DILLARD, P. J., GOBEIL and HODGES, JJ.
Weintraub, who faces prosecution for a single count of family
violence-simple battery, filed a motion in limine to preclude
the State from tendering a cell phone recording of a dispute he
had with his pregnant wife, arguing that the recording is
inadmissible under OCGA § 16-11-62, Georgia's
Eavesdropping Statute. The trial court denied the motion. We
subsequently granted Weintraub's application for
interlocutory review, and the instant timely appeal followed.
For the reasons that follow, we vacate and remand the case
trial court's ruling on a motion in limine is reviewed
for abuse of discretion." Carver v. State, 324
Ga.App. 422, 423 (750 S.E.2d 735) (2013) (citation and
punctuation omitted). "[I]n reviewing the denial of a
motion in limine, this Court must construe the evidence most
favorably to the upholding of the trial court's findings
and judgment, and we cannot reverse a trial court's
ruling absent an abuse of discretion." Brown v.
State, 316 Ga.App. 137, 139 (1) (728 S.E.2d 778) (2012)
(citation, punctuation, and footnote omitted). "The
trial court's application of the law to the undisputed
facts is subject to de novo review." State v.
Barnard, 321 Ga.App. 20, 20 (740 S.E.2d 837) (2013)
(citation and punctuation omitted). So viewed, the relevant
facts show that in January 2018, Kenneth Jeter was
temporarily staying with Weintraub and his wife, Rebecca
Weintraub ("Rebecca"), in the Weintraub's
two-bedroom apartment. Jeter worked at a Long John
Silver's restaurant and Weintraub was his manager. Jeter
did not have his own room in the Weintraub's apartment.
Rather, he slept on the couch in the living room.
had been staying with the Weintraubs for the three weeks
leading up to the incident at issue here while he looked for
a place of his own. During this period, Jeter slept at the
residence nightly and kept the belongings he "had on
[him]" there, including bags of clothing, toiletries,
and other possessions that he kept by the couch. Jeter was
not named on the lease for the Weintraub apartment, did not
pay rent or utilities, did not receive his mail there, and
did not have any furniture in the home.
January 11, 2018, Jeter was sitting on the couch in the
living room and texting with his girlfriend on his cell
phone. Weintraub and his wife, who were also in
the living room, began arguing. At some point, Jeter decided
to record portions of the argument between the Weintraubs,
which Jeter described as amounting to "[v]erbal
abuse." Jeter also feared that the argument might
"become physical." Specifically, Jeter testified as
When I was sitting on the couch, I was texting my girlfriend
at the time and just regularly talking. Whenever I saw the
opportunity to take that recording, I just kind of lifted up
my phone to where it was viewable but not noticeable.
clarified that he did not try to hide his phone by placing it
in a corner or covering it with a cushion or blanket. He
continued to hold his phone as if he was texting while he
recorded the interaction between Weintraub and his wife in
the living room. Jeter did not know if his phone was
noticeable because he was holding his phone in front of his
mid-section, but "[i]t wasn't like [he] was trying
to hide it." Jeter stated that neither Weintraub nor his
wife asked him to record the interaction or consented to
being recorded, and neither of them gave Jeter any indication
that they were aware that he was recording them on his phone.
Moreover, Jeter did not tell the couple after the fact that
he had recorded the interaction. Jeter indicated he
previously had recorded the Weintraubs in their home.
Specifically, he described that on "days when everything
would be okay, and . . . we would just be joking around and
having a good time," he would "pull out [his]
camera and start recording the funny things we would say or
jokes we would be making and stuff like that."
intended to give the recording to the police "in case
things got bad and the law got called out there." Jeter
called 911 later that night to report that Rebecca appeared
to be experiencing labor pains. He then called the police the
following morning and met with them to show them the videos
he had captured on the cell phone.
was later charged by accusation with one count of family
violence-simple battery, which alleged that Weintraub
"did unlawfully . . . intentionally make contact of an
insulting and a provoking nature" with his
wife. Weintraub filed a motion in limine,
challenging the admissibility of the cell phone recording.
According to Weintraub, because neither he nor his wife had
consented to being recorded within the privacy of their own
home, the audio recording was inadmissible under OCGA §
16-11-62 (1). He further asserted that the video portion of
the recording should be excluded because Jeter did not have
the consent of all the persons observed and none of the
exceptions provided by OCGA § 16-11-62 (2) (A) - (D)
applied because, as relevant here: (1) Jeter was not an owner
or occupier of the property, (2) the apartment where the
recording took place was not Jeter's residence, (3) Jeter
was not attempting to prevent a crime, and (4) the Weintraubs
had a reasonable expectation of privacy in their own living
hearing on Weintraub's motion in limine, the State played
a recording of two 15-second clips taken from Jeter's
cell phone. As noted by the trial court, the recording
depicts "Weintraub as speaking in a loud, harsh tone of
voice and using obscene language while standing in close
proximity to [Rebecca]." The recording does not show any
physical contact between Weintraub and his wife.
trial court denied Weintraub's motion in limine to
exclude the cell phone footage, construing the recording as
separate audio and video recordings. First, the court ruled
that the audio portion of the recording was admissible,
finding that "recording with an exposed smartphone [does
not] constitute recording 'in a clandestine manner,
'" as contemplated by OCGA § 16-11-62 (1).
Specifically, Jeter was holding his phone in the same manner
as if he was sending a text message, and although neither of
the Weintraubs consented to or knew that they were being
recorded, "either of them would have been able to see
the smartphone had they been looking for it." Next, the
trial court concluded that the video portion of the recording
was admissible, holding that (1) Jeter was an
"occupier" of the apartment, as he had been invited
to stay at the property, and recorded the argument between
the Weintraubs for the purpose of crime prevention pursuant
to OCGA § 16-11-62 (2) (B); and (2) Jeter was a
"resident" in the apartment and the activities he
recorded were within the curtilage of the residence and the
recording was made for the purpose of crime prevention
pursuant to OCGA § 16-11-62 (2) (C). The court further
noted that "because Mr. Jeter was invited to stay at the
property and sleep in the living room by the Weintraubs[, ]
[t]he Weintraubs did not have a reasonable expectation of
privacy with respect to Mr. Jeter and his activities."
The court certified its order for immediate review, and we
subsequently granted Weintraub's application for
interlocutory review. The instant appeal followed.
Eavesdropping Statute provides that "[n]o evidence
obtained in a manner which violates any of the provisions of
[the Eavesdropping Statute] shall be admissible in any
[Georgia] court[.]" OCGA § 16-11-67. Code Section
16-11-62, formerly Code Ann. § 26-2002, was enacted in
1967. The legislature defined the purpose of the statute as
It is the public policy of this State and the purpose and
intent of this Chapter to protect the citizens of this State
from invasions upon their privacy. This Chapter shall be
construed in light of this expressed policy and purpose. The
employment of devices which would permit the clandestine
overhearing, recording or transmitting of conversations or
observing of activities which occur in a private place has
come to be a threat to an individual's right of privacy
and, therefore, should be prohibited. It is further the
purpose of this Chapter ...