Childers v. State

358 Ga.App. 568

855 S.E.2d 766

CHILDERS

v.The STATE.

A20A1626

Court of Appeals of Georgia.

February 25, 2021

Certiorari Denied August 10, 2021

Roach Caudill & Frost, Cory P. DeBord, Canton, for Appellant.

C. Todd Hayes, Solicitor-General, Kristen A. Roch, David M. McElyea, Gabrielle R. Molinary, Assistant Solicitors-General, for appellee.

Gobeil, Judge.

Following a bench trial, Bailee Childers was convicted of a single misdemeanor count of furnishing a vapor product to a minor. Childers appeals, arguing: (1) the trial court erred in admitting the product label as an exception to the rule against hearsay; and (2) there was insufficient evidence to sustain her conviction. For the reasons that follow, we affirm.

"Upon a finding of guilt following a bench trial, the presumption of innocence no longer applies, and on appeal, the appellate court construes the evidence in favor of the judge's findings of fact." Mason v. State , 353 Ga. App. 404, 408 (3), 837 S.E.2d 711 (2020) (citation and punctuation omitted). So viewed, the evidence shows that during the summer of 2019, the Cherokee County Marshal's Office conducted a county-wide "Vape Product Underage Sales Compliance Check" (the "Operation"). The general objectives of the Operation were to conduct compliance inspections at retail establishments located in Cherokee County, and arrest or obtain warrants for individuals selling any vapor product to minors. Each team in the Operation was assigned at least one underage operative.

As relevant here, on July 25, 2019, Sergeant Mary Turner of the Canton Police Department was assigned as the lead law enforcement officer of Team 5 of the Operation. Team 5 was tasked to conduct a compliance check at the Ole 5 Vapor store located at 4047 Marietta Highway, Suite 100A, Canton, Georgia (the "Store"). Two high school students, J. D. and A. Z., both aged 16 at the time, served as the underage operatives for Team 5. As part of the Operation, J. D. and A. Z. entered the Store and purchased a bottle containing a mango flavored nicotine salt. The store clerk, Childers, did not ask for proof of age from either of the two operatives. After completing the transaction, J. D. and A. Z. exited the store and provided the unopened product to Officer Luis Salas, who in turn photographed the evidence.

Sergeant Turner then entered the store and spoke to Childers, who was the only person inside the store at the time.¹ When questioned by Turner, Childers never denied that she sold the nicotine salt to J. D. and A. Z.; rather Childers maintained that she did not know that they were underage.

Thereafter, Childers was charged by accusation with one count of furnishing a vapor product to a minor, in violation of OCGA § 16-12-171 (a) (1) (A). On the day of trial, Childers filed a motion in limine, (1) seeking to prevent the State's witnesses from opining or otherwise referring "to the contents of a certain bottle of apparent liquid seized as a ‘vapor product’ or as containing nicotine"; and (2) arguing that the label on the bottle, which identified the contents as "nicotine salt," constituted inadmissible hearsay.

At trial, Childers objected to Sergeant Turner answering a question about the type of product that the minors had purchased from Childers as part of the Operation. Both sides then presented argument on Childers's motion in limine, but the trial court reserved its ruling until the close of evidence. The court later permitted the State to enter into evidence a photograph of the product that Childers sold to the two underage operatives, including its label, subject to Childers's earlier hearsay objection. The label identified the product as a "RAM Top-Off 45 MG nicotine salt bottle," as well as an "e-cig liquid or fluid."²

At the close of evidence, the trial court orally denied Childers's motion, finding that the bottle's label — which clearly denoted the product as a nicotine product to be used in e-cigarettes and not sold to individuals under the age of 21 — was admissible under OCGA § 24-8-803.³ Immediately thereafter, the court found Childers guilty as charged, and sentenced her to a term of 12 months to be served on probation. The instant appeal followed.

1. Childers asserts that the trial court erred in ruling that the product's label fell within an exception to the rule against hearsay. She contends that absent the admission of the product's label, the trial court would not have found her guilty of the charged offense.

The parties do not dispute that the label on the product is hearsay offered to prove that the bottle contained a vapor product. Rather, the parties dispute whether the label was admissible under an exception to the rule against hearsay. As explained below, we conclude that even assuming the trial court erred, any such error was harmless.

(a) First, although the trial court did not specify under which paragraph of OCGA § 24-8-803 it admitted the label as an exception to the rule against hearsay, we conclude that the court admitted the label under the "market reports and commercial publications" exception contained in OCGA § 24-8-803 (17) for the reasons that follow.

In its oral ruling on Childers's motion in limine, the court explained:

As to the hearsay objection ... Judge Pope in [the Ledford v. State , 239 Ga. App. 237, 520 S.E.2d 225 (1999) (physical precedent only)⁴ ] case wrote the dissenting opinion which after the change in the evidence law to bring us more in line with the Federal rules, I believe is the current state of the law, and I believe because of that, the label, although hearsay, would be admissible under 803.

Childers contends that the trial court erred in finding the label admissible under the reasoning of Judge Pope's dissent in Ledford , as the rules of evidence have changed since that time. Specifically, she asserts that the trial court did not cite to a specific paragraph of OCGA § 24-8-803 to find the label admissible as an exception to the rule against hearsay; rather, it erroneously relied on the "necessity exception," as discussed by the Ledford dissent (and later replaced by the "residual exception" now codified at OCGA § 24-8-807 ) to admit the label.

The State counters that, although the trial court did not cite to a specific paragraph of OCGA § 24-8-803 in holding the label admissible, the court referenced OCGA § 24-8-803 as the basis upon which it was admitting the label, and further directed Childers's counsel to review the specific provisions of paragraph (17) in open court. Notably, as highlighted by the court in its oral ruling denying Childers's motion in limine, the cases Judge Pope cited to in his Ledford dissent all include provisions that mirror Rule 803 (17) of the Federal Rules of Evidence. At the time Ledford was issued in 2003, Georgia did not have the "market reports and commercial publications" hearsay exception now codified at OCGA § 24-8-803 (17) which mirrors the federal rule. Rather, prior to the enactment of the revised Evidence Code in 2013, Georgia courts typically relied on the "necessity" exception found at OCGA § 24-3-1 (b) to admit this type of evidence as an exception to the rule against hearsay. See Yancey v. State , 275 Ga. 550, 553 (2) (a), 570 S.E.2d 269 (2002) ("To be admissible under [the necessity] exception, the party presenting the evidence must prove that the declarant is unavailable to testify at trial, the declarant's out-of-court statement is relevant to a material fact and more probative on that fact than other available evidence, and the statement shows particular guarantees of the trustworthiness.").

Based on the foregoing, we conclude that the trial court in the instant case admitted the product label under the hearsay exception contained in OCGA § 24-8-803 (17).⁵

(b) Given our conclusion that the trial court admitted the label under the "market-reports-and-commercial-publications" exception contained in OCGA § 24-8-803 (17), we next consider whether the court erred in admitting the label under that subsection. Whether the label on the container of a vapor product comes within an exception to the general rule against hearsay is a matter of first impression in Georgia. OCGA § 24-8-803 (17)⁶ provides that "[m]arket quotations, tabulations, lists, directories, or other published compilations generally used and relied upon by the public or by persons in the witness's particular occupation" are not excluded by the rule against hearsay.⁷ Even assuming, without deciding, that the trial court erred in admitting the label of the product that Childers furnished to the two minors under the "market reports and commercial publications" exception to the rule against hearsay contained in OCGA § 24-8-803 (17), we conclude that any such error was harmless for the reasons outlined in Division 2. 2. Childers argues that the evidence was insufficient to support her conviction. The crux of Childers's argument is that the State failed to meet its burden to show that the product she sold to the two minors was a "vapor product." For the reasons that follow, we conclude the evidence was sufficient for the trial court to find Childers guilty of furnishing a vapor product to a minor.

Applying OCGA § 16-12-171 (a) (1) (A) to the sale of a vapor product to a minor appears to be one of first impression in Georgia.⁸ Our analysis, therefore, necessarily begins with the language of the statute. See Chan v. Ellis , 296 Ga. 838, 839 (1), 770 S.E.2d 851 (2015) ("[a] statute draws its meaning, of course, from its text"). As relevant here, OCGA § 16-12-171 (a) (1) (A) (2014) provides that "[i]t shall be unlawful for any person knowingly to[ ][s]ell or barter, directly or indirectly, any cigarettes, tobacco products, tobacco related objects, alternative nicotine products, or vapor products to a minor[.]"⁹ OCGA § 16-12-170 (10) (2017), in turn, defines "vapor product" as

any noncombustible product containing nicotine that employs a heating element, power source, electronic circuit, or other

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