text:
    A01A2359.
    HINTON v. THE STATE.
    (557 SE2d 481)
   Barnes, Judge.

After a jury trial, Jeremy Hinton was convicted of aggravated child molestation, child molestation and false imprisonment for offenses committed against his ten-year-old niece, W. P. Hinton appeals from the denial of his motion for new trial, asserting that the State impermissibly introduced his character into evidence. Because we find the enumeration without merit, we affirm the conviction.

1. Hinton contends that the trial court committed reversible error by admitting evidence that Hinton had previously fondled W. P.’s older brother, claiming it violated OCGA § 24-9-20 (b) by placing his character in evidence. He argues that, because the State withdrew its notice of intent to present evidence of a similar transaction, it was precluded from questioning the witnesses about the fondling incident. Hinton maintains that the questioning impermissibly placed his character into evidence because he had not first put his character into evidence as required by OCGA § 24-9-20 (b).

Hinton objects to testimony that arose during the cross-examination of a defense witness, W. P.’s mother, who is also his sister. The cross-examination was as follows:

Q: And talk about being protective you don’t — you don’t feel any need to protect your daughter from your brother do you, ma’am?
A: No, sir. I do not.
Q: Because you don’t believe her, can you just admit that to me here in court? Can you tell these folks. You’re on Mr. Hinton’s side of this case, have been from the word go, why not just tell the jury that, ma’am?
A: My daughter never said a word to me about any of this happening.
Q: And you think she should have come to you.
A: Based — Yes, sir. Based on —.
Q: And told you —.
A: Based on the facts and me knowing that my brother’s never babysat with my kids. But I had no reason in the world to disallow that, my brother has never ever exhibited any inappropriate behavior towards any of my kids.

Following redirect from trial counsel, the State on recross asked:

Q: Ma’am, as I understand it — you just testified that you have no concerns about Mr. Hinton doing anything to your children; do I understand that right?
A: Yes, sir.
Q: Are you familiar with an incident in 1990 or 1991 where your husband made a complaint to you that he had found Mr. Hinton fondling the penis of your son?

Over Hinton’s objection, the trial court allowed the witness to testify about the incident.

Generally, a party’s character and conduct in other transactions are irrelevant, and evidence of a criminal defendant’s general bad character is not admissible unless the defendant first puts his character in issue. OCGA §§ 24-2-2; 24-9-20 (b). But “[a] witness may be impeached by disproving the facts testified to by him.” OCGA § 24-9-82. “Testimony may be admissible for the purpose of impeaching the veracity of a witness even if it would be impermissible if offered for the purpose of impeaching the defendant’s character.” Martin v. State, 205 Ga. App. 591, 593 (4) (422 SE2d 876) (1992).

In the present case the prosecutor did exactly that in questioning Hinton’s sister about Hinton’s prior sexual misconduct with her son after she had testified that Hinton had never exhibited any inappropriate behavior toward any of her children. The sister’s testimony opened the door for the State to impeach her regarding her previous statement. Krebsbach v. State, 209 Ga. App. 474 (1) (433 SE2d 649) (1993).

While Hinton argues that the line of cross-examination was purposefully directed toward compelling his sister to respond to questions that placed his character at issue (see Arnold v. State, 193 Ga. App. 206, 208 (387 SE2d 417) (1989)), we do not agree. The prosecutor’s questioning appeared to be an attempt to expose Hinton’s sister’s bias toward her brother. “The state of a witness’s feelings toward the parties and [her] relationship to them may always be proved for the consideration of the jury.” OCGA § 24-9-68. Further, the prosecutor’s questioning about the fondling incident went no further than necessary to rebut the sister’s unsolicited denial of any prior inappropriate behavior toward her children. St. Romaine v. State, 251 Ga. App. 212, 213-214 (1) (554 SE2d 505) (2001).

Decided December 14, 2001.

Virgil L. Brown & Associates, Eric D. Hearn, for appellant.

William T. McBroom III, District Attorney, Robert H. English, Daniel A. Hiatt, Assistant District Attorneys, for appellee.

2. Hinton also argues that the State impermissibly questioned him about the same incident as well, but by his failure to object below, Hinton waived the right to raise the issue on appeal. Turner v. State, 245 Ga. App. 294, 299 (5) (536 SE2d 814) (2000).

Because the prior conduct was admissible, not as evidence of bad character but to rebut the defense witness’s testimony, the evidence constituted impeachment, not character evidence. The trial court did not err in overruling defendant’s objection.

Judgment affirmed.

Smith, P. J., and Phipps, J., concur.

       OCGA § 24-9-20 (b) provides that “no evidence of general bad character or prior convictions shall be admissible unless and until the defendant shall have first put his character in issue.”


source: Caselaw Access Project

author: Eldridge, Judge.

license: Public Domain

text:
    A01A2522.
    EVANS v. THE STATE.
    (558 SE2d 51)
   Eldridge, Judge.

A Fulton County jury found David Matthew Evans guilty of driving under the influence of alcohol — less safe driver; failure to maintain a lane; reckless driving; failure to use a turn signal; and improper lane change. He appeals, contending that the trial court erred in admitting the arresting officer’s police report into evidence and that the trial court erred in refusing to permit his expert witness to extrapolate his blood alcohol content by applying the “Widmark formula” to the amount of alcohol Evans consumed. Upon review of the errors as enumerated, we affirm.

1. Evans claims

the trial court committed reversible error in admitting over defense objection officer Sears’s police report when the defense had not made charges against the officer of improper influence, motive, or recent fabrication, the prosecution offered the police report solely to corroborate or bolster the officer’s testimony, and the police report was not truly consistent with the officer’s testimony.

We find no error in the admission of the police report.

Arresting Officer C. Sears was cross-examined extensively about the contents of her police report. Such examination began with the establishment of the necessity for accuracy in police reports:

And so, you know, in a — in a criminal case, DUI case, facts that — would you agree that facts that would be important would be facts that you observed that indicated to you that a person was under the influence of alcohol? . . . And you would put those facts in your report, right? ... To the best of your ability. . . . Okay. But you’re trained to put the important facts in. ... I notice your report was very neat. It was typed up, so you do the best you can when you write your reports, right?

From this point on, Evans’ defense attorney repeatedly questioned Sears about the validity of the contents of her report in relation to her trial testimony (Sears’ responses are italicized):

Q. And I believe your report indicates that you stopped Mr. Evans at 10:17 p.m.; is that correct? . . . Would you like to look at your report and refresh your memory if you can’t recall?
Q. Now, you have testified that he told you that he was drinking at the Taco Cabana. A. He said we just came from the Taco Cabana and I’ve had a few, so I inferred from that that he’d been drinking at the Taco Cabana. Q. [S]o you made an assumption — You made an assumption about what he meant, and you put in your police report “I believe that I asked him if he had been drinking, and he stated that he had just left Taco Cabana where he had only a few.” . . . That’s what you put in your report. . . . Okay. So in your report, you write that he told you he’d been drinking at the Taco Cabana, correct? . . . Take a look at your report, eight or nine lines down. “I asked him if he’d been drinking.” Why don’t you just read to the jury what you wrote in your report? . . . You didn’t infer. You wrote that he told you that he had had a few at Taco Cabana. Do you agree with that? Or do you agree that’s what you put?
Q. And there’s nothing in your report that indicates any confusion on his part regarding that instruction and his ability to execute that maneuver, correct?
Q. So up to now he has been cooperative with you, but at this point you say [in your report] that he — he was refusing to cooperate; is that what you’re saying? A. If that’s what I wrote in my report, then yeah. It looked like he was refusing to cooperate. Q. Now, when you say if you wrote that in your report, does that mean that you don’t remember, but if you said it in your report, then that must be the way it was, or what are you saying?
Q. I believe in your report you said you released the vehicle to the sober passenger. ... Is that right? . . . But you said you released — in your report you said “I released the vehicle to the sober — to the sober [sic] passenger.”
Q. And I think he told you he’d been eating a taco. . . . It’s in your report. And in fact it was some taco on his shirt; is that right? A. Yeah, on his shirt, on his face, everywhere. Q. Okay. Now, you didn’t put it was on his face in your police report. Is that something you’re just remembering right now? Okay. Well, are you taking back it was on his face and everywhere or what? Is that something you just made up now? . . . you didn’t put that in your report.
Q. Okay. Now, the odor of alcohol, would you agree that’s a pretty important indicator — of being under the influence of alcohol; is that right? And if a police officer in a DUI case notices an odor of alcohol coming from a suspect, that’s something that you would generally put in a police report; is that right? . . . Yeah. Would you tell me whether it’s in your report, or tell me where in your report you said that you smelled an odor of alcohol?
Q. Now, the report — the incident took place — well, you stopped him at 22:17, 10:17 p.m. on 6/17/2000, right? . . . And your report was — in the upper left-hand corner of the report on the first page, it says report date 6/19/2000 at 16:17 p.m., and then at the bottom of the report, it says signed date 6/20/2000 at 19:16, right? ... So that — am I correct in concluding that you wrote the report on 6/19/2000 at 16:17 p.m.? . . . Okay. And 6/19 would have been about an hour — a couple of hours — looks like about six hours short of two days after you arrested Mr. Evans — that you wrote your report, according to your report. . . . Okay. You don’t remember what happened. . . . But you don’t dispute that the report was written about two days later.
Q. Okay. Now, after Mr. Evans declined, stood on his rights and declined to take the breath test — you knew that this case was going to turn on your observations because there was not going to be a chemical test in evidence. ... Do you agree with that? ... So you knew that it would be important to get a conviction that you be able to testify in a manner that would carry the day; that would establish beyond a reasonable doubt that my client was DUI.

Thereafter, on redirect, the State introduced Sears’ police report into evidence. Evans objected on the basis of hearsay and on the basis that the police report allegedly was not a prior consistent statement, but was inconsistent with Sears’ trial testimony: “So, in this case, what we have [in] the police report is not a prior consistent statement in that regard; it’s a prior inconsistent statement in that regard.” The trial court admitted the police report over objection.

A review of Officer Sears’ police report shows that it contains many facts consistent with her trial testimony and omits other facts to which she testified at trial. Regardless, we have no trouble in concluding that Evans’ cross-examination of Officer Sears as reflected above made the contents of the officer’s report relevant for the jury’s consideration. Since the officer testified and was subject to cross-examination, her report was not hearsay. Further, to the extent the report was a prior consistent statement as asserted by the State, it was admissible because Evans without a doubt called into question whether Sears’ trial testimony was the result of recent fabrication in order to “carry the day” and secure a DUI conviction; thus, the State was entitled to rehabilitate Sears on redirect through the proof of the prior consistent statements contained therein. To the extent the report was inconsistent with Sears’ trial testimony by virtue of its omissions, as asserted by Evans, it was admissible as a prior inconsistent statement, and Evans can show no harm as such prior inconsistent statement would go to impeach Sears’ allegedly fabricated trial testimony as per the gist of Evans’ cross-examination.

It is the province of the judge in all instances to determine the admissibility of evidence.

The rule of evidence is, that when an admission, conversation or declaration previously made by a party or a witness is pertinent, the side tendering evidence as to the same is at liberty to prove such portion only thereof as is deemed material, and the other side may then bring out the whole of the admission, conversation or declaration, so far as so doing may be essential in order to arrive at the true drift, intent and meaning of what was said on the previous occasion.

The contents of the police report constituted the testifying officer’s declaration of what had occurred on the incident date, whether consistent or inconsistent with her trial testimony. Once an issue regarding the validity of the contents of the report was raised during cross-examination of the declarant officer, the State was allowed to introduce the report in its entirety to fully disclose the substance of the officer’s declaration. Accordingly, under the circumstances presented here, we find no error in the trial court’s admission of the police report.

To the extent that Evans also attempts to assert a “continuing witness” objection with regard to the admission of the police report, such was not raised at trial and is thus waived. 2. Evans contends that

the trial court committed reversible error in excluding the expert witness testimony of Dr. Citron regarding the absorption and elimination of alcohol in the human body, and the application of retrograde extrapolation based on the Widmark formula to a hypothetical based on evidence from two defense witnesses who were with Mr. Evans on the evening of his arrest.

We find no error in precluding this testimony for three reasons.

(a) As a defense tool, the “Widmark formula” reestimates a defendant’s blood alcohol content in an attempt to negate the statutory inferences that arise under OCGA § 40-6-392 (b) when chemical testing of a defendant’s blood, breath, or urine results in a charge for driving under the influence with an excessive blood alcohol content per OCGA § 40-6-391 (a) (5).

Here, however, Evans was not so charged. On the incident date, Evans refused blood alcohol content testing, and he was charged solely under the “less safe” provisions of the Code, OCGA § 40-6-391 (a) (1). In that regard, the inferences addressed in OCGA § 40-6-392 (b) apply only where “the amount of alcohol in the person’s blood at the time alleged [i]s shown by chemical analysis of the person’s blood, urine, breath, or other bodily substance.” When chemical analysis of bodily substances is refused, the statutorily permitted inferences that arise from such chemical testing are irrelevant, and there is nothing for the defense to rebut by using the “Widmark formula.”

Thus, absent the chemical analysis referenced in OCGA § 40-6-392 (b), an expert’s testimony about Evans’ blood alcohol content based upon the “Widmark formula” is irrelevant, and the only issue is whether Evans’ driving ability was impaired by alcohol to the point he was “less safe” to drive. As was held by the Supreme Court of Georgia in Kevinezz v. State, “[u]nder § 40-6-391 (a) (2) [DUI — less safe], impaired driving ability is an element of the crime that the state must prove to obtain a conviction.” In Kevinezz, the Court determined that DUI — less safe and DUI — excessive blood alcohol content are different methods of proving the offense of “driving under the influence,” and indictment on one does not permit conviction on the other, since “such an indictment would not put a defendant on notice that he or she could be convicted under § 40-6-391 [(a) (5) DUI — excessive blood alcohol content], which [does] not contain the phrase ‘under the influence’ and [does] not require the state to prove impaired driving ability.” And of course impaired driving ability depends solely upon an individual’s response to alcohol, regardless of his or her blood alcohol content: “A blood-alcohol level greater than .06 might not render one individual a less safe driver, whereas a blood-alcohol level below .06 might render another individual a less safe driver.”

Moreover, the General Assembly demonstrated a reasoned approach when it required under OCGA § 40-6-392 (b) that a person submit to a request for chemical testing of blood, breath, or urine before the statutory inferences can arise in a DUI trial. In this way, a defendant cannot refuse to submit to testing — thereby precluding a chemical analysis of blood alcohol content on certified equipment by certified operators as required by OCGA § 40-6-392 — and then later attempt to introduce evidence at trial of a purported blood alcohol content drawn solely from a hypothetical based upon defense evidence posed to a defense expert in order to take advantage of the statutory inferences denied the other party by the defendant’s refusal to submit to chemical testing. “The State and a criminal defendant should begin on a level playing field at the outset of trial.” A refusal to submit to chemical testing makes inferences related to blood alcohol content irrelevant, since the State must prove only that the defendant was less safe to drive, regardless of his or her blood alcohol content.

(b) Another reason the trial court was correct in refusing to permit the testimony of Dr. Citron concerning Evans’ blood alcohol content is because there was no factual basis upon which to calculate such. Before this Court, Evans states that Dr. Citron applied the “Widmark formula” to the amount of alcohol Evans consumed on the night in question as testified to by defense witnesses, Tina Vincent and Clay Hambright. However, we have reviewed the testimony of both Vincent and Hambright. Vincent stated that Evans had only one tequila in a brandy snifter which he shared with others. She also testified that Evans had one beer. Vincent testified that Evans may have ordered another drink: “He may have. I don’t — I don’t remember that he did.”

Hambright testified that Evans consumed more than one tequila: “There were more ordered, but I don’t recall specifically if David himself ordered them, and — but there were more ordered and shared.” Hambright testified that he did not count how many drinks were ordered or remember by whom, but thought “if you combined them, he [Evans] may have had one or two drinks.” Hambright could not remember if Evans ordered a beer or not.

In light of the disparity between both witnesses’ testimony concerning the amount of alcohol Evans consumed and the fact that both witnesses were unsure about the number of drinks ordered by Evans and consumed by him, there was an insufficient factual basis upon which Dr. Citron could accurately calculate Evans’ blood alcohol content using the ‘Widmark formula”: “There was no factual basis given for this calculation.”

(c) Finally, in his proffered testimony, Dr. Citron stated that the “Widmark formula” has a 20 percent margin of error, thereby failing to establish the level of “verifiable certainty” producing “reliable results” which is required to make such a procedure admissible. This is not a situation wherein a procedure that is otherwise accurate and reliable is subject to human error in its administration or interpretation, which would be the proper subject of cross-examination. Nor is the “Widmark formula’s” margin of error sufficiently minimal so as to be considered “some margin of error [which] may give an erroneous result under certain circumstances.” Instead, the “Widmark formula,” itself, produces inaccurate results to the extent of a 20 percentage point differential, plus or minus. We believe it is appropriate for the trial court to permit expert testimony utilizing the “Widmark formula” only when it is “demonstrated with verifiable certainty that [the Widmark formula is] an accurate and reliable means of ascertaining ... a person[’s blood alcohol content].”

Decided December 14, 2001.

Davis, Zipperman, Kirschenbaum & Lotito, Seth D. Kirschenbaum, for appellant.

Joseph J. Drolet, Solicitor-General, Julie A. Kert, Assistant Solicitor-General, for appellee.

Accordingly, the trial court correctly concluded that Dr. Citron’s testimony was inadmissible.

Judgment affirmed.

Andrews, P. J., and Miller, J., concur.

        Harkness v. State, 225 Ga. App. 864, 869 (6) (485 SE2d 810) (1997).

        Woodard v. State, 269 Ga. 317, 320 (496 SE2d 896) (1998); Cuzzort v. State, 254 Ga. 745 (334 SE2d 661) (1985); Moon v. State, 258 Ga. 748, 758 (28) (375 SE2d 442) (1988), rev’d on other grounds, Zant v. Moon, 264 Ga. 93 (440 SE2d 657) (1994); Geoffrion v. State, 224 Ga. App. 775, 778 (4) (482 SE2d 450) (1997), overruled on other grounds, Mullins v. State, 270 Ga. 450 (511 SE2d 165) (1999).

        Woodard v. State, supra at 318 (2); Gibbons v. State, 248 Ga. 858 (286 SE2d 717) (1982).

        Hyman v. State, 272 Ga. 492, 496 (531 SE2d 708) (2000).

       (Citations and punctuation omitted.) Fitzgerald v. State, 201 Ga. App. 361, 363 (2) (411 SE2d 102) (1991).

       Id. at 363. See also Brown v. State, 270 Ga. 601, 605 (512 SE2d 260) (1999) (Hunstein, J., dissenting).

        Sharpe v. Dept. of Transp., 270 Ga. 101, 103-104 (505 SE2d 473) (1998); Griffin v. State, 243 Ga. App. 282, 286 (531 SE2d 175) (2000).

        Yount v. State, 249 Ga. App. 563, 565 (548 SE2d 674) (2001).

       (Emphasis supplied.) OCGA § 40-6-392 (b).

       265 Ga. 78 (454 SE2d 441) (1995).

       Id. at 79 (2).

       (Citations omitted.) Id. at 82 (2) (b).

        Bowden v. State, 202 Ga. App. 802, 803 (2) (415 SE2d 527) (1992).

       (Citation and punctuation omitted.) Dickerson v. State, 241 Ga. App. 593, 598 (526 SE2d 443) (1999) (Blackburn, P. J., concurring specially).

        Johnson v. State, 261 Ga. 419, 420 (3) (405 SE2d 686) (1991).

        Caldwell v. State, 260 Ga. 278, 285-286 (393 SE2d 436) (1990).

       See Lattarulo v. State, 261 Ga. 124, 126 (401 SE2d 516) (1991); Hawkins v. State, 223 Ga. App. 34, 38 (476 SE2d 803) (1996).

       (Punctuation omitted; emphasis supplied.) Haynes a State, 244 Ga. App. 79, 80 (534 SE2d 807) (2000); Newton v. State, 191 Ga. App. 664 (382 SE2d 432) (1989).

       (Emphasis supplied.) Harper v. State, 249 Ga. 519, 526 (1) (292 SE2d 389) (1982).


author: Phipps, Judge.

text:
    A02A0360.
    In the Interest of K. S. K., a child.
    (557 SE2d 494)
   Phipps, Judge.

K. S. K.’s mother, S. K., appeals the termination of her parental rights. She challenges the termination order on grounds of evidentiary insufficiency, and she contends that the trial court erred in denying her subsequent motion to modify the termination order based on a change in circumstances. Finding the evidence sufficient and finding no error in denial of the motion to modify, we affirm.

S. K. is the mother of three sons: K. S. K. (born in 1999), B. M. (born in 1996), and C. E. (born in 1991). She came to the attention of the Haralson County Department of Family & Children Services (DFACS) in January 1999, because she was suspected of neglecting or abusing B. M. and lacked stable housing. After B. M. was removed from her custody, she attempted suicide by shooting herself. At the time, she was seven months pregnant with K. S. K. and badly addicted to crack cocaine. After the suicide attempt, she was jailed for felony forgery. She gave birth to K. S. K. on March 21,1999, while she was still jailed. He was taken away from her immediately and later placed in “foster to adopt” care. S. K. was paroled from jail in November 1999 but reincarcerated in February 2000 because she failed a drug screen. She remained in the Haralson County jail until July 2000, when she was sent to Metro State Prison. The termination hearing was held in February 2001.

S. K. visited K. S. K. only once, while she was on parole. At the time, she was required to submit to a drug screen and tested positive for cocaine. She did not write to or attempt to communicate with K. S. K. or comply with other features of her reunification case plan, and the citizens review panel recommended that her parental rights be terminated. At the termination hearing, S. K. testified that after being sent to state prison, she “got saved” through religion, individual counseling, substance abuse classes, and part-time work cleaning floors on the prison sanitation crew. At the time of the hearing, however, S. K. had completed no drug treatment programs, had no firm parole date, and was not scheduled to be released from prison until January 2002. The DFACS worker assigned to the case testified that K. S. K. was thriving in foster care and that his foster parents wanted to adopt him.

On July 9, 2001, the Haralson Juvenile Court entered an order terminating S. K.’s parental rights. On August 1, S. K. moved for modification or vacation of the termination order based on a change in circumstances arising from her parole on July 19. In the motion, S. K. stated that she had begun living with her mother and was seeking employment. The motion was heard on August 21. At the hearing, the psychiatrist treating S. K. at the county mental health center testified that she had seen S. K. only once since her release from prison and conceded that she remained at high risk for relapse. The juvenile court denied the motion for modification or vacation.

Before terminating a parent’s rights, a juvenile court must employ a two-prong test. In the first prong, the court must decide whether there is “present clear and convincing evidence of parental misconduct or inability.” [Cit.] Parental misconduct or inability, in turn, is proven by evidence showing: (1) that the child is deprived; (2) that lack of proper parental care or control is the cause of deprivation; (3) that the cause of deprivation is likely to continue or will not likely be remedied; and (4) that continued deprivation is likely to cause serious physical, mental, emotional, or moral harm to the child. [Cit.] ... In the second prong of the termination test, the juvenile court must consider whether termination of parental rights would be in the best interest of the child.
[O]n appeal from a juvenile court’s order terminating parental rights, we review the evidence in the light most favorable to the state [;] we still must determine whether any rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights to custody should have been terminated. We do not weigh the evidence or determine the credibility of witnesses; rather, we defer to the trial court’s factfinding and affirm unless the appellate standard is not met.

S. K. contends that the court erred in finding that DFACS had met its burden of establishing by clear and convincing evidence that the deprivation of K. S. K. was likely to continue, that the continued deprivation would cause serious harm to him, and that termination of S. K.’s parental rights was in the child’s best interest. We cannot agree. DFACS has shown that S. K.’s inability to parent K. S. K. was due at least in part to her crack cocaine addiction and near continuous incarceration since his birth. Although S. K. had been released from prison, her job prospects and ability to stay sober and to parent. K. S. K. remained highly uncertain. Moreover, she had shown no interest in the child outside of her expression of interest while testifying in this proceeding. K. S. K. had flourished in the care of foster parents who want to adopt him. The evidence, viewed in a light most favorable to DFACS, supported the court’s findings under the applicable standard, and S. K.’s release on parole did not mandate a contrary decision.

Contrary to arguments advanced by S. K., the trial court did not commit legal error by not making wholly discrete determinations as to the likelihood of continuation of the cause of K. S. K.’s deprivation and whether termination of S. K.’s parental rights would be in his best interest. “[T]he same factors which show parental inability may also show that termination would be in the children’s best interests. [Cit.]”

Decided December 14, 2001.

Murphy, Murphy & Garner, Stephen E. Garner, for appellant.

Thurbert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, Shalen S. Nelson, Assistant Attorney General, Ana M. Rountree, Thomas M. Witcher, for appellee.

Judgment affirmed.

Andrews, P. J, and Mikell, J., concur.

        In the Interest of V.S., 230 Ga. App. 26, 27 (495 SE2d 142) (1997).

       (Footnotes omitted.) In the Interest of B. N. A., 248 Ga. App. 406, 407 (1) (546 SE2d 819) (2001).

       Compare In the Interest of J. M., 251 Ga. App. 380, 383 (4) (554 SE2d 533) (2001) (evidence insufficient to support finding that continued deprivation of the children would cause serious harm to them; no one testified that children were thriving in foster care or would be seriously affected by the mother continuing to have a relationship with them); In the Interest of D. F., 251 Ga. App. 859 (555 SE2d 225) (2001) (evidence insufficient to support finding of serious harm to children as a result of continued deprivation; DFACS presented no identifiable prospects for adoption of the children).

        In the Interest of R. N., 224 Ga. App. 202, 205 (2) (480 SE2d 243) (1997).


author: Miller, Judge.

text:
    A01A1763.
    BROWN v. THE STATE.
    (558 SE2d 61)
   Miller, Judge.

Davis Brown was sentenced to 20 years after pleading guilty to robbery by intimidation, aggravated assault, and various other offenses. On appeal Brown contends that the trial court erred in accepting his guilty plea since a counselor who indicated that Brown was competent to make a plea was unqualified to offer such an opinion. We discern no error and affirm.

At his guilty plea hearing, Brown was asked several questions about whether he understood the nature of the hearing and whether he was making his plea voluntarily. The judge listed in great detail the facts surrounding the allegations against Brown. Brown admitted that the judge’s recitation of the facts surrounding his arrest were accurate. Brown even expressed remorse for what he had done and offered an apology to one of the victims. He did not deny that he had committed the crimes in question, but offered the explanation that he was high on crack at the time that he had committed them. The court also determined that all of Brown’s legal and constitutional rights had been explained to him by his attorney. At no time during the hearing was there any mention of a psychological evaluation of Brown, nor did Brown indicate that he misunderstood anything about his guilty plea or the possible sentence that he could serve for entering such a plea.

A month after the guilty plea hearing, Brown filed a motion to vacate or remold his sentence contending that an unqualified counselor had conducted a mental health evaluation of Brown prior to his guilty plea hearing. This motion was not ruled upon by the court, but several months later new counsel for Brown moved for an order allowing an out-of-time direct appeal, which motion was granted.

Decided December 18, 2001.

Paul W. David, for appellant.

Daniel J. Craig, District Attorney, Charles R. Sheppard, Assistant District Attorney, for appellee.

“Before accepting a plea of guilty, the trial court has a duty to ascertain that the plea is made voluntarily and intelligently.” An appellate court will not set aside a trial court’s factual determination of voluntariness unless such determination is clearly erroneous.

There was evidence here to show that Brown entered his plea knowingly and voluntarily, and we therefore will not disturb the trial court’s determination of voluntariness on appeal. To the extent that Brown challenges the acceptance of his guilty plea based on the competence of an alleged counselor who evaluated Brown prior to the guilty plea hearing, such challenge cannot be considered here since the record does not contain any report from the counselor or any other evidence indicating the involvement of a counselor in this case.

Judgment affirmed.

Andrews, P. J., and Eldridge, J., concur.

       (Citation, omitted.) Harris v. State, 167 Ga. App. 153 (1) (306 SE2d 79) (1983).

        Taylor v. State, 266 Ga. 129 (464 SE2d 385) (1996).

       See Hayes v. State, 236 Ga. App. 617, 618 (1) (512 SE2d 294) (1999) (“The burden is on the party alleging error to show it affirmatively by the record, and when he does not do so, the judgment is assumed to be correct and must be affirmed. [Cit.]”).


author: Ellington, Judge.

text:
    A01A2091.
    In the Interest of L. E. C. et al., children.
    (558 SE2d 56)
   Ellington, Judge.

The mother of three minor children appeals from the Fulton County Juvenile Court’s decision to terminate her parental rights. Because we find the decision was supported by clear and convincing evidence, we affirm.

In five enumerations, the mother contends there was insufficient evidence for the trial court to find that her parental rights should be terminated pursuant to OCGA § 15-11-94. “The standard of review of a juvenile court’s decision to terminate parental rights is whether after reviewing the evidence in the light most favorable to the appellee, any rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights to custody have been lost.” (Citation and punctuation omitted.) In the Interest of S. H., 251 Ga. App. 555 (1) (553 SE2d 849) (2001). “We defer to the trial court’s factfinding and affirm unless the appellate standard is not met.” (Citation and punctuation omitted.) In the Interest of A. S. O., 243 Ga. App. 1 (1) (530 SE2d 261) (2000).

Under OCGA § 15-11-94 (a) (formerly OCGA § 15-11-81), the considerations for terminating parental rights involve a two-step process. The trial court must first determine “whether there is present clear and convincing evidence of parental misconduct or inability.” OCGA § 15-11-94 (a). Such misconduct or inability may be proved by showing (1) the child is deprived; (2) such deprivation is caused by the lack of proper parental care or control by the parent in question; (3) the deprivation is likely to continue; and (4) the “continued deprivation will cause or is likely to cause serious physical, mental, emotional, or moral harm to the child.” OCGA § 15-11-94 (b) (4) (A) (i)-(iv). Further, in determining whether there is a lack of “proper parental care and control,” the court may consider several factors, including the . . . [past or present] “(p)hysical, mental, or emotional neglect of the child.” OCGA § 15-11-94 [(b) (4) (B) (v)]. If the child is not in the custody of the parent in question, the lack of proper parental care and control can be demonstrated by showing that the parent, without justifiable cause, failed for a period of one year prior to the filing of the termination petition to “develop and maintain a parental bond with the child in a meaningful, supportive manner” [; to complete a court-ordered reunification plan;] or to support the child financially. OCGA § 15-11-94 [(b) (4) (C) (i)-(iii)]. Once the trial court establishes a lack of parental care and control, the second part of the test for determining whether parental rights should be terminated is whether such termination “is in the best interest of the child, after considering the physical, mental, emotional, and moral condition and needs of the child who is the subject of the proceeding, including the need for a secure and stable home.” OCGA § 15-11-94 (a).

(Citation omitted.) In the Interest of S. H., 251 Ga. App. at 557 (1) (b).

Viewed in the light most favorable to the State, as appellee, the record shows that the Fulton County Department of Family & Children Services (“DFACS”) took temporary legal custody of the three boys in June 1995 following reports of neglect and physical abuse by the parents. At the time they were removed from the parents’ home, L. E. C., Jr. was three years old, F. M. C. was two years old, and L. E. C. III was one year old. Social workers with AGAPE, an agency that coordinated the boys’ foster home placements, testified that the boys were “severely neglected,” “medically fragile,” had not been immunized, had uncorrected vision problems, suffered delays in their speech and mental development, and had other medical and behavioral problems. According to the initial deprivation order, the father had physically abused the children, the court was “concerned” that the mother had also abused the children, and the court found the children to be deprived. The juvenile court ordered the mother to undergo a thorough psychological evaluation and attend parenting classes.

DFACS placed the boys in foster care and developed reunification plans for the mother. The plans required the mother to get a psychological evaluation, obtain counseling, take parenting classes, secure a stable home and finances, visit the children regularly, and stay in contact with DFACS. The boys had alternating weekend visits with their mother. Social workers with AGAPE testified that the boys returned from the visits dirty and wearing the same clothes they were wearing when they left for visitation days earlier. The boys “reeked” of.cigarette smoke, even though the children had respiratory problems and the mother had been instructed to keep them away from smokers. The mother did not allow F. M. C. to wear his glasses during the visits and failed to give the oldest child his medications as prescribed. The youngest child appeared as if his diaper had not been changed over the weekend.

In February 1996, a DFACS caseworker temporarily refused to allow the boys to visit with the mother, but the juvenile court threatened the caseworker with contempt and ordered her to arrange visitations. Although visitation opportunities immediately resumed, the mother stopped visiting the children after May 28, 1996.

The mother moved to Tennessee in June 1996. During a 1997 home study visit to the mother’s Tennessee home by a child advocate, made in anticipation of reunification, the advocate described the house as “chaotic,” with mounds of clothing and “stuff” on the floor and beds. The advocate also testified that she discovered the father hiding in the backyard during that home visit. According to the advocate, both the mother and grandmother denied that the man was the boys’ father until the man, himself, admitted to his true identity.

In addition to evidence of past deprivation caused by parental inability or misconduct, the juvenile court heard testimony from psychologists that the two oldest boys currently suffer from learning disabilities, language difficulties, behavioral problems, and attention deficit hyperactivity disorder and that they require special education classes and ongoing counseling. The psychologists also testified that the boys have no parental bond with their mother, that they do not remember their mother, and that they do not understand the significance of the fact that she is their birth mother. In fact, one psychologist stated that placing F. M. C., the middle child, with his mother at this point would be “unification” as opposed to “reunification,” because the child did not remember being with his mother. The psychologists also opined that the boys are adjusting well in foster care, that their mental difficulties and behavioral problems have improved over time, and that returning the children to their mother would confuse the boys and be disruptive to their emotional health.

In fact, the record indicates that the mother is unaware of the extent of the boys’ needs and unable to provide for them. Since moving to Tennessee in June 1996, the mother has seen the boys only twice, during a case panel review and a court hearing. She has not seen or contacted the boys at all since February 1998. In addition, she failed to provide any financial support or send cards or presents while the children were in DFACS’s custody. The evidence also showed that the mother has been unemployed since moving to Tennessee and currently lives with the children’s maternal grandmother. The grandmother provides the family’s financial support through her Social Security and retirement benefits. The grandmother’s home has no phone. The mother has no driver’s license, so she is unable to drive the boys to appointments for medical, psychological, and other treatment.

After considering the evidence presented during the termination hearings, the juvenile court found that the mother had “physically, mentally, and emotionally neglected the children” before they were removed from her care; failed to visit or contact the children for over twenty-four months before the termination petition was filed; failed to contact AGAPE or DFACS about the children; failed to provide any support to the children during their six years of DFACS’s custody; failed to provide any gifts or cards for birthdays or special occasions during the past twenty-four months; and failed to complete the requirements of her reunification case plan. It also found that there was no parental bond between the mother and the children due to the lack of contact. In addition, the juvenile court found that the children were developmentally delayed prior to 1995, but have made substantial progress while in DFACS’s custody. Because of the lack of contact with their parents, the special needs of the children, and the mother’s demonstrated inability to provide for the children in the future, the juvenile court determined that the children’s deprivation is likely to continue and cause harm to the children. The juvenile court concluded that it was in the children’s best interests to terminate the parental rights of the mother.

On appeal, the mother contends the evidence presented showed only past neglect, not present parental inability or misconduct, and that there was no evidence that the children’s deprivation is likely to continue. We disagree.

The State presented substantial evidence that there was no parent-child bond between the mother and the boys, primarily because of the length of time the children had been in DFACS’s custody, their young age when they were removed from the mother’s home, the mother’s failure to contact or visit the children since February 1998, and her infrequent visits prior to that time. This evidence is sufficient to find present parental inability or misconduct under OCGA § 15-11-94 (b) (4) (C), as long as the failure to maintain a parental bond was not due to some justifiable cause.

In this case, the mother and the boys’ maternal grandmother both testified at the hearings and contended that the mother repeatedly called DFACS and the AGAPE social workers to arrange visitation with the boys. They alleged that DFACS and the social workers prevented the mother from seeing the boys. AGAPE social workers testified, however, that the mother had been directed to contact them regarding visitation and that the mother never contacted them about visitation or the well-being of the children after May 1996. One of the social workers testified that the mother was never denied visitation between April 1996 and November 1999, when the social worker left AGAPE. As noted above, after hearing all of the testimony, the juvenile court specifically found that the mother failed to contact the children after February 1998 and that she had “little or no contact” with DFACS or AGAPE after this time. We find that there was sufficient clear and convincing evidence for a rational trier of fact to find present parental inability or misconduct due to the mother’s failure to maintain a parental bond with her children through visits or other contact during the past year. See In the Interest of J. M. B., 231 Ga. App. 875, 878 (1) (b) (501 SE2d 259) (1998).

As to whether this deprivation is likely to continue in the future, this Court has previously held that,

[i]n addition to evidence of present parental misconduct or inability, evidence of past conduct may be considered in determining whether the deprivation would be likely to continue. Such an inference is appropriate, since the juvenile court is not required to reunite [the boys] with [their mother] in order to obtain current evidence of deprivation.

(Citations and punctuation omitted.) In the Interest of E. C., 225 Ga. App. 12, 16 (482 SE2d 522) (1997); see also In the Interest of J. M. B., 231 Ga. App. at 878 (1) (c); OCGA § 15-11-94 (b) (4) (A) (iii). Further, “[t]he decision as to a child’s future must rest on more than positive promises which are contrary to negative past fact.” (Citation and punctuation omitted.) In the Interest of S. H., 251 Ga. App. at 558 (1) (b).

The mother argues on appeal that there is insufficient evidence to show that the boys would be deprived in the future because her situation has improved significantly since the boys were removed from her home six years ago. She asserts that she currently lives in two connected double-wide trailers with six bedrooms and that this home is sufficient to house her, the three boys; her other four children, and the children’s maternal grandparents. She contends that, even though she is unemployed, the children will be provided for, although she does not specify how. We note, however, that the juvenile court expressly found that the mother’s testimony regarding her present living circumstances and her ability to support the children was not credible. Accordingly, such evidence would not support a reversal on appeal of the juvenile court’s determination that the children would continue to be deprived if reunited with the mother.

On the contrary, the evidence shows that the boys suffer from substantial medical and psychological needs, that the mother has not cared for the boys in six years, and that she is generally unfamiliar with their special needs. This lack of familiarity can be directly attributed to the fact that the mother has had little contact with the boys since May 1996. This evidence, coupled with her failure to complete counseling, her current unemployment and lack of any employment history for the past five years, and her lack of an identifiable source of income, a phone, or driver’s license, supports a finding that the boys’ deprivation would continue if they were reunited with their mother. See In the Interest of E. C., 225 Ga. App. at 17; cf. Shover v. Dept. of Human Resources, 155 Ga. App. 38 (270 SE2d 462) (1980) (reversing the termination of parental rights when the only evidence of parental misconduct or inability was the mother’s poverty). There was also sufficient evidence that the children would be seriously harmed by reunification, given the lack of bonding with their mother, their special needs, and their significant progress during their years in foster care. OCGA § 15-11-94 (b) (4) (A) (iv).

Decided December 18, 2001.

William M. Hill, for appellant.

Thurbert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen S. Nelson, Assistant Attorney General, P. Brian Campbell, for appellee.

Finally, the same evidence which shows the existence of parental misconduct or inability also supports a finding that the termination of parental rights would be in the children’s best interests. In the Interest of J. M. B., 231 Ga. App. at 879 (2); In the Interest of E. C., 225 Ga. App. at 18; OCGA § 15-11-94 (a). We find that the trial court’s determination that termination of the mother’s parental rights is in the children’s best interests was supported by clear and convincing evidence.

Judgment affirmed.

Johnson, P. J., and Ruffin, J., concur.

       Over the next five years, for reasons explained below, the juvenile court repeatedly extended the deprivation order and renewed DFACS’s custody of the children. In February 1998, a Citizens Review Panel recommended that the parents’ rights be terminated. DFACS filed a petition to terminate the parental rights of the boys’ mother and father on May 26, 2000.

       Because of allegations of physical abuse, the juvenile court issued a restraining order against the father requiring him to stay away from the boys; the order also required the mother to call the police if he came to her home. The father’s parental rights were also terminated in this action. He did not participate in this appeal.

       The juvenile court found that the mother did attempt to visit the children after the termination petition was filed in May 2000, but that the court determined then that it would not be in the children’s best interests.


text:
    A01A2164.
    In the Interest of A. G. et al., children.
    (558 SE2d 62)
   Miller, Judge.

The mother of A. G. (girl age six), A. G. (boy age ten), and J. G. (boy age fifteen) appeals from the juvenile court’s order terminating her parental rights. She contends that there is no clear and convincing evidence of parental misconduct or inability and that the trial court erred in finding that termination was in the best interests of her children. For the following reasons, we affirm.

We recently reiterated the applicable standard of review:

On appeal, we must determine whether, after reviewing the evidence in the light most favorable to the appellee, any rational trier of fact could have found by clear and convincing evidence that the natural parent’s right to custody should be terminated. On appeal, this Court neither weighs evidence nor determines the credibility of witnesses; rather, we defer to the trial court’s factfinding and affirm unless the appellate standard is not met.

As a result of a petition alleging deprivation, the juvenile court found that the petitioner had established by clear and convincing evidence that the children were deprived and ordered temporary legal custody be given to the Department of Human Resources. The Department established a case reunification plan for the mother. After the mother’s noncompliance with the plan, the court found that reunification was no longer appropriate and ordered legal custody to remain in the Department. When the Department filed a petition for termination of parental rights, a hearing was held, resulting in the order of termination currently being appealed. The mother did not appeal any of the court’s orders other than this last one.

1. Parental Misconduct or Inability. Under the governing statute, the court first considers parental misconduct or inability by determining whether (i) the child is a deprived child; (ii) the lack of proper parental care or control by the parent is the cause of the deprivation; (iii) such cause of deprivation is likely to continue or will not likely be remedied; and (iv) the continued deprivation is likely to cause serious physical, mental, emotional, or moral harm to the child. We address these factors in turn.

(a) Deprivation. On February 28, 2000, the trial court found that the children were deprived. The record discloses no appeal from the order embodying this finding. Accordingly, the mother was bound by this finding for purposes of the termination hearing.

(b) Lack of Proper Parental Care or Control. The finding just mentioned stated that the children were deprived “in that they are without proper parental care, control, and supervision for their physical, mental and emotional health.” Thus, the mother was also bound by this determination on this second factor.

Moreover, testimony showed numerous instances of deprivation caused by lack of parental control. First, the mother neglected these three children and another child. The mother’s first child — not one of the three involved here — was placed in foster care in 1982, 1984, and 1987 as a result of the mother’s neglect and child molestation by the mother’s husband. Testimony also showed that the mother often left the three children in the care of others who were incapable of caring for or were a threat to the children. For example, she sent the six-year-old girl to be cared for in a home inhabited by a known child molester, resulting in the molestation of the child; she often left her children home alone; she once left them in the care of an elderly, mentally disabled woman; and on another occasion she left them in the care of a known álcoholic. She also failed to ensure her first child received needed medication.

Second, the mother had a medically verifiable mental health deficiency that rendered her incapable of providing adequately for the children. Expert testimony showed that she had an IQ of 60 (intellectually deficient range) and that she was mildly retarded and functionally illiterate. She had psychological disorders exhibited by a pattern of motivation in short spurts and poor motivation in the long run. These mental deficiencies led in part to her allowing the children to be cared for by incapable individuals.

Third, the mother had a history of chronic unrehabilitated abuse of alcohol that rendered her incapable of providing adequately for the children. Despite sporadic treatment programs over the years, she would return to abusing alcohol, resulting in her neglecting her children. Her daily use of alcohol and her desire to “go out drinking” with her boyfriend caused her to leave her children alone for substantial periods of time. Her attendance at AA programs was minimal at best. Her failure to receive consistent treatment violated her case reunification plan.

Accordingly, a rational trier of fact could have found clear and convincing evidence that the mother’s lack of proper parental care and control caused the children to be deprived.

(c) Lack of Care or Control Likely to Continue. “Evidence of past conduct may be considered in determining whether the deprivation is likely to continue if the children are returned to their parent [ ].” Here the mother’s long history of deficiencies in the supervision of her children, along with the other evidence detailed above, authorized the juvenile court’s determination that the lack of proper parental care or control is likely to continue. Even though the mother presented evidence that she had reformed, In the Interest of C. D. P. explained:

Here, although some improvement in [the mother’s] drug addiction and employment status had occurred, that alone does not constitute conclusive evidence of parental fitness in light of the family’s history. Judging the credibility of her good intentions was a task for the juvenile court. The decision as to a child’s future must rest on more than positive promises which are contrary to negative past fact. Further, this Court has held that the trial court must determine whether a parent’s conduct warrants hope of rehabilitation, not an appellate court.

Having reviewed the record, we conclude that the juvenile court was authorized to infer from the evidence of past conduct that the improvements in the mother’s situation were not sufficient to justify maintaining the children in foster care limbo in hopes that the mother could achieve stability and provide an adequate home for her children.

(d) Serious Harm to Children. The same evidence authorized the juvenile court to find that continued deprivation was likely to cause serious physical, mental, emotional, or moral harm to the children. It is clear from the evidence detailed above that the children have already been harmed — e.g., the molestation of the six-year-old girl — and that there is ample support for the juvenile court’s finding in the termination order that the mother’s actions have placed her children at continued risk due to her failure to protect, safeguard, and supervise them. Additionally, as the court also noted, expert testimony showed that partially as a result of the improper parenting, the children have severe intellectual and psychiatric problems that need special treatment and thus need a capable parent to monitor that treatment.

Thus, we conclude that the juvenile court properly found clear and convincing evidence of parental misconduct and inability.

2. Best Interests of the Children. If there is clear and convincing evidence of parental misconduct or inability, the court then considers whether termination of parental rights is in the best interests of the children, after considering the physical, mental, emotional, and moral condition and needs of the children, including the need for a secure and stable home. “The same evidence showing parental misconduct or inability may, and here does, establish this requirement.”

Accordingly, because a rational trier of fact could have found clear and convincing evidence of parental misconduct or inability and could also have found that termination of parental rights was in the best interests of the children, the court did not err in terminating the mother’s parental rights to the children.

Decided December 18, 2001.

Robert F. Pirkle, for appellant.

Thurbert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen S. Nelson, Assistant Attorney General, Gary A. Sinrich, for appellee.

Judgment affirmed.

Andrews, P. J, and Eldridge, J., concur.

       See OCGA § 15-11-94 (a).

       (Citation omitted.) In the Interest of A. A., 252 Ga. App. 167, 169 (2) (555 SE2d 827) (2001).

       OCGA § 15-11-94 (b) (4) (A).

       See In the Interest of R. G, 249 Ga. App. 91, 93 (1) (a) (547 SE2d 729) (2001).

       Id.

       OCGA § 15-11-94 (b) (4) (B) (v).

       See OCGA § 15-11-94 (b) (4) (B) (i).

       OCGA § 15-11-94 (b) (4) (B) (ii).

       (Citation omitted.) A. A., supra, 252 Ga. App. at 172 (2) (c).

       238 Ga. App. 393 (519 SE2d 37) (1999).

       (Citations and punctuation omitted.) Id. at 395.

       Id.

       See In the Interest of A. M. L., 242 Ga. App. 121, 124 (1) (d) (527 SE2d 614) (2000).

       OCGA § 15-11-94 (a).

       (Citation and punctuation omitted.) In the Interest of J. B. A., 230 Ga. App. 181, 185 (2) (495 SE2d 636) (1998).


author: Blackburn, Chief Judge.

text:
    A01A1726.
    COLEMAN v. THE STATE.
    (557 SE2d 430)
   Blackburn, Chief Judge.

Following a jury trial, Corey Lewis Coleman appeals his conviction for burglary, kidnapping with bodily injury, armed robbery, rape, and aggravated sodomy, contending that the introduction of a redacted inculpatory statement made by Markett Jerod Moore, his co-defendant, violated his Sixth Amendment rights under Bruton v. United States. For the reasons set forth below, we affirm.

Bruton held that the admission of a statement of a nontestifying co-defendant

which inculpates the defendant unconstitutionally deprives that defendant of the Sixth Amendment right to cross-examine witnesses, even where the jury is instructed to limit its consideration of the statement to the co-defendant who made it. While a non-testifying co-defendant’s statement which is redacted so that it eliminates any reference to the existence of the defendant will withstand scrutiny under Bruton so long as it is accompanied by instructions limiting its use to the case against its maker, a non-testifying co-defendant’s statement which is redacted by merely replacing the defendant’s name with a blank or symbol violates Bruton regardless of whether limiting instructions are given. As the U. S. Supreme Court held, to replace the defendant’s name “with an obvious blank will not likely fool anyone.” [Gray v. Maryland. ] Instead statements which, despite redaction, refer directly to a person whom the jury may infer to be the defendant run afoul of the confrontation clause “even w(h)ere the confession (is) the very first item introduced at trial.” [Id.]

(Footnotes omitted.) Davis v. State.

In this case, Moore made certain pre-trial statements concerning the crimes with which Coleman had been charged. Although Moore did not testify at trial, his statements were introduced by one of the arresting officers; however, Coleman’s name was redacted from the statement and replaced with “the other person.” Even if we were to accept Coleman’s argument that these statements violated the standards set forth under Bruton, “ ‘we will not reverse unless error is shown to be harmful. If overwhelming evidence against a defendant exists apart from the statement of the co-defendant, then any violation of Bruton can be said to be harmless beyond a reasonable doubt.’ ” Mathis v. State.

The evidence of Coleman’s guilt apart from Moore’s statements is indeed overwhelming. The facts were set out in detail in co-defendant Moore’s prior appeal before this Court, and we adopt them here. Moore v. State

On April 30, [the defendant’s first victim], a retired geologist with the University of Georgia, was staying at a Ramada Inn in Glynn County while attending a seminar on Jekyll Island. At 10:00 p.m., someone knocked at his door. When [the geologist] opened the door, he was accosted by three young men, “two of them with guns.” One thrust a gun into the door, pointing it at [the geologist], who immediately retreated and withdrew his billfold. [The geologist] was ordered to turn around, and when he did someone took his billfold. [The geologist] was then ordered to lie down on the bed and put a pillow over his head. One gunman put a gun against [the geologist’s] temple, cocked it, and took [the geologist’s] wristwatch from his arm. When [the geologist] tried to lift the pillow from his face, he was struck from behind with a metal object that cut his scalp and caused [the geologist] to pass out. When he awoke, [the geologist] determined that $35 was missing from his billfold.
[The defendant’s next victims, a 57]-year-old [man] and his wife . . . were in Glynn County on a business trip and stayed at Embassy Suites Hotel. At approximately 10:35 p.m. on April 30, [the man] held the door to his room open for his wife to enter when two young men with guns burst into the room. At gunpoint, [the man] moved to the sitting area and got down on the floor. The first gunman took [the man’s wife] through a door to the bathroom in the back of the suite. The second gunman demanded [the man’s] wallet and removed $50. The first gunman returned, placed his foot on [the man’s] head and twice demanded to know: “Are you ready to see your wife die?” The first gunman then demanded [the man’s] watch and wedding ring. After the second gunman left the suite, taking [the man’s] laptop computer with him, [the man] heard the first gunman say: “I’m still here. Get that head back down.” Then [the victim] was struck in the back of the head, causing bleeding.
While waiting for her husband to open the door to their suite, [the wife] noticed three young men on the same floor, on the other side of the atrium, and thought they looked too young to have rented a room of their own. [The wife] put down her purse in the dressing area, but before her husband could close the door, two youths came in with guns drawn and demanding money. The first gunman placed the weapon to [the wife’s] head and made her kneel on the floor. After kicking [the wife] three times, the first gunman told her: “you’re going to f-k me.” Still kneeling, [the wife] told him “No,” and the first gunman started to strangle her until she lost consciousness. When she awoke, her head was near the second sink. That is, “(she) was over closer to the other door.” The first gunman pulled her up by her dress and ripped all the buttons off. As he raped [the wife], the gunman told her he had AIDS. He then sprayed her with shaving cream and anally sodomized her. The gunmen then took [the wife’s] rings and jewelry.
[Jabaar Myles, the third co-defendant with Coleman and Moore, testified at trial that Coleman and Moore participated in the crimes.] Myles was 15 on April 30, when Moore and Coleman drove with Myles to Brunswick from Hazlehurst. Myles heard Coleman and Moore discuss how they could rob somebody, and how Moore said “he was going to do it, too.” Coleman had a nine millimeter gun while Moore had what appeared to be a .25. They drove to the Ramada Inn, and all three approached a room rented by an older man, where Coleman knocked on the door. When [the geologist] tried to dose the door, Moore and Coleman forced their way in. Coleman told [the geologist] to get on the bed and put a pillow over his head, while Moore ran about looking for money. Myles saw Moore take money out of [the geologist’s] wallet, while Coleman took his wristwatch. As they left, Myles saw Coleman hit [the geologist] “with the gun several times.”

Decided December 5, 2001

Reconsideration denied December 19, 2001

Robert C. Harper, for appellant.

Stephen D. Kelley, District Attorney, Charles K. Higgins, Assistant District Attorney, for appellee.

Dissatisfied with the small amount of money taken from [the geologist], Coleman drove them to the Embassy Suites. All three walked the various floors of the hotel. When Coleman spied the [second victim and his wife] opening their door, he ran into the room followed by Moore. Their weapons were visible. His gun on [the second victim], Moore took [his] watch and some rings, while Coleman went to the back. Myles saw Coleman sexually assaulting [the wife]. Back in the car, Myles observed jewelry, wedding bands, rings, and the laptop computer Moore brought with him.

Id. at 641-643 (1).

In addition to this evidence, Coleman’s fingerprints were found both on a coffeepot box in the geologist’s room and on the can of shaving cream used during the sexual assault of the second victim’s wife. Furthermore, a ring stolen from the second victim’s wife was recovered in Coleman’s bedroom.

This evidence, apart from the pre-trial statements made by Moore, provides overwhelming proof that Coleman was guilty of the crimes for which he was convicted. As such, any violation of Bruton, if it existed, was harmless, and Coleman’s convictions must stand.

Judgment affirmed.

Pope, P. J., and Mikell, J., concur.

        Bruton v. United States, 391 U. S. 123 (88 SC 1620, 20 LE2d 476) (1968).

        Gray v. Maryland, 523 U. S. 185 (118 SC 1151, 140 LE2d 294) (1998).

        Davis v. State, 272 Ga. 327, 330-331 (6) (528 SE2d 800) (2000).

        Mathis v. State, 238 Ga. App. 218, 220 (3) (517 SE2d 578) (1999).

        Moore v. State, 245 Ga. App. 641 (537 SE2d 764) (2000).


text:
    A02A0277.
    CALABRO v. LIBERTY MUTUAL FIRE INSURANCE COMPANY.
    (557 SE2d 427)
   Eldridge, Judge.

Appellee-defendant Liberty Mutual Fire Insurance Company brought the instant petition for declaratory judgment, as amended, seeking the direction of the Superior Court of Fulton County as to its obligation to pay appellant-plaintiff Michael M. Calabro’s insurance claim for loss of a diamond engagement ring he had given his former wife, Christine Ramirez Calabro, valued at $30,000. Calabro answered and counterclaimed for insurance benefits, bad faith damages, and attorney fees under OCGA § 33-4-6. The record shows that Calabro had been awarded the ring upon the final judgment and decree of divorce of the Fulton County Superior Court by which he and Ms. Calabro were earlier divorced. Ms. Calabro, having sold the ring to her father to pay attorney fees approximately six months before the entry of the final judgment and decree of divorce, thereafter failed to comply with the superior court’s contempt order to deliver the ring to Calabro. Calabro then filed a property loss claim for the loss of the ring under his Liberty Mutual homeowner’s insurance policy. The parties thereafter filed cross-motions for summary judgment. Liberty Mutual argues entitlement to summary judgment in that there was no evidence of direct loss, the loss of the ring as fortuitous, and Ms. Calabro’s failure to return the ring amounting to no more than breach of contract. Calabro sought summary judgment as he had in filing his insurance claim, arguing the ring as a covered loss in that Ms. Calabro committed theft by conversion under OCGA § 16-8-4 in selling it to her father to cover her attorney fees in the divorce action. Calabro appeals from the superior court’s denial of summary judgment for him and its grant of summary judgment for Liberty Mutual upon the finding that the ring’s loss was not accidental. We agree and affirm.

Upon the appeal of a motion for summary judgment, we review the grant of summary judgment de novo to determine whether any genuine issue of material fact exists for jury determination. Moore v. Food Assoc., 210 Ga. App. 780, 781 (437 SE2d 832) (1993). Summary judgment is proper where the moving party is able to show that no genuine issue of material fact exists and that the movant is entitled to summary judgment as a matter of law. OCGA § 9-11-56 (c). A defendant meets this burden by “showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case. . . . All of the other disputes of fact are rendered immaterial.” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

“To establish a prima facie case on a claim under a policy of insurance the insured must show the occurrence was within the risk insured against. [Cits.]” Allstate Ins. Co. v. Grayes, 216 Ga. App. 419, 420 (1) (454 SE2d 616) (1995).

In construing an insurance contract, a court must consider [the insurance contract] as a whole, givfing] effect to each provision, and interpret each provision to harmonize with each other. The policy should be read as a layman would read it[, and] exclusions [must] be strictly construed against the insurer and in favor of coverage.

(Footnotes omitted.) York Ins. Co. v. Williams Seafood &c., 273 Ga. 710, 712 (1) (544 SE2d 156) (2001).

The scheduled personal property endorsement under which Calabro insured the ring provided coverage “against risks of direct loss to property described only if that loss is a physical loss to property!,]” subject to four exclusions not here applicable. While the policy did not define the meaning of “loss,” it did define “property damage” as inclusive of the “loss of use of tangible personal property” and further required that property damage result from an accidental occurrence during the policy period. Neither did the policy define “accident”; however, in Georgia “accident” is defined as it is commonly understood: “An accident refers to an unexpected happening rather than one occurring through intention or design. Acts could not be unexpected unless they were accidental.” (Citation and punctuation omitted.) Southern Guaranty Ins. Co. v. Saxon, 190 Ga. App. 652-653 (379 SE2d 577) (1989); see also OCGA § 1-3-3 (2) (“ ‘Accident’ means an event which takes place without one’s foresight or expectation or design.”). Thus, reading the policy as a whole and giving such language its ordinary meaning, it is plain that the coverage provided to Calabro on the ring was for actual damage to the ring or the ring’s total loss arising out of accident as an unplanned, purely fortuitous event. Manifestly, the policy did not provide Calabro with coverage for loss of the ring in the nature of theft by conversion, a specific intent crime. Laster v. Star Rental, 190 Ga. App. 1, 4 (378 SE2d 320) (1989) (Deen, P. J., concurring specially). There, in fact, is but a single showing of record regarding the ring’s loss, and that is that Ms. Calabro “lost” the ring to her former husband by the superior court’s final judgment and decree of divorce. Accordingly, the superior court’s grant of summary judgment to Liberty Mutual in the instant case was proper. Lau’s Corp. v. Haskins, supra.

Decided November 29, 2001

Reconsideration denied December 19, 2001

Hicks, Casey & Barber, Mark A. Barber, for appellant.

Michael M. Calabro, pro se.

Drew, Eckl & Farnham, Harold M. Bagley, Karen K. Karabinos, for appellee.

Judgment affirmed.

Smith, P. J., and Ellington, J., concur.

       It is undisputed that Calabro gave the ring to Ms. Calabro upon an agreement whereby the ring was to be returned to Calabro in the event of divorce without children bom to the marriage.

       OCGA § 16-8-4 (a) pertinently provides:
      A person commits the offense of theft by conversion when, having lawfully obtained funds or other property of another including, but not limited to, leased or rented personal property, under an agreement or other known legal obligation to make a specified application of such funds or a specified disposition of such property, he [or she] knowingly converts the funds or property to his own use in violation of the agreement or legal obligation. This Code section applies whether the application or disposition is to be made from the funds or property of another or from the accused’s own funds or property in equivalent amount when the agreement contemplates that the accused may deal with the funds or property of another as his [or her] own.

       The father further sold the ring to an unnamed third party.

       In general the exclusions were for wear and tear, insects or vermin, war, and nuclear discharge or other hazard.


author: Andrews, Presiding Judge.

text:
    A01A1698.
    THE STATE v. HOOVER.
    (558 SE2d 71)
   Andrews, Presiding Judge.

The State appeals from the trial court’s grant of Amanda Marie Hoover’s motion in limine. Hoover was charged by accusation with DUI, invalid license, no tag, weaving on roadway (OCGA § 40-6-48), and a tag light violation (OCGA § 40-8-23 (d)).

In reviewing a trial court’s decision on a motion in limine where the evidence is uncontested and there is no question regarding witness credibility, we conduct a de novo review of the trial court’s application of law to undisputed facts. In the Interest of B. C. G., 235 Ga. App. 1, 4 (2) (508 SE2d 239) (1998).

The evidence was that Cobb County Police Officer Brown was proceeding south on Cobb Parkway around 2:00 a.m. on November 12, 1999, when he came up behind a car driven by Hoover. Officer Brown noted that the tag light was out and then saw Hoover cross the lane lines, i.e., weave in and out of her lane of traffic. At this point, Officer Brown activated his in-car camera, which required eight to ten seconds to come on. He was aware that they were approaching the Cobb County/Fultoq County line and activated his blue lights after entering Fulton County.

Hoover did not stop, and Officer Brown followed her for about two miles. During this pursuit, he activated his siren and directed his spotlight in Hoover’s rearview mirror to get her attention. Nonetheless, as stated by the officer, “[s]he didn’t accelerate, she didn’t decelerate. She just maintained [speed].” Hoover turned off of Cobb Parkway and eventually left onto Mount Paran Road, crossing under Interstate 75. At this point, an Atlanta police officer had another vehicle pulled over, but joined in the pursuit. When the Atlanta officer pulled ahead of Officer Brown and was partly parallel to Hoover, she finally pulled over.

The trial court concluded that the observed traffic offenses did not provide the officer with probable cause, but did provide articulable suspicion to stop the car for further investigation. The trial court further concluded that the officer was not in “hot pursuit” and was without jurisdiction to follow Hoover into Fulton County, thereby making the seizure and arrest unlawful. We disagree.

1. First, as argued by the State, Officer Brown had the authority to arrest a person for a traffic offense committed in his presence, regardless of territorial limitations. OCGA §§ 40-13-30; 17-4-20; Page v. State, 250 Ga. App. 795, 797 (553 SE2d 176) (2001), citing State v. Gehris, 242 Ga. App. 384, 386 (528 SE2d 300) (2000). See also, e.g., Wells v. State, 206 Ga. App. 513, 515 (1) (426 SE2d 231) (1992); State v. Giangregorio, 181 Ga. App. 324 (352 SE2d 193) (1986).

2. The trial court’s conclusion that Officer Brown’s actions were not in hot pursuit, assuming he was otherwise without authority to follow Hoover into Fulton County, was also erroneous.

As we emphasized in Poss v. State, [167 Ga. App. 86, 87 (1) (305 SE2d 884) (1983),] the fact that an officer does not engage in a high speed chase in the pursuit of a driver does not necessarily mandate a finding that the stop and arrest beyond the officer’s territorial limits were unauthorized under the “hot pursuit” doctrine. [Id.] Nor is there any requirement that the officer activate emergency lights or a siren before leaving his jurisdictional territory. “(T)he critical elements characterizing ‘hot pursuit’ are the continuity and immediacy of the pursuit, rather than merely the rate of speed at which pursuit is made.” Id. A pursuing officer may, and. should, wait to stop and arrest a suspect “at the first opportunity for doing so which (is), under the circumstances, safe for all concerned — (the suspect), the officers and other motorists.” (Emphasis in original.) Id. In this case, there is no question that, based upon [Hoover’s] driving behavior in [Cobb] County, the arresting officer had the legal authority to initiate a pursuit of [Hoover], and, if necessary, to go outside of the county’s geographic limits in order to effectuate an arrest. State v. Gehris, [supra] at 386; Hastings v. State, 211 Ga. App. [873,] 874 (1) [(441 SE2d 83) (1994)]; McLarty v. State, 176 Ga. App. [433,] 435-436 (3) [(336 SE2d 273) (1985)]; Poss v. State, [supra] at 87-88 (1).

Decided December 19, 2001

Barry E. Morgan, Solicitor-General, William R. Pardue, Assistant Solicitor-General, for appellant.

Chestney-Hawkins Law Firm, Sherry B. Lantz, for appellee.

Page v. State, supra at 797.

Judgment reversed.

Eldridge and Miller, JJ., concur.

       We take judicial notice that the Mt. Paran/I-75 intersection is within the city limits of Atlanta. See Brown v. State, 205 Ga. App. 31 (421 SE2d 340) (1992).

       Officer Brown had observed violations of OCGA §§ 40-6-48 (1) (failure to maintain lane) and 40-8-23 (d) (failure to have operative tag light).


text:
    A01A1920.
    THE STATE v. CAIN.
    (558 SE2d 75)
   Andrews, Presiding Judge.

The issue raised in this appeal is whether the trial court erred in probating a portion of Kenneth Cain’s sentence after Cain pled guilty to one count of burglary. The State argues on appeal that because this was Cain’s second burglary conviction, the trial judge did not have discretion to probate a portion of his sentence. We agree and vacate the sentence.

OCGA § 16-7-1 (b) provides:

Upon a second conviction for a crime of burglary occurring after the first conviction, a person shall be punished by imprisonment for not less than two nor more than 20 years. Upon a third conviction for the crime of burglary occurring after the first conviction, a person shall be punished by imprisonment for not less than five nor more than 20 years. Adjudication of guilt or imposition of sentence shall not be suspended, probated, deferred, or withheld for any offense punishable under this subsection.

Decided December 19, 2001.

Here, in spite of the clear wording of the statute, the court sentenced Cain to two years to serve eight months with the rest probated. Although there is no transcript of the sentencing, the State’s brief says that the trial court relied on Knight v. State, 243 Ga. 770 (257 SE2d 182) (1979), as authority for probating a portion of the sentence. But, Knight interprets the Habitual Offender Act, OCGA § 17-10-7 (Code Ann. § 27-2511), not OCGA § 16-7-1. Moreover, because specific sentencing provisions such as OCGA § 16-7-1 (b) prevail over the general recidivist statute at OCGA § 17-10-7, “the general recidivist scheme of OCGA § 17-10-7 will not apply to multiple or repeat convictions under OCGA § 16-7-1 (a) because OCGA § 16-7-1 (b) does not contemplate or permit the applicability of OCGA § 17-10-7.” Norwood v. State, 249 Ga. App. 507, 508-509 (2) (548 SE2d 478) (2001) (citing Mann v. State, 273 Ga. 366, 368 (541 SE2d 645) (2001)).

In any event, Cain does not argue on appeal that the court had discretion to probate a portion of his sentence. Rather, he claims that the State must show proof of the prior conviction before it can request recidivist punishment for the present offense. Cain cites to Nash v. State, 271 Ga. 281, 284-285 (519 SE2d 893) (1999), as authority for this claim. But, Nash is not on point and provides no support for his argument.

The record shows that the State served Cain with a fist of evidence in aggravation of offense. The transcripts show that at the sentencing hearings, defense counsel never objected to any of the listed offenses or argued that the State must introduce the prior convictions into evidence.

“No requirement exists under Georgia law which would limit the state to a single means of proving prior convictions of a criminal defendant in order to have the recidivism statute applied to the sentencing of the defendant.” Tankersley v. State, 155 Ga. App. 917, 922 (14) (273 SE2d 862) (1980). Moreover, in a case directly on point, this Court has held that when no objection to the form of the evidence of the prior conviction was made at the presentence hearing, the issue was not preserved for review on appeal. Walker v. State, 204 Ga. App. 269 (419 SE2d 542) (1992).

Accordingly, the trial court had no discretion to probate any of Cain’s sentence under OCGA § 16-7-1, and therefore we vacate the sentence and remand this case to the trial court for resentencing.

Sentence vacated and case remanded.

Eldridge and Miller, JJ., concur.

J. Tom Morgan, District Attorney, Benjamin M. First, Alison T Burleson, Assistant District Attorneys, for appellant.

Howard A. Becker, for appellee.


text:
    A01A2090.
    PRICE v. THE STATE.
    (558 SE2d 73)
   Phipps, Judge.

Franklin Price appeals his conviction for charges of aggravated assault and aggravated battery. He claims that the evidence was insufficient to support the verdict and that the trial court erred by admitting his incriminatory statement into evidence. Because we find that the evidence was sufficient and that Price’s statement was properly allowed for impeachment purposes only, we affirm.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, and the defendant no longer enjoys the presumption of innocence. “[M]oreover, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia. . . .” Under Jackson v. Virginia, we determine if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

Viewed in the light most favorable to the verdict, the evidence showed that on September 23, 1999, Price was living in a motel in Cartersville. On that day, Price borrowed a sport utility vehicle and drove to a local barbershop with Joseph Bruno and Franklin Darby. While leaving the barbershop parking lot, Price got into a verbal dispute with Tracy Carswell after Carswell or his girlfriend, who was driving Carswell’s car, honked the horn and told Price to move his vehicle because he was blocking the driveway.

Price then drove to a church parking lot with Bruno and Darby. Carswell followed, and when he arrived several minutes later, he walked to Price’s window and began talking. Carswell testified that he was trying to resolve the problem and that he was not using profanity. Price testified that Carswell threatened him. In their taped interviews with police investigator Frazier, which were played for the jury, Bruno and Darby said that Carswell ran to the vehicle, knocked on the window and threatened Price. After this encounter, Price told his passengers that Carswell “don’t know who he’s messing with.”

Price then drove back to the motel, where Willie Pennyman joined the group in the car. Pennyman had a gun with him when he got into the car. As Price was driving on Hickory Lane, he saw Cars-well driving toward him with two passengers. Carswell stopped his car, and Price did the same. Carswell then jumped out and ran toward the vehicle Price was driving. As Carswell reached the rear of Price’s vehicle, Price held the gun out the window and began shooting. The first bullet hit Carswell in the arm. As Carswell turned to run away, Price shot him in the back. After the shooting, Price left the scene and took his passengers to a nearby convenience store.

Carswell was transported to the hospital and treated for multiple gunshot wounds. One of the bullets had gone through his left lung, left diaphragm, pancreas and the main vein to his left kidney. During surgery-to repair the damage, doctors removed part of Cars-well’s pancreas and his spleen.

At trial, Price testified that when Carswell was running toward his vehicle, he definitely had a gun in his hand. Carswell and his two passengers testified that Carswell did not have a gun, and none of Price’s passengers saw Carswell with a gun. Neither police investigators nor the neighbor who heard the shooting saw a gun on or near Carswell after the incident.

1. Price claims that the evidence was insufficient to support his conviction because there was evidence that he was acting in self-defense when he shot Carswell. However, there was also evidence that Carswell was unarmed and never threatened Price. “Witness credibility is to be determined by the jury, as is the question of self-defense when there is conflicting evidence on the issue.” Based on the evidence presented, the jury was authorized to find that at the time of the shooting, Price did not reasonably believe that firing a gun was necessary to prevent death or great bodily injury to himself or others and that he was not acting in self-defense.

2. Price argues that his conviction should be reversed because the trial court admitted his improperly obtained statement into evidence. He concedes that the statement was properly introduced for impeachment purposes, but claims the trial court erred by admitting it into evidence.

The State conceded that there were problems with Price’s statement to Frazier and made no attempt to offer it during the presentation of their case. Price subsequently testified and contradicted his statement to Frazier in which he had said that he saw something in Carswell’s hand but that he was not sure if he ever saw a gun. On rebuttal, the State played the taped statement to the jury, over Price’s objection.

Decided December 19, 2001.

Gregory S. Dickson, for appellant.

T. Joseph Campbell, District Attorney, Lance T. McCoy, Assistant District Attorney, for appellee.

Price’s statement was admissible for impeachment purposes, even if it was obtained in violation of his Miranda rights. At trial, the statement was used to impeach Price and was not offered or admitted into evidence. Thus, Price’s claim lacks merit.

Judgment affirmed.

Smith, P. J., and Barnes, J., concur.

        Newman v. State, 233 Ga. App. 794 (1) (504 SE2d 476) (1998).

       443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

        Newman, supra.

       (Citation omitted.) Russell v. State, 267 Ga. 865, 866 (1) (485 SE2d 717) (1997); Hamilton v. State, 243 Ga. App. 10, 11 (532 SE2d 118) (2000).

        Hamilton, supra.

        Harris v. New York, 401 U. S. 222 (91 SC 643, 28 LE2d 1) (1971); Campbell v. State, 215 Ga. App. 14, 16 (4) (449 SE2d 366) (1994).