author: Phipps, Presiding Judge. Andrews, Judge,

text:
    A11A0782.
    WARD v. THE STATE.
    (718 SE2d 915)
   Phipps, Presiding Judge.

Adrian Ward appeals his conviction for theft by taking a motor vehicle, challenging, among other things, the sufficiency of the evidence and the constitutionality of the court’s charge to the jury. We find that the jury charge had the effect of shifting the burden of persuasion to Ward, in violation of his rights under the Due Process Clause, and that this error was not harmless. We therefore reverse. Because the evidence was sufficient to support his conviction, however, Ward may be retried.

1. When an appellant challenges the sufficiency of the evidence to support his conviction, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”

So viewed, the evidence showed that on either March 21, 2008 or the morning of March 22, 2008, a pickup truck was stolen from its owner’s residence. The owner initially thought that an acquaintance or relative might have borrowed the truck, and did not immediately report the theft.

The morning of March 22, a police officer stopped Ward for speeding. Ward was driving a pickup truck with a dealer’s drive-out tag. He told the officer that his name was “Anthony Ward,” that he did not have a driver’s license or other identification, and that he did not know his Social Security number. The officer noted the truck’s vehicle identification number and issued Ward two traffic citations.

Later that day, the truck’s owner reported the theft, and information about the truck was entered into the Georgia Crime Information Center database. The vehicle identification number of the stolen truck matched that of the truck driven by Ward. A warrant was issued for Ward’s arrest, and he was apprehended in May 2008. Ward admitted to one of the arresting officers that he had been in the truck on March 22, 2008; he told the officer that he did not steal the truck but that it had been parked at his house by a man who had come to see his mother.

Ward contends that this evidence did not show that he was the person who stole the truck. But evidence of recent unexplained or unsatisfactorily explained possession of stolen property may be sufficient to give rise to an inference that the defendant committed theft by taking, if the jury finds beyond a reasonable doubt that the inferred fact (the accused’s commission of the crime) follows from the proved facts (proof of a theft and recent, unexplained possession of stolen goods). The evidence showed that Ward was in possession of a stolen truck the day after its theft. Whether Ward’s explanation for his recent possession of the stolen truck was satisfactory was a question for the jury. Viewed most favorably to the prosecution, the evidence was sufficient to authorize Ward’s conviction for theft by taking.

2. Ward argues that the court’s instruction to the jury regarding an inference arising from his recent possession of the stolen truck was unconstitutional. The Due Process Clause of the Fourteenth Amendment “prohibits the [s]tate from using evidentiary presumptions in a jury charge that have the effect of relieving the [s]tate of its burden of persuasion beyond a reasonable doubt of every essential element of a crime.” The threshold inquiry is whether the challenged portion of the instruction created a mandatory presumption or a permissive inference. “A mandatory presumption instructs the jury that it must infer the presumed fact if the [s]tate proves certain predicate facts. A permissive inference suggests to the jury a possible conclusion to be drawn if the [sítate proves predicate facts, but does not require the jury to draw that conclusion.” A mandatory presumption that shifts the burden of proof to the defendant is impermissible in a criminal case. Likewise, a mandatory rebuttable presumption that shifts the burden of persuasion to the defendant is impermissible.

Significant to the determination of the nature of the presumption or inference in a challenged instruction is “the way in which a rational trier of fact might have perceived the instruction,” which “requires careful attention to the words actually spoken to the jury.” In this case, Ward challenges the following instruction, which the court gave after first instructing on the elements of theft by taking:

The recent unexplained or inadequately explained possession of stolen property by a Defendant creates an inference or presumption of fact sufficient to convict. This is true without direct proof or other circumstantial evidence that the Defendant committed the theft. However, recent possession of stolen goods will not automatically support a conviction of theft; you as jurors honestly seeking the truth still must judge the case on the totality of the circumstances under the reasonable-doubt standard that I have previously charged you. That is, recent possession is to be viewed as probative evidence of the crime and reviewed along with all of the evidence in the case to determine whether the State has proved the Defendant’s guilt beyond a reasonable doubt.

The first sentence of this instruction was cast in commanding language. It told the jury that proof of certain facts created an inference or presumption sufficient to convict Ward, not that such proof may be sufficient to give rise to an inference that Ward committed theft by taking. This commanding language was buttressed by the following sentence that the inference or presumption is created without any evidence that Ward committed the theft. As a result, there was a reasonable likelihood that the jury viewed the first two sentences of the instruction as setting forth a mandatory presumption. The first sentence’s instruction that the presumption was created if the recent possession of stolen property was “unexplained or inadequately explained” provided a means for rebutting the presumption (evidence of an adequate explanation for the recent possession). Nevertheless, a mandatory rebuttable presumption improperly “relieves the [s]tate of the affirmative burden of persuasion on the presumed element by instructing the jury that it must find the presumed element unless the defendant persuades the jury not to make such a finding.” The first sentence of the instruction, which was reinforced by the second sentence, created an unconstitutional burden-shifting presumption.

Moreover, the jury charge taken as a whole failed to “explainf ] the proper allocation of burdens with sufficient clarity that any ambiguity in the particular language challenged could not have been understood by a reasonable juror as shifting the burden of persuasion.” General instructions as to the prosecution’s burden and the defendant’s presumption of innocence did not dissipate the error in the first sentence of the challenged instruction. Later sentences in the challenged instruction, which stated that recent possession of stolen goods would not automatically support a conviction of theft and that the jurors were required to apply the reasonable doubt standard to the totality of circumstances, arguably conflicted with the instruction on the presumption in the first sentence.

Contrary to the position taken by the dissent, the later sentences did not dissipate the error in the first sentence of the instruction, nor did they make clear that it was within the jury’s discretion whether to draw an inference from proof of recent possession of stolen property. The jury was initially instructed that the recent unexplained or inadequately explained possession of stolen property automatically creates an inference or presumption of fact sufficient to convict; the jury was next instructed that recent possession of stolen goods will not automatically support a conviction. Yet the final charge did not, even when viewed as a whole, reconcile this obvious conflict. Consequently, nothing in the charge served to “make[ ] clear” that the inference or presumption is permissive and not mandatory, as is argued by the dissent. “Language that merely contradicts and does not explain a constitutionally infirm instruction will not suffice to absolve the infirmity.” Thus, a “reasonable juror could easily have resolved the contradiction in the instruction by choosing to abide by the mandatory presumption” in the first sentence.

In contrast, the applicable Suggested Pattern Jury Instruction provides:

If you should find beyond a reasonable doubt that the crime [ ] of [theft by taking] has . . . been committed as charged in this indictment and that certain personal property (as set forth in this indictment) was stolen as a result of such crime, and if recently thereafter, the defendant should be found in possession of (any of) the stolen property, that would be a circumstance, along with all of the other evidence, from which you may infer guilt as to the charge of [theft by taking] as set forth in this indictment. If you find the evidence merits such an inference, you may not draw an inference of guilt if, from the evidence, there is a reasonable explanation of the possession of such property consistent with a plea of innocence, which is a question solely for you, the jury, to determine.

This language constitutes a permissive instruction that allows the jury to make the inference as opposed to a mandatory instruction that requires the jury to do so. The trial court in this case, however, strayed from the pattern instruction by using language that improperly gave rise to a mandatory presumption.

Because a reasonable juror could have understood the challenged portion of the jury instruction as creating a mandatory presumption that shifted to Ward the burden of persuasion on whether he stole the truck which was found in his possession shortly after its theft, and because the charge read as a whole does not explain or cure the error, the jury charge does not comport with the requirements of the Due Process Clause. Moreover, this error was not harmless, as it applied to an element of the crime that was at issue in the trial — whether Ward was the person who stole the truck. Consequently, this error requires that the judgment of conviction be reversed.

3. In light of our reversal of the judgment of conviction, we need not address Ward’s argument that the prosecutor improperly commented during closing argument on his failure to testify at trial.

Judgment reversed.

Mikell, C. J., Smith, P. J., Barnes, P. J., and McFadden, J., concur. Andrews and Dillard, JJ., dissent.

Andrews, Judge,

dissenting.

1. The jury instruction given by the trial court on the inference arising from Wards’s recent possession of the stolen truck was consistent with Georgia law and did not create a mandatory presumption or shift the burden of persuasion to Ward in violation of the due process clause of the Fourteenth Amendment.

The trial court instructed the jury that, in order to prove the charged crime of theft by taking, the State was required to prove beyond a reasonable doubt that the defendant took the property of another with the intention of depriving the rightful owner of the property, and then added the instruction:

The recent unexplained or inadequately explained possession of stolen property by a Defendant creates an inference or presumption of fact sufficient to convict. This is true without direct proof or other circumstantial evidence that the Defendant committed the theft. However, recent possession of stolen goods will not automatically support a conviction of theft; you as jurors honestly seeking the truth still must judge the case on the totality of the circumstances under the reasonable doubt standard that I have previously charged you. That is, recent possession is to be viewed as probative evidence of the crime and reviewed along with all of the evidence in the case to determine whether the State has proved the Defendant’s guilt beyond a reasonable doubt.

Taken as a whole, the court’s instruction was consistent with the Georgia rule that recent unexplained possession of stolen property permits the jury to infer that the defendant committed the charged theft. The rule is that

proof of recent, unexplained possession of stolen goods by the defendant is sufficient to create an inference that the defendant is guilty of the [theft] of the goods . . . [but] proof of recent, unexplained possession is not automatically sufficient to support a conviction for [theft]. ... [I]t is rational to allow the factfinder to infer that the defendant is guilty of [theft] based on proof of his recent, unexplained possession of stolen goods; however, if the only evidence supporting the conviction is the evidence giving rise to the inference or presumption, then under Jackson v. Virginia, [443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979)] such evidence must establish the offense beyond a reasonable doubt in order to be sufficient to support the conviction.

Bankston v. State, 251 Ga. 730-731 (309 SE2d 369) (1983).

To convict an accused under this rule, the State must prove that (1) the goods in the accused’s possession were recently stolen and (2) someone committed the crime. If there is no satisfactory explanation of the defendant’s possession, then the proof of these facts beyond a reasonable doubt creates a presumption or permissible inference of defendant’s guilt.

(Citations and punctuation omitted.) Williamson v. State, 248 Ga. 47, 49 (281 SE2d 512) (1981).

The trial court’s instruction was consistent with the above rule as explained in Bankston and Williamson. Taken as a whole, the court’s instruction informed the jury that, even without other evidence that the defendant committed the theft, evidence of the defendant’s recent unexplained possession of the stolen property was sufficient to allow the jury to infer that the defendant committed the theft, but only if the jury found from a consideration of all the evidence that the defendant was guilty beyond a reasonable doubt. Even if the first sentence of the instruction could be read in isolation as setting forth a constitutionally infirm mandatory presumption, the last two sentences immediately qualified the first sentence and clearly explained to the jury that this was a permissive presumption or inference which allowed but did not require the jury to infer the defendant’s guilt from recent unexplained possession of the stolen property. “Language that merely contradicts and does not explain a constitutionally infirm instruction will not suffice to absolve the infirmity.” Francis v. Franklin, 471 U. S. 307, 322 (105 SC 1965, 85 LE2d 344) (1985). There was no mandatory presumption in violation of due process requirements because, as the instruction as a whole makes clear, the jury was permitted to reject the inference based on its independent evaluation of whether the evidence proved the defendant’s guilt beyond a reasonable doubt. Williamson, 248 Ga. at 53-58; County Court &c. v. Allen, 442 U. S. 140, 156 (99 SC 2213, 60 LE2d 777) (1979) (ultimate test of a presumption’s constitutional validity is that it must not undermine the jury’s responsibility to find the essential elements of the charged crime beyond a reasonable doubt).

Because the instruction as a whole makes clear that the presumption was permissive and not mandatory, “a rational trier of fact would have understood that he had a choice in deciding whether to draw the inference and would not have interpreted the court’s charge as an irrebuttable direction to find that the defendant had committed the crime.” (Punctuation omitted.) Williamson, 248 Ga. at 59. Moreover,

the challenged language does not require the defendant to prove the contrary by some quantum of proof, but, rather, indicates to the jury that if a satisfactory explanation of the defendant’s possession is made, they are not permitted to draw the presumption. Thus the language does not have the effect of shifting the burden of persuasion to the defendant but simply advises the jury that, under certain circumstances, they are not entitled to draw the presumption.

(Punctuation omitted.) Id. at 59-60.

2. There is also no basis for reversal on the enumeration of error not reached by the majority opinion — Ward’s claim that, during the State’s closing argument, the prosecutor improperly commented on his failure to testify at the trial, and that the trial court erred by denying his motion for a mistrial on this basis.

The record does not contain a transcript of the State’s closing argument, but only a brief excerpt immediately preceding Ward’s objection. In this excerpt, the prosecutor stated:

[Y]our verdict will speak the truth. In this case, with the facts that you heard from the witness stand, the truth is the Defendant is guilty of theft by taking [the] motor vehicle. The Defendant himself is not man enough to tell you the truth. He told the officer . . .

At this point, the record shows that Ward cut in with an objection that the prosecutor had improperly commented on his failure to testify, and moved for a mistrial. The trial court denied the motion and instructed the jury that Ward had no burden to produce evidence and that they could draw no inference harmful to Ward’s defense from his decision not to testify.

“As a rule of constitutional and Georgia statutory law, a prosecutor may not comment upon a defendant’s failure to testify at trial.” Lacey v. State, 288 Ga. 341, 344 (703 SE2d 617) (2010). To reverse a conviction for violation of this rule, one of the following two factors must be found: (1) that the prosecutor’s manifest intention was to comment upon the defendant’s failure to testify, or (2) that the prosecutor’s remark was of such a character that the jury would naturally and necessarily take it to be a comment on the defendant’s failure to testify. Ranger v. State, 249 Ga. 315, 319 (290 SE2d 63) (1982). “We must look at the context in which the prosecutor’s statement was made in order to determine if either of these two factors exist.” Lassiter v. State, 237 Ga. App. 495, 498 (515 SE2d 636) (1999). The State argues that the prosecutor did not intend to comment on Ward’s failure to testify at trial, but on untruthful statements Ward made to police prior to trial. The prosecutor’s abbreviated comment (interrupted by Ward’s objection) that, “He told the officer ...” would seem to support this contention. Nevertheless, we are unable to examine the context in which the alleged improper statement was made because there is no transcript of the State’s closing argument in the record.

Where the transcript or record does not fully disclose what transpired at trial, the burden is on the complaining party to have the record completed in the trial court. . . . When this is not done, there is nothing for the appellate court to review. Therefore, due to the omission of closing arguments from the transcript, we cannot review this enumeration of error.

(Punctuation omitted.) Carswell v. State, 251 Ga. App. 733, 736 (555 SE2d 124) (2001) (unable to review claim that the prosecutor commented on the defendant’s failure to testify because only the objection but not the closing argument was included in the record).

Moreover, the record shows that, in response to Ward’s motion for a mistrial, the trial court gave a prompt curative instruction that informed the jury that Ward had no burden to produce evidence and that they could draw no harmful inference from his failure to testify.

An improper comment on the defendant’s silence does not necessarily require a reversal. The grant or denial of a mistrial is within the trial court’s sound discretion, and we will not interfere with the trial court’s exercise of that discretion unless it is clear that a mistrial was essential to preserve the right to a fair trial.

Knolton v. State, 268 Ga. App. 78, 79 (601 SE2d 467) (2004); Cockrell v. State, 281 Ga. 536, 541 (640 SE2d 262) (2007). In light of the curative instruction, and in the absence of any transcript of closing argument, there is no basis on this record to conclude that a mistrial was essential to preserve Ward’s right to a fair trial, or that the trial court abused its discretion in denying a mistrial.

3. Because I agree with the majority opinion that the evidence was sufficient to support the jury verdict finding Ward guilty of theft by taking, the judgment of conviction should be affirmed. I respectfully dissent.

I am authorized to state that Judge Dillard joins in this dissent.

Decided November 16, 2011.

Kevin Kwashnak, for appellant.

Plez H. Hardin, District Attorney, Lewis R. Lamb, Assistant District Attorney, for appellee.

       See OCGA § 16-8-2 (a person commits the offense of theft by taking when, inter alia, he unlawfully takes any property of another with the intention of depriving him of the property).

       See Lively v. State, 262 Ga. 510, 512 (3) (421 SE2d 528) (1992).

        Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979).

       See, e.g., Boivin v. State, 298 Ga. App. 411, 412-413 (1) (680 SE2d 415) (2009); Drake v. State, 274 Ga. App. 882 (1) (619 SE2d 380) (2005); Jefferson v. State, 273 Ga. App. 61, 62-64 (1) (614 SE2d 182) (2005); Pless v. State, 247 Ga. App. 786 (1) (545 SE2d 340) (2001); Bigby v. State, 184 Ga. App. 94-95 (2) (360 SE2d 751) (1987). See generally Williamson v. State, 248 Ga. 47, 48 (1) (a) (281 SE2d 512) (1981) (discussing constitutionality of inference). Cf. High v. State, 282 Ga. 244 (1) (647 SE2d 270) (2007) (applying inference in burglary case); Williams v. State, 252 Ga. 7, 9 (2) (310 SE2d 528) (1984) (same).

       See Pless, supra at 786 (1); Kier v. State, 247 Ga. App. 431, 433-434 (1) (543 SE2d 801) (2000); Gibson v. State, 243 Ga. App. 610, 611 (2) (a) (533 SE2d 783) (2000).

       See McClain v. State, 301 Ga. App. 844, 847 (1) (689 SE2d 126) (2010) (although there was no testimony from anyone who saw defendant take stolen items, evidence that he was in possession of or otherwise associated with the stolen items shortly thereafter was sufficient to authorize his conviction for theft by taking; jury was not required to believe defendant’s testimony that items were taken by someone else); Drake, supra; Jefferson, supra at 63-64 (1); Kier, supra at 434 (1); Bigby, supra.

       Ward specifically objected to this instruction before the jury retired to deliberate, in accordance with OCGA § 17-8-58 (a).

        Francis v. Franklin, 471 U. S. 307, 313 (II) (105 SC 1965, 85 LE2d 344) (1985) (citations omitted).

        Williamson v. State, 248 Ga. 47, 58 (2) (281 SE2d 512) (1981); see Francis, supra at 313-314 (II); Sandstrom v. Montana, 442 U. S. 510, 514 (II) (99 SC 2450, 61 LE2d 39) (1979).

        Francis, supra at 314 (II) (footnotes omitted); see Isaacs v. State, 259 Ga. 717, 735 (35) (b) (386 SE2d 316) (1989).

        Mohamed v. State, 276 Ga. 706, 708 (1) (583 SE2d 9) (2003).

        Francis, supra at 318 (II) (A); Williams v. Kemp, 255 Ga. 380, 388 (338 SE2d 669) (1986).

        Williamson, supra.

        Francis, supra at 315 (II) (punctuation omitted); Sandstrom, supra.

       See generally Francis, supra at 316 (II) (A).

       Id.; Sandstrom, supra at 515 (II); Isaacs, supra; see Stepic v. State, 226 Ga. App. 734, 735 (1) (487 SE2d 643) (1997) (instruction that element of crime “shall be inferred” from proof of certain facts created an improper mandatory presumption).

        Francis, supra at 317 (II) (A).

       Id. at 318 (II) (A); see Wilson v. State, 276 Ga. 149, 150 (2) (576 SE2d 852) (2003) (instruction that proof of certain facts “will raise a presumption” of an element of the crime was unconstitutionally defective).

        Francis, supra at 318-319 (II) (B) (citation omitted).

       Id. at 320 (II) (B); Johnson v. State, 249 Ga. 621, 623 (1), n. 2 (292 SE2d 696) (1982); Stepic, supra at 736 (1).

       See Johnson, supra at 623 (1).

       Cf. Wood v. State, 258 Ga. 598, 599 (2) (373 SE2d 183) (1988) (instruction that jury may infer an element of the offense from proof of certain facts, but that whether it drew such inference was solely within the jury’s discretion, was not impermissibly burden-shifting).

        Francis, supra at 322 (II) (B); Williams v. Kemp, 255 Ga. at 386.

        Francis, supra.

       See Suggested Pattern Jury Instructions, Vol. II: Criminal Cases (4th ed.), § 2.62.30 (2007).

       See Johnson v. State, 277 Ga. 82, 85 (3) (586 SE2d 306) (2003); see also Wallace v. Higgs, 262 Ga. 437, 438 (421 SE2d 69) (1992) (instruction that jury “may infer” element of crime from proof of other facts was permissive and not unconstitutionally burden-shifting); Weldon v. Barnes, 251 Ga. 689, 690 (2) (309 SE2d 137) (1983) (instruction that included language that evidence of defendant’s recent possession of stolen goods “would permit you to infer the guilt of such defendant” for burglary was constitutional); Williamson, supra at 59 (2).

        Francis, supra at 325 (II) (B); see Sandstrom, supra at 524 (III).

       See Mohamed, supra at 708-709 (1) (an instruction on a mandatory presumption was harmless so long as the instruction was applied to an element of the crime that was not at issue in the trial, and if the evidence of guilt was overwhelming).

       The fact that the court’s instruction did not violate due process requirements is not an endorsement of the language used; rather, the better practice is to use the instruction on recent possession of stolen property set forth in the Suggested Pattern Jury Instructions published by the Council of Superior Court Judges of Georgia.


source: Caselaw Access Project

author: Adams, Judge.

license: Public Domain

text:
    A11A0809.
    SAWYER et al. v. MARJON ENTERPRISES, INC. et al.
    (718 SE2d 922)
   Adams, Judge.

Plaintiffs/appellants Rodney Sawyer, Delores Sawyer, George-anna Bozarth-Sawyer, Michael Sawyer and Raymond H. Massey (hereinafter collectively referred to as plaintiffs) were traveling on Interstate 85 near Newnan, Georgia, when the car in which they were riding was struck by a tractor-trailer rig driven by defendant/appellee Dan E. Crumpacker; the rig was owned by Crumpacker’s employer, defendant/appellee Marjon Enterprises, Inc. (hereinafter collectively referred to as defendants). Plaintiffs brought suit to recover damages for the injuries they allegedly incurred during the collision, the case was ultimately tried before a jury, and a verdict was rendered in favor of the defendants. Plaintiffs filed a motion for new trial, which was denied, and then filed this appeal, asserting in two related enumerations of error, which we consider together, that the trial court erred in charging the jury on sudden emergency and that the trial court likewise erred in denying their motion for new trial in which they challenged the court’s instruction to the jury.

As is pertinent here, the testimony at trial showed that the accident happened when Crumpacker lost control of his tractor-trailer rig and collided with the Mercedes in which plaintiffs were riding. It had been raining prior to the accident, and at the time of the accident the rain was moderate to heavy. Because of the rain and wet roadway, the driver of the Mercedes testified he was going between 55 and 60 miles per hour; Crumpacker testified he was going between 50 to 55 miles per hour, although the speed limit on that part of the interstate was 70 miles per hour. Crumpacker further testified that the first thing he could recall about the collision was that he felt the drive axle of his vehicle break traction with the road and slip to the right, while the front of his vehicle moved unexpectedly to the left. The officer who investigated the accident, Lieutenant John LaChance, testified that Crumpacker told him that he had hydroplaned and lost control of his vehicle. LaChance further testified that “speed is the number one factor” that causes hydroplaning, and he noted in the accident report he prepared that Crumpacker had lost control of his vehicle “due ... to hydroplaning from the speed.” However, on cross-examination he admitted that he did not say anything about speed in the accident report, and that the contributing factors he checked on the report were the weather and that the driver (Crumpacker) lost control. Nevertheless, he also testified that “[s]peed is what caused him to hydroplane. You’re not going to hydroplane unless you have speed.”

Following the presentation of this evidence, the trial court charged the jury on sudden emergency as follows:

One who is confronted with a sudden emergency that was not created by one’s own fault and is without sufficient time to determine accurately and with certainty the best thing to be done, ... is not held to the same accuracy of judgment as would be required of that person if he had had more time for deliberation.

On appeal, plaintiffs argue that the trial court erred in giving this charge, over their objection, because the testimony of Officer LaChance showed that Crumpacker contributed to the accident by driving too fast for conditions and because there was no evidence that Crumpacker, either before or after he lost control of his vehicle, was faced with several choices and took one course over another. As set forth more fully below, we agree that the charge was given in error, and therefore we must reverse the jury’s verdict.

The defense of sudden emergency applies only to those acts that occur immediately after the apprehension of the danger or crisis. The defense is not available unless the evidence shows that the sudden peril offered the defendant a choice of conduct without time for thought, so that any negligence in the defendant’s choice may be attributed to lack of time to assess the situation rather than lack of due care. The doctrine requires that the person confronted by the emergency have the opportunity to exercise one of several reasonable alternative courses of action. In the absence of such factors, there can be no conduct to which to apply the standard and the doctrine is inapplicable.

(Citations and punctuation omitted.) Rayfield v. Farris, 253 Ga. App. 167, 168 (558 SE2d 748) (2002). And “when a question of law is at issue, as here, we owe no deference to the trial court’s ruling and apply the ‘plain legal error’ standard of review.” (Citation and punctuation omitted.) Butgereit v. Enviro-Tech Environmental Svcs., Inc., 262 Ga. App. 754, 756 (2) (586 SE2d 430) (2003).

As stated above, the evidence here showed that just before his truck collided with the plaintiffs’ car, Crumpacker was confronted with two sequential dangers. First, he came upon standing water in the road, which posed a danger that his vehicle would hydroplane and he would lose control of it. Second, as he drove through the standing water, he did, in fact, hydroplane and lose control of his vehicle, which posed a danger that he would collide with another vehicle, a danger that almost instantly was realized. When the evidence shows that a claim of negligence is premised on an act or omission of the defendant that immediately followed his sudden apprehension of an imminent danger not of his own making and that the exigencies of the circumstances did not permit the defendant to fully consider, or even to consider at all, what course of action he should take to avoid the danger, a charge on the doctrine of sudden emergency is appropriate. Holt v. Scott, 226 Ga. App. 812, 815 (2) (487 SE2d 657) (1997). Here, however, there was no such evidence.

As to the first danger with which Crumpacker was confronted — standing water in the path of his truck — there was no evidence that Crumpacker even saw the standing water before he was upon it. Although Crumpacker admitted that he observed water “all over the road” as a result of the moderate-to-heavy rainfall that day, he testified that he did not recall going through any standing water. And although an eyewitness said that he saw Crumpacker hydroplane after driving through a “moderate, decent [-sized] puddle” of water that had collected on the roadway, there is no evidence that Crum-packer saw this “puddle” before he was in it. Accordingly, although his approach of the water standing in the roadway may have confronted Crumpacker suddenly with an imminent danger, there is no reason to think that Crumpacker knew at that time that he was confronted with such a danger. In these circumstances, a charge on the doctrine of sudden emergency was not appropriate. See Wallace v. Ramey, 191 Ga. App. 293, 294 (1) (381 SE2d 434) (1989).

As to the second danger with which Crumpacker was confronted — his truck hydroplaning out of control — it is clear that Crum-packer was aware almost immediately of his loss of control, but there is no reason to think that anything Crumpacker might have done at that point would have prevented the collision. There is no evidence, for instance, that Crumpacker could have regained control of his vehicle before the collision, if only he had done something more or something different after he began to hydroplane. Consequently, his failure to regain control after beginning to hydroplane cannot possibly form the basis for a finding of negligence, which necessarily requires a finding that the defendant ought to have done something different in the circumstances in which he finds himself. His failure to regain control, therefore, was not a proper basis for a charge on the doctrine of sudden emergency. See Butgereit v. Enviro-Tech Environmental Svcs., Inc., 262 Ga. App. at 757 (2); Rayfield v. Farris, 253 Ga. App. at 168; Thomas v. Stairs, 215 Ga. App. 288 (450 SE2d 326) (1994); Howard v. Jones, 187 Ga. App. 756, 758 (2) (371 SE2d 196) (1988).

Moreover, we find the cases Crumpacker relies on to be distinguishable. In Stephens v. Hypes, 271 Ga. App. 863, 865 (610 SE2d 631) (2005), the defendant had swerved to avoid hitting a deer, causing her vehicle to spin out of the lane in which she was traveling and collide with the vehicle in which the plaintiff was riding. Thus, the emergency occurred when she was confronted with the deer in the roadway, and the action that she took in response to that situation was to swerve. Id. at 863. Moreover, the issue in that case was whether, as a matter of law, the defendant had participated in causing the emergency, not whether she was confronted with a situation in which she had no course of conduct. Id. at 865. And in Willis v. Love, 232 Ga. App. 543 (502 SE2d 487) (1998), the defendant suddenly came upon the scene of an accident and had to choose between applying her brakes, which she did, causing her to hydroplane, or to swerve to avoid the oncoming car. Thus the emergency in that case was not the hydroplaning of the vehicle, but the defendant’s decision to attempt to brake and stop rather than attempting to go around the other vehicle. 232 Ga. App. at 545 (2) (a). Lastly, in Holt v. Scott, 226 Ga. App. at 815, the defendant did not stop in time to avoid hitting the vehicle in front of him after he observed that driver apply her brakes and abruptly stop. In the case at hand, there is no testimony that Crumpacker took any action, or that he could have taken any action to avoid the collision once his tractor-trailer rig started hydroplaning and he lost control of the vehicle. Thus the trial court erred in charging the jury on sudden emergency, and the plaintiffs are entitled to a new trial.

Judgment reversed.

Barnes, B J., and Blackwell, J., concur.

Decided November 16, 2011.

Michael J. Gorby, for appellants.

Hicks, Casey & Foster, William T. Casey, Jr., Lisa K. Whitfield, for appellees.

       Although in his brief on appeal Crumpacker posits several courses of action he could have taken, it is axiomatic that argument on appeal will not suffice to supplant a lack of evidence at trial.

       We make no ruling on plaintiffs’ additional argument that the charge was also unauthorized because the evidence showed that Crumpacker participated in causing the emergency, except to note that this was not a situation where the evidence established that defendant was negligent per se. Compare Butgereit v. Enviro-Tech Environmental Svcs., 262 Ga. App. at 757 (2) (defendant’s negligence per se was proven by the fact that defendant had not contested the traffic citation he received in connection with the accident).


author: Phipps, Presiding Judge.

text:
    A11A0839.
    MOSES et al. v. PENNEBAKER.
    (719 SE2d 521)
   Phipps, Presiding Judge.

This appeal involves claims related to the judicial dissolution of a limited liability company. One of the members of the company appeals from the judgment entered against him and in favor of the company’s only other member, citing as error: the court’s award of damages based on claims asserted after the court entered judgment on the dissolution petition; the method by which the court calculated the company’s value; and the award of attorney fees, punitive damages, and damages for conversion, breach of fiduciary duty and usurpation of corporate opportunities. For the reasons that follow, we affirm the judgment.

The two members of International Merchandise Group, LLC (“IMG”) were S. Douglas Moses and Ashley Pennebaker. In April 2002, Pennebaker filed a petition for judicial dissolution and interlocutory injunction, citing OCGA § 14-11-603. In the petition, which named Moses as a defendant and IMG as a nominal defendant, Pennebaker alleged that he and Moses were unable to agree on any material decisions necessary for the operation of IMG and that it was not reasonably practicable for IMG to carry on its business in conformity with its articles of organization. Alleging that Moses had not responded to his attempts to amicably dissolve the company, Pennebaker sought a decree dissolving IMG, terminating the authority of persons to act for IMG (except for certain, specified acts), distributing IMG’s net assets to its members, and granting such other relief as the court deemed just and proper. Moses filed an answer in which he, among other things, asserted a counterclaim alleging that Pennebaker was liable for fraud and breach of fiduciary duty. In June 2002, the court entered a consent order directing the parties to select an accounting firm and effectuate an audit of IMG’s financial records.

In April 2003, the court entered a consent order granting a “final judgment on the issue of dissolution.” The order provided:

Pursuant to OCGA § 9-11-54,[] the Court expressly finds that there is no just reason for delay and expressly directs that the Clerk shall enter this order as a final judgment on the issue of dissolution, but the Court shall retain jurisdiction to enter any ancillary or other equitable relief to effect the winding up and termination of IMG . . . and to effect the other dictates of this Order in any other ways necessary.

In the order, the court dissolved IMG, terminated every person’s authority to act for IMG (except regarding certain, specified acts), (re)ordered an audit of IMG’s financial records, ordered the parties to cooperate with the auditors, and ordered that certain acts be performed after the audit was conducted. The order did not specifically address Moses’s counterclaim.

In November 2003, Pennebaker filed an amendment to the petition for dissolution, adding a claim for wilful conversion of IMG’s funds and for attorney fees (pursuant to OCGA § 13-6-11). In the amendment, Pennebaker asserted that Moses had violated the June 2002 and April 2003 court orders by not cooperating in the audit and the winding up of IMG’s business, by seizing and using IMG’s assets without authority, and by setting up a competing company.

Pennebaker also filed a motion to enforce the court’s prior orders and, in May 2004, the court ordered Moses to pay into a trust account (pending the outcome of the case) funds that the court found he had improperly withdrawn in October 2002 from IMG’s bank account. In August 2004, the court found Moses in contempt of court for failing to comply with the May 2004 order (though the court denied Pennebaker’s demand to have Moses incarcerated based on its finding that Moses’s failure to fully pay the ordered sums was not wilful but was due to an inability to pay).

In October 2004, Pennebaker filed a second amendment to his petition, this time asserting, inter alia, claims for breach of fiduciary duty and usurpation of corporate opportunities, and for compensatory and punitive damages. Pennebaker alleged, inter alia, that Moses

has taken control of IMG without authority, managed IMG unilaterally and without authority, set up a company to compete with IMG, cashed an IMG check without proper endorsement, failed to cooperate with regard to the Court-ordered audit, failed to comply with other Court orders and with the Court-ordered judicial dissolution of IMG, and converted and improperly used IMG funds for his own personal use, along with using more than $108,000 of IMG funds to pay his personal legal bills.

In March 2008, finding that Moses had wilfully and intentionally failed to comply with the court’s orders entered in May 2002, June 2002, April 2003 and May 2004 (as well as three other orders) regarding, among other things, the audit and various payment requirements, the court entered an order striking Moses’s answer and dismissing his counterclaim with prejudice. The court entered final judgment in favor of Pennebaker as to Moses’s liability on all of Pennebaker’s claims. The court reserved for trial the issue of damages.

In July 2008, a bench trial was held on the issue of damages. In September 2010, the court entered judgment in favor of Pennebaker and against Moses for one-half of the value of IMG, wilful conversion of corporate assets, breach of fiduciary duty and usurpation of corporate opportunities, punitive damages and attorney fees. Moses appeals from the September 2010 judgment.

1. Moses contends that the trial court erred in considering claims that Pennebaker asserted in amendments to his petition because the amendments were filed after the court entered final judgment on Pennebaker’s dissolution petition. The court did not err in allowing the amendments.

“A party’s right to amend a complaint is very broad.” A party may amend his pleading as a matter of course and without leave of court at any time before the entry of a pretrial order. “While the right to amend is very broad, it may not be exercised after the case has been tried and judgment rendered therein.” Accordingly, a party is not entitled to amend his complaint to assert a new cause of action after judgment is entered. But “[a] judgment is not final unless it disposes of the entire controversy, leaving nothing for the trial court to do in the case.”

When Pennebaker amended his complaint in November 2003 and October 2004, no pretrial order had been filed; the April 2003 judgment was not intended to be a pretrial order, given that the court ordered the parties in February 2008 to file within a certain time period a consolidated pretrial order. Moreover, the April 2003 judgment did not dispose of the entire controversy. Moses’s counterclaim was still pending, inasmuch as the April 2003 order did not address it. Finally, the April 2003 order granting judgment on the dissolution claim expressly provided that the court “retain[ed] jurisdiction to enter any ancillary or other equitable relief to effect the winding up and termination of IMG . . . and to effect the other dictates of this Order in any other ways necessary.”

Pennebaker was authorized to amend his pleadings when he did because the court had not entered a pretrial order and had not entirely disposed of the claims asserted in the case. This was not a case in which the litigation had ended and the case was “finished.” The trial court has wide discretion to allow an amendment and, unless there is a manifest abuse of that discretion, this court declines to interfere. Moses has shown no abuse of discretion.

2. Moses contends that the court erred in calculating damages as to Count 1 (dissolution of the corporation) because (a) it should have based the valuation on the date of judicial dissolution; and (b) Pennebaker did not prove that he was entitled to $450,939.23 as his share of IMG’s capital account.

(a) In its findings of fact, the court stated that one of the primary reasons for the company’s “breakup” was Moses’s failure in April 2000 to repay a loan to Pennebaker, and that in January 2002, Pennebaker notified Moses that he wished to end the business and divide IMG’s assets. The court calculated IMG’s value using 2001 figures based upon its finding that Pennebaker had ceased participating in the operation of IMG in about January 2002. An expert witness testified that he reviewed IMG’s tax returns for the years 1999 through 2001 (which his firm had prepared) and its general ledgers for 2002.

Moses asserts that the court should have instead determined Pennebaker’s interest based on IMG’s value as of April 23, 2003, when the court entered the order dissolving IMG. However, Moses has not cited, and we have not found, any authority for his position that the value of Pennebaker’s interest must be determined as of the date the court dissolves the company. Further, Moses has pointed to no evidence of a specific valuation of IMG as of the date of judicial dissolution, or for any time after 2002. The issue of damages is a matter for the factfinder that generally should not be disturbed on appeal. As such, the trial court’s award of damages will be upheld so long as it is within the range of testimony presented at trial.

Where a trial court found that a shareholder had been deprived of his interest in the corporation, the court held that the valuation of the corporation and the shareholder’s interest were determined based on when the shareholder was deprived of his ownership interest. This court has also affirmed an award of damages in which members of a limited liability company agreed that the company’s valuation was determined based on when one member ceased working and the other member began operating the business on her own.

The undisputed evidence establishes that as of 2002 it was not possible to carry on IMG’s business. For instance, in January 2002, Pennebaker had notified Moses of his intent to terminate their business relationship and dissolve the company; Moses had verbally agreed in July 2002 to buy Pennebaker’s interest in the company; and in October 2002 Moses unilaterally withdrew from IMG’s bank account $714,578, without authorization, which he deposited into his accounts “and did various things, . . . [including] buy a house,” leaving only “30 or $40,000” in IMG’s account. Further, in April 2002, Pennebaker filed the petition to judicially dissolve the company because IMG could not carry on its business, Pennebaker and Moses were unable to agree on material decisions necessary for IMG’s operation, and IMG could not be effectively managed by its members; these allegations were undisputed in light of the court’s striking of Moses’s answer.

The court was authorized to find that Pennebaker was deprived of his ownership interest in or ceased participating in IMG beginning in early 2002 — long before the April 2003 judicial dissolution. An accounting expert, whose firm had prepared tax returns and performed the bookkeeping work for IMG from 1999 through 2001, reviewed IMG’s financial records from 1999 through 2002. The witness testified as to IMG’s value as of December 31, 2001 ($7,524,416.48) and the value of Pennebaker’s 50 percent interest in IMG based on the 2001 valuation; he also testified regarding IMG’s (higher) value as of December 31, 2002 ($7,832,410). The witness explained that he used the 2001 valuation amount (versus the amounts shown for the other years reviewed) because that was the last year his firm had prepared IMG’s financial records and the profits for 2001 were “more consistent with what you would expect.” The witness was not provided with and thus did not review any records for periods after 2002.

“[T]he superior court’s award of damages will be upheld so long as it is within the range of testimony presented at trial.” Further, factual findings made at a bench trial should only be set aside where they are clearly erroneous, and the trial court’s findings of fact should be upheld if there is any evidence to sustain them. The trial court’s finding that Pennebaker was deprived of his ownership interest in early 2002 was not clearly erroneous. And the award of damages was within the range of testimony. Moses has not demonstrated any basis for reversal.

(b) The expert witness who audited IMG’s financial records testified that Pennebaker was owed $450,939.23 from Moses for Pennebaker’s interest in IMG’s capital account. Moses asserts that Pennebaker failed to explain how or prove that the money was used for IMG business. But Pennebaker testified that the funds were used to pay a manufacturer “that did work for us,” for “products,” though he stated on cross-examination that he had no documentation to support this testimony. The issue of damages was a matter for the factfinder, and the court’s award of damages ($450,939.23) in connection with the capital account was within the range of testimony. The trial court’s factual findings after a bench trial are not to be “set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.” “The clearly erroneous test is the same as the any evidence rule. Thus, an appellate court will not disturb fact findings of a trial court if there is any evidence to sustain them.”

3. Moses contends that the court erred in awarding damages for conversion when no claim for conversion existed. Specifically, he asserts that (a) Pennebaker was not authorized to amend the complaint to add a claim for conversion after the court had entered final judgment on his claims; (b) the court’s award on the conversion claim exceeded Pennebaker’s demand, as he sought in his amended complaint recovery of only IMG’s funds, but the court also awarded damages for the conversion of Pennebaker’s funds; and (c) Pen-nebaker could not recover for conversion because he did not have title to IMG’s funds when Moses took them in October 2002 (IMG had title).

(a) Pennebaker’s amendment was authorized because there was no judgment terminating all issues and claims in the case and no pretrial order had been entered.

(b) Pennebaker sought damages for wilful conversion, alleging in his amended complaint that Moses converted “more than $700,000 of IMG funds to his own use without authority, and us[ed] IMG funds without authority to pay [attorneys] to represent him personally.” Pennebaker demanded “that the Court compel Defendant Moses to account for and reimburse Plaintiff Pennebaker all funds that he has improperly taken from IMG, enter Judgment in favor of Plaintiff Pennebaker against Defendant Moses, and award Plaintiff Pen-nebaker compensatory and punitive damages in an amount that the law and facts support.”

The court awarded Pennebaker the following amounts on the conversion claim: $5,000 (for the June 10, 2003 conversion of settlement checks made payable to IMG and another party); $159,000 (for a personal loan from Pennebaker); $357,000 (for the October 11, 2002 conversion of IMG’s capital account funds); and interest. As the court noted in the judgment, Moses (through counsel) conceded at trial that Pennebaker was entitled to receive damages in those amounts; Moses does not dispute on appeal this statement by the court, except to assert that his concession regarding the loan was subject to the subject matter jurisdiction argument (discussed and found to be meritless in Division 1). Given Moses’s express concession at trial that he was liable to Pennebaker in the amounts later awarded by the court (with the only challenge being to Pennebaker’s entitlement to amend the complaint after entry of the April 2003 judgment), Moses’s argument on appeal that the court erred in awarding these same amounts is unavailing.

Moreover, in his claim for conversion, Pennebaker specifically realleged every allegation contained in paragraphs 1 through 12; he had alleged in paragraph 8 that Moses failed to repay him a personal loan of $159,000. Pennebaker also requested in the complaint as amended an award of damages in an amount that the law and facts supported. In this case, the law and facts supported the court’s award of damages for conversion. Further, by his default, Moses admitted that he was liable to Pennebaker for improperly withdrawing and using IMG funds and failing to repay Pennebaker a personal loan of $159,000. Moses has not shown that the court granted relief other than what he conceded he was authorized, or granted relief greater than what was sought in the complaint. Nor has he shown that he was harmed by the court’s awarding the damages as conversion versus other damages (given his admissions by default and at trial).

(c) The argument that Pennebaker could not assert a conversion claim when the funds belonged to IMG was foreclosed by the May 2002 stipulation entered into by Pennebaker and Moses in which they agreed that each party was

authorized to assert any claims, defenses, or counterclaims . . . which would otherwise be brought by or in the name of International Merchandise Group, LLC and that neither Pennebaker nor Moses shall object to such claim, defense, or counterclaim on the grounds that the party asserting such is not the proper party to assert such claim, defense, or counterclaim.

4. Moses contends that the court erred in awarding damages to Pennebaker on the claim for breach of fiduciary duty. According to Moses, (a) Pennebaker was not authorized to amend the complaint to add the claim because final judgment had already been entered; and (b) there was no evidence of damages due to any such breach.

(a) As discussed in Division 1, the amendment was authorized.

(b) A claim for breach of fiduciary duty exists where: a fiduciary duty exists; that duty has been breached; and damages were proximately caused by the breach.

Pennebaker alleged that Moses breached his fiduciary duty by, among other things, taking control of IMG and managing it unilaterally without authority, and setting up a competing company. The court awarded Pennebaker a total of $1.00 for Counts 5 and 6, breach of fiduciary duty and usurpation of corporate opportunities, finding that Moses took control of IMG without authority, managed IMG unilaterally and without authority, and (in August 2002) set up a company to compete with IMG, which competing company he operated out of IMG’s office using IMG’s equipment and employees. Although Moses testified that he never conducted any business or sold any products through the new company, he also testified that he “ran both the companies out of” the same office, using IMG equipment, staff, and checks. The court’s award of nominal damages as flowing from Moses’s breach of fiduciary duty was supported by the evidence.

5. Moses contends that the court erred in awarding damages to Pennebaker for usurpation of corporate opportunities because (a) the amendment was made after final judgment was entered; and (b) actions seeking to recover for usurpation of corporate opportunities belong to the corporation, not to individual shareholders.

(a) The amendment was authorized as discussed in Division 1.

(b) The argument that this cause of action belonged to the corporation rather than to an individual shareholder was foreclosed by the stipulation entered into by Pennebaker and Moses in which they agreed that each party was authorized to assert any claims, defenses, or counterclaims which would otherwise be brought by or in the name of IMG, and that neither Pennebaker nor Moses could object to such claim, defense, or counterclaim on the grounds that the party asserting such was not the proper party to assert such claim, defense, or counterclaim. Further, with respect to a two-member limited liability company, one member may in certain circumstances bring a direct action for usurpation of corporate opportunities.

6. Moses contends that the court erred in awarding attorney fees to Pennebaker because claims for attorney fees are ancillary to the main claims and cannot be awarded where, as here, there was not subject matter jurisdiction over the main claims.

As shown in Division 1, the trial court did not lack subject matter jurisdiction over Pennebaker’s claims. And Pennebaker succeeded on his main claims by virtue of the court’s striking of Moses’s answer, which established Moses’s liability on those claims, and by the entry of judgment for damages after the bench trial. The court awarded attorney fees pursuant to OCGA § 13-6-11 after finding that Moses had acted in bad faith, was stubbornly litigious, and had caused Pennebaker unnecessary trouble and expense. Because there was evidence to support the court’s finding that an award of attorney fees was warranted, the award is upheld.

7. Moses contends that the court erred in awarding punitive damages because Pennebaker failed to establish that he was entitled to recover compensatory damages on his substantive claims. As discussed above, however, Pennebaker was entitled to recover compensatory damages based on Moses’s default and the evidence presented at trial. The court specifically found that Moses’s conduct evidenced a specific intent to cause harm.

Decided November 16, 2011.

Stephen M. Katz, for appellants.

Alston & Bird, Jay D. Bennett, Nowell D. Berreth, Daniel C. Norris, for appellee.

Because there was clear and convincing evidence that the defendant’s actions showed willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences, the evidence was sufficient to support the award of punitive damages under OCGA § 51-12-5.1.

A finding of conduct supporting an award for punitive damages will be “affirmed if there is any evidence to support it.”

Judgment affirmed.

Andrews and McFadden, JJ., concur.

       OCGA § 14-11-603 (a) pertinently provides for the court to decree dissolution of a limited liability company upon application by a member whenever it is not reasonably practicable to carry on the business in conformity with the articles of organization or a written operating agreement.

       OCGA § 9-11-54 (b) pertinently provides: “When more than one claim for relief is presented in an action, whether as a claim! ] [or] counterclaim, . . . the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the entry of judgment.”

       Although the notices of appeal list both Moses and IMG (nominal defendant) as appellants, no appellate brief was filed on behalf of IMG.

        Race Investments v. Hull, 278 Ga. App. 477, 481 (1) (a) (629 SE2d 26) (2006) (citation omitted).

       OCGA § 9-11-15 (a); see OCGA § 9-11-16, governing pretrial orders; see also Gaul v. Kennedy, 246 Ga. 290, 291 (1) (271 SE2d 196) (1980) (a pretrial order, once entered, limits the issues for trial to those not disposed of by admissions and agreement of counsel, and controls the subsequent course of the action, unless modified at trial to prevent manifest injustice).

        Duffy v. Landings Assn., 254 Ga. App. 506, 509-510 (2) (563 SE2d 174) (2002) (citations and punctuation omitted); see Race Investments, supra at 482 (1) (a) (“[WJhile under the Code the right to amend is very broad, it may not be exercised after a case has been tried and a judgment rendered therein which has not been set aside or vacated.”) (punctuation omitted).

       See Duffy, supra at 510 (2).

        Griffin v. Rutland, 259 Ga. App. 846, 847 (2) (578 SE2d 540) (2003) (no final judgment where default judgment on issue of liability had not disposed of entire controversy).

       OCGA § 9-11-15 (b).

       See Internal Medicine Alliance v. Budell, 290 Ga. App. 231, 235 (1) (659 SE2d 668) (2008) (a court order was not a final order disposing of the case where, by its own terms, it provided that the case would remain active and no dismissal would occur until all financial issues had been resolved).

       See Race Investments, supra.

       Id. at 481 (1) (a).

       See OCGA § 9-11-15 (a); Internal Medicine Alliance, supra; Liberty v. Storage Trust Properties, 267 Ga. App. 905, 909 (1) (600 SE2d 841) (2004) (plaintiff was authorized to amend his complaint to add a negligence claim before court’s order granting summary judgment to defendant on breach of contract and fraud claims was filed in clerk’s office and before a pretrial order was entered or trial commenced); Edwards v. Davis, 160 Ga. App. 122 (1) (286 SE2d 301) (1981) (plaintiff was authorized to amend his complaint to raise a new theory of recovery — even after trial court had granted summary judgment to defendant on all counts of plaintiffs complaint — because defendant’s counterclaim was still pending and no pretrial order had been entered).

       See Lou Robustelli Marketing Svcs. v. Robustelli, 286 Ga. App. 816, 820-821 (4) (650 SE2d 326) (2007).

        Wachovia Bank of Ga. v. Namik, 275 Ga. App. 229, 231 (1), n. 3 (620 SE2d 470) (2005).

        Monterrey Mexican Restaurant of Wise &c. v. Leon, 282 Ga. App. 439, 449-450 (5) (c) (638 SE2d 879) (2006) (in determining value of associate’s interest in corporation, court should have used value as of date he was deprived of his ownership interest; that date was when bookkeepers changed corporate records to show associate owned no shares).

       See Internal Medicine Alliance, supra at 233-234, 236 (2) (in member’s action to recover the value of his ownership interest in limited liability company, court applied December 2005 valuation — when member last worked and the other member thereafter became sole member “running” company).

        Fowler v. Atlanta Napp Deady, Inc., 283 Ga. App. 331, 336 (2) (641 SE2d 573) (2007) (a defendant in default is in the position of having admitted each and every material allegation of the plaintiff s petition except as to the amount of damages alleged; the default concludes the defendant’s liability, and estops him from offering any defenses which would defeat the right of recovery); see OCGA § 9-11-55 (a).

        Internal Medicine Alliance, supra at 236 (2).

        Monterrey Mexican Restaurant of Wise, supra at 442.

       See Internal Medicine Alliance, supra.

       OCGA § 9-11-52 (a).

        Monterrey Mexican Restaurant of Wise, supra (citation omitted).

       See Division 1.

       See generally Plaza Properties v. Prime Business Investments, 273 Ga. 97, 100 (538 SE2d 51) (2000) (a litigant cannot submit to a ruling, acquiesce in the ruling, and still complain of same).

       See Universal Underwriters Ins. Co. v. Albert, 248 Ga. App. 415, 416 (1) (546 SE2d 361) (2001) (averments in a complaint, other than those as to the amount of damage, are admitted when not denied in the answer).

       See generally Hill v. Johnson, 210 Ga. App. 824, 825 (437 SE2d 801) (1993) (appellant must show harm as well as error to prevail on appeal; judgment affirmed where court failed to follow certain procedure in awarding damages, because the court’s only deviation was the failure to recite in the default judgment “what was evident from the complaint, i.e., that an award of punitive damages should be made,’’ and where appellant had contributed to the error by acquiescing and failing to dispute plaintiffs entitlement to damages as prayed for).

        Perry Golf Course Dev. v. Housing Auth. of Atlanta, 294 Ga. App. 387, 393 (6) (c) (670 SE2d 171) (2008).

       Compare Conner v. Hart, 252 Ga. App. 92, 94 (1) (a) (555 SE2d 783) (2001) (regarding breach of fiduciary duty claim, noting that nominal damages may be awarded to compensate for a small injury).

       See Stoker v. Bellemeade, LLC, 272 Ga. App. 817, 822 (3) (615 SE2d 1) (2005), reversed on other grounds, 280 Ga. 635 (631 SE2d 693) (2006).

       See Hope Electric Enterprises v. Proforce Staffing, 268 Ga. App. 302, 304 (3) (601 SE2d 723) (2004) (an appellate court will uphold an award of attorney fees under OCGA § 13-6-11 if there is any evidence to support the award).

       See J. Kinson Cook of Ga. v. Heery/Mitchell, 284 Ga. App. 552, 560-561 (g) (644 SE2d 440) (2007) (punitive damages may not be recovered where there is no entitlement to compensatory damages).

       See Bunch v. Byington, 292 Ga. App. 497, 504 (664 SE2d 842) (2008) (breach of fiduciary duty claim supported an award of punitive damages); COMCAST v. Warren, 286 Ga. App. 835, 838-842 (650 SE2d 307) (2007) (plaintiffs complaint may in certain circumstances establish entitlement to punitive damages in a default case); Lawrence v. Direct Mortgage Lenders, 254 Ga. App. 672, 674-675 (3) (563 SE2d 533) (2002) (punitive damage award was proper in conversion case).

        Lawrence, supra at 675 (3) (punctuation omitted).

        Bunch, supra at 505.


author: Miller, Presiding Judge.

text:
    A11A0879.
    KAYLOR v. THE STATE.
    (719 SE2d 530)
   Miller, Presiding Judge.

In 2002, William Charles Kaylor pled guilty to two counts of child molestation (OCGA § 16-6-4 (a) (1)) and was sentenced under the First Offender Act (OCGA § 42-8-60) to fifteen years to serve four years in confinement and the balance on probation. In 2010, after Kaylor was released from confinement and while on probation, the trial court revoked his probation, adjudicated him guilty of the offenses, and sentenced him to twenty years to serve fifteen years in confinement, followed by five years’ probation, as to one count and a consecutive probation term of twenty years as to the second count. On appeal, Kaylor contends that the trial court’s sentence was improper since it lacked the authority to enter an adjudication of guilt because he was automatically discharged under the First Offender Act when he was released from confinement. Kaylor also contends that the trial court lacked the authority to increase the sentence originally imposed upon him in 2002. He also contends that the court erred by failing to give him credit for time served and, therefore, his sentence exceeded the statutory maximum. Finding no error, we affirm.

1. Kaylor argues that, when he was initially sentenced under the First Offender Act, he could be sentenced only to confinement or probation, but not both, and that because he was sentenced to confinement, he was automatically discharged under the First Offender Act upon his release. Kaylor further asserts that, once he was discharged, he could not be subsequently adjudicated guilty and resentenced. We disagree.

The First Offender Act provides that, under certain circumstances, “the court may, without entering a judgment of guilt and with the consent of the defendant: (1) [djefer further proceeding and place the defendant on probation as provided by law; or (2) [sentence the defendant to a term of confinement as provided by law.” OCGA § 42-8-60 (a).

Here, Kaylor was initially sentenced under the First Offender Act to fifteen years confinement, with the first four years to be served in confinement and the balance to be served on probation. Kaylor’s claim that the “explicit language of OCGA § 42-8-60 (a) allows for either probation or confinement, but not both, has already been decided adversely to [him].” (Punctuation and footnote omitted.) Mason u. State, 310 Ga. App. 118, 119 (1) (712 SE2d 76) (2011) (holding that the trial court did not violate the First Offender Act by imposing a 15-year probated sentence, which included, as a special condition, confinement in a detention center for a designated time). This is because the First Offender Act incorporates the probation provisions of OCGA § 42-8-34 (c), which authorizes the trial court to “stay and suspend the execution of the sentence or any portion thereof or may place him on probation[.]” See Tallant v. State, 187 Ga. App. 138, 139 (369 SE2d 789) (1988). Moreover, the trial court has authority to suspend or probate all or any part of the entire sentence. OCGA § 17-10-1 (a) (1); see Penaherrera u. State, 211 Ga. App. 162, 163 (1) (438 SE2d 661) (1993).

There is also no merit to Kaylor’s contention that he was automatically discharged under the First Offender Act when he was released from confinement. OCGA § 42-8-62 (a) provides that

[u]pon fulfillment of the terms of probation, upon release by the court prior to the termination of the period thereof, or upon release from confinement, the defendant shall be discharged without court adjudication of guilt . . . and the defendant shall not be considered to have a criminal conviction.

A defendant is automatically discharged upon the successful completion of the terms of his sentence. See, e.g., Humphreys v. State, 287 Ga. 63, 70-71 (4) (694 SE2d 316) (2010); Ailara v. State, 311 Ga. App. 862 (717 SE2d 498) (2011).

In this case, however, Kaylor did not complete his sentence because he had not finished his term of probation. See, e.g., Jones v. State, 154 Ga. App. 581, 583 (3), n. 1 (269 SE2d 77) (1980) (stating that probation is a form of service of a sentence); Pitts v. State, 206 Ga. App. 635, 637 (3) (426 SE2d 257) (1992) (stating that a defendant is on probation when he is sentenced to other forms of confinement that do not involve incarceration). Where, as here, a defendant has been sentenced to probation, the trial court retains jurisdiction throughout the period of the probation, and it may revoke his first offender status, enter an adjudication of guilt, and resentence the defendant on the underlying offense based on his violations of probation. OCGA § 42-8-60 (b); Ailara, supra, 311 Ga. App. at 862; see also OCGA §§ 42-8-34 (g) (“The sentencing judge shall not lose jurisdiction over any person placed on probation during the term of the person’s probated sentence.”); 17-10-1 (a) (5) (A) (same). Moreover, the trial court is “empowered to revoke any or all of the probated sentence, rescind any or all of the sentence, or . . . modify or change the probated sentence. ...” OCGA § 42-8-34 (g). Because Kaylor was still serving his probated sentence, the trial court had the authority to revoke his first offender status and enter an adjudication of guilt for his violations of probation. OCGA §§ 42-8-60 (b); 42-8-34 (g); Ailara, supra, 311 Ga. App. at 862.

2. Kaylor argues that the trial court lacked the authority to increase the sentence imposed in 2002 because he was sentenced to confinement pursuant to OCGA § 42-8-60 (a) (2). We disagree.

Because Kaylor was serving the probationary period of his sentence, he was subject to OCGA § 42-8-60 (b). Roland v. Meadows, 273 Ga. 857, 858 (1) (548 SE2d 289) (2001). The Court in Roland found that “[w]hen a first offender probationer violates the terms of his probation and the trial court enters an adjudication of guilt, the court may impose any sentence permitted by law for the offense the probationer has been found guilty of committing.” Id. (citing OCGA § 42-8-60 (b)). A trial court is authorized to increase the first offender sentence provided that (1) the accused was informed of that eventuality at the time the initial sentence was pronounced and (2) any time served prior to an adjudication of guilt must be credited to any new sentence. Id. at 859 (1); Grinstead v. State, 269 Ga. App. 820, 823 (2) (605 SE2d 417) (2004).

Here, Kaylor was informed at the plea hearing that if he violated the conditions of his probation and the court adjudicated him guilty of the two child molestation offenses, he could be resentenced to a maximum total of forty years — twenty years per count. OCGA § 16-6-4 (b) (1) (providing that the maximum sentence for a first offense of child molestation is 20 years). The trial court’s written sentencing form expressly provided that

upon violation of the terms of probation, the Court may enter an adjudication of guilt and proceed to sentence defendant to the maximum sentence provided by law.

(Emphasis supplied.) At the resentencing hearing, the trial court told Kaylor that he was entitled, as a matter of law, to receive credit for the time served on his first offender sentence, and that the Department of Corrections controlled that calculation. On the resentencing forms, the court included the abbreviation “CTS,” which meant credit for time served when construed consistently with the trial court’s oral pronouncement of the sentence. Although Kaylor argues that the resentencing form also contained the phrase “above and beyond,” which has been disapproved of in some contexts, the court’s statements at the resentencing hearing sufficiently explained that Kaylor would receive credit for time previously served, and that the 20-year sentence was not in addition to the time previously served. See Roland, supra, 273 Ga. at 859 (2) (holding that, notwithstanding the “above and beyond” language on the disposition form, the discussion at resentencing revealed that the trial court understood its obligation to and its intent to give the defendant credit for time served). Compare McKinney v. State, 240 Ga. App. 812, 815 (3) (525 SE2d 395) (1999) (remanding case for trial court to give defendant credit for time served because the record was unclear on that issue); Couch v. State, 246 Ga. App. 106, 107 (1) (539 SE2d 609) (2000) (remanding for resentencing because trial court did not give defendant credit for time served).

Kaylor nevertheless relies on our ruling in Otuwa v. State, 303 Ga. App. 410 (693 SE2d 610) (2010), construing Tallant as stating that “if a defendant is sentenced under [OCGA § 42-8-60 (a) (2)], then the execution of his sentence has merely been suspended, thereby implying that his original sentence could not be increased.” (Punctuation and footnote omitted.) Otuwa, supra, 303 Ga. App. at 412 (2). His reliance in this regard is misplaced. In Otuwa, we further held that Tallant does not control in situations where, as here, the revoking court credited the defendant with time served in first offender status. Otuwa, supra, 303 Ga. App. at 412 (2). Likewise, to the extent Kaylor relies on McKinney, supra, 240 Ga. App. at 815 (3), that case is inapposite, because we specifically declined to address the possible effect of sentencing under subsection (a) (2) in that case. McKinney, supra, 240 Ga. App. at 814 (2).

Decided November 16, 2011.

Robert R. McNeill, Sara D. Sibley, Brett M. Willis, H. Bradford Morris, Jr., for appellant.

Lee Darragh, District Attorney, John G. Wilbanks, Jr., Assistant District Attorney, for appellee.

Because the trial court, when pronouncing Kaylor’s first offender sentence, advised him that, upon adjudication of guilt, he could be resentenced to the statutory maximum of forty years for two counts of child molestation, and that the time served would be credited against his new sentence, we conclude that the trial court was authorized to increase the sentence originally imposed on him. Roland, supra, 273 Ga. at 859 (2).

3. In his last enumeration of error, Kaylor contends that we should remand for resentencing because the record is unclear whether the trial court properly credited his time spent in confinement and probation against his new sentence, and that his present sentence would exceed the maximum 20-year sentence per count of child molestation if he did not receive credit for time served. Kaylor’s argument is without merit.

Based on our discussion in Division 2, we conclude that the trial court unambiguously stated that it intended to give Kaylor credit for time previously served. Kaylor’s argument that the trial court should have expressly calculated the time for which he was to receive credit is without merit. We have held that the Department of Corrections, not the trial court, is responsible for computing a defendant’s credit for time served. See, e.g., Williams v. State, 300 Ga. App. 319, 320 (684 SE2d 432) (2009) (finding no support for proposition that trial court is required to compute jail time).

Judgment affirmed.

Ellington and Doyle, JJ., concur.

       Roland, supra, 273 Ga. at 859 (2).


author: Dillard, Judge.

text:
    A11A0970.
    MANZIONE v. THE STATE.
    (719 SE2d 533)
   Dillard, Judge.

Following a stipulated bench trial, Elton Felix Manzione was convicted of 20 counts of sexual exploitation of children after law-enforcement officers executed a search warrant and seized from his home computer various images depicting young children engaged in sexually explicit conduct. Prior to trial, Manzione unsuccessfully moved to suppress the images, arguing that the affidavit supporting the search-warrant application was legally insufficient to support a finding of probable cause. Manzione argues that the trial court erred by denying his motion to suppress. For the reasons discussed infra, we disagree and affirm.

The facts of this case (as presented at the motion-to-suppress hearing) are undisputed. In May 2005, Yahoo! Inc. — a web portal and provider of various and sundry internet services — discovered four graphical images depicting young children engaged in sexually explicit conduct that had been uploaded to one of its online discussion boards (referred to as a Yahoo! Group). After identifying the internet protocol (“IP”) address assigned to the computer from which the images were posted, Yahoo! utilized an internet database called “WHOIS” to establish that Charter Communications was the internet service provider supplying online access to the originating computer, and further discovered that the subject computer was located in Athens, Georgia.

In accordance with the mandates set forth in 42 U.S.C. § 13032 (b) (l), the custodian of records at Yahoo! reported the offensive images and its subsequent findings — including the IP address for the originating computer — to the National Center for Missing and Exploited Children (“NCMEC”) CyberTipline, a national clearinghouse for information about children believed to be missing or sexually exploited. As also required by 42 U.S.C. § 13032 (b) (1), NCMEC placed YahooPs report and supporting documentation, including copies of the offending images, onto a compact disc and forwarded it, unedited, to the Georgia Bureau of Investigation (“GBI”).

The case was then assigned to a GBI special agent who, upon receiving and reviewing all of the information forwarded by NCMEC, concluded that the subject images contained what appeared to be child pornography. Thereafter, the agent obtained a court order directing Charter Communications to provide the subscriber information for the account associated with the IP address that Yahoo! provided. Charter Communications complied with this order, identifying Manzione as the account subscriber and supplying the GBI with Manzione’s home address (as well as additional identifying information associated with the account).

At the agent’s request, a GBI analyst then used the GBI database to confirm Manzione’s name, address, date of birth, social security number, and driver’s license number. The agent also conducted a drive-by surveillance of Manzione’s residence.

Armed with the foregoing information, the agent sought a search warrant for Manzione’s residence, including all electronic devices that could possibly contain child pornography. And in support of the application, the agent submitted an affidavit outlining the information that she received from NCMEC and the findings of her subsequent investigation. The warrant issued, and the accompanying search resulted in the seizure of various images depicting prepubescent children engaged in sexual acts.

Manzione filed a motion to suppress the images, which the trial court denied. The trial court thereafter convicted Manzione on 20 counts of sexual exploitation of children following a stipulated bench trial. This appeal follows.

At the outset, we note that, in accordance with the Fourth Amendment to the United States Constitution, a search warrant may issue only upon “facts sufficient to show probable cause that a crime is being committed or has been committed . . . .” And in determining whether probable cause exists, the issuing judge is required

simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the veracity and basis of knowledge of persons supplying hearsay information, there is a fair probability that . . . evidence of a crime will be found in a particular place.

Furthermore, in reviewing the issuance of a search warrant, we are charged with ensuring — considering the totality of the circumstances and giving substantial deference to the issuing judge’s decision — that the judge had a “substantial basis” for concluding that probable cause existed. With these guiding principles in mind, we now turn to Manzione’s arguments in support of his enumeration of error.

(a) Manzione asserts that the trial court erred in denying his motion to suppress because the GBI agent’s affidavit was legally insufficient to establish probable cause. Specifically, Manzione argues that the agent’s affidavit was premised upon inadmissible hearsay and that NCMEC was an unreliable source, requiring the agent to independently identify and verify the credibility of the Yahoo! employee who discovered and reported the images prior to seeking a warrant. In support of his argument, Manzione relies on a disclaimer purportedly contained on one of the documents forwarded to the agent, which stated that “NCMEC neither investigates nor vouches for the accuracy of the information reported” to it.

In the challenged affidavit, the agent averred that on October 25, 2005, NCMEC notified the GBI that the custodian of records at Yahoo! Inc. reported the discovery of graphical images containing child pornography posted to a Yahoo! Group and that NCMEC “confirm[ed] the existence” of the child pornography; that Yahoo! Groups allows people with similar interests to communicate with each other and to post pictures for others to view; and that Yahoo! monitors the postings for images that appear to be child pornography and, when discovered, reports such activity to NCMEC. The affidavit also noted that the offensive postings originated from a particular IP address, which it described as “the numeric address of a computer on the Internet”; that providers of internet services maintain logs to identify which customer account is assigned to a particular IP address at a particular moment in time; and that “NCMEC indicate[d] that WHOIS . . . revealed the [subject] IP address to be operating out of Athens, Georgia” with Charter Communications functioning as the internet service provider. Finally, the affidavit detailed that the agent obtained a court order requiring Charter Communications to produce the subscriber information for the account associated with the IP address on the date and time that the images were uploaded; that Charter Communications identified Manzione as the account subscriber and provided his home address and additional identifying information associated with the account; and that the agent confirmed Manzione’s identity and address, and conducted drive-by surveillance of his residence.

During the motion-to-suppress hearing, the agent admitted that although she was provided the name and contact information of the Yahoo! employee who saw and reported the subject images, at no time did she communicate with that individual. The agent further admitted that she was unaware of whether anyone at the GBI confirmed the information obtained through the WHOIS database.

Consistent with NCMEC’s disclaimer and the mandatory reporting statutory scheme, we agree with Manzione that NCMEC was nothing more than a pass-through entity between Yahoo! and the GBI. It follows, then, that the pertinent question is the degree to which the agent was authorized to rely on the information reported by Yahoo! and transmitted through NCMEC, unedited, to the GBI.

In considering this question, we note that this case is virtually indistinguishable from our recent opinion in James v. State, where we reiterated that “hearsay can be the basis for issuance of a warrant so long as there is a substantial basis for crediting the hearsay.” And while the credibility of an anonymous source or a person of unknown reliability must be independently corroborated, “a law-abiding concerned citizen has a built-in credibility and is deemed to be reliable.” Thus, in James we concluded that when a corporate provider of web-based services — in that case Google —makes a report of criminal activity pursuant to its statutory reporting obligation set forth in 42 U.S.C. § 13032 (b) (1), it is the equivalent of one made from a law-abiding concerned citizen, and therefore is “afforded a preferred status insofar as testing the credibility of [the] information.” The GBI agent’s failure in James to independently verify the credibility of the individual reporting employee therefore did not in and of itself render the search warrant application insufficient.

We reach the same result here. While the agent “could have done a more thorough job investigating the information received by the GBI,” she was entitled to presume the reliability of the Yahoo! report as transmitted through NCMEC without independently verifying the credibility of the Yahoo! employee who initially viewed the offensive images. And, crediting that report and otherwise considering the totality of the circumstances, the agent’s affidavit provided the issuing judge a substantial basis for concluding that probable cause existed sufficient to issue the search warrant for Manzione’s residence.

(b) Manzione further argues that the affidavit was misleading in that it created a false impression that NCMEC investigated and verified the allegations Yahoo! reported. Manzione specifically focuses on the agent’s averment that NCMEC “confirm[ed] the existence” of the child pornography posted on Yahoo! Groups and further asserts that the agent misrepresented that NCMEC, as opposed to Yahoo!, conducted the WHOIS search.

An affidavit supporting an application for a search warrant “is presumed valid in the absence of evidence that it contained deliberate falsehoods, was made with reckless disregard for the truth, or that the affiant consciously omitted material facts that, if included, would have indicated the absence of probable cause.” In the event that false information has been included in an affidavit, or when material information has been omitted, “the rule is that the false statements be deleted, the omitted truthful material be included, and the affidavit be reexamined to determine whether probable cause exists to issue a warrant.”

Decided November 16, 2011

James D. Crowe, for appellant.

Kenneth W. Mauldin, District Attorney, Jon R. Forwood, Assistant District Attorney, for appellee.

The affidavit in this case, although inartfully worded, is not misleading so as to taint the information it provided or to mislead the issuing judge into mistakenly believing that probable cause existed when it actually did not. Rather, it is apparent that, in context, the affidavit relayed the Yahoo! report as it had been received by the GBI (i.e., through NCMEC), which was acting in the role that it was congressionally mandated to perform. But even if we were to assume that the affidavit was misleading (thus omitting any language implying an independent investigation by NCMEC), and instead inserted language making it abundantly clear that no investigation had ever been conducted, it does not change the result in the case sub judice.

In light of our holding in Division (a), the Yahoo! employee who originally viewed the offensive images was afforded a presumption of reliability and no independent investigation into that individual’s credibility was necessary. It follows, then, that even if the agent had included in the affidavit an explicit disclaimer that NCMEC had not confirmed the veracity of that individual, it would not have resulted in a lack of probable cause to issue the search warrant. Accordingly, the trial court did not err in denying Manzione’s motion to suppress.

Judgment affirmed.

Mikell, C. J., and Smith, P. J., concur.

       42 U.S.C. § 13032, which was in effect during the time period relevant to this case, provided that
      [w]hoever, while engaged in providing an electronic communication service or a remote computing service to the public, through a facility or means of interstate or foreign commerce, obtains knowledge of facts or circumstances from which . . . child pornography ... is apparent, shall, as soon as reasonably possible, make a report of such facts or circumstances to the Cyber(Tipline] at the [NCMEC], which shall forward that report to a law enforcement agency or agencies designated by the Attorney General.
      42 U.S.C. § 13032 (b). This statute has since been repealed and the mandatory reporting requirements are now codified in 18 U.S.C. § 2258A. See Providing Resources, Officers, and Technology to Eradicate Cyber Threats to Our Children (“PROTECT Our Children”) Act of 2008, Pub. L. No. 110-401, Title Y § 501 (a), 122 Stat. 4243 (2008).

       Because the parties stipulated to the facts, neither the contents of the CD nor the images were included in the appellate record.

       OCGA § 17-5-21 (a).

        State v. Palmer, 285 Ga. 75, 77 (673 SE2d 237) (2009) (punctuation omitted).

        Whitten v. State, 174 Ga. App. 867, 868 (1) (331 SE2d 912) (1985); see Illinois v. Gates, 462 U. S. 213, 238 (III) (103 SC 2317, 76 LE2d 527) (1983).

       The document is not contained in the record, but the agent testified to its existence at the motion-to-suppress hearing and confirmed the wording of the disclaimer.

       312 Ga. App. 130 (717 SE2d 713) (2011). The facts and arguments presented in James are strikingly similar to those in this case and, indeed, James was prosecuted in the same county by the same prosecutor, was represented by the same defense counsel, and was challenging an affidavit containing remarkably similar language.

        James, 312 Ga. App. at 133 (a) (punctuation omitted).

        Penny v. State, 248 Ga. App. 772, 775 (2) (b) (547 SE2d 367) (2001) (punctuation omitted); see also Slocum v. State, 267 Ga. App. 337, 338 (599 SE2d 299) (2004) (“Where the information is provided to police by an informant who is either an identified interested citizen or an identified victim of a crime, there is a presumption of reliability.”); Miller v. State, 155 Ga. App. 399, 400 (I) (A) (270 SE2d 822) (1980) (“[A] law-abiding citizen has a built-in credibility.”).

        James, 312 Ga. App. at 134 (a) (punctuation omitted); accord Whitten, 174 Ga. App. at 868 (1) (“This [C]ourt has always given the concerned citizen informer a preferred status insofar as testing the credibility of his information.”).

        James, 312 Ga. App. at 134 (a). We note that our holding in that regard is consistent with the holdings of other jurisdictions that have examined this issue. See generally United States v. Kling, 2006 WL 1980179, at *6 (N.D. Iowa) (holding warrant affidavit supported finding of probable cause despite affiant’s failure to include identity of Yahoo! employee who made NCMEC report and/or information regarding the employee’s reliability); State v. Woldridge, 958 S2d 455, 458-59 (Fla. Dist. Ct. App. 2007) (affording AOL a presumption of reliability when reporting child pornography to NCMEC); State v. Sisson, 883 A2d 868, 879-81 (V) (B) (Del. Super. Ct. 2005) (same). Cf. United States v. Cameron, 729 FSupp.2d 418, 422 (II) (B) (D. Maine 2010) (holding that Yahoo! was not acting as a government agent, but rather as a private party interested in preventing the use of its services to commit crimes against children, when reporting child pornography to NCMEC).

        James, 312 Ga. App. at 134-135 (a).

        Id.; see also Glass v. State, 304 Ga. App. 414, 416 (1) (696 SE2d 140) (2010) (probable cause established by statement of concerned citizen despite that the affidavit lacked specific facts demonstrating the individual’s veracity); Chambliss v. State, 298 Ga. App. 293, 295 (1) (679 SE2d 831) (2009) (affording credibility to an anonymous tip made to the Department of Family and Children Services out of concern for the welfare of a child). Cf. Scott v. State, 111 Ga. App. 126, 128 (2) (625 SE2d 526) (2006) (information from an unnamed concerned citizen provided, in part, probable cause to search vehicle).

        Daniel v. State, 306 Ga. App. 48, 52 (2) (701 SE2d 499) (2010) (punctuation omitted).

        Id. (punctuation omitted).

        See James, 312 Ga. App. at 134 (a) (“[I]n making the disclosure to the NCMEC, the [web-service provider’s] [elmployee was a witness to a possible crime and acting in the role of a concerned citizen, who is afforded a preferred status insofar as testing the credibility of her information.” (punctuation omitted)).

        See James, 312 Ga. App. at 135 (b) (“Even if we assume that the affidavit contains the misrepresentations and omissions identified by [appellant], and the affidavit is re-examined with the alleged false statements omitted and the truthful material included, the information conveyed to the judge issuing the warrant is substantially the same.”); see also Flewelling v. State, 300 Ga. App. 505, 512 (2) (b) (685 SE2d 758) (2009) (holding that the material alleged to have been omitted from the warrant application was not material so as to impact a finding of probable cause); Brogdon v. State, 299 Ga. App. 547, 551-52 (1) (b) (683 SE2d 99) (2009) (same).