Georgia, “[tjhere is no doubt that one cannot be convicted of both robbery of a vehicle and theft by receiving that vehicle. The offense of theft by receiving is intended to catch the person who buys or receives stolen goods, as distinct from the principal thief.” (Citation and punctuation omitted.) Thomas v. State, 261 Ga. 854, 855 (1) (413 SE2d 196) (1992). See also Camsler v. State, 211 Ga. App. 826, 826 (440 SE2d 681) (1994). The same reasoning applies to the crime of hijacking a motor vehicle. Cf. Middlebrooks v. State, 241 Ga. App. 193, 195 (4) (526 SE2d 406) (1999) (holding that theft by receiving a motor vehicle is not a lesser included offense of hijacking a motor vehicle because “[t]he offense of theft by receiving is intended to catch the person who buys or receives stolen goods, as distinct from the principal thief”) (citation and punctuation omitted). Thus, a finding “that the goods had been stolen by some person other than the accused” is an essential element of a conviction for theft by receiving under OCGA § 16-8-7. (Citation and punctuation omitted.) Thomas, 261 Ga. at 855.

However, “the actus reus element of the offense [set out in that statute] may be committed by either receiving, disposing of, or retaining stolen property.” Camsler, 211 Ga. App. at 827. Here, the Clayton County accusation alleged that Bonner had violated the statute solely by retaining the stolen property In Thomas, our Supreme Court left open the question of “whether armed robbery and theft by receiving, where the indictment alleges retaining stolen property, are mutually exclusive.” 261 Ga. at 855 (1) n.l. This Court subsequently answered that question in the affirmative. Ingram v. State, 268 Ga. App. 149,151-52 (5) (601 SE2d 736) (2004). We take the opportunity now to further elucidate the reason why theft by receiving by retaining stolen property is treated in the same manner as theft by receiving or disposing of stolen property for purposes of determining whether crimes are mutually exclusive.

Prior to 1969, Georgia law provided that “[i]f any person shall buy or receive any goods ... that shall have been stolen or feloniously taken from another, knowing the same to be stolen or feloniously taken, such person shall be an accessory after the fact, and shall receive the same punishment” as a person convicted of stealing or feloniously taking the property. See former Ga. Code Ann. § 26-2620, repealed by Ga. L. 1968, p. 1249. In applying this provision, Georgia courts held that “[t]he gist of the offense of receiving stolen goods knowing them to be stolen is the felonious knowledge that the goods were stolen; and to constitute the offense, the person receiving the goods must have this knowledge at the time of receiving them.” Pat v. State, 116 Ga. 92, 93 (2) (42 SE 389) (1902). Therefore, no violation of the statute occurred where a defendant took possession of the goods without knowing that they were stolen, but who, when later informed of the fact, retained possession of them. Id.; Johnson v. State, 135 Ga. App. 768, 769 (2) (219 SE2d 25) (1975); Johnson v. State, 122 Ga.App. 769, 771 (2) (178 SE2d 772) (1970); Rogers v. State, 29 Ga. App. 363 (115 SE 668) (1923).

Moreover, a conviction under this statute also required that the State prove that someone other than the defendant, if known and apprehended, was guilty of the theft of the property. See Clarke v. State, 103 Ga. App. 739, 739 (120 SE2d 673) (1961) (“Before a conviction can be had for the offense of receiving stolen goods . . . , every fact essential to the conviction of the principal thief, whether he be known or unknown, must be proved, as well as that the party on trial received the stolen goods with knowledge that they were stolen.”). See also Reese v. State, 114 Ga.App. 315, 315 (151 SE2d 180) (1966); Jackson v. State, 98 Ga.App. 135, 136 (105 SE2d 249) (1958) (holding that where principal thief was not indicted and convicted, defendant could not be lawfully convicted of receiving goods allegedly stolen by principal thief).

In 1968, the Georgia legislature “enacted a comprehensive revision of the criminal laws. Ga. L. 1968, p. 1249.” Patterson v. State, 299 Ga. 491, 505 (2) (b) (789 SE2d 175) (2016) (Blackwell, J., dissenting). This enactment was based on the work of a Criminal Law Study Committee (the “Committee”) commissioned by the General Assembly in 1961 “to undertake a ‘thorough study of the criminal laws’ and to recommend ‘a revision of the laws relative to criminal law and procedure,’ with an eye toward eliminating ‘ambiguities and inconsistencies.’Ga. L. 1961, p. 96.” Id. at 505 (2) (b). As a part of the 1968 revision, Ga. Code Ann. § 26-2620 was repealed and replaced, effective July 1, 1969 (Ga. L. 1968, pp. 1249, 1292), with the current version of the statute, which provides:

(a) A person commits the offense of theft by receiving stolen property when he receives, disposes of, or retains stolen property which he knows or should know was stolen unless the property is received, disposed of, or retained with intent to restore it to the owner. “Receiving” means acquiring possession or control or lending on the security of the property.
(b) In any proceeding under this Code section it shall not be necessary to show a conviction of the principal thief.

(Emphasis supplied.) OCGA § 16-8-7 (See also former Ga. Code Ann. § 26-1806). The Committee’s notes state that these changes to the statute were intended to simplify the “former Georgia law dealing with the receiving of stolen property,” which it described as being “in a state of confusion.” The notes do not specifically address why retention was added as another means of committing theft by receiving. Ga. Code Ann. bk. 10, Committee Notes, Chapter 26-18, p. 349 (Harrison 1983).

However, Georgia courts have since interpreted the addition of the word “retains” in the statute as invalidating prior precedent requiring proof that the accused knew the property was stolen when he or she first acquired it; rather, the courts found that “ ‘[a]fter the fact knowledge’ would tend to show a guilty retention under the [revised] Code and will sustain a conviction.” Johnson, 135 Ga. App. at 769 (2). See also Blankenship v. State, 223 Ga. App. 264, 267 (2) (b) (477 SE2d 397) (1996) (same); Bremer v. State, 148 Ga. App. 461, 468 (6) (251 SE2d 355) (1978) (“After the fact knowledge that goods are stolen and retention of the goods constitutes retaining stolen property and will support a conviction.”); Poole v. State, 144 Ga. App. 228, 230 (2) (240 SE2d 775) (1977) (“[Retention of stolen property which a person knows or should know is stolen without intent to restore it to the owner will sustain the conviction even where guilty knowledge at the time of the acquisition of the stolen property is not shown.”). Based on the history of statutory changes to the crime of theft by receiving, it follows then that the addition of retention as a method of committing theft by receiving was intended to resolve the inconsistency in the prior law that allowed a perpetrator to escape prosecution where he innocently obtained property but chose to retain it after learning that it was, in fact, stolen.

The addition of “retaining,” thus, did not change the character of a theft by receiving charge, which includes as “[a]n essential element of the crime . . . that the goods had been stolen by some person other than the accused.” (Citation and punctuation omitted.) Thomas, 261 Ga. at 855 (1). See also Smith v. State, 335 Ga. App. 639, 641 (781 SE2d 400) (2016). Accordingly, in instances where the accused was convicted of theft by receiving and/or retaining, our courts have held that he could not also be convicted of armed robbery or robbery as the crimes are mutually exclusive. See Thomas, 261 Ga. at 856 (1) (granting new trial where jury convicted defendant of both armed robbery and receiving stolen property); Smith, 335 Ga. App. at 640 (vacating defendant’s guilty pleas to robbery and theft by both receiving and retaining and remanding the case for further proceedings as to those counts); Ingram, 268 Ga. App. at 151-52 (5) (vacating defendant’s sentences for theft by taking and theft by receiving by retaining and remanding for new trial). See also Clark v. State, 144 Ga. App. 69, 70 (240 SE2d 270) (1977) (Clark’s prior guilty plea to receiving a stolen check writer collaterally estopped the State from attempting to prosecute him for burglary in connection with the theft of the check writer).

Therefore, even though Bonner was charged with “retaining” and not “receiving” stolen property, we find that his conviction under OCGA § 16-8-7 contains an implicit and necessary finding that he was not the individual who stole the car. See Clark, 144 Ga. App. at 70 (in convicting defendant based on his guilty plea to charge of theft by receiving stolen check writing machine, trial court “necessarily determined that [the theft] had been committed by someone other than [the defendant]”) (emphasis omitted). Conversely, the charges of armed robbery under OCGA § 16-8-41 and hijacking a motor vehicle under OCGA § 16-5-44.1, as indicted in this case, each requires proof that Bonner actually took the car. Because these charges are mutually exclusive of Bonner’s prior conviction for theft by retaining the vehicle, the trial court erred in denying his plea in bar and the motion to dismiss the Fulton County indictment alleging those crimes. Id.

Decided November 17, 2016.

Erin E. Donohue-Koehler, for appellant.

Paul L. Howard, Jr., District Attorney, Paige Reese Whitaker, Kevin C. Armstrong, Assistant District Attorneys, for appellee.

Judgment reversed.

McFadden, J., concurs. Miller, P. J., concurs in judgment only.

       Bonner also pled guilty to two other charges asserted in the same indictment, a felony charge of obstruction of a police officer and a separate misdemeanor charge of theft by taking of a wheel unrelated to the car in this case.

       Although the Fulton County indictment and the Clayton County accusation list different owners for the car, Bonner’s attorney stated at the hearing on the plea in bar that the charges in Clayton and Fulton Counties involved the same car, and the State apparently does not dispute this fact.

       The State asserts that because the Clayton County accusation did not allege a basis for imposing a felony sentence, such as a valuation for the car, this sentence is void, and thus it fails to support Bonner’s argument that he has a prior conviction. See OCGA § 16-8-12 (defining punishments for, inter alia, theft by taking). However, pretermití ing whether the State has standing to attack the sentence on this ground since it specifically asked that the sentence be imposed, the trial court expressly informed Bonner that he was charged with felony theft by receiving in connection with the car in this case, and he pled guilty to that charge. “In Georgia, a guilty plea is an admission against interest and prima facie evidence of the facts admitted.” (Citation and punctuation omitted.) Trustgard Ins. Co. v. Herndon, 338 Ga. App. 347, 351 (1) (790 SE2d 115) (2016) (physical precedent only). Thus, Bonner implicitly admitted the facts supporting his conviction for felony theft by taking and he does not contend that the sentence imposed is void as unsupported by the evidence. Because the State has presented no evidence to counter the prima facie evidence of felony theft by taking, it cannot show that the sentence is void.

       The State also asserts that Bonner did not carry his burden on the issue of double jeopardy because he failed to introduce evidence of the entry of the trial court’s written judgment and sentence in the case. However, the State failed to raise this argument below, and it is waived. See Spradling v. State, 310 Ga. App. 337, 340 (715 SE2d 672) (2011) (failure to raise evidentiary objection constitutes waiver of the issue since this Court cannot review “an evidentiary ruling that the trial court was never called upon to make”) (citation and punctuation omitted) (on motion for reconsideration).

       The trial court cited no possible basis on which the Clayton County conviction could be set aside, however, and the State has not argued or suggested that it sought to set aside that conviction.

       The Committee’s notes were published in the Georgia Code, and Georgia’s appellate courts have relied upon them in a number of cases for guidance in interpreting the state’s criminal statutes. See, e.g., Patterson, 299 Ga. at 505 (2) (b) (Blackwell, J., dissenting); Adams v. State, 288 Ga. 695, 696 (1) (707 SE2d 359) (2011); Luther v. State, 255 Ga. 706, 708 (1) (342 SE2d 316) (1986); Murray v. State, 254 Ga. 351, 352 (2) (329 SE2d 485) (1985); Thomas v. State, 246 Ga. 484, 486 (272 SE2d 68) (1980); Wells v. State, 125 Ga. App. 579, 579 (188 SE2d 407) (1972).

       Justice Frankfurter once explained the reasoning behind this principle as follows:
      It is hornbook law that a thief cannot be charged with committing two offenses — that is, stealing and receiving the goods he has stolen. . . . And this is so for the commonsensical, if not obvious, reason that a man who takes property does not at the same time give himself the property he has taken. In short, taking and receiving, as a contemporaneous — indeed a coincidental — phenomenon, constitute one transaction in life and, therefore, not two transactions in law.

        Milanovich v. United States, 365 U.S. 551, 558 (81 SCt 728, 5 LE2d 773) (1961) (Frankfurter, J., dissenting). Similarly, someone who takes property necessarily retains it for at least some period of time, making the conduct part of one continuous act.

       We note that this case is distinguishable from this Court’s recent opinion in Holt v. State, 339 Ga. App. 230, 232 (1) (793 SE2d 516) (2016). In that case, the defendant pled guilty to theft by receiving the victim’s stolen car after he was arrested following a high-speed chase. This Court found that defendant’s conviction on the theft by receiving charge did not bar his subsequent prosecution on charges of armed robbery, theft by taking, and aggravated assault in connection with the theft of the same victim’s money and cell phone at gunpoint a few days prior to defendant’s arrest because the armed robbery was completed before the vehicle was taken.

       “A person commits the offense of armed robbery when, with intent to commit theft, he or she takes property of another from the person or the immediate presence of another by use of an offensive weapon. . . .” OCGA § 16-8-41 (a).

       “A person commits the offense of hijacking a motor vehicle when such person while in possession of a firearm or weapon obtains a motor vehicle from the person or presence of another by force and violence or intimidation or attempts or conspires to do so.” OCGA § 16-5-44.1 (b).

       Because the Fulton County indictment charged Bonner with possession of a firearm during the commission of hijacking a motor vehicle, that count, as charged, must also be dismissed. We express no opinion as to any other charges that Bonner may face based on this incident.