☢ test - Í

not made with the consent of all persons observed therein.” Here, victim made video recordings of interactions between herself and defendant, an attorney, in his office, without his knowledge. Defendant moved to exclude them based on “OCGA § 16–11–62(2), which provides that ‘[i]t shall be unlawful for [a]ny person, through the use of any device, without the consent of all persons observed, to observe, photograph, or record the activities of another which occur in any private place and out of public view.’” Quoting Gavin v. State , 292 Ga.App. 402, 404, 664 S.E.2d 797 (July 2, 2008): “subsection (2) of [OCGA § 16–11–62] contains the language, ‘without the consent of all persons observed,’ which the legislature has not included in subsection (1). The plain import of these words illustrates legislative intent that the consent required under subsection (2) is that of each individual observed. It follows then that ‘any person’ as used in that subsection was not intended to exclude one who recorded an activity in which he willingly participated. To so interpret ‘any person’ could, under some circumstances, render meaningless the language ‘without the consent of all persons observed.’” Rejects, however, defendant’s contention “that there can never be a participant's exception to OCGA § 16–11–62(2), pointing to “OCGA § 16–11–66(a), which makes it explicitly clear that the participant's exception applies to OCGA § 16–11–62 in its entirety: ‘ Nothing in Code Section 16–11–62 shall prohibit a person from intercepting a wire, oral, or electronic communication where such person is a party to the communication or one of the parties to the communication has given prior consent to such interception. OCGA § 16–11–66(a) (emphasis supplied). Cf. Hill v. State, 306 Ga.App. 663, 665(1) (703 S.E.2d 98) (2010) (‘While OCGA § 16–11–62(1) prohibits any person from clandestinely recording the private conversation of another, OCGA § 16–11–66(a) excludes from this prohibition situations in which one party to the conversation has consented to the recording of it.’ (citations omitted)); Fetty v. State, 268 Ga. 365, 366(3) (489 S.E.2d 813) (1997) (‘OCGA § 16–11–62 [(1)] prohibits the clandestine intentional recording of another's private phone conversations.’ (footnote omitted)). … Gavin does not hold and cannot be reasonably understood to hold that the participant's exception set forth in OCGA § 16–11–66(a) has no application to video recordings that satisfy the criteria of that statutory exception. But here, as in Gavin, none of the types of communication encompassed by OCGA § 16–11– 66(a) appear to be at issue.” Hammock v. State, 311 Ga.App. 344, 715 S.E.2d 709 (July 12, 2011). Theft by taking conviction affirmed; trial court properly allowed witnesses to testify to what they saw on security video recording, since taped over; such testimony was not hearsay, disapproving contrary holding in In re: C.G. , 261 Ga.App. 814, 584 S.E.2d 33 (June 19, 2003). Such testimony is not hearsay. “Here, the witness did not offer any testimony about what someone else said or wrote outside of court. Rather, they testified about their personal observations of the conduct that appeared of the tape. [Cits.] Because this testimony did not ask the jury to assume the truth of out-of-court statements made by others, and instead ‘the value of [the] testimony rested on [the witnesses’] own veracity and competence, the testimony was not hearsay,’ Lott [ v. State , 303 Ga.App. 775, 694 S.E.2d 698 (2010)] (officer’s testimony that she saw photograph of defendant on a cell phone not hearsay). See also Troutman v. State , 297 Ga.App. 196, 197-198(2), 676 S.E.2d 836 (2009) (testimony that a certain telephone number was displayed on a cell phone as having been recently called not hearsay).” Durham v. State, 309 Ga.App. 444, 710 S.E.2d 644 (April 28, 2011). Convictions for selling cocaine affirmed; no ineffective assistance where trial counsel failed to move to suppress evidence. “Durham contends that his trial counsel rendered ineffective assistance to him by failing to file a motion to suppress the videotaped evidence showing the sales transactions in his residence because the videotaping was done in violation of OCGA § 16–11–62(b) & (c). … Durham is correct that OCGA § 16–11–62(2) prohibits ‘any person, thorough the use of any device ... to observe, photograph, or record the activities of another which occur in any private place and out of public view ’ (Emphasis supplied.) without the consent of all persons observed. Durham is also correct that, in this case, the agents failed to obtain an ‘investigation warrant permitting the use of [video equipment] for the surveillance of such person or place[,]’ as required by OCGA § 16–11–64(c). Trial counsel acknowledged that he was unaware of this statutory provision and, had he been aware of it, he would have filed a motion to suppress the video made inside Durham's home. This, however, does not end the inquiry. Durham acknowledges that the audio recording of what transpired inside Durham's home was admissible, even if the video portion of the tape inside the home had been excluded. See Fetty v. State, 268 Ga. 365, 366(3) (489 S.E.2d 813) (1997) ( OCGA § 16–11–62 does not apply to audio recording of a conversation by one who is a party to it.). Although not addressed by either party, it appears that, based on the language of OCGA § 16–11–62(2) emphasized above, the portion of the video made outside Durham's home would also have been admissible, based on Hardeman's consent. In addition to the audio tape of the transaction, Hardeman testified in detail about the events during the two buys and identified Durham as the man he knew as ‘Crack’ who was present and participated in both buys. Further, the agents searched Hardeman before each buy and kept him under surveillance to the extent possible during the transactions. We conclude, as did the trial court, Durham has failed to show that a reasonable probability exists that the outcome of the case would have been different but for the deficient performance of counsel.”