                               THIRD DIVISION
                                BARNES, P. J.,
                            BOGGS and BRANCH, JJ.

                   NOTICE: Motions for reconsideration must be
                   physically received in our clerk’s office within ten
                   days of the date of decision to be deemed timely filed.
                              http://www.gaappeals.us/rules/


                                                                     March 3, 2015




In the Court of Appeals of Georgia
 A14A1593. THE STATE v. PICKENS.

      BARNES, Presiding Judge.

      Melanie Pickens was a special education teacher who was indicted on six

counts of cruelty to children and five counts of false imprisonment for actions

involving five of her students. Pickens moved to dismiss the indictment based on her

immunity as an educator under OCGA § 20-2-1001, and after a three-day hearing, the

trial court granted her motion. The State appeals, arguing that the trial court erred

because Pickens’ actions did not constitute “discipline” and she did not act in good

faith, both of which the statute requires for immunity from criminal prosecution. For

the reasons that follow, we affirm.

      OCGA § 20-2-1001 was enacted in 1997 as part of the “School Safety Act” and

provides that:

      (a) As used in this Code section, the term “educator” means any
      principal,   school     administrator,       teacher,     school       counselor,
      paraprofessional, school bus driver, volunteer assisting teachers in the
      classroom, tribunal members, or certificated professional personnel.


      (b) An educator shall be immune from criminal liability for any act or
      omission concerning, relating to, or resulting from the discipline of any
      student or the reporting of any student for misconduct, provided that the
      educator acted in good faith.


Thus, to be entitled to immunity from prosecution under OCGA § 20-2-1001, a

defendant must establish three things: (1) she is an educator; (2) the acts or omissions

in questions were related to or resulting from disciplining a student or reporting a

student for misconduct; and (3) the educator acted in good faith.1

      “As a potential bar to criminal proceedings which must be determined prior to

a trial, immunity represents a far greater right than any encompassed by an affirmative

defense, which may be asserted during trial but cannot stop a trial altogether.” Bunn

v. State, 284 Ga. 410, 412-413 (3) (667 SE2d 605) (2008) (interpreting OCGA § 16-

3-24.2, which provides immunity from prosecution for using threats or force under

certain condition, including self-defense or defense of others). See also OCGA §



      1
       Educators are also immune from civil liability under certain circumstances.
OCGA § 20-2-1000; Gamble v. Ware County Bd. of Ed., 253 Ga. App. 819, 824 (2)
(b) (561 SE2d 837) (2002).

                                           2
16-3-22, which grants immunity from criminal liability to any person “who renders

assistance reasonably and in good faith to any law enforcement officer” under certain

circumstances.2 “[A] trial court must rule on a motion for immunity prior to trial.” Id.

at 412 (3).

      The burden of proving entitlement to immunity by a preponderance of the

evidence falls on the defendant. Bunn, 284 Ga. at 413 (3); State v. Cohen, 309 Ga.

App. 868, 868-869 (711 SE2d 418) (2011). The old evidence code defined

“preponderance of evidence” as “that superior weight of evidence upon the issues

involved, which, while not enough to free the mind wholly from a reasonable doubt,

is yet sufficient to incline a reasonable and impartial mind to one side of the issue

rather than to the other.” Former OCGA § 24-1-1 (5). The current evidence code,

which is applicable to this case, does not define the meaning of “preponderance of

evidence,” but lists the kinds of evidence a factfinder may consider to determine

“where the preponderance of evidence lies.” OCGA § 24-14-4 (2014). That evidence

includes




      2
      Only one case has cited this statute, and then only in passing. Carter v. State,
129 Ga. App. 536, 538 (199 SE2d 925) (1973).

                                           3
      the facts and circumstances of the case, the witnesses’ manner of
      testifying, their intelligence, their means and opportunity for knowing
      the facts to which they testified, the nature of the facts to which they
      testified, the probability or improbability of their testimony, their
      interest or want of interest, and their personal credibility so far as the
      same may legitimately appear from the [hearing]. The [factfinder] may
      also consider the number of the witnesses, though the preponderance is
      not necessarily with the greater number.


Id.

      “On appeal of an order [granting or] denying a motion for immunity from

prosecution, we review the evidence in the light most favorable to the trial court’s

ruling, and we accept the trial court’s findings with regard to questions of fact and

credibility if there is any evidence to support them.” (Citation and punctuation

omitted.) State v. Bunn, 288 Ga. 20, 23 (701 SE2d 138) (2010); see also Hipp v. State,

293 Ga. 415, 418 (746 SE2d 95) (2013); Cohen, 309 Ga. App. at 869 (applying “any

evidence” standard to trial court’s findings of fact following pretrial evidentiary

hearing addressing immunity under OCGA § 20-2-1001). “The trial court’s

application of the law is subject to de novo appellate review.” State v. Green, 288 Ga.

1, 2 (2) (701 SE2d 151) (2010).




                                          4
       While numerous cases have analyzed immunity under OCGA § 16-3-24.2,

Cohen is the only appellate case analyzing the application of OCGA § 20-2-1001 to

bar a criminal prosecution of an educator. In Cohen, a teacher was charged with

simple battery for grabbing or pushing three students. 309 Ga. App. at 868-869. The

parties agreed that the defendant was an educator whose actions were undertaken for

disciplinary reasons, but disagreed on whether he acted in good faith, with the State

arguing that Cohen’s actions contravened the school’s no-touch policy and were

therefore in bad faith. Id. at 868-869. The trial court granted Cohen’s motion for

immunity, and this court affirmed, observing that “the exact nature of the school

policy at issue is not clear from the record” and noting specifically the school

principal’s contradictory testimony about whether a student could ever be touched.

Id. at 869. We held that the evidence authorized the trial court to conclude that Cohen

was acting in good faith and was thus entitled to immunity from prosecution. Id. at

870.

       Pickens’ indicted charges involved five different special education students and

were based on three types of conduct: confining students in a restrictive chair in the

classroom or confining them and leaving them alone (six counts), recording a child’s

screams and playing them back to the child or imitating a child’s screams or cries to

                                           5
the child (three counts), and “slamming” a child against school walls and lockers (two

counts). She filed a motion to dismiss the indictment for immunity from prosecution

under OCGA § 20-2-1001, contending that she acted to maintain discipline and order

and that she acted in good faith.

      The trial court held a three-day evidentiary hearing during which Pickens

called five witnesses and the State called six.3 One of the State’s witnesses was

qualified as an expert in behavior management strategies for students with moderate

and severe developmental disabilities, and one witness investigated the claims against

Pickens for the Georgia Professional Standards Commission (GPSC). The other eight

witnesses had worked with or alongside Pickens in the special education hall of the

middle school in question during the 2006-2007 school year, which is the underlying

actions allegedly occurred.

      At the end of the hearing, the trial court orally granted Pickens’ motion for

immunity from criminal prosecution under OCGA § 20-2-1001, and subsequently

issued a lengthy written order summarizing the testimony and concluding that Pickens

      3
        A total of ten witnesses testified, because both sides called the same witness,
a paraprofessional who had been assigned to Pickens’ classroom during the time
period in question. The paraprofessional asserted her Fifth Amendment right not to
testify when Pickens called her, but was then granted immunity and the State called
her to testify during its presentation of evidence.

                                          6
met her “burden of showing by a preponderance of the evidence that all actions were

done to maintain discipline and order and the actions were done in good faith.” The

court thus dismissed the indictment.

      On appeal, the State does not dispute that Pickens was an “educator” under the

statute, but argues that the record does not support the trial court’s conclusions that

Pickens’ actions were “used to discipline the misbehaving student and maintain order

and safety in the classroom,” or that Pickens acted in good faith.

      1. The State argues first that the record does not support the trial court’s

conclusion that Pickens’ actions were “used to discipline the misbehaving student and

maintain order and safety in the classroom,” but instead showed that Pickens acted

“from an inability to control her anger and frustration with the job.”

      As the State points out, our Supreme Court has defined “discipline” as “control

obtained by enforcing compliance or order.” Randolph v. State, 269 Ga. 147, 150 (2)

(496 SE2d 258) (1998) (rejecting void for vagueness claim against statute

criminalizing sexual contact with a student by a person with “disciplinary authority,”

including teachers, principals, and assistant principals). While the State submitted

evidence in this case that Pickens acted in frustration at times, other evidence

revealed that in a classroom like Pickens’, with five to seven developmentally

                                          7
disabled children, a single child’s actions could disrupt the entire classroom. Thus,

actions taken to address the source of the disruption could constitute disciplinary

actions, whether or not a teacher was frustrated when she took them.

      For example, while the State argues that “crying was not a basis for

disciplining a child,” evidence presented at the hearing showed that a child’s loud,

continuous screams and cries prevented the other children from attending to their own

work. A child who grabbed at other students, pushed their work onto the floor, turned

over his desk, and performed other disruptive actions became the focus of the class

and prevented the other children from learning. A child who “plopped” onto the floor

and refused to get up blocked the path of other students and had to be attended while

the other children were deprived of the attendee’s time.

      The five false imprisonment counts and one of the cruelty to children counts

against Pickens were based on allegations that at some point during the 2006-2007

school year, she confined and isolated without supervision three different students,

either across the hall from her classroom or in the bathroom, and also confined one

of those students within her class. When the children were placed across the hall, they

were secured in physically supportive seating designed for special needs students, and



                                          8
the child who was placed in the bathroom was secured in a version of the chair that

could be rolled over a toilet.

      One child was placed alone across the hall to quell his loud disruptive crying.

Either Pickens or her paraprofessional would check on him, and when he stopped

crying she would bring him back into the classroom. The longest he remained across

the hall was 15 minutes, and she placed him there so he could become quiet again, not

to be malicious or hurt him.

      Another child was placed across the hall when he became aggressive toward

other students, tripping, pushing, and hitting them, pulling their hair, throwing their

work on the floor, knocking things over, and screaming. He seemed calmer in the

chair sometimes, but at other times he would just moved the chair around the room

even when secured within it. When other methods failed, Pickens or her

paraprofessional would move him across the hall by himself for some period of time.

There was no evidence about the length of time the student remained across the hall,

other than that the testimony of Pickens’ paraprofessional that he was only once left

there “for a good while,” on the day that precipitated the investigation and charges

against Pickens. That day the student was placed across the hall both before and after

lunch because he would not stop hitting and pulling at the other students. He was

                                          9
calmer when seated in the supportive chair and when placed alone because he got no

attention from other students.

      Other educators knew that Pickens was placing disruptive children across the

hall and understood that its purpose was to maintain discipline and order in the

classroom. If a child behaved, he stayed in the classroom with the other students.

      Pickens was charged with false imprisonment for leaving the third student

confined alone in a handicapped bathroom. This student had “bathrooming” issues,

and sometimes would remain unattended in the supportive chair in a private toilet

space for “a little while” when he was trying to have a bowel movement. While

Pickens was also charged with false imprisonment for confining the child within the

classroom, the only testimony regarding that count was from a teacher who once saw

him in class reclining in the supportive chair at an angle from which it would have

been difficult for him to get out.

      Pickens was also charged with three counts of cruelty to three different children

for recording them while they were screaming and playing it back to them or for

imitating their screams or cries. One of the children would scream at a very high pitch

when asked to do something he did not want to do. As noted earlier, these episodes

of screaming and crying disrupted the class, and Pickens tried playing back or

                                          10
imitating their screams in an effort to make them stop by showing them that the noise

they were making was disruptive and upsetting to the other students. When the

children heard themselves, sometimes they stopped screaming and crying and

sometimes they did not.

      Finally, Pickens was charged with two counts of cruelty to children for

“slamming” them “face-first into lockers and walls.” Evidence was adduced at the

hearing that Pickens developed a technique to prop one of the students up against the

wall with her body to prevent him from “plopping” onto the floor or to get him up

after he did so.

      The trial court concluded that this evidence was sufficient to show by a

preponderance of the evidence that Pickens’ actions were undertaken to maintain

discipline and restore order in her classroom. Based on our review of the evidence

presented, we cannot conclude that the trial court erred in its findings of fact that

Pickens acted to maintain discipline and order in her classroom.

      2. The State also contends that the record does not support the trial court’s

conclusion that Pickens acted in good faith. “ ‘Good faith’ is a subjective standard:

a state of mind indicating honesty and lawfulness of purpose; belief that one’s

conduct is not unconscionable or that known circumstances do not require further

                                         11
investigation.” (Punctuation and footnote omitted.) Owen v. Watts, 307 Ga. App. 493,

496 (1) (705 SE2d 852) (2010) (trial court was authorized to find by preponderance

of evidence that person’s conduct was not undertaken in good faith and therefore

person was not immune to protective order). Generally, “[t]he existence of good faith

is a question for the trier of fact, and a trial court’s finding on the issue of good faith

will be upheld if there is any evidence to support it.” (Citations omitted.) Gay v.

Strain, 261 Ga. App. 708, 712 (3) (583 SE2d 529) (2003) (defendant in bona fide

possession of disputed land entitled to set-off of value of permanent improvements

“placed on the land in good faith”).

       The State notes that this Court in Cohen clarified that the determination of

good faith under OCGA § 20-2-1001 does not rest solely upon whether the educator

was complying with school policy. 309 Ga. App. at 860-870. We agree with the State,

however, that violations of school policy are relevant to whether an educator acted

in good faith, if not determinative. But here, although the State elicited testimony that

there were no county policies permitting the use of restraint and isolation of

developmentally disabled students during this time period, the evidence also

established that there were also no county- or state-wide policies prohibiting the

practice then, as there are now. The county offered little training in methods of

                                            12
handling children with more difficult behavior problems, and only later made

available training in the prevention and management of aggressive behavior in

developmentally disabled students. As Pickens observes, the school’s policy about

touching and discipline in Cohen, 309 Ga. App. at 869, was unclear, while in this case

the county had no policy at all. Pickens was therefore left to develop her own coping

strategies to manage “a rough group of kids,” including one 13-year-old who was

larger than she and who grew progressively more aggressive as the year passed.

      Pickens gathered data documenting this child’s aggression and attempted

unsuccessfully to have him moved to a different program that dealt with more

aggressive developmentally disabled children. In fact, two months after entering high

school the following year, the student was placed into the other program. The

investigator for the Georgia Professional Standards Commission testified that Pickens

thought it was necessary for her to physically restrain or remove this student because

his behavior could endanger the other children in her care, and she believed that it

was okay for her to place disruptive children across the hall. She did so either to have

them calm down or to remove the source of the disruption for the benefit of the other

students.



                                          13
         The county behavioral therapist testified that “time-out” is an effective

intervention for children seeking attention inappropriately, and the facility for more

aggressive students had a “time-out” room where out-of-control students were placed

by themselves, although they were observed. The State’s expert psychologist testified

that restraint was appropriate to avoid allowing a student to injure himself or to

protect other children, although he also thought children who were restrained should

be supervised. Further, he testified that putting a child into “time-out” was an

appropriate response to certain behaviors, such as aggression. The county had no

specific rules regarding “time-outs” until after a civil lawsuit related to these acts was

filed.

         Other educators were aware that Pickens placed students across the hall from

her main classroom, and while some of them testified that they would never have left

any student alone at any time, none of them made any attempts to stop it. Pickens’

paraprofessional also placed the children across the hall when directed to do so. The

only teacher who reported Pickens to her superiors did so only after one of the

children smeared feces all over himself and his surroundings in the short time

between when Pickens’ paraprofessional checked on him before attending the other

teacher’s classroom and a few minutes later when the educator was returning to her

                                           14
class. That teacher also admitted there were times when she had no choice but to

leave a child unattended in the bathroom when she went to retrieve her

paraprofessional to change places with her.

      As to Pickens’ attempts to come up with methods to stop her students from

screaming, shouting, or crying so loudly that classroom activities were effectively

halted, she admitted that she came up with what she called “scream therapy” on her

own, to mirror the screaming child’s actions and help him or her see how the loud

noise disrupted class and upset the others. Although the method was effective

sometimes, she stopped using it when another educator told her to stop and she

realized its use was inappropriate.

      Further, the evidence showed that Pickens developed the technique of propping

students against the wall to keep them from plopping onto the floor or to get them up

after they did so. In fact, when one of her students plopped on the floor in gym class,

Pickens was summoned to get him back on his feet. While the behavioral

psychologist testified that when a student plopped on the floor and refused to get up,

the best course was to leave him there, or at least obtain assistance in moving him, at

times Pickens was unable to “get people from the front to help” deal with a



                                          15
recalcitrant student. If a student plopped down and no one was around to help,

Pickens was on her own.

      Pickens told the investigator that her actions were never malicious, that she

never tried to hurt any of her students, and that whatever she did with her students

was aimed at helping them. One of the paraprofessionals testified that the more

aggressive child loved Pickens, and another educator testified that Pickens seemed

fond of the child, who remained in Pickens’ classroom for three years.

      Considering the evidence presented at the hearing, we conclude that the trial

court was authorized to find that a preponderance of evidence showed that Pickens

acted in good faith and was entitled to the benefits of the immunity statute.

      Judgment affirmed. Boggs and Branch, JJ., concur.




                                         16
