author: Miller, Judge.

text:
    A14A0223.
    GEORGIA PROFESSIONAL STANDARDS COMMISSION v. JAMES.
    (761 SE2d 366)
   Miller, Judge.

This appeal arises from the decision of the State of Georgia Professional Standards Commission (“PSC”) to revoke the teaching certificate of former school principal Joey Dewayne James. After an administrative law judge (“ALJ”) affirmed the PSC’s decision, James filed a petition for judicial review in the Superior Court of Dougherty County. The superior court reversed, finding that the PSC violated James’s due process rights because the PSC based its decision to revoke James’s teaching certificate on grounds other than and different from those contained in the hearing notice that the PSC served on James. This Court granted the PSC’s application for discretionary review. On appeal, the PSC contends that, in reversing the ALJ’s decision, the superior court ignored the any evidence standard required by the Administrative Procedure Act (“APA”), OCGA § 50-13-1 et seq. For the reasons that follow, we agree and reverse.

Judicial review of an administrative decision requires the court to determine that the findings of fact are supported by any evidence and to examine the soundness of the conclusions of law that are based upon the findings of fact. When this Court reviews a superior court’s order in an administrative proceeding, our duty is not to review whether the record supports the superior court’s decision but whether the record supports the final decision of the administrative agency.

(Citations, punctuation and footnote omitted.) Davane v. Thurmond, 300 Ga. App. 474, 475 (685 SE2d 446) (2009).

So viewed, the record shows that James was the principal at Southside Middle School in Albany. In March 2011, a paraprofessional (“parapro”), who also worked at the school, reported that James told her he wanted to bend her over his desk, brushed his groin against her buttocks, rubbed his hand along her panty line and grabbed her breast. The parapro’s report was investigated by the Georgia Association of Educators (“GAE”) and the local police. After the GAE began its investigation, James pressured the parapro to “squash it.”

James was suspended for ten days with pay until the police investigation was completed. Approximately one month later, James was suspended again for fifteen days without pay.

James was subsequently arrested and charged with two counts of misdemeanor sexual battery. The PSC notified James of its intent to revoke his teaching certificate. James contested the proposed sanction and requested an administrative hearing. In response, the PSC scheduled a hearing and provided him with notice of the matters asserted, including detailed facts and circumstances relating to James’s conduct with the parapro. The notice further informed James that the PSC found probable cause based on those facts and circumstances, that he violated the laws, rules and regulations of the PSC, including Ga. Comp. R. & Regs. r. 505-6-.01 (3) (j), which pertinently provides:

An educator shall demonstrate conduct that follows generally recognized professional standards and preserves the dignity and integrity of the teaching profession. Unethical conduct includes but is not limited to any conduct that impairs and/or diminishes the certificate holder’s ability to function professionally in his or her employment position, or behavior or conduct that is detrimental to the health, welfare, discipline, or morals of students.

Following the required administrative hearing, the ALJ issued an order affirming the PSC’s decision to revoke James’s teaching certificate. The PSC adopted the ALJ’s conclusions of law and revoked James’s teaching certificate. In the order, the ALJ specifically found that the PSC proved by a preponderance of the evidence that James violated PSC Rule 505-6-.01 (3) (j). Notably, the ALJ found that the PSC

established that [James] engaged in unprofessional conduct that impaired his ability to function in his employment position. [James] engaged in sexual harassment and sexual battery of a subordinate employee ... a [parapro]. . . . Furthermore, [James] insisted on speaking with [the para-pro] alone, despite admonitions from his assistant principal, he told [the parapro] to “squash” the allegations[.]

The ALJ also found that James received two suspensions related to his conduct that removed him from the school and impaired his ability to function in his employment. Finally, the ALJ found that Rule 505-6-.01 (5) (a) authorized the PSC to revoke James’s teaching certificate based on the “egregious nature” of his unethical conduct. Rule 505-6-.01 (5) (a) pertinently provides:

The [PSC] is authorized to ... revoke ... certificates ... after an investigation is held and notice and opportunity for a hearing are provided to the certificate holder. Any of the following grounds shall be considered cause for disciplinary actions against the holder of a certificate: 1. unethical conduct 6. violation of any other laws and rules applicable to the profession; and 7. any other good and sufficient cause that renders an educator unfit for employment as an educator.

James appealed to the superior court. The superior court reversed, finding that the hearing notice did not advise James that the PSC’s decision to revoke his teaching certificate could be predicated on his administrative suspensions. The superior court further found that the ALJ’s decision made those suspensions an integral part of the rationale for concluding that James engaged in unethical conduct that justified the revocation of his teaching certificate.

The PSC contends on appeal that the superior court clearly erred in reversing the ALJ, because the ALJ found that James violated the PSC Rules by engaging in sexual harassment and sexual battery of the parapro and by pressuring her to withdraw her complaint. The PSC further contends that James had notice of those allegations. For the following reasons, we agree that James had sufficient notice of the matters presented at the administrative hearing.

Under the Administrative Procedure Act, review of an ALJ’s decision by a superior court is done without a jury and is confined to the evidence and testimony received by the ALJ. The [superior] court shall not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The superior court’s review of evidentiary issues is limited to determining whether factual findings are supported by any evidence.

(Citations and punctuation omitted.) Professional Standards Comm. v. Smith, 257 Ga. App. 418 (571 SE2d 443) (2002). The superior court may, however, reverse or modify the ALJ’s decision if James’s substantial rights

have been prejudiced because the administrative findings, inferences, conclusions, or decisions are: (1) In violation of constitutional or statutory provisions; (2) In excess of the statutory authority of the agency; (3) Made upon unlawful procedure; (4) Affected by other error of law; (5) Clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (6) Arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.

(Citation omitted.) MXenergy, Inc. v. Ga. Public Svc. Comm., 310 Ga. App. 630, 633 (1) (714 SE2d 132) (2011); see also OCGA § 50-13-19 (h) (1).

Once the State issues a teaching certificate, it may not be revoked without procedural due process. See Gee v. Professional Practices Comm., 268 Ga. 491, 493 (1) (491 SE2d 375) (1997). The procedural due process required to revoke a teaching certificate is set forth in the APA. Those procedures were followed in this case.

Notably, in contested cases, such as the present case, the APA provides for a hearing after reasonable notice. See OCGA § 50-13-13 (a) (1). The notice must include “[a] short and plain statement of the matters asserted.” OCGA § 50-13-13 (a) (2) (D); see also OCGA § 50-13-18 (c); Ga. Public Svc. Comm. v. Alltel Ga. Communications Corp., 244 Ga. App. 645, 648 (1) (536 SE2d 542) (2000). “Mere vagaries or generalities are insufficient, and the notice must be sufficiently specific and detailed to convey to the employee the substantial nature of the charge without requiring speculation on his part as to the precise complaint he must answer.” (Citation and punctuation omitted.) Swafford v. Dade County Bd. of Commrs., 266 Ga. 646, 648 (5) (469 SE2d 666) (1996).

Here, in response to James’s request, the PSC scheduled a hearing and provided James with notice pursuant to OCGA § 50-13-13 (a) (2), including a statement of the matters asserted (“SMA”) pursuant to OCGA § 50-13-13 (a) (2) (D). The SMA specifically alleged that James made inappropriate physical contact with and comments to the parapro, and that James pressured her to “squash everything and act like nothing happened.” The SMA set forth the incidents involving the inappropriate contact and comments in specific detail, including James’s actions in rubbing his crotch against the parapro’s buttocks, fondling her breast and pressuring her to “squash everything.” The SMA further provided that based on the “facts and circumstances set forth above, the [PSC] found probable cause that [James] violated the laws, rules and regulations ofthe [PSC],” including Rule 505-6-.01 (3) (j). Contrary to James’s contention and the superior court’s findings, the SMA provided sufficient detail to identify the alleged wrongdoing and the incidents and persons involved. See Swafford, supra, 266 Ga. at 648 (5).

Moreover, contrary to the superior court’s finding, James’s administrative suspensions were not an integral part of the ALJ’s rationale for finding that James engaged in unethical conduct which justified the revocation of his teaching certificate. Notably, the ALJ’s order specifically provided that James engaged in unprofessional conduct — sexual harassment and sexual battery of the parapro — in violation of PSC Rule 505-6-.01 (3) (j). While the ALJ also noted that James received two suspensions that impaired his ability to function in his employment, the ALJ ultimately concluded that revocation of James’s teaching certificate was appropriate based on the “egregious nature of [James’s] conduct.” The evidence supported the ALJ’s finding. Accordingly, the superior court erred in reversing the PSC’s final decision revoking James’s teaching certificate.

Decided July 1, 2014.

Samuel S. Olens, Attorney General, Dennis R. Dunn, Deputy Attorney General, Stefan E. Ritter, Senior Assistant Attorney General, Jennifer Colangelo, Assistant Attorney General, for appellant.

Allen, Forehand & Adams, Jon V. Forehand, Christopher F. West, for appellee.

Judgment reversed.

Doyle, P. J., and Dillard, J., concur.

       James’s June 2012 criminal trial ended in a mistrial.


source: Caselaw Access Project

author: Dillard, Judge.

license: Public Domain

text:
    A14A0531.
    SULLIVAN v. THE STATE.
    (761 SE2d 377)
   Dillard, Judge.

Following a trial by jury, Michael Sullivan was convicted of influencing a witness. On appeal, Sullivan contends that (1) the trial court erred by permitting the State to admit portions of confidential conversations between himself and his private investigator; (2) the trial court erred by denying him the opportunity to impeach a State witness with portions of an audiotape; and (3) the evidence is insufficient to sustain his conviction. For the reasons set forth infra, we affirm.

Viewed in the light most favorable to the jury’s verdict, the record shows that prior to the incidents in question, the victim in this case accused Sullivan of rape. In the aftermath of this accusation, a private investigator was hired to assist in Sullivan’s criminal defense. This private investigator made contact with Jimmy Roberts, who had witnessed some portions of the events relevant to the investigation, and arranged to meet with him in person.

During the investigator’s meeting, Roberts mentioned that he knew the victim and her family, that he doubted her version of events, and that he believed she was probably seeking a monetary payout. Accordingly, Roberts suggested offering the victim money, volunteered to act as a go-between, and indicated that he had previously been involved as the middleman in a similar negotiation. Indeed, while he was still meeting with the investigator, Roberts (on his own initiative) called the victim’s daughter, whom he had formerly dated, and left a voice message for her to call him back.

The private investigator, while still meeting with Roberts, called Sullivan to relay this information, and Sullivan told the investigator that he wanted to meet with Roberts later that evening. During that same conversation, and in Roberts’s presence, the investigator advised Sullivan that he did not believe Sullivan needed to pursue the case in such a manner, that it was in his best interest to let an attorney handle the matter, and that he would not attend Sullivan’s meeting with Roberts. Nevertheless, the investigator gave Roberts directions to Sullivan’s house, and Sullivan and Roberts met later that evening.

According to Roberts, at that meeting, the two men discussed what occurred the night of the incident that led to the victim’s allegations, and Sullivan said that he wanted the charges “gone” and that the situation was causing him significant personal hardship. In that regard, Sullivan indicated that he wanted Roberts to contact the victim to see about having the charges dropped. Roberts asked Sullivan if he should do anything to encourage the victim to drop the charges and Sullivan responded that he should not; however, Sullivan then pulled out two thick stacks of $100 bills, slapped the money in his hand, and told Roberts that “money is not a problem.” And although Roberts testified that Sullivan never indicated who the money was for, Sullivan told Rob erts that if the victim did not drop the charges, he would expose her to the media and file a civil suit against her. Then, later that evening, Roberts left Sullivan’s home with an oil painting that Sullivan gave him after telling Roberts that he could provide him with access to private clubs, security, limousines, and boats.

Shortly thereafter, Roberts made contact with the victim and then met with her at her home. During this meeting, Roberts told the victim that he had been approached by a private investigator and falsely stated that he had been sent to speak with her by the investigator, not Sullivan, because that was “how he handles these situations.” Roberts informed the victim that Sullivan “wanted to publicize” her name and that he (Sullivan) was “willing to give [her] money.” He then asked how much money the victim wanted and “threw a number at her,” suggesting $10,000. The victim appeared to be taken by surprise by Roberts’s offer and told him that she would need to think about it further. Then, after leaving, Roberts called Sullivan to relay that the victim was considering dropping the charges. Roberts also called the private investigator, who, once again, informed Roberts that he wanted no part in the scheme.

The next day, the victim contacted Roberts and the two continued their communications, with Roberts persistently suggesting that the victim could receive up to $10,000 for dropping the charges against Sullivan—i.e., by telling the district attorney’s office that the sexual encounter was consensual. But unbeknownst to Roberts, after his initial contact with the victim at her home, she contacted law enforcement to report that she had been approached by Roberts to drop the charges in exchange for a monetary payout. And at the request of law enforcement, all future communications between Roberts and the victim were audio- or video-recorded. Eventually, Roberts and the victim met in person for a second time, and Roberts was apprehended by law enforcement immediately after that meeting, during which he again suggested that he could get Sullivan to compensate the victim for dropping the charges.

Prior to his second in-person meeting with the victim, Roberts was again in contact with Sullivan, who informed Roberts that he had no intention of paying the victim and that he wanted Roberts to record her saying that she would accept money in exchange for dropping the charges. To that end, Sullivan provided Roberts with a tape recorder to use during his in-person meeting with the victim, and Roberts had the tape recorder on him when he was apprehended by law enforcement.

Following his arrest, Roberts was enlisted by law enforcement to assist in apprehending Sullivan. And after informing Sullivan that he had recorded the victim saying that she would accept money in exchange for dropping the charges, Roberts set up a meeting to return the tape recorder. This meeting was conducted at a restaurant under law-enforcement surveillance while Roberts wore a wire, but instead of Sullivan, Sullivan’s wife arrived to retrieve the recorder. Roberts handed over the recorder to Sullivan’s wife, and she, in turn, handed him a $100 bill. Sullivan’s wife was then arrested as she returned to her vehicle with the tape recorder, and Sullivan was apprehended shortly thereafter. Both Roberts and Sullivan’s wife pleaded guilty to charges of influencing a witness and testified at Sullivan’s trial.

Sullivan was ultimately charged with two counts of influencing a witness and convicted on both, although the trial court later directed a verdict as to the first count. He now appeals his conviction on the second count, contending that (1) the trial court erred by permitting the State to admit portions of confidential conversations with his private investigator; (2) the trial court erred by denying him the opportunity to impeach Roberts with portions of an audio-taped conversation between himself and Roberts; and (3) the evidence is insufficient to sustain his conviction. We will address each of Sullivan’s enumerations of error in turn.

1. Sullivan argues that the trial court erred by permitting the State to admit portions of confidential conversations that took place between himself and his private investigator by finding that the conversations fell under the crime-fraud exception to the attorney-client privilege. Specifically, he takes issue with instances in which the State elicited testimony from the private investigator that he advised Sullivan on more than one occasion that he believed the scheme with Roberts was illegal; that he, the investigator, wanted nothing to do with the scheme; and that Sullivan should let attorneys or law enforcement handle the matter.

To begin with, Sullivan is correct that conversations with a private investigator who is employed to assist in a client’s defense may be protected by the attorney-client privilege. However, the attorney-client privilege does not extend to communications “which occur before perpetration of a fraud or commission of a crime and which relate thereto.” This is known as the crime-fraud exception to the privilege. In this regard, the privileged communication may be “a shield of defense as to crimes already committed, but it can not be used as a sword or weapon of offense to enable persons to carry out contemplated crimes against society, frauds or perjuries.”

Here, the trial court did not err in determining that the relevant conversations fell within the ambit of the crime-fraud exception. The record reflects that Sullivan communicated with the investigator throughout the course of the weekend during which Roberts made repeated contact with the victim at Sullivan’s behest (which included offers of a monetary payout to the victim in exchange for dropping the charges), and the complained-of statements related to continuation of the plan Sullivan willingly undertook with Roberts. And even if the complained-of testimony did not fall under the crime-fraud exception, any error was harmless because the testimony was cumulative of other testimony. Indeed, the record reflects that the investigator testified that he informed Sullivan both in private and in a telephone conversation in Roberts’s presence that he advised against approaching the victim and recommended allowing attorneys or law enforcement to handle the matter, and “ft]he privilege does not extend to those situations in which third parties are present for attorney-client discussions.” Additionally, the investigator testified without objection that he provided Roberts with the same advice that he provided to Sullivan: that he “thought the[ ] actions were wrong and illegal” and that he “was no longer going to be involved in them in any way.” Accordingly, this enumeration of error is wholly without merit.

2. Next, Sullivan contends that the trial court erred in denying him the opportunity to impeach Roberts’s testimony using portions of conversations that Sullivan audiotaped between himself and Roberts.

We note that, as a general rule, admission of evidence is “a matter resting within the sound discretion of the trial court, and appellate courts will not disturb the exercise of that discretion absent evidence of its abuse.” Furthermore, the constitutionally improper denial of a defendant’s opportunity to impeach a witness, “like other Confrontation Clause errors, is subject to a harmless-error analysis.” But to determine whether a constitutional error is harmless, we must consider whether the error was harmless beyond a reasonable doubt. And here, we conclude that even if the trial court erred in limiting the use of the audiotape on cross-examination, any error was harmless beyond a reasonable doubt.

The record reflects that during Roberts’s testimony, Sullivan sought permission to play in-person and telephone conversations that Sullivan secretly audiotaped between himself and Roberts, but the State objected. And ultimately, the trial court ruled that Sullivan could use any inconsistent statements Roberts made on the audiotape to impeach Roberts’s testimony, but the trial court would not allow Sullivan to use any statements that Sullivan made on the tape because those statements, the court determined, amounted to self-serving hearsay unless Sullivan chose to testify (which he did not).

On appeal, Sullivan does not specify what portions of the audiotape the trial court erred in failing to allow him to use on cross-examination. However, at trial, Sullivan proffered the statements he wished to use and played the audiotape, which was included in the record, for the court outside of the jury’s presence. Specifically, Sullivan sought to use statements in which (1) he indicated to Roberts how his life had been negatively impacted by the charges, (2) Roberts, in Sullivan’s view, volunteered to act as an intermediary, (3) Roberts noted that he had previously acted as a middleman in a similar situation, (4) Sullivan advised Roberts that he would not offer the victim any money and “only wantfed] the truth,” (5) Sullivan indicated that he wanted the victim to perjure herself, and (6) Roberts offered to “get [the victim] drunk” to get to the truth. And in a second recorded conversation with Roberts, Sullivan attempted to introduce statements in which he questioned Roberts as to how “a number even came up” during Roberts’s initial communication with the victim. Sullivan also sought to use a statement made by Roberts implying that the plan all along had been to record the victim saying she would accept money in exchange for dropping the charges, not to actually pay the victim money for doing so.

After the foregoing proffer, and despite Sullivan’s argument that he wished to use statements by both men to impeach Roberts by contradiction, the trial court continued to rule that Sullivan’s statements were inadmissible hearsay and that Sullivan’s use of the audiotape on cross-examination would be limited to impeaching Roberts with any of his own prior inconsistent statements.

But even if the trial court erred in limiting Sullivan’s cross-examination of Roberts by determining that Sullivan’s statements amounted to hearsay, the error was harmless beyond a reasonable doubt because Sullivan accomplished the same result without the excluded statements. Indeed, while cross-examining Roberts, Sullivan was permitted to play for the jury portions of the audiotape in which Roberts indicated that he could wear a wire when he met with the victim, get the victim intoxicated, and get the truth out of her. Sullivan also played a portion of the recordings in which Roberts’s statements implied that the idea to audio-record the victim was not an afterthought in the plan.

In addition to this impeached testimony, Sullivan elicited testimony on cross-examination that Roberts “made the pitch” to the victim “the way he thought it should be done,” that Sullivan instructed him to get the victim on tape saying that she would accept money and to then inform her that Sullivan had no intention of making payment, and that the plan was to record the victim and to then take the recording to Sullivan’s attorney. Further, Roberts testified that it was his idea to offer the victim $10,000, and that he only suggested that number based on the stacks of cash Sullivan produced during their first meeting. Additionally, the private investigator provided testimony that Roberts volunteered for the job and indicated that he had been involved in a similar negotiation in the past. Accordingly, even without the use of Sullivan’s recorded statements, he elicited the sought-after testimony to undermine the State’s theory of the case and Roberts’s testimony, making any error by the trial court in limiting use of the audiotape harmless beyond a reasonable doubt.

3. Finally, Sullivan argues that the evidence is insufficient to sustain his conviction for influencing a witness. We disagree.

We first note that on appeal from a criminal conviction, “the defendant is no longer entitled to a presumption of innocence and we therefore construe the evidence in the light most favorable to the jury’s guilty verdict.” In the case sub judice, Sullivan was indicted for and convicted of violating OCGA § 16-10-93 (a) by “unlawfully offering [the victim] $10,000, a benefit, reward and consideration[,]” and doing so “with the intent to deter [the victim], a witness, from testifying freely, fully, and truthfully to a matter pending before the Forsyth County Grand Jury.”

Decided July 1, 2014.

Sharon L. Hopkins, for appellant.

Penny A. Penn, District Attorney, Jennifer Scalia, Assistant District Attorney, for appellee.

Although it is undisputed that Sullivan had no direct contact with the victim, the jury was charged that he could be convicted as a party to the crime. Indeed, every person concerned in the commission of a crime is “a party thereto and may be charged with and convicted of commission of the crime.” And a person is concerned in the commission of a crime if he “[i]ntentionally advises, encourages, hires, counsels, or procures another to commit the crime.”

Here, even if Roberts initially volunteered to approach the victim and the idea to offer the victim $10,000 was born out of Roberts’s mind, the evidence before the jury showed that Sullivan responded to Roberts’s suggestions by encouraging him to contact the victim about dropping the charges and vaguely indicated that “money was not a problem” after showing Roberts a significant amount of cash. Roberts also testified that when Sullivan spoke to him after his initial contact with the victim, Sullivan told Roberts to keep communicating with the victim and, rather than contact law enforcement for assistance in his alleged sting operation, Sullivan continued to use Roberts as a middleman. Accordingly, the jury was presented with sufficient evidence by which to find that Sullivan violated OCGA § 16-10-93 (a) as a party to the crime.

For all of the foregoing reasons, we affirm Sullivan’s conviction.

Judgment affirmed.

Doyle, P. J., and Miller, J., concur.

        See, e.g., Muse v. State, 323 Ga. App. 779, 780 (748 SE2d 136) (2013).

       Sullivan was subsequently indicted for rape and, after the trial in the case subjudice, was tried and acquitted of that charge.

       SeeOCGA § 24-5-501(a)(2)(“Therearecertainadmissionsandcommunicationsexcluded from evidence on grounds of public policy, including, but not limited to . . . [ejommunications between attorney and client. . . .”).

        See In re Fulton County Grand Jury Proceedings, 244 Ga. App. 380, 382 (535 SE2d 340) (2000) (“[T]his court [has] held that a statement from the defendant given to an investigator by defense counsel was a privileged and confidential communication. Courts in other states have recognized that [when] a private investigator is employed by counsel to collect and assemble facts necessary for representation in pending or anticipated litigation, the protection of the attorney-client privilege extends to confidential communications between the client and investigator.” (footnote omitted)); see also Revera v. State, 223 Ga. App. 450, 452 (1) (477 SE2d 849) (1996) (holding that the trial court erred in “permitting the State, on cross-examination, to have the defense psychologist refresh his recollection (thereby effectively impeaching defendant) by use of a privileged and confidential communication to the attorney’s investigator”).

        In re Fulton County Grand Jury Proceedings, 244 Ga. App. at 382.

        See id.; see also Rose v. Commercial Factors of Atlanta, Inc., 262 Ga. App. 528, 529 (586 SE2d 41) (2003) (noting that the applicability of the “crime-fraud exception does not require proof of the existence of a crime or fraud to overcome the claim that a communication is privileged,” but rather “depends upon whether a prima facie case has been made that the communication was made in furtherance of an illegal or fraudulent activity’).

        In re Hall County Grand Jury Proceedings, 175 Ga. App. 349, 350 (2) (333 SE2d 389) (1985) (punctuation omitted); accord Atlanta Coca-Cola Bottling Co. v. Goss, 50 Ga. App. 637, 639 (1) (179 SE 420) (1935).

        In re Hall County Grand Jury Proceedings, 175 Ga. App. at 350 (2) (“[C]ommunications occurring after a fraud, or a crime has been completed are privileged, but those which occur before the perpetration of a fraud or commission of a crime and which relate thereto are not protected by the privilege.”); see United States v. Neal, 27 F3d 1035, 1048-49 (VI) (5th Cir. 1994) (holding that crime-fraud exception applied to communications in which attorney advised that he believed a scheme was illegal and that he wanted no part in it); see also In re Grand Jury Subpoena, 745 F3d 681, 692 (III) (B) (3rd Cir. 2014) (holding that district court did not err in finding crime-fraud exception applicable when evidence suggested that “[c]lient had already considered the advisability of [the proposed conduct], and determined that it was in his best interest to do so” before seeking “advice about the scheme’s legality”).

        See Revera, 223 Ga. App. at 452 (1) (“The cumulative nature of [the witness’s] testimony in the case sub judice even though impermissibly refreshed by use of a confidential and privileged statement renders the error in its admission harmless.” (punctuation omitted)).

        Rogers v. State, 290 Ga. 18, 20-21 (2) (717 SE2d 629) (2011).

        Martinez v. State, 306 Ga. App. 512, 525 (6) (702 SE2d 747) (2010) (punctuation omitted).

        Id. (punctuation omitted).

        See Hawkins v. State, 316 Ga. App. 415, 418 (2) (a) (729 SE2d 549) (2012) (“The correct inquiry is whether, assuming that the damaging potential of the cross-examination were fully realized, a reviewing court might nonetheless say that the error was harmless beyond a reasonable doubt.” (punctuation omitted)); see also Stovall v. State, 287 Ga. 415, 418 (3) (696 SE2d 633) (2010).

        See Gaither v. State, 259 Ga. 200, 201 (2) (378 SE2d 464) (1989) (“[E]ven if the court did err in restricting [the appellant’s] cross-examination of the witness, the error was harmless in view of the fact the testimony sought to be elicited by [the appellant] from this witness would have been cumulative of other testimony.”). Cf. Mangum v. State, 274 Ga. 573, 577 (2) (555 SE2d 451) (2001) (holding that error in limiting defendant’s ability to potentially cross-examine State witnesses with pending criminal charges was not harmless when conviction was based largely on circumstantial evidence and hearsay testimony elicited from those witnesses).

        Castaneira v. State, 321 Ga. App. 418, 418 (740 SE2d 400) (2013).

        See OCGA § 16-10-93 (a) (providing that a person, “with intent to deter a witness from testifying freely, fully, and truthfully to any matter pending . . . before a grand jury, communicates, directly or indirectly, to such witness any threat of injury or damage to the person, property, or employment of the witness or to the person, property, or employment of any relative or associate of the witness or who offers or delivers any benefit, reward, or consideration . . . shall, upon conviction thereof, be punishedby imprisonment for not less than one nor more than five years”).

       OCGA § 16-2-20 (a).

       OCGA § 16-2-20 (b).


author: ANDREWS, Presiding Judge.

text:
    A14A0556.
    SMITH et al. v. GRAHAM CONSTRUCTION COMPANY, INC.
    (761 SE2d 370)
   ANDREWS, Presiding Judge.

Allen Smith was injured while working for his employer, Edens Enterprises, LLC, on a construction project located in North Carolina on which Graham Construction Company, Inc. was the general contractor. Based on Smith’s work-related injury outside of Georgia, Edens paid Smith benefits pursuant to the Georgia Workers’ Compensation Act (WCA) (OCGA § 34-9-1 et seq.). See OCGA § 34-9-242. After receiving workers’ compensation benefits for the work-related injury, Smith sued Graham for damages resulting from the injury claiming that Graham negligently caused the injury, and Smith’s wife joined in the suit seeking additional damages against Graham for loss of consortium. Smith and his wife appeal from the trial court’s grant of summary judgment in favor of Graham on the basis that the suit was barred by the exclusive remedy provision of the WCA set forth in OCGA § 34-9-11 (a). For the following reasons, we affirm.

Because Smith recovered benefits for his work-related injury under the WCAfrom his immediate employer, Edens, both Edens and the general contractor, Graham, as a statutory employer, were immune from tort liability for the injury pursuant to the exclusive remedy provision set forth in OCGA § 34-9-11 (a). Wright Assoc., Inc. v. Rieder, 247 Ga. 496 (277 SE2d 41) (1981); Warden v. Hoar Constr. Co., 269 Ga. 715 (507 SE2d 428) (1998); OCGA § 34-9-8. The trial court correctly granted summary judgment in favor of Graham on the basis that the tort suit brought by Smith and his wife was barred by OCGA § 34-9-11 (a).

There is no merit to the Smiths’ claim that the trial court erred by applying the substantive law of Georgia instead of North Carolina (where the injury occurred) to determine that the tort suit was barred. Even though Georgia adheres to the rule of lex loci delicti, which requires application of the substantive law of the place where the tort occurred, Georgia recognizes a public policy exception to the rule and will not as a matter of courtesy or comity apply another state’s substantive law if it contravenes the public policy of Georgia. Dowis v. Mud Slingers, Inc., 279 Ga. 808 (621 SE2d 413) (2005); Alexander v. Gen. Motors Corp., 267 Ga. 339 (478 SE2d 123) (1996). Like similar provisions of Georgia law, under North Carolina law, a principal contractor which qualifies as a “statutory employer” in the North Carolina Workers’ Compensation Act benefits from the exclusivity provision of the Act, which provides the statutory employer with immunity from an injured employee’s suit claiming that the statutory employer negligently caused the injury. Rich v. R. L. Casey, Inc., 454 SE2d 666, 667-668 (N.C. App. 1995). But under North Carolina law, a principal contractor qualifies as a statutory employer under the Act only when two conditions are met: (1) the injured employee must be working for a subcontractor doing work contracted to it by the principal contractor; and (2) the subcontractor does not have workers’ compensation insurance covering the injured employee. Id. at 667. Under these two conditions, the principal contractor becomes a statutory employer liable to pay workers’ compensation benefits for the subcontractor’s injured employee, and is entitled to immunity from suit under the Act’s exclusivity provision. Id. Because Smith’s immediate employer, Edens, had workers’ compensation insurance covering Smith and paid the benefits, the principal contractor, Graham, would not qualify as a “statutory employer” under the North Carolina Act and would not be entitled to immunity from suit provided by the Act’s exclusivity provisions. By contrast, under Georgia’s WCA the principal contractor, Graham, qualified as a statutory employer entitled to immunity from suit even though Smith’s immediate employer, Edens, had workers’ compensation coverage and paid the benefits. Wright Assoc., supra; Warden, supra.

Decided July 1, 2014

Savage & Turner, Brent J. Savage, Kathryn H. Pinckney, for appellants.

Ian R. Rapaport, for appellee.

It follows that, even though Smith was injured in North Carolina, the trial court correctly applied Georgia substantive law because application of North Carolina substantive law would offend the public policy embodied in the exclusivity provision of the Georgia WCA as set forth in OCGA § 34-9-11 (a). Karimi v. Crowley, 172 Ga. App. 761 (324 SE2d 583) (1984). “This exclusivity feature of the [WCA] obtains even where the employee is injured outside of this State, and benefits for that injury are recoverable pursuant to OCGA § 34-9-242.” Id. at 763 (legislature intended that the Georgia WCA apply where benefits are payable under OCGA § 34-9-242).

Judgment affirmed.

McFadden and Ray, JJ., concur.

       Smith is a Georgia resident; Edens is a Georgia limited liability company; and Graham is a foreign corporation principally located in North Carolina and registered to do business in Georgia.

       Separate claims asserted against Edens in the suit are not at issue in this appeal.


text:
    A14A0594.
    CREIGHTON v. THE STATE.
    (761 SE2d 373)
   Miller, Judge.

Following a jury trial, Airick Joseph Creighton was convicted of one count of aggravated child molestation (OCGA § 16-6-4 (a) (1), (c)), one count of pimping (OCGA § 16-6-11), and possession of less than one ounce of marijuana (OCGA § 16-13-30 (j)). Creighton appeals from the denial of his motion for new trial, contending that the evidence was insufficient, the State failed to prove venue and the trial court erred in denying his request to charge on mistake of fact. For the reasons that follow, we affirm.

Viewed in the light most favorable to the jury’s verdict, the evidence shows that the then 14-year-old victim, T. S., lived with her great aunt in DeKalb County. In June 2012, T. S. met and started corresponding with Creighton through Facebook. At some point, T. S. told Creighton that she was prostituting.

One day toward the end of July 2012, T. S. called Creighton and asked him for a ride. Creighton picked T. S. up in Mechanicsville and took her to a plaza in Gwinnett County. That same night, Creighton took T. S. to the Rite 4 Us motel in Gwinnett County where T. S. spent the night in a room with Creighton and Rodshaid Wright.

At some point, Creighton took pictures of T. S. on his computer, and T. S. used Creighton’s computer to post four advertisements with those pictures on an adult entertainment website in early August 2012. The phone numbers listed in the advertisements rang Creighton’s cell phone number.

T. S. met men through the advertisements, spoke with them on Creighton’s phone, told them to come to Room 330 at the Extended Stay motel in Norcross in Gwinnett County and negotiated a price over the phone. At the motel, T. S. performed sexual activities in exchange for money. T. S. always asked Creighton to leave the motel room during these activities.

Meanwhile, on August 6, 2012, T. S.’s aunt learned that T. S. was at Motel 6 in Norcross, which is located in Gwinnett County. By this time, T. S. had been away from her aunt’s home for seven or eight days. The aunt showed a couple of people at the motel a flyer with T. S.’s picture onit, and they told the auntthatT. S. was in a particular room. The aunt then called police and gave them a physical description of T. S. and gave them the room number — Room 203.

As the aunt was leaving the motel that night, she saw T. S. leaving the motel; however, T. S. disappeared before the aunt could reach her. When the responding officer arrived at the motel, he saw two black females on the upper balcony. The officer noticed that one of the females had blonde streaks in her hair which matched the description of T. S. given by her aunt. The officer then spoke with T. S.’s aunt, who told the officer that T. S. left Room 203 and went toward the front of the motel.

The officer was unable to locate T. S. that night; however, he spoke with Wright, who had rented the motel room. The officer also looked around the motel room with Wright’s permission and observed an open laptop computer on the bed. The computer showed a picture of a girl with blonde hair who matched the description of T. S. The officer then ran a warrant check on Wright, discovered that Wright had an active warrant for a recent burglary, and arrested Wright on the outstanding warrant.

After a detective arrived, Wright consented to a search of his motel room. Since a TV and two computers had been stolen in the recent burglary, the detective was curious about the laptop he saw on the bed. Creighton, who was present during the search, told the detective that the laptop was his, so the detective opened the laptop to verify that it belonged to Creighton. The laptop was logged into T. S.’s Facebook account. The laptop also had multiple tabbed pages open on Internet Explorer, including Backpage.com, which listed ads for prostitution.

Later that day, the detective viewed T. S.’s public Facebook profile. The detective saw that T. S. and Creighton were friends and had communicated with each other on Facebook in the days prior to August 6. At that point, the detective suspected that Creighton and T. S. were involved in prostitution. The detective wrote up a report, printed out T. S.’s and Creighton’s Facebook profiles and gave the information to the vice unit for further investigation.

A special investigator with the Gwinnett County vice unit searched the Internet looking for escort advertisements in the Norcross area, and found the advertisements that T. S. had posted. On August 7, the investigator called the phone number listed in one of the advertisements and spoke to T. S. During the conversation, the investigator learned that T. S. was at the Extended Stay in Norcross and she was available for an hour. The investigator told T. S. that he would call her when he was off work and in the area.

A couple of hours later, the investigator called T. S., who told the investigator that she was still taking appointments, but was not currently at her motel. The investigator told T. S. that he would stay in the area and asked her to call him if she got back within a reasonable time. The investigator did not hear from T. S. again until after midnight when she texted him to say she was back in her motel.

The investigator next tried to contact T. S. around 3:00 p.m. on August 8, 2012. Another female answered the phone, and gave the investigator a different phone number where he could reach T. S. When the investigator called that number, T. S. answered. T. S. agreed to meet the investigator at her motel later that day, so the investigator assembled a team of officers and headed to the Extended Stay in Norcross.

When the investigator arrived at the Extended Stay motel, he called T. S. who said she was available in Room 330 which was Creighton’s room. The investigator saw Creighton and one of his friends walking along the third-floor balcony in the area of where the room was located. The investigator knocked on the door to Creighton’s room, entered and walked through it, checking for weapons and anyone hiding inside. The investigator then exchanged money with T. S. and gave the takedown signal.

The takedown team took Creighton and the other man into custody. During a consent search of Creighton’s room, the investigator found two of Creighton’s baseball hats that were pictured in one of T. S.’s Backpage.com advertisements. In Creighton’s room, the investigator also found two condoms, Creighton’s cell phone, a couple of marijuana cigarettes, a black leather wallet containing Creighton’s identification card, and a large red notebook belonging to Creighton. Creighton’s notebook contained records of his pimping business and listed him as the CEO/King and showed that he had five prostitutes working for him.

On August 8, 2012, T. S. gave a statement to investigators which was played for the jury at Creighton’s trial. T. S. told investigators that she performed oral sex on Creighton “today” at the motel “we were at today.” T. S. admitted at trial that she told investigators that she gave Creighton a “blow job,” involving her mouth and his penis.

Creighton’s custodial interview was also played for the jury at trial. In his interview, Creighton admitted having oral sex with T. S. and said that “I let her suck it.” Creighton also admitted at trial that he possessed the marijuana found in his motel room at the Extended Stay in Norcross.

1. Creighton contends that the evidence was insufficient to support his convictions. We disagree.

(a) Aggravated Child Molestation

A person commits the offense of child molestation when such person does any immoral or indecent act with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person. OCGA § 16-6-4 (a) (1). A person commits the offense of aggravated child molestation when such person commits an offense of child molestation involving an act of sodomy. OCGA § 16-6-4 (c). Sodomy is defined, in pertinent part, as any sexual act involving the sex organs of one person and the mouth of another. See OCGA § 16-6-2 (a) (1).

The evidence at trial showed that T. S. told investigators on August 8, 2012 that she performed oral sex on Creighton. T. S. told investigators that the “blow job,” involved her mouth and his penis. Accordingly, the evidence was sufficient to support Creighton’s conviction for aggravated child molestation. See OCGA § 16-6-4 (c).

(b) Pimping

OCGA § 16-6-11 provides:

A person commits the offense of pimping when he or she performs any of the following acts: (1) Offers or agrees to procure a prostitute for another; (2) Offers or agrees to arrange a meeting of persons for the purpose of prostitution; (3) Directs or transports another person to a place when he or she knows or should know that the direction or transportation is for the purpose of prostitution; (4) Receives money or other thing of value from a prostitute, without lawful consideration, knowing it was earned in whole or in part from prostitution; or (5) Aids or abets, counsels, or commands another in the commission of prostitution or aids or assists in prostitution where the proceeds or profits derived therefrom are to be divided on a pro rata basis.

Additionally, a person convicted of pimping shall be guilty of a felony when such offense involves the prostitution of a person under the age of 18 years. See OCGA § 16-6-13 (b) (2); Burroughs v. State, 292 Ga. App. 580 (1) (665 SE2d 4) (2008).

The evidence, as set forth above, was sufficient to show that Creighton aided or abetted T. S., who was under the age of 18, in the commission of the crime of prostitution. Notably, Creighton took pictures of then 14-year-old T. S. which she used to place advertisements seeking persons interested in sex for money; T. S. used Creighton’s phone to take calls responding to the advertisements; and Creighton rented the room at the Extended Stay motel which T. S. used to meet persons who responded to her advertisements. Accordingly, the evidence was sufficient to convict Creighton of felony pimping.

(c) Possession of less than one ounce of marijuana

Under OCGA § 16-13-30 (j) (1), it is unlawful for any person to possess marijuana. Since Creighton admitted that the marijuana found in his Gwinnett County motel room was his, the evidence was sufficient to conclude beyond a reasonable doubt that he was guilty of possession of less than one ounce of marijuana. See Johnson v. State, 299 Ga. App. 706, 710-711 (1) (e) (683 SE2d 659) (2009).

2. Creighton contends that the State failed to prove venue for the charged crimes. We do not agree.

Generally, a criminal action must be tried in the county in which the crime was committed, and the State may establish venue by whatever means of proof are available to it, including direct and circumstantial evidence. As an appellate court, we view the evidence in a light most favorable to support the verdict and determine whether the evidence was sufficient to permit a rational trier of fact to find beyond a reasonable doubt that the crime was committed in the county where the defendant was indicted.

(Citation and footnote omitted.) Pippins v. State, 263 Ga. App. 453, 455 (2) (588 SE2d 278) (2003).

The evidence showed that the act of aggravated child molestation occurred while T. S. and Creighton were at the Norcross Extended Stay motel in Gwinnett County. The evidence also showed that Creighton’s actions in aiding and abetting T. S. in the commission of prostitution occurred at the Extended Stay motel in Gwinnett County. Finally, the evidence showed that Creighton admittedly possessed the marijuana found in his Gwinnett County motel room. Accordingly, the State met its burden of proving venue in Gwinnett County for the charged crimes beyond a reasonable doubt. See Pippins, supra, 263 Ga. App. at 455-456 (2).

3. Creighton contends that the trial court erred in failing to give his requested charge on mistake of fact. Specifically, Creighton argues that T. S. was well versed in deceiving men regarding her age and that deception is an affirmative defense to certain sexual crimes. We discern no error.

Contrary to Creighton’s argument, “[k]nowledge of the victim’s age is not an element of the crime of child molestation. . . . Since a mistaken belief as to the victim’s age would not have justified the act, a charge on mistake was not warranted.” (Citations omitted.) Veasey v. State, 234 Ga. App. 795, 795-796 (1) (507 SE2d 799) (1998); see also Schultz v. State, 267 Ga. App. 240, 242 (2) (599 SE2d 247) (2004). Therefore, the trial court did not err in failing to give the requested charge.

Judgment affirmed.

Doyle, P. J., and Dillard, J., concur.

Decided July 1, 2014.

Wayne L. Burnaine, for appellant.

Daniel J. Porter, District Attorney, Jennifer G. Hendee, Assistant District Attorney, for appellee.

       Creighton was acquitted on a second pimping charge and a charge of keeping a place of prostitution.

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


text:
    A14A0075, A14A0076.
    WHEELER v. AKINS; and vice versa.
    (761 SE2d 383)
   Miller, Judge.

Jennifer Wheeler and William Akins are the parents of M. A., a minor child. In 2012, the trial court granted Akins’s petition for a change of custody under OCGA § 19-9-3, terminated his obligation to pay child support, ordered Wheeler to pay child support, and set visitation. Akins later filed a motion for judgment notwithstanding the verdict (“j.n.o.v.”), arguing that the child support award was not supported by the evidence. The trial court granted Akins’s motion and issued a new order for support and visitation, leading to these appeals.

In Case No. A14A0075, Wheeler appeals from the trial court’s order granting Akins’s motion to set aside a previous order of support and visitation, increasing her child support obligation, decreasing her visitation, and ordering her to pay back child support. Wheeler contends that the trial court erred in setting aside its earlier order and improperly ordered her to pay back child support. In his cross-appeal, in Case No. A14A0076, Akins attacks the same order and contends that the trial court abused its discretion in adjusting Wheeler’s child support obligation based on her duty to support another child.

For the reasons that follow, we conclude that the trial court had the authority to set aside its earlier order, but erred in retroactively modifying Wheeler’s child support obligation. We reverse that portion of the trial court’s order. Accordingly, we affirm in part and reverse in part in Case No. A14A0075. We reverse and remand in Case No. A14A0076 because the trial court failed to make adequate findings to support its child support award.

The current child support guidelines require the trial court to make a series of calculations to determine the presumptive amount of child support. Hamlin v. Ramey, 291 Ga. App. 222, 223 (1) (661 SE2d 593) (2008). To justify a deviation from the presumptive amount of child support, a trial court must make written findings to explain, among other things, how the best interest of the children for whom support is being determined will be served by the deviation. Black v. Black, 292 Ga. 691, 697 (4) (a) (740 SE2d 613) (2013). These written findings are mandatory and, without them, this case must be remanded to the trial court for further proceedings. Brogdon v. Brogdon, 290 Ga. 618, 623 (5) (b) (723 SE2d 421) (2012). We review decisions to deviate, or not to deviate, from the presumptive amount of child support for abuse of discretion. Black, supra, 292 Ga. at 697 (4) (a).

Here, the undisputed facts show that M. A. was born in 1997. In 1999, Wheeler, her mother, was awarded primary physical custody. In July2011,attheageofl4,M.A.madean election underOCGA § 19-9-3 to live with Akins, her father. Based on M. A.’s election, Akins petitioned for primary physical custody. Akins also sought to terminate his child support obligation.

After a hearing, the trial court in October 2011 granted Akins’s petition for change of custody, terminated Akins’s child support, and reserved ruling on the question of Wheeler’s child support. Following a subsequent hearing, the trial court issued an order on February 14, 2012, requiring Wheeler to pay Akins $160 per month in child support but delaying her first payment until May 5,2012. The superior court’s order also set out a detailed visitation schedule and awarded Wheeler visitation the first, third, and fourth weekends of every month, with Akins entitled to visitation on the second weekend of the month, as well as the fifth weekend of the month, when applicable.

Akins subsequently filed a motion for j.n.o.v. on February 28, 2012. In his motion, Akins argued that the evidence submitted at the hearing did not support the child support award. More than a year later, onMay21,2013, after holding oral argument on the matter, the trial court granted Akins’s motion for j.n.o.v., and issued a new order increasing Wheeler’s child support obligation to $474 per month. The trial court also found that Wheeler owed back child support in the amount of $2,844 ($474 per month from October 2011 through May 2012) and ordered her to pay that amount in arrearage. Finally, the trial court modified the visitation schedule, granting Wheeler visitation the first and third weekends of the month, and the fifth weekend of the month, when applicable.

Case No. A14A0075

1. In related enumerations of error, Wheeler contends that the trial court erred in granting Akins’s motion for j.n.o.v. Specifically, Wheeler argues that j.n.o.v. was improper because there was no jury verdict, Akins made no motion for a directed verdict, and the trial court had no authority to change the previously entered order on evidentiary grounds.

Regardless of the nomenclature, Akins’s motion sought to set aside the trial court’s judgment on the ground that it was not supported by the evidence. See Marshall v. State, 229 Ga. 841 (1) (195 SE2d 12) (1972) (substance controls over nomenclature under rules of pleadings).

A “trial judge can grant a motion for new trial if the verdict is contrary to the evidence under OCGA § 5-5-20 or strongly against the weight of the evidence under OCGA § 5-5-21.” (Citation and punctuation omitted.) Moore v. Stewart, 315 Ga. App. 388, 390-391 (3) (727 SE2d 159) (2012). The decision to grant a new trial is reviewed for abuse of discretion. Beasley v. Paul, 223 Ga. App. 706, 706-707 (1) (478 SE2d 899) (1996).

Similarly,

[djuring the term in which a judgment is entered, a trial court has plenary control over it and has the discretion to set aside the judgment for irregularity, or because it was improvidently or inadvertently entered and for the purpose of promoting justice. Atrial court’s discretion in setting aside a judgment will not be disturbed unless manifestly abused. However, a trial court’s discretion to set aside a judgment during the term it was entered is not without limits, and should be exercised for some meritorious reason. In this regard, a trial court is granted the discretion to determine what is a meritorious reason for setting aside one of its judgments, and an appellate court may reverse that discretion only if it is manifestly abused.

(Citations, punctuation and footnotes omitted.) Pope v. Pope, 277 Ga. 333, 334 (588 SE2d 736) (2003). Consequently, although Akins’s motion was styled as a j.n.o.v., the trial court had plenary authority to consider it as a motion for new trial or a motion to set aside the judgment.

2. Wheeler contends the court erred in finding in the 2013 order that she owed a child support arrearage. We agree.

[A] permanent child support judgment is res judicata and enforceable until modified, vacated or set aside. Therefore, a court may not change a support obligation retroactively. OCGA § 19-6-17 (e) (l)-(3) states as much: Any payment or installment of support under any child support order is, on and after the date due a judgment by operation of law, with the full force and effect and attributes of a judgment of this state, including the ability to be enforced; entitled as a judgment to full faith and credit; and not subject to retroactive modification.

(Citation and punctuation omitted.) Ga. Dept. of Human Resources v. Gamble, 297 Ga. App. 509, 510-511 (677 SE2d 713) (2009).

The trial court found that Wheeler owed an arrearage of $2,844. This figure apparently represents the total amount that would have been paid (at $474 per month) from October 2011, when Akins was granted custody, through May 2012 when Wheeler was ordered to start paying child support. A retroactive modification of child support is not permitted. Gamble, supra, 297 Ga. App. at 510. Accordingly, this portion of the trial court’s order must be reversed.

Case No. A14A0076

3. In his cross-appeal, Akins contends the trial court erred in adjusting Wheeler’s child support obligation based on the fact that she supports another child. Because the trial court failed to find whether the adjustment was in M. A.’s best interest, we agree.

“According to the child support guidelines, the first step a court must take when calculating the presumptive amount of child support is to determine the monthly gross income of both parents.” (Citation omitted.) Stowell v. Huguenard, 288 Ga. 628 (706 SE2d 419) (2011). Courts may consider a parent’s obligation to support other “qualified children” for the purpose of reducing the parent’s gross income. See OCGA § 19-6-15 (f) (5) (C). A qualified child is a child (1) for whom the parent is legally responsible and who lives in the parent’s home; (2) that the parent is supporting; (3) who is not otherwise subject to a preexisting child support order; and (4) who is not the child before the court in the case under consideration. OCGA § 19-6-15 (a) (20). “Qualified children shall not include stepchildren or other minors in the home that the parent has no legal obligation to support.” Id. Adjustments to gross income for qualified children must be based on the best interest of the child for whom child support is being awarded. OCGA § 19-6-15 (f) (5) (C).

Once a trial court determines the parents’ gross income, various calculations are then required to determine the presumptive amount of child support due. See Stowell, supra, 288 Ga. at 628-629 (OCGA § 19-6-15 (b) requires the trial court to use the child support schedule to determine and calculate the presumptive amounts of child support). Once the presumptive amount of child support is determined, then the trial court must decide whether to deviate from the presumptive amount. OCGA § 19-6-15 (b).

In the 2013 order, the trial court found that, after taking into consideration Wheeler’s obligation to support her other child, the presumptive amount of child support was $474 per month. Akins argues that there was insufficient evidence to support any downward deviation from the presumptive child support award. In the 2013 award, the trial court struck all the downward deviations for debt and parenting time that had been in place in the 2012 order and ordered Wheeler to pay the full presumptive amount of child support. Contrary to Akins’s contention, adjustments for other qualified children are not deviations. Adjustments need not be supported by the same sort of extensive factual findings that are required when trial courts deviate from the presumptive amount of child support. Cf. Brogdon, supra, 290 Ga. at 623 (5) (b) (trial court must state reason for deviation and how application of the presumptive amount would be unjust or inappropriate). Nevertheless, adjustments for qualified children must still be based upon the best interest of the child for whom support is being awarded. OCGA § 19-6-15 (f) (5) (C). Here, the trial court failed to make any findings in its 2013 order regarding M. A.’s best interest and, for this reason, we have no choice but to reverse and remand the case to the trial court so that it can make the proper findings to support its award. See Brogdon, supra, 290 Ga. at 623 (5) (b).

In sum, we affirm the portion of the trial court’s 2013 order setting aside its prior order. We reverse the portion of the order retroactively modifying Wheeler’s child support obligation, and we reverse and remand for the trial court to make adequate findings to support the qualified child adjustment to Wheeler’s child support obligation.

Decided July 3, 2014.

David J. Farnham, for appellant.

William C. Akins, pro se.

Judgment affirmed in part and reversed in part in Case No. A14A0075. Judgment reversed and case remanded with direction in Case No. A14A0076.

Doyle, P. J., and Dillard, J., concur.

       Although the trial court did not rule on Akins’s motion until the following year, a court has inherent authority to reconsider its judgment so long as the motion to set aside is filed during the same term of court. Stone v. Dawkins, 192 Ga. App. 126 (384 SE2d 225) (1989). The trial court issued its order on February 14, 2012, and Akins filed his motion on February 28, 2012. In DeKalb County, the January term of court runs from the first Monday in January until the first Monday in March. OCGA § 15-6-3 (37). Motions for new trial must he filed within 30 days of the judgment. OCGA § 5-5-40 (a). Accordingly, Akins’s motion was timely under either procedure.

       Nothing in the order explains why the trial court chose the $474 per month amount for this six-month period, rather than the $160 per month amount, which is what Wheeler was paying from May 2012 until May 2013.

       Akins’s separate motions to remand both appeals and dismiss Wheeler’s appeal (Case No. A14A0075) are denied as moot.


author: Doyle, Presiding Judge.

text:
    A14A0343.
    FORD-CALHOUN v. THE STATE.
    (761 SE2d 388)
   Doyle, Presiding Judge.

Roslynn Ford-Calhoun was convicted along with her co-defendant and husband, Preston Calhoun, of armed robbery, four counts of aggravated assault, and false imprisonment. While Ford-Calhoun’s motion for new trial was pending, this Court vacated Calhoun’s conviction as to one count of aggravated assault. Based on this Court’s ruling, the trial court granted in part Ford-Calhoun’s motion for new trial, vacating the same count of aggravated assault. Ford-Calhoun now appeals, arguing that (1) the trial court erred by improperly charging the jury as to two counts of aggravated assault; and (2) the evidence was insufficient to support the conviction of false imprisonment. For the reasons that follow, we affirm in part and reverse in part.

Viewed in favor of the verdict, the evidence at trial showed that Ford-Calhoun participated in two separate armed robberies of business establishments with Calhoun during late 2007. During the first incident (“Dollar General robbery”), Ford-Calhoun entered the store and, using her cell phone, alerted Calhoun to enter the store at an opportune moment. During the second incident (“Cato Fashions robbery”), Ford-Calhoun began speaking with store employees prior to her husband’s separate entry into the store.

Ford-Calhoun now appeals from the guilty verdicts issued as to the two aggravated assault charges and one false imprisonment charge stemming from the Cato Fashions robbery.

1. In two enumerations, Ford-Calhoun argues that the trial court erred by failing to charge the jury on an essential element of the two aggravated assault charges related to the Cato Fashions robbery.

While an unnecessary description of an unnecessary fact averred in an indictment need not be proved, in criminal law even an unnecessarily minute description of a necessary fact must be proved as charged. If the indictment sets out the offense as done in a particular way, the proof must show it so, or there will be a variance. No averment in an indictment can be rejected as surplusage which is descriptive either of the offense or of the manner in which it was committed. All such averments must be proved as laid, or the failure to prove the same as laid will amount to a variance. To permit the prosecution to prove that a crime was committed in a wholly different manner than that specifically alleged in the indictment would subject the accused to unfair surprise at trial and constitute a fatal variance.

Under former OCGA § 16-5-21 (a) (1), “[a] person commits the offense of aggravated assault when he or she assaults... [wjith intent to murder, to rape, or to rob. . . .” The indictment for the two aggravated assaults at issue charged that “[Ford-Calhoun] did unlawfully make an assault upon the person of [the victim], with intent to rob, by pointing a gun at [the victim] and demanding money . . . .” Ford-Calhoun contends that the language in the indictment required a jury charge instructing the jury to find that she (or co-defendant Calhoun) assaulted Cathy Johnson and Kimtoria Campbell by pointing a gun and demanding money with the intent to rob. Ford-Calhoun maintains that because the trial court failed to so instruct the jury, the trial court impermissibly expanded the ways in which the jury could find her guilty. She alternatively contends that because there was no evidence that she or her co-defendant pointed a gun at either Johnson or Campbell, the verdict must be reversed as to these counts.

(a) We first address Count 4, the aggravated assault of Johnson.

(i) Although Ford-Calhoun argues that no evidence established that either she or her co-defendant pointed a gun at Johnson, on cross-examination, Johnson answered affirmatively when defense counsel asked if this was the first time she “had been held at gunpoint.” Moreover, on direct examination, Johnson testified that she saw the weapon when Calhoun first demanded money, and she touched the weapon at that time. Accordingly, sufficient evidence supported the verdict as to Count 4.

(ii) Ford-Calhoun also contends that the trial court erred by failing to charge the jury on an essential element of the charge, thereby broadening the method by which the jury could convict Ford-Calhoun.

During jury instructions, the trial court first read the indictment, including Count 4, to the jury. Later, the court instructed:

No person shall be convicted of any crime unless and until each of the elements of the crimes as charged is proven beyond a reasonable doubt. The burden of proof rests upon the [S]tate to prove every material allegation of the indictment and every essential element of the crime charged beyond a reasonable doubt.

As for aggravated assault, the trial court instructed:

A person commits the offense of aggravated assault when that person assaults another person with intent to rob. To constitute such an assault, actual injury to the alleged victim need not be shown. It is only necessary that the evidence show beyond a reasonable doubt that the defendant intentionally committed an act that placed the alleged victim in reasonable fear of immediately receiving a violent injury.
The intent to rob is a material element of aggravated assault as charged in this case. In deciding the question of intent, you may consider all the facts and circumstances of the case as well as the character of the weapon used and the manner in which it was used, if you find that a weapon was used.
A person commits the offense of aggravated assault when that person assaults another person with a deadly weapon. To constitute such an assault, actual injury to the alleged victim need not be shown. It is only necessary that the evidence show beyond a reasonable doubt that the defendant intentionally committed an act that placed the alleged victim in reasonable fear of immediately receiving a violent injury.
The [Sjtate mu[st] also prove as a material element of aggravated assault, as alleged in this case, that the assault was made with a deadly weapon.

Ford-Calhoun joined in her co-defendant’s objection to the charge for the inclusion of the method of committing “an act which placed the alleged victim in reasonable fear of immediately receiving a violent injury” because it expanded the method by which the jury could find her guilty beyond the specific method as indicted. Ford-Calhoun cites to Talton v. State, in support of her argument. In Taitón, however, the defendant was indicted for aggravated assault by “shooting” the victim, but the trial court specifically instructed the jury that “pointing a gun” at the victim would support a conviction for aggravated assault. Here, the trial court gave no such instruction.

[I]n the instant case, the trial court did not charge a separate, unalleged method of committing aggravated assault, but [defined simple assault and the two methods of aggravated assault that were actually alleged in the indictment]. Further, the trial court’s charge in the instant case tracked the suggested pattern charge on aggravated assault, which includes the statutory definitions of simple assault.
Even where a jury instruction is defective in that the trial court instructs the jury that an offense could be committed by other statutory methods than the one method charged in the indictment, which did not occur in this case, such a defect is cured where, as here, the court provides the jury with the indictment and instructs jurors that the burden of proof rests upon the State to prove every material allegation of the indictment and every essential element of the crime charged beyond a reasonable doubt. Further, in order to convict, the jury of necessity had to find [Ford-Calhoun or her co-defendant pointed a gun at] the victim, and therefore [, Ford-Calhoun’s] assertion that the instruction improperly permitted the jury to convict for aggravated assault if it found defendants had simply [assaulted the victim with the intent to rob], lacks merit.

Accordingly, this argument is without merit.

(b) Next, we address Count 5, the aggravated assault of Campbell. Johnson testified that Campbell returned to the register to assist in opening it, and when she did so, Campbell had her hands in the air and was saying “don’t shoot.” Campbell testified that “the [co-defendant] came in real fast. And he got up on the register [where Campbell and Johnson were standing] so fast, it shocked me[,] and I started running ... for the [front] door.” Campbell explained, “I did not see a gun. [Johnson] said that he pulled the gun. He had the gun on his side and pulled the gun up, just as she was taking off to run behind me. But I never saw the gun.” On cross-examination, Campbell answered “no” when asked if either Ford-Calhoun or the co-defendant pointed a weapon at her. Thus, Ford-Calhoun is correct that no evidence supports a finding that her co-defendant pointed a gun at Campbell.

In response, the State argues that Ford-Calhoun was indicted under former OCGA § 16-5-21 (a) (1), and the language “by pointing a gun at [the victim] and demanding money” was mere surplusage to the necessary element of “intent to rob,” not an essential element to the crime requiring proof at trial. Nevertheless, as explained above, “[n]o averment in an indictment can be rejected as surplusage which is descriptive either of the offense or of the manner in which it was committed.” The State chose to indict Ford-Calhoun alleging a specific manner in which she (as a party to the crime) committed assault with the intent to rob Campbell. The evidence at trial showed that Campbell did not see a weapon at all, and no testimony supported a finding that a gun was pointed at her. Based on this evidence and this Court’s previous holding in Calhoun, we reverse as to Count 5.

Decided July 3, 2014.

Kevin A. Anderson, Jimmonique R. S. Rodgers, for appellant.

James L. Wright III, District Attorney, Arkesia S. Jenkins, David E. Slemons, Assistant District Attorneys, for appellee.

2. Ford-Calhoun also argues that there was insufficient evidence to support the jury’s verdict as to the false imprisonment charge.

“A defendant can be convicted for false imprisonment when in violation of the personal liberty of another, he arrests, confines, or detains such person without legal authority.” For the reasons stated in Calhoun v. State, this enumeration is without merit.

Judgment affirmed in part and reversed in part.

Miller and Dillard, JJ., concur.

       OCGA § 16-8-41 (a).

       Former OCGA § 16-5-21 (a) (1), (2). This Code section was amended effective July 1,2014.

       OCGA § 16-5-41 (a).

       See Calhoun v. State, 318 Ga. App. 835, 837-838 (2) (a) (734 SE2d 809) (2012) (vacated aggravated assault conviction because evidence did not support finding that defendant pointed a gun at the victim as alleged in the indictment).

       See Stephens v. State, 247 Ga. App. 719 (545 SE2d 325) (2001). See also Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979).

       For a more extensive recitation of the facts, see Calhoun, 318 Ga. App. at 835-836.

       (Citations, punctuation and emphasis omitted.) Ross v. State, 195 Ga. App. 624, 625 (1) (b) (394 SE2d 418) (1990). See also Quiroz v. State, 291 Ga. App. 423, 425 (1) (662 SE2d 235) (2008), quoting Talton v. State, 254 Ga. App. 111, 112 (1) (561 SE2d 139) (2002).

       Compare with former OCGA § 16-5-21 (a) (2) (“[a] person commits the offense of aggravated assault when he or she assaults ... [w]ith a deadly weapon or with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury . . . .”).

       Each aggravated assault charge specified Cathy Johnson or Kimtoria Campbell respectively.

       See Hicks v. State, 326 Ga. App. 46, 48-49 (1) (755 SE2d 855) (2014) (“A participant to a crime may be convicted although he is not the person who directly commits the crime. A person who intentionally aids or abets in the commission of a crime or intentionally advises, encourages, hires, counsels or procures another to commit the crime may be convicted of the crime as a party to the crime.”) (punctuation omitted).

       254 Ga. App. 111 (561 SE2d 139) (2002).

       See id. at 111 (1).

       (Punctuation omitted.) Clayton v. State, 319 Ga. App. 713, 716 (2) (738 SE2d 299) (2013); see also Suggested Pattern Jury Instructions, Vol. II: Criminal Cases (4th ed.), §§ 2.20.20, 2.20.21; OCGA § 16-5-20 (a) (1), (2).

       (Citations and punctuation omitted.) Flournoy v. State, 294 Ga. 741, 744-745 (2) (755 SE2d 777) (2014). See also Deleon v. State, 285 Ga. 306, 307 (3) (676 SE2d 184) (2009) (instructing the jury for aggravated assault by including the definition of simple assault is not error because “an indictment for aggravated assault puts a defendant on notice that he may be convicted for aggravated assault if he committed a simple assault in either manner contained in the simple assault statute, so long as the trial court charges and the State proves that he did so by the alleged aggravating aspect of the assault”).

       (Punctuation and emphasis omitted.) Ross, 195 Ga. App. at 625 (1) (b).

       See Calhoun, 318 Ga. App. at 837-838 (2) (a) (holding that reversal was required because the indictment alleged the defendant “ ‘unlawfully made an assault upon the person of [the victim], with a gun, a deadly weapon, by pointing a gun at [the victim] in a threatening manner’ ” and no evidence supported a finding that the weapon was pointed at the victim). Compare with Quiroz, 291 Ga. App. at 425-426 (1) (holding that although the indictment charged the defendant with assaulting the victim “with a deadly weapon, to wit: a knife, by holding a knife to the neck of the [victim]” because the clause “by holding a knife to the neck of the [victim]” was “unnecessary specification of a legally unnecessary fact” and thus, no fatal variance occurred).

       (Punctuation omitted.) Calhoun, 318 Ga. App. at 838 (2) (b). See also OCGA § 16-5-41 (a).

       318 Ga. App. at 838-839 (2) (b).


text:
    A14A0501.
    MERCURE v. CITY OF ATLANTA CIVIL SERVICE BOARD.
    (761 SE2d 393)
   Dillard, Judge.

Mason Mercure, an officer with the City of Atlanta Police Department (“APD”), appeals a decision by the City of Atlanta Civil Service Board (“the Board”) to uphold a 20-day, unpaid suspension levied against him by the chief of police (which was affirmed by the superior court). In this discretionary appeal, Mercure argues that the APD work rule he was found to have violated runs afoul of OCGA § 17-4-20 (d) and applicable case law. For the reasons set forth infra, we affirm.

The record reflects that on November 27,2011, Mercure observed a vehicle operating without a tag and initiated a traffic stop. While investigating the stop and speaking to the driver, Mercure saw the driver remove what he suspected to be cocaine wrapped in cellophane from a cigarette box and place the “hit” in his mouth. Thereafter, Mercure called for backup to assist in arresting the suspect, who was larger than himself. Nevertheless, before backup could arrive, Mercure removed the suspect from the vehicle, handcuffed him subject to arrest, and walked him over to the patrol car. And as Mercure prepared to place the suspect inside of the vehicle, the suspect spoke, and Mercure observed the “hit” of cocaine still in his mouth.

Meanwhile, as Mercure led the suspect to the patrol car, Officer Joseph Dean arrived on the scene as backup. Dean, a 26-year-veteran of the APD, saw Mercure and the suspect standing beside the vehicle and observed that the suspect was in handcuffs, was not resisting arrest, and was not belligerent. But suddenly, Mercure grabbed the handcuffed suspect by the neck and attempted to make him spit out what was in his mouth. Mercure and the suspect then fell to the ground, where Mercure wrapped his arm around the suspect’s neck. Mercure later testified that he learned these maneuvers during his service with the United States Marine Corps, and it was undisputed that these maneuvers were not taught by the Atlanta Police Academy. According to Dean, each hold on the suspect’s neck lasted for approximately five seconds.

During the course of these events, Dean called for an ambulance, which arrived after the struggle between Mercure and the suspect ended. Thereafter, the suspect was transported to a local hospital, where he refused treatment. No cocaine was ever recovered.

Shortly after the incident, Dean reported what he observed to the Office of Professional Standards, believing that Mercure used unnecessary, unreasonable force upon the suspect. An investigation ensued, and Mercure was ultimately suspended for violating APD work rules prohibiting the use of unreasonable force and certain neck restraints. He appealed that decision to the Civil Service Board, which upheld the suspension, and then to the Superior Court of Fulton County, which affirmed the Board’s decision. We granted Mercure’s application for discretionary appeal, and this appeal follows.

Our analysis begins with the well-established principle that administrative-board decisions of this nature will be affirmed if there is any evidence to support the ruling. And in upholding Mercure’s suspension, the Board found that Mercure used an APD-prohibited type of choke-hold on the suspect while the suspect was handcuffed and, accordingly, that Mercure’s use of force was unnecessary and unreasonable when the suspect posed no threat. Mercure contends on appeal that the Board erred by enforcing work rules that are in direct conflict with Georgia law. We disagree.

APD work rule 4.2.50 provides:

Employees shall only use that force which is reasonable and necessary to [e]fleet an arrest, prevent an escape, necessarily restrict the movement of a prisoner, defend himself or another from physical assault, or to accomplish other lawful objectives. The reasonableness inquiry refers to whether the employee’s actions are “objectively reasonable” in light of the facts and circumstances confronting him or her, without regard to their underlying intent or motivation. The “reasonableness” of a particular use of force must be judged from the perspective of a reasonable officer on the scene, and its calculus must embody an allowance for the fact that police officers are often forced to make split second decisions about the amount of force necessary in a particular situation.

Furthermore, APD work rule 4.1.7 instructs that “[ejmployees will not use neck restraints, carotid artery holds, or other weaponless control techniques that are not taught or approved by the Department due to the potential for serious injury or death.”

Mercure was found to have violated both of the foregoing rules, but he argues on appeal that the prohibition against neck restraints conflicts with OCGA § 17-4-20 (d), which provides:

No law enforcement agency of this state or of any political subdivision of this state shall adopt or promulgate any rule, regulation, or policy which prohibits a peace officer from using that degree of force to apprehend a suspected felon which is allowed by the statutory and case law of this state.

A plain reading of OCGA § 17-4-20 (d), however, shows that Mercure’s suspension was properly upheld because this statutory subsection is wholly inapplicable to the facts of this case. Indeed, it is undisputed that Mercure was not “apprehending” the suspect when he administered the maneuvers at issue. To the contrary, the suspect was already under arrest, restrained, and not resisting in any way. Additionally, by his own admission, Mercure’s actions were solely directed at recovering physical evidence from a suspect who was already apprehended, and the evidence of record supports the Board’s finding that Mercure’s actions violated the APD work rules. Furthermore, we note that regardless of whether or not Mercure was in the process of apprehending the suspect, the work rule only prohibits “neck restraints, carotid artery holds, or other weaponless control techniques that are not taught or approved by the Department” and it is undisputed that the neck restraints used by Mercure were not taught or sanctioned by the APD. Indeed, as previously noted, it is undisputed that Mercure learned the neck restraints he used against the suspect during his service in the United States Marine Corps.

Mercure also argues that the relevant work rule conflicts with cases in which we have held that a suspect’s Fourth Amendment rights were not violated by an officer’s use of neck restraints to recover physical evidence. However, the fact that we have found such maneuvers to be reasonable in certain circumstances for purposes of a Fourth Amendment analysis in the context of a motion to suppress in no way limits the APD’s ability to provide restrictions for evidence collection through its work rules (that are not otherwise prohibited by federal or state law). And in the case sub judice, it is a work rule that Mercure violated, not the Fourth Amendment.

Decided July 3, 2014.

Mary J. Huber, for appellant.

Amber A. Robinson, Christopher G. Walker, for appellee.

Accordingly, for all the foregoing reasons, we affirm the Board’s decision.

Judgment affirmed.

Doyle, P. J., and Miller, J., concur.

        Robinson v. Butler, 319 Ga. App. 633, 634-35 (737 SE2d 731) (2013).

       OCGA § 17-4-20 (d).

        See The Compact Oxford English Dictionary 65 (2d ed. 1991) (defining “apprehend” as, inter alia, “[t]o lay hold upon, seize, with hands ...”); id. (defining “apprehended” as, inter alia, “[t]aken hold of, seized; arrested . . .”).

        Cf. Allen v. City of Atlanta, 235 Ga. App. 516, 516-18 (510 SE2d 64) (1998) (reversing officer’s suspension for violating work rule, finding that work rule prohibiting discharge of a firearm “if the lives of innocent persons may be in danger” conflicted with, inter alia, OCGA § 17-4-20 (d) when officer discharged firearm at suspects who ignored command to exit vehicle and instead drove vehicle toward officer).

        Cf. id. at 517 (holding that officer’s alleged violation of mandatory work rule prohibiting use of a firearm occurred during “officer’s use of a gun in self-defense or in the execution of an arrest, when circumstances would otherwise authorize the use of a gun”).

       We leave for another day the question of whether the relevant APD work rules conflict with OCGA § 17-4-20 (d) when an officer’s alleged violation occurs before a suspect’s apprehension has concluded in an arrest.

        See Lewis v. State, 317 Ga. App. 391, 395 (730 SE2d 757) (2012); Sanders v. State, 247 Ga. App. 170, 172 (543 SE2d 452) (2000).

        Cf. Morrow v. State, 311 Ga. App. 323, 327 (2) & n.7 (715 SE2d 744) (2011) (providing citations to cases in which “this Court has recognized greater protection under the Georgia Constitution than under the federal”). Suffice it to say, there is nothing in the text, history, or structure of the Fourth Amendment, or for that matter in the Georgia Constitution, Art. I, Sec. I, Par. XIII, remotely suggesting that the right of the people to he free from unreasonable seizures also includes a concomitant privilege for state actors to use certain neck restraints or force (however reasonable) against the very people the right protects. See District of Columbia v. Heller, 554 U. S. 570, 579 (II) (A) (1) (a) (128 SCt 2783, 171 LE2d 637) (2008) (noting that the Fourth Amendment “unambiguously refer[s] to individual rights, not ‘collective’ rights, or rights that may be exercised only through participation in some corporate bod/’); 3 Joseph Story, Commentaries on the Constitution of the United States, § 1895, at 748 (Fred B. Rothman & Co. 1991) (1833) (“This provision seems indispensable to the full enjoyment of the rights of personal security, personal liberty, and private property.”).