text:
    A15A1000.
    BROWN et al. v. HOWARD et al.
    (778 SE2d 810)
   Branch, Judge.

Courtney Howard sued various medical providers, alleging that they committed negligence during the delivery of Howard’s daughter Sahara, thereby causing a severe brain injury to the child. During the litigation, the medical providers sought discovery of Howard’s own medical records, which led to a dispute about whether and to what extent certain of the requested documents were protected from discovery by a privilege. The medical providers appeal the trial court’s ruling that most of the subject documents are privileged; they further contend the trial court erred by failing to require a privilege log that specified the matters that were privileged and the applicable privilege. For the reasons that follow, we reverse and remand with direction.

This Court reviews a trial court’s decision as to discovery matters, including the application of a privilege, for an abuse of discretion. Etowah Environmental Group v. Walsh, 333 Ga. App. 464, 475 (3) (774 SE2d 220) (2015) (attorney-client privilege); Wiles v. Wiles, 264 Ga. 594, 598 (2) (448 SE2d 681) (1994) (psychiatrist-patient privilege). Further, we also may review the documents at issue to determine whether the trial court correctly applied the privilege. See, e.g., Plunkett v. Ginsburg, 217 Ga. App. 20, 21 (456 SE2d 595) (1995); Annandale at Suwanee v. Weatherly, 194 Ga. App. 803, 804 (392 SE2d 27) (1990).

In her suit, Howard alleged that she became pregnant in late 2010 and that her pregnancy proceeded normally for 27 weeks. At that point, due to certain symptoms, Howard presented to Webstar Cobb Hospital, but the fetus was found to be doing web and Howard was discharged home early in the morning of May 31, 2011. On June 3, Howard returned to Webstar when her “membranes spontaneously ruptured,” but tests at the hospital did not confirm the rupture and Howard was discharged at 1:40 a.m. on June 4. On June 7 at 7:40 p.m., Howard returned a third time, this time with lower abdominal pain. Tests taken as early as 1:20 a.m. and again at 3:30 a.m. on June 8 indicated a need for an immediate delivery of the child, but the child was not delivered until approximately 6:00 a.m. Howard alleges that the medical providers were negligent in providing care thereby causing the child to sustain a severe brain injury.

During discovery, the medical providers asked Howard to produce all of her medical records from age 10 to the present, and requested that she identify all treatment she had received from psychologists, psychiatrists, clinics, and all other medical providers. In response, Howard objected on the ground that the request was overly broad and unduly burdensome but not on the ground of privilege. Howard was then deposed, during which she revealed that she smoked as many as four joints of marijuana a day prior to learning that she was pregnant and that she was further exposed to other people smoking marijuana during the remainder of her pregnancy; she also admitted resuming smoking marijuana after she delivered the child. She denied using any other drugs. Howard also admitted that she had previously received mental health and substance abuse treatment at Cobb Recovery Center (“CRC”) and that she had taken “drug classes” there as a condition of probation arising out of a charge of simple battery that was later dropped. Medical documents produced from other sources showed that Howard tested positive for marijuana on one or more occasions during her pregnancy.

As a result, the medical providers requested that Howard provide a HIPAA-compliant authorization that would allow CRC to produce Howard’s CRC records. Howard apparently refused, and the medical providers moved to compel production of the CRC records. Howard responded and objected on the ground that the documents were not relevant because they pertained only to treatment Howard received several years before and several years after her pregnancy. She also objected on the ground that the documents were protected by the mental health privilege. The trial court conducted a hearing on the motion, following which the court directed Howard to produce to the court all CRC records for an in camera review, to produce to the court a privilege log meeting the parameters of Federal Rule of Civil Procedure (“FRCP”) 26 (b) (5) (A), and to produce to the medical providers any nonprivileged documents. Howard produced to the court all CRC documents with an index, but there is no indication that Howard produced a privilege log that complied with FRCP 26. Howard also produced to the medical providers the CRC billing records. The court subsequently issued an order in which it stated that it had reviewed the documents to determine

(1) whether the records are privileged, (2) whether there are any nonprivileged records in the submission, (3) whether there has been a waiver of the privilege with regard to any privileged information, and (4) whether to require the disclosure of any records which are not privileged or as to which any privilege has been waived.

The trial court then concluded that, with the exception of the billing records already produced by Howard, the CRC records “are privileged and... the privilege has not been waived.” The court did not address Howard’s failure to produce a privilege log. This Court granted the medical providers’ request for interlocutory review of the trial court’s decision with regard to the documents the trial court deemed to be privileged.

1. The medical providers contend the trial court erred by concluding that all of the CRC records other than the billing records were privileged. The providers contend they are entitled to those portions of the documents that show (a) dates, times, and individual providers of services rendered to Howard by CRC; (b) any educational services provided by CRC to Howard, including substance abuse classes and job training; (c) Howard’s communications made to or recorded by nonlicensed personnel or personnel not listed in OCGA § 24-5-501 (a); and (d) court-mandated or probation-related evaluations and drug tests of Howard conducted by CRC.

“Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action[.]” OCGA § 9-11-26 (b) (1). Georgia law provides several privileges related to mental health, which, collectively, are referred to as the “mental health privilege.” State v. Herendeen, 279 Ga. 323, 325 (613 SE2d 647) (2005). The components of the mental health privilege include

(5) Communications between psychiatrist and patient;
(6) Communications between licensed psychologist and patient as provided in Code Section 43-39-16;
(7) Communications between a licensed clinical social worker, clinical nurse specialist in psychiatric/mental health, licensed marriage and family therapist, or licensed professional counselor and patient; [and]
(8) Communications between or among any psychiatrist, psychologist, licensed clinical social worker, clinical nurse specialist in psychiatric/mental health, licensed marriage and family therapist, and licensed professional counselor who are rendering psychotherapy or have rendered psychotherapy to a patient, regarding that patient’s communications which are otherwise privileged by paragraph (5), (6), or (7) of this subsection [.]

OCGA § 24-5-501 (a). See also OCGA § 43-39-16 (“The confidential relations and communications between a licensed psychologist and client are placed upon the same basis as those provided by law between attorney and client; and nothing in this chapter shall be construed to require any such privileged communication to be disclosed.”). Thus, “[a]ny information . . . which had its origins in communications from the patients to the [mental] health providers is privileged.” Herendeen, 279 Ga. at 327 (citations omitted).

The mental health privilege “remains inviolate even though the patient’s care and treatment or the nature or extent of the patient’s injuries are put in issue in a civil proceeding.” Cooksey v. Landry, 295 Ga. 430, 432-433 (2) (761 SE2d 61) (2014) (citations omitted). And “[t]he psychiatrist-patient privilege is not diminished by the fact that the patient sought or contemplated treatment jointly with other persons, or primarily for the benefit of another person who is in treatment by the same psychiatrist.” Mrozinski v. Pogue, 205 Ga. App. 731, 733 (1) (423 SE2d405) (1992) (addressing family therapy); Sims v. State, 251 Ga. 877, 880 (5) (311 SE2d 161) (1984) (statements made by husband during joint psychiatric counseling with wife were privileged); compare Karpowicz v. Hyles, 247 Ga. App. 292, 294 (1) (543 SE2d 51) (2000) (mother’s statement to licensed clinical psychologist who treated her daughter that she was afraid that her daughter was unable to distinguish fact from reality was not privileged because only daughter, not mother, sought mental health treatment). Also, drug and alcohol treatment records are protected by federal law under certain circumstances. See Sletto v. Hosp. Auth. of Houston County, 239 Ga. App. 203, 208 (521 SE2d 199) (1999) (Eldridge, J., concurring specially).

But all psychiatric records “are not absolutely privileged.” Plunkett, 217 Ga. App. at 21. And nonprivileged portions of such records are subject to discovery. Aetna Cas. & Sur. Co. v. Ridgeview Institute, 194 Ga. App. 805 (392 SE2d 286) (1990). For example, “[t]he privilege does not extend ... to any communications made [by the patient] to nurses or attendants, unless [the nurses or attendants] were acting as agents of the attending psychiatrist [.]” Plunkett, 217 Ga. App. at21 (citation omitted). Similarly,

[t]o the extent that the records in question disclose information or communications made between [a mental health professional] and persons other than [another mental health professional or his or her] agent and such communications are relevant to [the] defense, they would be discoverable under Georgia law.

Aetna Cas. & Sur. Co., 194 Ga. App. at 806 (1) (citation omitted). And where “no mental health treatment is given or contemplated” — for instance, when a court appoints a mental health provider to evaluate a person’s mental state as opposed to providing treatment — the mental health privilege is inapplicable. Herendeen, 279 Ga. at 326. Compare In the Interest of I. M. G., 276 Ga. App. 598, 603 (1) (624 SE2d 236) (2005) (even if a patient received treatment involuntarily, the fact that she received psychotherapist-patient treatment meant the mental health privilege applies). Also, drug tests required by an employer are not protected. Foster v. Swinney, 263 Ga. App. 510, 512 (a) (588 SE2d 307) (2003). Finally, “the fact of employment of or treatment by a mental health provider and the dates thereof do not fall within the mental health privilege and may be disclosed.” Herendeen, 279 Ga. at 327 (citations omitted); Kennestone Hosp. v. Hopson, 273 Ga. 145, 148 (538 SE2d 742) (2000); Mincey v. Ga. Dept. of Community Affairs, 308 Ga. App. 740, 746 (1) (708 SE2d 644) (2011).

Our review of the records at issue shows, among other things, dates of service; the names of several persons whose professional status is unknown; numerous documents where, without additional information about the content of the document, we are unable to tell whether it had its origin in a communication between Howard and a mental health provider; documents that include undefined acronyms making the nature of the services rendered indecipherable; reports of a medical doctor concerning a medical diagnosis; various notices of the privacy practices of the Cobb/Douglas County Community Services Boards and consent agreements signed by Howard regarding her right to confidentiality and any exceptions thereto; statements of payment for services; indications that Howard has participated in group counseling sessions but without specifics regarding the group nature of the sessions; medical risk assessment documents; communications from Howard’s mother to CRC personnel; a letter “To Whom It May Concern” regarding the program and treatment Howard was receiving; documents reporting conversations with other nonprofessionals present; and indications of the results of random drug screenings.

Many of these documents, however, are obviously not relevant to the present proceedings. Nevertheless, because some of the documents may be both relevant and nonprivileged, the trial court erred by concluding that all of the documents other than the produced billing documents are privileged. Plunkett, 217 Ga. App. at 22. Any relevant and nonprivileged documents should be produced even if redactions are necessary. This Court is unable to complete the review of the documents without additional information not available to this Court, such as, among other things, the professional status of certain individuals, whether the information in some of the documents had its origin in a communication between Howard and a mental health provider, and whether certain documents reflect treatment other than mental health treatment. Accordingly, this case is remanded to the trial court for an in camera review in conformance with this opinion, “i.e., to separate privileged versus non-privileged information and provide a redacted copy.” Id. (reversing trial court’s order determining that entire psychiatrist’s file was privileged and remanding for additional in camera review); see also Herendeen, 279 Ga. at 328 (remanding case for in camera review to determine what documents were privileged).

Decided October 16, 2015.

Hall Booth Smith, John E. Hall, Jr., Beth W. Kanik, Andrew K. Hazen, for appellants.

Steel, Moss & Ebert, John D. Steel, for appellees.

2. The medical providers contend the trial court also erred by barring any discovery of the CRC records without requiring Howard to produce a privilege log in compliance with FRCP Rule 26 (b) (5) (A) as it had previously ordered. The trial court had ordered Howard to prepare such a log in response to the medical providers’ motion to compel production of the CRC records, but it did not specify a penalty for noncompliance. In its order following the in camera review of the CRC documents, the trial court did not address Howard’s failure to produce a privilege log. Because the trial court has not addressed Howard’s failure to produce a privilege log, there is nothing for this Court to review; we are not able to assess whether the trial court breached its discretion. Upon remand, the trial court should address Howard’s failure to comply with the court’s own ruling to prepare such a log.

Judgment reversed and case remanded with direction.

Andrews, P. J., and Miller, J., concur.

       On appeal, the medical providers do not argue that the trial court erred by concluding that Howard had not waived the applicable privilege. See generally Kennestone Hosp. v. Hopson, 273 Ga. 145, 149 (538 SE2d 742) (2000) (“[A] party’s silence and failure to act in response to a request for privileged matter from a nonparty health care provider or facility under OCGA § 9-11-34 (c) (2) does not waive the party’s privilege by implication.”).

       The Heath Insurance Portability and Accountability Act of 1996. 42 USC § 1320d et seq.

       FRCP 26 (b) (5) (A) provides:
      When a party withholds information otherwise discoverable by claiming that the information is privileged or subject to protection as trial-preparation material, the party must: (i) expressly make the claim; and (ii) describe the nature of the documents, communications, or tangible things not produced or disclosed — and do so in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the claim.

       The court also stated that it would maintain the privileged CRC documents under seal, and the documents were delivered under seal to this Court.


source: Caselaw Access Project

author: Doyle, Chief Judge.

license: Public Domain

text:
    A15A0907.
    THOMAS v. THE STATE.
    (778 SE2d 815)
   Doyle, Chief Judge.

Marcus Thomas was convicted of two counts of armed robbery and two counts of possession of a firearm during the commission of a crime. Thomas appeals the subsequent denial of his motion for new trial, challenging the sufficiency of the evidence and arguing that the trial court erred by denying his Batson challenges to the State’s strikes of four prospective jurors and by admitting his custodial statements into evidence because the statements were obtained after he invoked his right to remain silent. We affirm for the reasons that follow.

On appeal from a criminal conviction, we view the evidence in a light favorable to the verdict, and the defendant no longer enjoys a presumption of innocence. We do not weigh the evidence or resolve issues of witness credibility, but merely determine whether the evidence was sufficient to find the defendant guilty beyond a reasonable doubt.

So viewed, the record shows that at approximately 9:00 a.m. on November 19, 2007, Thomas and an accomplice entered an Augusta gas station, produced a pistol, and demanded the money in the cash register. A customer saw the two men exit the store and run toward a large, blue vehicle in which a woman was waiting.

Later that same day, Thomas and a woman entered an Augusta Subway restaurant. Thomas brandished a black pistol, pointed it at the restaurant employees, demanded money, took paper bills and rolled coins from the cash drawer, exited the restaurant, and fled in a light blue van. Thomas had a bandana tied around his face, and the female accomplice wore a white hockey or “Freddy Kru[e]ger” mask and gloves.

During the ensuing investigation, police discovered that Thomas’s wife was a former employee of the Subway. Police went to the home where Thomas and his wife lived and found both of them there, as well as multiple other people. A search of the home revealed a hockey mask, a black replica pistol, a Subway ball cap, a bandana, gloves, other clothing consistent with that worn by the assailants during the robberies, and a roll of pennies; these items were found in the bedroom Thomas shared with his wife.

At trial, the gas station clerk identified Thomas as the man who robbed the station. Footage of video surveillance of the gas station robbery was played for the jury, as was footage of the Subway robbery. After Thomas was arrested, he initially denied any involvement in the robberies, but after being confronted with evidence, he later admitted that he participated in the robberies and gave details of his actions; a DVD of Thomas’s taped statement was played for the jury.

Thomas was convicted and sentenced to two life sentences plus ten years, to be served consecutively. The trial court denied his subsequent motion for new trial, and this appeal followed.

1. Thomas challenges the sufficiency of the evidence in a single paragraph, which lacks any specificity regarding the evidence or the elements of the charges. Having reviewed the evidence, we conclude that it was sufficient to establish his guilt beyond a reasonable doubt.

2. Thomas contends that the trial court erred by denying his Batson challenge, arguing that the State failed to give a race-neutral reason for four of its peremptory strikes during jury selection. This enumeration presents no basis for reversal.

Batson provides a three-step process for adjudicating a claim that a peremptory challenge was based on race: (1) the opponent of a peremptory challenge must make a prima facie showing of racial discrimination; (2) the proponent of the strike must then provide a race-neutral explanation for the strike; and (3) the court must decide whether the opponent of the strike has proven discriminatory intent. A trial court’s finding as to whether the opponent of a strike has proven discriminatory intent is entitled to great deference and will not be disturbed unless clearly erroneous.

“The exercise of a peremptory challenge must not be based on either the race of the juror or the racial stereotypes held by the party. And the proffer of a pretextual explanation naturally gives rise to an inference of discriminatory intent.”

Here, although voir dire was not transcribed, during the Batson hearing, defense counsel averred that the State used all of its eight strikes for the regular jury and both of its two strikes in the alternate pool to strike black jurors. The trial court found that the defense had met its prima facie showing of racial discrimination and required the State to give race-neutral reasons for its strikes. After hearing the reasons, the trial court found that three of the State’s strikes for the regular jury were not race-neutral, and it returned those jurors to the panel; the court found that the State offered a race-neutral explanation for the State’s five other peremptory strikes for the regular jury.

On appeal, Thomas challenges the State’s explanations for four of the five strikes that the trial court determined were race-neutral. The State explained that it struck (1) Juror C. W. because she indicated that she had previously served on a jury and could not sit fairly in this case; (2) Juror S. B. because she had previously served on multiple juries, some of which resulted in a not guilty verdict; (3) Juror K. W. because she fell asleep during voir dire and had previously served as the foreperson on a jury that rendered a not guilty verdict; and (4) Juror D. J. because he indicated “that he could not judge a fellow human being.”

[Thomas] does not argue that the reasons cited for striking Jurors [C. W., S. B., K. W., and D. J.] were inherently racially discriminatory or based on racial stereotypes, nor has he cited us to any authority holding that similar reasons have been found to be based on racial stereotypes. And without the transcript of the voir dire, we must assume that the trial court’s recollection of voir dire, including [his] recollection of each juror’s responses and demeanor, was accurate and supported [Ms] decision to find the prosecution’s explanations as to [those j]urors ... to be race[-] neutral. Therefore, without access to a complete transcript of the voir dire of the jury, we cannot conclude that it was clearly erroneous for the trial court to rule that [Thomas] failed to carry his burden of proving that the race-neutral reasons given by the proponent of the strike [s] were merely pretexts for purposeful racial discrimination. The posture of the evidence in the partial transcript does not support [Thomas’s] Batson challenge. Since the voir dire was not transcribed, we must assume that the trial court did not err in its Batson ruling.

3. Thomas also argues that the trial court erred by admitting his custodial statement, which he contends violated his Miranda rights.

“When an appellate court reviews a trial court’s grant or denial of a motion to suppress, the trial court’s findings as to disputed facts will be upheld unless clearly erroneous [,] and the trial court’s application of the law to undisputed facts is subject to de novo review.” In this case, because the facts are undisputed, our review is de novo.

Thomas was taken into custody at his home and transported to the police station, where he was placed in a six foot by six foot room, and his feet were shackled to the floor. At 4:20 p.m., Sergeant Ken Rogers entered the room, told Thomas that he was a suspect in their investigation of two robberies and that they needed to interview him, and then elicited from Thomas basic information including his name and date of birth. Rogers then read Thomas his Miranda rights. Thomas responded “that he did not want to make a statement.” Rogers “then spoke with him a couple — a little bit further [,] and [Thomas] basically said he had no knowledge of any robberies and that [the police] could just put him in jail.” Rogers then left the room.

Thomas remained alone in the small interview room for more than three hours, during which time his feet were shackled to the floor, and he was not offered food, water, or the opportunity to use the restroom. Around 8:00 p.m., Rogers and another investigator approached Investigator James Kelly, advised him that Thomas was in the interview room and had refused to speak with them, and asked Kelly to go in and attempt to speak with Thomas.

Kelly entered the interview room at 8:20 p.m. and began speaking with Thomas, “[a]dvis[ing him] that he needed to cooperate with the[ ] investigators.” Kelly then told Thomas that Thomas’s wife had made a statement to police incriminating Thomas. When Thomas responded that he did not believe Kelly, Kelly left the room, retrieved the audio recording of Thomas’s wife’s statement, and played a small portion of it for Thomas. Thomas then agreed to speak with the other investigators about the robbery, signed a Miranda waiver form, and gave a recorded statement detailing his involvement in the two robberies.

In examining the operation of the Fifth Amendment’s privilege against self-incrimination, the United States Supreme Court has made clear that when an individual in custody “indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease.” At this point, that individual “has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion.”

Here, Thomas unequivocally invoked his right to remain silent when he told Rogers that he “was not making a statement and that [the police] could just put him in jail.” The invocation itself, however, does not automatically require suppression of Thomas’s statement because

an accused’s assertion of his right to remain silent effects neither a permanent immunity from further interrogation by the police nor a blanket prohibition on later statements made voluntarily by the accused. Rather, the admissibility of statements obtained after the person in custody has decided to remain silent depends under Miranda on whether his right to cut off questioning was scrupulously honored by law enforcement authorities.

Factors in determining whether a defendant’s assertion of his right to remain silent was scrupulously honored include whether police immediately ceased all questioning upon assertion and the time interval between the assertion and the subsequent police-initiated questioning. After applying these factors, we conclude that Thomas’s statement was improperly obtained.

First, Rogers admitted at the suppression hearing that after Thomas told him that he would not make a statement, Rogers “spoke with him a couple — a little bit further.” And less than four hours transpired before Rogers sent Kelly in to speak with Thomas. Thus, this short time interval weighs in favor of suppression. Secondly, there is no evidence that Thomas initiated the conversation with Kelly. Instead, Kelly went into the room, without any communication from Thomas during the break after Rogers left the room, and Kelly immediately advised Thomas to cooperate and then began advising Thomas of his wife’s statement incriminating him. Under these circumstances “the State has failed to satisfy its burden to establish an effective initiation by [Thomas].” Accordingly, we hold that Thomas’s statements made after he invoked his right to remain silent were improperly obtained.

Nevertheless, we find the error harmless in light of the overwhelming evidence of Thomas’s guilt, including the gas station attendant’s identification of him, the video surveillance footage of the two robberies, the multitude of items found in his bedroom linking him to the robberies, and the fact that his wife, who participated in the robbery of the Subway, was a disgruntled former employee of the restaurant.

Judgment affirmed.

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

Decided October 19, 2015.

Gabriel T. Cliett, for appellant.

Ashley Wright, District Attorney, Joshua B. Smith, Madonna M. Little, Assistant District Attorneys, for appellee.

       OCGA § 16-8-41 (a).

       OCGA § 16-11-106 (b) (1).

        Batson v. Kentucky, 476 U. S. 79 (106 SCt 1712, 90 LE2d 69) (1986).

       (Footnotes omitted.) New v. State, 270 Ga. App. 341 (1) (606 SE2d 865) (2004), citing Waller v. State, 267 Ga. App. 608 (600 SE2d 706) (2004).

       See Jones v. State, 266 Ga. App. 679, 681-682 (1) (598 SE2d 65) (2004). See also Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979); OCGA §§ 16-8-41 (a) (armed robbery); 16-11-106 (b) (1) (possession of a firearm during the commission of a felony).

       (Citation omitted.) Woodall v. State, 294 Ga. 624, 627 (3) (754 SE2d 335) (2014).

       (Citation and punctuation omitted.) Minor v. State, 328 Ga. App. 128, 136 (4) (761 SE2d 538) (2014), quoting Toomer v. State, 292 Ga. 49, 55 (2) (b) (734 SE2d 333) (2012) and Lewis v. State, 262 Ga. 679, 680 (2) (424 SE2d 626) (1993).

       Defense counsel advised that the jury and the two alternates were comprised of seven white jurors and seven hlack jurors. The record is not clear on which were the alternates.

       “[R]equir[ing] the State to articulate its reasons for the peremptory strikes, render[ed] moot the issue of whether [Thomas] had established a prima facie case. Accordingly, we [need] not address whether [Thomas] established a prima facie case under Batson.” Minor, 328 Ga. App. at 137 (4).

       The trial court found that the State offered race-neutral reasons for its two strikes for the alternate jurors. Thomas does not challenge these strikes on appeal.

       The State also averred that it had independent information — not offered by S. B. — that in one case she was “a hostile juror” and refused to sit with the other jurors.

       (Punctuation and footnote omitted.) Id. at 140 (6), quoting Russell v. Parkford Mgmt. Co., 235 Ga. App. 81, 83 (2) (508 SE2d 454) (1998).

        Miranda v. Arizona, 384 U. S. 436 (86 SCt 1602, 16 LE2d 694) (1966).

        State v. Nash, 279 Ga. 646, 648 (2) (619 SE2d 684) (2005).

       See Mack v. State, 296 Ga. 239, 241-242 (765 SE2d 896) (2014).

       This colloquy was not recorded.

       At the suppression hearing, when asked why he sent Kelly in to speak with Thomas, Rogers replied, “Basically, what occurs is — my experience is if I interview somebody I may get nothing. Another investigator may go in there and get them to confess everything and anything. ... So we customarily take turns at trying to get them to talk and so forth. It’s not uncommon.”

       (Citation omitted.) Id. at 242 (1), quoting Miranda, 384 U. S. at 473-474 (III).

       See Mack, 296 Ga. at 242-243 (1) (defendant’s statement that “I’m done. I have no more to say. I’m done. Let’s ride,” was an unequivocal assertion of the right to remain silent); Green v. State, 275 Ga. 569, 572-573 (2) (570 SE2d 207) (2002) (finding unequivocal assertion of right to remain silent when the defendant told police, “I don’t want to talk.”).

       (Citation and punctuation omitted.) Mack, 296 Ga. at 243 (2), quoting Michigan v. Mosley, 423 U. S. 96, 102, 104 (96 SCt 321, 46 LE2d 313) (1975).

       See Mack, 296 Ga. at 243 (2).

       The record is silent as to the substance of the brief colloquy before Rogers left the interview room.

       See id. at 243-244 (2) (Although the Supreme Court of Georgia “[has] never established a bright line for what constitutes the requisite time interval in this regard, [it has] previously held... that a 17-hour overnight time lapse between assertion of the privilege and further police communications was not sufficient.”).

       (Punctuation omitted.) Id. at 249 (2).

       See Arizona v. Fulminante, 499 U. S. 279, 295 (IV) (111 SCt 1246, 113 LE2d 302) (1991) (stating that the “harmless-error analysis applies to coerced confessions”); Richardson v. State,
        265 Ga. App. 711, 716 (1) (595 SE2d 565) (2004), disapproved on other grounds by Brown v. State, 290 Ga. 865, 869, n. 2 (725 SE2d 320) (2012); Hadley v. State, 235 Ga. App. 737, 738 (510 SE2d 569) (1998).


author: BARNES, Presiding Judge.

text:
    A15A1484.
    WILLIAMS v. THE STATE.
    (778 SE2d 820)
   BARNES, Presiding Judge.

A jury found Joseph Williams guilty of three misdemeanors related to his refusal to cooperate with police at a roadblock. Williams appeals, arguing that the trial court erred by denying his motion to suppress because the roadblock was unconstitutional. We conclude that the police had reasonable suspicion to stop Williams independently from the roadblock, and we therefore affirm.

Viewed in a light favorable to the verdict, the record shows that on the evening of January 3, 2014, officers from the Atlanta Police Department set up a safety checkpoint at an intersection in a residential neighborhood. The officers flagged down all vehicles passing through the intersection to check driver’s licenses and vehicle registrations. Two officers stood on the north side of the intersection motioning for southbound motorists to halt just before a stop sign, while a third officer stood on the south side of the intersection intercepting northbound motorists. Williams approached the intersection traveling southbound and failed to heed the commands of the two officers there to stop. He proceeded to the stop sign, stopped there, and then continued through the intersection.

The officer on the south side of the intersection saw Williams fail to stop for his colleagues on the north side. The south-side officer also saw Williams manipulating a device that appeared to be a camera as he drove through the intersection. The officer stepped in front of Williams’s car and gestured for him to stop, which Williams did.

The officer approached the car and asked Williams for his driver’s license, but Williams did not provide it. Instead, he continued to manipulate the device (which was, indeed, a camera), asked the officer for the legal basis of the stop and whether he was free to leave, and refused to answer questions without his attorney present. The officer consulted his supervisor, who ordered a computer check of Williams’s license plate. That check showed that the license plate was valid and the car was registered to Williams, who had a valid driver’s license. After establishing Williams’s identity, the officers allowed him to leave.

Later that night, the officers obtained warrants and arrested Williams at his apartment. Williams was charged with failure to carry a driver’s license; failure to drive with due care, in that he was holding a camera that distracted him; failure to obey a person directing traffic; and obstruction. He filed a motion to suppress all evidence gathered after his detention, arguing that the police roadblock was unconstitutional. At the close of the hearing on the motion, the trial court orally ruled that the roadblock was constitutional and that, in any event, Williams lacked standing to challenge it because he had failed to stop for it. The court later entered a written order summarily denying the motion.

The case proceeded to a jury trial, after which Williams was convicted on all counts except failure to drive with due care. He filed a motion for new trial, which the court denied. This appeal ensued.

1. Williams argues that the trial court’s rulings on standing and the constitutionality of the roadblock were erroneous. While the State contends that the court ruled correctly, it also argues, more fundamentally, that the south-side officer had reasonable suspicion to stop Williams independently of the roadblock because the officer saw him commit two crimes — driving past officers who had directed him to stop, and driving while distracted. We agree with the State.

(a) First, we address Williams’s assertion that we may not consider this independent-justification argument because the State raises it for the first time on appeal. At both the suppression hearing and at trial, the south-side officer testified unequivocally that he stopped Williams because he saw him commit crimes. But because the basis for Williams’s suppression motion was the constitutionality of the roadblock, much of the State’s argument at the suppression hearing was devoted to defending the roadblock. Nevertheless, the State also argued that “this wasn’t even a roadblock case” because the south-side officer was justified in stopping Williams for “bypassing” the north-side officers. And although the trial court did not deny Williams’s motion on the ground that the stop was independently justified, “a trial court’s ruling on a motion to suppress will be upheld if it is right for any reason.” Registe v. State, 292 Ga. 154, 157, n. 6 (734 SE2d 19) (2012). Thus, we are authorized to consider this argument on appeal.

(b) It is well established that a police officer may initiate a traffic stop if the defendant commits a traffic violation in his presence. Proctor v. State, 298 Ga. App. 388, 390 (1) (680 SE2d 493) (2009) (“the stop of a vehicle is also authorized ... if the officer observed a traffic offense”) (footnote omitted). The south-side officer testified that he stopped Williams because he saw Williams fail to obey an officer directing traffic. That crime is codified at OCGA § 40-6-2, which is titled “Obedience to authorized persons directing traffic,” and which provides: “No person shall fail or refuse to comply with any lawful order or direction of any police officer . . . invested by law with authority to direct, control, or regulate traffic.” The two officers on the north side of the intersection were wearing police uniforms with “high-visibility traffic vests,” carrying flashlights, and directing all south-bound vehicles approaching the intersection to stop. Thus, they were performing a lawful police function within the meaning of OCGA § 40-6-2. See Sommerfield v. Blue Cross & Blue Shield of Ga., 235 Ga. App. 375, 376-377 (1) (509 SE2d 100) (1998). Accordingly, Williams was obligated to comply with any “lawful order” the officers gave him.

The statute does not define “lawful order,” and we have had little occasion to construe its meaning. We are guided, however, by the conclusions of courts in other jurisdictions interpreting nearly identical statutes that a “lawful order” means “an order within the officer’s scope of responsibility in directing traffic.” State v. Gates, 395 NE2d 535, 537 (Ohio Misc. 1979); see also State v. Greene, 623 P2d 933, 938-939 (Kan. Ct. App. 1981) (“lawful order” is one related to traffic control given by an officer engaged in directing traffic); Sly v. State, 387 S2d 913, 915 (Ala. Crim. App. 1980) (“lawful order” is “directly related to the direction, control and regulation of traffic”); State v. Lichti, 367 NW2d 138, 141 (Neb. 1985) (officer’s command that defendant drive home was “lawful order,” even though defendant was intoxicated, because it was given in the context of directing traffic). Applying this definition here, Williams violated OCGA § 40-6-2 by ignoring the “stop” commands of the officers on the north side of the intersection who were performing the police function of directing traffic. The south-side officer’s observation of this violation justified his stop of Williams’s vehicle.

Decided October 19, 2015.

Chestney Law Firm, Robert W. Chestney, for appellant.

Sherry Boston, Solicitor-General, Wystan B. Getz, Assistant Solicitor - General, for appellee.

The south-side officer also claimed to have seen Williams violate OCGA § 40-6-241, which provides: “A driver shall exercise due care in operating a motor vehicle on the highways of this state and shall not engage in any actions which shall distract such driver from the safe operation of such vehicle.” As Williams proceeded through the intersection, he was manipulating “some sort of device in his hands,” which the south-side officer believed “was contributing to him not stopping” for the north-side officers. This second observed traffic violation also justified the south-side officer’s stop of Williams. See Proctor, 298 Ga. App. at 390 (1). Thus, the trial court did not err by denying Williams’s motion to suppress evidence obtained as a result of his stop and detention.

2. Having ruled that Williams’s stop was justified because of his observed traffic violations, we need not consider the constitutionality of the roadblock or Williams’s standing to challenge it.

Judgment affirmed.

Ray and McMillian, JJ., concur in judgment only.

       See Falay v. State, 320 Ga. App. 781 (740 SE2d 738) (2013).

       See OCGA § 40-5-29 (a).

       See OCGA § 40-6-241.

       See OCGA § 40-6-2.

       See OCGA § 16-10-24 (a).

       Williams applied to this Court for interlocutory review, but we denied the application. See Case No. A14I0273, decided August 27, 2014.

       Williams points to the prosecutor’s comment that “we’re not saying he did any violations” as evidence of the State’s failure to raise the independent-justification argument below, but — understood fairly in context — the prosecutor was simply saying that Williams did not initially draw the officers’ attention due to any traffic violations.

       In Carroll v. State, 157 Ga. App. 112 (276 SE2d 265) (1981), we held that a police officer’s direction to the defendant to move a tow truck out of the street was not a “lawful order” because the defendant was not “the owner, operator or otherwise in control of the wrecker in question.” Thus, while we have ruled that a “lawful order” must be directed to a person who has the ability to comply with it, we have not otherwise defined the term.

       Even if the north-side officers’ “stop” commands were not lawful orders, the south-side officer’s honest belief that Williams had violated OCGA § 40-6-2 justified the stop. See State v. Webb, 193 Ga. App. 2, 4 (1) (386 SE2d 891) (1989) (“Although an officer’s honest belief that a traffic violation has actually been committed in his presence may ultimately prove to be incorrect, such a mistaken-but-honest belief may nevertheless demonstrate the existence of at least an articulable suspicion and reasonable grounds for the stop.”) (citation and punctuation omitted).


author: Branch, Judge.

text:
    A15A0847.
    GUICE v. BROWN.
    (778 SE2d 823)
   Branch, Judge.

James Michael Brown and Ellis Willard Guice, an employee of the City of Rockmart, were involved in a car accident. Brown sued Guice, and Guice moved for summary judgment on the ground that he was immune from suit under Georgia law. Guice now appeals the denial of his motion for summary judgment. As shown below, we hold that the trial court erred by denying Guice’s motion.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). We review a grant or denial of summary judgment de novo and construe the evidence in the light most favorable to the nonmovant. Home Builders Assn. of Savannah v. Chatham County, 276 Ga. 243, 245 (1) (577 SE2d 564) (2003).

The principal facts are not in dispute. The record shows that on the day of the accident, Guice was installing stop signs in Rockmart as a part of his employment and that at the time, he was driving a city owned truck covered by the city’s liability insurance policy. After Guice finished installing one sign located next to a private shopping center, Guice drove through the shopping center parking lot to begin his trip back to the Rockmart Public Works Department. He cut through the shopping center in order to avoid heavy traffic on the roads and at an intersection. After passing through the shopping center, Guice began to turn right out of the shopping center onto Georgia 278 West and to cross several lanes of traffic in an attempt to get into a left turn lane for the upcoming intersection with Georgia 101 South. As he did so, he was struck by a westbound vehicle driven by Brown; Guice did not see Brown’s vehicle before the collision and does not know which of the westbound lanes Brown was driving in at the time of the collision. Guice’s employer testified that if an employee performed a criminal act or trespassed on private property, the city would not consider the employee to be acting within the scope of his employment at the time of such an act. And Guice testified that no one gave him permission to cross the shopping center in order to get to Georgia 278.

After discovery, Guice moved for summary judgment contending that he was immune from suit and liability because he was acting within the scope of his employment at the time of the accident. The trial court initially granted the motion, finding that Guice was acting within the scope of employment, and it ordered Brown to add the City of Rockmart as a defendant. Following a subsequent hearing on a motion for contempt against Brown for failure to add Rockmart, the trial court vacated its earlier decision and held that there was a genuine issue of material fact for the jury; it therefore denied Guice’s motion for summary judgment on the issue of immunity. Guice appeals from that order. He contends the trial court erred by denying his motion for summary judgment and by failing to follow the framework for analyzing the immunity issue provided in Allen Kane’s Major Dodge v. Barnes, 243 Ga. 776 (257 SE2d 186) (1979).

Guice asserts immunity based on OCGA § 36-92-3 (a) which provides as follows:

Any local government officer or employee who commits a tort involving the use of a covered motor vehicle while in the performance of his or her official duties is not subject to lawsuit or liability therefor. Nothing in this chapter, however, shall be construed to give the local government officer or employee immunity from suit and liability if it is proved that the local government officer’s or employee’s conduct was not within the performance of his or her official duties.

OCGA § 36-92-3 (a). Thus, here, immunity depends on whether Guice was acting within the scope of his employment at the time of the accident. Brown contends that there is an issue of fact as to this question because Guice traveled across the private shopping center without permission and his employer stated that if Guice performed a criminal act or was trespassing on private property, the city would not consider Guice to be acting within the scope of his employment at the time; Brown also asserts that there is an issue of fact as to whether Guice’s vehicle, at least partially, was still in the parking lot when the accident occurred. More specifically, Brown contends there is an issue of fact as to whether (1) Guice was criminally trespassing under OCGA § 16-7-21 (b) (1) at the time of the accident; (2) Guice was guilty of a misdemeanor under OCGA § 40-6-20 (e) for “disregarding]” the traffic signal that he avoided by driving through the shopping center; and (3) Guice acted in violation of a city ordinance and a Polk County ordinance by interfering with the private property of another by driving through the shopping center.

Pretermitting whether any possible violation of law resulting from Guice driving across the shopping center requires a conclusion that Guice was acting outside the scope of his employment at the time, as explained below, we hold that Brown has failed to present any evidence or legal authority for such a violation. We therefore need not consider whether there is an issue of fact as to whether the accident occurred fully on the roadway or while Guice was in the process of exiting the shopping center.

First, Brown’s arguments based on the application of city and county ordinances are without merit.

City and county ordinances must be alleged and proven in order to be considered by the superior and appellate courts of this State. The proper method of proving a city ordinance is production of the original ordinance or a certified copy thereof. Neither the superior courts nor the appellate courts can adjudicate a claim or defense based on a city ordinance unless the ordinance has been properly presented.

Whitfield v. City of Atlanta, 296 Ga. 641, 641-642 (769 SE2d 76) (2015) (citations omitted). See also Younger v. Dunagan, 318 Ga. App. 554, 556 (733 SE2d 81) (2012) (“Neither this court nor the trial court may take judicial notice of municipal ordinances [.]”) (citation and punctuation omitted). Here, Brown failed to introduce proper evidence of the city and county ordinances upon which he relies. Accordingly, any argument based thereon is without merit. Whitfield, 296 Ga. at 642.

Second, we find no authority in support of the contention that Guice violated OCGA § 40-6-20 (e), which provides as follows:

The disregard or disobedience of the instructions of any official traffic-control device or signal placed in accordance with the provisions of this chapter by the driver of a vehicle shall be deemed prima-facie evidence of a violation of law, without requiring proof of who and by what authority such sign or device has been erected.

The plain language of the statute does not support Brown’s claim that Guice violated the statute when he avoided an intersection by traveling through a shopping center. It cannot be said that by traveling through a shopping center, Guice disregarded or disobeyed a traffic signal since there is no evidence that he encountered one.

Finally, Brown contends that Guice was guilty of violating OCGA § 16-7-21 (b) (1), which provides: “A person commits the offense of criminal trespass when he or she knowingly and without authority... [ejnters upon the land or premises of another person . . . for an unlawful purpose[.]” Although Brown has shown that Guice entered upon the premises of a shopping center, Brown has not presented any evidence to show that Guice did so without authority or for an unlawful purpose. First, Brown did not present testimony or other evidence to show that the owner of the shopping center prohibited such a use, such as that the owner posted signs prohibiting through traffic, or that the owner instructed Brown or anyone else not to do so. Thus, the simple fact that no one gave Guice authority to travel across the property on that specific occasion is irrelevant. Nor did Brown present any Georgia criminal law or other legal authority for the proposition that traveling across the shopping center without intent to shop there constitutes an unlawful purpose under the law. Second, as already explained, Brown has failed to present any evidence that Guice drove through the shopping center with an unlawful purpose. As explained, Brown has not shown that traveling through the shopping center to reach a road on the other side of the shopping center was unlawful in itself, and he has presented no other evidence to show that Guice had an unlawful purpose by doing so.

Decided October 20, 2015.

Brinson, Askew, Berry, Seigler, Richardson & Davis, J. Anderson Davis, Samuel L. Lucas; Downey & Cleveland, Sean L. Hynes, for appellant.

Rountree Law Firm, Mason B. Rountree, for appellee.

In short, Brown has failed to present any evidence or law sufficient to create an issue of fact as to whether Guice was driving in violation of law when he drove through the shopping center to avoid traffic. Accordingly, Brown’s sole argument that Guice was acting outside the scope of employment at the time of the accident is without merit as a matter of law. All of the remaining evidence in the record shows that Guice was acting within the scope of employment at the time of the accident. The trial court therefore erred by failing to grant Guice’s motion for summary judgment on the ground that he was immune from suit and liability based on OCGA § 36-92-3. The decision below is reversed, and the case is remanded with direction to enter summary judgment in favor of Guice. Guice’s second enumeration of error is mooted by our decision.

Judgment reversed and case remanded with direction.

Andrews, P. J., and Miller, J., concur.

       Guice was authorized to pursue a direct appeal under the collateral order doctrine. See Bd. of Regents v. Canas, 295 Ga. App. 505, 507 (1) (672 SE2d 471) (2009).


author: ANDREWS, Presiding Judge.

text:
    A15A1177.
    OWENS v. THE STATE.
    (778 SE2d 830)
   ANDREWS, Presiding Judge.

Following a jury trial, Russell Lee Owens was convicted on one count of possession of a controlled substance, in violation of OCGA § 16-13-30 (a). He unsuccessfully moved for a new trial, and argues on appeal that the trial court erred in denying his motion to suppress physical evidence, admitting similar transaction evidence, and excluding the testimony of a potential defense witness. We find no error and affirm.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict with the defendant no longer enjoying a presumption of innocence. Preston v. State, 300 Ga. App. 433 (685 SE2d 420) (2009). We neither weigh the evidence nor judge the credibility of witnesses, but determine only whether, after viewing the evidence in the light most favorable to the prosecution, a “rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979).

So construed, the evidence adduced at trial shows that just after 7:00 on the morning of August 25, 2008, a law enforcement officer observed Owens driving without an operational tag light and effected a stop of his vehicle. Knowing that Owens had been the subject of several “lookout” alerts within the police department precipitated by reports of his suspected drug and theft activity, the officer requested Owens’s consent to search the vehicle while he awaited the return of Owens’s license and insurance information. Owens consented to the search.

A second officer assisting in the search located a cigarette pack in the console of the passenger door that contained prescription pills, and a pill bottle containing 23 loose and 20 cellophane-wrapped prescription pills in a compartment located behind the driver’s seat. The pills tested positive for hydrocodone.

Owens was subsequently arrested and indicted for unlawfully possessing a controlled substance. His trial counsel moved to suppress the physical evidence, arguing in part that the stop of Owens’s vehicle was pretextual and unlawful because the officer failed to establish that Owens committed a traffic violation by failing to have his tag light illuminated. The trial court denied Owens’s motion.

Owens’s defense during the ensuing trial was that the pills were planted in his truck without his knowledge by a woman named Sheree Bannister, who he claimed was motivated to set him up by a desire to get favorable treatment in an unrelated criminal case pending against her. Owens testified that immediately prior to being stopped, Bannister had agreed to meet him at a nearby gas station in order to loan him $20, and that she repeatedly attempted to give him the pills. He said that after refusing to accept the drugs, he went into the gas station to pay and that Bannister must have planted them in his truck at that time.

The defense called Bannister herself as a witness, but she invoked her Fifth Amendment right not to testify. Owens’s ex-wife took the stand, however, and testified that Bannister had confessed to her that she had placed the drugs in Owens’s truck.

Owens attempted also to introduce the transcribed testimony of Bannister’s aunt, who was questioned outside of the jury’s presence due to her conflicting court obligations. The crux of the aunt’s testimony was that “[Bannister] didn’t tell me how she did it or anything herself, but she just told me that she did it, did do it.” The aunt explained further, “[W]e were just standing and talking and... [Bannister] said ‘all this stuff with Russell, yeah, I did it,’ but she said,... T ain’t worrying about it.’ That’s exactly what she said. She said, ‘yeah, I did it.’ ” Because the witness never clarified what “it” was, however, the trial court excluded the testimony as “too indefinite.”

The State introduced similar transaction evidence for the purpose of proving Owens’s intent to possess the drugs. Specifically, the State presented evidence that approximately nine months prior to his arrest in the instant case, Owens was arrested in the same general vicinity for driving under the influence of alcohol or drugs. The resulting search of Owens’s truck led to the discovery of a pill bottle containing nabumetone, a prescription medication used to treat pain and inflammation, which is classified under Georgia law as a dangerous drug. The nabumetone pills did not match the label on the container. Owens subsequently pled guilty to possession of a dangerous drug in violation of OCGA § 16-13-72.

The jury convicted Owens and this appeal follows.

1. Owens asserts that the trial court erred in denying his motion to suppress the physical evidence because the State failed to prove the officer’s initial stop of his vehicle was lawful. Specifically, Owens contends that Georgia law requires only that a tag light be illuminated “whenever the headlights or auxiliary driving lights are lighted,” see OCGA § 40-8-23 (d), and that the State failed to elicit testimony from the officer during the suppression hearing that Owens’s headlights were on or should have been on at the time he effected the stop. See OCGA § 40-8-20 (“Every vehicle upon a highway within this state at any time from a half-hour after sunset to a half-hour before sunrise... and at any other time when there is not sufficient visibility to render clearly discernible persons and vehicles on the highway at a distance of 500 feet ahead shall display lights, including headlights.”).

On review from the denial of a motion to suppress, we construe the evidence in the light most favorable to the trial court’s ruling and accept all findings on questions of fact and credibility unless they are clearly erroneous. See Buford v. State, 312 Ga. App. 411, 412 (718 SE2d 605) (2011). Moreover, “we consider all the evidence of record, including evidence introduced at trial.” Id. at 411.

The officer testified at the suppression hearing that it was “dusky” when he stopped Owens’s vehicle, which was determined at trial to be at 7:07 a.m. The parties stipulated that, by coincidence, sunrise occurred at 7:07 that morning. The officer further testified that there was only “a little bit of light out,” and that the drivers of other vehicles were using their headlights. After viewing a video recording of the stop, the trial court explicitly held:

[T]he other vehicles on the road had their headlights on. It appeared to be a situation in which the lighting was such that prudence would dictate that someone needed their headlights on or it would be a dangerous situation. So the officer had a right to stop the truck.

The video recording is not contained in the appellate record, and the trial court’s finding that the visibility warranted the use of headlights (and thus taillights) is consistent with the witness testimony. It follows that Owens has failed to meet his burden of proving that the trial court’s factual findings were clearly erroneous or that the court erred in denying the motion to suppress on the ground that the stop was unlawful. See Soilberry v. State, 282 Ga. App. 161, 162 (1) (637 SE2d 861) (2006) (deferring to the trial court’s factual finding that the officer observed a traffic violation and affirming the denial of appellant’s motion to suppress); Turner v. State of Ga., 265 Ga. App. 40, 41 (2) (592 SE2d 864) (2004) (same).

2. Owens argues that the trial court erred in admitting the similar transaction evidence. We disagree.

Before any evidence of an independent act or offense may be admitted, the trial court must conduct a hearing during which the State must make three affirmative showings:

First, the State must demonstrate that it seeks to introduce such evidence for an appropriate purpose, such as illustrating appellant’s identity, intent, course of conduct, and bent of mind;[] second, the State must show sufficient evidence to establish that the accused committed the independent offense or act; third, the State must demonstrate a sufficient connection or similarity between the independent offense or act and the crime charged so that proof of the former tends to prove the latter.

(Citation and punctuation omitted.) Harris v. State, 276 Ga. App. 234, 237 (2) (622 SE2d 905) (2005); see Williams v. State, 261 Ga. 640, 642 (2) (b) (409 SE2d 649) (1991); Uniform Superior Court Rule 31.3 (B). It is not necessary that the prior act be identical to the charged offense, and when considering whether the evidence is admissible, “the proper focus is on the similarities, not the differences, between the separate crime and the crime in question.” (Citation and punctuation omitted.) Pareja v. State, 286 Ga. 117, 121 (686 SE2d 232) (2009); see Drummond v. State, 278 Ga. App. 631, 633 (1) (629 SE2d 543) (2006) (“[I]f the defendant is proven to be the perpetrator of another drug crime and the facts of that crime are sufficiently similar or connected to the facts of the crime charged, the separate crime will be admissible to prove identity, motive, plan, scheme, bent of mind, or course of conduct.”) (citation and punctuation omitted).

Owens does not dispute that the similar transaction evidence was admitted for a proper purpose or that the prior crime was not sufficiently proven. Rather, he argues that the independent act was not sufficiently similar to the instant crime to be probative of his guilt because of the differences in the drugs he possessed.

When assessing this issue, the trial court acknowledged that the critical question for the jury was whether Owens intended to possess the controlled substance. Noting that it considered significant “the similarity in the transportation of controlled substance[s] and dangerous drugs for which [Owens had] no legal prescription or right to possess,” the court concluded that “[t]he fact that he has done so in the past in similar circumstances is admissible in evidence.”

The trial court did not abuse its discretion in admitting the similar transaction evidence. Less than a year prior to the crime for which Owens was being tried, he had been stopped in the same general area, driving the same truck, and was in possession of prescription drugs for which he had no legal prescription or a properly labeled container. Particularly in light of Owens’s defense that he was unaware that the pills were in his truck, evidence of the previous incident was admissible to show Owens’s intent to possess the contraband regardless of the differences in the prescription pills themselves. See Branch v. State, 255 Ga. App. 596, 598 (565 SE2d 910) (2002) (“[T]here is no requirement that the drug allegedly being distributed or possessed in the indicted offense be the same drug distributed or possessed in the similar transaction.”); Willis v. State, 199 Ga. App. 658, 659 (1) (405 SE2d 739) (1991) (holding trial court did not err in allowing evidence of defendant’s prior conviction of possession of marijuana with the intent to distribute in his trial for possession of cocaine with the intent to distribute); see also Bailey v. State, 259 Ga. App. 293, 297 (5) (576 SE2d 668) (2003).

3. Finally, Owens argues that the trial court erred in excluding the transcribed testimony of Bannister’s aunt. Again, we disagree.

As a general rule, “[t]he exclusion of evidence on the ground of relevancy lies within the sound discretion of the trial court, whose decision will not be disturbed on appeal absent a clear abuse of discretion.” (Citation and punctuation omitted.) Bryant v. State, 246 Ga. App. 711, 713 (2) (541 SE2d 80) (2000). In its order denying Owens’s motion for mistrial, the trial court explained that the aunt’s failure to define “it” as related to Bannister’s alleged admissions rendered the proposed testimony “vague and non-specific,” and thus inadmissible because “it was not probative of any issue before the jury.” We find no abuse of discretion in the trial court’s decision to exclude the transcribed testimony. See Dawson v. State, 283 Ga. 315, 316-317 (2) (658 SE2d 755) (2008) (affirming the trial court’s exclusion of proffered evidence implicating a third party because it did nothing more than “raise a conjectural inference that another person committed the [crime]”); Boatman v. State, 272 Ga. 139, 141 (2) (527 SE2d 560) (2000) (holding that the trial court did not err in excluding evidence that “merely offered speculation or conjecture that the third party could have been involved in the crimes at issue”); Johnson v. State, 331 Ga. App. 134, 138 (770 SE2d 236) (2015) (affirming the trial court’s exclusion of evidence that required the jury to speculate as to its significance).

Decided October 20, 2015.

David D. Marshall, for appellant.

Leigh E. Patterson, District Attorney, F Kevin Salmon, Assistant District Attorney, for appellee.

Judgment affirmed.

Miller and Branch, JJ., concur.

       Owens was also convicted of a minor traffic violation and on one count of possession of a drug not kept in its original container (OCGA § 16-13-75 (a)), but the drug conviction merged into his conviction of possession of a controlled substance for sentencing purposes.

       See OCGA § 16-13-71 (b) (629.5).

       Either a taillight or a separate light shall be so constructed and placed as to illuminate with a white light the rear registration plate and render it clearly legible from a distance of 50 feet to the rear. Any taillight or taillights, together with any separate light for illuminating the rear registration plate, shall he so wired as to be lighted whenever the headlights or auxiliary driving lights are lighted.
      OCGA § 40-8-23 (d).

       We note in passing that Georgia’s new Evidence Code, applicable to trials conducted after January 1, 2013, no longer permits the admission of similar transaction evidence for the purposes of proving course of conduct or bent of mind. See Ga. L. 2011, p. 99, § 101; OCGA § 24-4-404 (b).


author: Miller, Judge.

text:
    A15A1062.
    BILBO v. FIVE STAR ATHLETE MANAGEMENT, INC.
    (778 SE2d 834)
   Miller, Judge.

Damarius Bilbo filed a petition to confirm an arbitration award he obtained against Five Star Athlete Management (“Five Star”) and to arbitrate the issue of allegedly unpaid attorney fees. Five Star filed an untimely answer and moved to dismiss Bilbo’s petition and to stay arbitration. After Five Star’s ability to open default as a matter of right extinguished, Bilbo moved for a default judgment. Five Star subsequently moved to open the default. Following a hearing, the trial court granted Five Star’s motion to open default, denied Bilbo’s motion for default judgment, and granted Five Star’s motion to dismiss and stay arbitration. Bilbo appeals, contending that the trial court erred in denying his motion for default judgment and granting Five Star’s motion to open default and in dismissing his petition. For the reasons that follow, we conclude that the trial court was correct in opening the default. The trial court erred in granting Five Star’s motion to dismiss Bilbo’s petition to the extent Bilbo sought to confirm the arbitration award; however, the trial court did not err in granting Five Star’s motion to dismiss to the extent Bilbo sought additional attorney fees because the additional fees were not awarded by the arbitrator. Consequently, we affirm in part and reverse in part.

“In ruling on a motion to dismiss, the trial court must accept as true all well-pled material allegations in the complaint and must resolve any doubts in favor of the plaintiff. We review the trial court’s ruling de novo.” (Citations omitted.) Roberson v. Northrup, 302 Ga. App. 405 (691 SE2d 547) (2010).

So viewed, the petition shows that Bilbo and Five Star, his former employer, had a dispute about a noncompete agreement executed by Bilbo. The parties entered into a settlement agreement (the “Agreement”), which contained a provision (“Paragraph 3”) that required Bilbo to, among other things, not make disparaging remarks about Five Star and to keep the terms of the Agreement confidential. The parties agreed that the sole and exclusive method for resolving any dispute under Paragraph 3 would be through an alternative dispute procedure.

In August 2013, Five Star initiated an arbitration, claiming Bilbo had breached the confidentiality and nondisparagement provisions of the Agreement. The arbitrator held a hearing and asked both parties to submit affidavits regarding their attorney fees. Bilbo’s attorney averred that Bilbo had incurred a total of $121,927 in attorney fees and approximately $8,807 in other legal costs, and that he expected additional expenses before arbitration was complete.

Thereafter, on December 12, 2013, the arbitrator entered a final arbitration order, ruling in Bilbo’s favor and ordering Five Star to pay amounts due under the Agreement, as well as the attorney fees and litigation costs in the amount listed in Bilbo’s counsel’s affidavit.

On January 6, 2014, Five Star sent a letter to the arbitrator asking him to stay the arbitration award based on newly discovered evidence and to recuse from the case because of alleged bias (“Motion to Stay Arbitration Award”). The arbitrator denied Five Star’s Motion to Stay Arbitration Award, but granted its request that he recuse. Thereafter, in April 2014, Bilbo asked the arbitrator to order Five Star to pay attorney fees he incurred by responding to Five Star’s Motion to Stay Arbitration Award and for attorney fees he incurred during arbitration that were not previously awarded. Citing his recusal, the arbitrator declined to rule on Bilbo’s motion for additional attorney fees.

Bilbo then filed the current petition in the trial court on May 2, 2014, and served the petition on Five Star on May 5, 2014. In his petition, Bilbo conceded that Five Star made the final payment under the Agreement and paid “most” of his attorney fees. Bilbo, however, claimed that he was entitled to recover additional attorney fees he incurred in responding to Five Star’s Motion to Stay Arbitration Award and fees incurred during arbitration that had been contemplated in counsel’s affidavit. Bilbo asked the trial court to confirm the arbitration award and to compel arbitration on the unpaid attorney fees incurred during arbitration.

Five Star filed its answer on June 5, 2014, one day late, automatically placing the case in default. That same day, Five Star filed its motion to dismiss Bilbo’s petition and to stay arbitration. Bilbo subsequently filed his motion for default judgment after Five Star’s time to open default as a matter of right expired, and Five Star responded by moving to open default. Following a hearing, the trial court granted Five Star’s motion to open default, denied Bilbo’s motion for default judgment and granted Five Star’s motion to dismiss Bilbo’s petition.

1. On appeal, Bilbo contends that the trial court erred in denying his motion for default judgment and in granting Five Star’s motion to open default. We discern no error.

OCGA § 9-11-55 (b) authorizes a trial court, in its discretion, to open a prejudgment default at any time before final judgment on one of three grounds', so long as four conditions are met. The three grounds are providential cause, excusable neglect, and proper case. The four required conditions are (a) a showing made under oath; (b) an offer to plead instanter; (c) an announcement of ready to proceed to trial; and (d) the setting up of a meritorious defense.

(Citations and punctuation omitted.) ABA 241 Peachtree v. Brooken & McGlothen, LLC, 302 Ga. App. 208, 210 (1) (690 SE2d 514) (2010). “Compliance with the four conditions, including the necessity of setting up a meritorious defense, however, is a condition precedent; absent the showing of a meritorious defense, a trial court has no discretion to open a default.” (Citations omitted.) Butterworth v. Safelite Glass Corp., 287 Ga. App. 848, 849 (1) (652 SE2d 877) (2007). On appeal, this Court’s sole function in reviewing a trial court’s grant of a motion to open default is to determine whether all the conditions set forth in OCGA § 9-11-55 have been satisfied and, if so, whether the trial court abused its discretion based on the facts in the case. See ABA 241 Peachtree, supra, 302 Ga. App. at 210 (1).

(a) Conditions Precedent

With respect to the four conditions precedent, Bilbo argues only that Five Star failed to assert a meritorious defense to his petition to confirm the arbitration award because a trial court must confirm an arbitration award upon application filed within one year of the award unless the award is vacated or modified. We disagree.

A defendant can establish a meritorious defense “by showing that if relief from default is granted, the outcome of the suit may be different from the result if the default stands.” Exxon Corp. v. Thomason, 269 Ga. 761 (504 SE2d 676) (1998). This test does not require a showing that the defendant will completely defeat the plaintiff’s claim and is consistent with the strong public policy of deciding cases on their merits. See Legacy Hills Residential Assn. v. Colonial Bank, 255 Ga. App. 144, 145-146 (564 SE2d 550) (2002).

Here, in support of its motion to open default, Five Star asserted that Bilbo’s petition to confirm the award was really a petition to modify the arbitration award because Bilbo was seeking additional attorney fees not awarded by the arbitrator; and his petition to modify was untimely. Indeed, in his petition, Bilbo not only sought to confirm the arbitration award, but also sought additional attorney fees under the Agreement. As correctly determined by the trial court, Bilbo was attempting, at least in part, to modify the arbitration award, and his petition in this respect was untimely because it was filed nearly five months after the arbitration award was delivered to him. OCGA § 9-9-14 (a) (“An application to modify the award shall be made to the court within three months after delivery of a copy of the award to the applicant”); see also Fulton County v. Lord, 323 Ga. App. 384, 391 (2) (746 SE2d 188) (2013). Thus, the trial court did not err in finding that Five Star established a meritorious defense to the petition.

(b) Grounds to Open Prejudgment Default

As explained above, if the four conditions precedent are met, a trial court may open a prejudgment default for providential cause or excusable neglect, or in a proper case. OCGA § 9-11-55 (b). Bilbo contends that the trial court erred because it did not specifically determine whether Five Star established excusable neglect or a proper case.

It is true that the trial court’s order does not specify the ground on which it opened the default. Contrary to Bilbo’s assertion, this omission does not require reversal. Georgia appellate courts will affirm a trial court’s decision to open the default if the record sustains that decision under any of the three statutory grounds. See Henderson v. Quadramed Corp., 260 Ga. App. 680, 682 (2) (580 SE2d 542) (2003). Where the trial court’s order is silent on the issue, we may presume that the trial court’s decision to open default was based on the “proper case” ground, which is the broadest of the three grounds. Johnson v. American Nat. Red Cross, 253 Ga. App. 587, 590 (1) (569 SE2d 242) (2002). This ground is designed to “reach[ ] out to take in every conceivable case where injustice might result if the default were not opened[.]” (Citation omitted.) Henderson, supra, 260 Ga. App. at 682 (2).

Here, the record shows, and the trial court specifically found, that Five Star filed its answer one day late, and promptly moved to open the default after discovering its error in calculating the due date. Under these circumstances, we cannot say that the trial court abused its discretion by opening the default and allowing the case to proceed on the merits. See ABA 241 Peachtree, supra, 302 Ga. App. at 211 (1) (trial court did not abuse its discretion in opening default based on proper case ground where, like here, the default was the result, not of falling to file an answer, but of a one-day miscalculation of the due date); Albee v. Krasnoff, 255 Ga. App. 738, 740-741 (1) (566 SE2d 455) (2002) (trial court did not abuse its discretion in opening default where defendant promptly filed materials necessary to open default, plaintiff failed to raise default issue until defendant’s time to open default as a matter of right expired, and defendant had a reasonable excuse for failing to file answer). Therefore, the trial court did not err in granting Five Star’s motion to open default and denying Bilbo’s motion for default judgment.

2. Bilbo also contends that the trial court erred in denying his petition to confirm and in granting Five Star’s motion to dismiss and stay arbitration. We agree, in part.

Under the Georgia Arbitration Code (“GAC”), OCGA § 9-9-1 et seq., a reviewing court “shall confirm an award upon application of a party made within one year after its delivery to [the party], unless the award is vacated or modified by the court as provided in [the GAC].” OCGA § 9-9-12. Thus, a trial court is bound to confirm an arbitration award unless one of the statutory grounds for vacating an award as set forth in OCGA § 9-9-13 (b) is found to exist. See Greene v. Hundley, 266 Ga. 592, 596 (3) (468 SE2d 350) (1996); Brookfield Country Club v. St. James-Brookfield, LLC, 299 Ga. App. 614, 619 (1) (683 SE2d 40) (2009) (there is nothing malleable about the trial court’s obligation to confirm an arbitration award absent a statutory ground to vacate it).

Here, Bilbo filed his petition in May 2014, within one year of the December 2013 arbitration award. In his petition, Bilbo not only sought to confirm the award, but also sought additional attorney fees. To the extent Bilbo was seeking to confirm the award, the trial court was required to confirm it. The trial court ruled that Bilbo was not entitled to confirm the award because Five Star had already complied with its terms. That Five Star may have satisfied the trial court’s order, however, is not a statutory ground found within OCGA § 9-9-13 that precludes confirmation. Therefore, the trial court was required to grant Bilbo’s petition to the extent he wanted to confirm the award. See Greene, supra, 266 Ga. at 596 (3); Brookfield Country Club, supra, 299 Ga. App. at 619 (1).

Decided October 21, 2015.

Bondurant Mixson & Elmore, Von A. DuBose, Samika N. Boyd, for appellant.

Barnes & Thornburg, W. David Cornwell; McKenna Long & Aldridge, Lauren D. Bellamy, for appellee.

As noted above, however, Bilbo also sought to modify the award by seeking attorney fees that were not included in the award. Since Bilbo’s petition was filed in May 2014, more than three months after the December 2013 arbitration award, his petition was untimely to the extent he attempted to modify the award.

Not only was Bilbo precluded from modifying the award to include additional attorney fees, he also could not compel arbitration on the issue. Under Paragraph 3 of the Agreement, the parties agreed to arbitrate only any dispute as to whether Bilbo violated the confidentiality and nondisparagement requirements of the Agreement. There is no agreement to arbitrate any disputed attorney fees. Therefore, the trial court correctly dismissed the portion of Bilbo’s petition seeking to modify the award for additional attorney fees and correctly stayed arbitration on the issue. See Krut v. Whitecap Housing Group, 268 Ga. App. 436, 442 (2) (c) (602 SE2d 201) (2004) (“Arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit.”) (citation omitted).

Accordingly, we affirm the trial court’s grant of Five Star’s motion to open default and denial of Bilbo’s motion for default judgment. We affirm in part and reverse in part its grant of Five Star’s motion to dismiss and stay arbitration, reversing only as to the trial court’s refusal to confirm the December 2013 arbitration award.

Judgment affirmed in part and reversed in part.

Andrews, P. J., and Branch, J., concur.

       The grounds for vacating an arbitration award are:
      (1) Corruption, fraud, or misconduct in procuring the award; (2) Partiality of an arbitrator appointed as a neutral; (3) An overstepping by the arbitrators of their authority or such imperfect execution of it that a final and definite award upon the subject matter submitted was not made; (4) A failure to follow the [statutory] procedure .. ., unless the party applying to vacate the award continued with the arbitration with notice of this failure and without objection; or (5) The arbitrator’s manifest disregard of the law.
      OCGA § 9-9-13 (b).


author: Dillard, Judge.

text:
    A15A1063.
    BRAWNER v. MILLER.
    (778 SE2d 839)
   Dillard, Judge.

In this custody dispute, Akintunde Brawner, the biological father of two minor children, challenges the trial court’s award of custody of the children to Oscar Miller, the maternal grandfather. Specifically, Brawner contends that the trial court erred by applying an incorrect legal standard in rendering its decision and in finding that the children would suffer emotional harm if custody were awarded to him. For the reasons set forth infra, we affirm.

Viewing the evidence in the light most favorable to the trial court’s judgment, the record shows that Brawner and Carnease Miller were high school sweethearts. In 2001, Carnease became pregnant, and although she and Brawner were not married, the couple moved into an apartment together before the April 2002 birth of their first son, S. B. In 2004, Carnease gave birth to the couple’s second son, M. B. But shortly thereafter, Carnease and Brawner’s relationship began to sour, and in 2006, they separated and Brawner moved out of the apartment. Unable to financially maintain the apartment on her own, Carnease and the children moved into her father’s (Oscar Miller’s) home, in which Camease’s two younger siblings also resided.

Over the course of the next several years, Carnease occasionally attempted to live on her own, but for the vast majority of this time, she and the two boys lived with her father and siblings. And during this same time period, Brawner’s interaction with the children was sporadic at best, despite the fact that he lived only five blocks away from Miller’s home. In fact, Carnease received the vast majority of assistance with the boys from her father and her younger siblings, rather than Brawner. Additionally, Brawner only occasionally paid child support after he and Carnease separated. Indeed, in 2011, the Superior Court of Fulton County held him in contempt for failure to pay approximately $2,800 in child support.

On July 3, 2013, Carnease was the victim of a homicide. Two weeks later, Brawner filed a petition seeking to legitimate the children and obtain custody. Subsequently, Miller filed a motion to intervene, which the trial court granted, and then filed an answer and counterclaim, in which he too sought custody of the boys. After a brief discovery period, the trial court held an evidentiary hearing on the matter, in which Brawner, his parents, Miller, and Camease’s siblings testified. At the conclusion of the hearing, the trial court granted Brawner’s legitimation petition, but awarded custody of the children to Miller with permissive visitation to Brawner. And shortly thereafter, the court issued its final order, confirming the ruling it had issued from the bench. Brawner then moved for reconsideration, which the trial court denied. This appeal follows.

1. Brawner first contends that the trial court awarded custody of the children to Miller without finding that he was unfit as a parent and, in doing so, applied an incorrect legal standard. We disagree.

At the outset, we note that child-custody disputes involving a biological parent and a limited number of third parties who are related to the child, including grandparents, are governed by OCGA § 19-7-1 (b.l) (in accordance with the fundamental constitutional right of familial relations), which provides:

[I]n any action involving the custody of a child between the parents or either parent and a third party limited to grandparent, great-grandparent, aunt, uncle, great aunt, great uncle, sibling, or adoptive parent, parental power may be lost by the parent, parents, or any other person if the court hearing the issue of custody, in the exercise of its sound discretion and taking into consideration all the circumstances of the case, determines that an award of custody to such third party is for the best interest of the child or children and will best promote their welfare and happiness. There shall be a rebuttable presumption that it is in the best interest of the child or children for custody to be awarded to the parent or parents of such child or children, but this presumption may be overcome by a showing that an award of custody to such third party is in the best interest of the child or children. The sole issue for determination in any such case shall be what is in the best interest of the child or children.

As this Court has previously recognized, the following three constitutionally based presumptions are to be used in construing the text of the foregoing statute: “(1) the parent is a fit person entitled to custody, (2) a fit parent acts in the best interest of his or her child, and (3) the child’s best interest is to be in the custody of a parent.” But these presumptions can nonetheless be overcome by a third-party relative “showing, by clear and convincing evidence, that parental custody would harm the child.” Specifically, harm in this particular context has been rigorously defined as “either physical harm or significant, long-term emotional harm, not merely social or economic disadvantages.” And once these presumptions have been overcome by such a showing, the third-party relative must then “prove that an award of custody to him or her will best promote the child’s health, welfare, and happiness.” Thus, contrary to Brawner’s contention, in applying the legal standard set forth in OCGA § 19-7-1 (b.l), a trial court need not explicitly determine that “the parent seeking custody is unfit[.]” Rather, the court is instead required to determine that “the third-party relative has established by clear and convincing evidence that awarding custody to the parent would cause either physical harm or significant, long-term emotional harm to the child.” Accordingly, Brawner’s argument that the trial court erred by awarding custody to Miller without an explicit finding of parental unfitness lacks merit.

2. Brawner also contends that the trial court erred in finding that the boys will suffer significant, long-term emotional harm if custody is awarded to him. Again, we disagree.

As the Supreme Court of Georgia has held when contemplating the issues of harm and custody, a trial court must go beyond the parent’s biological connection or present fitness and consider a variety of factors, including:

(1) who are the past and present caretakers of the child; (2) with whom has the child formed psychological bonds ...; (3) have the competing parties evidenced interest in, and contact with, the child over time; and (4) does the child have unique medical or psychological needs that one party is better able to meet.

Here, as the trial court found in its thorough final order, the two children have primarily lived with Miller since Brawner and Carnease separated and have never lived with Brawner. Indeed, as Miller testified, the boys consider Miller’s home to be their home. In addition, the record shows that the boys have a strong bond with Miller and their aunt, and that the strength and compassion endemic of this bond have been particularly important in the wake of their mother’s tragic murder. Furthermore, since the end of his relationship with Carnease, Brawner has utterly failed to fulfill his parental responsibility to assist in financially supporting his children to such an extent that a court held him in contempt. But most importantly (given the constitutional principles grafted onto the statutory regime at issue), Brawner has interacted with the boys only sporadically since he and their mother separated, visiting them occasionally and attending only a few school events and extra-curricular activities despite living a mere five blocks away from Miller. As Miller testified, and the trial court reiterated, the boys are still struggling emotionally from the sudden and tragic loss of their mother. And although they are beginning to heal from this severe emotional trauma, the healing process will undoubtedly be harmed if they are, at this point in time, uprooted from the only home they have ever known to live with a father who, while perhaps well-meaning, has yet to build a meaningful relationship with them. Given the particular and unique circumstances presented in the case sub judice, and in view of the four factors prescribed by our Supreme Court (noted supra), as well as the underlying constitutional principles (likewise noted supra), we conclude that there was clear and convincing evidence to support the trial court’s conclusion that the children will suffer significant, long-term emotional harm if the father is given custody at this time.

Decided October 22, 2015.

Johnson Hopewell Coleman, MeredaD. Johnson, E. Duane Jones, for appellant.

Smith & Lake, Sheri T. Lake, for appellee.

For all of the foregoing reasons, we affirm the trial court’s award of custody to Miller.

Judgment affirmed.

Ellington, P. J., and McFadden, J., concur.

        See, e.g., Mitcham v. Spry, 300 Ga. App. 386, 386 (685 SE2d 374) (2009) (noting that when reviewing a child-custody decision, this Court views the evidence presented in the light most favorable to upholding the trial court’s order).

        See Strickland v. Strickland, 330 Ga. App. 879, 882 (1) (769 SE2d 607) (2015) (“Parents have a constitutional right under the United States and Georgia Constitutions to the care and custody of their children.”); Lopez v. Olson, 314 Ga. App. 533, 540 (3) (724 SE2d 837) (2012) (noting that the Supreme Court of Georgia has “narrowly construed” OCGA § 19-7-1 (b.1) to “recognize parents’ constitutionally protected interest in the care, custody, and management of their children”).

       OCGA § 19-7-1 (b.l).

        See Troxel v. Granville, 530 U. S. 57, 65 (II) (120 SCt 2054, 147 LE2d 49) (2000) (plurality opinion) (“The liberty interest at issue in this case — the interest of parents in the care, custody, and control of their children — is perhaps the oldest of the fundamental liberty interests recognized by this Court.”); id. at 68 (II) (noting the constitutional presumption that “fit parents act in the best interests of their children.”); Parham v. J.R., 442 U. S. 584, 602 (III) (99 SCt 2493, 61 LE2d 101) (1979) (noting that the federal constitution’s “concept of the family rests on a presumption that parents possess what a child lacks in maturity, experience, and capacity for judgment required for making life’s difficult decisions,” and that “natural bonds of affection lead parents to act in the best interest of their children”); see also 2 St. George Tucker, Blackstone’s Commentaries with Notes of Reference to the Constitution and Laws of the Federal Government of the United States and the Commonwealth of Virginia 446 (Birch & Small 1803) (“The duty of parents to provide for the maintenance of their children, is a principle of natural law.”); 2 James Kent, Commentaries on American Law 169 (O. Halsted 1827) (noting that “[t]he rights of parents result for their duties [to their children],” and “the law has given them such authority’); John Locke, Second Treatise of Government, Ch. 6, § 71 (Hackett Publishing Co., Inc. 1980, originally published in 1690) (“This shews the reason how it comes to pass, that parents in societies, where they themselves are subjects, retain a power over their children, and have as much right to their subjection, as those who are in the state of nature.”).

        Trotter v. Ayres, 315 Ga. App. 7, 8-9 (2) (726 SE2d 424) (2011) (punctuation omitted); accord Clark v. Wade, 273 Ga. 587, 593 (II) (544 SE2d 99) (2001) (plurality opinion); Galtieri v. O’Dell, 295 Ga. App. 797, 798 (673 SE2d 300) (2009).

        Trotter, 315 Ga. App. at 9 (2) (punctuation omitted); accord Clark, 273 Ga. at 598-99 (IV) (plurality opinion); id. at 600 (Sears, J., concurring specially) (noting that the plurality “ultimately reaffirms the principles of Brooks [u. Parkerson] by holding that disputes between parents and third parties concerning the custody of the parents’ children must be resolved using the rigorous harm standard adopted in Brooks”)', Galtieri, 295 Ga. App. at 798.

        Trotter, 315 Ga. App. at 9 (2) (punctuation omitted); accord Galtieri, 295 Ga. App. at 798. Cf. Floyd v. Gibson, 331 Ga. App. 301, 303-04 (771 SE2d 12) (2015) (physical precedent only) (vacating trial court’s judgment granting custody to maternal grandmother for failure to make the requisite determination that the children would suffer either physical harm or significant, long-term emotional harm if custody was awarded to the father).

        Trotter, 315 Ga. App. at 9 (2) (punctuation omitted); accord Galtieri, 295 Ga. App. at 798.

       Trotter, 315 Ga. App. at 9 (2); see also Boddie v. Daniels, 288 Ga. 143, 145 (702 SE2d 172) (2010) (holding that when “a third party seeks neither to terminate parental rights nor to break up a natural family by removing the child from her biological parent’s custody, ‘federal constitutional law does not require a showing that the parent is unfit before custody may be awarded to [the] third party’ ”) (punctuation omitted). Compare Quilloin v. Walcott, 434 U. S. 246, 255 (II) (A) (98 SCt 549, 54 LE2d 511) (1978) (expressing “little doubt” that the fundamental right of familial relations would be violated if “a State were to attempt to force the breakup of a natural family, over the objections of the parents and their children, without some showing of unfitness and for the sole reason that to do so was thought to be in the children’s best interest”).

         Trotter, 315 Ga. App. at 9 (2); accord Clark, 273 Ga. at 593 (II) (plurality opinion).

       It is important to emphasize that the present custody dispute is between a parent who has not cared for his children in quite some time and a grandparent who has commendably done so. In such cases, “the day-to-day bond of the parent-child relationship already has been interrupted, and the child may have formed strong and lasting relationships with the person who has been caring for him.” Clark, 273 Ga. at 600 (Sears, J., concurring specially). In contrast, a custody dispute involving a third party seeking to “break apart an intact parent-child relationship” implicates even greater constitutional concerns. Id. Cf. Stone v. Stone, 297 Ga. 451, 454-455 (774 SE2d 681) (2015) (holding that “construing [OCGA§ 19-7-1 (b.l)] as authorizing the State to require a fit and capable parent to share custody of his child with anyone except the child’s other parent would raise significant constitutional concerns”).

        Clark, 273 Ga. at 598-99 (TV) (plurality opinion) (punctuation and footnotes omitted); accord Boddie, 288 Ga. at 145; Lively v. Bowen, 272 Ga. App. 479, 484 (1) (612 SE2d 625) (2005).

        See Troxel, 530 U. S. at 65 (II) (plurality opinion) (“The liberty interest at issue in this case — -the interest of parents in the care, custody, and control of their children — is perhaps the oldest of the fundamental liberty interests recognized by this Court.”); Blackburn v. Blackburn, 249 Ga. 689, 692 (2) (292 SE2d 821) (1982) (acknowledging that “freedom of personal choice in matters of family life is a fundamental liberty interest protected by the United States Constitution . . . .”) (punctuation omitted); Brooks v. Parkerson, 265 Ga. 189, 191 (2) (a) (454 SE2d 769) (1995) (noting that the Supreme Court of the United States has “long recognized a constitutionally protected interest of parents to raise their children without undue state interference.”); In the Interest of J. E., 309 Ga. App. 51, 62 (711 SE2d 5) (2011) (Dillard, J., dissenting) (noting that “under both the United States and Georgia Constitutions, a parent has a fundamental constitutional right to, and liberty interest in, the care, custody, and management of his or her children, and that the State may not infringe upon or sever this fiercely guarded right of familial relations except in the most compelling and extraordinary of circumstances”).

        Cf. In the Interest of E. G., 315 Ga. App. 35, 48 (726 SE2d 510) (2012) (Dillard, J., concurring fully and specially) (“|I]t is one thing if a parent desires to care for his or her child but simply lacks the financial wherewithal or emotional capability to do so but quite another for a parent to willfully disregard or abandon his or her parental duties.”); In the Interest of A. E. S., 310 Ga. App. 667, 671 (714 SE2d 148) (2011) (Dillard, J., concurring specially) (same).

        See Lively, 272 Ga. App. at 484 (1) (holding that paternal grandmother established by clear and convincing evidence in custody matter that child would suffer significant, long-term emotional harm if she were returned to custody of her mother).