author: Miller, Judge.

text:
    A13A0936.
    GEORGIA DEPARTMENT OF COMMUNITY HEALTH v. NORTHSIDE HOSPITAL, INC. KENNESTONE HOSPITAL, INC. v. NORTHSIDE HOSPITAL, INC.
    A13A0937.
    (767 SE2d 290)
    Decided December 16, 2014.

      Samuel S. Olens, Attorney General, AlexF. Sponseller, Assistant Attorney General, for appellant (case no. A13A0936).

      Parker, Hudson, Rainer & Dobbs, Armando L. Basar rate II, Ashley L. Filip, for appellant (case no. A13A0937).

      McKenna Long & Aldridge, Kathlynn B. Polvino, Robert M. Rozier, for appellee.
   Miller, Judge.

In Ga. Dept. of Community Health v. Northside Hosp., 295 Ga. 446 (761 SE2d 74) (2014), the Supreme Court of Georgia reversed this Court’s opinion in Ga. Dept. of Community Health v. Northside Hosp., 324 Ga. App. 326 (750 SE2d 401) (2013). We therefore vacate our earlier opinion, adopt the opinion of the Supreme Court as our own, and reverse the trial court’s judgment.

Judgment reversed.

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


source: Caselaw Access Project

author: ELLINGTON, Presiding Judge.

license: Public Domain

text:
    A14A1814.
    McNAIR v. THE STATE.
    (767 SE2d 290)
   ELLINGTON, Presiding Judge.

A Richmond County jury found Darrell McNair guilty of four counts of armed robbery, OCGA § 16-8-41 (a); and four counts of possessing a firearm during the commission of a crime, OCGA § 16-11-106 (b). McNair appeals from the denial of his motion for a new trial. He argues that the trial court erred in admitting certain evidence and in failing to give the jury a limiting instruction. He also contends the court erred in denying his motion for a new trial on his claim of ineffective assistance of counsel. Finding no reversible error, we affirm.

Viewed in the light most favorable to the jury’s verdict, the record shows the following. During the spring of 2012, the Augusta Police Department investigated a series of armed robberies that they discovered were related. The first occurred on March 25, 2012, when William Moody and Saxon Washington were robbed at gunpoint. Moody testified that he and Washington were standing in the driveway of Washington’s Richmond County home, repairing a car. Moody noticed a gray Pontiac Grand Am parked a short distance away and suspected that the occupants, two men and a woman, were watching them. Shortly thereafter, the woman drove the Pontiac away and the two men walked up and asked them for marijuana. One of the men pulled a gun from his waistband, pointed it at Moody, and demanded money. The other man searched the victims’ pockets. The men took Washington’s wallet and about $480 from Moody. Moody called the police, who responded quickly. Although the police were unable to locate the robbers, they found Washington’s wallet in the street a short distance away. Moody speculated that the robbers had escaped in the car he had seen earlier. In their report, the police noted the victims’ description of the car and of the robbers, including that one of them had distinctive facial tattoos.

The second incident occurred on March 27, 2012. As Andrew Blair was walking across a parking lot to a convenience store, he observed a gray Pontiac Grand Am parked near him. Three men got out of the car, and one asked him for some “weed.” When Blair noticed that the men were all armed with handguns, he ran. The men chased and caught Blair, and they took his cell phone. Afraid he was going to be shot, Blair struggled free and ran to the convenience store. A store employee called the police, who responded immediately. Blair showed a responding officer the gray Pontiac, which was still parked in the lot, and the police impounded it. In the back seat of the car, the police found a bullet and a mask.

An investigator determined that the car belonged to Willie McNair, a cousin of the appellant. The investigator testified that he interviewed the cousin and that the cousin told him that he had loaned his car to Andrew Dunn and that the car had been stolen while in Dunn’s possession. The investigator recorded his interview with the appellant’s cousin, and the recording was played for the jury at trial. The State also offered the testimony of an assistant district attorney (“ADA”) who interviewed the cousin before trial. The ADA testified that, during his interview, the cousin told him that he had rented his car to Dunn and McNair. The cousin also told the ADA that McNair was the one who had informed him that his car had been stolen.

The third incident occurred on April 8, 2012. Sharome Simmons and Lafayette Yarbray were walking along a Richmond County street when two men on bicycles rode up to them. One man tried to snatch a gold chain from Simmons’ neck while the other demanded money and threatened to shoot them with a handgun. Simmons gave the men his necklace, and Yarbray surrendered over $300 in cash. The robbers then fled on their bicycles, and Yarbray, Simmons, and a deputy who had been dispatched to the area on a “shots fired” call, each independently pursued them. The deputy caught the robbers, whom he identified as Dunn and McNair, and detained them in a patrol car. Yarbray and Simmons approached the deputy and told him that the men in his custody had just robbed them. The deputy searched Dunn and McNair and found $180 in Dunn’s pockets, $202 in McNair’s pockets, and Simmons’ gold chain on the floorboard of the patrol car at McNair’s feet. Both Yarbray and Simmons identified McNair and Dunn at trial. The State also presented the testimony of a witness who, on April 8, had seen two men hiding from the deputy in her carport. The witness found a handgun near where the men had been hiding and called the police to retrieve it.

Based on information gleaned from the second and third incidents, investigators prepared photographic lineups containing images of Dunn and the appellant to show to Blair, Moody, and Washington. Blair positively identified Dunn from the lineup and later at trial. Moody identified McNair and Dunn from the photographic lineups and also later at trial. Moody also identified from a photograph the impounded Pontiac he had seen just before the robbery. And, finally, the handgun recovered during the third incident matched the one that Moody described to the police as having been used against him.

1. In related claims of error, McNair contends that the trial court erred in admitting into evidence his cousin’s statements concerning the allegedly stolen Pontiac Grand Am on the grounds that the statements constituted hearsay that was not admissible for purposes of impeachment. We disagree.

With respect to these arguments, the record shows the following relevant facts. The prosecution called the cousin to testify about the circumstances surrounding the alleged theft of his car and how the car came to be impounded by the police. However, when the cousin was asked to identify his car, he denied owning it or having rented it to anyone, and he claimed to have no recollection of speaking with the police. The trial court allowed the prosecution to treat the cousin as a hostile witness and to ask him leading questions. When asked about the specific statements that he had made concerning the car during his interviews with investigators, he gave repeated, blanket “I can’t recall” responses, asserting that he had no recollection of having spoken with the police or with anyone from the district attorney’s office. On cross-examination by McNair’s defense counsel, the cousin claimed that his memory had been impaired by his abuse of illegal drugs. Yet he was able to recall in great detail the circumstances surrounding the five armed robbery indictments pending against him as well as the fact that he had not been given any leniency by the prosecution in exchange for his testimony in the instant case.

After the cousin had been excused, the State introduced, over defense counsel’s objections, the testimony of the police investigator who had first interviewed the cousin, the recorded statement the cousin gave the investigator, and the testimony of the ADA who later interviewed the cousin prior to trial. With respect to the recorded statement, McNair objected to it on the ground that the State had failed to lay a proper foundation for its introduction and that he could no longer confront and cross-examine the witness concerning the statement. The appellant also objected to the admission of the ADA’s testimony on additional grounds, including that it was improper to allow an ADA involved in the case to testify, that the State could not impeach its own witness, that the statements constituted inadmissible hearsay, and that it was improper to introduce the statements as substantive evidence for the purpose of impeachment.

(a) The record shows that the State laid a proper foundation for the admission of the cousin’s out-of-court statements. The eviden-tiary rules pertaining to examining witnesses on their prior inconsistent statements and using those statements for impeachment purposes or as substantive evidence are currently codified at OCGA §§ 24-6-613 and 24-8-801 (d) (1) (A). These new evidentiaryrules “retain Georgia’s [former] approach to a testifying witness’s out-of-court statements. Such statements are not hearsay.” (Footnote omitted.) Milich, Georgia’s New Evidence Code, 28 Ga. State U. L. Rev. 379, 390 (Winter 2012). Thus, they may be admitted both for impeachment purposes and as substantive evidence. See Gibbons v. State, 248 Ga. 858, 862 (286 SE2d 717) (1982) (“[A] prior inconsistent statement of a witness who takes the stand and is subject to cross-examination is admissible as substantive evidence, and is not limited in value only to impeachment purposes.”) (decided under former OCGA § 24-9-83).

Further, contrary to McNair’s argument, the prosecutor was not required to show the witness his recorded statements during direct examination to refresh his recollection. OCGA § 24-6-613 (a). Nor was it improper for the prosecutor to impeach his own witness. OCGA § 24-6-607. Moreover, the prosecutor was authorized to present extrinsic evidence of the witness’s prior inconsistent statements for impeachment purposes and as substantive evidence, given the facts of this case. OCGA § 24-6-613 (b) provides, in relevant part: The record shows that the witness testified that he did not own the car at issue and that he did not rent it to anyone — statements inconsistent with those previously given in the case. Both the prosecutor and defense counsel examined the witness as to each of his prior inconsistent statements. The witness was afforded an opportunity to explain or to deny his prior inconsistent statements, and he chose to explain them by saying that, because of his drug use, he simply had no recollection of making them. Given the State’s compliance with the prerequisites of OCGA § 24-6-613 (b), the trial court did not err in admitting extrinsic evidence of the cousin’s prior inconsistent statements both for impeachment purposes and as substantive evidence. See Gibbons v. State, 248 Ga. at 862.

Except as provided in Code Section 24-8-806, extrinsic evidence of a prior inconsistent statement by a witness shall not be admissible unless the witness is first afforded an opportunity to explain or deny the prior inconsistent statement and the opposite party is afforded an opportunity to interrogate the witness on the prior inconsistent statement or the interests of justice otherwise require. . . .

(b) McNair argues that the prosecutor knew that the cousin was reluctant to testify against McNair, but called him to the stand anyway with the intent of eliciting substantive evidence through his prior inconsistent statements — evidence, he argues, that the law would not otherwise allow, citing United States v. Gilbert, 57 F3d 709, 711 (9th Cir. 1995) (“Impeachment is improper when employed as a guise to present substantive evidence to the jury that would be otherwise inadmissible.”) (citations omitted). McNair has not shown that the Gilbert case is persuasive authority under Georgia law given that, unlike the Federal Rules of Evidence, OCGA § 24-6-613 (b) allows a testifying witness’s prior inconsistent statements to be admitted both for impeachment purposes and as substantive evidence, making the prosecutor’s intent under the circumstances irrelevant.

(c) McNair argues that the trial court erred in allowing the ADA to testify as to the cousin’s prior inconsistent statements because the ADA was a prosecutor handling the case.

“The practice of trial attorneys testifying is not approved by the courts except where made necessary by the circumstances of the case.” Timberlake v. State, 246 Ga. 488, 500 (7) (271 SE2d 792) (1980). Because allowing an advocate to testify as a “witness poses innumerable threats to the integrity and reliability of the judicial process [,]” Castell v. Kemp, 254 Ga. 556, 557 (331 SE2d 528) (1985), courts have often refused to permit a prosecutor to testify as a “witness unless there is a compelling need.” (Citations and punctuation omitted.) United States v. Roberson, 897 F2d 1092, 1098 (IV) (F) (11th Cir. 1990). Whether to allow a prosecutor to testify as a witness in a case is a matter within the discretion of the trial judge. Timberlake v. State, 246 Ga. at 501 (7): In this case, however, we need not reach the question of whether the trial court abused its discretion in allowing the ADA to testify because the record shows that the ADA was not acting as a prosecutor in the case.

The record shows that the ADA who testified was not responsible for trying McNair and that his only appearance during the trial of the case (other than as a witness) was to enter the courtroom briefly before jury selection commenced because the prosecutor who actually tried the case had planned to have the ADA assist him with jury selection. He did not question any prospective jurors. When it became clear that the ADA might need to offer testimony in the case, he was removed from the courtroom and was sequestered with the other trial witnesses. Further, defense counsel was notified prior to trial of his status as a potential witness. The record does not support a finding that the ADA was listed as counsel for the trial of the case, nor does the record support an inference that he was present in the courtroom for trial in a capacity that would lead the jury into believing that he was prosecuting the case. In fact, he testified that the instant case was not assigned to him, and he told the jury: “I have not been a part of preparing this case outside of meeting at the ... jail [to interview] Willie McNair.” Given these facts, McNair has failed to show any impropriety in allowing the ADA to testify.

2. McNair contends that the trial court erred in failing to give the jury “limiting instructions for evidence presented against [McNair’s co-defendant]” concerning charges that were unique to the co-defendant. The record does not reflect that McNair requested such a charge in writing, and he concedes that in his appellate brief. The record shows that the trial court suggested a limiting instruction which counsel found acceptable, and that the court gave the jury substantially the same instruction in the final charge of the court. When the court asked if counsel had any objections to the jury charge given, counsel responded in the negative.

Where, as in this case, “no objection is made to a jury charge at trial, appellate review for plain error is required whenever an appealing party properly asserts an error in jury instructions.” (Citation and punctuation omitted.) Van v. State, 294 Ga. 464, 466 (2) (754 SE2d 355) (2014). The “plain error” test authorizes a reversal of a conviction only “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.” (Citation and punctuation omitted.) Id. In this case, there was no error as the instruction given was neither required nor erroneous. The limiting instruction the court gave may have been, in hindsight, unsatisfactory to McNair, but

[i]t has long been the rule in this State that [w]hen evidence is admitted for one purpose, as it was in the instant case, it is not error for the court to fail to instruct the jury to limit its consideration to the one purpose for which it is admissible, in the absence of a request to so instruct the jury.

(Citations omitted; emphasis in original.) State v. Belt, 269 Ga. 763, 764 (505 SE2d 1) (1998). See also OCGA § 24-1-105 (“When evidence which is admissible as to one party or for one purpose but which is not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly”) (emphasis supplied). In this case, not only was there no request, counsel approved of the limiting charge given. We find no error in the instruction given and, consequently, no plain error warranting reversal.

3. McNair contends that his defense counsel provided ineffective assistance in the following respects: He argues that his counsel failed to adequately investigate the case and to call alibi witnesses at trial, that she improperly waived his motion to sever, that she failed to secure adequate limiting instructions, and that she failed to request limiting instructions restricting evidence of his prior conviction to a proper purpose. For the following reasons, we find no reversible error in the trial court’s ruling denying McNair’s motion for new trial on this ground.

In order to prevail on a claim of ineffective assistance of counsel, a criminal defendant must show that counsel’s performance was deficient and that the deficient performance so prejudiced the client that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different. The criminal defendant must overcome the strong presumption that trial counsel’s conduct falls within the broad range of reasonable professional conduct.

(Citations and punctuation omitted.) Robinson v. State, 277 Ga. 75, 75-76 (586 SE2d 313) (2003). See Strickland v. Washington, 466 U. S. 668 (104 SCt 2052, 80 LE2d 674) (1984).

“As a general rule, reasonable trial tactics and strategies do not amount to ineffective assistance of counsel.” (Citation omitted.) Woods v. State, 304 Ga. App. 403, 409 (4) (696 SE2d 411) (2010). “The decisions on which witnesses to call and all other strategies and tactical decisions are the exclusive province of the lawyer after consultation with his [or her] client.” (Citation and punctuation omitted.) Moreland v. State, 263 Ga. App. 585, 588 (4) (588 SE2d 785) (2003). “Whether an attorney’s trial tactics [were] reasonable is a question of law, not fact.” (Citation and punctuation omitted.) Id. “When assessing the reasonableness of counsel’s actions, a court must evaluate counsel’s performance from his or her perspective at the time of trial.” (Citations omitted.) Woods v. State, 304 Ga. App. at 409 (4). This Court reviews a trial court’s ruling on an ineffective assistance claim on appeal by “accepting] the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.” (Citation and punctuation omitted.) Robinson v. State, 277 Ga. at 76.

(a) The record does not support McNair’s contention that trial counsel failed to adequately investigate his case and to call alibi witnesses at trial. Counsel testified that she reviewed all of the evidence obtained during discovery, including witness statements and recordings, and she developed several theories of defense, including alibi and misidentification. She interviewed witnesses, including alleged alibi witnesses, and she had them under subpoena for trial. She negotiated a plea offer, which McNair rejected. She filed appropriate discovery motions and filed a motion to sever the co-defendants’ trials.

With respect to alibi witnesses, counsel testified that she and McNair jointly made the decision not to call alibi witnesses, primarily for the reason that McNair feared that they might hurt his defense. In fact, it was possible that one of the robbery victims might recognize one of his alibi witnesses as a participant in the first armed robbery. Most of McNair’s alleged alibi witnesses were family members, and counsel testified that, although they were under subpoena, they failed to appear when they were due to testify. Counsel testified that she discussed with McNair whether to have the witnesses brought to court. McNair decided that he did not want them, and counsel elected to proceed without them. This was a reasonable trial strategy, and reasonable trial strategy does not constitute deficient performance. See Moreland v. State, 263 Ga. App. at 588 (4). Consequently, McNair has failed to show that the trial court erred in denying his motion for a new trial on this basis.

(b) The record does not support McNair’s contention that his trial counsel erred when she waived at trial her previously filed motion to sever. Counsel testified that McNair was afraid that, if his trial was severed from Dunn’s, Dunn might be more willing to accept a plea bargain in exchange for his testimony against McNair at trial. Dunn had been offered a better plea bargain given that his criminal record was not as serious as McNair’s. Counsel only abandoned the severance motion after discussing it with McNair and after learning that he and Dunn wanted to convey a “united front” at trial. The record supports that counsel made a sound, strategic decision to abandon the motion, and reasonable trial strategy does not constitute deficient performance. See Moreland v. State, 263 Ga. App. at 588 (4). Consequently, McNair has failed to show that the trial court erred in denying his motion for a new trial on this basis.

(c) Although the record supports McNair’s contention that counsel did not make a written request for a limiting instruction concerning evidence applicable only to McNair’s co-defendant, the record does support a finding that counsel agreed to the limiting instruction suggested by the trial court, an instruction included in the final charge to the jury. See Division 2, supra. McNair has not demonstrated that the failure to request a more detailed limiting instruction or to insist that such an instruction be given at the time the evidence was presented constituted error under the circumstances or that it resulted in any prejudice to McNair’s defense.

The record reveals that, consistent with their unified defense, McNair testified that he and Dunn were friends, and that they had both been misidentified as participants in the first two robberies after they had been wrongfully arrested as suspects in the third robbery. McNair testified that he and Dunn were victims of the third robbery, and that an unknown person had actually shot Dunn. Distancing himself from Dunn was not part of McNair’s trial strategy. Given the nature of McNair’s defense, it was not an unreasonable strategy to refrain from requesting more detailed limiting instructions, and reasonable trial strategy does not constitute deficient performance. See Moreland v. State, 263 Ga. App. at 588 (4). Consequently, McNair has failed to show that the trial court erred in denying his motion for a new trial on this basis.

Decided December 16, 2014.

John M. Kraft, for appellant.

Ashley Wright, District Attorney, Madonna M. Little, Assistant District Attorney, for appellee.

(d) Finally, McNair contends that counsel erred in failing to request a limiting instruction pertaining to a prior burglary conviction that the State used to impeach him with during his testimony at trial. The record shows, however, that McNair testified on direct examination that he had been convicted of that burglary when he was 14 years old and that he went to “adult prison” after he violated his probation. As a consequence of that experience, he testified that he learned “to do no more crimes.” McNair also testified that he was not allowed to have a handgun. Counsel’s preemptive use of McNair’s prior conviction, knowing that it would be used to impeach him on cross-examination, demonstrates a reasonable trial strategy. That counsel did not ask for a limiting instruction under these circumstances is consistent with that reasonable strategy, and reasonable trial strategy does not constitute deficient performance. See Moreland v. State, 263 Ga. App. at 588 (4). Consequently, McNair has failed to show that the trial court erred in denying his motion for a new trial on this basis.

Judgment affirmed.

Phipps, C. J., and McMillian, J., concur.

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

       Only McNair’s co-defendant, Andrew Dunn, was indicted for this offense.

       Washington did not identify anyone from the photographic lineups. The State did not call him as a witness because he died prior to trial.

       When a witness demonstrates reluctance to testify about a crime, a trial court has “great latitude to permit the [prosecutor] to treat [the witness] as a hostile witness and propound leading questions.” (Citations omitted.) Knight v. State, 266 Ga. 47, 49 (4) (b) (464 SE2d 201) (1995). Moreover, “[w]hether leading questions are permitted is within the trial court’s discretion, and exercise of that discretion will not be interfered with by the appellate courts unless the discretion is abused.” (Citations omitted.) Id. We find no merit to McNair’s contention that the court erred in allowing leading questions.

       The prosecutor asked the witness the following questions: “Do you remember telling [the investigator], back on March 28th, 2012, that you did own a silver Pontiac? ... Do you remember . . . calling to report [the car] stolen? ... Do you remember .. . identifying Andrew Dunn as the person who had rented your car that night, and the Sunday before? Do you remember talking to some people from the D.A.’s office last fall?... You don’t remember telling anybody last fall that Darrell McNair was also one of the people that rented your car?”

       Because this case was tried after January 1, 2013, Georgia’s new Evidence Code applies. See Ga. L. 2011, pp. 99, 214, § 101. Former OCGA § 24-9-83, which provided in relevant part that “[a] witness may be impeached by contradictory statements previously made by him as to matters relevant to his testimony and to the case[,]” was repealed effective January 1, 2013 and replaced with OCGA § 24-6-613. See Ga. L. 2011, p. 99, § 1; Jones v. State, 326 Ga. App. 658 (757 SE2d 261) (2014).

       Pursuant to OCGA § 24-8-801 (d) (1) (A), a prior out-of-court statement by a witness “shall not be hearsay if the declarant testifies at the trial or hearing, is subject to cross-examination concerning the statement, and the statement is admissible as a prior inconsistent statement or a prior consistent statement under Code Section 24-6-613 or is otherwise admissible under this chapter.”

       “In examining a witness concerning a prior statement made by the witness, whether written or not, the statement need not he shown nor its contents disclosed to the witness at that time; provided, however, upon request the same shall be shown or disclosed to opposing counsel.” OCGA § 24-6-613 (a).

       “The credibility of a witness may he attacked by any party, including the party calling the witness.” OCGA § 24-6-607.

       Under Federal Rule of Evidence 801 (d) (1) (A), the cousin’s statements would have been inadmissible hearsay because they were not made under oath. The federal rule provides, in relevant part, that a prior inconsistent statement of a declarant-witness is not hearsay if it “was given under penalty of perjury at a trial, hearing, or other proceeding or in a deposition.” OCGA § 24-8-801 (d) (1) (A) has no such limitation. See footnote 7, supra.

       See footnote 7, supra. See also Milich, Georgia’s New Evidence Code, 28 Ga. State U. L. Rev. 379, 389-390 (Unlike the federal rules, “Georgia’s . . . definition [of hearsay] does not include the out-of-court statements of a testifying witness.”) (footnote omitted).

       The record does not support appellant’s assertion that the prosecutor knew that Willie McNair would offer testimony contrary to his prior statements to police. In fact, it is clear from the transcript that neither the prosecutor nor defense counsel knew what the witness intended and they were all equally struggling with how to plan their trial strategy given that uncertainty.

       The court advised the jury as to those charges in the indictment that applied to the co-defendant, to McNair, or to both; further, the court briefly outlined the evidence asserted against each defendant in each charge. The court advised the jury that it must determine the guilt or innocence of each defendant separately. Shortly thereafter, the court charged the jury: “Now, after considering the testimony and evidence presented to you, together with the charge of the Court, you should consider each charge and each defendant individually.”


text:
    A14A2284.
    BROWN v. THE STATE.
    (767 SE2d 299)
   ELLINGTON, Presiding Judge.

Daniel Brown stands charged with driving under the influence of alcohol to the extent that it was less safe to drive, OCGA § 40-6-391 (a) (1); driving under the influence of alcohol while having a blood alcohol concentration of 0.08 grams or more, OCGA § 40-6-391 (a) (5); and 12 counts of possessing a lewd depiction of a minor child in violation of OCGA § 16-12-100 (b) (8). After a hearing, the Superior Court of Athens-Clarke County denied Brown’s motion to suppress evidence seized as a result of a warrantless search of his cell phone. Following our grant of his application for interlocutory review, Brown appeals, contending, inter alia, that the warrantless search of the digital contents of his cell phone violated his Fourth Amendment right to be free from unlawful searches. We agree and reverse.

“[W]here the facts relevant to a suppression motion are undisputed, . . . and no question regarding the credibility of witnesses is presented, the trial court’s application of the law to undisputed facts is subject to de novo appellate review.” (Citation, punctuation and footnotes omitted.) State v. Underwood, 283 Ga. 498, 500 (661 SE2d 529) (2008).

Viewed in favor of the trial court’s ruling, the evidence shows that at 2:00 a.m. on December 30, 2012, Brown drove his vehicle into the path of oncoming traffic and forced an unmarked police car off the road. The Athens-Clarke County police officer stopped Brown’s vehicle and began a DUI investigation. As the officer questioned Brown, he observed that Brown smelled of alcohol, had slurred speech, and had bloodshot, glassy eyes. Brown admitted to recently drinking alcohol. After a second officer arrived in a patrol car to assist with the traffic stop, the first officer arrested Brown for DUI and confined him in the back of the patrol car.

The second officer sat in the front seat of the patrol car, while the arresting officer continued his investigation. Brown’s cell phone, which the officer had on the front seat beside him, rang several times. Brown asked the officer to answer the phone and talk to his father, but the officer simply muted the phone each time it rang. The last time Brown’s phone rang, the officer muted it and then opened the pictures application on the phone. The officer decided “to look through the phone to see if there was any evidence... that would substantiate the stop or [show Brown] previously drinking before the stop.” The officer began scrolling through the photographs stored on the phone and went through ten to twelve images. After the first couple of pictures, there was a picture of a nude adult woman, and within the next few pictures the officer saw images that appeared to be child pornography.

At the hearing on Brown’s motion to suppress, the officer explained his reason for opening the pictures application as follows. He testified that, in his experience, some people who are out drinking and partying use their phones to capture the moment or send text messages about what they are doing. He testified that, because of this, phones have yielded evidence in cases involving a minor in possession of alcohol. In addition, he testified that phones have contained evidence of suspects possessing guns or gang-related paraphernalia. On cross-examination, the officer admitted that he had never looked for or found evidence of DUI on an arrestee’s phone. Aside from his “general experience as an officer,” the officer testified he did not have “any [particular] reason to believe” that Brown had evidence on his cell phone that he had committed the offense of driving under the influence of alcohol. He testified specifically that he “never saw [Brown] text on his cell phone”; “never saw him input data on his cell phone”; “never saw him take a picture” with his cell phone; and “never received any intelligence” from anyone else that there was evidence of DUI on Brown’s cell phone.

Based solely on information the officer provided about images he observed on Brown’s phone, a detective applied for and obtained a search warrant to look for evidence of sexual exploitation of a child on the phone. A cyber-crime and digital forensics examiner executed the search warrant and found the images that formed the basis for the 12 counts of sexual exploitation of a child. Subsequent searches of the phone with new forensic software yielded additional incriminating images and messages.

At the conclusion of the hearing, the trial court announced its decision to deny Brown’s motion to suppress. The trial court determined that, under applicable law, a cell phone is a type of container that may be searched for evidence of a crime incident to a driver’s arrest and that the search of Brown’s phone was reasonable under the circumstances.

1. Brown contends that a warrantless search of a cell phone, even one that is seized incident to an arrest, is illegal, unless the State can show that exigent circumstances made the needs of law enforcement so compelling that a warrantless search was objectively reasonable under the Fourth Amendment. This is correct.

As the Supreme Court of the United States recently declared, “the search incident to arrest exception does not apply to cell phones [;]... before searching a cell phone seized incident to an arrest [a law enforcement officer must] get a warrant.” Riley v. California,_U. S. _(IV) (134 SCt 2473, 189 LE2d 430) (2014). This is because

[m]odern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans the privacies of life[.] The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought.

(Citation and punctuation omitted.) Id.

The holding in Riley does not require that every search of a cell phone be pursuant to a warrant. “[EJven though the search incident to arrest exception does not apply to cell phones, other case-specific exceptions may still justify a warrantless search of a particular phone[,]” such as the exigent circumstances exception. Id. It is well settled that, unlike the search incident to arrest exception to the warrant requirement, this exigent circumstánces exception requires a court to examine the particular facts of the case to determine whether an emergency justified a warrantless search under the circumstances. Id. “Such exigencies could include the need to prevent the imminent destruction of evidence..., to pursue a fleeing suspect, and to assist persons who are seriously injured or are threatened with imminent injury.” Id. In this case, the State did not attempt to show that the particular facts of the case demonstrated that law enforcement had an immediate necessity to search Brown’s cell phone and no opportunity to obtain a warrant. Thus, the officer’s warrantless search of Brown’s phone was unconstitutional.

Moreover, the evidence seized from Brown’s phone pursuant to the subsequently-issued search warrants must also be suppressed. It is undisputed that the warrants resulted directly from the illegal warrantless search. The exclusionary rule, however “prohibits introduction of. . . derivative evidence that is the product of the primary evidence” seized during an illegal search. (Citations and punctuation omitted.) Teal v. State, 282 Ga. 319, 323 (2) (647 SE2d 15) (2007). Where a search warrant is based upon information derived from a previous illegal search, the fruits of the warranted search are tainted by the prior illegality and, unless the information supporting the warrant can be traced to an independent and lawful source, must be suppressed. Clare v. State, 135 Ga. App. 281, 285 (5) (217 SE2d 638) (1975). All of the evidence seized from Brown’s phone is therefore inadmissible under Riley.

2. The State contends that the outcome of this case should not depend on Riley, but rather whether the purpose of the exclusionary rule, that is, to deter culpable police conduct, would be served. The State contends the purpose of the exclusionary rule would not be served in this case, because the officer who searched Brown’s cell phone did not act recklessly or with gross negligence and innocently relied on the case law as it existed at the time. As the State asserts, the warrantless search in this case occurred before the Riley decision; in addition, the trial court ruled on Brown’s motion to suppress without the benefit of the Riley decision. The State contends that, before Riley, the majority of state and federal courts in the United States had generally held that officers may search the contents of an arrestee’s cell phone incident to a lawful custodial arrest, and that the officer was not unreasonable for failing to anticipate the shift announced in Riley.

The State made a similar argument in Canino v. State, 314 Ga. App. 633 (725 SE2d 782) (2012), contending that another Fourth Amendment decision, Arizona v. Gant, 556 U. S. 332 (129 SCt 1710, 173 LE2d 485) (2009), did not apply in that case because Gant was decided nine months after the search of the suspect’s vehicle. We rejected that argument on the basis that (Citations and punctuation omitted.) Canino v. State, 314 Ga. App. at 639 (2), n. 28. Likewise, in this case, the search at issue was illegal regardless whether the officer reasonably relied on existing case law.

[t]he Supreme Court of Georgia,... recognizing that a state has power to impose higher standards on searches and seizures than required by the Federal Constitution if it chooses to do so, has held that the good-faith exception to the exclusionary rule[, as provided in Davis v. United States,] is not applicable in Georgia in light of our legislatively-mandated exclusionary rule found in OCGA § 17-5-30.
(a) A defendant aggrieved by an unlawful search and seizure may move the court... to suppress as evidence anything so obtained on the grounds that:... [t]he search and seizure without a warrant was illegal[.] .. .
(b) ... If the motion is granted the property . . . shall not be admissible in evidence against the movant in any trial.

Furthermore, even if Georgia recognized the good faith exception, allowing this evidence to be admitted at Brown’s trial would be inconsistent with fairness and the even-handed administration of justice. In light of Riley, doing so would treat similarly situated defendants differently. We note, though, that this is not a matter of applying a new rule retroactively to cases “in the pipeline.” This is not a case where a judgment has been entered but is not yet final because it is pending on direct appeal and related proceedings — no trial has taken place and no judgment of conviction has been entered. See Holton v. State, 173 Ga. App. 249 (326 SE2d 240) (1985) (“[A]n order denying a motion to suppress is not a final judgmentf.]”) (citation omitted).

Finally, even under Hawkins v. State, 290 Ga. 785 (723 SE2d 924) (2012), the controlling precedent at the time of the search, the search was still illegal. The rule set forth in Hawkins is that when a driver is arrested, the driver’s cell phone may be treated in the same manner as a traditional physical container. Id. at 786. Thus, an officer may open a cell phone and search the cell phone for electronic data so long as the officer has a reasonable basis for believing that evidence relevant to the crime of arrest might be found in it. Id. As with other containers, however, the scope of a search of a cell phone incident to arrest “must be limited as much as is reasonably practicable by the object of the search.” (Citation and punctuation omitted.) Id. at 788. If the search of an arrestee’s cell phone constitutes a “fishing expedition,” therefore, the evidence seized thereby must be excluded. Id. The Supreme Court noted that “reviewing the reasonable scope of the search will largely be a fact-specific inquiry.” Id. In Hawkins the officer who conducted the search arrested the defendant

following an exchange of telephone text messages between [the suspect] and a law enforcement officer who posed as another individual. After agreeing by text to meet the officer, ostensibly to purchase illegal drugs, [the suspect] arrived in her car at the appointed place; there, the officer observed her entering data into her cell phone, and he contemporaneously received a text message stating that she had arrived. The officer approached [the suspect’s] vehicle and placed her under arrest; her vehicle was searched and her cell phone was found inside her purse. The arresting officer searched the cell phone for the [specific] text messages he had exchanged with [the suspect], and then downloaded and printed them.

Id. at 785.

Unlike Hawkins, the officer who searched Brown’s phone did not have specific knowledge of Brown’s use of his cell phone. The officer did not text with Brown prior to Brown being pulled over for DUI, did not see Brown enter any data into the phone, and did not receive any text messages from Brown at the time of arrest. Additionally, the officer did not have any particularized reason to believe Brown used his phone to take pictures that would corroborate the DUI arrest. Based on the lack of any information suggesting that Brown’s cell phone contained evidence of the offense of DUI, the officer’s reasoning for searching the cell phone was nothing more than a “fishing expedition” and is illegal. Therefore, even without applying the holding in Riley, the trial court erred in refusing to suppress the evidence because the search was the very type the Supreme Court of Georgia warned about in Hawkins.

Decided December 16, 2014.

Pate Law Firm, Page A. Pate, Jess B. Johnson, for appellant.

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

3. Brown also contends that two out of the three searches conducted pursuant to the search warrant were unlawful because they occurred more than ten days after the issuance of the warrant, violating OCGA § 17-5-25. For the reasons stated in Divisions 1 and 2, supra, this issue is moot.

Judgment reversed.

Phipps, C. J., and McMillian, J., concur.

        Bryant v. State, 304 Ga. App. 456, 460 (2) (696 SE2d 439) (2010).

       In contrast, “there [generally are] no exigent circumstances” where, as Brown was in this case, “the driver [is] arrested, handcuffed, and the keys secured.” (Punctuation omitted.) Hicks v. State, 287 Ga. App. 105, 107-108 (2) (650 SE2d 767) (2007).

       See also Teal v. State, 282 Ga. at 323 (2) (“[W]hen examining the admissibility of evidence that is ‘fruit of the poisonous tree,’ the appropriate question is whether the evidence at issue has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint. Using this rationale, two functionally similar exceptions to the exclusionary rule — the independent source doctrine and the ultimate or inevitable discovery doctrine — have developed because the interest of society in deterring unlawful police conduct and the public interest in having juries receive all probative evidence of a crime are properly balanced by putting the police in the same, not a worse, position than they would have been in if no police error or misconduct had occurred.”) (citations and punctuation omitted).

       See Davis v. United States,_U. S._(IV) (B) (2) (131 SCt 2419, 180 LE2d 285) (2011) (“[Wjhen the police conduct a search in objectively reasonable reliance on binding appellate precedent, the exclusionary rule does not apply.”); see also United States v. Leon, 468 U. S. 897, 925-926 (IV) (104 SCt 3405, 82 LE2d 677) (1984) (the exclusionary rule does not bar evidence obtained in a search based on reasonable reliance with a search warrant even if the warrant is later found to he invalid).

       OCGA § 17-5-30 provides, in pertinent part:

       See also Gary v. State, 262 Ga. 573, 574 (422 SE2d 426) (1992) (holding “Georgia law precludes adoption of the Leon ‘good-faith exception’ to the exclusionary rule as part of the jurisprudence of Georgia” because, in light of the unequivocal language in OCGA § 17-5-30, ruling otherwise would amount to judicial legislation).

       See Handschuh v. State, 270 Ga. App. 676, 677-679 (1) (607 SE2d 899) (2004) (reversing a DUI conviction where the trial court’s denial of a motion to suppress depended on its finding that the officer complied with the informed consent statute and, between the time of the defendant’s conviction and the disposition of his direct appeal, the Supreme Court of Georgia held part of the statute was unconstitutional); Green v. State, 254 Ga. App. 881, 883 (1) (564 SE2d 731) (2002) (reversing defendant’s conviction based on new case law holding the Confrontation Clause allows a criminal defendant to cross-examine a witness who is receiving a lesser sentence in exchange for testimony).

        Taylor v. State, 262 Ga. 584, 586 (3) (422 SE2d 430) (1992) (“In deciding [the] issue [of whether to apply a new rule of criminal procedure retroactively], we have been strongly influenced by considerations of fairness and the even-handed administration of justice. In order to ensure that similarly situated defendants are treated similarly and to maintain the integrity of the judicial process while still providing finality, we deem it appropriate to adopt the ‘pipeline’ approach, that is, that a new rule of criminal procedure ([in that case], the disapproval of the sequential jury charge on murder and manslaughter) will he applied to all cases then on direct review or not yet final.”) (citation and footnote omitted; emphasis supplied). See also Brockman v. State, 292 Ga. 707, 730 (17) (739 SE2d 332) (2013) (accord).

        Griffith v. Kentucky, 479 U. S. 314, 328 (107 SCt 708, 93 LE2d 649) (1987) (“[A] new rule for the conduct of criminal prosecutions is to he applied retroactively to all cases, state or federal, pending on direct review or not yet final, with no exception for cases in which the new rule constitutes a‘clear break’with the past.”); United States v. Johnson, 457 U. S. 537 (102 SCt 2579, 73 LE2d 202) (1982) (holding that, subject to certain exceptions, a Supreme Court decision construing the Fourth Amendment should be applied retroactively to all convictions that are not yet final).

       See Griffith v. Kentucky, 479 U. S. at 321 (II), n. 6 (A final case is “a case in which a judgment of conviction has been rendered, the availability of appeal exhausted, and the time for a petition for certiorari elapsed or a petition for certiorari finally denied.”) (citations omitted).


author: ANDREWS, Presiding Judge.

text:
    A12A2397.
    RODRIGUEZ v. THE STATE.
    (767 SE2d 509)
    Decided December 18, 2014.

      Crawford & Boyle, Eric C. Crawford, for appellant.

      Daniel J. Porter, District Attorney, Ayanna K. Sterling-Jones, Assistant District Attorney, for appellee.
   ANDREWS, Presiding Judge.

In Rodriguez v. State, 295 Ga. 362 (761 SE2d 19) (2014), the Supreme Court concluded that, because this Court was equally divided on the judgment, the case should have been immediately transferred to the Supreme Court pursuant to the Equal Division clause (Ga. Const. of 1983, Art. VI, Sec. V, Par. V), and, therefore, the decision in Rodriguez v. State, 321 Ga. App. 619 (746 SE2d 366) (2013), should not have been rendered. The Supreme Court vacated this Court’s decision in Rodriguez', decided the merits of the appeal as if the case had been properly transferred; and remanded the case to this Court with direction “that a remittitur issue to the trial court, affirming the judgment of the trial court, and accompanied by [the Supreme Court’s] opinion.” Rodriguez, 295 Ga. at 366, n. 6, 373.

Judgment affirmed.

Phipps, C. J., Barnes, P. J., Ellington, P. J., Doyle, P. J., Miller, Dillard, McFadden, Boggs, Ray, Branch and McMillian, JJ., concur.


author: McMillian, Judge.

text:
    A14A1509.
    BEAVER v. THE STATE.
    (767 SE2d 503)
   McMillian, Judge.

Following a jury trial in November 2012, Gregory Beaver was convicted of 15 counts of sexual exploitation of children and sentenced to 20 years, 15 to serve. Beaver timely filed a motion for new trial, which the trial court denied. On appeal, Beaver asserts that (1) the evidence was insufficient to sustain his convictions and (2) the trial court erred in allowing the jury to view portions of pornographic videos recovered from his computer. Finding no error, we affirm.

Viewed in the light most favorable to the jury’s verdict, the evidence shows that Forsyth County Sheriff’s Office Investigator Jeffrey Roe conducted investigations over the Internet as a member of the Internet Crimes Against Children Task Force. As part of his investigations, Roe worked to identify computers that contained suspected child pornography. In particular, the task force members looked for “file sharing” programs, which allow computers on the same network to access content from other computers. LimeWire, which was later confirmed to have been installed on the computer used by Beaver, was such a program. At trial, Roe explained how LimeWire works, including how users search for and download particular files. He also explained that each file has a “hash value,” which is a numerical value unique to every file, much like a digital fingerprint. As a result of his investigation, Roe identified an IP address that was utilizing the LimeWire program to access files that he suspected contained child pornography. The IP address belonged to Judy Vess, Beaver’s mother. At that time, Beaver was living at his mother’s home, along with his wife, Christina Deal, and her young daughter.

Roe then handed the information over to local investigator Katria Johnson, who executed a search warrant at Vess’s home in May 2010. GBI forensic computer specialist Vickie Adams examined two computers found at that address. The one in Vess’s office did not contain any evidence of child pornography. However, the computer found inside Beaver’s bedroom was ultimately found to contain known child pornography in five separate locations: a folder labeled “Chrissie music folder,” a Lime Wire saved folder, the recycle bin, a folder containing incomplete downloads, and the computer’s unallocated space. Adams was able to determine that approximately 54 pictures and 23 videos had been downloaded between May 2009 and May 2010.* ** She testified as to the dates and times of the downloads, and short portions of some of the videos were briefly displayed to the jurors.

At trial, Deal testified that she and Beaver met in March 2009, and he moved in with her the following month. At the time, she was living with her parents and her infant daughter. She and Beaver married in June 2009 and continued living in a converted garage in the back of her parents’ home. In 2008, Deal’s brother and father had built her a computer so that she could go back to school. She explained that she downloaded Lime Wire right after she received the computer so that she could download music. However, once Beaver moved in with her, whenever she wanted to download new music, she would ask Beaver to download it for her. Although her computer was password protected, Beaver knew the password.

Beaver was not employed and would stay at home and use the computer daily. Deal began working in September 2009 and would sometimes not return home until after her shift ended at midnight. She often saw Beaver using the computer when she woke up in the morning and again when she went to bed at night. In January 2010, they moved to Vess’s house where she, Beaver, and her daughter shared a bedroom. She brought her computer with them, and Beaver continued to use it daily.

Beaver was arrested not too long after they moved in with Vess, but returned at approximately midnight on March 18, 2010. Deal testified that she was upset when Beaver immediately began using the computer again as soon as he came home and stayed on the computer after she went to sleep. The State presented stipulated evidence that Beaver was in fact incarcerated three separate times after he married Deal: (1) from August 3, 2009 to August 13, 2009; (2) from December 1, 2009 to December 22, 2009; and (3) from February 27, 2010 to March 18, 2010. No files containing child pornography that were located on the computer found in Beaver’s bedroom were downloaded during any of those three periods of incarceration, but one such file was downloaded just hours after Beaver was released from jail on March 18, 2010. The jury convicted Beaver on all counts, and the trial court denied his subsequent motion for new trial. This appeal followed.

1. We first address Beaver’s challenge as to the sufficiency of the evidence.

When a criminal defendant challenges the sufficiency of the evidence supporting his or her conviction, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. The jury, not this Court, resolves conflicts in the testimony, weighs the evidence, and draws reasonable inferences from basic facts to ultimate facts. 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.

(Citations and punctuation omitted; emphasis in original.) Wright v. State, 302 Ga. App. 332, 332 (690 SE2d 654) (2010).

Beaver claims that the State failed to exclude every other reasonable hypothesis save that of his guilt pursuant to OCGA § 24-4-6. However,

[qjuestions as to the reasonableness of hypotheses are generally to be decided by the jury which heard the evidence and where the jury is authorized to find that the evidence, though circumstantial, was sufficient to exclude every reasonable hypothesis save that of guilt, that finding will not be disturbed unless the verdict of guilt is insupportable as a matter of law.

(Citation and punctuation omitted.) Wright, 302 Ga. App. at 333.

Beaver argues that there are other reasonable hypotheses to explain how the child pornography came to be on the computer. Namely, a computer virus could have been responsible for downloading the files, or other people, including Deal’s two brothers ■— who were computer savvy, did not like him, and had access to the computer — could have downloaded the files. However, Adams, a GBI expert in computer forensics, explained that, although there were viruses on the computer, which were “very common,” there was no evidence that a virus had downloaded any of the illegal files. Adams concluded that, because only some of the files were deleted, and other files were found in various folders and downloaded on multiple days, they were not the result of a virus. Moreover, she had never seen a case in which a virus conducted a search for child pornography on a file-sharing program and then downloaded the files onto someone’s computer. She also found no evidence that anyone had “hacked” into the computer.

In addition, Deal and her mother both testified that they did not download child pornography onto the computer. Vess likewise testified that she never downloaded or viewed child pornography on the computer. Deal’s brother who helped build the computer testified that it was new and “clean” when he gave it to his sister. He moved out of his parents’ house in 2004 or 2005 and never remotely accessed the computer. Deal’s other brother also testified at trial and stated that he never lived at his parents’ house while Beaver was there, he never used the computer when he visited, and he never remotely accessed it. Both brothers specifically denied downloading child pornography onto the computer.

While it may have been possible for someone else to have learned the computer’s password, gained access to the computer, and downloaded the illegal files beginning just one month after Beaver moved in with Deal and only on days when Beaver was not incarcerated, “whether such a hypothesis was reasonable or improbably coincidental was for the jury to determine.” Wright, 302 Ga. App. at 334. See also McNeal v. State, 326 Ga. App. 429, 432 (1) (756 SE2d 660) (2014) (“In order to support a conviction, such circumstantial evidence does not have to exclude every possible hypothesis other than the defendant’s guilt, but only reasonable hypotheses.”) (citation omitted; emphasis in original); Cox v. State, 300 Ga. App. 109, 110 (684 SE2d 147) (2009) (reasonable hypotheses do not include “bare possibilities that the crime could have been committed by someone else”) (citation and punctuation omitted). Given the record before us, we cannot say that the jury’s guilty verdicts are insupportable as a matter of law. See Haynes v. State, 317 Ga. App. 400 (731 SE2d 83) (2012) (evidence showing that files containing child pornography found on defendant’s computer had been intentionally moved or downloaded to his computer and the files had been modified on various dates was sufficient and any conflicting evidence was for the jury to resolve). See also Tennille v. State, 279 Ga. 884, 885 (2) (622 SE2d 346) (2005) (whether evidence of equal access is sufficient to rebut inference of possession arising from discovery of contraband on defendant’s computer was a question for the trier of fact).

2. Beaver also contends that the trial court erred in allowing the jury to view portions of the videos rather than still shots taken from the videos. Prior to trial, Beaver moved in limine to preclude the State from presenting the actual videos to the jury, arguing that showing video clips rather than still shots was unfairly prejudicial. The trial court denied his motion, but limited the State’s presentation of the videos to 10-12 seconds per video. The test for excluding relevant evidence has been well set out: “relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.” (Citation and punctuation omitted.) Ross v. State, 279 Ga. 365, 366 (2) (614 SE2d 31) (2005). And, a “trial court’s determination on this issue will not be disturbed absent an abuse of discretion.” Id.

“The term unfair prejudice, as to a criminal defendant, speaks to the capacity of some concededly relevant evidence to lure the fact-finder into declaring guilt on a ground different from proof specific to the offense charged.” (Citation and punctuation omitted.) Ross, 279 Ga. at 367 (2). In Simpson v. State, 271 Ga. 772 (523 SE2d 320) (1999), the Supreme Court clarified that in a prosecution for a sexual offense, sexually explicit material can only be admitted if it can be linked to the crime charged. Id. at 774 (1). Here, the videos presented were clearly directly relevant to the specific offenses charged. And where the trial court limited their prejudicial impact by significantly restricting the State’s use of the videos that were themselves the subject of the charges against Beaver, we find no abuse of discretion. See Henderson v. State, 320 Ga. App. 553, 555 (1) (740 SE2d 280) (2013) (noting that jury was authorized to conclude that the children depicted in videos were clearly prepubescent and the State therefore met its burden of proving the children were under the age of 18). See also Ross, 279 Ga. at 367 (2) (“a criminal defendant may not stipulate or admit his way out of the full evidentiary force of the case as the State chooses to present it”) (citation and punctuation omitted).

Accordingly, the trial court did not err in denying Beaver’s motion for new trial.

Judgment affirmed.

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

Decided December 18, 2014.

Kathleen J. Anderson, for appellant.

J. Bradley Smith, District Attorney, Samuel E. Skelton, Assistant District Attorney, for appellee.

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

       IP stands for internet protocol. Roe explained that it is like a telephone number for a computer and that no two computers on the internet maintain the same IP address at the same time.

       Those files had a known hash value, which means that the victims depicted in the files had been previously identifiedhy the National Center for Missing and Exploited Children or the files had previously been used in a case and deemed child pornography. At trial, pediatrician Dana Hogan testified for the State as an expert in determining children’s ages using the Tanner Scale. In her opinion, the children depicted in the materials described in each of the remaining counts of the indictment ranged in age from 6 years to 16 years.

       The State ultimately indicted Beaver on 19 counts of sexual exploitation of children in violation of OCGA § 16-12-100, hut nolle prossed four counts of the indictment just prior to trial.

       That arrest was unrelated to the charges brought in this case.

       This case was tried under Georgia’s previous Evidence Code. Former OCGA § 24-4-6 provided that, “[t]o warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, hut shall exclude every other reasonable hypothesis save that of the guilt of the accused.” Former OCGA § 24-4-6 is carried forward in the new Evidence Code as OCGA § 24-14-6.

       The trial court otherwise permitted the State to introduce testimony describing the actual length and overall content of each video.

       We also note that Beaver does not argue that the content of the 10-12 second video clips was unrepresentative of what was depicted on the videos, or that the specific content shown was more prejudicial than what would be portrayed in corresponding still shots, other than making the unsupported assertion that moving video is always more prejudicial than still shots.


author: McFadden, Judge.

text:
    A14A1582.
    STALEY v. THE STATE.
    (767 SE2d 507)
   McFadden, Judge.

After a jury trial, Carlos Sylvon Staley was convicted of burglary, armed robbery, aggravated assault, false imprisonment, and possession of a firearm during the commission of a crime. Staley argues that the trial court erred in charging the jury on aggravated assault, but he did not object to the charge at trial and we find no plain error that would require reversal. Staley also argues that his trial counsel was ineffective in allowing copies of his certified convictions to go to the jury, but the record does not show that this in fact occurred. Accordingly, we affirm.

1. Facts.

Viewed in the light most favorable to the verdict, the evidence showed that on November 27, 2009, Tony Lindsey returned home from work to find two men had broken into his house. The men, who each had a handgun, forced Lindsey to the ground. At that moment, Lindsey’s friend Tasha Williams entered the house. One of the men pointed a gun at Williams’s head, and she also dropped to the ground. The men forced Lindsey and Williams into a back room and fled the house, taking cash, a laptop computer, and Lindsey’s Pomeranian puppy.

As the men left, Lindsey called 911 and described them and their location. Lindsey and a friend then attempted to follow the men but abandoned the chase when one of the men shot at them. An off-duty law enforcement officer also saw the men running through the neighborhood and reported their location to dispatch.

Law enforcement officers quickly arrived and soon found Staley hiding in the open garage of a vacant house in the neighborhood, a gun within arm’s reach. Lindsey’s puppy was found in a nearby yard and his laptop computer was found in a nearby driveway. Lindsey identified Staley as one of the men who had broken into his house, and Staley’s fingerprint was on a thumb drive in the laptop computer.

2. Jury charge.

Staley argues that the trial court erred in its charge to the jury on aggravated assault. Because Staley did not object to the charge at trial, “the matter is subject only to plain error review on appeal.” Givens v. State, 294 Ga. 264, 266 (2) (751 SE2d 778) (2013) (citations omitted). See OCGA § 17-8-58 (b). In considering whether the giving of a charge was plain error, “we must consider whether the instruction was erroneous, whether it was obviously so, and whether it likely affected the outcome of the proceedings.” Givens, 294 Ga. at 266 (2) (citation and punctuation omitted).

The trial court gave an erroneous charge on aggravated assault. He charged:

A person commits the offense of aggravated assault when that person assaults a person with a deadly weapon with the intent to murder, rape or rob. To constitute such an assault actual injury to alleged victim need not be shown. It is only necessary that the evidence showed beyond a reasonable doubt that the defendant intentionally committed an act that placed the alleged victim in reasonable fear of receiving or immediately receiving a violent injury. I charge you that a firearm when used as such is a deadly weapon as a matter of law.

(Emphasis supplied.) The above-emphasized language in the charge incorrectly suggested that a person assaulting with a deadly weapon must also have the intent to murder, rape, or rob. Contrary to that incorrect suggestion, a person commits the offense of aggravated assault, among other methods, when he or she assaults “[w]ith intent to murder, to rape, or to rob[,]” OCGA § 16-5-21 (b) (1), or “[w]ith a deadly weapon[.]” OCGA § 16-5-21 (b) (2).

Nevertheless, there was no plain error. Staley argues that the charge permitted the jury to find him guilty of aggravated assault by a method not alleged in the indictment. See Richardson v. State, 276 Ga. 548, 551 (2) (b) (580 SE2d 224) (2003) (“The potential for reversible error occurs when the indictment specifies the commission of a crime by only one of several methods possible under the statute . . . and the entire Code section is charged.”) (citation omitted). But that is not what the charge did. The indictment alleged that Staley committed the offense of aggravated assault by “mak[ing] an assault upon the person of T[a]sha Williams, with a certain handgun, a deadly weapon, by pointing it at her”; the charge required the jury to find that Staley committed aggravated assault by that method: with a deadly weapon. The charge erred in placing on the state the extra burden of showing that, in addition to assaulting with a deadly weapon, Staley also assaulted with the intent to murder, rape, or rob.

Decided December 18, 2014.

Jeana D. Johnson, for appellant.

Ashley Wright, District Attorney, Joshua B. Smith, Assistant District Attorney, for appellee.

A variety of things might be said about an appellant’s contention that the trial court erred by placing an unwarranted burden on the appellee. In the present case, it is enough to say that, as Staley was convicted of aggravated assault, this additional burden on the state cannot be deemed to have “likely affected the outcome [.]” Givens, 294 Ga. 266 (2) (citation and punctuation omitted). Consequently, there was no plain error. Id. at 267 (2).

3. Ineffective assistance of counsel.

Staley argues that his trial counsel was ineffective in failing to object when copies of his prior convictions went to the jury for their deliberations. The record, however, does not show that this occurred. Staley asserts in his brief that “[t]he prior convictions went to the jury as Exhibits 78-84.” But the record reflects that these exhibits were not tendered or marked until the sentencing phase of the trial, after the jury had deliberated, rendered a guilty verdict, and been released. Consequently, Staley has not met his burden of showing either that his trial counsel rendered deficient performance or that he was prejudiced thereby. See generally Batten v. State, 295 Ga. 442, 445 (3) (761 SE2d 70) (2014) (discussing “heavy” burden placed on appellant to demonstrate that he received ineffective assistance of trial counsel).

Judgment affirmed.

Andrews, P. J., and Ray, J., concur.


text:
    A14A1864.
    BURTON v. THE STATE.
    (767 SE2d 510)
   ANDREWS, Presiding Judge.

Following a jury trial, Samuel Burton was convicted on three counts of criminal damage to property in the first degree. He appeals following the denial of his motion for new trial, arguing that the trial court erred in denying his motions for a mistrial based on the State’s discovery violations. For the reasons that follow, we affirm.

Viewed in the light most favorable to the jury’s verdict, Maloney v. State, 317 Ga. App. 460 (731 SE2d 133) (2012), the evidence at trial showed that while Jerry Roberts was driving home from work in the early evening on Richmond Hill Road on February 18, 2011, a young man on the side of the road threw a brick at his 2004 Toyota 4 Runner and struck the vehicle, breaking the windshield on the passenger side and tearing the antenna. The impact of the brick caused Roberts to swerve and nearly strike an oncoming vehicle. Roberts turned around to follow the young man and called 911. As he followed the young man, Roberts saw him jump up and hit a crosswalk sign and then kick a large trash can into the road in front of an SUV. Roberts also saw the man yell at the occupants of a car as the car turned into a fire station. At trial, Roberts identified Burton as the man who had thrown a brick at his car.

On the same day, Toi Jackson was driving her 1999 Pontiac Grand Am on Richmond Hill Road with her 11-year-old daughter in the passenger seat when a young man threw a large brick or rock at her car, shattering the windshield on the passenger side. When the object hit her car, Jackson swerved to the other side of the road, but there was no oncoming traffic. Jackson turned around, drove up beside the man, and asked him why he threw the rock. Jackson testified that the man “just went ballistic” and started cursing and picking things up from the ground. Jackson called 911 and drove to a nearby fire station where she thought she would be safe. At trial, Jackson and her daughter identified Burton as the man who had thrown an object at Jackson’s car.

Alice Foote was driving on Richmond Hill Road in her 2002 Toyota Echo on the date in question with her sister in the passenger seat of the car when a man wearing a yellow hooded jacket threw a rock at her vehicle and hit the windshield support, almost causing Foote to have an accident. Foote drove to a convenience store to call the police.

Deputy James Ouzts of the Richmond County Sheriff’s Office responded to Foote’s call. He met Foote, and she provided a description of the suspect as a black male, approximately five feet, eight inches tall and 160 to 170 pounds, wearing a yellowish or tan jacket and headphones. Deputy Ouzts instructed Foote to wait at the store while he attempted to locate the suspect. After leaving Foote, Deputy Ouzts received two more calls regarding incidents similar to the one Foote reported. Deputy Ouzts then encountered Burton in the road in front of Fire Station No. 6 holding pieces of broken concrete. Burton matched the description of the suspect, and Deputy Ouzts ordered him to the ground and took him into custody. Deputy Ouzts asked another deputy to summon Foote and her sister to the fire station. Foote and her sister testified that the person in custody in a police vehicle at the fire station was wearing the same clothing as the person who threw a rock at Foote’s vehicle. Burton testified at trial and denied throwing objects at cars.

The record reflects that on direct examination, Foote testified that she gave a written statement once she arrived at the fire station. Similarly, Foote’s sister stated that she gave a statement at the fire station. During his subsequent cross-examination of Deputy Ouzts, Burton’s counsel asked him if he took any handwritten statements from witnesses, and Deputy Ouzts responded: “I believe there [were] two statements that were written and Ms. Foote, her passenger, I believe, filled out a statement.” Deputy Ouzts stated that the statements should be with the report turned in to records but that he did not have them with him at trial. When asked if he had access to the statements, Deputy Ouzts responded that he could probably locate them. On redirect, Deputy Ouzts stated that the copy of the incident report turned over to the district attorney’s office did not include any witness statements. The State then recalled Roberts, and on recross, Roberts stated that he gave a written statement to police in which he described the individual who threw a brick at his car. According to Roberts, he described the suspect as a black male wearing a yellowish hoodie and jeans who was about five feet eight inches tall and weighed approximately 150 to 160 pounds.

After Roberts testified the second time, the State rested its case, and Burton then moved for a mistrial based on the State’s failure to provide written witness statements. A 30-minute recess was taken to see if Deputy Ouzts would be able to get the statements from the records division at the sheriff’s office; however, both the records division and criminal investigation division informed Deputy Ouzts that they did not have the statements. Burton’s counsel renewed his motion for a mistrial, and the trial court denied the motion.

During the charge conference, which occurred before Burton testified, the prosecutor informed the trial court that the State might impeach Burton’s testimony with statements Burton made in custody before he was read his Miranda warnings. According to the prosecutor, Deputy Ouzts asked Burton why he was throwing rocks at cars, and Burton replied that they were throwing rocks at me first. Burton’s counsel again moved for a mistrial on the ground that the defense did not receive any notice of custodial statements the State intended to use at trial. The trial court denied the motion.

Burton argues on appeal that the trial court abused its discretion in denying his motions for mistrial. For the reasons explained below, we disagree.

Failure to produce witness statements. It appears from the record that as many as three witnesses gave written statements to Deputy Ouzts. Such statements were, at least at some point, in the “possession, custody, or control” of the State or prosecution, see OCGA § 17-16-1 (1), and subject to production under OCGA § 17-16-7 ten days prior to trial. The availability of remedies for the State’s failure to comply withits discovery obligations is governed by OCGA § 17-16-6, which states:

If at any time during the course of the proceedings it is brought to the attention of the court that the state has failed to comply with the requirements of this article, the court may order the state to permit the discovery or inspection, interview of the witness, grant a continuance, or, upon a showing of prejudice and bad faith, prohibit the state from introducing the evidence not disclosed or presenting the witness not disclosed, or may enter such other order as it deems just under the circumstances. . . .

OCGA § 17-16-6 authorizes a trial court to grant a defendant’smotion for a mistrial based on a discovery violation “upon a showing ... of both bad faith and prejudice or that a mistrial would otherwise be just under the circumstances.” Prince v. State, 295 Ga. 788, 794 (764 SE2d 362) (2014). The trial court’s ruling regarding a remedy for the State’s failure to comply with its discovery obligations, including the trial court’s decision on whether to grant a mistrial, is subject to review for an abuse of discretion. See Tubbs v. State, 276 Ga. 751, 753-754 (3) (583 SE2d 853) (2003).

Here, the trial court denied the motion for mistrial after first determining that the witness statements at issue were unavailable. The record contains no evidence that the statements were lost or misplaced due to bad faith on the State’s part. Nor did Burton establish prejudice resulting from the State’s failure to disclose the statements. Because the statements could not be located, the State could not use them to support its case against Burton. In addition, any argument that the statements might have aided Burton’s defense or provided a basis to impeach the State’s witnesses is simply speculative, and Burton’s counsel was able to use the statements’ absence to attempt to undermine Deputy Ouzts’ credibility at trial. We do not otherwise perceive how granting a mistrial would be just under the circumstances, especially since there is no evidence in the record that the statements might yet be found and thus potentially alter Burton’s strategy in a new trial. As Burton failed to establish bad faith, prejudice, or any “other imperative to grant a mistrial,” Prince v. State, supra, 295 Ga. at 794, the trial court did not abuse its discretion in denying his motion for mistrial based on the failure to disclose witness statements. See Blankenship v. State, 229 Ga. App. 793, 794 (494 SE2d 758) (1997) (OCGA § 17-16-6 cloaks trial court with discretion to use judgment to ensure fair trial).

Decided December 18, 2014.

Trotter Jones, James S. V. Weston, for appellant.

Ashley Wright, District Attorney, Madonna M. Little, Assistant District Attorney, for appellee.

Failure to disclose Burton’s custodial statement. Under OCGA § 17-16-4 (a) (1), the State must disclose within ten days prior to trial “the substance of any . . . relevant oral statement made by the defendant, before or after arrest, in response to interrogation by any person then known by the defendant to be a law enforcement officer,” if the State intends to use the statement at trial. As the State did not attempt to impeach Burton with the statement that was first disclosed during the charge conference, Burton cannot establish that he was harmed by the State’s belated disclosure of the statement. See Bertholf v. State, 224 Ga. App. 831 (482 SE2d 469) (1997) (defendant not harmed by any violation of OCGA § 17-16-4 resulting from State’s failure to provide defense with copy of audiotape of defendant’s confession because audiotape was not introduced into evidence). Under the circumstances, we discern no abuse of discretion in the denial of Burton’s motion for mistrial based on the State’s untimely disclosure of Burton’s custodial statement.

Judgment affirmed.

McFadden and Ray, JJ., concur.

       Burton served the State with a timely notice of his election to proceed under the reciprocal discovery provisions of OCGA § 17-16-1 et seq.


text:
    A14A2130.
    WRIGHT v. WATERBERG BIG GAME HUNTING LODGE OTJAHEWITA (PTY), LTD.
    (767 SE2d 513)
   ELLINGTON, Presiding Judge.

This is the third appearance of this case before this Court. As set forth in the previous appeals and as shown by the record, Appellant Joseph “Jerry” Wright was a long-time member of Safari Club International, Inc. (“SCI”), a charitable organization that holds conventions at which attendees have the opportunity to bid at auction on various goods, services, and hunting excursions, which primarily have been donated to SCI by third parties (“outfitters”). Wright v. Safari Club Intl., 307 Ga. App. 136 (706 SE2d 84) (2010) (Wright I”); Wright v. Safari Club Intl., 322 Ga. App. 486 (745 SE2d 730) (2013) (Wright II”). In 2007, Wright attended SCI’s seminar in Reno, Nevada and was the successful bidder on a 14-day hunting and fishing trip to the Republic of South Africa and Namibia offered and conducted by one such outfitter, Appellee Waterberg Big Game Hunting Lodge Otjahewita (Pty), Ltd. (“WABI”). See Wright II, 322 Ga. App. at 486. WABI subsequently canceled portions of the safari, and Wright brought suit against SCI and WABI for breach of contract and violation of the Georgia Fair Business Practices Act (“FBPA”), OCGA § 10-1-393. See Wright II, 322 Ga. App. at 494-495 (5) (Wright had permission to add WABI as a party defendant in his second amended complaint).

The trial court granted SCI’s motion for summary judgment, and this Court previously affirmed that ruling. Wright II, 322 Ga. App. at 489-493 (1), (2), (3), (4). The trial court later granted WABI’s motion to dismiss Wright’s complaint for failure to state a claim. Wright appeals. For the reasons explained below, we reverse in part, as to the dismissal of Wright’s breach of contract claim.

Atrial court may grant a motion to dismiss for failure to state a claim upon which relief may be granted only if

(1) the allegations of the complaint disclose with certainty that the claimant would not be entitled to relief under any state of provable facts asserted in support thereof; and (2) the movant establishes that the claimant could not possibly introduce evidence within the framework of the complaint sufficient to warrant a grant of the relief sought. In deciding a motion to dismiss, all pleadings are to be construed most favorably to the party who filed them, and all doubts regarding such pleadings must be resolved in the filing party’s favor.

(Citations and punctuation omitted.) Liberty County School Dist. v. Halliburton, 328 Ga. App. 422, 423 (762 SE2d 138) (2014). If, on the other hand, “within the framework of the complaint, evidence may be introduced which will sustain a grant of relief to the plaintiff, the complaint is sufficient [,]” and the trial court should deny a motion to dismiss for failure to state a claim upon which relief may be granted. (Citation and punctuation omitted.) Id.

“In ruling on a motion to dismiss, the trial court must accept as true all well-pled material allegations in the complaint and must resolve any doubts in favor of the plaintiff.” (Citations, punctuation and footnotes omitted.) Roberson v. Northrup, 302 Ga. App. 405 (691 SE2d 547) (2010). As an appellate court, “[w]e review de novo a trial court’s determination that a pleading fails to state a claim upon which relief can be granted, construing the pleadings in the light most favorable to the plaintiff and with any doubts resolved in the plaintiff’s favor.” (Citation omitted.) Babalola v. HSBC Bank, USA, N.A., 324 Ga. App. 750 (751 SE2d 545) (2013).

1. Wright contends that the trial court erred in dismissing his claim for breach of contract. Liberally construed, Wright’s amended complaint alleged the following: WABI promised SCI that it would provide to the highest bidder at SCI’s auction certain goods and services, specifically, a safari trip as described in promotional materials WABI prepared. Wright was the highest bidder at the auction; he satisfied his bid by paying $10,000 for the safari trip to SCI; later, WABI demanded and received $3,850 from Wright for license and trophy fees in connection with his purchase of the safari; and WABI failed to provide the goods and services as promised. These allegations state a claim that WABI entered into a contract with SCI, that Wright was a third-party beneficiary of that contract, and that WABI breached that agreement. See OCGA § 9-2-20 (b) (“The beneficiary of a contract made between other parties for his benefit may maintain an action against the promisor on the contract.”); Starrett v. Commercial Bank of Ga., 226 Ga. App. 598, 599 (1) (486 SE2d 923) (1997) (A third-party beneficiary contract is “one in which the promisor engages to the promisee to render some performance to a third person.”) (citation and punctuation omitted).

WABI contends, however, that Wright waived any argument that his complaint stated a claim for breach of contract as a third-party beneficiary because he did not characterize his claim as such in his complaint or in response to its motion to dismiss. Although Wright did not use the phrase “third-party beneficiary” in his complaint,

the Georgia Civil Practice Act requires only notice pleading and, under the Act, pleadings are to be construed liberally and reasonably to achieve substantial justice consistent with the statutory requirement of the Act. Pleadings serve only the purpose of giving notice to the opposing party of the general nature of the contentions of the pleader, and thus general allegations are sufficient to support a plaintiff’s claim for relief.

(Citations and punctuation omitted.) Racette v. Bank of America, 318 Ga. App. 171, 180 (4) (733 SE2d 457) (2012). Furthermore, preter-mitting whether failing to describe himself in connection with WABI’s motion to dismiss as a “third-party beneficiary” could operate as a waiver of this claim, WABI’s assertion is not supported by the record — Wright did argue, albeit briefly, in a brief filed in response to WABI’s motion to dismiss that a third-party beneficiary right to him was created when WABI agreed to donate the safari to SCI for auction.

Moreover, the allegations that WABI demanded and received from Wright an additional $3,850 for license and trophy fees in connection with his purchase of the safari arguably shows the flow of consideration directly from Wright to WABI for goods and services which WABI failed to provide. Based on the foregoing, we conclude that the trial court erred in granting WABI’s motion to dismiss Wright’s claim for breach of contract. Racette v. Bank of America, 318 Ga. App. at 180-181 (4).

2. Wright contends that the trial court erred in dismissing his claim for a violation of the FBPA, which declares that “[ujnfair or deceptive acts or practices in the conduct of consumer transactions and consumer acts or practices in trade or commerce are . . . unlawful.” OCGA § 10-1-393 (a). As we held in Wright II, “[a] prerequisite to stating a claim for relief under the (FBPA) is the commission of some unfair act or deceptive practice in trade or commerce, from which the Act is designed to protect the public. To be deceptive, a business practice must have the tendency or capacity to deceive.” (Citations and punctuation omitted.) 322 Ga. App. at 489 (1) (a). In setting out his claim under the FBPA, he alleged that “WABI caused actual confusion or actual misunderstanding as to the source, sponsorship, approval, or certification of services.” In his amended complaint, however, Wright did not allege that a person or entity other than the purported provider (that is, WABI) provided, sponsored, or approved the goods or services (that is, the safari trip). Rather, Wright alleges that the goods and services were not provided at all. Nor did Wright allege that WABI advertised its donation of a safari without any intention of performing. The trial court did not err in ruling that the complaint failed to state a claim under the FBPA against WABI. See id. at 489-491 (1) (affirming summary judgment in SCI’s favor on Wright’s FBPA claim).

3. Wright contends that the trial court erred when it sua sponte dismissed his complaint after entering a case management order providing for additional discovery and a trial date. In light of our holding in Division 1, supra, this claim of error is moot.

Decided December 18, 2014.

Michael D. Barber, Eric A. Ballinger, for appellant.

Knight Johnson, James M. Johnson, for appellee.

4. Wright contends that the trial court erred when, after finding that WABI had not met its burden of showing improper service of process, it impliedly questioned the propriety of service by noting that “the court may revisit this issue at a later date.” We are a court for the correction of errors, however, and are not authorized to issue an advisory opinion about a potential error a trial court may make in the future. City of Atlanta v. Hotels.com, 285 Ga. 231, 236, n. 4 (674 SE2d 898) (2009); Bibbins v. State, 280 Ga. 283, 284-285 (627 SE2d 29) (2006). This claim of error presents nothing for our review.

Judgment affirmed in part and reversed in part.

Phipps, C. J., and McMillian, J., concur.

       The trial court can consider matters outside the pleadings only if it converts the motion to dismiss for failure to state a claim to a motion for summary judgment. As the Supreme Court of Georgia has explained:
      If, on motion to dismiss for failure to state a claim, the trial court elects to consider matters outside of the pleadings, the motion shall be treated as one for summary judgment and disposed of as provided in [OCGA §] 9-11-56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by that code section. OCGA § 9-11-12 (b).... [W]hen a trial court opts to convert a motion to dismiss for failure to state a claim into one for summary judgment, the party opposing the motion may, if he so desires, have 30 days’ notice in which to prepare evidence in opposition.
      (Citations and punctuation omitted.) Cox Enterprises, Inc. v. Nix, 273 Ga. 152, 153 (538 SE2d 449) (2000). The record in this case does not show such a conversion.

       See also Dillon v. Reid, 312 Ga. App. 34, 40 (4) (717 SE2d 542) (2011) (“The third-pdrty beneficiary need not he specifically named in a contract; the dispositive issue is whether the parties’ intention to benefit the third party is shown on the face of the contract.”) (citations and punctuation omitted).

       See also OCGA § 9-11-8 (f) (“All pleadings shall be so construed as to do substantial justice.”); Cotton v. Federal Land Bank, 246 Ga. 188, 191 (269 SE2d 422) (1980) (“The well established rule in Georgia is that, under our system of notice pleading, the substance, rather than the nomenclature, of legal pleadings determines their nature. The Civil Practice Act pleading requirements are to be construed liberally and in favor of the pleader, in furtherance of the basic premise behind the Act — to substitute notice pleading for issue pleading.”) (citations and punctuation omitted).

       See OCGA § 13-3-1 (“To constitute a valid contract, there must be parties able to contract, a consideration moving to the contract, the assent of the parties to the terms of the contract, and a subject matter upon which the contract can operate.”); Bedsole v. Action Outdoor Advertising, 325 Ga. App. 194, 198 (1) (750 SE2d 445) (2013) (“Georgia contract law requires a meeting of the minds of the parties, and mutuality, and in order for the contract to be valid the agreement must ordinarily he expressed plainly and explicitly enough to show what the parties agreed upon. A contract may be enforceable even though it rests only in words as remembered by the witnesses. To determine whether the parties mutually assented to all essential terms of the contract, the circumstances surrounding the making of the contract, such as correspondence and discussions, are relevant in deciding if there was a mutual assent to an agreement.”) (citation, punctuation and footnotes omitted).

       See OCGA § 10-1-393 (b) (1), (2) (Under the FBPA, prohibited unlawful practices include “[pjassing off goods or services as those of another [or pausing actual confusion or actual misunderstanding as to the source, sponsorship, approval, or certification of goods or services[.]”).


text:
    A13A0714.
    RAYSONI v. PAYLESS AUTO DEALS, LLC et al.
    (767 SE2d 517)
    Decided December 23, 2014.

      T. Michael Flinn, for appellant.

      William K. Kincheloe, for appellees.

      Charles M. Cork III, amicus curiae.
   McMillian, Judge.

In Raysoni v. Payless Auto Deals, LLC, 323 Ga. App. 583 (753 SE2d 313) (2013), this Court affirmed the trial court’s grant of the defendant’s motion to dismiss the complaint. The Supreme Court of Georgia reversed that decision in Raysoni v. Pay less Auto Deals, LLC, 296 Ga. 156 (766 SE2d 24) (2014). We therefore vacate our earlier opinion, adopt the Supreme Court’s opinion as our own, and reverse the judgment of the trial court.

Judgment reversed.

Andrews, P. J., and Dillard, J., concur.