author: PHIPPS, Presiding Judge.

text:
    A12A0920.
    WHITE v. THE STATE.
    (734 SE2d 421)
   PHIPPS, Presiding Judge.

James David White was serving the probated portion of his sentence entered upon drug and firearm convictions when the trial court revoked his probation after concluding that he had committed new drug possession crimes. This court granted White’s application for discretionary review. Because White has shown that the state failed to prove that he was in possession of the contraband, and the evidence was therefore insufficient to justify the probation revocation, we reverse.

The burden is on the state to prove a violation of probation terms by a preponderance of the evidence. This court will not interfere with a revocation absent manifest abuse of discretion on the part of the trial court.

At the probation revocation hearing, the state called only one witness, a law enforcement officer who had been working as a narcotics investigator. He testified that he had received information from several confidential informants that an individual named Todd Anderson was selling drugs out of his lawnmower repair shop; the investigator had also heard, from sources not made clear by the record, that White was frequently at the shop; the investigator was not told, however, that White was a part of any drug operation. The investigator ran a criminal records check on Anderson and White and learned that both men were on probation and had waived their Fourth Amendment rights as a condition of probation.

At about 11:00 a.m. on August 19, 2011, the investigator, along with at least two other law enforcement officers, arrived at the lawnmower repair shop to conduct a search. The doors to the shop’s three bays were already open. There were three men at the shop; each man either emerged from the shop when the police arrived or was already standing just outside the shop.

As the officers arrived, White was turning his pickup truck into the driveway, and Anderson was in the passenger seat. The investigator approached Anderson at the truck and informed him of the purpose of the police presence. According to the investigator, Anderson said that he and White were partners in the shop; the investigator testified that White may not have heard Anderson make that statement, however. The investigator testified that no one indicated that White worked at the shop. And in any event, the investigator admitted that he did not clarify White’s role at the shop.

The investigator and the other officers searched the premises, which included a residence where Anderson and his girlfriend lived. Inside the shop were tools, equipment, parts, and other indicia of an operating lawnmower repair business. A search inside the shop yielded: (a) an oxycodone pill, found inside a closed, small metal box on top of a refrigerator; (b) a clear smoking device that contained methamphetamine residue, found on top of an approximately waist-high shelf near a business desk; (c) approximately 14 grams of methamphetamine, a set of digital scales, marijuana, and empty plastic bags, all found inside a pouch that had been hidden through a crack in the ceiling; and (d) less than an ounce of marijuana, found in a closed, small leather bag lying on top of welding equipment.

Anderson’s girlfriend was inside the residence. A search of a bedroom yielded methamphetamine, marijuana, and a smoking device. White, Anderson, Anderson’s girlfriend, and the three men were arrested.

The sole defense witness at the hearing was Anderson, who waived his Fifth Amendment privilege against self-incrimination. Anderson denied making the statement to the investigator that White was his business partner. He testified that White was a friend who worked occasional jobs with him, and at times, afforded him the use of his truck. For example, the two had once worked together on a car’s motor at the residence of the car’s owner, and White had driven them there. Also, when Anderson was approached by the investigator at White’s pickup truck on the morning in question, the two were returning from a scrap yard. Anderson’s own truck was not capable of pulling a loaded trailer, and further, Anderson had no driver’s license. Anderson usually paid White for using his truck. Thus, it was not uncommon for White to come to the shop, and there was evidence that White sometimes stored beverages in the shop’s refrigerator.

Regarding the contraband found inside the shop, Anderson admitted that he had placed the smoking device on the shelf before White arrived to pick him up that morning. When White arrived, he did not enter the shop; instead, he hooked a trailer onto his truck, and he and Anderson went to a scrap yard. Anderson admitted also that he had obtained drugs from a dealer and had hidden the hag of contraband in the ceiling. But, he maintained, White knew nothing about the drugs, explaining, “I wouldn’t be able to call [White] and get a ride nowhere, to the scrap yard or anything ’cause [White] wouldn’t have come around me had he know[n] I was fooling with drugs.”

Anderson identified the three men who had been at the shop that morning. One was an employee of the shop; another lived in a camper on the premises; and the third was there to replace some roofing materials. It had been one of those three men, Anderson recalled, who directed the police to the contraband hidden in the ceiling. Anderson also testified that the entirety of the premises searched were leased solely to his girlfriend by an unrelated third party.

At the end of the probation revocation hearing, the trial judge said to White, “[Y]ou and Mr. Anderson traveled around together---You get the stuff, you take it back and forth, you get your metal, you do your thing, you’re out together, and the Court finds that you possessed methamphetamine, oxycodone, and marijuana.” Without additional specific written findings, the trial court revoked seven years of White’s probation for committing new drug offenses of possessing the oxycodone, methamphetamine, and marijuana discovered inside the shop.

Challenging the revocation, White argues that the evidence was insufficient to establish that he was in possession of the drugs. The state counters that the evidence was sufficient as it showed that White was Anderson’s “business partner” and additionally placed White upon the premises of the business where the drugs were located.

“Where, as here, there is no evidence that the defendant was in actual possession of contraband, the State must present evidence showing the defendant’s constructive possession.” “Possession [of drugs] may be constructive, but spatial proximity alone is insufficient to prove constructive possession of [the drugs].” Thus, “a probationer’s mere presence in the area where drugs are found will not justify a revocation based on possession of drugs, even under the more relaxed preponderance of the evidence standard”; instead, the state must show some connection between the probationer and the drugs other than spatial proximity. Furthermore, “when the State’s constructive possession case is based wholly on circumstantial evidence, the law requires that the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.”

In the instant case, the circumstantial evidence was insufficient to show White’s constructive possession of the contraband found. White neither owned nor leased any portion of the property. There was no evidence that he lived on or controlled any of the premises. The state adduced no evidence that any controlled substance was found in White’s truck, that any controlled substance was found on his person, or that he was under the influence of any such drug. The state pointed to Anderson’s statement to the investigator that White was his partner in the shop, but the investigator admittedly did not clarify White’s role in connection therewith. And while the evidence showed that it was not uncommon for White to go inside the shop, there was no evidence as to when, prior to the discovery of the drugs, White had been inside the shop. The investigator testified that he never saw White go inside the shop. Moreover, at the time in question, three men were already at the opened shop, and one of those men was a shop employee. Given the foregoing circumstances, the evidence fell short of proving, even under the more relaxed preponderance of the evidence standard, that White was in constructive possession of the drugs found inside the shop. Therefore, the trial court abused its discretion in revoking White’s probation. The cases relied upon by the state are inapposite and do not provide for an affirmance of the probation revocation in this case.

Decided November 16, 2012.

McFarland & McFarland, Robert P. McFarland, Jr., for appellant.

W. Jeffrey Langley, District Attorney, Cathy A. Cox-Brakefield, Assistant District Attorney, for appellee.

Judgment reversed.

Ellington, C. J., concurs. Dillard, J., concurs in judgment only.

       See OCGA § 42-8-34.1 (b) (“A court may not revoke any part of any probated or suspended sentence unless the defendant admits the violation as alleged or unless the evidence produced at the revocation hearing establishes by a preponderance of the evidence the violation or violations alleged.”); Bowen v. State, 242 Ga. App. 631, 633 (531 SE2d 104) (2000) (state has burden to show hy preponderance of evidence that a defendant violated a condition of probation).

        Cheatwood v. State, 248 Ga.App. 617, 621 (2) (548 SE2d 384) (2001).

       The state does not dispute that the statements of the informants, introduced through the officer’s testimony, were not competent evidence for purposes of probation revocation. See Brown v. State, 294 Ga.App. 1, 4 (2) (668 SE2d 490) (2008); Smith v. State, 283 Ga.App. 317, 318 (641 SE2d 296) (2007) (“Hearsay evidence has no probative value and is inadmissible in a probation revocation proceeding. Thus, such evidence is incapable of supporting a trial court’s findings whether or not objection was lodged.”) (citation and punctuation omitted).

       Anderson denied that he had left it in plain view, recalling that he had tucked it inside a coiled hose.

       Anderson denied having prior knowledge about the contraband stashed in the leather bag found on the welding equipment.

        Scott v. State, 305 Ga.App. 596, 598 (699 SE2d 894) (2010) (citation and footnote omitted).

        Brown, supra at 5 (2) (punctuation and footnote omitted); see Scott, supra (“to prove constructive possession, the State was required to show some connection between [the probationer] and the drugs other than spatial proximity”) (citation and punctuation omitted).

        Scott, supra at 599 (citation and footnote omitted).

       Id. at 598.

        Gray v. State, 313 Ga. App. 470, 471 (1) (722 SE2d 98) (2011) (citation and punctuation omitted).

       See Scott, supra (constructive possession requires showing that defendant knowingly had both the power and intention at a given time to exercise control over the drugs; power may be inferred from access to the drugs, and intent may be derived from a showing of a defendant’s attempt to flee or elude police, defendant’s inconsistent explanations for his behavior, presence of significant amounts of contraband and drug paraphernalia in plain view, defendant’s possession of large amount of cash or drug-related paraphernalia, evidence that defendant was under the influence of drugs, or drug residue found on defendant).

       See generally Gordon v. State, 273 Ga. 373, 376 (2) (b) (541 SE2d 376) (2001).

       See Gray, supra at 471-472 (1) (reiterating that the rule—evidence merely showing that contraband was found in a location occupied by the defendant is not sufficient to support a conviction, especially where other persons had equal access to the contraband and therefore an equal opportunity to commit the offense — applies also in probation revocation proceedings).

       See Scott, supra at 598-599 (noting requisite proof when state’s case for revoking probation is based upon circumstantial evidence of drug possession).

       See Gray, supra (finding circumstantial evidence was insufficient to prove probationer’s constructive possession of marijuana that was found inside a closet of a residential trailer, where the probationer was sitting “at the open front door of [the] trailer,” the probationer had loaned his video game console to occupants of the trailer, and other individuals had access to the trailer, including a man who recently had sold drugs to a confidential informant); Scott, supra; Brown, supra at 5-6 (2) (reversing probation revocation where “[t]he only evidence putting [the probationer] near the cocaine was that [probationer] was sitting in front of the house where the cocaine was found”); Anderson v. State, 212 Ga. App. 329 (442 SE2d 268) (1994) (determining that evidence that the probationer was at his mother’s residence, along with three other individuals, when the police found cocaine inside his mother’s bedroom was insufficient to establish under the preponderance standard that the probationer was in possession of cocaine with intent to distribute); see also Boatner v. State, 312 Ga. App. 147, 148 (1) (717 SE2d 727) (2011) (reversing probation revocation for possession of rifle found leaning against the outside railing of porch on probationer’s trailer, where probationer testified that the rifle was not his, probation officer acknowledged that rifle could have belonged to a neighbor, no ammunition was found inside probationer’s residence or on his property, and a bullet found inside a truck parked near probationer’s trailer did not match the rifle).

       See Smith, supra at 319 (where evidence was nonprobative hearsay and otherwise insufficient, trial court abused its discretion in revoking probation).

       See Mullens v. State, 289 Ga.App. 872, 873-874 (1) (658 SE2d 421) (2008) (trial court did not abuse its discretion in revoking probation where probation term stated “[y] ou shall have no contact. . . with any child” and evidence showed (i) probationer approached a minor girl and offered her candy, and (ii) probationer admitted having had incidental contact with minors); Smith, supra; Cheatwood, supra at 617-618, 621 (2) (where probation terms included that probationer would not violate any laws and would produce on demand a urine sample to be tested for controlled substances, trial court did not abuse its discretion in revoking probation based upon admissible evidence that probationer’s urine had tested positive for marijuana).


source: Caselaw Access Project

author: DOYLE, Presiding Judge.

license: Public Domain

text:
    A12A1005.
    DODSON v. WALRAVEN.
    (734 SE2d 428)
   DOYLE, Presiding Judge.

Following a bench trial, Douglas Dodson appeals from an order establishing custody of his minor child and his child support obligations to Sarah Walraven, the mother of the child. Dodson contends that the trial court erred by (1) attributing to his monthly income $3,000 to reflect support he received from his parents while he lived with them; (2) awarding back child support of $9,550; and (3) awarding Walraven $5,000 in attorney fees under OCGA § 9-15-14 (b). For the reasons that follow, we affirm in part, reverse in part, and remand.

The record shows that Dodson and Walraven dated for a period of time and conceived a child born out of wedlock in October 2007. By-August 2008, the couple was no longer together, and Dodson filed a verified petition in the superior court alleging himself to be the father and seeking a determination of paternity, legitimation, custody, and visitation. Walraven answered, opposing the petition, and filed counterclaims to establish paternity and child support in the event of legitimation. Discovery and paternity testing ensued (confirming Dodson’s paternity), and a bench trial began on the merits of Dodson’s petition. Because the trial had to be continued for scheduling reasons, in February 2010, the trial court entered a temporary order establishing Dodson’s visitation, which was supervised by Dodson’s parents initially and unsupervised thereafter. The temporary order also established child support payments from Dodson to Walraven in the sum of $831 per month.

The bench trial concluded in July 2010, and the superior court entered an order adjudicating paternity, establishing joint custody, and setting Dodson’s child support obligation at $850 per month. It also ordered Dodson to pay Walraven $9,550 in unpaid child support for the period between the time Dodson filed his petition and the entry of the February 2010 temporary order. Dodson moved for a new trial, which motion was denied in an order also awarding certain attorney fees to Walraven. Dodson now appeals.

1. Dodson contends that the trial court erred by calculating his child support obligation based on $3,000 in monthly gift income that was added to his stipulated imputed income of $2,915. The additional $3,000 in monthly income was characterized by the trial court as gift income to reflect the benefits Dodson received while unemployed and living with his parents. Because the record lacks any evidence supporting the trial court’s finding as to Dodson’s income, we reverse.

In the appellate review of a bench trial, this Court will not set aside the trial court’s factual findings unless they are clearly erroneous, and this Court properly gives due deference to the opportunity of the trial court to judge the credibility of the witnesses. Furthermore, since the clearly erroneous test is the same as the any evidence rule, we will not disturb factfindings of the trial court if there is any evidence to sustain them.

Here, the trial court’s award was premised on its finding as to Dodson’s income under the child support guidelines found in OCGA § 19-6-15, which provides as follows, in relevant part:

Gross income of each parent shall be determined in the process of setting the presumptive amount of child support and shall include all income from any source, before deductions for taxes and other deductions such as preexisting orders for child support and credits for other qualified children, whether earned or unearned, and includes, but is not limited to, the following:... Gifts that consist of cash or other liquid instruments, or which can be converted to cash[.]

At trial, Dodson and Walraven, who were both unemployed, each stipulated to an amount of income that should be imputed to them in lieu of income from employment. The trial court heard further testimony from both Dodson and Walraven about the benefits they received while living with their parents. These benefits included living expenses and occasional payment of attorney fees. For Dodson’s part, the testimony showing his living expenses included a gift of his mother’s Cadillac Escalade sport utility vehicle and payment of related expenses for fuel and insurance, payment of certain installments of Dodson’s child support obligation, rent payments and other expenses while Dodson temporarily lived away from home, occasional cash payments, meals, and rent-free housing in his parents’ home. While it is undisputed that the payments made to Dodson or on his behalf were in cash or a cash equivalent, there was no testimony or other evidence showing the actual amount of ongoing payments made to or on behalf of Dodson for his living expenses which would support a finding of continuing, regular monthly gift income of $3,000 to Dodson. Without some evidence of the amount of regular, ongoing gift income to Dodson, attributing to him a monthly lump-sum gift income of $3,000 was not supported by the record. Accordingly, the trial court erred by including that income in its child support calculations for Dodson.

2. Dodson also contends that the trial court erred by awarding back child support of $9,550. We conclude that Walraven is entitled to back support, but the record does not support the amount awarded, so we remand.

Dodson relies on Smith v. Carter, which addressed a lump-sum $70,224 back payment award to the higher-income mother for the first 12 years of the child’s life. During that time, the father made a single child support payment of $100, remarried, and adopted five children. Under those facts, this Court ruled that the trial court erred by failing to consider the mother’s higher income when it calculated the father’s historical child support obligation to be nearly the entire amount of the basic child support figure, thereby ignoring the statutory requirement to calculate the father’s pro rata share under OCGA § 19-6-15 (b) (5).

Dodson focuses on dicta in the case stating that “the custodial parent can never be awarded back support for more than he or she actually spent.” But Dodson ignores the context of this quote, which merely was clarifying that the custodial parent’s actual expenditures are the maximum and not the minimum for a child support award. Thus, the Smith case did not establish a new prima facie burden of proof on the custodial parent. Here, the evidence showed that during the time Dodson did not make child support payments, Walraven bore the expenses of raising their son. This supports an award of support for that time.

Nevertheless, in light of our ruling in Division 1, the amount awarded by the trial court is not consistent with the child support obligation authorized by the evidence. The trial court awarded $9,550 to account for 17 months of Dodson’s nonpayment during the litigation, which amounts to $561.76 per month. But after discounting Dodson’s income by the erroneous $3,000 of monthly gift income, his obligation should be based on his monthly imputed income of $2,915 based on his earning capacity. Thus Dodson’s and Walraven’s combined monthly income wouldbe $5,778 (based on Walraven’s imputed income of $2,863), and the basic child support obligation would be $971 per month. Dodson’s pro rata share of this would be $489.87 per month, which is lower than the monthly rate of back support awarded by the trial court.

But as noted in Division 1, there was evidence that Dodson’s parents paid $50,000 of his attorney fees associated with this litigation. With respect to such variable income, OCGA § 19-6-15 (f) (1) (D) provides as follows:

. . . When income is received on an irregular, nonrecurring, or one-time basis, the court. . . may, but is not required to, average or prorate the income over a reasonable specified period of time or require the parent to pay as a one-time support amount a percentage of his or her nonrecurring income, taking into consideration the percentage of recurring income of that parent.

In light of the attorney fee payments made by Dodson’s parents on his behalf during the litigation, this language authorizes a temporary enhancement of Dodson’s income, commensurate with the attorney fees paid on Dodson’s behalf during the 17-month disputed period. Accordingly, we uphold the ruling that Walraven is entitled to an award of back child support, but remand for recalculation of the amount consistent with this opinion.

3. Finally, Dodson challenges the trial court’s award of attorney fees to Walraven. Walraven sought attorney fees pursuant to OCGA §§ 9-15-14 (abusive litigation) and 19-7-50 (general cost award in paternity cases), claiming that Dodson responded late to discovery, did not pay child support, and failed to file a financial affidavit. The trial court awarded $5,000 in fees pursuant to OCGA § 9-15-14 (b) based on its finding that Dodson unnecessarily expanded the proceedings and took a position that lacked substantial justification when he failed to make child support payments after the paternity test identified him as the biological father and before the court ordered him to pay support in the February 2010 temporary consent order. The trial court denied the remaining fees requested by Walraven.

Decided November 16, 2012.

Dupree & Kimbrough, Hylton B. Dupree, Jr., Blake R. Carl, for appellant.

William R. Pike, for appellee.

This litigation began when Dodson filed his petition to legitimate his child, and under OCGA § 19-7-22 (e), when a legitimation petition is filed the amount of child support is one of the issues to be determined, along with custody and visitation. In response, Walraven opposed the petition to legitimate, and her counterclaim sought support only in the event that “the Petitioner [was] determined to be the biological father.” After paternity was factually (not judicially) determined by DNA testing, Walraven never moved for a temporary order of support under OCGA § 19-7-46.2 nor was she compelled to engage in any substantial extra litigation aside from the normal course of resolving the issues raised in the legitimation petition. A review of the record and trial transcripts reveals little if any extra time spent at the trial on the issue of enforcing Dodson’s support obligation, and the record contains no other expansion of the legitimation proceedings. Accordingly, in the absence of evidence to support the trial court’s findings, the court abused its discretion by awarding attorney fees to Walraven under OCGA § 9-15-14 (b) on this basis.

Judgment affirmed in part and reversed in part, and case remanded.

Andrews and Boggs, JJ., concur.

       The temporary order was submitted by consent of both parties and prepared by Dodson’s attorney, with adjustments made by the trial court.

       The trial court’s order denying his motion for new trial partially modified the original order, but it did not materially alter Dodson’s obligations other than to add the attorney fee award.

       (Citations and punctuation omitted.) Patel v. Patel, 285 Ga. 391, 391-392 (1) (a) (677 SE2d 114) (2009).

       OCGA § 19-6-15 (f) (1) (A) (xvii).

       It was estimated that Dodson’s parents paid $50,000 in total attorney fees on Dodson’s behalf, but these payments do not represent ongoing monthly gifts. These nonrecurring payments are attributable as variable income, and they are discussed in Division 2.

       The trial court expressly stated that it did not consider deposition testimony in light of the witnesses’ appearance in court.

       The trial court attributed no gift income to Walraven despite testimony that she received similar living assistance from her parents while she lived with them.

       305 Ga. App. 479 (699 SE2d 796) (2010).

       See id.

       See id. at 479-480.

       See id. at 482. See also Hamlin v. Ramey, 291 Ga.App. 222, 223 (1) (661 SE2d 593) (2008) (“instead of calculating child support based on the non-custodial parent’s income, the new ‘income shares’ model is designed to have the child support divided between the parties on a pro rata basis”) (punctuation omitted).

        Smith, 305 Ga. App. at 482.

       See id.

       See OCGA § 19-6-15 (o).

       See OCGA § 19-7-22 (f.l).

       The temporary order in this case arose because the bench trial could not he completed in the time scheduled, and it had to be continued until the next available date, which was months later.

       The record contains a single letter dated October 15,2009, from Walraven’s attorney in which she references the parties’ extensive visitation discussions and in the same letter addresses the issue of support and requests that Dodson support his child. At the beginning of the first day of trial, the trial court noted that the attorneys were “talking about a stipulation on the support issue,” such that Walraven’s income was essentially agreed to, and there was “still a little bit of question about” Dodson’s income.

        See Franklin Credit Mgmt. Corp. v. Friedenberg, 275 Ga. App. 236, 242 (2) (d) (620 SE2d 463) (2005) (fee award must he limited to those fees incurred because of the sanctionable conduct).


text:
    A12A1100.
    H.O.P.E. THROUGH DIVINE INTERVENTIONS, INC. v. FULTON COUNTY BOARD OF TAX ASSESSORS.
    (734 SE2d 288)
   PHIPPS, Presiding Judge.

H.O.P.E. Through Divine Interventions, Inc. appeals the superior court’s summary judgment against it and in favor of the Fulton County Board of Tax Assessors. Specifically, the superior court ruled that H.O.P.E.’s real property (hereinafter, “Property”) did not qualify during certain years for an exemption from ad valorem property taxation under OCGA § 48-5-41 (a) (4), which pertains to “[a]ll institutions of purely public charity.” We affirm.

Summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” “In our de novo review of the grant of a motion for summary judgment, we must view the evidence, and all reasonable inferences drawn therefrom, in the light most favorable to the nonmovant.”

The material facts are uncontested. H.O.P.E. was incorporated solely to provide residential, recovery, employment, self-development and other supportive services to individuals and families with histories of substance abuse, unemployment, homelessness, or criminal behavior. It is a nonprofit corporation organized exclusively for charitable purposes within the meaning of Section 501 (c) (3) of the Internal Revenue Code, and is registered in Georgia as a “charitable organization” pursuant to OCGA § 43-17-5.

In July 2007, H.O.P.E. purchased the Property located in Fulton County; upon the Property was situated a gutted 40-unit apartment building; H.O.P.E. intended to provide upon the Property permanent supportive housing to low-income individuals and families who were homeless or at high risk of becoming homeless and who also were contending with various other special needs. In 2007,2008, and 2009, H.O.P.E. engaged in the finance, construction, and renovation phases of developing the Property, and the construction and renovation undertakings were completed in November 2009. Meanwhile, no individual or family hadbeen housed on the Property by H.O.P.E., nor had any other charitable services of H.O.P.E. been provided to anyone on the Property. In December 2009, when the apartments and its community center opened, the Property became home to formerly homeless persons. H.O.P.E.’s application that the Property be declared tax exempt as an “institution[ ] of purely public charity” was granted for 2010.

This case concerns years 2008 and 2009. H.O.P.E.’s exemption applications for those years were denied by the Fulton County Board of Tax Assessors, and the Fulton County Board of Equalization likewise concluded that the Property did not qualify for tax exempt status for 2008 and 2009. Thereafter appearing before the superior court, H.O.P.E. and the Fulton County Board of Tax Assessors presented on cross-motions for summary judgment the question whether, based upon the construction and renovation work during tax years 2008 and 2009, the Property qualified for tax exempt status as an “institution[ ] of purely public charity” pursuant to OCGA § 48-5-41 (a) (4).

That Code provision states: “The following property shall be exempt from all ad valorem property taxes in this state: All institutions of purely public charity.” The Supreme Court of Georgia has held that “in order for an institution to be granted a property tax exemption pursuant to OCGA § 48-5-41 (a) (4), it must satisfy the [three factors set forth in York Rite Bodies of Freemasonry of Savannah v. Bd. of Equalization of Chatham County] . . . .” In York Rite, the Supreme Court of Georgia held:

In determining whether property qualifies as an institution of purely public charity as set forth in OCGA § 48-5-41 (a) (4), three factors must be considered and must coexist. First, the owner must be an institution devoted entirely to charitable pursuits; second, the charitable pursuits of the owner must be for the benefit of the public; and third, the use of the property must be exclusively devoted to those charitable pursuits.

The parties agreed before the superior court that their dispute concerned only the third York Rite factor. Summary judgment was granted against H.O.P.E. and in favor of Fulton County, because the superior court held that H.O.P.E.’s “intended use and preparation for that use” during 2008 and 2009 were insufficient to satisfy that factor.

On appeal, H.O.P.E. contends that the superior court erred in concluding that the Property did not qualify for tax exempt status as an “institution[ ] of purely public charity” for tax years 2008 and 2009, when the Property was undergoing construction and renovation. It points out that constructing and renovating the Property were necessary steps because, without their successful completion, “H.O.P.E. would not have been able to ultimately provide permanent supporting housing to formerly homeless men and women at the Property, nor provide the infrastructure and support they need to prepare them for independent and permanent housing.” H.O.P.E. asserts further that there is no evidence that, during the financing, construction, and renovation phases, it used the Property for any noncharitable purpose. Additionally, H.O.P.E. cites evidence that, during the financing phase, it executed agreements with various organizations promising that the acquired funds would be used to provide housing and other supportive services to persons who would live upon the Property.

But given the language of the statutory provision at issue, the long line of judicial decisions interpreting that language, and general principles applicable when determining entitlement to a tax exemption, the superior court properly concluded that the cited tax exemption did not apply to the Property, as urged by H.O.P.E.

We begin by recognizing the following general principles. “Taxation is the rule; exemption from taxation is the exception.” “[Cjlaims for exemption from taxation should generally be construed in favor of the State and against the taxpayers.” Therefore, “we strictly construe taxation statutes, and we will not find an exemption unless it is clear that the legislature intended such exemption.”

The pertinent Code provision, OCGA § 48-5-41 (a) (4), does not expressly exempt from taxation property at which charitable housing and supportive services are merely contemplated, property for which funding is being procured so as to finance the necessary charitable infrastructure, or property upon which construction and renovation is in progress for its initial charitable use. But as stated above, there is extensive case law interpreting the statutory language, including York Rite. In addition to enumerating the three factors, York Rite provided the following guidance as to the third factor (at issue here):

[T]he applicability of this tax exemption will turn upon a determination of how the property is being used by the institution. Mere latent ownership of property by an institution of public charity will not entitle the property to an exemption. Nor will merely making real estate available to other public or charitable institutions for their use be sufficient to qualify for the tax exemption. Instead, the use of the property must be exclusively devoted to conduct that benefits the public by furthering the charitable pursuits of its owner.

Although H.O.P.E. maintains that its construction and renovation work during 2008 and 2009 constituted such “use,” we cannot agree, in light of more than 100 years of decisions by the Supreme Court of Georgia, including York Rite, Thomas v. Northeast Ga. Council, Inc., Boy Scouts of America, Mu Beta Chapter Chi Omega House Corp. v. Davison, and Trustees of the Academy of Richmond County v. Bohler.

The York Rite Court, elaborating further on the third factor, made clear that the dispensation of public charity must exist. There, where the properties at issue were used as “meeting places” and for other purposes primarily by members of the organizations, the Court instructed, “If the [organizations] can establish that the use of their respective properties is exclusively for the administration and dispensation of public charity, then they will have established the third factor.” H.O.P.E.’s quests for the tax exemptions, however, were not based upon any claim that, upon its Property, it was then dispensing charitable housing or other supportive services to the public its quests for the exemptions rested upon the construction and renovation efforts as necessary steps toward ultimately providing such charity.

Moreover, the superior court’s conclusion that H.O.P.E.’s “intended use and preparation for that use” — as manifested by its construction and renovation work—were insufficient to constitute “use” heeds the seminal case of Trustees of the Academy of Richmond County. There, a testator had devised to trustees and their successors certain real estate, the annual product of which was to be appropriated to the erection of a poor-house and for the support of its inmates forever. No poor-house had been erected, but the trustees were accumulating a fund for that purpose and for the purchase of a suitable site therefor, from the income of the devised property. The devised property was taxed, and the trustees sought to enjoin the collection of taxes, claiming that the property was exempt as an institution of purely public charity. The Supreme Court of Georgia concluded that the devised property was not exempt, and that the poor-house, “[w]hen it shall come into being and into use, pursuant to the scheme of the founder, it will be exempt from taxation” as an institution of purely public charity.

The Court observed that the statutory language at issue — “[a]11 institutions of purely public charity” —• did not “mention[ ] property of, or belonging to, institutions of purely public charity, but only the institutions themselves.” Reasoning that “[t]hese institutions are thus mentioned as property,” the Court held, “[U]ntil property gets into the form of the [statutorily] enumerated items or articles, no exemption obtains.” The Court elaborated, “When the tax officer goes forth to search for taxable property, all which he finds employed in the ordinary uses of common life, unless it belongs to the public, he is to regard as taxable.” When exemption is claimed, the Court continued,

[the tax officer] is not to look for persons, natural or artificial, nor for ideal beings, but for real, visible things . . . , and unless they are in present tangible existence, he cannot exempt something else which he is informed will be used to produce them hereafter. In other words, he is not to spare a form of property not enumerated because, for the time being, it represents a part or the whole of one or more of the forms which are enumerated. The exemption is not a release in personam, but a release in rem, and the res to which the release applies must be found and identified by the officer, or no exemption can be recognized.

Employing language subsequently incorporated in cases such as York Rite, as well as in the 2007 amendment to OCGA § 48-5-41, the Court proclaimed that institutions are exempt, “provided they are dedicated to charity and used exclusively as institutions of purely public charity” The Court instructed, “[H]omes of various kinds, soup-houses, etc., permanently established and open, without charge, to the whole public, or to the whole of the classes for whose relief they are intended or adapted, are institutions of the exempt order.”

Accordingly, almost a century later, in Thomas v. Northeast Ga. Council, the Supreme Court of Georgia expounded:

[T]he test for determining whether property is exempt from taxation under [OCGA § 48-5-41 (a) (4)] ... is “whether the property itself is dedicated to charity and used exclusively as an institution of purely public charity.” [] This usage test is succinctly stated in Mu Beta Chapter Chi Omega House Corp. v. Davison, [] as follows: “If exempt, it is only because it is property used exclusively as an institution of purely public charity.” Property owned by a charitable institution is not exempt from taxation unless it is used for the purposes for which that institution was established,

H.O.P.E. was established to provide residential, recovery, employment, self-development and other supportive services to certain individuals and families. There is no evidence that H.O.P.E. provided upon its Property any such housing or services during the construction and renovation phases of 2008 and 2009. Rather, it is undisputed that, while the construction and renovation were underway, the Property was not yet established and open to the classes for whose relief H.O.P.E. intended. Given the foregoing, the superior court properly rejected H.O.P.E.’s position that its ongoing construction and renovation upon the Property qualified the Property as an “institution [ ] of purely public charity.”

H.O.P.E. cites evidence that, in procuring grants and other financial contributions, it executed agreements promising that the funds obtained would be used for the purposes of providing housing and other supportive services to persons who would live upon the Property. While those agreements may have shown H.O.P.E.’s dedication to its charitable pursuits, the agreements do not supply the requisite “use.” Moreover, it has long been settled that parties may not contractually defeat a government’s right to collect taxes.

Nothing in the cases of City of Atlanta v. Crest Lawn Mem. Park Corp., Suttles v. Hill Crest Cemetery, or City of Atlanta v. Clayton County Bd. of Tax Assessors, cited by H.O.P.E., provides for an outcome in its favor. Tax exemptions were allowed in those cases, but under other subsections of OCGA § 48-5-41. Crest Lawn Mem. Park Corp. and Suttles concerned the statutory tax exemption for “places of burial.” And Clayton County Board of Tax Assessors concerned the statutory tax exemption for “public real property which is owned by a political subdivision of this state and which is situated outside the territorial limits of the political subdivision.”

Finally, H.O.P.E. makes a policy argument that disallowing a tax exemption under the circumstances presented by this case would “discourage” development. But as “the Supreme Court [has] noted, ‘[t]here are infinite charities that deserve the plaudits of all mankind, but the [law] restricts tax exemption of institutions of charity....’ ” Whether and the extent to which an exemption applies are matters of policy judgment reserved for the legislature. Here, nothing in the plain language of the statutory exemption expressly encompasses property merely intended for charitable use or property merely being prepared for its initial charitable use. And the interpretation of the statutory language proposed by H.O.P.E. exceeds the boundaries drawn by judicial decisions that constrain this court. Indeed, when previously considering the exemption provided by OCGA § 48-5-41 (a) (4), this court described “it [as] a narrow exception.” Given the statutory language, binding precedents interpreting that language, and governing principles applicable when discerning entitlement to tax exemptions, this court (as was the superior court) is without authority to effectively expand upon the reaches of OCGA § 48-5-41 (a) (4), as urged by H.O.P.E.

Decided November 16, 2012.

McKenna, Long & Aldridge, Jeffrey R. Baxter, for appellant.

Turner & Ross, Valerie A. Ross, Meredith W. Germain, for appellee.

As the Supreme Court of Georgia has recently reiterated in Nuci Phillips Mem. Foundation v. Athens-Clarke County Bd. of Tax Assessors-. “an exemption is still unavailable in those situations where a public charity owns property, but does not use the property in its charitable purposes.” Given the facts and circumstances of this case, the superior court correctly concluded that H.O.P.E.’s cited “use” of the Property during 2008 and 2009 did not bring the Property within the ambit of OCGA § 48-5-41 (a) (4), which pertains to “[a]ll institutions of purely public charity.”

Judgment affirmed.

Andrews and Boggs, JJ., concur.

       OCGA § 9-11-56 (c).

        Cowart v. Widener, 287 Ga. 622, 624 (1) (a) (697 SE2d 779) (2010) (citation and punctuation omitted).

       OCGA § 48-5-41 (a) (4) (emphasis supplied).

       261 Ga. 558 (408 SE2d 699) (1991).

        Nuci Phillips Mem. Foundation v. Athens-Clarke County Bd. of Tax Assessors, 288 Ga. 380, 385 (2) (703 SE2d 648) (2010) (plurality opinion). Nuci Phillips Mem. Foundation held further that OCGA § 48-5-41 (c), (d) (1) and (2) also had to be satisfied. Nuci Phillips Mem. Foundation, supra at 381 (1) (explaining that York Rite summarized the requirements for an institution to qualify as a “purely public charity’ for an ad valorem tax exemption under the exemption statutes from 1946 to the pre-2006 exemption statute, OCGA § 48-5-41).

        York Rite, supra at 558 (2) (emphasis supplied).

       OCGA § 48-5-41 (a) (4).

        Thomas v. Northeast Ga. Council, Inc., Boy Scouts of America, 241 Ga. 291, 293 (244 SE2d 842) (1978) (citing former Code Ann. § 92-201); see Tharpe v. Central Ga. Council of Boy Scouts of America, 185 Ga. 810, 813 (1) (196 SE 762) (1938) (setting forth, language of Code § 92-201: “the following described property shall be exempt from taxation, to wit:... all institutions of purely public charity.”); see further Leggett v. Macon Baptist Assn., 232 Ga. 27, 28 (I) (205 SE2d 197) (1974).

        Johnson v. Wormsloe Foundation, 228 Ga. 722, 728 (2) (187 SE2d 682) (1972) (citation omitted); see Fulton County Bd. of Tax Assessors v. Visiting Nurse Health System of Metropolitan Atlanta, 243 Ga. App. 64, 65 (2) (532 SE2d 416) (2000).

        Visiting Nurse Health System of Metropolitan Atlanta, supra at 67 (3) (footnote omitted).

       See text accompanied by note 3, supra.

       Supra.

        York Rite, supra at 559 (2) (c) (emphasis supplied).

       Supra.

       Supra.

       192 Ga. 124, 126 (14 SE2d 744) (1941).

       80 Ga. 159 (7 SE 633) (1887), superseded on other grounds as stated in Elder v. Henrietta Egleston Hosp. for Children, 205 Ga. 489, 491-493 (53 SE2d 751) (1949) (concerning effects of income-producing activity upon the tax-exempt status of institutions of purely public charity), and Cobb County Bd. of Tax Assessors v. Marietta Ed. Garden Center, 239 Ga.App. 740, 745 (2), n. 2 (521 SE2d 892) (1999) (acknowledging that Elder, supra, determined that the use of property to produce income may not defeat entitlement to exemption from ad valorem property taxation).

        York Rite, supra at 559-560 (3) (b).

       Id.

       Id. (emphasis supplied).

       See Nuci Phillips Mem. Foundation, supra at 386 (2) (explaining that to qualify as “public,” it is not necessary that the facility be open to the entire public; rather, it is sufficient that it be “open to the classes for whose relief it was intended”); Cobb County Bd. of Tax Assessors, supra at 745 (2) (denying tax exemption because the property provided substantial benefits, including free use of the property, only to dues-paying member clubs and their memberships).

       Supra.

       Id. at 159-160.

       Id. at 160.

       Id.

       Id. at 165.

       Id. at 160.

       Id. at 161 (emphasis supplied). Likewise, neither does the statutory language at issue in the instant case; see the text in this opinion that is accompanied by n. 3, supra. Cf. Bd. of Tax Assessors of Ware County v. Baptist Village, 269 Ga. App. 848, 851 (1) (605 SE2d 436) (2004) (determining that the General Assembly’s passage of OCGA § 48-5-41 (a) (12), which pertains to “[p]roperty of a nonprofit home for the aged used in connection with its operation,” was an expansion of the older category of institutions of purely public charity).

        Trustees of the Academy of Richmond County, supra at 161.

       Id. at 164.

       Id.

       Id. at 164-165 (emphasis in original).

       In 2007, the General Assembly amended OCGA § 48-5-41 (d) (2), including the requirement that, “[w]ith respect to paragraph (4) of subsection (a) of this Code section,” the ‘building is used by such charitable institution exclusively for the charitable purposes of such charitable institution.” Ga. L. 2007, p. 341, § 1. See Nuci Phillips Mem. Foundation, supra at 387 (2) (noting that OCGA § 48-5-41 (d) (2), as amended in 2007, encompasses, inter alia, the third prong of York Rite).

         Trustees of the Academy of Richmond County, supra at 161 (emphasis supplied).

       Id.

       Supra.

        Tharpe, supra at 813 (punctuation omitted), citing Trustees of the Academy of Richmond County, supra.

       Supra.

        Thomas, supra at 292-293 (citations and punctuation omitted).

       See Johnson, supra at 726 (2) (“Whether express or implied, an intention on the part of the owner to dedicate his property to the public use must be shown.”) (citation and punctuation omitted).

       See Real Estate Loan Co. v. Union City, 177 Ga. 55 (1) (169 SE 301) (1933) (“Aside from such exemptions from taxation as may be provided by law, parties can not by any sort of contract defeat the right of the government to collect the taxes for which property would otherwise he hable.”) (citations omitted).

       218 Ga. 497 (128 SE2d 722) (1962).

       87 Ga. App. 343 (73 SE2d 760) (1952).

       284 Ga. App. 871 (645 SE2d 42) (2007), disapproved on other grounds as stated in Gilmer County Bd. of Tax Assessors v. Spence, 309 Ga. App. 482, 483 (711 SE2d 51) (2011).

       See OCGA § 48-5-41 (a) (2) (exempting from ad valorem property taxes “[a]ll places of burial”); Crest Lawn Mem. Park Corp., supra at 499-502 (3); Suttles, supra at 346-348 (explaining that, regarding the tax exemption for places of burial, “[t]he inquiry is: Has the property been committed to use as a cemetery and is it being held in good faith for that purpose?”).

       See OCGA § 48-5-41 (a) (1) (B); Clayton County Bd. of Tax Assessors, supra at 871-872.

        Visiting Nurse Health System of Metropolitan Atlanta, supra at 65-66 (2), quoting Ga. Osteopathic Hosp. v. Alford, 217 Ga. 663, 667 (124 SE2d 402) (1962) (further noting that without qualifying legal parameters, “courts would ramble in a wilderness of private charitable actions in seeking an answer to their eligibility to tax exemption” and therefore cautioning that “great admiration for all charitable acts must not cause [courts] to overlook the [law]”).

        Perdue v. Baker, 277 Ga. 1, 14 (6) (586 SE2d 606) (2003) (“The core legislative function is the establishment of public policy through the enactment of laws.”) (footnote omitted); Commonwealth Investment Co. v. Frye, 219 Ga. 498, 499 (134 SE2d 39) (1963) (holding that “the legislature, and not the courts, is empowered by the Constitution to decide public policy, and to implement that policy by enacting laws; and the courts are hound to follow such laws if constitutional”); see Ga. Osteopathic Hosp., supra; Visiting Nurse Health System of Metropolitan Atlanta, supra.

       OCGA § 48-5-41 (a) (4). See generally OCGA § 48-5-41 (d) (1), which provides that, except under circumstances not at issue here, “this Code section... shall not apply to real estate or buildings which are not used for the operation of . . . charitable institutions.” (Emphasis supplied.) Also see generally Nuci Phillips Mem. Foundation, supra at 385 (1) (ascertaining that OCGA § 48-5-41 (d) (1) counters attempts for a “greatly expanded tax exemption” that “would be vulnerable to abuse by commercial developers wishing to evade property tax”).

       See York Rite, supra; Thomas, supra; Mu Beta Chapter Chi Omega House Corp., supra; Trustees of the Academy of Richmond County, supra. Cf. Nuci Phillips Mem. Foundation, supra at 383 (1) (determining that the General Assembly’s 2007 amendment to OCGA § 48-5-41 (d) (2) was intended to broaden the ability of charitable institutions to use their property to raise income, where specified parameters were met); Baptist Village, supra.

        Visiting Nurse Health System of Metropolitan Atlanta, supra at 65 (2).

       Supra.

       Id. at 385 (1) (citation omitted).

       Id. (emphasizing that, in determining applicability of a statutory tax exemption, the facts of each case must be viewed as a whole and all of the circumstances surrounding the institution must he considered).


text:
    A12A1190.
    MICKENS v. THE STATE.
    (734 SE2d 438)
   DOYLE, Presiding Judge.

Nelson Mickens appeals from the denial of his amended motion for new trial following his conviction by a jury of aggravated assault and rape. He contends that (1) the State failed to establish a proper chain of custody for the evidence; (2) the trial court erroneously failed to dismiss a juror or grant a mistrial based on a juror’s alleged misconduct; (3) the trial court improperly commented on the evidence; (4) the trial court gave an improper jury charge on the length of its deliberation; (5) trial counsel was ineffective; and (6) the evidence was insufficient to support the conviction. Finding no merit to these arguments, we affirm.

Construed in favor of the verdict, the evidence shows that at approximately 9:00 one evening in December 2004, J. O. was stopped at a gas station after leaving early from her shift as an exotic dancer. Mickens was at the gas station in his vehicle and stopped J. O. to ask her for directions. As they spoke, Mickens pushed J. O. into his car and drove her to a nearby motel parking lot, where he forcibly had sexual intercourse with her in his car. Mickens then drove her back to the gas station, pushed her out of his car, and drove away. J. O. went home and called her fiancée, who took her to the police station. After speaking with police, J. O. was taken to a hospital, where a rape examination kit was used to take cervical and vaginal swabs.

Laboratory analysis of the swabs determined a DNA profile and showed the presence of sperm cells. The DNA profile was submitted to state and national law enforcement databases, and in 2007, a DNA profile was entered into a database in Columbus, Ohio, that matched the DNA taken from J. O.’s rape kit. Based on the match, a Georgia detective drove to Ohio and obtained a search warrant to sample the saliva of the suspect producing the matching DNA, which suspect turned out to be Mickens, who had recently been incarcerated in Ohio. The detective collected swabs from Mickens’s mouth and drove them back to Georgia for comparison to the DNAfrom J. O.’s rape kit. The Georgia Bureau of Investigation (GBI) performed an analysis and determined that Mickens’s cheek swab matched the DNA collected from J. O.’s rape kit.

Mickens was charged with J. O.’s rape, aggravated assault, and kidnapping. Following a jury trial, including similar transaction evidence showing that Mickens had raped another exotic dancer late at night in his car on a public street, Mickens was convicted of rape and aggravated assault, but was acquitted of kidnapping. The trial court denied his amended motion for new trial, giving rise to this appeal.

1. Mickens contends that the State failed to establish a proper chain of custody for the forensic evidence from the rape kit and his mouth swab.

Where the State seeks to introduce evidence of a fungible nature, it must show a chain of custody adequate to preserve the identity of the evidence. The burden is on the State to show with reasonable certainty that the evidence is the same as that seized and that there has been no tampering or substitution. The State need not [negate] every possibility of tampering, and need only establish reasonable assurance of the identity of the evidence. When there is only a bare speculation of tampering, it is proper to admit the evidence and let what doubt remains go to the weight.

(a) Mickens’s mouth swabs. To demonstrate the chain of custody of the mouth swabs, the State offered testimony from the detective, who personally collected them from him in Ohio. She testified that she placed the swabs in an envelope, which she then sealed with tape, and the detective wrote her initials over the tape to confirm that she was the person who had secured the swabs. The detective then stored them in a secured evidence lock box in Georgia and later retrieved them and transported them to a secured lock box at the GBI. A GBI forensic biologist also testified and confirmed that the swabs had been placed in the GBI lockbox and were properly sealed, but they lacked proper initials.

Mickens argues that the lack of initials and the lack of testimony from the Georgia police evidence custodian demonstrate a failure in the chain of custody. But

[i]n proving chain of custody, the [S]tate is not required to show that the substance was guarded each minute it is in one’s custody. The [S]tate need only show with reasonable certainty that the substance tested is the same as that seized, with no tampering or substitution.

Here, the testimony offered at trial confirmed that the swabs had been packaged properly, were properly identified and sealed upon arrival at the GBI, and were properly handled thereafter. The swabs were stored in locked law enforcement facilities, each witness who retrieved them testified as to their condition and labeling, and there was no evidence of tampering or contamination. In light of the record before us, we discern no error in admitting the mouth swabs.

(b) Rape kit evidence. With respect to the evidence from J. O.’s rape kit, the trial evidence included testimony from the nurse who gathered samples from J. O., sealed and labeled them, and gave them to a police officer. An officer transported the sealed container to an investigator, who testified that the container was sealed properly and that he personally delivered it to the GBI. The GBI shipped the samples to two labs, both of which documented the GBI’s required chain of custody procedures. There was again no evidence of tampering or contamination, and the trial court properly admitted this evidence.

2. Mickens contends that the trial court erred by failing to dismiss a juror or grant a mistrial after the juror wrote a note stating, “There is no question about she was raped, but the matter of who? What percentage of error the DNA could be? Is it 100% correct?” The note was passed to the bailiff late one afternoon just prior to stopping for the day, and the trial court notified counsel of the note the next day. Mickens moved for a mistrial, and the trial court denied the motion. Later in the trial, the State suggested that the trial court endeavor to identify the juror and that the juror could be replaced with an alternate if needed. The juror was identified, and defense counsel requested that he be asked if he had communicated his question to any of the other jurors. Defense counsel stated that he had no other question of the juror at that time. When asked by the court, the juror explained that he had not communicated with any other juror about his question, and he had not yet made up his mind about whether Mickens was guilty of committing the rape. The court reminded the juror not to communicate with the other jurors and sent him back to the jury room. Mickens then renewed his motion for a mistrial and requested that the juror be replaced. Both motions were denied.

There is a presumption of prejudice to the defendant when an irregularity in the conduct of a juror is shown[,] and the burden is on the prosecution to prove beyond a reasonable doubt that no harm has occurred. However, we have also recognized that some irregularities are inconsequential. The decision whether to remove a juror from a panel lies within the sound discretion of the trial court and will not be overturned absent an abuse of that discretion.

Here, the trial court’s questioning revealed that the juror had not spoken to any other jurors about his question to the court, and the juror explained that, consistent with his note, he had not decided whether Mickens was guilty of the rape. The trial court cautioned the juror not to speak to the other jurors about the case until deliberations began. Further, the State’s case was essentially focused on identity, which was the very issue that the juror stated he had not resolved. Under these facts, we conclude that the trial court did not abuse its discretion by keeping the juror or denying the motion for mistrial.

3. Mickens argues that the trial court improperly questioned the State’s DNA expert witness during the following colloquy: Mickens argues that this colloquy violated OCGA § 17-8-57, which provides that it is error for a trial judge “to express or intimate his opinion as to what has or has not been proved or as to the guilt of the accused.” But the trial court merely questioned the witness and did not express or intimate an opinion as to what had been proven or as to the import of the witness’s answer. “Atrial judge may propound questions to a witness to develop the truth of the case or to clarify testimony, and the extent of such an examination is a matter for the trial court’s discretion.” Because the trial court’s question did not improperly comment on the evidence, we discern no error.

Court: What degree of possibility of mistaken identity exists with DNA testing have you been able to determine, please ma’am?
Witness: No two people, with the exception of identical siblings, will have the exact same DNA. And in this case a frequency was developed by the next person that’s going to testify . . . that can tell us how often you should see this profile.
Court: Any other questions? ... I didn’t want to interfere, I was just — I had a curiosity question.

4. Mickens next argues that the trial court gave an improper Allen charge and failed to declare a mistrial when the jury sent the court the following question during its deliberation: “What’s the definition of a hung jury? How long deliberation before hung jury?” The trial court called the jury in and explained as follows:

Of course, the definition of a hung jury is self explanatory. How long do you deliberate before a jury is hung? You take into consideration the efforts, money spent, time[,] and effort the lawyers have put trying to get all these witnesses from wherever they come from and to the trial of the case and then give the jury a reasonable time. Up until this point a reasonable time is nowhere near. That’s the best answer I can give you.... Remember, you are judges of the — judges of the evidence presented and not an advocate for either party.

“The central inquiry in reviewing an Allen charge is whether the instruction is coercive so as to cause a juror to abandon an honest conviction for reasons other than those based upon the trial or the arguments of other jurors.” In this case, the challenged instruction was given at lunch time on the first full day of deliberations after adjourning at 5:00 p.m. the prior day following approximately 30 minutes of deliberation. The court’s response to the jury’s question did not suggest an outcome or its opinion as to what had been proven. Although trial judges should avoid references to the additional time and expense of retrial, the instruction in this case, taken as a whole, left the decision up to the jury and was not so coercive such that a reversal is required.

5. Mickens next contends that his trial counsel was ineffective for (a) failing to raise a hearsay objection to expert testimony based on reports prepared by others, (b) failing to raise a best evidence objection, (c) failing to object to juror’s questions of a witness, and (d) deficiently examining one of the State’s witnesses.

Under Strickland v. Washington, to succeed on an ineffective assistance claim, a criminal defendant must demonstrate both that his trial counsel’s performance was deficient and that there is a reasonable probability that the trial result would have been different if not for the deficient performance. “There is a strong presumption that the performance of trial counsel falls within the wide range of reasonable professional assistance. The reasonableness of the conduct is viewed at the time of trial and under the circumstances of the case.” If an appellant fails to meet his burden of proving either prong of the Strickland test, the reviewing court need not examine the other prong. In reviewing the trial court’s decision, “[w]e accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independéntly apply the legal principles to the facts.”

(a) Mickens argues that his trial counsel should have objected on hearsay grounds to testimony from a GBI witness who testified as to her review of the forensic work done by outside laboratories. The witness explained her review of analyses (i) for the presence of seminal fluid and spermatozoa and (ii) developing a DNA profile. She explained that based on her knowledge of the labs’ testing procedures, the tests were scientifically acceptable, and she had independently peer reviewed the data generated in the reports to reach her conclusions. Such expert testimony has been held to be admissible, so we discern no harm in trial counsel’s failure to object here.

(b) Mickens contends that his trial counsel should have objected to photographs of the testing kit under the “best evidence rule.” But “[t]he State is not required to produce at trial physical evidence about which witnesses have testified, [and t]he ‘best evidence rule’ applies only to writings.” Accordingly, any objection would have been merit-less, and “[cjounsel’s failure to make a meritless objection does not constitute deficient performance.”

(c) Mickens also questions his trial counsel’s failure to object to certain questions posed by jurors to witnesses. But when asked about this at the motion for new trial hearing, trial counsel responded that

[i]f I’m right, it may have started off with a juror saying that she could not hear... something like that during an answer. And I remember [the judge] then allowing her to ask directly about that. And you know, . . . she just started asking questions. And he stopped her. Because she was becoming lawyer-like in the questioning. ... I don’t remember the questions as being something that... was detrimental to our case. [Deciding not to object] would have been a trial strategy. . . . I’m not sure that I even thought it was something that. . . could have led to a mistrial.

The juror’s questions were essentially cumulative of prior testimony, and not wanting to object to a juror’s questions is a reasonable trial strategy in light of the trial court’s intervention and the risk that objecting would put counsel in a role adverse to the juror. “Informed strategic decisions do not constitute ineffective legal assistance,” so this ground fails to support Mickens’s claim.

(d) Mickens finally challenges the effectiveness of his trial counsel’s cross-examination of the detective who took his mouth swab and was responsible for much of the chain of custody evidence with respect to the swab. Mickens points out that his trial counsel was able to elicit inconsistent statements from the witness as to whether she personally initialed the sealed swabs at the time she collected them from Mickens. But equivocation would only help his challenge to the chain of custody, and as such, the challenged cross-examination fails to demonstrate that there is a reasonable probability that the trial result would have been different if it had been performed differently.

6. Finally, Mickens contends that the evidence was insufficient to support the conviction. Nevertheless, as noted above, the evidence showed that Mickens’s DNA matched that of J. O.’s attacker, and there was further testimony that his DNA profile would occur in his race group once out of 200 quadrillion people. Further, there was similar transaction evidence showing that Mickens had committed another rape of an exotic dancer late at night in his car on a public street. When reviewing the sufficiency of the evidence,

the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Once a defendant has been found guilty of the crime charged, the factfinder’s role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution.

Under this standard, the evidence sufficed to support Mickens’s conviction.

Judgment affirmed.

Andrews and Boggs, JJ., concur.

Decided November 16, 2012.

Cerille B. Nassau, for appellant.

Tracy Graham-Lawson, District Attorney, Michael D. Thurston, Assistant District Attorney, for appellee.

       OCGA § 16-5-21 (a) (1).

       OCGA § 16-6-1 (a) (1).

       See Short v. State, 234 Ga. App. 633, 634 (1) (507 SE2d 514) (1998).

       (Citations and punctuation omitted.) Hurst v. State, 285 Ga. 294, 296 (2) (676 SE2d 165) (2009).

       (Citation and punctuation omitted.) Smith v. State, 291 Ga. App. 353, 355 (3) (662 SE2d 176) (2008).

       See id. See also Hines v. State, 307 Ga. App. 807, 811 (2) (706 SE2d 156) (2011) (real issue is not fungibility of DNA evidence, but contamination or mishandling).

       (Punctuation omitted.) Tolbert v. State, 300 Ga. App. 51, 53 (2) (684 SE2d 120) (2009).

       See Holcomb v. State, 268 Ga. 100, 103 (2) (485 SE2d 192) (1997) (“in order for juror misconduct to upset a jury verdict, it must have been so prejudicial that the verdict is deemed inherently lacking in due process”) (punctuation omitted).

       The court asked this question before the juror passed the aforementioned note to the bailiff.

       Compare State v. Anderson, 287 Ga. 159, 161 (1) (695 SE2d 26) (2010) (trial court’s statement “I just wanted to make sure” following the court’s questioning of the witness as to venue constituted an expression of opinion that venue had in fact been proven).

       (Citation omitted.) Finley v. State, 286 Ga. 47, 51 (9) (a) (685 SE2d 258) (2009).

        Allen v. United States, 164 U. S. 492 (17 SC 154, 41 LE 528) (1896).

       (Punctuation omitted.) Scott v. State, 290 Ga. 883, 888 (6) (725 SE2d 305) (2012).

       See Taylor v. Murray, 102 Ga.App. 145, 148 (2) (115 SE2d 776) (1960).

       See Blige v. State, 205 Ga. App. 133, 133-134 (1) (421 SE2d 547) (1992). Compare Riggins v. State, 226 Ga. 381, 384 (3) (174 SE2d 908) (1970) (trial judge improperly instructed the jury as follows: “[I]t occurs to me that somebody is being a little unreasonable, stubborn. I don’t see how any jurors — as intelligent as any jurors we could get — and it’s a very expensive operation to hold these trials for a week at a time and the jury ought to be able to reach a conclusion based on the evidence and by a preponderance of the evidence. I mean — on the evidence from the standpoint of a reasonable doubt.”) (punctuation omitted).

       466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984).

       See id. at 687-688, 690-694 (III) (A)-(B).

       (Citation and punctuation omitted.) Williams v. State, 277 Ga. 853, 857 (6) (596 SE2d 597) (2004).

       See Strickland, supra, 466 U. S. at 697 (IV); Fuller v. State, 277 Ga. 505, 507 (3) (591 SE2d 782) (2004).

       (Punctuation omitted.) Robinson v. State, 277 Ga. 75, 76 (586 SE2d 313) (2003).

       Mickens made no argument on motion for new trial or on appeal based on a Confrontation Clause violation, which is distinct from a hearsay challenge. See Sanders v. State, 290 Ga. 445, 448 (3) (721 SE2d 834) (2012); Higginbotham v. State, 287 Ga. 187, 189 (3) (695 SE2d 210) (2010). Accordingly, any potential Confrontation Clause violation is waived, and we need not address that basis for an ineffective assistance claim. See id.

       See Rector v. State, 285 Ga. 714, 715 (4) (681 SE2d 157) (2009); Watkins v. State, 285 Ga. 355, 358 (2) (676 SE2d 196) (2009). Compare Neal v. Augusta-Richmond County Personnel Bd., 304 Ga. App. 115, 118 (1) (695 SE2d 318) (2010) (finding testimony was hearsay because it was a mere conduit for results prepared by others; collecting cases in which expert peer review testimony was admissible).

       See OCGA§ 24-5-4 (a).

       (Citation omitted.) Dixon v. State, 179 Ga.App. 278, 279 (2) (346 SE2d 93) (1986). Accord Kraus v. State, 169 Ga.App. 54, 56 (2) (a) (311 SE2d 493) (1983).

        Durrence v. State, 287 Ga. 213, 218 (2) (a) (695 SE2d 227) (2010).

        Phillips v. State, 277 Ga. 161, 163-164 (b) (587 SE2d 45) (2003).

       (Citation omitted; emphasis in original.) Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979).


text:
    A12A1385.
    KENSINGTON PLACE OWNERS ASSOCIATION, INC. et al. v. THOMAS et al.
    (734 SE2d 445)
   PHIPPS, Presiding Judge.

Tenita Thomas, individually and as administrator of the estate of her minor son, Christopher Baxter, filed a wrongful death action against Kensington Place Owners Association, Inc., and Community Association Management, LLC (collectively “Kensington Place”) alleging that Kensington Place was liable for fatal injuries Baxter sustained when a dead tree located on property owned by Kensington Place Owners Association fell on him. Kensington Place moved for summary judgment, which the trial court denied. We granted Kensington Place’s application for interlocutory appeal from that ruling. Because the evidence reveals that Baxter assumed the risk of his injuries as a matter of law, we reverse the judgment and remand the case with direction.

Summary judgment is proper if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. In our de novo review of the grant or denial of a motion for summary judgment, we must view the evidence, and all reasonable inferences drawn therefrom, in the light most favorable to the nonmovant.

Viewed in a light favorable to Tenita Thomas and Baxter’s estate (collectively “Thomas”), the facts show the following. Baxter, who was 13 years old, lived in the Kensington Place subdivision, as did his friends, 12-year-old Matthew Mallory, 13-year-old Dakota Moreland, and Carlos Lamar. On April 10, 2008, either Baxter or Moreland decided that it would be “cool to push this really old tree over” in the woods of the subdivision. Baxter, Mallory, Moreland, and Lamar entered a wooded, common area located beyond Mallory’s family’s rear property line, where there was a tree which appeared to be dead; Mallory had concluded that the tree was dead because, “[i]t just looked really old and — and dead. And all the other trees around it were green and it was like just old.”

Baxter, Moreland and Lamar alternated between pushing the tree and watching the others push it. Mallory recorded the incident using the video camera on his cell phone. Some younger children gathered to watch. Baxter, Mallory and Moreland “tried to get [the younger children] out of there.” Moreland deposed that the younger children were told to move back for “[s]afety reasons,” because the tree could fall and he did not want them to get hurt.

After the children had pushed the tree for about four minutes, the tree started to move or rock. Everybody either ran or moved “to the side.” When asked if he knew what Baxter said at that point, Mallory replied, “I guess, you know, that... trees can fall down” when pushed.

Moreland resumed pushing the tree, and Mallory stood a few feet away from the tree. Baxter took the phone from Mallory, pointed the camera at him, and said something to the effect of, “say hello, this might be your last second alive.” After the children pushed the tree for about ten minutes, it began to make cracking noises, and someone announced that the tree was cracking. Everybody moved away from the tree. Seconds later, Baxter and Mallory walked back toward the tree. Moreland and Lamar pushed the tree again, then Baxter, Moreland and Lamar all pushed the tree.

Mallory instructed his younger brother to move out of the way “because I didn’t want him to get hurt just in case” the tree fell. Moreland deposed that the children continued to push the tree; when asked what he thought would happen if the tree was pushed long enough, Moreland replied that he thought it might fall.

While Moreland and Lamar were pushing the tree, about 18 minutes after the children had started pushing it, Mallory heard the tree crack again. Mallory was about eight to ten feet away from the tree, and Baxter was about the same distance away from the tree. Moreland yelled for the children to run. As the tree started falling, the children either jumped to one side of the tree or ran. The tree struck and fatally injured Baxter.

Thomas sued the homeowners’ association and the company that maintained the subdivision’s common grounds. Thomas alleged, inter alia, that Kensington Place knew or should have known that dead trees on the property presented a danger to people lawfully on the property, and that it had failed to properly inspect the property or to take action to protect people lawfully thereon. Kensington Place sought summary judgment on a number of bases, including assumption of the risk. The trial court denied the motion without explanation.

The affirmative defense of assumption of the risk bars a plaintiff from recovering on a negligence claim if it is established that he without coercion of circumstances, chooses a course of action with full knowledge of its danger and while exercising a free choice as to whether to engage in the act or not.

In order to establish the defense of assumption of the risk, Kensington Place was required to show that Baxter “(1) had actual knowledge of the danger; (2) understood and appreciated the risks associated with such danger; and (3) voluntarily exposed himself to those risks.”

With respect to children between the ages of seven and fourteen, such as Baxter,

there is no legal bar to applying [the doctrine of] assumption of the risk, as a matter of law . . . when the evidence shows that the danger was obvious, that the child knew of the danger and was able to appreciate the risks associated with it, and the child voluntarily chose to run the risk.

“In assessing whether [Baxter] had the requisite knowledge of the danger and appreciation of the risks, we apply a subjective standard and look to what he knew, understood, and appreciated.” “Although assumption of the risk often presents a question for the jury, the issue should be decided by the court as a matter of law where the evidence shows clearly and palpably that the jury could reasonably draw but one conclusion.”

In this case, the evidence shows that Baxter knew, understood and appreciated the specific risks involved in the children’s undertaking. For example, Baxter’s comments after the tree began cracking and moving — that a pushed tree could fall and that it might be Mallory’s “last second alive” — show that he knew, understood and appreciated the fact that the tree could fall and that a falling tree could injure (or kill) a person. Moreover, Baxter and the older children tried to get the younger children to move away and, with Baxter present, the older children told the younger ones to move away from the tree minutes before it fell.

To support her position that genuine issues of material fact remain for resolution by a jury, Thomas cites in her brief evidence that Baxter lacked experience with falling trees and thus did not understand the specific dangers presented; and she cites evidence that children of Baxter’s age are incapable of evaluating and consenting to risks (due to the lack of frontal lobe development of the brain) and are more susceptible to peer influences than are adults.

This evidence, however, does not negate an assumption of the risk defense. In Georgia, regarding children between the ages of seven and fourteen in assumption of risk cases, issues of due care and capacity hinge on the circumstances of the case and the capacity of the particular child. Thus, as stated above, we look to what Baxter knew, understood, and appreciated, and whether the danger was an obvious one. The expert evidence Thomas cites concerns the brain activity of adolescents generally, based on evidence that the adolescent brain is not fully developed; notably, the expert also testified that most adolescents engage in risky behavior even when they know the risks. There was evidence that Baxter’s maturity level and decision-making ability were about one year below his chronological age of 13 years 11 months. As discussed above, the evidence showed that Baxter knew, understood and appreciated the risks of pushing over the dead tree.

Thomas’s assertion that a child of Baxter’s age is incapable of assuming the risk of injury is contrary to Georgia law. “Although the law does not expect children always to appreciate dangers to the same extent as adults, the Georgia courts have recognized that children as old as [Baxter] are quite capable of appreciating certain obvious dangers”; as one of Thomas’s experts commented, the danger presented by a falling tree is one her five- or six-year-old would appreciate. There is no evidence that 13-year-old Baxter was not of sufficient intelligence to appreciate the obvious danger presented in this case. Indeed, evidence that he tried to get the younger children to move back, that he was present when the older children told the younger children to move back, that he moved away from the tree when it first started to move or rock, that, like the other children, he moved away from the tree as it began to fall, and that he commented during the incident about falling trees and injury, show that he knew, understood and appreciated the risk of injury from a falling tree.

As we have previously recognized,

[i]t may be that some children, while realizing the danger, will disregard it out of a spirit of bravado, or because ... of their immature recklessness, but a defendant is not to be visited with responsibility for accidents due to this trait of children of the more venturesome type.

Under the circumstances presented here, Baxter is deemed to have assumed the risk as a matter of law.

To further support her position that the assumption of risk doctrine is inapplicable, Thomas points to Mallory’s and Moreland’s testimony that the children were not taking what they were doing seriously, they doubted that the tree would fall, and they did not think that they would get hurt. But, at best, such testimony merely reflects the children’s assessment that injury was unlikely, it was not evidence of any denial by Baxter of the possibility that the tree might fall and that he might be injured.

In view of the evidence that Baxter had actual knowledge of the specific danger presented by pushing over a dead tree, and that he understood and appreciated the risks associated with such danger, yet voluntarily exposed himself to those risks, and the absence of any evidence to the contrary, the trial court erred by denying Kensington Place’s motion for summary judgment.

Decided November 16, 2012

Lloyd B. Hedrick, Jr., for appellants.

James A. Neuberger, for appellees.

Accordingly, we reverse the judgment and remand the case for the trial court to enter summary judgment in favor of the defendants.

Because the doctrine of assumption of the risk bars this action, we do not reach Kensington Place’s remaining arguments.

Judgment reversed and case remanded with direction.

Ellington, C. J., and Dillard, J., concur.

        McCrary v. Middle Ga. Mgmt. Svcs., 315 Ga. App. 247, 248 (726 SE2d 740) (2012) (punctuation and footnotes omitted).

       Kensington Place does not dispute that the tree was dead.

       Thomas does not dispute that Baxter made this comment, but asserts that Baxter was merely joking when he made it.

        Sones v. Real Estate Dev. Group, 270 Ga. App. 507, 508 (1) (606 SE2d 687) (2004).

        O’Neal v. Sikes, 271 Ga.App. 391, 392 (609 SE2d 734) (2005) (citation and punctuation omitted).

       Id. (citation and punctuation omitted).

        Fowler v. Alpharetta Family Skate Center, 268 Ga. App. 329, 332 (3) (601 SE2d 818) (2004).

        Kane v. Landscape Structures, 309 Ga.App. 14, 17 (709 SE2d 876) (2011) (citation and punctuation omitted); O’Neal, supra; Fowler, supra.

        Stewart v. Harvard,, 239 Ga.App. 388, 397 (4) (b) (520 SE2d 752) (1999).

       See Kane, supra; Fowler, supra.

       See, e.g., O’Neal, supra; Fowler, supra.

        Kane, supra at 17 (citations omitted).

       See Fowler, supra at 332 (3).

        Kane, supra at 18 (citation and punctuation omitted); Goodman v. City of Smyrna, 230 Ga. App. 630, 633 (497 SE2d 372) (1998).

       See Abee v. Stone Mountain Mem. Assn., 252 Ga. 465-466 (314 SE2d 444) (1984).

       See generally Kane, supra at 19.

       See Abee, supra; O’Neal, supra; Goodman, supra.

       See Stewart, supra.