text:
    A14A2080.
    BOATNER et al. v. SHOW MEDIA, LLC et al.
    (771 SE2d 40)
   BARNES, Presiding Judge.

Kenneth and Hattie Boatner were on a motorcycle that was struck by one of a fleet of cars being driven around Atlanta as part of an advertising campaign. They sued the driver, Kristina Smeltzer, for negligence, and Show Media, LLC, and its related corporate entities (collectively, “Show Media”) under the doctrines of respondeat superior and negligent entrustment. Following discovery, Show Media moved for summary judgment, contending that, while the driver “negligently made a U turn in opposing traffic directly in front of the [Boatners,] striking the Boatners’ Motorcycle and knocking them to the road surface,” the evidence established without issue that it was not liable under either theory of recovery because the driver was an independent contractor. The trial court granted summary judgment to Show Media under both theories.

The Boatners argue on appeal that the trial court erred in granting summary judgment to Show Media on their respondeat superior claim because the record reveals genuine issues of disputed facts about whether the driver who hit them was Show Media’s temporary employee or an independent contractor. As they do not appeal the trial court’s grant of summary judgment to Show Media on their negligent entrustment claim, that portion of the trial court’s judgment is affirmed. For the reasons that follow, however, we reverse the grant of summary judgment to Show Media on the Boatners’ claim of vicarious liability.

Summary judgment is appropriate when the court, viewing all the facts and evidence and reasonable inferences from those facts in a light most favorable to the non-movant, concludes that the evidence does not create a triable issue as to each essential element of the case. On appeal of a grant of summary judgment, we must review the evidence de novo to determine whether the trial court erred in concluding that no genuine issue of material fact[ ] remain [s] and that the party was entitled to judgment as a matter of law.

(Citation and punctuation omitted.) Broadnax v. Daniel Custom Constr., 315 Ga. App. 291, 292 (726 SE2d 770) (2012).

So viewed, the evidence showed that Show Media Promotions contracted with companies to produce promotional events which “would include providing brand ambassadors, wrapped vehicles, buses, putting brand ambassadors out there in costumes.” HTC Corporation hired an advertising company, Deutsch, LA, to conduct an “advertising event” simultaneously in Seattle and Atlanta to promote the sale of its cell phones. Deutsch hired Show Media Promotions to provide “8 Fully wrapped [S]mart [C]ars including drivers — 1 wifi mobile hotspot — 1 mobile billboard 6'xl2' — 105 working hours per vehicle” to start June 21, 2010, and end July 10, 2010, for a total fee of $312,978. The contract between Deutsch and Show Media provided no other specifics about the advertising campaign.

Show Media’s controller testified as the company’s designated OCGA § 9-11-30 (b) (6) representative that he could not tell from the contract what the cars were supposed to do. The controller explained that after a company salesperson procured the contract, he would usually sit down with a Show Media graphics department employee to discuss the job and assign it to a specific person to handle the creative work, designing the graphics and working with vendors to produce the advertising material.

For this job, Show Media hired Limo Lounge, owned by Pedro Torre, to secure the Smart Cars and drivers for both cities at a rate of $10,000 per week per city. Torre rented the cars from Avis in South Miami Beach, Florida, on June 17, 2010 and returned them there a month later.

Matthew Salmon worked in Show Media’s graphic department and testified that he came to Atlanta with another Show Media employee to oversee the Deutsch/HTC campaign and “make sure it was on track.” When he arrived, the eight Smart Cars were in place and wrapped with the advertising vinyl, and Torre had procured the drivers. Salmon rented a car at the airport and bought a trailer hitch for his rental car to tow the mobile billboard, which was simply a static vinyl sign with the company name and product. He used his personal credit card to pay for his rental car and Show Media paid him back. When Salmon arrived in Atlanta, he held an initial meeting with the drivers to explain the job to them, which was to follow each other through pre-routed highly-trafficked areas of the city.

Every night, Salmon called someone at Show Media to obtain instructions about where Show Media wanted the cars to drive the next day. Each day, Show Media assigned a specific route for the cars to drive and wanted the cars to arrive at particular locations at particular times of the day. Show Media directed what time the group would begin driving and when they would stop, which averaged about eight or nine hours a day. If Salmon, his co-worker, or Torre wanted to alter the route, they had to run it by Show Media, who made the ultimate determination about the route.

Every morning, either Salmon met with Torre and the other drivers wherever they were staying and told them about the day’s “game plan” or Torre would get information from Show Media about the day’s route and tell the drivers. While the crew began driving the wrapped cars through the city as directed by Show Media, Salmon and his co-worker drove his rental car, towing a trailer with the HTC billboard on it, at the back of the line “to make sure that everybody was staying in line, to make sure that everybody was in the same area.” They did not always follow the crew for the entire day, but sometimes split off for lunch or to do other business and rej oined them later. Sometimes the cars would split up and go to different locations, as directed by Show Media. If Salmon rejoined the drivers and found them sitting around in a parking lot when they were supposed to be driving, Salmon would direct them to get back out onto the road. The drivers were not allowed to drive the wrapped cars for personal use but were supposed to park them at the hotel when the job ended for the day.

In granting summary judgment to Show Media, the trial court found that the driver of the wrapped car that hit the Boatners was hired, paid, and generally supervised by Torre, and that “[t]he only degree of supervision was [Show Media’s] initial meeting with Mr. Torre and all the drivers each day to establish where the designated route was located.” This evidence, the court found, pierced the Boatners’ complaint of vicarious liability under the doctrine of respondeat superior and shifted the burden to them to establish an issue about whether the driver was a Show Media employee rather than an independent contractor. The court concluded that the record contained no such evidence and that therefore Show Media could not be held vicariously liable for Smeltzer’s actions. The court also granted summary judgment to Show Media on the Boatners’ negligent entrustment claim because the record contained no evidence that Show Media had actual knowledge that the driver was incompetent or habitually reckless. Finally, the court held, Show Media had no duty to investigate the competency of any driver to whom it entrusted a vehicle.

The Boatners argue on appeal that the trial court erred in granting summary judgment to Show Media on their claim of vicarious liability under the doctrine of respondeat superior because the record establishes the existence of genuine issues of material fact about whether the driver was a temporary employee of the company. Show Media responds that the record establishes as a matter of law that the driver was an independent contractor for whose actions the company was not vicariously liable.

“An employer generally is not responsible for torts committed by his employee when the employee exercises an independent business and ... is not subject to the immediate direction and control of the employer.” OCGA § 51-2-4. In contrast,

[a]n employer is liable for the negligence of a contractor . .. [i]f the employer retains the right to direct or control the time and manner of executing the work or interferes and assumes control so as to create the relation of master and servant or so that an injury results which is traceable to his interference [.]

OCGA § 51-2-5 (5).

The test for determining whether an employer is exercising a degree of control over an independent contractor’s work such that the law will deem the independent contractor to be a servant of that employer — thus making the employer vicariously liable for any wrongful acts committed by the contractor — is whether the contract gives, or the employer assumes, the right to control the time, manner, and method of the performance of the work, as distinguished from the right to merely require certain definite results in conformity with the contract. Put another way, the test is essentially whether the contractor has a bona fide existence apart from the employer or functions instead as the employer’s alter' ego.

(Punctuation and footnotes omitted.) Ga. Messenger Svc. v. Bradley, 311 Ga. App. 148, 150 (1) (715 SE2d 699) (2011).

Here, although there is evidence to support the conclusion that the driver was an independent contractor, in that Show Media did not pay her directly, choose her break times, or supervise her activities when she was not driving, there is also evidence to support the conclusion that Show Media maintained sufficient control over the driver that she can be considered an employee, such as instructing her on the time, method, and manner of her daily drive. “Under these circumstances, we cannot say that the evidence is undisputed.” Davis v. Beasley Timber Co., 241 Ga. App. 706, 708 (1) (527 SE2d 221) (1999) (evidence that timber company directed truck driver’s “timing and destination of hauls” sufficient to find that driver was employee). Accordingly, the trial court erred in granting summary judgment to Show Media on the Boatners’ claim that Show Media was liable for the negligence of its driver.

Decided March 19, 2015.

Webb, Wade & Taylor, Jonathan J. Wade, for appellants.

William P. Claxton, for appellees.

Judgment affirmed in part and reversed in part.

Boggs and Branch, JJ., concur.

       The related entities are Show Media of New York, LLC, and Show Media Promotions, LLC, d/b/a/ Show Media Live.


source: Caselaw Access Project

author: ANDREWS, Presiding Judge.

license: Public Domain

text:
    A14A2095.
    CHARLES v. BUTLER et al.
    (771 SE2d 43)
   ANDREWS, Presiding Judge.

In this discretionary appeal, Carey R. Charles appeals from an order entered by the Superior Court of Fulton County affirming the final administrative decision of the Board of Review (“Board”) of the Department of Labor (“Department”). The Board affirmed an administrative hearing officer’s decision that, among other things, found that Charles had underreported his income from a part-time job in 2009 while receiving unemployment benefits and, except with respect to one week, allowed the Department to continue to invoke fraud penalties against Charles upon remand to the benefit control unit. Charles argues on appeal that the superior court erred in affirming the Board’s decision because the Department failed to prove fraud at the hearing before the hearing officer and the hearing officer relied on inadmissible hearsay. He further argues that the trial court erred in failing to strike the supplemental record filed by the Department. We agree that the Department failed to prove fraud within the meaning of OCGA § 34-8-255, and we therefore reverse and remand.

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

(Citation and punctuation omitted.) Robinson v. Thurmond, 309 Ga. App. 883, 884 (711 SE2d 430) (2011).

The record shows that Charles was receiving unemployment benefits when he started working part-time for the YMCA of Metropolitan Atlanta (“YMCA”) in May 2009. In or around October 2010, the Department initiated an audit of Charles’s 2009 earnings by sending the YMCA a form that it was to complete showing Charles’s weekly earnings from the week ending July 4,2009 through the week ending December 26, 2009. In April 2011, the Department sent Charles a request for information about his reported income for the time period in question, and Charles responded on April 7, 2011. On October 10, 2012, the Department sent Charles a notice stating that he had “knowingly and willfully failed to report and/or incorrectly reported [his] earnings” for 23 weeks from July through December 2009 and that the “total amount overpaid is $7,062.00.” The next day, the Department sent two additional notices to Charles stating that because of his “ineligibility” for unemployment benefits described in the October 10, 2012 notice, he also must repay the Federal Additional Compensation (“FAC”) he received for the relevant time period.

Charles appealed from the Department’s three notices, and following a hearing before an administrative hearing officer, the hearing officer issued a decision affirming the overpayment set forth in the October 10, 2012 notice. Charles then appealed the hearing officer’s decision to the Board. Finding merit in Charles’s arguments that his due process rights were not properly observed in the hearing and that the hearing officer erred in failing to address the October 11, 2012 notices and did not state whether the fraud penalties were properly applied, the Board remanded the case for a de novo hearing.

A de novo hearing took place before a new hearing officer on February 25, 2013. Although the YMCA received notice of the hearing, no representative from the YMCA attended the hearing. A number of documents were entered into evidence at the beginning of the hearing, including the wage audit completed by the YMCA, which was allowed into evidence over the hearsay objection of Charles’s counsel for the limited purpose of showing what the Department used to “build the overpayment.”

Jermine Woolery, Supervisor, Benefit Payment Control for the Department, testified that based on the audit completed by the YMCA, the Department determined that Charles underreported his earnings from July 4, 2009 through December 26, 2009. She stated that the underreporting also created an overpayment with respect to Charles’s FAC payments. The Department concluded that by under-reporting his earnings when he certified for benefits, Charles made misrepresentations of fact to obtain higher benefit payments. Woolery testified that the handbook provided to applicants for unemployment benefits states that claimants must report gross earnings when they certify for benefits. She maintained that the handbook is given out to all applicants and that applicants are required to sign a form acknowledging receipt. Woolery admitted, however, that the Department did not have any proof that Charles received the handbook. She tried to locate Charles’s acknowledgment of receiving a handbook but was not able to do so. Woolery admitted that Charles’s online certifications for benefits, which were admitted into evidence, showed that he had reported some earnings for the weeks ending December 12, 19, and 26, 2009 but that the Department’s database used to calculate overpayments did not reflect those reported earnings. She further admitted that the Internet certifications showed that Charles overreported his earnings for the week ending December 19, 2009. Woolery testified that the Department makes a determination as to whether fraud is involved in underreporting based on “how many weeks went by and this person did not go in the office... to correct this situation.”

Charles testified that he applied for unemployment benefits online at one of the Department’s career centers. He could not recall what information he received or if he received a handbook. Charles testified that he certified for his benefits online and that the program did not state whether earnings should be reported as net or gross. He was simply required to enter a number in a box. Charles stated that he was paid every other week, and on the off weeks, he estimated his earnings based on hours worked. On the weeks he was paid, he used his paycheck to make the certification. Charles stated that he usually used the net amount for the certification because he would look at the amount he received in his bank account by direct deposit. Charles was aware that his employer reported income to the Department on a quarterly basis. He testified that he did not really pay attention to the deposits of benefits he received from the Department but usually just looked at his bank account to see if he had enough money to cover his bills.

Following the hearing, the hearing officer issued a somewhat confusing decision in which he found that an overpayment of benefits occurred but set aside and remanded the October 10,2012 notice to be corrected because of errors with respect to overpayments in the weeks ending December 12, 19, and 26, 2009. The hearing officer ordered that the overpayment for the week ending December 19, 2009 be developed as a nonfraudulent overpayment. He further ruled that “[t]he fraud provision [of the October 10, 2012 notice] shall be set aside. Benefit Payment Control may re-institute the Fraud provision if appropriate ... once a correct overpayment of benefits is released.” The decision affirmed one of the October 11, 2012 notices (for $275) but remanded the other (for $357).

Charles appealed to the Board, arguing that the evidence failed to establish that he knowingly and intentionally failed to properly report his earned income to obtain more benefits than he was allowed. He requested that the Board reverse the hearing officer’s decision and remand the case to compute any overpayment based only on his actual overpayments, without penalties. The Board affirmed the hearing officer’s decision. Charles filed a petition for judicial review in the superior court, arguing that the Board’s decision must be reversed and that any overpayment should be considered without fraud penalties. The superior court issued an order in which it summarily concluded that the evidence supported the Board’s decision and that there was no legal error.

1. We note as an initial matter that neither the Department nor the YMCA filed an appellee’s brief in this Court. “As a result, we accept [Charles’s] statement of facts as prima facie true and decide the case on the basis of this statement and the evidence cited and quoted in support thereof.” (Citation and punctuation omitted.) Thomas v. Butler, 330 Ga. App. 675 (769 SE2d 104) (2015).

2. Charles argues that the superior court erred in failing to conclude that the Department failed to prove that Charles knowingly underreported his income in order to obtain benefits to which he was not entitled. We agree.

We first set forth the relevant statutory framework. Earnings of a claimant for unemployment benefits are taken into account in determining the amount of a benefit payment as follows: “For claims filed on or after July 1, 2002, an otherwise eligible individual shall be paid the weekly benefit amount, less gross earnings in excess of $50.00, payable to the individual applicable to the week for which benefits are claimed.” OCGA § 34-8-193 (e) (2). OCGA § 34-8-254 (a) governs the liability of unemployment benefit claimants to repay overpayments from the Department, stating, in relevant part:

Any person who has received any sum as benefits under this chapter while any conditions for the receipt of benefits imposed by this chapter were not fulfilled or while the person was disqualified from receiving benefits shall, in the discretion of the Commissioner [of Labor]: (1) Be liable to have such sums deducted from any future benefits payable to such person under this chapter, . . . ; and (2) Be liable to repay the Commissioner for the Unemployment Compensation Fund a sum equal to the amount so received by such person. . . .

Most pertinent here, OCGA § 34-8-255 states:

Any person who knowingly makes a false statement or misrepresentation as to a material fact or who knowingly fails to disclose a material fact to obtain or increase benefits under this chapter, either for himself or herself or for any other person, . . . shall, upon an appropriate finding by the Commissioner, cease to be eligible for such benefits and an overpayment of benefits shall be computed without the application of deductible earnings as otherwise provided in Code Section 34-8-193. . . .

A statutory penalty is added to the overpayment, and interest accrues at a rate of one percent per month. Id.

The Department’s evidence that Charles acted with the requisite scienter, i.e., that he knowingly misrepresented his income in order to obtain higher benefit payments, was circumstantial. The Department’s witness testified that benefit applicants generally receive a handbook that would instruct them regarding their obligation to report gross as opposed to net earnings when certifying for benefits. She could not provide any direct proof, however, that Charles received the handbook or that he received any specific instruction regarding reporting gross earnings, and she did not attempt to show that Charles would have been advised at some stage during the online certification process that gross earnings must be reported. The Department’s witness admitted that the Department’s fraud determination was based on its assumption that Charles had engaged in fraud within the meaning of OCGA § 34-8-255 because ofthe number of weeks over which the underreporting occurred. Charles, on the other hand, did not recall what information he received during training and testified that when he certified for his benefits online, he received no notice that gross earnings should be entered into the box where he input his earnings information. He usually reported his net income based on the payments his employer deposited into his checking account. Charles knew that his employer was also reporting his income to the Department.

Our Supreme Court has explained:

When the party upon whom the burden of an issue rests seeks to carry it, not by direct proof, but by inferences, he has not, in this reasonable sense, submitted any evidence for a [trier of fact’s] decision, until the circumstances he places in proof tend in some proximate degree to establish the conclusion he claims; and for this, the facts shown must not only reasonably support that conclusion, but also render less probable all inconsistent conclusions.

Allen Kane’s Major Dodge v. Barnes, 243 Ga. 776, 780-781 (257 SE2d 186) (1979); see also ReMax North Atlanta v. Clark, 244 Ga. App. 890, 895 (537 SE2d 138) (2000) (proof of fraud “must amount to more than mere speculation”) (citation and punctuation omitted).

Assuming that the facts proved by the Department warrant an inference that Charles knew he was required to report gross income but deliberately underreported it to obtain higher benefit payments, the Department’s evidence fails to render less probable the contrary conclusions suggested by Charles’s testimony: that Charles failed to ascertain and understand that he was to report his gross rather than net income and that he did not intend to obtain benefits to which he was not entitled. While the evidence may establish that Charles was less than diligent in ascertaining his income from his employer, monitoring deposits in his bank account, and certifying for his benefits, such conduct is an insufficient basis for imposing fraud penalties pursuant to OCGA § 34-8-255. See Hicks v. McLain’s Bldg. Materials, 209 Ga. App. 191, 193 (433 SE2d 114) (1993) (“While appellant may have shown sloppy business practices on the part of appellee, she has not presented evidence from which either knowledge of falsity at the time of the alleged misrepresentation or intent to deceive may reasonably be inferred.”).

Based on the foregoing, we conclude that the superior court erred in concluding that the facts supported the Board’s order affirming the decision of the hearing officer. Because the Department did not establish that Charles knowingly made a false statement or misrepresentation as to a material fact in order to obtain benefits to which he was not entitled, the Board erred in refusing to grant Charles’s request that the case be remanded for a determination of the actual amount of overpayment of benefit or FAC payments for which he may be liable pursuant to OCGA § 34-8-254, without application of any of the penalties or consequences resulting from a determination of fraud pursuant under OCGA § 34-8-255. Accordingly, we reverse the superior court’s order affirming the Board’s final decision and remand this case to the superior court with direction that it remand to the Department for further proceedings consistent with this opinion.

Decided March 19, 2015.

Margaret L. Kinnear, for appellant.

Samuel S. Olens, Attorney General, Kimberly B. Lewis, Senior Assistant Attorney General, for appellee.

3. To the extent that Charles argues on appeal that he should not be liable for any actual overpayments of benefits under OCGA § 34-8-254 due to the Department’s alleged reliance on hearsay and failure to adequately prove the existence and amount of overpayment before the hearing officer, we conclude that he waived his claim of error by failing to assert it before the Board. See Sparks v. Caldwell, 244 Ga. 530 (261 SE2d 590) (1979); Moore v. Tanner, 172 Ga.App.792, 793 (2) (324 SE2d 772) (1984). Charles stated before the Board that he “specifically dispute [d] any finding of fraud,” as opposed to his liability for an actual overpayment. We also note that at the hearing before the hearing officer, Charles’s counsel arguably conceded the existence of an overpayment, stating that she had calculated an actual overpayment of $1,889.09. Charles’s brief before the Board repeated this calculation of the actual overpayment.

4. In view of our disposition in Division 2, we need not address whether the trial court erred in denying the motion to strike the supplemental record.

Judgment reversed and case remanded with direction.

McFadden and Ray, JJ., concur.

       Woolery explained that FAC is a supplement of $25 per week the federal government provided from 2009 through 2011.

       OCGA § 34-8-223 states: “Judicial review shall be permitted only after any party claiming to he aggrieved thereby has exhausted his or her administrative remedies.” Even if Charles might have had further appeal rights within the Department following the determination of the benefit control unit on remand from the hearing officer, an exhaustion requirement may be excused when, as here, it “would result in a decision on the same issue by the same body.” WMM Properties v. Cobb County, 255 Ga. 436, 440 (3) (339 SE2d 252) (1986).

       The Commissioner is authorized to waive repayment of overpayment of benefits except if a person receives the overpayment “because of false representations or willful failure to disclose a material fact.” OCGA § 34-8-254 (c).

       The statutory penalty was 10 percent at the time of the fraud determination at issue here, but OCGA § 34-8-255 was amended in 2014 to provide for a 15 percent penalty. Ga. L. 2014, pp. 739-740, § 9.

       Further, a person who commits fraud within the meaning of OCGA § 34-8-255 is rendered ineligible to receive unemployment benefits for the “next four complete calendar quarters immediately following the date of [the fraud] determination.” Id.


author: McFadden, Judge.

text:
    A14A2164.
    LEGGETT v. THE STATE.
    (771 SE2d 50)
   McFadden, Judge.

A jury found Jasper Leggett, Jr., guilty of child molestation and burglary. The trial court denied Leggett’s motion for a new trial. Leggett appeals, claiming that there was insufficient evidence, that the trial court failed to exercise its discretion in considering the general grounds, that the trial court erroneously admitted hearsay, that the trial court allowed improper bolstering testimony, and that his trial counsel was ineffective. However, there was sufficient evidence from which the jury could find guilt beyond a reasonable doubt, there is nothing in the record showing that the trial court failed to exercise its discretion and weigh the evidence, Leggett has failed to show improper admission of hearsay or has waived such objection, the testimony in question was not bolstering, and Leggett has not shown that trial counsel’s performance was deficient and prejudicial. Accordingly, we affirm.

1. Sufficiency of the evidence.

On appeal from a criminal conviction, the standard for reviewing the sufficiency of the evidence

is whether a rational trier of fact could have found the defendant guilty beyond a reasonable doubt. This [c]ourt does not reweigh evidence or resolve conflicts in testimony; instead, evidence is reviewed in a light most favorable to the verdict, with deference to the jury’s assessment of the weight and credibility of the evidence.

Hayes v. State, 292 Ga. 506 (739 SE2d 313) (2013) (citations omitted).

Viewed in that light, the evidence showed that near 5:00 a.m. on September 12, 2010, Leggett entered the house of the victims. He went into the bedroom where 11-year-old D. L. was sleeping with her sister and a friend who had spent the night at their house. Leggett sat on the edge of the bed, reached inside D. L.’s shorts, and touched her vagina and buttocks. D. L. was awakened by the touching, and Leggett put a finger to his lips, indicating that she should be quiet. He continued to touch her, and then left the bedroom.

Leggett went into the living room where D. L.’s mother was sleeping on a couch. The mother woke up to find Leggett lying on the floor right next to her, staring at her face. The mother, who did not know Leggett, jumped up and asked him what he was doing there and how he had gotten into the house. Leggett identified himself as “G from across the street,” and said that he had “just [come] in,” that he had come to see her, and that if it was a problem for him to be there he would leave.

In the meantime, D. L. woke up her sister, 15-year-old I. S., and told her what had happened. I. S. ran into the living room and told the mother that the man had touched D. L. The mother immediately went to the phone to call the police, and Leggett then left the house. The mother informed the police that the intruder had identified himself as “G” and that he had been wearing a white shirt and black pants.

At approximately 8:00 that same morning, D. L. and her sister talked to a neighbor about what had happened. The neighbor, who is related to Leggett, confirmed that Leggett is known as “G” and helped the mother find Leggett in an apartment across the street from their house. As the mother confronted Leggett about the incident, he fled. The mother and the neighbor chased after Leggett and called the police. Officers responded to the call and arrested Leggett, who was wearing a white shirt and black shorts. The mother and D. L. identified Leggett as the man who had intruded into their house.

Leggett’s mother testified for the defense, stating that Leggett was in her house at the time of the incident. She testified that she had gotten up at 5:00 on the morning in question to get some water. She looked in a bedroom and saw Leggett lying in the bed.

Having reviewed the evidence in the light most favorable to the verdict, we conclude that a rational “trier of fact could [have found] beyond a reasonable doubt that [Leggett] committed the offenses of. . . child molestation . . . and burglaryf.]” Couch v. State, 326 Ga. App. 207, 208 (1) (756 SE2d 291) (2014) (citations omitted).

2. General grounds.

Leggett requests that we remand the case to the trial court with direction that it exercise its discretion and weigh the evidence, arguing that the trial court erroneously failed to do so even though Leggett had raised the general grounds in his motion for new trial by asserting that the verdict was strongly against the weight of the evidence and contrary to the law and principles of justice and equity. Indeed, “[w]hen faced with a motion for new trial based on these general grounds, the trial court has the duty to exercise its discretion and weigh the evidence. [Cits.]” Walker v. State, 292 Ga. 262, 264 (2) (737 SE2d 311) (2013). And if the record reflects that the trial court failed to exercise such discretion, we will vacate and remand for the trial court to fulfill this obligation. Copeland v. State, 325 Ga. App. 668, 672 (3) (754 SE2d 636) (2014).

However, in interpreting the language of an order overruling a motion for a new trial, it must be presumed that the trial judge knew the rule as to the obligation thus devolving upon him, and that in overruling the motion he did exercise this discretion, unless the language of the order indicates to the contrary and that the trial judge agreed to the verdict against his own judgment and against the dictates of his own conscience, merely because he did not feel that he had the duty or authority to override the findings of the jury upon disputed issues of fact.

Conley v. State, 329 Ga. App. 96, 100 (2) (763 SE2d 881) (2014) (citation omitted).

Here, Leggett does not point to anything in the order denying a new trial or any other part of the record which shows that the trial court failed to exercise its discretion and weigh the evidence. On the contrary, at the motion for new trial hearing, after Leggett had argued the general grounds and asked the court to exercise its broad discretion to grant a new trial, the trial judge expressly indicated that he would not issue a ruling on the motion until he had “a chance to look at the transcript.” Several days later, the trial court entered its order denying the motion, noting that it had “heard the evidence and argument of counsel.” While the order did not specifically state the standard of review, it also contained nothing to indicate the use of an incorrect standard or that the trial judge failed to exercise his discretion and weigh the evidence.

“This [cjourt will not presume the trial court committed error where that fact does not affirmatively appear. [Cits.]” Conley, supra at 101 (2) (punctuation omitted). Because it does not affirmatively appear from the record that the trial court failed to exercise its discretion in denying the motion for new trial, we will not presume error and instead must presume that the trial court exercised its discretion and properly weighed the evidence. Copeland, supra at 672 (3). Compare White v. State, 293 Ga. 523, 525-526 (2) (753 SE2d 115) (2013).

3. Hearsay.

Leggett argues that the trial court erred in allowing hearsay testimony from I. S. and from the investigator who conducted the forensic interview of D. L. The arguments are without merit.

(a) Testimony of I. S.

At trial, I. S. was asked why she had run into the living room, and she responded, “Because [D. L.] said that he had touched her, and then I was like, well, I’m fixing to go in there, so I went in there cause I had heard talking, mom and him was talking, and I went in there and I said, kill him, and my mama said why, and. .. Leggett then raised a hearsay objection, which the trial court overruled. It appears from the transcript and Leggett’s brief that the hearsay objection pertained to I. S.’s statement that D. L. had “said that he had touched her.” However,

[t]he Child Hearsay Statute as set out in former OCGA § 24-3-16 provides that the out-of-court statement of a child under the age of 14 years describing any act of sexual contact or physical abuse performed with or on the child by another or performed with or on another in the presence of the child is admissible in evidence by the testimony of the person or persons to whom made if the child is available to testify in the proceedings and the court finds that the circumstances of the statement provide sufficient indicia of reliability.

Wofford v. State, 329 Ga. App. 195, 204 (5) (a) (764 SE2d 437) (2014) (footnote omitted).

Here, D. L. was under 14 years old and was available to testify at trial. In fact, she took the stand before I. S. did, and had already testified that she had told I. S. about the man touching her. The circumstances of the statement, made immediately after the incident as an outcry to her sister, indicate sufficient reliability. See Gregg v. State, 201 Ga. App. 238, 240 (3) (b) (411 SE2d 65) (1991). Accordingly, I. S.’s testimony about D. L.’s outcry was admissible under the Child Hearsay Statute. Moreover, even if the testimony had been inadmissible hearsay, it was merely “cumulative of the victim’s own testimony and was not harmful. [Cit.]” Wright v. State, 327 Ga. App. 658, 662 (2) (c) (760 SE2d 661) (2014).

We note that Leggett has also cited subsequent testimony by I. S. as also containing inadmissible hearsay statements. However, Leggett “failed to object to the admission of [this] testimony regarding these statements and therefore he has waived this issue.” Jones v. State, 329 Ga. App. 478, 481 (3) (765 SE2d 657) (2014) (footnote omitted).

(b) Testimony of the forensic interviewer.

Leggett contends that although some of the forensic interviewer’s testimony was admissible under the Child Hearsay Statute, other parts of her testimony contained inadmissible hearsay. But as he acknowledges in his brief, while he raised a bolstering objection to some of the testimony, he did not raise a hearsay objection to the forensic interviewer’s testimony. “To preserve an objection as to a specific point, ‘the objection must be on that specific ground’in order for this [cjourt to consider it. [Cit.]” Jones, supra at 481 (3), n. 3. Because Leggett failed to raise a hearsay objection at trial, he has “waived this issue.” Phillips v. State, 284 Ga.App. 224, 229 (1) (d) (644 SE2d 153) (2007) (citation omitted).

4. Bolstering.

Leggett claims that the forensic interviewer improperly bolstered the testimony of D. L. But he has failed to make any showing of bolstering.

“It is well established that in no circumstance may a witness’ credibility be bolstered by the opinion of another... as to whether the witness is telling the truth.” Lagana v. State, 219 Ga. App. 220, 221 (1) (464 SE2d 625) (1995) (citation and punctuation omitted). Thus, “[testimony that another witness believes the victim impermissibly holsters the credibility of the victim.” Buice v. State, 239 Ga. App. 52, 55 (2) (520 SE2d 258) (1999) (citation omitted).

Here, Leggett has not cited a single instance where the forensic interviewer testified that she believed D. L. or opined that D. L. was telling the truth. Thus, there was no impermissible bolstering. See Morris v. State, 268 Ga. App. 325, 328 (2) (601 SE2d 804) (2004). Rather, the forensic interviewer’s testimony which Leggett challenges merely recounted the interview with D. L. and the child’s statements about the incident. Testimony concerning the victim’s “forensic interview describing the events surrounding the crime was admissible as substantive evidence under the Child Hearsay Statute.” Obeginski v. State, 313 Ga. App. 567, 570 (2) (722 SE2d 162) (2012) (citations omitted).

Leggett has also pointed to two statements made by the forensic interviewer in response to cross-examination questions posed by his trial counsel. Leggett’s attorney asked the witness if the victim had said she thought she was dreaming at one point, and the witness answered, “Initially, she thought she was, and then when she woke up, she realized he was actually there in the bedroom.” Counsel then followed up by asking if the interviewer “got the impression or sense from her that some part of this was foggy or unclear,” and the witness responded, “I got the sense from her that she was woke up by somebody touching her.”

Again, these are merely examples of the forensic interviewer testifying as to what the victim told her. They are not instances of the witness testifying that she believed the victim was telling the truth, and thus the testimony does not amount to improper bolstering. Moreover, even if the testimony were improper, any error was self-induced. Leggett “elicited this testimony during cross-examination of the [witness] and failed to object to [her] responsefs]. Matters not objected to at trial cannot be raised for the first time on appeal. Likewise, self-induced error cannot be complained of on appeal.” Shelnutt v. State, 234 Ga. App. 655, 657 (4) (506 SE2d 643) (1998) (citations and punctuation omitted).

5. Ineffective assistance of counsel.

Leggett claims his trial counsel was ineffective in failing to object to certain testimony and in failing to present two exculpatory witnesses. To prevail on such claims, Leggett must “show both that his counsel’s performance was professionally deficient and that but for counsel’s unprofessional conduct, there is a reasonable probability the outcome of the proceedings would have been different.” Hill v. State, 291 Ga. 160, 164 (4) (728 SE2d 225) (2012) (citation and punctuation omitted). Leggett has failed to make both showings.

(a) Testimony of I. S.

Leggett complains that his trial counsel was ineffective in failing to object to the testimony from I. S. discussed above in Division 3 (a) as improperly bolstering the testimony of D. L. However, as with the testimony of the forensic interviewer, this testimony from I. S. did not amount to improper bolstering because she neither testified that she believed the victim nor opined that the victim was being truthful. See Morris, supra. Rather, I. S.’s testimony simply explained what happened when she ran into the living room after D. L.’s outcry. Thus, a bolstering objection would have been without merit, and “[f]ailure to make a meritless objection cannot be evidence of ineffective assistance.” Hayes v. State, 262 Ga. 881, 884-885 (3) (c) (426 SE2d 886) (1993).

(b) Testimony of the forensic interviewer.

Leggett contends that his trial counsel should have raised a hearsay objection to the forensic interviewer’s testimony that D. L. had told her about I. S. “telling [their] mother that they ought to kill him for what he had done, but at that point the mother did not know what she was talking about.” However, even if we assume, without deciding, that counsel was deficient for failing to raise a hearsay objection, Leggett has not shown that there is a reasonable probability that the outcome of the trial likely would have been different but for that alleged deficiency because the testimony was merely cumulative of testimony previously given by I. S. about that same statement that she had made to her mother. See Kirkland v. State, 292 Ga. App. 73, 76 (3) (b) (663 SE2d 408) (2008) (no ineffective assistance of counsel where erroneous admission of hearsay is cumulative of legally admissible evidence of the same fact). Accordingly, Leggett’s “claim of ineffective assistance of counsel on this basis fails.” Hill v. State, 290 Ga. App. 140, 146 (5) (f) (658 SE2d 863) (2008) (citation omitted).

(c) Testimony of A. P.

Leggett argues that his trial counsel should have raised a hearsay objection to testimony given by ten-year-old A. P., the friend who had spent the night at the victim’s house. At the motion for new trial hearing, counsel testified that he did not object to the testimony because he did not want to appear to the jury as though he was unnecessarily attacking or being “pointlessly argumentative” with a young child. He explained that “you don’t want to give the jury the impression that you’re the bad guy, you’re attacking a child, you’re being pointlessly petty over legal things when it’s just a child trying to explain what she saw.”

“We do not find this strategy unreasonable, and we therefore find no deficient performance on the part of trial counsel in this respect. [Cits.]” Jessie v. State, 294 Ga. 375, 378 (2) (c) (754 SE2d 46) (2014). See also Kilpatrick v. State, 276 Ga. 151, 153 (2) (575 SE2d 478) (2003) (counsel not ineffective in failing to object to certain testimony because he did not want to appear to be insensitive in front of the jury); Thomas v. State, 318 Ga. App. 849, 858-859 (5) (c) (734 SE2d 823) (2012) (no ineffectiveness where counsel made strategic decision not to object during child’s testimony for fear of alienating jury).

(d) Exculpatory witnesses.

Leggett claims his trial counsel was ineffective in failing to present Trabian Jones and Monica Yates as exculpatory witnesses at trial. However, neither witness provided exculpatory testimony.

Jones’ testimony actually would have been harmful to Leggett because it placed him near the scene shortly before the crimes were committed around 5:00 a.m. At the motion for new trial hearing, Jones testified that the night before the incident he had been with Leggett at two clubs and that he dropped him off at approximately 4:00 a.m. at a friend’s house in the same area where the victims’ house was located. Upon questioning by the prosecutor, Jones expressly confirmed that he had dropped Leggett off near the scene of the crime about an hour before it happened. He also gave testimony consistent with the mother’s testimony that Leggett was wearing a white shirt at the time of the crimes.

Yates’ testimony at the motion for new trial hearing, while not harmful to Leggett, was also not exculpatory. She testified that she lived across the street from the victims and that at 2:00 a.m. on the date in question she saw “a group of kids that live in my area . . . [ojutside and dancing around.” She did not specifically identify D. L. as one of the kids that she saw at that time, and such testimony would not have exonerated Leggett from the offenses committed at approximately 5:00 that morning.

Decided March 19, 2015.

Hayden L. Willis, for appellant.

J. David Miller, District Attorney, Brian A. McDaniel, Assistant District Attorney, for appellee.

Moreover, at the motion for new trial hearing, trial counsel testified that he was never given the names of Jones or Yates as potential defense witnesses. Under these circumstances, Leggett “has failed to establish that his trial counsel provided constitutionally deficient assistance of counsel.” Gill v. State, 295 Ga. 705, 709 (2) (763 SE2d 719) (2014). See McIlwain v. State, 287 Ga. 115, 118 (5) (694 SE2d 657) (2010) (attorney cannot be found deficient for failing to call a witness of whom he was not informed).

Judgment affirmed.

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

       The former Child Hearsay Statute applies to this case because the trial took place in 2011. The law governing child hearsay is now codified at OCGA § 24-8-820.


author: MCFADDEN, Judge.

text:
    A14A2181.
    GRIFFITH v. THE STATE.
    (771 SE2d 57)
   MCFADDEN, Judge.

After being indicted for various drug-related offenses, Joe Travis Griffith moved to suppress evidence found in a search of his vehicle during a traffic stop. The trial court denied the motion, and we granted interlocutory review of that ruling. Because Griffith admitted to having drugs in his vehicle during the course of an otherwise lawful traffic stop that had not been unreasonably prolonged, we affirm.

When reviewing the trial court’s denial of a motion to suppress, the evidence is construed most favorably to uphold the trial court’s findings and judgment. And if there is any evidence to support the trial court’s findings on disputed facts and credibility, they will not be disturbed unless clearly erroneous.

Betancourt v. State, 322 Ga. App. 201, 204 (2) (744 SE2d 419) (2013) (citations and punctuation omitted).

So viewed, the evidence showed that on the morning of March 19, 2013, a law enforcement officer stopped Griffith for driving a vehicle with improperly tinted windows. Immediately upon stopping the vehicle, the officer radioed dispatch to check Griffith’s out-of-state license tag. Then, as the officer first waited for Griffith to produce his driver’s license and then wrote Griffith a warning for the tint violation, the officer questioned Griffith, who told a rambling, inconsistent story about why he was driving on the stretch of highway where he was stopped. After the officer finished writing the warning, but before he had received the results of the tag check from dispatch, the officer made a comment to Griffith about the prevalence of crime on that stretch of highway and then asked Griffith if he had anything illegal in his vehicle. Griffith admitted that he had a meth pipe and methamphetamine in the vehicle, and the officer arrested him. The arrest occurred less than 13 minutes from the start of the traffic stop. Based on Griffith’s statement, the officer searched the vehicle and found a meth pipe and methamphetamine.

Griffith does not dispute the validity of the traffic stop, but he argues that the officer unreasonably prolonged it. An investigatory stop of a vehicle “cannot be unreasonably prolonged beyond the time required to fulfill the purpose of the stop.” Sommese v. State, 299 Ga. App. 664, 668 (1) (683 SE2d 642) (2009). But such claims, as our Supreme Court has explained,

are of two sorts. In some cases, a detention is prolonged beyond the conclusion of the investigation that warranted the detention in the first place, and in those cases, the courts generally have concluded that such a prolongation — even a short one — is unreasonable, unless, of course, good cause has appeared in the meantime to justify a continuation of the detention to pursue a different investigation. In other cases, the detention is not prolonged beyond the conclusion of the investigation that originally warranted the detention, but it is claimed that the investigation took too long, perhaps because the officer spent too much time inquiring about matters unrelated to the investigation. In these cases, the courts examine whether the police diligently pursued a means of investigation that was likely to confirm or dispel their suspicions quickly, during which time it was necessary to detain the defendant.

Rodriguez v. State, 295 Ga. 362, 369 (2) (b) (761 SE2d 19) (2014) (citations and punctuation omitted).

This case presents the second sort of claim. The officer had finished writing a warning for the window tint violation, but he had not yet received information from the tag check, which among other things he needed to verify Griffith’s insurance status because Griffith had not been able to produce an insurance card. A reasonable traffic stop

generally includes the time necessary to verify the driver’s license, insurance, registration; to complete any paperwork connected with the citation or a written warning; and to run a computer check to determine whether there are any outstanding arrest warrants for the driver or the passengers.

Betancourt, 322 Ga. App. at 204 (2) (a) (citations and punctuation omitted); accord Salmeron v. State, 280 Ga. 735, 737 (1) (632 SE2d 645) (2006). Because the officer had not yet completed all of these tasks, the stop had not concluded. See Bowens v. State, 276 Ga. App. 520, 521 (623 SE2d 677) (2005) (traffic stop for seat belt violation was still in progress when drug dog alerted on car door, because officer was running computer check on appellant’s license and registration). For this reason, cases cited by Griffith that involve a detention following the conclusion of a traffic stop, such as Heard v. State, 325 Ga. App. 135, 138 (1) (751 SE2d 918) (2013), and Nash v. State, 323 Ga. App. 438, 442-443 (746 SE2d 918) (2013), are inapposite.

The hearing evidence permitted the trial court to find that the officer did not unreasonably prolong the stop as he performed the tasks associated with it. See generally Moore v. State, 321 Ga. App. 813, 815 (743 SE2d 486) (2013) (regarding deference given to trial court’s determination of whether stop was unreasonably prolonged). While performing such tasks, an officer “may question the occupants and request consent to conduct a search of the vehicle, so long as the officer’s questioning does not impermissibly prolong the otherwise lawful detention.” Betancourt, 322 Ga. App. at 204-205 (2) (a) (citation omitted); see Calcaterra v. State, 321 Ga. App. 874, 876-877 (743 SE2d 534) (2013) (permitting officer, during otherwise lawful stop, to ask questions unrelated to issue of writing citation for violation that was basis of stop); see generally Salmeron, 280 Ga. at 736 (1) (dispositive factor was not nature or subject of officer’s questioning but whether it occurred during otherwise lawful detention).

In this case, less than 13 minutes elapsed between the start of the traffic stop and Griffith’s arrest. The video recording of the stop reflects the officer actively engaging in tasks related to the purpose of the stop during those 13 minutes. As he talked with Griffith, the officer obtained Griffith’s driver’s license from him, tested the tint of Griffith’s windows, discussed the window tint violation with him, and wrote a warning for that violation. Moreover, the officer initiated the check of Griffith’s tag at the very beginning of the stop and determined that the check would be needed to verify Griffith’s insurance. Compare Bodiford v. State, 328 Ga. App. 258, 262-263 (1) (761 SE2d 818) (2014) (officer waited until after he had completed all other aspects of investigation before initiating check of appellant’s driver’s license and then refused to have further contact with dispatch). While “a delay in the . . . response time [to a check] would not justify [Griffith’s] detention indefinitely,” Betancourt, 322 Ga. App. at 205 (2) (a), “the police are not constitutionally required to move at top speed or as fast as possible. At a traffic stop, the police can occasionally pause for a moment to take a breath, to think about what they have seen and heard, and to ask a question or so.” Rodriguez, 295 Ga. at 371 (2) (b) (citation and punctuation omitted). Under the circumstances of this case, “we agree with the trial court that the detention was not unreasonably prolonged beyond the time required to fulfill the purpose of the traffic stop. [Cits.]” Betancourt, 322 Ga. App. at 205 (2) (a) (20-minute detention not unreasonably prolonged where officer had not yet received computer information confirming appellants’ identities and the status of the driver’s license; citing other cases with similar facts for same proposition).

Decided March 19, 2015.

Bearden Law Firm, D. Lynn Bearden, for appellant.

Rosemary M. Greene, District Attorney, Erie J. Newton III, Assistant District Attorney, for appellee.

Judgment affirmed.

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


author: BARNES, Presiding Judge.

text:
    A14A2221.
    ANDREWS v. THE STATE.
    (771 SE2d 59)
   BARNES, Presiding Judge.

Following a jury trial, Robert Clayton Andrews was found guilty of three counts of incest, three counts of statutory rape, two counts of child molestation, enticing a child for indecent purposes, and false statements. He now appeals from the denial of his motion for new trial, contending that the trial court erred in denying his motion to suppress DNA evidence, in overruling his objection to impermissible character evidence, and in overruling his objection and motion for mistrial when the State commented on his right to remain silent in its closing argument. For the reasons that follow, we affirm.

1. Andrews contends that the trial court erred in denying his motion to suppress DNA evidence. He maintains that the DNA evidence was provided for a paternity test only, and thus could not be used in his criminal trial. We do not agree.

In reviewing a trial court’s ruling on a suppression motion, evidence is construed most favorably to uphold the findings and judgment. When consent to search is in issue, the State has the burden of proving the consent was freely and voluntarily given. The validity of a consent to search is determined from all the circumstances. A police officer cannot arbitrarily expand the scope of the consent to search. A consensual search is invalid when it exceeds the scope of the consent.

(Citations omitted.) State v. Long, 232 Ga. App. 445 (502 SE2d 298) (1998).

The evidence demonstrates that in January 2011, police opened an investigation when it was discovered that the 12-year-old victim was pregnant. The victim told police that she been in a sexual relationship with a man named “Josh.” After the baby was born in June of that year, police obtained a DNA sample from the baby and the victim, but the case was administratively closed because police had no further leads. In October 2011, the victim told her grandmother, with whom she lived, that Andrews, who was her uncle and the grandmother’s son, was the baby’s father. The grandmother apparently put the victim out of her home, but kept the baby. Afterward, when the victim and the grandmother were involved in a public altercation, the police were called and they subsequently renewed the investigation into the victim’s pregnancy.

At the motion to suppress hearing, a detective testified that on October 25, 2011, after having been identified as a suspect, Andrews and the grandmother voluntarily came to the police station and asked for a paternity test, purportedly for the purpose of exonerating him. The detective was busy at the time and asked them to come back later in the afternoon. When they returned, before having his saliva tested, Andrews signed a consent form which the officer explained to Andrews meant that, “you’re freely giving this saliva sample to this paternity test because, obviously, you’ve been accused of something.” The “Voluntary Consent to Search” form stated in relevant part:

I have been advised . . . and understand that I am not required to and cannot be compelled to consent to this search without a warrant. I understand that anything found by the searching officers can be used against me in court proceedings. I hereby certify that I have not been threatened or coerced, nor have I been promised anything in order to obtain my consent, which is freely and voluntarily given. The officer further explained to Andrews that “if you go through [with the test] and it comes back that you are the father... we can use it in court____So if you agree to give me a sample . . . we’re just doing paternity with this okay?” Andrews was arrested approximately three weeks later when the results of the DNA test revealed that he was the father of the victim’s baby.

Although Andrews contends that his consent was limited to the use of his DNA for paternity purposes and that he did not voluntarily and freely consent to the use of his DNA in the prosecution of the criminal case, we agree with the trial court that Andrews consented to the DNA test “voluntarily, knowing that the police were investigating unlawful sexual intercourse with a child. The proof of his paternity of the victim’s child also proved that he had sex with her which was a crime.” It is true “that blood samples taken from a suspect in a criminal matter may not be used for purposes for which a suspect was not advised and to which he did not, therefore, consent.” Holmes v. State, 284 Ga. 330, 331 (2) (667 SE2d 71) (2008). But here, Andrews voluntarily came to the police station after he was notified that he was a suspect in the criminal case. The detective told Andrews that the DNA was going to be used to establish paternity, that he had been accused of the crime, and that the results could be used against him in court proceedings. The DNA was not used for any purpose other than that stated by the officer. Compare Long, 232 Ga. App. at 446 (consent to blood test upon receiving implied consent warning is not consent to use of results for prosecution of possession of cocaine); Beasley v. State, 204 Ga. App. 214, 214-217 (1) (419 SE2d 92) (1992) (defendant’s consent involuntary because he was told his urine sample would be used to determine bond eligibility, not for criminal prosecution).

Under these circumstances, the trial court did not err in finding that the State met its burden of proving that Andrews’ consent was freely and voluntarily given. Holmes, 284 Ga. at 331 (2).

2. The trial court also did not err in overruling Andrews’ objection to the victim’s testimony that she had told her grandmother about Andrews because “I see all these others mothers with their ... child’s dad, and I’m like, my son’s not getting that same thing, and of course — like he got another child.” Andrews objected and requested a mistrial, arguing that the testimony that he had another child was prejudicial “because it implies to the jury about his past sexual behavior.” The State argued that the testimony was not prejudicial because Andrews, as an adult, was “free to have as many children as he wants” and the victim’s jealousy over Andrews’ other child was relevant as the reason the victim had finally told her grandmother about the relationship with Andrews. The trial court overruled the objection, denied the motion for a mistrial and Andrews’ request for curative instruction.

Under OCGA § 24-4-404 (a), “[e]vidence of a person’s character or a trait of character shall not be admissible for the purpose of proving action in conformity therewith on a particular occasionf.]” “[I]f the evidence of other acts is relevant for some other purpose than to show a probability that the defendant committed the crime because he is a man of criminal character, the evidence is admissible despite incidentally placing the defendant’s character in issue.” (Citation and punctuation omitted.) Washington v. State, 294 Ga. 560, 563 (2) (755 SE2d 160) (2014).

Andrews maintains that the victim’s testimony would impress upon the jury that he had committed the offense of fornication with a different female, that the jury might also assume that the mother of the other child was underage, and thus, it might assume that Andrews had committed the offense of statutory rape with another female. While arguably the fact that Andrews had another child might incidentally place his character at issue, the testimony was relevant to explain why the victim, who had initially fabricated a story about the father of her child, later said that she had a sexual relationship with Andrews. Moreover, given the overwhelming evidence in this case demonstrating that Andrews was the father of his 12-year-old niece’s child, it is unlikely that the testimony negatively impacted the outcome of Andrews’ case, and the failure to demonstrate harm from an alleged error precludes reversal. White v. State, 225 Ga. App. 74, 77 (9) (483 SE2d 329) (1997).

Thus, the trial court did not err in overruling Andrews’ objection and in denying his motion for a mistrial on this basis.

3. Andrews contends that the trial court erred in overruling his objection to the prosecutor’s comment in closing that, in relation to the crimes, “the only other person who knows is the Defendant and he hasn’t admitted to anything. You heard his denial that any of this ever happened. What you’ve also heard is a whole lot of evidence that is absolutely unrefuted.” Andrews objected to the comment as burden-shifting and an improper comment on his right to remain silent. He also moved for a mistrial. The trial court overruled his objection and denied the motion for a mistrial. “The trial judge in passing upon a motion for mistrial on account of alleged improper argument is vested with a broad and sound discretion, and his ruling will not be controlled by this court unless manifestly abused.” (Citations and punctuation omitted.) James v. State, 265 Ga. App. 689, 690 (1) (595 SE2d 364) (2004). Despite Andrews’ contention otherwise, “we view the remarks to be a permissible comment on [Andrews’] failure to adduce evidence rebutting the State’s evidence. This is neither burden shifting nor an impermissible comment on defendant’s failure to testify.” (Citations and punctuation omitted.) Miller v. State, 240 Ga. App. 18, 19 (2) (522 SE2d 519) (1999).

Decided March 19, 2015.

Steven L. Sparger, for appellant.

Meg E. Heap, District Attorney, Emily T. Puhala, Assistant District Attorney, for appellee.

Judgment affirmed.

Boggs and Branch, JJ., concur.

       This case was tried after January 1, 2013, so our new Evidence Code applies. See Ga. L. 2011, pp. 99, 214, § 101. OCGA § 24-2-2 was superseded by OCGA § 24-4-404.


author: DOYLE, Presiding Judge.

text:
    A14A2224.
    ELEKIMA v. ABBEY ROAD CONDOMINIUM ASSOCIATION, INC.
    (771 SE2d 63)
   DOYLE, Presiding Judge.

Precious Elekima appeals from the grant of summary judgment to Abbey Road Condominium Association, Inc. (“the Association”), in his suit against it for damages arising from an alleged constructive eviction. Elekima contends that the trial court erred by ruling that his suit was barred because his claims should have been asserted as compulsory counterclaims in a prior successful action against him by the Association. For the reasons that follow, we reverse.

To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. On appeal from the grant of summary judgment this Court conducts a de novo review of the evidence to determine whether there is a genuine issue of material fact and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.

The relevant facts are largely undisputed, and the record shows that Elekima owns 17 condominium units in a residential development that is subject to membership in the Association. The Association is responsible for maintenance of common areas and facilities in the development, which maintenance is funded by assessments on each member unit. In April 2010, the Association filed a verified complaint against Elekima seeking approximately $68,000 in unpaid assessments and to foreclose on liens arising from the unpaid assessments under OCGA § 44-3-109. The complaint sought a monetary award for the unpaid assessments plus interest and judicial foreclosure on the Association’s lien against Elekima’s properties.

After Elekima failed to file an answer, the trial court in August 2010 entered a final order and judgment in favor of the Association, awarding it $70,819.56 in damages and decreeing that the Association could foreclose its lien on Elekima’s properties. In June 2011, the court entered an amended order that was revised only to list the specific 17 units subject to the lien. In August 2011, Elekima moved to re-open the default judgment and for reconsideration, arguing that the Association had wrongfully towed his vehicles, erased numbers from his parking spaces, changed the gate codes, and locked him out of his properties. The trial court denied the motion in August 2012.

In October 2012, Elekima filed the action that is the subject of this appeal. In his complaint against the Association, he claimed that the Association had wrongfully locked him out of the units since July 2011. Alleging a constructive eviction, Elekima sought losses in rent, damages arising from his inability to pay the mortgages on other rental property and his second home, and other damages arising from “[depression, [b]ankruptcy, and effects of bad credit.”

The Association filed a timely answer, and on February 24, 2014, moved for summary judgment, arguing that Elekima’s claims were compulsory counterclaims which he failed to bring in the prior litigation. Elekima filed a brief in response on March 31, 2014, tendering no evidence but arguing that the claims were independent of the prior action. The trial court granted the Association’s motion on May 20, 2014, giving rise to this appeal.

Elekima argues that the trial court erred because his claims are based on actions taken by the Association starting on July 2011 that wrongfully restricted his access to the subject condominium units. Therefore, he argues, those actions could not have been addressed in the litigation that culminated in the June 2011 order awarding the Association damages and granting the foreclosure. We agree.

Essentially, a compulsory counterclaim is one which: 1) arises out of the same transaction or occurrence as the main claim; and 2) has matured at the time the answer is filed. Conversely, claims that mature or are acquired after the [defensive] pleading has been served are permissive rather than compulsory counterclaims.

Although Elekima failed to answer the prior suit, his constructive eviction claim was predicated on conduct by the Association that occurred after the conclusion of the Association’s prior suit. Therefore, this claim matured after the answer was due, and it was a permissive, not compulsory counterclaim.

The distinction is critical for the following reason: The failure to plead a compulsory counterclaim can result in the party losing the right to assert that claim in a subsequent action. On the other hand, the failure to assert a permissive counterclaim at the proper time will only result in the party being unable to make the contentions in the suit in question, not that he will be barred in a. future suit.

Decided March 19, 2015.

Natalie R. Rowland, for appellant.

Ian R. Rapaport, for appellee.

It follows that the trial court erred by granting summary judgment in favor of the Association on the ground that Elekima’s suit should have been brought as a compulsory counterclaim in the Association’s prior suit.

Judgment reversed.

Miller and Dillard, JJ., concur.

       (Citation and punctuation omitted.) Home Builders Assn. of Savannah v. Chatham County, 276 Ga. 243, 245 (1) (577 SE2d 564) (2003).

       OCGA § 44-3-109 (a) provides, in part:
      All sums lawfully assessed by the association against any unit owner or condominium unit, whether for the share of the common expenses pertaining to that condominium unit, for fines, or otherwise, . . . shall, from the time the same become due and payable, be the personal obligation of the unit owner and constitute a lien in favor of the association on the condominium unit[,]
      subject to certain exceptions.

       (Punctuation and footnote omitted.) Sampson v. Haywire Ventures, Inc., 278 Ga. App. 525, 526 (629 SE2d 515) (2006).

       We note that in his August 2011 motion for reconsideration of the default judgment, Elekima complained that the Association had “towed . . . tenants’ vehicles, erased parking numbers from parking spaces . . . , changed gate codes, cut off their water supply, and have constantly done acts that equate [ ] to constructive eviction.” Raising those new facts after the default judgment does not preclude Elekima from pursuing a constructive eviction claim now because the present case raises a different legal question not reached in the Association’s suit. Although the trial court did not open default on the basis of those facts, those facts could support a subsequent constructive eviction claim — which was not mature during the Association’s suit —if they were beyond the scope of a lawful lien foreclosure process. See generally OCGA § 44-3-109 (c) (“the lien may be foreclosed by the association by an action, judgment, and foreclosure in the same manner as other liens for the improvement of real property, subject to superior liens or encumbrances”). That issue was not ruled upon by the trial court, so the issue is not before us in this appeal.

       (Punctuation omitted; emphasis supplied.) Sampson, 278 Ga. App. at 527.


author: Miller, Judge.

text:
    A14A2246.
    NETSOFT ASSOCIATES, INC. v. FLAIRSOFT, LTD.
    (771 SE2d 65)
   Miller, Judge.

Netsoft Associates, Inc. brought this action against its business partner Flairsoft, Ltd., alleging, among other claims, that Flairsoft breached a quid pro quo agreement. Flairsoft filed a motion for partial summary judgment, which the trial court granted. Netsoft appeals, contending that the trial court erred in finding that there was insufficient evidence to raise a factual question regarding whether the parties entered into an independent and enforceable quid pro quo agreement. For the reasons that follow, we reverse.

On appeal from a grant of summary judgment, we conduct a de novo review of the evidence to determine if there exists a genuine issue of material fact and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, entitle the movant to judgment as a matter of law.

(Citation omitted.) Capital Color Printing v. Ahern, 291 Ga. App. 101, 102 (661 SE2d 578) (2008).

So viewed, the evidence shows that prior to 2009, Netsoft was a prime contractor who provided skilled labor to the federal government and other entities at a specified contractual price. Netsoft qualified as a prime contractor based on its certification under the Small Business Administration’s 8(a) program (“SBA 8(a)”). In July 2009, Netsoft’s majority shareholder, who qualified the company for its SBA 8(a) status, suddenly passed away, leaving Netsoft without the ability to continue to obtain prime federal contracts. Accordingly, Netsoft began looking for a qualified SBA 8(a) partner.

In 2009, Netsoft entered into a business relationship with Flair-soft, a qualified SBA 8(a) company. Netsoft agreed to introduce Flairsoft to important government personnel and key contractors at Robins Air Force Base (AFB), and to assist Flairsoft in obtaining facility and security clearances. In exchange, Netsoft would derive income from any contracts that Flairsoft obtained as a result of introductions made by Netsoft. Thereafter, in October 2009, the parties entered into a Teaming Agreement and an addendum to that agreement (hereinafter the “2009 Teaming Agreement”), under which the parties agreed to share work arising from Netsoft’s existing government contract and all subsequent modifications to that contract.

With regard to future contracts, the 2009 Teaming Agreement provided that the parties would join forces to determine the best course of action in the bidding process. The 2009 Teaming Agreement also provided that it was “an ongoing agreement contemplating future contract actions whereby Netsoft and Flairsoft would join forces to bid, win and share in contracts where there [was] a mutually agreed upon course of action.” Netsoft, however, conceded at the hearing in this case that the 2009 Teaming Agreement “had met its purpose” and “was completed.”

After Netsoft lost its SBA 8(a) status, Netsoft and Flairsoft entered into subcontract agreements whereby Netsoft provided specific employees to fulfill a maximum of 49 percent of Flairsoft’s work requirements under its prime contracts with the United States Air Force. Since Flairsoft was the SBA 8(a) prime contractor, it was required to perform at least 51 percent of the work under the prime contracts.

Specifically, in May 2011, Flairsoft entered into a subcontract with Netsoft for the provision of three employees to help fulfill Flairsoft’s prime contract at Robins AFB (hereinafter the “First Subcontract”). The First Subcontract was a fixed-price contract which provided for specific hourly labor rates. In April 2012, Flairsoft entered into a second subcontract with Netsoft to provide employees for Flairsoft’s prime contract at Wright-Patterson AFB in Ohio (hereinafter the “Second Subcontract”). The Second Subcontract provided for a maximum contract price payable on a monthly basis. Netsoft provided invoices to Flairsoft for work performed on the First and Second Subcontracts, and Flairsoft presented those invoices to the government for payment.

In April 2012, Flairsoft sent Netsoft a second teaming agreement (hereinafter the “2012 Teaming Agreement”). The 2012 Teaming Agreement referenced a plan to award Flairsoft a prime contract for the provision of support services at Wright-Patterson AFB. The 2012 Teaming Agreement also provided that the parties would jointly prepare a proposal for the allocation of work to be performed under the referenced prime contract, and that the proposal would indicate that Netsoft was to be awarded a subcontract by Flairsoft. Netsoft signed the 2012 Teaming Agreement and sent it back to Flairsoft. Although Flairsoft never signed this agreement, the parties operated as though the agreement was duly executed.

Flairsoft fell behind on its invoice payments to Netsoft, and the parties entered into settlement negotiations. Flairsoft signed an unconditional promissory note, a settlement agreement and a release agreement. Netsoft, however, neither agreed to nor signed the settlement agreement. Netsoft instead filed the instant suit. Netsoft subsequently amended its complaint to add a claim for breach of contract based on an alleged quid pro quo agreement. Flairsoft then moved for partial summary judgment on that claim, contending that no such quid pro quo agreement existed. The trial court granted summary judgment to Flairsoft on Netsoft’s quid pro quo claim, and this appeal ensued.

In its sole enumeration of error, Netsoft contends that the evidence raised a question of fact regarding whether the parties reached a quid pro quo agreement through their course of conduct. We agree.

Under OCGA § 13-3-1, a valid contract includes three elements: subject matter of the contract, consideration, and mutual assent by all parties to all contract terms. A contract need not be in writing to be valid, but may be enforceable even though it rests only in words as remembered by the witnesses.

(Citations and punctuation omitted.) Thompson v. Floyd, 310 Ga. App. 674, 681 (2) (713 SE2d 883) (2011).

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.

(Punctuation and footnote omitted.) Bedsole v. Action Outdoor Advertising JV, LLC, 325 Ga. App. 194, 198 (1) (750 SE2d 445) (2013). A contract may arise through a course of conduct and mutual acquiescence in such course of conduct may constitute sufficient consideration for that contract. See Reynolds v. Long, 115 Ga. App. 182, 184 (154 SE2d 299) (1967).

Here, in response to Flairsoft’s motion for partial summary judgment, Netsoft argued, inter alia, that the parties negotiated a quid pro quo agreement which called for continued cooperation between the parties and was independent of the First and Second Subcontracts. Netsoft further argued that Flairsoft acted in conformity with the terms of the quid pro quo agreement, by entering into a number of contracts reflecting the parties’ business relationship, and Flairsoft communicated with Netsoft regarding the quid pro quo agreement and the payments to which Netsoft was entitled until Flairsoft became severely delinquent in paying Netsoft’s invoices.

In support of its arguments, Netsoft produced e-mails between the parties and PowerPoint slides which refer to the parties’ ongoing partnership and the alleged quid pro quo agreement. Netsoft also submitted a contemporaneous affidavit from one of its officers averring that the parties reached a quid pro quo agreement ensuring that Netsoft would derive income from contracts that Flairsoft obtained as a result of introductions made by Netsoft. In response, Flairsoft submitted an opposing affidavit in which its vice president averred that Flairsoft never agreed to any quid pro quo.

When viewed in the light most favorable to Netsoft as the nonmoving party, the conflicting affidavits and other evidence, including the e-mails and PowerPoint slides, raise a question of fact for the jury as to whether the parties entered into an independent and enforceable quid pro quo agreement. See Durham v. Marchman, 246 Ga. 645, 647 (2) (272 SE2d 343) (1980) (conflicting affidavits presented material issues of fact for determination at trial); City of Acworth v. John J. Harte Assoc., Inc., 165 Ga. App. 438, 439 (2) (301 SE2d 499) (1983) (conflicting affidavits exemplified existence of material factual issue, rendering grant of summary judgment to appellee inappropriate). Accordingly, we reverse the partial grant of summary judgment to Flairsoft.

Decided March 19, 2015.

Burke Lasseter, Kelly R. Burke, Ronald E. Daniels, for appellant.

J. Hatcher Graham, for appellee.

Judgment reversed.

Andrews, P. J., and Doyle, P. J., concur.

       Netsoft also brought claims for breach of a promissory note and attorney fees, which are not at issue in this appeal.

       The SBA 8(a) program gives qualified small businesses a competitive advantage in procuring government contracts. See http://www.sba.gov/content/about-8a-business-developmentprogram/.

       Flairsoft moved for summary judgment on Netsoft’s original complaint, and the trial court denied the motion after Netsoft amended its complaint to add the claim for breach of the alleged quid pro quo agreement.