text:
    A14A0842.
    HOWARD v. LEONARD.
    (765 SE2d 466)
   Branch, Judge.

A father, mother, and daughter had been joint owners of a credit union account for 16 years when the father died. While the mother was still alive and with her purported endorsement, the daughter then moved half of the account balance into an account for her mother and half into an account for herself. One of the daughter’s brothers, who was subsequently appointed as his mother’s conservator, later filed suit seeking a declaration that all the funds belonged to the mother, not the daughter. The trial court granted summary judgment in favor of the brother and denied the daughter’s cross-motion in which she sought to establish ownership of half of the account. The daughter appeals both rulings. We affirm in part and reverse in part.

On appeal from the grant of summary judgment, appellate courts “conduct! ] a de novo review of the evidence to determine whether there is a genuine issue of material fact and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.” Shekhawat v. Jones, 293 Ga. 468, 469 (746 SE2d 89) (2013) (citation omitted); State Dept. of Corrections v. Developers Sur. & Indem. Co., 324 Ga. App. 371, 372 (750 SE2d 697) (2013).

Where the evidence on motion for summary judgment is ambiguous or doubtful, the party opposing the motion must be given the benefit of all reasonable doubts and of all favorable inferences and such evidence construed most favorably to the party opposing the motion. Furthermore, while a movant’s evidence is to be carefully scrutinized, a respondent’s evidence is to be treated with indulgence.

Layfield v. Dept. of Transp., 280 Ga. 848, 850 (632 SE2d 135) (2006) (citations and punctuation omitted).

Construed in favor of the appellant for the purpose of addressing the appellee’s summary judgment, the facts show that Royce and Leola Leonard were married for many years and at least 20 years ago, Royce, an employee of the United States Postal Service, established joint account No. 6626 with Leola at the Atlanta Postal Credit Union (“APCU”). The Leonards raised three children — Ronald, David, and Marketta (now known as Marketta Howard) — who are all now adults. On November 21, 1995, Royce, Leola, and Marketta Howard signed a “Joint Membership Agreement” with APCU regarding account No. 6626. The agreement provides that going forward, all past and future deposits would be owned “jointly with right of survivorship,” any member could withdraw funds deposited into the account, and upon the death of one or more members, all deposits would vest in the survivor or survivors:

The undersigned hereby apply for a “joint membership” in the Atlanta Postal Credit Union and, in consideration of the approval of applicants in joint membership by the said credit union, do hereby agree each with the other and with the said credit union, that all sums now invested in deposits or hereafter paid in as payments on deposits, and all interest therefrom shall be owned by us jointly with right of survi-vorship, and shall be subject to withdrawal by either or the survivor of us and said payments upon withdrawal shall be valid and release and discharge such credit union from any payments so made. In case of the death of any one or more of said joint members all rights and privileges of membership and all rights and privileges of ownership in all deposits held jointly in said credit union shall be vested in the survivor or survivors.

Royce signed the agreement as the “applicant,” and Leola and Howard signed as “Joint Owner[s].” The agreement modified APCU account No. 6626, and it made Howard an owner of the account along with her parents. During the life of account No. 6626, only Royce made deposits; neither Leola nor Howard made any.

Royce Leonard died on December 7,2011, at age 89; Leola was 89 at the time, and Howard had concluded as early as April 2011, that her mother had begun to lose her mental capacities and may have had dementia. After her father’s death, Howard contacted APCU regarding how to handle the joint account. Thus, in February 2012, based on APCU’s instructions, Howard used $25 from the account to open a separate joint account at APCU for her mother and herself, into which Howard planned to transfer the funds from account No. 6626. Shortly thereafter, however, Howard learned from APCU that Ronald, who was not a joint party on account No. 6626, was making inquiries with APCU about transferring the balance of account No. 6626 to a different bank. Ronald later admitted that, without telling Howard, he took his mother to Regions Bank in order to attempt to transfer the APCU funds to that bank. On April 2, 2012, after learning of Ronald’s inquiries at APCU, Howard asked APCU to issue a check for the entire balance of $143,282.93 on account No. 6626 made payable to “Royce P Leonard or Leola S Leonard c/o Marketta Leonard” and to mail it to her.

Meanwhile, on April 3, a doctor signed an affidavit to the effect that Leola was incapacitated by reason of dementia; that she lacked the capacity to make or communicate responsible decisions concerning her health or safety or the management of her property; and that her condition would last for the rest of her life. Five days later, Ronald and David notified Howard that they were preparing to file petitions to appoint a guardian for Leola and a conservator for her estate. On April 9, the clerk of the probate court saw all three Leonard children, as well as Howard’s husband and Leola, appear at court to complete and file the petitions. The clerk overheard a conversation between the three children in which Howard told Ronald the dollar amount of the balance of the APCU joint account. Although the clerk did not recall anyone’s words exactly, she also averred that she heard Ronald ask Howard for a letter stating that she was not the owner of the APCU account and heard Howard say something to the effect that “the money is mother’s.” That same day, Howard refused to sign a letter addressed to APCU stating that the entire balance of account No. 6626 belonged to Leola and that Howard did not claim any ownership interest.

Shortly after the gathering at probate court, Howard received the check from APCU (which was dated April 2) for the balance of account No. 6626, and she and her mother endorsed it. On April 23, Howard opened two separate individual accounts at the Cohutta Banking Company and deposited half of the funds into an account in her own name and the other half into an account in the name of “Marketta L. Howard for the Benefit of Leola Leonard.”

On August 29, 2012, the probate court held a hearing on the petitions to appoint a guardian and conservator, and on September 12, it appointed Ronald as conservator of his mother’s estate and Ronald and Howard as co-guardians of their mother. The probate court hearing transcript was tendered as evidence in the present action without objection.

After receiving a demand from Ronald in his role as conservator that she transfer to Ronald all funds previously on deposit in account No. 6626, Howard sent to Ronald by certified mail a check for the balance, including interest, of her mother’s account at the Cohutta Bank; delivery was refused. Out of fear that Ronald would again attempt to take the funds in the accounts, Howard transferred the funds deposited in her own name to an account at the Bank of Chickamauga.

On October 2, 2012, Ronald, acting as conservator of his mother’s estate, filed a verified complaint against Howard, alleging that she had converted her mother’s interest in the account and seeking all funds that belonged to his mother. He also asked the court to require Howard to deposit all funds removed from the APCU account No. 6626 into the registry of the court, which Howard promptly did. Howard responded to the suit with a verified answer and a counterclaim seeking an accounting of her mother’s estate and a constructive trust on any funds in her mother’s estate. Leola died on November 21, 2012, and Ronald, who was appointed as executor of his mother’s estate, was substituted as the plaintiff.

Ronald moved for summary judgment, seeking a ruling that all of the funds previously on deposit in account No. 6626 belonged to his mother and his father’s estate, and not to Howard; at oral argument, he argued that the funds belonged to his mother’s estate. Howard also moved for summary judgment, seeking a ruling that one-half of the funds in account No. 6626 belonged to her.

Following a hearing on the cross-motions for summary judgment, the trial court found that Royce’s contributions to APCU account No. 6626 were “marital contributions” and that there was no evidence that Royce or Leola intended to make a gift to Howard during their lifetimes. The court held that although Howard had a right under law to withdraw the funds from APCU, she had no authority to place the funds into an individual account. Finally, because Howard contributed nothing to the APCU account whereas Leola “contributed marital funds,” Howard had no right to any of the money from account No. 6626. The court therefore granted Ronald’s motion for summary judgment. On appeal Howard contends the trial court erred by concluding that deposits made by one spouse are also considered deposits of “marital funds” by the other spouse and by disregarding the requirement that the intent of the joint account holders be shown by clear and convincing evidence. She also contends that the trial court erred by denying her motion for summary judgment.

Resolving these issues depends on several provisions of Article 8 of Chapter 1 of the Banking and Finance Code governing multiple-party accounts. See OCGA § 7-1-810 et seq. (the “MPA Act”).

1. Ronald, who is also executor of his father’s estate, argued in his motion for summary judgment that his father’s estate was entitled to funds in account No. 6626. Because the trial court did not state specifically what relief was being granted in its order granting summary judgment, we must address this argument. In this case, however, Royce’s estate is not a party; moreover it is clear that Royce’s estate has no claim to the funds that were on deposit in account No. 6626 at the time of Royce’s death. Under the MPA Act, upon the death of one party 3*to a “joint-account,” the estate of the decedent takes nothing without clear and convincing evidence of a different intent at the time the account was created:

Sums remaining on deposit at the death of a party to a joint account belong to the surviving party or parties as against the estate of the decedent, unless there is clear and convincing evidence of a different intention at the time the account is created. . . .

OCGA § 7-1-813 (a) (emphasis supplied). And “[a] right of survivor-ship arising from the express terms of the account . . . cannot be changed by will.” OCGA § 7-1-813 (e).

Here, the relevant incarnation of account No. 6626 was created on November 21, 1995, when Howard and her parents signed the APCU joint membership agreement. See OCGA § 7-1-814 (terms of multiple-party account can be changed by presenting a proper modification agreement to the financial institution signed by “all parties with a present right of withdrawal”). And there is no evidence in the record, let alone clear and convincing evidence, of any one of the joint parties’ intent as of November 1995 other than the language of the agreement itself, which plainly provides that the parties agreed that the account was created “jointly with right of survivorship” and that upon the death of one or more members, all deposits would vest in the survivor or survivors. See, e.g., Urban v. Lemley, 232 Ga. App. 259, 260 (1) (501 SE2d 529) (1998) (funds belonged to joint account survivor, not estate of co-party, where no clear and convincing evidence was presented that depositor did not intend for the survivor-ship provisions to apply when she opened the joint accounts); Willig v. Shelnutt, 224 Ga. App. 530, 532 (1) (480 SE2d 924) (1997) (funds in joint account belonged to survivor, not estate of the co-party, where estate failed to rebut the OCGA § 7-1-813 (a) presumption with clear and convincing evidence of a different intention at the time the joint accounts were created). Compare James v. Elder, 186 Ga. App. 810, 811 (368 SE2d 570) (1988) (clear and convincing evidence presented to show that deceased did not intend to make a gift of the funds to co-party). Further, Howard’s purported admission on April 9, 2012, that the money was “mother’s,” is not evidence of the joint parties’ intent over 16 years earlier. Urban, 232 Ga. App. at 260 (1) (after death of one co-joint account party, other co-party’s statement that he considered joint account funds to belong to deceased was not relevant to deceased’s intent when joint account was created). Thus, upon Royce Leonard’s death, his estate had no claim to the APCU account, and the deposits vested jointly in Leola Leonard and Marketta Howard with right of survivorship.

2. The next question is whether, after her father’s death, Howard was authorized to withdraw funds from account No. 6626 and deposit them, at least in part, in her own name in a different account. As shown below, although Howard had the right to withdraw the funds, beneficial ownership of those funds is a separate question.

(a) First, under the terms of her account agreement and applicable law, Howard was clearly authorized to withdraw all the funds in the account. The joint membership agreement is “a contract of deposit of funds between a depositor and a financial institution.” OCGA § 7-1-810. That agreement provides that the deposits in the account “shall be subject to withdrawal by either or the survivor of us.” And the MPA Act provides that financial institutions may pay “[a]ny sums in a joint account... on request, to any party without regard to whether any other party is incapacitated or deceased at the time the payment is demanded[.]” OCGA § 7-1-817. See also OCGA § 7-1-810 (4) (a joint account is payable on request to “one or more of two or more parties”). Finally, the law of joint accounts found in OCGA §§ 7-1-812 through 7-1-814 “concerning beneficial ownership as between parties” has “no bearing on the power of withdrawal of these persons as determined by the terms of account contracts.” OCGA § 7-1-811. Thus, Howard was authorized to request a withdrawal of the funds in APCU account No. 6626. See Parker v. Kennon, 242 Ga. App. 627, 629 (530 SE2d 527) (2000) (authority to withdraw from joint account is a separate issue from authority to use funds for personal benefit).

(b) Second, with regard to beneficial ownership of funds in a joint account upon the death of one co-party, the MPA Act provides that where there are two or more surviving parties of a joint account,

... the respective ownership of each during his lifetime shall be in proportion to his previous ownership interests under Code Section 7-1-812, augmented by an equal share for each survivor of any interest the decedent may have owned in the account immediately before his death; and the right of sur-vivorship continues between the surviving parties.

OCGA § 7-1-813 (a) (emphasis supplied). The plain wording of the statute requires us to determine the ownership interests of Leola and Howard under OCGA § 7-1-812 immediately before Royce’s death and to add thereto an equal share for each survivor of any interest Royce had just prior to his death. Under OCGA § 7-1-812 (a), a joint account “belongs, during the lifetime of all parties, to the parties in proportion to the net contributions by each to the sums on deposit, unless there is clear and convincing evidence of a different intent.” Our Supreme Court has held that OCGA § 7-1-812 (a)

creates a presumption that a party funding a joint account does not intend to make a gift of the funds of the account during her life, but that the presumption is subject to rebuttal by clear and convincing evidence of a contrary intent.

Caldwell v. Walraven, 268 Ga. 444, 448 (3) (490 SE2d 384) (1997) (footnote omitted). Whether there is a different or contrary intent is ordinarily a question of fact. Daniell v. Clein, 206 Ga. App. 377, 381 (1) (425 SE2d 344) (1992).

It is undisputed that all of the funds in the APCU account were contributed by Royce Leonard. But as shown, the net contributions of a party to a multiple party account include deposits made “for” another party. OCGA § 7-1-810 (6). Ronald argues that because his father’s contributions were made for the benefit of the marriage and his father’s will left everything to his wife, all of Royce’s deposits belonged to Leola at Royce’s death. As already shown, however, the MPA Act requires a determination of the ownership interests in the APCU account just prior to Royce’s death. And, “[a] right of survivor-ship arising from the express terms of the account or under this Code section,... cannot be changed by will.” OCGA § 7-1-813 (e). Thus, any assumption that Royce’s ownership interest in the APCU account just prior to his death became Leola’s upon his death because of his will is incorrect. Rather, because the net contributions of a party to a multiple party account include deposits made “for” another party, we must determine whether there is any evidence regarding who the deposits were for; we must also determine whether there is other evidence of intent regarding ownership of funds in the account. The record reveals an issue of fact on these questions.

First, Howard made a statement that the funds in the APCU account belonged to Leola when she said “the money is momma’s.” Second, at the August 29, 2012 probate court hearing, Ronald’s ex-wife testified that Royce Leonard had said several times, the last being in the fall of 2010, that the money in the APCU account “would be left to Marketta,” that the money in the safe deposit box would be left to Ronald, and that the money in a checking account would be left to David. See generally Caldwell, 268 Ga. at 449 (3), n. 18 (OCGA § 7-1-812 (a) “appears to contemplate that the non-depositing party could demonstrate that a gift was intended even though the depositor would still have the right to receive the funds deposited”). The APCU joint membership agreement itself, which is also evidence of the parties intent regarding ownership of the account, provides that “all sums now invested in deposits or hereafter paid in as payments on deposits, and all interest therefrom shall be owned by us jointly.” See Daniell, 206 Ga. App. at 381-382 (rules and regulations of bank providing that upon death of joint depositor funds on deposit would belong to the surviving party constituted evidence of deceased’s intent). Finally, Howard testified that other than signing the joint membership agreement, she did not recall the joint account until after her father died. And there is no evidence that she used the account for any purpose until after her father died, and then only for the two transactions described above. These facts could negate the idea that Howard was added to the account merely for the convenience of her parents. See generally Williamson v. Echols, 205 Ga. App. 453, 454 (1) (422 SE2d 329) (1992) (evidence that joint account was established only for the convenience of one party is evidence that the depositor did not intend to make a gift of deposited funds).

In short, there is some evidence that the parties to APCU joint account No. 6626 intended that the money in the APCU account would belong at least in part to Howard. We therefore hold that the trial court erred by concluding as a matter of law that all of the funds in account No. 6626 belonged to Leola.

3. For many of the same reasons and especially when the facts are construed in favor of Ronald for the purposes of Howard’s motion for summary judgment, we conclude that the trial court did not err by denying Howard’s motion for summary judgment.

Decided November 20, 2014

Reconsideration denied December 12, 2014

R. Leslie Waycaster, Jr., for appellant.

Joseph E. Willard, Jr., for appellee.

Judgment affirmed in part and reversed in part.

Barnes, P. J., and Boggs, J., concur.

       These provisions “are substantially identical to provisions of the Uniform Probate Code, as originally approved in 1969, governing multiple party accounts and non-probate transfers.” Caldwell v. Walraven, 268 Ga. 444, 449, n. 14 (490 SE2d 384) (1997), citing 8 ULA, Uniform Probate Code, Article VI, §§ 6-101 to 6-113, as originally approved.

       A “party means “a person who, by the terms of the account, has a present right, subject to request, to payment from a multiple-party account.” OCGA § 7-1-810 (7).

       A “joint account” means “an account payable on request to one or more of two or more parties, whether or not mention is made of any right of survivorship.” OCGA § 7-1-810 (4).

       OCGA § 7-1-813 is applicable to a claim by the estate of a deceased party, e.g., Royce’s estate, to a joint account against a co-party to the account because OCGA §§ 7-1-812 through 7-1-814, “concerning beneficial ownership as between parties ... or beneficiaries of multiple-party accounts, are relevant only to controversies between those persons and their creditors and other successors[.]” OCGA § 7-Í-811. See, e.g., Lamb v. Thalimer Enterprises, 193 Ga. App. 70, 71 (1) (386 SE2d912) (1989) (OCGA § 7-1-812 applicable to controversy between creditor of one joint-account party against other joint-account party); James v. Elder, 186 Ga. App. 810, 811 (368 SE2d570) (1988) (OCGA § 7-1-813 applicable to a suit between estate of deceased account party and account co-party), overruled on separate grounds, Mashburn v. Wright, 204 Ga. App. 718, 720 (420 SE2d 379) (1992).

       The “ ‘[n]et contribution’ of a party to a multiple-party account as of any given time means the sum of all deposits thereto made by or for him, less all withdrawals made by or for him which have not been paid to or applied to the use of any other party, plus a pro rata share of any interest or dividends included in the current balance.” OCGA § 7-1-810 (6) (emphasis supplied).

       The clear and convincing standard of OCGA § 7-1-812 (a) has been applied repeatedly to resolve disputes that arose when both co-parties to a joint account were living. See, e.g., Fluke v. Westerman, 271 Ga. App. 418, 423 (4) (609 SE2d 744) (2005) (suit between co-parties to account regarding whether one party intended a deposit as a gift); Parker, 242 Ga. App. at 627 (suit by guardian of person and property of incapacitated mother against daughters for converting CDs jointly owned by mother and daughters); Bradshaw v. McNeill, 228 Ga. App. 653 (492 SE2d 568) (1997) (suit by one niece against second niece who had power of attorney over living aunt’s affairs and who liquidated joint account held by aunt and first niece).


source: Caselaw Access Project

author: Branch, Judge.

license: Public Domain

text:
    A14A1373.
    SMITH v. WAL-MART STORES EAST, LP.
    (765 SE2d 518)
   Branch, Judge.

In November 2010, plaintiff Felicia Smith was showing a male customer some iPods in the Macon Wal-Mart where she was working when another man stole a number of the devices from the case Smith had left open. A few weeks later, Smith’s supervisors ushered her into a back office at the store, showed her a videotape of the incident, and accused her of acting in concert with the thieves. Smith denied these accusations. After Wal-Mart referred the matter to the Macon police, Smith voluntarily went to a precinct, where she was arrested on fourteen counts of fiduciary theft and one count of making a false statement. After the charges were dropped, Smith brought the instant action for false arrest and false imprisonment against Wal-Mart. On appeal from the trial court’s grant of summary judgment to Wal-Mart, Smith argues that genuine issues of material fact remain as to her claims. We agree as to her claim for false imprisonment arising from her arrest and therefore affirm in part and reverse in part.

To prevail at summaryjudgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.... [T]he burden on the moving party may be discharged by pointing out by reference to the affidavits, depositions and other documents in the record that there is an absence of evidence to support the nonmov-ing party’s case. If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but rather must point to specific evidence giving rise to a triable issue.

Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991) (citation omitted).

Viewed in Smith’s favor, the record shows that Smith was working on the early morning of November 19, 2010, when she unlocked an electronics case in order to show a man some of the iPods inside. During Smith’s conversation with him, the man moved back and forth in front of Smith, thereby blocking her view of a second man, who also moved toward and away from the case as well as from side to side so as to avoid being seen by Smith. While Smith was distracted by the first man, the second man removed a number of iPods from the case and walked away in the opposite direction from Smith. After the second man turned the corner at the end of the aisle, the first man told Smith that he needed to check his bank balance on an ATM, walked toward the front of the store, and left without further contact with Smith. Smith never realized that any iPods were missing. Both men were later apprehended and charged with the theft of the iPods.

A few weeks later, on the night of December 7, 2010, Smith was working when the manager asked her to come to a back office. Although Smith thought that she might be interviewed for a promotion she had applied for, the manager left her in the office with loss prevention officers Richard Vining and Vashali Patel. Smith later averred that Vining and Patel blocked the door of the office so that she could not leave. Smith testified at deposition, however, that Vining and Patel told Smith at or before the conclusion of the meeting that she was free to leave, never touched her, and never suggested that they were going to arrest her or have her arrested. When Vining asked Smith if she knew why she had been called in, Smith replied that she did not. Vining then told Smith that they had her “on camera letting some guys get some iPods” and showed her the videotape of the incident on the early morning of November 19. When Smith began to cry, Vining told her that she was “putting on an act” and that although he had believed her at first, he was now going to suspend her. Smith gave a statement denying any involvement in the theft and later testified that she did so in order to disprove the accusations against her. Vining then recalled the manager, who escorted Smith out of the store.

On December 15, 2010, Officer Spikes with the Macon Police Department called Smith and asked her to come to the precinct to give a statement on the iPod incident. Although Smith’s infant daughter had just been released from the hospital, Smith went to the precinct with the infant the same day. When Smith arrived, police offered to assist her in making “arrangements for somebody to come and get [her] daughter.” According to both Smith and Spikes, Spikes then called Patel. According to Smith, Spikes told Patel that Smith and her daughter were at the precinct, and asked, “What do you want us to do with her?” Spikes also asked Patel to allow Smith’s sister, who worked at the same Wal-Mart, to come to the precinct to pick up Smith’s daughter.

After Smith’s sister picked up Smith’s daughter, Spikes, Detective Johnson, and another police officer questioned Smith about the iPod incident and viewed the videotape with her. When Smith said that she had not seen the second man pictured in the videotape and denied any involvement in the thefts, Johnson told her that she was “fixing to go to jail, trying to protect somebody else.” When Smith continued to protest that she was innocent, she was handcuffed and charged with fourteen counts of fiduciary theft and one count of making a false statement. Johnson testified that he arrested Smith after conducting an “independent” investigation on the basis of evidence, including the videotape and Smith’s denials, that gave him probable cause to arrest her for both theft and making a false statement. Johnson also averred that no Wal-Mart employee had influenced his decision to arrest Smith.

Smith was then taken to Macon City Hall, where she signed a transcript of her statement to police. Smith was held in the city jail until later that evening, when her sister posted bond for her. After Smith retained counsel, she learned that the charges against her had been nolle prossed and that a third Wal-Mart loss prevention officer’s identification of a license plate had led to the arrest of two suspects in the case. Smith then brought this action against Wal-Mart for false arrest and false imprisonment.

In the course of discovery, the third Wal-Mart loss prevention officer, Jamarcus Williams, testified that although Vining and Patel had shown him the videotape and insisted that he must have seen that Smith was involved in the theft, Williams had replied that he “did not see anything on the video to make [him] think she was involved.” Vining and Patel then told Williams that notwithstanding Williams’s opinion, they “were going to call the police and have [Smith] arrested for theft because of what they saw on the video.” After police arrested the first man, Johnson told Williams that the man had admitted that he had not acted with help from anyone from Wal-Mart at the time of the theft.

After both parties moved for summary judgment, the trial court granted summary judgment to Wal-Mart on grounds including that (1) Smith was never arrested pursuant to a warrant, which defeated her false arrest claim; (2) Smith was never detained or imprisoned in the Wal-Mart office, which defeated her false imprisonment claim arising from that encounter; and (3) police were justified in arresting Smith at the Macon police department for theft and making a false statement. This appeal followed.

1. Smith first contends that her false arrest claim remains viable. We disagree.

OCGA § 51-7-1 provides that “[a]n arrest under process of law, without probable cause, when made maliciously, shall give a right of action to the party arrested.” As this Court has noted, an arrest “under process of law” is “an arrest made pursuant to a warrant,” whereas “[fjalse imprisonment is the unlawful detention of the person of another, for any length of time, whereby such person is deprived of his personal liberty.” Ferrell v. Mikula, 295 Ga. App. 326, 329 (2) (672 SE2d 7) (2008), citing OCGA §§ 51-7-1 and 51-7-20. The “key distinction” between false arrest and false imprisonment “is whether the person was detained using a warrant or not.” Id. Because it is undisputed that Smith was never arrested pursuant to a warrant, her false arrest claim lacks merit, and the trial court did not err when it granted summary judgment to Wal-Mart on that claim. Ferrell, 295 Ga. App. at 330 (2).

2. Smith contends that genuine questions of material fact remain concerning her false imprisonment claims arising from (a) her encounter with Vining and Patel in the Wal-Mart back office and (b) her warrantless arrest by Macon police. We agree with the second of these contentions.

(a) OCGA § 51-7-20 defines the intentional tort of false imprisonment as “the unlawful detention of the person of another, for any length of time, whereby such person is deprived of his personal liberty.” “The essential elements of the cause of action for false imprisonment are a detention of the person of another for any length of time, and the unlawfulness of that detention.” Fields v. Kroger Co., 202 Ga. App. 475 (414 SE2d 703) (1992) (citation omitted).

A detention need not consist of physical restraint, but may arise out of words, acts, gestures, or the like, which induce a reasonable apprehension that force will be used if plaintiff does not submit; and it is sufficient if they operate upon the will of the person threatened, and result in a reasonable fear of personal difficulty or personal injuries.

Id. at 475 (citations and punctuation omitted). “However, ‘there is no issue for the jury where there is no detention.’ ” Id. at 476, quoting Lord v. K-Mart Corp., 177 Ga. App. 651, 653 (1) (340 SE2d 225) (1986).

Even construed in favor of Smith, the evidence before us does not authorize a conclusion that she was “detained” in the Wal-Mart office on the night of December 7, 2010. Although Smith averred in an affidavit that she felt that she was not free to leave because her “path out of the office was blocked” by Vining and Patel, her own signed statement executed at Wal-Mart just after midnight stated that “[n]o threats and promises were made by anyone to get [her] to make [the] statement” and that she “ha[d] had complete freedom to leave the premises” throughout. Smith also testified at deposition that Vining and Patel told Smith at or before its conclusion that she was free to leave, never touched her, and never suggested that they were going to arrest her or have her arrested.

In considering a motion for summary judgment, all the evidence is normally construed in favor of the nonmoving party, but testimony by the nonmoving party which contradicts other testimony given by the nonmoving party will be construed against that party, unless a reasonable explanation for the contradiction is offered.

Hall v. Norfolk Southern R. Co., 258 Ga. App. 712, 715 (574 SE2d 902) (2002), citing Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 30 (1) (343 SE2d 680) (1986).

Smith has offered no explanation for the contradiction between her affidavit testimony that her path was blocked by Vining and Patel and her own signed statement and deposition testimony that she was free to leave throughout. See Hall, 258 Ga. App. at 715-716 (affirming grant of summary judgment when plaintiff failed to provide an explanation for the contradiction between his deposition and his affidavit testimony). Because we are thus obliged to ignore Smith’s affidavit testimony that Vining and Patel blocked her way out of the Wal-Mart office, we conclude as a matter of law that Smith was never “detained” at Wal-Mart for purposes of false imprisonment law. Crowe v. J. C. Penney, 177 Ga. App. 586, 588 (2) (340 SE2d 192) (1986) (where employee never requested that employer’s interview of her as to a theft be discontinued, and where she indicated that “she had not wanted to terminate the interview until the matter was cleared up,” summary judgment was properly granted to the employer on employee’s false imprisonment claim); Fields, 202 Ga. App. at 476 (customer failed to show that she was detained when employee asked her a question and “her response to that question,” including dumping the contents of her shoppingbag, “provoked no further action” by employee). Compare Hampton v. Norred & Assoc., 216 Ga. App. 367, 368-369 (1) (454 SE2d 222) (1995) (plaintiff raised a question of fact as to whether he was falsely imprisoned when evidence showed that an investigator “had handcuffs lying on a table, had a gun and microphone strapped to his leg, cursed at [plaintiff] and called him names, stomped on the floor, and kicked and beat the table,” and when two other agents prevented him from exiting by blocking his way and telling him that he “could not leave until he admitted how much money he had stolen”).

(b) We agree with Smith, however, that questions of fact remain as to whether Wal-Mart procured her false imprisonment when she was arrested by Detective Johnson.

[O]ne who causes or directs the arrest of another by an officer without a warrant may be held liable for false imprisonment, in the absence of justification, and the burden of proving that such imprisonment lies within an exception rests upon the person making the arrest or causing the imprisonment.

Scott Housing Systems v. Hickox, 174 Ga. App. 23, 24-25 (1) (329 SE2d 154) (1985) (citations and punctuation omitted). As we explained in Scott,

one who actively instigates or procures an arrest, without lawful process, is generally regarded as the principal for whom the officer acts, and he may be liable to respond in damages. But one who merely states to an officer what he knows of a supposed offense, even though he expresses the opinion that there is ground for the arrest, but without making a charge or requesting an arrest does not thereby make himself liable for false imprisonment. [I]t is not necessary that he direct the arrest in express terms. [Rather,] [i]t is sufficient that the person alleged to have caused the plaintiff’s arrest should by his conduct and acts have procured and directed the arrest.

Id. at 25 (1) (citations and punctuation omitted; emphasis supplied).

On the question whether an arrest thus procured is legally justified, OCGA § 17-4-20 (a) provides in relevant part:

An arrest for a crime may be made by a law enforcement officer ... (2) [w]ithout a warrant if (A) [t]he offense is committed in such officer’s presence or within such officer’s immediate knowledge; (B) [t]he offender is endeavoring to escape;... or (F) [f]or other cause there is likely to be failure of justice for want of a judicial officer to issue a warrant.

Each of the exceptions to the warrant requirement set out in OCGA § 17-4-20 (a) “presuppose the existence of sufficient probable cause to believe that a crime has been committed,” such that the statute “merely enumerates those . . . situations, in the nature of ‘exigent circumstances,’ in which a warrantless arrest may legally be made.” Collins v. Sadlo, 167 Ga. App. 317, 319 (306 SE2d 390) (1983) (citations, punctuation and emphasis omitted). As the Supreme Court of Georgia has noted, moreover, a warrantless arrest is made with probable cause and is therefore legal

if, at the moment the arrest is made, the facts and circumstances within the knowledge of the arresting officers and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the accused had committed or was committing an offense.

Durden v. State, 250 Ga. 325, 326 (1) (297 SE2d 237) (1982) (citation omitted).

Under the foregoing authorities, and given the undisputed facts that Smith was arrested without a warrant for theft and making a false statement, Smith may avoid summary judgment only if she shows on this appeal that issues of material fact remain as to (i) whether Wal-Mart procured her warrantless arrest; and (ii) whether that arrest was unlawful as not supported by exigent circumstances,

(i) On the question of whether Wal-Mart procured Smith’s arrest,

[t]he law draws a fine line of demarcation between cases where a party directly or indirectly urges a law enforcement official to begin criminal proceedings and cases where a party merely relays facts to an official who then makes an independent decision to arrest or prosecute. In the former case there is potential liability . . . ; in the latter case there is not. It is clear, though, that initiation of the criminal action need not be expressly directed by the party to be held liable. A distinction must be taken between actually instigating or procuring the institution of criminal proceedings and merely laying information before a law enforcement official without in any way attempting to influence his judgment.

Wolf Camera, Inc. v. Royter, 253 Ga. App. 254, 257-258 (1) (a) (558 SE2d 797) (2002) (citation and footnote omitted; emphasis supplied).

Here, Smith’s evidence showed that at or near the outset of Spikes’s interview of Smith, Spikes called Patel, one of the two loss prevention officers who had referred the matter to police, and asked her, “What do you want us to do with her?” Smith did not overhear Patel’s response to this question, and Patel also denied that the question had been asked. The evidence also showed that although Vining and Patel both averred that neither of them encouraged or directed Macon police to arrest Smith, they told Williams that they were going to obtain Smith’s arrest on the basis of the videotape. As the trial court properly acknowledged, there was thus a conflict in the evidence as to whether Wal-Mart directly or indirectly caused police to arrest Smith. In light of this conflict, we cannot say that the evidence showed as a matter of law that Wal-Mart did not procure Smith’s warrantless arrest or that police made a sufficiently independent investigation of the incident. See Scott, 174 Ga. App. at 25 (1) (evidence including that an employer told a terminated employee that the employer would “secure an arrest warrant” left a jury question as to whether the employer was “the cause of plaintiff’s arrest without a warrant and his subsequent unlawful detention”); Adams v. Carlisle, 278 Ga. App. 777, 787 (3) (a) (630 SE2d 529) (2006) (reversing grant of summary judgment to company on plaintiff’s false imprisonment and other claims when a question of fact remained as to its employees’ involvement in plaintiff’s arrest); Kroger Co. v. Briggs, 323 Ga. App. 256, 265-266 (746 SE2d 879) (2013) (Boggs, J., concurring specially) (question of fact was raised as to whether a police officer had conducted a sufficiently independent investigation when some evidence showed that plaintiff was arrested immediately after grocery store employees notified police of their suspicions that plaintiff had passed a counterfeit bill at the store).

(ii) In order for Smith to survive Wal-Mart’s motion for summary judgment on her false imprisonment claim, she must show not only that Wal-Mart procured her warrantless arrest, but also that the same arrest was unlawful in that it did not occur under one or more of the “exigent circumstances” outlined in OCGA § 17-4-20 (a) (2). Collins, 167 Ga. App. at 319.

The only exigent circumstance claimed to exist in this case is that specified in OCGA § 17-4-20 (a) (2) (A), which provides that a police officer may make a warrantless arrest if an offense “is committed in such officer’s presence or within such officer’s immediate knowledge.” Wal-Mart has consistently maintained that Johnson’s arrest of Smith without a warrant was lawful because Smith committed the crime of making a false statement in his presence. The trial court agreed with Wal-Mart. But Johnson would have been justified in arresting Smith without a warrant for either theft or making a false statement only if, in the course of reviewing the videotape and interviewing Smith, he obtained probable cause to believe that Smith was involved in the theft or that she was lying when she denied being so involved.

We review a trial court’s finding that probable cause existed for an arrest later alleged to have caused a tort under the following standard:

[W] ant of probable cause is a question for the jury, under the direction of the court. The question of probable cause is a mixed question of law and fact. Whether the circumstances alleged to show probable cause existed is a matter of fact, to be determined by the jury, but whether they amount to probable cause is a question of law for the court.

Melton v. LaCalamito, 158 Ga. App. 820, 823 (2) (b) (282 SE2d 393) (1981) (citation and punctuation omitted), quoting Hearn v. Batch-elor, 47 Ga. App. 213, 214 (170 SE 203) (1933). “[U]nless the facts regarding probable cause are undisputed, it is a question for the jury.” Wolf Camera, 253 Ga. App. at 259 (1) (b).

Here, the facts known to Johnson consisted of Smith’s, Vining’s, and Patel’s statements, all of which were based on their review of the videotape of the theft, and Johnson’s affidavit fails to specify any evidence other than the videotape as the basis for his decision to arrest Smith. We have reviewed the videotape, and it substantially supports Smith’s account that one man, significantly taller than she, engaged her for more than two minutes, blocking her view, while the second man made a number of unsuccessful approaches to the electronics case before removing the iPods from it and leaving the aisle in the opposite direction. See, e.g., Scott v. Harris, 550 U. S. 372, 380 (III) (A) (127 SCt 1769, 167 LE2d 686) (2007) (“[w]hen opposing parties tell two different stories, one of which is blatantly contradicted by” a videotape of the incident, “a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment”). As a result, the question of whether Smith actually saw the second man take the iPods out of the case, her failure to report which would raise a reasonable suspicion that she was working with the thieves, remains in dispute, thus “leaving to the jury the task of determining if the circumstances were such so as to create an honest and reasonable belief [in Johnson’s mind] that there was probable cause” for arresting Smith. Wolf Camera, 253 Ga. App. at 259 (1) (b) (affirming jury verdict when a question of fact had been raised as to whether plaintiff had been arrested without probable cause).

Decided November 21, 2014

Reconsideration denied December 12, 2014

Edwards & Youmas, Lonzy F. Edwards, Brenda C. Youmas, for appellant.

McLain & Merritt, Albert J. DeCusati, Ashley A. Bagiatis, Nicholas E. Deeb, for appellee.

Because Smith has shown that questions of fact remain as to her claim for false imprisonment arising from her arrest by Johnson, we reverse the trial court’s grant of summary judgment as to that claim.

Judgment affirmed in part and reversed in part.

Barnes, P. J., and Boggs, J., concur.

       These statements by Vining and Patel are admissible as admissions made “concerning a matter within the scope of [their] agency or employment” with Wal-Mart, made “during the existence of [that] relationship.” OCGA § 24-8-801 (d) (2) (D) (these and other admissions “shall not be excluded by the hearsay rule”).


author: Ellington, Presiding Judge.

text:
    A13A0444.
    WALKER v. THE STATE.
    (767 SE2d 46)
    Decided December 12, 2014.

      Angela M. Coggins, for appellant.

      George H. Hartwig III, District Attorney, Daniel P. Bibler, Daryl E. Manns, Assistant District Attorneys, for appellee.
   Ellington, Presiding Judge.

A Houston County jury found Ernest Walker guilty beyond a reasonable doubt of possession of cocaine with intent to distribute and obstruction of a law enforcement officer. Walker appealed to this court, and we reversed in Walker v. State, 323 Ga. App. 558 (747 SE2d 51) (2013). The Supreme Court of Georgia granted certiorari and reversed our decision. State v. Walker, 295 Ga. 888 (764 SE2d 804) (2014). Accordingly, our decision is vacated, the judgment of the Supreme Court is made the judgment of this Court, and the lower court’s judgment is affirmed.

Judgment affirmed.

Phipps, C. J., and Branch, J., concur.


author: DOYLE, Presiding Judge.

text:
    A13A1597.
    MYERS v. BOARD OF REGENTS OF THE UNIVERSITY SYSTEM OF GEORGIA.
    (767 SE2d 46)
    Decided December 12, 2014.

      McMahan Law Firm, Barton C. Solomon, Jay R. McCurdy, for appellant.

      Samuel S. Olens, Attorney General, Ronald S. Boyter, Jr., Sharon P. Horne, Assistant Attorneys General, for appellee.
   DOYLE, Presiding Judge.

In Myers v. Bd. of Regents of the Univ. System of Ga., this Court reversed the trial court’s dismissal of Kimberly A. Myers’s tort claim. The Supreme Court of Georgia reversed that opinion in Bd. of Regents of the Univ. System of Ga. v. Myers. We therefore vacate our earlier opinion, adopt the Supreme Court’s opinion as our own, and affirm the judgment of the trial court.

Judgment affirmed.

McFadden and Boggs, JJ., concur.

       324 Ga. App. 685 (751 SE2d 490) (2013).

       295 Ga. 843 (764 SE2d 543) (2014).


author: Ray, Judge. McFadden, Judge,

text:
    A14A0905.
    GOGGINS v. THE STATE.
    (767 SE2d 753)
   Ray, Judge.

Following a jury trial, Jesse Jerome Goggins was convicted of child molestation (OCGA § 16-6-4 (a) (1)). He appeals from his conviction and the denial of his motion for new trial, contending that the trial court erred (1) in sending certain evidence out with the jury, (2) by denying his motion for mistrial, and (3) by limiting the scope of evidence regarding his good character and reputation for trustworthiness with children. Goggins also contends that he had ineffective assistance of counsel. Finding no reversible error, we affirm.

On appeal from a criminal conviction, the defendant no longer enjoys the presumption of innocence, and we view the evidence in the light most favorable to support the jury’s verdict. Weeks v. State, 316 Ga. App. 448, 449 (729 SE2d 570) (2012). The evidence at trial showed that the victim’s mother was reading her daughter’s diary when she came upon an entry in which the 13-year-old victim, L. G., had written “I love my dad but only the way you should [love] a dad... he kissed me!!! and then pulled out his d***____” Goggins is L. G.’s father. When the mother confronted her daughter about what she had written in her diary, L. G. confirmed that Goggins had used his tongue to kiss her and had exposed his erect penis to her. The mother then reported the sexual abuse to the Richmond County Sheriff’s Department, and an investigation ensued, culminating in the arrest and indictment of Goggins on two counts of child molestation.

At trial, L. G. testified in detail concerning the sexual acts that formed the basis of the indictment. In addition to her initial outcry to her mother, L. G. also disclosed the sexual abuse to a forensic interviewer and to an investigator with the sheriff’s department, all of whom corroborated L. G.’s testimony. Goggins testified in his own defense, and five character witnesses testified on Goggins’ behalf. The jury ultimately convicted Goggins on Count 1 of the indictment, which charged him with the offense of child molestation for “exposing bis erect penis to [L. G.], with the intent to arouse [his] sexual desires[.]” Goggins was acquitted on the remaining count of child molestation.

1. Goggins contends that the trial court erred by allowing a portion of L. G.’s diary to go out with the jury in violation of the continuing witness rule and by failing to allow the jury to see other portions of the diary. We find no basis for reversal.

At trial, L. G.’s diary was tendered into evidence without objection. Many of L. G.’s diary entries described her sexual attraction to and encounters with various boys her own age. When it appeared during cross-examination of L. G. that defense counsel might delve into portions of the diary concerning L. G.’s sexual attraction and interest in boys, the trial court cautioned counsel that it was not going to allow any evidence that would violate the rape shield statute under OCGA § 24-4-412. Accordingly, when the jury retired for deliberations, the parties agreed that the diary should not go out with the jury. During its deliberations, however, the jury requested to see the entry from L. G.’s diary concerning Goggins’ sexual misconduct. When the trial court asked if there was any opposition to sending the jury a photocopy of the specific page of the diary which contained the entry at issue, Goggins’ trial counsel stated that the defense had no objection. Later, the jury asked to see the entire diary. After the trial court discussed the issue with both parties, Goggins’ counsel agreed with the trial court that the entire diary should not go out with the jury.

(a) Goggins first contends that the trial court committed plain legal error by allowing the single page containing the entry referencing Goggins’ sexual misconduct to go out with the jury in violation of the continuing witness rule. For the reasons that follow, we find no reversible error.

In Georgia the “continuing witness” objection is based on the notion that written testimony is heard by the jury when read from the witness stand just as oral testimony is heard when given from the witness stand. But, it is unfair and places undue emphasis on written testimony for the writing to go out with the jury to be read again during deliberations, while oral testimony is received but once.

(Citation and punctuation omitted.) Hinton v. State, 233 Ga. App. 213, 213 (1) (504 SE2d 49) (1998).

At trial, L. G. acknowledged that she wrote the entry in her diary regarding Goggins’ sexual acts and, when prompted by the State, she read the entry aloud for the jury. Pretermitting the issue of whether the trial court violated the continuing witness rule when it allowed this page of the diary to go out with the jury, we find that Goggins has failed to demonstrate that the alleged error likely affected the outcome of the trial.

As noted above, Goggins did not object to the single page containing the diary entry at issue being sent out to the jury during deliberations. Nevertheless, because the trial in this case occurred after January 1, 2013, we may conduct a plain error analysis to determine if a reversal is warranted. See Rembert v. State, 324 Ga. App. 146, 152 (2), n. 8 (749 SE2d 744) (2013) (“Georgia’s new Evidence Code, which applies to cases tried after January 1, 2013, allows a court to consider ‘plain errors affecting substantial rights although such errors were not brought to the attention of the court.’ OCGA § 24-1-103 (d).”). Accord Durham v. State, 292 Ga. 239, 240 (2) (734 SE2d 377) (2012).

Our Supreme Court has adopted the following standard regarding a plain error analysis:

First, there must be an error or defect — some sort of deviation from a legal rule — that has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the appellant. Second, the legal error must be clear or obvious, rather than subject to reasonable dispute. Third, the error must have affected the appellant’s substantial rights, which in the ordinary case means he must demonstrate that it affected the outcome of the trial court proceedings. Fourth and finally, if the above three prongs are satisfied, the appellate court has the discretion to remedy the error — discretion which ought to be exercised only if the error seriously affects the fairness, integrity or public reputation of judicial proceedings.

(Citation and punctuation omitted; emphasis in original.) State v. Kelly, 290 Ga. 29, 33 (2) (a) (718 SE2d 232) (2011).

Prior to the effective date of OCGA § 24-1-103 (d), which allows appellate courts to conduct a “plain error” analysis to evidentiary matters, we had consistently held that a judgment need not be reversed due to a violation of the continuing witness rule unless the error is harmful. See Kent v. State, 245 Ga. App. 531, 533 (3) (538 SE2d 185) (2000) (allowing victim’s written statement to go out with jury violated the continuing witness rule, but the error was harmless since the evidence contained therein was brought out during trial and evidence of guilt was overwhelming); Hinton, supra at 214 (1) (allowing portion of the trial transcript reflecting a particular statement made by the defendant to go out with the jury violated the continuing witness rule, but the error was harmless since the defendant’s statement had been repeated several times throughout the trial). Accord Roberts v. State, 282 Ga. 548, 552-553 (10) (651 SE2d 689) (2007) (allowing portion of a document examiner’s report which stated conclusory opinions consistent with his trial testimony to go out with the jury violated the continuing witness rule, but the error was harmless because the report was brief and less detailed than the witness’s oral testimony).

However, unlike the harmless-error analysis utilized in the above cases where the appellee had the burden of showing that the error did not likely affect the outcome below, a plain error analysis requires the appellant to make an affirmative showing that the error probably did affect the outcome of the trial. See Wagner v. State, 311 Ga. App. 589, 594, n. 3 (716 SE2d 633) (2011) (Blackwell, J., concurring specially). “[T]he hurdle to establishing plain error is high, . . . and . . . the failure to specifically articulate how the alleged error satisfies this high standard increases the likelihood that... claims in this regard will be rejected.” Kelly, supra at 32 (1), n. 2.

Although Goggins points out that the page of the diary sent out to the jury “contained some of the very same allegations that [L. G.] had testified to in her testimony,” and that “the one page of the diary set[ ] forth what proved to be the condemning allegations about Mr. Goggins’ alleged improper actions that [L. G.] had testified to in her direct examination[,]” Goggins has failed to take into account the testimony elicited from all of the other witnesses who corroborated L. G.’s trial testimony, as well as the statements that L. G. made in the video recording of her forensic interview that was played for the jury. Furthermore, the sexual allegations in L. G.’s diary entry were contained in one brief sentence, and the allegations within that sentence were far less detailed than those elicited during L. G.’s trial testimony. Therefore, we find that Goggins has failed to adequately demonstrate that the error likely affected the outcome of the trial.

(b) Goggins also takes issue with the fact that the trial court did not send the entire diary out with the jury even though the diary was admitted into evidence without objection. However, as the parties agreed that the diary would not go out with the jury, the trial court did not violate any legal rule in this regard. Consequently, Goggins has not met the first, second, and third prongs of the plain error analysis set forth in Kelly, supra at 33 (2) (a).

2. Goggins contends that the trial court erred by denying his motion for mistrial when the State referred to a newly discovered sexual allegation against Goggins during its opening statements to the jury. Specifically, Goggins argues that the State failed to provide this information in its initial response to discovery, and that the additional allegation was highly prejudicial and outside the scope of the indictment. We find that this enumeration provides no basis for reversal.

The record shows that approximately five days prior to trial, the prosecutor discovered additional information about the incident that comprised Count 1 of the indictment. Specifically, in addition to exposing his erect penis to L. G., Goggins had allegedly placed his penis in her mouth. The prosecutor immediately disclosed this additional allegation to Goggins’ trial counsel. Instead of seeking a continuance upon learning of the newly discovered information, Goggins’ trial counsel continued to prepare for trial and then later moved for a mistrial when the prosecutor referred to the additional allegation during opening statements.

“A motion for mistrial is committed to the discretion of the trial court, and ordinarily, the denial of such a motion amounts to an abuse of discretion only when it is apparent that a mistrial is essential to the preservation of the right to a fair trial.” (Citation and punctuation omitted.) Moore v. State, 319 Ga. App. 766, 770 (4) (738 SE2d 348) (2013). In denying the motion for mistrial, the trial court found that it was undisputed that Goggins’ trial counsel was immediately notified of the newly discovered allegation several days before the trial, and that the newly discovered evidence would be admissible if it were shown to be part of the res gestae of the crime for which he was charged.

OCGA § 17-16-4 (c) provides that a party who discovers additional evidence previously requested or ordered which is subject to reciprocal discovery must promptly notify the other party of the existence of the additional evidence. Here, the record shows that the State immediately notified defense counsel of the additional allegation approximately five days before trial, and defense counsel had an opportunity to investigate the issue and/or request a continuance prior to trial. To the extent that Goggins challenges the admissibility of the additional allegation based on the timeliness of the State’s disclosure, we find that this argument lacks merit. See generally Mallory v. State, 306 Ga. App. 684, 685-688 (1) (703 SE2d 120) (2010) (State’s belated production of evidence after the commencement of trial did not affect its admissibility, where State disclosed the evidence as soon as it was discovered and defendant’s trial counsel was afforded opportunity to question the propounding witness before he testified at trial, which was apparently sufficient since counsel did not request a continuance).

With regard to Goggins’ argument that the additional allegation was highly prejudicial and outside the scope of the indictment, it is well settled that “[ejvidence of another and distinct crime is admissible if it was committed as a part of the same transaction and formed a part of the res gestae.” (Citation and punctuation omitted.) Prather v. State, 279 Ga. App. 552, 553 (631 SE2d 758) (2006) (Evidence of defendant’s battery of the child victim’s grandmother that occurred shortly after the defendant’s act of child molestation was admissible as part of the res gestae.). Furthermore, “the [S]tate is entitled to present evidence of the entire res gestae of the crime. Even though a defendant is not charged with every crime committed during a criminal transaction, every aspect of it relevant to the crime charged may be presented at trial.” (Citation and punctuation omitted.) Id. Here, L. G. testified that Goggins had her perform oral sex on him during the incident when he exposed his erect penis to her. Accordingly, the evidence of the oral sex was admissible as part of the res gestae of the crime for which Goggins was charged, despite the fact that he was not charged with the additional crime in the indictment.

For the above reasons, the trial court did not abuse its discretion in denying the motion for mistrial.

3. Goggins contends that the trial court erred when it limited the scope of evidence regarding his good character to testimony of opinion or reputation as to Goggins’ general character traits, and by refusing to allow his witnesses to testify as to specific instances of his good conduct. We find this argument to be unpersuasive.

OCGA § 24-4-405 provides, in pertinent part, as follows:

(a) In all proceedings in which evidence of character or a trait of character of a person is admissible, proof shall be made by testimony as to reputation or by testimony in the form of an opinion.
(b) In proceedings in which character or a trait of character of a person is an essential element of a charge, claim, or defense or when an accused testifies to his or her own character, proof may also be made of specific instances of that person’s conduct.

Therefore, as a general proposition, on direct examination of a defendant’s character witnesses, defense counsel may not go into specific instances of conduct. But where, as here, the defendant testifies as to his good character and such character is an essential element of his defense, both the defendant and his witnesses are permitted to testify on direct examination as to specific instances of the defendant’s conduct pursuant to OCGA § 24-4-405 (b).

Although the trial court appeared to rule that Goggins’ character witnesses could not testify as to specific instances of Goggins’ conduct on direct examination, the record shows that the witnesses were nevertheless able to testify as to certain instances of Goggins’ conduct as evidence of his good character. For example, one witness testified that he and Goggins had participated in “several social action projects together, fund raisers, and community events [.]” This witness further described Goggins as “the father of the year,” and he made a reference to “all the things he was doing for the kids.” He also pointed out that Goggins was a highly respected “provost marshal,” and that he and Goggins “would pray together.” Another witness recalled occasions when Goggins went shopping with L. G. to buy her clothes. A third witness testified that he and Goggins were “distinguished military cadets” who were selected to attend airborne school together. This witness further testified that he brought his own child to Goggins’ house on several occasions and that he had left his child in Goggins’ care unsupervised. The witness testified further that his daughter is “the most valuable thing in the world” to him and that he “[would not] have any problem at all leaving her with Jesse Goggins right now.” A fourth witness testified that he and his family often visited with Goggins, and that on several occasions he personally observed Gog-gins interact with his children just as a father should.

As noted above, Goggins was able to present a variety of evidence regarding his good character, including specific instances of conduct. Furthermore, Goggins himself testified as to his extensive work history, in which he held significant leadership positions in the military and ultimately attained the rank of lieutenant colonel. Goggins further testified that, for a period of time, he was the primary caregiver for his children, taking them to school, assisting them with all their homework, cooking their meals, and doing everything else that needed to be done around the house.

In support of his motion for new trial, Goggins submitted affidavits from three of the character witnesses who testified at trial. In each of these affidavits, the respective affiant failed to identify any specific instance of Goggins’ conduct that he was unable to testify to. Furthermore, at the hearing on the motion for new trial, Goggins failed to make a proffer as to what specific instances of conduct that the witnesses could have testified to that were allegedly excluded from the evidence. Because Goggins did not perfect the record with a sufficient proffer to show the existence of specific instances of conduct that were excluded from the evidence, we cannot reach the merits of his claim regarding the exclusion of such testimony. See Graf v. State, 327 Ga. App. 598, 602-603 (3) (760 SE2d 613) (2014); Gawlak v. State, 310 Ga. App. 757, 757-758 (1) (714 SE2d 354) (2011); French v. State, 288 Ga. App. 775, 777 (3) (655 SE2d 224) (2007).

To the extent that Goggins argues that the trial court restricted his character witnesses’ ability to testify as to his character trait of moral behavior and trustworthiness with children, this argument is belied by the record. One witness testified that he is comfortable leaving his own child with Goggins. Another witness testified that Goggins was highly recognized and reputable as a father, describing him as “the father of the year.” A third witness testified that he had observed Goggins interact with his children on several occasions and that Goggins conducted himself just as a model father would. Based on this collective testimony, any additional testimony regarding Goggins’ morality and trustworthiness with children would have been cumulative. Accordingly, we find no reversible error.

4. In his final enumeration of error, Goggins contends that he had ineffective assistance of counsel. As Goggins attacks his trial counsel’s performance for a number of reasons, we shall address each in turn.

To prevail on an ineffective assistance of counsel claim, a criminal defendant must show that his counsel’s performance was deficient and that the deficient performance so prejudiced him that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different. Strickland v. Washington, 466 U. S. 668, 694 (III) (B) (104 SCt 2052, 80 LE2d 674) (1984). “The likelihood of a different result must be substantial, not just conceivable.” (Citation omitted.) Hill v. State, 291 Ga. 160, 164 (4) (728 SE2d 225) (2012). We are not required to address both the deficient performance and prejudice prongs of the test if the defendant has made an insufficient showing on either one of them, and “a court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.” Strickland, supra at 697 (IV). Furthermore, there is a strong presumption that counsel’s conduct falls within the range of reasonable professional judgment, id. at 689 (III) (A), and in challenging counsel’s strategic decisions, a defendant must show “that no competent attorney, under similar circumstances, would have made [the same decision].” (Citation and punctuation omitted.) Davis v. State, 290 Ga. 584, 585-586 (2) (723 SE2d 431) (2012). When a trial court determines that a defendant did not receive ineffective assistance, we will affirm that decision on appeal unless it is clearly erroneous, Muldrow v. State, 322 Ga. App. 190, 193 (2) (b) (744 SE2d 413) (2013), “but we independently apply the legal principles to the facts.” (Citation omitted.) Hill, supra at 164 (4).

(a) Goggins contends that his trial counsel was ineffective in handling the diary. Goggins’ argument on this issue is two-fold.

(i) First, he argues that his counsel performed deficiently when he allowed the single page of the diary containing the entry which referenced Goggins’ sexual misconduct to go out with the jury. Based on our holding in Division 1 (a), we find that the error did not likely affect the outcome of the trial. See Roberts, supra at 533 (10); Kent, supra at 533 (3); Hinton, supra at 214 (1). Accordingly, Goggins has failed to establish prejudice with regard to this issue.

(ii) Second, he argues that his trial counsel compounded the foregoing error by failing to insist that the entire diary go out with the jury. He contends that other portions of the diary contained information concerning the animosity that the victim’s mother had toward Goggins after their divorce, as well as the feelings that L. G. had for both of her parents. We find this argument unpersuasive.

Specifically, Goggins refers to portions of the diary where L. G. wrote that her mother had told her that her father had a child with another woman, that her father was using her to obtain more money from her mother, that her father never paid child support, that her father had been sued for $20,000, and that her father had failed to pay for her sister’s tuition. Goggins contends that such information was critical to demonstrate the context in which L. G.’s sexual allegations were made and that it raised the possibility that her allegations against Goggins were false.

However, the testimony at trial showed that L. G. loved her father tremendously and that she was angry with her mother because of the divorce. L. G. testified that she fought with her mother a lot, and she acknowledged that she had written in her diary that her mother is “a liar.” The mother also acknowledged that L. G. would often write “I hate my mom” in her diary. At the hearing on the motion for new trial, Goggins’ trial counsel testified that he and Goggins had reviewed the diary prior to trial and that the diary had no bearing on L. G.’s feelings toward Goggins except for the single page containing the sexual allegations. Trial counsel further testified that most of the diary dealt with L. G.’s feelings toward her mother.

OCGA § 24-6-622 provides: “The state of a witness’s feelings towards the parties and the witness’s relationship to the parties may always be proved for the consideration of the jury.” Here, however, the evidence of L. G.’s feelings toward her parents showed that L. G. had animosity toward her mother, rather than Goggins. Furthermore, the diary entries which referenced the allegations that Goggins had fathered a child out of wedlock and failed to satisfy his financial obligations regarding his children would likely have undermined Goggins’ good character defense. Accordingly, Goggins has failed to establish that he was prejudiced by trial counsel’s failure to insist that the entire diary go out with the jury.

(b) Goggins contends that his trial counsel was ineffective in failing to present expert testimony from a psychologist to attack the credibility of L. G. We find this argument to be unpersuasive.

At the hearing on the motion for new trial, Goggins presented the testimony of an expert in psychology who opined that L. G. may have received some secondary gain by disclosing the sexual abuse allegations, i.e. — to gain acceptance from her mother and to reduce the tensions between her and her mother. However, this theory fails to take into account the fact that L. G.’s allegations were kept secret in her diary until her mother discovered them and that L. G. was later reluctant to discuss the allegations with her mother.

Furthermore, Goggins and his trial counsel discussed the issue of whether to hire a psychologist, and they decided that there were other matters that were more critical to the defense — particularly, the exclusion of similar transaction evidence involving allegations that Goggins had sexually abused his other daughter on two separate occasions. We have held that

[decisions regarding which witnesses to call and all other tactical and strategic decisions are the exclusive province of the lawyer after consultation with the client. And decisions regarding matters of trial strategy, whether wise or unwise, do not constitute ineffective assistance of counsel.

(Citation and punctuation omitted.) Davis v. State, 326 Ga. App. 778, 781 (2) (a) (757 SE2d 443) (2014).

For the above reasons, Goggins has failed to carry his burden of showing ineffective assistance of counsel on this basis.

(c) Goggins contends that his trial counsel was ineffective for failing to request a continuance after the State notified him that L. G. had made an additional allegation that Goggins had placed his penis in her mouth. We find this argument to be unavailing.

At the hearing on the motion for new trial, Goggins’ trial counsel testified that he and Goggins discussed the issue of whether to request a continuance, and trial counsel advised Goggins that a continuance would give the State an opportunity to re-indict him for aggravated child molestation, a charge which carries a potential life sentence. Goggins and his trial counsel also discussed the effect a continuance may have had on the availability of his witnesses, and there was also a concern that an unfavorable witness who had initially indicated that she would not testify at trial might change her mind and testify if the trial was delayed. Ultimately, Goggins told his trial counsel that he did not want to delay the trial. After considering these factors, Goggins’ trial counsel decided not to request a continuance. The record also shows that Goggins’ trial counsel used L. G.’s late disclosure of the oral sex to attack her credibility at trial.

As trial counsel’s decision to forego a continuance was based on reasonable tactics and strategy after consultation with Goggins, see Davis, supra, 326 Ga. App. at 781 (2) (a), we find that trial counsel’s decision does not constitute ineffective assistance of counsel.

(d) Goggins contends that his trial counsel was ineffective in failing to cross-examine L. G. or her mother regarding the full nature of the relationship between them, as well as the relationship between Goggins and the mother. Goggins has failed to provide cites to the record or any citations of authority to support this argument in violation of Court of Appeals Rule 25 (c) (2). Nevertheless, the record shows that trial counsel elicited testimony during his cross-examination of L. G. to show that she had a strained relationship with her mother.

The scope of cross-examination is grounded in trial tactics and strategy. Trial tactics and strategy, however mistaken they may appear with hindsight, are almost never adequate grounds for finding trial counsel ineffective unless they are so patently unreasonable that no competent attorney would have chosen them.

(Citation omitted.) Sims v. State, 317 Ga. App. 420, 424 (2) (731 SE2d 105) (2012). For the above reasons, Goggins has failed to establish ineffective assistance of counsel with regard to this issue.

(e) Goggins contends that his trial counsel was ineffective in failing to provide him with an opportunity to deny the allegation of oral sex. We disagree. The record shows that, during cross-examination, the State asked Goggins the following question: “Did you... ever during that period of time ... inappropriately touch, kiss, or do anything with [L. G.]?” Goggins indicated that he had not done anything at all. Accordingly, Goggins’ argument with regard to this issue is without merit.

(f) Goggins contends that his trial counsel was ineffective in failing to object to the mother’s testimony that she had asked L. G. if Goggins had been drinking at the time of the sexual abuse. We find this argument to be unavailing.

The record shows that the testimony at issue was limited to the witness’s statement that she had asked her daughter whether Gog-gins had been drinking. The State immediately cautioned the mother and did not allow her to delve into this issue any further. Furthermore, Goggins later put his character in issue at trial, thereby opening the door for the State to question Goggins about his consumption of alcohol while in the presence of his children. Under these circumstances, Goggins has failed to establish that he was prejudiced by his trial counsel’s failure to object to the mother’s testimony.

(g) Goggins contends that his trial counsel was ineffective in failing to object to the lead investigator’s testimony at trial that suggested that Goggins had been “grooming” L. G. in order to facilitate the sexual abuse. Specifically, Goggins argues that no foundation had been laid to show that the investigator was qualified to give his opinion about this type of activity as it relates to children. We find this argument to be unpersuasive.

In our view, knowledge of the types of behavior that a person would use to groom a child for the purpose of sexual abuse is not necessarily within the scope of the ordinary layman’s knowledge and experience. Accordingly, expert testimony on this issue would be proper. However, we have consistently held that a police officer may give opinion testimony regarding his observations if an adequate foundation is laid with respect to his experience and training, even if he is not formally tendered as an expert. See Yates v. State, 305 Ga. App. 100, 101 (699 SE2d 43) (2010) (police officer’s opinion testimony that the amount of cocaine found on the defendant was consistent with an intent to distribute was admissible, even though the officer was not formally tendered as an expert, because an adequate foundation was laid with respect to his experience and training in narcotics enforcement); Alexander v. State, 264 Ga. App. 34, 36-37 (2) (589 SE2d 857) (2003) (police officer was not formally tendered as an expert, but his opinion testimony that the amount of cocaine found on defendant was consistent with an intent to distribute was admissible because a proper foundation had been laid regarding the officer’s experience in drug enforcement and knowledge of the customary methods employed in the use and sale of cocaine). See also Hammett v. State, 246 Ga. App. 287, 290 (4) (539 SE2d 193) (2000) (in a prosecution for theft by taking, the trial court tacitly or impliedly accepted a witness as an expert regarding the value of the stolen property, even though he was not formally tendered as an expert, because an adequate foundation had been laid as to his experience); Lindley v. State, 225 Ga. App. 338, 340-341 (1) (484 SE2d 33) (1997) (trial court implicitly accepted police officer as an expert, even though he was not formally tendered as an expert, because the officer testified as to his experience in drug investigations).

Here, the investigator testified that during the past six years he had investigated over 200 child molestation cases, and that he has had the opportunity to speak with a multitude of individuals who had confessed to sexually abusing children. He further testified that, based on his knowledge and experience, many of these individuals would employ certain techniques to “groom” their child victims, such as purchasing intimate items of clothing for the child or kissing the child intimately to see what his or her response would be. “[0]nce a proper foundation is laid, an officer may testify about elements of a crime with which he is familiar based upon his experience[.]” (Citation omitted.) McDaniel v. State, 263 Ga. App. 625, 629 (2) (588 SE2d 812) (2003).

As an adequate foundation was laid to allow the investigator to testify as to the grooming behavior of child sex abusers and to offer his opinion as to whether Goggins had exhibited such behavior in this case, we find that any objection to the investigator’s testimony would have been futile. A trial counsel’s “[f]ailure to make a meritless or futile objection or motion cannot be evidence of ineffective assistance.” (Punctuation and footnote omitted.) Burke v. State, 316 Ga. App. 386, 389 (1) (a) (729 SE2d 531) (2012). Accordingly, Goggins’ ineffective assistance claim with regard to this issue fails.

(h) Goggins contends that his trial counsel was ineffective in failing to develop the full extent of the evidence of Goggins’ good character at trial. Specifically, he argues that all of the character witnesses’ testimony was limited to Goggins’ general reputation, and that trial counsel failed to elicit the witnesses’ opinions regarding Goggins’ morality and trustworthiness with children. We disagree.

In support of his argument, Goggins relies upon affidavits from three of the character witnesses who testified at trial. In each of these affidavits, the respective affiant stated that, had he been asked, he would have testified at trial that Goggins is trustworthy with children and that he would have no reservation about leaving his own child with Goggins unsupervised. However, the trial transcript shows that Goggins’ trial counsel was able to elicit testimony from some of the character witnesses to show such evidence. One witness testified that he is comfortable leaving his own child with Goggins. Another witness testified that Goggins was highly recognized and reputable as a father, describing him as “the father of the year.” A third witness testified that he had observed Goggins interact with his children on several occasions and that Goggins conducted himself just as a normal father would. Although trial counsel may have been able to expand upon such evidence, any additional testimony regarding Goggins’ morality and trustworthiness with children would have been cumulative. Accordingly, we find that Goggins has failed to establish ineffective assistance of counsel in this regard.

(i) Lastly, Goggins contends that trial counsel was ineffective in failing to request that the jury be polled after the verdict. We disagree.

Although a criminal defendant has an absolute right to have the jury polled upon a timely request, Rinker v. State, 228 Ga. App. 767, 767 (1) (492 SE2d 746) (1997), there is nothing in the record to indicate that Goggins informed his trial counsel that he wanted to have the jury polled after the verdict. Furthermore, we have consistently held that a trial counsel’s mere failure to have the jury polled cannot serve as a basis for an ineffective assistance claim. See Ellison v. State, 296 Ga. App. 752, 756-757 (2) (e) (675 SE2d 613) (2009); Hodge v. State, 287 Ga. App. 750, 753 (2) (a) (652 SE2d 634) (2007); Wynn v. State, 228 Ga. App. 124, 129 (3) (d) (491 SE2d 149) (1997). Accordingly, Goggins’ ineffective assistance claim with regard to this issue fails.

Decided October 8, 2014

Reconsideration denied December 15, 2014

Hull Barrett, Neal W. Dickert, Brooks K. Hudson, for appellant.

Ashley Wright, District Attorney, Joshua B. Smith, Madonna M. Little, Assistant District Attorneys, for appellee.

Judgment affirmed.

Andrews, P. J., concurs. McFadden, J., concurs fully in Divisions 1 (b), 2, 3, and 4 and specially in Division 1 (a).

McFadden, Judge,

concurring specially.

Although I agree with the outcome in this case, I do not agree with all that is said. I specially concur in Division 1 (a) of the majority opinion to the extent that it expresses doubt about whether the trial court violated the continuing witness rule when it allowed a page of L. G.’s diary to go out with the jury. I concur fully in the remainder of the opinion.

The page in question, which L. G. read aloud to the jury, amounted to written testimony about Goggins’s sexual acts. Therefore, “it [was] unfair and place [d] undue emphasis on [that] written testimony for the writing to go out with the jury to be read again during deliberations.” Hinton v. State, 233 Ga. App. 213, 213 (1) (504 SE2d 49) (1998) (citations omitted).“[T]he jury heard the testimony from the witness stand but [it] should not [have been] unduly emphasized by giving the jury an opportunity to read [it] one or more times after hearing [it] read in the courtroom, whereas oral testimony from the stand [was] heard only once.” Thomason v. Genuine Parts Co., 156 Ga. App. 599, 601 (275 SE2d 159) (1980). Cf. Young v. State, 292 Ga. 443, 446 (3) (b) (738 SE2d 575) (2013) (admission of letter that neither was “the reduction to writing of an oral statement, nor was it a written statement provided in lieu of testimony” did not violate the continuing witness rule).

       A video recording of L. G.’s forensic interview was played for the jury, wherein she disclosed Goggins’ acts of sexual abuse.

       Because we find that Goggins has not met the third prong of the plain error analysis, we need not reach the issue of whether trial counsel’s statement that the defense had no objection to the single page containing the diary entry at issue being sent out to the jury amounts to an affirmative waiver. See Kelly, supra at 34 (2) (b), n. 5.

       We noted that OCGA § 24-1-106 provides: “When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which, in fairness, should he considered contemporaneously with the writing or recorded statement.” (Emphasis supplied.)

       In his capacity as provost marshal, Goggins was in charge of law enforcement operations for 11 military hospitals.

       Goggins has failed to provide citations to the record regarding any other portions of the diary that would have been relevant or beneficial to his defense.

       The term “grooming,” as used in this context, refers to a person’s actions which are designed to de-sensitize sexual activity and to establish a sexual relationship with a child — i.e., actions such as commenting on the child’s appearance, giving the child intimate gifts, exposing the child to pornography, kissing or touching the child intimately, etc.