author: McMillian, Judge.

text:
    A14A0188.
    PHILLIPS et al. v. HARMON et al.
    (780 SE2d 914)
    Decided December 17, 2015.

      Wayne Grant, Kimberly W. Grant; The Parrish Law Firm, Jonathan A. Parrish, for appellants.
   McMillian, Judge.

In Phillips v. Harmon, 297 Ga. 386 (774 SE2d 596) (2015), the Supreme Court affirmed in part and reversed in part the judgment of this Court in Phillips v. Harmon, 328 Ga. App. 686 (760 SE2d 235) (2014). Accordingly, we vacate Division 2 of our judgment, and the opinion of the Supreme Court is adopted as the opinion of this Court in its place. The judgment of the trial court is accordingly reversed, and the trial court is directed upon remittitur to conduct any retrial in this case consistent with the Supreme Court’s opinion.

Judgment reversed.

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

Huff, Powell & Bailey, M. Scott Bailey, Anna Burdeshaw Fretwell; Hall Booth Smith, John E. Hall, Jr., Mark W. Wortham, Heather L. Saum, for appellees.


source: Caselaw Access Project

author: Ray, Judge.

license: Public Domain

text:
    A15A2099.
    HANKOOK TIRE CO. LTD. v. WHITE et al.
    (781 SE2d 399)
   Ray, Judge.

Hankook Tire Co. Ltd. (“Hankook Tire”) was granted an interlocutory appeal of the trial court’s order denying its motion to transfer venue. For the following reasons, we find no error in the trial court’s denial of the motion to transfer venue. Accordingly, we affirm.

Gilbert White and Karen Hansberry-White (collectively the ‘Whites”) filed a negligence suit against The Lions Group, Inc., Hankook Tire, and various other defendants (collectively, the “Defendants”) in Clayton County. The Whites alleged that Mr. White was injured when he lost control of the vehicle he was driving due to tread separation on one of the truck’s tires.

During the course of litigation, the trial court granted summary judgment against the Whites in favor of some defendants, and the Whites voluntarily released all of the remaining Defendants, other than The Lions Group and Hankook Tire. Subsequently, the Whites and The Lions Group entered into a confidential settlement agreement, which included the entering of a consent judgment by the trial court against The Lions Group. The Lions Group is a Georgia corporation with whom venue is proper in Clayton County, while Hankook Tire is a nonresident Korean corporation.

Hankook Tire now claims that venue is not proper in Clayton County as “[the Whites] entered into a collusive consent judgment with The Lions Group, specifically designed to avoid the effect of vanishing venue.” Georgia follows the law of vanishing venue whereby “[i]f all defendants who reside in the county in which an action is pending are discharged from liability ... a nonresident defendant may require that the case be transferred to a county and court in which venue would otherwise be proper.” OCGA § 9-10-31 (d) (emphasis supplied). Previously, we have held that “the entry of a consent judgment against a resident tortfeasor [is] analogous to a finding of liability, so that the court [is] not divested of personal jurisdiction over the remaining defendant/nonresident joint tortfeasor.” (Citation omitted.) Nalley v. Baldwin, 261 Ga. App. 713, 714 (583 SE2d 544) (2003).

Decided January 4, 2016

Our Supreme Court has held that the only exception to this general rule applies when the nonresident defendant can prove collusion. Motor Convoy v. Brannen, 260 Ga. 340, 340 (393 SE2d 262) (1990). Hankook Tire claims that the agreement between the Whites and The Lions Group was collusive because “they entered into the [c]onsent [j]udgment with The Lions Group precisely because it was the only resident defendant so that they would preserve their venue and trial date in Clayton County.” Neither Brannen nor recent cases have provided us with an explanation of what collusion looks like. However, we can definitively state that collusion is not present here.

The consent judgment entered into between the Whites and The Lions Group is a legitimate judgment that imposes real liability on The Lions Group. The liability imposed is not nominal, but rather is a settlement over $500,000. While it is true that the Whites entered into the consent j udgment with the goal of retaining venue in Clayton County, if this were collusive, then arguably all consent judgments would be collusive. In light of the lack of evidence, or even an allegation, that the Whites acted improperly with The Lions Group, we cannot say the consent judgment was entered into collusively.

Therefore, the trial court did not err when it denied Hankook Tire’s motion to transfer venue. The trial court’s order is affirmed.

Judgment affirmed.

Barnes, P. J., and McMillian, J., concur.

Weinberg, Wheeler, Hudgins, Gunn & Dial, Frederick N. Sager, Jr., Robert R Marcovitch, Brannon J. Arnold;DLAPiper, Christopher G. Campbell, for appellant.

Smith, Welch, Webb & White, JohnP. Webb, Andrew J. Gebhardt, Marc A. Avidano, for appellees.

Darren W. Penn, Laura M. Shamp, Lucy R. Atkinson, amici curiae.

       While the consent judgment entered by the trial court itself only details compensation of $5,000, the Whites have received The Lions Group’s permission to disclose that the entire settlement amount was actually $500,000.

       Collusion generally requires evidence that the parties worked in concert in some fashion. Here, it does not appear that The Lions Group had any purpose to collude with the Whites. Rather, The Lions Group merely consented to the manner of settlement which the Whites negotiated.

       As we do not find collusion present here, it is not necessary for us to define collusion under these terms. It is enough for us to say that we can recognize collusion when we see it, and it is not present here.


author: DOYLE, Chief Judge.

text:
    A15A2240.
    PENDLETON v. THE STATE.
    (781 SE2d 570)
   DOYLE, Chief Judge.

Karl Pendleton appeals the denial of his motion to modify his sentence. For the reasons that follow, we reverse and remand the case.

Pendleton was charged with six counts of criminal attempt to commit armed robbery, burglary, six counts of aggravated assault with intent to rob, possession of a firearm during the commission of a felony, kidnapping with bodily injury, and five counts of false imprisonment. In February 2008, he entered a nonnegotiated guilty plea and was sentenced to serve ten years. On October 27, 2008, Pendleton filed a motion to modify his sentence, to which the State did not respond. The trial court denied the motion as untimely, holding that it lacked authority to modify Pendleton’s sentence because the motion was filed after the expiration of the term of court in which the convictions were entered.

Pendleton appeals, arguing that the trial court erred by denying his motion as untimely, and we agree. As the State concedes, OCGA § 17-10-1 (f) providesinrelevantpartthat“[w]ithin one year of the date upon which the sentence is imposed . . . , the court imposing the sentence has the jurisdiction, power, and authority to correct or reduce the sentence and to suspend or probate all or any part of the sentence imposed.”

Notwithstanding the expiration of the term of court in which the sentence was imposed, the provisions of OCGA § 17-10-1 (f) vested the trial court with jurisdiction to consider and rule upon the merits of [Pendleton’s] motion within [one year of the date upon which the sentence was imposed].

Decided January 6, 2016.

Karl Pendleton, pro se.

Paul L. Howard, Jr., District Attorney, Michael V. Snow, Assistant District Attorney, for appellee.

Thus, because Pendleton filed his motion less than ten months after his sentence was imposed, the trial court erred by denying the motion as untimely.

We note that whether to grant a motion to amend sentence lies within the discretion of the trial court [,] and we express no opinion on the underlying merits of [Pendleton’s] motion. Our decision requires only that the trial court decide the merits of the motion in accordance with the jurisdiction and authority conferred upon it by OCGA § 17-10-1 (f).

Judgment reversed and case remanded.

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

       Pendleton entered his plea and was convicted on February 7,2008, but his sentence was not filed until February 11, 2008.

       For sentencing purposes, the trial court merged the six counts of criminal attempt to commit armed robbery into the six counts of aggravated assault with intent to rob.

       OCGA§ 17-10-1 (f) was enacted in 2001. See Ga. L. 2001, p. 94, § 5; Reynolds v. State, 272 Ga. App. 91, 93 (1) (611 SE2d 750) (2005).

        Davis v. State, 291 Ga. App. 252, 253 (661 SE2d 872) (2008). See also Richardson v. State, 334 Ga. App. 344, 346 (779 SE2d 406) (2015).

       See Davis, 291 Ga. App. at 253.

       (Citation and punctuation omitted.) Id., quoting Jackson v. State, 238 Ga. App. 559, 560 (2) (520 SE2d 11) (1999).


author: McMlLLIAN, Judge.

text:
    A15A2070.
    In the Interest of C. M. B., a child.
    (781 SE2d 570)
   McMlLLIAN, Judge.

This case presents an issue of first impression under the new Juvenile Code — how to calculate the 72-hour period under OCGA § 15-11-521 (a) during which the State must file a delinquency petition following a detention hearing.

The facts are largely undisputed. On Thursday, February 5,2015 at 1:00 p.m., the juvenile court signed an order detaining C. M. B. on various charges, and a delinquency petition was filed against him on Monday, February 9, 2015 at 1:24 p.m. At the ten-day hearing on February 18, 2015, C. M. B.’s attorney verbally moved to dismiss the petition and for the release of C. M. B. based on the fact that the petition was not filed by Sunday, February 8,2015 at 1:00 p.m., which he asserted was mandated by the 72-hour rule under OCGA § 15-11-521 (a). The trial court entered an order denying the verbal motion, finding that under OCGA § 15-11-5, the day C. M. B. was detained and the intervening weekend days were not included in calculating the 72-hour period. The trial court found, therefore, that the State had until Tuesday, February 10, 2015 to file its petition, and because the petition was filed on Monday, February 9, it was timely. The trial court later signed a certificate of immediate review of its order, and this appeal follows our grant of C. M. B.’s application for interlocutory appeal.

The record indicates that C. M. B. was initially detained on January 29, 2015, and under OCGA § 15-11-521 (a),

[i]f a child is in detention prior to adjudication, a petition alleging delinquency shall be filed not later than 72 hours after the detention hearing. If no petition alleging delinquency is filed within the applicable time, such child shall be released from detention and the complaint shall be dismissed without prejudice. . . ,

The trial court’s “Order Following Detention Hearing for Child Alleged to Be Delinquent Pursuant to OCGA § 15-11-506,” was signed at 1:00 p.m. on Thursday, February 5, 2015, and the parties do not dispute that we calculate the 72-hour period from that time.

To determine whether the delinquency petition was timely, we turn to the applicable provisions of the Juvenile Code, which set how time periods are to be calculated. Under the current version of OCGA § 15-11-5 (a),

[wjhen a period of time measured in days, weeks, months, years, or other measurements of time is prescribed for the exercise of any privilege or the discharge of any duty, the first day shall not be counted but the last day shall be counted; and, if the last day falls on a weekend, the party having such privilege or duty shall have through the following business day to exercise such privilege or discharge such duty.

(Emphasis supplied.) And under OCGA § 15-11-5 (c), “[w]hen the period of time prescribed is less than seven days, intermediate weekends and legal holidays shall be excluded in the computation.”

In construing these provisions, “we apply the fundamental rules of statutory construction that require us to construe the statute according to its terms, [and] to give words their plain and ordinary meaning.” (Citation and punctuation omitted.) Lakeview Behavioral Health System, LLC v. UHS Peachford, LP, 321 Ga. App. 820, 822 (1) (743 SE2d 492) (2013). Here, as the trial court found, it is clear that “hours” are a “measurement of time” under OCGA § 15-11-5 (a), and thus the first day when the detention order was signed does not count toward the calculation. Therefore, Friday, February 6, 2015 comprised the first 24 hours of the 72-hour period. However, because seventy-two hours is clearly a period of time that is less than seven days, under OCGA § 15-11-5 (c), intervening weekend days are excluded from the computation, and under the new Juvenile Code, “ ‘[weekend’ means Saturday or Sunday.” OCGA § 15-11-2 (76). Cf. Livingston v. State, 266 Ga. 501 (467 SE2d 886) (1996) (holding under provision of former Juvenile Code that when the 72-hour period expired on a holiday or weekend the detention hearing should be held on the next business day, detention hearing held at 9:00 a.m. Monday was timely where the 72-hour period for holding such a hearing expired at 5:00 a.m. Monday before the court opened for business). Thus, after applying the plain and unambiguous language of OCGA § 15-11-5 (a) and (c), the 72-hour period expired at the end of the day on Tuesday, February 10, and the trial court properly found that the delinquency petition was timely filed.

This interpretation is supported by the legislature’s April 2014 amendment to OCGA § 15-11-5 (a) (the “2014 amendment”). When the statute was enacted in 2013, subsection (a) provided:

When a period of time measured in days, weeks, months, years, or other measurements of time except hours is prescribed for the exercise of any privilege or the discharge of any duty, the first day shall not be counted but the last day shall be counted; and, if the last day falls on a weekend, the party having such privilege or duty shall have through the following business day to exercise such privilege or discharge such duty.

(Emphasis supplied.) Thus, in the original enactment of this provision, the General Assembly expressly excluded periods of time measured by hours from the provisions of OCGA § 15-11-5 (a), but the 2014 amendment deleted the phrase “except hours” from subsection (a). Ga. L. 2014, pp. 780, 781, § 1-2 (Act 635). This amendment became effective upon its approval by the Governor on April 28,2014, Ga. L. 2014, pp. 780, 800, § 5-1, and applies in this case.

The use of the phrase “except hours” in the original version of the statute is plain and unambiguous: OCGA § 15-11-5 (a) was not originally intended to govern any time period measured in hours. It is equally apparent that by deleting this language, the legislature intended that periods of time measured in hours no longer would be excepted from the statute’s provisions. See Transp. Ins. Co. v. El Chico Restaurants, Inc., 271 Ga. 774, 776 (524 SE2d 486) (1999) (“We must presume that the Legislature’s failure to include the limiting language was a matter of considered choice.”). Moreover, we must presume that when it passed the 2014 amendment, the General Assembly was aware of the 72-hour time period set forth in OCGA § 15-11-521 (a), a statute it had passed just the year before. See Jacobs v. State, 200 Ga. 440, 444 (37 SE2d 187) (1946).

Our construction of these statutory provisions is not changed by the fact that OCGA § 15-11-521 (a) itself contains no language expressly excluding holidays and weekends from the calculation of the 72-hour period, while, as C. M. B. notes, two other provisions of the new Juvenile Code have included and/or currently include such language. See OCGA § 15-11-506 and OCGA § 15-11-400 (a).AlthoughC.M.B. does not expressly invoke the in pari materia rule in making this argument, it is clear that C. M. B. is essentially asserting that these statutes must be read together and that the absence of the language excluding holidays and weekends in OCGA § 15-11-521 (a) means that holidays and weekends are included in the computation of the 72-hour period. See Northeast Atlanta Bonding Co. v. State of Ga., 308 Ga. App. 573, 579 (1) (707 SE2d 921) (2011) (describing the in pari materia rule). However, “[i]t has long been held that even statutes in pari materia may not be resorted to where the language of the statute under consideration is clear.” (Citation and punctuation omitted; emphasis supplied.) Mahalo Investments III, LLC v. First Citizens Bank & Trust Co., Inc., 330 Ga. App. 737, 739 (769 SE2d 154) (2015). “The reason for this rule is obvious — construing statutes together that separately are plain and unambiguous may create ambiguities where none exist.” Id. If, as C. M. B. argues, the absence of language in OCGA § 15-11-521 (a) excluding holidays and weekends means that holidays and weekends must be counted, we would essentially be reading a portion of the Juvenile Code’s computation provision, OCGA § 15-11-5 (c), out of the statute. That would be contrary to the fundamental principle of statutory construction that we must endeavor to give each part of the statute meaning and “avoid a construction that makes some language mere surplusage.” (Citation and punctuation omitted.) Lakeview, 321 Ga. App. at 822 (1).

Decided January 11, 2016.

Monte K. Davis, for appellant.

Jack Browning, Jr., District Attorney, Dustin S. Strobel, Assistant District Attorney, for appellee.

Accordingly, we affirm the trial court’s order denying the motion to dismiss the delinquency petition.

Judgment affirmed.

Barnes, P. J., and Ray, J., concur.

       Georgia revised its Juvenile Code in May 2013 (the “2013 revision”), and the new Code applies to all juvenile proceedings commenced on or after January 1, 2014, including the proceedings in this case. Ga. L. 2013, pp. 294, 514, § 5-1 (Act 127). Both OCGA §§ 15-11-5 and 15-11-521 were enacted as a part of the 2013 revision. Ga. L. 2013, pp. 294,295, § 1-1. We note that OCGA § 15-11-521 has not been amended since its passage.

       This subsection also allows for the refiling of the petition in accordance with subsection (b) of the statute within the statute of limitation. OCGA § 15-11-521 (a).

       OCGA § 15-11-506 (c) provides:
      Notwithstanding Code Section 15-11-5, if the detention hearing cannot he held within two days in accordance with paragraph (1) of subsection (b) of this Code section because the date for the hearing falls on a weekend or legal holiday, the court shall review the decision to detain such child and make a finding based on probable cause within 48 hours of such child being placed in preadjudication custody.

       OCGA § 15-11-400 (a) provides:
      The continued custody hearing for a child alleged to be a child in need of services shall be held promptly and no later than:
      (1) Twenty-four hours, excluding weekends and holidays, after such child is taken into temporary custody if he or she is being held in a secure residential facility or nonsecure residential facility; or
      (2) Seventy-two hours, excluding weekends and holidays, after such child is placed in foster care.
      See Ga. L. 2014, pp. 780, 789, § 1-25.


author: McFadden, Judge.

text:
    A15A2376.
    PHILLIPS v. PHILLIPS et al.
    (781 SE2d 573)
   McFadden, Judge.

Royal Phillips filed this appeal from an order denying his OCGA § 9-11-60 (g) motions to vacate certain orders for lack of notice. In his appellate brief, he enumerated as error the denial of the motions to vacate as well as entry of a final judgment awarding damages and attorney fees against him. Pretermitting whether he has abandoned his enumeration challenging the denial of the motions to vacate, Phillips has not shown trial court error. And we lack jurisdiction to consider his other enumerations of error. We therefore affirm.

The plaintiffs, Phillips’s adult grandchildren, filed this action to recover funds in accounts Phillips had established on their behalf. Because of his failure to provide discovery, the trial court struck Phillips’s answer and entered default. The court conducted a trial on damages and entered a judgment against Phillips, awarding the plaintiffs monetary damages and attorney fees. Phillips, proceeding pro se, filed a document that the trial court considered to be a motion to vacate the judgment. He then hired counsel, who filed a motion for new trial on his behalf. The trial court denied the motions in separate orders. According to Phillips, he did not receive either order and did not learn of them until after the period for filing a notice of appeal had expired. So Phillips filed motions to vacate the orders under OCGA § 9-11-60 (g), seeking their re-entry to re-start the time for appeal.

The trial court denied the OCGA § 9-11-60 (g) motions to vacate, and Phillips filed an application for discretionary review, which we granted under OCGA § 5-6-35 (j). See Downs v. C. D. C. Fed. Credit Union, 224 Ga. App. 869 (1) (481 SE2d 903) (1997) (“Motions to set aside brought on the grounds that the court failed to notify the losing party of its decision are cognizable as motions to correct a clerical error pursuant to OCGA § 9-11-60 (g) and are properly the subject of a direct appeal.”) (citation omitted). Phillips filed a timely notice of appeal from our order.

Pretermitting whether Phillips abandoned his enumeration of error challenging the denial of his OCGA § 9-11-60 (g) motions by failing to support it with argument and citation of authority, we conclude that the enumeration lacks merit. Phillips argues that the trial court erred by denying the motions because he “offered undisputed evidence that [his] counsel had not received the [orders denying his motion to vacate the judgment and his motion for new trial] when they were originally sent.” However, “[i]f the trial court has in fact given notice, then a motion to set aside may be properly denied whether or not the losing party actually received the notice.” Wright v. Young, 297 Ga. 683, 684, n. 3 (777 SE2d 475) (2015) (emphasis supplied). In any event, here the trial court found, based on the court’s own records, that the court had faxed the orders to Phillips’s counsel at the correct number and that the fax had been received. Phillips has not shown error.

Decided January 11, 2016.

Brownstone, P. A., Robert L. Sirianni, Jr., for appellant.

Martin Snow, Stuart E. Walker, Michael E. Mayo; Adams Law Firm, Brian P. Adams, for appellees.

And since Phillips did not timely file an appeal from the denial of his pro se motion, from the motion for new trial, or from the final judgment, we lack jurisdiction to consider his remaining enumerations, all of which challenge the final judgment. “[T]he only notice of appeal before us was filed more than 30 days after the entry of the [final judgment]. Thus, we have no jurisdiction to consider the merits of that [judgment].” Sea Tow/Sea Spill of Savannah v. Phillips, 247 Ga. App. 613, 615 (3) (545 SE2d 34) (2001) (citation omitted).

Judgment affirmed.

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

       Although the plaintiffs sued Royal Phillips and the Estate of Maxine Phillips, the trial court entered judgment only against Royal Phillips. This was proper because “an estate is not a legal entity capable of being sued.” Yarbrough v. Estate of Yarbrough, 173 Ga. App. 386, n. 1 (326 SE2d 517) (1985). Compare Robinson v. Estate of Jester, 333 Ga. App. 41, 44 (775 SE2d 569) (2015) (plaintiffs properly amended complaint to assert claims against administrator of estate).


text:
    A14A0598.
    SPRINGER v. THE STATE.
    (781 SE2d 575)
   Ray, Judge.

Upon the first consideration of this case and relying upon the precedent of Jackson v. State, 276 Ga. 408, 410-413 (2) (577 SE2d 570) (2003), this Court reversed Roderick Lanier Springer’s convictions for aggravated assault and involuntary manslaughter based on reckless conduct, and remanded the case for a new trial, on the ground that these verdicts are mutually exclusive. Springer v. State, 328 Ga. App. 654 (762 SE2d 433) (2014) (“Springer I”). In State v. Springer, 297 Ga. 376 (774 SE2d 106) (2015) (“Springer IF), the Supreme Court of Georgia overruled its holding in Jackson, supra, and reversed this Court’s decision in Springer I. We, therefore, vacate our earlier opinion, adopt the opinion of the Supreme Court as our own as it relates to the issue of mutually exclusive verdicts, and address Springer’s remaining enumerations of error: that the trial court erred in refusing to charge the jury on transferred justification and that the trial court erred in instructing the jury that it could consider a witness’s level of certainty regarding identification. For the following reasons, we affirm Springer’s convictions for aggravated assault, involuntary manslaughter, and possession of a firearm during the conviction of a felony.

The following pertinent facts were set forth in Springer I at 654:

The evidence presented at trial shows that, in the early-morning hours of August 2, 2002, there was a large crowd of people in the parking lot of a Krystal restaurant when a fight broke out. Springer’s co-defendant, Travis Barber, arrived with several friends during the melee. Shortly after he arrived, Barber climbed on top of a car, pulled a gun out of his pants, waved it around, and started shooting. There was also evidence that Springer was in the crowd and shooting a gun. When police officers arrived at the scene, they found a man lying between two cars in the parking lot. The victim, Latorrious Mitchell, was an innocent bystander who had been shot in the back and killed.

1. Springer first contends that the trial court erred by refusing to give his requested jury instruction regarding transferred justification. See Crawford v. State, 267 Ga. 543, 544 (2) (480 SE2d 573) (1997) (Under the principle of transferred justification, “no guilt attaches if an accused is justified in shooting to repel an assault, but misses and kills an innocent bystander”) (citations omitted). Springer argues that the jury could have concluded, based upon the evidence, that he did not intend to shoot Mitchell and that his conduct in shooting at Barber was in self-defense because several witnesses testified that Barber fired the first shot. Therefore, Springer argues, the jury could have found that he was justified in the shooting under the transferred justification doctrine.

The record shows, however, that rather than give Springer’s requested charge on transferred justification, the trial court instructed the jury on justification, self-defense, misapprehension of fact and intent. It further charged the jury that accident or speculation of guilt was insufficient to authorize a conviction. Further, at the request of Springer’s counsel, the trial court did not charge the jury on transferred intent. Although “the better practice may have been for the trial court to include a specific charge on transferred justification, considered as a whole the court’s charge made clear to the jury that it should acquit [Springer] if it determined he was justified in firing his weapon, regardless of whom the bullet struck.” (Citation omitted.) Allen v. State, 290 Ga. 743, 746 (3) (723 SE2d 684) (2012). See also Wallace v. State, 306 Ga. App. 118, 120 (1) (701 SE2d 554) (2010) (In order for a refusal to charge to be error, the request must be entirely correct and accurate; adjusted to the pleadings, law and evidence; and not otherwise covered in the general charge). We find no abuse of discretion. Id.

2. During the charge, the trial court instructed that the jurors could consider a witness’s level of certainty regarding identification. Citing to Brodes v. State, 279 Ga. 435 (614 SE2d 766) (2005), Springer contends that such an' instruction was harmful. In Brodes, our Supreme Court disapproved of charging “jurors [that] they may consider a witness’s level of certainty when instructing them on the factors that may be considered in deciding the reliability of that identification.” Id. at 442. The State concedes that such instruction was in error, but argues that such error was harmless in the light of overwhelming evidence. We agree.

“[T]he giving of such an instruction does not require reversal when there is other significant evidence corroborating the eyewitness identification.” (Citation and punctuation omitted.) Bryson v. State, 316 Ga. App. 512, 517 (2) (729 SE2d 631) (2012). For example, “an eyewitness’s prior knowledge of the perpetrator militates against a finding of harm from the giving of the ‘level of certainty’ language.” (Citation and punctuation omitted.) Hamilton v. State, 291 Ga. App. 655, 656 (2) (662 SE2d 759) (2008) (trial court’s error in giving “level of certainty” jury instruction was harmless in light of the fact that three witnesses who knew defendant before the shooting identified him as the shooter and one saw him holding the gun).

Here, Corey Turner, a witness to the incident, testified that he knew Springer prior to the incident. Turner identified Springer as the shooter at trial and testified that he saw Springer with a gun, but did not see him shoot it. Another witness, Dwayne Kidd, testified at trial that he knew Springer prior to the incident and that he saw him at the Krystal parking lot during the incident, but that he did not see Springer with a gun. However, Kidd’s testimony was impeached through an earlier statement he gave to an investigating officer that he did, in fact, see Springer holding and shooting a gun during the incident.

Furthermore, the trial court instructed the jury about the State’s burden of proving [Springer’s] identity as the perpetrator beyond a reasonable doubt as well as other relevant considerations; therefore, the jury charge on level of certainty was harmless as it is highly probable that it did not contribute to the verdict.

Decided January 12, 2016.

Jennifer A. Trieshmann, for appellant.

Peter J. Skandalakis, District Attorney, Anne C. Allen, Assistant District Attorney, for appellee.

(Citation and punctuation omitted.) Hamilton, supra at 656-657 (2).

Judgment affirmed.

Andrews, P. J., and McFadden, J., concur.

       This Court also reversed Springer’s conviction for possession of a firearm during the conviction of a felony as a result of our reversal of the predicate felonies. Springer I at 657 (1), n. 5.

       While our Supreme Court disapproved the use of this instruction in Brodes in a 4-3 decision, interestingly, this Court has held that it is not improper for an eyewitness to testify about his degree of certainty or even for the State to elicit such testimony from a witness. Best v. State, 279 Ga. App. 309 (630 SE2d 900) (2006); Clark v. State, 285 Ga. App. 182 (645 SE2d 671) (2007).


author: Doyle, Chief Judge.

text:
    A15A2294.
    CLEVELAND v. MIDFIRST BANK.
    (781 SE2d 577)
   Doyle, Chief Judge.

In her suit against MidFirst Bank (“the Bank”) for an allegedly wrongful eviction, Mary Frances Cleveland appeals from the grant of the Bank’s motion to dismiss for failure to state a claim. Cleveland contends that the trial court erred because her verified complaint pleaded provable facts sufficient to support a claim. We agree and reverse.

It is well established that a motion to dismiss for failure to state a claim upon which relief may be granted should not be sustained unless (1) the allegations of the complaint disclose with certainty that the claimant would not be entitled to relief under any state of provable facts asserted in support thereof; and (2) the movant establishes that the claimant could not possibly introduce evidence within the framework of the complaint sufficient to warrant a grant of the relief sought. In deciding a motion to dismiss, all pleadings are to be construed most favorably to the party who filed them, and all doubts regarding such pleadings must be resolved in the filing party’s favor.
[A] plaintiff is not required to plead in the complaint facts sufficient to set out each element of a cause of action so long as it puts the opposing party on reasonable notice of the issues that must be defended against. If within the framework of the complaint, evidence may be introduced which will sustain a grant of relief to the plaintiff, the complaint is sufficient. We review the trial court’s ruling on a motion to dismiss for failure to state a claim upon which relief can be granted under the de novo standard of review.

Here, Cleveland’s complaint alleges that she was wrongfully evicted after the Bank foreclosed on its security interest and purchased her residence at the foreclosure sale. Thereafter, the Bank obtained a writ of possession, which Cleveland appealed, subject to an order to pay rent into the registry of the superior court (“Rent Order”). When Cleveland failed to make rent payments, the Bank obtained a writ of possession based on Cleveland’s violation of the Rent Order.

Cleveland’s complaint further alleges that when the writ was executed, the Bank’s agents

wrongfully broke the locks on Plaintiff’s doors,... broke and damaged plaintiff’s personal property, antiques andfurnish-ing[s,] and placed them in the dumpster. They refused to allow Plaintiff on the .property to protect, secure [,] and retrieve her furniture, antiques [,] and furnishings [,] and hauled her furniture, antiques [,] and furnishings off to a place unknown to Plaintiff. . . .
Defendant MidFirst [or its agents] denied her the right to retrieve ... her property... and... maliciously destroyed and carried away [her personal property].

Based on this and other conduct, Cleveland’s complaint asserts that she is entitled to damages for trespass, emotional distress, theft, and conversion.

The Bank answered and proffered evidence that it held a security interest in the property and properly foreclosed on the security interest, secured a writ of possession, and executed the writ. The Bank then moved to transfer venue to the county where the property was located, which motion the court granted. The Bank’s motion also sought to dismiss the suit for failure to state a claim upon which relief could be granted, which the superior court ultimately granted in a one-page order.

Cleveland now appeals that ruling, arguing that her complaint asserts facts sufficient to state tort claims based on the allegedly wrongful eviction process. After a foreclosure sale, former owners remaining in possession of real property become tenants at sufferance, and the dispossessory procedures set forth in OCGA § 44-7-50 et seq. apply. OCGA § 44-7-55 (c) provides as follows:

Any writ of possession issued pursuant to this article shall authorize the removal of the tenant or his or her personal property or both from the premises and permit the placement of such personal property on some portion of the landlord’s property or on other property as may be designated by the landlord and as may be approved by the executing officer; provided, however, that the landlord shall not be a bailee of such personal property and shall owe no duty to the tenant regarding such personal property. After execution of the writ, such property shall be regarded as abandoned.

Addressing the practical effect of that provision, this Court has concluded:

While the statute provides that the landlord shall not be a bailee and shall owe no duty to the tenant with regard to his personal property, we interpret that provision as being contingent upon the landlord first placing the tenant’s property on some portion of the landlord’s property or on other specific property designated by the landlord and approved by the executing officer.

Based on this, the Court has held that a claim for conversion may lie when a landlord “neither placed [the tenant’s] personal property on a portion of the [property] . . . nor on other property, which they designated and which the executing officer approved.” This was because the landlord “hired a salvage crew to simply remove [the tenant’s] personal property from the [property] with no consideration given as to its ultimate fate.”

Here, under a similar analysis, Cleveland’s complaint alleges facts sufficient to establish the framework for a grant of relief. She alleges that the Bank’s agents destroyed or stole her personal property, thereby failing to follow the statutory procedure outlined in OCGA § 44-7-55 (c), and the Bank has not demonstrated that her claims fail as a matter of law. Accordingly, the trial court erred by dismissing her complaint for failure to state a claim.

Decided January 12, 2016.

Louise T. Hornsby, for appellant.

Gilroy Bailey Trumble, Monica K. Gilroy, for appellee.

Judgment reversed.

Phipps, P. J., and Peterson, J., concur.

       (Punctuation and footnotes omitted.) TechBios, Inc. v. Champagne, 301 Ga. App. 592, 592-593 (688 SE2d 378) (2009).

       See Ikomoni v. Exec. Asset Mgmt., 309 Ga. App. 81, 84 (2) (709 SE2d 282) (2011).

        Washington v. Harrison, 299 Ga. App. 335, 339 (1) (682 SE2d 679) (2009).

       Id.

       Id.

       See id. See also Higgins v. Benny’s Venture, 309 Ga. App. 102, 104 (709 SE2d 287) (2011) (landlord did not “have carte blanche to do whatever he or she liked with the tenant’s personal property, including even destroying it, at the moment the writ of possession is issued”) (punctuation omitted).

       See TechBios, Inc., 301 Ga. App. at 596 (1) (a).


author: ANDREWS, Presiding Judge.

text:
    A15A1953.
    WILLIAMS v. THE STATE.
    (781 SE2d 791)
   ANDREWS, Presiding Judge.

David Timothy Williams filed a motion to suppress a photographic lineup which led to his arrest for armed robbery. Following a hearing, the Superior Court of Laurens County denied Williams’ motion, and Williams appeals. Because we lack jurisdiction, we dismiss Williams’ appeal.

1. Although not addressed by the parties, we are obligated to question our jurisdiction “in all cases in which there maybe any doubt regarding the existence of such jurisdiction.” Bandy v. Elmo, 280 Ga. 221 (626 SE2d 505) (2006); Canoeside Properties v. Livsey, 277 Ga. 425, 426 (1) (589 SE2d 116) (2003). This is Williams’ third attempt to appeal the trial court’s denial of his motion to suppress. Following the trial court’s initial order denying his motion and a subsequently issued certificate of immediate review, Williams’ first attempted appeal failed for want of a notice of appeal after we granted his application for interlocutory appeal. At that point, the trial court vacated its initial order denying Williams’ motion and entered an identical order and a second certificate of immediate review. However, Williams’ second attempt to appeal resulted in a dismissal due to his failure to file a brief and enumeration of errors in this Court after we granted his second application for interlocutory appeal. See Court of Appeals Rules 13, 22, 23 (a), and 25 (a). Thereafter, the trial court again vacated its order denying Williams’ motion to suppress and again entered an identical order in an apparent effort to provide Williams with an opportunity to appeal. Despite the absence of a certificate of immediate review, we granted Williams’ application for interlocutory appeal.

It is the dismissal of Williams’ second attempted appeal that triggers our jurisdictional question. We dismissed Williams’ appeal due to his failure to file a brief and enumeration of errors. See Court of Appeals Rules 13, 22, 23 (a) and 25 (a). Although the trial court then attempted to provide Williams with another avenue for an appeal, it lacked the authority to do so. “The effect of the dismissal of the . . . appeal from an appealable judgment was to affirm the judgment of the trial court there excepted to and the trial court was without authority to vacate or alter such prior judgment which was res judicata between the parties.” Aetna Cas. & Surety Co. v. Bullington, 227 Ga. 485 (2) (181 SE2d 495) (1971); Potter-Miller v. Reed, 302 Ga.App. 199, 200 (2)(690 SE2d 215)(2010). See also OCGA § 9-11-60 (h); Howard v. State, 289 Ga. 207 (1) (710 SE2d 761) (2011) (“Because Howard cannot re-litigate here the same issues that were dismissed in his prior appeals, these claims will not be considered.”); Ross v. State, 310 Ga. App. 326, 327 (713 SE2d 438) (2011) (dismissal of previous appeal “constitutes binding law of the case” and precludes appellate review of issues raised in previous appeal).

Contrary to Bandy and Canoeside, supra, the dismissal of Williams’ prior appeal is not an example of “[a] defective attempt to seek interlocutory review pursuant to OCGA § 5-6-34 (b).” Indeed, Williams successfully obtained interlocutory review. When the time came to file his brief and enumeration of errors in this Court, however, Williams shirked his responsibility. It follows that the dismissal effectively affirmed the trial court’s denial of Williams’ motion to suppress and became the law of the case between the parties; accordingly, the trial court lacked the authority to circumvent our prior dismissal. See Bandy, 280 Ga. at 221; Canoeside, 277 Ga. at 427 (1). See generally Houston County v. Harrell, 287 Ga. 162, 164 (695 SE2d 29) (2010) (“Atrial court’s ruling circumventing the appellate court’s dismissal of a direct appeal cannot be permitted; upon return of the remittitur to the trial court after the first direct appeal, the only action which that court had authority or power to take was to make the judgment of the Court of Appeals the judgment of the trial court.”) (citation and punctuation omitted). We therefore dismiss Williams’ appeal. See Aetna, 227 Ga. at 485 (2); Potter-Miller, 302 Ga. App. at 200 (2). See also Howard, 289 Ga. at 207 (1); Ross, 310 Ga. App. at 327.

Decided January 13, 2016.

Natalie K. Glaser, for appellant.

L. Craig Fraser, District Attorney, Leslie L. Ray, Cheryl A. Banks, Assistant District Attorneys, for appellee.

2. In view of the discussion in Division 1, supra, we need not consider the effect of the trial court’s failure to enter a certificate of immediate review following entry of its second renewed order denying Williams’ motion to suppress.

Appeal dismissed.

Branch and Mercier, JJ., concur.

       “A defective attempt to seek interlocutory review pursuant to OCGA § 5-6-34 (b) does not have the effect of making the judgment appealed from res judicata of the issue.” Canoeside, 277 Ga. at 427 (1). For this reason, Williams retained the right to pursue a second attempted appeal. See id.

       The trial court’s actions in this regard were authorized. See Canoeside, 277 Ga. at 426, 427 (1).

       See Southeastern Security Ins. Co. v. Empire Banking Co., 268 Ga. 450, 451 (490 SE2d 372) (1997) (appellate court “is authorized to exercise its discretion to dismiss an appeal filed as the result of the grant of an application”).


author: BARNES, Presiding Judge.

text:
    A15A1990.
    NORMAN et al. v. YEAGER.
    (781 SE2d 580)
   BARNES, Presiding Judge.

Wesley Bernard Norman, Jr., and Rite Brokers Auto Sales, LLC appeal the trial court’s order dismissing their complaint that sought the return of personal property seized by the Sheriff of Coweta County. Because the seized property did not constitute contraband per se and no statutory authority supported its continued retention by the Sheriff, the trial court erred in dismissing the complaint and failing to order the Sheriff to return the property. Accordingly, we reverse.

The material facts are undisputed. Norman is one of the managing members of Rite Brokers, a limited liability company that is the title owner of a 2003 Ford truck. At the center of this case are three 100-gallon fuel tanks and a fuel pump that were attached to, or contained in, the truck owned by Rite Brokers (collectively, the “fuel equipment”).

In December 2013, Norman was arrested and charged with criminal attempt to commit theft by taking based on his alleged attempt to steal diesel fuel from a business. In January 2014, Norman was charged with theft by taking for allegedly stealing diesel fuel from a second business. Norman allegedly used the Ford truck and fuel equipment in connection with the theft offenses, and the truck and equipment were seized by the Coweta County Sheriff’s Office upon Norman’s arrest.

In May 2014, while the criminal charges remained pending, Norman and Rite Brokers demanded the return of the truck with the fuel equipment from the Sheriff pursuant to OCGA § 17-5-50, contending that the truck was not contraband or the subject of a forfeiture action, and that photographs or video recordings of the truck would be an adequate substitute for the actual vehicle at trial. See OCGA § 17-5-50 (c). When the Sheriff refused to return the truck, Norman and Rite Brokers filed a complaint in the Superior Court of Coweta County seeking the return of the seized property. The Sheriff answered the complaint, denying that he was required to return the truck. The Sheriff did not assert a counterclaim or file an independent forfeiture action.

In December 2014, Norman entered a plea of guilty under the First Offender Act, OCGA § 42-8-60 et seq., to one count of theft by taking. The remaining counts of the indictment were disposed of through entry of a nolle prosequi order. Norman was sentenced to five years probation to be terminated upon the payment of restitution. Norman paid the restitution in full on the date of the plea and was discharged without an adjudication of guilt pursuant to OCGA § 42-8-62 (a) of the First Offender Act.

The Sheriff returned the Ford truck to Norman and Rite Brokers after Norman pled guilty under the First Offender Act. However, before returning the truck, the Sheriff removed the fuel equipment and refused to relinquish the equipment to Norman and Rite Brokers.

The trial court subsequently conducted a hearing on Norman and Rite Brokers’ complaint seeking return of the seized property. The parties stipulated to the material facts and requested the trial court to rule on whether the Sheriff had to return the fuel equipment. The Sheriff did not rely upon a specific statute to justify retention of the fuel equipment, but instead argued more generally that the equipment could be retained as contraband because it was a tool used in the commission of a crime.

In its final order entered after the hearing, the trial court acknowledged that “there is no clear statutory authority which addresses the present situation before the Court when a criminal defendant seeks the return of fuel tanks and a pump which were used to commit the crime of stealing fuel.” But the trial court concluded that the fuel equipment was “personal property that was used by Norman in the commission of the crime of stealing diesel fuel and [was], thus, contraband” that did not have to be returned to Norman and Rite Brokers. Based on this conclusion, the trial court dismissed Norman and Rite Brokers’ complaint for return of the seized property.

On appeal, Norman and Rite Brokers contend that the trial court erred by failing to require the Sheriff to return the seized fuel equipment once the criminal prosecution against Norman had been concluded. The appellants argue, and the State concedes, that there is no specific Georgia statute justifying the retention of the fuel equipment by the Sheriff after the completion of the criminal prosecution. Because the fuel equipment is not contraband per se and there is no statutory basis for continued retention of the equipment, the appellants argue that the equipment must be returned to its rightful owner, Rite Brokers. We agree with the appellants.

Following the conclusion of a criminal prosecution, personal property seized for use as evidence at trial must be returned to its rightful owner, unless the property constitutes contraband or is subject to forfeiture. See OCGA § 17-5-54 (a) (1), (d) (2013); Baez v. State, 231 Ga. App. 375, 376 (500 SE2d 339) (1998). See also Chappell v. Stapleton, 58 Ga. App. 138 (198 SE 109) (1938); Padgett v. Sturgis, 6 Ga. App. 544 (65 SE 352) (1909). In determining whether the seized property constitutes contraband, Georgia courts distinguish between contraband per se, which is “inherently unlawful,” and “contraband which may ordinarily be used in a beneficial and useful manner but which becomes unlawful under certain specific circumstances set forth by law.” Balkcom v. Heptinstall, 152 Ga. App. 539, 540 (263 SE2d 275) (1979).

A party has no right to the return of objects that are contraband per se, that is, property, “the possession of which, without more, constitutes a crime.” One 1958 Plymouth Sedan v. Pennsylvania, 380 U. S. 693, 699 (85 SCt 1246, 14 LE2d 170) (1965). See Windham v. Harmon, 50 Ga. App. 322 (178 SE 160) (1935) (“The courts will not sustain actions for the recovery of property the possession of which is illegal.”). A quintessential example of contraband per se is cocaine, the possession of which is unlawful under the Georgia Controlled Substances Act, OCGA § 16-13-30 (a). One can “have no property rights” in objects that are contraband per se, Blackmon v. Brotherhood Protective Order of Elks, 232 Ga. 671, 673 (1) (208 SE2d 483) (1974), and the return of this type of contraband to the purported owner would “frustrate [ ] the express public policy against the possession of such objects.” One 1958 Plymouth Sedan, 380 U. S. at 699.

A different rule applies where the mere possession of the seized personal property is not itself illegal and the property in its ordinary use would be beneficial and useful. In that context, the seized property must be returned to its rightful owner after the conclusion of the criminal prosecution, unless a “statute . . . provides for its condemnation or confiscation.” (Emphasis omitted.) Balkcom, 152 Ga. App. at 541, quoting Chappell, 58 Ga. App. at 139. See Seaman v. State, 196 Ga. App. 634, 635 (396 SE2d 525) (1990) (owner was entitled to return of seized videocassette recorders because the recorders were not contraband per se and no statute provided for their condemnation or confiscation).

The fuel equipment at issue in the present case is not contraband per se. Fuel tanks and fuel pumps, when used in the ordinary course of affairs, are legal to possess and are beneficial and useful to society. Accordingly, Rite Brokers, as the undisputed title owner of the fuel equipment, was entitled to the return of the equipment, unless a statute provided for its condemnation or confiscation. See Seaman, 196 Ga. App. at 635; Balkcom, 152 Ga. App. at 541; Chappell, 58 Ga. App. at 139. “Forfeiture of property is disfavored and the statutes permitting such are to be strictly construed and limited.” Seaman, 196 Ga. App. at 635. And if there is any ambiguity as to whether property is subject to forfeiture under a statute, the “statute must be strictly construed against the State.” State of Ga. v. Williams, 278 Ga. 447, 449 (603 SE2d 278) (2004).

There is no statute authorizing the condemnation or confiscation of the fuel equipment by the Sheriff’s Office under the circumstances of this case, as the Sheriff concedes on appeal. No Georgia statute specifically addresses the forfeiture of fuel equipment used in connection with a theft offense. And while Georgia more generally criminalizes possession of tools “commonly used in the commission of burglary, theft, or other crime with the intent to make use thereof in the commission of a crime,” OCGA § 16-7-20 (a), the statute does not declare those tools to be contraband or subject to condemnation or confiscation. Notably, when the General Assembly has intended to declare certain objects as contraband subject to forfeiture, it has done so explicitly. We must presume that the absence of similar language in OCGA § 16-7-20 was a “matter of considered choice” by the General Assembly. (Punctuation and footnote omitted.) Gordon v. State, 316 Ga. App. 42, 46 (1) (a) (728 SE2d 720) (2012). Accordingly, OCGA § 16-7-20 did not authorize the condemnation and confiscation of the fuel equipment by the Sheriff.

It is true that under Georgia’s Racketeer Influenced and Corrupt Organizations Act (the “RICO Act”), OCGA § 16-14-1 et seq., “[a]ll property of every kind used or intended for use in the course of, derived from, or realized through a pattern of racketeering activity shall be subject to forfeiture to the state.” (Emphasis supplied.) OCGA § 16-14-7 (a) (Supp. 2015). A “pattern of racketeering activity’ means engaging in at least two acts of racketeering activity, OCGA § 16-14-3 (4) (A) (Supp. 2015), and “ ‘racketeering activity’ is defined to mean the commission of a crime in any of specified categories of offenses [,] . . . [which] are also known as the predicate offenses.” Ali v. State of Ga., 328 Ga. App. 203, 207 (761 SE2d 601) (2014). See OCGA § 16-14-3 (5). Felony theft by taking under OCGA § 16-8-2 is such a predicate offense. See OCGA § 16-14-3 (5) (A) (xii). Here, however, the State did not bring a RICO forfeiture action against the fuel equipment and has not alleged, or sought to establish, that Norman engaged in a pattern of racketeering activity rather than the single felony theft to which he pled guilty under the First Offender Act. Consequently, the Sheriff could not rely upon the RICO Act as a basis for retaining the fuel equipment under the circumstances of this case.

Despite the absence of clear statutory authority, the trial court concluded that the Sheriff could retain the fuel equipment. Relying upon three opinions of this Court, the trial court reasoned that the State has the inherent authority to retain as contraband any seized personal property used as a tool in the commission of a crime. See Baez, 231 Ga. App. 375; Gunter v. State, 182 Ga. App. 548 (356 SE2d 276) (1987); LoGiudice v. State, 164 Ga. App. 709 (297 SE2d 499) (1982). But these three opinions do not stand for such a broad proposition.

Gunter and LoGiudice both involved the disposition of firearms used in the commission of a crime. See Gunter, 182 Ga. App. at 548-549; LoGiudice, 164 Ga. App. at 711 (4). Notably, there is a specific Georgia statute declaring weapons used in the commission of a crime to be contraband subject to forfeiture. See OCGA § 17-5-51 (2015). Neither case therefore supports the trial court’s conclusion that the State has the broad inherent authority to retain any property used as a tool in the commission of a crime.

In Baez, we held that the trial court properly found that guns and a digital scale that had been seized during a criminal investigation did not have to be returned to the defendant, where the defendant had testified in his criminal trial “that he had never seen the guns before, that they were not in his truck, and that he did not know what the object (the scale) was.” 231 Ga. App. at 376. Our ruling with respect to the guns and digital scale was narrowly based on the defendant’s denial of ownership of those seized items, and thus has no bearing on the current case.

We also held in Baez that the case would be remanded to the trial court for a determination as to whether other personal items seized from a suitcase, including documents, checks, and cassettes, were “contraband or subject to forfeiture,” or instead had to be returned to the defendant. 231 Ga. App. at 376. But we did not suggest that those items could be seized as contraband based simply on a finding by the trial court that they were tools used in the commission of a crime.

For these reasons, the trial court erred in relying upon Baez, Gunter, and LoGiudice to find that the Sheriff had the broad inherent authority to retain the fuel equipment as tools used in the commission of a crime. Rather, as previously discussed, the Sheriff was required to point to specific statutory authority to justify his retention of the fuel equipment, given that the equipment was not contraband per se. See Seaman, 196 Ga. App. at 635; Balkcom, 152 Ga. App. at 541; Chappell, 58 Ga. App. at 139. Any other rule would be inconsistent with the principle emphasized by our Supreme Court that “[fjorfeit-ures are not favored” and “should be enforced only when within both [the] letter and spirit of the law.” Cisco v. State of Ga., 285 Ga. 656, 663 (3) (680 SE2d 831) (2009), quoting United States v. One 1936 Model Ford V-8 De Luxe Coach, 307 U. S. 219, 226 (59 SCt 861, 83 LE 1249) (1939). Consequently, given the absence of specific statutory authority justifying retention of the fuel equipment, the trial court erred in dismissing the appellants’ complaint and in failing to order the Sheriff to return the equipment.

Judgment reversed.

McMillian and Mercier, JJ., concur.

Decided January 13, 2016.

Allen W. Bodiford, Lauren A. Taylor, for appellants.

Glover & Davis, Nathan T. Lee, for appellee.

       OCGA § 17-5-50 (c) provides: “Photographs, video tapes, or other identification or analysis of the property involved, duly identified in writing hy the law enforcement officer originally taking custody of the property as accurately representing such property, shall be admissible at trial in lieu of the original property.”

       OCGA § 17-5-54 (2013) provides in relevant part:
      (a) (1) Except as provided in Code Sections 17-5-55 [which addresses, among other things, the disposition of evidence designated as dangerous or contraband by state or federal law] and 17-5-56 [which addresses the maintenance of evidence containing biological material] and subsections (d), (e), and (f) of this Code section, when a law enforcement agency assumes custody of any personal property which is the subject of a crime or has been abandoned or is otherwise seized, a disposition of such property shall be made in accordance with the provisions of this Code section. When a final verdict and judgment is entered finding a defendant guilty of the commission of a crime, any personal property used as evidence in the trial shall be returned to the rightful owner of the property within 30 days following the final judgment; provided, however, that if the judgment is appealed or if the defendant files a motion for a new trial and if photographs, videotapes, or other identification or analysis of the personal property will not be sufficient evidence for the appeal of the case or new trial of the case, such personal property shall be returned to the rightful owner within 30 days of the conclusion of the appeal or new trial, whichever occurs last. . ..
      (d) The provisions of this Code section shall not apply to personal property which is the subject of forfeiture proceedings as otherwise provided by law.
      OCGA § 17-5-54 (a) (1), (d) (2013). OCGA § 17-5-54 was revised by the General Assembly, effective July 1, 2015, but the revised statute does not apply in this case. See OCGA § 17-5-54 (Supp. 2015); Ga. L. 2015, p. 693, § 4-1/HB 233 (“This Act shallbecome effective on July 1,2015, and shall apply to seizures of property for forfeiture that occur on or after that date. Any such seizure that occurs before July 1, 2015, shall be governed by the statute in effect at the time of such seizure.”).

       See also Helton v. Hunt, 330 F3d 242, 248 (4th Cir. 2003); Cooper v. City of Greenwood, 904 F2d 302, 305 (5th Cir. 1990); United States v. Farrell, 606 F2d 1341, 1344-1346 (D.C. Cir. 1979); State v. Curran, 628 P2d 1198, 1203 (Or. 1981); Mims Amusement Co. v. South Carolina Law Enforcement Div., 621 SE2d 344, 349 (S.C. 2005); State v. Driscoll, 964 A2d 1172, 1177 (Vt. 2008).

       See, e.g., OCGA §§ 3-2-33 (b), (c) (alcoholic beverages on which tax or license fee has not been paid); 10-1-359.3 (b), (c) (property used to facilitate the theft of regulated metal property); 12-4-48 (e) (1) (illegally produced minerals); 12-5-137 (a) (equipment used by unlicensed well drillers); 12-8-2 (c) (motor vehicles used to unlawfully dump sewage); 16-6-13.2 (b), (c) (motor vehicle used in pimping); 16-12-32 (b) (gambling devices); 16-12-83 (obscene materials); 16-13-49 (b) (Supp. 2015) (property used in violation of the Georgia Controlled Substances Act); 16-15-5 (b), (c) (Supp. 20Í5) (property used to facilitate street gang activity); 16-16-2 (b), (c) (motor vehicles, tools, and weapons used in the commission of a burglary, home invasion, or armed robbery); 25-10-6 (illegal fireworks); 40-6-391.2 (a) (motor vehicle used by habitual violator); 48-11-9 (a) (1) (unstamped cigars, cigarettes, and loose or smokeless tobacco).

       Although a prior version of the RICO Act was in effect at the time of the seizure of the fuel equipment, see Ga. L. 2002, p. 532, § 4; Ga. L. 2015, p. 693, § 4-1/HB 233, we cite to the current version of the Act for ease of reference because there were no substantive changes made to the Act affecting our analysis in this case.

       OCGA § 17-5-51 (Supp. 2015) provides:
      Any device which is used as a weapon in the commission of any crime against any person or any attempt to commit any crime against any person, any weapon the possession or carrying of which constitutes a crime or delinquent act, and any weapon for which a person has been convicted of violating Code Section 16-11-126 are declared to be contraband and shall be forfeited in accordance with the procedures set forth in Chapter 16 of Title 9, notwithstanding the time frames set forth in Code Section 9-16-7.
      The version of the statute in effect at the time of Gunter and LoGiudice likewise provided that weapons used in the commission of any crime against any person are contraband subject to forfeiture. See Ga. L. 1977, p. 1131, § 1.

         Some courts have recognized a narrow public policy exception to the general rule that continued retention of the seized property must he authorized by statute, where the party seeking return of the property voluntarily surrendered the property as part of his attempt to violate the law. See, e.g., Kardoh v. United States, 572 F3d 697, 700-702 (9th Cir. 2009); Mantilla v. United States, 302 F3d 182, 186-187 (3d Cir. 2002); United States v. Smith, 659 F2d 97, 100 (8th Cir. 1981); United States v. Farrell, 606 F2d 1341, 1348-1350 (D.C. Cir. 1979). An example would be in the circumstance where a defendant pays money to an undercover government agent for narcotics and then later seeks to recover the money from the government. See, e.g., Farrell, 606 F2d at 1348-1350. In that context, some courts have reasoned that “it is contrary to public policy to permit the courts to be used by the wrongdoer ... to obtain the property he voluntarily surrendered as part of his attempt to violate the law.” Id. at 1350. We need not decide whether Georgia should adopt such a public policy exception, given that it would have no application under the facts of this case.


text:
    A15A2120.
    In the Interest of N. J., a child.
    (781 SE2d 585)
   Doyle, Chief Judge.

N. J.’s mother appeals from an order issued by the Douglas County Juvenile Court granting permanent guardianship of N. J. to her paternal grandmother (“the grandmother”). The mother argues that the grandmother failed to comply with mandatory notification procedures, there was insufficient evidence to support permanent guardianship, and the juvenile court erred by failing to establish a specific visitation schedule for the mother. Because the grandmother failed to comply with the requirements of the statute, we reverse.

The record shows that in the latter part of 2013, when N. J. was three years old, her father took her to the grandmother’s home to live. On November 10, 2014, the grandmother filed a petition for permanent guardianship. The grandmother served both the father and the mother with notice of the petition for guardianship, and the juvenile court notified both parents of the final hearing date. After the final hearing, which was held over two days and at which the father consented to the grandmother’s petition, the court entered an order granting the grandmother’s petition for permanent guardianship. This appeal followed.

1. The mother argues that the order granting permanent guardianship to the grandmother should be reversed because the petition lacked information required by OCGA § 15-11-241 (7). We agree. OCGA § 15-11-240 (a) provides in relevant part:

In addition to the jurisdiction to appoint guardians pursuant to Code Section 15-11-13, the juvenile court shall be vested with jurisdiction to appoint a permanent guardian for a child adjudicated as a dependent child in accordance with this article. Prior to the entry of such an order, the court shall:
(1) Find that reasonable efforts to reunify such child with his or her parents would be detrimental to such child or find that the living parents of such child have consented to the permanent guardianship;
(2) Find that termination of parental rights and adoption is not in the best interests of such child;
(3) Find that the proposed permanent guardian can provide a safe and permanent home for such child; [and]
(4) Find that the appointment of a permanent guardian for such child is in the best interests of such child and that the individual chosen as such child’s permanent guardian is the individual most appropriate to be such child’s permanent guardian taking into consideration the best interests of the child. . . .

OCGA § 15-11-241 provides that a “petition for the appointment of a permanent guardian pursuant to this part shall set forth,” among other things,

[i]n addition to the petitioner and the nominated guardian and, if the parent of such child has not consented to the permanent guardianship, the names and addresses of the following relatives of such child whose parents’ whereabouts are known: (A) The adult siblings of such child; provided, however, that not more than three adult siblings need to be listed; (B) If there is no adult sibling of such child, the grandparents of such child; provided, however, that not more than three grandparents need to be listed; or (C) If there is no grandparent of such child, any three of the nearest adult relatives of such child determined according to Code Section 53-2-1[.]

OCGA § 15-11-241 (9) provides that a petition shall also set forth “[t]he reason for any omission in the petition for appointment of a permanent guardian for such child in the event full particulars are lacking.”

Decided January 13, 2016.

Jana L. Evans, for appellant.

Cynthia C. Adams, for appellee.

Here, as the mother points out, the petition does not contain the names and addresses of the relatives listed in OCGA § 15-11-241 (7), nor does it contain a reason for the omission. Because the mother did not consent to the guardianship, given the mandatory language of the statute and the juvenile court’s obligation to determine whether the grandmother “is the individual most appropriate to be [N. J.’s] permanent guardian,” the court erred by granting the grandmother’s petition because it lacked the information required by OCGA § 15-11-241 (7) and (9).

2. In light of our holding in Division 1, we need not address the mother’s remaining enumerations of error.

Judgment reversed.

Phipps, P. J., and Mercier, J., concur.

       The grandmother stated in the petition that the juvenile court entered an order on March 10, 2014, granting temporary custody of N. J. to the grandmother.

       The juvenile court noted in the final order that it had previously adjudicated N. J. deprived in a separate action. We note that OCGA § 15-11-240 (a) vests the juvenile courts “with jurisdiction to appoint a permanent guardian for a child adjudicated as a dependent.” (emphasis supplied).

       (Emphasis supplied.)

       (Emphasis supplied.)

       OCGA § 15-11-241 (7).

       OCGA § 15-11-241 (9).

       OCGA § 15-11-240 (a) (4).

       Cf. Johnson v. Jones, 214 Ga. App. 386, 387 (1) (448 SE2d 1) (1994) (“In the absence of compliance with [the] notice provisions [of former OCGA § 29-5-6 (b) (2) (C),j the probate court may lack jurisdiction to consider the petition for appointment of a guardian [for an allegedly incapacitated adult].”).


text:
    A16A0173.
    YAN v. HERLIS ASSOCIATES, LLC et al.
    (781 SE2d 587)
   ANDREWS, Presiding Judge.

Huizhu Yan commenced this action against Jane T. St. Clair, M.D., PC. d/b/a Wellbeings Occupational Healthcare, along with the owner and management company of the premises where Dr. St. Clair’s medical office was located, seeking recovery for injuries she sustained as she helped her nephew leave the premises after his appointment with Dr. St. Clair. This appeal follows the trial court’s final judgment dismissing Count 2 of the complaint.

In her complaint, Yan alleged that on April 12, 2013, she accompanied her nephew to Dr. St. Clair’s office for treatment of an injury that impaired his ability to walk. As they left Dr. St. Clair’s office, the nephew lost his balance and fell into Yan, causing her to fall on the concrete stairway. Count 2 of Yan’s complaint faulted Dr. St. Clair for not assisting Yan’s nephew off the premises.

Dr. St. Clair moved to dismiss Yan’s complaint on the grounds the complaint alleged medical malpractice but failed to attach an expert’s affidavit as required by OCGA § 9-11-9.1. In response, Yan asserted her complaint alleged an ordinary negligence claim, not medical malpractice, thus obviating the need for an expert affidavit. The trial court dismissed Count 2 of the complaint for failure to state a claim for which relief could be granted, quoting “the long-established general rule... that a person is under no duty to rescue another from a situation of peril which the former has not caused, even when the peril is foreseeable.” (Punctuation and footnote omitted.) Boiler v. Robert W. Woodruff Arts Center, 311 Ga. App. 693, 696 (1) (716 SE2d 713) (2011).

Decided January 13, 2016

The Blaska Law Firm, Thomas C. Blaska, Dana J. Norman, T. Charles Blaska, for appellant.

Hall Booth Smith, Terrell W. Benton III, ToddN. Robinson; Fain, Major & Brennan, Thomas E. Brennan, Elliot D. Tiller; Law Offices of Thomas O. Sippel, H. Clifton Cobb, for appellees.

In determining, as a matter of law, whether the complaint alleged claims based on ordinary negligence, professional negligence, or both, we construe the complaint under the test applied to motions to dismiss for failure to state a claim in OCGA § 9-11-12 (b) (6). We look solely to the allegations of the complaint and liberally construe the allegations to state a claim if, within the framework of the complaint, the plaintiff may introduce evidence which will sustain a grant of relief based on the claim.

(Citations omitted.) Health Mgmt. Assoc. v. Bazemore, 286 Ga. App. 285, 287 (648 SE2d 749) (2007).

In the instant case, to the extent Yan’s Count 2 in her complaint may be construed to state a claim for professional negligence in failing to provide her nephew with assistance in walking, the trial court’s dismissal of that count must be upheld because of Yan’s failure to submit an expert affidavit as required by OCGA § 9-11-9.1. And to the extent Count 2 may be construed as merely stating a claim for ordinary negligence, we find the trial court properly applied the “no duty to rescue” rule expounded in Boiler, supra.

Judgment affirmed.

Doyle, C. J., and Ray, J., concur.


author: Boggs, Judge.

text:
    A15A1828.
    HOUSTON v. THE STATE.
    (781 SE2d 588)
   Boggs, Judge.

A jury found Anthony Houston guilty of armed robbery. Following the denial of his motion for new trial, Houston appeals, asserting as error the trial court’s ruling on an objection and also asserting that he received ineffective assistance of counsel. For the following reasons, we affirm.

Construed in favor of the verdict, the evidence showed that the victim stopped to offer a ride to her friend Kristlin Simmons and Simmons’ boyfriend, Houston, whom the victim did not know. Simmons and Houston were walking down the street around midnight. Houston told the victim that they did not need a ride, but Simmons decided to accept the victim’s offer and got into the front passenger’s seat. After Simmons entered the car, Houston pulled her out and repeatedly told her “b****, you’re not going nowhere.” Houston took Simmons’ belongings and “threw them out into the street.” When Simmons objected to his actions, Houston slapped her. The victim became “nervous and scared” because Houston was “throwing . . . things and cussing and fussing.” After arguing with Simmons for a moment, Houston jumped into the passenger side of the victim’s car, pulled out a gun, ordered the victim out of the car, and then “put [the gun] to [the victim’s] face and he was, like, give me everything you’ve got.” The victim told Houston that she did not have anything and begged him to allow her to remove her baby from the back seat: “My purse was in the car. My baby was in the car. I said, I don’t have anything. Everything I got is in the car. I said, you just let me get my baby, you know, you can just leave.” After allowing the victim to get her baby, Houston drove away in the victim’s car. The victim’s and Simmons’ testimony that Houston pulled out a gun was uncontra-dicted.

1. Houston argues that the trial court erred in overruling his objection to the State’s question to the victim regarding her identification of him as the armed robber. The prosecutor asked the victim about her identification of Houston from a photographic lineup: “How certain were you at the time.... How certain were you that this is the young man that robbed you that night?” The victim responded, “Very certain.” Houston’s counsel objected, but the trial court allowed the question and answer.

Houston acknowledges that the trial court did not instruct the jury regarding the victim’s level of certainty in violation of Brodes v. State, 279 Ga. 435, 442-443 (614 SE2d 766) (2005). He argues, however, that a violation nevertheless occurred because of the victim’s testimony regarding her level of certainty coupled with the trial court’s instruction to the jury that the evidence includes all of the testimony of the witness and that “identity is a question of fact for you to determine.” We have found no authority concluding that this combination constitutes a violation of Brodes, supra, and we decline to hold so here.

We have held:

In Brodes, our Supreme Court held that it could no longer endorse an instruction authorizing jurors to consider the witness’s certainty in his/her identification as a factor to be used in deciding the reliability of that identification, and advised trial courts to refrain from giving the “level of certainty” instruction to jurors. The Brodes decision does not, however, prohibit an identification witness from testifying about his or her level of certainty, or restrict the state from inquiring about the same. As we noted in Best v. State, [279 Ga. App. 309 (630 SE2d 900) (2006),] a defendant can challenge such testimony through cross-examination, expert testimony, or the presentation of testimony from other eyewitnesses.

(Citations, punctuation and footnotes omitted.) Clark v. State, 285 Ga. App. 182, 185 (4) (645 SE2d 671) (2007); see also Smith v. State, 303 Ga. App. 831, 835-836 (5) (695 SE2d 86) (2010) (trial counsel’s performance not deficient for failure to pursue futile objection to witness’ testimony that he was 100 percent certain that defendant was person he saw in parking lot of bank following armed robbery). Moreover, the record reveals that the trial court properly instructed the jury regarding the factors to consider in assessing the reliability of a witness’ identification. The court’s instructions were nearly identical to the suggested pattern jury instructions. See Council of Superior Court Judges of Georgia, Suggested Pattern Jury Instructions, Vol. II: Criminal Cases § 1.35.10 (Identification; Reliability). See, e.g., Gamble v. State, 291 Ga. 581, 582-583 (2) (731 SE2d 758) (2012) (court correctly instructed jury on facts it may consider in assessing reliability of witness identification).

We therefore hold that the trial court did not err in overruling Houston’s objection to the State’s questioning of the victim regarding the level of certainty of her identification.

2. Houston contends that his trial counsel was ineffective in failing to request a jury instruction on the lesser included charges of robbery and theft by taking. He asserts that because his sole defense was that only a theft by taking occurred, it was error not to instruct the jury on the lesser charges.

To establish ineffectiveness under the standard of Strickland v. Washington, 466 U. S. 668 (104 SCt 2052, 80 LE2d 674) (1984),

an appellant must show that (1) counsel’s performance was deficient and (2) the deficiency so prejudiced his defense that a reasonable possibility exists that the trial’s outcome would have been different but for that deficiency. We need not address both prongs of this test if the showing on one prong is insufficient, nor must we address them in any particular order.

(Citations and punctuation omitted.) Jackson v. State, 248 Ga. App. 7, 10-11 (4) (545 SE2d 148) (2001). “We accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.” (Citation and punctuation omitted.) Robinson v. State, 277 Ga. 75, 76 (586 SE2d 313) (2003).

The court must charge the jury on a lesser included offense if . . . there is any evidence that he committed the lesser included offense. But where the evidence shows either the completed offense, as averred, or no offense, such evidence will not support a verdict for one of the lesser grades of the offense.

(Citations, punctuation and footnotes omitted.) Miller v. State, 259 Ga. App. 244, 246 (1) (576 SE2d 631) (2003). Moreover, “[a] charge on the defendant’s sole defense is mandatory only if there is some evidence to support the charge.” (Citation, punctuation and footnote omitted.) Id. at 246 (2).

Here, the uncontradicted evidence showed that Houston forced the victim from her car at gunpoint and then drove away in the car. There was no evidence to contradict his use of a gun. Because the evidence showed either that Houston committed an armed robbery or no crime at all, he was not entitled to a jury instruction on the lesser offenses. See Jackson, supra, 248 Ga. App. at 9 (2); Jones v. State, 233 Ga. App. 362, 364 (504 SE2d 259) (1998) (“Where the uncontradicted evidence shows completion of the offense of armed robbery, and no evidence is presented to the effect that a weapon was not used in the robbery, the defendant is not entitled to a jury charge on the lesser included offenses of theft by taking or robbery by intimidation. [Cit.]”).

Decided January 14, 2016.

Kevin Schumaker, for appellant.

Robert D. James, Jr., District Attorney, Deborah D. Wellborn, Assistant District Attorney, for appellee.

Trial counsel therefore did not perform deficiently in failing to request jury instructions on the lesser offenses. As Houston has failed to satisfy the first prong of the Strickland standard, his ineffective assistance claim fails.

Judgment affirmed.

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

       The jury acquitted Houston on a charge of kidnapping.

       Houston enumerates no error with regard to the trial court’s instructions to the jury.


text:
    A15A2035.
    EVANS-GLODOWSKI v. THE STATE.
    (781 SE2d 591)
   Boggs, Judge.

Annie Evans-Glodowski appeals from her convictions of first degree homicide by vehicle, second degree homicide by vehicle, reckless driving, and failing to maintain her lane. She contends that the trial court erred by denying her motion for new trial because the evidence was insufficient to authorize her convictions and the trial court erred in granting the State’s motion in limine to exclude evidence of habit. For the reasons explained below, we find no merit in these contentions and affirm.

On appeal from a criminal conviction, the defendant no longer enjoys a presumption of innocence, and the evidence must be construed in the light most favorable to support the verdict. See Morales v. State, 332 Ga. App. 794 (1) (775 SE2d 168) (2015). In evaluating the sufficiency of the evidence, “we do not weigh the evidence or determine witness credibility, but only determine whether a rational trier of fact could have found the defendant guilty of the charged offenses beyond a reasonable doubt.” (Citation, punctuation and footnote omitted.) Joiner v. State, 299 Ga. App. 300, 300 (682 SE2d 381) (2009). “Thus, the jury’s verdict will be upheld as long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case.” (Citation, punctuation and footnote omitted.) Jones v. State, 313 Ga. App. 590, 592 (1) (722 SE2d 202) (2012).

So viewed, the evidence shows that the victim left his home to drive to Home Depot on August 5, 2009. He was subsequently killed in an automobile collision, and Evans-Glodowski was charged with and convicted of first degree homicide by vehicle, second degree homicide by vehicle, reckless driving, and failing to maintain her lane. All convictions were merged into the first degree homicide by vehicle conviction.

Charita Holman and Tresa Johnson were passengers in a vehicle in the area shortly before the accident occurred. Holman testified that Evans-Glodowski’s vehicle was behind them in the left lane at a red light and then went “flying” past them in the right lane when the light turned green, that she was already “flying” down Bypass Road by the time they reached the stop sign at Bypass Road to turn right on Lower River Road, and was involved in the crash that occurred on a Lower River Road curve. Holman checked their vehicle’s speed twice and estimated Evans-Glodowski’s vehicle was going “at least 60” in speed limit zones of 45 miles per hour on Washington Street and 55 miles per hour on Bypass Road. Although she did not see the collision, Holman testified that Evans-Glodowski’s car was in the opposite lane of traffic after the collision, and she identified a picture of Evans-Glodowski’s vehicle as the car that passed them prior to the collision and as the car involved in the collision. Johnson testified that their vehicle was stopped at a red light with Evans-Glodowski’s vehicle behind them. When the light changed to green, Evans-Glodowski accelerated around them and “took off down the street... really fast” in front of them when the two lanes merged. When their vehicle reached the stop sign at Bypass Road, Evans-Glodowski’s vehicle “was just gone” due to its excessive speed. Approximately five minutes later, they came upon the accident on Lower River Road.

An individual who resides near the collision testified that the speed limit on Lower River Road in the area of the collision is 40 miles per hour, and warning signs prior to the curve indicate a 35 mile per hour speed limit at the curve where the collision occurred. The State’s accident reconstruction expert determined that the collision occurred in the northbound lane, the lane the victim was traveling in, and he estimated the speed of Evans-Glodowski’s vehicle prior to braking between 60 and 66 miles per hour based on a number of factors, including a 91.88 foot skid mark left on the road by Evans-Glodowski’s vehicle before colliding with the victim’s vehicle in his lane of travel.

Evans-Glodowski did not testify at trial, but relied on her own accident reconstruction expert, who opined that she was traveling 54-56 miles per hour prior to braking. According to this expert, the State’s expert relied on a skid mark that “could have been” a tire scuff instead.

1. Evans-Glodowski contends that the evidence presented at trial was not sufficient to support her convictions for first degree homicide by vehicle and reckless driving. Specifically, she asserts that the witnesses did not observe the collision and lost sight of the vehicle which passed them, so “they could not definitively say it was the same vehicle” involved in the collision. She also asserts that there is insufficient evidence that she was speeding. We disagree.

OCGA § 40-6-393 distinguishes between first degree and second degree vehicular homicide according to the severity of the underlying traffic offense. As we explained in Hayles v. State, 180 Ga. App. 860, 861 (3) (350 SE2d 793) (1986):

The act of causing the death of another by commission of a traffic violation is necessary to constitute the crime in either case. The law considers, however, that causing the death by commission of certain traffic violations is attended with more immediate and serious consequences than causing the death by commission of any other traffic offenses; and therefore it is, that a distinction is made in the punishment.

(Citation and punctuation omitted.) Under Georgia law,

[a]ny person who, without malice aforethought, causes the death of another person through the violation of subsection (a) of Code Section 40-6-163, Code Section 40-6-390 or 40-6-391, or subsection (a) of Code Section 40-6-395 commits the offense of homicide by vehicle in the first degree [.]

OCGA § 40-6-393 (a). Evans-Glodowski was charged withfirst degree homicide by vehicle through a violation of OCGA § 40-6-390, reckless driving. Reckless driving occurs when a person drives a vehicle “in reckless disregard for the safety of persons or property.” OCGA § 40-6-390 (a). “[S]peeding, unaccompanied by other traffic violations, can form the basis for a reckless driving conviction if the state presents evidence that a defendant was driving at an excessive rate of speed given the posted speed limit and the driving conditions existing at the time.” (Punctuation, footnote and emphasis omitted.) Fraser v. State, 263 Ga. App. 764, 765-766 (1) (589 SE2d 329) (2003); see also Smith v. State, 319 Ga. App. 164, 173 (7) (a) (735 SE2d 153) (2012).

Here, although the experts’ speed estimations at the time of braking varied from 54 miles per hour to 66 miles per hour, both calculations exceeded the 35 mile per hour speed limit sign posted for the curve where the collision occurred. And, Holman specifically testified that she looked at her vehicle’s speedometer twice to verify that the car which sped past them was driving at an excessive rate of speed, and she identified the car involved in the collision as the same car which sped past them earlier. Although both she and the other witness lost sight of the vehicle because of its speed, and gave no testimony regarding Evans-Glodowski’s speed upon collision, it is the province of the jury, and not this Court, to weigh the evidence and determine witness credibility, Collins v. State, 276 Ga. App. 358 (623 SE2d 192) (2005), and the testimony of a single witness is generally sufficient to establish a fact. OCGA § 24-14-8.

“[Wjhether a defendant’s manner of driving under the circumstances demonstrated a reckless disregard for the safety of others is a question that is reserved for the jury.” (Citation omitted.) Shy v. State, 309 Ga. App. 274, 278 (4) (709 SE2d 869) (2011). In this case, contrary to Evans-Glodowski’s argument, there was some evidence — independent of the collision itself— that Evans-Glodowski drove in a reckless manner just minutes prior to the collision. See Winston v. State, 270 Ga. App. 664, 666 (1) (a) (607 SE2d 147) (2004). Even though this was circumstantial evidence of her manner of driving at the time of the collision, such “evidence need not exclude every inference or hypothesis except the guilt of the accused, but only reasonable inferences and hypotheses, so as to justify the inference beyond a reasonable doubt, of guilt.” (Citation and punctuation omitted.) Shy, supra, 309 Ga. App. at 278 (4). Here, we conclude that the evidence was sufficient for the jury to infer beyond a reasonable doubt that Evans-Glodowski was driving her vehicle in a manner exhibiting a reckless disregard for the safety of others. OCGA §§ 40-6-393 (a); 40-6-390 (a); Shadix v. State, 179 Ga. App. 644, 645 (3) (347 SE2d 298) (1986).

2. Evans-Glodowski also asserts that the evidence presented at trial was not sufficient to support her convictions for second degree homicide by vehicle through a violation of OCGA § 40-6-48, failure to maintain lane. In support of this contention, she argues:

The evidence as to these charges was taken from the location of the vehicles and other observances made after the traffic accident. None of the witnesses testified to observing the Appellant cross over into the other lane of traffic, and there were differences of opinion among the witnesses as to things photographed, such as skid marks versus tire scuffs, leaving in question the validity of the conclusions drawn from the evidence gathered at the scene.

However, the fact that the evidence may be circumstantial “makes it no less powerful when the circumstances proved lead directly to the conclusion” that Evans-Glodowski failed to maintain her lane. Green v. State, 244 Ga. App. 565, 566 (1) (536 SE2d 240) (2000). The evidence is undisputed that the collision occurred outside Evans-Glodowski’s lane of travel, and no alternative explanation for the collision arises from the evidence. We conclude the evidence was sufficient for the jury to find beyond a reasonable doubt that Evans-Glodowski failed to maintain her lane of travel and, therefore, was guilty of second degree homicide by vehicle. OCGA §§ 40-6-393 (c), 40-6-48 (1); Camacho v. State, 292 Ga. App. 120, 123 (2) (663 SE2d 364) (2008) (evidence that defendant drove into pothole outside lane of travel sufficient to sustain conviction for failing to maintain lane).

3. Evans-Glodowski argues that the trial court erred in granting the State’s motion in limine to exclude habit testimony. The record shows that the State filed a motion in limine to exclude anticipated testimony of Evans-Glodowski’s method of driving. Evans-Glodowski made a proffer at trial that two family members who have been passengers in her car for a number of years were available to testify regarding her habit of driving around the particular curve involved in this case. The trial court found that such testimony was prejudicial and granted the State’s motion in limine.

“As a general rule, admission of evidence is a matter resting within the sound discretion of the trial court, and appellate courts will not disturb the exercise of that discretion absent evidence of its abuse.” (Citation and punctuation omitted.) Dailey v. State, 287 Ga. App. 706, 707 (1) (652 SE2d 599) (2007). In reviewing the grant or denial of a motion in limine, “this Court must construe the evidence most favorably to the upholding of the trial court’s findings and judgment, and we cannot reverse a trial court’s ruling absent an abuse of discretion.” (Citation, punctuation and footnote omitted.) Brown v. State, 316 Ga. App. 137, 139 (1) (728 SE2d 778) (2012). We find no such abuse here.

Because this case was tried after January 1, 2013, OCGA § 24-4-406 governs the use of habit evidence. According to that statute:

Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with such habit or routine practice.

The State argues, and we agree, that the testimony sought to be excluded was not habit evidence.

Neither this Court nor the Supreme Court have addressed OCGA § 24-4-406, but the Georgia General Assembly noted its intent to adopt the Federal Rules of Evidence: “It is the intent of the General Assembly to revise, modernize, and reenact the general laws of this state relating to evidence while adopting, in large measure, the Federal Rules of Evidence.” House Bill No. 24, Ga. L. 2011, p. 1, § 1. Thus, courts of this State have been encouraged to consider, in addition to United States Supreme Court decisions, decisions of the Eleventh Circuit Court of Appeals where conflicts exist among the various circuit courts, to interpret our new evidence statutes. Id.

With this in mind, we turn to federal law regarding habit evidence. OCGA § 24-4-406 closely tracks Federal Rule of Evidence 406, which provides:

Evidence of a person’s habit or an organization’s routine practice may be admitted to prove that on a particular occasion the person or organization acted in accordance with the habit or routine practice. The court may admit this evidence regardless of whether it is corroborated or whether there was an eyewitness.

According to federal law, habit “describes one’s regular response to a repeated specific situation.... [T]he offering party must establish the degree of specificity and frequency of uniform response that ensures more than a mere ‘tendency’ to act in a given manner, but rather, conduct that is ‘semi-automatic’ in nature.” (Citations and punctuation omitted.) Thompson v. Boggs, 33 F3d 847, 864 (III) (C) (1) (7th Cir. 1994). The conduct must occur so often that it “permits an inference of systematic conduct.” (Citation and punctuation omitted.) United States v. Aguirre, 368 Fed. Appx. 979, 990 (IV) (11th Cir. 2010).

In distinguishing inadmissible character evidence from admissible habit evidence, the Eleventh Circuit noted:

Character and habit are close akin. Character is a generalized description of one’s disposition, or one’s disposition in respect to a general trait, such as honesty, temperance, or peacefulness. “Habit,” in modern usage, both lay and psychological, is more specific. It describes one’s regular response to a repeated specific situation. If we speak of character for care, we think of the person’s tendency to act prudently in all the varying situations of life, in business, in family life, in handling automobiles, and in walking across the street. Ahabit, on the other hand, is the person’s regular practice of meeting a particular kind of situation with a specific type of conduct, such as the habit of going down a particular stairway two stairs at a time, or giving the hand signal for a left turn, or of alighting from railway cars while they are moving. The doing of the habitual acts may become semi-automatic.

(Citations and punctuation omitted.) Loughan v. Firestone Tire & Rubber Co., 749 F2d 1519, 1524 (11th Cir. 1985). “The federal courts generally have construed ‘habit’ narrowly, requiring that the conduct be almost automatic, a stimulus-response situation, and that the conduct be highly particularized and not involve general or complex behaviors such as drunkenness or reckless driving.” Paul S. Milich, Georgia Rules of Evidence, § 11:8, pp. 287-288, n. 6 (2014-2015 ed.).

Here, the State sought to exclude anticipated testimony regarding how Evans-Glodowski often drove on the curve where the deadly collision occurred. Such conduct is not the particular type of conduct that OCGA § 24-4-406 contemplates. How an individual drives, even on a specific curve, is subject to countless variables each time an individual faces the situation: whether the road is wet or dry, whether it is night or day, whether the driver is following another vehicle or driving with an open road, whether the driver is the sole occupant or carting passengers, whether the driver is running late or early, or whether the driver is preoccupied, happy or sad, just to name a few. Simply put, testimony that Evans-Glodowski drove in a certain manner around this particular curve on previous occasions is not evidence of habit. Thus, the trial court correctly excluded testimony that Evans-Glodowski was a prudent person who exercised due care on previous occasions.

This interpretation is also consistent with cases decided under former OCGA § 24-2-2, which discussed the inadmissibility of character evidence. Pursuant to that former law, “[t]he general character of the parties and especially their conduct in other transactions are irrelevant matter unless the nature of the action involves such character and renders necessary or proper the investigation of such conduct.” Former OCGA § 24-2-2. In interpreting that statute, we held that evidence of frequently engaged-in conduct will not rise to the level of habit unless it is of a nature that is fixed and uniform. See Battle v. Kovalski, 202 Ga. App. 471, 472 (2) (414 SE2d 700) (1992). In addition, “it has been held for many years that a person’s habit of using or failing to use due care in performing a particular task is not admissible to prove that he did or did not act negligently on a particular occasion.” Sams v. Gay, 161 Ga. App. 31, 32-33 (1) (288 SE2d 822) (1982); see also Leo v. Williams, 207 Ga. App. 321, 323 (428 SE2d 108) (1993) (trial court erred in permitting evidence of previous traffic violations to show habit of driving recklessly).

Decided January 14, 2016.

Jennifer F. Arndt, for appellant.

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

The trial court did not abuse its discretion in granting the State’s motion in limine to exclude testimony that, on prior occasions, Evans-Glodowski exercised care when driving around the curve where the collision occurred.

Judgment affirmed.

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

       Under Georgia law, “[a] vehicle shall he driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety[.]” OCGA § 40-6-48 (1).