author: Ray, Judge.

text:
    A13A0230.
    CLARK v. CITY OF ATLANTA.
    (744 SE2d 122)
   Ray, Judge.

Susan Clark appeals from the trial court’s grant of summary judgment to the City of Atlanta on her claim of negligence related to injuries she sustained when she tripped and fell on uneven sidewalk pavers. Clark contends that the trial court improperly granted the city’s motion because questions of fact remain as to whether the city had constructive notice of the alleged defect. For the reasons that follow, we reverse.

When ruling on a motion for summary judgment, the opposing party should be given the benefit of all reasonable doubt, and the court should construe the evidence and all inferences and conclusions therefrom most favorably to the party opposing the motion. Further, any doubts on the existence of a genuine issue of material fact are resolved against the movant for summary judgment. When this Court reviews the grant or denial of a motion for summary judgment, it conducts a de novo review of the law and the evidence.

(Citation omitted.) Roberts v. Connell, 312 Ga. App. 515, 516 (718 SE2d 862) (2011).

So viewed, the evidence shows that on February 20, 2009, Clark was standing on the sidewalk at the intersection of Peachtree Road and Lenox Road near Lenox Square Mall. When Clark took a step as she attempted to cross the street, her right shoe caught between uneven sidewalk pavers, and she fell into the roadway, breaking her hip and sustaining other injuries.

Clark then sued the city and several other entities not party to this appeal, alleging negligence. After a hearing, the trial court granted the city’s motion for summary judgment. On appeal, Clark argues that the trial court erred in concluding that she failed to present any evidence that the alleged defect existed for a sufficient length of time to create a jury issue as to whether the city had constructive notice. She also argues that the trial court erred in determining that the Google Street View photographs she presented failed to create a question of material fact as to whether the alleged defect existed for a significant period of time. OCGA § 32-4-93 (a) provides:

A municipality is relieved of any and all liability resulting from or occasioned by defects in the public roads of its municipal street system when it has not been negligent in constructing or maintaining the same or when it has no actual notice thereof or when such defect has not existed for a sufficient length of time for notice thereof to be inferred.

This Code section also applies to sidewalks. City of Vidalia v. Brown, 237 Ga. App. 831, 833 (1) (516 SE2d 851) (1999). Constructive notice of a defect may be imputed through the knowledge of the city’s employees or agents, or may be shown by testimony as to how long the defect existed prior to the injury, objective evidence that the defect existed over time, or evidence that others were injured as a result of the same condition over a period of years. Crider v. City of Atlanta, 184 Ga. App. 389, 389 (1) (361 SE2d 520) (1987). If a defect in a sidewalk has existed for such a length of time that by reasonable diligence in the performance of its duties, the city should have known of it, notice will be presumed. Godinho v. City of Tybee Island, 231 Ga. App. 377, 379 (2) (499 SE2d 389) (1998), rev’d on other grounds, City of Tybee Island v. Godinho, 270 Ga. 567 (511 SE2d 517) (1999), overruled in part on other grounds, Atlanta Committee for the Olympic Games, Inc. v. Hawthorne, 278 Ga. 116, 117-118, n. 3 (598 SE2d 471) (2004). The question of constructive notice ordinarily is for the jury, except in the absence of any evidence of constructive notice that could create a fact question, and in such an instance, the issue of negligence is a matter of law. Godinho, 231 Ga. App. at 379 (2). Further, the length of time a defect must exist in order for an inference of notice to arise is ordinarily a jury question. Schuessler v. Bennett, 287 Ga. App. 880, 886-887 (3) (652 SE2d 884) (2007).

Here, a de novo review of the evidence shows that on April 22, 2009, about two months after her injuries, photographs were taken of the location where Clark fell. The photographs show a stretch of uneven pavers, canted at various angles, across the entire width of the sidewalk. Clark also obtained Google Street View photographs, taken in October 2007 and August 2008, of the same section of sidewalk. Clark argues that a comparison of the photographs shows that the pavers had been in an uneven and defective condition for at least seven months.

Clark’s expert witness examined the photographs and estimated that there were variances in paver height between zero and two inches. The expert also deposed that Clark’s testimony referenced a wedge-shaped depression in the pavers, which is visible in the photographs taken two months after the injury, and that he saw a “corresponding shadow to that area” in a Google photograph taken about a year prior to the injury. While the Google photograph is not entirely clear, we are especially mindful in this case that “[e]ven slight evidence will be sufficient to satisfy the plaintiff’s burden of production of some evidence on a motion for summary judgment[.]” (Citation and punctuation omitted.) Dalton v. City of Marietta, 280 Ga. App. 202, 203 (633 SE2d 552) (2006). Here, when viewed in the light most favorable to Clark as the nonmoving party, such slight evidence exists. See Lee v. SunTrust Bank, 314 Ga. App. 63, 63 (722 SE2d 884) (2012) (to defeat a summary judgment motion, the non-moving party need not present conclusive proof but must only produce or point to specific evidence, even slight, giving rise to a triable issue of material fact). Therefore, we reverse the trial court’s grant of summary judgment.

Decided June 7, 2013.

Smith, Welch, Webb & White, John P. Webb, for appellant.

Laura S. Burton, Tressa P. Marryshow, for appellee.

Judgment reversed.

Barnes, P. J., and Miller, J., concur.

       The trial court also granted summary judgment to other parties to this action, but Clark does not appeal those portions of the order.

       We note that the City of Atlanta joined with other defendants in a motion to exclude Clark’s expert witness, alleging, inter alia, that he was not qualified as an expert in photographic analysis or computerized reconstruction. There is nothing in the record indicating that the trial court has ruled on that motion.


source: Caselaw Access Project

author: ANDREWS, Presiding Judge.

license: Public Domain

text:
    A13A0043.
    AHMED v. THE STATE.
    (744 SE2d 345)
   ANDREWS, Presiding Judge.

Following a joint jury trial in Emanuel County, El Waleed Ahmed was convicted of possession of cocaine with intent to distribute (OCGA § 16-13-30 (b)) and possession of marijuana with intent to distribute (OCGA § 16-13-30 (j)). Ahmed appeals from the denial of his motion for new trial, challenging the denial of his motion to suppress, his motion for a directed verdict, and the sufficiency of the evidence. Discerning no error, we affirm.

Viewed in the light most favorable to the jury’s verdict, Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979), the evidence shows that in the early morning hours of July 29, 2010, Georgia Bureau of Investigation Special Agent Josh Alford of the East Central Georgia Drug Task Force received a request from the chief of the Swainsboro Police Department for assistance in the department’s investigation of an incident in which Ahmed had been shot at a local residence. After arriving at the residence, Alford interviewed a number of witnesses and learned that a second individual, later identified as co-defendant Vance, “may have fled the scene or left the scene of the shooting ... in a gray Malibu.”

Alford requested assistance from Special Agent Jason McCoy in locating Vance. McCoy was aware that Ahmed and Vance usually traveled together because he had been involved in an earlier drug investigation of the two and had participated in a surveillance of their apartment. Given Alford’s request and preliminary briefing as to what had transpired, McCoy and Special Agents Josh Thompson and Keith Collins proceeded to the apartment complex where McCoy believed Ahmed and Vance lived. There McCoy saw the gray Malibu he believed to be the vehicle Vance drove, and he and the other agents waited. After 45 minutes elapsed, the agents saw a man, whom McCoy recognized to be Vance, leave the apartments and approach the Malibu. Upon nearly getting to the vehicle, Vance noticed McCoy’s vehicle backed into a wooded area between two apartment buildings; and, by peering around a tree, confirmed that McCoy’s vehicle was occupied and ran. The agents pursued Vance to the rear of the apartments where they encountered a 10 to 15-foot fence. Not seeing Vance and believing that he could not have scaled the fence, the agents went directly to the apartment they knew to be the apartment Vance shared with Ahmed which was located immediately opposite the fence and knocked on the door. A young girl answered, informed the agents that Vance had gone out to his car but gave the agents permission to enter to confirm that he was not present. As the agents conducted a quick sweep of the apartment for possible hiding places, they saw what appeared to be a white powdery residue on the kitchen counter and a clear plastic baggie. Also in plain view were digital scales and a razor blade. Field tested, the powdery residue tested positive for cocaine. Given this, the agents secured the apartment, and applied for and obtained a search warrant from a magistrate judge. In the search that followed, the agents found more cocaine packaged in clear plastic sandwich bags in and on a kitchen cabinet, in a kitchen drawer, and in the apartment’s locked storage room. The agents also found a small baggie of marijuana in a second kitchen drawer, as well as multiple baggies of marijuana in a plastic grocery sack in the apartment’s storage room. Ahmed, who had leased the apartment, had been issued keys to the apartment and the storage room. In total, 24.71 grams of cocaine and 48.4 grams of marijuana were seized. All was entered in evidence at trial.

1. Ahmed contends that the trial court erred in denying his motion to suppress the evidence of drugs seized in his apartment. He argues that the warrantless entry was illegal as not occasioned in hot pursuit of a suspect, thus fatally tainting the search warrant and the admissibility of the evidence seized as a result. We disagree.

We apply a de novo review to the trial court’s application of the law to the facts,

if the facts are stipulated, or if the critical facts do not depend on the testimony of witnesses who are subject to cross-examination. However, a trial court’s ruling on a motion to suppress frequently involves a mixed question of fact and law. When the outcome of a motion to suppress depends on the credibility of the witnesses or on disputed facts, and the trial court has not committed an error of law, the court’s ruling will not be disturbed on appeal.

(Citation omitted.) Watson v. State, 302 Ga. App. 619, 621 (1) (691 SE2d 378) (2010). “In considering the legality of the search of appellant’s [apartment], this court can consider all relevant evidence of record, including that adduced at the suppression hearing as well as at trial.” (Citations omitted.) Jones v. State, 187 Ga. App. 421, 422-423 (370 SE2d 784) (1988).

[W]hile an officer must generally have a search warrant or consent to enter a home to make an arrest, [under the exigent circumstance exception to the warrant requirement,] an officer can enter a home to arrest a suspect when he or she has followed the suspect there in “hot pursuit.”

State v. Nichols, 225 Ga. App. 609, 610 (1) (a) (484 SE2d 507) (1997). “A suspect may not defeat an arrest which has been set in motion in a public place by escaping to a private place.” (Footnote omitted.) Anderson v. State, 265 Ga. App. 428, 433 (4) (594 SE2d 669) (2004). Essential to hot pursuit is that “the defendant [be] aware [that] he is being pursued by the police,” id., and that the officer in hot pursuit

reasonably fears the imminent destruction of evidence if entry into the residence is not immediately effected, and where an officer reasonably perceives that a suspect within the dwelling poses a risk of danger to the police or others. See Minnesota v. Olson, 495 U. S. 91, 100 (110 SC 1684, 109 LE2d 85) (1990); State v. Ealum, 283 Ga. App. 799, 802 (643 SE2d 262) (2007).

Love v. State, 290 Ga. App. 486, 488 (659 SE2d 835) (2008).

At the suppression hearing, the evidence showed that McCoy telephoned Alford and asked whether Vance should be detained after observing his behavior upon seeing them at the apartments. Alford directed Vance’s detention explaining that further investigation at the crime scene indicated that Vance had either been involved as the shooter in what had been a home invasion or had taken the weapon which Ahmed had used therein because only the homeowner’s weapon had been recovered. Given this, McCoy and the officers gave pursuit then believing Vance to be a suspect in an ongoing investigation of a home invasion in possession of a weapon used therein. Here, flight as well as probable cause to arrest Vance as a suspect in the underlying home invasion investigation combined to justify his warrantless arrest. See State v. Bryant, 284 Ga. App. 867, 869 (644 SE2d 871) (2007) (“Probable cause for a warrantless arrest exists where police have enough reliable information that a prudent person would believe the accused has committed a crime.”) (footnote omitted); see also Green v. State, 127 Ga. App. 713, 715 (194 SE2d 678) (1972) (where this Court held that flight along with other circumstances is sufficient to create probable cause for a warrantless arrest).

The evidence was sufficient to support the trial court’s conclusion that the officers had probable cause to arrest Vance; that they were in hot pursuit of Vance who fled when he saw the officers; and that the officers reasonably believed that Vance fled to his apartment to escape them and avoid arrest. The trial court correctly found that exigent circumstances supported the officers’ warrantless entry of the apartment. Consequently, no taint attached to the search warrant for the complete search of the apartment and the seizure of the additional evidence which followed. We therefore conclude that the trial court did not err in refusing to suppress the evidence seized upon the warrantless entry of the apartment.

2. Ahmed also challenges the sufficiency of the evidence and the denial of his motion for a directed verdict.

The standard of review for the denial of a motion for a directed verdict of acquittal is the same as for determining the sufficiency of the evidence to support a conviction. We view the evidence in a light most favorable to the jury’s verdict, and the defendant no longer enjoys the presumption of innocence. We do not weigh the evidence or determine witness credibility, but only determine if the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offense beyond a reasonable doubt.

(Footnotes omitted.) Thomas v. State, 290 Ga. App. 10 (1) (658 SE2d 796) (2008).

Ahmed leased the apartment at issue, and, as the lessee, he was issued keys to the apartment and its storage shed. That he and Vance were roommates is undisputed. Such evidence was sufficient to authorize the jury to conclude that he and Vance were in joint constructive possession of the cocaine and marijuana. Barnes v. State, 196 Ga. App. 797 (397 SE2d 70) (1990). The contraband seized in the apartment, later admitted at trial, was consistent with possession with intent to distribute.

Decided June 10, 2013.

James C. Bonner, Jr., Tyler R. Conklin, for appellant.

S. Hayward Altman, District Attorney, MaryK. McKinnon, Assistant District Attorney, for appellee.

“Although a person may not be in actual possession of a drug, if he knowingly has the power and intention at the time to exercise dominion or control over the drug, he is in constructive possession of it.” (Citations omitted.) Barnes, supra, 196 Ga. App. at 798 (1). Having leased the apartment, Ahmed had access to all the contraband seized in the common areas thereof and its locked storage shed. Furthermore, the cocaine and marijuana at issue were clearly not held for personal use, both in large quantities and bagged for apparent resale. See, e.g., Ryan v. State, 277 Ga. App. 490, 493 (3) (627 SE2d 128) (2006).

Given the foregoing, we find that the evidence was sufficient to enable a rational trier of fact to find Ahmed guilty of the charged offenses beyond a reasonable doubt. Jackson, supra, 443 U. S. at 307. It follows that the trial court did not err in denying Ahmed’s motion for a directed verdict. Thomas, supra, 290 Ga. App. at 10 (1).

Judgment affirmed.

Dillard and McMillian, JJ., concur.

       Ahmed was tried with co-defendant Anthony Vance.


author: McFADDEN, Judge.

text:
    A13A0185.
    WALKER v. THE STATE.
    (744 SE2d 349)
   McFADDEN, Judge.

Tyrone Walker appeals his convictions of two counts of rape, four counts of aggravated child molestation, three counts of aggravated sodomy and two counts of child molestation. He argues that the trial court improperly admitted certain child hearsay in violation of his Sixth Amendment right to confront witnesses against him. But Walker affirmatively declined to question the child witness, so his rights were not violated. Walker also argues that he was entitled to a mistrial because the state improperly impeached his expert witness. But the state was attempting to show the witness’s bias, not engaging in general impeachment. We therefore affirm Walker’s convictions.

When reviewing a criminal conviction, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” (Citation omitted; emphasis in original.) Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979). It is the function of the jury, not the reviewing court, to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from the evidence. Id. “As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the [sjtate’s case, the jury’s verdict will be upheld.” (Citations and punctuation omitted.) Miller v. State, 273 Ga. 831, 832 (546 SE2d 524) (2001).

Viewed in this light, the evidence showed that Walker and his estranged wife have five children. After the parents separated, Walker would watch the children while Mrs. Walker worked. One evening when Mrs. Walker returned from work, her eight and nine-year-old daughters disclosed that Walker had engaged in vaginal and anal intercourse with them and had forced them to perform oral sex upon him.

A few days later, pursuant to instructions from the police, she took them to a child advocacy center, where they were interviewed individually by Amy Boney, a forensic interviewer. The interviews were video recorded, and the recordings were played for the jury. The younger victim described the acts her father forced her to perform. The older victim simply said that her “daddy ... [was] messing with [them] . . . [i]n the wrong place.” She circled on anatomical pictures the vaginal area, the buttocks and the mouth to show Boney where Walker had “messed with” her.

Pursuant to a referral from the Department of Family and Children Services, Mrs. Walker took the girls to Connie Schenk, a clinical forensic psychologist, for a psychological evaluation. The younger girl told Schenk that their father showed both girls pornography, describing the content with great clarity. She described some of the sexual acts her father would make her and her sister perform. The older girl told Schenk she did not want to talk about it, but she agreed to write answers to Schenk’s questions. She wrote detailed descriptions of the repeated sexual acts her father made her and her sister perform. Schenk also described the girls’ symptoms of emotional trauma.

A registered nurse, who was trained as a sexual assault nurse examiner, conducted physical examinations of the girls. She observed symptoms in the girls’ genital and anal areas that were consistent with chronic penetration. She observed that the younger girl’s hymen was thinner on one side than the other, which was consistent with penetration. The nurse also observed that the girl’s anal folds were flattened, which indicated chronic penetration of the area. The nurse observed a scar on the older girl’s vaginal area and that her anal area dilated, observations consistent with the girl having been penetrated.

The victims’ older brother, who was 14 at the time of the trial, testified that the younger victim disclosed the abuse to him, and he told her she should tell their mother. The younger victim, who was nine years old at the time of trial, also testified and described the abuse.

1. Child hearsay.

Walker argues that the introduction of his older daughter’s out-of-court statements pursuant to the Child Hearsay Statute, former OCGA § 24-3-16, violated his constitutional confrontation rights. Walker’s rights were not violated because he was given the opportunity to have the child testify, but he chose not to.

In Hatley v. State, 290 Ga. 480, 483-484 (I) (722 SE2d 67) (2012), the Supreme Court of Georgia overruled a long line of cases, including Sosebee v. State, 257 Ga. 298 (357 SE2d 562) (1987), that had construed the Child Hearsay Statute to require the trial court (1) at the request of either party, to cause a child molestation victim to take the stand before the state rests; and (2) to inform the jury that the court called the child as a witness. Id. at 482 (I). (OCGA § 24-8-820 is a substantially similar child hearsay statute in the new Evidence Code.) In Hatley, the court ruled that such a procedure does not “pass constitutional muster because it fails to put the onus on the prosecution to put the child victim on the witness stand to confront the defendant.” Id. at 483 (I). Instead,

to comport with the Confrontation Clause, [former] OCGA § 24-3-16 requires that the child whose statements are at issue not merely be “available to testify” but actually testify at trial, unless the defendant forfeits or waives such testimony, and requires] pretrial notice of the [s]tate’s intent to use child hearsay statements to allow the defendant to exercise that right.

Bunn v. State, 291 Ga. 183, 189 (2) (b), n. 4 (728 SE2d 569) (2012). The Hatley court directed trial courts to “take reasonable steps to ascertain, and put on the record, whether the defendant waives his right to confront the child witness.” (Footnote omitted.) Hatley, 290 Ga. at 484 (I). That is precisely what the trial court did here, even without the benefit of the Hatley opinion.

The older victim did not testify. The state decided not to call her “due to [her] emotional state,” but informed the court that she was available, should the court decide to call her. Defense counsel told the court that he did “not require this,” was concerned about her emotional state, and did “not request that she be brought in.” Regardless, in “an abundance of caution,” the trial court excused the jury and said that he would have the child brought into the courtroom so that Walker could question her regarding her emotional state. Defense counsel reiterated that he “accepted] [the state’s] report [of the child’s emotional state] . . . and that [he] did not want to traumatize the child— [He and Walker were] not requesting to call the witness.” The court nonetheless brought the child in so that defense counsel could “examine her if [he chose] to. [He could] examine her to see what her state [was] and to satisfy [him] self that things [were] as they [were] represented and make a decision whether [he] want[ed] to place her on the stand and have her to testify in the case.” Defense counsel questioned her, asking her whether she wanted to testify and telling her that he had “no intention of calling [her] to force [her] to testify.” When he was done questioning the child, defense counsel conferred with Walker and then informed the court that

[t]he defense does not request the court call her as the court’s witness. We do not intend to call her as our witness. I do appreciate the fact that I had a chance to see her and observe this. We are satisfied that she has an enormous reluctance to testify. She has so said. She does appear to be rather tense at the moment.

Not only did Walker fail to object on Sixth Amendment grounds at trial, see Haywood v. State, 301 Ga. App. 717, 722 (3) (689 SE2d 82) (2009), but he affirmatively declined the opportunity to question the victim before the jury, thereby “waiving] his right to confront the child witness.” (Footnote omitted.) Hatley, 290 Ga. at 484 (I). Walker asserts that any waiver was induced by the Sosebee line of cases. In essence, he argues that under Sosebee, the admission of child hearsay did not violate his right to confront witnesses, so he did not raise a Confrontation Clause objection. But Walker was given the opportunity to question the child and chose not to. Under these circumstances, it is clear that Walker “waive [d] his right to confront the child witness.” (Footnote omitted.) Hatley, 290 Ga. at 484 (I).

2. The cross-examination of Walker’s expert witness.

Walker argues that the trial court erred in denying his motion for mistrial because the state improperly impeached his expert witness during cross-examination. Whether to grant a motion for mistrial lies within the trial court’s sound discretion. See Mangrum v. State, 285 Ga. 676, 679 (4) (681 SE2d 130) (2009). Similarly, “[a] trial court has broad discretion in determining the scope of relevant cross-examination.” (Citation omitted.) Sims v. State, 280 Ga. 606, 608 (4) (631 SE2d 656) (2006).

Walker presented a psychologist as an expert to give an opinion about the efficacy of the procedures Schenk and Boney used to interview the victims as well as the validity of their opinions. On cross-examination, the prosecutor attempted to show that the expert witness was antagonistic to state government and biased against the state’s prosecution of cases like Walker’s. He asked the witness, ‘You seem to have a lot of issues with the state, is that right?” and stated, “Let’s talk about your bias.” He then asked the expert whether he had been charged criminally for failure to report sexual abuse of a child. The witness responded that the charge had been dead-docketed. The prosecutor then asked whether the witness had been required to complete a diversion program, and the witness said he had, and he had not been convicted of anything. The prosecutor went on to ask the witness if he understood that his role in the case was to be objective.

Walker argues that the question about the charge for failing to report child sexual abuse amounted to improper impeachment because former OCGA § 24-9-84.1 only allowed impeachment with a criminal conviction. (OCGA § 24-6-609 of the new Evidence Code concerns impeachment by evidence of conviction of a crime.) But

the prosecutor’s cross-examination of this witness did not constitute impeachment of the witness by proof of a criminal conviction; rather, the prosecutor was cross-examining the witness concerning the criminal charge [ ] ... in order to reveal possible biases, prejudices, or ulterior motives of the witness as they might relate to his testimony on direct examination.

(Citations and footnote omitted.) Harrison v. State, 259 Ga. 486, 489 (3) (384 SE2d 643) (1989). See also Smith v. State, 276 Ga. 263, 265 (2) (577 SE2d 548) (2003) (“But [defendant] was not trying to impeach the witness on general credibility grounds; he was attempting to show the witnesses] bias.”). Consequently, the prosecutor could question the expert about the charge even though it did not result in an adjudication of guilt. See Smith, 276 Ga. at 265 (2).

“The [s]tate, like any other party, has the right to conduct a thorough and sifting cross-examination of a witness.” (Citations omitted.) Gentry v. State, 226 Ga. App. 216, 218 (1) (485 SE2d 824) (1997). The trial court did not abuse its discretion in allowing this cross-examination or in denying the motion for mistrial.

Decided June 11, 2013

Kevin C. Armstrong, for appellant.

Gregory W. Edwards, District Attorney, Cania R. Brown-Gordon, Assistant District Attorney, for appellee.

Judgment affirmed.

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


author: McFadden, Judge.

text:
    A13A0211.
    In the Interest of L. K., a child.
    (744 SE2d 352)
   McFadden, Judge.

The mother of L. K. appeals from a juvenile court judgment finding that the child is deprived and placing her in the custody of the Department of Family and Children Services. Because there is not sufficient evidence to support the juvenile court’s finding of deprivation, we reverse.

When reviewing a juvenile court’s finding of deprivation, this Court views the evidence in the light most favorable to the juvenile court’s judgment to determine whether any rational trier of fact could have found by clear and convincing evidence that the child was deprived. This Court neither weighs evidence nor determines the credibility of witnesses; rather, we defer to the trial court’s fact-finding and affirm unless the appellate standard is not met.

(Citation omitted.) In the Interest of D. S., 316 Ga. App. 296 (728 SE2d 890) (2012).

So viewed, the evidence shows that the 17-year-old mother and infant L. K. lived with L. K.’s maternal grandmother in the grandmother’s residence. On December 16, 2011, the department filed a deprivation petition alleging that both the mother and L. K. have sickle cell anemia and that the mother is unable to meet her infant, daughter’s medical needs. On December 19, 2011, after a probable cause hearing, the juvenile court dismissed the petition because there was no current deprivation or medical neglect, but ordered the department to provide protective services to the family for 120 days. Three days later, on December 22, 2011, the mother was taken to the hospital, possibly due to illness related to her sickle cell condition. A department caseworker was called to the hospital, where he learned that the mother could not reach the grandmother. The day before, the grandmother had left to go to Michigan for two weeks to care for a relative who had suffered a stroke. The caseworker tried unsuccessfully to get in touch with the grandmother and other family members to care for L. K. while the mother was in the hospital. The department then obtained shelter care custody of both the mother and L. K. Thereafter, the department filed the instant petition alleging that L. K. was deprived.

Under OCGA § 15-11-2 (8) (A), a child is deprived if he or she is without proper parental care or control, subsistence, education as required by law, or other care or control necessary for the child’s physical, mental, or emotional health or morals. The definition of a deprived child, as contained in OCGA § 15-11-2 (8), focuses upon the needs of the child regardless of parental fault. The petition is brought on behalf of the child and it is the child’s welfare and not who is responsible for the conditions which amount to deprivation that is the issue. To authorize even a loss of temporary custody by a child’s parents, on the basis of deprivation, the deprivation must be shown to have resulted from unfitness on the part of the parent, that is, either intentional or unintentional misconduct resulting in the abuse or neglect of the child or by what is tantamount to physical or mental incapability to care for the child. An order temporarily transferring custody of a child based on alleged deprivation must be grounded upon a finding that the child is at the present time a deprived child, and a finding of parental unfitness is essential to support an adjudication of present deprivation.

(Citations and punctuation omitted; emphasis in original.) In the Interest of K. S., 271 Ga. App. 891, 892-893 (611 SE2d 150) (2005).

Here, the juvenile court concluded that “[t]he causes of the deprivation as to the mother are: inability to provide the child with a home, care and support without the assistance of the [department.” However, there was no evidence that the mother was unable to provide a home; rather, the evidence unequivocally showed that the mother and child lived with the grandmother in the grandmother’s home. While a social worker voiced concern that the residence was in a senior citizens’ complex, there was no evidence presented that the complex or home was an inappropriate or inadequate place for the mother and child to reside. See In the Interest of E. M., 264 Ga. App. 277, 281 (590 SE2d 241) (2003) (reversing deprivation finding where, contrary to juvenile court’s finding, evidence showed that father, with assistance of others, “had always managed to put a roof over [child’s] head” and at the time of the deprivation hearing had found at least temporary housing).

As for the mother’s inability to care for the child, there again was no clear and convincing evidence of such inability and the department has cited none. On the contrary, the social worker called as a witness by the department testified that the mother is “a good mother” and that based on her observations over several months she never had any concerns about abuse or neglect by the mother. A placement worker also testified that she had no concerns about the mother’s ability to care for the child, had seen no signs that the child is deprived, and had no concerns about medical care because the mother “does a good job” and takes L. K. to the hospital if something is wrong. Likewise, the department caseworker testified that when he saw the baby at the hospital he saw no signs of dehydration or malnourishment and that the baby was appropriately dressed. Both the grandmother and the child’s father also described the mother as an “excellent” mother.

The juvenile court further found that L. K. was without proper parental care and supervision because “the child’s mother is a minor mother in the care of the [department.” However, as this court has previously held, “we find no authority providing that there is a presumption of deprivation of a child simply because the child’s mother is also in [the department’s] care, and [the department] has cited none.” In the Interest of S. D., 316 Ga. App. 86, 89 (2) (728 SE2d 749) (2012).

The juvenile court also found that the mother and child had been left in the home without adequate food while the grandmother was in Michigan. Not only does such a finding pertain to past, rather than present, deprivation, see In the Interest of S. D., supra, but once again there was not clear and convincing evidence to support the finding. While the department caseworker initially testified that the mother had told him that she had been left with no food, he later clarified that the mother did not say that she had been left without food, but instead had said that she had no food stamps or money. The only direct testimony concerning food in the house came from the father, who testified that he had looked in the refrigerator and cabinets and seen that there was food in the house. And although the juvenile court made no factual finding about money, the caseworker’s testimony that the mother had said she had no money was contradicted by the grandmother’s testimony that money for the mother and child had been left with a neighbor, and by the father’s testimony that he had given the mother $150.

Decided June 11, 2013.

Brian M. Condon, Jr., Jodie A. Wasson, for appellant.

It appears from the evidence presented at the deprivation hearing, comments by the juvenile court judge at the hearing and the final order, that in addition to the issues discussed above, the juvenile court’s primary concern centered around the fact that when the mother was hospitalized there was no relative available to take care of L. K. As the juvenile court judge stated at the conclusion of the hearing, “[t]he mother could not supervise[ ] the child because the mother was in care. There was nobody to take care of the child.” However, it was undisputed that by the time of the deprivation hearing the mother was no longer hospitalized, and the grandmother had returned home and she wanted both the mother and L. K. to return to her home. Under the circumstances of such a temporary emergency illness, where there is not clear and convincing evidence that the child was at imminent risk of abuse or neglect other than the risks arising from being without a caretaker, the appropriate remedy would have been emergency placement of the child with the department, rather than a finding of deprivation and removal of the child from the mother’s custody. See OCGA § 15-11-14 (authorizing the department to provide emergency care and supervision without seeking a court order).

The clear and convincing standard

safeguards the high value society places on the integrity of the family unit and helps eliminate the risk that a factfinder might base his determination on a few isolated instances of unusual conduct or idiosyncratic behavior. Only under compelling circumstances found to exist by clear and convincing proof may a court sever the parent-child custodial relationship.

(Citation omitted.) In the Interest of E. M., supra at 278. Here, contrary to the determination of the juvenile court, the isolated instance of the child being without supervision due to an emergency hospitalization does not constitute parental unfitness authorizing the finding of deprivation and severance of the parent-child custodial relationship. Accordingly, we reverse.

Judgment reversed.

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

Samuel S. Olens, Attorney General, Shalen S. Nelson, Senior Assistant Attorney General, Penny Hannah, Assistant Attorney General, Robert E. Hall, for appellee.


author: Miller, Judge.

text:
    A13A0324.
    CARRIER411 SERVICES, INC. v. INSIGHT TECHNOLOGY, INC.
    (744 SE2d 356)
   Miller, Judge.

Insight Technology, Inc. obtaineda $1.4millionjudgmentagainst Darren Brewer, and when Brewer failed to satisfy the judgment, Insight Technology filed a garnishment action against Carrier411 Services, Inc. (“Carrier411”). Carrier411 answered the garnishment summons and refused to pay the requested amount, claiming that Brewer was no longer an employee of Carrier411 and it was not holding any funds belonging to him. Insight Technology subsequently filed a traverse to Carrier411’s answer. Carrier411 moved to dismiss the action on the ground that Insight Technology did not have the authority to maintain the action since it had not received a certificate of authority under OCGA § 14-2-1502 (a). Following the hearing, the trial court denied Carrier411’s motion to dismiss and granted Insight Technology’s traverse, entering judgment against Carrier411 in the principal sum of $736,139.60. Carrier411 appeals from those rulings, contending that the trial court erred in (1) denying its motion to dismiss; (2) allowing the garnishment action to “reverse-pierce” an individual in order to reach the assets of a corporation; and (3) expanding the garnishment proceeding to consider claims of fraud and collusion, and granting Insight Technology’s traverse without sufficient proof to support the action. For the reasons that follow, we affirm.

In a garnishment proceeding, “the question of ownership of the funds is one of fact for the trial court, as factfinder, to decide.” (Citation and punctuation omitted.) A.M. Buckler & Assoc., Inc. v. Sanders, 305 Ga. App. 704, 705-706 (700 SE2d 701) (2010). “On appeal of the judgment of a trial judge sitting without a jury, a judgment will not be disturbed if there is any evidence to sustain it.” (Citations and punctuation omitted.) Id. at 706.

The record shows that Carrier411 was organized in November 2004 by Michael Dawson, a long time friend of Darren Brewer. The following year, Dawson sold or transferred his shares in Carrier411 to Concentrik Technologies, LLC (“Concentrik”), at which point Concentrik became the sole shareholder of Carrier411. Brewer was involved in the forming of and owned a 70-percent interest in Concentrik, an off-shore “captive insurance company” that reinsured some of the receivables from a business in which Brewer was involved. The remaining shares of Concentrik were held by Dawson and Brewer’s girlfriend. Within a month of the transfer of ownership of Carrier411 from Dawson to Concentrik, CarrierGuard, Inc. (“Carrier-Guard”), an incorporated entity in which Concentrik is the sole shareholder, purchased a 15-percent interest in Carrier411.

Brewer was the president of CarrierGuard and the manager of Concentrik through at least November 20, 2010. Brewer also served as a director and the president of Carrier411 from August 2005 until August 21, 2010, at which time there appears in appellant’s minutes a resignation prepared by Brewer. Thereafter, Brewer assumed the corporate office of secretary, without salary, and continued on as a director, without compensation. As Carrier411’s secretary, Brewer acted as an interface between the board of directors and the president of the company and also dealt with financial matters with the company’s accountant.

In July 2008, Insight Technology obtained a judgment against Brewer in the amount of $1,400,000. On September 1, 2010, Insight Technology filed the instant garnishment action, naming Carrier411 as garnishee and seeking collection in the principal amount of $1,163,594. The garnishment was served upon Carrier411 on September 3, 2010. Brewer’s girlfriend signed and filed the garnishment answer, stating that Brewer was not then a current employee of Carrier411. Brewer admitted that his girlfriend was not employed by Carrier411 at that time, and that she did not have personal knowledge to form the basis of the company’s garnishment answer. Brewer did not know who advised his girlfriend to complete the answer. Although Brewer maintained that he resigned as Carrier411’s president in August 2010, Carrier411’s payroll records reflect that Brewer drew a partial salary for September 2010 and that his termination date was September 13, 2010.

The garnishment period ended on or about March 1, 2011. Soon after the garnishment period expired, Carrier411 transferred $300,000 from its bank account to Concentrik, which Brewer claimed was a dividend payment. Carrier411 authorized the transfer of another $300,000 to Extranet Commerce, LLC, an entity solely owned by Brewer. Brewer received an unspecified portion of this $300,000.

Subsequent to the end of the garnishment period, the trial court held a hearing on Insight Technology’s traverse. At the bench trial, Carrier411 moved to dismiss the action, arguing that Insight Technology was barred from pursuing the action because it was a foreign corporation that lacked authorization to conduct business in Georgia since it had not obtained a certificate of authority. Carrier411 conceded, however, that it did not have evidence that Insight Technology was transacting business. The trial court denied Carrier4lTs motion to dismiss, ruling that Carrier411 had not pled the issue as an affirmative defense.

Following the bench trial, the trial court issued an order granting Insight Technology’s traverse and entered a judgment against Carrier-411 in the principal sum of $736,139.60. The trial court ruled that Carrier411’s answer to Insight Technology’s garnishment action was untrue, the evidence showed that Carrier411 continued to employ Brewer after being served with the garnishment summons, and Carrier411 did indeed possess property owned by Brewer. The trial court concluded that the evidence showed that Brewer and Carrier-411 colluded to fraudulently suspend payments from Carrier411 to Brewer until the garnishment period expired and that, after the expiration, Carrier411 paid out large sums of money to other entities controlled by Brewer upon Brewer’s direction. The trial court concluded that this conduct constituted a fraudulent and collusive attempt to avoid and defeat Insight Technology’s garnishment. We granted Carrier411’s application for discretionary review, and this appeal ensued.

1. Carrier411 contends that the trial court erred in denying its motion to dismiss on the ground that Insight Technology could not pursue the garnishment action since it was not authorized to conduct business in Georgia. We disagree.

A foreign corporation must obtain a certificate of authority from the Secretary of State before it can transact business in this State. OCGA § 14-2-1501 (a). Additionally, “[a] foreign corporation transacting business in this [Sjtate without a certificate of authority may not maintain a proceeding in any court in this [Sjtate until it obtains a certificate of authority.” OCGA § 14-2-1502 (a).

Amotion to dismiss under OCGA § 14-2-1502 (a) is a motion in abatement or a dilatory plea, which is not an adjudication on the merits. Such a plea based upon OCGA § 14-2-1502 (a) is raised as an affirmative defense, which must be specially pled in the answer.

(Citations, punctuation and footnote omitted.) Health Horizons v. State Farm Mut. Auto. Ins. Co., 239 Ga. App. 440, 444 (521 SE2d 383) (1999); see also OCGA § 9-11-8 (c). A defendant bringing a motion in abatement has the burden of proving the facts necessary to support a judgment of dismissal. See Jones Motor Co. v. Anderson, 258 Ga. App. 161, 162 (573 SE2d 429) (2002).

Here, Carrier411 did not plead an affirmative defense under OCGA § 14-2-1502 (a) in its answer, and it waited until the trial to orally move to dismiss on this ground. “[The] purpose of the requirement that affirmative defenses be pleaded is to prevent surprise and to give the opposing party fair notice of what must be met as a defense.” (Citation and punctuation omitted.) Hansford v. Robinson, 255 Ga. 530 (1) (340 SE2d 614) (1986). Since Carrier411 raised the issue for the first time at the trial, the affirmative defense was not properly raised in this case.

Even if properly raised, Carrier411 failed to establish that Insight Technology was transacting business in Georgia within the meaning of OCGA § 14-2-1501 (a). Notably, at the trial, Carrier411 conceded that it did not have evidence that Insight Technology was transacting business. Moreover, a corporation is not considered to be transacting business in Georgia merely because it maintains an administrative action or a lawsuit, or attempts to secure a debt. OCGA § 14-2-1501 (b) (1), (8); see also Hall v. Sencore, Inc., 302 Ga. App. 367, 368 (691 SE2d 266) (2010). Therefore, the trial court did not err in denying Carrier411’s motion to dismiss.

2. Carrier411 contends that the trial court erred by allowing Insight Technology to “reverse-pierce” the corporate veil in order to reach the assets of Carrier411. We disagree.

Carrier411 correctly notes that the Supreme Court of Georgia has held that there is no cause of action in Georgia for “reverse-piercing” of the corporate veil, whereby the traditional veil-piercing doctrine is extended to allow a third-party creditor to pierce the veil in order to satisfy the debts of an individual out of the corporation’s assets. See Acree v. McMahan, 276 Ga. 880, 881-883 (585 SE2d 873) (2003). The Supreme Court refused to recognize a plaintiff’s “reverse-piercing” claim as an equitable cause of action because there were other adequate remedies available at law. Id. at 883. “[Disregard of the corporate form rests on equitable principles. As a consequence, [a claim for reverse-piercing of the corporate veil] is appropriately granted only in the absence of adequate remedies at law.” (Citation and punctuation omitted.) Id. at 882-883. Since other, traditional legal remedies were available to the plaintiff, the Supreme Court of Georgia rejected the reverse-piercing claim. Id. at 883.

Here, Insight Technology was not pursuing a “reverse-piercing” claim, or any other equitable action, against Carrier411. Rather, this action arises from a garnishment action expressly authorized by law. See Pate v. Pate, 280 Ga. 796, 797-798 (2) (631 SE2d 103) (2006) (trial court’s finding that a father’s corporate income should be used in calculating his child support obligations did not implicate reverse-piercing since the action was authorized by law). Specifically,

[i]n a case such as this, in which a plaintiff has obtained a money judgment against a defendant, the plaintiff is entitled to file a garnishment action in a court which has jurisdiction over the garnishee, the person or entity which has in its possession money or property which belongs to the defendant and is subject to garnishment. OCGA §§ 18-4-20 (property subject to garnishment); 18-4-60 (judgment creditor’s right to garnishment); 18-4-61 (court must have jurisdiction over garnishee); 18-4-82 (contents of answer of garnishee).

(Punctuation omitted.) A.M. Buckler, supra, 305 Ga. App. at 705. Furthermore, Insight Technology was entitled to the process of continuing garnishment against any garnishee who was Brewer’s employer. OCGA § 18-4-110 (providing that the methods, practices, and procedures for a continuing garnishment are the same as any other garnishment proceeding). Consequently, there is no merit to Carrier411’s argument that the trial court erred by allowing Insight Technology’s garnishment action to proceed.

3. Carrier411 next argues that the trial court erred in granting judgment to Insight Technology because Insight Technology improperly “tacked on” claims of fraud and collusion that expanded the narrow scope of a garnishment action, and the trial court’s findings were not supported by the evidence or findings of fact. Again, we disagree.

When a plaintiff traverses a garnishee’s answer, the plaintiff bears the burden of demonstrating by a preponderance of the evidence that the garnishee has the property of the debtor. See W. R. Leasing, Inc. v. Aetna Cas. & Surety, 211 Ga. App. 818, 819 (440 SE2d 714) (1994); Oxford v. Metter Lumber Co., 104 Ga. App. 758, 760 (123 SE2d 156) (1961).

OCGA § 18-4-92 provides that on the trial of the plaintiff’s traverse, if the court finds the garnishee has failed to answer properly the summons of garnishment, the court shall enter a judgment for any money or other property [which] the court finds subject to garnishment. It is insufficient for the trial court merely to grant the plaintiff’s traverse and to award the plaintiff whatever money it swears is owed by a defendant. The trial court must specifically find that the garnishee has money owing to or belonging to the defendant debtor.

(Citation and punctuation omitted.) W. R. Leasing, supra, 211 Ga. App. at 819. However,

Georgia’s garnishment statutes, OCGA § 18-4-1 et seq., are in derogation of the common law and, thus, must be strictly construed. Garnishment is purely a statutory proceeding and will not be extended so as to reach money or property of the defendant not made subject thereto by statute.

(Citations and punctuation omitted.) A.M. Buckler, supra, 305 Ga. App. at 704-705.

The garnishment statute provides that assets subject to garnishment include

[a]ll debts owed by the garnishee to the defendant at the time of service of the summons of garnishment upon the garnishee and all debts accruing from the garnishee to the defendant from the date of service to the date of the garnishee’s answer shall be subject to process of garnishment.

OCGA § 18-4-20 (b). Additionally,

[a]ll property, money, or effects of the defendant in the possession or control of the garnishee at the time of service of the summons of garnishment upon the garnishee or coming into the possession or control of the garnishee at any time from the date of service of the summons of garnishment upon the garnishee to the date of the garnishee’s answer shall be subject to process of garnishment.

OCGA § 18-4-20 (c). An independent liability of the garnishee arises when the garnishee no longer possesses the debtor’s property due to some arrangement with the debtor to defeat the garnishment lien. See OCGA § 18-4-111 (a); Stone v. George F. Richardson, Inc., 169 Ga. App. 232, 234-235 (312 SE2d 339) (1983), abrogated on other grounds, State v. Glover, 281 Ga. 633, n.4 (641 SE2d 543) (2007).

Here, there is ample evidence in the record to support the trial court’s conclusion that Carrier411’s answer was untrue. Notably, in its answer, Carrier411 stated that from the time of service of the garnishment summons, which occurred on September 3, 2010, it had no property belonging to Brewer, Brewer was not an employee, and no wages were to be paid to Brewer. The evidence shows, however, that despite Brewer’s claims that he resigned effective August 31, 2010, he drew a partial salary for September 2010 and that his termination date was September 13, 2010. Brewer was paid approximately $3,000.

Moreover, the trial court was authorized to conclude that over $600,000 in transfers from Carrier411 to entities controlled by Brewer could be subject to garnishment. Brewer did not dispute that after the garnishment period ended on March 1, 2011, Carrier411 transferred $300,000 from its bank account to Concentrik, a company in which Brewer owned a 70-percent interest. The record also shows that Carrier411 wrote a $300,000 check to Extranet Commerce, LLC, an entity solely owned by Brewer, and that Brewer admitted receiving an unspecified portion from this $300,000 payment. See Water Processing Co. v. Southern Golf Builders, 248 Ga. 597, 598 (285 SE2d 21) (1981) (check is garnishable asset). Although Brewer claimed that these asset transfers were for legitimate business purposes, the trial court, sitting as the trier of fact, was authorized to find that Brewer was not credible in this respect. See A.M. Buckler, supra, 305 Ga. App. at 707-708 (it is within the province of the trial court in a garnishment proceeding, as the trier of fact, to weigh the evidence and determine witness credibility).

Based on the evidence presented at the hearing, the trial court was authorized to conclude that the preponderance of the evidence showed that Brewer and Carrier411 colluded to fraudulently suspend payments from Carrier411 to Brewer until the garnishment period expired in an attempt to defeat the garnishment action. We note that

[t]he cardinal rule of corporate law is that the corporation possesses a legal existence separate and apart from that of its officers, employees, shareholders, and directors. . . . Where the courts have disregarded the corporate entity because the corporation is the mere alter ego or business conduit of a person, it has generally been on the idea that the corporate entity has been used as a subterfuge and to observe it would be to work an injustice. To establish the alter ego doctrine it must be shown that the stockholders’ disregard of the corporate entity made it a mere instrumentality for the transaction of their own affairs; that there is such unity of interest and ownership that the separate personalities of the corporation and the owners no longer exist; and to adhere to the doctrine of corporate entity would promote injustice or protect fraud.

(Citations and punctuation omitted.) Southern Environmental Group v. Rosebud Landscape Gardeners, 196 Ga. App. 392, 394 (1) (395 SE2d 913) (1990).

In this case, Carrier411 was owned by Concentrik, a limited liability corporation in which Brewer held a 70-percent interest, and CarrierGuard, a corporation wholly owned by Concentrik. The rest of Concentrik’s shares were held by Brewer’s long-time friend, Dawson, and Brewer’s girlfriend. In essence, Carrier411 was owned and controlled by Brewer, Dawson, and Brewer’s girlfriend. Additionally, at the time of the garnishment summons, Brewer served as the president of Carrier411, and following his resignation, he continued to have significant involvement in the financial affairs of the company through his service as the company’s secretary. Furthermore, although Brewer denied having any involvement in filing the garnishment answer, the evidence shows that his girlfriend, a part-owner of Carrier411, filed an untrue answer when claiming that at the time of service of the garnishment summons, Brewer was not an employee of Carrier411.

Although Carrier411 argues that Insight Technology improperly “tacked on” claims for fraud and collusion, the garnishment statutes are clear that

no payment made by the garnishee to the [debtor] or to his order, or by any arrangement between the [debtor] and the garnishee after the date of the service of the summons of garnishment upon the garnishee shall defeat the lien of garnishment. The other arrangements referred to mean arrangements constituting fraud and collusion between the [debtor] and the garnishee.

(Citations and punctuation omitted.) Gant, Inc. v. Citizens & Southern Nat. Bank, 151 Ga. App. 212, 213 (1) (259 SE2d 485) (1979); see also Stone, supra, 169 Ga. App. at 235 (an independent liability arises where the garnishee no longer possesses the debtor’s property due to some arrangement with the debtor to defeat the garnishment lien). Indeed, “the garnishment law is [designed] to prevent evasions and subterfuges.” (Citation and punctuation omitted.) Toporek v. Water Processing Co., 169 Ga. App. 141, 143 (1) (312 SE2d 132) (1983).

In light of the evidence set forth above, we are bound to uphold the trial court’s decision that Carrier411 and Brewer colluded to make false statements in an attempt to defeat the garnishment action. See Worsham Bros. Co. v. Fed. Deposit Ins. Corp., 167 Ga. App. 163, 167 (4) (305 SE2d 816) (1983) (the trial court was authorized to find garnishee liable based upon the evidence and the “near transparency of the corporate veil shielding [debtor] behind the garnishee”); compare Southern Environmental, supra, 196 Ga. App. at 394-395 (1) (affirming trial court’s determination that corporate fiction was maintained because this Court “cannot reweigh the evidence but are bound to uphold the court’s decision” if there is any evidence to support it). Therefore, we affirm the trial court’s judgment.

Decided June 11, 2013

Slotkin & Caiola, Fred R. Slotkin, Jr., Anne P. Caiola, for appellant.

Bruce E. Mitchell, Jeremiah R. Handschuh, for appellee.

Judgment affirmed.

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

       Carrier411 renewed its motion to dismiss the action, and the trial court again denied its motion.


author: BARNES, Presiding Judge.

text:
    A13A0338.
    ROME v. POLYIDUS PARTNERS LP.
    (744 SE2d 363)
   BARNES, Presiding Judge.

Polyidus Partners LP sued Wade Rome for breach of contract and other claims arising out of Rome’s alleged failure to pay the outstanding principal and interest on a loan extended by Polyidus to Rome. The trial court granted summary judgment to Polyidus and denied Rome’s cross-motion for summary judgment. Rome appeals from the grant of summary judgment to Polyidus, and we reverse because genuine issues of material fact remain as to whether Rome is indebted to Polyidus and, if so, the amount of the debt.

We review the grant of a motion for summary judgment de novo, viewing “the evidence, and all reasonable inferences drawn therefrom, in the light most favorable to the nonmovant.” (Citation and punctuation omitted.) Cowart v. Widener, 287 Ga. 622, 624 (1) (a) (697 SE2d 779) (2010). So viewed, the record shows that on December 31, 2004, Robert Thomas III, a principal of Polyidus, transferred $250,000 to Rome’s account in Missouri via wire transfer. Rome averred that the funds were loaned to him by Thomas, individually, and were to be repaid with no defined terms, interest rate, or repayment schedule. According to Rome, on September 6, 2005, he transferred $250,000 to the account of Polyidus in Thomasville, Georgia, as directed by Thomas, in satisfaction of any indebtedness he owed to Thomas. Rome further averred that after Thomas demanded an additional payment of interest, Rome paid $11,500 to Thomas on or about November 11, 2005, with Rome’s understanding that this payment was in full satisfaction of the obligation arising from the $250,000 funds previously transferred to Rome on December 31, 2004.

Notwithstanding Rome’s understanding that he had paid the obligation in full, Polyidus sued Rome on December 6,2010, claiming that on December 31, 2004, Polyidus loaned $250,000 to Rome at an interest rate of 10 percent, with the principal to be repaid “over time.” According to the complaint, Rome had repaid $100,000 of the principal and had made periodic interest payments but was in default on his agreement to repay the remaining $150,000 plus interest.

Rome filed a special appearance and responded to the complaint subject to the defense of lack of personal jurisdiction. On November 30, 2011, Polyidus moved for summary judgment relying on Thomas’s affidavit, although the affidavit was not served on Rome until January 3, 2012. Rome later filed his cross-motion for summary judgment, his reply to Polyidus’s motion for summary judgment, and his supporting affidavit. On January 26, 2012, the date of the hearing on Polyidus’s summary judgment motion, Polyidus filed Thomas’s second affidavit. After considering Rome’s objection to the timeliness of Thomas’s first affidavit, the trial court granted Rome additional time to respond to Polyidus’s summary judgment motion. On July 3, 2012, the trial court entered its order denying Rome’s motion for summary judgment, granting Polyidus’s motion for summary judgment, and ordering that Polyidus recover from Rome principal in the amount of $150,000 and prejudgment interest in the amount of $70,685.51. Rome appeals.

1. Rome asserts that the trial court lacked personal jurisdiction over him. The trial court, however, never ruled on the matter. It is nevertheless appropriate for us to consider whether the trial court’s ruling on the merits of the case was premature. “[W]hen the record reflects that a judgment was rendered by a court which has failed to address [a properly preserved jurisdictional issue], this Court on its own motion will reverse the judgment and remand the case for consideration of the pending . . . jurisdictional issue[ ].” Hight v. Blankenship, 199 Ga. App. 744, 745 (406 SE2d 241) (1991). Notably, although Rome raised the issue of lack of personal jurisdiction in his initial response to the complaint, Rome moved for summary judgment without reasserting or reserving his defense that the court lacked personal jurisdiction. Rome points out that among the facts asserted in his brief in support of his motion for summary judgment was that the transaction forming the subject matter of the complaint was conducted “orally or electronically while [Rome] was a resident of Missouri and at no time was he present in Georgia.” But Rome’s argument in support of his motion for summary judgment was based solely on the merits of the case and could not be reasonably construed as a motion to dismiss for lack of jurisdiction, nor did he indicate that he was reserving the jurisdictional defense. In addition, Rome actively participated in the litigation and allowed the case to proceed to final judgment without asking the trial court to rule on his claim that the court lacked personal jurisdiction. Thus, as in Hodge v. Howes, 260 Ga. App. 107, 109 (1) (578 SE2d 904) (2003), Rome’s actions were “manifestly consistent with and indicative of an intention to voluntarily relinquish his defense of lack of personal jurisdiction.” (Punctuation omitted.) Id. (finding jurisdictional defense waived where defendant moved for summary judgment without reserving or reasserting the defense, actively participated in the litigation, and allowed final judgment to be entered without seeking a ruling thereon). Compare Hight, 199 Ga. App. at 745 (where defendant reasserted his defenses in abatement in motion for summary judgment, a ruling on merits of the case without addressing the issues in abatement was premature); Baiye v. Gober, 254 Ga. App. 288, 289-290 (2) (562 SE2d 249) (2002) (notwithstanding defendants’ failure to respond to plaintiff’s motion for summary judgment, it was premature for the trial court to rule on the merits of the case without addressing defendants’ service and jurisdictional defenses). We find, therefore, that the trial court did not act prematurely in ruling on the merits.

2. Rome also claims that the trial court erred in granting Polyidus’s motion for summary judgment because there remain genuine issues of material fact. We agree.

Summary judgment is warranted when any material fact is undisputed, as shown by the pleadings and record evidence, and this fact entitles the moving party to judgment as a matter of law. So, to prevail on a motion for summary judgment, the moving party must show that there is no genuine dispute as to a specific material fact and that this specific fact is enough, regardless of any other facts in the case, to entitle the moving party to judgment as a matter of law.

(Citations and punctuation omitted.) Strength v. Lovett, 311 Ga. App. 35, 39 (2) (714 SE2d 723) (2011). Here, Rome averred that all relevant dealings were between Rome and Thomas, individually, and that it was agreed that the funds transferred from Thomas to Rome on December 31, 2004 could be repaid as cash became available to Rome. According to Rome, “[o]n or about September 6, 2005 [he] transferred the sum of $250,000[ ], as directed by . . . Thomas, from [Rome] in Missouri to the account of Polyidus ... in full payment and satisfaction of any indebtedness to . . . Thomas.” As part of this averment, Rome specified Polyidus’s account number, the routing transit number, and the name and address of the bank to which the funds were transferred. Rome also averred that after Thomas demanded interest on the monies previously paid by Rome, he paid Thomas $11,500 on November 11, 2005, and that Rome understood that payment to be in full satisfaction of the obligations arising from the transfer of $250,000 on December 31, 2004.

We must conclude that the foregoing was sufficient to preclude the grant of summary judgment to Polyidus. The underlying complaint arises from an oral agreement for which the terms and even the identity of the contracting parties is in dispute. “[W]here there is a conflict in the evidence as to the existence of an oral contract or as to its terms, the matter must be submitted to a jury for resolution.” (Punctuation and footnote omitted.) Dover v. Mathis, 249 Ga. App. 753, 754 (549 SE2d 541) (2001). Polyidus argues that the trial court nevertheless “recognized that [Rome] had lied under oath” and so entered summary judgment in favor of Polyidus. But neither we nor the trial court can assess Rome’s credibility for purposes of summary judgment, and his affidavit is not shown to be legally incompetent. See Quarles v. Quarles, 285 Ga. 762, 763 (683 SE2d 583) (2009) (questions of witness credibility are for the factfinder). Although Polyidus asserts that Rome’s averments are conclusory, see, e.g., Morris v. Gavin, Inc., 268 Ga. App. 771, 772-773 (603 SE2d 1) (2004) (finding that testimony which amounted to an unsupported legal conclusion was without probative value), Rome’s affidavit is quite fact specific, including as to how he repaid the loan. To the extent that Thomas flatly denies that the payments were made as alleged by Rome, this shows only that a material fact is in dispute.

Further, Thomas’s averments reflect that there may have been more than one loan to Rome. Thomas denied the transfer of $250,000 to Polyidus on September 6, 2005, but with the proviso: “to satisfy the principal of the loan at issue in this case.” And attached to Thomas’s second affidavit is an account summary sheet for Polyidus with an entry designated “Wire from Wade Rome” in the amount of $250,000 on September 6, 2005, although, for some undetermined reason, the “$250,000” has a line drawn through it. Thomas denies the $11,500 payment “to Polyidus,” but Rome averred that this payment was made to Thomas directly.

Decided June 11, 2013.

Mickey E. Waller, for appellant.

Young, Thagard, Hoffman, Smith & Lawrence, John H. Smith, Jr., for appellee.

In his second affidavit, Thomas also attached a number of e-mails and documents which show that Rome acknowledged a debt to either Thomas or Polyidus, and that Rome made payments thereon even after Rome wired $250,000 to Polyidus on September 6, 2005. Notably, in a November 10, 2005, e-mail from Rome to Thomas, Rome references “the [$]250[,000] I still have,” he indicates his intent to “pay it back,” and he offers to make interest payments on the balance at a ten percent annual rate. Thus, Polyidus points to evidence that Rome acknowledged a debt to either Polyidus or Thomas, but Polyidus does not show that that obligation is, without genuine dispute, the same obligation for which Polyidus sought to recover in its complaint. And accepting Rome’s averments as true, the loan which forms the basis of Polyidus’s complaint was extended by Thomas, not Polyidus, and has been repaid in full. It follows that, inasmuch as genuine issues of material fact remain outstanding as to the terms of the loan extended on December 31, 2004, and whether that loan was satisfied, the trial court erred in granting summary judgment to Polyidus.

3. Rome also contends that the trial court erroneously granted Polyidus’s motion for summary judgment because Polyidus failed to file its supporting affidavits and documents at the time of filing of its motion, and that the trial court nevertheless considered them over Rome’s objection. In light of findings in Division 2, supra, this issue is moot.

Judgment reversed.

Miller and Ray, JJ., concur.

       Rome contends that he also objected to the timeliness of Thomas’s second affidavit. In support of this assertion, Rome has attached his attorney’s affidavit to his appellate brief. We cannot consider such an affidavit. See Court of Appeals Rule 24 (g) (“Documents attached to an appellate brief, which have not been certified by the clerk of the trial court as a part of the appellate record and forwarded to this Court, shall not be considered on appeal.”). Polyidus’s motion to strike the affidavit is granted.

       We note that the factual record is not well developed and essentially consists of opposing affidavits. There are no depositions, and there is no transcript of the hearing on motion for summary judgment.


text:
    A13A0475.
    WALKER v. THE STATE.
    (744 SE2d 366)
   Miller, Judge.

Following a jury trial, Michael Walker was convicted of aggravated sexual battery (OCGA § 16-6-22.2 (b)) and child molestation (OCGA § 16-6-4 (a) (1)). Walker appeals from the denial of his motion for new trial, contending that (1) the trial court erred in denying his motion in limine to exclude evidence that the victim contracted a sexually transmitted disease, and (2) trial counsel was deficient in failing to perfect the record and secure a final ruling on the motion to exclude this evidence. For the following reasons, we affirm Walker’s convictions.

Viewed in the light most favorable to the jury’s verdict, the trial evidence shows that Walker was the brother of the victim’s stepfather, and the victim referred to Walker as her uncle. In 2007, when the victim was nine years old,- she lived with her mother and stepfather in a house in Fulton County, Georgia. On or about August 17, 2007, the victim’s mother and stepfather had a barbecue at their house. That night, the victim slept on the floor of her mother’s room. Since the house had no air conditioning, the victim’s family slept with a loud fan in the room, which was turned on high. The fan sometimes made it difficult to hear people in the room when they were talking.

Around 7:00 the next morning, the victim woke up, and saw Walker sleeping on the floor next to her mother’s bed. The victim drifted in and out of sleep, and each time she woke up Walker was closer to her. The last time the victim woke up, Walker was behind her. Walker started asking the victim questions. Walker asked the victim if she wanted to be his secret girlfriend. Walker then tried to pull down the victim’s shorts, and he grabbed her hands and put them into his pants. Walker also put his hands inside the victim’s underwear and touched the inside of her private area. Walker then pulled down the victim’s pants and tried to stick his penis in her butt, thereby hurting her. The victim jumped up, and woke her six-year-old brother, who was sleeping by her mother and stepfather’s mattress. When the victim told her brother what happened, Walker asked her if she was trying to get him “banged up.” Walker then tried to give the victim and her brother candy and a blue key chain in an attempt to keep them from reporting the incident.

That same morning, after Walker left the house, the victim told her mother what had happened. The victim’s mother told her stepfather. The victim’s mother waited until August 22, 2007, however, before contacting police and reporting the incident, because the victim’s stepfather wanted to talk to Walker before they took any action. The day after the victim’s mother reported the incident, she took the victim to the emergency room to have her examined. A hospital screening test conducted on the victim revealed that she tested positive for chlamydia, a sexually transmitted disease.

Walker was indicted for aggravated sodomy (Count 1), aggravated child molestation (Count 2), aggravated sexual battery (Count 3) and child molestation (Count 4). Prior to Walker’s trial, the State dead docketed the aggravated child molestation charge, which specifically alleged that Walker caused the victim to contract chlamydia. Walker then moved in limine to exclude any evidence that the victim had chlamydia. The State argued that evidence of chlamydia was relevant to the aggravated sodomy charge to show that sexual contact occurred. The trial court ruled that it would deal with the evidence “as it goes,” but noted that “it’s dangerous territory.” The jury found Walker guilty of aggravated sexual battery and child molestation, and not guilty of the aggravated sodomy charge.

1. Walker contends that the trial court erred in admitting highly prejudicial and irrelevant evidence that the victim contracted chlamydia. We disagree.

Any evidence is relevant which logically tends to prove or disprove a material fact which is at issue in the case, and every act or circumstance serving to elucidate or throw light upon a material issue or issues is relevant. The trial court has great discretion to determine relevancy and materiality of evidence, and admission is favored in doubtful cases.

(Citation and punctuation omitted.) Simmons v. State, 282 Ga. 183, 187 (10) (646 SE2d 55) (2007). Moreover, this Court will not disturb the trial court’s exercise of its discretion absent evidence of abuse. See Smith v. State, 302 Ga. App. 128, 130 (1) (690 SE2d 449) (2010).

Here, Walker moved to exclude evidence that the victim had contracted chlamydia because such evidence was no longer relevant as it only applied to the aggravated child molestation count, which was dead docketed. In response to Walker’s motion, the State confirmed that it planned to establish a link between such evidence and the charged crimes through expert testimony that the victim’s allegations were consistent with how chlamydia is transmitted. The trial court then acted within its discretion by reserving its ruling on Walker’s motion to exclude the evidence. See Whitehead v. State, 287 Ga. 242, 248-249 (2) (695 SE2d 255) (2010) (holding that trial court may reserve final ruling on an objection to certain evidence and parties remain free to renew the objection during trial).

At trial, during opening and closing statements, the State argued that the victim contracted chlamydia directly from Walker. The State also presented evidence that the victim tested positive for chlamydia. Additionally, the State presented testimony from a communicable disease expert who opined that a person can test positive for chlamydia within two days after they are exposed to the disease, penetration is not necessary in order to transmit the disease, and a chlamydia infection can occur through either vaginal or anal contact.

Walker argues that this evidence was highly prejudicial and irrelevant; however, he did not object to the State’s opening and closing arguments, and he did not renew his objection to admission of the chlamydia evidence when the examining physician and communicable disease expert testified during his trial. Since the trial court reserved its ruling on the admissibility of the chlamydia evidence and Walker failed to renew his objection, Walker waived his claim regarding the admissibility of this evidence. See Jeffers v. State, 290 Ga. 311, 313-314 (4) (a) (721 SE2d 86) (2012) (defendant waived claim regarding admissibility of evidence where trial court reserved ruling on admissibility of each witness’s testimony until trial and the defendant failed to renew his hearsay objection).

Walker also argues that evidence showing that the victim contracted chlamydia was inadmissible under the Rape Shield Statute, which excludes evidence of a victim’s past sexual behavior in rape or other sex crime cases. See former OCGA § 24-2-3; Warner v. State, 277 Ga. App. 421, 423 (2) (626 SE2d 620) (2006). Because Walker did not object on this ground at trial, this argument presents nothing for us to review. Brown v. State, 277 Ga. 573, 574 (3) (592 SE2d 666) (2004).

2. Walker contends that trial counsel provided ineffective assistance by failing to perfect the record and secure a final ruling from the trial court after he moved in limine to exclude references to chlamydia. We do not agree.

To establish ineffective assistance of counsel under Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984), a criminal defendant bears the burden of showing that counsel’s performance was deficient and that the deficient performance so prejudiced defendant that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different.... The trial court’s determination with respect to effective assistance of counsel will be affirmed unless its findings are clearly erroneous.

Decided June 11, 2013.

Long D. Vo, for appellant.

Paul L. Howard, Jr., District Attorney, Arthur C. Walton, Assistant District Attorney, for appellee.

(Citations and punctuation omitted.) Robinson v. State, 312 Ga. App. 736, 742 (3) (719 SE2d 601) (2011). It is clear from the record that part of Walker’s trial strategy was to convince the jury that he could not have committed the charged acts because the victim had chlamydia and no evidence showed that he ever had that sexually transmitted disease. Notably, Walker argued in his opening statement that the State could not prove that the victim contracted chlamydia from him. In closing, Walker reiterated this argument and specifically pointed out the lack of any evidence that he ever had chlamydia. “This [C] ourt has repeatedly held that trial strategy and tactics do not equate with ineffective assistance of counsel.” (Citation and punctuation omitted.) Jacobson v. State, 201 Ga. App. 749, 752 (5) (a) (412 SE2d 859) (1991).

Moreover, Walker cannot show that the trial court abused its discretion in admitting the chlamydia evidence since he used that evidence to successfully argue in favor of his acquittal of the aggravated sodomy charge. See Warner, supra, 277 Ga. App. at 424 (2). Given his acquittal on that charge, Walker cannot show prejudice in trial counsel’s failure to renew his objection to admission of this evidence. See Jacobson, supra, 201 Ga. App. at 753 (5) (b). Accordingly, Walker failed to show that the trial court clearly erred in determining that he was afforded effective assistance of counsel.

Judgment affirmed.

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

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


text:
    A13A0024.
    EASTER v. THE STATE.
    (744 SE2d 374)
   Ray, Judge.

After a jury trial, Mark Easter was convicted of rape, kidnapping, false imprisonment and impersonating a police officer. He appeals the denial of his motion for new trial, asserting the following enumerations of error: (1) the trial court erred in denying his motion to produce the victim’s psychiatric records; (2) the trial court erred in denying his motion to exclude; (3) the trial court erred in denying his motion for a mistrial and a curative instruction; (4) the trial court erred in restricting his general voir dire questions; and (5) the trial court erred in denying his motion for a continuance. Easter additionally argues that the prosecutor’s closing statement improperly shifted the burden of proof onto the defendant. Because each of these enumerations lacks merit, we affirm Easter’s convictions.

Viewed in the light most favorable to the verdict, Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979), the trial evidence shows that on March 7, 1999, the victim, a 17-year-old female, hopped a turnstile at a MARTA station to catch a train. Easter approached the victim. He identified himself as an undercover MARTA policeman, showed her his badge, told her she was under arrest, and placed her in handcuffs. Easter then picked up the MARTA service phone and gave a code to give the appearance that he was a MARTA officer.

Easter forced the handcuffed victim to leave the MARTA station with him, informing her that they were going to the police station. Easter then took the victim to an abandoned apartment; he told the victim that “he had a friend that was a pimp, and if [she] worked for the friend that he would not arrest [her].” The victim refused. Easter then informed her that he had a gun, pepper spray, and a knife, and that he wanted to have sex with her. The victim said that she did not want to have sex with him, but that she would not fight back because she was afraid that he would hurt her. Easter raped the victim.

Easter then dressed and walked with the victim to a telephone at a hotel in the city. The victim testified that she did not call out for help because she was still handcuffed under her coat and was afraid that Easter would hurt her. After making the call, Easter forced the victim to walk down the street where they were picked up by a taxicab driven by Easter’s friend. Easter and his friend drove her to an apartment on Buford Highway where they introduced her to a third man, who informed the victim that he would meet her that weekend. The taxi driver then drove them to another apartment where she was released from her handcuffs. Once inside, Easter instructed the victim to take a shower. He then sprayed her with cologne and forced her to have sex with the taxi driver.

After about two hours, Easter forced the victim back into the taxi and drove to the first apartment complex on Buford Highway. Easter knocked on the door, and no one answered. Easter then forced the victim into the apartment’s laundry room and raped her again. The victim testified that Easter used a condom both times he raped her.

Easter then drove the victim to an Office Max store and began to xerox fliers for a business called “Massage World.” Easter told the victim that he was making the flyers because he had a prostitution business and that he was a pimp. As Easter walked the victim back from the restroom, the victim noticed an Office Max employee and signaled “911” to her using her fingers behind her back. The victim then mouthed “please” to the employee. The employee then mouthed back “are you okay?” to the victim, who shook her head no. The employee then mouthed “It’s going to be okay.” A policeman entered the store as Easter went to the front desk of the store. Easter put his bag down and then ran out the back door of the store..

The police took the victim to the hospital, where a rape kit was performed. The treating physician noted in her report that the victim had bruising around both wrists that would have been consistent with being placed in handcuffs and noted redness and irritation to the victim’s vaginal area.

The rape kit was then tested by the GBI crime lab. Spermatozoa was located in the rape kit, and a DNA comparison matched the spermatozoa to Easter’s DNA.

1. In his first enumeration of error, Easter contends that the trial court erred when it refused to grant his motion for disclosure of the psychiatric history of the victim under Bobo v. State, 256 Ga. 357 (349 SE2d 690) (1986). Easter claims that he was entitled to the victim’s psychiatric records because he did not deny having sex with the victim; thus, the case against him rested upon the victim’s credibility. Easter argues that “[h]ad he been able to further attack her credibility with materials gleaned from mental health records, the outcome might have been very different.” We are unpersuaded.

In Bobo, our Supreme Court held, in a plurality opinion, that a witness’ statutory psychiatrist-patient privilege must yield to the defendant’s constitutional right of confrontation if the defendant makes a “showing of necessity, that is, that the evidence in question is critical to his defense and that substantially similar evidence is otherwise unavailable to him.” Id. at 360 (4). Our Supreme Court noted that the psychiatrist-patient privilege “prohibits the defendant from engaging in a ‘fishing expedition’ regarding a witness’ consultations with a psychiatrist. Therefore, a defendant may not explore such evidence unless he makes allegations sufficient to establish a prima facie need for its discovery.” Id.

At the motions hearing and in his appellate brief, Easter points to no evidence indicating that the victim’s psychological records are necessary to his defense. Rather, Easter merely speculates that the records might show that the victim’s “story was different than what we expect her to testify at trial, and any other information that may go to her credibility.” Easter has not shown that the victim’s mental condition or treatment was relevant to, or affected the credibility of, her allegations. In the absence of such evidence, Easter has failed to demonstrate the required necessity to obtain the victim’s psychiatric history. See Atkins v. State, 243 Ga. App. 489, 496-497 (3) (533 SE2d 152) (2000).

2. Easter alleges that the trial court erred when it allowed the State to admit into evidence the contents of the bag Easter left behind when he fled the Office Max store. Specifically, Easter objects to the admission of condoms and “Massage World” flyers found inside the bag.

“Admission of evidence is a matter which rests largely within the sound discretion of the trial judge, and if the evidence has a tendency to establish a fact in issue, that is sufficient to make it relevant and admissible.” (Citations and punctuation omitted.) Davidson v. State, 231 Ga. App. 605, 608 (3) (499 SE2d 697) (1998).

Easter relies upon Simpson v. State, 271 Ga. 772 (523 SE2d 320) (1999), for the assertion that

evidence of sexual paraphernalia found in defendant’s possession is inadmissible unless it shows defendant’s lustful disposition toward the sexual activity with which he is charged or his bent of mind to engage in that activity. Under this rule, sexually explicit material... can only be admitted if it can be linked to the crime charged.

Id. at 774 (1). Easter argues that “the mere possession of condoms” and flyers for a massage business have “nothing to do with rape.” However, this argument is unavailing, as the items from the bag admitted at trial corroborate the victim’s testimony. The victim testified that Easter used a condom both times he raped her; that Easter had the black bag with him; that on several occasions, he had told her that he was a pimp; and that he had told her that the “Massage World” flyers were for his prostitution business. Further, when Easter was arrested, he had a business card in his pocket for ‘Massage World.” See Miller v. State, 219 Ga. App. 213, 217 (3) (464 SE2d 621) (1995). The trial court did not err when it allowed the contents of the bag into evidence.

3. Easter asserts that the trial court erred when it refused to grant a mistrial or give a curative instruction based upon the testimony of Detective James Beavers. Detective Beavers spoke with the victim shortly after she was rescued at the Office Max. He testified at trial that the victim looked “very tired. Her eyes were red as if she had been crying. She had on her clothing some red or orange substance that could have been pepper spray.” Without citing to any legal authority, Easter contends that Detective Beavers’ passing reference to the potential for the presence of pepper spray on the victim’s clothing was cause for a mistrial because there had been no evidence presented at trial that the victim had been sprayed with pepper spray.

“Whether to grant a motion for mistrial is within the trial court’s sound discretion, and the trial court’s exercise of that discretion will not be disturbed on appeal unless a mistrial is essential to preserve the defendant’s right to a fair trial.” (Footnote omitted.) Ottis v. State, 271 Ga. 200, 201 (3) (517 SE2d 525) (1999). See Smith v. State, 288 Ga. 348, 350 (3) (703 SE2d 629) (2010) (mistrial should be granted only where “essential to the preservation of the defendant’s right to a fair trial”) (citation and punctuation omitted).

In this case, we find no prejudice and no abuse of discretion. At trial, the victim testified that Easter told her that he had pepper spray and that he had threatened to spray her with pepper spray if she tried to run or if she looked at anyone else. However, there was no testimony that Easter actually used pepper spray on her. Further, immediately after making the statement regarding the potential for pepper spray on the victim’s clothing, the State and the trial court questioned Detective Beavers further, and he then admitted that he “didn’t know” whether the substance was pepper spray. The trial court did not abuse its discretion in denying this motion.

4. Easter contends that the voir dire examination was overly restrictive. He first argues that the trial court erred in refusing to allow him to ask prospective jurors if they “believe [d] that sometimes people are wrongfully accused of a crime.” He further argues that the trial court erred in refusing to allow him to ask whether the prospective jurors’ “ability to be fair and impartial [would] be affected by testimony that involves explicit sexual language and acts.” We find no error.

The single purpose for voir dire is the ascertainment of the impartiality of jurors, their ability to treat the cause on the merits with objectivity and freedom from bias and prior inclination. Questions of a technical legal nature and questions that call for prejudgment are improper in a voir dire examination. Since there is often a fine line between asking potential jurors how they would decide the case and questions that merely seek to expose bias or prejudice, the scope of the voir dire examination, of necessity, must be left to the sound discretion of the trial court.

(Citations omitted.) Bryant v. State, 288 Ga. 876, 880 (4) (a) (708 SE2d 362) (2011). See Waldrip v. State, 267 Ga. 739, 742 (2) (482 SE2d 299) (1997) (finding no error in prohibiting questions “which required the jurors to prejudge the case”) (citation omitted). Although we note that there is nothing inherently objectionable to the voir dire questions that defense counsel sought to ask, we find that the trial court did not abuse its discretion in failing to allow them because a review of the record in this case shows that the voir dire examination was “broad enough to allow the parties to ascertain the fairness and impartiality of the prospective jurors.” (Citation and punctuation omitted.) Hall v. State, 259 Ga. 412, 414 (1) (383 SE2d 128) (1989).

5. Without citing to any relevant case law, Easter argues that the trial court erred in denying his motion for a continuance premised on the assertion that the State was tardy in providing its DNA evidence. We disagree.

“All applications for continuances are addressed to the sound legal discretion of the court and, if not expressly provided for, shall be granted or refused as the ends of justice may require.” OCGA § 17-8-22. This Court will not reverse a trial court’s denial of a motion for a continuance “except upon a clear abuse of the trial court’s discretion. Moreover, to be entitled to a new trial based upon the denial of his motion for a continuance, the defendant has the burden to show that he was harmed by that denial.” (Citations and punctuation omitted.) Williams v. State, 317 Ga. App. 248, 256 (3) (730 SE2d 726) (2012).

Even assuming that the trial court erred in denying the motion for a continuance, Easter has failed to demonstrate that any prejudice resulted from the denial of his motion. Easter argues that the State’s tardy filing of the DNA evidence meant that he was unable to review it with his expert until mid-trial. This, he argues, prevented him from offering to admit in his opening statement that Easter had engaged in sexual relations with the victim, and that “[t]his was prejudicial to the [d]efendant[ ] since the entire case turned on the credibility of the [victim’s] testimony.” Contrary to his assertion, Easter has failed to demonstrate that any prejudice resulted from the denial of his motion for continuance. His trial counsel still argued during his opening statement that his victim had consented to engage in sexual relations with Easter. Counsel stated:

Decided June 12, 2013.

Harry H. Harkins, Jr., for appellant.

Paul L. Howard, Jr., District Attorney, Christopher M. Quinn, Assistant District Attorney, for appellee.

This case is essentially about what [the victim] says happened that night. [The victim] is the only witness who can testify firsthand as to exactly what happened that night... whether she agreed to pimp for him, agreed to have sex with him or another man. Those are all issues that only she can testify to.

Easter’s trial counsel further presented the possibility that the victim had consented to one or more of the alleged sexual encounters during closing argument. Moreover, there was overwhelming evidence beyond the victim’s testimony that the victim did not consent to have sex with Easter, including bruises on her wrists consistent with handcuff usage, that Easter’s bag contained handcuffs, an Office Max employee’s testimony that the victim had signaled her distress to her, and that there was redness and irritation to her vaginal area. We find no abuse of discretion.

6. Easter contends that the prosecutor committed error when, during closing argument, he improperly shifted the burden of persuasion onto the defendant. However, Easter “did not object to the now challenged comments by the prosecutor. In the appeal of a non-capital case, the defendant’s failure to object to the State’s closing argument waives his right to rely on the alleged impropriety of that argument as a basis for reversal.” (Citation and punctuation omitted.) Powell v. State, 291 Ga. 743, 746 (2) (a) (733 SE2d 294) (2012). Further, “a trial judge has no obligation ... to rebuke a prosecuting attorney or give a curative instruction in the absence of a timely objection.” (Citations omitted.) Id.

Judgment affirmed.

Barnes, P. J., and Miller, J., concur.

       In his motion for disclosure of the victim’s psychiatric history, Easter also requested that the trial court conduct an in camera inspection of the victim’s files to determine whether it contained any pertinent information relative to the defense. In its order denying the motion, the trial court declined to conduct an in camera inspection. Whether or not the trial court erred in refusing to conduct such an in camera inspection was not raised as an enumeration of error, as Easter objects only to the failure of the trial court to provide him with “access to this information.” Accordingly, whether or not the trial court erred in refusing to conduct an in camera inspection is not properly before us on appeal. See Mitchell v. State, 255 Ga. App. 585, 592 (7) (565 SE2d 889) (2002).