text:
    A15A0799.
    FOREST COVE APARTMENTS, LLC et al. v. WILSON.
    (776 S.E.2d 664)
   Barnes, Presiding Judge.

Following the grant of their application for interlocutory appeal, Forest Cove Apartments, LLC and American Apartment Management Company (collectively, the “defendants”) appeal the trial court’s order denying their motion for summary judgment in this premises liability action brought by Teresa R. Wilson after she fell from an upstairs bathroom while performing independent contractor work for the defendants at an apartment complex. Because the uncontroverted evidence of record shows that Wilson had equal knowledge of the dangerous condition that caused her fall, we must reverse the trial court’s denial of summary judgment to the defendants.

On appeal from the denial of summary judgment[,] the appellate court is to conduct a de novo review of the evidence to determine whether there exists 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.

(Citation and punctuation omitted.) Hood v. Todd, 287 Ga. 164, 165 (695 SE2d 31) (2010). See OCGA § 9-11-56 (c).

So viewed, the evidence shows that the Forest Cove Apartments (“Forest Cove”) is an apartment complex located in Fulton County, Georgia, that was built in the 1960s. In 2011, the managing agent for Forest Cove was the American Apartment Management Company.

That same year, Teresa Wilson owned and operated L&W Cleaning Services (“L&W’), a sole proprietorship that performed cleaning and repair services for apartment complexes, including Forest Cove. Among other things, L&W performed subfloor repairs of apartment units at Forest Cove. Specifically, between January and October of 2011, Wilson and her crew repaired the subfloors of 26 Forest Cove apartments. Three of those repairs required Wilson and her crew to install new joist supports underneath the subfloors.

Apartment units at Forest Cove are federally subsidized by the United States Department of Housing and Urban Development (“HUD”). On November 8, 2011, Wilson received a call from the property manager at Forest Cove informing her that the tenant in one of the apartment units had filed a HUD complaint regarding the condition of the unit. The tenant complained to HUD that the apartment unit had a mold problem that was making her children sick, as well as a water leak and an issue with the bathtub. The property manager requested that Wilson look at the apartment unit.

When Wilson visited the apartment unit later that day with the property manager and other apartment personnel, the unit “[reeked] of mold when you walked in there.” Wilson walked inside the upstairs bathroom, where she noticed that a 7-8 inch hole had rusted out of the bathtub and that the floor was sloping in one direction and felt “soft” to her. Wilson also walked into the downstairs kitchen, which was located underneath the upstairs bathroom, and noticed that the kitchen wall was swollen and “moist to the touch.” There also appeared to be moisture on the kitchen ceiling.

After walking through the apartment, Wilson provided an estimate for L&W to replace the rusted bathtub in the upstairs bathroom, and the defendants accepted the proposal. Additionally, because the bathroom floor was sloping and felt soft, the defendants asked Wilson to look at the subfloor underneath the linoleum. If the subfloor was damaged, they asked Wilson to replace it. Wilson agreed to replace the subfloor if the apartment complex had the necessary materials.

The following day, Wilson’s crew, under her supervision, removed the wall tile, the rusted bathtub, and the linoleum floor in the upstairs bathroom. The crew also removed the bathroom subfloor after observing that it was black and water damaged. As a result of the crew’s work, the bathroom was stripped to its floor joists.

As her crew worked on the upstairs bathroom, Wilson walked downstairs and spoke with the tenant, who showed her rotten wood, water damage, and mold in the kitchen cabinets and in a kitchen closet. The tenant told Wilson that the moisture and mold problem had been ongoing for two years. Wilson saw black mold in the kitchen closet that was the “worst [she] had ever seen.”

After speaking with the tenant, Wilson returned to the upstairs bathroom, where she saw what appeared to be black mold all the way down the back side of the bathroom wall that her crew had exposed by removing the wall tile. Wilson also observed that the exposed floor joists, which had been hidden underneath the linoleum floor and subfloor that her crew had removed, were discolored from apparent water damage and looked “separated,” “weathered,” and “crumbly.” According to Wilson, it was “basically rotted wood” underneath where the subfloor had been located. Wilson further noticed that someone had “Mickey Moused” a previous joist repair by using undersized lumber for some of the joists.

After observing the undersized and water-damaged floor joists, Wilson called the property manager to inform her that the condition of the bathroom was “horrendous” and involved “[a] whole different animal than [what Wilson] had expected.” Wilson told the property manager, “[Y]ou guys need to come look at this because this is pretty much beyond the scope of what we were asked to do.” The property manager responded by asking Wilson to “take some pictures, and send it to us, and let us know how much you will charge us to repair it.” Wilson inquired if the apartment complex had the materials for repairing the floor joists, and the property manager answered in the affirmative and told Wilson to contact the apartment maintenance manager to get the materials for the repair.

Wilson was standing in the bathroom during her phone call with the property manager. When Wilson ended the call, she leaned over to photograph the wall behind the sink with her smartphone. She did not look at the joist she was standing on, which then “gave way,” and she fell into the downstairs kitchen onto an open hot oven, sustaining multiple injuries.

Wilson sued the defendants for the injuries she sustained in her fall from the upstairs bathroom. Following discovery, the defendants moved for summary judgment, contending, among other things, that the uncontroverted evidence showed that Wilson was an independent contractor hired to inspect and repair the bathroom and thus was in the best position to determine any existing hazard in the floor joist support system, and that Wilson had equal knowledge of the hazard. Wilson opposed the motion, arguing that there were issues of fact regarding whether the defendants should have warned her of the hazard posed by the floor joist support system and whether the defendant had superior knowledge of the hazard. The trial court denied the defendants’ motion for summary judgment, but granted a certificate of immediate review. The defendants then filed an application for interlocutory appeal, which this Court granted. This appeal followed.

We conclude that the trial court erred in denying summary judgment to the defendants because the uncontroverted evidence of record shows that Wilson had equal knowledge of the hazardous condition that led to her fall. Of course, “[a]n owner or occupier of land must exercise ordinary care to keep his premises safe for invitees.” Houston v. Wal-Mart Stores East, L.P., 324 Ga. App. 105, 107 (1) (749 SE2d 400) (2013). See OCGA § 51-3-1. But

[t]he true ground of liability is the proprietor’s superior knowledge of the perilous instrumentality and the danger therefrom to persons going upon the property. It is when the perilous instrumentality is known to the owner and not known to the person injured that a recovery is permitted.

(Citations and punctuation omitted; emphasis in original.) Carpenter v. Capital City Club, 299 Ga. App. 265, 266 (683 SE2d 351) (2009). See Amear v. Hall, 164 Ga. App. 163, 167-168 (2) (296 SE2d 611) (1982). Where the uncontroverted evidence demonstrates that the invitee had knowledge of the dangerous condition equal to that of the premises owner, there can be no recovery by the invitee for injuries resulting from the dangerous condition. See Houston, 324 Ga. App. at 107-110 (1).

In this case, the evidence shows “plainly, palpably, and without dispute” that Wilson was aware of the hazardous condition of the floor joists before her fall. (Citation and punctuation omitted.) Houston, 324 Ga. App. at 107 (1). The defendants presented evidence that prior to her fall, Wilson had repaired the subfloors in 26 of the apartment units at Forest Cove, three of which required the installation of new joist supports underneath the subfloors. With respect to the apartment unit at issue here, Wilson testified in her deposition that before her fall, she had observed that the wall and ceiling of the kitchen directly beneath the upstairs bathroom were moist; that the kitchen cabinets and closet had sustained extensive water and mold damage caused by an ongoing leak that she had assumed came from the bathroom; and that the bathroom floor was sloping and felt “soft.” Wilson further testified that once her crew exposed the floor joists, she saw that the joists were discolored from apparent water damage; looked “separated,” “weathered,” and “crumbly”; were “basically rotted wood”; and had been repaired with undersized lumber. Even after making these observations, Wilson nevertheless continued standing on the exposed joists as she called the apartment property manager to inform her of the “horrendous” condition of the bathroom and to take the requested photographs. Given this combined uncontroverted evidence, it is clear that Wilson had at least equal knowledge of the hazardous condition of the floor joists before she fell from the upstairs bathroom.

Additionally, the evidence reflects that Wilson was an independent contractor who was hired to replace the bathtub and the damaged subfloor, and under Georgia law, “an independent contractor is expected to determine for himself whether his place of employment is safe or unsafe, and ordinarily may not recover against the owner for injuries sustained in the performance of the contract.” (Citation and punctuation omitted.) Carpenter, 299 Ga. App. at 267. See Herrin v. Peeches Neighborhood Grill & Bar, 235 Ga. App. 528, 532 (1) (509 SE2d 103) (1998); Hudson v. Santangelo, 228 Ga. App. 768, 774 (3) (492 SE2d 673) (1997). Moreover, while the general rule is that a premises owner must exercise ordinary care to keep his premises safe for workers hired to work on the premises, if the worker

was hired for the express purpose of assisting in the repair, demolition, or alteration of some instrumentality . . . , and the unsafe conditions from which the injury resulted arose from or were incidental to the work undertaken by him, the . . . general rule is not applicable.

(Citation and punctuation omitted.) Howell v. Farmers Peanut Market of Sowega, 212 Ga. App. 610, 611 (1) (442 SE2d 904) (1994). Nor is the general rule applicable if the worker is hired to perform work on the premises “that in its progress necessarily changes the character for safety of the place in which it is performed as the work progresses.” (Citation and punctuation omitted.) Elsberry v. Ivey, 209 Ga. App. 620, 621 (2) (a) (434 SE2d 158) (1993).

Based on this precedent, as Wilson and her crew removed the damaged subfloor as part of their bathroom repair job, thereby exposing the damaged floor joists, Wilson was responsible for inspecting the work area and determining for herself whether it was safe to remain standing on the joists. See Carpenter, 299 Ga. App. at 267; Odister v. Leach, 257 Ga. App. 106, 108-109 (570 SE2d 391) (2002); Herrin, 235 Ga. App. at 532 (1); Hudson, 228 Ga. App. at 774 (3). Wilson therefore cannot impose liability on the defendants for any failure on her part to fully appreciate the danger posed by the exposed floor joists. See id.

Wilson argues, however, that there was evidence that the defendants had superior knowledge of the dangerous condition of the bathroom and thus should have warned her of the risk that the joists could give way or break. Wilson relies on the deposition of Forest Cove’s asset manager, who testified that she had received previous complaints about tenants falling through subfloors in the apartment complex. The asset manager did not specify, and was not asked, about the cause of the subfloor issues in those other cases, and the record contains no evidence of any other specifics about the prior incidents.

The asset manager’s deposition testimony regarding prior sub-floor incidents is insufficient to create a jury issue as to whether the defendants had superior knowledge of the dangerous condition of the exposed floor joists that caused Wilson’s fall. For a prior incident to put a premises owner on notice of a defect, the facts must be sufficiently similar to the facts involved in the present action.

While the relevancy of other occurrences is ordinarily within the sound discretion of the [trial] court, it is necessary that the conditions of the things compared be substantially similar. Without a showing of substantial similarity, the evidence is irrelevant as a matter of law and there is nothing upon which the court’s discretion can operate.

Smith v. Housing Auth. of City of Athens, 212 Ga. App. 503, 505 (441 SE2d 847) (1994). See Wittenberg v. 450 Capitol Assoc., 207 Ga. App. 260, 262-263 (427 SE2d 547) (1993).

In the present case, the record contains no evidence about the circumstances surrounding the alleged prior incidents where someone fell through a subfloor, including where or when the incidents occurred or what specifically caused them. Thus, there is simply no evidence demonstrating that the prior incidents bear any rational relation to Wilson’s fall while she was standing on an exposed floor joist that was water damaged due to a water leak and/or had been repaired with undersized lumber. Indeed, Wilson’s crew had already removed the subfloor from the upstairs bathroom, and thus Wilson did not fall though the subfloor as allegedly occurred in the prior incidents. Under these circumstances, Wilson made no showing of substantial similarity sufficient to put the defendants on notice of any alleged defects in the bathroom floor joists before the incident in question. See Smith, 212 Ga. App. at 505; Wittenberg, 207 Ga. App. at 262-263. Rather, given the lack of specificity in the evidence, a jury would simply be left to guess whether the prior incidents put the defendants on notice, and “[gjuesses or speculation which raise merely a conjecture or possibility are not sufficient to create even an inference of fact for consideration on summary judgment.” (Citation and punctuation omitted.) John Hewell Trucking Co. v. Brock, 239 Ga. App. 862, 864 (522 SE2d 270) (1999).

In any event, “there is no obligation to protect the invitee against dangers or hazards which are known to him or which are so obvious and apparent he may reasonably be expected to discover them.” (Citation and punctuation omitted.) Smith, 212 Ga. App. at 505. If the invitee knew of the danger or had equal means of knowing of the dangerous condition, the invitee cannot recover for the premise owner’s failure to warn her of that danger. See Dodd v. Clary, 135 Ga. App. 296, 297 (217 SE2d 397) (1975). Therefore, even if the defendants knew of the potentially dangerous condition of the exposed floor joists based on prior subfloor incidents that had occurred at the apartment complex, it is clear from the record, as previously discussed, that Wilson also knew of the dangerous condition of the joists, and she cannot recover for the defendants’ alleged failure to warn her of the very condition of which she was already aware. See id.

Lastly, we note that in denying summary judgment to the defendants, the trial court also found that defendants had “put[ ] [Wilson] in an unsafe position” by asking her to take photographs of the bathroom. But Wilson testified that she was already standing in the bathroom when she called the property manager about the condition of the bathroom and thus when the manager asked her to take the photographs. Hence, Wilson had already placed herself in the dangerous position of standing on the compromised floor joists before any request was made to take the photographs and then chose to continue standing there after speaking with the property manager. And there is nothing in the record to suggest that the property manager knew that Wilson was standing on the exposed floor joists as they talked, or knew that Wilson would be standing on damaged joists to take the photographs. The record therefore does not support the trial court’s finding that the defendants could be held liable for placing Wilson in an unsafe position by requesting that she take the photographs of the bathroom.

Decided August 21, 2015.

Fain, Major & Brennan, Thomas E. Brennan, Elliot D. Tiller, for appellants.

Morgan & Morgan, Justin D. Miller, for appellee.

For these combined reasons, we conclude that the defendants were entitled to summary judgment on Wilson’s premises liability claim. The record uncontrovertedly shows that Wilson had equal knowledge of the dangerous condition of the exposed floor joists that caused her fall and thus cannot hold the defendants liable for the injuries she sustained. While we are sympathetic to Wilson, who suffered serious injuries as a result of her fall, her equal knowledge of the hazard requires us to reverse the trial court’s denial of summary judgment to the defendants.

Judgment reversed.

Ray and McMillian, JJ., concur.

       A subfloor is the “rough floor over which a finished floor, flooring material, or carpet is laid.” American Heritage Dictionary of the English Language (5th ed. 2011).

       Our recitation of the facts surrounding Wilson’s work on the apartment and the accident in question is drawn from her deposition testimony. Some of Wilson’s testimony regarding the events that transpired was contradictory, and she never provided any explanation for those contradictions. Under the rule enunciated by our Supreme Court in Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 28 (1) (343 SE2d 680) (1986), we therefore construe the contradictory testimony against Wilson in setting forth the factual background of this case.

       At a different point in her deposition, Wilson testified that she was standing outside of the bathroom when she spoke with the property manager and stepped back into the bathroom to take the requested photographs. Wilson provided no explanation for this contradiction, and her testimony provided the sole evidence of where she was standing when the photographs were taken. Accordingly, under the Prophecy rule, we must disregard “the favorable portions of Pier] contradictory testimony and then construe the remaining testimony and evidence in favor of the [defendants] to determine whether summary judgment should be granted.” (Citation and punctuation omitted.) Price v. Thapa, 323 Ga. App. 638, 640 (745 SE2d 311) (2013). See Prophecy, 256 Ga. at 28 (1).


source: Caselaw Access Project

author: McMillian, Judge.

license: Public Domain

text:
    A15A0797.
    BURKE v. THE STATE.
    (776 S.E.2d 821)
   McMillian, Judge.

Appellant Anthony Bernard Burke was convicted by a jury of aggravated cruelty to an animal (Count 1), giving a false name to a police officer (Count 2), and two counts of influencing witnesses (Counts 3 and 4). He appeals following the denial of his motion for new trial, as amended, arguing that the trial court erred by admitting multiple post-mortem photographs of the animal, a pit-bull bred canine, and that the evidence was insufficient to convict him of the crime of tampering with a witness as charged in Count 3 of the indictment. We find no merit to these contentions and affirm.

Construed to support the jury’s verdict, the evidence shows that Burke was the owner of a pit-bull dog named Black Girl. Several of his neighbors, who witnessed him beat the dog to death, testified at trial. David Hudgins, who lived across the street from the house where Burke lived with his girlfriend’s family, testified that on December 18, 2008, he saw Burke riding a bicycle toward the house with Black Girl walking beside him on a heavy gauge chain. When he arrived at the house, Burke got off the bike and began beating the dog with the chain while it was still attached to the dog. Burke’s girlfriend came out of the house and told him to stop beating the dog, at which point he started beating the dog with a garden hoe, which broke after he hit the dog multiple times in the head. Hudgins testified that the beating lasted seven to ten minutes and that Burke rode away on his bicycle after he stopped beating the dog.

Rebecca Caffee, who lived next door to Burke with her mother and stepfather, testified that on the day in question she had just come home from school and was in the kitchen making something to eat when she heard their dogs barking. She walked out into her yard and saw Burke beating Black Girl with a shovel handle. Rebecca said that Burke realized she was watching him beat the dog and said “what the F are you looking at, I can do to my dog what I want to,” so she went back inside. Rebecca testified she saw Burke hit the dog between five and seven times and then the dog moved out of sight. Burke then picked up something else and walked toward the dog, but Rebecca testified she could not see what happened after that point. Rebecca also testified that she asked her mother to call the police when she saw Burke hitting the dog and that after the police arrived she walked over to where Black Girl was lying on the ground. The State showed Rebecca two photographs of the dog, which were marked as State’s Exhibits 8 and 9, and she confirmed that the photographs depicted how the dog looked after Burke beat it to death.

Rebecca’s mother Samantha Caffee testified that after her daughter told her that Burke was beating the dog, she went outside and saw Burke beating the dog with the “knuckle” of a chain. She called police and repositioned herself after she momentarily lost sight of the dog so she could continue to watch Burke while she was on the phone with 911. She said that while she was watching, she saw Burke pick up a shovel and start beating Black Girl in the head and that the dog was cowering and trying to get away from Burke; her daughter and Hudgins also testified that the dog was hollering, cowering, whining and trying to get away from Burke during the beating. Samantha Caffee said she stayed on the phone with 911 until Burke beat the dog to death, and she saw Burke get on his bicycle and leave after his girlfriend told him the police had been called.

Officer Darrell Watts with the Macon-Bibb Animal Control was dispatched to the scene, and he called police after he arrived and determined that the dog was dead. Watts said he took pictures of the dog and he identified State’s Exhibits 8 and 9 as depicting the dog lying on the ground next to the fence and further testified that State’s Exhibit 10, which is somewhat out of focus, depicted blood that was under the dog. He also took a picture of the garden hoe that was used to beat the dog, and that picture was also introduced into evidence at trial. He said after taking the pictures and talking to witnesses, he put the dog in a bag and took it down to the shelter so that a necropsy could be performed.

The City of Macon Veterinarian performed the necropsy of the dog. He testified that his external examination of the dog revealed blood around her ears and blood in her mouth and that State’s Exhibits 13, 15, and 17 accurately depicted the cuts, scrapes and blood around the dog’s ears and on her head, which he had observed during his initial examination of the dog. He then performed a necropsy, which revealed four very large areas of bruising on the dog’s skull. The veterinarian testified that the dog’s death was caused by blunt trauma to the skull that caused the brain to swell to the point that the reticular activating system, which controls breathing and heart rate, stopped working.

Based on interviews with the witnesses at the scene, a warrant was issued for Burke’s arrest. Several weeks later, one of the officers who had been dispatched to the scene stopped a person he suspected was Burke, but the person told him his name was Antwan Burke. The officer took Burke into custody, and Burke later admitted he had given the officer a false name.

1. Burke first contends that the trial court erred by admitting State’s Exhibits 8, 9,10,13,15, and 17, which were the post-mortem, pre-necropsy photographs taken of the deceased animal or her blood at the scene and at the animal shelter, arguing that the inflammatory effect of the multiple photographs outweighed their evidentiary worth. The transcript, however, shows that Burke did not object when these exhibits were admitted at trial. Indeed, not only did Burke fail to object when the photographs were initially identified by the witnesses, his counsel specifically stated “no objections” to the admission of the photographs when the State tendered the evidence after the presentation of its witnesses and again stated he had no objection when the photographs went out with the jury. Accordingly, Burke has waived any objection to the admission of this evidence, and this enumeration presents nothing for our review. E.g., Kirkland v. State, 315 Ga. App. 143, 147 (3) (726 SE2d 644) (2012).

2. Burke also contends that the evidence was insufficient to convict him of influencing witness Samantha Caffee as charged in Count 3 of the indictment, arguing that evidence failed to show that he made any specific threat to the witness concerning her testimony. However, the crime of influencing a witness does not require that the witness has been specifically threatened. Rather, under OCGA § 16-10-93 (b) (1), and as charged in the indictment, a person commits the offense of influencing a witness when he or she knowingly “use[s] intimidation, physical force, or threats” to, among other things, “[influence, delay, or prevent the testimony of any person in an official proceeding [.]” (Emphasis supplied.) Id.

As to this issue, Samantha Caffee testified that Burke came to her house about two weeks after the incident and “said something about the incident. And I said something to him. And he was like, you ain’t seen nothing, blah, blah, and kept trying to come up on, to come up.” She also said “Ant was pure bouncing around and getting worked up. And he kept trying to come around and my boyfriend kept telling me, just go in the house, I’ve got this, go in the house.” When asked what Burke said about the possibility of her testifying, the witness responded “Well, he didn’t really — it wasn’t actually spoken as much as it was implied. Basically — in other words, it wasn’t you better not but it was like you don’t know what you are talking about.” She álso testified that he told her he was going to tell “them” that she sold pills, and “it was basically trying to intimidate me to where I wouldn’t testify.”

“The defendant’s intent may be inferred upon consideration of the words, conduct, demeanor, motive, and all other circumstances connected with the act for which the defendant is prosecuted.” (Citation and punctuation omitted.) Johnson v. State, 277 Ga. App. 499, 505-506 (2) (627 SE2d 116) (2006). The jury was authorized to infer from the evidence recited above, which included Burke’s menacing physical actions toward the witness as well as a threat to tell law enforcement that she was engaged in criminal activity, coupled with other evidence presented at trial such as the fact that Burke made specific threats to Hudgins, that Burke acted with the requisite intent to intimidate Samantha Caffee so that she would not testify against him at trial. “Where, as here, there is at least some circumstantial evidence from which the jury could infer that [the defendant knowingly intimidated the witness,] we will not second-guess the jury and reverse the defendant’s conviction.” Id. at 507 (2); Carter v. State, 237 Ga. App. 703, 708 (516 SE2d 556) (1999) (defendant’s menacing presence on victim’s property sufficient to show he indirectly communicated a threat so as to authorize his conviction for influencing a witness).

Decided August 24, 2015.

Jonathan P. Waters, for appellant.

K. David Cooke, Jr., District Attorney, Shelley T. Milton, Assistant District Attorney, for appellee.

Judgment affirmed.

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

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

       We note that Burke was tried in 2011; accordingly, the provisions of the new Evidence Code do not apply. See OCGA § 24-1-103.

       Hudgins testified that Burke came to his house one day and made statements about getting Samantha Caffee in trouble for selling pills and told Hudgins that if he showed up in court, “somebody might ride by and shoot at your house and somebody might burn your house down.”


author: Miller, Judge.

text:
    A15A1283.
    THE STATE v. SANTIAGO.
    (776 S.E.2d 824)
   Miller, Judge.

After accepting Domingo Santiago’s guilty plea, but before imposing a sentence, the trial court dismissed the indictment over the State’s objection. The State appeals, contending that the trial court erred in dismissing the case because it interfered with the State’s right to prosecute crimes. We agree and reverse.

The record shows that Santiago was indicted for false imprisonment (OCGA § 16-5-41 (a)) and family violence battery (OCGA § 16-5-23.1 (f)) for gagging his wife, binding her wrists together, and beating her with a cord. Pursuant to a plea agreement, Santiago pled guilty to false imprisonment in exchange for the State’s dismissal of the battery count. At the guilty plea hearing, the trial court found that Santiago’s plea was freely, voluntarily, and knowingly made, and it accepted Santiago’s plea. As agreed to by the parties, the State recommended a total sentence of ten years to be served on probation.

During the sentencing phase of the hearing, the trial court questioned Santiago and his wife, and discovered that Santiago beat his wife after learning that she was having an affair. Shortly after the incident, the couple reconciled, and they were together at the time of the plea hearing. The trial court asked the State’s prosecutor whether the State still wanted to prosecute the case, and the prosecutor responded in the affirmative. The court then asked Santiago and his wife whether they “get in bed together and get it on?” When they responded that they did, the trial court stated that “[t]his is beginning to get a little ridiculous,” and asked Santiago, “Would this conviction be something that you think she would be holding over your head to make you do what she says?” Santiago responded, “Yes.” Defense counsel then asked the trial court to consider misdemeanor treatment, and the prosecutor objected. The trial court then sua sponte dismissed the case without elaboration.

On appeal, the State contends that the trial court erred in sua sponte dismissing the case because it impermissibly interfered with the State’s right to prosecute Santiago’s crime. We strongly agree.

The [S] tate has both the duty and the right to protect the security of its citizens by prosecuting crime. Because the purpose of criminal law is to serve the public functions of deterrence, rehabilitation and retribution, it is the [Sjtate, not the victim, that has an interest in criminal prosecutions.

(Citations and punctuation omitted.) Ambles v. State, 259 Ga. 406, 406-407 (1) (383 SE2d 555) (1989). While the trial judge has the duty and power to control the proceedings of the court, that power is “subject to the proviso that in so doing a judge does not take away or abridge any right of a party under the law.” (Citation omitted.) State v. Brooks, 301 Ga. App. 355, 359 (687 SE2d 631) (2009). “Our adversary system of criminal justice demands that the respective roles of [the] prosecution and defense and the neutral role of the court be kept separate and distinct in a criminal trial.” (Citation omitted.) Bass v. State, 285 Ga. 89, 91 (674 SE2d 255) (2009). Thus, while a trial judge has broad discretion to control court proceedings, the judge should not usurp the role of either the prosecutor or the defendant’s counsel.

Here, it was the prosecutor’s decision whether to prosecute the case in light of evidence that Santiago and his wife had reconciled. While the trial court may have disagreed with that decision, the record reveals no legal basis for the trial court to take away the State’s right to prosecute Santiago. Not only do we find a lack of legal basis for dismissing the case, we consider the trial court’s questions to Santiago and his wife about her adultery, their sex life, and whether she would hold a conviction over his head highly inappropriate and irrelevant. By dismissing the case without any legal basis and over the State’s objection, the trial court impermissibly abridged the State’s right to prosecute Santiago. See, e.g., Brooks, supra, 301 Ga. App. at 359-360; State v. Perry, 261 Ga. App. 886, 887 (583 SE2d 909) (2003). Accordingly, we reverse.

Decided August 24, 2015.

Joseph K. Mulholland, District Attorney, Moruf O. Oseni, Assistant District Attorney, for appellant.

Ernie M. Sheffield, for appellee.

Judgment reversed.

Andrews, P. J., and Branch, J., concur.


text:
    A15A1412.
    PARHAM v. WELDON.
    (776 S.E.2d 826)
   Miller, Judge.

After a default judgment was entered against Gerald Parham as to his liability for failing to restore Preston Weldon’s classic vehicle, Parham failed to respond to Weldon’s requests for admissions regarding damages. Parham subsequently moved to withdraw his admissions. The trial court denied Parham’s motion to withdraw admissions and then granted summary judgment to Weldon on the issues of damages and attorney fees. Parham appeals, contending that the trial court erred in denying his motion to withdraw admissions and in granting summary judgment. Since the trial court applied the wrong standard of review in analyzing Parham’s motion to withdraw his admissions, we reverse.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. We review the grant of summary judgment de novo, construing the evidence in favor of the nonmovant.

(Citations omitted.) Patel v. Columbia Nat. Ins. Co., 315 Ga. App. 877 (729 SE2d 35) (2012).

So viewed, the record shows that in October 2011, Weldon hired Parham, who operates a body shop known as “North Georgia Custom Paint & Body,” to restore and paint his 1969 Ford Bronco at a negotiated price of $9,470. Weldon paid Parham in full in December 2011, at which time Parham assured Weldon that the restoration was near completion. Parham failed to complete the restoration work and allowed the vehicle to become rusted and dented. When Weldon went to retrieve his vehicle in September 2013, Parham asked Weldon to sign a release for liability for any damage arising from his custody of the vehicle and failure to complete the restoration. Weldon refused to sign the release, and Parham refused to relinquish the vehicle.

Weldon then filed the instant lawsuit, and he also petitioned for a temporary restraining order (“TRO”) requesting that the trial court order Parham to return the vehicle. Parham did not respond to Weldon’s complaint or to his TRO petition. The trial court ordered Parham to return the vehicle to Weldon, and entered a default judgment against Parham as to his liability because he failed to file an answer. The trial court indicated that the issue of damages would be determined at a subsequent hearing.

In March 2014, Weldon served Parham with a request for admissions, seeking admissions that, inter alia, the parties agreed that the restoration work would cost $9,470; Weldon paid the full negotiated price; Parham never asked for additional payment to complete the restoration; Parham’s actions caused the vehicle to become dented and rusted; the vehicle has no fair market value in its present condition, whereas it had a fair market value of $26,000 prior to being left with Parham; and Weldon owed $4,707.50 in attorney fees.

On May 9, 2014, Weldon moved for summary judgment, arguing that Parham conceded the amount of damages by failing to respond to his request for admissions. On June 11, 2014, Parham filed a verified motion to withdraw his admissions, specifically responding to several requests for admissions. In his verified motion, Parham averred that Weldon changed the scope of the restoration work, which increased the original estimate of $9,470; Parham asked for more money to complete the additional work; Weldon refused to pay for the additional work; Parham did not dent the vehicle or cause it to rust; Parham performed the restoration work to the best of his ability; and the vehicle’s market value was greater than zero.

In October 2014, the trial court denied Parham’s motion to withdraw his admissions, finding that Parham failed to support his general denials with an affidavit or any other evidence that might be admitted at trial. On November 25, 2014, Parham subsequently filed a second motion to withdraw admissions and included a supporting affidavit. In early December, the trial court granted summary judgment to Weldon without expressly ruling on Parham’s second motion to withdraw admissions. This appeal followed.

1. On appeal, Parham argues that the trial court erred in denying his motion to withdraw admissions based on the failure to attach an affidavit because his verified motion, which contained sworn statements, was the equivalent of an affidavit. We agree.

When requests for admission are made, the matter is deemed admitted unless denied by written answer in a timely manner. Under OCGA § 9-11-36 (b), the trial court is vested with broad discretion to permit withdrawal of an admission made by reason of the failure to make a timely response to the request. On appellate review, the trial court’s ruling on this issue may be reversed only upon a showing of abuse of discretion.

(Punctuation and footnotes omitted.) Velasco v. Chambless, 295 Ga. App. 376 (1) (671 SE2d 870) (2008).

Atrial court may permit withdrawal of admissions if both: (1) the presentation of the merits of the action will be subserved by the withdrawal; and (2) the party who obtained the admission fails to satisfy the court that withdrawal will prejudice him in maintaining his action or defense on the merits. See Brankovic v. Snyder, 259 Ga. App. 579, 580 (578 SE2d 203) (2003). In order to show that the presentation of the merits of this case would be subserved by the withdrawal, Parham needed to establish that

the admitted requests either could have been refuted on trial of the issues by admissible evidence having a modicum of credibility or that the admitted requests were incredible on their face; and that the denials being tendered to the court with the motion to withdraw had not been offered solely for purposes of delay.

(Citations and punctuation omitted.) Fox Run Properties, LLC v. Murray, 288 Ga. App. 568, 570-571 (1) (654 SE2d 676) (2007).

Here, the trial court denied Parham’s motion to withdraw admissions on the ground that his motion was not accompanied by an affidavit or any other admissible evidence having a modicum of credibility. Parham’s motion, however, was verified. As a result, Par-ham’s verified motion was both pleading and evidence, and could serve as the functional equivalent of an affidavit, which was sufficient to raise an issue of fact. See Rolland v. Martin, 281 Ga. 190, 191 (637 SE2d 23) (2006). We cannot say that Parham’s verified motion is per se incredible. Thus, the trial court erred in concluding that there was a complete absence of admissible evidence having a modicum of reliability. See Bailey v. Chase Third Century Leasing Co., 211 Ga. App. 60, 62 (1) (438 SE2d 172) (1993). Since the trial court’s denial of Parham’s verified motion to withdraw admissions was based on an erroneous view of the law, the trial court abused its discretion in denying Parham’s motion on this ground. See Watson v. Elberton-Elbert County Hosp. Auth., 229 Ga. 26, 27 (1) (189 SE2d 66) (1972) (a ruling of the trial court which is within the court’s discretion will be reversed where it “is based upon an erroneous view of the law”); Mathis v. BellSouth Telecommunications, 301 Ga. App. 881 (690 SE2d 210) (2010) (trial court abuses its discretion when its ruling misstates or misapplies the relevant law).

Decided August 24, 2015.

Kennon Peebles, Jr., for appellant.

The Wilbanks Law Firm, Dylan E. Wilbanks, for appellee.

2. Since the trial court erred in denying Parham’s motion to withdraw admissions, it was also error to grant summary judgment based on those admissions. See Bailey, 211 Ga. App. at 62 (1). Accordingly, we reverse.

Judgment reversed.

Andrews, P. J., and Branch, J., concur.

       Our ruling does not preclude the trial court from denying Parham’s motion to withdraw his admissions on other grounds, because the trial court has the discretion to deny withdrawal if it determines that the withdrawal of the admissions will not advance the presentation of the merits of the action or that the party who obtained the admissions will be prejudiced by the withdrawal. See Neal v. State Farm Fire & Casualty Co., 300 Ga. App. 68, 69 (684 SE2d 132) (2009).


author: BARNES, Presiding Judge.

text:
    A13A2150.
    CALLAWAY et al. v. GARNER et al.
    (776 S.E.2d 829)
   BARNES, Presiding Judge.

In Estate of Callaway v. Garner, 297 Ga. 52 (772 SE2d 668) (2015), the Supreme Court of Georgia reversed Division 3 of our opinion in Callaway v. Garner, 327 Ga. App. 67 (755 SE2d 526) (2014), in which we affirmed the trial court’s award of prejudgment interest under OCGA § 13-6-13. We therefore vacate Division 3 of our earlier opinion and adopt the opinion of the Supreme Court with respect to that division as our own.* Consequently, in accordance with the Supreme Court’s opinion, we reverse the trial court’s award of prejudgment interest under OCGA § 13-6-13, and we remand for the trial court to determine whether prejudgment interest instead maybe awarded under OCGA § 7-4-15.

Decided August 25, 2015.

Bondurant, Mixson & Elmore, Emmet J. Bondurant, Michael B. Terry, Alison B. Prout, Elizabeth G. Eager; Hatcher, Stubbs, Land, Hollis & Rothschild, Gregory S. Ellington, for appellants.

Waldrep, Mullin & Callahan, Joseph L. Waldrep, C. Morris Mullin, for appellees.

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

Miller and Ray, JJ., concur.

       The Supreme Court did not address the other divisions of our earlier opinion. Because “those portions of our earlier opinion are consistent with the Supreme Court’s opinion, those [djivisions become binding upon the return of the remittitur.” (Citation and punctuation omitted.) Reliance Trust Co. v. Candler, 327 Ga. App. 231 (761 SE2d 356) (2014). Accordingly, as explained in our earlier opinion, the trial court’s grant of specific performance is affirmed, and the trial court’s award of attorney fees is reversed.


author: ELLINGTON, Presiding Judge.

text:
    A14A0168.
    CASTELLANOS v. TRAVELERS HOME & MARINE INSURANCE COMPANY.
    (777 S.E.2d 47)
   ELLINGTON, Presiding Judge.

In this uninsured motorist coverage case, the trial court granted Travelers Home & Marine Insurance Company’s motion for summary judgment and denied Luis Castellanos’ motion for summary judgment, and Castellanos appealed both rulings. In Castellanos v. Travelers Home & Marine Ins. Co., 328 Ga. App. 674 (760 SE2d 226) (2014), we reversed the trial court’s decision, in part, to the extent it entered summary judgment in Travelers’ favor (Division 1) and affirmed, in part, to the extent it denied Castellanos’ motion (Division 2). The Supreme Court of Georgia granted Travelers’ petition for a writ of certiorari regarding Division 1 of our decision* and reversed in Travelers Home & Marine Ins. Co. v. Castellanos, 297 Ga. 174 (773 SE2d 184) (2015). Accordingly, our previous decision is vacated, and the judgment of the Supreme Court is made the judgment of this Court. The trial court’s order granting Travelers’ motion for summary judgment is affirmed. The trial court’s order denying Castellanos’ motion for summary judgment is also affirmed.

Decided September 2, 2015.

Larry E. Stewart, for appellant.

Magill Atkinson Dermer, David M. Atkinson, Marian L. Miller, for appellee.

Judgment affirmed.

Andrews, P. J., Barnes, P. J., Phipps, P. J., McFadden, Ray and McMillian, JJ., concur.

       The Supreme Court indicated that it was particularly concerned with whether the majority of this Court “properly analyzejd] which party has the burden of proving that uninsured motorist coverage applies in order to survive summary judgmentf.]” See Castellanos v. Travelers Home & Marine Ins. Co., 328 Ga. App. at 676-680 (1) (concluding that, in granting Travelers’ motion for summary judgment — on the basis that Castellanos failed to identify any evidence that the tortfeasor’s liability carrier had reasonably requested the tortfeasor’s cooperation, that the tortfeasor had wilfully and intentionally failed to cooperate, that his failure to cooperate was prejudicial to the liability carrier, and that his justification for failing to respond was insufficient — the trial court had improperly shifted to Castellanos the burden of coming forward with evidence to preemptively rehut Travelers’ affirmative defense that the liability carrier had not “legally denied” coverage to the tortfeasor).


author: Ray, Judge.

text:
    A15A0794.
    CHAMBLEE v. THE STATE.
    (777 S.E.2d 41)
   Ray, Judge.

Following a jury trial, William Horace Chamblee was convicted of two counts of child molestation (OCGA § 16-6-4 (a) (l)).* He appeals from the denial of his motion for new trial and amended motion for new trial as to one count of child molestation (Count 3), contending that the evidence was insufficient to sustain his conviction. For the following reasons, we affirm.

Viewed in the light most favorable to the verdict, Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979), the evidence shows that Chamblee, a friend of the victim’s grandmother, lived in the basement of the victim’s home. The victim, M. C., lived in the residence with her mother, father, grandmother, and sister.

On October 23, 2011, M. C.’s father went to the basement of the house to get something to eat. M. C., who was six years old at the time, ran out of Chamblee’s room saying, “Daddy, Daddy.” M. C.’s father testified that M. C. had a “sneaky look, like she was into something.”

M. C.’s father took her to a restaurant for something to eat. While there, M. C. told her father that Chamblee had shown her “sexing shows” on his computer on three to five separate occasions. M. C. said that in the sexing shows, a “girl licked a boy and [a] boy licked a girl.” Moreover, M. C. also said that Chamblee had touched her and licked her vagina. M. C.’s father then called the police.

Shortly after, the police arrived at M. C.’s house, and Chamblee agreed to let officers take his computer and external hard drive for forensic testing. When he gave one of the officers his computer and external hard drive, Chamblee stated that there were no pornographic movies on his computer. At trial, he admitted that he “baldfacedly ... lied” about this because he was afraid that if he admitted to having the pornography on his computer, the police would think that he molested M. C.

M. C. was sent to the Gwinnett Sexual Assault Center and interviewed by a sexual assault nurse examiner. M. C. told the nurse that Chamblee had “shown her videos of boys and girls sexing on the computer” and that the videos depicted “boys kissing girls’ mui-muis and girls kissing boys’ mui-muis.” However, after an evaluation, the nurse found no trauma to M. C.’s vagina or anus.

Detective Nick Levato, a computer forensics examiner with the Gwinnett County Police Department, testified that he had located pornographic videos within two existing folders on Chamblee’s computer. The detective took still shots of the video. In addition, police determined that the video was last viewed or accessed on October 23, 2011, the same date that M. C. made the outcry to her father.

Also on October 23, 2011, Detective Leak interviewed M. C. M. C. told Detective Leak that Chamblee had shown her the sexing movies that day. She described the video as a boy and a girl kissing each others’ “mui-muis” on a bed in jail while wearing orange and black tiger suits. M. C. also told the officer that the video showed the boy putting two fingers or two hands inside the girl’s “hole.” Detective Leak testified that when he watched the movie found on Chamblee’s computer, he saw a male and female inside a cage, dressed in orange and black tiger suits performing oral sex on each other, as M. C. had described.

Chamblee testified at trial, essentially denying that he showed M. C. the video. He testified that on the day of the incident, he was deleting files off his computer and had played the video one last time. As the movie played, Chamblee left his room and went to the bathroom, at which time M. C. came into his room and watched the video without his permission.

A jury convicted Chamblee of two counts of child molestation. Chamblee contends that the evidence was insufficient to sustain the verdict as to Count 3 for child molestation. We disagree.

When reviewing the sufficiency of the evidence, we view the evidence in the light most favorable to the jury’s verdict, and the defendant no longer enjoys the presumption of innocence. We do not weigh the evidence or determine witness credibility, but only determine if the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offenses beyond a reasonable doubt.

(Citation and punctuation omitted.) O’Rourke v. State, 327 Ga. App. 628, 630 (1) (760 SE2d 636) (2014).

OCGA § 16-6-4 (a) (1) provides: “Aperson commits the offense of child molestation when such person . . . [d]oes any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person[.]” Count 3 of the indictment charged Chamblee with child molestation for unlawfully showing M. C. “a video depicting a female placing her mouth upon the penis of a male, with intent to arouse and satisfy [Chamblee’s] sexual desires [.]”

Chamblee contends that he did not have actual or constructive possession of the videos because he was in the bathroom when M. C. wandered into his bedroom and watched the video. He argues that because he was not in possession of his computer, he did not show M. C. the videos. Citing OCGA § 24-14-6, Chamblee asserts that there is only circumstantial evidence that he showed M. C. the video and, thus, the facts did not exclude the reasonable hypothesis that M. C. had seen the video without his involvement.

While determining whether evidence is direct or circumstantial may at times be a confusing task, it is not so in the instant case. If “an eyewitness testified that [s]he saw the defendant commit the crime [,] [t] here can be no doubt that such testimony is direct evidence because it immediately points to the question at issue — whether the defendant committed the crime.” (Citations omitted.) Stubbs v. State, 265 Ga. 883, 884-885 (2) (463 SE2d 686) (1995). Further, “in incidents of child molestation, more often than not the child/victim is the only witness able to provide such direct evidence.” (Emphasis in original.) Cantrell v. State, 231 Ga. App. 629, 629-630 (500 SE2d 386) (1998).

Here, the issue in Count 3 is whether Chamblee showed M. C. a video depicting pornographic material. In M. C.’s stipulated interview that was introduced to the jury at trial, she testified that Chamblee had showed her “sexing shows” the day of the incident and on several other occasions. In addition, M. C. went into particular detail of what the participants in the videos wore and their location when they engaged in the sexual activities, and she used dolls to explain and demonstrate the sexual actions in which the participants engaged, which included a description of oral sex as charged in the indictment. Further, M. C.’s interview testimony was consistent with the testimony of M. C.’s father, the nurse, and Detective Leak. As a result, Chamblee’s

reliance upon the reasonable hypothesis rule, set forth in [OCGA § 24-14-6], is misplaced, as this rule applies only when the evidence is entirely circumstantial. Because the victim’s testimony provided direct evidence of [Chamblee’s] guilt, the reasonable hypothesis rule is not at issue here.

(Citations, punctuation and emphasis omitted.) Ottley v. State, 325 Ga. App. 15, 18 (1) (752 SE2d 92) (2013). See OCGA § 24-14-8 (“The testimony of a single witness is generally sufficient to establish a fact.”); Carter v. State, 320 Ga. App. 454, 455 (1) (740 SE2d 195) (2013) (“[T]he victim’s testimony alone is generally sufficient to establish the elements of child molestation”) (citations and punctuation omitted).

It was up to the jury to determine witness credibility and resolve evidentiary conflicts in deciding whether to believe M. C.’s interview testimony that Chamblee had shown her the pornographic video or Chamblee’s testimony that he had not shown M. C. the video. Carter, supra at 456 (1). “Ultimately, as long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.” (Citation and punctuation omitted.) Knight v. State, 311 Ga. App. 367, 368 (1) (715 SE2d 771) (2011). Such competent evidence is present here, and we find no error.

Decided September 2, 2015.

Michael S. Marr, for appellant.

Daniel J. Porter, District Attorney, Christopher M. Quinn, Teresa B. Klein, Assistant District Attorneys, for appellee.

Judgment affirmed.

Barnes, P. J., and McMillian, J., concur.

       As the jury could not reach a verdict on a count of aggravated child molestation (OCGA § 16-6-4 (c)), the trial court declared a mistrial as to that count.

       In M. C.’s interviews with the nurse and with Detective Gerald Leak, she indicated that the word “mui-mui” was how she referred to female and male genitalia.

       The parties stipulated that M. C. had identified two of the State’s screen shot exhibits as images she saw on the video on Chamblee’s computer.

       The parties also stipulated “that due to [M. C.’s] young age and the desire of all parties not to have to subject her to the rigors of trial, her prior recorded statements to Detective Leak [would] be admitted into evidence in place of her live testimony.” The videotape of M. C.’s interview with Detective Leak was played for the jury, but its contents were not transcribed. However, we have reviewed the video in its entirety for the purposes of this appeal.

       M. C. indicated that Chamblee had shown her “sexing” shows “maybe three times” prior to October 23, 2011.

       For several minutes, M. C. used unclothed male and female dolls to demonstrate what she had seen in the video, showing Detective Leak the actions and positions of the participants depicted in the video.

       Chamblee’s basement room has no door, and its interior is visible to someone coming down the stairs.

       OCGA § 24-14-6 provides: “To warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.”


text:
    A15A0977.
    COLE v. COLE.
    (777 S.E.2d 39)
   BARNES, Presiding Judge.

Robert Cole appeals the trial court’s order directing him to pay attorney fees to his ex-wife’s attorney in a contempt action. He contends that the trial court erred in awarding the fees because (1) his ex-wife did not file a separate motion for fees and he was not afforded a separate hearing on the fees issue, (2) his contempt petition was not frivolous, and (3) the court failed to consider any evidence of the parties’ financial circumstances. For the reasons that follow, we affirm the trial court’s dismissal of the contempt petition, but vacate the fees award and remand this case for further proceedings or findings as to that award.

Mr. Cole and Cindy Cole were divorced in June 2013, and a settlement agreement regarding custody, support, and visitation of their children was incorporated into the final judgment and decree. In June 2014, Mr. Cole filed a petition for contempt against Mrs. Cole, contending that she had wilfully violated several provisions of the parties’ custody and visitation agreement by allowing a caretaker to spank one of the children, by leaving the children in the care of others without first offering him “the right of first refusal to exercise visitation,” and by camping with the children and her boyfriend in violation of the provision that neither party have an overnight guest of the opposite sex while exercising their custody and visitation rights with the children.

Mrs. Cole answered, denying the allegations of the petition and seeking attorney fees and expenses of litigation pursuant to OCGA § 19-6-2 for having to defend the claims. After a hearing at which the court heard evidence, the trial court dismissed the contempt petition as groundless, and then heard Mrs. Cole’s counsel regarding the amount of attorney fees incurred thus far. In its written order, the trial court found that Mrs. Cole was not in contempt because she had not violated the terms of the parties’ agreement. The court further found that Mr. Cole’s petition was frivolous, lacked substantiating evidence, and “was an effort to ‘nit-pick’ the Court’s prior Orders rather than to view the spirit and overall intent of the Court’s prior Orders.” It awarded Mrs. Cole $3,000 in attorney fees and found that, based on the evidence presented, the fees awarded were reasonable and customary given the nature of the case, and the level of defense counsel’s preparation and years of experience.

1. Mr. Cole contends that the trial court erred in its attorney fee award because Mrs. Cole never filed a separate motion for fees and because Mr. Cole was not afforded a separate hearing on the issue. A review of the record reveals that Mr. Cole never objected to the trial court’s consideration of attorney fees during the contempt hearing, and thus he has waived this issue for appellate review. See Mongerson v. Mongerson, 285 Ga. 554, 559 (7) (678 SE2d 891) (2009), overruled on other grounds, Simmons v. Simmons, 288 Ga. 670, 672 (3), n. 4 (706 SE2d 456) (2011).

2. Mr. Cole asserts that the trial court erred in awarding attorney fees because his contempt petition was not completely frivolous but had some merit. A trial court’s ruling on contempt will be affirmed on appeal if there is any evidence to support it. Doritis v. Doritis, 294 Ga. 421, 425 (5) (754 SE2d 53) (2014). We have reviewed the petition and the evidence presented at the hearing in this case, and conclude that the trial court did not abuse its discretion in finding that the petition was frivolous.

3. Finally, Mr. Cole contends that the trial court erred in awarding attorney fees to Mrs. Cole absent evidence of the parties’ financial circumstances or a motion for fees under OCGA § 9-15-14. Mrs. Cole prayed for attorney fees pursuant to OCGA § 19-6-2, which allows the award of fees in a case asserting contempt of a visitation and custody agreement “[wjithin the sound discretion of the court, except that the court shall consider the financial circumstances of both parties as a part of its determination of the amount of attorney’s fees, if any, to be allowed against either party.” OCGA § 19-6-2 (a) (1).

The trial court did not cite the statutory authority for its fees award, but found that the contempt petition was frivolous and brought without substantiating evidence.

Generally an award of attorney fees is not available unless supported by statute or contract. OCGA § 19-6-2 authorizes a court, within its discretion, to award attorney fees in a contempt of court action arising out of a divorce case; however, the court is to consider the financial circumstances of both parties in assessing such an award. See OCGA § 19-6-2 (a) (1). An award under OCGA § 19-6-2 depends on the financial circumstances of the parties, not their wrongdoing; it is to be made with the purpose of ensuring effective representation of both spouses in an action arising out of a divorce.

Decided September 2, 2015.

Kip Shepherd, for appellant.

Preston & Malcom, Paul L. Rosenthal, for appellee.

Alternatively, OCGA § 9-15-14 (b) authorizes a court to award attorney fees if it finds that a party brought or defended an action, or any part thereof, that lacked substantial justification or was interposed for delay or harassment, or if it finds that a party unnecessarily expanded the proceeding by other improper conduct. An order awarding attorney fees under OCGA § 9-15-14 must include findings of conduct that authorize the award.
Here, the trial court failed to make findings sufficient to support such an award under either section. Thus, the issue of attorney fees must be remanded for an explanation of the statutory basis for the award and any findings necessary to support it.

(Citations and punctuation omitted.) Cason v. Cason, 281 Ga. 296, 299-300 (3) (637 SE2d 716) (2006).

Judgment affirmed in part and vacated in part, and case remanded for further proceedings.

Ray and McMillian, JJ., concur.


author: Dillard, Judge.

text:
    A15A1388.
    MYERS v. THE STATE.
    (777 S.E.2d 44)
   Dillard, Judge.

Following a stipulated bench trial, Shameka Shontay Myers was convicted of possessing less than one ounce of marijuana. Myers appeals this conviction, solely contending that the trial court erred in denying her motion to suppress evidence discovered after law enforcement illegally seized a passenger in her vehicle and, thus, illegally seized her as well. For the reasons set forth infra, we affirm.

At the outset, we note that the Supreme Court of Georgia has reiterated three fundamental principles to follow in reviewing a ruling on a motion to suppress. First, the trial court sits as the trier of fact at a hearing on a motion to suppress, and because it hears the evidence, the court’s “findings based upon conflicting evidence are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support [them].” Second, the trial court’s decision with regard to questions of fact and credibility must be accepted “unless clearly erroneous.” Finally, we, as the reviewing court, must construe the evidence “most favorably to the upholding of the trial court’s findings and judgment.”

So viewed, the record reflects that at 3:30 a.m. on the day in question, an officer responded to a noise complaint in a Henry County neighborhood and, while investigating same, made a mental note of a vehicle parked in front of a house that had no cars in the driveway. The officer also observed that this vehicle contained two occupants and its windows were fogged.

After concluding his investigation into the noise complaint, the officer again passed by the vehicle and decided to make contact. The officer parked nearby and approached the vehicle on foot, noticing that the windows were still foggy. He also detected the odor of marijuana and saw that the passenger was beginning to exit the vehicle. The officer instructed the passenger to sit back down in the vehicle, which the passenger did.

The officer then made contact with the driver, Myers, at her window and detected an even more overwhelming odor of marijuana when she rolled down the window. He also observed a hollowed out tobacco wrapper on the ground outside of the driver’s door. And when he confronted the occupants about the odor, they denied having marijuana. Thereafter, the officer asked Myers and the passenger to exit the vehicle separately, conducted a pat down of the passenger, and located marijuana and drug paraphernalia on the passenger. He then conducted a pat down of Myers and, although he did not find anything on her, he did discover marijuana in a container on her side of the vehicle during a subsequent search.

Following her charge for possession of marijuana, Myers filed a motion to suppress the evidence, arguing that she was illegally detained after the officer illegally detained the passenger by ordering the passenger back into the vehicle without reasonable articulable suspicion of criminal activity. And after a hearing on the matter, the trial court denied Myers’s motion, finding that the officer had reasonable articulable suspicion after he detected the odor of marijuana upon approaching the vehicle. Following her conviction in a stipulated bench trial, this appeal by Myers follows.

As we have previously explained, the Supreme Court of the United States has sculpted out, at least theoretically, three tiers of police-citizen encounters:

(1) communication between police and citizens involving no coercion or detention and therefore without the compass of the Fourth Amendment, (2) brief seizures that must be supported by reasonable suspicion, and (3) full-scale arrests that must be supported by probable cause.

In the first tier, police officers may “approach citizens, ask for identification, and freely question the citizen without any basis or belief that the citizen is involved in criminal activity, as long as the officers do not detain the citizen or create the impression that the citizen may not leave.” And here, the trial court correctly determined that the officer’s initial approach to the vehicle fell under the first category of such encounters. Furthermore, whether or not the officer’s order that the passenger return to the vehicle escalated the situation to a second-tier encounter as the trial court determined, the officer at that point unquestionably had reasonable articulable suspicion to briefly detain both Myers and the passenger.

Decided September 2, 2015.

Lister & Holt, Timika W. Dennis, for appellant.

John A. Pipkin III, Solicitor-General, MaryGrace K. Bell, Assistant Solicitor-General, for appellee.

Articulable suspicion, of course, requires a “particularized and objective basis for suspecting that a citizen is involved in criminal activity.” This suspicion need not meet the higher standard of probable cause, but it must be more than a mere caprice or a hunch. Thus, in assessing whether a reasonable articulable suspicion exists, we are charged with looking to “the totality of the circumstances.”* And in this case, the officer observed a vehicle with two occupants parked in a residential area at 3:30 a.m., its windows obscured by fog. Then, as the officer approached the vehicle to make inquiry of the occupants, he detected the odor of marijuana. Indeed, the officer testified that he first detected the odor as he approached the vehicle, which was simultaneous with the passenger’s attempt to exit the vehicle, and that the odor was why he “would have her stay.” The detection of the odor of marijuana provided the officer with reasonable articulable suspicion to briefly detain both Myers and the passenger to conduct an investigation into the matter. As a result, the trial court properly denied Myers’s motion to suppress.

Judgment affirmed.

Ellington, P. J., and McFadden, J., concur.

        Brown v. State, 293 Ga. 787, 803 (3) (b) (2) (750 SE2d 148) (2013); Miller v. State, 288 Ga. 286, 286 (1) (702 SE2d 888) (2010).

        Miller, 288 Ga. at 286 (1) (punctuation omitted); accord Brown, 293 Ga. at 803 (3) (b) (2).

        Miller, 288 Ga. at 286 (1) (punctuation omitted); accord Brown, 293 Ga. at 803 (3) (b) (2).

        Miller, 288 Ga. at 286 (1) (punctuation omitted); accord Brown, 293 Ga. at 803 (3) (b) (2).

        Brown v. State, 301 Ga. App. 82, 84 (686 SE2d 793) (2009) (punctuation omitted); accord Santos v. State, 306 Ga. App. 772, 773-74 (1) (703 SE2d 140) (2010).

        Brown, 301 Ga. App. at 84 (punctuation omitted); accord Santos, 306 Ga. App. at 773-74 (1).

        See, e.g., Whitmore v. State, 289 Ga. App. 107, 109 (657 SE2d 1) (2008) (noting that officer’s approach to make inquiry of vehicles that were already stopped was a first-tier encounter); Carrera v. State, 261 Ga. App. 832, 834 (584 SE2d 2) (2003) (“It is well established that an officer’s approach to a stopped vehicle and inquiry into the situation are not a ‘stop’ or ‘seizure’ but rather clearly fall within the realm of the first type of police-citizen encounter.” (punctuation omitted)).

        See Santos, 306 Ga. App. at 774 (“Examples of circumstances that might indicate a second-tier detention include... the use of language or tone of voice indicating compliance with the officer’s request might be compelled.” (punctuation omitted)); Akins v. State, 266 Ga. App. 214, 216 (1) (596 SE2d 719) (2004) (“[P]olice officers may approach a citizen, ask for identification, ask him to roll down a window or step out of a car, and freely question him without any articulable suspicion, as long as the officers do not detain the citizen or create the impression that the citizen may not leave.”); Johnson v. State, 231 Ga. App. 273, 273 (498 SE2d 359) (1998) (physical precedent only) (“Defendant’s response to the request for identification was ‘do I have to.’ In responding affirmatively, the deputy seized the person of defendant.”). Cf. Whitmore, 289 Ga. App. at 109 (holding that encounter was still within the first tier when, after making inquiry of vehicles stopped on the side of the road, officer “requested that [the drivers] move their vehicles to a parking lot . . . so as to avoid impeding traffic and to ensure greater safety” (emphasis supplied)); Stokes v. State, 238 Ga. App. 230, 232 (518 SE2d 447) (1999) (“Asking an individual to step outside for safety reasons is a permissible action that does not rise to the level of a seizure. This court also has recognized a distinction between an officer’s ‘appropriately deferential’ request for cooperation and a demand rising to the level of a stop.” (citations omitted; emphasis supplied)).

        State v. Whitt, 277 Ga. App. 49, 50 (625 SE2d 418) (2005) (punctuation omitted); accord, Padron v. State, 254 Ga. App. 265, 268 (1) (562 SE2d 244) (2002).

        Whitt, 277 Ga. App. at 50; Padron, 254 Ga. App. at 268 (1).

        Holmes v. State, 293 Ga. 229, 230 (2) (744 SE2d 701) (2013); State v. Thompson, 256 Ga. App. 188, 189 (569 SE2d 254) (2002).

        See, e.g., Bailey v. State, 283 Ga. App. 365, 368 (2) (641 SE2d 548) (2006) (holding that trial court “could have concluded that [the officer] smelled marijuana smoke rather than unburned marijuana in [the defendant’s] vehicle, which gave him a reasonable articulable suspicion of criminal activity”); Tomlin v. State, 242 Ga. App. 405, 406-07 (530 SE2d 27) (2000) (“The odor of marijuana emanating from a car provides a reasonable suspicion that marijuana is present in the car.”).


author: ELLINGTON, Presiding Judge. DILLARD, Judge,

text:
    A15A0886.
    HENDERSON v. THE STATE.
    (777 S.E.2d 48)
   ELLINGTON, Presiding Judge.

A Floyd County jury found Jimmy Henderson guilty of sexual battery, OCGA § 16-6-22.1 (b); and aggravated child molestation, OCGA § 16-6-4 (c). He appeals from the denial of his motion for a new trial, contending that the trial court gave two jury instructions that constitute plain error warranting a new trial. For the following reasons, we affirm in part and reverse in part.

Viewed in the light most favorable to the jury’s verdict, the facts relevant to the instant claims of error are as follows. The 11-year-old victim, A. S., stayed with Henderson for two weeks while her mother was hospitalized. During that period, Henderson engaged the victim in various sexual acts. The evidence shows that Henderson put his penis in the victim’s mouth, put his mouth on the victim’s genitals, touched the victim’s genitals with his hand, had the victim disrobe so that he could give her massages, and fondled the victim’s back while she was bathing. In a recorded forensic interview, the victim also recounted an incident in which Henderson took off her underwear and put his finger “right in here,” pointing to her genital area. The victim testified at trial, however, that Henderson did not penetrate her vagina with his finger.

1. Given the inconsistent evidence on whether Henderson inserted his finger into the victim’s vagina, the State asked the court to charge the jury on sexual battery as a lesser included offense of the offense of aggravated sexual battery as set forth in Count 1 of the indictment. In Count 1 of the indictment, the State alleged that Henderson violatedOCGA § 16-6-22.2 whenhe “intentionally penetrate[d] the sexual organ of [A. S.], a child under the age of 16 years[,] with a foreign object, to wit: the finger of the accused[.]” With defense counsel’s consent, the court agreed to charge the jury on sexual battery.

When initially charging the jury on sexual battery, the court explained that sexual battery was a lesser included offense of the offense of aggravated sexual battery set forth in the indictment. The court charged the jury as to the elements of sexual battery as follows: “Aperson commits the offense of sexual battery when he intentionally makes physical contact with the intimate parts of the body of another person without the consent of that person. [] I charge you that a child of the age of 11 is... legally incapable of giving such consent.” Defense counsel did not object to the charge nor did he voice any exceptions to the charge when asked by the court.

Shortly after the charge of the court, the jury asked the following question: “Does the charge of aggravated sexual battery and/or sexual battery have to be a finger in accordance with the indictment?” In discussing the question with counsel outside the presence of the jury, the court stated:

Well, the answer is aggravated sexual battery does; sexual battery does not.... I’m going to read the definitions again and tell them so far as Count 1 is concerned, aggravated sexual battery has to be proven beyond a reasonable doubt as alleged in the indictment. That is [,] with the use of a finger [.]... The definition of sexual battery doesn’t contain that requirement [.]

Neither the State nor the defense objected. The court then did as it had suggested, charging the jury that aggravated sexual battery must be proven “in the manner charged in the indictment,” that is, the evidence must show that the defendant intentionally penetrated the victim’s sexual organ with the specified foreign object, his finger. Thereafter, he charged the jury that sexual battery must be proven in accordance with the statutory definition he had just given them. That instruction did not inform the jury that the touching had to be in the manner charged in the indictment. Defense counsel asserted no exceptions to the recharge.

Henderson argues that the charge on sexual battery was overly broad and that giving it constituted plain error. He argues that the court was required to charge the jury that it could find him guilty of the lesser included offense of simple battery only if it found that he had committed the offense as alleged in the indictment, that is, by using his finger. For the following reasons, we agree.

Because defense counsel interposed no objection to the simple battery instruction, the trial court’s decision to give the instruction is reviewable on appeal only for plain error. See OCGA § 17-8-58 (b) (providing that the failure to object regarding a jury instruction at trial precludes appellate review unless “the jury charge constitutes plain error which affects substantial rights of the parties”); State v. Kelly, 290 Ga. 29, 32 (1) (718 SE2d 232) (2011) (“[A]ppellate review for plain error is required whenever an appealing party properly asserts an error in jury instructions”).

The “plain error” test adopted by this Court in State v. Kelly... authorizes reversal of a conviction if the instruction was erroneous, the error was obvious, the instruction likely affected the outcome of the proceedings, and the error seriously affected the fairness, integrity or public reputation of judicial proceedings. Satisfying all four prongs of this standard is difficult, as it should be.

(Citations and punctuation omitted.) Lake v. State, 293 Ga. 56, 59 (5) (743 SE2d 414) (2013).

The question before us is whether the trial court’s instruction on the lesser included offense of sexual battery ****8 was properly tailored to the facts alleged in the indictment.

[I]t is error to give a charge stating that an offense may be committed in more than one manner when (1) only one manner is alleged in the indictment, and (2) facts in evidence raise a reasonable probability that the jury may have convicted the defendant of committing the offense in a manner not charged in the indictment.

(Citations omitted.) Elrod v. State, 238 Ga. App. 80, 83 (2) (517 SE2d 805) (1999). With respect to the lesser included offense of sexual battery, the indictment implicitly alleged that Henderson committed the specific act of touching the victim’s sexual organ with his finger. This is because the defendant cannot penetrate the victim’s sex organ with his finger without first touching it. “As we have explained, no averment in an indictment can be rejected as surplusage which is descriptive either of the offense or of the manner in which it was committed. All such averments must be proved as laid, or the failure to prove the same as laid will amount to a variance.” (Citation and punctuation omitted.) Id.

In this case, the jury’s question reveals that it was particularly interested in whether it could find Henderson guilty of sexual battery even if it concluded that he had not used his finger to touch the victim’s sexual organ. The court’s recharge essentially answered that question in the affirmative. Given that the facts showed that Henderson had touched the victim’s sexual organ with his mouth as well as with his finger, there exists a reasonable probability that the jury may have convicted the defendant of committing the offense in a manner not specified in the indictment. Thus, both the court’s charge and recharge on sexual battery were erroneous given the court’s failure to limit the charge to manner of touching alleged in the indictment. See Elrod v. State, 238 Ga. App. at 83-84 (2) (Because the court’s recharge informed the jury that an aggravated assault could be committed in a way not set forth in the indictment, and it contained no remedial instruction limiting the jury’s consideration to the facts alleged in the indictment, it constituted reversible error.). This error is “an obvious defect rather than a merely arguable defect.” Terry v. State, 291 Ga. 508, 509 (2) (731 SE2d 669) (2012). Additionally, we conclude that the erroneous charge affected Henderson’s substantial rights and likely contributed to the outcome of the case, given that it authorized the jury to convict him of sexual battery in a manner that was not alleged in the indictment. Finally, because we find that the erroneous charge seriously affected the fairness of Henderson’s trial with respect to the lesser included offense of sexual battery, we exercise our discretion to reverse his conviction on that charge. See Patterson v. State, 328 Ga. App. 111, 116-121 (4) (761 SE2d 524) (2014) (The trial court erred in instructing the jury on the offense of possession of hydrocodone, as the instruction allowed the jury to convict the defendant under OCGA § 16-13-30 (a), without consideration of one of the essential elements, knowledge that the pill contained hydrocodone.).

2. Henderson also contends that the trial court’s jury instruction concerning the offense of aggravated child molestation constituted plain error. He contends that the court erred in charging the jury that it could find the defendant guilty of aggravated child molestation if it found that “any” act of sodomy involving himself and the victim had occurred when the indictment specifically defined the act of sodomy as involving “the mouth of [A. S.] and the sexual organ of the accused[.]” Our review of the court’s charge reveals no such error.

The court instructed the jury concerning the specific charge against Henderson as set forth in the indictment, specifically that Henderson required the child “to perform oral sex on [him], said act involving the mouth of the child and the sexual organ of the accusedf.]” The court also fully and correctly defined aggravated child molestation, and it instructed the jury that it was required to determine whether Henderson had committed the offense “as it’s charged in Count 2[.]” Consequently, we find no error and affirm Henderson’s conviction for aggravated child molestation.

Decided September 3, 2015.

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

Leigh E. Patterson, District Attorney, F. Kevin Salmon, Assistant District Attorney, for appellee.

Judgment affirmed in part and reversed in part.

McFadden, J., concurs. Dillard, J., concurs in judgment only.

DILLARD, Judge,

concurring in judgment only.

I concur fully in Division 2 of the majority opinion. As to Division 1,1 concur in judgment only because I do not agree with all that is said in that division. As a result, the majority’s opinion in Division 1 decides only the issues presented in that division and may not be cited as binding precedent. See Court of Appeals Rule 33 (a).

        Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979).

       This first part of the court’s charge tracks the language of OCGA § 16-6-22.1 (b): “A person commits the offense of sexual battery when he or she intentionally makes physical contact with the intimate parts of the body of another person without the consent of that person.”

       We note that the court was authorized to charge the jury on sexual battery as a lesser included offense of aggravated sexual battery. The offense of sexual battery is included in the offense of aggravated sexual battery as a matter of law; it is missing only the additional element of penetration. See OCGA§§ 16-6-22.1 (b); 16-6-22.2; 16-1-6 (1); Smith v. State, 310 Ga. App. 392, 394 (2) (713 SE2d 452) (2011) (“[A] conviction for aggravated sexual battery requires proof of penetration, while a sexual battery conviction does not.”) (citations omitted).


text:
    A15A1050.
    In the Interest of B. C., a child.
    (777 S.E.2d 52)
   Miller, Judge.

The State filed a petition alleging that then 13-year-old B. C. committed the delinquent acts of aggravated sodomy, aggravated child molestation and child molestation. At the adjudicatory hearing, B. C. informed the juvenile court that, pursuant to plea negotiations with the State, he intended to enter an Alford plea to the child molestation charge in exchange for dismissal of the remaining charges. The trial court denied B. C.’s request, findingthat OCGA § 15-11-580, which the legislature enacted in 2013 as part of the new Juvenile Code, does not authorize the entry of an Alford plea in juvenile court. This Court granted B. C.’s application for interlocutory review. On appeal, B. C. contends, and the State agrees, that the juvenile court erred in finding that OCGA § 15-11-580 prohibits Alford admissions. For the reasons that follow, we vacate the juvenile court’s order and remand this case.

An Alford plea allows an individual accused of a crime to “voluntarily, knowingly, and understandingly consent to the imposition of a prison sentence even if he is unwilling or unable to admit his participation in the acts constituting the crime.” Alford, supra, 400 U. S. at 37. Juvenile courts in Georgia have historically accepted Alford pleas. See, e.g., In the Interest of J. L. B., 280 Ga. App. 556, 561 (634 SE2d 514) (2006); In the Interest of L. T., 325 Ga. App. 590 (754 SE2d 380) (2014) (juvenile entered Alford plea while former Juvenile Code was in effect). In this case, however, the juvenile court narrowly interpreted OCGA § 15-11-580 as precluding the entry of an Alford plea in juvenile court.

The interpretation of a statute is a question of law, which this Court reviews de novo without deference to the juvenile court’s ruling. See Frix v. State, 298 Ga. App. 538, 539 (1) (680 SE2d 582) (2009).

In construing a statute, our goal is to determine its legislative purpose. In this regard, a court must first focus on the statute’s text. In order to discern the meaning of the words of a statute, the reader must look at the context in which the statute was written, remembering at all times that the meaning of a sentence may be more than that of the separate words, as a melody is more than the notes. If the words of a statute, however, are plain and capable of having but one meaning, and do not produce any absurd, impractical, or contradictory results, then this Court is bound to follow the meaning of those words.

(Citation omitted.) Frix, supra, 298 Ga. App. at 540 (1). In determining the legislative purpose, we presume that the statute was enacted by the legislature with full knowledge of the existing law. See State v. Johnson, 292 Ga. 409, 412 (738 SE2d 86) (2013).

With these statutory rules of interpretation in mind, we turn to the language of OCGA § 15-11-580. With regard to the admission or denial of allegations in a delinquency petition, OCGA § 15-11-580 provides that the child may:

(1) Deny the allegations of such petition, in which case the court shall proceed to hear evidence on such petition; or
(2) Admit the allegations of such petition, in which case the court shall further inquire to determine whether there is a factual basis for adjudication. If so, the court may then adjudge such child to have committed a delinquent act.

OCGA § 15-11-580 (b). The statute further provides: “Ifa child stands mute, refuses to answer, or answers evasively, the court shall enter a denial of the allegations.” OCGA § 15-11-580 (c).

The plain language of OCGA § 15-11-580 provides that a child may admit the allegations in a delinquency petition, and nothing in the statute prohibits admissions made pursuant to an Alford plea, as long as there is a factual basis for the child’s delinquency adjudication. See OCGA § 15-11-580 (b)(2). Accordingly, we presume that the General Assembly enacted OCGA § 15-11-580 with the knowledge and understanding that Alford pleas have historically been accepted in Georgia’s juvenile courts. See, e.g., In the Interest of J. L. B., supra, 280 Ga. App. at 561; In the Interest of L. T., supra, 325 Ga. App. at 590.

Moreover, the provisions of OCGA § 15-11-580 are similar to the arraignment provisions set forth in the adult Criminal Code, which provide that the adult shall be required to answer whether he is guilty or not guilty of the charged offense, and if he pleads not guilty or stands mute then the clerk shall record a plea of not guilty. See OCGA §§ 17-7-93 and 17-7-94. As with OCGA § 15-11-580, the adult arraignment statutes make no express reference to the well-established practice of accepting Alford pleas in Georgia’s state and superior courts. See id.

Finally, any doubt regarding whether the General Assembly intended to allow Alford pleas in juvenile court must be resolved in favor of the General Assembly’s express statement that the Juvenile Code is intended to provide treatment and rehabilitation for juvenile offenders and “shall be liberally construed to reflect that the paramount child welfare policy of this state is to determine and ensure the best interests of its children.” (Emphasis supplied.) OCGA § 15-11-1.

Since the General Assembly has not expressly prohibited the entry of Alford pleas in juvenile court, and the juvenile court was required to construe OCGA § 15-11-580 liberally to ensure B. C.’s best interests, the juvenile court erred in narrowly interpreting that statute to preclude the entry of an Alford plea. Moreover, we note that both the State and B. C. believe that an Alford plea is in B. C.’s best interest. Accordingly, we vacate the juvenile court’s order and remand this case for further proceedings not inconsistent with this opinion.

Judgment vacated and case remanded.

Andrews, P. J., and Branch, J., concur.

Decided September 3, 2015.

Jacqueline C. Cauble, Jennifer A. Trieshmann, for appellant.

Peter J. Skandalakis, District Attorney, Rod R. Skiff, Assistant District Attorney, for appellee.

        North Carolina v. Alford, 400 U. S. 25 (91 SCt 160, 27 LE2d 162) (1970).

       We note that aggravated sodomy and aggravated child molestation are designated felonies when allegedly committed by a juvenile aged 13 to 17 years. See OCGA § 15-11-560. The superior court has original jurisdiction over those offenses, unless the State elects to decline prosecution in superior court and the case is transferred to the juvenile court. Id.

       See also Skinner v. State, 297 Ga. App. 828, 831 (2) (678 SE2d 526) (2009) (requiring inquiry into factual basis tor Alford plea); accord Alford, supra, 400 U. S. at 38, n. 10.


text:
    A15A1422.
    EWING v. EWING.
    (777 S.E.2d 56)
   Miller, Judge.

This interlocutory appeal arises from a divorce case in which the husband filed a motion for a protective order seeking to prohibit or limit the wife’s discovery requests with regard to private e-mails on the husband’s iPhone. The husband also filed a motion to quash the wife’s subpoenas for the production of his iPhone records. The husband appeals from the denial of both motions, contending that (1) the trial court abused its discretion in denying his motion to limit the wife’s use of the e-mails, and (2) the trial court erred in denying his motion to quash the wife’s subpoenas. For the reasons that follow we affirm.

“[A] trial judge has broad discretion in the enforcement of the discovery provisions of the Civil Practice Act, and we will not interfere with the exercise of that discretion absent clear abuse.” (Footnote omitted.) American Radiosurgery v. Rakes, 325 Ga. App. 161, 166 (2) (751 SE2d 898) (2013).

So viewed, the record shows that the husband and wife were married in December 2004. On Christmas Eve 2013, the husband and wife were traveling with their children to Louisiana when the wife picked up the husband’s iPhone and tried to open his music play list. The wife inadvertently opened the husband’s e-mail application and saw a photo of a woman, C. M., with her head lying on the husband’s chest. When she asked the husband about the picture, he told her that he and C. M. were at a work function.

Early the next morning after the family had gone to bed, the wife retrieved the husband’s iPhone, opened his e-mail application and found another picture of C. M. who was wearing a swimsuit. The wife also found sexually explicit videos of C. M. which C. M. had sent to the husband by e-mail.

The wife then woke her sister and asked the sister for help in forwarding the husband’s e-mails. The wife’s sister forwarded the husband’s e-mails containing the pictures and videos of C. M. to the wife’s e-mail account.

An hour or so later, the wife used the husband’s iPhone to text C. M. The wife asked C. M. in a text to “show me how much you miss me[.]” C. M. responded by sending a photo of herself lying down and blowing a kiss. The wife then sent C. M. a photo so that C. M. would know she was texting the wife. At that point, the husband came into the room, asked for his phone, and grabbed his stuff so he could leave.

The husband subsequently filed for a divorce, contending that the parties’ marriage was irretrievably broken. The wife filed a counterclaim for divorce contending that, inter alia, the husband was guilty of adultery. During discovery, the wife subpoenaed C. M. for the purpose of taking her deposition, and the wife subpoenaed the husband’s iPhone records from his wireless carrier. The wife also served the husband with notice of her intent to take his deposition, as well as a request for production of documents.

The husband filed a motion for a protective order and objection to the wife’s discovery requests. In his motion, the husband sought an order either prohibiting or limiting the wife’s discovery with regard to information obtained from his phone without his knowledge or permission. Specifically, the husband sought an order prohibiting the wife from taking C. M.’s deposition and prohibiting any discussion during his deposition regarding the e-mails that the wife viewed on his phone.

The husband also filed a motion to quash the wife’s subpoena for the production of his iPhone records. The trial court denied the husband’s motions for a protective order and to quash the subpoena for his iPhone records, and this appeal ensued.

1. The husband contends that the trial court abused its discretion in denying his motion for a protective order. We discern no error.

When a party seeks a protective order with regard to discovery, the trial court “may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense[.]” OCGA § 9-11-26 (c). Protective orders, however,

should not be awarded when the effect is to frustrate and prevent legitimate discovery. Further, this Court has held that protective orders are intended to be protective — not prohibitive — and, until such time as the [trial] court is satisfied by substantial evidence that bad faith or harassment motivates the discoveror’s action, the court should not intervene to limit or prohibit the scope of pretrial discovery.

(Punctuation and footnotes omitted.) Galbreath v. Braley, 318 Ga. App. 111, 113 (733 SE2d 412) (2012). The grant or denial of a motion for a protective order generally lies within the trial court’s discretion, and this Court will not reverse the trial court’s ruling absent clear abuse. See Agio Corp. v. Coosawattee River Resort Assn., 328 Ga. App. 642, 642-643 (760 SE2d 691) (2014).

“Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action[.]” (Punctuation omitted.) OCGA § 9-11-26 (b) (1). “[I]n the discovery context, courts should and ordinarily do interpret ‘relevant’ very broadly to mean matter that is relevant to anything that is or may become an issue in the litigation.” (Citation and punctuation omitted.) Bowden v. The Medical Center, 297 Ga. 285, 291 (2) (a) (773 SE2d 692) (2015).

“It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.” (Punctuation omitted.) OCGA § 9-11-26 (b) (1). Moreover, in divorce cases, such as this case, in which the equitable division of property is at issue, the conduct of the parties, including evidence of a spouse’s alleged adultery, is relevant and admissible. See Wood v. Wood, 283 Ga. 8, 11 (5) (655 SE2d 611) (2008). Accordingly, the wife is entitled to engage in discovery which might lead to admissible evidence of the husband’s alleged adultery. See OCGA § 9-11-26 (b) (1). Cf. Smith v. Smith, 293 Ga. 563, 566 (5) (748 SE2d 456) (2013) (trial court did not abuse its discretion in denying husband’s motion for new trial based on newly discovered evidence of wife’s adultery where husband had opportunity to engage in discovery concerning the possibility of alleged adultery and he chose not to).

The husband nevertheless argues that he is entitled to a protective order prohibiting the wife from asking questions about the e-mails, pictures and videos which the wife viewed on his iPhone and forwarded to others. In support of his argument, the husband relies on Ransom v. Ransom, 253 Ga. 656 (324 SE2d 437) (1985), which held that Georgia’s wiretapping statute, OCGA § 16-11-62, protects spouses from invasions upon their privacy, including the clandestine recording of a spouse’s private telephone conversations. See id. at 658 (1). Ransom, however, involved the issue of whether the recorded telephone conversations were admissible for impeachment purposes at the parties’ divorce trial, not whether a spouse is entitled to ask questions during discovery which might lead to admissible evidence. See id. at 659 (3).

Decided September 3, 2015.

Arnold & Stafford, Jeffery L. Arnold, Andrew S. Johnson, for appellant.

Richard A. Sanders, Jr., for appellee.

Regardless of the admissibility or inadmissibility of the content of the husband’s e-mails, including the photos and videos of C. M., the wife is entitled to engage in discovery which might lead to admissible evidence of the husband’s alleged adultery. Consequently, the trial court did not abuse its discretion in denying the husband’s motion for a protective order.

2. Without citing any authority, the husband argues that the trial court erred in denying his motion to quash the wife’s subpoena for his iPhone records, because the subpoena is the fruit of the poisonous tree. We disagree.

As set forth above, matters which are relevant and not privileged are discoverable, regardless of whether the information sought will be admissible at trial. OCGA § 9-11-26 (b) (1). The husband does not argue that his iPhone records are not discoverable. Accordingly, the husband has not shown that the trial court erred in denying his motion to quash the subpoena for his iPhone records.

Judgment affirmed.

Andrews, P. J., and Branch, J., concur.

       The husband originally filed his appeal in the Supreme Court of Georgia. After the case was transferred to this Court, we granted the husband’s application for interlocutory review.

       At the outset, we note that the husband failed to include an enumeration of error in his brief, as is required by Court of Appeals Rule 22 (a) and Rule 25 (a) (2). Accordingly, we address the husband’s arguments to the extent that we are able to discern them from the notice of appeal and the record. See OCGA § 5-6-48 (f).

       Although the husband had an individual contract for the iPhone, the husband and wife used each other’s phone “all of the time,” and the wife would play games and take pictures with the husband’s phone.

       The husband also cites to Middleton v. Middleton, 259 Ga. 41 (376 SE2d 368) (1989), which held that tape recordings made by the husband of the wife’s lascivious conversations on a family telephone were inadmissible.