text:
    A11A0500.
    THE STATE v. SHIRLEY.
    (714 SE2d 636)
   Mikell, Judge.

Finding a violation of his constitutional right to a speedy trial, the trial court granted Ramone Shirley’s motion to dismiss indictment. The state argues on appeal that the trial court abused its discretion in applying the balancing test formulated by the United States Supreme Court in Barker v. Wingo. For the reasons set forth below, we disagree and affirm.

Shirley was arrested on September 20, 2006, and was subsequently indicted for trafficking in cocaine. He filed his motion to dismiss indictment for delay in prosecution on February 17, 2010. The motion came before the trial court for evidentiary hearings on July 9 and July 19, 2010, and the trial court granted the motion in an order entered on September 8, 2010.

The evidence presented at the motion hearings showed that a confidential informant (“Cl”) allegedly sold cocaine to Shirley on three separate occasions under the supervision of a team of law enforcement officers. The state’s investigation was complete by the time Shirley was indicted on October 3, 2006. On October 10, 2006, Shirley opted into discovery.

Shirley filed a motion to reveal on January 16, 2007. In response, the state conceded that it had an obligation to reveal the identity of the CL On July 20, 2007, Shirley’s case appeared at position 122 on the calendar before Judge Campbell, and the case was noticed to the September 2007 motions calendar. Both parties announced ready at the jury trial calendar conducted before Judge Campbell on March 21, 2008, at which time Shirley’s case was listed as position 118. On that same date, Judge Campbell ordered the state to reveal the Cl’s identity, date of birth, and any monetary or legal consideration provided to the Cl on account of his participation in the investigation of the case. The order did not contain a date certain by which the information was required to be disclosed.

After the March 21, 2008 order, the case appeared on numerous trial calendars, and the state announced ready although it had not revealed the Cl information to the defense. The prosecutor’s notes show that the state consistently asked for a special setting for the trial during that time. The defense announced ready but subject to the state’s disclosure of the Cl information.

According to the affidavit of Geniece Granville, which was admitted by stipulation, she was assigned to handle the case on November 29, 2009. At a February 16, 2010, calendar call, she announced ready for trial and asked for a special setting to protect the safety of the Cl. At the calendar call, Judge Campbell ordered the state to reveal the identity of the Cl by February 18, 2010. Shirley served the state with his motion to dismiss on or about February 17, 2010. In filings with the court on February 18 and 22, 2010, Granville identified the Cl, his date of birth, and the monetary consideration he received. On May 1, 2010, the case was transferred to Judge Downs, who presided over the hearings on Shirley’s motion to dismiss.

1. Constitutional Framework. In deciding a speedy trial claim, the threshold inquiry is “whether the interval from the accused’s arrest, indictment, or other formal accusation to the trial is sufficiently long to be considered presumptively prejudicial. If not, the speedy trial claim fails at the threshold.” If the initial inquiry is satisfied, the trial court is required to balance the four Barker factors to determine if the accused has been deprived of a speedy trial:

whether delay before trial was uncommonly long, [2] whether the government or the criminal defendant is more to blame for that delay, [3] whether, in due course, the defendant asserted his right to a speedy trial, and [4] whether he suffered prejudice as the delay’s result.

“Standing alone, none of these factors are a necessary, or sufficient condition to a finding of deprivation of the right to a speedy trial, but rather should be considered as part of a balancing test.” As noted in Barker, “[a] balancing test necessarily compels courts to approach speedy trial cases on an ad hoc basis.” However, the trial court is obligated to provide sufficient findings of fact and conclusions of law to allow appellate review of its Barker analysis. We review those findings for abuse of discretion.

2. The Threshold Inquiry. For serious crimes lacking unusual complexities, “one year generally marks the point at which expected deliberateness in the prosecution of a criminal matter turns into presumptively prejudicial delay.” If a trial has not occurred, the length of the delay is calculated from the date of arrest or other formal accusation to the date of the grant or denial of the speedy trial motion. Here, Shirley was arrested on September 20, 2006, and the trial court decided the motion to dismiss on September 8, 2010, nearly four years later. We agree with the trial court that the threshold of presumptive prejudice was met, triggering the second stage of the constitutional speedy trial analysis.

3. The Barker Factors.

(a) Length of the Delay. The state does not challenge the trial court’s finding that the length of the delay was uncommonly long and should be weighed heavily against the state.

(b) Reasons for the Delay. An analysis of this factor involves assessment of “the reason for the delay and whether this is attributable to the defendant or the state.” Delays attributable to the state fall along a spectrum from “delay resulting from, or in spite of, the State’s diligent prosecution of the case,” which will rarely support a speedy trial claim, to “deliberate delay to gain an improper advantage over the accused, including delays designed to hamper a defendant’s ability to mount a successful defense.” The latter “will virtually always result in a dismissal of the case against the defendant, because it strikes at the very heart of the speedy trial guarantee.” The delay in many cases lies with “some type of official neglect,” which falls within the middle of the spectrum.

The trial court concluded that no meaningful part of the delay was attributable to the defense. The state, it found, had “strategically delayed the prosecution of the case in order to gain a tactical advantage over the defense and to harass the Defendant.” The trial court therefore weighed this factor heavily against the state. The state assigns error to the trial court’s findings, arguing that the trial court abused its discretion because there was no evidence that the state deliberately attempted to delay Shirley’s trial in order to hamper the defense, and that the delay in the trial was actually due to tremendous caseloads, change of judges, and overcrowded dockets.

The trial court did not abuse its discretion in failing to accept the state’s explanation for the delay. For one thing, the trial court was peculiarly well suited to assess the import of evidence related to the caseload, docket, and trial calendar of the very court on which it sat. In addition, other facts tended to show that the delay in the case was due to the state’s deliberate choices and not more benign factors, such as overcrowded dockets. The trial court found, and the evidence showed, that this was a standard narcotics case and that the state had completed its investigation by the time Shirley was indicted in October 2006. The state admitted that it was required to reveal the Cl’s identity to Shirley, and the state was also under a court order to disclose the Cl information. The case could not proceed to trial until the state provided the Cl information, yet that information remained intentionally undisclosed for years. Since prosecutors made deliberate choices that led to the unreasonable delay in reaching trial, the trial court would have been authorized to weigh the reasons for the delay against the state even if it had not found that the state delayed the prosecution in order to gain an advantage over Shirley.

We disagree with the state that the trial court erred in finding that the state deliberately delayed the trial in order to hamper the defense. The trial court noted that the state’s investigation had been completed for years, that the case had been pending for years, and that the state had ignored Judge Campbell’s order for almost two years. Meanwhile, “[e]ach time the [sjtate appeared at the calendar call [it] announced ready knowing that it had not complied with Judge Campbell’s order or with its basic discovery obligations pursuant to OCGA § 17-16-8.” Accordingly, the trial court found that the state “intended the defense to be prepared in a ‘last-minute scramble’ ” and that such “gamesmanship” should be weighed heavily against the state.

We are sympathetic to the state’s claim that its delay in releasing the Cl information was attributable to its concern for the safety of the CL We cannot say, however, that the trial court was required as a matter of constitutional law, state or federal, to find the state’s position credible, especially given that the state did not support its generalized concerns for the Cl’s safety with specific evidence. The state correctly points out that Judge Campbell’s 2008 order does not have a date certain for compliance, but it does not follow that the state could therefore delay the trial for years. Nor was the trial court required to accept the state’s proffered reasons for announcing ready at calendar calls when it was not, in fact, ready to try the case. As a general principle, where “there is evidence on both sides of [the] case[,] this court will not substitute its opinion concerning the weight of the evidence for that of the factfinder.” The trial court could infer from the evidence that the state had delayed the trial in order to gain an improper advantage over the defense and therefore, even if this Court would have ruled differently, we cannot find the trial court abused its discretion in so finding. It follows that the trial court did not err in weighing the reasons for the delay heavily against the state.

(c) Assertion of the Right to Speedy Trial. The trial court found that Shirley asserted his right to speedy trial in due course. “The accused is not required to demand a speedy trial at the first available opportunity, for the Supreme Court has expressly rejected the demand-waiver approach to the constitutional speedy trial right.” However, a defendant bears some responsibility to invoke his speedy trial rights so as to put the government on notice that he prefers to be tried as soon as possible. Whether a defendant has asserted the right to speedy trial in due course “requires a close examination of the procedural history of the case with particular attention to the timing, form, and vigor of the accused’s demands to be tried immediately.”

The state contends that because approximately three years and five months passed from the time of Shirley’s arrest to the filing of his motion to dismiss, the trial court should have weighed Shirley’s delay in asserting his right to a speedy trial heavily against the defense. It is true that a delay between three and four years in asserting the right to a speedy trial is normally required to be weighed heavily against a defendant. Nevertheless, the trial court is entitled to consider mitigating circumstances in balancing this factor.

Here, the trial court noted that Shirley had to file a motion and obtain an order requiring the state to reveal the Cl, and that in the two-year period after the issuance of the order defense counsel appeared at numerous trial calendars and informed the state that he was ready to try the case subject to receipt of the Cl’s identity. We have accepted, as an appropriate mitigating circumstance in weighing this factor, a trial court’s finding that a defendant “cannot be faulted for demanding that the [s]tate comply with discovery obligations before trial began.” Similarly, in this case the trial court was not required to fault Shirley for deciding to appear at calendar calls and announce ready, subject to the state’s compliance with its obligation to reveal the Cl, as opposed to formally demanding an immediate trial. We recognize that the trial court might have exercised its discretion differently. Nevertheless, the circumstances of the case supported the trial court’s decision not to weigh this factor against Shirley, and we find no abuse of discretion.

(d) Prejudice to the Defendant. The trial court found that Shirley was not required to show that he was actually prejudiced by the delay. It further concluded that, examining the delay in relation to other factors, Shirley had established a presumption of prejudice that the state had not rebutted.

The trial court’s analysis was correct in that “[a] defendant need not show demonstrable prejudice to prevail on a speedy trial claim.” “[0]nce the threshold of presumptive prejudice is satisfied, a presumption of prejudice always exists, although it increases in weight over time.” Citing our decision in Gray v. State, the state insists that “unless all of the first three Barker factors weigh heavily against the [sjtate, [the defendant] must demonstrate actual prejudice to succeed in his motion to dismiss.” However, in Porter, our Supreme Court has recently rejected this formulation, finding it to be “inconsistent with the flexible balancing test required by Barker and this Court’s precedents.” Accordingly, the trial court did not err in finding that Shirley had been prejudiced by the delay.

(e) Balancing the Four Factors. The trial court, in light of its previous findings, but without specifically balancing the four factors, granted Shirley’s motion to dismiss the indictment. Although the trial court did not expressly balance the factors, each factor, as previously considered, was consistent with a finding that Shirley’s constitutional right to a speedy trial had been violated. Accordingly, there was little balancing required.

In addition, we have, albeit reluctantly, accepted the trial court’s finding that the state delayed the trial to gain an improper advantage. This finding is, of course, an inference from the evidence. It is elementary that on appellate review, all inferences are supposed to be drawn to support the decisions of the finder of fact. The circumstance that one or all of the judges of this court might have drawn a different inference is irrelevant to whether we should affirm or reverse. Such a finding, as previously noted, virtually always results in a dismissal of the case against the defendant. Accordingly, the trial court’s dismissal of the indictment is affirmed.

Decided June 30, 2011

Reconsideration denied July 26, 2011.

Paul L. Howard, Jr., District Attorney, Lenny I. Krick, Assistant District Attorney, for appellant.

Bruce S. Harvey, for appellee.

Judgment affirmed.

Smith, P. J., and Dillard, J., concur.

       407 U. S. 514, 530 (IV) (92 SC 2182, 33 LE2d 101) (1972). Accord State v. Pickett, 288 Ga. 674, 675 (2) (a) (706 SE2d 561) (2011); State v. Porter, 288 Ga. 524, 525-526 (2) (a) (705 SE2d 636) (2011); see generally State v. Lattimore, 287 Ga. 505, 510 (696 SE2d 613) (2010) (Nahmias, J., dissenting).

       (Punctuation and footnote omitted.) Ruffin v. State, 284 Ga. 52, 55 (2) (663 SE2d 189) (2008).

        Doggett v. United States, 505 U. S. 647, 651 (II) (112 SC 2686, 120 LE2d 520) (1992), citing Barker, supra.

       (Citation omitted.) Layman v. State, 284 Ga. 83, 84 (663 SE2d 169) (2008).

        Barker, supra.

       See Higgenbottom v. State, 288 Ga. 429, 430-431 (704 SE2d 786) (2011).

        Lattimore, supra at 506.

       (Footnote omitted.) Ruffin, supra at 55 (2) (a).

       See Porter, supra at 526 (2) (b).

       (Citation and punctuation omitted.) State v. Johnson, 274 Ga. 511, 512 (555 SE2d 710) (2001).

       (Citation and punctuation omitted.) Hayes v. State, 298 Ga. App. 338, 342 (2) (b) (680 SE2d 182) (2009).

       (Citation and punctuation omitted.) Id.

       Id.

        Jackson v. State, 272 Ga. 782, 784 (534 SE2d 796) (2000) (“While there is no evidence that this was a deliberate attempt to ‘hamper the defense,’ neither is it negligence which is ‘relatively benign.’ It is therefore weighted against the state”) (footnote omitted); Hayes, supra at 344 (2) (b) (“delays resulting from deliberate decisions made by the State, strategic or otherwise, cannot be considered benign and must be weighted more heavily against the State”) (citation omitted).

       When the trial court asked an assistant district attorney why she had announced ready without having submitted the Cl information, she indicated that the state was ready “once we got a special setting.” However, it does not appear that the case was ever specially set for trial. In response to questioning by the trial court, the assistant district attorney was also unwilling to confirm that the state needed the special setting to try the case. The trial court in its order mentioned that it does not accept the state’s argument that to protect the Cl the state was justified in delaying the trial (by delaying compliance with Judge Campbell’s order) until it received a “special setting,” i.e., a date certain for the trial to begin.

       (Citation and punctuation omitted.) Turner v. Trammel, 285 Ga. 847, 848 (684 SE2d 623) (2009).

       (Footnote omitted.) Ruffin, supra at 62 (2) (b) (iii).

       Id.

       (Footnote omitted.) Id. at 63.

       See Brown v. State, 287 Ga. 892, 895 (1) (c), 896 (2) (c) (700 SE2d 407) (2010) (co-defendants’ respective two- and three-year delays in asserting right to speedy trial weighed heavily against them); Layman, supra at 86 (under the circumstances, four-year delay in asserting right to speedy trial weighed heavily against defendant).

       See State v. White, 282 Ga. 859, 862 (2) (c) (655 SE2d 575) (2008).

       (Punctuation omitted.) State v. Ivory, 304 Ga. App. 859, 862-863 (2) (c) (698 SE2d 340) (2010).

       See also State v. Moses, 301 Ga. App. 315, 319-320 (2) (c) (692 SE2d 1) (2009) (factors warranting mitigation included defendant’s appearance and announcement of ready for trial when state was not prepared to try the case).

       See Williams v. State, 300 Ga. App. 797, 798 (c) (686 SE2d 407) (2009) (trial court did not err in weighing the reasons for the delay against the defendant notwithstanding her contention that the state had not complied with her discovery requests).

       See Ivory, supra at 864 (3) (“the trial court. . . refused to weigh Ivory’s failure to assert his right to a speedy trial against him because he could not be blamed for not demanding to be tried when discovery was still outstanding”).

       “[T]he presumptive prejudice that arises from the significant delay in [the defendant’s] trial cannot alone carry his Sixth Amendment claim without regard to the other Barker criteria. Instead, it is part of the mix of relevant facts, and its importance increases with the length of delay.” (Punctuation and footnotes omitted.) Harris v. State, 284 Ga. 455, 456-457 (667 SE2d 361) (2008).

       As our Supreme Court has noted:
      The weight given to the prejudice factor may be bolstered if the defendant can demonstrate some actual impairment to his defense in addition to prejudice that is presumed from the passage of time. Likewise, the weight given to presumed prejudice may be reduced or even eliminated if the [s]tate can show that the defense has not, in fact, been substantially impaired.

        Porter, supra at 532 (2) (d).

       (Citation omitted.) Pickett, supra at 677 (2) (c) (4).

       (Citations omitted.) Porter, supra at 531 (2) (c) (4).

       303 Ga. App. 97 (692 SE2d 716) (2010).

       Id. at 101-102 (d) (iii), citing United States v. Ingram, 446 F3d 1332, 1338 (IV) (11th Cir. 2006).

       Supra.

       Id. at 533 (2) (d), n. 4, citing Ingram, supra at 1337-1338 (IV).

       See Porter, supra at 532 (2) (d) (“If all four factors point in one direction, the result of weighing them together will be clear”).

       It would pervert the appellate system for us to find an abuse of discretion or to find the trial judge’s inference clearly erroneous whenever we disagreed with him or her.

       However, if there is no evidence in the record to support the inference, it will be disallowed.

       See Hayes, supra at 342 (2) (b).


source: Caselaw Access Project

author: Dillard, Judge.

license: Public Domain

text:
    A11A0068.
    GEORGIA MESSENGER SERVICE, INC. v. BRADLEY et al.
    (715 SE2d 699)
   Dillard, Judge.

In this personal injury case, we granted Georgia Messenger Service, Inc.’s (“GMS”) application for interlocutory appeal in order to review whether the trial court erred in denying GMS’s motion for summary judgment. For the reasons noted infra, we affirm.

Viewing the evidence in the light most favorable to the non-movant, Vernetta Bradley, the record shows that on the afternoon of September 20, 2005, courier John W S. Wise, Jr. arrived in front of the Palisades Office Park in Dunwoody to make one of his many deliveries that day on behalf of GMS. Wise attempted to park in the service parking spot designated for deliveries, but it was occupied at that time by Bradley’s security-guard vehicle, which she refused to move. Under time pressure and with many more scheduled deliveries, Wise parked directly in front of the building, “waved-off’ Bradley’s vocalized objections to his doing so, and then ran inside to deliver the package. Less than a minute later, Wise emerged from the building to find Bradley applying a “boot” to his vehicle. Wise asked Bradley not to place the boot on his car, but she refused to accommodate his request. At this point, Bradley claims that Wise “violently kicked [her] in the head,” threw the boot into the bushes, and then drove away. Wise continued making deliveries for GMS until 10:00 or 11:00 p.m. that evening.

Thereafter, Bradley sued Wise for assault and battery, and further asserted that GMS was both vicariously liable under the doctrine of respondeat superior for Wise’s conduct and independently liable for its negligent hiring, negligent retention, and negligent entrustment of Wise. In Georgia Messenger Service, Inc. v. Bradley, we reversed the trial court’s denial of summary judgment to GMS on Bradley’s negligence claims after concluding that they failed as a matter of law, but then remanded the case to the trial court to consider whether Wise was an employee of GMS and, if so, whether he was working within the scope of that employment at the time of the incident so as to extend vicarious liability to GMS. On remand, the trial court denied GMS’s motion for summary judgment, concluding that genuine issues of material fact remained as to whether (1) GMS controlled the time, manner, and method of Wise’s delivery services, such that he was an employee rather than an independent contractor, and (2) Wise’s allegedly tortious conduct was within the scope of that employment relationship. This appeal follows.

1. GMS contends that the trial court erred in denying summary judgment as to Bradley’s claims, arguing that it cannot be held vicariously liable for the alleged actions of Wise because it did not employ him and, as such, did not direct or control the time, manner, and execution of the work he performed on its behalf as an independent contractor. We disagree.

In considering GMS’s argument, we begin by noting that an employer is generally not liable for the torts of an independent contractor. The historical reason for this common-law rule is that because “the employer has no right of control over the manner in which the work is to be done, it is to be regarded as the contractor’s own enterprise, and he, rather than the employer, is the proper party to be charged with the responsibility for preventing the risk[.]” To this end, when a “contract of employment clearly denominates the other party as an independent contractor, that relationship is presumed to be true unless the evidence shows that the employer assumed such control.”

The test for determining whether an employer is exercising a degree of control over an independent contractor’s work such that the law will deem the independent contractor to be a servant of that employer — thus making the employer vicariously liable for any wrongful acts committed by the contractor — is whether

the contract gives, or the employer assumes, the right to control the time, manner, and method of the performance of the work, as distinguished from the right to merely require certain definite results in conformity with the contract.

Put another way, “the test is essentially whether the contractor has a bona fide existence apart from the employer or functions instead as the employer’s alter ego.”

Here, the employment contract between Wise and GMS designates Wise as an independent contractor. Nevertheless, we agree with the trial court that there is a genuine issue of material fact as to whether the degree of control exercised by GMS over Wise’s delivery services was such that GMS may be held liable for Wise’s allegedly tortious actions against Bradley. Specifically, Wise maintains that, as a practical matter, he (1) “was to perform duties on behalf of [GMS] as the duties were assigned to [him],” (2) “had no choice as to which jobs [he] performed,” and (3) “could only work for [GMS], and that [he] could work for no other courier companies[.]” Moreover, despite the fact that GMS’s contract with Wise designated him as an independent contractor, Wise’s claim that he was only permitted to work for GMS is substantiated, to some degree, by this same contract, which prohibited him from allowing his vehicle “to be used by anyone other than [GMS].” Thus, the trial court did not err in denying GMS summary adjudication on this particular basis.

2. Next, GMS argues that even if Wise was its servant at the time he allegedly harmed Bradley, it is still not liable for Wise’s actions because they were not done in the scope of his employment or in furtherance of GMS’s business. We disagree.

Under Georgia law, “[t]wo elements must be present to render a master liable for his servant’s actions under respondeat superior: first, the servant must be in furtherance of the master’s business; and, second, he must be acting within the scope of his master’s business.” If a tort is committed by an employee for reasons unrelated to that employment (e.g., “for purely personal reasons disconnected from the authorized business of the master”), the employer is not liable. Summary judgment for the master, then, is appropriate when the evidence “shows that the servant was not engaged in furtherance of his master’s business but was on a private enterprise of his own.” Finally, the question of whether “the servant at the time of an injury to another was acting in the prosecution of his master’s business and in the scope of his employment is for determination by the jury, except in plain and indisputable cases.”

And here, we conclude that a genuine issue of material fact remains as to whether, at the time of the alleged assault on Bradley, Wise was acting in furtherance of GMS’s business and within the scope of same. Specifically, Wise testified that, at the time of his altercation with Bradley, he was under an enormous amount of pressure from GMS, claiming that (1) his supervisor at GMS had been “riding his ass,” (2) he was rushing to get the packages assigned to him by GMS delivered, and (3) he had been assigned more packages than he could possibly deliver within the time allotted by GMS. Wise maintains that this is why, that at the time of the incident in question, he illegally parked his vehicle in order to timely deliver the package, and why he then confronted Bradley about placing a boot on his vehicle for having done so. Indeed, Wise testified that after he made contact with Bradley and she fell backwards, he pulled off the boot, tossed it in the bushes, and drove away, so that he could “get out of there” and “finish his deliveries.” In this respect, it matters not that Wise’s altercation with Bradley may have been motivated, in part, by personal malice. Wise’s statement that his “concern was to get out of there and . . . finish [his] deliveries,” which were all for GMS and which were being done under intense time pressure imposed on him by GMS, is enough for a jury to conclude that Wise’s alleged assault of Bradley was done within the scope of GMS’s business and in furtherance of its interests.

I was pissed because ... I was in a real hurry and I knew I was going to be — this the second day of — I had worked fifteen hours the day before, I was working eighteen hours that day and, you know, tired, in a hurry, you’re not thinking . . . . I just think I was under a lot of pressure and with a lack of sleep and, you know, a lot of pressure to get stuff done.

Decided July 12, 2011

Reconsideration denied July 27, 2011

Harper, Waldon & Craig, Daniel C. Prout, Jr., Kevin P. Reardon, for appellant.

Bruce A. Hagen, Randall E. Fry, for appellees.

For all of the foregoing reasons, we affirm the trial court’s denial of GMS’s motion for summary judgment.

Judgment affirmed.

Smith, P. J., and Mikell, J., concur.

        See, e.g., Werner Enters. v. Lambdin, 307 Ga. App. 813, 814 (706 SE2d 185) (2011) (citing Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991)).

       In contrast, Wise asserts only that he “pushed [Bradley] with his foot.”

       302 Ga. App. 247 (690 SE2d 888) (2010).

        Id. at 249-50 (2).

       We were precluded from conducting meaningful review of these issues because GMS failed to timely file the deposition transcripts of both Bradley and Wise. Id. at 249 (1).

        See OCGA § 51-2-4 (“An employer generally is not responsible for torts committed by his employee when the employee exercises an independent business and in it is not subject to the immediate direction and control of the employer.”).

        Peachtree-Cain Co. v. McBee, 254 Ga. 91, 91 (327 SE2d 188) (1985) (citation and punctuation omitted).

        McGuire v. Ford Motor Credit Co., 162 Ga. App. 312, 313 (290 SE2d 487) (1982) (citation and punctuation omitted).

        Slater v. Canal Wood Corp. of Augusta, 178 Ga. App. 877, 878 (1) (345 SE2d 71) (1986) (citation and punctuation omitted).

        Id.

       During his deposition, Wise noted that on days when he was not scheduled to work he would sometimes receive calls from GMS asking him if he was available to make deliveries, and that he always agreed to do so when he received such requests “because if you don’t, then you don’t get any more work . . . they just stop calling.”

        Cf. American Ass’n of Cab Cos., Inc. v. Parham, 291 Ga. App. 33, 35-36 (1) (661 SE2d 161) (2008) (holding that some evidence existed to support jury’s conclusion that cab companies exerted control over the time, manner, and method of cab driver’s employment to the extent that cab companies were vicariously liable for cab driver’s actions).

        Drury v. Harris Ventures, Inc., 302 Ga. App. 545, 546-47 (1) (691 SE2d 356) (2010) (quoting Leo v. Waffle House, 298 Ga. App. 838, 842 (3) (681 SE2d 258) (2009)).

        Drury, 302 Ga. App. at 546-47 (1); Leo, 298 Ga. App. at 842 (3).

        See, e.g., Drury, 302 Ga. App. at 546-47 (1); Leo, 298 Ga. App. at 842 (3).

        Drury, 302 Ga. App. at 546-47 (1); Leo, 298 Ga. App. at 842 (3).

       During his deposition, Wise stated

       During his deposition, Wise was asked whether GMS had a policy addressing how couriers were “to handle a situation when a vehicle was booted.” In response, he noted that while GMS had no such policy, “[GMS] would prefer you not get booted because it would slow you down.”

        See, e.g., Rogers v. Fred R. Hiller Co. of Ga., 214 Ga. App. 448, 448 (1) (448 SE2d 46) (1994) (holding that “[t]he law provides that the master is liable for the wilful torts of his servant acting in the prosecution and within the scope of the master’s business, and this is true even though the servant, at the time of the commission of such tort may evidence anger, malice, or ill will” (citation and punctuation omitted)); Smith v. Myrick, 205 Ga. App. 339, 340 (1) (422 SE2d 236) (1992) (same).

        See, e.g., Brown v. AMF Bowling Centers, 236 Ga. App. 277, 278 (1) (511 SE2d 619) (1999) (holding that employer was not entitled to summary judgment in case involving a customer who was injured when bartender broke up fight because keeping the peace could be inferred as a bartender’s duty); Reynolds v. L&L Mgmt., 228 Ga. App. 611, 613-14 (1) (492 SE2d 347) (1997) (holding that employer was not entitled to summary judgment when restaurant manager who was involved in altercation with customer was responsible for resolving complaints); Bacon v. News-Press & Gazette Co., 188 Ga. App. 703, 704-05 (373 SE2d 797) (1988) (holding that television station was not entitled to summary judgment because questions of fact existed as to whether cameraman’s action in pointing gun at plaintiff was to prevent plaintiff from thwarting reporter’s pursuit of news story so as to constitute an act in futherance of television station’s business).


text:
    A11A0129.
    WILLIAMS v. THE STATE.
    (715 SE2d 440)
   Dillard, Judge.

Tina Elaine Williams appeals from the trial court’s order of restitution following her guilty plea to one count of criminal damage to property in the second degree. She argues that the trial court unlawfully increased her sentence by conducting a restitution hearing more than 60 days after the entry of judgment of conviction and sentencing, despite language in the sentencing order directing the hearing to be held within 60 days; and further that the trial court erred in proceeding with the restitution hearing in her absence. For the reasons noted infra, we affirm.

On March 30, 2010, Williams pleaded guilty to one count of criminal damage to property in the second degree after she intentionally scratched the paint on numerous surfaces of the victim’s vehicle. The trial court sentenced Williams as a first offender to a four-year probated sentence, and directed her to pay restitution in an amount “determined at a special set hearing within 60 days.” Likewise, Williams acknowledged in her plea petition that she would be required to pay restitution in a later-determined amount. Thereafter, the State filed a rule nisi, which it served on Williams’s counsel, that set the restitution hearing for June 29, 2010. Although Williams did not appear at the restitution hearing, her counsel did so on her behalf, and the State presented evidence related to the costs expended by the victim and her insurance company to repair the damage to the victim’s automobile. Consistent with the evidence presented, the trial court ordered Williams to pay restitution in the amount of $689 directly to the victim, and $3,744.06 to the victim’s insurance company. This appeal follows.

1. Williams first argues that, because the trial court failed to hold the restitution hearing within the 60-day window set forth in the sentencing order, the later-ordered restitution unlawfully expanded her sentence. We disagree.

Pursuant to OCGA § 17-14-3 (a), the trial court is authorized “in sentencing an offender, [to] make a finding as to the amount of restitution due any victim.” In the event that an appropriate restitution amount has not been established at the time of sentencing, the trial court “shall set a date for a hearing to determine restitution.” There is no statutory mandate as to when the restitution hearing must occur.

Significantly, Williams’s original probated sentence required her to pay restitution as a condition of her probation, and Williams expressly acknowledged this requirement in the plea form she signed at the time of the plea. Consequently, the later-determined restitution amount did not unlawfully enhance her sentence, but rather clarified that provision of her sentence, as authorized by OCGA § 17-14-7 (b). And while the trial court did direct that a restitution hearing take place within 60 days of sentencing, we decline to hold — in the absence of a statutorily imposed time limit — that the trial court created a substantive right for Williams to have the restitution hearing held within that time.

2. Williams further argues that the trial court erred in holding the restitution hearing in her absence. Again, we disagree.

Every defendant has a fundamental right to be present at all critical stages in his or her prosecution. This right, however, belongs to the defendant and can be waived. Our Supreme Court has previously held that, during a sentencing hearing, “the voluntary absence of the accused waives his right to be present when sentence is imposed.”

Assuming, without deciding, that the restitution hearing was a critical stage of Williams’s prosecution, the trial court did not err by proceeding with the hearing despite Williams’s absence. Significantly, the record shows, and Williams does not dispute, that her counsel was served with the rule nisi reflecting the date of the scheduled hearing, and nothing in the record indicates that the trial court ordered service directly on Williams. Moreover, Williams has not argued that she was not provided with notice of the hearing, nor has she offered an explanation for her absence. Consequently, the trial court was entitled to presume that Williams voluntarily chose not to attend the hearing, thus waiving her confrontation rights.

Decided July 6, 2011

Reconsideration denied July 27, 2011

Travis A. Williams, for appellant.

Lee Darragh, District Attorney, John D. West, Jr., Assistant District Attorney, for appellee.

Judgment affirmed.

Smith, P. J., and Mikell, J., concur.

       OCGA § 17-14-7 (b).

        See generally McMahon v. State, 273 Ga. App. 574, 574-75 (1) (615 SE2d 625) (2005) (declining to hold that the trial court’s failure to conduct a restitution hearing for the seven months between the sentencing and defendant’s filing of a notice of appeal deprived the court of jurisdiction to specify restitution amount); Zebley v. State, 234 Ga. App. 18, 19 (2) (505 SE2d 562) (1998) (rejecting defendant’s argument that restitution determined pursuant to a later-held hearing constituted an enhancement of his sentence). Compare Harris v. State, 261 Ga. 859, 860-61 (2) (413 SE2d 439) (1992) (holding that the trial court lacked the authority to increase the previously ordered restitution amount without the defendant’s consent once the defendant had begun serving his sentence).

        Cf. OCGA § 42-8-34 (g) (“The judge is empowered to ... , in any manner deemed advisable by the judge, modify or change the probated sentence ... at any time during the period of time prescribed for the probated sentence to run.”).

        See, e.g., Hampton v. State, 282 Ga. 490, 491-92 (2) (a) (651 SE2d 698) (2007) (“The United States Supreme Court has long recognized that a criminal defendant’s right to be present at all critical stages of the proceedings against him is a fundamental right and a foundational aspect of due process of law.” (footnote omitted)); Huff v. State, 274 Ga. 110, 111 (2) (549 SE2d 370) (2001) (“[A] critical stage in a criminal prosecution is one in which a defendant’s rights may be lost, defenses waived, privileges claimed or waived, or one in which the outcome of the case is substantially affected in some other way.” (citation and punctuation omitted)).

        See, e.g., Pollard v. State, 175 Ga. App. 269, 269-70 (333 SE2d 152) (1985) (noting that a defendant’s absence during a phase of trial “is treated as a waiver of the right of confrontation” and that “confrontation rights are personal to the accused and are waived when the accused . . . voluntarily absents himselfi.]” (citation omitted)).

        Byrd v. Ricketts, 233 Ga. 779, 780 (213 SE2d 610) (1975) (citations omitted); see Estep v. State, 238 Ga. App. 170, 172 (1) (518 SE2d 176) (1999) (trial court was authorized to sentence appellant despite her voluntary absence); Collins v. State, 200 Ga. App. 71, 71-72 (1) (406 SE2d 520) (1991) (same).

        See OCGA § 17-1-1 (b) (1) (“Where service is required to be made, the service shall be made upon the party’s attorney unless service upon the party himself is ordered by the court.”); Carter v. State, 253 Ga. App. 795, 796 (1) (560 SE2d 697) (2002) (absent a directive by the court that a criminal defendant is to be directly served, service on a defendant’s attorney is appropriate).

        See, e.g., Yancey v. State, 219 Ga. App. 116, 116 (464 SE2d 245) (1995) (“[T]he burden of determining the cause of the defendant’s absence [is] on his counsel, not on the trial judge.” (citation and punctuation omitted)).

        See, e.g., Collins, 200 Ga. App. at 72 (“Because the trial court had not excused appellant, and appellant’s co-counsel . . . did not inform the trial court of the reason for appellant’s absence, the trial court could assume that the defendant had voluntarily absented himself from the [proceeding], thereby waiving his confrontation rights.” (citations and punctuation omitted)); Smith v. State, 139 Ga. App. 515, 516 (1) (228 SE2d 705) (1976) (same).


author: Doyle, Judge.

text:
    A11A0382.
    CALDON v. BOARD OF REGENTS OF THE UNIVERSITY SYSTEM OF GEORGIA.
    (715 SE2d 487)
   Doyle, Judge.

Elizabeth Denise Caldon, formerly employed at Macon State College, appeals from the trial court’s grant of summary judgment to the Board of Regents of the University System of Georgia (“the Board”) as to Caldon’s claim that she was unlawfully discharged in violation of the Georgia Whistleblower Act, OCGA § 45-1-4. For the reasons that follow, we affirm.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

Viewed in this light, the record shows that Caldon worked as an administrative assistant in the office of the President of Macon State College from 1993 until 1997 and worked directly for President David A. Bell from 1997 to 2008. In addition to other duties, Caldon prepared Bell’s monthly leave reports, which Bell later reviewed and signed. Caldon deposed that in 2006 she began discussing with Bell her concerns that he was under-reporting his use of leave. In July 2008, the Board issued a publication discussing leave reports, and Caldon expressed to Bell that she understood the Board policies to require him to account for more leave taken in his reports than he included. Caldon deposed that Bell’s under-reporting of leave time for July 2008 was so egregious that she declined to complete his leave form for August 2008. On September 15, 2008, Caldon attached a note to Bell’s August 2008 leave form, stating “With your medical and personal leaves, and the stricter auditing guidelines, I feel it more appropriate for you to complete your personal leave reports”; Bell recalled receiving the note and that Caldon had objections to his leave reports. In support of her claim that she was engaged in whistleblowing activity, Caldon pointed to Bell’s leave reports from the months before and after her termination, which show that Bell reported a greater amount of leave after her September 15 note.

In addition to leave reporting, Caldon deposed that she engaged in other activity, which she contended should be considered whistle-blowing activity, including: (1) reporting in July 2008 a conflict of interest between Bell and his personal financial advisor, Jimmy Patton, who as the chair of the Macon State College Foundation was in a position to vote on Bell’s compensation, which report led to Patton’s recusal from Foundation business related to Bell’s compensation; (2) as late as August 28, 2008, reporting Bell’s practice of registering for but not attending various professional functions, which were paid for using state money; and (3) voicing concerns related to Bell’s mental ability to handle his job responsibilities to Vice President Levy Youmans, who in August 2007, asked Caldon to limit Bell’s participation in meetings.

Although Bell gave Caldon good ratings on annual performance reviews through 2008, Bell received complaints about Caldon’s interactions with him and others, including from Youmans, Vice President Barbara Frizzell, and former Chief of Staff Larry Stinson.

In June 2008, John Cole replaced the retiring Stinson, and Cole deposed that on September 23, he advised Bell to terminate Caldon after learning that she verbally reproached Bell in front of other employees. Nevertheless, Bell decided to give Caldon “the benefit of the doubt.”

On September 24, 2008, Caldon was involved in another verbal exchange with Bell in which she discussed Bell’s handling of a personal family matter between him and his son, Thomas. Caldon deposed that Thomas called, and while she was on the phone with him, Bell approached her. Caldon deposed that Bell stated, “I don’t speak to my son at the office. Tell [him] [a]dios,” and laughed. Caldon deposed that because she feared Thomas had overheard Bell’s statement, her response was, “That wasn’t necessary. [Thomas] just wanted to give you an idea about an appointment on Monday”; she denied that she raised her voice to Bell. Letitia Langley, a secretary in the office, deposed that she heard Caldon say to Bell, “I will not tolerate that” and “[h]e is your son,” and Langley was shocked that Caldon made such statements to Bell. Cole was also present and overheard the exchange and considered Caldon to be “yellfing] at” and “berating” Bell. Caldon later sent an e-mail to Cole, which said:

My apologies for my remarks a few moments ago, but you have no idea of the behavior that I have witnessed for years by Dr. Bell towards his own son (and so many others that I will not discuss). Dr. Bell’s own wife has refused to even see him — or allow him in their home — since 2006 (according to Thomas).
He is right — this is none of my business. However, his son has called me at home in tears more times than I can remember. As a Christian, I have to accept his calls and simply listen. That is all that I do — listen.
Thomas simply wanted to give his Father a message this morning about a prostate doctor’s appointment— nothing more — and Dr. Bell’s “smirk” and total indifference simply caught me off guard. I should be used to it by now; however, it is hard to leave my Christian values at the door when I enter my office each morning (as Dr. Bell has demanded in so many words for years).
The only thing I know to do now is to continue praying for him and his family.

Thereafter, while Cole and Bell were in Bell’s office, Cole counseled Bell to terminate Caldon, explaining that it was inappropriate for Caldon to speak to Bell in that manner and that it affected his office and the college. Bell agreed with Cole, and the two discussed Caldon’s termination. Bell spoke to Youmans and Frizzell on the afternoon of September 24 to explain his decision to terminate Caldon and confirm their agreement with the decision. Bell offered to allow Caldon to resign her position or be terminated; Caldon initially chose to resign, but subsequently withdrew her resignation and filed for a review of her termination.

Thereafter, Caldon filed suit alleging that the Board had violated the Georgia Whistleblower Act by terminating her employment. The Board moved for summary judgment, contending that Caldon had failed to meet her burden of establishing a prima facie case of retaliation. The trial court agreed with the Board, finding that the undisputed facts established that Caldon engaged in insubordinate behavior toward her supervisor, which she admitted, and was fired immediately thereafter. Based on that fact, the trial court concluded that no jury issue existed on the question of whether Caldon was fired for a retaliatory purpose.

Caldon contends that the trial court erred by granting summary judgment to the Board with regard to her whistleblower claim because there were disputed issues of material fact regarding the reason Bell fired Caldon and that Bell’s motivation for Caldon’s termination is a jury question. We disagree.

OCGA § 45-1-4 prohibits public employers from (1) retaliating “against a public employee for disclosing a violation of or noncompliance with a law, rule, or regulation to either a supervisor or a government agency”; or (2) retaliating “against a public employee for objecting to, or refusing to participate in, any activity, policy, or practice of the public employer that the public employee has reasonable cause to believe is in violation of or noncompliance with a law, rule, or regulation.” “The statute gives public employees the right to bring an action in superior court to have the retaliatory action set aside.” The statute “applies to the receipt by a public employer from any public employee of complaints or information concerning the possible existence of any activity constituting fraud, waste, and abuse in or relating to any state programs and operations under the jurisdiction of such public employer,” and it is undisputed that Caldon was a public employee as defined by the statute.

Pretermitting the issue of whether (a) Caldon’s actions regarding Bell’s leave reports; (b) Caldon’s statements regarding Bell’s mental health; (c) Caldon’s report of Patton’s conflict of interest; and (d) Caldon’s report of Bell’s use of funds for professional functions constitute whistleblowing activity pursuant to OCGA § 45-1-4, we hold that the trial court correctly granted summary judgment to the Board.

Here, the Board submitted direct evidence that Caldon’s termination was based on her insubordinate behavior during her September 24 exchange with Bell. Thus, it was incumbent on Caldon to present evidence to establish the existence of a fact issue, which could establish that this stated legal reason was merely pretext for dismissing her based on her whistleblowing activity. As explained in Jones, this evidence may be direct or circumstantial.

Circumstantial evidence may be sufficient to create a jury issue in the face of direct evidence to the contrary. Where direct and positive testimony is presented on an issue, the opposing party must show some other fact which contradicts the testimony. If this other fact is direct evidence, that is sufficient to allow the case to go to the jury; if the other fact is circumstantial evidence, it must be inconsistent with the defendant’s evidence, or if consistent, it must demand a finding of fact on the issue in favor of the plaintiff.

Caldon contends that the temporal proximity of her reports about Bell’s leave use and other issues of waste, the differences in Bell’s reported leave before and after the whistleblowing, and Bell’s change in behavior and demeanor toward her after she refused to fill out his leave form are sufficient to create a question of fact as to his true motivation for terminating her employment. We disagree that this evidence is sufficient to create a genuine issue of fact.

As an initial matter, Caldon has failed to present any evidence contradicting the occurrence of the September 24 dispute between her and Bell. Although Caldon disputed some of the other witnesses’ testimony regarding the encounter, ultimately, she conceded in her deposition that the event occurred, which is further supported by her e-mail to Cole which she prepared after the September 24 dispute. While we disagree with the trial court’s conclusion that an employee is always barred from proving a case of retaliation if she cannot dispute the existence of the employer’s proffered reason for termination, in this instance, Caldon has failed to point to any other evidence that would establish a fact question for the employer’s motive, such as inconsistencies among Bell’s or other Board employees’ statements regarding the reason for Caldon’s termination, evidence of any statements regarding Bell’s view of Caldon’s refusal to complete his leave forms, or evidence that similarly situated employees were treated differently after engaging in insubordinate behavior. In some cases, circumstantial evidence such as temporal proximity could be sufficient to establish a question of fact with regard to the stated reason for termination, in this case, however, it is not sufficient to overcome the Board’s direct evidence that Caldon was terminated for her insubordination. Other Board employees overheard the exchange between Caldon and Bell, Cole previously recommended that Bell terminate Caldon based on her insubordinate behavior, and Cole continued to recommend terminating her after the September 24 exchange without knowledge of her refusal to complete Bell’s time sheets. Accordingly, because Caldon has failed to establish that a genuine issue of material fact existed as to the reason for her termination, we affirm the trial court’s grant of summary judgment to the Board.

Decided July 13, 2011

Reconsideration denied July 27, 2011.

Moorman & Pieschel, Christopher G. Moorman, for appellant.

Thurbert E. Baker, Attorney General, Laura W. McDonald, Kathleen T. Gosden, Assistant Attorneys General, for appellee.

Judgment affirmed.

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

       (Punctuation omitted.) Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

       It is undisputed that Bell was required to account for leave time.

       (Emphasis in original.)

       The Law and Organization Committee of the Board of Regents affirmed the termination.

       OCGA § 45-1-4 (d) (2), (3) (2007).

       (Punctuation omitted.) Jones v. Bd. of Regents of the Univ. Sys. of Ga., 262 Ga. App. 75, 80 (4) (585 SE2d 138) (2003). As noted in Forrester v. Ga. Dept, of Human Sues., Georgia courts “have addressed the issue of summary judgment in the context of whistle-blower claims in very few cases, none of which explicitly sets forth a standard for analyzing when summary judgment is appropriate in such circumstances.” 308 Ga. App. 716, 721 (1) (708 SE2d 660) (2011) (physical precedent only) (analyzing the trial court’s grant of summary judgment of a claim under OCGA § 45-1-4 (d) pursuant to the burden-shifting analysis utilized in Title VII employment claims as first applied in McDonnell Douglas Corp. v. Green, 411 U. S. 792, 802-806 (II) (93 SC 1817, 36 LE2d 668) (1973)).

       (Punctuation omitted.) Jones, 262 Ga. App. at 80 (4).

       See id. at 81 (4).

       See id. at 82 (4).

       See id. at 81 (4).

       Id. at 81 (4). See also Furlong v. Dyal, 246 Ga. App. 122, 123-124 (1) (539 SE2d 836) (2000).

       Compare with Jones, 262 Ga. App. at 82 (4) (explaining that the terminated employee expressly denied the behavior upon which his termination was predicated).

       See, e.g., McNorton v. Ga. Dept. of Transp., 619 FSupp.2d 1360, 1380 (B) (2) (N.D. Ga. 2007).

       See id. at 1377 (B) (1) (b); Jones, 262 Ga. App. at 81 (4).


author: SMITH, Presiding Judge.

text:
    A11A0384, A11A0385.
    COCA-COLA BOTTLERS’ SALES AND SERVICES COMPANY LLC v. NOVELIS CORPORATION; and vice versa.
    (715 SE2d 692)
   SMITH, Presiding Judge.

In this contract dispute, Coca-Cola Bottlers’ Sales and Services Company LLC (“CCBSS”) and Novelis Corporation (“Novelis”) appeal from the trial court’s rulings on cross-motions for summary judgment. In Case No. A11A0384, CCBSS appeals from the trial court’s grant of summary judgment in favor of Novelis on CCBSS’s claim for breach of contract, and in Case No. A11A0385, Novelis appeals from the trial court’s grant of summary judgment to CCBSS on Novelis’s counterclaims and affirmative defenses. We affirm in part and reverse in part in Case No. A11A0384, and we affirm in Case No. A11A0385.

On appeal from the grant or denial of summary judgment, we apply a de novo standard of review. Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997). “The moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.” (Punctuation omitted.) Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). See also OCGA § 9-11-56 (c).

The record reveals that in 2005, CCBSS and Novelis entered into a “Soft Toll Agreement” (“STA”) for aluminum can stock under which CCBSS directs its can manufacturers to purchase aluminum can sheet from Novelis for fabrication into can bodies, ends, and tabs in return for certain marketing payments.

In 2007, CCBSS sued Novelis for breach of contract for offering more favorable prices “on both elements of the price of the can sheet: the aluminum price and the fees charged to convert that metal into sheet for beverage cans” to two of CCBSS’s competitors in violation of the STA. CCBSS asserted breach in the form of a metal price claim and a conversion cost claim. Novelis counterclaimed for a declaratory judgment, unjust enrichment, and restitution; it also asserted several affirmative defenses claiming that the STA is unenforceable because Exhibit A, a list of CCBSS’s members, was not attached though referenced by the STA.

Following extensive discovery, CCBSS moved for summary judgment on Novelis’s counterclaims and Novelis’s second, third, fourth, and fifth affirmative defenses, and Novelis moved for summary judgment on CCBSS’s second amended complaint. The trial court granted CCBSS’s motion for summary judgment and granted summary judgment to Novelis on CCBSS’s breach of contract claims and its claim for attorney fees. It is from these orders that the parties appeal.

Case No. A11A0384

At issue here is Paragraph 14 of the STA titled “Most Favored Nations” (“MFN”). This provision states:

If, taking into account all conversion price related incentives, discounts (including with respect to the metal price, only new discounts to the applicable LME[]-based price offered from the signature date on this Agreement), rebates, credits, scrap spreads and the like but not “Investment Related Discounts” (Investment Related Discounts include investment related discounts initiated before January 1, 1997 and any discount, not to exceed $250,000 per year per C[an]M[anufacturer]/customer, initiated after January 1, 1997 that is put in place to offset or partially offset the costs associated with Investments made to grow the aluminum can business or that are otherwise beneficial to Novelis), Novelis, or any Novelis Affiliate, offers (offer includes any offer or proposal, including, but not limited to, those initiated by Novelis or those made in response to a request, initiative, or counter of another purchaser), to any customer, or other user of Aluminum Can Stock, for delivery in North America,
(A) a lower conversion cost/lb for at least three months or consecutive periods totaling at least three months, not to exceed three months in a year, or
(B) any other element, except Investment Related Discounts, that makes the conversion cost/lb more advantageous as a whole to the customer,
then the elements included in such offer shall be offered to the Members through CCBSS for the same duration covered by the offer to the other customer. CCBSS, on behalf of Members, may accept or decline the offer for its volume. If accepted, the Marketing Payments will be adjusted so that the Members are not disadvantaged when the conversion cost/lb offered to the other customer (excluding Investment Related Discounts) is compared to the conversion price invoiced to the CM’s less the Marketing Payments payable to CCBSS under this Agreement. If requested by CCBSS, Novelis will certify to CCBSS, at the beginning of each year, by letter from Novelis’ chief financial officer that it is complying with this section of the Agreement. If requested by and paid for by CCBSS, CCBSS may nominate an outside auditor, to be agreed to by Novelis, to certify that Novelis is complying with this section of the Agreement. In no way will these audit rights jeopardize confidentiality of Novelists] other customers or provide CCBSS with competitive information.

1. CCBSS contends that the trial court erred in granting summary judgment to Novelis on its claim that Novelis offered better metal prices to CCBSS’s competitors in violation of the MFN; in particular, the following provision: “discounts (including with respect to the metal price, only new discounts to the applicable LME-based price offered from the signature date on this Agreement).” CCBSS contends that Novelis breached by offering “new discounts” after the “signature date” of the STA to two of CCBSS’s competitors, Anheuser Busch (“A-B”) and Crown Cork and Seal (“Crown”). Novelis counters that summary judgment was proper because its contracts with A-B and Crown pre-dated the signature date of the STA, and therefore any discounts were not new discounts and were not offered after the signature date of the STA. We agree that the grant of summary judgment was proper on this claim, but for a different reason.

Under New York law, “it is axiomatic that when the provisions of a contract are clear and unambiguous, the interpretation thereof is a question of law and effect must be given to the parties’ expressed intent.” (Citations and punctuation omitted.) Singh v. Dyckman, 202 AD2d 412, 413 (608 NYS2d 497) (1994). And “a written agreement that is complete, clear, and unambiguous on its face must be enforced according to the plain meaning of its terms.” (Citation and punctuation omitted.) Norma Reynolds Realty v. Edelman, 29 AD3d 969, 969 (817 NYS2d 85) (2006).

The relevant portion of the MFN provides:

If, taking into account all conversion price related incentives, discounts (including with respect to the metal price, only new discounts . . . offered from the signature date on this Agreement), rebates, credits, . . . [,]Novelis . . . offers ... to any customer ... a lower conversion cost/lb . . . or any other element . .. that makes conversion cost/lb more advantageous to the customer,

Novelis must make the same offer to CCBSS. (Emphasis supplied.) Under the plain language of this provision, “discounts” is one of several factors to be “tak[en] into account” if Novelis offers another customer a lower conversion price per pound. The term “discounts” is defined in part as new metal price discounts offered from the signature date of the STA. Therefore, as a “discount,” i.e., a new metal price discount offered from the signature date of the STA, is only a factor to be “tak[en] into account” in determining whether Novelis offered a customer a lower conversion cost per pound.

In simple terms, the MFN provides that if Novelis offers another customer a lower conversion cost per pound, then it must also make the same offer to CCBSS. Contrary to the arguments presented by the parties, the MFN is not triggered by Novelis offering a new metal discount after the signature date; it is triggered by Novelis offering a lower conversion cost per pound, which is determined by “taking into account” discounts (including new discounts) and other factors. CCBSS therefore cannot sue Novelis for breach of a duty that does not exist under the terms of the contract. See, e.g., 428 Camera Corp. v. Tandy Corp., 272 AD2d 72, 72-73 (707 NYS2d 101) (2000) (no cause of action for breach of contract where sublease did not obligate tenant to repair or replace heating system); Merritt Hill Vineyards v. Windy Heights Vineyard, 94 AD2d 947, 947-948 (463 NYS2d 960) (1983) (where there is no duty to perform, nonperformance cannot constitute a breach of contract). The trial court therefore did not err in granting summary judgment to Novelis on CCBSS’s claim that Novelis breached the MFN by offering a new metal price discount to A-B and Crown.

2. CCBSS argues that genuine issues of material fact exist regarding Novelis’s breach of the MFN provision providing A-B and Crown with a lower conversion cost per pound without also offering CCBSS the same conversion cost. The MFN provides that if Novelis offers to another customer “(A) a lower conversion cost/lb for at least three months or consecutive periods totaling at least three months, not to exceed three months in a year, or (B) any other element... that makes the conversion cost/lb more advantageous as a whole to the customer,” Novelis must make the same offer to CCBSS. The STA provides no specific method for calculating conversion cost per pound.

CCBSS presents several arguments supporting its claim that Novelis offered a lower conversion cost per pound to A-B and Crown. It first points to the testimony of a witness designated by Novelis under OCGA § 9-11-30 (b) (6) to respond to pricing issues. This witness acknowledged that in 2008, on a “gauge-by-gauge basis, Novelis charged [A-B] a lower conversion price for [A-B] directed volume than it charged [A-B] for CCBSS directed volume for the same type of can stock, even taking into account the marketing payment CCBSS received.” She stated further that Novelis charged Crown a lower conversion cost for Crown direct volume than it charged Crown for CCBSS directed volume taking into account the rebate Novelis paid CCBSS. Novelis argues that the witness “com-parted] prices on particular gauges [(thicknesses)] without taking into account the additions and subtractions required by the MFN.”

Next, CCBSS argues that the trial court erred in relying on Novelis’s methodology because it was not mentioned in the MFN, not agreed to by CCBSS, and was flawed. CCBSS’s expert averred that instead of comparing CCBSS’s net prices to the net prices of A-B and Crown, Novelis used a weighted average conversion fee that does not accurately reflect the net price per pound charged to A-B for A-B directed purchases pursuant to A-B’s supply agreement with Nov-elis. He stated further that

[i]nstead of calculating the actual net conversion fee charged to A-B for A-B Directed can sheet purchases and then comparing that price to the net conversion fee invoiced for CCBSS Directed Volume less the Marketing Payments, what Novelis has done is to calculate a blended price based on a weighted average of the lower conversion fees applicable to A-B Directed Volume and the higher conversion fees applicable to CCBSS Directed Volume. Novelis uses the blended price to derive an amount it terms the “A-B Discount,” which it then compares to the unblended CCBSS Marketing Payments for each type of can sheet.

(Emphasis in original.) CCBSS’s expert concluded that for this and other reasons, “the methodology used by Novelis does not accurately calculate Novelis’s compliance with the MFN.”

Novelis argues that its MFN compliance calculations and supporting testimony demonstrate that Novelis was in compliance with conversion prices for all relevant periods. Novelis presented the affidavit of its vice president of sales and marketing for North American can stock. He stated that he measured Novelis’s compliance with the MFN in 2007 and 2008. The exhibits attached to his affidavit showed that Novelis’s pricing to A-B and Crown for those years was compliant with the MFN.

The parties disagree about the proper method of calculating conversion costs, and the STA is silent on this issue. The evidence presented by the parties is therefore contradictory on the question of whether Novelis offered A-B and Crown lower conversion costs or an element that makes the conversion cost per pound more advantageous as a whole. Because there remains a genuine issue of material fact concerning Novelis’s breach of this portion of the MFN, the trial court erred in granting summary judgment to Novelis. See, e.g., Board of Regents v. Doe, 278 Ga. App. 878, 888 (3) (630 SE2d 85) (2006).

3. Because we have held in Division 2 that the trial court erred in granting summary judgment to Novelis on CCBSS’s claim that Novelis offered a lower conversion price to CCBSS’s competitors, we must also reverse the grant of summary judgment to Novelis on CCBSS’s claim for attorney fees pursuant to OCGA § 13-6-11. See, e.g., Jamal v. Hussein, 237 Ga. App. 779, 785 (3) (515 SE2d 407) (1999) (reversing grant of summary judgment on attorney fees in light of holding that summary judgment on main claim was improper).

Case No. A11A0385

4. In two enumerations, Novelis claims that because the Exhibit A referred to in the STA was never attached, the STA is unenforceable and the trial court erred in granting CCBSS summary judgment on Novelis’s affirmative defense based on this ground. The first paragraph of the STA provides: “This Soft Toll Agreement for Aluminum Can Stock ... by and between Novelis . . . and [CCBSS], acting solely as agent for and on behalf of its members identified in Exhibit A attached hereto and made part hereof (the ‘Members’).” (Emphasis supplied.) The parties do not dispute that Exhibit A, listing the members or the bottlers represented by CCBSS, was not attached to the STA.

The trial court held that

[t]he STA was negotiated over several months by very sophisticated parties who, nonetheless, executed the agreement even though it omitted Exhibit A which was intended to provide an exact list of the Coca-Cola Bottlers for whom CCBSS was acting as procurement agent. Despite that omission, it is clear from the language of the STA and three years of performance under that agreement that the parties intended to form a contract and to be bound thereby. Thus, the question remains whether there is sufficient extrinsic evidence to determine who the parties intended to include on the missing Exhibit A. It is clear from the record, including deposition testimony from Novelis’s lead negotiators, that CCBSS entered into the STA on behalf of all of its North American members and that both parties knew that CCBSS was representing all of its North American members.

We agree. “A contract is unenforceable where there is no meeting of the minds between the parties regarding a material element thereof.” (Citation omitted.) Computer Assoc. Intl. v. U S. Balloon Mfg., 10 AD3d 699, 700 (782 NYS2d 117) (2004). And

[t]he doctrine of definiteness or certainty is well established in contract law. In short, it means that a court cannot enforce a contract unless it is able to determine what in fact the parties have agreed to. That said, imperfect expression does not necessarily indicate that the parties to an agreement did not intend to form a binding contract. A strict application of the definiteness doctrine could actually defeat the underlying expectations of the contracting parties. The conclusion that a party’s promise should be ignored as meaningless “is at best a last resort.”

(Citations and punctuation omitted.) Korff v. Corbett, 18 AD3d 248, 250 (794 NYS2d 374) (2005). Moreover,

the fundamental rule of contract interpretation is that agreements are construed in accord with the parties’ intent, and the best evidence of what parties to a written agreement intend is what they say in their writing. Thus, a written agreement that is clear and unambiguous on its face must be enforced according to the plain meaning of its terms, and extrinsic evidence of the parties’ intent may be considered only if the agreement is ambiguous.

(Citations and punctuation omitted.) Wells Fargo Bank Northwest v. US Airways, 30 Misc.3d 1241 (2011) (unpublished).

Because the exhibit listing CCBSS’s members was omitted from the contract, but can be explained or supplemented by the parties’ course of dealing, the trial court did not err in considering extrinsic evidence to determine the parties’ understanding of whom CCBSS was representing as its members. Id.; see NY U.C.C. Law § 2-202 (a) (2011). The New York Uniform Commercial Code provides that “[t]he express terms of the agreement and any such course of performance, as well as any course of dealing and usage of trade, shall be construed whenever reasonable as consistent with each other.” NY U.C.C. Law § 2-208 (2011).

It is clear, from the deposition testimony of a Novelis negotiator, that Novelis understood that CCBSS was representing all of its North American members. The negotiator stated that he understood that the STA “was for 85 percent of the can sheet requirements of all North American Coca-Cola Bottlers.” A second Novelis negotiator for the STA deposed that he understood that CCBSS acted as agent for procurement in North America, and that at no time during negotiations did the parties go “through that long list of who the members were.” See Korff, supra.

Moreover, review of the STA itself reveals various references to North America: (1) North America is defined in the STA; (2) Paragraph 4.1 provides that “CCBSS, as agent for the Members, shall require that the Members’ CMs [can manufacturers] purchase a minimum of eight-five (85%) of their collective North American requirements”; (3) the same provision provides that “[t]he members, through CCBSS as agent shall instruct the CMs to purchase Aluminum Can Stock under this Agreement for delivery to ship-to locations in North America that are mutually agreed upon”; and (4) Paragraph 14 discusses the consequences of Novelis offering to another customer “for delivery in North America” a lower conversion cost. The STA also contemplated possible changes in CCBSS’s members during the contract term.

The extrinsic evidence before the trial court shows that the parties understood that CCBSS represented all of its North American members and that the specific list of those members was not necessarily material to the consummation of the STA. Although Novelis argues that the trial court ignored other contradictory evidence that would have precluded the grant of summary judgment, none of this evidence creates a material issue of fact as none contradicts CCBSS’s assertion, Novelis’ acknowledgment, and other language in the STA, that CCBSS was representing all of its North American members. See Baker v. Baker, 257 Ga. 187, 188-189 (356 SE2d 873) (1987) (expert affidavit did not create material issue of fact where undisputed evidence answered question of what parties mutually agreed upon).

Novelis’s reliance on 166 Mamaroneck Ave. Corp. v. 151 East Post Rd. Corp., 78 NY2d 88, 91-92 (575 NE2d 104) (1991), for the proposition that the trial court can only rely on an objective extrinsic event, is misplaced. In that case, although the contract did not explain how rent was to be calculated in a lease, the parties selected a process for making that calculation. Id. In holding that the renewal term of the lease was enforceable, the court held that where there is an absence of an explicit contract term, the requirement of definiteness can be satisfied by an agreement as to the methodology for determining the missing term or an objective extrinsic event, condition or standard on which the amount was made to depend. Id. at 92; see also Chesler v. Bronstein, 176 Misc.2d 237, 242-243 (672 NYS2d 82) (1997) (where agreement is silent as to dollar amount, court can look to see if agreement contains methodology for determining missing term or reference can be made to objective extrinsic event). The missing exhibit here was not “an explicit term” such as price requiring objective extrinsic evidence, but rather a peripheral matter not affecting the purpose of the contract here.

5. Because we have found in Division 4 that the trial court did not err in denying Novelis’s claim that the STA is unenforceable, Novelis’s claim for unjust enrichment is moot.

6. Novelis claims that the trial court erred in ruling that a statement concerning the metal price claim by CCBSS’s president was privileged. This contention, however, is rendered moot by our holding in Division 1 that Novelis had no obligation to CCBSS with regard to CCBSS’s metal price claim.

For the above reasons, we affirm in Case No. A11A0385, but reverse in part the trial court’s judgment in Case No. A11A0384 because a genuine issue of material fact remains concerning whether Novelis breached the STA by offering a lower conversion cost to another customer.

Decided July 7, 2011

Reconsideration denied July 27, 2011

Troutman Sanders, James A. Lamberth, June A. Sauntry, Sidney L. Moore III, John J. Dalton, for appellant.

Bondurant, Mixson & Elmore, H. Lamar Mixson, Lisa R. Strauss, for appellee.

Judgment affirmed in part and reversed in part in Case No. A11A0384. Judgment affirmed in Case No. A11A0385.

Mikell and Dillard, JJ., concur.

       The STA provides that it is governed by the laws of the State of New York. And “[u]nder the rule of lex fori, procedural or remedial questions are governed by the law of the forum, the state in which the action is brought.” (Citation and punctuation omitted.) Bunker Hill Intl. v. Nationsbuilder Ins. Svcs., 309 Ga. App. 503, 506 (1) (710 SE2d 662) (2011).

       London Metal Exchange.

       “We will affirm a grant of summary judgment if it is right for any reason.” (Citation, punctuation and footnote omitted.) Johnston v. Crescent Bank and Trust Co., 304 Ga. App. 192, 192 (695 SE2d 305) (2010).

       There was evidence presented that both A-B and Crown purchased Can Body Stock (“CBS”), Can End Stock (“CES”), and Can Tab Stock (“CTS”) for their own use (“A-B Directed Volume” and “Crown Directed Volume”), and also purchased CBS, CES, and CTS as a CCBSS “Member” (“CCBSS Directed Volume”).

       Novelis’s argument that CCBSS’s expert’s affidavit is based on conclusory statements is unfounded (and Novelis has pointed to no ruling by the trial court excluding the expert on this ground or otherwise finding him unqualified). The expert, a certified public accountant and financial specialist accredited in business valuation, based his conclusions on his analysis of Novelis’s contracts with A-B and Crown, Novelis’s price lists, and Novelis’s methodology. “Expert opinion testimony is allowed where the nature of the question is such that the factors leading to a conclusion are not known to the common or average person, but are among those things shrouded in the mystery of professional skill or knowledge.” (Citation and punctuation omitted.) Bailey v. Annistown Road Baptist Church, 301 Ga. App. 677, 689-690 (12) (689 SE2d 62) (2009) (full concurrence in Division 12). And such testimony is allowed even as to the ultimate issue. PN Express, Inc. v. Zegel, 304 Ga. App. 672, 679 (4) (697 SE2d 226) (2010).

       In light of our holding here that there remains an issue of fact concerning whether Novelis offered A-B and Crown a lower conversion cost, we need not address CCBSS’s related claims: that Novelis “illegitimately allows itself an exemption of $250,000 per customer per year as an ‘Investment Related Discount,’ ” or its claim that the trial court “erroneously held that the MFN envisions annualized weighted averages.” Nor do we address CCBSS’s contention that Novelis impermissibly aggregates all can stock products in its MFN compliance calculation, rather than comparing prices product by product.

       Novelis’s argument here with regard to the statute of frauds is therefore without merit.


text:
    A11A0423.
    SANDS v. THE STATE.
    (716 SE2d 225)
   SMITH, Presiding Judge.

Antonio Andrette Sands was charged with eleven counts of various sexual offenses against four boys. A jury found him guilty on all counts, his amended motion for new trial was denied, and he appeals. In three enumerations of error, he asserts the general grounds, complains of the introduction of a similar transaction, and contends the trial court erred in admitting a videotaped forensic interview of one of the victims. Finding no error, we affirm.

1. We first address the general grounds. Sands’s enumeration of error complains only that “[t]he conviction of the Defendant of the crime of Sexual Battery is not supported by adequate evidence to overcome the presumption of his innocence by proof beyond a reasonable doubt.” In his argument, he goes beyond the single count of aggravated sexual battery to argue that the evidence was insufficient on all counts, but cites no legal authority in his perfunctory, two-page argument. Court of Appeals Rule 25 (a).

Regardless, we find the evidence sufficient to uphold the convictions on all counts under the standard established in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Accord Hammontree v. State, 283 Ga. App. 736, 737 (1) (642 SE2d 412) (2007) (victim’s testimony alone sufficient to sustain conviction for child molestation). The entire argument on appeal consists of Sands’s assertions that the victims were “troubled” and “known to tell lies.” But “on appeal, the jury, not this Court, is tasked with determining witness credibility, and it was authorized to resolve any credibility issues against” Sands. (Citation omitted.) Fogerty v. State, 304 Ga. App. 546, 547 (1) (696 SE2d 496) (2010).

2. Sands next complains that the trial court erred in admitting the similar transaction testimony of another adolescent boy. Sands argues that his sexual contact with this seventeen-year-old male was “sex between two mutually consenting adults” and was therefore insufficiently similar to the offenses charged, which involved the molestation of boys aged eleven, thirteen, thirteen, and eight. But the similar transaction victim testified that he was not a willing participant and that he hid in the bathroom and called his father after Sands attempted to rape him anally, and that he then fled the house and called 911.

“In reviewing whether sufficient similarities exist to create a logical connection between the independent act and the instant act such that the former tends to prove the latter, this Court must focus on the similarities between the two acts rather than the dissimilarities.” Rolle v. State, 286 Ga. App. 191, 192 (648 SE2d 712) (2007). We find such similarities here. After Sands took over the pastorship of a small evangelical church, he befriended male adolescent children from his congregation who were living in homes with challenging circumstances. He offered to “mentor” them, in one case telling the congregation that “God told him that he needs to be a mentor” to a boy. After establishing a relationship, he took the boys to his home or to the homes of other members of the congregation and molested them, including various acts of sodomy. The conduct with the similar transaction witness followed this pattern of behavior, although this witness was not a church member but came in contact with Sands when Sands offered him a ride in his van, told him about the church, and invited him to a church job fair in Florida.

“[T]his court has held that the sexual molestation of young children or teenagers, regardless of the type of act, is sufficiently similar to be admissible as similar transaction evidence.” (Citation and footnote omitted.) Williams v. State, 263 Ga. App. 22, 24 (2) (587 SE2d 187) (2003). “Here, the similarities between the present offense and similar transaction were numerous and obvious; therefore, the difference in the victims’ ages does not make the similar transaction inadmissible.” (Citations omitted.) Kingsley v. State, 268 Ga. App. 729, 730 (1) (603 SE2d 78) (2004) (similar transaction committed against adult admissible in child molestation prosecution). The trial court did not abuse its discretion in admitting the similar transaction evidence. Id.

3. Finally, Sands complains of the admission of a videotaped statement of one of the victims, who was 12 years old when interviewed and 13 when he testified at trial. Contrary to Sands’s assertion, the victim’s prior consistent statements to others are not inadmissible hearsay, for two reasons.

First, the victim’s statement is admissible under the Child Hearsay Statute, OCGA § 24-3-16, which “actually contemplates testimony from both the child and those witnessing the child’s later reaction, even if the hearsay may be ‘bolstering.’ Any bolstering can be explored by defendant in cross-examination.” (Citation, punctuation and footnote omitted.) Bell v. State, 294 Ga. App. 779, 781 (4) (670 SE2d 476) (2008). See also Fiek v. State, 266 Ga. App. 523, 525 (1) (597 SE2d 585) (2004) (trial court did not abuse discretion in admitting videotaped interviews of child victims).

Second, the victim’s statement is also admissible as a prior consistent statement under Cuzzort v. State, 254 Ga. 745 (334 SE2d 661) (1985). Sands relies heavily on Duggan v. State, 285 Ga. 363 (677 SE2d 92) (2009), which enunciates the requirements for admission of a prior consistent statement:

A witness’s prior consistent statement is admissible only where: (1) the veracity of a witness’s trial testimony has been placed in issue at trial; (2) the witness is present at trial; and (3) the witness is available for cross-examination. A witness’s veracity is placed in issue so as to permit the introduction of a prior consistent statement if affirmative charges of recent fabrication, improper influence, or improper motive are raised during cross-examination. Even then, to be admissible to refute the allegation of recent fabrication, improper influence, or improper motive, the prior statement must predate the alleged fabrication, influence, or motive.

(Citations, punctuation and footnotes omitted.) Id. at 366 (2). Sands contends that none of these circumstances was shown. We disagree.

Sands raised this contention below, and the trial court conducted an admirably thorough review of the factors enunciated in Duggan. The victim testified and was subjected to a vigorous cross-examination in which Sands’s counsel attacked his veracity by bringing forward instances of lies and false accusations. And counsel’s trial strategy was to accuse all of the victims and their families of lying and engaging in a conspiracy against Sands because of dissension in the church. This victim’s veracity was directly attacked, and his prior consistent statement predated any opportunity to participate in the conspiracy alleged by Sands. The trial court did not abuse its discretion in admitting the victim’s prior consistent statement.

Decided July 7, 2011

Reconsideration denied July 27, 2011.

Sheri L. Smith, for appellant.

Kenneth W. Mauldin, District Attorney, Jon R. Forwood, Assistant District Attorney, for appellee.

Judgment affirmed.

Mikell and Dillard, JJ., concur.

       Sands argues that, because “recent fabrication, improper influence, or improper motive” were not expressly raised by the cross-examination of the victim, he has not placed the victim’s credibility in issue. We agree with the trial court that Sands cannot avoid the plain intent of his cross-examination: to show that, because the victim had lied and made false accusations in the past, he was lying and making a false accusation in this case. See Brown v. State, 310 Ga. App. 835, 838 (1) (b) (714 SE2d 395) (2011).


text:
    A11A0571.
    A11A0572.
    McINTYRE v. THE STATE. DISHAROON v. THE STATE.
    (715 SE2d 431)
   Doyle, Judge.

After a jury trial, Brandi McIntyre and Jeffery Disharoon (collectively “the Defendants”) were found guilty of two counts of aggravated sexual battery, one count of child molestation, one count of aggravated child molestation, one count of rape, one count of possessing more than one ounce of marijuana, and one count of contributing to the delinquency of a minor. The Defendants appeal, contending that the trial court erred by (1) prohibiting them from introducing evidence of the victim’s prior sexual history to show her motive to fabricate the allegations; (2) denying the motion to suppress; (3) denying the request for additional juror strikes; and (4) denying (a) the motion to exclude evidence of DNA results and (b) the motion for mistrial based on the testimony of the State’s expert DNA witness. For the reasons that follow, we affirm.

Viewed in the light most favorable to the verdict, the evidence shows that in April 2007, 15-year-old J. M. visited her aunt, McIntyre, and McIntyre’s live-in boyfriend, Disharoon, over spring break. Upon arriving at the couple’s home, J. M. drank alcohol with them and smoked a substance, resulting in J. M. feeling intoxicated. According to J. M. the three then used the hot tub outside the home, where the adult couple engaged in sexual intercourse, Disharoon inserted his fingers into J. M.’s vagina, McIntyre placed her mouth on J. M.’s breasts, and J. M. performed oral sex on and engaged in sexual intercourse with Disharoon.

The three then moved to the couple’s bedroom, where Disharoon performed oral sex on J. M., had sexual intercourse with J. M., penetrating both her vagina and anus, and placed his mouth on her breasts and fingers in her vagina. McIntyre also placed her mouth on J. M.’s breasts and performed oral sex on her. McIntyre also placed her fingers and several adult sexual devices into J. M.’s vagina and anus. These devices tested positive for J. M.’s DNA when seized by police officers. The couple also took photographs of the events, which J. M. tried to delete from the camera, but which were later recovered by investigators.

After returning home later that week, J. M. became ill and subsequently made an outcry to her friend, who then reported the abuse to J. M.’s mother.

1. The Defendants contend that the trial court erred by restricting their cross-examination of J. M. regarding her past sexual history pursuant to Georgia’s Rape Shield Statute, OCGA § 24-2-3. Specifically, the Defendants argue that they should have been allowed to present evidence that J. M. fabricated her claims in retaliation for McIntyre’s disclosure to J. M.’s mother that J. M. was sexually active. This issue has been considered previously by this Court and decided adversely to the Defendants’ argument.

The Rape Shield Statute bars the admission of evidence relating to the victim’s past sexual behavior unless it directly involves the accused’s participation and supports an inference that the accused could have reasonably believed that the victim consented to the conduct at issue. The evidence may also be admitted on a finding that it is so highly material that it will substantially support a conclusion that the accused reasonably believed that the complaining witness consented to the conduct complained of and that justice mandates the admission of such evidence.

“[T]he Rape Shield Statute . . . supersedes all evidentiary exceptions, including the res gestae rule.” “We review the trial court’s exclusion of such evidence for abuse of discretion.”

The trial court did not abuse its discretion here, as explained by this Court in Abdulkadir v. State. In that case, the defendant contended that he should have been allowed to introduce evidence that the victim had falsely accused him of sexual abuse when her mother discovered her engaged in sexual relations with another individual based on information the mother received from the defendant. This Court affirmed the trial court’s exclusion of any evidence of the victim’s sexual relationship with the other individual under the Rape Shield Statute. The Court determined that it was within the trial court’s discretion to limit cross-examination of the victim to whether a disciplinary dispute between the victim and defendant motivated the victim to fabricate the allegations.

Similarly, in Green v. State, this Court affirmed a trial court’s exclusion of evidence of a victim’s past sexual conduct, which the defendant theorized supported his contention that the allegations of rape were fabricated, stating:

[T]o allow the introduction of evidence of a witness’ past sexual behavior for the purpose of showing that she may have been pregnant at the time the allegations were made and may have therefore made up the charges in an effort to justify or explain the pregnancy, would be to permit defendants to circumvent the Rape Shield Statute and thwart the intent of the legislature in enacting the statute. We cannot allow such a result.

Here, as in Green and Abdulkadir, the trial court did not abuse its discretion by excluding cross-examination and testimony concerning J. M.’s alleged past sexual encounters.

2. The Defendants argue that the trial court erred by denying their motion to suppress evidence, including adult sexual devices and electronic media and storage devices.

(a) First, the Defendants contend that the motion to suppress should have been granted because the wording of the search warrant allowing seizure of adult toys and electronic storage devices was too broad. In support of their argument, the Defendants rely upon State v. Kramer, which is not binding authority. We affirmed the grant of a motion to suppress videotapes seized from the defendant on the basis that the search warrant was too broadly drawn. This Court explained, however, that the trial court correctly suppressed the videotapes because there was no evidence that the child molestation victim had been exposed to any videotapes. Nevertheless, in this case the search warrant was supported by an affidavit of the investigating officer detailing J. M.’s allegations of abuse, which included abuse conducted with adult sexual toys and which was allegedly photographed with a digital camera. Thus, Kramer, which is both distinguishable and nonbinding, does not require reversal in this case.

(b) The Defendants also contend that the motion to suppress should have been granted as to the photographs extracted from the storage devices because that search was conducted when the search warrant had become stale. The Defendants, however, fail to support their argument with any citation to authority or to the record and have therefore abandoned this argument.

3. The Defendants contend that the trial court erred by denying their motion for additional juror strikes. We disagree. The Defendants did not utilize their allotted number of strikes, and pursuant to Denny v. State, because the Defendants have failed to show any harm from the trial court’s denial, they have failed to establish that the trial court abused its discretion by denying the motion for additional strikes.

4. Finally, the Defendants argue that the trial court erred by denying their motion for mistrial when Connie C. Pickens, who was qualified as an expert without objection, provided testimony concerning the DNA samples taken from material in the Defendants’ home. Pickens testified that other technicians in the laboratory conducted the tests on the samples, and she relied upon those tests when crafting her report. The Defendants contend that this testimony was inadmissible hearsay and a violation of their Sixth Amendment confrontation rights, citing Melendez-Diaz v. Massa chusetts. This argument, however, was previously rejected by this Court in Carolina v. State, and we decline to revisit it.

Decided July 1, 2011

Reconsiderations denied July 27, 2011

Sexton & Morris, Lee Sexton, J. Scott Key, for appellant (case no. A11A0571).

Bruce S. Harvey, J. Scott Key, for appellant (case no. A11A0572).

Scott L. Ballard, District Attorney, Robert W. Smith, Jr., Assistant District Attorney, for appellee.

Judgment affirmed.

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

       OCGA § 16-6-22.2 (b).

       OCGA § 16-6-4 (a).

       OCGA § 16-6-4 (c).

       OCGA § 16-6-1 (a) (1).

       OCGA § 16-13-30 (j) (1).

       OCGA § 16-12-1 (b) (1).

       See Spivey v. State, 272 Ga. App. 224 (612 SE2d 65) (2005).

       (Citations and punctuation omitted.) Lloyd v. State, 263 Ga. App. 234, 236 (2) (587 SE2d 372) (2003). OCGA § 24-2-3 (b).

       (Punctuation omitted.) Mooney v. State, 266 Ga. App. 587, 592 (4) (597 SE2d 589) (2004).

       (Punctuation omitted.) Lloyd, 263 Ga. App. at 236 (2).

       264 Ga. App. 805 (592 SE2d 433) (2003), affirmed by Abdulkadir v. State, 279 Ga. 122 (610 SE2d 50) (2005), superseded by statute on other grounds as stated in Robinson v. State, 308 Ga. App. 562, 567 (1) (708 SE2d 303) (2011).

       See Abdulkadir, 264 Ga. App. at 807 (3) (a).

       See id. at 808 (3) (a).

       221 Ga. App. 436 (472 SE2d 1) (1996).

       (Citations and punctuation omitted.) Id. at 437.

       260 Ga. App. 546, 548 (2) (580 SE2d 314) (2003).

       See Court of Appeals Rule 33 (a); MCG Health v. Whitfield, 302 Ga. App. 408, 410, n. 1 (690 SE2d 659) (2010).

       See Kramer, 260 Ga. App. at 548-549 (2).

       See Court of Appeals Rule 25 (c) (2); Jackson v. State, 309 Ga. App. 796, 800 (2) (714 SE2d 584) (2011).

       281 Ga. 114, 117 (3) (636 SE2d 500) (2006).

       557 U. S. 305 (129 SC 2527, 174 LE2d 314) (2009).

       302 Ga. App. 40, 41-42 (690 SE2d 435) (2010). See also Herrera v. State, 288 Ga. 231, 234 (4) (702 SE2d 854) (2010).