text:
    A13A1788.
    HAYNES v. THE STATE.
    (756 SE2d 599)
   McMlLLIAN, Judge.

Darrion Haynes appeals the denial of his motion for new trial following his conviction by a jury of rape, attempt to commit child molestation, and enticing a child for indecent purposes. On appeal, he asserts that the State failed to prove that he was guilty of rape beyond a reasonable doubt, that the trial court erred in rejecting his request to strike a juror for cause, and that he received ineffective assistance of counsel. Finding no error, we affirm.

Viewed in the light most favorable to the verdict, the evidence showed that Haynes was S. M.’s older half-brother; they shared the same father but different mothers. S. M. lived with her mother, but in 2006, when she was ten to eleven years old, she often spent the night with her paternal grandparents while her mother underwent chemotherapy. During this period, Haynes also stayed with the grandparents “off and on.”

One day in late 2006, during one of S. M.’s visits to the grandparents’ home, she was sitting on the bed in her grandfather’s bedroom playing a video game when Haynes joined her. Everyone else was out of the house. After briefly discussing the video game, Haynes lay down on the bed and began to pull his pants down. He then hugged S. M. to him, and restraining her hands, put his penis inside the child’s vagina (the “First Incident”). S. M. testified that she did not want Haynes to have sex with her, and when Haynes penetrated her, it hurt and she felt nauseated.

Haynes also attempted to have sexual relations with S. M. on another occasion. S. M. testified that Haynes came to where she was sleeping at the grandparents’ house and asked her to come into the kitchen to make him something to eat. Everyone else in the house was asleep. S. M. climbed on top of the washing machine to reach some food items, and when she climbed down, Haynes pushed her against the washing machine. S. M. pushed back. As they tussled, they fell to the floor, and Haynes began removing his pants and trying to get on top of her. They continued to struggle, and S. M. eventually was able to get away by kicking and pushing Haynes. She said that she did not tell anyone about these incidents because she was scared of her family’s reaction since they all liked Haynes.

Afterward, S. M.’s mother observed that S. M. was acting strangely. She did not want to go to her grandparents’ house, her grades slipped, she did not want to sleep alone, and she repeatedly went to the bathroom. S. M.’s mother took her to a pediatrician to address the urinary issues on March 12,2007. S. M. and her mother reported that she had vaginal itching and a “white, watery, foul discharge.” S. M. initially told both the doctor and her mother that she had not been sexually active, but the doctor diagnosed her with a sexually transmitted disease (“STD”). The doctor further testified that although she found no fissures or tearing in S. M.’s genital area, such findings were not inconsistent with sexual abuse. On the ride home, S. M. told her mother about the incidents with Haynes, and the mother called the doctor to relay this information. The doctor reported the matter to police.

Dr. Jennifer Hopkins-Naylor of the Georgia Center for Child Advocacy later interviewed S. M., and the videotaped interview was playedfor the jury. During that interview, S. M. stated that just before the First Incident, Haynes tried to lay on top of her, and she told him to get off. She told Hopkins-Naylor that Haynes “forced his penis inside [her] vagina” during the First Incident and that she pulled away from Haynes and pushed him off the bed onto the floor. She said the incident made her feel “sick.”

Haynes also testified in his own defense and denied having sexual relations with S. M. Both Haynes and his girlfriend also denied ever having an STD. But S. M.’s doctor testified that individuals, especially men, who contract the particular STD at issue could be asymptomatic, meaning they showed “absolutely no symptoms.”

1. Haynes argues that the State failed to present sufficient evidence on the requisite element of force to support his conviction for rape.

Under Georgia law, “[a] person commits the offense of rape when he has carnal knowledge of . . . [a] female forcibly and against her will[.]” OCGA § 16-6-1 (a) (1). Applying this statute, the Supreme Court of Georgia has interpreted the terms

“forcibly’ and “against her will,” as two separate elements in rape cases. The term “against her will” means without consent; the term “forcibly” means acts of physical force, threats of death or physical bodily harm, or mental coercion, such as intimidation. The fact that a victim is under the age of consent may supply the “against her will” element in a forcible rape case since it shows that the victim is incapable of giving legal consent. The same fact cannot supply the element of force as a matter of law in rape cases ....

(Citations omitted.) State v. Collins, 270 Ga. 42, 42-43 (508 SE2d 390) (1998). Thus, it is well settled that “the state must prove the element of force to obtain a conviction for forcible rape of a victim under the age of consent,” id. at 42; Drake v. State, 239 Ga. 232, 233 (236 SE2d 748) (1977), but who are ten years of age or older. Nevertheless, “the quantum of evidence to prove force against a child is minimal.” Collins, 270 Ga. at 44-45. And such force may be proven by direct or circumstantial evidence. Wightman v. State, 289 Ga. App. 225, 228 (656 SE2d 563) (2008).

Here, the victim, who was ten or eleven years old at the pertinent time, testified at trial that she did not want Haynes to have sex with her, nor did she ask him to have sex. Instead, she was sitting alone in her grandfather’s bedroom playing a video game, with no one else in the house, when Haynes came into the room. He then hugged the child to him, restrained her hands and “forced” his penis inside her. This action hurt S. M. and made her feel sick. She pulled away from Haynes and then pushed him off the bed onto the floor. Under these circumstances, we find the evidence sufficient to authorize a finding of force within the meaning of OCGA § 16-6-1 (a) (1). See Bradberry v. State, 297 Ga. App. 679, 681 (1) (678 SE2d 131) (2009) (victim’s description of intercourse as “painful authorized the jury to infer [the] sexual act was perpetrated by use of physical force”) (citation and punctuation omitted); Roberts v. State, 242 Ga. App. 621 (530 SE2d 535) (2000) (considering the circumstances surrounding the rape, evidence supported finding of requisite force even though no physical evidence of sexual assault and victim testified that she was scared based upon what she had seen in the movies not based on any action or statement of defendant); Casey v. State, 237 Ga. App. 461, 462 (3) (515 SE2d 429) (1999) (ten-year-old victim’s testimony that she did not want defendant to have sex with her and she did not ask him to do it, along with evidence that she asked him to stop, was sufficient to prove force).

Moreover, the victim’s testimony was corroborated at trial by her mother’s observations of her behavior following the incidents, as well as evidence that she had contracted an STD. Even though no evidence existed that Haynes or his girlfriend had this disease, the doctor testified that it was often asymptomatic. And although the victim’s genital area showed no sign of tearing or fissures, the doctor testified that this lack of evidence was not inconsistent with sexual assault. See Watson v. State, 304 Ga. App. 128, 130-131 (695 SE2d 416) (2010) (State does not have to prove that a victim was physically injured to prove rape; victim’s testimony alone may be sufficient).

Based upon this and other evidence at trial, we find that the jury was authorized to find Haynes guilty of rape beyond a reasonable doubt.

2. Haynes next asserts that the trial court erred in failing to excuse a juror for cause after the juror indicated that she had been a victim of child molestation, that she was not impartial, that she had already formed an opinion about guilt or innocence, and that she would expect the defense to prove Haynes’s innocence.

Before a juror can be disqualified for cause, it must be shown that an opinion held by the potential juror is so fixed and definite that the juror will be unable to set the opinion aside and decide the case based upon the evidence or the court’s charge upon the evidence. The decision to strike a juror for cause lies within the sound discretion of the trial court, and that decision will not be disturbed absent an abuse of discretion.

(Citation omitted.) Foster v. State, 271 Ga. App. 426, 428 (2) (609 SE2d 751) (2005).

During voir dire, Juror No. 23 testified that when she was six years old, she was sexually assaulted by the son of her school’s principal, who was sixteen or seventeen years old at the time. She did not report the incident until she was a teenager. She testified that she had already formed an opinion about guilt or innocence, she was not impartial, and that “you would have to convince me of innocence.” The prosecutor then asked her whether she could do what the law required and put the burden of proof on the State if the trial court instructed her that the State had that burden, that the defense was not required to prove anything or to put up any evidence, and that the defendant was not required to testify. She replied, “I would — of course I would have to I guess as you keep saying compartmentalize and try and be impartial. I wouldn’t want to, but I could.” She indicated that she thought she could be fair and impartial. In response to defense questioning, Juror No. 23 reiterated that she could “compartmentalize,” but she did not want to and she did not believe that she was the right juror for the case.

The defense subsequently asked that Juror No. 23 be stricken for cause, but the trial court denied the request. The judge explained:

I think she said that she could compartmentalize, [but] she doesn’t want to. If we left it up to the jurors, we would have three of them serving, if we said who wants to. Most folks always indicate they don’t [want to] be here. And particularly these charges, nobody wants to do it. So the question is can you do it. She said she could. So I’ll leave her.... [I]f she can do it, she can do it. She’s on the jury.

Thus, “the trial court reasoned that the [juror’s] comment did not establish a bias or a fixed belief in the guilt or innocence of the accused, but rather reflected a common opinion of jurors in this type of case involving a difficult and unpleasant subject.” Pearce v. State, 300 Ga. App. 777, 780 (2) (686 SE2d 392) (2009).

It is well settled that

[a] potential juror’s doubts as to his or her own impartiality or reservations about his or her ability to set aside personal experiences do not require the court to strike the juror, as the judge is uniquely positioned to observe the juror’s demeanor and thereby to evaluate his or her capacity to render an impartial verdict.

Brown v. State, 243 Ga. App. 632, 633 (1) (534 SE2d 98) (2000). Rather, “[a] juror who expresses a willingness to ‘try’ to be objective and whose bias arises from feelings about the particular crime as opposed to feelings about the accused may be eligible for service.” (Footnotes omitted.) Id.

Despite Juror No. 23’s initial reaction to the charges in the case, she never indicated any bias against Haynes personally. Moreover, she indicated that she could put aside her prior life experiences and try to be fair and impartial. Accordingly, we find no abuse of discretion. See Pearce, 300 Ga. App. at 781 (2) (no abuse of discretion in case involving charges of aggravated sexual battery, child molestation, and statutory rape where juror indicated that he had been a victim of child molestation, but nevertheless thought he “probably could” be fair and impartial); Foster v. State, 271 Ga. App. 426 (609 SE2d 751) (2005) (no abuse of discretion in trial court’s failure to excuse juror, who was the mother of a child molestation victim and who was scheduled to testify the same week in the perpetrator’s trial, where juror indicated that she could be fair and impartial). Compare Garduno v. State, 299 Ga. App. 32, 33-34 (2) (682 SE2d 145) (2009) (finding abuse of discretion in failure to excuse former child abuse investigator who often interviewed child molestation victims, who was trained “to believe the victim is telling the truth,” and who, although she believed she should could be fair and impartial, indicated a persistent bias in favor of child victims).

3. Haynes further asserts that he received ineffective assistance of counsel because his trial attorney failed to test the adversarial process by not utilizing an expert to testify about the problems with the forensic interview of the victim; by failing to cross-examine the forensic interviewer on her interviewing techniques and potential bias for the prosecution; by not addressing the impact those questions would have had on the victim; and by not cross-examining the victim on her inconsistent statements.

In order to prevail on this claim, [Haynes] must show both that counsel’s performance was deficient, and that the deficient performance was prejudicial to his defense. To meet the first prong of the required test, he must overcome the strong presumption that counsel’s performance fell within a wide range of reasonable professional conduct, and that counsel’s decisions were made in the exercise of reasonable professional judgment. The reasonableness of counsel’s conduct is examined from counsel’s perspective at the time of trial and under the particular circumstances of the case. To meet the second prong of the test, he must show that there is a reasonable probability that, absent any unprofessional errors on counsel’s part, the result of his trial would have been different. We accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.

(Citations and punctuation omitted.) Norton v. State, 293 Ga. 332, 337 (7) (745 SE2d 630) (2013). See also Strickland v. Washington, 466 U.S. 668 (104 SCt 2052, 80 LE2d 674) (1984).

Haynes has the burden of proof under both prongs of this test. Brown v. State, 239 Ga. App. 674, 675 (1) (522 SE2d 41) (1999). But “[w]e are not required to address both the deficient performance and prejudice prongs of the test if the defendant has made an insufficient showing on either one of them.” (Citation and punctuation omitted.) Burger v. State, 323 Ga. App. 787, 788 (748 SE2d 462) (2013). Moreover,

[t]he standard regarding ineffective assistance of counsel is not errorless counsel and not counsel judged ineffective by hindsight, but counsel rendering reasonably effective assistance. In determining what constitutes ineffective assistance, a critical distinction is made between inadequate preparation and unwise choices of trial tactics and strategy. Particularly in regard to matters of trial strategy and tactic, effectiveness is not judged by hindsight or result.

(Citation omitted.) Davis v. State, 290 Ga. 584, 587 (2) (b) (723 SE2d 431) (2012).

At the hearing on the motion for new trial, the evidence showed that at the time of Haynes’s trial, his trial attorney had been engaged in criminal defense work for approximately 14 years and had worked on approximately 30 cases involving crimes such as rape or child molestation. Haynes was adamant that he did not commit the crimes, and the trial strategy was to emphasize the “many inconsistencies” in the victim’s statements, as well as the surrounding factual circumstances that would seem to have made it impossible for Haynes to have committed the crimes. Trial counsel explained that the inconsistencies were not limited to the forensic interview; rather, S. M.’s story “[did not] add up based on just common sense” and the layout and circumstances of the crime scene.

(a) Failure to call expert witness — Haynes asserts that his trial counsel erred in failing to call an expert witness to testify as to flaws in Dr. Hopkins-Naylor’s interviewing technique and thus in failing to address the potential effect those questions may have had on the victim.

But trial counsel testified that he was trying another case with similar charges at around the same time he was handling Haynes’s case, and he contacted a psychologist for consultation as a potential expert in both cases. The expert did not prepare written reports, but approximately one year after the expert received the case files, trial counsel spoke with him on the phone. They discussed both cases at the same time, and trial counsel recalled that the expert had more concerns with the inconsistencies in one case than in the other. He commented on the number of leading questions in one of the videotaped victim interviews, and he also discussed the suggestibility of, and flaws in, the interviewing technique with regard to one of the videos. At the hearing, however, trial counsel could not recall which of the two cases caused the expert more concern.

Trial counsel could not recall why he did not put the expert he had retained on the stand, but he did not use the expert for either of the two cases. He conceded that it was possible that he chose not to call the expert because he did not want to give undue influence to the interviewing techniques, but rather wanted to focus on the inconsistencies in the victim’s story.

It is well established that the decision as to which defense witnesses to call is a matter of trial strategy and tactics; tactical errors in that regard will not constitute ineffective assistance of counsel unless those errors are unreasonable ones no competent attorney would have made under similar circumstances.

(Citations omitted.) Dickens v. State, 280 Ga. 320, 321 (2) (627 SE2d 587) (2006). “Although expert testimony concerning interviewing techniques of children is admissible in molestation cases, the decision on whether to call an expert witness is one of trial strategy.” (Citation and punctuation omitted.) Towry v. State, 304 Ga. App. 139, 147 (2) (f) (695 SE2d 683) (2010). “Trial strategies do not equate to ineffective assistance merely because appellate counsel would have pursued a different strategy.” (Citations omitted.) Pearce, 300 Ga. App. at 786 (7) (a).

We find that Haynes failed to carry his burden of demonstrating that the failure to call the expert constituted deficient performance. Although his trial attorney could not remember the specific reasons he chose not to call the expert, he made that decision shortly after speaking with him, suggesting that he could have made that decision based on his chosen trial strategy. We agree that reasonable, competent trial counsel could have made the strategic decision not to call the expert based on what counsel learned in his interview of the expert and the anticipated trial strategy to focus on inconsistencies in the victim’s statements. Accordingly, we find no ineffective assistance of counsel on this ground. See Wade v. State, 305 Ga. App. 382, 386 (2) (c) (700 SE2d 827) (2010) (decision not to present expert testimony about the proper techniques for interviewing children not ineffective assistance of trial counsel where decision was part of trial strategy).

(b) Failure to cross-examine forensic interviewer ■—Similarly, we find no merit to Haynes’s contention that his trial counsel was deficient in failing to cross-examine Dr. Hopkins-Naylor on her interviewing technique. Trial counsel did not recall why he did not pursue this line of cross-examination, but he said that “what jumped out at [him]” from the interview were the inconsistencies and not necessarily the interviewing techniques. He also acknowledged that the techniques employed were similar to those he had seen in other forensic interviews of sexual abuse victims. He further recalled that S. M.’s story changed dramatically during the middle of the interview, but he was not sure that this was due to the interviewing techniques or her just changing her story. Although it appeared to trial counsel that Dr. Hopkins-Naylor “had to lead [S. M.] a little bit” to get her to say Haynes had sexual intercourse with her, his primary focus in reviewing the videotape was the many inconsistencies in the victim’s story. Moreover, we note that trial counsel addressed the leading nature of the forensic interview during his closing argument. Again, we find that Haynes has failed to establish that trial counsel was not acting in accord with a reasonable trial strategy.

(c) Failure to cross-examine victim — Trial counsel also testified that he did not cross-examine the victim regarding the inconsistencies in her statement because to him the inconsistencies seemed “pretty obvious.” He recalled that the victim was “all over the place,” just “one inconsistency after another.”

Although trial counsel did not specifically cross-examine the victim on inconsistencies in her statements, he said he thought these inconsistencies were obvious from the videotape and her trial testimony. Thus, trial counsel’s “method of cross-examination was a matter of tactics and trial strategy.” Brogdon v. State, 262 Ga. App. 673, 675 (2) (586 SE2d 344) (2003). Moreover, trial counsel thoroughly addressed the claimed inconsistencies in his closing argument to the jury. Under these circumstances, we find that Haynes failed to establish that his trial attorney’s performance was deficient. See id. at 675 (2) (trial counsel’s failure to cross-examine witness on inconsistencies in his testimony was trial strategy where he addressed the issue in another manner); Williams v. State, 239 Ga. App. 598, 599 (2) (521 SE2d 650) (1999) (failure to cross-examine witness on inconsistencies in testimony not deficient performance where the alleged inconsistencies were apparent from the direct examination, because further cross-examination on this issue may have been superfluous and potentially harmful in that the witnesses may have been able to explain the inconsistencies).

Decided March 19, 2014.

S. Cindy Wang, for appellant.

Robert D. James, Jr., District Attorney, Deborah D. Wellborn, Assistant District Attorney, for appellee.

Accordingly, we affirm the trial court’s denial of Haynes’s motion for new trial on the ground of ineffective assistance of counsel.

Judgment affirmed.

Andrews, P. J., and Dillard, J., concur.

        Jackson v. Virginia, 443 U.S. 307 (99 SCt 2781, 61 LE2d 560) (1979).

       The doctor explained that the child’s hymen was not intact “per se,” hut that the area appeared to be undergoing a softening that occurs as a female transitions from pre-puberty to puberty, which makes the hymen less visible.

       “Collins was superseded by statute as stated in State v. Lyons, 256 Ga. App. 377, 378-379 (568 SE2d 533) (2002), but Collins’ reasoning applies here inasmuch as [S. M.] was under the statutory age of consent but not less than ten years of age.” (Citation and punctuation omitted.) Thomas v. State, 306 Ga. App. 8, 9, n. 2 (701 SE2d 525) (2010).

       Under OCGA § 16-6-1 (a) (2), “carnal knowledge of . . . [a] female who is less than ten years of age” is rape without regard to proof of lack of consent and force.

       The expert did not testify at the motion hearing, hut Haynes’s appellate counsel made a proffer of the expert’s expected testimony.


source: Caselaw Access Project

author: DOYLE, Presiding Judge.

license: Public Domain

text:
    A13A1817.
    THE STATE v. SNEAD.
    (756 SE2d 581)
   DOYLE, Presiding Judge.

Jeffrey Brian Snead was charged with possession of a controlled substance and possession of a firearm during the commission of a felony. Snead filed a motion to suppress the evidence based on an illegal search of his vehicle, and the trial court granted the motion. The State appeals, arguing that the trial court erred by granting Snead’s motion to suppress. For the reasons that follow, we reverse.

In Miller v. State, [] [the Supreme Court of Georgia] reiterated three fundamental principles which must be followed when conducting an appellate review of a trial court’s ruling on a motion to suppress. 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 [the] 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. These principles apply equally whether the trial court ruled in favor of the State or the defendant.

So viewed, the record shows that on July 26, 2011, a report of a suspicious vehicle was made to the Gwinnett County Police Department. The caller reported that a white pickup truck with the door open was parked near an intersection, and the caller was concerned because the vehicle had not left for some time.

When the officers arrived, they observed that the truck was parked near other vehicles at a multi-family residence near the side of the road. Snead was lying across the seat of the truck when the officers approached, and he leaned over to close the open vehicle door after being awoken by the officer’s headlights. The first officer on the scene was Jonathan Hensley, who testified that he approached the truck from the driver’s side and asked Snead what he was doing, to which Snead responded that he was visiting a friend.

Officer Hensley noticed that Snead appeared to be impaired, was jittery and visibly shaking during the encounter, seemed confused, and had thick and slurred speech. While speaking with Snead, Officer Hensley noticed an empty gun holster tucked above the seat of the truck. Officer Hensley asked Snead if he had a weapon in the vehicle based on his observation of the holster, but Snead stated that the holster belonged to a friend, and that no weapon was in the vehicle.

During Officer’s Hensley’s conversation with Snead, Officer Michael Croyle arrived on the scene and approached the truck from the passenger’s side of the vehicle. As he looked into the open, passenger-side window of the truck, Officer Croyle observed a silver handgun beside Snead’s hand, in a location that would not be visible to Officer Hensley, and Officer Croyle called out the officer code word to alert Officer Hensley of the weapon’s existence. At that point, Snead grabbed the weapon by the handle with his finger in the trigger guard, and both officers drew their service weapons and commanded Snead to drop the weapon. Officer Hensley testified, “both of us drew our weapons because we didn’t know what he was doing. We didn’t know if he was going to shoot someone or what. Obviously, that’s a kind of hostile motion to pick up a gun in the presence of two cops for what appeared to be no reason.” Snead dropped the weapon, and Officer Hensley removed Snead from the vehicle from the driver’s side and walked him to the rear of the vehicle, but did not cuff him. Officer Hensley testified that while he had Snead outside the vehicle, Officer Croyle then entered the vehicle “to secure the weapon” so that “it was no longer an issue as to what was going on.”

Officer Croyle, on the other hand, testified that as he was outside the vehicle, he saw a pipe containing what appeared to be marijuana residue on the seat by the firearm, and a spoon with what appeared to be a white powdery substance on the floorboard next to the area of the seat upon which the gun and pipe were located. Officer Croyle testified that he then opened the passenger-side door to retrieve the contraband pipe and spoon, and he searched the passenger compartment of the vehicle, finding in the glovebox several needles, small baggies, and empty prescription bottles, one of which contained an Oxycodone pill.

After the hearing on the motion to suppress, the trial court granted the motion, finding that Officer Croyle was not authorized to open the passenger door of the vehicle to secure the weapon and finding that the drug paraphernalia was not in plain view from outside the vehicle.

The U. S. Supreme Court has explained that an officer is authorized to perform a warrantless search of the passenger compartment of an automobile, inter alia, when (1) “an arrestee is within reaching distance of the vehicle or it is reasonable to believe the vehicle contains evidence of the offense of arrest”; (2) the officer has a reasonable suspicion that the occupant, whether an arrestee or not, is “ ‘dangerous’ and might access the vehicle to gain immediate control of weapons”; or (3) “there is probable cause to believe a vehicle contains evidence of criminal activity.”

In its order, the trial court stated that “there were several conflicts in the testimony of the officers, [] especially as it related to the issue of whether contraband was in plain view such that Officer Croyle would have had probable cause to search the vehicle.” The Court further stated that

[a]fter observing both officers testify and judging the credibility of the officers, the Court finds that Officer Hensley’s testimony was most credible. The Court finds as a matter of fact[ ] that contraband was not observed prior to the vehicle door being opened by Officer Croyle and his search thereafter. Therefore, the Court finds that probable cause was lacking to authorize the search of the Defendant’s vehicle.
The Court finds that at the time Officer Hensley removed the Defendant from the truck and escorted him to the back of the truck, there was no longer any danger posed by the unconcealed gun; there had been no crime committed [,] and there were no exigent circumstances that would justify Officer Croyle opening the passenger door of the truck, nor that would justify a warrantless search of the vehicle. There was no lawful basis for the warrantless search and seizure.

Thus, the trial court found not credible Officer Croyle’s testimony that he viewed the pipe and spoon from outside the vehicle before opening the passenger door, and it concluded that the officer was not authorized to open the vehicle door. Although this Court may have found otherwise in the trial court’s position, it is not the function of this Court to second guess the credibility determinations of the trial court.

Nevertheless, the trial court erred by finding that Officer Croyle was not authorized to open the passenger door of the vehicle in order to secure the weapon simply because Snead had been removed from the interior of the vehicle. Officer Hensley, the officer whom the trial court found more credible, testified that Snead was not handcuffed while Officer Croyle was opening the passenger-side door to retrieve the weapon, and that Officer Croyle’s act of doing so was “simultaneous” to Hensley’s removal of Snead from the truck. But even accepting the trial court’s finding that Officer Hensley had removed Snead to the rear of the vehicle by the time Croyle opened the door and secured the weapon, Officer Croyle was authorized to secure the weapon for the officers’ safety because Snead was not handcuffed at that point according to Officer Hensley.

Moreover, Michigan v. Long, and its progeny authorized Officer Croyle to perform a further search of the passenger compartment of the vehicle for other weapons, independent of whether any drug paraphernalia was in plain view. Although the trial court found that Officer Croyle entered the vehicle to seize the pipe and spoon, the entry into the vehicle was authorized to secure the known weapon and conduct a Terry-style protective sweep for others, and the officer’s potentially ulterior motive of searching for contraband does not play a part in our Fourth Amendment analysis. The testimony of both officers that Snead had to be told to drop the weapon while they had their service weapons drawn and pointed at him, regardless of whether he had to be told once or twice, removes this from the line of cases in which officers did not have the appropriate reasonable belief to support entering the vehicle to secure a weapon and complete a search of the passenger compartment on the basis of officer security. When Officer Croyle “discover [ed] contraband other than weapons, he [was not] required to ignore the contraband, and the Fourth Amendment does not require its suppression in such circumstances.”

Decided March 19, 2014.

Daniel J. Porter, District Attorney, Jennifer M. Taylor, Assistant District Attorney, for appellant.

Phyllis Miller, for appellee.

Judgment reversed.

McFadden and Boggs, JJ., concur.

       OCGA § 16-13-30 (a).

       OCGA § 16-11-106 (b) (4).

       We note that the motion itself contains only a general allegation that the search of the automobile was conducted without a warrant and was therefore unconstitutional. Snead amended his motion to state that the vehicle was searched after Snead was removed from it and without any lawful basis for doing so.

       288 Ga. 286 (702 SE2d 888) (2010).

       (Citation and punctuation omitted.) Brown v. State, 293 Ga. 787, 802-803 (3) (b) (2) (750 SE2d 148) (2013).

        Arizona v. Gant, 556 U. S. 332, 346-347 (IV) (129 SCt 1710, 173 LE2d 485) (2009). See also Boykins v. State, 290 Ga. 71, 73 (2) (717 SE2d 474) (2011).

       We note that the conflicts in the testimony found in the trial court’s order consist of (1) the discrepancy of the timing of when Officer Croyle noticed the weapon beside Snead — Officer Hensley testified it “was within [five] seconds” of Officer Croyle approaching the vehicle, and Officer Croyle testified that it “was within a minute”; and (2) the discrepancy of the number of times Snead was told to drop the weapon once he picked it up - Officer Hensley testified that he “did so immediately,” and Officer Croyle testified that “it took several commands before [he] complied.” We note that Officer Hensley testified to how many times that he ordered Snead to comply and did not testify to how many times Officer Croyle ordered Snead to comply.

       See Brown, 293 Ga. at 802-803 (3).

       The trial court did not make an explicit finding regarding whether Snead was handcuffed prior to the entry into the vehicle.

       See Culpepper v. State, 312 Ga. App. 115, 121-122 (717 SE2d 698) (2011). See also Silva v. State, 278 Ga. 506, 508 (604 SE2d 171) (2004), quoting Michigan v. Long, 463 U. S. 1032, 1047 (III) (103 SCt 3469, 77 LE2d 1201) (1983) (“[Ijnvestigative detentions involving suspects in vehicles are especially fraught with danger to police officers.”); Megesi v. State, 277 Ga. App. 855, 857-859 (2) (627 SE2d 814) (2006) (physical precedent only).

       463 U. S. at 1049-1050 (III) (holding that “the search of the passenger compartment of an automobile, limited to those areas in which a weapon may be placed or hidden, is permissible if the police officer possesses a reasonable belief based on specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant the officer in believing that the suspect is dangerous and the suspect may gain immediate control of weapons. The issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger”) (punctuation omitted).

       See Gant, 556 U. S. at 346-347 (IV); Boykins v. State, 290 Ga. at 73 (2).

       Officer Hensley, who the court noted was “more credible,” testified that Officer Croyle opened the passenger door to secure the weapon while Hensley was detaining Snead outside the vehicle.

       See Cotton v. State, 237 Ga. App. 18 (513 SE2d 763) (1999). See also Whren v. United States, 517 U. S. 806, 813 (II) (A) (116 SCt 1769, 135 LE2d 89) (1996) (“the fact that the officer does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officer’s action does not invalidate the action taken as long as the circumstances, viewed objectively, justify that action.”) (punctuation omitted).

       Compare with Bell v. State, 295 Ga. App. 607, 611 (2) (672 SE2d 675) (2009) (Doyle, J.) (no furtive movements by the occupant or other indications of danger to an officer which would justify a search for weapons in a limited area in which a weapon may be placed or hidden); State v. Jones, 289 Ga. App. 176, 178-179 (657 SE2d 253) (2008) (affirming trial court’s order suppressing a reasonable articulable suspicion to seize a firearm from the defendant’s vehicle based on the mere existence of the weapon in the vehicle without more).

        Long, 463 U. S. at 1050. See Culpepper, 312 Ga. App. at 121-122; Silva, 278 Ga. at 508-509; Megesi, 277 Ga. App. at 857-859 (2).


author: Miller, Judge.

text:
    A13A2190.
    TUTTLE v. BOARD OF REGENTS OF THE UNIVERSITY SYSTEM OF GEORGIA.
    (756 SE2d 585)
   Miller, Judge.

Garry L. Tuttle sued the Board of Regents of the University System of Georgia (the “BOR”), alleging that the BOR terminated him in retaliation for his whistleblower activities in violation of the Georgia Whistleblower Act (“GWA”), OCGA § 45-1-4. The trial court granted the BOR’s motion for summary judgment, finding that Tuttle filed his claim outside the one-year statute of limitation period and that there was no evidence that the BOR retaliated against Tuttle for engaging in protected activity. Tuttle appeals, contending that there are disputed issues of material fact concerning whether (1) the complaint was barred by the applicable statute of limitations, (2) he disclosed specific violations of law to the Georgia Perimeter College (“GPC”) administrators, and (3) his termination was a violation of the GWA. For the reasons that follow, we affirm.

On a motion for summary judgment, it is the movant’s burden to show that no jury question remains as to any material fact and that he or she is entitled to judgment as a matter of law. To obtain summary judgment, a defendant need not produce any evidence, but must only point to an absence of evidence supporting at least one essential element of the plaintiff’s claim. Our review of a grant of summary judgment is de novo, and we view the evidence and all reasonable inferences drawn from it in the light most favorable to the nonmovant.

(Citations and punctuation omitted.) Edmonds v. Bd. of Regents of the University System of Ga., 302 Ga. App. 1, 2 (689 SE2d 352) (2009).

So viewed, the evidence shows that Tuttle became GPC’s Deputy Chief of Police on August 1, 2007. In the summer of 2008, GPC President Anthony Tricoli discussed the possibility of Tuttle finding a position for a long-time friend Todd Adams, whom Tricoli described as having a criminal record that included several DUI arrests and a domestic violence charge. Tuttle advised Tricoli that, due to Adams’s criminal history, Adams could not be hired as a sworn police officer at GPC, he could not become a certified law enforcement officer in Georgia, and, under federal law, he could not carry a gun as a police officer. Tuttle suggested that Tricoli find another position for Adams. Tuttle sent Adams a background packet, which would have been necessary for further employment, however, Adams did not complete or return the required forms. Nevertheless, in April 2010, GPC hired Adams into a non-sworn position in Public Safety as interim Emergency Operations Chief.

In September 2008, a GPC student complained to GPC officials that she was being stalked. A GPC officer investigated the accusations and concluded that they were not supported by probable cause. Tuttle reviewed the case and the investigator’s findings, concurring with the investigator that there was no probable cause to believe a crime was committed. Tricoli, GPC Executive Vice President for Financial Administrative Affairs Ronald Carruth and GPC Ombudsman Karen Truesdale became involved in the investigation after the student visited Tricoli to state her belief that GPC police had been looking at her funny and possibly following her around. Tuttle subsequently e-mailed his supervisor, stating that the student was likely exhibiting psychotic behavior and that Tricoli should stay out of police business.

In October 2008, officers with the GPC Police Department investigated a campus laptop theft and thereafter obtained a warrant to arrest a GPC student. The suspect’s mother complained about the actions of the GPC public safety officers to Truesdale, who told the student’s mother she would check into the matter. Truesdale then e-mailed her supervisor, James Rasmus, as well as GPC Police Chief Christopher Albers, Tuttle, Carruth and GPC’s legal advisor of the mother’s visit and asked for copies of all police reports filed in the matter. Tuttle voiced concerns to Carruth and Truesdale that Trues-dale was interfering with Tuttle’s criminal case, and that it was improper for her to investigate what he believed were police matters. Carruth considered whether Truesdale’s review of GPC Public Safety’s handling of the laptop theft investigation and the GPC criminal investigation into the theft could occur simultaneously, and, concluding both investigations should go forward, directed Truesdale to continue her review of GPC Public Safety. Carruth also asked Tuttle and Albers to contact the local district attorney (“DA”) to inquire as to whether GPC could make a recommendation in the case, such as whether the suspect’s charges could be changed, dismissed, or reduced from a felony to a misdemeanor. Tuttle advised Carruth that prosecutions are solely handled by the DA, and while GPC could inform the DA that the college supported a certain course of action, it could not ask the DA to dismiss the charges.

On February 20, 2009, Carruth issued Tuttle two written reprimands for his handling of the stalking incident, referencing concerns over Tuttle’s disrespect for the Office of the GPC President and Tuttle’s statements regarding the student’s mental status.

In April 2009, Tricoli, Truesdale, Rasmus, and Sheletha Champion, GPC Senior Financial Operations Officer, met to discuss concerns over Tuttle and other GPC Public Safety. It was decided at the meeting that GPC did not want hard-core street cops, and Ms. Champion noted that “Tuttle is not a good fit — he’s gotta go [sic]; can’t get with the program, too much street cop.” Truesdale subsequently advised Rasmus that Tuttle should be told that his leadership style and philosophy are not congruent with the mission of GPC and that, coupled with the need to optimize the limited personnel budget funds, his position would be terminated in order to meet other staffing needs.

On June 2,2009, Tuttle was advised verbally and in writing that, effective July 31, 2009, the position of Deputy Chief of Public Safety would be eliminated due to an organizational restructuring to improve efficiency and effectiveness. In August 2010, Tuttle filed suit against the BOR, claiming that his employment was terminated in retaliation for his refusing to participate in practices of officials acting on behalf of GPC, specifically the laptop investigation, the stalking incident, and the hiring of Adams for the position of Emergency Operations Chief. This appeal ensued.

1. Tuttle argues that the trial court erred in granting BOR summary judgment because there are disputed issues of material fact regarding whether the complaint was filed within the statute of limitation. We disagree.

(a) Tuttle maintains he was not aware he had been retaliated against until the end of2009, when his former supervisor advised him that GPC had retaliated against him. We disagree.

OCGA § 45-1-4 (a) (5) provides:

“Retaliate” or “retaliation” refers to the discharge, suspension, or demotion by a public employer of a public employee or any other adverse employment action taken by a public employer against a public employee in the terms or conditions of employment for disclosing a violation of or noncompliance with a law, rule, or regulation to either a supervisor or government agency.

Furthermore,

[a] public employee who has been the object of retaliation... may institute a civil action in superior court for relief . . . within one year after discovering the retaliation or within three years after the retaliation, whichever is earlier.

OCGA § 45-1-4 (e) (1).

In this case, resolution of whether Tuttle’s complaint was timely turns on the meaning of the phrase “discovering the retaliation.” OCGA § 45-1-4 (e) (1). “When a statute contains clear and unambiguous language, such language will be given its plain meaning and will be applied accordingly.” (Citations omitted.) Opensided MRI of Atlanta v. Chandler, 287 Ga. 406, 407 (696 SE2d 640) (2010).

There is no dispute that, on June 2, 2009, Tuttle discovered that his position was to be terminated effective July 31, 2009. Although the issue of accrual of a cause of action under the GWA has not been specifically addressed in Georgia, it is well settled that

when the question is raised as to whether an action is barred by a statute of limitation, the true test to determine when the cause of action accrued is to ascertain the time when the plaintiff could first have maintained his action to a successful result. Mere ignorance of the facts constituting a cause of action does not prevent the running of the statute of limitation, for a plaintiff must exercise reasonable diligence to learn of the existence of a cause of action.

(Citation and punctuation omitted.) Sandy Springs Toyota v. Classic Cadillac Atlanta Corp., 269 Ga. App. 470, 471-472 (1) (604 SE2d 303) (2004). Here, Tuttle’s cause of action accrued and the one-year limitation period began to run on June 2, 2009, when Tuttle first discovered the retaliation in question, namely, that his position was to be terminated. See Stokes v. Savannah State University, 291 Fed. Appx. 931, 932 (2008 U.S. App. LEXIS 18624) (11th Cir. 2008) (employee discovered retaliation on the date he received his supervisor’s letter of termination, or at the latest on the date the president of the university affirmed the decision to terminate).

(b) Tuttle further contends that the statute was tolled due to fraud. We find his argument unpersuasive.

OCGA § 9-3-96, which provides for the tolling of the applicable limitations period for a defendant’s fraud, states that “[i]f the defendant or those under whom he claims are guilty of a fraud by which the plaintiff has been debarred or deterred from bringing an action, the period of limitation shall run only from the time of the plaintiff’s discovery of the fraud.”

Because [OCGA § 9-3-96] provides for a departure from the general rule, requiring] actual fraud involving moral turpitude or breach of a duty to disclose because of a relationship of trust and confidence, and does not toll the statute unless the fraud is distinguishable from that giving rise to the cause of action, it must be strictly construed.

Trust Co. Bank v. Union Circulation Co., 241 Ga. 343 (245 SE2d 297) (1978).

There are two circumstances in which actual fraud will toll the statute of limitation applicable to a cause of action. See Rai v. Reid, 294 Ga. 270, 272 (1) (751 SE2d 821) (2013). The first is where the actual fraud is the gravamen of the action, and the second is when a separate and independent fraud involving moral turpitude hinders a plaintiff from bringing an action. Id.

Here, the gravamen of Tuttle’s action is his termination by the BOR, not an artifice by which the BOR deceived him. Moreover, even if GPC concealed the reasons for Tuttle’s termination, Tuttle failed to show that he exercised reasonable diligence in discovering any cause of action. “[T]he plaintiff must have exercised reasonable diligence to discover the cause of action, notwithstanding the failure to discover within the statute of limitation.” (Citation omitted.) Wilson v. Obstetrics & Gynecology of Atlanta, 304 Ga. App. 300, 306 (2) (696 SE2d 339) (2010). While Tuttle stated that he was informed by his former supervisor in late November or early December 2009 that the elimination of Tuttle’s position was in fact retaliatory, Tuttle repeatedly acknowledged that he suspected and believed the action to be retaliatory at the time he was informed of the termination of his position. Despite this awareness, Tuttle points to no record evidence showing that he exercised any attempt to discover whether he was being terminated in retaliation for engaging in protected activity. See Wilson, supra, 304 Ga. App. at 306 (2).

Decided March 19, 2014.

Donald C. English, for appellant.

Samuel S. Olens, Attorney General, Shelley S. Seinberg, Assistant Attorney General, for appellee.

(c) Further, although Tuttle argues that the one-year limitation period was tolled by his compliance with the ante litem notice requirement in the Georgia Tort Claims Act (“GTCA”), his argument is without merit.

The GTCA states that a notice of claim is only required in instances in which a person, firm or corporation has a “tort claim against the state under this article.” (Emphasis supplied.) OCGA § 50-21-26 (a) (1). Moreover, the right of action provided in the GWA is a waiver of Georgia’s sovereign immunity that is separate and independent of the waiver in the GTCA. See Colon v. Fulton County, 294 Ga. 93, 95 (1) (751 SE2d 307) (2013) (affirming this Court’s holding that OCGA § 45-1-4 sets forth a specific waiver of sovereign immunity); see also Pattee v. Ga. Ports Auth., 477 FSupp.2d 1253, 1269 (S.D. Ga. 2006) and Moore v. Gabriel, 2005 U.S. Dist. LEXIS 36202, *14-15) (M.D. Ga. 2005). Tuttle’s claim was brought under the GWA, which does not contain an ante litem notice requirement. Compare OCGA § 45-1-4 with OCGA § 50-21-26 (a) (1). Consequently, we hold that the statute of limitation under the GWA was not tolled while Tuttle’s ante litem notice was pending.

2. Since Tuttle’s complaint was filed outside the statutory limit, we need not consider the issue of whether his complaint stated a claim under the GWA.

Judgment affirmed.

Barnes, P. J., concurs. Ray, J., concurs in judgment only.


text:
    A13A2316.
    TOOMBS v. ACUTE CARE CONSULTANTS, INC. et al.
    (756 SE2d 589)
   Miller, Judge.

Jacqueline Toombs brought the instant medical malpractice action against Dr. Bruce Friedman, nurse practitioner Gena Mark-waiter and Acute Care Consultants, Inc. (collectively the “Defendants”), alleging that they were negligent in providing medical care following her late husband’s surgery and that this negligence led to his death. The Defendants moved for summary judgment on the ground that no jury question remained following the disqualification of Toombs’s sole expert witness. The trial court granted the Defendants’ motion for summary judgment, and Toombs appeals from that order. Toombs contends that her expert met all the criteria of OCGA § 24-7-702 (c) in terms of education, training and experience. After a thorough review of the law and facts in this case, we reverse.

On appeal from the grant of summary judgment this Court conducts a de novo review of the evidence to determine whether there is a genuine issue of material fact and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.

(Citation and punctuation omitted.) Campbell v. The Landings Assn., 289 Ga. 617, 618 (713 SE2d 860) (2011).

So viewed, the evidence shows that, on September 18, 2006, Toombs’s husband, Charles Toombs, Jr., suffered a chemical burn to his left foot while working at his job as a chemical technician. On September 23, 2006, Charles was admitted to Doctor’s Hospital in Augusta, Georgia, where he underwent surgery to excise his wound and to apply a skin graft. Following his surgery, Charles was prescribed Lovenox, a medicine used to prevent blood clotting, because he was at high risk for deep vein thrombosis (“DVT”).

Subsequently, Charles was readmitted to the hospital and underwent a second skin-graft surgery on October 4, 2006. Following his surgery on that day, Charles was examined by Dr. Friedman and nurse practitioner Markwalter. Dr. Friedman’s post-surgery assessment and care plan provided that Charles would be increasingly mobilized in order to attempt to prevent DVT. Markwalter deposed that Charles’s mobilization plan would have included turning side-to-side and sitting up in the bed, sitting on the side of the bed and moving his legs and arms. Dr. Friedman did not, however, prescribe Lovenox following Charles’s second surgery.

On the day after his surgery, Charles was able to get out of the bed and sit in a chair. Occupational therapists also administered in-bed physical therapy that day to help increase Charles’s range of motion. On October 6,2006, the second day after his surgery, Charles stood up on crutches with the help of a physical therapist. Charles walked about ten feet with assistance and use of the crutches before he told the therapist that he was in pain, felt dizzy, had difficulty breathing and wanted to return to his bed. Charles went into respiratory distress, stopped breathing and could not be resuscitated. Charles died from a DVT blood clot that formed in his leg, broke loose and traveled to his lungs where it became a pulmonary embolism (“PE”).

Toombs subsequently filed this action, alleging that the Defendants were negligent in providing medical care to her husband following his surgery. Toombs supplemented her complaint with an affidavit from Dr. Michael S. Oleksyk, who opined that Charles was at significant risk for DVT and PE because he was over 40 years old and significantly obese, he had undergone surgery lasting more than 30 minutes under general anesthesia, he was bed-bound for more than 40 hours, and his leg was immobilized with an Ace wrap which restricted the venous blood flow in the leg. Dr. Oleksyk further opined that the Defendants’ failure to evaluate Charles’s increased risk of DVT and failure to take measures to decrease that risk constituted substandard care.

The Defendants filed a motion to disqualify Oleksyk on the ground that he was not qualified under OCGA § 24-7-702 (c) to testify regarding the standard of care applicable to the treatment of a post-surgical burn care patient who had undergone skin graft surgery. The trial court granted the Defendants’ motion to disqualify Oleksyk from giving testimony regarding the standard of care applicable to Friedman and Markwalter, and this Court denied Toombs’s application for interlocutory review.

In her sole enumeration of error, Toombs contends that the trial court erred in granting summary judgment to the Defendants. Specifically, Toombs argues that the trial court confused Georgia law as to the specialty or practice of medicine relevant to this case, and that OCGA § 24-7-702 (c) authorizes the admission of Oleksyk’s stricken testimony. We agree.

The issue of the admissibility or exclusion of expert testimony rests in the broad discretion of the court, and consequently the trial court’s ruling thereon cannot be reversed absent an abuse of discretion. Under Daubert,[ ] disputes as to an expert’s credentials are properly explored through cross-examination at trial and go to the weight and credibility of the testimony, not its admissibility.

(Citations and punctuation omitted.) Agri-Cycle LLC v. Couch, 284 Ga. 90, 93 (5) (663 SE2d 175) (2008).

In order to survive the Defendants’ motion for summary judgment on her medical malpractice claim, Toombs had to present expert testimony that the Defendants deviated from the applicable standard of care. See Vaughan v. WellStar Health System, 304 Ga. App. 596, 602 (4), n. 20 (696 SE2d 506) (2010); Bowling v. Foster, 254 Ga. App. 374, 377 (562 SE2d 776) (2002). OCGA § 24-7-702 (c) sets forth the statutory criteria for the qualification of experts in medical malpractice cases. That statute pertinently provides:

[I]n professional malpractice actions, the opinions of an expert, who is otherwise qualified as to the acceptable standard of conduct of the professional whose conduct is at issue, shall be admissible only if, at the time the act or omission is alleged to have occurred, such expert:
(1) Was licensed by an appropriate regulatory agency...; and
(2) In the case of a medical malpractice action, had actual professional knowledge and experience in the area of practice or specialty in which the opinion is to be given as the result of having been regularly engaged in:
(A) The active practice of such area of specialty of his or her profession for at least three of the last five years, with sufficient frequency to establish an appropriate level of knowledge, as determined by the judge, in performing the procedure, diagnosing the condition, or rendering the treatment which is alleged to have been performed or rendered negligently by the defendant whose conduct is at issue; or
(B) The teaching of his or her profession for at least three of the last five years as an employed member of the faculty of an educational institution accredited in the teaching of such profession, with sufficient frequency to establish an appropriate level of knowledge, as determined by the judge, in teaching others how to perform the procedure, diagnose the condition, or render the treatment which is alleged to have been performed or rendered negligently by the defendant whose conduct is at issue; and
(C) Except as provided in subparagraph (D) of this paragraph:
(i) Is a member of the same profession . . . ; and
(D) Notwithstanding any other provision of this Code section, an expert who is a physician and, as a result of having, during at least three of the last five years immediately preceding the time the act or omission is alleged to have occurred, supervised, taught, or instructed nurses, nurse practitioners, certified registered nurse anesthetists, nurse midwives, physician assistants, physical therapists, occupational therapists, or medical support staff, has knowledge of the standard of care of that health care provider under the circumstances at issue shall be competent to testify as to the standard of that health care provider. . . .

OCGA § 24-7-702 (c).

Thus, in order to qualify as an expert in a medical malpractice case under OCGA § 24-7-702 (c),

the witness must (1) have actual knowledge and experience in the relevant area through either active practice or teaching and (2) either be in the same profession as the defendant whose conduct is at issue or qualify for the exception to the same profession requirement set forth in subparagraph (c) (2) (D). Under the exception, a proffered expert who is a physician is permitted to qualify as an expert as to a non-physician health care provider, but only if she has knowledge regarding the relevant standard of care as a result of having supervised, taught, or instructed such non-physician health care providers.

(Citation and punctuation omitted.) Hankla, supra, 293 Ga. at 694-695. Moreover,

the expert must have regularly engaged in the active practice of the area of specialty in which the opinion is to be given and must have done so with sufficient frequency to establish an appropriate level of knowledge in performing the procedure, diagnosing the condition, or rendering the treatment which is alleged to have been performed or rendered negligently by the defendant whose conduct is at issue.

(Punctuation and footnote omitted.) Nathans v. Diamond, 282 Ga. 804, 806 (1) (654 SE2d 121) (2007).

In order to determine whether OCGA § 24-7-702 (c) authorizes the admission of Oleksyk’s stricken testimony, “it is necessary in this case to accurately state both the area of specialty at issue and what procedure or treatment was alleged to have been negligently performed.” (Citation omitted.) Anderson v. Mountain Mgmt. Sucs., 306 Ga. App. 412, 414 (1) (702 SE2d 462) (2010); see also Cotten v. Phillips, 280 Ga. App. 280, 284 (633 SE2d 655) (2006) (it is essential that expert have actual professional knowledge and experience in area of specialty in which the opinion is to be given). This Court has concluded that the area of specialty is dictated by the allegations in the complaint, not the apparent expertise of the treating physician. Mays v. Ellis, 283 Ga. App. 195, 198 (1) (b) (641 SE2d 201) (2007); see also Anderson, supra, 306 Ga. App. at 415 (1) (area of specialty at issue and treatment allegedly performed negligently can be gleaned from complaint and attached affidavit).

In this case, the complaint and Oleksyk’s affidavit make clear that the alleged negligence was the Defendants’ failure to evaluate, diagnose and properly treat Charles for an increased risk of DVT and PE while he was in the hospital and immobolized with a bandage around his leg that restricted the blood flow. Accordingly, the area of specialty in this case concerns the standard of care applicable to DVT prophylaxis in a hospitalized patient who is at increased risk for DVT and PE.

Here, the evidence showed that Oleksyk had 22 consecutive years of experience during which he treated hundreds of people in the hospital who are at risk for DVT and PE. Additionally, the evidence showed that Oleksyk has been an assistant clinical professor at the Florida State University College of Medicine for three consecutive years, he has given over 450 lectures on DVT and PE during the past ten consecutive years and he was one of the co-developers of the first DVT protocol in the United States. This evidence was more than sufficient to find that Oleksyk possessed the requisite knowledge and experience under OCGA § 24-7-702 (c) to offer an opinion on the area of specialty in this issue. Therefore, we hold that the trial court abused its discretion in granting the Defendants’ motion to disqualify Oleksyk as an expert in this case.

Decided March 19, 2014.

William R. McCracken, Leon Larke, for appellant.

Tucker Long, Benjamin H. Brewton, for appellees.

Accordingly, we reverse the grant of summary judgment to the Defendants, which was based on the trial court’s finding that Toombs had no competent expert who could testify as to a breach of the applicable standard of care.

Judgment reversed.

Barnes, P. J., concurs. Ray, J., concurs in judgment only.

       Toombs also sued Doctor’s Hospital of Augusta, Inc. and several other defendants who were involved in her husband’s medical treatment. The hospital and other defendants were dismissed from this case.

       OCGA § 24-7-702 (c) is the successor, under the new Georgia Evidence Code, to former OCGA § 24-9-67.1, which was in effect at the time the defendants filed their motion to disqualify Oleksyk. Because the current Code section is substantively identical to its predecessor, our analysis here applies equally to the previous and current versions of the statute. See Hankla v. Postell, 293 Ga. 692, n. 1 (749 SE2d 726) (2013).

       The Supreme Court of Georgia also denied Toombs’s subsequent petition for writ of certiorari. Toombs v. Acute Care Consultants, Inc., 2012 Ga. LEXIS 1012 (Case No. S12C0931, decided Oct. 1, 2012).

        Daubert v. Merrell Dow Pharmaceuticals, 509 U. S. 579 (113 SCt 2786, 125 LE2d 469) (1993).


author: Phipps, Chief Judge.

text:
    A13A2478.
    L. D. F. FAMILY FARM, INC. et al. v. CHARTERBANK.
    (756 SE2d 593)
   Phipps, Chief Judge.

Charterbank sued L. D. F. Family Farm, Inc. and Lindy Farmer, Jr., alleging that L. D. F. Family Farm had defaulted on a promissory note and Farmer had defaulted on his personal guaranty on the note. Charterbank moved for summary judgment, which the trial court granted. L. D. F. Family Farm and Farmer (collectively, “T -DP”) appeal from that ruling, contending that genuine issues of material fact remain regarding whether Charterbank violated its duty of good faith and fair dealing, whether the parties had mutually departed from the terms of the note, and whether “frustration of performance” excuses LDF’s default. Finding no merit in LDF’s claims, we affirm.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. A de novo standard of review applies to an appeal from a grant or denial of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

In June 2008, L. D. F. Family Farm (“Family Farm”), formerly known as L. D. F. Development, Inc., executed a promissory note to Neighborhood Community Bank (“Community Bank”) in the amount of $3,104,211.33; the note was a renewal of a 2007 note. Family Farm obtained the loan to purchase and develop subdivision property, and the debt was secured by the real property. Farmer executed a personal guaranty on the note. In June 2009, Community Bank went into receivership, and later that month, Charterbank purchased the promissory note and personal guaranty.

Family Farm defaulted on the note payments and, in July 2010, entered into a forbearance agreement with Charterbank (as assignee of Community Bank). Under the forbearance agreement, LDF pertinently agreed to pay on September 8,2011 all amounts due under the note, and Charterbank agreed to forbear exercising its default remedies under the loan agreements as long as the conditions of the forbearance agreement were satisfied. But LDF failed to make the payment, and the real property that served as security for the note was subsequently foreclosed upon. In December 2011, Charterbank purchased the property at the foreclosure sale for $1,309,000. After the court confirmed the sale, Charterbank filed this suit to recover the deficiency.

In moving for summary judgment, Charterbank produced, inter alia, the promissory note and personal guaranty; Charterbank pointed to evidence that Family Farm had executed the promissory note and Farmer had executed the guaranty, that Charterbank was the lender’s assignee, that LDF had defaulted on the note and guaranty, and that a balance was owed on the note after the foreclosure.

In its response, LDF conceded that it had executed the note and guaranty, and that it had failed to make payments as agreed. However, LDF contended that genuine issues of material fact remained because (1) there was evidence that Charterbank had violated the covenant of good faith and fair dealing implied in every contract; (2) the parties had mutually departed from the terms of the note; and (3) Charterbank had frustrated the purpose of the loan, thereby excusing LDF’s default. To support its position, LDF submitted Farmer’s affidavit, which pertinently outlined various oral promises the lenders’ agents had allegedly made to him from 2006 through December 2011.

On summary judgment, after the movant makes a prima facie showing of its entitlement to judgment as a matter of law, the burden then shifts to the respondent to come forward with rebuttal evidence. To do so, the respondent must set forth specific facts showing the existence of a genuine issue of disputed fact.

In a suit to enforce a promissory note, a plaintiff establishes a prima facie case by producing the note and showing that it was executed. “Once that prima facie case has been made, the plaintiff is entitled to judgment as a matter of law unless the defendant can establish a defense.” Similarly, in a suit on a personal guaranty, when the signature is admitted or established, production of the instrument entitles the holder to recover on it unless the defendant establishes a defense. Thus, under the circumstances presented here, Charterbank established a prima facie right to a recovery, and the burden shifted to LDF to establish a valid defense.

1. Regarding its defense based on the duty of good faith and fair dealing, LDF relied on Farmer’s affidavit. In it, Farmer averred that LDF had needed to borrow a particular sum of money to be able to purchase and develop the land; Community Bank had led him to believe that it would loan him that amount; he was told on the day of closing that the loan would be for a smaller amount than he had requested (enough money to purchase the property, but not enough to develop it); he proceeded with closing so that he would not lose earnest money he had paid to purchase the property; LDF defaulted on the payments due to its inability to develop and sell the subdivision lots as intended; the lender assured Farmer that it would continue to “work with” LDF; and the lender subsequently refused to extend the forbearance agreement beyond its termination date, rejected a short sale of the property, and foreclosed on the property.

Indeed, “every contract imposes upon each party a duty of good faith and fair dealing in its performance and enforcement.” “But the covenant [of good faith and fair dealing] cannot be breached apart from the contract provisions it modifies and therefore cannot provide an independent basis for liability.” Here, as explained below, there was no independent basis for Charterbank to be held liable.

A promissory note is an unconditional contract whereby the maker engages that he will pay the instrument according to its tenor. It is well established that a promissory note may not be modified by the imposition of conditions not apparent on its face. The note being an unconditional promise, the contract is complete as written. Parol evidence may not be used to impose conditions which are not apparent from the face of the note. An oral agreement between the parties, made contemporaneously with the execution of the note or prior thereto relating to a condition not expressed in the note is incompetent to change the contract as represented on the face of the note.

LDF unconditionally contracted with Charterbank’s assignor to pay the note and guaranty according to the documents’ terms, and Charterbank established a prima facie case for enforcement of the note and guaranty. LDF could not modify the note and guaranty by imposing conditions not apparent on the faces of the agreements.

Parol evidence is inadmissible to add to, take from, or vary a written contract. In the absence of fraud, accident or mistake an unconditional promissory note cannot be changed into a conditional obligation by parol evidence. Where the terms of the contract are clear and unambiguous, the court will look to the contract alone to find the intention of the parties.

Although LDF maintained that it expected or was promised the loan in a larger amount, it is undisputed that the amount of the loan was known at closing and that LDF closed anyway. And, LDF renewed the loan thereafter. “[T]he renewal of a note cuts off all defenses of which the maker then had knowledge.”

LDF did not claim that the terms of the contracts were ambiguous, did not introduce evidence of fraud, accident or mistake, and nothing in the contracts required the lender to “work with” LDF before enforcing its collection rights under the note and guaranty. In fact, in the forbearance agreement, LDF acknowledged that Charter-bank had “the right to exercise any and all remedies available to Lender under the terms of the Loan Agreement[ ],” and that, in consideration of the forbearance, LDF had “no legal defenses to its obligations under the Loan Agreement[ ].” The purported oral representations were inconsistent with the terms of the written contracts, which required any modifications to be in writing. There being no genuine issue of material fact regarding Charterbank’s breach of a specific covenant, Charterbank was entitled to summary judgment.

2. In its opposition to the summary judgment motion, LDF cited Farmer’s affidavit to support its defense that the parties had mutually departed from the terms of the note (thus, LDF posited, Charter-bank was precluded from enforcing the contracts without notifying LDF of its intent to return to the original terms of the contracts). Farmer averred that after LDF “fell behind” on its loan payments, an officer for Charterbank approached LDF about a forbearance agreement and stated that if LDF continued to market and maintain the property, posted a maintenance bond, and platted the plots, Charter-bank would “work with” LDF on the loan, and would be willing to renew the forbearance agreement when it expired if LDF had not found a buyer for the property by that time; therefore, in good faith, LDF maintained and marketed the property as Charterbank had requested.

“[T]he conduct of the parties may be sufficient to alter the terms of an original agreement when there is evidence of a mutual, rather than unilateral, intention to depart from or disregard such terms.” “As a general rule, evidence of acceptance by a creditor of repeated, late, irregular payments from a debtor creates a factual question as to the formation of a quasi new agreement.” However, the evidence in this case shows without dispute that LDF had fallen behind on its payments and then failed to pay the loan on its maturity date at the end of the forbearance period. Given the lack of evidence that Charterbank had agreed to nonpayment, LDF failed to show a mutual departure from the terms of the agreements.

3. Finally, LDF asserted that it was excused from performance under the contracts because the principal purpose of the note (to wit, to purchase and develop a subdivision) had been frustrated — due to no fault of LDF. In his affidavit, Farmer averred that when he executed the note (on LDF’s behalf) and guaranty, he had assumed that the economy would continue to prosper, and that Community Bank would hold and renew the note; but the housing market faltered, Community Bank closed, and Charterbank did not “work with” LDF as promised.

Under OCGA § 13-4-23, “[i]f the nonperformance of a party to a contract is caused by the conduct of the opposite party, such conduct shall excuse the other party from performance.” “Thus, to constitute a defense to this action, [LDF’s] nonperformance must have been caused by conduct of [Charterbank or its assignor] which made [its] performance useless or impossible. Nothing in this record, however, raises the issue that [Charterbank or its assignor] made [LDF’s] performance useless or impossible.”

Notably, notwithstanding Charterbank’s agent’s purported oral statement to Farmer that “we may have to extend this forbearance agreement [;] [b]ut we’ll address that when we get there,” Charter-bank was not required to extend the forbearance agreement beyond that agreement’s termination date. The purported statement was not definitive, and the forbearance agreement that the parties executed provided that it was “a one-time forbearance and Lender does not presently intend to forbear beyond the date set forth above.” In a similar vein, a lender’s refusal to make a second loan, or misrepresentations that it would make a second loan, do not bar recovery of the amount owed under the first loan. Under the circumstances presented in this case, the trial court did not err by granting summary judgment to Charterbank.

Decided March 19, 2014.

J. Mark Brittain, for appellants.

Siegel & Golder, Mark L. Golder, for appellee.

Judgment affirmed.

Ellington, P. J., and Branch, J., concur.

        Carter v. Moody, 236 Ga. App. 262, 263 (511 SE2d 520) (1999) (citation and punctuation omitted).

        Myers v. First Citizens Bank & Trust Co., 324 Ga. App. 293, 294 (750 SE2d 378) (2013).

       Id. at 295 (1).

       Id. (citation and punctuation omitted).

        Heath v. Boston Capital Corporate Tax Credit Fund VIII, 253 Ga. App. 537, 538 (1) (559 SE2d 743) (2002).

       See id.; Myers, supra.

        Hunting Aircraft v. Peachtree City Airport Auth., 281 Ga. App. 450, 451 (1) (636 SE2d 139) (2006) (punctuation omitted).

        McGee v. Patterson, 323 Ga. App. 103, 112 (5) (746 SE2d 719) (2013) (citation and punctuation omitted); see Ceasar v. Wells Fargo Bank, 322 Ga. App. 529, 533 (2) (c) (744 SE2d 369) (2013).

        Lovell v. Ga. Trust Bank, 318 Ga. App. 860, 863 (2) (734 SE2d 847) (2012) (citation and punctuation omitted).

       See id. at 863-864 (2).

       Id. at 864 (2).

       Id. (citations and punctuation omitted).

        First Bank & Trust Co. v. Young, 202 Ga. App. 566, 567 (415 SE2d 18) (1992) (citation omitted).

       See Lovell, supra at 864 (2).

       Id. at 865 (2).

       See generally Secured Realty Investment v. Bank of North Ga., 314 Ga. App. 628, 630 (1) (b) (725 SE2d 336) (2012).

        Quintanilla v. Rathur, 227 Ga. App. 788, 791 (2) (490 SE2d 471) (1997) (citations omitted).

        Lewis v. Citizens & Southern Nat. Bank, 174 Ga. App. 847, 848 (2) (332 SE2d 11) (1985) (citations omitted).

       See Quintanilla, supra at 792 (2).

       Id.; Lewis, supra.

        Ott v. Vineville Mkt., 203 Ga. App. 80 (1) (416 SE2d 362) (1992) (citation omitted).

       See generally Bridges v. Reliance Trust Co., 205 Ga. App. 400, 402-403 (2) (422 SE2d 277) (1992) (“Unless an agreement is reached as to all terms and conditions and nothing is left to future negotiations, a contract to enter into a contract in the future is of no effect.” (citation and punctuation omitted)).

        Bridges, supra at 401 (1); see generally Stedry v. Summit Nat. Bank, 227 Ga. App. 511, 514-515 (1) (489 SE2d 862) (1997) (“Georgia’s Statute of Frauds [OCGA § 13-5-30 (7)] requires a signed writing for any commitment to lend money’; this rule applies not only to promises to lend “new” money, but promises to refinance existing debts).


text:
    A13A1714.
    ABI INVESTMENTS, LLC et al. v. FSGBANK, NATIONAL ASSOCIATION.
    (756 SE2d 606)
   Miller, Judge.

FSGBank, National Association, d/b/a Dalton Whitfield Bank (“DWB”) filed suit against ABI Investments, LLC (“ABI”) and ABI member/managersAlan S. Dover, Charles A. Edmondson, Joseph C. Hensley, Frank E. Jones, J. Ronald Knight, Tracey R. Newton, and Kenneth D. Warren (the “Individual Defendants”) to recover the principal and interest due on a promissory note. DWB filed a motion for summary judgment, which the trial court granted. On appeal, ABI and the Individual Defendants contend that the trial court erred in granting summary judgment to DWB. We agree and reverse.

On appeal from a grant of summary judgment, we conduct a de novo review of the evidence to determine if there exists a genuine issue of material fact and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, entitle the movant to judgment as a matter of law.

(Citation omitted.) Smith v. Atlantic Mut. Cos., 283 Ga. App. 349 (641 SE2d 586) (2007).

So viewed, the record shows that in September 2008, ABI executed a promissory note payable to DWB in the amount of $1 million (the “Note”). The purpose of the underlying loan was to purchase subordinated notes of Appalachian Community Bank (“Appalachian Bank”). The principal sum was to be advanced on September 30, 2008, with the first payment due on December 31, 2008. Subsequent payments were due semi-annually thereafter on June 30 and December 31. The unpaid balance of the loan was due and payable in September 2011.

The Note’s default provision specifically defines certain instances of default. In relevant part, the default paragraph states:

I will be in default if any one or more of the following occur: . . . (5) I . . . become insolvent (either because my liabilities exceed my assets or I am unable to pay my debts as they become due);... (7) I do or fail to do something which causes you to believe that you will have difficulty collecting the amount I owe you[.]

Upon default, the Note provides that DWB may demand immediate payment of all amounts due and owing under the Note. The Individual Defendants executed the Note in their capacity as member/managers of ABI.

ABI began loan repayments according to schedule, making its first payment on December 31, 2008. In April 2009 the Federal Deposit Insurance Corporation (“FDIC”) issued a cease and desist order to Appalachian Bank. On June 30, 2009, ABI made its second payment to DWB. In September 2009, representatives of DWB met with some of the Individual Defendants. During the meeting, no person said to DWB that ABI would not be able to perform under the Note as a result of the cease and desist order or for any other reason. In December 2009, after the closure of Appalachian Bank, ABI made its next scheduled payment on the Note.

On March 19, 2010, Appalachian Bank was closed by the FDIC. Only a few days later, DWB informed ABI and the Individual Defendants that, pursuant to the terms of the Note and OCGA § 11-1-208, all sums under the Note were immediately due and owing. Even though ABI was current on all its semi-annual payments, and no payments were due at the time that the Note was accelerated, DWB cited the closure of Appalachian Bank as an event that caused it to believe it would have difficulty collecting the amount owed.

In April 2010, DWB filed its complaint seeking judgments against ABI and the Individual Defendants in the principal amount of $924,995.36, plus interest of $8,427.73 and prejudgment interest. The trial court granted DWB’s motion for summary judgment, findingthatOCGA § 11-1-208 applied to the default provision ofthe note, and, as required by that statute, DWB had produced evidence supporting a good faith belief that the prospect of payment was impaired.

On appeal, ABI and the Individual Defendants contend that the trial court erred by granting summary judgment in DWB’s favor. For the reasons that follow, we agree.

When a promissory note, on its face, shows that it is past due and in default, the plaintiff establishes a prima facie right to judgment, and the burden shifts to the borrower to establish an affirmative defense. Speir v. Nicholson, 202 Ga. App. 405, 408 (2) (414 SE2d 533) (1992).

In this case, DWB failed to establish a prima facie right to judgment. Notably, the default subsection of the Note provides that a default will occur if ABI takes action or fails to take action that causes DWB to believe that ABI would have difficulty paying the amount owed. Here, the undisputed evidence shows that, at the time that DWB declared default, ABI was current on its payments. Moreover, DWB has failed to point to record evidence showing that ABI did or failed to do something that triggered the default provision.

Instead, DWB relies upon the fact that Appalachian Bank was closed by the FDIC and went into receivership. Appalachian Bank, however, is a distinct legal entity apart from ABI. See Augusta Tennis Club v. Richmond County, 219 Ga. App. 94, 95 (1) (464 SE2d 228) (1995) (although two corporations may have common shareholders, officers, and directors, each corporation is a legal entity retaining its separate and independent character). Accordingly, the actions of Appalachian Bank could not be attributable to ABI, notwithstanding the fact that they shared common members or directors. Id. at 95 (1).

Further, DWB argues that the call to accelerate payment falls under OCGA § 11-1-208. In relevant part, OCGA § 11-1-208 states:

A term providing that one party . . . may accelerate payment or performance . . . “at will” or “when he deems himself insecure” or in words of similar import shall be construed to mean that he shall have the power to do so only if he in good faith believes that the prospect of payment or performance is impaired. The burden of establishing lack of good faith is on the party against whom the power has been exercised.

Whether a party acted in good faith under OCGA § 11-1-208 is a question of fact for the jury. Crosson v. Lancaster, 207 Ga. App. 404, 406 (427 SE2d 864) (1993). Here, the evidence showed that ABI is a distinct legal entity apart from Appalachian Bank, that ABI was current on its payments at the time DWB declared default, and that DWB accelerated the note only a few days after Appalachian Bank closed without any further meetings with ABI. Accordingly, DWB has failed to demonstrate that there is no question of fact regarding whether it acted in good faith. See id. at 406 (material issue of fact created by conflicting evidence as to whether bank acted in good faith or in an arbitrary or capricious manner when it accelerated loans to “outstanding” customer with only occasional late payments). Under these circumstances, good faith is a question of fact for the jury.

Decided March 20, 2014.

Sutherland, Asbill & Brennan, Peter J. Anderson, Jaliya S. Faulkner, for appellants.

Minor, Bell & Neal, William F. Jourdain, Theodore S. Lu, Taylor English Duma, Stephen C. Greenberg, for appellee.

As a result, the trial court erred in concluding that DWB was entitled to declare default as a matter of law against ABI. Accordingly, we reverse.

Judgment reversed.

Barnes, P. J., and Ray, J., concur.

       The trial court subsequently entered an amended order excluding Jones from the trial court’s entry of summary judgment because he had properly filed a notice of bankruptcy and received a bankruptcy discharge.


author: MCFADDEN, Judge.

text:
    A13A1829.
    THE STATE v. MITCHELL.
    (756 SE2d 609)
   MCFADDEN, Judge.

A jury found Dantrell Mitchell guilty of driving under the influence of alcohol to the extent that it was less safe for him to drive, but the trial court granted his motion for new trial because the state had made references to his failure to take a breath test. The state appeals, arguing that its references to Mitchell’s failure to prove his innocence by taking that test did not improperly shift the burden of proof, that its comment that Mitchell’s failure to take the test created an inference that he was a less safe driver was not improper, and, that in any event, Mitchell waived any error by failing to object. We find, pretermitting whether Mitchell waived any error regarding the comment about the inference, that he did not waive any error regarding the comments about his failure to prove his innocence. And as those comments were improper, the trial court did not err in granting Mitchell’s motion for new trial. We therefore affirm.

1. Standard of review.

As an initial matter we must consider our standard of review. We are reviewing the trial court’s decision to grant a new trial to Mitchell on the ground that the assistant solicitor-general’s comments in the closing argument were improper. In her order granting the motion for new trial, the trial court heard no evidence and made no findings of fact. Under these circumstances, we do not apply the standard of review codified in OCGA § 5-5-50 (“The first grant of a new trial shall not be disturbed by an appellate court unless the appellant shows that the judge abused his discretion in granting it and that the law and facts require the verdict notwithstanding the judgment of the presiding judge”). See O’Neal v. State, 285 Ga. 361, 363 (677 SE2d 90) (2009). Instead, we review de novo a trial court’s conclusion on motion for new trial that legal error occurred at trial. Id. Cf. Ford Motor Co. v. Conley, 294 Ga. 530, 538 (2), n. 7 (757 SE2d 20) (2014) (explaining that the de novo standard of review does not apply to appellate review of the grant of an extraordinary motion for new trial that presented mixed questions of law and fact and on which the trial court had made factual findings).

2. Facts.

During the state’s closing argument, the assistant solicitor-general, in responding to Mitchell’s defense that he was sleeping in his car, not driving it, stated:

The officer conducted a field sobriety test. He tried to do the one-leg stand. He couldn’t. . . . That is not all. He had a chance to prove his innocence. No, I was sleeping. I was sleeping, officer. Okay. Well, you had a chance. Come downtown. Take this test. If it comes out less than the legal limit, go ahead. Free to go. Okay. No, I will not take the opportunity to prove my innocence.

Defense counsel requested a sidebar conference. The sidebar conference was unrecorded. But in her order granting the motion for new trial, the trial court wrote that defense counsel objected to the remarks, as well as to the state’s visual aid, a powerpoint with the same language, on the ground that they were burden shifting. The trial court also wrote that she had overruled Mitchell’s objection, noting that she had not instructed the state to remove the visual display.

The trial court instructed the assistant solicitor-general to repeat and clarify the court’s instruction that the state always had the burden of proof. In response, the assistant solicitor-general made the following comments:

Let me clarify to the jurors what I meant when I said he had a chance to prove his innocence. As you know and the court has already told you, today the burden is on us, the state, to prove beyond a reasonable doubt that he is guilty. But I’m clarifying on that day he had a chance to tell the officer no, what you think is wrong. I am not under the influence of alcohol to the extent I am less safe. My slurring, stumbling speech and driving off is not because I had too much to drink. He did not take the opportunity to relay that to the officer when he could have.

In its order granting Mitchell’s motion for new trial, the trial court found that this “clarification” went beyond the court’s direction and “possibly confused [the jury] over the presumption of the Defendant’s innocence at trial by the [sjtate’s repeated use of the phrase ‘had a chance to prove his innocence’ to prevent his arrest.”

3. Waiver.

The state argues that Mitchell waived any error in the closing argument because he did not object to the state’s comments after the sidebar conference or its argument about the inference to be drawn from his refusal of a breath test. Pretermitting whether Mitchell waived any error regarding the inference comments, the trial court expressly ruled that it had overruled his objection to the allegedly burden-shifting comments. “When an improper argument is made, opposing counsel may obtain appellate review of the trial court’s ruling simply by objecting. . . . [T]he defendant is not required to renew his objection or move for a mistrial after the trial court overrules the objection.” Bolden v. State, 272 Ga. 1, 2 (525 SE2d 690) (2000).

4. The state’s closing argument was impermissibly burden shifting.

The state argues that its closing argument that, by refusing the breath test, Mitchell failed to avail himself of the opportunity to “prove his innocence” was not improper. Rather, the state argues, it was simply a permissible comment on the inference to be drawn from Mitchell’s refusal to take the test. We disagree.

The case of Pinch v. State, 265 Ga. App. 1, 5 (4) (593 SE2d 1) (2003), involved a closing argument with similar comments. There, the solicitor-general

told the jury that if Pinch had taken the breath test, “it was a possibility whether he goes to jail or he’d have the opportunity to go home, depending on the test results. If he refused, he automatically would go to jail.” Defense counsel objected and the trial court sustained the objection. The solicitor-general then argued that if Pinch had taken the breath test, “it’s possible that he could have gone home that night.” Defense counsel again objected and the objection was sustained. The prosecutor later argued that if Pinch had taken the breath test, “there was a chance to show sobriety.”

Id. Pinch argued on appeal that the trial court should have granted his motion for a mistrial “because the solicitor-general had effectively told the jury that Pinch could have exonerated himself by taking the breath test.” Id. We agreed with Pinch that the state’s comments were improper and impermissibly shifted the burden of proof. Id. We nonetheless affirmed the denial of the motion for mistrial because the trial court had given the jury curative instructions.

Decided March 20, 2014.

Sherry Boston, Solicitor-General, WystanB. Getz, Assistant Solicitor-General, for appellant.

Stein & Ward, Erin H. Gerstenzang, for appellee.

Here, the comments were even more explicit: the state told the jury that Mitchell could have proven his innocence by taking a breath test, but chose not to do so. The trial court denied Mitchell’s objection and did not give curative instructions. Consequently, the trial court correctly concluded that it had erred at trial, and it properly granted Mitchell’s motion for new trial.

Judgment affirmed.

Doyle, P. J., and Boggs, J., concur.