text:
    A14A0390.
    ARP v. THE STATE.
    (759 SE2d 57)
   Branch, Judge.

In an attempt to arrest Christopher Watson pursuant to an arrest warrant, law enforcement officers entered the curtilage of Kenneth Ray Arp’s home by approaching Arp’s back door where, based on the officers’ observations of events inside the house, they entered without consent and discovered marijuana. Watson had no relation to Arp, was not in Arp’s home, and did not live there. After a stipulated bench trial, Arp was convicted of marijuana possession and making terroristic threats. On appeal, Arp contends the trial court erred by denying his motion to suppress the evidence used against him. He contends that neither the arrest warrant nor the surrounding circumstances authorized the officers to enter the curtilage of his home and that, therefore, the ensuing search was illegal. We agree and reverse.

Atrial judge’s findings of fact on a motion to suppress should not be disturbed if there is any evidence to support them; determinations of fact and credibility must be accepted unless clearly erroneous; and the evidence must be construed most favorably to the upholding of the trial court’s findings and judgment. Tate v. State, 264 Ga. 53, 54 (1) (440 SE2d 646) (1994); Jackson v. State, 258 Ga. App. 806, 807-808 (2) (575 SE2d 713) (2002). Where the trial court denies the motion to suppress without explanation or findings of fact, we construe the facts in favor of the trial court’s decision. Corey v. State, 320 Ga. App. 350, 351 (739 SE2d 790) (2013).

The record of the hearing on the motion to suppress shows that on February 5,2013, Sergeant Dan Blythe of the Henry County Police Department and other officers from Flint Circuit and Clayton County were attempting to arrest Watson pursuant to an arrest warrant dated January 10, 2013 for misdemeanor obstruction of an officer, which listed Watson’s address as 137 Chestnut Lane in McDonough. Blythe was familiar with Watson and his family, and Blythe and other officers were aware that Watson had a reputation of running from and fighting with police, stealing, and breaking into houses. In fact, Watson had fled some of the same officers earlier that day.

Blythe and the other officers went to the Watson home at the address shown on the warrant and spoke with Watson’s mother, but Watson was not there. Watson’s mother told the officers that Watson had been picked up that day by a woman named Wendy Wilson in a small red car. Blythe then used a police computer to determine that Wilson had a “previous address” or “last known location” of 487 Lakeshore Drive. Both Blythe and other officers knew that the house located at 487 Lakeshore Drive was not Watson’s residence. The officers did not have a search warrant for the Lakeshore Drive address, and they did not perform a computer search to determine if Wilson still lived there or who was listed as a resident.

Blythe and the other officers drove to 487 Lakeshore Drive, arriving in the dark, and they saw a red Chrysler Sebring parked either in the driveway or on the side of the property, facing out, such that the license tag could only be seen from the back. While other officers approached the front door, Blythe, Sergeant Romano, and Sergeant Fowler ran past the Chrysler to the hack of the property without stopping to check the license tag of the red car as they passed it. Blythe testified that he saw there was no fence in the back, “so we found the back door and kind of got in the area of the back door while the other agents knocked on the front door”; Romano was positioned “just shy of the back door.” The blinds were partially up on the window located beside the back door. Blythe also testified that before he got to the door, he saw movement inside of the house from a point near the property line and that he and Fowler then moved up to the back door and window to see what was happening and for officer safety, to make sure that the person was not grabbing a weapon. From his position at the back door, Blythe looked through the window and saw a woman speak with another person in a hallway at the door to the bedroom. Blythe then saw the woman run into the bedroom where she grabbed something, then run to the bathroom, run back to the bedroom to grab a closed, clear plastic container, and come back to the bathroom, passing so close to Blythe that he could see what appeared to be marijuana in the container.

Blythe told Fowler and Romano what he had seen, and the officers therefore decided to enter the back door of the house “for the sole purpose of preventing [the woman] from destroying what we believed to be ... marijuana.” The officers yelled “police,” opened the unlocked back door, and seized the marijuana in the bathroom. Based on the seizure and Arp’s statements to Romano after Romano entered the home, Arp was charged with possession of more than an ounce of marijuana and with making terroristic threats. Neither Watson, the subject of the arrest warrant, nor Wilson was found in the Arps’ home.

Arp testified that his wife had purchased the home in foreclosure the previous June or July and that Arp owned the Chrysler. Arp testified that the Chrysler was parked in his front yard, not in the driveway. He testified that he did not know Watson or Wilson and that when officers arrived at his front door that night, he opened the door but did not consent to the officers entering the home.

Arp moved to suppress all the evidence and alleged contraband seized in his home including any fruit of the illegal search and seizure. The trial court denied Arp’s motion without explanation or findings of fact. In accordance with a stipulation of the parties, the court adopted the testimony from the hearing on the motion to suppress as the trial evidence and, based on that and other stipulated evidence, the court found Arp guilty of possession of marijuana and making terroristic threats. Arp appeals the ruling on the motion to suppress.

1. The Fourth Amendment protects against “unreasonable searches and seizuresf.]” U. S. Const. Amend. IV. This protection has been interpreted to mean that even if officers have probable cause, absent exigent circumstances or proper consent, warrantless searches and seizures within a home by officers in pursuit of their traditional law enforcement duties are presumptively unreasonable. See, e.g., Kentucky v. King,_U. S._(II) (A) (131 SCt 1849, 179 LE2d 865) (2011); Payton v. New York, 445 U. S. 573, 589 (II) (100 SCt 1371, 63 LE2d 639) (1980). The United States Supreme Court has further clarified that an arrest warrant is an insufficient basis, standing alone, to search a third party’s home:

[Ejven when armed with an arrest warrant, police must have either a search warrant, exigent circumstances or consent to lawfully enter a third person’s home to arrest someone who does not reside there. Steagald v. United States, 451 U. S. 204, 212-215 [(III)] (101 SC 1642, 68 LE2d 38) (1981); King v. State, 217 Ga. App. 889, 891 (459 SE2d 605) (1995).

Brown v. State, 240 Ga. App. 321, 322 (1) (523 SE2d 333) (1999). In Steagald, the Supreme Court held that even if officers have a reasonable belief that the subject of the arrest warrant is in the third party’s home, the officers may not enter that home without a search warrant, exigent circumstances or consent. Steagald, 451 U. S. at 214 (III). The protections afforded by the Fourth Amendment extend to the home and its curtilage. Oliver v. United States, 466 U. S. 170, 180 (III) (A) (104 SCt 1735, 80 LE2d 214) (1984); see also United States v. Dunn, 480 U. S. 294, 300 (II) (107 SCt 1134, 94 LE2d 326) (1987); Kirsche v. State, 271 Ga. App. 729, 731 (611 SE2d 64) (2005) (even if officers have probable cause to investigate a crime, without a warrant, exigent circumstances, or proper consent, they may not enter a home or its curtilage). Finally, the State has the burden of proving that a search or seizure was lawful. OCGA § 17-5-30 (b).

Arp does not contest that if the officers were properly located at the back door, they had authority to look in the window and, upon observing what appeared to be contraband and an attempt to dispose of it, authority to enter the home to prevent the destruction of evidence and to seize it. See King v. State, 289 Ga. App. 461, 463-464 (2) (657 SE2d 570) (2008), and cases cited therein. Rather, he contends that the officers were not authorized to enter his back yard or the back door area in the first place. We agree.

First, the back yard and the back door area of the Arps’ home fall within the general definition of the curtilage of the home. Curtilage has been described as “the area immediately surrounding a dwelling house,” and the extent of the curtilage “is determined by factors that bear upon whether an individual reasonably may expect that the area in question should he treated as the home itself.” Dunn, 480 U. S. at 300 (II) (citation omitted). The Supreme Court of Georgia has defined curtilage as “the yards and grounds of a particular address, its gardens, barns, and buildings.” Espinoza v. State, 265 Ga. 171, 173 (2) (454 SE2d 765) (1995) (citation and punctuation omitted). “It is the general rule that a warrant is required to search the curtilage, and the yard immediately surrounding one’s dwelling is well within the curtilage.” (Citations omitted.) Phillips v. State, 167 Ga. App. 260, 261 (1) (a) (305 SE2d 918) (1983). See, e.g., Rivers v. State, 287 Ga. App. 632, 634 (1) (b) (653 SE2d 78) (2007) (curtilage included hedge area adjacent to side of house even if the back yard was exposed to an alley and not enclosed by a fence); Brooks v. State, 237 Ga. App. 546, 548 (2) (515 SE2d 851) (1999) (truck parked outside back door of mobile home was within curtilage of premises).

Second, the State did not carry its burden of showing an exception to Arp’s Fourth Amendment right to protection of the back yard/door curtilage of his home. A photograph of the back of the house shows that neither the door nor the window is visible from the front of the house and that they could only have been seen from the back yard. And the State did not present any other evidence to show that the back door and window were visible or in plain view from the street or from anywhere the officers were authorized to be upon arriving at the home. See Galbreath v. State, 213 Ga. App. 80, 82 (2) (443 SE2d 664) (1994) (“objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced in evidence”) (citation and punctuation omitted). Nor is there evidence that Arp and his wife treated the back door as a public entrance or that officers were unable to approach the front door or received no response at the front door, any of which may have authorized the officers to proceed to the back yard and door. See State v. Zackery, 193 Ga. App. 319 (387 SE2d 606) (1989); State v. Lyons, 167 Ga. App. 747, 748 (307 SE2d 285) (1983).

Thus, the State did not carry its burden of showing that the officers were authorized to proceed to the back door and window area of the Arps’ home; the officers therefore entered the protected curtilage of the Arps’ home before they could see the window through which they noticed activity that aroused a concern for officer safety. That concern, therefore, cannot be used to justify the three officers’ entry into the back yard in the first place. See generally Kirsche, 271 Ga. App. at 733 (police may not make protective sweep of house or curtilage without a reasonable and articulable suspicion that area “may be harboring someone who poses a danger to them”) (citation omitted). Compare Alvarez v. State, 312 Ga. App. 552, 557 (2) (718 SE2d 884) (2011) (officer’s entry into back yard was justified by exigent circumstances of officer safety because he had reason to believe that someone at residence was armed with a gun).

2. Given that Arp did not consent to a search and that the officers did not have a search warrant to enter the curtilage of the home, the State’s position, therefore, turns on whether the State carried its burden to show that the officers’ entry into Arp’s back yard and the back door area was justified by exigent circumstances. Leon-Velazquez v. State, 269 Ga. App. 760, 762 (1) (605 SE2d 400) (2004) (“Since the officer had neither consent nor a search warrant, he was required to have exigent circumstances [to enter a third party’s home in an attempt to execute a search warrant].”) (footnote omitted).

Whether exigent circumstances existed is a question of fact, and we review police actions from the standpoint of a hypothetical reasonable officer and must measure those actions from the foresight of an officer acting in a quickly developing situation and not from the hindsight of which judges have benefit.

Lawrence v. State, 298 Ga. App. 94, 97-98 (679 SE2d 94) (2009) (punctuation and footnote omitted).

At the time that Blythe, Fowler and Romano entered the curtilage of Arp’s home, the following facts existed: the officers had a warrant for Watson’s arrest; the officers knew Watson to be a flight risk; one or more officers in the larger group of officers had witnessed Watson flee earlier that day; Watson’s mother said Watson was with Wilson in a red car; Wilson’s last known address in the police information system was 487 Lakeshore Drive; the Lakeshore Drive home was not where Watson lived; the officers discovered a red Chrysler parked at that address that evening; and Blythe and the other officers went to the back of the property because “Watson is personally known to me to run.” What Blythe and the officers who went to the back door did not know is whether anyone answered the front door, whether the house or the Chrysler actually belonged to Wilson, or whether either Wilson or Watson was present at the Arps’ home.

In general an exigent circumstance “is the officer’s reasonable belief that such action is a necessary response on his part to an emergency situation.” Leon-Velazquez, 269 Ga. App. at 762 (1) (punctuation and footnote omitted).

Exigent circumstances include where an officer is in hot pursuit of a fleeing felon, where an officer reasonably fears the imminent destruction of evidence if entry into the residence is not immediately effected, and where an officer reasonably perceives that a suspect within the dwelling poses a risk of danger to the police or others.

Minor v. State, 298 Ga.App. 391, 396-397 (1) (b) (680 SE2d 459) (2009) (citation, punctuation and footnote omitted).

Even considering all of the above facts combined, we find no exigent circumstances to enter the Arps’ home or its curtilage. In Steagald, the officers sought to arrest a federal fugitive and they had a reasonable belief that the fugitive might be a guest in the third-party’s home. Steagald, 451 U. S. at 213 (III). Yet the high court held that “forcible entry into a third party’s house was permissible only when the person to be arrested was pursued to the house,” i.e., only when the officers were in “hot pursuit,” which they were not in Steagald. Id. at 218 (IV) (A). The court held that the inconvenience arising from the fact that people are “inherently mobile, and thus officers seeking to effect an arrest may be forced to return to the magistrate several times as the subject of the arrest warrant moves from place to place,” is “simply not that significant.” Id. at 221-223 (IV) (B).

Here, there is no evidence that the officers were in hot pursuit of Watson. The officers simply went to Wilson’s “last known address” and saw a red Chrysler; they had not previously seen the car themselves and were simply following up on Watson’s mother’s statement about Watson leaving his own home. And they knew that the Lakeshore Drive home was not Watson’s residence. Compare Carter v. State, 308 Ga. App. 686, 688 (1) (708 SE2d 595) (2011) (arrest warrant for defendant, a flight risk, executed at his place of residence and where he was believed to be, gave officers authority to enter back yard; distinguishing Steagald and other cases where there was “no evidence that the subject of the arrest warrant resided in the third party’s home”). Although Watson was a flight risk, nothing stopped the officers from setting up a perimeter and attempting to obtain a warrant to search the Arps’ home. Because the officers were not authorized to enter the curtilage of the Arps’ home, they were not in a place that they were authorized to be when they saw movement inside of the house or saw Arp’s wife carrying a plastic container of what appeared to be marijuana. The trial court therefore erred by denying Arp’s motion to suppress. Because all of the evidence against Arp presented by the State was discovered as a result of the officer’s illegal search, there was insufficient evidence for a rational trier of fact to find Arp guilty on either charge. Hamlett v. State, 323 Ga. App. 221, 234 (2) (753 SE2d 118) (2013). Therefore his convictions on both counts must be reversed.

Decided May 21, 2014.

Jared S. Westbroek, Jeffery W. Cofer, for appellant.

James L. Wright III, District Attorney, David E. Slemons, Assistant District Attorney, for appellee.

Judgment reversed.

Barnes, P. J., and Boggs, J., concur.


source: Caselaw Access Project

author: MCMILLIAN, Judge.

license: Public Domain

text:
    A14A0557.
    FLADING v. THE STATE.
    (759 SE2d 67)
   MCMILLIAN, Judge.

John Flading was convicted by a jury of one count of driving under the influence of alcohol (less safe) and one count of failure to maintain lane. Flading appeals, arguing that the trial court erred in admitting evidence of a stipulation reached at an administrative civil hearing. Finding no error, we affirm.

Viewed in the light most favorable to the jury’s guilty verdict, the record reflects that on July 11, 2009, Officer Joshua Ott of the Roswell police department observed a black Lincoln Mark LT turn right onto Canton Street. He noted that the vehicle crossed halfway across the double yellow line before drifting back to the right and crossing the white line. While following the vehicle, Officer Ott observed several other instances of slow weaving before he activated his emergency lights and made a traffic stop. When Officer Ott approached the vehicle to speak with Flading, the driver of the vehicle, he immediately detected a “moderate” odor of alcohol emanating from inside the vehicle. He also observed that Flading’s eyes were “glassy and droopy.” Flading admitted that he had consumed two or three beers that evening.

Officer Ott then asked Flading to step to the rear of his vehicle to perform a field sobriety evaluation. At that time, the officer was able to confirm that the odor of alcohol was coming directly from Flading. Officer Ott, who testified at trial regarding his extensive DUI training, first performed the horizontal gaze nystagmus evaluation, and Flading exhibited four out of six clues, indicating that he was driving while under the influence of alcohol and was less safe in doing so. Because Flading told him that he had broken his ribs two weeks ago and he could not say whether it would affect his ability to walk a straight line or stand on one foot, Officer Ott elected to forego those additional field sobriety tests. He then asked Flading to recite the alphabet from the letter E to R. Flading started at E, but continued all the way to T before pausing for several seconds and then stating “R.” And finally, the officer performed a preliminary breath test which registered positive for the presence of alcohol.

Based upon his driving, physical manifestations, and the field sobriety evaluations, Officer Ott placed Flading under arrest for driving under the influence of alcohol. He then read to Flading from his copy of the Georgia implied consent notice card, which was admitted into evidence. Flading refused to consent to a state-administered chemical test of his breath. At trial, the State also admitted into evidence a copy of the officer’s video that was recorded from the time he first observed Flading’s vehicle until after he was arrested, which was played for the jury. The State also introduced, over objection, a document entitled “Final Decision” completed at an administrative license suspension hearing (“ALS hearing”). Officer Ott explained that he was present at the ALS hearing and spoke with Sarah Hoffman, an attorney who represented Flading at that time, and agreed that, in exchange for pleading guilty to the DUI charge, Flading would be permitted to keep his license. The Final Decision, which was signed by Officer Ott and Hoffman, was read to the jury in part, including the following:

This withdrawal is based on an agreement between the arresting officer and [Flading]. In exchange for the arresting officer’s withdrawal of this sworn report, [Flading] shall enter a plea of guilty to the underlying charge of violating 0. C.G.A. § 40-6-391. The parties agree that a copy of this final decision may be admitted into any subsequent legal proceeding involving the charge as an admission by [Flading] of [Flading’s] guilt or nolo contendere in exchange for the rescission of the administrative license suspension. The parties further agree that if [Flading] fails to enter the required plea, this order may be voided and the sworn report refiled with the [Department of Driver Services].

The evidence presented at trial was sufficient to authorize a rational trier of fact to find Flading guilty beyond a reasonable doubt of the crimes for which he was convicted. See Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).

1. In his sole enumeration of error, Flading contends that the trial court erred by allowing the State to introduce the Final Decision from the ALS hearing into evidence at his criminal jury trial. Immediately prior to trial on February 5, 2013, Flading’s trial counsel moved in limine to exclude the Final Decision. In explaining the nature of the stipulation to the trial court, Flading’s counsel confirmed that Hoffman was an attorney Flading had hired to represent him at the ALS hearing and that she signed the Final Decision. Nonetheless, he moved to exclude the Final Decision on various grounds, most of which he has abandoned on appeal. The trial court denied the motion, noting “[t]hat’s cross-examination material.”

On appeal from a trial court’s ruling on a motion to suppress or motion in limine, we may consider all relevant and admissible evidence of record introduced at the motion hearing or during trial. While a trial court’s findings as to disputed facts will be reviewed to determine whether the ruling was clearly erroneous, where the evidence is uncontroverted and no question regarding the credibility of witnesses is presented, the trial court’s application of the law to undisputed facts is subject to de novo appellate review. Furthermore, even if the trial court’s asserted ground for denying a motion to suppress or motion in limine is erroneous, we will affirm the ruling if it is right for any reason.

(Citations and punctuation omitted.) Walker v. State, 314 Ga. App. 67, 67 (1) (722 SE2d 887) (2012).

Flading first argues that Georgia courts have a long-standing prohibition against introducing evidence from an ALS hearing, citing several cases in support: Wyatt v. State, 179 Ga. App. 327 (346 SE2d 387) (1986); Sheffield v. State, 184 Ga. App. 141 (361 SE2d 28) (1987) (physical precedent only); Hunter v. State, 191 Ga. App. 769 (382 SE2d 679) (1989); and Swain v. State, 251 Ga. App. 110 (552 SE2d 880) (2001). However, we are not persuaded that the cases on which Flading relies are relevant to our inquiry here.

Most recently, in Swain, this Court noted that in Wyatt, Sheffield, and Hunter, the ALS hearings did not result in a decision on the merits. Swain, 251 Ga. App. at 113 (1). Thus, Swain was the first instance in which this Court was squarely presented with the question of “whether preclusive effect should be given in a criminal DUI prosecution to administrative factfinding from a previous driver’s license suspension hearing.” Id. at 113. We held that there was no preclusive effect in that case and explained:

The purpose of the driver’s license suspension hearing is to provide a quick, informal procedure to remove dangerous drivers from Georgia’s roadways and thereby protect public safety. Accordingly, the driver must request the hearing within ten days of receiving notice of the right to a hearing, and the Department of Public Safety must hold the hearing within thirty days of the request. The scope of the hearing is confined by statute to six discrete issues, and the hearing officer must issue a decision within five days of the hearing. If the hearing officer sustains the suspension, the driver has the right to seek judicial review of the decision, but there is no procedure for the State to appeal an adverse ruling. Within the framework of this abbreviated procedure, the State has only a limited opportunity to litigate the issues, some of which may prove pivotal in a subsequent DUI trial.

(Citations and punctuation omitted.) Id. at 113-114 (“To hold otherwise would frustrate the purpose of the summary suspension hearing.”). See generally OCGA § 40-5-67.1 (g) (setting out procedures for license suspension hearing). Thus, while Flading is correct that this Court has thus far declined to allow the admission of the final decision of an administrative hearing officer after a contested hearing or if the hearing is dismissed for some other reason, he has pointed to no cases involving the issue of whether a stipulation reached at an ALS hearing can be introduced in a criminal trial.

We turn, therefore, to our general law regarding a party’s admissions and stipulations in criminal proceedings. “Admissions by agents or attorneys are not admissible in criminal cases in the sense in which they are admissible in civil cases. They should not be treated as evidence against the accused unless shown to have been authorized by him.” (Citations and punctuation omitted.) Dryer v. State, 205 Ga. App. 671, 672 (1), n. 1 (423 SE2d 297) (1992).

Generally, a statement by defense counsel made in the presence of the defendant relating to the defendant’s conduct is considered a statement by the defendant himself if the defendant does not repudiate counsel’s authority to make the statement. The general rule as to stipulations is that once made in the course of judicial proceedings an estoppel results unless the complaining party can show fraud or mistake. Such an express stipulation should generally be made in writing or in open court.

(Citations and punctuation omitted.) Id. at 672-673 (1) (defendant acquiesced to an oral stipulation of facts made in open court for the purpose of dispensing with proof of the agreed facts, amounting to a conclusively binding admission in judicio).

Flading did not claim fraud or mistake in reaching the stipulation at the ALS hearing. Nor did he ever repudiate counsel’s authority to make the stipulation. Although on appeal Flading vaguely asserts that “he did not enter into the purported agreement,” he did not argue such to the trial court.* *** To the contrary, at the hearing on his motion in limine, Flading’s trial counsel confirmed that Flading hired Hoffman to represent him at the ALS hearing and that she signed the document. At no point did Flading argue that he did not give Hoffman permission to enter into the stipulation. When presenting its argument in response, the State specifically invited Flading’s counsel to correct the record if Hoffman was not actually representing him; Flading did not do so. Accordingly, Flading, having accepted the benefit of the stipulation in the form of the reinstatement of his license and having shown no fraud or mistake, acquiesced to his counsel’s stipulation to plead guilty to the DUI and to the admissibility of the Final Decision in a subsequent legal proceeding related to the DUI charge. See Muldrow v. State, 322 Ga. App. 190, 195 (3) (744 SE2d 413) (2013).

2. Flading next argues that the Final Decision is extremely suggestive and prejudicial and should have been excluded. Because the motion in limine hearing took place after January 1, 2013, Georgia’s new Evidence Code applies. See Ga. L. 2011, pp. 99, 214, § 101. Under our new code, relevant evidence is defined as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” OCGA § 24-4-401 (mirroring Federal Rule of Evidence 401). This relevance standard “is a low standard.” United States v. Sumner, 522 Fed. Appx. 806, 810 (11th Cir. 2013). Flading’s stipulation that he would plead guilty to DUI in exchange for the return of his driver’s license is relevant to, though certainly not dispositive of, the charge that he was driving under the influence of alcohol. See United States v. Harrell, No. 6:05-cr-17, 2006 U.S. Dist. LEXIS 26793, at *3 (M.D. Ga. May 5, 2006) (statements made by defendant at a warrant hearing relevant to issues in later criminal trial).

OCGA § 24-4-403, which tracks Federal Rule of Evidence 403, in turn provides:

Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

Id. The Eleventh Circuit has described Rule 403 as “ ‘an extraordinary remedy which the [courts] should invoke sparingly, and the balance should be struck in favor of admissibility.’ ” Sumner, 522 Fed. Appx. at 810 (citing United States v. Lopez, 649 F3d 1222, 1247 (11th Cir. 2011)). “The reason for such caution is that relevant evidence in criminal trials is inherently prejudicial.” (Citation and punctuation omitted.) Id. The Eleventh Circuit has further explained that “[t]he major function of Rule 403 is to exclude evidence of scant or cumulative probative force, dragged in by the heels for the sake of its prejudicial effect.” (Citation and punctuation omitted.) United States v. Aguila-Urbay, 480 Fed. Appx. 564, 567 (11th Cir. 2012). We find that the Final Decision at issue in this case is neither of “scant or cumulative probative force” nor introduced by the State merely for the sake of its prejudicial effect. Accordingly, because its probative value is not substantially outweighed by its prejudicial effect, the trial court properly allowed admission of the Final Decision over objection. See id.

3. Lastly, Flading argues, without citation to authority, that there were no indicia of reliable evidence to establish that Hoffman was “actually an attorney” acting with Flading’s authority. This argument is completely unsupported by the record. As we have already noted, during the motion in limine hearing, Flading’s trial counsel conceded that Hoffman was Flading’s attorney at the ALS hearing and signed the Final Decision. Moreover, at trial, Officer Ott testified that at the ALS hearing, he personally spoke with Hoffman, who was representing Flading at that time. Officer Ott also confirmed that Hoffman signed the Final Decision and that she conferred with Flading prior to agreeing to the stipulation and that “[h]e agreed to plead guilty to DUI.” In addition, Officer Ott explained that he was familiar with Hoffman prior to the ALS hearing at issue because they had worked together on previous cases.

Thus, to the extent the State was required to present any further indicia of reliability beyond Flading’s concession that Hoffman was his attorney representing him at the ALS hearing, we find that it has done so here. Although Flading conducted a thorough cross-examination of Officer Ott regarding various reasons why the Final Decision may have been filed with the Department of Driver Services “that have nothing to do with Mr. Flading’s actual decision to plead guilty,” “[i]t was for the jury to determine the credibility of the witnesses and to resolve any conflicts or inconsistencies in the evidence.” (Citation and punctuation omitted.) Vega v. State, 285 Ga. 32, 33 (1) (673 SE2d 223) (2009). Accordingly, the trial court did not err in admitting the Final Decision. See Martin v. State, 251 Ga. App. 149, 149-150 (1) (553 SE2d 827) (2001); Kendrick v. State, 240 Ga. App. 530 (523 SE2d 414) (1999).

Decided May 22, 2014.

Thomas C. Rowsey, for appellant.

Carmen D. Smith, Solicitor-General, R. Leon Benham, Assistant Solicitor-General, for appellee.

Judgment affirmed.

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

       See, e.g., Goolsby v. State, 299 Ga. App. 330, 330 (682 SE2d 671) (2009).

       In Georgia, a person arrested for driving under the influence of alcohol who refuses to take the state-administered test under the implied consent law, such as Flading, has his driver’s license suspended, subject to ahearingbefore an administrative law judge. See OCGA § 40-5-67.1 (d), (f), (g).

       In both Wyatt and Sheffield, the arresting officer’s failure to appear at the ALS hearing resultedm the reinstatement of the appellant’s license. Wyatt, 179 Ga. App. at 327 (1); Sheffield, 184 Ga. App. at 141 (1). In Hunter, the ALS hearing officer, with no explanation, submitted a letter to appellant that his license suspension was withdrawn. Hunter, 191 Ga. App. at 770.

       To the extent Flading is arguing that the Final Decision is inadmissible because it is in the nature of an admission made with a view toward compromise under former OCGA § 24-3-37, we note that this former statute did not operate to exclude such statements in criminal cases. See, e.g., Tolbert v. State, 215 Ga. App. 113, 115 (2) (449 SE2d 671) (1994). We also take this opportunity to note that under our new Evidence Code, the exclusion of offers to compromise “shall not require exclusion of evidence offered for another purpose, including, but not limited to, proving bias or prejudice of a witness, negating a contention of undue delay or abuse of process, or proving an effort to obstruct a criminal investigation or prosecution.” OCGA § 24-4-408 (c) (tracking Federal Rule of Evidence 408); see also United States v. Levinson, 504 Fed. Appx. 824, 828 (11th Cir. 2013) (Federal Rule of Evidence 408 and its exceptions apply to both criminal and civil proceedings).

       Flading stops short of arguing that he did not agree to enter into the stipulation. Rather, as he did at the hearing, Flading apparently attempts to make an issue of the fact that the stipulation was signed by Hoffman and does not contain his personal signature. That fact does not change the outcome here.

       Because the new Evidence Code is patterned after the Federal Rules of Evidence, we will look to case law from federal courts within the Eleventh Circuit for guidance in interpreting these new statutes. See Ga. L. 2011, p. 99, § 1; Jones v. State, 326 Ga. App. 658 (757 SE2d 261) (2014).

       See Johnson v. State, 205 Ga. App. 760, 761 (423 SE2d 702) (1992) (defendant’s confession cannot establish the corpus delicti, which must be proved beyond a reasonable doubt, independently of the confession).

       Flading does not argue that the Final Decision is inadmissible on hearsay grounds, but we note that under our new rules of evidence, the admission of a statement against interest made by a declarant who is unavailable as a witness (including a criminal defendant who elects not to testify) is now controlled by OCGA § 24-8-804 (b) (3) and includes statements that would tend “to expose the declarant to civil or criminal liability.” OCGA § 24-8-804 (b) (3) (A) (patterned after Federal Rule of Evidence 804); see also United States v. Hendrieth, 922 F2d 748, 750 (11th Cir. 1991) (asserting Fifth Amendment privilege renders witness unavailable to testify). Such statements must be “[s]upported by corroborating circumstances that clearly indicate the trustworthiness of the statement if it is offered in a criminal case as a statement that tends to expose the declarant to criminal liability.” OCGA § 24-8-804 (b) (3) (B); see also United States v. Daniels, 465 Fed. Appx. 896, 898-899 (11th Cir. 2012).


author: BARNES, Presiding Judge.

text:
    A14A0326.
    BLUE v. HEMMANS.
    (759 SE2d 72)
   BARNES, Presiding Judge.

Tonella Hemmans filed a petition against her ex-husband, Kelvin Blue, seeking a change in child custody and child support. Following an evidentiary hearing, the trial court granted the petition, transferring sole physical custody of the child to Hemmans and directing Blue to pay child support to her. On appeal, Blue contends that the trial court abused its discretion in finding a change in condition sufficient to justify a modification in custody because several of the court’s key factual findings were unsupported by the evidence. Blue further contends that the trial court improperly relied upon statements made by the child in chambers outside the presence of the parties and counsel, and that there was no evidence to support the amount of child support awarded by the court. Because the trial court clearly erred in several of its material findings of fact, we vacate the trial court’s order and remand for the court to correct its factual findings to conform to the evidence and reconsider whether a modification of custody is warranted.

On appeal from a child custody decision, we view the evidence in the light most favorable to the trial court’s order. Mitcham v. Spry, 300 Ga. App. 386 (685 SE2d 374) (2009). So viewed, the evidence shows that Blue and Hemmans were married and had two children, a daughter born in 1993 and a son born in 2001. The instant case concerns only the custody of the son.

Blue and Hemmans were divorced in Camden County in 2002. Under the divorce decree, Hemmans was awarded sole physical custody of the two children. Blue was awarded visitation with the children, including alternating weekends and five weeks of summer vacation. Blue also was ordered to pay monthly child support of $865.

Blue and Hemmans continued to live in Camden County after their divorce. However, in December 2009, Hemmans moved to Hawaii with the children. Blue filed a petition for a change in custody in the Superior Court of Camden County, contending that Hemmans had “absconded” with the children to Hawaii and that the relocation was a material change in condition affecting the children’s welfare. Following an evidentiary hearing, the trial court entered an order in June 2010 finding that there had been a material change in condition and awarding Blue sole physical custody of the son. The trial court awarded Hemmans the same visitation rights with the son that had been awarded to Blue in the 2002 divorce decree, including five weeks of summer vacation. Among other rights, the trial court also awarded Hemmans the right to participate in the son’s school activities and to have access to his school records. In contrast, the trial court allowed the daughter, who was over 14 years old, to choose her custodial parent, and she elected to continue living with Hemmans in Hawaii. See OCGA § 19-9-3 (a) (5). The trial court did not award any child support to Blue in its June 2010 order.

The son returned to live with Blue in Camden County in the summer of 2010. Subsequently, in October 2012, Hemmans and the daughter moved from Hawaii to Washington State. In April 2013, Hemmans filed a pro se petition for a change in custody and for child support in the Superior Court of Camden County, seeking to have the trial court transfer sole physical custody of the son back to her. Hemmans alleged in her petition that she and her daughter had been denied visitation and phone contact with her son following entry of the June 2010 order, and that this denial was a material change in condition affecting the son’s welfare. Blue filed an answer to the petition, denying that Hemmans or the daughter had been prevented from visiting or talking on the phone with the son. An affidavit signed by the son, who was 12 years old at the time, also was filed with the court. In the affidavit, the son expressed his desire that Blue continue to have physical custody over him. See OCGA § 19-9-3 (a) (6).

On May 9, 2013, the trial court held a temporary hearing on Hemmans’ petition and conducted an in-camera interview with the son with the consent of both parties. The trial court entered a temporary order later that month granting Hemmans visitation with the son in Washington State from May 2013 through part of July 2013 and scheduled a final hearing for July 12, 2013.

At the July 12, 2013 final hearing, Hemmans appeared pro se and testified about the visitation and other issues that had arisen since June 2010, when sole physical custody of the son had been awarded to Blue. According to Hemmans, she had traveled back to Camden County on two occasions after Blue was awarded custody in June 2010, once in June 2011 and again in April 2012. She testified that in June 2011, she traveled to Camden County to pick up her son and take him back with her for five weeks of summer vacation in Hawaii, as authorized by the June 2010 order. Hemmans testified that she had given Blue notice of her intention to exercise her summer visitation rights two months before her arrival, but Blue still refused to allow the son to go back with her to Hawaii. As a result of Blue’s refusal, Hemmans was denied any summer visitation with her son in 2011.

Hemmans testified that she returned to Camden County in April 2012 to attend a court hearing on an unrelated criminal matter. During her trip, she visited her son at his school over the course of three days but did not contact Blue or otherwise attempt to exercise her visitation rights. According to Hemmans, while she was visiting her son at school, school officials told her that Blue had provided them with only the first page of the June 2010 custody order, and, as a result, they had been unaware that Hemmans was authorized to participate in the son’s school activities and to have access to his school records, which were addressed on a subsequent page of that order. Blue objected to the admission of this testimony on hearsay grounds.

Hemmans further testified that Blue had interfered with her and her daughter’s ability to have contact with the son because Blue had “blocked” their telephone numbers for over a year. As a result of the blocked numbers, Hemmans testified that she had been unable to have any communication with her son for “months at a time.”

Blue and his current wife also testified at the hearing. They denied improperly interfering with Hemmans’ visitation rights or with her ability to speak with the son on the telephone. In contrast to Hemmans, Blue testified that Hemmans never gave him advance notice of her plans for summer visitation in 2011 and instead had called him on the morning she arrived in Camden County and informed him that she was coming to pick up the son. Blue’s current wife further explained that they refused to allow the son to go with Hemmans because she would not tell them the date the son would be returning to Camden County from Hawaii.

In addition to receiving witness testimony at the July 12, 2013 hearing, the trial court stated that it planned to conduct a second in-camera interview with the son. Blue initially objected to a second in-camera interview, and the trial court replied that the court “just want[ed] to see how he’s doing versus how he was doing when I talked to him last time.” Blue responded, “Limiting it to that, that’ll be fine.” The trial court subsequently spoke with the son in chambers.

Following the hearing and second in-camera interview, the trial court entered an order on July 23,2013 in which it granted Hemmans’ petition, awarding her sole physical custody of the son and child support. The order contained detailed findings of fact and conclusions of law. Among other factual findings, the court found that Hemmans had testified at the June 12, 2013 hearing that Blue “has withheld visitation with [the son] on multiple occasions”; that Hemmans had been prohibited by Blue from exercising her summer visitation rights in 2011; and that Hemmans “was again denied visitation with [the son] in April[ ] 2012.” The trial court further found that Blue had “willfully withheld” from the son’s school the fact that Hemmans had joint legal custodial rights to the son, which had the effect of denying Hemmans’ “right to participate in [the son’s] school activit[ies]” and of denying her access to the son’s school records. Additionally, the court found that Hemmans “was continually denied telephone contact” with the son by Blue.

Among other conclusions of law, the trial court concluded that Blue “has willfully acted to withhold [Hemmans’] visitation rights” and “has continually denied [Hemmans] overnight visitation” with the son since the entry of the June 2010 order. The trial court further concluded that Blue had failed to “provide [the son’s] school with notice of [Hemmans’] joint legal status, thereby denying [Hemmans] her right to participate in the [son’s] school activities and... everyday life.” Consequently, the trial court concluded that there had been a material change in condition justifying a change in custody of the son.

The trial court also concluded that it was in the best interest of the son to change the custody arrangement and that, based on what was said by the son during the first in-camera interview, the court would “give no weight” to the son’s affidavit that had been filed in the case. Furthermore, the trial court noted that “no evidence was presented ... on which it could make a determination regarding modification [of] child support.” The trial court ruled that given this lack of evidence, the court would require Blue to pay Hemmans the amount of child support ordered in the 2002 divorce decree, which was $865 per month.

1. Blue contends that the trial court abused its discretion in finding a change in condition sufficient to justify a modification in custody of the son because several material factual findings upon which the trial court relied in reaching its decision were unsupported by the evidence. We agree.

A petition to change child custody should be granted only if the trial court finds that there has been a material change of condition affecting the welfare of the child since the last custody award. If there has been such a change, then the court should base its new custody decision on the best interest of the child.

Viskup v. Viskup, 291 Ga. 103, 105 (2) (727 SE2d 97) (2012). It is well established that the repeated denial of a non-custodial parent’s visitation rights can constitute a material change in condition. See Bull v. Bull, 243 Ga. 72 (2) (252 SE2d 494) (1979); Tyree v. Jackson, 226 Ga. 690, 696 (3) (177 SE2d 160) (1970); Jones v. Kimes, 287 Ga. App. 526, 528 (652 SE2d 171) (2007). In contrast, the denial of visitation rights on a single occasion, without more, does not rise to the level of a material change in condition justifying a change in custody. See Osborne v. Osborne, 227 Ga. 235, 236 (1) (179 SE2d 776) (1971).

Atrial court’s determination that a material change in condition has occurred is reviewed only for an abuse of discretion. Vines v. Vines, 292 Ga. 550, 552 (2) (739 SE2d 374) (2013). Nevertheless, “[although trial courts have wide discretion in change of custody proceedings, that discretion is not without limits.” Durham v. Gipson, 261 Ga. App. 602, 605 (1) (583 SE2d 254) (2003). Generally speaking, an abuse of discretion occurs where the trial court “misstates or misapplies the relevant law.” Mathis v. BellSouth Telecommunications, 301 Ga. App. 881 (690 SE2d 210) (2010). See Donohoe v. Donohoe, 323 Ga.App. 473, 476 (1) (746 SE2d 185) (2013) (physical precedent only). An abuse of discretion also can occur if the trial court “clearly errs in a material factual finding.” State v. Pickett, 288 Ga. 674, 679 (2) (d) (706 SE2d 561) (2011). See In the Interest of Q. S., 310 Ga. App. 70, 77-78 (2) (712 SE2d 99) (2011); Bridges v. Bridges, 197 Ga. App. 608, 609 (398 SE2d 860) (1990); In the Interest of C. R. M., 179 Ga. App. 38 (345 SE2d 141) (1986).

Here, the trial court clearly erred in several of its factual findings that were material to its decision to change custody. As discussed above, the trial court found that Blue had denied Hemmans visitation with the son “on multiple occasions,” including in April 2012, and had “continually denied [Hemmans] overnight visitation with the [son].” But the evidence presented at the July 12, 2013 hearing, even when construed in the light most favorable to Hemmans, shows only that she was denied visitation with her son on one occasion, namely, in the summer of 2011. Hemmans did not testify to any other instances in which she sought to exercise her visitation rights but was thwarted by Blue, and she testified that she did in fact visit with her son during her April 2012 trip to Camden County. Consequently, the trial court’s findings regarding the extent to which Hemmans had been denied visitation by Blue are unsupported by the record.

In granting the change in custody, the trial court also relied upon its finding that Blue had “willfully withheld” from the son’s school the fact that Hemmans had joint legal custodial rights to the son, which the court concluded had the effect of denying Hemmans’ “right to participate in [the son’s] school activit[ies]” and of denying her access to the son’s school records. But the only evidence presented at the hearing regarding the school was Hemmans’ testimony about what school officials told her during her April 2012 trip to Camden County, and Blue correctly objected to that testimony on hearsay grounds. “ ‘Hearsay’ means a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” OCGA § 24-8-801 (c) (2013).

In its simplest terms, the hearsay rule applies when one party offers as evidence a statement made by another person at [a] time when the person was not testifying at the trial or hearing. The party making the offer wants to use the statement in order to prove “the truth of the matter asserted” in the statement.

Alexander Scherr, Green’s Ga. Law of Evidence § 8:2 (2013). That is precisely what Hemmans attempted to do in her testimony regarding what the school officials told her, and thus her testimony should have been disregarded by the trial court as inadmissible hearsay in light of Blue’s objection. It follows that the trial court’s finding that Blue interfered with Hemmans’ right to participate in school activities and to have access to school records was unsupported by competent evidence.

In contrast, there was evidence presented at the hearing to support the trial court’s finding that Hemmans “was continually denied telephone contact” with her son by Blue. In this respect, Hemmans testified that Blue “blocked” her telephone numbers for over a year, causing her to be unable to communicate with her son “for months at a time.” Hemmans’ testimony was sufficient to support the trial court’s factual finding regarding telephone contact.

In sum, the trial court clearly erred in some, but not all, of the factual findings that it relied upon to support its conclusion that there was a material change in condition authorizing a modification in custody. Specifically, there was evidence to support the trial court’s findings that Hemmans was improperly denied visitation with her son in the summer of 2011 and was denied telephone contact with him for an extended period of time, but not to support its findings that Hemmans had “continually” been denied overnight visitation on “multiple occasions” by Blue or that Blue had interfered with Hem-mans’ right to participate in the son’s school activities and to have access to his school records.

If the trial court . . . clearly errs in a material factual finding, the trial court’s exercise of discretion can be affirmed only if the appellate court can conclude that, had the trial court used the correct facts and legal analysis, it would have had no discretion to reach a different judgment.

(Emphasis supplied.) Pickett, 288 Ga. at 679 (2) (d). See In the Interest of Q. S., 310 Ga. App. at 78 (2). While the corrected facts as stated above would be sufficient to sustain a finding of a material change in condition in the present case, see Arp v. Hammonds, 200 Ga. App. 715, 717-718 (409 SE2d 275) (1991), we cannot say that the corrected facts would absolutely demand such a finding by the trial court. See generally Scott v. Scott, 227 Ga. App. 346, 348 (1) (489 SE2d 117) (1997) (emphasizing that “the trial court is vested with broad discretion in making decisions concerning custody”). Consequently, we must vacate the trial court’s custody order and remand for the court to exercise its discretion again under corrected findings of fact. See Pickett, 288 Ga. at 680 (2) (d); In the Interest of Q. S., 310 Ga. App. at 78 (2); Bridges, 197 Ga. App. at 609; In the Interest of C. R. M., 179 Ga. App. at 38.

Decided May 23, 2014.

James L. Hardin, Douglas W. Alexander, for appellant.

Tonella Hemmans, pro se.

2. Blue also contends that the trial court improperly relied upon statements made by the son in chambers outside the presence of the parties and counsel in determining what custody arrangement would be in the best interest of the son. A trial court does not abuse its discretion in a custody case by interviewing a child alone in chambers where, as here, the parties do not object or otherwise can be found to have acquiesced to such an arrangement. See Kohler v. Kromer, 234 Ga. 117, 118 (214 SE2d 551) (1975). But any statements made by the child that are not on the record cannot be used to uphold the trial court’s custody decision on appeal. See id.; Peeples v. Newman, 209 Ga. 53, 57 (2) (70 SE2d 749) (1952); Allen v. Clerk, 273 Ga. App. 896, 898 (1) (616 SE2d 213) (2005). In light of our decision in Division 1 that the trial court’s custody order must be vacated and remanded for the court to determine whether there was a material change in condition under corrected factual findings, we need not resolve whether there was other record evidence, apart from the trial court’s ex parte communications with the son, to support the conclusion that a change in custody would be in the son’s best interest.

3. Lastly, Blue contends that the trial court erred in setting the amount of child support based on the 2002 divorce decree rather than by receiving evidence and considering the child support guidelines to arrive at a current calculation. See OCGA § 19-6-15 (b) (1) (calculation of child support requires, among other things, a determination of the monthly gross income of both parties); Stowell v. Huguenard, 288 Ga. 628 (706 SE2d 419) (2011) (“The guidelines for computing the amount of child support are found in OCGA § 19-6-15 and must be considered by any court setting child support.”) (citation and punctuation omitted). Because the trial court’s award of child support was predicated on its decision to change custody of the son, our decision in Division 1 to vacate the custody order likewise requires us to vacate the trial court’s child support award and remand for reconsideration in light of this opinion.

Judgment vacated and case remanded with direction.

Boggs and Branch, JJ., concur.

       Hemmans failed to file an appellee’s brief responding to Blue’s contentions.

       OCGA § 19-9-3 (a) (5) provides in part:
      In all custody cases in which the child has reached the age of 14 years, the child shall have the right to select the parent with whom he or she desires to live.
      The child’s selection for purposes of custody shall be presumptive unless the parent so selected is determined not to be in the best interests of the child. . . .

       The petition was assigned to a different judge than the one who entered the June 2010 custody order.

       OCGA § 19-9-3 (a) (6) provides in part:
      In all custody cases in which the child has reached the age of 11 but not 14 years, the judge shall consider the desires and educational needs of the child in determining which parent shall have custody. The judge shall have complete discretion in making this determination, and the child’s desires shall not be controlling. . . .

       The new Georgia Evidence Code applies in this case. See Ga. L. 2011, p. 99, § 101 (“This Act shall become effective on January 1, 2013, and shall apply to any motion made or hearing or trial commenced on or after such date.”).


author: DOYLE, Presiding Judge.

text:
    A12A1376.
    McMEANS v. DEPARTMENT OF TRANSPORTATION.
    (759 SE2d 247)
    Decided May 27, 2014.

      Albert B. Wallace, for appellant.

      Samuel S. Olens, Attorney General, Power, Jaugstetter & Futch, Warren E. Power, for appellee.
   DOYLE, Presiding Judge.

In our earlier decision in this case, McMeans v. Dept. of Transp., 319 Ga. App. 230 (734 SE2d 412) (2012), we reversed the grant of the Department of Transportation’s motion to strike the first amendment to an answer filed by Brian K. McMeans. The Supreme Court reversed our judgment and held that McMeans could not plead a business loss for a business he owned and operated on condemned property. We now vacate our earlier decision and adopt the opinion and decision of the Supreme Court as our own. Accordingly, the judgment of the trial court below is affirmed.

Judgment affirmed.

Andrews, P. J., and Boggs, J., concur.

       See Dept. of Transp. v. McMeans, 294 Ga. 436, 438 (754 SE2d 61) (2014) (“The distinct corporate entity MLI owned the business located and operated on the condemned property, so MLI, not McMeans, was the proper party to assert any claim for its business losses due to the condemnation.”).


author: Phipps, Chief Judge.

text:
    A14A0136.
    WING v. THE STATE.
    (759 SE2d 243)
   Phipps, Chief Judge.

In connection with driving her car into a parked vehicle, the ensuing traffic stop, and the results of sobriety testing, Connie Wing was charged with failure to report an accident,* DUI less safe, 3and DUI per se. Wing filed a motion to suppress, challenging the legality of the traffic stop. After a hearing, the trial court denied Wing’s motion, then immediately proceeded with a stipulated bench trial, at which Wing was found guilty as charged. The court merged the DUI counts, then convicted Wing of failure to report an accident and DUI per se. In this appeal, Wing maintains that the traffic stop was illegal. She also claims that the evidence was insufficient to sustain her conviction for failing to report an accident. We affirm.

1. Wing contends that the trial court erred by denying her motion to suppress the evidence collected against her after the traffic stop, challenging the trial court’s finding that the stop was justified by articulable suspicion.

[A] law enforcement officer may conduct a constitutional investigatory stop of an individual when the officer is able to point to specific and articulable facts which, when taken together with rational inferences from those facts, reasonably warrant that intrusion. That is, under the totality of the circumstances, the investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity.... Each case turns on its own circumstances.

When conducting appellate review of the denial of a motion to suppress, we follow these three fundamental principles:

First, when a motion to suppress is heard by the trial judge, that judge sits as the trier of facts. The trial judge hears the evidence, and his findings based upon conflicting evidence are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support [them]. Second, the trial court’s decision with regard to questions of fact and credibility must be accepted unless clearly erroneous. Third, the reviewing court must construe the evidence most favorably to the upholding of the trial court’s findings and judgment.

So construed, the evidence showed the following. On April 7, 2013, at approximately 5:00 p.m., a police officer on patrol received a call from dispatch requesting him to respond to the scene of an accident. According to dispatch, a vehicle had struck a parked vehicle in a church parking lot. The officer proceeded to the reported location. As the officer arrived, he observed a blue car leaving the parking lot. About three to five individuals standing in the parking lot motioned toward the blue vehicle and verbally identified it as the one that had just struck a parked vehicle. The officer immediately pursued the blue car and initiated a traffic stop, believing that its driver was attempting to leave the scene of an accident. The officer stopped the car about a mile or two from the parking lot and made contact with the driver, who was later identified as Wing.

Given those facts, the trial court concluded that the traffic stop was justified in light of Brown v. State. In Brown, a law enforcement officer heard a police radio report of an altercation at a Waffle House that was near his location. The officer responded to the scene, and as his car entered the Waffle House parking lot, he observed a green truck leaving it. Five or six people were standing outside pointing at the green truck. “Based upon the radio report and his observation at the scene of the people pointing at the green truck, the deputy concluded that the people in the truck had been ‘involved in the altercation’ [mentioned] in the radio report. He activated his blue lights and stopped the truck.” This court found no merit in the argument that the officer had lacked articulable suspicion to initiate the traffic stop, reciting the principles:

[A] dispatcher who reports a crime at a specified location gives police an articulable suspicion to investigate and detain individuals at the scene, particularly where police observations on arriving at the scene corroborate the dispatcher’s report. Even if the dispatcher’s information comes from a citizen or an unidentified informant, the investigatory detention is valid, for patrolling officers are not required to question dispatchers about the source of the information.*

In the instant case, and similar to the circumstances underlying Brown,

information about [a vehicle collision] at a specified nearby location was broadcast over police radio. The [officer] corroborated this information with his personal observation of persons [at the scene] who were pointing at the [blue car]. Because the [blue car] was moving away from the scene, time was of the essence. The [officer] was authorized under these circumstances to stop the [blue car] to determine if it had, indeed, been involved in the [reported] incident.

Wing points out that the officer who responded to the dispatch did not interview the driver of the parked vehicle, did not assess the amount of damage rendered to the parked vehicle, and, consequently, had not determined whether she had complied withOCGA §§ 40-6-271 (a) and/or 40-6-273. Wing argues that, had the officer more fully investigated the scene — instead of pursuing her, he would have discovered that she had no duty to remain at the scene.

The trial court correctly concluded that this argument provided no basis to grant Wing’s motion to suppress. As Brown instructs:

An officer may stop a vehicle for investigation if it is justified by specific, articulable facts sufficient to give rise to a reasonable suspicion of criminal conduct. This suspicion need not meet the standard of probable cause, but must be more than mere caprice or a hunch or an inclination. A founded suspicion is all that is necessary, some basis from which the court can determine that the detention was not arbitrary or harassing.

And “[i]t is well settled that police officers are authorized to use information received by radio dispatch as part of their basis for articulable suspicion to conduct a stop.”

The collision at issue had been sufficiently compelling such that police were summoned; the officer, having received information from dispatch about the automobile collision, proceeded to the reported location; when the officer arrived, the car being driven away by Wing was pointed out by several onlookers who exclaimed that she was the one who had driven her car into another. These facts gave the officer grounds for conducting a brief traffic stop of Wing’s car for investigatory purposes, and demonstrated that such stop was not premised on mere caprice, hunch, or inclination, and was neither arbitrary nor harassing in nature. Wing’s challenge to the denial of her motion to suppress, therefore, fails.

2. Wing contends that the trial court erred by finding her guilty of failing to report an accident, claiming that the evidence was insufficient. But this contention is unavailing to Wing.

After the trial court denied Wing’s motion to suppress, counsel for Wing stipulated that there were sufficient facts to find Wing guilty, announcing further that Wing was seeking the state’s pre-trial recommendation as to sentencing while preserving the suppression issue for appeal. The prosecutor detailed for the court the state’s sentencing recommendation, covering the DUI and the failure to report offenses. The prosecutor added, “[Wing’s attorney] did narrow the issues. There were several witnesses, civilian witnesses to the accident as well as other law enforcement officers, that were not needed to come to court.” The trial court announced, “Okay. Well, it’s been a stipulated bench trial and I find her guilty for the purpose of the record.” Thereafter, the court entered judgment of conviction against Wing for the offenses of DUI and failing to report an accident.

Under these circumstances, “[Wing’s attorney] led the court, as well as the State, to... understand that the only contested issue there had been at trial was whether the evidence should be suppressed.” Consequently, Wing cannot now contest the sufficiency of the evidence underlying her conviction for failing to report an accident.

Decided May 27, 2014.

Brent D. Hutchison, for appellant.

John A. Pipkin III, Solicitor-General, Gilbert A. Crosby, Assistant Solicitor-General, for appellee.

Judgment affirmed.

Ellington, P. J., and McMillian, J., concur.

       OCGA § 40-6-273.

       OCGA § 40-6-391 (a) (1).

       OCGA§ 40-6-391 (a) (5).

        Garmon v. State, 271 Ga. 673, 676 (2) (524 SE2d 211) (1999) (citations and punctuation omitted).

        Miller v. State, 288 Ga. 286-287 (1) (702 SE2d 888) (2010) (citation andfootnote omitted).

       261 Ga. App. 228 (582 SE2d 183) (2003).

       Id. at 229.

       Id.

       Id.

       Id.

       Id. at 229-230, quoting Overand v. State, 240 Ga. App. 682, 683 (1) (523 SE2d 610) (1999).

        Brown, supra at 230.

       (“The driver of any vehicle which collides with any vehicle which is unattended shall immediately stop and shall then and there either locate and notify the operator or owner of such vehicle of the name and address of the driver and owner of the vehicle striking the unattended vehicle or shall leave in a conspicuous place on the vehicle struck a written notice giving the name and address of the driver and the owner of the vehicle doing the striking.”)

       (“The driver of a vehicle involved in an accident resulting in injury to or death of any person or property damage to an apparent extent of $500.00 or more shall immediately, by the quickest means of communication, give notice of such accident to the local police department if such accident occurs within a municipality. If such accident occurs outside a municipality, such notice shall be given to the office of the county sheriff or to the nearest office of the state patrol.”)

        Brown, supra at 228 (citation and punctuation omitted).

        State v. Melanson, 291 Ga. App. 853, 854 (663 SE2d 280) (2008) (citation and punctuation omitted); accord Johnson v. State, 302 Ga. App. 318, 322 (2) (a) (690 SE2d 683) (2010) (noting that “a dispatcher who reports a crime at a specified location gives police an articulable suspicion to investigate and detain individuals ..., particularly where police observations on arriving at the scene corroborate the dispatcher’s report”) (citations, punctuation and footnotes omitted).

       See Melanson, supra at 855 (considering that conduct at the scene of an altercation compelled a restaurant employee to summon police).

       See Prather v. State, 279 Ga. App. 873, 874 (1) (633 SE2d 46) (2006) (“Even if the dispatcher’s information comes from a citizen or an unidentified informant, the investigatory-detention is valid, for patrolling officers are not required to question dispatchers about the source of the information. Further, corroboration only solidifies the existence of an articulable suspicion.”) (citations and emphasis omitted).

       See State v. Diamond, 223 Ga. App. 164, 166 (477 SE2d 320) (1996) (“The specific articulable suspicion must he based on the totality of the circumstances — objective observations, known patterns of certain kinds of lawbreakers, and inferences drawn and deductions made by trained law enforcement personnel.”).

       See Melanson, supra at 854-855; Brown, supra; Garmon, supra at 677 (2) (recognizing that “in cases where there are some reasonable articulable grounds for suspicion, the state’s interest in the maintenance of community peace and security outweigh the momentary inconvenience and indignity of investigatory detention”).

        Sanders v. State, 252 Ga. App. 609, 614-615 (2) (556 SE2d 505) (2001) (holding that challenge to evidentiary sufficiency was waived, where defendant stipulated before the trial court to all elements of the offense).

       See Sanders, supra; Scott v. State, 201 Ga. App. 162-163 (1) (410 SE2d 362) (1991) (concluding that defendant waived right to challenge the sufficiency of evidence, where record revealed that the defense attorney led trial judge and prosecuting attorney to think that the only issue contested by defendant was whether the evidence, obtained by a search, should be suppressed).


author: McFadden, Judge.

text:
    A14A0208.
    EDISON v. THE STATE.
    (759 SE2d 247)
   McFadden, Judge.

After a bench trial, Lisa Edison was convicted of driving under the influence of drugs to the extent she was a less safe driver (DUI). She appeals, arguing that the trial court erred in failing to suppress evidence concerning a drug recognition examination because the arresting officer offered her a “hope of benefit,” in violation of former OCGA § 24-3-50, by telling her that she would not be taken to jail if she submitted to the examination. However, the officer’s statement was not an improper hope of benefit under the statute, and therefore we affirm.

The evidence shows that in the early morning hours of July 20, 2008, a police officer saw Edison driving a car on the interstate, weaving from lane to lane and almost colliding with a vehicle in front of her. The officer initiated a traffic stop, approached the vehicle, and noticed that Edison appeared sleepy and that her eyelids were drooping. Edison admitted to the officer that she had drunk alcohol earlier in the day and that she had taken a sleeping pill approximately 30 minutes earlier. After conducting field sobriety evaluations, the officer arrested Edison for DUI and read the implied consent warning to her. She agreed to take state-administered tests. After breath and blood tests were performed, the officer told Edison that if she would also submit to a detailed drug recognition examination, she would not be booked into jail at that time. The officer explained that she had been arrested for DUI, and that her participation in the further drug recognition examination would not change the fact that she had been charged with DUI, but she would then be given a copy of the charges and taken home. Edison agreed to the further examination, after which she was transported to her home.

Former OCGA § 24-3-50 provided that “[t]o make a confession admissible, it must have been made voluntarily, without being induced by another by the slightest hope of benefit or remotest fear of injury.” It is well settled that “[t]he promise of a benefit that will render a confession involuntary under OCGA § 24-3-50 must relate to the charge or sentence facing the suspect. Generally, the hope of benefit to which the statute refers has been construed as a hope of lighter punishment.” Duncan v. State, 315 Ga. App. 67, 69 (1) (726 SE2d 558) (2012) (citation and punctuation omitted). As the Supreme Court of Georgia has explained, “a hope of benefit arises from promises related to reduced criminal punishment — a shorter sentence, lesser charges, or no charges at all. [Cits.]” Edenfield v. State, 293 Ga. 370, 373 (2) (744 SE2d 738) (2013) (punctuation omitted). Accordingly, “an officer’s promise that he would see about getting the defendant home once defendant made a statement [does] not implicate the provisions of OCGA § 24-3-50.” Duncan, supra (citation and punctuation omitted). See also Overton v. State, 295 Ga. App. 223, 243-244 (16) (671 SE2d 507) (2008) (being released from jail is not a hope of benefit that would implicate this Code section).

Here, Edison has not challenged the admission of a confession, and instead challenges the admission of evidence concerning the drug recognition examination performed by the officer. “Thus, insofar as the [drug recognition] examination itself is concerned, there is nothing to suppress [under OCGA § 24-3-50].” Parker v. State, 256 Ga. 543, 547 (1) (d) (350 SE2d 570) (1986). See also Scanlon v. State, 237 Ga. App. 362, 364 (2) (514 SE2d 876) (1999) (results obtained from a chemical breath test, like the results obtained from a sobriety test or a blood test, are not evidence of a testimonial or communicative nature).

Moreover, even if Edison had challenged the admission of a confession, the evidence plainly shows that the officer made no offer relating to the charges facing Edison, and certainly did not offer a reduced criminal punishment. On the contrary, the officer clearly explained that Edison’s consent to the drug recognition examination would not affect the fact that she had been arrested and charged with DUI. Rather, the officer merely told Edison that she would be taken home after the examination. And as noted above, such a promise to take a defendant home does not implicate the provisions of OCGA § 24-3-50. See Brown v. State, 290 Ga. 865, 869 (2) (b) (725 SE2d 320) (2012) (promise regarding release after questioning has been held to constitute only a collateral benefit that does not mandate exclusion of the evidence); In the Interest of D. T., 294 Ga. App. 486, 488-489 (2) (669 SE2d 471) (2008) (officer’s promise to suspect that he would drive him home once he gave a statement was only a collateral benefit that did not implicate OCGA § 24-3-50); Smith v. State, 269 Ga. App. 133, 140 (3) (603 SE2d 445) (2004) (OCGA § 24-3-50 did not require exclusion where officer said he would “see about getting [defendant] home”). Accordingly, the trial court did not err in denying Edison’s motion to suppress evidence.

Decided May 29, 2014.

King, King & Jones, David H. Jones, for appellant.

Carmen D. Smith, Solicitor-General, R. Leon Benham, Assistant Solicitor-General, for appellee.

Judgment affirmed.

Andrews, P. J., and Ray, J., concur.

       The provisions of this former Code section are now codified in OCGA § 24-8-824. But because this new Code section became effective only as of January 1, 2013, it does not apply in this case and we thus cite the former Code section. See Edenfield v. State, 293 Ga. 370, 373 (2), n. 5 (744 SE2d 738) (2013).


author: Ray, Judge. MCFADDEN, Judge,

text:
    A14A0380.
    PRIGMORE v. THE STATE.
    (759 SE2d 249)
   Ray, Judge.

Spencer Prigmore was arrested on charges of vehicular homicide (OCGA § 40-6-393), reckless driving (OCGA § 40-6-390), leaving the scene of an accident (OCGA § 40-6-270), and driving under the influence of drugs (OCGA § 40-6-391). We granted Prigmore’s application for interlocutory appeal to consider whether the trial court erred in denying his motion for pre-trial bond. For the reasons that follow, we affirm.

In determining whether the trial court erred in denying bond, we apply a “flagrant abuse” standard. (Citation omitted.) Hardy v. State, 192 Ga. App. 860, 860 (2) (386 SE2d 731) (1989). In other words, the trial court’s discretion will not be disturbed “unless it was manifestly or flagrantly abused.” (Citation omitted.) Id.

The transcript from the bond hearing shows the following facts. Prigmore was driving his vehicle along Lawrenceville Highway at about 6:45 p.m. when he crossed a lane of traffic and left the roadway, traveled for some distance on the sidewalk, and struck and killed a woman and her six-year-old daughter. After striking the pedestrians, Prigmore returned to the roadway and continued driving for approximately a quarter-mile before turning into a parking lot and parking his vehicle in the drive-thru of a business. Witnesses to the accident had followed Prigmore and informed police of his location. When the police approached Prigmore in his vehicle, he appeared very upset, and he stated “[0]h, my God, just tell me, did I kill them[?]” After Prigmore was taken into custody for further investigation, police officers described Prigmore as being so intoxicated that they could not get any statement from him. Prigmore was read the implied consent law, but he refused to submit to a state-administered test. Consequently, the police sought and obtained a search warrant for a blood draw. While being held in jail on these charges, Prigmore was placed on suicide watch due to his despondency over the incident.

Although Prigmore did not testify at the bond hearing, he presented witnesses to testify regarding his ties to the community. In response, the State elicited testimony that Prigmore had multiple convictions for driving under the influence. The State then proffered evidence that Prigmore has three previous DUI convictions, the most recent in 1999. In addition, he entered a plea as a first offender to a charge of possession of a controlled substance in 1998, followed by a battery conviction in 2006, a charge of furnishing alcohol to a minor in 2009, and a shoplifting conviction in 2012. The State also argued that Prigmore may flee if released, pointing to evidence that he left the scene after running over the pedestrians and that he stopped when his vehicle became inoperable a quarter-mile down the road.

Under Georgia law, a trial court may release a defendant on bail if it finds that the defendant:

(1) [p]oses no significant risk of fleeing from the jurisdiction of the court or failing to appear in court when required; (2) [pjoses no significant threat or danger to any person, to the community, or to any property in the community; (3) [p]oses no significant risk of committing any felony pending trial; and (4) [p]oses no significant risk of intimidating witnesses or otherwise obstructing the administration of justice.

OCGA § 17-6-1 (e).

In announcing its ruling at the conclusion of the bond hearing, the trial court expressed concern about Prigmore’s well-being and that Prigmore may pose a danger to himself and to the community if released. The trial court also acknowledged that there was evidence that officers believed that Prigmore may have been under the influence at the time of the accident, and it expressed concern about Prigmore’s history with alcohol and driving under the influence. The trial court further stated that it was concerned about the possibility that Prigmore may flee. In its written order, the trial court stated that Prigmore “poses a significant risk of committing further felonies pending trial of this matter and poses a significant risk to persons in the community, including himself.”

Given the facts presented to the trial court, we cannot say that it flagrantly abused its discretion in reaching its conclusions. “Whether we agree with [the trial court’s] findings and conclusions is not controlling.” (Citations omitted.) Hardy, supra at 861 (2). As there is some evidence to support at least part of the underlying basis for the trial court’s conclusions, the trial court did not err in denying bond. Id.

Judgment affirmed.

Andrews, P. J., concurs. McFadden, J., concurs specially.

MCFADDEN, Judge,

concurring specially.

I concur fully in the majority opinion. I write separately to express my concerns about its recitation that we are to apply a “flagrant abuse” standard of review.

I do not dispute that it is an accurate recitation of our law. It follows a line of cases going back to a decision authored by Justice Joseph Rucker Lamar, who later served on the Supreme Court of the United States, Jernagin v. State, 118 Ga. 307 (45 SE 411) (1903), and through the case which the parties agree to be the leading authority in the present context, Ayala v. State, 262 Ga. 704 (425 SE2d 282) (1993).

Nevertheless I question what it means to say that we will reverse only for flagrant abuse of discretion. The most obvious interpretation is that we will affirm in cases of merely ordinary abuse of discretion. But that interpretation seems to me problematic.

Such an interpretation would be at least in tension with our Supreme Court’s opinion in Ayala, which reaffirms that a trial court “must explain its reasons for denying bond to assist appellate review,” 262 Ga. at 705, reaffirms that “[i]n this state, unlike many other states, the presumption of innocence has always remained with the person accused of a capital offense, even during the trial,” 262 Ga. at 706, and holds that while “the defendant has the burden of coming forward initially with evidence,” 262 Ga. at 705, the state nevertheless “has the burden of persuasion in convincing the superior court that a defendant is not entitled to pretrial release.” 262 Ga. at 706. And a rule requiring us to affirm in cases of less-than-flagrant abuse of discretion would lack the principled justification underlying the rule that plain error review is limited to obvious error. See Guajardo v. State, 290 Ga. 172, 175-176 (4) (718 SE2d 292) (2011).

Decided May 29, 2014.

Thomas W. West, for appellant.

Daniel J. Porter, District Attorney, John A. Warr, Assistant District Attorney, for appellee.

Review for abuse of discretion is necessarily deferential: discretion is authority to choose. And our case law frequently reaffirms that the discretion afforded our trial courts is broad. See Krause v. State, 286 Ga. 745, 749 (5) (691 SE2d 211) (2010) (trial court has broad discretion to grant or deny motion for severance); Ogletree v. State, 300 Ga. App. 365, 366 (685 SE2d 351) (2009) (absent prosecutorial misconduct, trial court has broad discretion in deciding whether to grant a mistrial); Christopher v. State, 262 Ga. App. 257, 264 (6) (585 SE2d 107) (2003) (trial court has broad discretion in regulation and controlling the business of the court). So it seems to me that “flagrant” in this context is simply an intensifier — an exercise in lily gilding better avoided.

       At a magistrate court preliminary hearing, the DUI warrant was dismissed for insufficient evidence because the results of the blood test were still pending.

       There was some evidence that the vehicle, at this point, was no longer operable.

       The results of the blood test were not yet available at the time of the bond hearing. However, the State indicated at the hearing that it would pursue the DUI charge if the eventual results of the blood test indicated that Prigmore was intoxicated at the time of the accident.


text:
    A14A0387.
    JOHNSON et al. v. JONES.
    (759 SE2d 252)
   Phipps, Chief Judge.

Husband and wife DeRienzia and Vernice Johnson appeal the dismissal of their lawsuit against Michael Jones, M.D. Because the trial court correctly concluded that their claims were time-barred, we affirm.

On December 20, 2012, the Johnsons sued Jones for damages, delineating four counts in their complaint. Count 1 alleged that Vernice Johnson and Jones had entered into a patient-physician relationship; pursuant thereto, on June 11, 2006, Jones read a transvaginal ultrasound in order to diagnose Vernice Johnson’s condition; Jones misinterpreted the ultrasound, thereby failing to exercise the requisite degree of skill and care; consequently, Jones misdiagnosed Vernice Johnson’s normal intrauterine pregnancy as an ectopic pregnancy, which resulted in its termination and a dilation and curettage procedure; as a proximate result of the negligence by Jones, Vernice Johnson endured pain and suffering. Count 1 cited that an affidavit of another physician was attached to the complaint for compliance with OCGA § 9-11-9.1 (a), applicable in professional negligence cases.

Count 2, as described in the complaint, was brought “to recover for Defendant’s breach of his fiduciary duty.” Count 2 expressly incorporated specified allegations of Count 1. Additionally, Count 2 alleged that, on June 11, 2006, a patient-physician relationship existed between Vernice Johnson and Jones; that on that date, she underwent a transvaginal ultrasound, which was read by Jones; that Jones had a duty to properly diagnose her condition with a reasonable degree of care and skill; that the “physician-patient relationship Plaintiff Vernice Johnson had with Defendant gave rise to a fiduciary duty and Defendant’s failure to correctly read the ultrasound that was performed violated his fiduciary duty to Plaintiff”; that Jones had a fiduciary duty to read the ultrasound in a manner that was not negligent; and that she suffered damages “proximately caused by Defendant’s misdiagnosis of her pregnancy and breach of his fiduciary duty.”

Count 3 of the complaint incorporated previously stated allegations and charged Jones with “grossly negligent behavior” that entitled the Johnsons to punitive damages.

Count 4 of the complaint incorporated previously stated allegations and claimed that Jones’s negligence had caused DeRienzia Johnson the loss of consortium with his wife.

Jones filed a motion to dismiss, attacking all counts as premised upon a theory of medical malpractice, and hence, barred in light of the statute of repose set out in OCGA § 9-3-71. In pertinent part, that statute states:

(a) Except as otherwise provided in this article, an action for medical malpractice shall be brought within two years after the date on which an injury or death arising from a negligent or wrongful act or omission occurred. []
(b) Notwithstanding subsection (a) of this Code section, in no event may an action for medical malpractice be brought more than five years after the date on which the negligent or wrongful act or omission occurred. []
(c) Subsection (a) of this Code section is intended to create a two-year statute of limitations. Subsection (b) ofthis Code section is intended to create a five-year statute of ultimate repose and abrogation. []

Jones argued that all counts of the Johnsons’ complaint were barred by subsection (b) because the “negligent or wrongful act or omission” alleged — his misdiagnosis resulting from his negligent reading of the ultrasound — occurred in 2006, and the complaint was filed more than five years later, in 2012.

In response, the Johnsons agreed that any claim for medical malpractice was not viable after the expiration of the five-year statute of repose set forth in OCGA § 9-3-71 (b). Seeking to avert further application of that statute to their complaint, however, the Johnsons argued that their complaint included two distinct theories of recovery: (i) breach of fiduciary duty, set forth in Count 2; and (ii) loss of consortium, set forth in Count 4.

The trial court granted Jones’s motion, dismissing the complaint entirely. In this appeal, the Johnsons maintain that their complaint presented viable claims of breach of fiduciary duty and loss of consortium.

On appeal, we conduct a de novo review of a trial court’s ruling on a motion to dismiss. Our role is to determine whether the allegations of the complaint, when construed in the light most favorable to the plaintiff, and with all doubts resolved in the plaintiff’s favor, disclose with certainty that the plaintiff would not be entitled to relief under any state of provable facts.

1. As an initial matter, we note that the Johnsons do not contest the dismissal of Count l, which plainly asserted a claim of medical malpractice against Jones. The alleged “negligent or wrongful act or omission” — Jones’s misdiagnosis due to his inaccurate interpretation of an ultrasound—occurred in June 2006, triggering at that time the medical malpractice statute of repose. Given that the Johnsons filed their complaint in 2012, the medical malpractice claim (as set out in Count 1) was “barred by OCGA § 9-3-71 (b), which abrogates any action for medical malpractice brought more than five years after the date on which the negligent or wrongful act or omission occurred.”

2. The Johnsons contend that the trial court erred in striking Count 2, complaining that the trial court failed to broadly construe the allegations in their complaint in their favor so as to recognize that Count 2 presented a distinct “breach of fiduciary duty” theory of recovery. The Johnsons’ contention is without merit.

The statute of repose found in OCGA § 9-3-71 applies to “an action for medical malpractice.”

As used [therein], the term “action for medical malpractice” means any claim for damages resulting from the death of or injury to any person arising out of: (1) Health, medical, dental, or surgical service, diagnosis, prescription, treatment, or care rendered by a person authorized by law to perform such service or by any person acting under the supervision and control of the lawfully authorized person; or (2) Care or service rendered by any public or private hospital, nursing home, clinic, hospital authority, facility, or institution, or by any officer, agent, or employee thereof acting within the scope of his employment.

This court has recognized that a claim for breach of fiduciary duties — distinct from a claim of professional malpractice — may lie against a licensed professional.* But “[i]f a claim of negligence goes to the propriety of a professional decision,” then that “claim sounds in professional malpractice.” The gravamen of Count 2 was Jones’s alleged failure to correctly read the ultrasound and resulting failure to properly diagnose Vernice Johnson’s medical condition. Count 2 thus amounted to a claim of negligence that went to the propriety of Jones’s exercise of medical skill and judgment; that count sought damages for injury to Vernice Johnson arising out of “[h]ealth, medical, ... or surgical service, diagnosis, . . . treatment, or care”

Decided May 29, 2014.

Edwards & Youmas, Lonzy E Edwards, Brenda C. Youmas, for appellants.

Martin Snow, John C. Edwards, Richard A. Epps, Jr., for appellee.

rendered by Jones as her physician. Therefore, the trial court correctly construed Count 2 as an “action for medical malpractice” as contemplated by OCGA §§ 9-3-70 and 9-3-71 (b). And because that claim was barred by the statute of repose, the trial court properly dismissed it.

3. DeRienzia Johnson contends that the trial court erred by dismissing his claim for loss of consortium, set forth in Count 4. He asserts that the derivative claim was not premised upon medical malpractice (advanced in Count 1), but upon breach of fiduciary duty (advanced in Count 2). Given our holding in Division 2, this contention fails.

Judgment affirmed.

Ellington, P. J., and McMillian, J., concur.

       Regarding any applicable statute of limitation, the Johnsons alleged in their December 20, 2012 complaint that they had timely filed a prior “original action” against Jones, but such "original action” had been dismissed by operation of law on June 25,2012. See OCGA § 9-11-41 (e) (providing that an action is automatically dismissed if no written order is taken for a period of five years). The Johnsons took the position that their December 20,2012 complaint was filed within the renewal period and that, therefore, the claims pursued in their December 20, 2012 complaint were not barred by any statute of limitation. See id. (“When an action is dismissed under [OCGA § 9-11-41 (e)], if the plaintiff recommences the action within six months following the dismissal then the renewed action shall stand upon the same footing, as to limitation, with the original action.”). Notwithstanding, the Supreme Court of Georgia has held that “the legislature never intended for the dismissal and renewal statutes to overcome the statute of repose.” Wright v. Robinson, 262 Ga. 844, 846 (1) (426 SE2d 870) (1993); see Macfarlan v. Atlanta Gastroenterology Assocs., 317 Ga. App. 887, 891 (1), (2) (732 SE2d 292) (2012) (noting that “the statute of repose controls any attempt to renew a medical malpractice action”).

       (Emphasis supplied.)

       (Emphasis supplied.)

        Lyon v. Schramm, 291 Ga. App. 48, 49 (661 SE2d 178) (2008) (citations and punctuation omitted), aff’d, Schramm v. Lyon, 285 Ga. 72 (673 SE2d 241) (2009).

       Also, the Johnsons have set forth no argument contesting the dismissal of Count 3, seeking punitive damages.

        Kaminer v. Canas, 282 Ga. 830, 834 (1) (653 SE2d 691) (2007) (holding that the statute of repose began running when plaintiff’s doctors first failed to diagnose and treat the medical condition); Lyon, 291 Ga. App. at 49 (noting that “the statute of repose begins to run when an act of negligence is committed”); Christian v. Atha, 267 Ga. App. 186, 187 (598 SE2d 895) (2004) (“Because the statute of repose is unrelated to the accrual of the cause of action, it runs from the date on which the negligent or wrongful act or omission occurred without regard to when the injury arising from the negligent or wrongful act or omission occurred or was discovered.”) (citations and punctuation omitted).

        Macfarlan, supra at 890 (1) (a) (citations and punctuation omitted); see Wright, supra (explaining that the statute of repose stands as an “unyielding barrier to a plaintiff’s right of action” and “destroys the previously existing rights so that, on the expiration of the statutory period, the cause of action no longer exists”) (citation omitted); Christian, supra at 187-188 (concluding that the statute of repose barred the medical malpractice suit, where action was filed more than five years after the date on which the last negligent or wrongful act or omission attributable to the defendants occurred).

       See Lyon, 291 Ga. App. at 49.

       OCGA § 9-3-71 (b).

       OCGA § 9-3-70; see Blier v. Greene, 263 Ga. App. 35, 37 (1) (a) (587 SE2d 190) (2003) (explaining that for purposes of the statute of repose, “medical malpractice” is defined in OCGA § 9-3-70).

       See, e.g., Blier, supra at 36, 39 (2) (explaining that where “claims are founded upon [defendant’s] breach of trust rather than on negligent or wrongful acts involving his performance of psychiatric services, they are not barred by the statute of repose”; concluding that claim of breach of fiduciary duty was not barred by the medical malpractice statute of repose, where claim alleged that a licensed psychologist “placed his hands and mouth on the intimate parts of the body of Plaintiff. . . without her consent”) (emphasis supplied).

        Baskette v. Atlanta Center for Reproductive Medicine, 285 Ga. App. 876, 880 (3) (648 SE2d 100) (2007) (punctuation andfootnote omitted); see Bradway v. American Nat. Red Cross, 263 Ga. 19, 22-23 (426 SE2d 849) (1993) (holding that where plaintiffs’ injury — exposure to HIV — stemmed from alleged failure of Red Cross screening procedures to eliminate high risk donors effectively, and was not based on any failure of Red Cross workers to implement established procedures properly, claim was for medical malpractice, because screening procedures were the product of medical knowledge and judgment); Blackwell v. Goodwin, 236 Ga. App. 861, 864 (2) (513 SE2d 542) (1999) (determining that claims of battery, negligent hiring, supervision, retention, and entrustment were barred by medical malpractice statute of repose, where claims arose from an intramuscular injection administered by a nurse in the exercise of her professional skill and judgment); Thompson v. Long, 225 Ga. App. 719, 720-721 (3) (484 SE2d 666) (1997) (physical precedent only) (rejecting plaintiff’s argument that claim for “simple negligence” was not barred by medical malpractice statute of repose, where the complaint alleged that all injuries resulted from physician’s professional malpractice during an emergency C-section). Compare Blier, supra at 38 (1) (a) (concluding that claim seeking recovery for “sexual assault andbattery” was notharredhy medical malpractice statute of repose, where the underlying facts alleged “intentional, forcible, nonconsensual” conduct that did not involve the exercise of professional judgment and therefore could not be construed as medical or professional malpractice).

       OCGA § 9-3-70.

       See Stafford-Fox v. Jenkins, 282 Ga. App. 667, 670-671 (2) (639 SE2d 610) (2006) (holding that, despite being denominated as a claim for breach of fiduciary duty, the claim “alleging that [physician] was negligent because he failed to diagnose and treat the B-12 deficiency stated a cause of action for medical malpractice under OCGA § 9-3-70 for damages arising out of acts or omissions involving his medical skill and judgment,” and thus the claim was subject to the time limitation set forth in OCGA § 9-3-71); see also Baskette, supra at 880-881 (4) (rejectingplaintiff’s argument that claim asserted “simple negligence” and thus did not fall within ambit of OCGA § 9-3-70, where the claim “arose out of” a decision involving the exercise of medical skill and judgment and therefore sounded in professional negligence). Accord Paulin v. Okehi, 264 Ga. 604 (449 SE2d 291) (1994) (recognizing as presenting a medical malpractice action, allegations that doctor deviated from the standard of care by performing a substandard sonogram, incorrectly interpreting the results, and failing to diagnose a tubal pregnancy, resulting in the rupture and removal of patient’s fallopian tube). Compare Blier, supra at 36, 39 (2).

       See Baskette, supra; Stafford-Fox, supra.

       See Division 1, supra.

       See generally Douberly v. Okefenokee Rural Elec. Membership Corp., 146 Ga. App. 568, 570 (3) (246 SE2d 708) (1978) (“One spouse’s right of action for the loss of the other’s society or consortium is a derivative one, stemming from the right of the other.”).

       Supra.

       See Christian, supra at 186, n. 1 (holding that the loss of consortium claim failed, where it was derivative of a medical malpractice claim barred by the statute of repose).