text:
    A11A2148.
    PHILLIP v. THE STATE.
    (721 SE2d 214)
   Ellington, Judge.

Ossia Phillip appeals from the trial court’s order denying his motion to correct a void sentence on the basis that the motion was untimely. Because the record shows that Phillip’s sentence was, indeed, void, we reverse the court’s order, vacate the sentence, and remand this case for resentencing.

The record shows that, in September 2009, Phillip entered a nonnegotiated guilty plea to fourteen counts of dogfighting, OCGA § 16-12-37 (b), and two counts of aggravated cruelty to animals, OCGA § 16-12-4 (c). The trial court sentenced Phillip to seventeen years imprisonment, with ten to serve; the final judgment includes the phrase “each ct. [sic] concurrent.” In July 2010, Phillip filed a motion to correct a void sentence, asserting that his sentence is void because it exceeds the maximum of five years imprisonment for each count. He argued that, because the judgment indicates that each sentence is to run concurrently with the others, his 17-year sentence exceeds the maximum statutory punishment for the offenses and is, therefore, illegal and void. The trial court denied the motion on the basis that it was filed outside the term of court in which the sentencing occurred and, as a consequence, the court lacked jurisdiction to vacate the sentence. Phillip appeals, contending that his sentence is void and, therefore, the court erred in concluding that it lacked jurisdiction over his motion to vacate the sentence. We agree.

Generally, “[a] trial court has no jurisdiction to modify a sentence after the term of court ends or 60 days pass. Where a sentence is void, however, the court may resentence the defendant at any time. A sentence is void if the court imposes punishment that the law does not allow.” (Citations omitted.) Crumbley v. State, 261 Ga. 610, 611 (1) (409 SE2d 517) (1991). Moreover, “a defendant’s acquiescence to an illegal sentence, either through plea negotiations or a failure to object to the sentence, cannot render an otherwise illegal sentence valid through waiver. That is because a void sentence in law amounts to no sentence at all.” (Citation and punctuation omitted.) Zipperer v. State, 299 Ga. App. 792, 794 (2) (683 SE2d 865) (2009). Thus, “[a] void sentence may be so held in any court where it becomes material to the interest of the parties to consider it, regardless of a lack of objection in the trial court.” (Citation and punctuation omitted.) Id.

Decided December 14, 2011.

Ossia Phillip, pro se.

Paul L. Howard, Jr., District Attorney, David K. Getachew-Smith, Assistant District Attorney, for appellee.

As shown above, the maximum prison sentence for each count of the indictment is five years. It follows that the sentence imposed on Phillip, 17 years of imprisonment with all counts to run concurrently, is illegal and void. Bass v. State, 289 Ga. 101 (709 SE2d 767) (2011); Crumbley v. State, 261 Ga. at 611 (1). Accordingly, the trial court erred in finding that it lacked jurisdiction to consider Phillip’s motion to vacate his sentence. Crumbley v. State, 261 Ga. at 611 (1); Zipperer v. State, 299 Ga. App. at 794 (2). Thus, the court’s order is reversed, Phillip’s sentence is vacated, and this case is remanded to the trial court for resentencing.

Judgment reversed, sentence vacated, and case remanded.

Miller, P. J., and Doyle, J., concur.

       See OCGA §§ 16-12-4 (c) (the sentence for a first conviction for aggravated cruelty to animals is one to five years of imprisonment and/or a fine of not more than $15,000); 16-12-37 (b) (the sentence for a first conviction for dogfighting is one to five years of imprisonment and/or a fine of not less than $5,000). It is undisputed that Phillip had not been convicted of either dogfighting or aggravated cruelty to animals before the instant sentence was imposed.

       See OCGA § 17-10-10 (a) (“Where at one term of court a person is convicted on more than one indictment or accusation, or on more than one count thereof, and sentenced to imprisonment, the sentences shall be served concurrently unless otherwise expressly provided therein.”).

       In its brief, the State contends that the sentence was not void, but it concedes that the “disposition sheet was not correctly completed to reflect the intent of the court to sentence [Phillip] on each count . . . within the range provided by law[.]” It does not, however, oppose remanding this case to the trial court to “clarify” Phillip’s sentence.


source: Caselaw Access Project

author: Miller, Presiding Judge.

license: Public Domain

text:
    A11A2394.
    HENDERSON v. THE STATE.
    (721 SE2d 216)
   Miller, Presiding Judge.

Following a bench trial, Malcolm Henderson was convicted of child molestation (OCGA § 16-6-4 (a)) and enticing a child for indecent purposes (OCGA § 16-6-5 (a)). On appeal, Henderson contends that the evidence was insufficient to support the trial court’s judgment of conviction. We disagree and affirm.

On appeal from a criminal conviction, we view the evidence in a light most favorable to the prosecution to determine whether the evidence was sufficient to prove guilt beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979). “It is solely within the purview of the factfinder to weigh conflicting evidence and judge the credibility of the witnesses.” (Footnote omitted.) Benyard v. State, 311 Ga. App. 127 (714 SE2d 746) (2011).

So viewed, the evidence shows that on October 11, 2008, the 13-year-old male victim was walking to church in the rain. Henderson approached the victim and offered the victim a ride in his car. The victim accepted and entered Henderson’s vehicle. Rather than driving the victim to church, however, Henderson took the victim to his house. After luring the victim inside the house, Henderson played a pornographic video. Henderson then pulled down his pants and began masturbating. Henderson offered the victim five dollars “to jack off with [him].” When Henderson pulled down the victim’s pants and touched his penis, Henderson threatened to kill the victim if he did not cooperate. The victim pretended that he needed to use the bathroom in order to remove himself from Henderson’s presence. The victim was then able to escape through the front door of Henderson’s home and run to his church. Upon arriving at the church, the victim told his pastor what had transpired at Henderson’s home. The pastor called the police. The victim gave the investigating officer a statement, disclosing the molestation incident.

“A person commits the offense of enticing a child for indecent purposes when he or she solicits, entices, or takes any child under the age of 16 years to any place whatsoever for the purpose of child molestation or indecent acts.” OCGA § 16-6-5 (a). “A person commits the offense of child molestation when such person . . . [d]oes any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person . . . .” OCGA § 16-6-4 (a) (1). The indictment averred that Henderson committed the offense of enticing a child for indecent purposes by offering the victim an automobile ride to church but instead transporting the victim to Henderson’s residence for the purpose of committing child molestation, and that Henderson committed the offense of child molestation by masturbating in the presence of the victim and by fondling the victim’s penis with the intent to arouse and satisfy Henderson’s sexual desires.

Contrary to Henderson’s argument on appeal, the evidence adduced at trial was sufficient to enable any rational trier of fact to find Henderson guilty beyond a reasonable doubt of the offenses as charged in the indictment. See Vaughn v. State, 301 Ga. App. 391, 392 (687 SE2d 651) (2009). “The victim’s testimony, standing alone, was sufficient to prove the charged crimes.” (Citation and punctuation omitted.) Id. Moreover, the testimony of the victim’s church pastor and the interviewing police officer concerning what the victim told them was admissible as substantive evidence under the Child Hearsay Statute, OCGA § 24-3-16. Id.

Decided December 14, 2011.

Sara E. Meyers, Harold W. Wallace III, for appellant.

Dennis C. Sanders, District Attorney, Durwood R. Davis, Kevin R. Majeska, Assistant District Attorneys, for appellee.

Accordingly, the evidence was sufficient to support the conviction on the counts of child molestation and enticing a child for indecent purposes.

Judgment affirmed.

Ellington and Doyle, JJ., concur.

       OCGA § 24-3-16 provides that
      [a] statement made by a child under the age of 14 years describing any act of sexual contact or physical abuse performed with or on the child by another or performed with or on another in the presence of the child is admissible in evidence by the testimony of the person or persons to whom made if the child is available to testify in the proceedings and the court finds that the circumstances of the statement provide sufficient indicia of reliability.


author: SMITH, Presiding Judge.

text:
    A11A0862.
    OGILVIE v. THE STATE.
    (721 SE2d 549)
   SMITH, Presiding Judge.

Shirley Ogilvie appeals from her convictions of vehicular homicide in the second degree (OCGA § 40-6-393 (c)) and failing to stop for a pedestrian in a crosswalk (OCGA § 40-6-91 (a)). She contends that the accusation was fatally defective and that the trial court erred in its charge to the jury. Because the trial court erred by declining to give Ogilvie’s requested charge on accident, we reverse.

The record shows that the charges against Ogilvie resulted from her striking a seven-year-old child in a crosswalk that went across three lanes of traffic. At the time of the accident it was “not real dark and not real light,” and the child was on his way to school. The victim’s sister testified that they “ran a little late” that morning “because [the child] was finishing his homework.” Although she crossed the street with her brother in the past, she watched him walk to the corner where the crossing guard was stationed that morning because she saw her “bus coming from down the street.”

The crossing guard testified that his routine was to stop cars in both directions before indicating that children could cross the street. The crossing guard testified that, on the morning at issue, he was at the curb with the child when a car in one direction stopped of its own accord. He testified that the child was the only one waiting to cross the street.

The crossing guard went into the middle of the intersection about two car lengths from the crosswalk to stop traffic in both directions. Traffic in the northbound lanes came to a stop, but Ogilvie, who was driving the lead car traveling in the southbound lane failed to stop despite the crossing guard’s repeated signals. A car behind Ogilvie did stop.

The crossing guard testified that “[w]hen she got right on — the vehicle got right on me. Then about that time, I swerved. And about that time, I heard ka-ploop, and I realized a child had been hit accidentally.” He admitted that he was trained never to wave a child into the street until traffic was completely stopped in both directions. According to the crossing guard, he never signaled the child to come out before the child was hit by Ogilvie’s car, and he never saw him enter the crosswalk. The crossing guard testified that the child entered the crosswalk on his own before he had completely stopped all traffic.

An eyewitness testified that she saw the crossing guard in the crosswalk with his flashing stop sign at the time the child was hit by Ogilvie’s car. According to this witness, the child was just a few steps away from the crossing guard and almost across the street at the time he was struck.

Another eyewitness traveling behind Ogilvie testified that she stopped after she saw the crossing guard walk toward the center of the road. She testified that Ogilvie’s car “kept going.” She testified that the crossing guard was not holding the sign up, but she stopped when she saw him walking toward the center of the intersection. She never saw the child before he was hit and only saw him afterward. According to this witness, the accident happened immediately after the crossing guard started making some steps toward the center of the road.

Another eyewitness testified that he saw the crossing guard enter the crosswalk first and then signal the child to cross the street with him. This witness never saw the crossing guard stand in the middle of Ogilvie’s lane of traffic and attempt to stop it. The crossing guard was about three steps away from the child at the time of impact. He testified that he was flashing his lights in an attempt to stop Ogilvie’s car, that he was focused on looking at her face, and that he “saw she was probably looking down. I don’t know what she was looking at.” During cross-examination, this witness admitted that he never told the police before his trial testimony that he saw Ogilvie looking away.

An expert witness presented by the State testified that the child would have been in the crosswalk for approximately six seconds before being struck by Ogilvie’s car. Based upon his review of the evidence, it was his opinion that Ogilvie saw the child less than one second before impact.

Ogilvie testified that she was driving her daughter to school before the accident and asked her daughter to call her sister-in-law to wish her a happy birthday. While looking ahead, she saw the child “running across the street,” and she swerved to the left into oncoming traffic in an attempt to miss him. She had only “a couple of seconds” to stop after she saw him. She saw the crossing guard on her left as she passed through the crosswalk. She denied that the crossing guard was in the middle of the intersection with his stop sign up. She denied that she turned her head toward her daughter when she asked her to call her aunt. She admitted that she had a cell phone in her purse that was sitting on the floor of the front seat, but denied that she reached for it before the accident. She admitted that she failed to yield to the child in the crosswalk and caused his death.

1. Ogilvie contends that both counts of the accusation were fatally defective because they did not specifically allege essential elements of the crimes. The accusation at issue provided:

COUNT 1
On behalf of the people of the State of Georgia, the undersigned . . . does hereby charge and accuse Shirley Rita Ogilvie with the offense of VEHICULAR HOMICIDE IN THE SECOND DEGREE OCGA § 40-6-393 (c) on February 2, 2009, in that Shirley Rita Ogilvie did, while operating a motor vehicle, cause the death of Kameron Michael Dun-more, a human being, without any intention to do so, through the violation of OCGA § 40-6-91, PEDESTRIAN IN CROSSWALK, by failing to stop and remain stopped to allow a pedestrian to cross the roadway within a crosswalk;
COUNT 2
The undersigned . . . does further charge and accuse Shirley Rita Ogilvie with the offense of PEDESTRIAN IN CROSSWALK on February 2, 2009, by failing to stop and remain stopped to allow a pedestrian to cross the roadway within a crosswalk in violation of OCGA § 40-6-91.

We find no merit in Ogilvie’s claim because both counts of the accusation recited the Code section Ogilvie was charged with violating. While an accusation must set forth the essential elements of the charged crime,

[t]he true test of the sufficiency of an indictment is not whether it could have been made more definite and certain, but whether it contains the elements of the offense intended to be charged, and sufficiently apprises the defendant of what he must be prepared to meet, and, in case any other proceedings are taken against him for a similar offense, whether the record shows with accuracy to what extent he may plead a former acquittal or conviction. As long as the defendant is informed of the charges against him so that he may present his defense at trial and not be surprised by the evidence against him, as well as protect against another prosecution for the same offense, the indictment is sufficient. Thus, if a defendant is not misled to his prejudice by any imperfection in an indictment an appellate court will not reverse.

(Citations and punctuation omitted.) Broski v. State, 196 Ga. App. 116, 117 (1) (395 SE2d 317) (1990). The State’s recitation of the proper criminal statutes in this particular case was sufficient to provide Ogilvie with notice of the elements of the charges against her. Id.; State v. King, 296 Ga. App. 353, 354 (674 SE2d 396) (2009). We therefore affirm the trial court’s denial of Ogilvie’s motion to quash.

2. Ogilvie argues that the trial court erred by refusing to give her requested charge on accident. According to Ogilvie, she was entitled to the charge because she admitted the elements of the offenses with which she was charged and sought merely to justify or excuse them based upon the affirmative defense of accident. The State counters that the defense of accident does not apply to the strict liability offenses with which Ogilvie was charged.

(a) While it is true that there is no element of criminal intent for the strict liability offenses contained in OCGA Title 40, Chapter 6, Uniform Rules of the Road, Hoffer v. State, 192 Ga. App. 378, 380 (1) (384 SE2d 902) (1989), it does not follow that the defense of accident is never available for these crimes. See Moore v. State, 258 Ga. App. 293, 294-295 (1) (574 SE2d 372) (2002) (trial court erred by refusing to give charge on accident in DUI and vehicular homicide case when jury could have found that truck decelerated so rapidly that defendant could not have avoided collision due to circumstances beyond his control); Morris v. State, 210 Ga. App. 617, 618 (2) (436 SE2d 785) (1993) (trial court erred by refusing to give accident charge in DUI and vehicular homicide case when evidence showed foggy conditions could have made it impossible for defendant to see stop sign).

OCGA § 16-2-2 provides: “A person shall not be found guilty of any crime committed by misfortune or accident where it satisfactorily appears there was no criminal scheme or undertaking, intention, or criminal negligence.” The Georgia Supreme Court has held:

“Accident” is an affirmative defense whereby it must be established a defendant acted without criminal intent, was not engaged in a criminal scheme, and was not criminally negligent, i.e., did not act in a manner showing an utter disregard for the safety of others who might reasonably be expected to be injured thereby. [Cit.]

Wilson v. State, 279 Ga. 104, 105 (2) (610 SE2d 66) (2005).

A plain reading of this Code section demonstrates that the lack of a criminal intent element in a strict liability offense should not preclude the application of this affirmative defense in all strict liability cases. One of the requirements for application of this defense is a lack of criminal intent, and a strict liability offense, by its very nature, involves a lack of criminal intent.

(b) Having determined that the defense of accident is available to a defendant charged with a strict liability offense, we must determine whether the charge should have been given based upon the particular facts of this case. “To authorize a jury instruction on a subject, there need only be produced at trial slight evidence supporting the theory of the charge. Whether the evidence is sufficient to authorize the giving of a charge is a question of law.” (Citations and footnotes omitted.) Blackford v. State, 251 Ga. App. 324, 326 (2) (554 SE2d 290) (2001).

In this case, Ogilvie admitted that she struck the victim in a crosswalk and that she caused his death by failing to yield to him in the crosswalk. She based her request for a charge on accident upon her testimony that she could not stop in time to avoid hitting him because he “was running across the street.” The trial court reasoned that a charge on accident was not warranted because

[t]he State is charging that she did not yield to the pedestrian in the crosswalk. Her defense is that I did not see him until it was too late; the kid ran out. That’s hardly admitting that she just didn’t yield. . . .
I disagree that she admitted to the offense of failure to yield to pedestrian in the crosswalk. She said the kid ran out, and the only time she saw him was when she was right on top of the kids. She was already in the crosswalk. She didn’t say, “I saw him, I didn’t yield to him.”

The trial court is correct that a charge on accident is not warranted based on a factual defense showing that no crime was committed. For example, if a defendant asserts that he did not run a red light because the light was green at the time he passed through an intersection, a charge on accident is not warranted. Hoffer, supra, 192 Ga. App. at 381 (2). The defendant in such a case is not asserting that he ran a red light as a result of misfortune or accident, but that he did not run a red light and therefore committed no crime.

In this case, however, Ogilvie admitted under oath that she failed to yield to a pedestrian in a crosswalk. She never claimed that the pedestrian was not in the crosswalk when she struck him or that her car was already in the crosswalk when she first saw him. The trial court therefore erred by refusing to give the requested charge on accident. Morris, supra, 210 Ga. App. at 618 (2); Moore, supra, 258 Ga. App. at 294-295 (1).

(c) We are not persuaded by the State’s contention that our opinion in Coates v. State, 216 Ga. App. 93, 94-95 (5) (453 SE2d 35) (1994), requires a different result. In Coates, we affirmed the trial court’s failure to charge on accident under OCGA § 16-2-2, holding, “[t]he fact that there was no criminal scheme or undertaking or criminal negligence is not a defense to a ‘strict criminal liability’ motor vehicle safety statute.” Id. at 94. This statement should not be interpreted to mean that a charge on accident can never be given in a strict liability criminal case.

The requirements for a charge on accident are: (1) a crime committed by accident or misfortune; and (2) the absence of (a) criminal intent; (b) a criminal scheme or undertaking; and (c) criminal negligence. OCGA § 16-2-2; Wilson, supra, 279 Ga. at 105 (2). In Coates, we merely held that an accident charge was not warranted based upon an absence of only factors (2) (b) and (c), an accurate statement of the law. 216 Ga. App. at 94. Additionally, the defendant in Coates was not arguing that the crime was “committed by accident or misfortune,” but instead that no crime had been committed.

(d) We find no merit in the State’s claim that Ogilvie’s defense was “one of lack of proximate cause and not accident.” This argument overlooks that a defendant can be entitled to both a proximate cause defense and an accident defense. See, e.g., Mitchell v. State, 255 Ga. App. 585, 591-592 (6) (565 SE2d 889) (2002) (trial court’s charges on accident and proximate cause proper and adjusted to evidence in case when boat passenger jumped in front of approaching boat on collision course with passenger’s boat). An accident charge should be given “if there is evidence that the defendant could not have avoided the collision due to circumstances beyond his control.” Moore, supra, 258 Ga. App. at 294-295 (1). Since the facts submitted at Ogilvie’s trial support the theory that she could not avoid hitting the child “due to circumstances beyond [her] control,” id., the trial court erred by refusing to give the accident charge. See Smith v. State, 200 Ga. 188, 198 (2) (36 SE2d 350) (1945) (reversing defendant’s conviction based upon trial court’s failure to charge accident when jury “could have found that the deceased came to his death by walking in front of the truck driven by the defendant”).

(e) The State asserts that we should conclude that any error resulting from the trial court’s failure to charge on accident was harmless because the trial court’s charge as a whole “put [OgilvieJ’s defense squarely before the jury for its consideration.” In a felony murder case, Sears v. State, 290 Ga. 1 (717 SE2d 433) (2011), the Georgia Supreme Court held that a trial court’s failure to charge on accident did not require reversal for two independent and alternative reasons: (1) the entire jury charge “fairly presented the issues, including the defendant’s theory, to the jury,” and (2) there was overwhelming evidence that the defendant acted with malice in a felony murder case. (Citation and punctuation omitted.) Id. at 4.

In support of its argument, the State points to the following charges by the court:

No pedestrian shall suddenly leave a curb or other place of safety and walk or run into the path of a vehicle which is so close that it is impractical for the driver to yield.
Negligence by the Defendant in operating his vehicle and the behavior of the victim is relevant. In vehicular homicide cases, the State must prove that the Defendant’s conduct was the legal or proximate cause as well as the cause in fact of the death.
If in a given case the injury complained of did not flow naturally or directly from the wrongful act or omission attributed to the Defendant or could not reasonably have been expected to result therefrom or would not have resulted therefrom but for the interposition of some independent or unforeseen cause, the Defendant’s such antecedent wrongful act or omission would not be the proximate cause of the injury complained of.
The conduct of the decedent, whether negligent or not, is material to the extent that it bears upon the question of whether, under all of the circumstances of the case, the Defendant was negligent or, if negligent, whether the decedent’s negligence was the sole proximate cause of the injury or whether the injury or death resulted from unavoidable accident.
Proximate cause is defined as an act or failure to act that plays a substantial part in bringing about or actually causing the injury or damage and that the injury or damage was either a direct result or a reasonable probable consequence of the act or omission.

Ogilvie asserts that the charge did not fairly present her sole defense and was confusing because the trial court also instructed the jury on the State’s burden to disprove an affirmative defense beyond a reasonable doubt, but failed to identify an affirmative defense for the jury. Ogilvie’s counsel requested a mistrial on this ground after the trial court’s charge, arguing:

The Court gave Defense Request to Charge 13, which is called affirmative defense. And it talks about what an affirmative defense is. But how can the jury determine what our defense is, such as accident, without you giving them the charge of accident? In other words, they now have something that says, “The Judge told us that when the Defendant says that they have an affirmative defense, then the State has to disprove it beyond a reasonable doubt.” But, yet, how can they do that when you’ve never told them that accident is an affirmative defense?

We are persuaded by this argument and therefore reverse Ogilvie’s convictions. The jury considered this case over a two-day period. It asked multiple questions of the court, and the trial court granted the jury’s request for a written copy of the charges. Although the jurors diligently sought to do their duty, they were not provided with a critical charge on Ogilvie’s sole affirmative defense of accident. Although the proximate cause charge makes a passing reference to “unavoidable accident,” it does not define accident, inform the jury that accident is an affirmative defense, or define the elements of an accident defense. See OCGA § 1-3-3 (2) (defining the term “accident” in all Code sections as “an event which takes place without one’s foresight or expectation or design”); OCGA § 16-2-2 (designating accident as an affirmative defense in criminal cases).

Decided November 9, 2011

Reconsideration denied December 15, 2011

Jackie G. Patterson, for appellant.

Sherry Boston, Solicitor-General, Teri B. Walker, Kelly A. McMichael, Assistant Solicitors-General, for appellee.

Additionally, the State’s evidence was not overwhelming; every eyewitness provided a different account of what transpired the morning that the child was killed. Under the particular facts and circumstances of this case, we simply cannot say that the trial court’s error in failing to give the requested charge on accident was harmless.

3. Ogilvie’s remaining enumeration of error is rendered moot by our holding in Division 2.

Judgment reversed.

Mikell and Dillard, JJ., concur.

       A similar statement in Arnold v. State, 228 Ga. App. 470, 471-472 (1) (491 SE2d 819) (1997), should also not be so construed.

       The State does not assert that the evidence against Ogilvie was overwhelming.

       These charges included the State’s “burden of proving beyond a reasonable doubt that [the defendant] acted with the requisite malicious intent to commit each of the crimes charged.” Id. at 3. The Supreme Court reasoned that “[t]he jury’s conclusion that [the defendant] acted with malice thus necessarily means that it would have rejected any accident defense, which is premised on the claim that he acted without any criminal intent.” Id at 4.

       The defendant in Sears claimed that he shook and hit the 16-month-old victim in an effort to revive her after finding her unresponsive in her playpen. Id. at 2. The State submitted evidence showing that the child died from “ ‘a very severe brain injury’ of the type normally associated with a car wreck or a fall of at least three stories. She had blood behind her eyes and between her brain and skull, likely a product of. . . ‘very violent type shaking.’ ” Id.

       The trial court charged the jury: “An affirmative defense is a defense that admits the doing of the act charged but seeks to justify, excuse, or mitigate it. Once the issue of an affirmative defense is raised, the burden is on the State to disprove it beyond a reasonable doubt.”

       The Supreme Court’s decision in Sears, supra, does not require a different result. In Sears, the Supreme Court’s statement that accident was not the sole defense was dicta, id. at 3, n. 2, and the case is factually distinguishable because it involved an accident charge in a malice murder case.


author: BARNES, Presiding Judge. MILLER, Presiding Judge, BLACKWELL, Judge,

text:
    A11A1021.
    McRAE v. ARBY’S RESTAURANT GROUP, INC.
    (721 SE2d 602)
   BARNES, Presiding Judge.

Because the Workers’ Compensation Act, OCGA § 34-9-1 et seq. (“the Act”), does not compel an employee to authorize her treating physician to talk to her employer’s lawyer ex parte in exchange for receiving benefits for a compensable injury, we reverse the superior court’s order to the contrary in this case.

In February 2006, Laura McRae suffered third-degree burns to her esophagus at work after mistakenly drinking lye that had been left in the break room in a cup similar to the one she had been using. Her employer, Arby’s Restaurant Group, Inc., did not controvert McRae’s workers’ compensation claim and began paying income benefits in March 2006. McRae signed a Form WC-207, authorizing and consenting to the release of her medical information, which expired in 90 days, until any pending hearing, or until revoked in writing.

In September 2009, McRae’s treating gastroenterologist prepared a medical narrative report in which the physician concluded that, despite “exhaustive therapy,” McRae had reached maximum medical improvement and had a 65 percent permanent body impairment. In October 2009 McRae requested a hearing on her claim for temporary total disability and permanent partial disability, which was initially set for October 20, 2009, then reset to December 17, 2009, and again to February 24, 2010.

After receiving the report, Arby’s attorneys tried to schedule an ex parte consultation with the treating physician, but the physician declined to meet with them absent express permission from her patient. The attorneys then moved the administrative law judge (ALJ) to remove McRae’s hearing from the calendar or issue an order authorizing the treating physician to talk to them outside the presence of McRae or her attorney. The ALJ ordered McRae to expressly authorize her physician to speak with counsel for her employer, and denied McRae’s request for a certificate of immediate review by the Appellate Division. In denying the request, the ALJ concluded that McRae could informally contact the treating physician herself and “inquire about any communications made between [the physician] and the Employer/Insurer.”

McRae did not sign a release authorizing her treating physician to communicate with Arby’s representatives without her presence, and the ALJ sanctioned her by removing her claim from the active hearing calendar until she did so. The Appellate Division of the Board affirmed, and McRae then sought judicial review in superior court, which likewise upheld the decision of the ALJ. McRae now appeals from the judgment of the superior court and argues, among other things, that the Act does not compel her to authorize her treating physician to communicate ex parte with representatives of her employer, and that her right to medical privacy is protected by both Georgia law and the Privacy Rule of the Health Insurance Portability and Accountability Act (“HIPAA”).

“[T]he substantive right to medical privacy under Georgia law endures” and is protected by the Georgia Constitution. Baker v. Wellstar Health Systems, 288 Ga. 336, 338 (2) (703 SE2d 601) (2010). While a litigant waives her right to medical privacy to the extent that she places her medical condition at issue, as set forth in OCGA § 24-9-40 (a), that waiver is limited to information related to the injury at issue in the litigation and any related medical history. Additionally, “the dangers associated with ex parte interviews of health care providers are numerous.” Id. at 339 (3) (a). Those dangers include

(1) the potential for unwarranted probing into matters irrelevant to the litigation yet highly sensitive and possibly prejudicial to the patient-plaintiff; (2) the potential for disclosure of information, such as mental impressions not documented in the medical record, that the health care provider has never actually communicated to the patient-plaintiff; and (3) the potential for defense counsel to influence the health care provider’s testimony, unwittingly or otherwise, by encouraging solidarity with or arousing sympathy for a defendant health care provider.

Id. In other words, our Supreme Court has held that ex parte communications between a litigant’s treating physician and opposing counsel should be limited.

While Baker involved a medical malpractice action, and this case involves a workers’ compensation claim, ex parte communications should be restricted similarly in both types of cases. The same or analogous potential dangers exist in both types of cases. Further, unlike a patient who sues her doctor for medical malpractice, an employee injured on the job has no real choice in whether to participate in the workers’ compensation process. If she does not participate, under the Act’s exclusive remedy provision an injured worker has no recourse to compensation. Because participation is compulsory, we should be cautious in extending the employee’s waiver of her right to medical privacy.

While the superior court held that the medical privacy constraints of HIPAA are “inapplicable” in workers’ compensation proceedings, we disagree. There is no wholesale exemption of the requirements of the Privacy Rule in workers’ compensation proceedings. To the contrary, the Privacy Rule applies in the context of such proceedings, but it expressly permits the disclosure of information “as authorized by and to the extent necessary to comply” with the requirements of workers’ compensation laws. See 45 CFR § 164.512 (1).

But the Act does not require a physician to converse ex parte with opposing counsel to share her mental impressions or the knowledge residing in her mind. Nor is an injured employee required under the Act to authorize her physician to conduct ex parte communications with opposing counsel in exchange for continued benefits.

The Act provides that a claimant waives her right to privacy regarding related “communications . . . that the employee has had with any physician,” and directs an authorized treating physician to disclose to the employer “all information and records” related to the employee’s treatment for the injury at issue, as well as any related medical history. OCGA § 34-9-207 (a). The Act also requires a claimant to give the employer a release, directed to a particular provider, for “medical records and information” related to the claim, which expires on the hearing date if one is scheduled. OCGA § 34-9-207 (b).

A treating physician has in her possession a number of tangible documents that constitute “information” but are not “medical records,” such as billing records or referrals. Nothing in the Act indicates that “information” was intended to mean anything but tangible documentation. To construe “information” to include future ex parte communications would lead to “absurd, impractical, or contradictory results,” which we must avoid when construing a statute. Busch v. State, 271 Ga. 591, 592 (523 SE2d 21) (1999). As the amicus curiae brief of the Georgia Legal Foundation put it, to construe “information” in this context to include ex parte communication

between doctor and defense lawyer necessarily defines “information” in a bizarre existential manner ... as being matter residing in the mind of treating physicians, and which is ultimately expressed as a consequence of conversations and communications which take place outside the presence of the injured worker.

The legislature did not contemplate ex parte communications when drafting OCGA § 34-9-207. That Code section was added to the Act in 1991 “to facilitate the collection of medical data” and streamline the workers’ compensation process. H. Michael Bagley et al., Annual Survey of Georgia Law: Workers’ Compensation, 44 Mercer L. Rev. 457, 463 (1992). This new provision gave employers easier access to employees’ medical records related to a workplace injury, streamlining “the determination of coverage, and . . . reducing] the potential for fraud.” G. Mark Cole, Workers’ Compensation: Revise Extensively the Provisions Concerning Benefits and Coverage, Employer Ratings by Insurers, the Award Process, and Other Miscellaneous Aspects of the System, 9 Ga. St. U. L. Rev. 285, 290-291 (1992). Legislators “felt that the person paying the medical bills, in this case the employer, should have access to the records,” and debated “how much access was appropriate.” Id. at 290, n. 40. They compromised between confidentiality and “complete access to all records of any injured employee” by allowing the employer to have access to medical records related to the claimant’s injury and any history of similar injuries. Id. The statute as a whole thus provides no support for the claim that the “information” to which an employer is entitled in OCGA § 34-9-207 includes entitlement to ex parte communications.

Therefore, while the Act requires an employee to authorize her treating physician to release relevant “medical records and information,” it does not require an employee to authorize her treating physician to communicate ex parte with the employer’s lawyers in order to continue receiving benefits. Giving the employer’s counsel unbridled access to ex parte communications with an employee’s treating physicians would create numerous potential dangers, as noted in Baker, among them the potential to influence the physician’s testimony, to probe into irrelevant but highly prejudicial matters, and the disclosure of information never disclosed to the patient. 288 Ga. at 338.

Accordingly, the Appellate Division erred in affirming the AU’s order removing McRae’s claim from the hearing calendar until she expressly authorized her doctor to speak to the opposing lawyer without her presence, and the superior court erred in affirming the Appellate Division. Whether the employer is otherwise entitled to conduct ex parte interviews under the terms of a qualified protective order is not before us at this point.

Accordingly, because a claimant is not required by our Workers’ Compensation Act to authorize her treating physician to talk to her employer’s lawyer ex parte in exchange for receiving benefits for a compensable injury, and because a claimant retains a right to medical privacy as to matters unrelated to her claim, we reverse the superior court’s order to the contrary.

Judgment reversed.

Phipps, P. J., Ellington and Adams, JJ., concur. Miller, P. J., Doyle and Blackwell, JJ., dissent.

MILLER, Presiding Judge,

dissenting.

I have no problem with affording professional courtesies of coordinating physician interviews between counsel, and ensuring that an employee is afforded all reasonable protections. I write separately to express my view that the holding in the majority opinion has the potential to frustrate the purpose of the Workers’ Compensation Act, OCGA § 34-9-1 et seq.

This chapter is intended to provide a complete and exclusive system and procedure for the resolution of disputes between employers and employees who are subject to this chapter concerning accidents and injuries arising out of and in the course of employment as defined by this chapter. The provisions of this chapter shall be construed and applied impartially to both employers and employees.

OCGA § 34-9-23. The Act was not intended to foster an adversarial process at the outset between an employee, employer, and insurer. Cf. Clarke v. Samson Mfg. Co., 177 Ga. App. 149,151 (1) (338 SE2d 738) (1985) (ruling that the payment of workers’ compensation income benefits is not required to be the product of adversarial proceedings). Rather, the statutory scheme of the Act is intended to provide a means for the injured employee to receive prompt compensation and treatment for an on-the-job injury, without the need for protracted litigation. As acknowledged by the majority, OCGA § 34-9-207 was enacted to streamline the workers’ compensation process and give employers easier access to employees’ medical records related to a workplace injury. In light of the purpose of the Act, the procedures governing workers’ compensation cases are not akin to the civil litigation procedures provided in the context of a medical malpractice action under Baker v. Wellstar Health Systems, 288 Ga. 336 (703 SE2d 601) (2010).

I am concerned that the impact of the majority’s ruling may negatively affect employees who are entitled to prompt resolutions of their claims and may inhibit the employer’s ability to have easy access to the employee’s pertinent medical information. This may cause unfavorable delays in the workers’ compensation process. For these additional reasons, I dissent.

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

BLACKWELL, Judge,

dissenting.

I respectfully dissent. In a workers’ compensation case, a physician who has treated or examined the employee must, upon the request of the employer, disclose “all information and records related to the examination, treatment, testing, or consultation concerning the employee.” OCGA § 34-9-207 (a). The majority concludes today that this duty of disclosure involves only the production of written medical records and other tangible things, and it does not, therefore, authorize a physician to speak with an employer or its counsel. The duty of disclosure is so limited, the majority explains, because “information” does not “mean anything but tangible documentation.” If that were a reasonable interpretation of the statute, I might agree that the statute does not authorize the employer or its counsel to talk with the physician, inasmuch as the production of something tangible does not require any conversation.

But that interpretation of the statute is not a reasonable one. When we consider the meaning of a statute, we must afford the words of the statute their “ordinary signification,” see OCGA § 1-3-1 (b), we must presume that the General Assembly meant what it said and said what it meant, see Northeast Atlanta Bonding Co. v. State ofGa., 308 Ga. App. 573, 577 (1) (707 SE2d 921) (2011), and we must bear in mind that, “[wjhere the language of a statute is plain and unambiguous, judicial construction is not only unnecessary but forbidden.” Six Flags Over Ga. II v. Kull, 276 Ga. 210, 211 (576 SE2d 880) (2003); see also Opensided MRI of Atlanta v. Chandler, 287 Ga. 406, 407 (696 SE2d 640) (2010). The relevant statute here, OCGA § 34-9-207 (a), unambiguously requires a physician to disclose not just medical records, but also “information . . . related to the examination, treatment, testing, or consultation concerning the employee.”

The word “information” is generally understood to mean knowledge or data that is communicated to another, regardless of whether the knowledge or data has been memorialized in any tangible medium or exists only in the memory and voice of the person communicating it. See The American Heritage Dictionary 927 (3d ed. 1992) (“information” is “[k]nowledge derived from study, experience, or instruction” or “[k]nowledge of a specific event or situation; intelligence”); The Compact Oxford English Dictionary 847 (2d ed. 1991) (“information” is “[kjnowledge communicated concerning some particular fact, subject, or event; that of which one is apprised or told”); The New Shorter Oxford English Dictionary 1364 (Vol. 1 1993) (“information” is “[kjnowledge or facts communicated about a particular subject, event, etc.; intelligence, news”); Webster’s New International Dictionary 1276 (2d ed. 1959) (“information” is “[kjnowledge communicated by others”); Webster’s Third New International Dictionary 1160 (1976) (“information” is “a knowledge communicated by others or obtained from investigation, study, or instruction” or “knowledge of a particular event or situation”). There is nothing odd about defining “information” in this way. See Moreland v. Austin, 284 Ga. 730, 731, n. 1 (670 SE2d 68) (2008) (explaining that HIPAA protects “[h]ealth information,” regardless of “whether it lies within a physician’s memory or a written record”). The more odd definition is that of the majority, which limits “information” to that contained in written documents or other tangible things. The majority cites no authority whatsoever for its odd definition of “information.”

Decided December 1, 2011

Reconsideration denied December 15, 2011

Clements & Sweet, Lawrence T. Clements, Bruce P. Johnson, for appellant.

Hamilton, Westby, Antonowich & Anderson, Andrew J. Hamilton, James H. Chandler, for appellee.

Moore, Ingram, Johnson & Steele, Robert D. Ingram, Ryan G. Prescott, Carly M. Record, Thomas A. Eaton, Todd K. Maziar, amici curiae.

If a physician is required to sometimes disclose to an employer information that exists only in his mind, communicating that information in a conversation with the employer or its counsel is a natural, reasonable, and sensible way to do it. Because OCGA § 34-9-207 (a) requires a physician to disclose such information, I think, the statute implicitly authorizes the physician to speak with the employer or its counsel, and we ought to, therefore, affirm the judgment below. Because we do not, I respectfully dissent.

I am authorized to state that Presiding Judge Miller and Judge Doyle join in this dissent.

       HIPAA authorizes the Secretary of Health and Human Services to promulgate rules and regulations to ensure the privacy of personal medical information. See 42 USC § 1320d-2 (d) (2) (A). Exercising this authority, the Secretary promulgated the regulation commonly known as the “Privacy Rule,” which is codified at 45 CFR § Í64.500 et seq., and applies to certain individuals and organizations involved in the provision of health care, including physicians. See generally Moreland v. Austin, 284 Ga. 730, 731 (670 SE2d 68) (2008).

       We do not always attribute to terms of art and terms “connected with a particular trade or subject matter” their ordinary signification, but instead attribute to such terms the “signification attached to them by experts in such trade or with reference to such subject matter.” OCGA § 1-3-1 (b). No one in this case even suggests, however, that “information,” as that term is used in OCGA § 34-9-207 (a), is a term of art or should be attributed anything but its ordinary signification.

       My understanding of the meaning of “information” finds support in OCGA § 9-11-33, which governs the use of interrogatories in civil cases and requires a party to whom interrogatories are propounded to “furnish such information as is available to the party.” OCGA § 9-11-33 (a) (1). Would anyone seriously contend that the word “information,” as used in OCGA § 9-11-33, means only information found in written documents or upon tangible things, such that information that exists only in the mind of a party need not be furnished in response to an interrogatory? Of course not. There is no reason to think that “information” means something intangible in OCGA § 9-11-33 (a) (1) but means something tangible in OCGA § 34-9-207 (a).


author: Blackwell, Judge.

text:
    A11A1099.
    MERRY v. ROBINSON et al.
    (721 SE2d 567)
   Blackwell, Judge.

In May 2008, Suzanne Robinson bought a home in Bryan County, and after finding serious defects in its design and construction, she sued Finley Merry and James Crosby, both of whom, she alleged, were responsible for the design and construction of the home. Neither timely answered the complaint, and the court below entered a default judgment against Merry and Crosby jointly, awarding Robinson more than $1 million. Merry moved to set aside the default judgment, asserting, among other things, that the court did not have jurisdiction of his person because Robinson did not properly serve him with process, and Merry moved again to set aside the default judgment after the court set it aside as to Crosby only, contending that the indivisibility of judgments rule required the court also to set it aside as to Merry. The court below denied both motions, and Merry appeals. We affirm the denial of his first motion to set aside, but we reverse the denial of the second.

1. We turn first to the denial of the first motion to set aside the default judgment. In her complaint, Robinson alleged that Merry was a resident of Georgia, and she attempted to have Merry served with process in Georgia, only to learn that he had moved to North Carolina. Then, without amending her allegation of residence, Robinson had Merry served with process in North Carolina by a North Carolina deputy sheriff. A Georgia resident must be served with process under the auspices of the Civil Practice Act, see Shahan v. Scott, 259 Ga. 172, 172 (377 SE2d 859) (1989), and we have said before that a sheriff of another state ordinarily is not authorized by the Civil Practice Act to serve process for a Georgia court. See Fisher v. Muzik, 201 Ga. App. 861, 862 (412 SE2d 548) (1991). A nonresident, however, can be served with process outside Georgia “by any person authorized to make service by the laws of the state ... in which service is made,” OCGA § 9-10-94, and no one disputes that North Carolina law authorizes a sheriff of that state to serve process. See N.C. Gen. Stat. § 1A-1, Rule 4 (a). In his first motion to set aside the default judgment, Merry argued that service by a North Carolina deputy sheriff was improper and, therefore, insufficient to permit the court below to exercise jurisdiction of his person, and both below and in this Court, he and Robinson dispute whether he had to be served as if he were a Georgia resident simply because Robinson alleged that he was. Although the sufficiency of service in this case raises some interesting questions, they are only academic ones because, as the court below found, Merry waived his objection to service by the North Carolina deputy sheriff.

When a defendant appears and wishes to contend that service of process is insufficient and that, as a result, the court lacks jurisdiction of his person, he must raise the issue in his first responsive pleading or motion, and if he does not, he waives it. See OCGA § 9-11-12 (h) (1). In this case, the North Carolina deputy sheriff served Merry with process on March 25, 2009, and Robinson agreed by stipulation to extend the time for Merry to answer until May 11. That day came and went without Merry filing anything. Merry eventually did appear and file an answer and motion to dismiss, but not until May 15. In his answer and motion to dismiss, Merry contended that the court did not have jurisdiction of his person because the summons was defective, but he said nothing about the fact that process had been served by a North Carolina deputy sheriff. By appearing and filing a responsive pleading and motion, albeit untimely ones, and by failing to raise the issue of service by a North Carolina deputy sheriff in his first pleading or motion, Merry waived his right to complain about the person who served him with process.

On appeal, Merry insists that a default does not waive an objection to a failure of service that deprives the court of personal jurisdiction because there can be no default, by definition, when the court is without personal jurisdiction. That is true enough, see Focus Healthcare Medical Center v. O’Neal, 253 Ga. App. 298, 299 (558 SE2d 818) (2002), but the waiver in this case is based not on default, but the filing of an answer and motion to dismiss that say nothing about service by a North Carolina deputy sheriff. After Merry was served, he might have preserved his objections to the sufficiency of service and personal jurisdiction either by appearing before judgment and raising these defenses in his answer or motion to dismiss, or by appearing before judgment and, without having filed an answer or motion to dismiss, raising these defenses in response to the motion for a default judgment, or by appearing only after judgment and raising them in a motion to set aside the judgment. He could not, however, appear before judgment, file an answer and motion to dismiss without then raising these defenses, and later attempt to assert them for the first time after the entry of judgment. See Burch v. Dines, 267 Ga. App. 459, 461 (2) (600 SE2d 374) (2004) (defendants waived objection to service of process when they failed to raise it in the first pleadings in which they “pled to the merits of [the] case”); see also Smithson v. Harry Norman, Inc., 192 Ga. App. 796, 796 (2) (386 SE2d 546) (1989) (defendant waived objection to service of process when she moved to open default and filed untimely answer without raising objection). The court below did not err when it concluded that Merry waived his objection to the sufficiency of service by a North Carolina deputy sheriff, and we affirm the denial of his first motion to set aside the default judgment.

2. We turn next to the denial of the second motion to set aside the default judgment. In her complaint, Robinson alleged that Merry and Crosby both were responsible for the design and construction of her house, and she claimed that both defendants were “completely responsible and liable for the defects in the [house].” Robinson asserted the same claims against both — negligence, fraud, conspiracy to commit fraud, breach of contract, breach of warranty, and nuisance — and she did not attempt in her complaint to distinguish the respective liabilities of Merry and Crosby. When the court below entered its default judgment, it entered a single judgment against both defendants jointly and without apportioning the damages awarded among them:

This case having [come] on for hearing before this Court and a verdict having been reached on August 11, 2009 in favor of [Robinson] in [her] claim against Defendants Finley H. Merry and James Orland Crosby in the following amounts: $365,307.94 for past special damages, $141,254.00 for future repairs, $17,243.00 for litigation expenses and attorney’s fees, and punitive damages in the amount of $523,804.94;
IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that judgment is entered in favor of [Robinson] and against Defendants ... in the amount of $1,047,609.88.

After Merry first moved to set aside the default judgment, so did Crosby, and the court below later set aside the judgment as to Crosby alone. Robinson consented to setting aside the judgment as to Crosby because he, it turns out, had filed for bankruptcy, and Robinson and the court below apparently were concerned that the default judgment might have been entered in violation of the automatic bankruptcy stay. At that point, Merry moved again to set aside the default judgment, contending that the indivisibility of judgments rule requires that the joint judgment, if set aside as to Crosby, be set aside as to Merry as well. The court below disagreed, but we think that Merry is right, and for this reason, we reverse the denial of his second motion to set aside the judgment.

In Georgia, a “judgment rendered against two or more joint tortfeasors is single and indivisible,” Southeastern Truck Lines, Inc. v. Rann, 214 Ga. 813, 817 (108 SE2d 561) (1959), at least to the extent that the damages awarded therein are a joint liability of the defendants and are not apportioned among them. When a court sets aside such a judgment as to some, but not all, of the defendants, the indivisible nature of the judgment sometimes requires that it also be set aside as to the other defendants. See Georgia Kraft Co. v. Laborers’ Inti. Union of North America, 170 Ga. App. 581, 587 (5) (317 SE2d 602) (1984); Carlson v. Holt, 152 Ga. App. 95, 96 (2) (262 SE2d 508) (1979). One circumstance in which a judgment must be set aside as to all of the defendants, we have explained before, is when fewer than all of the defendants are released from an indivisible judgment “for reasons other than on the merits, as shown by the evidence in the case, such as lack of venue [or] lack of service.” Ammons v. Horton, 128 Ga. App. 273, 275 (196 SE2d 318) (1973). See also Knox v. Landers, 160 Ga. App. 1, 2 (1) (285 SE2d 767) (1981); Medlin v. Church, 157 Ga. App. 876, 878 (2) (278 SE2d 747) (1981) (physical precedent only). In that circumstance, the liability of the defendants released from the judgment “for reasons other than on the merits” has not been extinguished, and they still may be held to account for the injury done to the plaintiff, whether in the court in which the original judgment was entered or in some other court. See Ammons, 128 Ga. App. at 279 (“[I]t would seem that the indivisibility of a judgment against joint tortfeasors occurs only when the alleged joint defendants remain liable or their liability is still in issue, or may be placed in issue by perfecting service upon them or their representatives in a proper jurisdiction.”) (emphasis omitted).

Here, it appears that the court below set aside the judgment as to Crosby because he had filed a bankruptcy petition. When one files a bankruptcy petition, of course, it operates as a stay of, among other things, “the commencement or continuation ... of [any] judicial, administrative, or other action or proceeding against the debtor that was or could have been commenced before [the bankruptcy filing].” 11 USC § 362 (a) (1). Put another way, the filing of a bankruptcy petition deprives a court, absent relief from the stay, of the power to enter a judgment against the debtor, but the mere filing of a bankruptcy petition does nothing to extinguish his liabilities, which are extinguished, if at all, only upon his discharge from bankruptcy. See Farris v. NationsBanc Mtg. Corp., 268 Ga. 769 (493 SE2d 143) (1997) (case allowed to proceed in state court after bankruptcy court dismissed bankruptcy petition); Schafer v. Wachovia Bank of Ga., 248 Ga. App. 466, 468 (1) (c) (546 SE2d 846) (2001) (same). The setting aside of the judgment in this case as to Crosby, then, was for “reasons other than on the merits,” and there remains a possibility that his liability, if any, to Robinson might be put in issue. Accordingly, we think the rule of the indivisibility of judgments applies in this case, and the court below should have set aside the judgment as to Merry as well. We, therefore, reverse the denial of the second motion to set aside the default judgment and remand for further proceedings consistent with this opinion.

Decided November 29, 2011

Reconsideration denied December 15, 2011

Bouhan, Williams & Levy, Walter C. Hartridge, Andrew H. Dekle, Hull Barrett, Patrick J. Rice, David E. Hudson, for appellant.

Weinstock & Scavo, Charles J. Bowen, Jr., The Geheren Firm, James R. Fletcher II, Law Office of Darrell T. Johnson, Jr., Mills L. Morrison, Jr., for appellees.

Judgment affirmed in part and reversed in part.

Barnes, E J., concurs. Adams, J., concurs in the judgment and in Division 1.

       According to the complaint, Robinson bought the home for herself and for the Robinson Family Survivors Trust, of which she is the trustee, and she sued Merry and Crosby to vindicate her own rights and those of the trust. There is no need in this appeal to distinguish between Robinson and the trust, and for the sake of simplicity, we refer to both as “Robinson.”

       The court awarded Robinson $523,804.94 in compensatory damages and an equivalent amount in punitive damages.

       A Georgia court could, of course, specially appoint a sheriff of another state to serve process upon a Georgia resident, see OCGA § 9-11-4 (c), but no one contends that the North Carolina deputy sheriff in this case was so appointed.

       Because his answer was only four days late, Merry could have opened his default as a matter of right simply by paying costs. See OCGA § 9-11-55 (a). Inexplicably, he did not, and as a result, he was a few days late and a few dollars short.

       By the way, the reader should know that the untimely answer and motion to dismiss were filed by a lawyer in North Carolina, not by the lawyers now representing Merry in this appeal. Like any lawyer who comes into a case after it is underway, the lawyers now representing Merry must play the hand that they have been dealt.

       In his first motion to set aside the default judgment, Merry also contended that the judgment should be set aside because Robinson failed to give written notice of her claims before filing her lawsuit, which, he says, OCGA § 8-2-38 (a) requires. The court below denied the motion without specifically addressing this contention, and Merry renews it on appeal. We see no merit in this contention. Even assuming that OCGA § 8-2-38 (a) applies in this case, the statutory remedy for a failure of the plaintiff to give notice of her claims is a stay of the proceedings, but a defendant is entitled to such a stay only if he asks for it. OCGA § 8-2-37 (“If a claimant files an action without first complying with the requirements of this part, on application by a party to the action, the court or arbitrator shall stay the action until the claimant has complied with the requirements of this part.”) (emphasis supplied). Merry did not ask for a stay, so he was not entitled to one.

       Only a few jurisdictions still adhere to the rule of the indivisibility of judgments, but no one in this case argues that the rule is obsolete, so we accept that it remains a part of our law. Nevertheless, we note that, in 1987, the General Assembly enacted OCGA § 51-12-33, which originally allowed, but did not require, the trier of fact in certain cases to apportion its damages award “among the persons who are liable.” In 2005, the General Assembly amended OCGA § 51-12-33, and the statute now requires the trier of fact in any case “against more than one person for injury to person or property” to “apportion its award of damages among the persons who are liable.” When a trier of fact so apportions its award of damages, the damages apportioned to a particular defendant are his liability alone and “shall not be a joint liability among the persons liable.” OCGA § 51-12-33 (b). Most of our precedents on the indivisibility of judgments rule predate the 1987 enactment of OCGA § 51-12-33, and we doubt whether the rule has any application to a judgment against joint tortfeasors in which damages are apportioned. The judgment in this case, however, did not apportion damages among Merry and Crosby.

       There are some other circumstances in which the rule of the indivisibility of judgments applies, see Ammons, 128 Ga. App. at 275-276, but none of those other circumstances appear in this case.

       Unless and until Crosby is discharged, the possibility remains that Robinson might put his liability in issue upon the dismissal of his bankruptcy petition or upon securing relief from the stay from the bankruptcy court. Given that possibility, we cannot say that the liability of Crosby, if any, to Robinson has been forever extinguished.

       Our holding in Division 2 renders it unnecessary for us to address the remaining claims of error that Merry asserts on appeal.


author: MILLER, Presiding Judge.

text:
    A11A2327.
    FORTSON v. FREEMAN et al.
    (721 SE2d 607)
   MILLER, Presiding Judge.

This is the sixth appeal filed by Major Fortson before our Court, arising out of an underlying real estate dispute. Fortson, proceeding pro se, filed the instant action against his former counsel, Render C. Freeman and the law firm Andersen, Tate and Carr, EC., formerly known as Andersen, Tate, Mahaffey & McGarity, EC. (“ATC”), alleging multiple claims pertaining to their legal representation in the underlying lawsuit. The trial court dismissed Fortson’s action as a result of his failure to file an expert affidavit pursuant to OCGA § 9-11-9.1 (a). We discern no error and affirm.

“We review a trial court’s order dismissing a plaintiffs complaint de novo.” (Citation, punctuation and footnote omitted.) Crosby v. Pittman, 305 Ga. App. 639 (700 SE2d 629) (2010). In doing so, we construe the allegations of the complaint in the light most favorable to the plaintiff, and we determine whether the allegations disclose with certainty that the plaintiff would not be entitled to judgment as a matter of law. See id.; Fortson v. Hotard, 299 Ga. App. 800, 802 (2) (684 SE2d 18) (2009).

So viewed, the complaint, as amended, alleges that Fortson retained Freeman and ATC to serve as his legal counsel in a real estate dispute against Benico and Fanny Gonzales. Freeman filed a civil action on Fortson’s behalf against the Gonzaleses, and prevailed in obtaining a judgment and an attorney fees award in Fortson’s favor.

Thereafter, the Gonzaleses filed a Chapter 7 bankruptcy petition. During the course of the bankruptcy proceeding, Freeman and the bankruptcy trustee negotiated a settlement of Fortson’s claims against the Gonzaleses, which Fortson approved.

After the bankruptcy settlement, Freeman returned to the trial court and sought a ruling on a pending motion for attorney fees against the Gonzaleses’ counsel, Clifford Hardwick. The trial court granted the motion and entered an award of attorney fees against Hardwick. On appeal, however, this Court reversed the trial court’s award, ruling that the bankruptcy settlement agreement provided for the resolution of all issues in the case, including the attorney fees matter against Hardwick. See Hardwick v. Fortson, 296 Ga. App. 690, 691 (1) (675 SE2d 559) (2009).

Fortson then filed the instant lawsuit against Freeman and ATC, alleging that Freeman provided misleading legal advice and failed to reserve his claims against Hardwick in the bankruptcy settlement. Fortson’s alleged causes of action included legal malpractice; breach of contract; injunctive relief; constructive trust; negligent misrepresentation; fraud; and RICO violation.

OCGA § 9-11-9.1 (a) pertinently provides that
[i]n any action for damages alleging professional malpractice . . . the plaintiff shall be required to file with the complaint an affidavit of an expert competent to testify, which affidavit shall set forth specifically at least one negligent act or omission claimed to exist and the factual basis for each such claim.

Subsection (g) lists the professions to which OCGA § 9-11-9.1 applies, and includes attorneys at law. See OCGA § 9-11-9.1 (g) (2). When the plaintiff fails to file the required expert affidavit in support of his legal malpractice allegation, the complaint is subject to dismissal for failure to state a claim. See Jordan, Jones & Goulding v. Balfour Beatty Constr., 246 Ga. App. 93 (1) (539 SE2d 828) (2000); Abe Engineering v. Griffin, Cochran & Marshall, 212 Ga. App. 586 (443 SE2d 1) (1994); see also Mendoza v. Pennington, 239 Ga. App. 300 (1) (519 SE2d 715) (1999) (failure to comply with OCGA § 9-11-9.1 (a) results in a dismissal with prejudice).

Significantly, all of the allegations in Fortson’s complaint, as amended, concern Freeman’s legal advice and actions taken as Fort-son’s legal representative in the underlying lawsuit and bankruptcy proceeding. Fortson pertinently alleges that Freeman and ATC made “negligent misrepresentation^],” engaged in “lack of professional care and duty of care,” and “failed to continue to pursue [his] interest to the best of their professional abilities.” Although Fortson’s complaint purports to state various causes of action, the substance of his allegations raise only claims of professional negligence against Freeman and ATC. Consequently, Fortson was required to comply with the provisions of OCGA § 9-11-9.1, and his failure to do so authorized the dismissal of his complaint. See Stamps v. Johnson, 244 Ga. App. 238, 239 (535 SE2d 1) (2000); Mendoza, supra, 239 Ga. App. at 300-301 (1); Abe Engineering, supra, 212 Ga. App. at 586.

Fortson’s reliance upon Labovitz v. Hopkinson, 271 Ga. 330, 333-337 (3) (519 SE2d 672) (1999), is misplaced. It is true that Labovitz held that “claims grounded on a professional’s intentional acts which allegedly resulted in injury to one with whom the professional had a professional relationship are not required to be accompanied by an expert affidavit.” Id. at 336-337 (3). Here, however, Fortson’s claims do not assert that Freeman and ATC engaged in any intentional wrongdoing. Rather, Fortson alleges that Freeman and ATC made “negligent misrepresentation^.”

While Fortson’s complaint contains a count for fraud, he failed to allege any specific facts to state a cause of action for fraud.

The tort of fraud has five elements: a false representation by the defendant, scienter, intention to induce the plaintiff to act or refrain from acting, justifiable reliance by the plaintiff, and damage to the plaintiff. [See OCGA §§ 51-6-1, 51-6-2 (b).] OCGA § 9-11-9 (b) requires that all allegations of fraud must be made with particularity and not averred generally

(Citations and punctuation omitted.) Dockens v. Runkle Consulting, Inc., 285 Ga. App. 896, 900 (2) (a) (648 SE2d 80) (2007); see also Fortson, supra, 299 Ga. App. at 802-803 (2) (b). The complaint failed to allege any specific facts indicating that Freeman intentionally made false statements to Fortson during the course of his representation in the proceedings. Fortson’s claims appear to assert only that Freeman provided poor advice and developed ineffective legal strategies based upon his negligence and misinterpretation of the applicable procedural laws. As such, Fortson’s claims assert legal malpractice and fall within the purview of OCGA § 9-11-9.1. See Mendoza, supra, 239 Ga. App. at 300-301 (1). Since Fortson failed to comply with the statutory pleading requirements for an expert affidavit, the trial court did not err in dismissing the complaint. Id.; Abe Engineering, supra, 212 Ga. App. at 586.

Decided December 8, 2011

Reconsideration denied December 15, 2011

Major Fortson, pro se.

Hawkins, Parnell, Thackston & Young, Kim M. Jackson, Bryan M. Grantham, for appellees.

Judgment affirmed.

Ellington and Doyle, JJ., concur.

        See Fortson v. The Travelers Cos., Case No. A12A0156 (pending); Fortson v. Hardwick, 305 Ga. App. XXII (Case No. A10A0833) (2010) (not officially reported); Fortson v. Brown, 302 Ga. App. 89 (690 SE2d 239) (2010); Fortson v. Hotard, 299 Ga. App. 800 (684 SE2d 18) (2009); Fortson v. Hardwick, 297 Ga. App. 603 (677 SE2d 784) (2009). This Court has also resolved a related appeal filed by Fortson’s opposing counsel in the underlying dispute. See Hardwick v. Fortson, 296 Ga. App. 690 (675 SE2d 559) (2009).

       Compare Shuler v. Hicks, Massey & Gardner, LLP, 280 Ga. App. 738, 741 (1) (b) (634 SE2d 786) (2006) (ruling that plaintiffs amended complaint set forth a viable fraud claim grounded in intentional conduct and, thus, it was not required to be accompanied by an expert affidavit under OCGA § 9-11-9.1).

       Freeman and ATC filed a motion to dismiss appeal based upon Fortson’s noncompliance with Georgia Court of Appeals Rule 25, governing the structure and content of the appellate brief. In light of our resolution of the claims presented, the motion is denied as moot.


author: Ellington, Judge.

text:
    A11A1566.
    GANT v. THE STATE.
    (721 SE2d 913)
   Ellington, Judge.

A Columbia County jury found Willie Gant guilty beyond a reasonable doubt of child molestation, OCGA § 16-6-4 (a) (1); enticing a child for indecent purposes, OCGA § 16-6-5 (a); and incest, OCGA § 16-6-22 (a) (1). He appeals from the denial of his motion for new trial, contending that he received ineffective assistance of counsel and that the tried court erred in admitting certain evidence. For the following reasons, we affirm.

Viewed in the light most favorable to the jury’s verdict, the evidence shows the following facts. Gant married the victim’s mother in 2002, when the victim was nine years old. According to the victim, on July 31, 2006, she was alone at the family’s Columbia County home while Gant and her mother were at work, and she called Gant and asked him to pick up some fast food and bring it to her during his lunch break. After Gant arrived, they ate and played video games, and then Gant went into his bedroom and told her to join him. She complied, and Gant had sexual intercourse with her on the bed while telling her that he was falling in love with her. According to the victim, Gant put Neosporin, a topical anesthetic gel, on his penis to act as a lubricant, and he ejaculated into a towel. Gant then took the victim into the bathroom and had sex with her there. Gant warned the victim not to tell anyone because he would go to jail. Then, after doing some laundry and taking a nap, Gant returned to work.

The victim called her mother and told her what had happened. Her mother said that she was coming home, and she told the victim not to call Gant. While her mother was en route, however, the victim called Gant during his 2:00 p.m. break and told him that she had reported the incident to her mother. Gant said that he was going to go to jail and told the victim to tell her mother that it was not true. Gant then drove home and, after briefly speaking with his wife, he packed his clothing and moved out.

The victim’s mother took her to the emergency room, where a physician conducted a sexual assault examination and found that the victim’s hymen was torn in two places, leading her to conclude that the victim had previously had sexual intercourse. A forensic biologist employed by the Georgia Bureau of Investigation (GBI) performed DNA tests on vaginal cervical swabs that had been obtained from the victim, and male DNA was found; however, attempts to obtain a DNA profile that would have identified the source of the male DNA were unsuccessful.

A videotaped forensic interview with the victim was also conducted; the tape was played for the jury at trial. Police officers then obtained the mother’s consent to search the family’s home; they seized Gant’s bedspread and a tube of Neosporin from his night stand, a towel from the bathroom, and the clothes the victim was wearing at the time she was assaulted.

At trial, the victim testified that, before the 2006 incident at issue, Gant had “raped” her almost every day since he married her mother in 2002. According to the victim, Gant told her that he “wanted to show [her] what boys would do to [her] in the future.” The victim first told her mother about the sexual abuse by writing her a note about a month and a half before the 2006 incident; the note was introduced into evidence as State’s Exhibit 1. According to the victim and her mother, they met with a church elder, and the victim told him that Gant had been molesting her. The next day, however, when the family met as a group with the elder, the victim recanted her allegations. The victim also gave Gant and her mother a heart-shaped note expressing her wish that they could be a family again. In addition to this evidence, the State showed that, before the victim’s mother knew about the victim’s allegations, she found a pair of the victim’s panties under Gant’s bed, but, when asked, both Gant and the victim had denied any knowledge of how the panties had gotten there.

Gant testified on his own behalf at trial, denied the victim’s allegations, and asserted that he could not have committed the crimes described by the victim during his 30-minute lunch break, which his employer strictly enforced. The jury rejected Gant’s defense, however, and found him guilty of the indicted crimes.

1. On appeal, Gant contends that his trial counsel provided ineffective assistance in several respects.

In order to prevail on a claim of ineffective assistance of counsel, a criminal defendant must show that counsel’s performance was deficient and that the deficient performance so prejudiced the client that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984)[.] The criminal defendant must overcome the strong presumption that trial counsel’s conduct falls within the broad range of reasonable professional conduct. [As the appellate court, we] accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.

(Citations and punctuation omitted.) Robinson v. State, 277 Ga. 75, 75-76 (586 SE2d 313) (2003). “As a general rule, matters of reasonable tactics and strategy, whether wise or unwise, do not amount to ineffective assistance of counsel.” (Citation and punctuation omitted.) Grier v. State, 273 Ga. 363, 365 (4) (541 SE2d 369) (2001).

(a) Gant contends that his counsel was ineffective for failing to present the testimony of the church elder and a second man who was present during the family meeting and who heard the victim deny that Gant had molested her. However, Gant did not call the witnesses to testify during the motion for new trial hearing or otherwise introduce a legally recognized substitute for such testimony in order to show that the witnesses’ trial testimony would have been relevant, admissible and favorable to his defense. See Watkins v. State, 289 Ga. 359, 362 (3) (a) (711 SE2d 655) (2011) (“[T]o demonstrate prejudice from trial counsel’s alleged failure to elicit favorable testimony at trial, the defendant may not rely on hearsay or speculation^] but must either call the witness or introduce a legally recognized substitute for the uncalled witness’s testimony.”) (citations and punctuation omitted); Strong v. State, 275 Ga. 465, 466 (2) (a) (569 SE2d 523) (2002) (Because the defendant did not produce the witness or the witness’ affidavit at the hearing on his motion for new trial, he failed to present any probative evidence that the witness would have testified for the defense at trial and that his testimony would have been exculpatory). Under such circumstances, we need not evaluate whether counsel’s performance was deficient for failing to call the witnesses at trial, because Gant has failed to establish the second prong of the Strickland test, which is that counsel’s performance prejudiced his defense. Goodwin v. Cruz-Padillo, 265 Ga. 614, 615 (458 SE2d 623) (1995); McRae v. State, 289 Ga. App. 418, 420 (2) (657 SE2d 323) (2008).

(b) Gant argues that his counsel was ineffective for failing to obtain, and to offer as evidence at trial, the heart-shaped note that was written by the victim and given to her mother and Gant after she recanted her allegations against him. There is nothing in the record, however, to show that either Gant or the victim’s mother preserved the note or provided it to trial counsel before or during trial. In fact, at the motion for new trial hearing, Gant admitted that he had not seen the note since the night he and his wife had received it and that he did not know if the note was even available at the time of trial; Gant also failed to proffer the note during the new trial hearing. Consequently, Gant has failed to show that counsel could have obtained the note and presented it to the jury on his behalf at trial, and, thus, has failed to demonstrate that counsel was deficient in failing to offer the note as evidence at trial or that he was prejudiced thereby. See generally Wilson v. State, 291 Ga. App. 69, 74 (4) (a) (661 SE2d 221) (2008) (Absent a proffer of the evidence that the defendant alleged had been improperly excluded by the trial court, the defendant failed to demonstrate that his counsel’s failure to except to the court’s ruling prejudiced the outcome of his trial.).

(c) Gant contends that his trial counsel was ineffective for failing to present evidence, such as his time card from work or the testimony of his supervisor, that would have shown the jury that, on the day of the alleged offenses, he had a strictly enforced 30-minute lunch break. According to Gant, this evidence was necessary to establish his primary defense, i.e., that, in July 2006, his employer prohibited him from taking more than a 30-minute break for lunch and that, as a result, it was physically impossible for him to have committed the acts alleged by the victim during such a short break.

The record shows, however, that Gant testified at trial and repeatedly emphasized this defense, specifically telling the jury that he clocked back in at work 27 minutes after leaving for his lunch break. Further, as shown above, it is undisputed that, after the victim told her mother about the incident, the victim called Gant at work at approximately 2:00 p.m. and told him about her allegations. Thus, Gant was aware of the victim’s allegations within two hours after his lunch break, a fact he admitted at the motion for new trial hearing. Even with this knowledge, however, and even though he was free on bond before his trial, he never attempted to obtain his time card or other employment records to show that he had clocked out and back in within 30 minutes during his lunch break on the day at issue. In addition, Gant failed to proffer the time card, any employment records, or the testimony of his supervisor at the motion for new trial hearing. Finally, his trial counsel testified that she did not remember Gant telling her before trial that his time card or employment records would prove he only had a 30-minute lunch break on the day at issue.

As with the evidence at issue in the previous subsections, we conclude that Gant has failed to show that his trial counsel was deficient in failing to obtain and to present the evidence at trial and that he was prejudiced thereby. Watkins v. State, 289 Ga. at 362 (3) (a); Strong v. State, 275 Ga. at 466 (2) (a); Goodwin v. Cruz-Padillo, 265 Ga. at 615; Wilson v. State, 291 Ga. App. at 74 (4) (a); McRae v. State, 289 Ga. App. at 420 (2).

(d) Gant argues that his counsel was ineffective for failing to review the physical evidence against him before trial and that, as a result, counsel was surprised during trial to learn that some of the evidence seized from Gant’s home (specifically, the bedspread, the towel, and the victim’s clothes) had been lost before it had been tested for DNA evidence. The State showed that the items had been delivered to the GBI crime lab to be tested for bodily fluids, hairs, and other evidence, but they were subsequently misplaced and never tested. Other items that were delivered at the same time, however, including the sexual assault kit obtained during the physical examination of the victim, were processed and tested by the crime lab.

At the new trial hearing, trial counsel testified that she was not sure if she knew before trial that the bedspread, towel and clothing had been lost, but she believed that the unavailability of results from testing the evidence had helped Gant’s defense “tremendously.” In addition, during the hearing, the GBI crime forensic biologist who had testified at trial about the DNA results from the victim’s sexual assault kit admitted that, at the time of Gant’s trial, she was not aware that other evidence from the alleged crimes had been delivered to and lost by the crime lab. She explained that evidence that is submitted to the crime lab is first handled by “evidence entry technicians,” who label and deliver it to the appropriate department for testing. There is no evidence in the record to show that the forensic biologist who testified had ever handled the missing evidence, and Gant has failed to proffer the testimony of an “evidence entry technician” or anyone else employed by the crime lab who had any knowledge of what happened to the evidence.

Given defense counsel’s testimony that she believed the unavailability of the items for DNA testing helped — not hampered — Gant’s defense, and because Gant has failed to demonstrate that there is any reasonable probability that the outcome of his trial would have been different if counsel had known that the items were missing before trial, he has failed to meet his burden of showing prejudice under the second prong of the Strickland test. Robinson v. State, 277 Ga. at 75-76.

(e) Gant contends that his counsel was ineffective for failing to object to evidence of prior “similar transactions” involving him and the victim. As explained in Division 2, infra, the evidence was admissible to show prior difficulties between the victim and Gant. Thus, trial counsel was not ineffective for failing to object to the evidence. Stillwell v. State, 294 Ga. App. 805, 809 (2) (e) (670 SE2d 452) (2008) (failure to object to admissible prior difficulties evidence does not constitute ineffective assistance); see McCoy v. State, 285 Ga. App. 246, 249 (4) (b) (645 SE2d 728) (2007) (“failure to make a meritless argument does not constitute ineffective assistance of counsel”) (footnote omitted).

(f) Gant also contends that his counsel was ineffective for failing to object when the trial court allowed the jury to review State’s Exhibits 1 and 2 during deliberations, in violation of the continuing witness rule. However, Gant has failed to show, by citing to the record, that the exhibits actually went out with the jury for their review during deliberations. It is axiomatic that the party alleging error on appeal carries the burden of showing it affirmatively by the record, and when that burden is not met, the trial court’s judgment is assumed to be correct and will be affirmed. Hung v. State, 284 Ga. 796, 799 (5) (671 SE2d 811) (2009); Theophile v. State, 295 Ga. App. 517, 521 (2) (672 SE2d 479) (2009). Consequently, this alleged error provides no basis for relief.

Decided December 15, 2011.

Jacque D. Hawk, for appellant.

R. Ashley Wright, District Attorney, Madonna M. Little, Assistant District Attorney, for appellee.

2. Gant contends that the trial court erred in admitting evidence of “similar transactions” and prior bad conduct evidence without conducting a hearing. The evidence to which he refers, however, is the victim’s testimony regarding numerous acts of sexual molestation committed against her by Gant prior to the July 2006 incident at issue in this case. Thus, the acts were not similar transactions, but were, instead, prior difficulties between the parties.

Proof of prior difficulties between the defendant and victim — including prior acts of molestation — is admissible without notice or a hearing. This evidence is admissible to show the defendant’s motive, intent, and bent of mind in committing the act against the victim which resulted in the charges for which he was being prosecuted.

(Punctuation and footnotes omitted.) Rayner v. State, 307 Ga. App. 861, 864 (1) (706 SE2d 205) (2011). See Stillwell v. State, 294 Ga. App. at 809 (2) (e) (accord). We conclude that the trial court did not abuse its discretion in admitting the evidence of prior difficulties in this case. See Carter v. State, 296 Ga. App. 598, 601, n. 7 (675 SE2d 320) (2009) (This Court reviews a trial court’s ruling on the admission of evidence under an abuse of discretion standard.).

Judgment affirmed.

Miller, P. J., and Doyle, J., concur.

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

       Notably, at the end of the hearing, Gant’s appellate counsel told the trial court that he had contacted Gant’s employer and its staffing service in an attempt to obtain Gant’s time card, but he had been unsuccessful. Although the court then gave counsel another week to locate it, counsel was unable to do so.

       “The continuing witness rule prohibits writings from going out with the jury when the evidentiary value of such writings depends on the credibility of the maker.” (Punctuation and footnote omitted.) Bryant v. State, 270 Ga. 266, 270-271 (3) (607 SE2d 451) (1998).
      In Georgia!,] the “continuing witness” objection is based on the notion that written testimony is heard by the jury when read from the witness stand just as oral testimony is heard when given from the witness stand. But, it is unfair and places undue emphasis on written testimony for the writing to go out with the jury to be read again during deliberations, while oral testimony is received but once.
      (Punctuation and footnote omitted.) Hopkins v. State, 283 Ga. App. 654, 656-657 (2) (642 SE2d 356) (2007).

       Notably, at the new trial hearing, trial counsel testified that she and Gant had discussed State’s Exhibit 2, which is a letter from the victim to the district attorney telling him that she loves and misses Gant, that he is “the only father” she has had, and that she does not want him to go to jail. Counsel testified that she hoped the letter “would play on [the jury’s] sympathy,” so they would find Gant not guilty.