text:
    A16A0723.
    MARKS v. SOLES et al.
    (793 SE2d 587)
   Branch, Judge.

In March 2013, three children were removed from their mother’s custody and placed with their fathers after the children were found living in filthy conditions with the mother, Audrea Marks. More than a year later, the trial court granted joint legal custody in the first and second of Marks’s children to those children’s father, appellee Jason Soles, as well as to Marks, with Soles receiving primary physical custody. The trial court also awarded joint legal custody of Marks’s third child to that child’s father, appellee Brad Lane, as well as to Marks and the child’s paternal grandparents, with the paternal grandparents receiving primary physical custody On appeal from these orders, Marks asserts inter alia that the trial court erred when it awarded joint custody of the third child to his paternal grandparents and when it imposed retroactive child support payments on Marks. We reverse the grant of joint legal and primary physical custody in the third child to the paternal grandparents and the imposition of retroactive child support payments on Marks, vacate the remainder of the trial court’s judgment, and remand for further proceedings.

“A trial court faced with a petition for modification of child custody is charged with exercising its discretion to determine what is in the child’s best interest.” Viskup v. Viskup, 291 Ga. 103, 105 (2) (727 SE2d 97) (2012) (citations omitted). “Atrialcourt’s decision regarding a change in custody/visitation will be upheld on appeal unless it is shown that the court clearly abused its discretion.” Vines v. Vines, 292 Ga. 550, 552 (2) (739 SE2d 374) (2013) (citation omitted). “Where there is any evidence to support the trial court’s ruling [on custody or visitation], a reviewing court cannot say there was an abuse of discretion.” Id.

Thus viewed in favor of the trial court’s judgment, the record shows that Marks and Soles had two children, born in June 2000 and March 2003. Marks and Soles were divorced in 2005, and their divorce decree awarded child support from Soles to Marks in the amount of $100 per week. Marks and Lane’s child was born in March 2007.

In March 2012, Marks filed a garnishment action against Soles for failure to pay child support. On May 30, 2012, the trial court issued a summons of continuing garnishment to Soles’s employer (the garnishee). On August 21, 2012, Soles filed a traverse to the garnishment.

As of October 2012, Marks and Soles had joint legal custody of the first and second children, with the mother having primary physical custody. As of the same date, Marks and Lane had joint legal custody of the third child, with Marks having primary physical custody On March 9, 2013, Marks was arrested for criminal offenses including cruelty to children, disorderly conduct, and failure to keep animals in sanitary conditions. These charges were filed after officers from the Bulloch County Sheriff’s Office, who were called to Marks’s home, found the three children at issue living in a home with dog feces throughout, including on the clothes, shoes, and bedding of the children. Rat droppings were found on the kitchen counter, and one of the children told an aunt that she had not eaten anything since her lunch at school the previous day

On March 11, 2013, the trial court granted Lane’s ex parte petition for temporary custody of the third child. On March 19, 2013, the trial court granted Soles’s ex parte petition for temporary custody of the first and second children. On April 12, 2013, the trial court entered a temporary order in which it consolidated Marks’s garnishment and the fathers’ custody modification actions; confirmed its transfer of physical custody of the first and second children to Soles and of the third child to Lane; suspended the child support payments of both fathers; and placed the proceeds of Marks’s garnishment action into the court registry

Marks testified at a hearing held on May 7, 2013, that the filthy conditions in the house from which the children were taken were created by unknown persons who broke in while she and the children were asleep. Marks also testified that after the children were removed from her custody, she moved to Florida, where she lived with Soles’s mother while Lane was serving time for methamphetamine possession. The paternal grandmother of the third child testified that she had assisted with care for that child throughout his life and that, while the child had repeated kindergarten while in Marks’s custody, he was now excelling in school. After hearing testimony from 13 witnesses, the trial court continued custody in the fathers, with “assistance from both grandparents”; granted Marks supervised visitation; and ordered counseling for the children.

On August 2, 2013, the trial court denied Marks’s motion to dismiss Soles’s traverse to the garnishment action. At a hearing on September 10,2013, Marks testified that she had returned to Georgia, where she was living with her parents; that her father was a convicted child molester; and that she could receive the children for visitation at a house she was planning to rent from her employer. The trial court maintained supervised visitation with Marks and counseling for Marks and the children. The trial court also ordered the parties to submit combined child support worksheets and noted that it was considering awarding Marks up to $12,000 in child support arrears from Soles. On March 27, 2014, the trial court ordered that Soles pay an arrearage of $5,000 at the rate of $597 per month. The court also ordered, however, that Marks pay Soles $597 per month and Lane $523 per month in child support, with both awards retroactive to March 1, 2013.

On September 16, 2014, the paternal grandparents of the third child moved to intervene. Shortly afterward, on October 3, 2014, the trial court held a hearing on Marks’s ex parte petition for modification of custody. This hearing included appearances from counsel for both fathers and Marks and testimony from the children’s two counselors, the children’s guardian ad litem, the third child’s paternal grandmother, and Marks herself. At the outset of the hearing, counsel for Lane noted that whether the court conducted a final hearing or not, “whatever the court decides, it’s all going to be the same evidence regardless,” and the court agreed that it “[couldn’t] imagine the evidence not bleeding over into everything that we’re involved with here.” Marks made no objection to this characterization.

During the hearing, Marks admitted that her home was undergoing renovation and that she was undergoing medication for her anxiety, which sometimes resulted in panic attacks. Marks also testified that her income had decreased since the filing of her last financial affidavit in September 2013 and that she did not receive regular paychecks from her new job. Marks asserted in closing argument that she was not unfit and that she should receive primary physical custody of all three children. After the conclusion of the witnesses’s testimony and argument, the trial court met with all three children in chambers.

On October 14, 2014, the trial court dismissed Marks’s garnishment on the ground that any child support Soles had owed her was eliminated by the child support Marks now owed to Soles.

On December 12, 2014, the trial court entered two orders. The first included findings of fact that (1) the cruelty-to-children charges against Marks were still pending; (2) her job had “undefined duties” for an employer who had refused to obey a subpoena; (3) Marks had found a suitable home in Savannah and had done “substantial improvements” on it, but “claims that she has limited funds”; (4) Marks “continues to attempt to manipulate the children by discussing pending litigation and trying to impose guilt on them for her present situation”; (5) the third child was being cared for by his paternal grandparents, an arrangement which had “provided stability for” him; and (6) the counselors and the guardian ad litem had “expressed their belief that the current custody arrangement is beneficial to the children.” The Court then concluded “by clear and convincing evidence that custody in [Marks] would be emotionally harmful to the children.” Attached to this first order was a parenting plan as to the third child only, which awarded joint legal custody in that child to Marks, Lane, and the child’s paternal grandparents, with primary physical custody awarded to the grandparents; a completed child support worksheet establishing presumptive amounts of child support at $354.10 for Marks and $292.90 for Lane; and a child support order addendum finding that Lane had no arrears due and that Marks and Lane were each responsible for $250 a month in child support.

Although the parenting plan, the child support worksheet, and the addendum attached to this first order referred only to the third child, the trial court’s second order of December 12, 2014, held that “[t]he parties shall have joint legal custody of the [first and second children], with [their] father being the primary physical custodian.” The second order also held that the parenting plan submitted as to the third child “is approved for [the first and second] children and is incorporated herein in its entirety,” and that Marks owed Soles $495 in child support “to begin immediately” This order did not refer to or vacate the trial court’s March 2014 order imposing retroactive child support payments on Marks.

Marks moved for a new trial and for reconsideration. In an extensive order entered on July 10, 2015, the trial court represented that it had granted the third child’s grandparents’ motion to intervene “orally” on October 3,2014. The court then made findings of fact as to Marks’s unfitness for custody and concluded that “ample evidence” supported that finding. The court also concluded that the fathers and grandparents “had shown a material change in circumstances [a]ffecting the welfare of all of the children as required by law”; that “clear and convincing” evidence showed that the third child’s best interests would be served by “remaining with his [paternal] grandparents”; and that it was “in the best interest of [the first and second children] to remain in the primary custody of their father, considering all the factors in OCGA § 19-9-3.” The court therefore denied the motion for reconsideration and for new trial.

On appeal from these rulings, Marks asserts that the trial court erred in considering evidence from the hearing on temporary custody during the final hearing, in granting joint physical custody in the third child to his paternal grandparents, and in adopting only one parenting plan (as to the third child) in orders modifying custody as to all three children. Marks also argues that the court erred in considering Soles’s traverse to Marks’s garnishment action, in imposing child support payments on Marks retroactive to March 2013, in failing to consider the statutory Child Support Guidelines before awarding child support from Marks to Soles, and in reducing Soles’s child support arrearage amount from $12,000 to $5,000.

1. Marks does not challenge the sufficiency of the evidence supporting the trial court’s finding that she had become unfit such that custody in the three children was properly modified. Instead, Marks asserts that the trial court relied on evidence introduced at the temporary custody hearing without giving the mother sufficient notice. See Pace v. Pace, 287 Ga. 899, 901 (700 SE2d 571) (2010). We disagree.

“[T]he nature and quality of the evidence presented at a temporary hearing is likely to be different than that which is ultimately presented at the final hearing[.]” Pace, 287 Ga. at 901. “[P]arties should ordinarily expect that only that evidence which their opponent sees fit to offer at the final, more formal hearing will be relied on to support the permanent custody award.” Id. (citation omitted). Thus, “absent express notice to the parties, it is error for a trial court to rely on evidence from the temporary hearing in making its final custody determination.” Id. But “we will not assume that the judge considered anything outside of the evidence in rendering his judgment.” Carroll v. Carroll, 307 Ga.App. 143, 144 (704 SE2d 450) (2010) (punctuation and footnote omitted).

As a preliminary matter, Marks’s assertion that “very little if anything was discussed at the final hearing” is not supported by the record, which includes a transcript of 228 pages (excluding exhibits) showing testimony from Marks, the children’s two counselors, the guardian ad litem, and the third child’s paternal grandmother. The record also shows that although the trial court commented in the middle of the proceedings that “I don’t think we’re ready for a final hearing,” the court gave Marks notice of its intention to consider all the evidence before it at the outset of the hearing and also noted without objection that “we’ll go as far as we need to go today.” Moreover, at no time during this hearing were the conditions in the Marks home that led to the grant of primary physical custody to the fathers in dispute; indeed, the exhibits at the final hearing included news reports and photographs as to those conditions. Marks has thus shown neither that the court “relied [on evidence from any of the temporary hearings] nor that the testimony of the numerous witnesses presented at the final hearing was insufficient to support the trial court’s findings[.]” Carroll, 307 Ga. App. at 144.

2. Marks argues that the trial court erred when it granted joint legal custody in the third child to her, Lane, and the child’s paternal grandparents, and when it granted joint physical custody to the grandparents. We agree.

OCGA § 19-9-6 defines the terms “joint custody,” “joint legal custody,” and “joint physical custody” as follows:

(4) “Joint custody” means joint legal custody, joint physical custody, or both joint legal custody and joint physical custody In making an order for joint custody, the judge may order joint legal custody without ordering joint physical custody
(5) “Joint legal custody” means both paren ts have equal rights and responsibilities for major decisions concerning the child, including the child’s education, health care, extracurricular activities, and religious training; provided, however, that the judge may designate one parent to have sole power to make certain decisions while both parents retain equal rights and responsibilities for other decisions.
(6) “Joint physical custody” means that physical custody is shared by the paren ts in such a way as to assure the child of substantially equal time and contact with both parents.

(Emphasis supplied.) On their face, subsections (5) and (6) of OCGA § 19-9-6 give the right of joint legal or physical custody only to “parents.”

In June 2015, moreover, shortly before the trial court denied Marks’s motion for new trial, the Supreme Court of Georgia emphasized that “joint custody arrangements do not include third parties when one or both parents are suitable custodians.” Stone v. Stone, 297 Ga. 451 (774 SE2d 681) (2015) (footnote omitted). The Court quoted OCGA § 19-9-3 (a) (1), which provides that when custody is an issue between a child’s parents, “there shall be no prima-facie right to the custody ofthe child in the father or mother,” as well as OCGA § 19-9-3 (d), which provides:

It is the express policy of this state to encourage that a child has continuing contact with parents and grandparents who have shown the ability to act in the best interest of the child and to encourage parents to share in the rights and responsibilities of raising their child after such parents have separated or dissolved their marriage or relationship.

As the Court explained, OCGA § 19-9-3 (d) “includes grandparents with parents for purposes of contact (visitation) with the minor child, but, when rights and responsibilities (custody) are in consideration, the statute excludes grandparents and encourages sharing between the parents only” Stone, 297 Ga. at 453. The Court found further support for its holding in OCGA § 19-9-6 (5) and (11), which “exclude grandparents from sharing joint custody with a parent” such that “persons may have sole legal custody of a child when no parent is suitable for custody, but only parents may have joint legal custody.” Id. at 454.

Here, the trial court awarded joint legal custody in the third child to the father, Marks, and the paternal grandparents and joint physical custody in that child to the paternal grandparents alone. We also note that the trial court did not distinguish between legal and physical custody in its order on reconsideration, and thus did not explain how it could have awarded the mother joint legal custody having found her unfit for what it called “primary custody.” Absent a finding that both parents were unfit, the trial court was not authorized to award any legal or physical custody to the third child’s paternal grandparents. OCGA § 19-9-6 (4), (5); Stone, 297 Ga. at 454. Because the trial court abused its discretion when it awarded joint legal custody of the third child to Marks, Lane, and the paternal grandparents and joint physical custody of that child to the grandparents, and because the trial court maintained its grant of joint legal custody of all three children to Marks in the face of its own finding that she was unfit for “custody,” we vacate the trial court’s order and remand the case for further proceedings consistent with this opinion. Id. at 455 (vacating award of joint legal custody to child’s father and maternal grandmother).

3. Marks also asserts that the trial court erred when it adopted a parenting plan only as to the third child and then, in a second order filed the same day, applied that plan “in its entirety” to the first and second children. Again, we agree.

OCGA § 19-9-1 (a) provides in relevant part that “[t]he final order in any legal action involving the custody of a child, including modification actions, shall incorporate a permanent parenting plan[.]” The statute does not require a trial court “to incorporate a particular party’s parenting plan” or to make explicit findings of fact and conclusions of law “as to why it accepted or failed to accept a particular parenting plan.” Moore v. Moore-McKinney, 297 Ga. App. 703, 710-711 (3) (678 SE2d 152) (2009).

Here, the trial court’s second order of December 12, 2014, adopted a parenting plan that named only the third child and that granted custody of that child to the mother, Lane, and the paternal grandparents “in its entirety” as to the first and second children. The court’s second order also granted joint custody in the first and second children to “the parties” listed on that order, which includes not only Marks and Soles but also Lane, who is not the father of the first and second children. As we have held in Division 2, the parenting plan incorporated into the second order was erroneous on its face in awarding joint legal custody in the third child to his paternal grandparents, with the result that the trial court also erred when it incorporated that parenting plan as to the first and second children. We therefore remand with direction that any future modification of custody should include at least two new and discrete parenting plans, one for the third child and one for the first and second children. See McKinney, 297 Ga.App. at 711 (3) (remanding for entry of a parenting plan when the trial court’s order failed to incorporate one into its final order).

4. Marks also argues that the court erred in (a) considering Soles’s traverse to the garnishment, (b) imposing child support payments on Marks retroactive to March 2013, (c) failing to consider the statutory Child Support Guidelines before awarding child support from Marks to Soles, and (d) reducing Soles’s child support arrearage amount from $12,000 to $5,000. We agree in part.

(a) A judgment for child support, such as that imposed by the 2005 divorce decree on Soles, is “a money judgment subject to collection by postjudgment garnishment.” Stoker v. Severin, 292 Ga. App. 870, 872 (1) (a) (665 SE2d 913) (2008) (citations omitted). Anew statutory scheme concerning garnishments, OCGA § 18-4-1 et seq., became effective on May 12,2016. Although OCGA § 18-4-10 (b) now provides that a garnishment defendant’s “answer shall be filed... not sooner than 30 days and not later than 45 days after the service of the summons” to the garnishment action, former OCGA § 18-4-65 provided that “[w]hen garnishment proceedings are based upon a judgment, the defendant, by traverse of the plaintiff’s affidavit, may challenge the existence of the judgment or the amount claimed due thereon.” Here, Soles filed his defendant’s traverse to Marks’s garnishment action some months after that action was filed. The trial court did not err when it considered the traverse, however, because a garnishment defendant is not barred under former OCGA § 18-4-65 from filing a traverse after any specific time.

(b) The trial court erred as a matter of law, however, when it imposed retroactive child support payments on Marks.

A permanent child support judgment is res judicata and enforceable until modified, vacated or set aside. Until a final decree amending the child support is properly entered in the modification proceeding the permanent judgment stands.

Jarrett v. Jarrett, 259 Ga. 560, 561 (1) (385 SE2d 279) (1989) (citations and punctuation omitted). A modification of a child support award requires “a substantial change in either parent’s income and financial status or the needs of the child.” OCGA § 19-6-15 (k) (1). The same statute also provides that a trial court

. . . may modify and revise the previous judgment, in accordance with the changed circumstances, income and financial status of either parent, or in the needs of the child, if such change or changes are satisfactorily proven so as to warrant the modification and revision and such modification and revisions are in the child’s best interest. . . .

OCGA § 19-6-15 (k) (4).

“A child support judgment can not be modified retroactively,” however. Jarrett, 259 Ga. at 561 (1) (citation omitted); see also OCGA § 19-6-17 (e) (“Any payment or installment of support under any child support order is, on and after the date due[,] [n]ot subject to retroactive modification.”). Rather, “ ‘[a]n order modifying child support may operate only prospectively.’ ” Wright v. Burch, 331 Ga. App. 839, 843 (1) (c) (771 SE2d 490) (2015) (punctuation omitted), quoting Robertson v. Robertson, 266 Ga. 516, 518 (1) (467 SE2d 556) (1996). Thus although a trial court is authorized to “ ‘modify child support obligations and enter orders regarding repayment of past-due amounts .. ., it cannot simply forgive or reduce the past-due amount owed under a valid child support order.’ ” Wright, 331 Ga. App. at 843-844 (1) (c), quoting Ga. Dept. of Human Resources v. Prater, 278 Ga. App. 900, 903 (2) (630 SE2d 145) (2006). Likewise, a trial court is not authorized to modify a child support obligation “on a retroactive basis [by] increasing past payments on a monthly basis.” Rose v. Thorpe, 240 Ga. App. 834, 835 (525 SE2d 381) (1999).

Although the trial court’s second order of December 2014 sets a new and apparently prospective child support award from Marks to Soles, that order did not vacate the court’s March 2014 imposition of child support on Marks retroactive to March 2013. We also note that the record does not include any evidence that Marks owed child support before March 27, 2014. In the absence of evidence thatMarks owed any child support payments before March 2014, we must reverse the trial court’s March 2014 imposition of such payments on Marks retroactively to March 2013. Wright, 331 Ga. App. at 844 (1) (c) (trial court erred when it enforced a settlement reducing a party’s arrearage as to child support payments past due); Rose, 240 Ga. App. at 835 (reversing trial court’s use of modification action to recoup past child support on the basis of a party’s past underreporting of income because a child support judgment “may be modified on a prospective basis only”).

(c) The record also shows that the trial court used Child Support Guidelines only as to the third child, but entered child support awards as to the first and second children nonetheless. This was also legal error.

OCGA § 19-6-15 (k) (4) provides that a court modifying custody “shall enter a written order specifying the basis for the modification, if any, and shall include all of the information set forth in paragraph (2) of subsection (c) of this Code section,” which provides in turn that the court “shall (A) [s]pecify in what sum certain amount and from which parent the child is entitled to permanent support as determined by use of the worksheet” prepared by the parties or child support services. The Child Support Guidelines of OCGA § 19-6-15 “ ‘are mandatory and must be considered by a trier of fact setting the amount of child support.’ ” Evans v. Evans, 285 Ga. 319 (676 SE2d 180) (2009), quoting Swanson v. Swanson, 276 Ga. 566, 567 (1) (580 SE2d 526) (2003). Thus the trial court erred when it entered a child support award as to the first and second children without using the Child Support Guidelines set out in OCGA § 19-6-15 to calculate that award. Evans, 285 Ga. at 320 (reversing child support order that failed to calculate a party’s gross income as requiredby OCGA § 19-6-15 (f)(1)(D)).

Decided November 10, 2016.

Charles C. Grile, for appellant.

Jason P. Soles, pro se.

R. Bradley Lane, pro se.

(d) In light of our vacatur and remand for reconsideration of the amount of child support due from Marks to Soles, Marks’s contention as to the trial court’s erroneous reduction of Soles’s child support arrearage from $12,000 to $5,000 remains for those proceedings.

In sum, we reverse the trial court’s award of joint custody of the third child to the paternal grandparents and its imposition of retroactive child support payments on Marks, vacate the remainder of the trial court’s judgment, and remand for further proceedings consistent with this opinion.

Judgment reversed in part and vacated in part, and case remanded with direction.

Ellington, P. J., and Mercier, J., concur.

       A transcript of this hearing is not included in the appellate record.

       The garnishment of $200 a month from Soles’s earnings was to be credited to his amount due, and Lane’s payments were to be credited to his child support arrearage of $3,806.83. The amount of Lane’s former monthly child support payments does not appear in the record. Neither Lane nor his parents (the third child’s grandparents) has filed an appellee’s brief.

       Marks’s ex parte petition has not been included in the appellate record.

       The record of the hearing held on that day does not support this determination. On May 11, 2015, however, the trial court entered an order granting the motion to intervene nunc pro tunc to October 3, 2014.

       See OCGA § 5-6-34 (a) (11). Soles has filed a pro se appellee’s brief.

       OCGA § 19-9-6 (11) defines “sole custody” as meaning that “a person, including, but not limited to, a parent, has been awarded permanent custody of a child by a court order.”

       See Ga. L. 2016, p. 8, § 1 (SB 255).

       See also former OCGA § 18-4-93 (a defendant to a garnishment action may, “at any time before a judgment is entered on the garnishee’s answer,” “become a party to the garnishment... by filing a traverse to the plaintiff’s affidavit stating that the affidavit is untrue or legally insufficient”). At least one court has noted that former OCGA § 18-4-65, which was in effect when this garnishment action was filed (March 2012), did not specify any deadline by which a defendant’s traverse must be filed after the filing of a garnishment action. See In re Thompson, 2013 WL 8214644 (Bankr. N.D. Ga., April 30, 2013) (former OCGA § 18-4-65 “does not set a deadline by which a traverse must be filed and does not state or imply that the failure to file a traverse divests the defendant of any interest in garnished property”). Id. at *7.

       See OCGA § 19-6-15 (m) (1) (“Schedules and worksheets shall be prepared by the parties for purposes of calculating the amount of child support. In child support services cases in which neither parent prepared a worksheet, the court may rely on the worksheet prepared by child support services as a basis for its order. Information from the schedules shall be entered on the child support worksheet.”).


source: Caselaw Access Project

author: Boggs, Judge.

license: Public Domain

text:
    A16A0860.
    PIPKIN v. AZALEALAND NURSING HOME, INC.
    (793 SE2d 568)
   Boggs, Judge.

Mary D. Pipkin filed a slip and fall action against Azalealand Nursing Home, Inc., claiming its negligence caused her fall and resulting injury. The trial court was presented with Azalealand’s motion to withdraw admissions pursuant to OCGA § 9-11-36 (b), Pipkin’s motion for partial summary judgment as to liability based on those admissions, and Azalealand’s motion for summary judgment. The trial court declined to rule on the first two motions and granted summary judgment to Azalealand on the basis that (1) Pipkin failed to prove the existence of a hazard or that the hazard caused her fall; and that (2) Pipkin failed to prove actual or constructive knowledge on the part of Azalealand of any hazard. From this order, Pipkin appeals. Because we find that issues of fact remain regarding the existence of a hazard that caused the fall, we reverse.

Summary judgment is appropriate when no genuine issues of material fact remain and the movant is entitled to judgment as a matter of law. On appeal, we review the grant or denial of summary judgment de novo, construing the evidence and all inferences in a light most favorable to the nonmoving party

(Citation and punctuation omitted.) Seki v. Groupon, Inc., 333 Ga. App. 319 (775 SE2d 776) (2015). So viewed, the evidence showed that the then 88-year-old Pipkin accompanied her husband when he was transferred via ambulance to Azalealand’s facility in the late afternoon of May 31, 2012. As the EMTs wheeled her husband down the hallway, Pipkin attempted to “keep up with the stretcher.” Three employees of Azalealand were present at the time; two of them testified that Pipkin was walking with the aid of a cane, “walking fast,” “leaning forward,” or “rushing” as she came down the hallway One of the employees testified that she offered to get a wheelchair, but that Pipkin did not respond and continued walking. When Pipkin reached the area of the hallway just past the shower room, she fell. One of the employees observed her fall and screamed, “She’s falling!” Pipkin testified that she was knocked unconscious by the fall and did not recall anything until the EMTs were attending to her some time later. She did not know what caused her to fall, other than that she “stepped on something slick.” Pipkin testified to serious injuries caused by the fall, including a broken hip and broken shoulder, requiring lengthy hospitalization.

Pipkin’s son testified by affidavit that he was in the parking lot outside the facility with his wife and sister when an employee called him and told him that his mother had fallen. They “rushed” inside and found his mother still lying on the floor. When he knelt down next to her, he felt that his knees were wet, and realized that she was lying in some clear liquid, which an Azalealand employee was mopping up with a towel.

All four employees of Azalealand who gave their depositions testified that the floor was clean and dry and that “nothing was on the floor.” However, several employees also testified that it was “typical” or common for the floor outside the shower room to be wet, because most residents were wheeled to and from the shower room on stretchers or “shower beds” which became wet during the showering process. Warning cones were stored in the hallway because of the water falling from the shower beds and because the dining room on the opposite side of the hall was mopped down after meals, but the cones were not in use at the time of Pipkin’s fall. Although the employees asserted that no showers had been given to the residents that day, some testimony was elicited suggesting that the time at which showers were given was not uniform or completely regular.

OCGA § 51-3-1 provides: “Where an owner oroccupier of land, by express or implied invitation, induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries caused by his failure to exercise ordinary care in keeping the premises and approaches safe.”

Premises liability lies at the intersection of tort law and property law. To recover on a theory of premises liability, a plaintiff must show injury caused by a hazard on an owner or occupier of land’s premises or approaches that the owner or occupier should have removed in the exercise of ordinary care for the safety of the invited public. When a premises liability cause of action is based on a “trip and fall” or “slip and fall” claim — and the lion’s share of premises liability cases are — we have refined this general test down to two specific elements. The plaintiff must plead and prove that: (1) the defendant had actual or constructive knowledge of the hazard; and (2) the plaintiff, despite exercising ordinary care for his or her own personal safety, lacked knowledge of the hazard due to the defendant’s actions or to conditions under the defendant’s control.

(Footnotes omitted.) American Multi-Cinema v. Brown, 285 Ga. 442, 444 (2) (679 SE2d 25) (2009). And

it is the jury, not the court, which is the fact-finding body. It weighs the contradictory evidence and inferences, judges the credibility of witnesses, receives expert instructions, and draws the ultimate conclusion as to the facts. The very essence of its function is to select from among conflicting inferences and conclusions that which it considers most reasonable.

(Citation omitted.) The Kroger Co. v. Schoenhoff, 324 Ga. App. 619, 622-623 (751 SE2d 438) (2013).

1. We first consider the trial court’s ruling that Pipkin failed to show the existence of a hazard on Azalealand’s premises or that it caused her injury. Construing all the evidence and any inferences in favor of the nonmovant, Pipkin has presented evidence sufficient to require jury resolution of these issues.

Smith v. Tenet HealthSystem Spalding, 327 Ga. App. 878 (761 SE2d 409) (2014), presented a similar fact situation. There, Smith slipped and fell in a hospital hallway shortly after a janitor finished “wiping down” a maintenance cart. Id. at 878. Smith did not see any liquid on the floor, but testified that she was in no condition to examine the area due to her pain and loss of consciousness. Id. at 879-880 (1). We held that her “inability to personally testify as to what caused her to fall is not fatal to her case because there is other evidence permitting an inference as to the cause of her fall.” Id. at 880 (1). Testimony from others regarding the earlier presence of the cart and a mop bucket, as well as the testimony of Smith’s daughter-in-law that she noticed “something” on the floor that caused her foot to slip when she went to Smith’s aid, the summoning of maintenance staff to “come get the spill up,” and Smith’s testimony that a nurse called for paper towels to mop up “something wet on the floor,” was sufficient to create an inference of a foreign substance on the floor. Id.

Similarly, the testimony of Pipkin’s son that he discovered liquid on the floor next to where his mother was still lying, and observed an employee mopping it up, is sufficient to create a jury issue. This is true even though the substance was never positively identified and even though Azalealand’s employees denied the presence of any liquid on the floor. See Hutchins v. J. H. Harvey Co., 240 Ga.App. 582, 584 (1) (524 SE2d 289) (1999) (although store manager testified nothing was on floor where plaintiff fell, plaintiff’s testimony about clear puddle of liquid on floor sufficient to create issue of fact as to presence of foreign substance on floor).

Azalealand argues that the fact that there was some unknown quantity of water on the floor does not constitute evidence that it was present in a sufficient amount to constitute a hazard. But that is not what must be shown in order for a slip-and-fall plaintiff to withstand summary judgment. In J. H. Harvey Co. v. Reddick, 240 Ga. App. 466 (522 SE2d 749) (1999), the plaintiff presented evidence of two scup-pernongs or muscadine grapes discovered near the area of her fall. Id. at 467 (1). We held that she had shown some evidence of a foreign substance

that could have created the slippery condition she alleged. We are required on a motion for summary judgment to view the facts and inferences in a light most favorable to Reddick. Although Reddick could not positively state that the scup-pernongs caused her to fall, reasonable jurors could make such an inference based on the proximity of the fruit to Reddick after the fall, the alleged “slippery” condition of the floor, and the assistant manager’s statement after Reddick’s fall that he saw scuppernong skins, rather than whole fruit.

(Citation omitted.) Id. at 469 (1) (a). Here, a jury could infer that the liquid on the floor caused Pipkin’s fall from the testimony that the floor was slippery, that there was liquid on the floor “next to” Pipkin and in “the area around” her, and that an employee was mopping it up with a towel.

Azalealand also argues that Pipkin’s son could not testify to the condition of the floor at the time of Pipkin’s fall because the director of nursing testified that the family did not arrive for “I would say, about 15 minutes.” But this witness also testified, in answering an unrelated question, that fifteen minutes seems the same as five to her when she is busy. In addition, another witness testified that “it all happened... very fast,” so quickly that Pipkin’s daughter “came right on down,” and the family called 911 before the employees could. Moreover, nothing suggests another source for the water that Pip-kin’s son testified that he observed on the floor and being mopped up by an Azalealand employee within minutes after her fall. A jury could conclude from the evidence presented that the liquid on the floor caused Pipkin to fall, and the grant of summary judgment on this question therefore must be reversed.

2. We next address the trial court’s ruling on the issue of constructive knowledge. We agree with Pipkin that the trial court had no authority to decide this issue. Azalealand did not assert lack of knowledge in its answer and moved for summary judgment only on the basis of the absence of proof of a hazardous foreign substance that caused Pipkin’s fall. The issue of constructive knowledge of the hazard on the part of Azalealand was never raised below. In its order, the trial court acknowledged the paucity of evidence on the issue of constructive knowledge and inspection, but nevertheless ruled in Azalealand’s favor on this basis. This was error.

Decided November 10, 2016.

Karsman, McKenzie & Hart, Jeremy S. McKenzie, for appellant.

While a trial court may grant a motion for summary judgment sua sponte, its

authority to do so is not unlimited. The grant of summary judgment must be proper in all other respects. This means that in addition to ensuring the record supports such a judgment, the trial court must ensure that the party against whom summary judgment is rendered is given full and fair notice and opportunity to respond prior to entry of summary judgment.

(Citations omitted.) Hodge v. SADA Enterprises, 217 Ga. App. 688, 690 (1) (458 SE2d 876) (1995).

Nothing... places a burden on a plaintiff to respond to issues which are not raised in the motion for summary judgment or to present [her] entire case on all allegations in the complaint — even on issues not raised in the defendants] motion. Indeed, until [Azalealand] pierced the allegations of [Pipkin’s] complaint on a particular issue, [she] was neither required to respond to the motion on that issue, nor required to produce evidence in support of [her] complaint on that issue.

(Citations and punctuation omitted.) Id. at 690 (1). Here, Pipkin was never notified that the trial court intended to rule upon the issue of constructive knowledge, and that issue was not raised below. She did not have fair notice or opportunity to respond to the contentions on which the trial court granted summary judgment, and the trial court’s order therefore must be reversed on this basis as well.

Judgment reversed.

Barnes, P. J., and Rickman, J., concur.

Law Office of Ian R. Rapaport, Lervette J. Blair, for appellee.

       The trial court noted, “If the Court were required to rule on the motion to withdraw the deemed admissions, the Court would exercise its discretion and grant the motion,” but it considered the admissions as true in granting summary judgment. We have not considered them in reviewing the trial court’s decision.

       We note that Azalealand’s brief on appeal does not address the issue of constructive knowledge, nor does it respond to Pipkin’s claim of procedural impropriety.

       In so holding, we expressly state no opinion as to whether the evidence was sufficient to raise a jury question on this issue.


author: Branch, Judge.

text:
    A16A1094.
    BROWN v. THE STATE.
    (793 SE2d 573)
   Branch, Judge.

Following a jury trial, Telly Lafonz Brown was convicted in Butts County Superior Court on multiple charges, including two counts of aggravated battery, two counts of aggravated assault, and two counts of leaving the scene of an accident involving serious injury Brown now appeals from the denial of his motion for a new trial, arguing that the trial court erred in failing to instruct the jury on his sole defense of accident; in failing to instruct the jury on the intent element of aggravated assault and in failing to give an instruction on simple assault, as an element of aggravated assault; and in failing to merge, for sentencing purposes, the two counts of leaving the scene of an accident involving serious injury For reasons explained more fully below, we find no error in the trial court’s jury instructions, and we therefore affirm the denial of Brown’s motion for a new trial. We further find, however, that the trial court erred in failing to merge the two counts of fleeing the scene of an accident involving serious injury We therefore vacate the trial court’s sentencing order and remand the case for resentencing on those counts.

“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.” Marriott v. State, 320 Ga. App. 58 (739 SE2d 68) (2013) (citation omitted). So viewed, the record shows that Brown and B. B. dated for approximately one year. Although B. B. attempted to end the relationship after approximately six months, her efforts were unsuccessful, with Brown refusing to accept the breakup, phoning and texting B. B. repeatedly, and appearing at her house uninvited. Eventually, in November 2011, B. B. managed to end her relationship with Brown. Approximately two weeks later, B. B. was visiting her cousin, at the cousin’s apartment. The two women heard what sounded like a hissing noise coming from outside, and when they looked through the window, they both saw Brown letting the air out of the tires on B. B.’s car. One week after that incident, B. B. and her cousin went to a local nightclub. Brown was present at the club and, fearing that he would attempt to speak with her, B. B. left and went to her car to wait for her cousin. As she sat in the parking lot, Brown approached B. B., and she spoke with him briefly through the window, telling him she would not take him back. A short time later, B. B. and her cousin left the parking lot, and Brown watched as they drove in the direction of the cousin’s apartment. The two women stopped at an all-night restaurant to eat before proceeding to the cousin’s apartment, where B. B. planned to spend the night. At some point after the women left the nightclub but before they reached the cousin’s apartment, Brown called B. B.’s cell phone. In response to B. B.’s question, Brown told her he was at her home. According to B. B., however, the background noise on the call indicated that Brown was traveling in a car.

As B. B. and her cousin drove into the parking lot at the cousin’s apartment, B. B. saw what she believed to be a car belonging to Brown’s mother. B. B. called Brown’s mother to ask if her son had her car, and the mother confirmed that Brown was driving her car and urged B. B. to “get away,” as Brown was planning to kill her. With her cousin driving B. B.’s car, the women exited the parking lot, and Brown followed their vehicle. Brown bumped B. B.’s car from behind at least twice, causing the car to “shake and slide,” and frightening both women. When the cousin slowed the car to make a left turn (in an attempt to get to a police station), Brown again struck B. B.’s car, causing the cousin to lose control of the vehicle. The force of the impact sent B. B.’s car through a chain-link fence and into the yard of a local trucking company where it collided with the flatbed trailer of an 18-wheeler. Fearing that Brown would return to the scene, B. B. and her cousin crawled from the wrecked car and hid underneath the trailer to wait for police. B. B. suffered a broken wrist in the accident, and her cousin suffered a broken leg that had to be repaired surgically

At trial, the State introduced portions of several 911 calls that were received by local law enforcement on the night in question. Those recordings showed that Brown’s mother called 911 to report that Brown had stolen her car and planned to use it to “run his girlfriend over” and to “hit [her] in the car.” Sometime later, Brown’s father called to request police assistance, telling the 911 operator, “it’s my son, he got the car and mad at his girlfriend, like he want to hurt [himself] or somebody . . . He done snapped.” After the call was suddenly disconnected, the 911 operator called the Brown home, and at that time Brown’s mother reported that Brown had returned home, and informed his parents that he had wrecked the car when he ran “the girl off the road somewhere.” Brown’s mother also told the 911 operator that her son had left home again and that he had threatened to kill his girlfriend.

The morning after the accident, police interviewed Brown twice, first at his parents’ home and then at the police station. During those interviews, Brown admitted that although he did not have a valid driver’s license, he was driving his mother’s car when it collided with B. B.’s car. According to Brown, he had been following B. B. and her cousin, and their car braked suddenly. Although Brown tried to stop, his brakes failed, causing him to hit the back of B. B.’s car. Following the interview at the police station, the officer told Brown that he would be booked on several charges resulting from the accident. As police began the booking process, Brown fled the police station. Police captured him a short time later in a nearby wooded area.

Brown was subsequently indicted on two counts of aggravated battery, two counts of aggravated assault, two counts of aggressive driving, two counts of leaving the scene of an accident involving serious injury, one count of leaving the scene of an accident resulting in damage to a vehicle, one count of driving with a suspended license, one count of obstruction of an officer, and one count of escape. The jury found Brown guilty on all counts, and the trial court entered a judgment of conviction on the jury’s verdict and sentenced Brown to 45 years in incarceration. The trial court merged the two counts of aggressive driving with the counts of aggravated assault for sentencing purposes, but sentenced Brown to five years on each of the counts of leaving the scene of an accident involving serious injury, with those sentences to be served concurrently Brown filed a motion for a new trial, which the trial court denied in a summary order without holding a hearing. Brown now appeals from that order.

1. Brown contends that the trial court erred in failing to instruct the jury on the affirmative defense of accident. While Brown acknowledges that he did not request such an instruction, he relies on the fact that accident represented his sole defense and points to the law holding that a trial court’s failure to charge the jury on a defendant’s sole defense, even in the absence of a request for such a charge, may constitute reversible error if at least some evidence supports such a charge. See Parks v. State, 281 Ga. App. 679, 682 (4) (637 SE2d 46) (2006). “Whether the evidence presented is sufficient to authorize a charge on accident... is a question of law.” Kellam v. State, 298 Ga. 520, 521 (2) (783 SE2d 117) (2016) (citation omitted). We find no error, as the evidence in this case did not authorize a charge on accident.

UnderOCGA § 16-2-2, “[a] person shall not be found guilty of any crime committed by misfortune or accident where it satisfactorily appears there was no criminal scheme or undertaking, intention, or criminal negligence.”

Accident represents an affirmative defense on which the defendant bears the burden of proof at trial. Accordingly, to be entitled to a jury charge on accident, the defendant must present some evidence from which the jury could find that the defendant acted without criminal intent and was not engaged in a criminal scheme and that his actions did not show an utter disregard for the safety of others who might reasonably be expected to be injured thereby

Lee v. State, 320 Ga. App. 573, 578 (2) (740 SE2d 307) (2013) (citations and punctuation omitted). Here, the unrefuted evidence shows that Brown stole his mother’s car and told his family he intended to use the automobile to kill B. B.; he waited in the parking lot of the cousin’s apartment for B. B. and her cousin to arrive; Brown followed B. B.’s car when the women attempted to avoid him by driving away from the apartment; Brown pursued the women for some distance, using his mother’s car to “bump” B. B.’s vehicle at least twice; Brown continued to follow B. B.’s car at close range despite having struck her vehicle at least twice; after the collision, Brown fled the scene; Brown was able to drive his mother’s car back to her house, despite his statement to police that his brakes had failed at the time of the collision; and Brown reported to his parents that he had run “[his girlfriend] off the road.” The unrefuted evidence, therefore, showed that even assuming some type of mechanical malfunction occurred, the collision was not the result of an accident within the meaning of OCGA § 16-2-2. In other words, assuming that some kind of brake failure contributed to the collision, that failure occurred as Brown was engaged in a criminal scheme to stalk, terrorize, injure, and/or kill B. B. See Brockman v. State, 292 Ga. 707, 729 (15) (739 SE2d 332) (2013) (defendant’s testimony that gun accidentally discharged after he had abandoned his attempt to rob a gas station and was attempting to flee the scene did not support the defendant’s requested charge on accident; the defendant’s testimony showed that his “criminal scheme [to rob] was ongoing when” the gun discharged and struck the victim) (punctuation omitted). Accordingly, the trial court did not err in failing to give, sua sponte, a charge on the defense of accident. Id. See also Lee, 320 Ga. App. at 579 (2) (defendant not entitled to a charge on accident where automobile collision occurred while defendant was driving recklessly in an effort to elude police).

2. Brown argues that the trial court erred in at least two respects in instructing the jury on aggravated assault. Because Brown offered no objection to the jury charge, we review these claims for “plain error.” Holloman v. State, 293 Ga. 151, 152 (2) (744 SE2d 59) (2013). To demonstrate plain error, a defendant must show that the jury instruction was erroneous, that the error in the instruction was obvious, that the instruction likely affected the outcome of the trial, and that “the error seriously affected the fairness, integrity[,] or public reputation of [the] judicial proceeding[ ].” Id. (citation omitted). We find no such error in this case.

(a) Brown contends that the trial court erred in failing to instruct the jury that to prove aggravated assault, the State was required to prove that Brown intended to injure the victims. This claim is without merit.

Under Georgia law, an aggravated assault can be committed in four different ways: by committing the assault with the intent to murder, rape, or rob the victim; by committing the assault “with 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”; by committing the assault “[w]ith any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in strangulation”; or by discharging “a firearm from within a motor vehicle toward a person or persons” without legal justification. OCGA § 16-5-21 (b) (1), (2), (3), (4). In this case, the indictment charged Brown with committing aggravated assault against both B. B. and her cousin by use of an automobile, “an object which[,] when used offensively against another person[,] is likely to result in serious bodily injury” In such cases, where the State alleges that a defendant committed aggravated assault by use of a deadly weapon, the prosecution is not required to prove that the defendant intended to injure the victim. See Ganaway v. State, 282 Ga. 297, 299 (2) (647 SE2d 590) (2007) (“intent to injure is not an element of the offense” of assault with a deadly weapon). Thus, where that form of aggravated assault is charged, the State is only required to prove that the defendant intended to commit the act that either put the victim in reasonable apprehension of receiving an injury or that actually resulted in the victim being injured. Id. See also Smith v. State, 280 Ga. 490, 492 (1) (629 SE2d 816) (2006). Cf. Sullivan v. Kemp, 293 Ga. 770, 772-773 (1) (749 SE2d 721) (2013) (reversing defendant’s conviction based on the trial court’s failure to instruct the jury that to convict the defendant of aggravated assault, the State was required to prove that the defendant intended to commit the charged act; the failure to charge on intent made it possible for the jury to convict the defendant of aggravated assault even if it found the defendant’s conduct was criminally negligent, rather than intentional).

Here, the trial court properly instructed the jury on the issue of intent, charging the jurors that “a person commits the offense of aggravated assault when he . . . assaults with 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”; “that although an automobile is not a deadly weapon per se, it may become one depending on the manner in which it is used [and] [t]he question of whether an automobile has been used in such a manner ... is for . . . the jury to decide”; that “intent is an essential element of any crime and must be proven by the State . . . beyond a reasonable doubt”; and that “criminal intent does not mean an intention to violate the law or to violate a penal statute. But simply the intention to commit the act that is prohibited by the statute.” Accordingly, we find no error, plain or otherwise, in the court’s instruction as to the intent element of aggravated assault in this case.

(b) Brown further contends that the trial court erred in failing to define simple assault as an element of aggravated assault. A simple assault occurs where an individual “[ajttempts to commit a violent injury to the person of another” or “[c]ommits an act which places another in reasonable apprehension of immediately receiving a violent injury.” OCGA § 16-5-20 (a). To convict a defendant of aggravated assault, the State must prove both that the defendant committed a simple assault and that he did so with one of the aggravating factors set forth in OCGA § 16-5-21 (b). See Lee, 320 Ga. App. at 576 (1) (a).

Although simple assault is an element of aggravated assault, a charge on simple assault is not always required “to complete the definition of aggravated assault. The latter does not [necessarily] need the former to make it complete.” Sutton v. State, 245 Ga. 192, 193 (2) (264 SE2d 184) (1980) (citation omitted). A charge on simple assault is not necessary if, under the facts charged and the proof presented, the jury could not convict the defendant of aggravated assault without implicitly finding that a simple assault had occurred. See Cantera v. State, 289 Ga. 583, 585-586 (2) (713 SE2d 826) (2011); Taylor v. State, 327 Ga. App. 288, 291 (4) (758 SE2d 629) (2014). Thus, for example, a charge on simple assault is not always required where a defendant’s conduct has resulted in the victim’s injury. As our Supreme Court explained in Cantera, “there is a distinction between aggravated assault cases with injuries that have been intentionally inflicted based upon the evidence and those where, although there maybe injuries, intent maybe in question.” 289 Ga. at 586 (2). Where the evidence shows that the charged act injured the victim and the jury is “properly instructed on general intent” (i.e., that the State is required to prove that the defendant intended to commit the charged act), “there is no need for the trial court to instruct the jury on simple assault in connection with its charge on aggravated assault.” Id. Under those circumstances, if the jury concludes that the defendant committed the acts in question and that he did so with the requisite criminal intent, there can be no doubt but that a simple assault occurred. See Holloman, 293 Ga. at 152-153 (2) (no charge on simple assault was necessary where the child suffered injuries that resulted in his death and the evidence showed that such injuries could not have been inflicted unintentionally, negligently, or recklessly); Cantera, 289 Ga. at 585 (2) (no charge on simple assault was required where the defendant shot and killed the victim and evidence showed that the defendant acted intentionally).

Conversely, an instruction on simple assault is required in those cases where a defendant is charged with aggravated assault even though the victim was not injured. In such cases,

a jury would have to be informed that the perpetrator could still be found guilty of aggravated assault despite the fact that he or she did not cause any physical injury to the victim. [A charge on simple assault] would be required under such circumstances because the jury would need to know that the perpetrator could be found guilty of aggravated assault for having attempted to commit a violent injury to the person of another, or for having committed an act which placed another in reasonable apprehension of immediately receiving a violent injury through the use of a deadly weapon.

Cantera, 289 Ga. at 585 (2) (citations and punctuation omitted).

Here, the unrefuted evidence showed that Brown’s conduct resulted in serious bodily injury to both B. B. and her cousin. Thus, given that the jury found that Brown intended to strike B. B.’s car, no question existed as to whether a simple assault had occurred. Under these circumstances, therefore, the trial court did not err in failing to instruct the jury on simple assault as an element of aggravated assault. See Cantera, 289 Ga. at 586 (2) (where the jury has been properly instructed on general intent and there is no question as to whether the defendant’s alleged conduct would constitute an assault, “there is no need for the trial court to instruct the jury on simple assault in connection with its charge on aggravated assault”); Taylor, 327 Ga. App. at 291 (4) (same).

3. Brown was convicted on two counts of leaving the scene of an accident involving serious injuries, and the trial court sentenced him on both counts, with the sentences to be served concurrently. Brown argues that the trial court erred in failing to merge these two counts for sentencing purposes. We agree.

Georgia’s “hit-and-run statute,” OCGA § 40-6-270, imposes certain duties on drivers who are involved in an automobile accident resulting in injury to a person or damage to a vehicle. Any person who knowingly fails to stop and comply with these requirements with respect to an accident that “is the proximate cause of death or a serious injury” is guilty of a felony, which “shall be punished by imprisonment for not less than one nor more than five years.” OCGA § 40-6-270 (b). Brown contends that because this statute criminalizes fleeing the scene of an accident, an individual can only violate the statute once with respect to each accident scene he flees. The State, on the other hand, contends that Brown could be charged with two counts of violating OCGA § 40-6-270 (b) because the accident at issue involved two victims. We agree with Brown.

In deciding whether the State may charge multiple violations of OCGA § 40-6-270 based on the fact that a single accident involved multiple victims, we begin with the plain language of the statute. See May v. State, 295 Ga. 388, 391 (761 SE2d 38) (2014) (in determining the scope of a particular statutory provision, we begin “with the words of that provision”; we “presume that the General Assembly meant what it said and said what it meant”; and “we must read the statutory text in its most natural and reasonable way, as an ordinary speaker of the English language would”) (citations and punctuation omitted). The hit-and-run statute requires an individual to stop at the scene of “an accident resulting in injury to or the death of any person or in damage to a vehicle... attended by any person.” (Emphasis supplied.) Thus, the hit-and-run statute punishes an individual’s failure to stop at the scene of an automobile accident in which that person was involved. A violation of the statute occurs whenever someone fails to stop, regardless of whether that person is at fault with respect to the accident and regardless of the number of victims involved. Notably, the hit-and-run statute does not punish either the defendant’s conduct in causing the accident or in causing the victim’s injuries.

Given that the hit-and-run statute criminalizes the act of failing to stop at the scene of an accident, and given that there can be only one failure to stop at any single accident, a defendant may only be charged with a single violation of the hit-and-run statute for any single accident, regardless of the number of victims. In short, the duty imposed by the statute is a collective one — i.e., if the accident involves multiple victims, the duty to stop is owed to the victims collectively. Where a statute imposes such a collective duty, either towards a defined group of individuals or “collectively to the general public,” a violation of that statute “results in but a single offense.” Balkcom v. Defore, 219 Ga. 641, 643 (3) (135 SE2d 425) (1964) (citation omitted). Under such circumstances, because only one violation of the statute has occurred, a defendant may not be convicted of multiple counts merely because the facts show his single act affected more than one person. Id. (holding that although the defendant had five children, he could only be convicted of one count of abandonment as “the duty to support and provide necessaries for minor children, residing in and members of the same household, is owed to the children collectively”). See also Lidy v. State, 335 Ga. App. 517, 520-521 (2) (782 SE2d 302) (2016) (trial court erred in failing to merge a defendant’s conviction on two separate counts of felony obstruction of a police officer; although the defendant’s act of resisting arrest affected two officers, both officers were affected simultaneously and the State relied on “identical facts and identical allegations ... to establish the commission of the crime against each officer”); Harris v. State, 165 Ga. App. 249, 252 (5) (299 SE2d 924) (1983) (defendant could be convicted on only one count of impersonating a police officer; even though he misrepresented himself to two persons, only one act of impersonation occurred, as the two people were together).

Decided November 10, 2016.

David J. Walker, for appellant.

Richard G. Milam, District Attorney, J. Scott Johnston, Assistant District Attorney, for appellee.

In reaching this conclusion, we emphasize that a defendant’s conduct in causing an accident or injuring accident victims is punishable under statutes that were designed to address conduct other than the failure to stop at an accident scene. And a defendant may be charged separately with respect to the injuries inflicted on each victim of a single accident — i.e., a defendant may be indicted (as Brown was) on multiple charges of aggravated battery, aggravated assault, or even vehicular homicide. See Green v. State, 265 Ga. App. 126, 129 (2) (592 SE2d 901) (2004) (applying the general rule that where criminal act has more than one victim, a defendant may be charged separately with respect to each victim). See also Balkcom, 219 Ga. at 643 (3) (noting that with respect to crimes against the person, a defendant’s single act may give rise to multiple charges, as that conduct violates “a separate duty [the defendant owed] to each member of society on whose interest the [defendant’s] act infringed”).

For the reasons set forth above, we affirm the trial court’s denial of Brown’s motion for new trial. We vacate Brown’s sentences on the two counts of leaving the scene of an accident involving serious injury and remand to the trial court for entry of a new sentence with respect to these counts.

Judgment affirmed in part and vacated in part, and case remanded with direction.

Ellington, P. J., and Mercier, J., concur.

       In its order denying the new trial motion, the court stated that Brown’s motion was not based “on any ground that would require an evidentiary hearing.”

       In his appellate brief, Brown also appears to argue that because the trial court failed to give an instruction on simple assault, the charge as a whole allowed the jury to convict him of aggravated assault based on conduct that was criminally negligent, rather than intentional. Given that the jury was instructed that it had to find that Brown intended to commit the act which caused the victims’ injuries, this argument is without merit. Put another way, the charge prevented the jury from convicting Brown of aggravated assault unless it found that Brown intentionally struck B. B.’s car, thereby propelling it through the fence and into the bed of the trailer.

       Specifically, the statute requires the driver to stop at the scene; give his or her name and address and the registration number of his or her vehicle; provide his driver’s license “to the person struck or the driver or occupant of or person attending any vehicle collided with”; render reasonable assistance to any person injured in the accident; and if the person injured is unconscious, to “make every reasonable effort to ensure that emergency medical services and local law enforcement are contacted!)]” OCGA § 40-6-270 (a) (l)-(4).

       If a defendant is involved in more than one hit-and-run accident, he can be charged with violation of the statute with respect to each accident. See, e.g., Sevostiyanova v. State, 313 Ga. App. 729, 731 (1) (722 SE2d 333) (2012) (affirming defendant’s two convictions for fleeing the scene of an accident involving an unattended vehicle, in violation of OCGA § 40-6-271, where the evidence showed that defendant hit two different cars in a parking lot and then fled the scene).


author: MILLER, Presiding Judge.

text:
    A16A1118.
    FRAZIER v. THE STATE.
    (793 SE2d 580)
   MILLER, Presiding Judge.

Christopher Frazier was convicted by a jury of aggravated assault (OCGA § 16-5-21); armedrobbery (OCGA § 16-8-41); hijackinga motor vehicle(OCGA § 16-5-44.1);theftbyreceivingstolen property (OCGA § 16-8-7); and criminal damage to property (OCGA § 16-7-23). During the trial, he also pled guilty to fleeing or attempting to elude a law enforcement officer (OCGA § 40-6-395 (a)); financial transaction card theft (OCGA § 16-9-31); and possession of a firearm during the commission of a felony (OCGA § 16-11-106). The trial court denied his motion for a new trial, and this appeal followed. On appeal, Frazier argues that (1) his convictions for hijacking a motor vehicle, armed robbery, and theft by receiving stolen property are mutually exclusive; (2) the evidence was insufficient to support his conviction for theft by receiving stolen property; (3) trial counsel was constitutionally deficient for failing to object to the prosecutor’s comments on his right to silence; and (4) trial counsel was deficient for advising him to plead guilty to the fleeing or attempting to elude offense because there was insufficient evidence to support his conviction on this charge. After a thorough review of the record, we reverse Frazier’s convictions for hijacking a motor vehicle and theft by receiving, and we remand for a new trial on these charges. We also reverse Frazier’s conviction for fleeing or attempting to elude because trial counsel was constitutionally deficient for advising him to plead guilty where the evidence was insufficient to support that charge. We affirm the convictions for aggravated assault, armed robbery, criminal damage to property, financial transaction card theft, and possession of a firearm during the commission of a felony

We view the evidence on appeal in the light most favorable to the verdict, and no longer presume the defendant is innocent. We do not weigh the evidence or decide the witnesses’ credibility, but only determine if the evidence is sufficient to sustain the convictions. We construe the evidence and all reasonable inferences from the evidence most strongly in favor of the jury’s verdict.

(Citations omitted.) Wallace v. State, 294 Ga. App. 159 (1) (669 SE2d 400) (2008).

So viewed, the evidence shows that around midnight on February 28, 2005, the victim drove to a strip mall to the cleaners she and her husband owned. As she left her car to walk into the store, she noticed two young black men. As she returned to her car a few minutes later, the two men approached her, pointed guns at her, and demanded her keys. The men were wearing sunglasses, and one of them wore red pants. Although she gave the men her keys, one of them struck her in the head twice with his gun. The victim fell to the ground, bleeding, and the two men drove away in her Nissan Xterra with her purse, identification, checkbook, cash, and credit cards. The victim called her husband and the police.

The police issued a “be on the look out” for the Nissan Xterra, and an officer spotted the car about 40 minutes after the robbery. The officer, who was in a marked police car, followed the Xterra, but did not activate his blue lights. Nevertheless, the driver of the Xterra began to speed up, forcing the officer to quickly accelerate to 70 miles per hour to keep up. The car eventually stopped, and three men exited the car. The driver, who was wearing red pants and was later identified as Raphael Ratliff, ran. The other two men, later identified as Frazier and Jay Bradford, walked around the side of a building, where they hid their weapons. When Frazier and Bradford returned, the officer instructed them to get on the ground, and they complied.

The officer took Frazier and Bradford into custody and conducted a pat-down search. In Frazier’s pocket, the officer found bullets and the victim’s credit card. A subsequent search of the Xterra uncovered sunglasses in the center console, a .38 pistol, and the contents of the victim’s purse. Police later searched the area around the building and found two other firearms. Police also captured Ratliff. Police notified the victim that her car had been found and asked her to identify Frazier and Bradford as the men in the car. The victim was apparently not able to identify Frazier at the scene, although she testified at trial that Frazier was one of the two men.

All three men were transported to the police station, where they were given their Miranda rights and made statements. Frazier stated that his girlfriend had driven him to the strip mall, that Bradford and Ratliff told him they had gotten the Xterra from a Korean woman, and that he knew the car was stolen when he got in it.

At trial, after the state rested its case-in-chief, defense counsel moved for acquittal on the fleeing or attempting to elude charge. Nevertheless, after the close of all the evidence, Frazier entered a guilty plea to the fleeing or attempting to elude charge, along with the charges for financial transaction card theft and possession of a firearm during a felony

Ratliff testified in Frazier’s defense, asserting that he and Bradford committed the armed robbery and carjacking, and that Frazier was not involved. Frazier also testified in his own defense, explaining the events that night and denying that he was involved in the armed robbery. He also denied making any statements to police about the crimes. The jury convicted Frazier of aggravated assault, armed robbery, hijacking a motor vehicle, theft by receiving, and criminal damage to property, but it acquitted him of the battery charge.

1. Frazier first argues that his convictions for hijacking a motor vehicle, armed robbery, and theft by receiving are mutually exclusive because they are all based on taking the same vehicle. We agree that the hijacking and theft by receiving convictions are mutually exclusive, but conclude that the armed robbery conviction is not.

[V]erdiets are mutually exclusive where it is legally and logically impossible to convict the accused of both counts [.]... [Wjhere verdicts are mutually exclusive, reversal of both verdicts is required because it would be insufficient for an appellate court merely to set aside the lesser verdict, because to do so is to speculate about what the jury might have done if properly instructed, and to usurp the functions of both the jury and trial court.

(Citations, punctuation and footnote omitted.) State v. Springer, 297 Ga. 376, 378 (1) (774 SE2d 106) (2015).

Here, Frazier was convicted of armed robbery, for stealing the victim’s car keys by use of a handgun; hijacking a motor vehicle, for taking the victim’s car by force and violence; and theft by receiving stolen property, for retaining the car that he should have known was stolen.

(a) Hijacking and theft by receiving

Frazier’s convictions for hijacking the car and theft by receiving the same stolen property are mutually exclusive. It is clear that Frazier could not be convicted of both taking and receiving the stolen property because one cannot receive stolen property unless it is first taken by someone else. Thomas v. State, 261 Ga. 854, 855 (1) (413 SE2d 196) (1992); see also Ingram v. State, 268 Ga. App. 149, 151-152 (5) (601 SE2d 736) (2004) (theft by taking and theft by retaining stolen property are mutually exclusive). In Thomas, supra, 261 Ga. at 855 (1), the Supreme Court of Georgia expressly declined to address the question of whether stealing and retaining stolen property were mutually exclusive. Id. at 855 (1) n. 1 (expressing no opinion as to whether armed robbery and theft by retaining stolen property would be mutually exclusive). We must now answer that precise question.

We decline to adopt the standard suggested by the State — that Frazier was involved in the hijacking and then later retained the car when he got back into it. Based on the Supreme Court of Georgia’s analysis in Thomas, and this Court’s precedent in Ingram, we conclude that Frazier could not be convicted of retaining property he had already stolen. Accordingly, Frazier’s convictions for hijacking a motor vehicle and theft by receiving that same car are mutually exclusive.

(b) Armed robbery of the car keys and theft by receiving or hijacking the car

Although we conclude that hijacking and theft by receiving are mutually exclusive, the same cannot be said of armed robbery and hijacking or armed robbery and theft by receiving. We note that, in this circumstance, stealing the car keys essentially amounted to stealing the car itself, because the perpetrators used the keys to hijack the car. Nevertheless, the armed robbery charge and the hijacking charge each involved a separate element as charged — the theft of different property. Thus, it was not logically or legally impossible to convict Frazier of stealing both the keys and the car. Springer, supra, 297 Ga. at 378 (1). Moreover, it was not logically or legally impossible to convict Frazier of stealing the keys and receiving the victim’s stolen car. Id. Therefore, Frazier’s armed robbery conviction is not mutually exclusive with either his hijacking or his theft by receiving conviction. Accordingly, we affirm Frazier’s conviction for armed robbery.

Frazier’s convictions for hijacking a motor vehicle and theft by receiving stolen property must be reversed and the case remanded for a new trial on these charges. Thomas, supra, 261 Ga. at 855 (1); Ingram, supra, 268 Ga.App. at 151-152 (5); Camsler v. State, 211 Ga. App. 826 (440 SE2d 681) (1994). Nevertheless, the evidence cited above was sufficient to convict Frazier of hijacking (OCGA § 16-5-44.1 (b)). Moreover, as discussed below, the evidence was sufficient to convict Frazier oftheft by receiving stolen property (OCGA § 16-8-7). Accordingly, the State may retry Frazier on these charges. Melton v. State, 282 Ga. App. 685, 694 (2) (d) (639 SE2d 411) (2006).

2. Frazier next argues that the evidence was insufficient to convict him of theft by receiving stolen property because he had no control over the vehicle and was merely a passenger in the car. We disagree.

OCGA § 16-8-7 (a) provides:

A person commits the offense of theft by receiving stolen property when he receives, disposes of, or retains stolen property which he knows or should know was stolen unless the property is received, disposed of, or retained with intent to restore it to the owner.

Importantly,

[r]iding in a stolen van or automobile as a passenger does not support a conviction for theft by receiving unless the accused also, at some point, acquires possession of or controls the vehicle, i.e., has the right to exercise power over a corporeal thing, or there exists some evidence, either direct or circumstantial, that the accused was a party to the crime by aiding and abetting its commission.

Harris v. State, 247 Ga. App. 41, 42 (543 SE2d 75) (2000). Moreover, “for an appellate court to overturn a conviction for theft by receiving on the grounds urged by [Frazier], there must be direct and uncontested evidence, as opposed to merely circumstantial evidence, identifying the defendant as the original thief.” Marriott v. State, 320 Ga. App. 58, 61 (1) (739 SE2d 68) (2013).

The indictment in this case charged that Frazier, Bradford and Ratliff “did unlawfully retain stolen property, to wit: Honda automobile [sic], a motor vehicle, which he should have known was stolen, said property not having been retained with intent to restore it to said owner.” The evidence as set forth above was sufficient for the jury to conclude that Frazier retained the stolen property. OCGA § 16-8-7. Frazier admitted that he knew the car was stolen, that the defendants engaged in a high-speed chase to avoid police, and that when the car came to a stop, Frazier exited the car to hide the weapons. See Johnson v. State, 236 Ga. App. 356, 357 (1) (511 SE2d 921) (1999) (evidence was sufficient where defendant admitted that getaway car was stolen, the defendants used the car in a high-speed chase, and they abandoned the car after the chase). Given that there was not merely circumstantial evidence that Frazier was the original thief, we will not overturn his conviction for theft by receiving stolen property Marriott, 320 Ga. App. at 61 (1).

3. Frazier argues that trial counsel was constitutionally deficient for failing to object to the prosecutor’s comments regarding his pre-trial silence. Although we agree that the comments were improper, we conclude that Frazier has not shown that the outcome of his trial would have been different but for those comments.

In order to prevail on a claim of ineffective assistance of counsel, appellant must show counsel’s performance was deficient and that the deficient performance prejudiced him to the point that a reasonable probability exists that, but for counsel’s errors, the outcome of the trial would have been different. A strong presumption exists that counsel’s conduct falls within the broad range of professional conduct. Whether a trial attorney renders constitutionally ineffective assistance is a mixed question of law and fact. When reviewing a trial court’s decision to grant a motion for new trial based on ineffective assistance of counsel, we defer to the trial court’s findings of fact unless clearly erroneous, but owe no such deference to its conclusions of law which we apply independently to the facts.

(Citations omitted.) State v. Sims, 296 Ga. 465, 468-469 (2) (769 SE2d 62) (2015). It is well established in Georgia that the State may not comment on a defendant’s silence or failure to come forward voluntarily. Id. Such comments are far more prejudicial than probative and are not to be permitted, even when a defendant takes the stand in his own defense. Id. at 468 (2).

Here the State’s comments during its cross-examination of Frazier and during closing argument emphasized that Frazier failed to come forward and tell police the “real truth” about the crimes. There is no dispute that these comments were impermissible and that trial counsel was deficient for failing to object to them. See Thomas v. State, 284 Ga. 647, 648-649 (2), (3) (670 SE2d 241) (2008); Sims, supra, 296 Ga. at 468-471 (2). Nevertheless, given the direct and circumstantial evidence of Frazier’s guilt, as set forth above, we find that there is no reasonable probability that the outcome of the trial would have been different but for trial counsel’s deficient performance. Notably, the victim identified Frazier as the gunman at trial. Moreover, Frazier was found in the victim’s stolen car, and he had her stolen credit card in his pocket when he was arrested. See Sanders v. State, 290 Ga. 637, 641 (5) (723 SE2d 436) (2012) (no reasonable probability that outcome of trial would have differed, given eyewitness identification and evidence connecting defendant to getaway vehicle); Moore v. State, 278 Ga. 397, 399-400 (2) (a) (603 SE2d 228) (2004) (no reasonable likelihood that outcome of trial would have differed given strong circumstantial evidence of defendant’s guilt); Lampley v. State, 284 Ga. 37, 38-39 (2) (b) (663 SE2d 184) (2008) (given the weight of the evidence, there was no reasonable probability that the outcome of defendant’s trial would have been different). Therefore, we conclude that Frazier has not shown the prejudice necessary to establish ineffective assistance of counsel in this regard.

4. Frazier argues that trial counsel was constitutionally deficient for allowing him to plead guilty to fleeing or attempting to elude where there was insufficient evidence to support the charge. We agree.

Pursuant to OCGA § 40-6-395 (a):

It shall be unlawful for any driver of a vehicle willfully to fail or refuse to bring his or her vehicle to a stop or otherwise to flee or attempt to elude a pursuing police vehicle or police officer when given a visual or an audible signal to bring the vehicle to a stop. The signal given by the police officer may be by hand, voice, emergency light, or siren. The officer giving such signal shall be in uniform prominently displaying his or her badge of office, and his or her vehicle shall be appropriately marked showing it to be an official police vehicle.

(Emphasis supplied.)

Importantly, to the extent that Frazier appeals from the denial of his motion for a directed verdict on this count, Frazier waived any direct challenge to the sufficiency of the evidence by pleading guilty Wilson v. State, 302 Ga. App. 433, 435 (3) (691 SE2d 308) (2010). Thus, we review this issue solely under the claim that trial counsel was ineffective for allowing Frazier to enter his plea to this charge. Frazier raised his claim in an amended motion for a new trial. At a hearing on the motion, defense counsel testified that after Frazier’s trial, he had been convicted of a felony, had voluntarily relinquished his law license, and had suffered a mental breakdown. He further testified that he had no recollection of Frazier’s case, and could not remember the charge of fleeing or attempting to elude law enforcement. He confirmed that he could not testify as to his strategy in the case.

In Bradford v. State, 287 Ga. App. 50, 52-53 (1) (651 SE2d 356) (2007), this Court concluded that the evidence was insufficient to convict Jay Bradford, Frazier’s co-defendant, of fleeing or attempting to elude, and the evidence against Frazier was identical. In light of this Court’s decision in Bradford that the evidence was insufficient, we conclude that trial counsel gave constitutionally deficient assistance when he advised Frazier to plead to fleeing or attempting to elude. The evidence was insufficient to sustain a conviction on this charge, and therefore, there is a reasonable probability that the outcome would have been different, but for trial counsel’s conduct. Accordingly, we reverse Frazier’s conviction for fleeing or attempting to elude. Moreover, given the insufficient evidence, the state may not retry Frazier on this charge. Melton, supra, 282 Ga. App. at 694 (2) (c).

Decided November 10, 2016.

Michael W. Tarleton, for appellant.

Julia F. Slater, District Attorney, Robert B. Bicker staff II, Assistant District Attorney, for appellee.

5. Although not raisedby Frazier, we find the evidence sufficient to support the charges to which Frazier pled guilty — financial transaction card theft (OCGA § 16-9-31) and possession of a firearm during the commission of a felony (OCGA § 16-11-106) — as well as the charges for which he was convicted — aggravated assault (OCGA § 16-5-21), armed robbery (OCGA § 16-8-41), and criminal damage to property (OCGA § 16-7-23).

For the foregoing reasons, we affirm Frazier’s convictions for aggravated assault, armed robbery, criminal damage to property, financial transaction card theft, and possession of a firearm during the commission of a felony We reverse Frazier’s convictions for hijacking a motor vehicle and theft by receiving as mutually exclusive, and we reverse his conviction for fleeing or attempting to elude due to ineffective assistance of counsel. On remand, the state may retry Frazier on the hijacking and theft charges; however, because the evidence was insufficient to sustain a conviction for fleeing or attempting to elude, the state is precluded from retrying Frazier for this crime.

Judgment affirmed in part and reversed in part, and case remanded.

McFadden and McMillian, JJ., concur.

       We note that the motion for a new trial was filed ten years after Frazier’s convictions. Counsel explains that the delay resulted from the fact that the records and transcripts were lost, the former court reporter retired, and previous appellate counsel moved out of town. We take this opportunity to remind the parties that it is the responsibility of those in the criminal justice system to ensure that records are properly maintained and that the pursuit of a defendant’s rights is not subject to an unnecessary and unreasonable delay.

       Frazier and co-defendant Jay Bradford were tried jointly. The third person involved, Raphael Ratliff, pled guilty and testified against Bradford and Frazier at trial.

       The record does not reflect whether the trial court ruled on the motion, as Frazier entered his plea to this charge before the conclusion of the trial.

       Although we conclude that the offenses are not mutually exclusive, we note that this case underscores the importance of drafting a proper indictment. Had the State charged Frazier with hijacking the car and armed robbery of, for example, the victim’s purse, there would be no confusion over the convictions.

       We note that there could be a question of merger for sentencing purposes once Frazier is retried on the hijacking and theft-by-receiving counts. See Ingram v. State, 279 Ga. 132, 133 (2) (610 SE2d 21) (2005) (offenses that are “part of a continuous criminal act, committed at the same time and place and inspired by the same criminal intent” merge).

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