text:
    A11A1843.
    ROSE v. THE STATE.
    (722 SE2d 898)
   MlKELL, Presiding Judge.

After a jury trial, Victor Rose was convicted of one count of child molestation and one count of statutory rape of J. W Rose was sentenced to serve 20 years in confinement based on the merged counts. On appeal, Rose argues that the trial court erred in finding, after a Jackson-Denno hearing, that incriminating statements he made to police on videotape were freely and voluntarily made. Discerning no error, we affirm.

“On appeal from a criminal conviction, the defendant no longer enjoys the presumption of innocence, and we view the evidence in the light most favorable to the jury’s verdict.” So viewed, the evidence shows that during July or August 2007, Rose, who was 32, had sex with his girlfriend’s 12-year-old daughter, J. W, who became pregnant. DNA testing from buccal swabs of both Rose and J. W, as well as testing of fetal tissue obtained when J. W had an abortion, showed a 99.9 percent probability that Rose was the father of J. W’s unborn child. When J. W.’s mother learned that her daughter was pregnant, on September 4, 2007, she called the police. Law enforcement officers were dispatched to J. W’s home and drove Rose, J. W, her mother, and J. W’s two minor siblings to the Douglas County Sheriffs Department because Rose and J. W’s family lacked other means of transport. No one was under arrest at the time.

Investigator Trent Wilson interviewed Rose at the sheriffs office and audio and video of the interview were recorded on a DVD. Wilson testified at the Jackson-Denno hearing, and the DVD shows, that Wilson told Rose he was not under arrest. In the DVD recording of the interview, after Wilson explained that he wanted to interview Rose because of the allegations that Rose had had sex with J. W, Rose immediately volunteered this information: “I was drunk. I was laid out. When I came through ... [J. W] was on me with her . . . blanket and she didn’t have no clothes on, so I pushed her off of me.” Wilson interrupted Rose, saying, “hold on” because “you done already said some stuff that incriminates you.” Wilson then read Rose his rights pursuant to Miranda u. Arizona. When Wilson asked Rose if he understood his rights, Rose said, “Yeah.” However, Rose did not sign a Miranda waiver form, and a few moments later said he did not understand part of the form. Rose asked Wilson, “Would you use this stuff to incriminate me?” Wilson responded, “This is your right to say ... I don’t have to talk to you, okay, without a lawyer. . . . What this says is, I’m willing to talk to you without a lawyer to explain myself.” Wilson also told Rose that if at any time Rose told him “I don’t want to talk to you no more, I need a lawyer,” Wilson would “leave [Rose] alone.” Rose did not ask for a lawyer, and in response to questions, Rose told Wilson that J. W. took his penis out, that she “bounced” on him three times, and that he pushed her off of him. Wilson asked Rose if the baby would be his, and Rose responded, “I guess it’s going to be mine.”

During the interview, Wilson’s gun was not drawn and Rose was not handcuffed. Rose also indicated that he could read, and read parts of the waiver form aloud. The interview lasted approximately an hour.

At the end of the interview, Wilson told Rose he would be booked and charged with child molestation. At the Jackson-Denno hearing prior to Rose’s trial, the trial court found that Rose was appropriately advised of his Miranda rights and that his statements to law enforcement were “freely, voluntarily, and knowingly made.”

Rose, in his sole enumeration, argues that “[t]he trial court erroneously found Appellant Rose’s statement to police to have been freely and voluntarily made.” Rose argues that his statements were not freely and voluntarily made because the investigator did not answer questions Rose asked about whether his statements would be used against him; however, the DVD shows that when the investigator read Rose his Miranda rights, the investigator used the appropriate Miranda language, in pertinent part: “Anything you say can and will be used against you in a court of law.” Rose also argues that his statements were not freely and voluntarily made because the investigator, rather than Rose, initiated further conversation. Rose further argues that those statements should not have been admitted into evidence because he did not knowingly waive his right against self-incrimination.

Under Georgia law, only voluntary incriminating statements are admissible against the accused at trial. When not made freely and voluntarily, a confession is presumed to be legally false and cannot be the underlying basis of a conviction. To make a confession admissible, it must have been made voluntarily, i.e., without being induced by another by the slightest hope of benefit or the remotest fear of injury. The State bears the burden of demonstrating voluntariness of a confession by a preponderance of the evidence, and unless clearly erroneous, a trial court’s factual and credibility determinations related to the admissibility of a confession will be upheld on appeal.

Rose does not allege, nor does the DVD of his interview with police or the investigator’s testimony at the Jackson-Denno hearing indicate, that Rose’s confession was in any way induced by the hope of benefit or fear of injury.

While the investigator did not directly respond to Rose’s questions about whether statements Rose made to police would be used against him, the investigator was not required to do so. “[A]n interrogating officer has no duty (or authority) to advise a suspect of the consequences of a particular admission; nor does the officer have an obligation under Miranda v. Arizona ... to advise a suspect against custodial interrogation without a lawyer.” It is sufficient if the interrogating officer fully advises the suspect of the specific rights and options prescribed in Miranda v. Arizona before questioning, allowing the suspect to select the options independently without “coercion, trickery or device of any kind.”

Rose’s enumeration also asserts error in the investigator’s continued questioning of Rose after Rose asked whether his statement would be used against him. Specifically, Rose asked the investigator, “You ain’t gonna hold it against me or nothing like that, right?” The investigator responded, “Did you have sex with the girl?” While an officer must stop questioning a suspect if a suspect has asserted his right to the assistance of counsel or indicated his wish to remain silent, Rose did neither, so his assertion of error fails. Further, even after the investigator stopped Rose from speaking, told him he had made incriminating statements already, and read him his Miranda rights, Rose continued to respond to questions. “A suspect’s failure to appreciate incriminating elements in a statement has little bearing on the knowing, intelligent and voluntary nature of the suspect’s waiver of the right to remain silent and the right to an attorney.”

Decided February 9, 2012.

Nor did the tried court err in admitting Rose’s statements. While it is true that “if the accused invoked his right to counsel, courts may admit his responses to further questioning only on finding that he (a) initiated further discussions with the police, and (b) knowingly and intelligently waived the right he had invoked[,]” because Rose never invoked his right to counsel, these protections do not adhere.

Finally, although Rose never signed the Miranda waiver form, we have held that “[t]he refusal to sign a waiver of rights form before speaking to police does not render the statements involuntary and inadmissible. . . . The refusal to sign a waiver form does not constitute an invocation of the right to remain silent or the right to counsel.” Further, if a person makes a statement to police after Miranda warnings are given and without invoking his right to remain silent or his right to an attorney, he “has in effect waived his rights.”

Given the evidence and the investigator’s testimony, the trial court was not required to conclude that Rose’s statements to the investigator were anything other than freely and voluntarily given. Nor can we say that the trial court’s decision to allow Rose’s statements into evidence was clearly erroneous. Further, if there had been any error in the admission of Rose’s statements, it was harmless given the overwhelming evidence of his guilt and the fact that his testimony at trial was consistent with his interview statements.

Judgment affirmed.

Mary Erickson, for appellant.

David McDade, District Attorney, James A. Dooley, Ryan R. Leonard, Assistant District Attorneys, for appellee.

        Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908) (1964).

       (Footnote omitted.) Burdette v. State, 251 Ga. App. 30 (553 SE2d 340) (2001).

       384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966).

       (Punctuation and footnote omitted; emphasis supplied.) Brewer v. State, 312 Ga. App. 397, 398 (718 SE2d 612) (2011); OCGA § 24-3-50.

       (Citations omitted.) Williams v. State, 214 Ga. App. 423, 424 (447 SE2d 716) (1994).

       Supra.

        Williams, supra.

        Miranda, supra at 444-445.

       While Rose never asserts that he requested counsel, his appellate brief references an exchange in which he asked the investigator what he would do regarding the waiver form. The investigator responded, “If it was me and I didn’t do nothing . . . then I would sign it. . . . But if I did something and I needed to worry about it, and I feel like I don’t know how to answer the question or whatever, and I know I done something wrong, I might ask for my lawyer.” Neither the question nor the circumstances surrounding it suggest a request for an attorney. See Crawford v. State, 288 Ga. 425, 428 (2) (c) (704 SE2d 772) (2011).

       (Citation omitted.) Williams, supra.

       (Emphasis supplied.) Byrd v. State, 261 Ga. 202, 203 (2) (403 SE2d 38) (1991), citing Smith v. Illinois, 469 U. S. 91 (105 SC 490, 83 LE2d 488) (1984).

       (Citation omitted.) Aldridge v. State, 258 Ga. 75, 76 (3) (365 SE2d 111) (1988) (overruled on other grounds by Hayes v. State, 261 Ga. 439, 447-448 (1) (405 SE2d 660) (1991) (Benham, J., concurring specially)).

       Id.

       See Robinson v. State, 272 Ga. 752, 755 (5) (533 SE2d 718) (2000); Pruitt v. State, 176 Ga. App. 317, 320 (3) (335 SE2d 724) (1985).


source: Caselaw Access Project

author: BARNES, Presiding Judge.

license: Public Domain

text:
    A11A2118.
    SALAZAR v. THE STATE.
    (722 SE2d 902)
   BARNES, Presiding Judge.

Cristina Salazar was convicted of aggravated stalking and sentenced to eight years on probation. She appeals, contending that the trial court erred in restricting her cross-examination of the victim, her husband, regarding his immigration status, which she argues would have shown his bias against her. For the reasons that follow, we affirm.

We view the evidence on appeal in the light most favorable to the verdict, and we no longer presume the defendant is innocent. Brown v. State, 293 Ga. App. 633 (667 SE2d 899) (2008). We do not weigh the evidence or decide the witnesses’ credibility, but only determine if the evidence is sufficient to sustain the convictions. Id. We construe the evidence and all reasonable inferences from the evidence most strongly in favor of the jury’s verdict. Id.

Viewed in that light, the evidence at trial established that Salazar left her husband and two children in December 2008 because she “found a new person in her life,” but wanted to return to the house a few months later. Her husband testified that he did not feel comfortable because Salazar “brought these guys to [the] house” even though he asked her not to do so. When he asked her to leave, she refused, responding that she was still his wife and that there was “legally nothing [he could] do about it.” She became upset when the husband said he was going to move to a new place, and at 3:00 one morning he awoke to find her “strolling” around his bed with a knife in her hand, threatening to kill him because he was going to move. When he grabbed her hands to make her drop the knife she tried to bite him, then threatened to kill herself if he called the police. He did not want to get her into trouble so he did not call, and Salazar decided to leave the house.

Two weeks later, Salazar came to the house and retrieved the couple’s two children, who were nine and thirteen at the time of the incident. She asked her husband to bring her money so she could buy the children food, but when he offered to send money instead, she reported to the Department of Family and Children Services that the children had not eaten for days and that he had abused her physically. An investigation uncovered no evidence to support Salazar’s allegations. Her husband then obtained a 30-day ex parte family violence protective order against Salazar, followed by a 12-month family violence temporary protective order (“TPO”) granted in August 2009.

After the TPO was in place, Salazar repeatedly called her husband from different telephone numbers, sometimes upset or “really mad.” He asked her to stop because her actions were “going to get [her] into trouble” and would involve their children, but she continued to call and threatened to obtain a gun and kill her husband and herself. In September 2009, Salazar approached him and a friend in a theater parking lot and began yelling at him, then got into her car and struck the passenger side of her husband’s car three times. She pulled in front of his car to block it, but then drove to another part of the parking lot after he called the police. The police arrived and arrested Salazar, who had a copy of the TPO with her, but even after she got out of jail she continued calling her husband repeatedly from different telephone numbers. She came into his house and took some of his clothes, which she returned the next day after he called the police again.

1. Although Salazar did not challenge the sufficiency of the evidence against her, the evidence as outlined above was sufficient for a rational trier of fact to find her guilty beyond a reasonable doubt of aggravated stalking. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Salazar contends that the trial court committed harmful error in denying her request to cross-examine the victim regarding his immigration status. In November 2009, a month after the incident in the parking lot, the victim received notice that his application for lawful resident status in the United States had been denied because he had prior convictions for simple battery domestic violence against Salazar. At the time of the trial, the victim was trying to change his immigration status under the federal “Violence Against Women Act” (“VAWA”) by asserting that he was a victim of domestic violence by Salazar. The trial court sustained the State’s objections to some of Salazar’s questions on cross-examination of the victim related to the reason his application was denied and whether a conviction against Salazar would bolster the victim’s attempt to adjust his immigration status, noting that the victim’s application was denied after the incident in the parking lot. Salazar argues on appeal that she should have been allowed to ask the victim about the reason his application was denied to show he was biased against Salazar.

“Within carefully protected legal parameters, the scope of cross-examination lies within the sound discretion of the trial court; this discretion will not be disturbed by an appellate court absent manifest abuse.” State v. Battaglia, 221 Ga. App. 283, 284-285 (1) (470 SE2d 755) (1996). The trial court in this case allowed Salazar to cross-examine the victim and elicit the following information: that around the time of the parking lot incident he received information from federal immigration officials that they were denying his application to adjust his immigration status; that since then, he had reapplied in order to “fix” his immigration status; that he reapplied under the VAWA about a month before trial; and that under that act, he had to show that he is or has been the victim of domestic violence. Accordingly, Salazar had sufficient evidence to argue to the jury that the victim was lying to improve his immigration status.

Decided February 9, 2012.

Adam S. Levin, for appellant.

Lee Darragh, District Attorney, Shiv Sachdeva, Assistant District Attorney, for appellee.

Salazar also argues that she should have been able to ask the victim about the fact that his application to alter his immigration status had been denied because of his conviction ten years before of simple battery against Salazar. But prior convictions are certainly prejudicial, and the court had to balance that prejudice against the possible value of admitting the evidence to show that the victim was biased and fabricating the current charges, over ten years later, in order to affect his then-pending immigration matter. We cannot say the trial court abused its discretion in doing so.

Further,

the immigration status of the victim[ ] was not an issue relevant to the matter being tried; i.e., whether [Salazar] committed the crimes charged. Sandoval v. State, 264 Ga. 199 (2) (a) (442 SE2d 746) (1994); Lemons v. State, 270 Ga. App. 743, 749-750 (4) (608 SE2d 15) (2004). The trial court did not abuse its discretion in limiting the scope of [Salazar]’s cross-examination of the testifying victim[ ].

(Footnote omitted.) Junior v. State, 282 Ga. 689, 691 (2) (653 SE2d 481) (2007). See Smith v. State, 277 Ga. 213, 217 (7) (586 SE2d 639) (2003).

Judgment affirmed.

Adams and Blackwell, JJ., concur.


author: MlKELL, Presiding Judge.

text:
    A11A2341.
    ADAMS v. THE STATE.
    (722 SE2d 904)
   MlKELL, Presiding Judge.

Convicted by a jury of theft by taking, Roy William Adams III appeals from the denial of his amended motion for new trial, contending that the circumstantial evidence used to convict him did not exclude every reasonable hypothesis save his guilt.

On appeal from a criminal conviction, the evidence is viewed in the light most favorable to the verdict, and the defendant no longer enjoys the presumption of innocence. We do not weigh the evidence or determine witness credibility, but only determine if the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offense beyond a reasonable doubt.

So viewed, the evidence was that, on December 15, 2006, Javier Ruiz owned and operated Ruiz Quality Motors, a used car dealership, in Gainesville. On that day, Adams arrived at the lot in a car driven by an unidentified person. Adams looked at several vehicles and then decided on a 1997 white Ford Expedition, with a radio and television. Adams wanted to test drive the vehicle and, although Ruiz usually had one of his employees accompany buyers on test drives, he was short handed that day and allowed Adams to drive it alone. Ruiz made a copy of Adams’s driver’s license and wrote down the phone number Adams supplied.

Ruiz and Adams had agreed on a price for the Expedition and Adams told Ruiz that he was going to drive to a nearby local bank to withdraw the money to complete the purchase. Adams drove the Expedition off the lot and, shortly thereafter, the person who brought him also drove off, which made Ruiz suspicious. When Adams did not return within a reasonable time, Ruiz drove to the bank, but found no sign of Adams, the Expedition, or the other car and driver. Ruiz then reported the vehicle stolen. Ruiz never heard from Adams again regarding the Expedition.

Hall County Sheriffs Investigator Paul Payne obtained an arrest warrant for Adams on January 4, 2007, some three weeks after the vehicle went missing, and interviewed Adams, after warning him of his rights. Payne asked if Adams recalled going to Ruiz Quality Motors and there was a 25-second pause. After further questioning, Adams said “I don’t want any more trouble, if I could just help you out on some other things.” Also, when asked about the Expedition, Adams asked “you haven’t found it yet?” Adams then told Payne that the vehicle was in the Quality Foods parking lot in Cornelia, about 20 minutes from Gainesville. Adams said he had been driving the Expedition when it “ran hot” and he parked it. He told Payne that he intended to return it to Ruiz.

Decided February 9, 2012.

Adam S. Levin, for appellant.

The Expedition was not damaged when officers located it, except that the television and radio were missing. The magnetic dealer tag was still attached to the rear of the vehicle. Ruiz went to Cornelia, retrieved the Expedition, and drove it back to Gainesville without encountering any mechanical problems or having to add any fluids or water to it.

Adams argues that the evidence was insufficient pursuant to OCGA § 24-4-6, which provides that “[t]o warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.” Here, however, the evidence was not circumstantial. Ruiz provided direct evidence that Adams drove the Expedition off his lot, apparently under false pretenses, because when Ruiz went to the bank Adams told him he was going to, there was no evidence of him, the Expedition, or the car in which he had arrived at the lot. Further, Adams admitted driving the car off and not returning it, although he proffered an explanation.

Further, even considering the evidence of Adams’s intentions to be solely circumstantial, the jury was authorized to reject Adams’s statement that he intended to return the Expedition. The evidence was sufficient to authorize a rational trier of fact to find Adams guilty of theft by taking of the Expedition.

Judgment affirmed.

Dillard and Boggs, JJ., concur.

Lee Darragh, District Attorney, Lindsay H. Burton, Assistant District Attorney, for appellee.

       Under OCGA § 16-8-2, “[a] person commits the offense of theft by taking when he ... , being in lawful possession thereof, unlawfully appropriates any property of another with the intention of depriving him of the property, regardless of the manner in which the property is taken or appropriated.”

       (Footnotes omitted.) Noble v. State, 282 Ga. App. 311-312 (638 SE2d 444) (2006).

        Pitmon v. State, 265 Ga. App. 655, 656-657 (1) (595 SE2d 360) (2004); cf. Walton v. State, 291 Ga. App. 736, 737-738 (1) (662 SE2d 820) (2008); Wilson v. State, 230 Ga. App. 271, 273 (2) (495 SE2d 894) (1998) (Whether defendant’s explanation was reasonable was inherently a question for the jury. “This of necessity is so, for we have no legal yardstick by which we can ordinarily determine what in a given case is a reasonable hypothesis, save the opinion of twelve upright and intelligent jurors.”) (citation and punctuation omitted).


text:
    A11A2428.
    ZELLARS v. THE STATE.
    (723 SE2d 319)
   MlKELL, Presiding Judge.

Barney Zellars was found not guilty by reason of insanity of aggravated assault and possession of a firearm during the commission of a crime on June 21, 2000, and he was committed to the Department of Human Resources (the Department) for involuntary treatment of paranoid schizophrenia. On September 28, 2000, another hearing was held to determine if Zellars met inpatient civil commitment criteria and he was again committed to the Department. On November 13, 2000, an arrest order for Zellars was entered reflecting that he had escaped from the Georgia Regional Hospital in Augusta. Following a hearing on June 3, 2004, the Department’s request that Zellars be conditionally released was denied, the trial court finding that Zellars continued to meet the criteria for involuntary commitment and treatment. Following another hearing on September 6, 2005, the request of the Department for a conditional release plan for Zellars was approved. Although the order approving the plan states that a copy of it “is attached hereto and incorporated herein by reference,” no copy of the plan is contained in the record before us.

By petition of February 4, 2009, Zellars requested release from the order finding him not guilty by reason of insanity, contending that he no longer met the requirement for inpatient commitment because “his mental illness is currently in remission.” By order entered January 12, 2010, the trial court found that

[t]he . . . social worker and psychiatrist from Georgia Regional monitoring [Zellars] and his progress stated that he has the same medical diagnosis and is continuing treatment through prescription medication. [Zellars] is on a strict schedule as far as taking medication. If granted a full release, there will be no immediate recourse if [he] refuses to take his medication and becomes unstable.

By petition of June 14, 2010, Zellars again requested release, contending that he no longer met the requirements for inpatient commitment, again stating that his “mental illness is currently in remission.” Following a hearing, the trial court again denied Zellars’ request for a full release and continued him on his conditional release plan.

Zellars appeals, contending that the trial court erred (1) in abdicating its authority in failing to discharge Zellars from commitment “after he successfully completed all of the requirements of his conditional release plan, during his period of conditional release”; (2) in concluding that Zellars failed to overcome the rebuttable presumption, by a preponderance of evidence, that he no longer requires inpatient involuntary treatment; and (3) “in abdicating its authority when it failed to consider all of the credible and relevant expert and other evidence presented at the hearing and contained in the trial record.”

The appropriate standard of review is whether, “after reviewing the evidence in the light most favorable to the state, a rational trier of fact could have found that the defendant failed to prove by a preponderance of the evidence that he was sane.”

1. Regarding Zellars’ first enumeration, as stated above, the conditional release plan is not contained in the record before us. “A party alleging error carries the burden of showing it affirmatively by the record, and when that burden is not met, the judgment is assumed to be correct and will be affirmed.”

2. In his second and third enumerations of error, Zellars contends that the trial court erred in concluding that he “failed to overcome the rebuttable presumption, by a preponderance of the evidence, that he no longer requires inpatient involuntary treatment” and that the trial court erred in abdicating its authority “when it failed to consider all of the credible and relevant expert and other evidence presented at the hearing and contained in the trial record.” These two enumerations are considered together since they both require consideration of the evidence presented to the trial court.

In the statement of facts, Zellars states that “[hjearings were held on August 17, 2010, and March 25, 2011. During the full release hearings, evidence was presented by Mr. Zellars, which included his testimony from treating psychiatrists at each of these hearings.” (Emphasis supplied.)

A review of the record before us, however, reveals that there is no transcript of the August 17, 2010 hearing contained therein, only that of March 25, 2011. As the party alleging error, it is Zellars’ burden to show error by the record. Because we do not have all of the evidence presented to the trial court below, we must assume that the judgment below was correct.

Decided February 9, 2012.

Alicia H. Thomas, for appellant.

R. Ashley Wright, District Attorney, Charles R. Sheppard, Assistant District Attorney, for appellee.

Judgment affirmed.

Dillard and Boggs, JJ., concur.

       (Citation and punctuation omitted.) Nagel v. State, 262 Ga. 888, 892 (2) (b) (427 SE2d 490) (1993).

       (Footnote omitted.) Boles v. Lee, 270 Ga. 454, 455 (1) (511 SE2d 177) (1999).

       See, e.g., Brown v. Frachiseur, 247 Ga. 463, 464-465 (277 SE2d 16) (1981) (holding that an appellate court may affirm on the ground that “the appellant failed to present... a record sufficient to enable [the court] to determine whether the trial court has committed reversible error”) (citation omitted); Bennett v. Executive Benefits, Inc., 210 Ga. App. 429 (436 SE2d 544) (1993) (holding that appellant has the burden of showing error by the record “and that where the proof necessary for determination of the issues on appeal is omitted from the record, an appellate court must assume that the judgment below was correct and affirm”) (citations omitted).

       Id.; Bennett, supra.


author: MCFADDEN, Judge.

text:
    A11A2354.
    WHITLEY v. WHITE et al.
    (723 SE2d 5)
    Decided January 25, 2012 —
    Pro se brief. Meriwether Superior Court. Before Judge Baldwin.
    Roger Whitley, pro se.

   MCFADDEN, Judge.

Appellant Roger Whitley has filed a pro se brief that contains no citations to the record or transcript, no enumeration of error, no argument or citation of authorities, and no statement of the applicable standard of review. See Court of Appeals Rule 25 (a). Given the deficiencies of the appellant’s brief, we find no discernible claim of error to review. See Court of Appeals Rule 25 (c) (2) (i); Garrett v. Hanes, 273 Ga. App. 894, 896, n. 13 (616 SE2d 202) (2005). Of course, “[i]t is not the function of this court to cull the record on behalf of a party in search of instances of error. The burden is upon the party alleging error to show it affirmatively in the record.” (Punctuation omitted.) Cronin v. Homesales, Inc., 296 Ga. App. 293, 294 (674 SE2d 35) (2009). Because the appellant has failed to meet this burden, he has waived appellate review, and there is nothing for us to consider. See Slmbey v. State, 288 Ga. App. 717, 718 (655 SE2d 223) (2007).

Judgment affirmed.

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

Trammell Camp, Robert T. Trammell, Jr., Tyron C. Elliott, for appellees.


text:
    A10A0945.
    TINDELL v. THE STATE.
    (722 SE2d 921)
   BARNES, Presiding Judge.

In Hedden v. State, 288 Ga. 871 (708 SE2d 287) (2011), our Supreme Court reversed this Court’s decision in Hedden v. State, 301 Ga. App. 854 (690 SE2d 203) (2010), and held that the trial court erred in determining that it was without discretion to deviate from the minimum sentencing requirements of OCGA § 17-10-6.2 (b). The trial court had found that Hedden’s possession of a photographic image of a victim being restrained precluded a downward departure from the mandatory minimum sentencing under OCGA § 17-10-6.2 (c) (1) (F). Hedden, 301 Ga. App. at 854-855.

Per OCGA § 17-10-6.2 (c) (1), “the court may deviate from the mandatory minimum sentence as set forth in subsection (b) of this Code section, or any portion thereof, provided that” several factors exist, including that “the victim was not physically restrained during the commission of the offense.” OCGA § 17-10-6.2 (c) (1) (F). The Supreme Court held that, despite possessing images depicting such behavior, because there was no evidence showing that “the child victims in the images were physically restrained at the same time that the appellants possessed the offending material,” OCGA § 17-10-6.2 (c) (1) (F) did not exclude the trial court from having the sentencing discretion set forth in OCGA § 17-10-6.2 (c) (1). Hedden, 288 Ga. at 876.

As a result of its holding in Hedden, the Supreme Court granted the petition for certiorari in this case and remanded it to this Court for reconsideration. Tindell had entered a plea of guilty to several counts of sexual exploitation of children based on his knowing possession of digital video and digital still images of minors engaged in sexually explicit conduct. Id. In one of the videos, the basis of Count 1 of the indictment, the child was restrained and bound during the sexual acts. Id. Tindell entered a negotiated plea of guilty with a recommendation of fifteen years to serve five, the balance to be served on probation. The trial court ruled that the child shown bound in the video related to Count 1 was a restrained victim as contemplated by OCGA § 17-10-6.2 (c) (1) (F), and thus it could not depart from the mandatory minimum sentencing of OCGA § 17-10-6.2 (b).

In acknowledging it as precedent and adhering to the reasoning of this Court’s decision in Hedden, 301 Ga. App. 854, we affirmed the trial court and found that under OCGA § 17-10-6.2 (c) (1) (F), the trial court was foreclosed from deviating from the mandatory minimum sentence because the victim was bound or restrained during one of the sexual acts. We further held that it was immaterial that Tindell had not bound or restrained the child himself because the purpose of the statute was to protect the children who are victimized by such means. Id. at 856.

Decided February 13, 2012.

H. Maddox Kilgore, for appellant.

Garry T. Moss, District Attorney, Lara A. Snow, Cliff Head, Assistant District Attorneys, for appellee.

Based upon our Supreme Court’s recent decision in Hedden, however, we now conclude that the trial court erroneously failed to exercise its discretion to determine whether Tindell was entitled to a downward departure from the mandatory minimum sentence per OCGA § 17-10-6.2 (c) (1). Accordingly, Tindell’s sentence is vacated, and this case is remanded for resentencing in light of the Supreme Court’s decision in Hedden.

Judgment affirmed, sentence vacated and case remanded with direction.

Blackwell and Dillard, JJ., concur.


author: Blackwell, Judge.

text:
    A10A1767.
    DUVALL v. THE STATE.
    (722 SE2d 923)
   Blackwell, Judge.

Our earlier decision in this case, Duvall v. State, 305 Ga. App. 545 (699 SE2d 761) (2010), was reversed by the Supreme Court of Georgia, Duvall v. State, 289 Ga. 540 (712 SE2d 850) (2011). We now vacate our earlier decision, and we adopt the opinion and decision of the Supreme Court as our own. We also adopt as our own that portion of Division 3 of our earlier decision in which we held that the admission of certain similar transaction evidence was error. We reverse the judgment below and remand for a new trial, consistent with the opinion of the Supreme Court and with this opinion.

Judgment reversed and case remanded.

Barnes, E J., and Dillard, J., concur.

DeCided February 13, 2012.

Teresa L. Smith, James C. Bonner, Jr., for appellant.

W. Kendall Wynne, Jr., District Attorney, T. Buckley Levins, Assistant District Attorney, for appellee.

       The Supreme Court did not address the issues decided in Division 3 of our earlier decision.


text:
    A11A1728.
    A11A1729.
    SHOTWELL v. FILIP. FILIP v. FILIP.
    (722 SE2d 906)
   BARNES, Presiding Judge.

In these companion appeals, the biological mother and the maternal grandmother of the minor child J. F. appeal the trial court’s order modifying a previous custody award and granting primary physical custody of the child to the biological father. Discerning no abuse of discretion by the trial court, we affirm.

On appeal from a child custody decision, we view the evidence in the light most favorable to upholding the trial court’s order. Lynch v. Horton, 302 Ga. App. 597 (692 SE2d 34) (2010). So viewed, the record shows that the biological parents of J. F. married in August 1998 and resided in Georgia. J. F. was born on November 11, 2000, and he lived with both parents until their separation in March 2002, when he began living solely with his mother.

The parents divorced in July 2002. Under the parties’ settlement agreement incorporated into the final judgment and decree, the parents were granted joint legal custody of J. E, while the mother was granted primary physical custody. The father was granted weekend visitation with the child. The settlement agreement also provided that each parent was “entitled to complete, detailed information from any teacher or school giving instruction to the child . . . and [was] to be furnished with copies of all reports given by them to the other parent.” It further provided that each parent was “entitled to complete detailed information from any pediatrician, general physician, dentist, consultant, or other specialist attending the child, for any reason whatsoever, and [was] to be furnished with copies of reports given by the latter, or any of them, to the other parent.” Similarly, each parent was to “promptly notify the other in the event of any illness, accident, or other matter seriously affecting the child.”

In April 2004, the mother moved to Oklahoma for work-related reasons and leased a small apartment. When she moved, the mother left J. F. in the care and custody of the maternal grandmother in Missouri, whose home was about five hours away from the mother’s new home in Oklahoma. The mother assured the father that the child would come and live with her once she got settled in Oklahoma. Following the mother’s decision to move, the father continued to reside in Georgia but visited J. F. in Missouri as his job permitted.

In 2005, the mother purchased a home in Missouri with the intention of moving there, securing employment, and having J. F. live with her. In August of that same year, the father filed a petition for contempt against the mother, contending that she had interfered with his visitation rights by moving J. F. to a different state. However, the petition was dismissed after the parties entered into a consent order in 2006 modifying the father’s visitation rights. Under the modified visitation schedule, the father was awarded yearly visitation in the form of monthly and quarterly visits with the child, plus four weeks of extended visitation in July and one week in December. The father routinely exercised his visitation rights under the consent order, except for the monthly weekend visits, which were not feasible because of his work schedule and financial considerations.

The mother ultimately was unable to secure a new job in Missouri and instead continued to live in Oklahoma. Although the mother had assured the father that J. F. ultimately would live with her, the child continued to reside with his grandmother. Each year, unbeknownst to the father, the mother executed a power of attorney in loco parentis in favor of the grandmother, giving the grandmother temporary physical custody and control over J. F. The grandmother served as the day-to-day caregiver for J. E, with the mother visiting the child about three weekends per month and on holidays. The grandmother was involved in and took responsibility for J. F.’s medical appointments, schooling, and extracurricular sports activities. Although the father paid child support to the mother, the mother did not pay any set amount to the grandmother for J. F.’s expenses, and she told the father to communicate solely with the grandmother regarding the child and visitation issues. The mother also told the father to use the grandmother’s address in Missouri as the contact address for any correspondence associated with the child.

Once J. F. started school in 2006, neither the mother nor the grandmother provided the father with any of his report cards or other student records. Consequently, in August 2007, the father called J. F.’s school and asked for the school to send him copies of the child’s report cards. Upon learning that the father had made direct contact with J. F.’s school, the grandmother became upset and indicated to the father that he should have asked her for the school records. Thereafter, the situation between the father and the grandmother “took a turn for the worse,” and she began limiting some of the father’s visitation with the child, while as before she had been “working with [him] better as far as the visits.”

In addition to limiting some of his visitation, the mother and the grandmother enrolled J. F. in summer school without the knowledge of the father; failed to provide the father with the child’s medical records or timely include the father’s name on the requisite federal forms so that he could have direct access to the records; and failed to discuss with the father the decision to have braces put on J. F.’s teeth. The mother and the grandmother also failed to inform or discuss with the father the fact that J. F. was to be enrolled in therapy to address issues he was having with anxiety.

Despite the mother’s assurances, J. F. never came to live with her, and in October 2009, the father filed a petition for change of custody and child support, contending that there had been a material change in condition affecting the welfare of the child. Among other things, the father alleged that the mother had voluntarily surrendered custody of the child to the grandmother by living in a different state from the child for the past several years; that his visitation rights had been improperly limited following the 2007 school records incident; and that the mother and the grandmother exhibited an ongoing pattern of excluding him from major decisions regarding the child. The mother answered, denying that there had been a material change in condition or that the best interest of the child would be served by transferring primary physical custody to the father. Additionally, the grandmother filed a motion to intervene in the action to oppose the father’s petition, and the trial court granted her motion.

Following an evidentiary hearing, the trial court granted the father’s petition and awarded him primary physical custody of J. E, with visitation rights afforded to the mother and the grandmother. The trial court also ordered the mother to pay child support to the father. In justifying the transfer in custody, the trial court found that there had been a material change in condition because, among other things, the mother had voluntarily surrendered her right of physical custody and control over J. F. to the grandmother, the father’s visits with the child had been limited by the grandmother following the 2007 school records incident, and the father had not been included in or provided with information regarding major decisions affecting the child. The court further found that it would be in the best interest of the child for primary physical custody to be transferred to the father, given that the mother had abdicated her role as a parent to the grandmother. The mother and the grandmother now appeal from the trial court’s ruling.

A petition to change child custody should be granted only if the trial court finds that there has been a material change of condition affecting the welfare of the child since the last custody award. If there has been such a change, then the court should base its new custody decision on the best interest of the child. If the record contains any reasonable evidence to support the trial judge’s decision on a petition to change custody, it will be affirmed on appeal.

(Footnote omitted.) In the Interest of T. S., 300 Ga. App. 788, 790 (2) (686 SE2d 402) (2009). In evaluating the record, “we are mindful that the Solomonic task of assigning the custody of children lies squarely upon the shoulders of the judge who can see and hear the parties and their witnesses, observe their demeanor and attitudes, and assess their credibility.” (Citation and punctuation omitted.) Lynch, 302 Ga. App. at 601 (4). Guided by these principles, we turn to the contentions in this appeal.

1. Material Change in Condition. The mother and the grandmother contend that the trial court abused its discretion in awarding custody of J. F. to the father because the evidence failed to show a material change in condition affecting the child’s welfare since the time of the “last custody award” entered in this case. They maintain that the “last custody award” was the 2006 consent order modifying the father’s visitation, and they assert that there has been no material change in condition since that time, given that the mother had already moved to Oklahoma and left the child with the grandmother in Missouri when the consent order was entered.

We are unpersuaded by the mother and the grandmother’s contention, even if we assume for the sake of argument that the material change in condition had to arise after the entry of the 2006 consent order, which was entered in the context of a separate contempt action and only modified the father’s visitation rights. Under Georgia law, the voluntary surrender of physical custody over a child by the custodial parent can constitute a material change of condition. See Lodge v. Lodge, 230 Ga. 652 (198 SE2d 861) (1973); Wilt v. Wilt, 229 Ga. 658 (193 SE2d 833) (1972). But the determination of whether there has been a voluntary surrender of physical custody affecting the child’s welfare, or a more temporary relinquishment of custody not rising to the level of a material change in condition, is a factual question that falls within the trial court’s broad discretion in these matters. See Redmond v. Walters, 229 Ga. 713 (194 SE2d 254) (1972); Thompson v. Thompson, 153 Ga. App. 80, 80-81 (1) (264 SE2d 558) (1980).

Here, there was evidence at the hearing that after the mother moved to Oklahoma in April 2004 and left J. F. with his grandmother in Missouri, she repeatedly assured the father that the situation was temporary and that J. F. would eventually live with her. By the time of the 2006 consent order, less than two years had passed since the mother’s move to Oklahoma, and the mother had recently purchased a home in Missouri and tried to secure new employment there. However, by the time of the father’s petition to change custody, an additional three years had passed, the mother remained in Oklahoma in the same job, and the mother testified at the hearing that J. F. had become “established” in Missouri and that she worried about removing him from that environment now that so much time had passed. Under these circumstances, there was evidence that what had begun as a temporary custodial arrangement in April 2004, and arguably could still be construed as such when the 2006 consent order was entered, had evolved into a permanent custodial arrangement by the time the father filed his petition for change in custody in 2009. Accordingly, we cannot say that the trial court abused its discretion in finding that the mother had voluntarily surrendered physical custody and control over J. F. to the grandmother, resulting in a material change in condition. See Lodge, 230 Ga. 652; Wilt, 229 Ga. 658.

Furthermore, there was evidence that after the entry of the 2006 consent order, the grandmother limited some of the father’s visitation with J. F. in retaliation for the 2007 school records incident; that the mother and the grandmother exhibited an ongoing pattern of excluding the father from important medical decisions affecting the child; and that the mother and the grandmother failed to notify the father whenever the mother executed a new power of attorney in loco parentis in favor of the grandmother. These combined, additional circumstances also supported the trial court’s finding of a material change in condition. See, e.g., Foltz v. Foltz, 238 Ga. 193, 194 (1) (232 SE2d 66) (1977) (parent “cannot. . . contract away the custody of his child to a third party without the other parent’s consent”); Jones v. Kimes, 287 Ga. App. 526, 528 (652 SE2d 171) (2007) (interference with a noncustodial parent’s right to visitation can rise to the level of a material change of condition).

2. Best Interest of the Child. The mother and the grandmother also contend that the trial court abused its discretion in finding that it was in the best interest of J. F. to grant primary physical custody to the father rather than have the child continue to live in Missouri with the grandmother. In this regard, they argue that because the father was unemployed at the time of the hearing and allegedly “ha[d] not seen the minor child for the past 6 years,” it was not in the best interest of the child to transfer primary physical custody to the father.

Their argument is without merit. While the father was unemployed at the time of the hearing, there was evidence that the father had been gainfully employed without a lapse of employment until April 2010, and that he was currently enrolled in classes at a technical college and had been applying for jobs with potential employers. There also was some evidence that the father’s current wife maintained suitable employment and made adequate income for the family to provide for J. F.’s necessary basic care, particularly when combined with child support from the mother. See OCGA § 19-9-3 (a) (3) (E) (noting that “consideration [should be] made for the potential payment of child support by the other parent” when assessing the capacity and disposition of a parent to provide for the child’s necessary basic care).

Furthermore, the mother and the grandmother’s assertion that the father has not seen J. F. in the past six years is entirely unsupported by the record. The evidence showed that the father routinely exercised his visitation rights up through the time of the present litigation, except for the monthly weekend visits, which were not feasible because of his work schedule and financial considerations.

The assertions of the mother and the grandmother notwithstanding, the trial court acted within its discretion when it found that awarding primary physical custody to the father was in the best interest of J. F. As previously noted, there was evidence that the mother had voluntarily surrendered her right of physical custody and control over J. F. to the grandmother, and where the custodial parent voluntarily surrenders her custodial rights to a third party, a prima facie right of custody is vested in the noncustodial parent. See Hansen v. Carpenter, 211 Ga. 785, 786 (2) (89 SE2d 196) (1955); Sessions v. Oliver, 204 Ga. 425, 433 (2) (50 SE2d 54) (1948). There also is a rebuttable presumption under Georgia law that it is in the best interest of the child to award custody to a parent rather than a third party. See Galtieri v. O’Dell, 295 Ga. App. 797, 798 (673 SE2d 300) (2009).

In light of this precedent favoring an award of custody to the father, the trial court committed no error. The father presented evidence from a licensed psychologist who opined that the father is a fit and qualified parent to have primary physical custody of J. F. and will be able to meet the needs of the child in adjusting to a new home. Additionally, a licensed professional counselor who had conducted therapy sessions with J. F. and with the father testified that she did not have any concerns with the father’s potential ability to parent the child, and she indicated that she believed it was possible for the child to positively adjust to a change in physical custody. Under these circumstances, the trial court committed no error in finding that it would be in the child’s best interest to live with his father rather than his grandmother. As we have emphasized,

Decided February 13, 2012.

Adrian L. Patrick, for appellant.

Eric D. Dell, Curtis J. Dickinson, for appellee.

[i]t is not our function to second-guess the trial court in cases such as this, which turn largely on questions of credibility and judgments as to the welfare of the child. The trial court is in the best position to make determinations on these issues, and we will not overrule its judgment if there is reasonable evidence to support it. Because there is reasonable evidence to support the trial court’s ruling, we cannot say that the trial court abused its discretion in transferring custody to the father.

(Footnote omitted.) Green v. Krebs, 245 Ga. App. 756, 759 (1) (538 SE2d 832) (2000).

Judgment affirmed.

Adams and Blackwell, JJ., concur.

       The trial court’s original order granting the father’s petition for a change in custody did not include findings of fact, although the mother had requested that factual findings be included in the order pursuant to OCGA § 9-11-52 (a). After the trial court issued its order, the mother again moved for the trial court to include findings of fact. The mother and the grandmother subsequently filed notices of appeal from the trial court’s original order, after which the trial court entered an amended order that included specific findings of fact and conclusions of law in accordance with OCGA § 9-11-52 (a). The record on appeal has now been supplemented to include the amended order. Although the trial court entered the amended order after the notices of appeal were filed in these companion cases, “this court will not require a vain action” by reversing the original order and remanding for re-entry of the amended order “where full compliance with the . . . purpose [of OCGA § 9-11-52 (a)] has been achieved.” Grizzle v. Fed. Land Bank of Columbia, 145 Ga. App. 385, 387 (244 SE2d 362) (1978). See Wiggins v. Darrah, 135 Ga. App. 509, 510 (2) (218 SE2d 106) (1975).


author: Miller, Judge.

text:
    A11A2261.
    NEWMAN v. THE STATE.
    (722 SE2d 911)
   Miller, Judge.

In 1998, Debbie Lynn Newman entered a special plea of not guilty by reason of insanity to charges of malice murder, felony murder, and four counts of aggravated assault. Newman was ordered into the custody of the Department of Human Resources, and she has since remained committed for inpatient involuntary treatment pursuant to OCGA § 17-7-131 (e) (4). In February 2011, Newman filed a petition for release under OCGA § 17-7-131 (f), alleging that she no longer met the inpatient civil commitment criteria. Following an evidentiary hearing, the trial court denied the petition. On appeal, Newman challenges the trial court’s decision and contends that the trial court failed to consider the credible and relevant expert testimony showing that she no longer needed inpatient involuntary treatment. We discern no error and affirm.

A defendant who has been found not guilty by reason of insanity at the time of the crime and has been ordered to inpatient involuntary commitment may only be released from commitment by order of the trial court. See OCGA § 17-7-131 (f). After a plea of insanity has been successfully entered, a presumption of continuing insanity arises. See Nagel v. State, 262 Ga. 888, 889 (1) (427 SE2d 490) (1993). A defendant who files an application for release has the burden of rebutting the presumption and proving by a preponderance of the evidence that inpatient involuntary treatment is no longer required. See OCGA § 17-7-131 (f) (2); Nagel, supra, 262 Ga. at 889 (1); Nelor v. State, 309 Ga. App. 165, 165-166 (709 SE2d 904) (2011).

In ruling upon an application for release under OCGA § 17-7-131 (f), the trial court is the factfinder and must determine the credibility of witnesses and the probative value of the testimony. See Nelor, supra, 309 Ga. App. at 166. “The [trial] court must consider all credible and relevant expert and other evidence presented at the [release] hearing and contained in the trial record on the issue[.]” (Footnote omitted.) Gray v. State, 295 Ga. App. 737 (673 SE2d 84) (2009). In addition, the trial court must weigh the evidence in light of the defendant’s burden to overcome the presumption of continuing insanity, and must supply specific findings and conclusions based upon the evidence. See Nagel, supra, 262 Ga. at 892-893 (2) (b). On appeal from the trial court’s decision, we review the evidence in the light most favorable to the State and determine whether a rational trier of fact could have found that the defendant failed to prove by a preponderance of the evidence that she was no longer in need of inpatient involuntary treatment. See id. at 892 (2) (b); Nelor, supra, 309 Ga. App. at 166.

So viewed, the record shows that in 1997, Newman was charged with malice murder, felony murder, and four counts of aggravated assault based upon allegations that she had intentionally crashed her motor vehicle into a vehicle occupied by the four victims. Newman entered a plea of not guilty by reason of insanity to the charges. She submitted to a mental evaluation with a professional counselor and a forensic psychiatrist, who jointly issued a mental assessment report opining that Newman was blatantly psychotic at the time of the charged offenses. The report reflected that Newman had a prior history of mental illness and had received outpatient treatment at the Medical College of Georgia following several suicide attempts. The report further indicated that after Newman was arrested for the charged offenses, she repeatedly banged her head on a wall, made suicide threats, responded to inaudible voices, experienced delusions, and had visual and auditory hallucinations.

In 1998, the trial court entered an order finding that Newman was insane and committed her into the custody of the Department of Human Resources for inpatient involuntary treatment. Thereafter, Newman’s status was re-examined, and the trial court entered orders continuing her commitment. From 2007 to 2011, Newman filed petitions for release annually. The trial court denied her petitions.

In February 2011, Newman filed the instant petition for release. At a release hearing, Newman presented the testimony of her attending physician and her behavior specialist. The attending physician testified that he began evaluating Newman in January 2010. He stated that Newman’s current diagnosis was chronic schizophrenia paranoia. He claimed that Newman had responded very well to medication, that records indicated she had been on the same dosages of Seroquel and Zoloft since 1997, and that she had shown no symptoms of psychosis since 2005. The attending physician opined that Newman no longer met the inpatient civil commitment criteria and that she was eligible for outpatient treatment. He noted, however, that other treating physicians had different opinions about whether Newman met the release criteria, and that some believed Newman had remaining symptoms of mental illness.

Newman’s patient history revealed that in 2005, she reacted negatively when she was transferred to a new hospital. Newman made statements such as, “I’ll do anything I can do ... to avoid being transferred,” which made the hospital staff afraid that she was suicidal. As a result of the incident, Newman was placed on a greater level of supervision for a 24-hour period. In January 2006, Newman had a physical altercation with another patient in the hospital. More recently in 2010, Newman became upset, irritated, and had an auditory hallucination following the trial court’s hearing and denial of her prior petition for release. The attending physician testified that Newman was on medications when she experienced the recent symptoms, and that her medications had to be increased to treat her condition. The attending physician further advised that patients diagnosed with schizophrenia tend to relapse regardless of treatment. He nevertheless opined that Newman’s relapse would be unlikely if she continued with her current medications.

Newman’s behavior specialist testified that her team had made a unanimous recommendation that Newman be transferred to an outpatient group home. The behavior specialist stated that she had been treating Newman since May 2005, and that Newman had not demonstrated any violent or threatening behavior. She further testified that Newman was neither aggressive nor a danger to herself or others. The behavior specialist nevertheless acknowledged that Newman had experienced some unrest when she was transferred to the facility in 2005, that she continued to experience triggers of decompensation or frustration after failing to make progress toward a conditional release, and that her medications were recently increased.

Based upon the evidence presented, the trial court denied Newman’s February 2011 petition for release. The trial court found that Newman failed to rebut the presumption of continuing insanity, and that she continued to meet the criteria for inpatient involuntary treatment. The trial court made specific findings that the hearing testimony established that Newman had resorted to violence after being provoked by a fellow patient in January 2006, and that she had exhibited symptoms of mental illness while in custody and while on her medications.

“OCGA § 37-9-1 (9.1) provides that mentally ill persons require inpatient involuntary treatment if they present a substantial risk of imminent harm to themselves or others, or are so unable to care for their own physical health and safety as to create an imminently life-endangering crisis.” Nelor, supra, 309 Ga. App. at 165. The trial court’s ruling that Newman continued to meet the statutory inpatient involuntary treatment criteria was authorized by the record evidence. The record shows that the trial court properly considered and based its findings upon the expert testimony presented at the hearing. Although Newman’s experts expressed opinions that she no longer met inpatient civil commitment criteria and was eligible for outpatient treatment, the experts also gave inconsistent testimony that supported the trial court’s findings to the contrary. Significantly, the expert testimony reflected that Newman had a physical altercation with a patient in January 2006; more recently in 2010, she relapsed and experienced an auditory hallucination after the trial court denied her prior request for release, which led to an increase in her medications; and differing opinions existed among her treating physicians as to whether she met the release criteria.

The aforementioned evidence permitted a finding that Newman failed to rebut the presumption of continuing insanity and that inpatient involuntary treatment was still required. See Gray, supra, 295 Ga. App. at 738 (concluding that the defendant continued to meet the criteria for inpatient involuntary treatment in light of evidence that she had recently resorted to violence after being provoked by a fellow patient at the hospital); Butler v. State, 225 Ga. App. 288, 290-291 (483 SE2d 385) (1997) (concluding that the defendant continued to meet the criteria for inpatient involuntary treatment based upon evidence that the medication used in an attempt to control her schizophrenia had been recently changed since she was continuing to hear voices). The trial court’s denial of Newman’s petition for release was not erroneous.

Decided February 13, 2012.

Alicia H. Thomas, for appellant.

R. Ashley Wright, District Attorney, Charles R. Sheppard, Assistant District Attorney, for appellee.

Judgment affirmed.

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

       Notably, “[t]he trial court, rather than mental health professionals, has the responsibility for deciding applications for release under OCGA § 17-7-131.” (Citation and punctuation omitted.) Nagel, supra, 262 Ga. at 889 (1). Moreover, “the mere presentation of evidence to the contrary does not necessarily serve to rebut the presumption; such evidence must outweigh the presumption when the trier of fact balances that evidence against the presumption.” Id. at 891 (2) (a).


text:
    A11A2319.
    GAUTREAUX v. THE STATE.
    (722 SE2d 915)
   BARNES, Presiding Judge.

A jury convicted Carolina Gautreaux of felony theft by taking, and she was sentenced to serve ten years in confinement, followed by five years on probation. She appeals, contending that the State failed to prove venue and that the trial court erred in not allowing her to cross-examine the victim about his efforts to reduce his tax liability. For the reasons that follow, we affirm.

We view the evidence on appeal in the light most favorable to the verdict, and no longer presume the defendant is innocent. Brown v. State, 293 Ga. App. 633 (667 SE2d 899) (2008). We do not weigh the evidence or decide the witnesses’ credibility, but only determine if the evidence is sufficient to sustain the convictions. Id. We construe the evidence and all reasonable inferences from the evidence most strongly in favor of the jury’s verdict. Id.

Viewed in that light, the evidence at trial established that Gautreaux began working for Cammon Steel as a bookkeeper in 2001. When she first began working for the company, it had no system to keep track of the accounts receivable or payable, and its checkbooks had never been balanced, so Gautreaux set up an accounting program and began to handle the corporate finances. After the president had a heart attack in 2003, he obtained a stamp of the corporate secretary’s signature for Gautreaux to use on company checks. Eventually, Gautreaux was “in total control of all [the company’s] financials, total,” and was the only person with administrative access to the payroll information. She handled all the bills and was also the only person who reviewed the corporate bank statements. She kept the president informed about the company’s cash flow by preparing a weekly handwritten report that showed the total amount of outstanding accounts receivable, accounts payable, and cash in the bank.

In 2008, Gautreaux told the president that she “didn’t feel comfortable” with the small amount of cash the company had in its operating account because it had many outstanding accounts receivable and a number of accounts payable that were coming due. The president knew that many of his customers could not pay their bills until they were paid, which was typically two to three months, so he opened a $50,000 line of credit for the company operating account, anticipating that any loan money used would soon be repaid.

Gautreaux was diagnosed with fibromyalgia and in 2008 began working from home. Her husband, who also worked for Cammon Steel, brought her paperwork back and forth to the office, but Gautreaux had difficulty completing all her tasks, and the president began to reassign some of Gautreaux’s duties to other employees. He eventually reassigned most of her duties and cut Gautreaux’s salary in half, after which she sent a note to all of the company’s employees apologizing that she could not get their paychecks to them on time because she did not have enough hours. The company president “got real upset” at what he described as her unprofessional conduct and took away her check-writing privileges. He began reviewing the company bank statements and saw a check to Gautreaux for $6,409, which he could not account for, so he asked Gautreaux’s husband about it. The husband said he did not know anything about the check, but returned the next day promising to repay the money, which he did shortly afterward.

The president discovered that the $6,409 check was not listed in the computerized check register, and discovered that it was possible to enter information into the program, generate and print a check, and then cancel or void that check in the register, leaving the check number available to be reassigned to another check. It was also possible to delete the check from the registry, or change the amount listed in the registry to a different amount. The president ordered an audit and found several questionable checks, but because Gautreaux had shredded all the checks that had been returned with the statements, the company had difficulty completing a thorough audit. A review uncovered a number of unauthorized checks to Gautreaux, including one for $15,000, twelve for $1,501.49, and numerous payroll checks to Gautreaux that had been entered into the computer register for one amount but actually written for a greater amount.

An expert in questionable documents from the Georgia Bureau of Investigation Crime Laboratory testified that he compared the endorsements on 14 checks to known samples of handwriting from Gautreaux, her husband, the president, and the corporate secretary, and concluded that one was definitely endorsed by Gautreaux. He could not definitively conclude that she had endorsed the other checks, because of the quality of the copies, but testified that those endorsements had characteristics that corresponded with Gautreaux’s handwriting.

Gautreaux testified that the extra money was payment for extra work she did for the president, but the check register did not reflect the correct sum because the president did not want the corporate secretary to know he was paying Gautreaux extra money. She also testified that a $15,000 check was a loan to buy property for her mother to live on, that a $1,500 check was a loan, and that the president authorized her to pay her mother’s hospital bill from the corporate account, which was another loan. She repaid the $6,409 because she was scared the president would put her in jail, but testified she knew nothing about that check, hypothesizing that another employee must have deposited it into Gautreaux’s bank account after obtaining her account number from previous deposits.

1. Gautreaux contends that the State failed to prove venue, and that the trial court therefore erred in denying her motion for a directed verdict.

Venue is a jurisdictional fact, and is an essential element in proving that one is guilty of the crime charged. Like every other material allegation in the indictment, venue must be proved by the prosecution beyond a reasonable doubt. Proof of venue is a part of the State’s case, and the State’s failure to prove venue beyond a reasonable doubt renders the verdict contrary to law, without a sufficient evidentiary basis, and warrants reversal.

(Citation and punctuation omitted.) Bell v. State, 284 Ga. 790, 792 (1) (671 SE2d 815) (2009). Gautreaux was indicted for two counts of theft by taking an amount exceeding $500, the property of Cammon Steel, in Troup County, while she was a fiduciary, in breach of her fiduciary obligation. The first count accused her of taking the money between June 29, 2005 and June 29, 2007, and the second accused her of taking the money between June 30, 2007 and December 8, 2008. The jury acquitted Gautreaux of the first count and convicted her of the second, and Gautreaux argues that the State failed to establish that she received any stolen money in Troup County from June 30, 2007 through December 8, 2008.

OCGA § 16-8-2 provides that “[a] person commits the offense of theft by taking when he unlawfully takes or, being in lawful possession thereof, unlawfully appropriates any property of another with the intention of depriving him of the property[.]”

In the trial of a theft by taking case, the crime shall be considered as having been committed in any county in which the accused exercised control over the property which was the subject of the theft, OCGA § 16-8-11, and the State bears the burden of proving that the defendant exercised control over the property taken in the county where the case was prosecuted.

(Citation and punctuation omitted.) Williams v. State, 297 Ga. App. 150, 151 (2) (676 SE2d 805) (2009). In a prosecution for theft by taking checks in one county and depositing them into a bank account in another county, venue is proper in either county. See Hawkins v. State, 167 Ga. App. 143, 147-148 (5) (305 SE2d 797) (1983).

In this case, the company president testified that Cammon Steel was located in Troup County, and that Gautreaux worked at the company office from 2001 until some time in 2008, when she began working from home. The State established that Gautreaux wrote 13 checks at the Troup County office between June 30, 2007 and January 1, 2008, in which the amount of the check cashed exceeded the amount entered into the computer register, and the total amount of the difference was more than $500. This evidence was sufficient to establish venue beyond a reasonable doubt and to sustain Gautreaux’s conviction for theft by taking.

2. Gautreaux asserts that the trial court erred by sustaining the State’s objection to her cross-examination of the company president regarding his efforts to reduce his tax liability. We review a trial court’s decision to admit or exclude evidence for abuse of discretion. Spencer v. State, 287 Ga. 434, 436 (2) (a) (696 SE2d 617) (2010).

Gautreaux argues that the excluded evidence would have established the res gestae surrounding her actions, and that questioning the president about his bad acts and intent to evade taxes would have helped her establish that she was not stealing from him but was being rewarded for helping him minimize bis tax liability. We disagree.

First, Gautreaux never testified that she was being rewarded for helping the president minimize his tax liability, only that she was being paid bonuses for additional work, some of it personal, and that the register numbers were different because the president did not want the secretary to know about the extra pay. When asked what kind of personal things she did for this extra money, she said she brought cash to the president’s son, told the son about the death of his mother, and acted as a bill collector. She never said that the president paid her extra money because she helped him minimize his taxes. Second, some of the questions to which the State objected related to tax advice the president received from his accounting firm, which would have shed no light on Gautreaux’s actions. Based on our review of the trial transcript, we find no abuse of discretion in the trial court’s evidentiary rulings.

DECIDED February 13, 2012.

Jamie T. Roberts, for appellant.

Peter J. Skandalakis, District Attorney, Lee F. Tittsworth, Assistant District Attorney, for appellee.

Judgment affirmed.

Adams and Blackwell, JJ., concur.


text:
    A11A2425.
    JONES v. THE STATE.
    (722 SE2d 918)
   BARNES, Presiding Judge.

Following a bench trial at which he stipulated to the evidence presented at the motion to suppress hearing, William David Jones was convicted of DUI-less safe, DUI-per se, and driving without a license on his person. The trial court denied his motion for new trial, and on appeal Jones contends that the trial court erred in denying his motion to suppress because the police lacked articulable suspicion or probable cause to stop his vehicle. Following our review, we affirm.

Because the trial court sits as the trier of fact when ruling on a motion to suppress or a motion in limine, its findings based upon conflicting evidence are analogous to a jury verdict and should not be disturbed by a reviewing court if there is any evidence to support them. When we review a trial court’s decision on such motions to exclude evidence, we construe the evidence most favorably to uphold the findings and judgment, and we adopt the trial court’s findings on disputed facts and credibility unless they are clearly erroneous. When the evidence is uncontroverted and no question of witness credibility is presented, the trial court’s application of the law to undisputed facts is subject to de novo appellate review. With mixed questions of fact and law, the appellate court accepts the trial court’s findings on disputed facts and witness credibility unless clearly erroneous, but independently applies the legal principles to the facts.

(Citations and punctuation omitted.) State v. Tousley, 271 Ga. App. 874 (611 SE2d 139) (2005).

Viewed in this light, the evidence at the motion to suppress hearing reflects that at approximately 12:22 a.m., Dawson County sheriffs deputies were dispatched to a residence after receiving a 911 call about a domestic disturbance. The caller gave his name and address, and reported that the fight was from the residence “to the right of” 131 Concord Drive. While the deputies were en route to the scene, the dispatcher informed them that the neighbor had called back and reported that shots had been fired. When the first deputies arrived at approximately 12:29 a.m., one of them observed a truck pulling out of a driveway, and radioed that the “vehicle [is] pulling out of the driveway.”

Another responding deputy who was in the neighborhood observed a truck from about 500 to 600 feet away pulling out of a driveway. The deputy testified that, although he did not verify that the truck was leaving the driveway of the address at issue, there were no other vehicles pulling out of driveways in the vicinity.

The deputy initiated a stop of the truck, and asked the driver, who was later identified as Jones, to step out of the vehicle. The officer noticed that Jones was unsteady on his feet, had watery and bloodshot eyes, slurred and incoherent speech, and had the strong order of alcohol on his person. He conducted a series of field sobriety tests and an aleo-sensor test, and based on the results, Jones was arrested and charged with the above-mentioned offenses. Jones filed a motion to suppress, arguing that he was stopped and detained without probable cause or articulable suspicion that he was engaged in or about to be engaged in criminal activity. The trial court denied the motion, and Jones thereafter was convicted of the charged offenses. He now appeals.

On appeal, Jones contends that the trial court erred in ruling that the officer had probable cause or articulable suspicion to stop his vehicle because, among other things, there was no description of the suspect or vehicle, the area was densely populated and the split driveway serviced several homes, and there was no testimony about the elapsed time between the alleged crime and when his vehicle was stopped. Upon our review, we affirm.

Police officers may conduct a brief investigative stop of a vehicle only if such a stop is justified by specific, articulable facts sufficient to give rise to a reasonable suspicion of criminal conduct. Raulerson v. State, 223 Ga. App. 556, 557 (2) (479 SE2d 386) (1996). While this suspicion need not rise to the standard of probable cause, it must be more than mere caprice or a hunch or an inclination. Id.

To establish the necessary reasonable suspicion to make an investigative stop, the totality of the circumstances must show that the officer had specific and articulable facts which, taken together with rational inferences from those facts, provided a particularized and objective basis for suspecting the particular person stopped of criminal activity.

(Citation and punctuation omitted.) Rolfe v. State, 278 Ga. App. 605, 606 (630 SE2d 438) (2006).

This totality of the circumstances test consists of two elements: (1) The determination must be based upon all the circumstances gathered from objective observations, information from police reports, if such are available, and consideration of the modes or patterns of operation of certain kinds of lawbreakers. The trained police officer makes a determination from these data — this determination can be based upon inferences and deductions that might well elude an untrained person. In reaching such deductions, police officers are authorized to make common sense conclusions about human behavior. Additionally, the evidence must be viewed from the perspective of what action a reasonable police officer would take. (2) The second element which must be present before a stop is permissible requires that during the process of analyzing the facts as described in the first element, a suspicion must arise that the particular individual being stopped is engaged in wrongdoing.

(Citations, punctuation and footnotes omitted.) State v. Causey, 246 Ga. App. 829, 832-833 (1) (b) (540 SE2d 696) (2000), citing United States v. Cortez, 449 U. S. 411, 417-418 (II) (A) (101 SC 690, 66 LE2d 621) (1981). The “totality of the circumstances” test “allows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that might well elude an untrained person.” (Punctuation omitted.) Howard v. State, 265 Ga. App. 835, 836-837 (595 SE2d 660) (2004), citing United States v. Arvizu, 534 U. S. 266, 273 (122 SC 744, 151 LE2d 740) (2002). This information must provide “some basis from which the court can determine that the detention was not arbitrary or harassing.” Buffington v. State, 228 Ga. App. 810, 811 (492 SE2d 762) (1997).

Decided February 13, 2012.

Philip P. Pilgrim, Jr., for appellant.

Lee Darragh, District Attorney, Conley J. Greer, Assistant District Attorney, for appellee.

Here, it was reasonable for the deputy to infer, based on his training, experience, and common sense, that upon arriving in the vicinity of the area where law enforcement was dispatched because of a domestic disturbance and shots fired, and being informed by another deputy that the vehicle was pulling out of the driveway, and seeing only Jones’s vehicle pulling out of a driveway, that Jones might have been involved in criminal wrongdoing, specifically the incident under investigation. Under the totality of circumstances, the stop was neither arbitrary nor harassing, but was based on a founded suspicion of criminal activity. Jones does not challenge the validity of the subsequent DUI investigation, which ultimately resulted in his arrest. Therefore, the trial court did not err in denying Jones’s motion to suppress, and his conviction is affirmed.

Judgment affirmed.

Adams and Blackwell, JJ., concur.


text:
    A11A1849.
    HAYS v. GEORGIA FARM BUREAU MUTUAL INSURANCE COMPANY.
    (722 SE2d 923)
   Miller, Judge.

Georgia Farm Bureau Mutual Insurance Company (“Georgia Farm”) filed a complaint for declaratory judgment to determine its responsibility pursuant to a homeowner’s insurance policy to defend James Buckbee against a lawsuit filed by Martin Hays, who was injured while Buckbee was operating his vehicle on his property. Georgia Farm and Hays filed cross-motions for summary judgment. The trial court granted Georgia Farm’s motion for summary judgment and denied Hays’s summary judgment motion, finding that a policy exclusion applied because Hays’s bodily injury arose out of Buckbee’s use of a motor vehicle. Hays filed the instant appeal to challenge the trial court’s rulings. Finding no error, we affirm.

“Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c).” Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997). We apply a de novo standard of review and view the evidence in the light most favorable to the nonmovant. Id.

So construed, the evidence shows that, in August 2007, Buckbee and Hays attempted to lift a portable toilet onto the top of a deer stand that was located on Buckbee’s property. Buckbee attached a rope to the top of the modified portable toilet, ran it through a pulley attached to the top of the deer stand, and then attached the rope to the rear of his pickup truck. Hays was standing on top of the deer stand during the attempted maneuver. When Buckbee began driving his truck forward to lift the portable toilet, the deer stand fell 20 feet to the ground, as did Hays, who sustained various injuries.

Hays subsequently filed suit against Buckbee, alleging that Buck-bee negligently operated a motor vehicle and used excessive force on the pulley system. Buckbee was insured under a homeowner’s policy issued by Georgia Farm. Georgia Farm filed an action for declaratory judgment to determine whether it was obligated to defend Buckbee in Hays’s action against him. Georgia Farm and Hays subsequently filed cross-motions for summary judgment. In its motion for summary judgment, Georgia Farm asserted that its policy did not provide coverage for Hays’s claims based upon an exclusion stating that coverage “[did] not apply to bodily injury . . . arising out of . . . the ownership, maintenance, use, loading or unloading of motor vehicles . . . owned or operated by or rented or loaned to [Buckbee].” Hays, in turn, argued that the policy exclusion did not apply, because the phrase “use ... of a motor vehicle” in the exclusionary clause was ambiguous, and Buckbee’s truck was not being used as a motor vehicle in an “ordinary” way.

The trial court granted Georgia Farm’s motion for summary judgment and denied Hays’s summary judgment motion, finding that Hays’s claims arose out of the use of Buckbee’s truck, and that, therefore, the policy exclusion applied.

1. Hays contends that the trial court’s decision was erroneous since the phrase “use ... of a motor vehicle,” as used in the exclusionary clause, is ambiguous. He also asserts that the exclusionary clause did not apply because the truck was not being used as a motor vehicle, but as an external power source. We disagree.

[I]n Georgia, insurance is a matter of contract, and the parties to an insurance policy are bound by its plain and unambiguous terms. Thus, when faced with a conflict over coverage, a trial court must first determine, as a matter of law, whether the relevant policy language is ambiguous. A policy which is susceptible to two reasonable meanings is not ambiguous if the trial court can resolve the conflicting interpretations by applying the rules of contract construction.

(Punctuation and footnotes omitted.) Old Republic Union Ins. Co. v. Floyd Beasley & Sons, 250 Ga. App. 673, 675 (1) (551 SE2d 388) (2001). Where a term of a policy of insurance is susceptible to two or more reasonable constructions, and the resulting ambiguity cannot be resolved, the term will be strictly construed against the insurer as the drafter and in favor of the insured. Padgett v. Ga. Farm &c. Ins. Co., 276 Ga. App. 796, 797 (625 SE2d 76) (2005). If a policy exclusion is unambiguous, however, it must be given effect “even if beneficial to the insurer and detrimental to the insured. We will not strain to extend coverage where none was contracted or intended.” (Citations and punctuation omitted.) Jefferson Ins. Co. &c. v. Dunn, 269 Ga. 213, 216 (496 SE2d 696) (1998).

The phrase “use of a motor vehicle” is not defined in Georgia Farm’s insurance policy. This Court has defined the term “use” as “to employ for some purpose.” (Punctuation and footnote omitted.) Lancer Ins. Co. v. United Nat. Ins. Co., 294 Ga. App. 261, 262 (668 SE2d 865) (2008). However, an “exact or bright-line definition of the term is ‘elusive,’ ” and is “dependent to a great extent on the circumstances of the case.” (Citations and punctuation omitted.) Roberts v. Burke County School Dist., 267 Ga. 665, 667, 669 (482 SE2d 283) (1997). Notwithstanding the elusiveness of an exact definition of the term “use,” Georgia courts have considered the much broader question whether an injury arises out of the “use” of a vehicle. See, e.g., id. (whether death of a child who was killed while walking along a heavily traveled road arose out of the “use” of a school bus which had earlier dropped him off at an unauthorized spot); Atlanta Postal Credit Union v. Intl. Indem. Co., 228 Ga. App. 887 (494 SE2d 348) (1997) (whether fatal heart attack arose out of the “use” of a wrecker employed to repossess a car from the home of the deceased); Hartford Accident &c. Co. v. Booker, 140 Ga. App. 3 (230 SE2d 70) (1976) (whether injuries of sanitation worker who was struck by a passing vehicle while collecting garbage arose out of the “use” of his garbage truck which was parked approximately 30 feet away).

Whether an injury arose out of “use” of a motor vehicle, turns on consideration of (i) the physical proximity of the injury site to the vehicle, (ii) “the nature of the conduct which caused the situation of jeopardy,” and (iii) whether the vehicle was “being ‘utilized’ in the plain and ordinary sense of the word.” (Punctuation and footnotes omitted.) Old Republic, supra, 250 Ga. App. at 676-677 (1). In evaluating physical proximity, we consider more than “how close the [truck] was to the accident scene, because ‘use’ also embraces the notion that the person using the [truck] had control over it or that such control was reasonably at hand.” (Footnote omitted.) Id.

Applying these considerations in the instant case, we conclude that the phrase “use of a motor vehicle” was not ambiguous, and that Buckbee’s truck was in “use.” The evidence showed that Buckbee’s truck was at or near the location of the accident, Buckbee had control of the truck at the time, and Buckbee’s operation of the truck was the conduct that caused the accident. Further, Buckbee deposed that he often towed and pulled heavy objects, using the hooks on the truck’s bumper. Buckbee’s testimony established that the truck’s utility function in this respect was an ordinary use of the truck. See Assurance Co. of America v. Bell, 108 Ga. App. 766, 772 (3) (134 SE2d 540) (1963) (holding that a vehicle was not in “use,” within the meaning of an exclusionary clause, because it was not being utilized in its ordinary function, but was rather employed as a playpen, at the time of the accident); cf. Booker, supra, 140 Ga. App. at 7 (5) (holding that common sense dictated that the parties contemplated that the “use” of a garbage truck included a sanitation worker’s walking down the side of the road to collect garbage). Under these circumstances, there is no doubt that the truck was in “use.” See Ivey v. First of Ga. Ins. Co., 209 Ga. App. 784, 785-786 (434 SE2d 556) (1993) (holding that an aircraft exclusion applied because the homeowner was using his airplane to give ground-to-air instruction to an individual flying the homeowner’s airplane).

Hays relies upon cases decided by foreign jurisdictions as persuasive authority in support of his contention that the truck was being “used” not as a “motor vehicle,” but as a power source. We are not persuaded since these cases are distinguishable. In both Nationwide Mut. Fire Ins. Co. v. Johnson, 466 SE2d 313 (N.C. Ct. App. 1996), and Sparkman v. Highway Ins. Co., 266 FSupp. 197 (W.D. La. 1967), it was found that the equipment attached to trucks, rather than the trucks themselves, were the causes of accidents. See Johnson, supra, 466 SE2d at 316 (I) (holding that the use of a cherry-picker attached to the truck was the cause of the injury, because “the truck was stationary, its motor was not engaged, and the boom and cherry-picker was operated independently of the truck”); Sparkman, supra, 266 FSupp. at 205 (2) (holding that a winch system was not an “automobile” within the meaning of an insurance exclusion provision because, at the time of its use, the “truck was stationary, and its gears set so that locomotion or transportation was impossible”). In this case, there was no piece of equipment attached to Buckbee’s truck that operated independently of it; rather, it was the truck itself that pulled the deer stand over.

Hays’s reliance on American Modern Home Ins. Co. v. Rocha, 729 P2d 949 (Ariz. 1986), is also unpersuasive. In Rocha, the court held that an insurance exclusion provision did not apply because there was no evidence that the vehicle was negligently driven. Id. at 950, 952. Here, however, Hays based part of his claim on Buckbee’s negligent operation of the truck.

Based on the evidence presented in this case, the trial court properly found that Buckbee’s truck was in “use” at the time of the accident, as that term is contemplated in Georgia Farm’s exclusionary clause.

2. Hays next contends that the exclusionary clause does not apply because the truck was not the predominating cause of the accident. We disagree.

When the phrase “arising out of” is found in an exclusionary clause of an insurance policy, we apply the “but for” test traditionally used to determine cause-in-fact for tort liability. Barrett v. Nat. Union Fire Ins. Co. &c., 304 Ga. App. 314, 321 (2) (696 SE2d 326) (2010). Notwithstanding tort liability theories, the underlying facts and circumstances of the claims asserted determine whether or not a policy exclusion applies, because

[t]he exclusionary clause is focused solely upon the genesis of the underlying plaintiffs claims — if those claims arose out of the excluded acts . . . then coverage need not be provided. Claims arise out of [the] excluded conduct when “but for” that conduct, there could be no claim against the insured.

(Citations, punctuation and footnote omitted.) Video Warehouse v. Southern Trust Ins. Co., 297 Ga. App. 788, 791 (1) (678 SE2d 484) (2009).

Applying the “but for” analysis to this case, we conclude that Hays’s injuries would not have occurred but for Buckbee’s use of his truck. Significantly, Hays deposed that the deer stand would not have fallen over, “but for” Buckbee putting the truck in gear and pressing on the accelerator to pull the rope. Because the insurance policy specifically excluded any claim “arising out of” the use of a motor vehicle, Georgia Farm had no duty to defend against Hays’s claim that Buckbee negligently operated the truck.

To the extent Hays’s amended complaint alleged negligence based on Buckbee’s use of excessive force on the pulley system, rather than the use of his truck, it does not change the outcome of the case. The injuries which gave rise to the cause of action arose out of and were based on Buckbee’s use of his truck. There was no evidence that the pulley system was defective. Consequently, the trial court correctly found that the conduct that gave rise to Hays’s injuries was within the scope of the policy exclusion. See Continental Cas. Co. v. HSI Financial Svcs., 266 Ga. 260, 262 (466 SE2d 4) (1996) (holding that the coverage need not be provided even though an ancillary cause of harm was alleged, because that harm arose out of conduct that was clearly within the scope of an exclusionary clause).

Decided February 14, 2012.

A. James Rockefeller, for appellant.

Sumner, Avery & Harper, Joseph C. Sumner, Jr., Sarah S. Harper, Chambliss, Higdon, Richardson, Katz & Griggs, Jon C. Wolfe, for appellee.

Accordingly, the trial court did not err in granting summary judgment to Georgia Farm in its declaratory judgment action.

Judgment affirmed.

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