author: Doyle, Presiding Judge.

text:
    A11A2289.
    MOHAMED v. THE STATE.
    (723 SE2d 694)
   Doyle, Presiding Judge.

Abdihakim Mohamed was convicted of possession of cathinone, a Schedule I controlled substance, in violation of the Georgia Controlled Substances Act. He appeals, challenging the sufficiency of the evidence and arguing that the trial court erred by denying his motion to exclude the report and testimony of the State’s expert based on the State’s willful failure to comply with the Georgia Criminal Procedure Discovery Act. We reverse, for the reasons that follow.

When reviewing a challenge to the sufficiency of the evidence used to support a conviction, we view the evidence in the light most favorable to the . . . verdict, and the defendant no longer enjoys the presumption of innocence. We do not weigh the evidence or determine witness credibility, but only determine if the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offense beyond a reasonable doubt.

So viewed, the record shows that on March 4, 2009, two packages were delivered to a DHL Express shipping facility in Clayton County. The packages were initially shipped from Kenya to a DHL facility in the Netherlands, from where they were shipped to the United States on March 2. The packages, which bore the same shipping number, listed the senders as “Accountants & Advisur, By” and both were addressed to “Accountants & Advisur Inc.” The shipping labels indicated that the packages contained “[insurance [(Documents.”

A DHL Express security manager suspected that the packages “might contain a narcotic,” and a supervisor opened them, revealing “some sort of [dry] sticks or twigs with leafy material. . . wrapped in banana leaves or some sort of . . . leafy material.” DHL alerted the Clayton County Narcotics Unit, and several officers responded to the facility. One of the officers examined the contents of the packages and visually identified the material as “khat.”

Shortly thereafter, Mohamed arrived and claimed one of the packages from the DHL facility, showing his identification as he did so. The police approached and questioned Mohamed, and he stated that he was retrieving the package for another individual. The police also found a black plastic bag containing bundled plant material in Mohamed’s vehicle. Mohamed told police that he was given the bundle “as a pre-payment” for claiming the package, and he was going to take it to a location in DeKalb County.

In September 2009, the state crime lab tested the materials found in the package retrieved by Mohamed and the bag in his car, and the chemist concluded that the substances contained detectable amounts of both cathinone and cathine; the chemist did not measure the quantity of the chemicals in the material. At Mohamed’s trial, the chemist testified that cathinone is a chemical that degrades into cathine, another chemical. The chemicals are not visible to the naked eye and are undetectable without the use of scientific testing such as gas or high performance liquid chromatography

At trial, Mohamed testified that he was born in Somalia, where khat is legal and widely used, including at weddings and other parties. He further explained that khat is harvested from plants; fresh khat is green, and it turns darker within three or four days after harvesting. Mohamed testified that Somalians do not ingest khat until at least two days after harvest so that the chemicals will “go out,” and it won’t be “too strong.” He further stated that it takes three to five days for khat to arrive from Africa to the United States, and “the strong chemicals are gone” by the time it arrives in the United States. According to Mohamed, the khat at issue here was grown in Meru, Kenya, driven approximately 400 kilometers to the Nairobi airport, shipped to the Netherlands or the United Kingdom via air, and then shipped to Ohio before finally arriving in Atlanta.

1. Mohamed challenges the sufficiency of the evidence, arguing that the State failed to prove that he intended to possess cathinone. We agree.

Clearly, there was sufficient evidence, including Mohamed’s admission, that he possessed khat. Nevertheless, as the Supreme Court of Georgia recently held in Duvall v. State, “the criminal intent required by OCGA § 16-13-30 (a). . . is intent to possess a drug with knowledge of the chemical identity of that drug.” Otherwise, the Court explained that possession of a controlled substance would be a strict liability offense. Therefore, the State was required to prove that Mohamed intended to possess khat with knowledge that it contained cathinone, which was the controlled substance specified in the accusation. The State failed to do so.

Mohamed testified that, to his knowledge, the chemicals “[went] out” of khat after two days, and shipping from Africa to Atlanta took more than three days. The state crime lab chemist, who was qualified as an expert in the field of drug identification, testified as follows regarding the plant material he tested in this case:

The plant or the chemicals themselves start as the [c]athi-none in a — if it comes from a natural source, it will start in that plant material as [c]athinone. And then once the plant has died or been cut or somehow removed, I guess from the earth in some form, that [c]athinone will degrade into a chemical known as [c]athine[,] ... [a] Schedule IV [controlled substance].”

When asked whether cathinone would be expected to degrade out of a khat plant within 48 hours after the plant is harvested, the expert responded:

I would expect that at room temperature if everything, . . . if it was just cut and then laid there in the sun, that the amount of [c]athinone starting with the fresh plant, would definitely be less than it would be 48 or 72 hours after. But as far as it totally disappearing or the strength beginning or ending, I have no firsthand knowledge of experiencing ... a plant that’s been freshly harvested versus one that’s come in, versus a certain length of time from harvesting.

Given (1) the State’s expert witness’s testimony that cathinone converts into cathine, another chemical that Mohamed was not charged with possessing, after some period of time and that cathi-none is undetectable without the use of scientific testing equipment; (2) evidence that the khat in this case was harvested more than two days before its subsequent arrival in Clayton County; (3) Mohamed’s testimony that he believed the chemical “[went] out” of the khat after two days; and (4) the lack of evidence that Mohamed made any attempt to conceal the nature of the package (by, for example, evading police or showing false identification), we conclude that the State failed to establish that Mohamed knowingly possessed the khat with the knowledge that it contained cathinone. Thus, the evidence was insufficient to support his convictions.

Decided February 16, 2012

Sidney L. Moore III, for appellant.

Tracy Graham-Lawson, District Attorney, Luana Popescu, Elizabeth A. Baker, Assistant District Attorneys, for appellee.

2. In light of our holding in Division 1, we need not address Mohamed’s remaining enumeration.

Judgment reversed.

Ellington, C. J., and Miller, J., concur.

       OCGA § 16-13-25 (3) (GG).

       OCGA § 16-13-30 (a).

       OCGA § 17-16-4 (a) (4).

       (Citation omitted.) Arroyo v. State, 309 Ga. App. 494 (711 SE2d 60) (2011).

       Although the recipients on both shipping labels were identical, one listed a Norcross address and the other had a Decatur address.

       See Commonwealth of Pennsylvania v. Mohamud, 15 A3d 80, 84 (Pa. Super. Ct. 2010) (“Khat is a plant grown in the horn of Africa and the Arabian Peninsula. For centuries, persons in East African and Arabian Peninsular countries such as Somalia, Kenya, and Yemen have chewed or made tea from the stems of the native khat shrub, which is known to have stimulant properties. Khat is often consumed in social settings, and is legal in many parts of East Africa, the Middle East, and Europe. When first cut, khat leaves contain the chemical stimulant cathinone, which over time degrades into the milder stimulant cathine. Chewing of khat containing cathinone results in hyperalertness, hyperactivity, and elevated respiration and heart rate.”) (Citations and punctuation omitted.)

       A separate individual claimed the second package approximately 30 minutes after Mohamed’s arrival.

       Cathine is a Schedule IV controlled substance. See OCGA § 16-13-28 (a) (2.3). Mohamed, however, was charged with possession of cathinone only.

       289 Ga. 540 (712 SE2d 850) (2011).

       (Emphasis supplied.) Id. at 542.

       See id.

       The State presented no evidence to contradict Mohamed’s assertion and instead submitted testimony by an expert conceding that cathinone degrades into cathine.

       See Duvall, 289 Ga. at 542. Compare Serna v. State, 308 Ga. App. 518, 521-522 (3) (707 SE2d 904) (2011) (defendant’s use of “Amsterdam Poppers ... to sedate his sexual battery victim . . . demonstrated [his] knowledge of the harmful effect of the compound and authorized the jury to conclude that [the defendant] intended to possess a dangerous drug, even if he was subjectively unaware of the precise chemical compound in the bottle and its regulated nature”); Haire v. State, 133 Ga. App. 12 (209 SE2d 681) (1974) (defendant’s admission that he “had ... a feeling” and “an assumption” that the knapsack he was carrying contained marijuana, coupled with his flight from the police and attempt to conceal the knapsack, constituted knowledge of the existence of marijuana sufficient to support his conviction for possession); Mohamud, 15 A3d at 91-92 (rejecting defendant’s argument that he was not aware that khat contained cathinone based on defendant’s admission that he possessed khat and that he knew it was “an illegal substance”).


source: Caselaw Access Project

author: Adams, Judge.

license: Public Domain

text:
    A11A2335.
    IN THE INTEREST OF W. L. H., a child.
    (723 SE2d 478)
   Adams, Judge.

Following a juvenile court’s finding that 12-year-old W. L. H. was deprived by the lack of care provided by his legal guardians, W L. H. has appealed with the assistance of his court-appointed trial counsel. But neither his legal guardians nor his guardian ad litem have appealed. Among other things, the child contends the juvenile court erred by ruling that he was not a party to the proceedings below and, consequently, erred by denying him access to the proceedings. He has withdrawn his only enumeration of error attacking the merits of the juvenile court’s decision.

As of August 2010, the* child had been in the custody of his legal guardians — first cousin Marian “Kathy” Helsinger and her husband John Helsinger (referred to herein as the “parents”) — since he was about 17 months old. His natural father is deceased, and his natural mother’s whereabouts were unknown when the Walton County Department of Family and Children Services (DFACS) filed a complaint alleging the child did not have proper care. On August 9, 2010, the juvenile court entered a shelter care order based on information that the child needed protection because Mrs. Helsinger admitted that she had struck the child and left bruises even though a safety plan (based on prior allegations of physical abuse) was in effect that prohibited physical discipline. On the same day, the court appointed a “Guardian Ad Litem/CASA” for the child pursuant to OCGA § 15-11-9, and the guardian attended the 72-hour hearing on August 11. On August 16, DFACS filed a petition alleging deprivation based on physical abuse. On September 9, DFACS entered a case plan for the parents. On September 15, 2010, the court appointed an attorney to represent the child as his counsel. The CASA submitted monthly recommendations on the matter in September and October, and the court set a hearing for October 21, 2010.

The court held the first day of the hearing on October 21 and a second session on November 29. On the first day, the child’s counsel, the parents’ counsel, and the court engaged in colloquy about whether the 12-year-old child should be considered a party to the proceedings and whether he had a right to be present for the proceedings. The court eventually decided that the child would remain out of the courtroom for all of the evidence. The court also ruled that he would hear what the child had to say in chambers and that the other parties could question the child in the presence of his attorney. The child’s attorney objected to excluding the child from the proceedings but did not object to the in-chambers testimony. Just prior to the second day of the hearing, the child filed a motion to allow him access to the proceedings. In the motion, the child asserted that failure to allow him to be an active participant in the matter denied him his due process rights under the Georgia and Federal Constitutions. The court denied the motion and excluded the child from the second day of the hearing, as well.

We first consider, sua sponte, the child’s standing to appeal. See St. John’s Melkite Catholic Church v. Commr. of Revenue, 240 Ga. 733, 734 (242 SE2d 108) (1978) (appellate court may raise standing issue sua sponte). It is established that a court-appointed guardian has standing to appeal on behalf of a represented child. In the Interest of J. F., 310 Ga. App. 807, 808, n. 1 (714 SE2d 399) (2011) (“When a court appoints a guardian ad litem to represent a minor, the minor is in effect made a party to the action and has standing through the guardian ad litem to appeal. [Cit.]”). We find no law, however, authorizing a minor to appeal a civil action on his own behalf without the benefit of a guardian or next friend.

In civil actions, a minor may not prosecute an action except by way of a representative, such as a guardian ad litem or next friend. Kesterson v. Jarrett, 307 Ga. App. 244, 249, n. 2 (704 SE2d 878) (2010); OCGA § 9-11-17 (c). “The purpose of a guardian ad litem or next friend is to furnish a person sui juris to carry on the litigation for the minor’s benefit. [Cit.]” City of Dalton v. Cochran, 80 Ga. App. 252, 255 (55 SE2d 907) (1949). Thus, although a minor may be a party, he is not competent to act on his own; the guardian ad litem or next friend acts for him.

Decided February 16, 2012

Lori B. Duff, for appellant.

Samuel S. Olens, Attorney General, Shalen S. Nelson, Senior Assistant Attorney General, Calandra A. Harps, Assistant Attorney General, Prior, Daniel & Wiltshire, Lee R. Moss, for appellee.

The same holds true for appeals. With the exception of criminal and delinquency cases, we find no authority for an unemancipated minor in a deprivation action, even if represented by counsel, to appeal without the aid of a guardian or next friend. Cf. In the Interest of M. B. B., 241 Ga. App. 249, 250 (526 SE2d 76) (1999) (former temporary guardian of child lacked standing to appeal order terminating natural mother’s parental rights; guardian ad litem was proper party and chose not to appeal); Miller v. Rieser, 213 Ga. App. 683, 690 (2) (446 SE2d 233) (1994) (minor has standing through guardian ad litem to appeal ruling in custody action).

And here, the child has appealed despite the fact that his legal guardians have not appealed and his court-appointed guardian ad litem, duty bound to act on the child’s best interests, has filed a brief actually opposing the child’s appeal. See In the Interest of M. B. B., 241 Ga. App. at 250 (“[A] proper party was available to contest this ruling for the child, but elected not to do so.”). Accordingly, we conclude the child lacks standing to appeal without the aid of a guardian or next friend.

Appeal dismissed.

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

       A “CASA” is a court appointed special advocate. OCGA § 15-11-9.1 (a) (1).

       OCGA § 9-11-17 (c) provides:
      Whenever an infant or incompetent person has a representative, such as a general guardian, committee, conservator, or other like fiduciary, the representative may bring or defend an action on behalf of the infant or incompetent person. If an infant or incompetent person does not have a duly appointed representative, he may bring an action by his next friend or by a guardian ad litem. . . .

       Black’s defines “sui juris” as “Of full age and capacity” or “Possessing full social and civil rights. . . .” Black’s Law Dictionary (9th ed. 2009).


author: Blackwell, Judge.

text:
    A11A1633.
    IN RE COCHRAN.
    (723 SE2d 490)
   Blackwell, Judge.

The Department of Human Services filed a petition for the appointment of a conservator to manage the property and financial affairs of Sara Cochran, then 79 years of age. Following an eviden-tiary hearing, the probate court granted the petition, and Cochran now appeals. Cochran contends that the evidence in the record is insufficient to sustain the judgment below, that the probate court should have dismissed the petition for failure to state a claim and want of probable cause, and that the affidavit that accompanied the petition was inadequate. We find no error and affirm.

The evidence shows that, beginning in 2007, the Department began to receive reports that Cochran was a victim of financial exploitation. It opened an investigation, and a case worker met with and interviewed Cochran. The investigation revealed that Cochran had spent at least $100,000 on various lotteries and sweepstakes, including foreign lotteries, and Cochran eventually acknowledged to the case worker that she might have been “scammed” in connection with some of these lotteries. After the Department contacted her family, however, it closed its investigation, apparently to give her family an opportunity to deal with the problem.

Some of Cochran’s family later filed, and the probate court granted, an emergency petition for the appointment of a conservator to manage her property. The probate court appointed Althea Caces as an emergency conservator. Ms. Caces discovered “multiple transactions [in which Cochran and her husband had] repeatedly made the same mistake and fraudulently been induced to send out money,” and she determined that $140,000 had been disbursed by Cochran and her husband under suspicious circumstances in the preceding year. Ms. Caces expressed concern that, if Cochran and her husband continued spending money on lotteries and sweepstakes at the same rate, their estate would “be exhausted within a couple of years.”

The emergency conservatorship eventually expired, however, and as soon as it did, Cochran and her husband went to their bank, where Cochran asked to wire $52,000 from her account. In connection with this request, Cochran showed a handwritten letter to her banker, in which someone, who claimed to be the president of SunTrust Bank, congratulated Cochran for having won a multimillion-dollar lottery and informed her that she would owe $52,000 in taxes on her winnings. Upon examining the letter, the banker told Cochran that it was fraudulent and that it was not, in fact, from the president of SunTrust. The banker refused to authorize the wire, so Cochran then went to another branch and withdrew $52,000.

The banker later testified, and his testimony shows, that the request to wire $52,000 was not an isolated incident. According to the banker, Cochran would “bring in the paperwork[,] and we could see that they were these lottery scams[,] and we would try to talk her out of wiring money.” The banker also explained that Cochran previously had attempted to deposit bogus checks, made payable to her and drawn upon the account of “Sweet Steaks Company of Australia,” for $18.9 million and $5.3 million, which the bank refused to deposit.

After Cochran withdrew $52,000, her bank apparently reported to the Department that Cochran had been financially exploited. A case manager again visited Cochran and her husband to investigate the claim. During this visit, the telephone at the Cochran home rang several times, and Cochran explained that the callers were calling to ask her to send money to them. Cochran told the case manager that sometimes she and her husband sent money to people in Spain and someone in Canada. The case manager explained to Cochran that sending large amounts of money to people that she did not know was risky. At the suggestion of the case manager, Cochran and her husband both agreed to an interview with Dr. Gary Rogers, a psychologist.

After Dr. Rogers interviewed Cochran, he formed the opinion that she lacks sufficient capacity to make responsible decisions concerning the management of her property. The Department subsequently filed a petition for the appointment of a conservator, supported by the affidavit of Dr. Rogers. The probate court ordered an evaluation of Cochran by Nhien Dutkin, a licensed clinical social worker. Ms. Dutkin also came to the conclusion that Cochran lacks sufficient capacity to make responsible decisions concerning the management of her property. Following a hearing, the probate court entered a judgment appointing a conservator for Cochran, and the court denied her motion to strike the affidavit of Dr. Rogers, denied her motion to dismiss the petition for failure to state a claim and for lack of probable cause, and denied her motion to dismiss the petition for failure to establish the need for a conservator. Cochran now appeals.

1. Cochran claims that the evidence does not sustain the judgment of the probate court that a conservatorship was warranted. We disagree. “The court may appoint a conservator for an adult only if the court finds the adult lacks sufficient capacity to make or communicate significant responsible decisions concerning the management of . . . property.” OCGA § 29-5-1 (a). See also Cruver v. Mitchell, 289 Ga. App. 145, 146 (1) (a) (656 SE2d 269) (2008). The need for a conservatorship must be established by clear and convincing evidence. OCGA § 29-5-12 (d) (4). On appeal, we must uphold the findings of a probate court on a petition for conservatorship if they are supported by any clear and convincing evidence. See id.; Cruver, 289 Ga. App. at 147 (1) (b).

Evidence that Cochran spent large sums of money on foreign lotteries does not, she says, prove clearly and convincingly that she needs a conservator to manage her property. We agree that, if the evidence showed only that Cochran had played these lotteries, it would be insufficient to authorize the appointment of a conservator, inasmuch as a person of perfectly sound mind, capable of understanding that the lotteries might be a fraud, nevertheless might choose to play the lotteries as escapist fantasy and fun. But the evidence in this case, we think, shows more. For the appointment of a conservator, the Department was required to prove that Cochran lacks “sufficient capacity to make or communicate significant responsible decisions” concerning the management of her property and financial affairs. See OCGA § 29-5-1 (a). We think the Department carried its burden.

The probate court found that Cochran suffers from “cognitive loss” that affects her judgment with respect to her financial affairs, and the court found that her impaired judgment led her to incur significant financial losses as she repeatedly fell victim to fraud. That Cochran is a serial victim of fraudulent lottery schemes is established by compelling evidence. But more important, the evidence also shows, consistent with the findings of the probate court, an impairment of her capacity to make decisions about her finances. Dr. Rogers testified that Cochran is unable to understand the consequences of her financial decisions and, when he interviewed her, was “unable to articulate [any] facts” to support her belief that she had won a lottery. Dr. Rogers explained that, when he asked Cochran whether she wanted to find a way to verify that someone calling her about a lottery was not carrying on a scam, Cochran responded that “[i]t’s not a scam. He called.” In addition, Ms. Dutkin testified and expressed her concern that Cochran was unable to remember important details about significant financial matters. For instance, Cochran and her husband had given their bank account number to persons who represented that the Cochrans had won more than $57 million in a lottery, but according to Ms. Dutkin, Cochran and her husband could not recall the names of the persons who made these representations or identify the lottery they purportedly had won. And following the court-ordered evaluation of Cochran, Ms. Dutkin concluded that Cochran’s ability to make responsible decisions regarding her finances is substantially impaired.

Cochran herself also testified at the hearing, and in parts of her testimony, she arguably displayed a sound grasp of her financial affairs. On the other hand, she testified that a man from Jamaica was in town and had asked her to “call him as soon as we got home from court.” According to Cochran, this man was supposed to bring her a check for $57 million, as well as two cars. When asked if she thought the man was truthful, Cochran responded that, “well, you [can] never tell.”

Given this evidence, the probate court was authorized to find that Cochran repeatedly had fallen victim to fraud because her judgment was impaired by cognitive loss. Accordingly, the evidence was sufficient for the probate court to find by clear and convincing evidence that Cochran is in need of a conservator to protect her assets. See In re Cash, 298 Ga. App. 110, 112-113 (679 SE2d 124) (2009) (evidence was sufficient to support probate court’s factual findings which, in turn, supported the legal conclusion that appellant was in need of a conservator). It follows that the probate court did not err when it granted the petition for the appointment of a conservator. See, e.g., Cummings v. Stanford, 193 Ga. App. 695, 696 (1) (388 SE2d 729) (1989) (where evidence supported probate court’s finding that “the appellant was incapable of managing her financial resources, which would be wasted or dissipated in the absence of proper management,” probate court did not err in appointing guardian of appellant’s property).

2. Cochran also claims that the trial court erred when it denied her motions to dismiss the petition for lack of probable cause and failure to state a claim and to strike the affidavit of Dr. Rogers. We have previously held that “a probate court’s pre-trial decision finding probable cause under OCGA § 29-5-12 (c) and ordering a conservatorship action to proceed to trial is not reviewable on appeal once the trial has occurred in which (as here) the evidence supported an order of conservatorship.” Yetman v. Walsh, 282 Ga. App. 499, 501 (2) (639 SE2d 491) (2006). Given our conclusion that the evidence is sufficient to sustain the order of conservatorship, we will not separately consider whether the trial court properly found probable cause to proceed with an evaluation and then conduct a hearing for purposes of OCGA §§ 29-5-11 and 29-5-12.

Cochran also sought to strike the affidavit of Dr. Rogers. Under OCGA § 29-5-10 (c) (1), a petition for the appointment of a conservator must be accompanied by an affidavit of a licensed psychologist, physician, or clinical social worker in support of the petition. In this case, the petition was accompanied only by the supporting affidavit of Dr. Rogers. Thus, Cochran argues, if the affidavit of Dr. Rogers had been stricken, the petition itself would not satisfy the statutory requirements for a valid claim for the appointment of a conservator.

Cochran first contends that the affidavit is facially improper because, she says, it is conclusory, lacks the supporting factual statement required by statute, and fails to specify any identifiable condition or diagnosis. A review of the affidavit shows that this contention is without merit. The requirements for an affidavit in support of a petition for the appointment of a conservator are set forth in OCGA § 29-5-10 (c), which provides that the affidavit must, among other things, “stat[e] the facts that support the claim of the need for a conservator.” OCGA § 29-5-10 (c) (3). According to the affidavit of Dr. Rogers, Cochran suffers from a “loss of cognitive process of judgment and consequences.” The affidavit also includes the specific determination, required by OCGA § 29-5-10 (c) (2), that Cochran lacks sufficient capacity to make or communicate significant, responsible decisions concerning the management of her property. In support of this determination, the affidavit goes on to say, among other things, that Cochran, “when asked the process to verify winnings from a lottery ... is unable to articulate the facts for such verification” and, when she is given examples, “is not able to process the actual cause and effect.” We find that this affidavit satisfies the requirements of OCGA § 29-5-10 (c).

Decided February 17, 2012.

Jerry A. Landers, Jr., for appellant.

Samuel S. Olens, Attorney General, Shalen S. Nelson, Senior Assistant Attorney General, Elizabeth M. Williamson, Assistant Attorney General, Edwards, Friedewald & Grayson, Christopher M. Bethel, Althea C. Caces, for appellee.

Cochran also challenges the affidavit on the ground that it was obtained by the State, she says, without statutory authority and in violation of her constitutional rights to privacy and to be free from unreasonable searches and seizures. We find that these contentions also have no merit. The evidence shows that the case manager suggested to Cochran that she be evaluated by her own physician because Cochran was sending thousands of dollars to people that she did not know. Cochran refused to be evaluated by her physician because she was embarrassed, but she agreed to talk with Dr. Rogers. According to the case manager, Dr. Rogers explained to Cochran that his evaluation of her might be used to support a petition for conservatorship. Because Cochran consented to talk with Dr. Rogers, the probate court could conclude that the State did not intrude on her “fundamental constitutional right to ‘be let alone,’ ” In re J. M., 276 Ga. 88, 89 (1) (575 SE2d 441) (2003) (footnote omitted), and that she was not subjected to an unreasonable search. See generally Clemow v. State, 196 Ga. App. 533 (1) (396 SE2d 302) (1990) (evidence supported trial court’s conclusion that appellant voluntarily consented to the search). Finally, although Cochran did not agree to the appointment of a conservator, the Department nevertheless was authorized to petition for it. See OCGA § 30-5-5 (e). Because the Department was authorized to petition for a conservatorship, and inasmuch as OCGA § 29-5-10 (c) contemplates that such a petition be supported by the affidavit of a professional, such as a licensed psychologist, we cannot agree that the Department acted without any authority when it obtained an affidavit from Dr. Rogers. We conclude, therefore, that the probate court did not err when it denied the motion to dismiss the petition and the motion to strike the affidavit.

For these reasons, we affirm the judgment below.

Judgment affirmed.

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

       Cochran later testified that, in fact, she had spent as much as $600,000 or $700,000 on these lotteries over a period of six or seven years.

       The Department also filed a petition for the appointment of an emergency conservator, which the court granted as an interim safeguard, putting the property of Cochran under a second emergency conservatorship.

       The Department also sought a conservator for the property of her husband, but the probate court dismissed the petition as to the husband after the presentation of evidence.

       As a respected authority on the law of conservatorships has explained, “[w]hile it is tempting to gauge whether a decision is ‘responsible’ through the lens of one’s own value structure, it is vital that those involved in adult conservatorships isolate the actual decision-making process from the decision made.” Mary E Radford, Guardianships and Conservator-ships in Georgia, § 5-1, p. 239 (1st Ed. 2005) (footnote omitted).

       After the filing of the petition, “the court shall review the petition and the affidavit, if any, and determine whether there is probable cause to believe that the proposed ward is in need of a conservator within the meaning of Code Section 29-5-1.” OCGA § 29-5-11 (a). If so, the court is directed to appoint a physician, psychologist, or licensed clinical social worker to evaluate the proposed ward. OCGA § 29-5-11 (d). After reviewing the evaluation, if the court again finds probable cause to support a finding that the proposed ward is in need of a conservator, the court is required to schedule a hearing on the petition. See OCGA § 29-5-12 (a), (c). Here, the probate court, upon review of the petition, issued an order directing that Cochran be evaluated by Ms. Dutkin, and upon its review of the petition and the evaluation, the probate court set a hearing on the petition. Although Cochran suggests that the probate court erred in finding probable cause in its determination under OCGA § 29-5-11, we find no reason to distinguish, for purposes of applying the Yetman rule, a finding of probable cause under OCGA § 29-5-11 from a finding of probable cause under OCGA § 29-5-12.


author: McFADDEN, Judge.

text:
    A11A1726.
    DB50 2007-1 TRUST et al. v. DIXON.
    (723 SE2d 495)
   McFADDEN, Judge.

This is an appeal from a superior court order permanently enjoining foreclosure of certain property. Because the order was entered after the case had been removed to federal court, the superior court was without jurisdiction and the order must therefore be vacated as void.

Bonnie Dixon filed a complaint in Greene County Superior Court against DB50 2007-1 Trust and John Does 1-10, seeking to enjoin DB50 from foreclosing on Dixon’s property in Greensboro, Georgia. The superior court issued a temporary restraining order prohibiting foreclosure until further order of the court. DB50 then removed the case to the United States District Court for the Middle District of Georgia based on alleged diversity of citizenship jurisdiction. On May 17, 2010, DB50 filed notice of that removal in the superior court.

The next day, on May 18, 2010, Dixon filed an amendment to her complaint, identifying Prommis Solutions, LLC, a Georgia company, as an additional defendant in the case. That same day, the superior court held a hearing at which DB50 and Prommis were not present. At the hearing, the trial court announced that it would grant Dixon a permanent injunction. Ten days later, on May 28, 2010, the superior court entered an order permanently enjoining DB50 and Prommis from foreclosing on the property.

Some seven months later, on January 4, 2011, the district court remanded the case to the superior court because DB50 had failed to establish complete diversity of citizenship between the parties. After the remand, DB50 and Prommis filed this appeal from the superior court’s order of a permanent injunction.

1. The appellants assert that the permanent injunction order is void because the superior court issued that ruling after the case had been removed to the federal district court and before it was remanded to the superior court. We agree.

“[A] federal statute mandates that in a civil action, when the notice of removal is filed with the clerk of the state court, the notice ‘shall effect removal and the State court shall proceed no further unless and until the case is remanded.’ 28 USC § 1446 (d).” Oduok v. Phillips, 269 Ga. App. 583, 584 (4) (604 SE2d 633) (2004). As our state Supreme Court has explained,

removal to a federal court pursuant to 28 USC[ ] § 1446 halts all further proceedings in the state court, which thereupon loses jurisdiction unless and until the case is remanded. . . . [A]ny proceedings in a state court after removal of a case to federal court are null and void and must be vacated.

(Citation, punctuation and emphasis omitted.) Cotton v. Federal Land Bank, 246 Ga. 188, 189 (269 SE2d 422) (1980). Here, the superior court held a hearing and then entered the permanent injunction after the notice of removal to federal district court had been filed, and before the case was remanded by the district court. Accordingly, the superior court was without jurisdiction at the time it held the hearing and when it entered the order, which is therefore null and void.

Dixon argues that the action taken by the superior court after the notice of removal is not void because the federal district court ultimately found that it did not have diversity jurisdiction and remanded the case to the superior court. In support of this argument, Dixon cites Styers v. Pico, Inc., 236 Ga. 258, 259 (223 SE2d 656) (1976), which includes language that an “exception [to the rule that state court actions are void after removal to federal court] occurs when a case is subsequently shown not to have been removable.” However, this language was not supported by citation to any legal authority and, as Dixon acknowledges, was obiter dicta. Such dicta does “not. . . control the judgment in a subsequent suit when the very point is presented for adjudication.” (Citation and punctuation omitted.) Zepp v. Brannen, 283 Ga. 395, 397 (658 SE2d 567) (2008).

Moreover, while there might have been such an exception under a prior version of the federal removal statute, no such exception exists under the present law. See Allen v. Hatchett, 91 Ga. App. 571, 572-576 (1) (86 SE2d 662) (1955) (discussing change in removal law and explaining that under current law any action taken in state court after notice of removal will have no force or effect). Indeed, cases and commentary agree that under the revised statute, once a case has been removed to federal court, “the action in the state court is automatically stayed and any proceedings there prior to a federal remand order are absolutely void, despite a subsequent determination that the removal petition was ineffective. [Cits.]” (Emphasis supplied.) Cavanagh v. Cavanagh, 380 A2d 964, 967 (I) (RI 1977). A “state court is deprived of jurisdiction to proceed with the removed action unless and until the case is remanded, irrespective of whether the action is removable. [Cit.]” (Emphasis supplied.) United States ex rel. Echevarria v. Silberglitt, 441 F2d 225, 227 (2d Cir. 1971). If a case is ultimately remanded to the state court, it simply “ ‘resumes the status it occupied at the time of the removal.’ [Cit.]” Quixtar, Inc. v. Campbell, 298 Ga. App. 617, 618 (680 SE2d 661) (2009).

In this case, because 28 USC § 1446 (d) proscribed any further action by the superior court after the removal to district court and prior to remand, the superior court had no jurisdiction when it entered the order permanently enjoining foreclosure of the property. See Oduok, supra at 584 (2). Accordingly, that order is void and must be vacated. Upon remand, the case resumes the status it had at the time of removal.

Decided February 17, 2012.

Johnson & Freedman, Kyle S. Kotake, for appellants.

Peter J. Rice, Jr., James E. Carter, for appellee.

2. Because of our holding in Division 1, we need not address the remaining enumerations of error concerning various issues that are either moot or have not yet been raised in and ruled on by the trial court.

Judgment vacated and case remanded with direction.

Phipps, P J., and Andrews, J., concur.


author: MCFADDEN, Judge.

text:
    A11A2137.
    PIEDMONT HEALTHCARE, INC. et al. v. KOWAL.
    (723 SE2d 497)
   MCFADDEN, Judge.

This appeal is from a trial court’s order enjoining a hospital board’s decision to revoke a doctor’s clinical privileges. Because the injunction was based on an erroneous interpretation of the hospital’s bylaws, we reverse.

The record shows that a 17-year-old patient suffered a burn to his hand while undergoing a nasal surgical procedure performed by Dr. Keith Kowal at Piedmont Fayette Hospital. After an investigation of the incident, the hospital’s Medical Executive Committee recommended that Kowal’s clinical privileges be revoked. Pursuant to Kowal’s request, the decision of the Medical Executive Committee was reviewed by the staff Hearing Panel, which recommended that Kowal’s clinical privileges be suspended for 120 days. The hospital’s Board of Directors then reviewed the matter and issued its final decision, setting aside the Hearing Panel’s recommendation, affirming the original recommendation of the Medical Executive Committee and thus revoking Kowal’s clinical privileges.

Kowal filed a lawsuit against Piedmont Healthcare, Inc., the hospital and its president, W. Darrell Cutts, seeking injunctive relief and damages. After a hearing, the trial court ruled that under hospital bylaws, since neither Kowal nor the Medical Executive Committee had appealed from the Hearing Panel’s recommendation, the Board “is deemed to have acquiesced in the . . . Hearing Panel’s recommendation and is bound by it.” Based on that ruling, the trial court entered an interlocutory injunction, rescinding the Board’s final decision and reinstating the Hearing Panel’s recommendation of a 120-day suspension. Piedmont Healthcare, the hospital and Cutts appeal.

1. The appellants contend that the injunction must be reversed because the trial court erred in ruling that, absent an appeal by either party, the Board acquiesced in and is bound by the Hearing Panel recommendation. We agree.

Generally, a trial court has broad discretion to grant or deny an interlocutory injunction, and its exercise of that discretion will not be disturbed on appeal “unless there was no evidence upon which to base the ruling or it was based on an erroneous interpretation of the law.” (Citation omitted.) Satilla Health Svcs. v. Bell, 280 Ga. App. 123, 127 (633 SE2d 575) (2006). Here, the trial court’s grant of the interlocutory injunction was based on an erroneous interpretation of the hospital bylaws.

Those bylaws provide that the affairs of the hospital are directed, governed and overseen by the Board. The bylaws further provide that the Board is responsible for “credentialing (appointing, reappointing and determining clinical privileges of) members of [the hospital’s] medical staff. Such credentialing decisions of the Board are final[.]” The bylaws’ credentialing policy sets forth the procedures for peer review of medical staff and provides, among other things, that the Hearing Panel “shall render a recommendation, accompanied by a report, which shall contain a concise statement of the basis for its recommendation.” Within ten days after notice of the Hearing Panel’s recommendation, either party can request an appeal, but if no such request is made, “an appeal is deemed to be waived and the Hearing Panel’s report and recommendation shall be forwarded to the Board for final action.”

Where the words in a corporation’s bylaws are plain and obvious, they must be given their literal meaning. Gwin v. Thunderbird Motor Hotels, 216 Ga. 652, 658 (2) (119 SE2d 14) (1961); Lewis v. Turner Broadcasting System, 232 Ga. App. 831, 832-833 (2) (503 SE2d 81) (1998). Contrary to the trial court’s ruling, there is nothing in the plain language of the bylaws mandating that, absent an appeal by the parties, the Board is deemed to have acquiesced in and is bound by the Hearing Panel’s recommendation. Indeed, such an interpretation ignores the plain language of the bylaws establishing that the Board oversees and governs the affairs of the hospital and makes all final medical staff credentialing decisions, and that the Hearing Panel simply makes a recommendation that is forwarded to the Board.

Decided February 17, 2012

Andersen, Tate & Carr, Thomas T. Tate, Morris, Manning & Martin, Seslee S. Mattson, for appellants.

Allen, McCain & OMahony, Hunter S. Allen, Jr., Gary R. McCain, Simuel F. Dosier, for appellee.

“ ‘Recommendation refers to an action which is advisory in nature rather than one having any binding effect.’ Black’s Law Dictionary 1144 (5th Ed. 1979).” Yarnell v. Sisters of St. Francis Health Svcs., 446 NE2d 359, 363 (Ind. App. 1983) (interpreting bylaw provision and finding hospital board not bound by recommendation). See generally Taylor v. Kennestone Hosp., 266 Ga. App. 14 (596 SE2d 179) (2004) (noting that board rejected recommendations of medical executive committee and hearing panel and denied physician’s application for reappointment). Thus, under the plain language of the bylaws, the Hearing Panel’s recommendation was simply advisory and did not bind the Board. Had such a binding effect been intended, clear words to that effect could have been included in the bylaws. But since no such words appear in the bylaws, the Board, as the governing body of the hospital, was authorized to take the final credentialing action it deemed appropriate after considering the recommendation. Accordingly, the trial court abused its discretion by granting an injunction based on its erroneous legal interpretation that the Board had somehow acquiesced in and was bound by the recommendation. “A convoluted interpretation cannot be substituted for the straightforward language contained in the bylaws. [Cit.]” Lewis, supra at 833.

2. Because of our holding above in Division 1, we need not address the appellants’ remaining arguments.

Judgment reversed.

Phipps, P. J., and Andrews, J., concur.


text:
    A11A2198.
    BROWN v. THE STATE.
    (723 SE2d 520)
   Blackwell, Judge.

Prince Christopher Brown was tried by a Chatham County jury and convicted of armed robbery, aggravated assault, and possession of a firearm during the commission of a felony. Brown appeals, contending that the evidence is insufficient to sustain his convictions, that the court below erred when it failed to exclude certain evidence as hearsay, that the court erred when it failed to grant his motion for a mistrial, that there was prosecutorial misconduct at trial, that the court gave an erroneous charge on the burden of proof, and that the court should have merged his convictions for armed robbery and aggravated assault based on his use of a deadly weapon. We find no merit in these contentions, and we affirm the judgment of conviction.

1. We first consider whether the evidence is sufficient to sustain the convictions. To this end, we ask whether any rational jury could have found proof beyond a reasonable doubt of guilt in the evidence adduced at trial, viewing that evidence in the light most favorable to the verdict. Howard v. State, 310 Ga. App. 659, 659 (1) (714 SE2d 255) (2011). And as we consider this question, we must keep in mind that it is for the jury, not appellate judges, to assess the credibility of witnesses, weigh and draw reasonable inferences from the evidence, and resolve conflicts in the evidence. See Ferguson v. State, 307 Ga. App. 232, 233 (1) (704 SE2d 470) (2010). So, if the record contains some competent evidence to prove beyond a reasonable doubt each element of the crimes of which the defendant was convicted, we must uphold the convictions, even if the evidence is controverted. Id.

Viewed in the light most favorable to the verdict, the evidence in this case shows that, on the afternoon of November 1, 2007, someone knocked on the door of the apartment in which the victim resided. The victim opened the door, and he saw Brown, whom he had seen before in the neighborhood. Brown said that someone wanted to speak with the victim, and when the victim asked who it was, Brown told the victim to wait and that Brown would bring that person to the apartment. Brown left, and then, a few minutes later, he returned to the apartment, entered it, and struck the victim in the face. Another man, Edward Shuman, followed Brown into the apartment. Brown pulled a gun and hit the victim about the head with the gun, striking the victim as many as forty times. According to the victim, the assault continued for ten or twenty minutes. At some point, Brown told the victim to “give it up,” and Brown took about $250 from the pocket of the victim. At another point, Shuman told Brown to kill the victim, and Brown continued to strike the victim about the head with the gun. The victim then struggled with both men for several more minutes. The victim eventually made his way to the front window of his apartment and broke it, and Brown and Shuman then left the apartment through the back door.

Brown argues that the evidence is insufficient because the testimony of the victim “was so internally inconsistent and contradicted by other evidence that a rational trier of fact could not have convicted [Brown] based upon it.” But as appellate judges, we do not undertake to pass upon the credibility of witnesses. As we have explained before, we do not have “the opportunity to hear the witnesses and observe their demeanor,” and for this reason, we leave questions of credibility to the jury, and we do not substitute our own assessments of credibility for those of the factfinder. Walton v. State, 217 Ga. App. 773, 774 (1) (459 SE2d 184) (1995) (citation and punctuation omitted). The victim in this case testified about the assault and identified Brown as the man who committed it, and the competent testimony of even a single witness can be enough to sustain a conviction. See Smith v. State, 237 Ga. App. 852, 853 (1) (521 SE2d 7) (1999). We view the evidence in the light most favorable to the verdict, and so viewed, a rational jury in this case could have accepted the testimony of the victim and, based upon that testimony, found proof beyond a reasonable doubt of Brown’s guilt. The evidence adduced at trial is, therefore, sufficient to sustain the convictions.

2. We turn next to the contention that the trial court erred when it admitted evidence that, Brown says, is hearsay. At the time of the assault and robbery, the victim recognized Brown but apparently did not know his name. The victim subsequently learned from others that Brown was known as “Chris,” and the victim advised investigating officers to look for someone named “Chris.” At trial, the court permitted the victim to testify that he learned the name “Chris” from others, but it would not allow the victim to testify that others had told him that “Chris” was, in fact, the person who assaulted and robbed him, and so, the victim testified as follows:

Q: Were you given the name of Chris Brown?
A: Yes, sir.
Q: Okay. And who gave you the name of Chris Brown?
A: It’s his step-daddy, supposed to have been the baby’s momma or something.
Q: Do you know this person’s name?
A: No, sir. . . .
Q: All right. Does the name Ramone Coleman mean anything to you?
A: He came and told me the name, too, sir. . . .
Q: Did you call the police and say I know a name for the people or one of the men that robbed me?
A: Yes, sir.
Q: And the name that you gave was Chris?
A: Yes, sir.

On appeal, Brown contends that this testimony is hearsay and should not have been admitted.

Even assuming that the testimony is hearsay, we conclude that its admission was harmless and, therefore, does not amount to reversible error. As our Supreme Court has explained, “[t]he erroneous admission of hearsay is harmless where . . . legally admissible evidence of the same fact is introduced. In such a case, the hearsay is cumulative and without material effect on the verdict.” Felder v. State, 270 Ga. 641, 646 (8) (514 SE2d 416) (1999) (citations omitted). If the testimony about which Brown complains is hearsay at all, it is hearsay that concerns only the question of identity, and there was plenty of other evidence on that question. At trial, the victim identified Brown as the person who beat him with a handgun, and another witness, a neighbor of the victim, identified Brown as someone who had visited the apartment of the victim on the day of the assault. The victim and his neighbor each also identified Brown in photographic lineups soon after the assault. In addition, the victim identified Shuman, both at trial and in a photographic lineup, as the person who followed Brown into his apartment, and Brown and Shuman apparently are brothers. In light of this other evidence of identity, the testimony about which Brown complains was merely cumulative, and we conclude that its admission had no effect upon the verdict and was, therefore, harmless. See, e.g., Johnson v. State, 289 Ga. 22, 27 (4) (709 SE2d 217) (2011) (admission of hearsay identification evidence with respect to similar transaction was harmless where victim in similar transaction also identified defendant as his assailant); White v. State, 273 Ga. 787, 791 (4) (546 SE2d 514) (2001) (erroneous admission of hearsay identification evidence was harmless where one victim identified defendant and co-defendant, another victim identified co-defendant, and defendant and co-defendant were brothers); Cooper v. State, 258 Ga. App. 825, 830-831 (4) (575 SE2d 691) (2002) (erroneous admission of hearsay identification evidence was harmless where other evidence established identity).

3. We turn now to the question of a mistrial. During a break for lunch on the first day of trial, Brown’s lawyer saw a witness for the State, a detective, speaking with some jurors near the courthouse elevator. After lunch, Brown moved for a mistrial, and the court inquired into the conversation among the detective and the jurors. The detective testified that, as he was leaving the courthouse for lunch, he encountered the jurors and some other individuals near the elevator. There was some casual conversation about what a long day it had been, and the detective said that he “pretty much [spent his] life sitting in court,” to which the jurors responded with a laugh. One juror asked for directions out of, the courthouse, and the detective explained that the front door would be locked and that the jurors would have to exit through the rear door. The detective could not remember what else, if anything, was said, although he was sure that he did not discuss the case with the jurors and spoke with them only for about 30 seconds.

Four jurors also testified about their encounter with the detective. One recalled that they had a short conversation with the detective about how to exit the courthouse, but nothing was said about the case or about Brown. Another testified that the detective remarked that delays are “not unusual” in court and that the jurors “shouldn’t be worried” about any such delays. Both of these jurors said that they could consider the case objectively, notwithstanding their brief conversation with the detective. Of the other two jurors, one did not recall any conversation at all with the detective, and the other remembered only that the detective said “hello.” After hearing from the detective and the jurors, the court below denied the motion for mistrial.

Whether a mistrial is warranted is a question committed to the sound discretion of the trial court, see Brown v. State, 285 Ga. 324, 325 (1) (676 SE2d 221) (2009), and when an appeal is taken from the denial of a motion for mistrial, we consider only whether the court below abused its discretion. See Collins v. State, 310 Ga. App. 613, 618 (4) (714 SE2d 249) (2011). It is true, of course, that a witness ought not speak with jurors while a trial is ongoing, Jones v. State, 289 Ga. 111, 116 (2) (d) (709 SE2d 773) (2011), and it is equally true that a presumption of prejudice arises upon a showing of irregular communications with a juror. See Duncan v. State, 281 Ga. App. 270, 271 (2) (635 SE2d 875) (2006). This presumption, however, is a rebuttable one, and it is one that sometimes can be rebutted simply by a showing that the substance of the communications had nothing to do with the case and otherwise was unlikely to influence the jurors in their deliberations and verdict. See, e.g., Collins v. State, 290 Ga. 505, 507 (3) (722 SE2d 719) (2012) (dismissed of juror not warranted where improper communication was clearly inconsequential and caused no prejudice to the defendant); Jones, 289 Ga. at 117 (2) (d) (defendant was not harmed by improper communication between witness and juror, where communication did not concern case and was not intended to influence juror); Duncan, 281 Ga. App. at 271 (2) (evidence that officer-witness and juror, who were friends, spoke during trial about recent wedding of juror’s daughter was sufficient to rebut presumption of prejudice); cf. Lamons v. State, 255 Ga. 511, 512-513 (340 SE2d 183) (1986) (acknowledging that “some irregularities are inconsequential,” but finding new trial necessary where officer had “not a casual conversation but a discussion of drug sales, the same issues involved in the trial,” with juror and would not reveal specifics about conversation). Here, the evidence is undisputed that the detective and the jurors had only a casual conversation and did not speak about the case, and we find no abuse of discretion in the determination of the court below that no mistrial was warranted.

4. We next consider the claim of prosecutorial misconduct. Brown complains about two comments that the prosecuting attorney made in his closing arguments, one characterizing the manner in which defense counsel had examined a particular witness, and the other concerning the burden of proof and the nature of reasonable doubt. Brown failed, however, to make a contemporaneous objection to either comment, and for this reason, he has waived his opportunity to complain about the closing argument of the prosecuting attorney. McClarin v. State, 289 Ga. 180, 183 (3) (b) (710 SE2d 120) (2011). As our Supreme Court has explained before, “the contemporaneous objection rule cannot be avoided by characterizing trial occurrences as examples of prosecutorial misconduct.” Watson v. State, 278 Ga. 763, 775 (17) (604 SE2d 804) (2004) (citation and punctuation omitted).

5. We turn now to the jury charge on the burden of proof. In its charge to the jury, the trial court correctly instructed the jury at length about the presumption of innocence, the burden of the State to prove the guilt of the defendants beyond a reasonable doubt, and the nature of reasonable doubt. The court then sent the jury to lunch, and it brought the jury back after lunch to explain the verdict form. In the course of explaining the verdict form, the trial judge inadvertently made reference to “the preponderance of the evidence,” telling the jury that “[y]ou will put either guilty or not guilty [upon the verdict form], whatever you find it to be by the preponderance of the evidence.” The prosecuting attorney, however, caught the mistake and promptly informed the judge. And before the jury was sent out of the courtroom with the verdict form, the judge acknowledged the mistake to the jury and clarified the burden of proof:

[I was] [tjrying to do too many things at once. The lawyers pointed out to me that I misspoke when we were talking about the burden of proof. And the burden of proof — actually, while you’ve been at lunch, we’ve been handling another case that’s a civil matter. And the civil matter has a different burden of proof. Yours, the burden of proof here, is beyond a reasonable doubt. And so again, as you go through the verdict form on each count, you would decide guilty or not guilty, whatever you find the verdict to be. And again, the standard of proof here is beyond a reasonable doubt.

We see no error.

Although the trial judge misstated the burden of proof, she promptly explained to the jury that she had misstated it, and she then explicitly instructed, consistent with the earlier charge of the court, that the burden of proof was, in fact, proof beyond a reasonable doubt. Brown complains that the trial judge did not do something more to accomplish an “express withdrawal” of the misstatement, but Brown failed to complain at the time that the corrective instruction was not sufficient, and in any event, the corrective instruction was, we think, clear enough. “[T]his is not a case where an incorrect charge is given and subsequently a correct charge [is] given, where the jury is expected to select one to the exclusion of the other.” McIlwain v. State, 264 Ga. 382, 383 (2) (445 SE2d 261) (1994) (citation and punctuation omitted). Consequently, we find no error in the jury charge on the burden of proof.

6. Finally, we consider Brown’s contention that his convictions for aggravated assault under OCGA § 16-5-21 (a) (2) and armed robbery merge. The court below found that these convictions do not merge, and it sentenced Brown for each. We review the question of merger de novo, Louisyr v. State, 307 Ga. App. 724, 730 (2) (706 SE2d 114) (2011), bearing in mind, as our Supreme Court has explained, that aggravated assault and armed robbery do not merge as a matter of law, and they seldom merge as a matter of fact. Henderson v. State, 285 Ga. 240, 244 (4) (675 SE2d 28) (2009). This is not, we think, one of those rare cases in which the two crimes merge as a matter of fact.

Although the testimony of the victim is not perfectly clear about the sequence of events inside his apartment, as we understand this testimony, it shows that the armed robbery and aggravated assault were separate and distinct acts. The victim testified:

[Brown] told me give it up, you know what time it is. I said man, I don’t have nothing. I said the only thing I got in my pocket is the money that I got in my pocket. So when I — he went in my pocket and got the money out of my pocket. The other one [Shuman] went in the kitchen and got a knife and went in the back and went to searching my room.

The victim further testified that, when Shuman later returned, Shuman told Brown several times to kill the victim, all while Brown continued to strike the victim repeatedly about the head with the gun. Worried by the talk of his killing, the victim then grabbed the gun, and he struggled with both Brown and Shuman for several minutes before he finally managed to get to the window and break it. This testimony shows that the armed robbery and aggravated assault were separate events, the armed robbery being complete before the commission of the aggravated assault. For this reason, the court below did not err when it refused to merge these convictions. See Anderson v. State, 306 Ga. App. 423, 424 (2) (702 SE2d 458) (2010) (offenses based on separate and distinct acts do not merge); McKenzie v. State, 302 Ga. App. 538, 539 (1) (a) (691 SE2d 352) (2010) (“[I]f the underlying facts show that one crime was completed prior to the second crime, there is no merger.”) (citation and punctuation omitted).

Decided February 17, 2012.

Jill E. Roth, for appellant.

Larry Chisolm, District Attorney, Sarah L. Moorhead, Assistant District Attorney, for appellee.

Judgment affirmed.

Barnes, B J., and Adams, J., concur.

       OCGÁ § 16-8-41 (a).

       Brown was convicted of two varieties of aggravated assault, namely assault with intent to rob, OCGA § 16-5-21 (a) (1), and assault with a deadly weapon, OCGA § 16-5-21 (a) (2). The court below found that the convictions for aggravated assault under OCGA § 16-5-21 (a) (1) and armed robbery merged, but it found that the convictions for aggravated assault under OCGA § 16-5-21 (a) (2) and armed robbery did not.

       OCGA § 16-11-106 (b).

       According to the victim, this incident occurred around 1:00 in the afternoon. Brown offered the testimony of an alibi witness, who said that Brown was visiting with her at that time.

       Brown and Shuman were tried together, and Shuman also was convicted of crimes arising from this incident. We previously affirmed Shuman’s convictions in an unpublished decision. Shuman v. State, 306 Ga. App. XXVI (Case No. A10A1616) (October 1, 2010).

       We note that the State also presented the testimony of a detective and two civilian witnesses, who corroborated portions of the victim’s testimony. That corroboration, however, is not essential to our determination that the evidence is sufficient to sustain the convictions.

       A statement made out of court is hearsay only if it is offered for the truth of the matter asserted. Newsome v. State, 288 Ga. 647, 649-650 (2) (706 SE2d 436) (2011). Here, the victim testified that others had mentioned “Chris,” but the jury heard nothing about the circumstances in which they mentioned that name. Although the mention of a name perhaps implies the assertion of something more than just the name itself, what exactly is implied cannot be surmised without knowing the context in which it is given.

       The court also heard testimony from the legal assistant to Brown’s lawyer, who had been with the lawyer during the lunch break and also had seen the detective speaking with the jurors. The legal assistant said that the conversation lasted only for 20 or 30 seconds, and she explained that she did not hear what was said.

       Not everyone recalled the conversation in exactly the same way, but the differences in their recollections are not enough to make us think that anything sinister was afoot. That five people remember a casual conversation about nothing of great significance differently is hardly surprising. And in any event, the court below was in a far better position than us to assess the credibility of the detective and the jurors who testified about the irregular communication and to consider whether the jurors still would be able to render an impartial verdict.

       Brown contends that the comments about it having been a long day were likely to prejudice the jurors against him, inasmuch as his lawyer apparently had asked a lot of questions in her voir dire of prospective jurors on the preceding day. We do not agree, and in any event, even if the discussion of it having been a long day otherwise might have been prejudicial, any such prejudice was ameliorated, we think, by the fact that the trial judge apologized to the jurors for the delays and specifically informed the jurors that everyone had been working hard to move the case forward and that the delay was not the fault of any of the lawyers or parties.

       Brown also argues that the conviction for possession of a firearm in the commission of an aggravated assault should merge into the armed robbery, but this argument is derivative of his principal argument, that aggravated assault and armed robbery merge. Because his principal argument is without merit, so is his derivative one.

       Even if the armed robbery and aggravated assault could be characterized as involving only a single transaction, merger still would not be warranted in these circumstances. See Nava v. State, 301 Ga. App. 497, 502-503 (2) (687 SE2d 901) (2009) (under required evidence test, aggravated assault and armed robbery did not merge, even when each was based on the same occurrence, where one defendant pointed gun at victim while another defendant took money from a cash register and urged the first defendant to shoot the victim, causing the victim to be afraid).


text:
    A11A2200.
    In The Interest of A. E. et al., children.
    (723 SE2d 499)
   McFADDEN, Judge.

The mother of minor children S. E., A. E., and J. E. appeals from the termination of her parental rights. Because there is sufficient evidence supporting the termination order, we affirm.

On appeal from an order terminating parental rights, we do not weigh the evidence or determine the credibility of witnesses; rather, we must construe the evidence in the light most favorable to the lower court’s judgment and determine if there is clear and convincing evidence from which a rational trier of fact could have found that parental rights have been lost. In the Interest of C. G., 279 Ga. App. 730 (1) (632 SE2d 472) (2006).

So construed, the evidence shows that S. E. was born in February 2002 and A. E. was born in August 2006. While the mother was pregnant with J. E., who was due to be born in December 2007, the Department of Family and Children Services became involved with the family when a protective order was entered because of the parents’ unstable and unsanitary residence, medical neglect, failure to maintain employment, inadequate parenting skills, mental health problems, domestic and substance abuse concerns, and failure to provide necessities to the children. After the mother and father did not comply with the protective order, failing to cooperate with in-home parenting services or to maintain a safe and appropriate home, S. E. and A. E. were removed from the home and placed in the department’s custody. In July 2007, after an adjudicatory hearing, the juvenile court ruled that both children were deprived, finding, among other things, that the father was incarcerated on a child molestation charge and that the mother was homeless, unemployed, had no source of income and could not provide for the children’s basic needs. The department was unable to find a suitable or willing relative placement for S. E. and A. E., so they were placed in foster care.

Pursuant to the juvenile court’s direction, the mother was given a reunification plan. However, until at least January 2009, she repeatedly failed to comply with the plan, remaining unemployed, having no transportation, failing to engage in services provided by the department, missing parent-aide appointments, continuing to be unable to provide basic necessities for the children, being evicted from residences for lack of payment and failing to maintain residential utilities, having her visitation rights suspended for missing multiple visits with the children, and essentially relying on the children’s maternal grandmother to provide both her and newborn J. E. with housing and money from the grandmother’s social security disability benefits.

By the time of a hearing in May 2009, the mother showed some improvement and stability, obtaining a job, participating in family therapy and maintaining an appropriate home with the help of her live-in boyfriend. And in July 2009, after she had substantially complied with the reunification plan, S. E. and A. E. were returned to her custody. But by March 2010, the conditions which had led to the initial finding of deprivation recurred, and the juvenile court entered a shelter care order removing all three children from the home and placing them in foster care. After an adjudicatory hearing on March 22, 2010, the juvenile court determined that the children were deprived. The court found, among other things, that the family did not have stable housing, having moved four times in less than a year; that the current home was unsanitary, with feces on the carpet and walls; that the mother was unemployed and was not addressing her mental health issues; and that the children’s medical, educational and emotional needs were not being met.

After a hearing on the petition to terminate parental rights, the juvenile court entered an order finding that the children were deprived due to parental misconduct or inability, that the deprivation was likely to continue and be harmful, and that termination of parental rights was in the children’s best interests. The mother appeals; the father, who is serving a prison sentence for child molestation and whose rights have also been terminated, is not a party to this appeal.

1. The mother claims that she was not given notice and opportunity to contest nonreunification. However, she has not indicated that this issue was raised in the lower court, and “[tissues not raised below will be deemed waived on appeal. [Cit.]” In the Interest of T. C. D., 281 Ga. App. 517, 518 (636 SE2d 704) (2006). Moreover, the record shows that after a hearing on April 19, 2010, the court continued the case until May 19, 2010, noting that a nonreunification case plan had been filed and the mother was contesting the issue of nonreunification. The hearing was held on that later date with the mother and her attorney present at the hearing. Thus, contrary to the mother’s claim, the record shows that she had notice that the department was seeking nonreunification and had the opportunity to contest the issue. See OCGA § 15-11-58 (e).

2. The mother challenges the sufficiency of the evidence supporting the juvenile court’s findings that the children are deprived, that the cause of the deprivation is likely to continue, that the continued deprivation is likely to cause serious harm to the children and that termination of parental rights is in the children’s best interests. The challenges are without merit.

(a) As the mother acknowledges in her brief, she never appealed the juvenile court order finding that the children were deprived when they came into the department’s care in March 2010.

[UJnappealed deprivation orders bind the parents insofar as they establish that the existence of certain conditions (at the times those orders were entered) constituted a clear and convincing showing that the child was deprived as defined under the law; but only upon a further showing by the department that the conditions upon which this finding was based still exist at the time of the hearing on the termination petition will this criterion be met.

(Citations and emphasis omitted.) In the Interest of P. D. W., 296 Ga. App. 189, 192-193 (1) (674 SE2d 338) (2009).

Here, the department met this burden. As the lower court found, the conditions which authorized the earlier findings of deprivation and removal still exist, with the lack of stable and sanitary housing; the mother’s inability to provide for the children and meet their medical, educational and emotional needs; and her failure to adequately address her mental health issues. Thus, this criterion was met. See P. D. W., supra at 193 (1).

(b) “As we have held, evidence of past conduct may be considered in determining whether the deprivation is likely to continue if the children are returned to the parent. [Cit.]” In the Interest of J. S., 292 Ga. App. 86, 89 (663 SE2d 793) (2008). In this case, the evidence shows that since the department became involved with the family in 2007, the mother has not held steady employment, and when she did get a job, she quit shortly after the two older children were returned to her custody. As recounted above, she has repeatedly failed to provide for the basic medical, educational and mental health needs of the children; has not established a stable or appropriate home for them; has been evicted from residences and has moved four times since the children were removed from her care in March 2010; and has relied on her own mother’s social security benefits to provide for herself and her children.

Although the mother claims that her testimony shows that she has now gained some stability, “the decision as to a child’s future must rest on more than positive promises which are contrary to negative past fact.” (Citation and punctuation omitted.) In the Interest of R. N. H., 286 Ga. App. 737, 742 (1) (c) (650 SE2d 397) (2007). Furthermore, a department case manager testified that she did not think much had changed with the mother. And the mother herself, when asked what was different from her last failed opportunity at parenting the children, testified, “I don’t guess there is a difference.” Under these circumstances, “there was sufficient evidence to authorize the juvenile court’s finding of clear and convincing evidence that the child’s deprivation for lack of proper parental care or control is likely to continue!.]” (Citation omitted.) In the Interest of M. J. G., 288 Ga. App. 754, 756 (655 SE2d 333) (2007).

(c) Although the mother enumerates as error that there is insufficient evidence that the continued deprivation is likely to cause serious harm to the children, she has offered no argument in support of that enumeration. Regardless, “the same facts that support a juvenile court’s conclusion that a child is deprived and that the deprivation is likely to continue if placed with the parent also support a conclusion that continued deprivation would likely cause the child serious harm.” (Citations omitted.) In the Interest of K. A. S., 279 Ga. App. 643, 651 (1) (d) (632 SE2d 433) (2006). Along with the facts recounted above which establish that the children are deprived due to parental neglect and inability and that such deprivation is likely to continue, there is also evidence, as the trial court found, that “the children have behavior issues consistent with chronic neglect.” Thus, the finding that the continued deprivation would likely cause the children serious harm is supported by ample evidence.

Decided February 17, 2012.

Jana L. Evans, for appellant.

Samuel S. Olens, Attorney General, Shalen S. Nelson, Senior Assistant Attorney General, Andrea R. Moldovan, Penny Hannah, Assistant Attorneys General, for appellee.

(d) Likewise, “[t]he same factors which showed the existence of parental misconduct or inability also supported the finding that termination of appellant’s parental rights was in the [children’s] best interest[s|. [Cit.]” In the Interest of B. J. F., 276 Ga. App. 437, 443 (2) (623 SE2d 547) (2005). In addition, the department case manager testified that termination is in the best interests of the children due to the extensive instability that they have experienced. And the psychologist who has worked with the family recommended that the mother not regain custody of the children, all of whom have suffered significant mental health issues due to parental neglect. Accordingly, there is adequate evidence supporting the finding that termination is in the children’s best interests.

Judgment affirmed.

Phipps, P. J., and Andrews, J., concur.


text:
    A11A2215.
    WILLIFORD v. LEE COUNTY BOARD OF COMMISSIONERS et al.
    (723 SE2d 503)
   Blackwell, Judge.

John Russell Williford was struck by a flying rock that allegedly was launched by a tractor-pulled lawnmower owned and operated by Lee County. Williford sued Lee County, and he now appeals from the award of summary judgment to the County, claiming that the court below erred when it concluded as a matter of law that the tractor-pulled lawnmower is not a “motor vehicle” as that term is used in OCGA § 33-24-51 and that the County, therefore, is entitled to sovereign immunity. We agree that the court below defined “motor vehicle” incorrectly, and we vacate the award of summary judgment to the County and remand for the court below to reconsider summary judgment, applying the correct definition of “motor vehicle.”

“Under our Constitution, Georgia counties enjoy sovereign immunity and can be sued only if they have waived their immunity.” Strength v. Lovett, 311 Ga. App. 35, 38 (1) (714 SE2d 723) (2011) (citations omitted). For this case, the pertinent waiver of sovereign immunity is found in OCGA § 33-24-51. Subsection (a) of that Code section vests counties with discretion to secure insurance to cover liability for damages arising out of the “use of any motor vehicle” by the county, and subsection (b) provides, in part, that sovereign immunity sometimes is waived when a county purchases liability insurance as authorized by subsection (a).

To understand the use of “motor vehicle” in OCGA § 33-24-51, the court below looked to the narrow definition of the same term in OCGA § 36-92-1 (6). Applying that narrow definition of “motor vehicle,” the court determined that the tractor-pulled lawnmower at issue in this case was not a “motor vehicle” and that the waiver of sovereign immunity in OCGA § 33-24-51 (b) did not apply to the County. But soon after the court granted summary judgment to the County, we held in another case that it was error to apply the narrow definition found in OCGA § 36-92-1 (6) to “motor vehicle” as the term is used in OCGA § 33-24-51. Glass v. Gates, 311 Ga. App. 563, 573-574 (1) (716 SE2d 611) (2011). Instead, we explained, “ ‘any motor vehicle’ as used in OCGA § 33-24-51 (a) means any vehicle that is capable of being driven on the public roads and is covered by a liability insurance policy purchased by the local government. . . .” Id. at 573 (1). Based on our holding in Glass, we find that the court below erred when it applied an improper and too-narrow standard in considering whether the tractor-pulled lawnmower in this case is a “motor vehicle.” For this reason, we vacate that portion of the order granting summary judgment in favor of the County, and we remand this case to the trial court to reconsider the motion for summary judgment and to apply the proper standard to determine whether the tractor-pulled lawnmower is a “motor vehicle” for purposes of OCGA § 33-24-51.

Decided February 17, 2012

Collier & Gamble, Wilbur T. Gamble III, for appellant.

Brown, Readdick, Bumgartner, Carter, Strickland & Watkins, Richard K. Strickland, Steven G. Blackerby, for appellees.

Judgment vacated and case remanded.

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

       Williford’s wife also appeared as a plaintiff to assert a claim for loss of consortium, and the Willifords also named the Chairman of the Lee County Board of Commissioners as a defendant in his official capacity. Mrs. Williford does not appeal the finding of the court below that she failed to timely raise her claim, and Williford does not appeal the finding that the suit against the Chairman of the Board of Commissioners in his official capacity was, in fact, a suit against the County. See Roberts v. Barwick, 187 Ga. 691, 695 (2) (1 SE2d 713) (1939) (claims against an individual in his official capacity are claims raised against the governmental entity for which he serves). As a result, we decide nothing about the award of summary judgment to the Chairman of the Board of Commissioners or against Mrs. Williford.

       OCGA § 36-92-1 (6) defines a “motor vehicle” as “any automobile, bus, motorcycle, truck, trailer, or semitrailer, including its equipment, and any other equipment permanently attached thereto, designed or licensed for use on the public streets, roads, and highways of the state.”

       We note that our Supreme Court has granted certiorari to consider our decision in Glass. See Gates v. Glass, Case No. S12G0133 (Jan. 23,2012). For now, however, Glass remains a binding precedent.

       We decline in this case to exercise our discretion to consider whether the award of summary judgment was right for some reason other than that given by the court below. Although the County advances several other reasons why summary judgment might have been proper, some would require fact finding, and some would require consideration of evidence that the court below has not yet considered and that the parties have not addressed much on appeal. See CNL APF Partners v. Dept. of Transp., 307 Ga. App. 511, 513 (1) (705 SE2d 862) (2010).


text:
    A11A2226.
    BROWN v. THE STATE.
    (723 SE2d 504)
   MCFADDEN, Judge.

Kenneth Brown appeals from his conviction for possession of cocaine on the grounds that evidence of a pipe containing cocaine residue should have been suppressed and that the evidence was insufficient to support his conviction. Because he did not preserve for appellate review his suppression claim and because the evidence met the sufficiency standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), we affirm.

Viewed in a light to uphold the verdict, see Weldon v. State, 279 Ga. 185 (611 SE2d 36) (2005), the evidence showed that shortly after midnight on October 10, 2007, law enforcement officers who were part of a “Safe Streets Task Force” saw Brown sitting on or leaning against a wooden fence in front of a house in Muscogee County. The officers shined a spotlight on Brown, and one of them approached to talk to him. Brown turned and began to run through the yard of the house, breaking several lawn ornaments as he went. Some of the officers yelled for Brown to stop. They chased Brown through the yard, tackled him to the ground, handcuffed him, and arrested him. When they lifted Brown up from the ground, an officer found a glass pipe, which appeared to be a crack pipe, lying on the ground nearby. The pipe was dry, although the surrounding area was wet from a recent rain. The pipe tested positive for traces of cocaine.

The state charged Brown with possession of cocaine, obstructing a law enforcement officer, criminal trespass, and loitering. Brown moved to suppress the evidence of the pipe containing cocaine residue, arguing that it was found during an illegal arrest. The trial court denied the motion and after a bench trial found Brown guilty of possession of cocaine but not guilty of the other charged offenses.

1. Brown challenges the court’s denial of his motion to suppress. But he failed to preserve this issue for appellate review, because at trial his counsel tendered the crack pipe into evidence and moved the court to admit it. This apparently was part of a strategy to question whether the pipe containing the cocaine residue was the same as the pipe that officers showed Brown at the time of his arrest, notwithstanding his stipulation to the pipe’s chain of custody. “On appeal, a party may not complain of a ruling that he contributed to or acquiesced in by his own action, trial strategy, or conduct.” (Citation omitted.) Blackford v. State, 251 Ga. App. 324, 327 (3) (554 SE2d 290) (2001); see also Carreno v. State, 272 Ga. App. 229, 230 (1) (a) (612 SE2d 62) (2005) (defendant waives any argument that may be made on motion to suppress as to the admissibility of evidence if at trial defendant affirmatively states he or she has no objection to the admission of the evidence); Kellogg v. State, 233 Ga. App. 817, 818 (505 SE2d 794) (1998) (applying in bench trial rule that party cannot complain of ruling in which his own tactics or conduct procured or aided in causing).

2. Brown contends that there was insufficient evidence to show that he possessed the pipe containing cocaine.

A person may be found to have had constructive possession of contraband if it is shown that he had both the power and the intention at a given time to exercise dominion or control over it. A finding of constructive possession must be based upon some connection between the defendant and the contraband other than mere spatial proximity.

(Citations and punctuation omitted.) Thurmond v. State, 304 Ga. App. 587, 591 (2) (696 SE2d 516) (2010).

The state presented evidence other than Brown’s mere spatial proximity to the pipe containing cocaine to show that he had constructive possession over it. The pipe was dry, although it had been raining and the surrounding area was “soaked”; from this evidence the court as factfinder could infer that the pipe had been on the ground for a very short period of time. See Wright v. State, 302 Ga. App. 332, 334 (690 SE2d 654) (2010) (jury could infer that bag containing drugs, which was found in the wheel well of a car within an arm’s reach of defendant hiding beneath the car, had recently been placed there because it was not “dirty, weathered, or damp”; this evidence established a meaningful connection between the defendant and the contraband which authorized the jury to find defendant had constructive possession of drugs). In addition, the state introduced similar transaction evidence that Brown had been carrying a small crack pipe in the pocket of his jacket on the occasion of an earlier arrest. See Taylor v. State, 305 Ga. App. 748, 751-752 (1) (700 SE2d 841) (2010) (listing similar transaction evidence as part of circumstantial evidence, beyond spatial proximity, that authorized jury to find defendant in possession of contraband found in location where defendant had been immediately beforehand). The trial court was authorized to find that this evidence excluded every other reasonable hypothesis save that of Brown’s guilt, see OCGA § 24-4-6, and thus to find Brown guilty of possession of cocaine beyond a reasonable doubt. See Jackson v. Virginia, 443 U. S. at 319 (III) (B); Taylor, supra; Wright, supra.

Decided February 17, 2012.

Jimmonique R. S. Rodgers, for appellant.

Julia Fessenden Slater, District Attorney, Wesley A. Lambertus, Assistant District Attorney, for appellee.

Judgment affirmed.

Phipps, P. J., and Andrews, J., concur.


text:
    A11A2255.
    DUFFIELD v. CHUI.
    (723 SE2d 506)
   Blackwell, Judge.

Robert Duffield sued George Chui and Matthew Methvin after Chui punched Duffield in the jaw, causing Duffield to sustain a serious injury. The case was tried by a Fulton County jury, which returned a defense verdict, and the court below entered judgment upon the verdict for Chui and Methvin. Duffield appeals from the judgment for Chui, contending that the trial court erred when it charged the jury on negligence principles, rather than the law of battery. We agree, and we reverse the judgment below as to Chui and remand for a new trial.

A trial court must instruct a jury on the law “as to every controlling, material, substantial and vital issue in the case.” Berger v. Plantation Pipeline Co., 121 Ga. App. 362, 364 (6) (173 SE2d 741) (1970) (citations and punctuation omitted); Gurin v. General Motors Corp., 171 Ga. App. 159, 160 (1) (318 SE2d 830) (1984) (“The trial court is obligated to instruct the jury on all [legal] theories and issues raised by the parties and supported by the evidence.”). The failure to charge on a properly asserted and legally cognizable theory of recovery, “whether requested or not, or attention be called to it or not,” is harmful as a matter of law. Tempo Mgmt. v. Lewis, 210 Ga. App. 390, 391 (1) (436 SE2d 98) (1993) (citations and punctuation omitted). Here, the trial court refused to charge the jury on battery, and it charged the jury only on negligence, because Duffield, the court said, alleged negligence in his complaint and mentioned “duty” and “breach of duty” — concepts that generally are associated with the law of negligence — in the proposed pretrial order. Even so, Duffield also asserted a distinct claim for battery in his complaint, and he explained in the proposed pretrial order that “[t]his case involves an intentional tort.”

Moreover, throughout the charge conference, Duffield repeatedly urged the court to charge on the law of battery, noting at one point that “[t]his is a case about intentional conduct, not about negligent conduct,” and explaining at another that “[t]his case is not about negligence on [Chui’s] part. . . . It’s an intentional tort.” Later, Duffield argued yet again that “[t]his case is about an intentional act. It wasn’t a negligent act. It wasn’t about I made a mistake. I messed up. He intended to do what he did. It takes his, it takes [Chui’s], conduct out of negligence.” And when the court asked Duffield about which charges were appropriate, Duffield responded:

It’s not a negligence case. . . . It’s a battery. The jury should be charged on whether or not there was a battery committed. Okay. Then they have to figure out if the battery was justified. They’ve admitted they intentionally — Chui admitted he wasn’t negligent about doing it, he did it on purpose. So I would ask the Court to charge on battery as it relates to Chui’s conduct.

Decided February 17, 2012.

Charles H. McAleer, for appellant.

Christopher S. Harris, for appellee.

In addition, Duffield submitted written requests to charge on battery.

From our review of the record, we conclude that Duffield alleged, presented evidence of, and requested a charge on battery. Battery is a recognized tort in Georgia, see Williams v. Knight, 211 Ga. App. 420, 420-421 (1) (439 SE2d 507) (1993), and in this case, it was raised by both the pleadings and the evidence. Duffield was entitled, therefore, to a charge on the law of battery. See Tempo Mgmt., 210 Ga. App. at 391 (1). Because the court below failed to so charge the jury, we must reverse the judgment below as to Chui and remand for a new trial before a properly instructed jury.

Judgment reversed and case remanded.

Barnes, B J., and Adams, J., concur.

       Chui admitted he intentionally punched Duffield, but Chui said that he did so because he thought Duffield was going to hurt Methvin. Chui and Methvin apparently are friends.

       Duffield does not appeal from the judgment entered in favor of Methvin.

       In his complaint, Duffield alleged that, “[a]s a result of Defendants’ negligence and intentional malfeasance, Plaintiff has suffered and continues to suffer serious and painful personal injuries.” (Emphasis supplied.) He also alleged that, “[a]s a result of Defendants’ negligence and intentional malfeasance, Plaintiff has incurred past medical expenses and will incur future medical expenses.” (Emphasis supplied.) Duffield asserted distinct claims in his complaint for, among other things, both “assault” and “battery.” And in addition to his request for compensatory damages, Duffield sought punitive damages for “intentional, willful and malicious torts.” Duffield quite clearly pled claims for intentional torts, including battery. See Rucker v. Columbia Nat. Ins. Co., 307 Ga. App. 444, 446 (1) (a) (705 SE2d 270) (2010) (“The Georgia Civil Practice Act requires only notice pleading and, under the Act, pleadings are to be construed liberally and reasonably to achieve substantial justice consistent with the statutory requirement of the Act.”).

       The court below found that the written requests to charge on battery were not adjusted to the facts, and although Duffield orally made additional requests to charge on battery at the charge conference, the court found that these oral requests reflected the law of criminal battery and were not, therefore, an accurate statement of the law applicable in a civil case. But even if these requests to charge were not quite right — something about which we offer no opinion — the court still had an obligation to correctly instruct the jury on a theory of liability that was properly pled, supported by sufficient evidence, and legally cognizable.

       Chui argues that Duffield failed to preserve his exceptions to the charge, but the record clearly shows that Duffield took exception to the decision of the court to charge on negligence, rather than battery: “The ones that were noted on the jury charges that, charging on negligence, charges on the defendants’ negligence is — I’ve already made my objections. And I do make exceptions to the charges as read in light of my prior objections.”

       Because we are reversing the judgment below, we need not address the other claims of error that Duffield raises on appeal.