text:
    A02A1575.
    In the Interest of K. C. H., a child.
    (571 SE2d 515)
   Miller, Judge.

The mother of minor K. C. H. appeals from the juvenile court order finding K. C. H. to be deprived and ordering that the child be committed to the temporary custody of the Georgia Department of Human Resources, acting through the Morgan County Department of Family & Children Services (the “Department”), until further order of the court. She contends that (1) venue and jurisdiction were improper in Morgan County, and (2) the deprivation finding of the juvenile court was not supported by clear and convincing evidence. We discern no error and affirm.

On appeal from a finding that a child is deprived,

we review the evidence in the light most favorable to the juvenile court’s judgment to determine whether any rational trier of fact could have found by clear and convincing evidence that the [child was] deprived. . . . This Court neither weighs evidence nor determines the credibility of witnesses; rather, we defer to the trial court’s fact-finding and affirm unless the appellate standard is not met.

(Citations and punctuation omitted.) In the Interest of S. S., 232 Ga. App. 287, 289 (501 SE2d 618) (1998). As defined in OCGA § 15-11-2 (8) (A), a deprived child is a child who “[i]s without proper parental care or control, subsistence, education as required by law, or other care or control necessary for the child’s physical, mental, or emotional health or morals. . . .” In considering a deprivation petition, “[t]he petition is brought on behalf of the child and it is the child’s welfare and not who is responsible for the conditions which amount to deprivation that is the issue.” (Citation and punctuation omitted.) In the Interest of J. P., 267 Ga. 492 (480 SE2d 8) (1997).

The record reveals that, following a September 18, 2001 deprivation hearing, six-year-old A. C. and four-year-old J. C., the mother’s two children at the time, were placed in the temporary legal custody of the Department based on the juvenile court’s finding that A. C. had been molested by the mother’s live-in boyfriend. The court ordered that no reunification plan would be completed for the family until such time as the boyfriend moved out of the residence. The mother did not believe that her boyfriend had molested A. C., and the boyfriend did not move out of the house. The mother, who subsequently married the boyfriend, was pregnant with the couple’s child, K. C. H., at the time of the September 18 hearing.

On November 24, 2001, the day before K. C. H. was born, the mother and father went to South Carolina to see some of the father’s relatives. Although the mother later claimed that she and her husband were moving to South Carolina on that day, neither the mother nor her husband informed the Department of any planned move to South Carolina prior to the trip. A Department caseworker had visited the mother at her residence in Morgan County on several occasions, and on her meeting with the mother a week prior to the mother’s trip to South Carolina, the mother made no mention of any intention to move to South Carolina. The couple went to South Carolina without informing their landlord in Georgia that they were moving and without requesting that their utilities be shut off at their Georgia address.

The mother was admitted to a hospital in Anderson, South Carolina, on November 25, 2001, where she gave birth to K. C. H. The home address given for the mother on her hospital admission records was her Madison, Georgia, address.

Despite the mother’s objection to venue and jurisdiction with respect to K. C. H., the Morgan County Juvenile Court on November 27, 2001, granted a shelter care order based on the father’s continued residence with the mother and the father’s history as an alleged sexual predator. The juvenile court confirmed the findings of the shelter care order following a November 29, 2001 informal detention hearing. The court continued temporary custody of K. C. H. and approved the filing of a deprivation petition as being in the child’s best interest. The deprivation petition was filed on December 4, 2001.

At the December 11, 2001 deprivation hearing, a case manager testified that she was concerned about K. C. H.’s safety in light of the prior judicial finding that K. C. H.’s father had molested A. C., and the mother’s failure to give any indication that she would be separating from her husband. A caseworker also testified that the Department elected to remove K. C. H. from the custody of her parents based on the known threat posed to the child by the mother’s husband, and the husband’s continued presence in the home. The mother testified that she did not have any concerns about leaving K. C. H. with her husband.

The juvenile court found by clear and convincing evidence that K. C. H. was deprived, placed K. C. H. in the Departritent’s custody, and further ordered that the Department develop a reunification plan. The mother appeals from this order.

1. The mother argues that venue and personal and subject matter jurisdiction were improper in Morgan County as to K. C. H., because the mother had moved to South Carolina the day before K. C. H. was born. However, we affirm the trial court’s finding of jurisdiction, as evidence supported the trial court’s finding that K. C. H. and her parents still resided in Morgan County when K. C. H. was born, and K. C. H. was already in the Department’s custody in Morgan County for purposes of venue when the deprivation proceedings were commenced. See OCGA §§ 15-11-28 (a) (1) (C); 15-11-29 (a).

2. The mother contends that the finding of deprivation with respect to K. C. H. was not supported by clear and convincing evidence. We disagree.

Pursuant to the September 18, 2001 deprivation order with respect to A. C. and J. C., the mother was placed on notice that her boyfriend (now husband) was a threat to her children, as clear and convincing evidence convinced the court that he had molested her six-year-old daughter. The order also indicated that the mother would only be reunited with her children after such time as she removed the man from her home. At the time, the mother was pregnant with K. C. H.

Decided September 20, 2002.

Moulton & Massey, Laura R. Gailey, 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, John R. Laseter, for appellee.

Instead of heeding the court’s order and acting in the best interests of her children to take steps to have the family reunited, the mother acted completely contrary to the court’s order by allowing the man to continue living with her. Despite the knowledge of the threat that he posed to her underdeveloped six-year-old daughter, the mother chose to allow the man to remain in the home at the expense of not being reunited with her own children. She continued to choose this man, and the threat that he posed to her own underdeveloped daughter, even after she gave birth to another daughter who would be at risk to the man’s known predatory behavior. We hold that clear and convincing evidence supported a finding that K. C. H. was deprived, as she was without proper parental “care or control necessary for the child’s physical, mental, or emotional health. . . .” OCGA § 15-11-2 (8) (A).

This case is distinguishable from In the Interest of M. A. V., 206 Ga. App. 299 (1) (425 SE2d 377) (1992), overruled on other grounds, J. P., supra, 267 Ga. at 493, cited by the mother. In that case, there was no evidence that the deprivation of one child bore any relation to any possible future deprivation of another child, as the child who was not deprived was living with appellant’s parents, and “appellant uncontrovertedly [did] not intend to replace her parents as the child’s caretaker in the future.” 206 Ga. App. at 302 (1). Here, the September deprivation order made it clear that the mother’s husband posed a threat to her children, and the mother made a choice to allow her newborn child to be exposed to a potentially dangerous predator despite her notice of the danger. The mother’s own choices here with respect to K. C. H. show by clear and convincing evidence that K. C. H. was deprived.

Judgment affirmed:

Blackburn, C. J., and Johnson, E J., concur.


source: Caselaw Access Project

author: Ellington, Judge.

license: Public Domain

text:
    A02A1632.
    THE STATE v. MUSSELL.
    (571 SE2d 518)
   Ellington, Judge.

The State appeals from the trial court’s grant of defendant Elizabeth A. Mussell’s motion to suppress the results of her breath test in this DUI case. For the following reasons, we reverse.

While the trial court’s findings as to disputed facts in a ruling on a motion to suppress will be reviewed to determine whether the ruling was clearly erroneous, where the evidence is uncontroverted and no question regarding the credibility of witnesses is presented, the trial court’s application of the law to undisputed facts is subject to de novo appellate review.

(Citations omitted.) Vansant v. State, 264 Ga. 319, 320 (1) (443 SE2d 474) (1994). The undisputed evidence in this case showed that, at 1:37 a.m. on December 13, 2000, a Cobb County police officer was stopped at a red light at the intersection of Concord Road and Atlanta Road in Smyrna. The officer’s vehicle was facing eastbound on Concord Road. There were no other cars traveling eastbound behind or beside the officer on Concord Road. Mussell was driving northbound on Atlanta Road and made a left turn onto Concord Road. The officer observed that Mussell appeared to have her high beam headlights on and that she failed to dim them as she approached his vehicle after making the left turn. The officer described Mussell’s headlights as a “blinding light.” The officer activated his blue lights, made a u-turn in the intersection, pulled behind Mussell’s car, and stopped her in a nearby parking lot. After conducting field sobriety tests, the officer arrested Mussell for DUI.

Mussell filed a motion to suppress the results of her subsequent breath alcohol test, contending the officer lacked , the reasonable, articulable suspicion of criminal activity necessary for a valid traffic stop. She claimed that she had no duty to dim her lights because the police officer was stopped at the stop light and there were no “oncoming vehicles” approaching her. Under OCGA § 40-8-31 (1), a driver has the duty to dim the lights of her vehicle when she “approaches an oncoming vehicle within 500 feet” so that “the glaring rays are not projected into the eyes of the oncoming driver.” See OCGA § 40-8-30 (providing that vehicles have both high beam and dim headlights, as well as a dashboard high beam indicator); Fender v. Drost, 62 Ga. App. 345, 349 (7 SE2d 800) (1940) (the purpose of this statute, formerly Code 1933, § 68-302, is to prevent the “dangerously glaring or dazzling rays” of high beam headlights from impairing the eyesight of the drivers of oncoming vehicles).

Decided September 20, 2002.

Barry E. Morgan, Solicitor-General, Anthony Volkodav, Jr., Assistant Solicitor-General, for appellant.

Larry W Yarbrough, for appellee.

Following a hearing ón the motion to suppress, the trial court acknowledged that it is sometimes difficult to determine whether an oncoming vehicle’s high beam headlights are being used. Therefore, the court indicated that the officer may have reasonably believed that Mussell’s high beams were on and that she had violated OCGA § 40-8-31 by failing to dim her lights as she approached the officer’s vehicle. Even so, the trial court found as a matter of law that the officer’s vehicle was not an “oncoming vehicle” under OCGA § 40-8-31, because it was stopped at a traffic light on a side street when Mussell made her left turn toward the officer and quickly passed him. Based solely upon this construction of the statute, the trial court determined that Mussell did not have a duty to dim her lights and, therefore, granted Mussell’s motion to suppress.

In its sole enumeration of error, the State contends the trial court erred when it found that a police vehicle stopped at a red light was not an “oncoming vehicle” under OCGA § 40-8-31. We agree. This Court has previously held that a police officer stopped at a traffic light can be an “oncoming vehicle” under OCGA § 40-8-31. Conley v. State, 181 Ga. App. 375, 376 (1) (352 SE2d 394) (1986). Although the vehicle using high beams in that case was driving straight toward the officer’s stopped vehicle, we find that this is a distinction without a difference. The undisputed testimony in this case was that, after turning, Mussell approached the officer within 500 feet, although she quickly passed him. We find that the trial court erred in determining as a matter of law that the officer’s vehicle was not an “oncoming vehicle” under OCGA § 40-8-31.

Judgment reversed.

Smith, P. J., and Eldridge, J., concur.


author: Eldridge, Judge.

text:
    A02A1678.
    GREAT ATLANTIC & PACIFIC TEA COMPANY, INC. v. F. S. ASSOCIATES, L.P.
    (571 SE2d 527)
   Eldridge, Judge.

Plaintiff Shirley Reid allegedly slipped and fell in the vestibule area of appellant/defendant/third-party plaintiff the Great Atlantic & Pacific Tea Company, Inc.’s (“A&P”) supermarket located in Conyers, Georgia. She and her husband, Manchester Reid, thereafter sued A&P in the State Court of Cobb County seeking special and general damages for personal injuries and loss of consortium, respectively. In discovery, A&P learned that its Conyers landlord, appellee/ third-party defendant F. S. Associates, L.P. (“F. S. Associates”) had made repairs to the roof of its Conyers store — this purportedly to prevent the accumulation of water on the vestibule floor and approximately six months before Mrs. Reid’s fall. A&P, without objection, obtained leave of court to file a third-party complaint against F. S. Associates seeking contribution and indemnification for breach of its duty to repair the roof under the lease agreement. The plaintiffs later amended their complaint, this time seeking punitive damages upon the claim that, knowing of the roof leak over the vestibule to its Conyers store, A&P negligently failed to make repairs to the roof or warn of the hazardous condition; A&P amended its third-party complaint, averring negligence in F. S. Associates for the repairs made to the roof; and Mr. Reid individually dismissed his claims against A&P without prejudice.

A&P now appeals from the state court’s grant of summary judgment to F. S. Associates, contending the grant of summary judgment was error as a matter of law in that: (1) the lease was void under OCGA § 13-8-2 (b) as a promise purporting to indemnify the promisee since it required A&P to furnish F. S. Associates liability insurance on the store premises while also requiring the parties to hold each other harmless as to claims and liabilities covered by their respective insurance policies on the property, and (2) even if not in violation of OCGA § 13-8-2 (b), the question of whether F. S. Associates waived its duty to provide F. S. Associates with liability insurance was for the jury. Finding these claims of error to be without merit, we affirm. Held:

“To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56 (c).” Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). Section 4.01 of the lease agreement in issue provided:

[A&P] To Carry Insurance. A&P must carry fire and extended coverage insurance on its store in an amount equal to at least EIGHTY (80%) PERCENT of the insurable value of the improvements, and always adequate to completely repair, restore and rebuild, in the event of destruction or damage by fire, lightning, windstorm, vandalism or other casualty and maintain public liability insurance covering the store premises in limits of not less than ONE MILLION ($1,000,000) DOLLARS per person, FIVE MILLION ($5,000,000) per occurrence and ONE HUNDRED THOUSAND ($100,000) DOLLARS for damage to property, and shall provide OWNER with a certificate of such insurance showing same to be in force and noncancellable without at least TEN (10) DAYS prior written notice to Owner. . . . Owner and the holder of any mortgage or Deed of Trust or Deed to Secure Debt on the Shopping Center shall be named as additional insureds on all policies carried by [A&P] relating to the subject premises. Each party, (“the releasing party”) on behalf of each such releasing party and all parties claiming under such releasing party, hereby releases the other party from any and all claims and liabilities arising from or caused by any risks insured by the releasing party. Each party’s insurance policies shall contain suitable language acknowledging and accepting the foregoing.

1. Where an insurance clause shifts the risk of loss to the insurance company, notwithstanding which party may be at fault, as here, an indemnification provision is not made void by OCGA § 13-8-2 (b). McAbee Constr. Co. v. Ga. Kraft Co., 178 Ga. App. 496, 498 (343 SE2d 513) (1986). See Tuxedo Plumbing &c. Co. v. Lie-Nielsen, 245 Ga. 27, 28-29 (1) (262 SE2d 794) (1980) (“It has been recognized by numerous authorities that where parties to a business transaction mutually agree that insurance will be provided as a part of the bargain, such agreement must be construed as providing mutual exculpation to the bargaining parties who must be deemed to have agreed to look solely to the insurance in the event of loss and not to liability on the part of the opposing party.”) (citations and punctuation omitted). Therefore, OCGA § 13-8-2 (b) is inapplicable, and the state court did not err in granting F. S. Associates summary judgment on the issue of indemnification under the lease agreement.

2. In granting F. S. Associates’ motion for summary judgment on A&P’s third-party complaint, the state court found, as a matter of law, that F. S. Associates had not waived A&P’s duty under the lease to obtain liability insurance for failure to require A&P to produce proof of a policy of insurance showing its compliance with the same.

A&P argues that F. S. Associates’ failure to require it to provide F. S. Associates proof of insurance under the lease waived the requirement to provide F. S. Associates insurance thereunder and that the issue of waiver was for the jury. These arguments are misplaced! That A&P would provide liability insurance for the benefit of F. S. Associates under the lease agreement was the fundamental basis upon which F. S. Associates agreed to lease the store premises to A&P. Although by its brief on appeal A&P indicates that it is a self-insured corporation, status as such is immaterial as to its duty to insure F. S. Associates under the lease. See Everett v. Everett, 256 Ga. 632, 633 (352 SE2d 370) (1987) (failure to obtain agreed-upon insurance coverage renders one a self-insurer in such amount). Neither does anything of record show waiver in F. S. Associates on this issue, this because F. S. Associates’ failure to require A&P to produce proof of insurance for its benefit established not more than presumed regularity in a major corporation. “The law will not infer the waiver of an important right unless waiver is clear and unmistakable. State v. Mason, 181 Ga. App. 806, 807-808 (353 SE2d 915) (1987)[, overruled on other grounds, Watts v. State, 274 Ga. 373, 375 (552 SE2d 823) (2001)].” Asberry v. State, 221 Ga. App. 809, 812 (472 SE2d 562) (1996); see Croxton v. MSC Holding, 227 Ga. App. 179, 183 (3) (489 SE2d 77) (1997) (absent unmistakable waiver, the law will not infer waiver of rights given by an employment contract where these are rights upon which the employee conditioned his or her agreement to accept employment); Erwin v. Gibson, 205 Ga. App. 136, 137 (421 SE2d 752) (1992) (“There can be no general waiver of what a party has no notice.”), citing City of Albany v. Mitchell, 81 Ga. App. 408 (59 SE2d 37) (1950); compare Mahsa, Inc. v. Al-Madinah Petroleum, 250 Ga. App. 691, 693 (552 SE2d 876) (2001) (no waiver upon ambiguity in a contract). In light of the foregoing, the state court did not err as a matter of law in declining to interpret F. S. Associates’ failure to. enforce A&P’s duty under the lease to provide it proof of liability insurance as a waiver of such requirement. Thus, summary judgment for F. S. Associates on A&P’s third-party complaint was proper in this regard as well.

Decided September 20, 2002.

Richards & Dalton, Charles H. Richards, Jr., for appellant.

Tolliver & Gainer, Samuel J. Crowe, Mabry & McClelland, Beth S. Reeves, Amy K. Radley, for appellee.

Judgment affirmed.

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

       Defendant need not seek leave of court to serve a third-party complaint “if he files the third-party complaint not later than ten days after he serves his original answer. Otherwise!,] he must obtain leave on motion upon notice to all parties to the action.” OCGA § 9-11-14 (a).

       OCGA § 13-8-2 (b) pertinently provides:
      A covenant, promise, agreement, or understanding. . . relative to the construction, • alteration, repair, or maintenance of a building structure,. . . purporting to indemnify or hold harmless the promisee against liability for damages arising out of bodily injury to persons or damage to property caused by or resulting from the sole negligence of the promisee, his agents or employees, or indemnitee is against public policy and is void and unenforceable. . . .

       A&P assumed the lease in issue as successor in interest to Grand Union Company.

       Pertinently, the state court found:
      Well, the fact that a party does not run to the other party as to each and every provision of a lease like this which contains, you know, a lot of pages here, a pretty thick lease plus attachments, just because a party doesn’t run to the other party and say show me, show me. That does not mean they have waived it. It just means that they have trust between the parties.


text:
    A02A1784.
    KING v. BARRIOS.
    (571 SE2d 531)
   Eldridge, Judge.

On September 27, 2001, Dian King sued Rafael Barrios for personal injuries arising out of an automobile collision that occurred on November 4, 1999. It is undisputed that at the time of the collision, and at all times subsequent thereto, Barrios resided in Pennsylvania. King attempted service on Barrios under both the Georgia Nonresident Motorist Act (“NRMA”), OCGA §§ 40-12-1 and 40-12-2, and under the Georgia Long Arm Statute, OCGA § 9-10-94. Both parties agree that service was never perfected under the NRMA; however, on October 16, 2001, within the applicable statute of limitation, Barrios was personally served in Pennsylvania under the Long Arm Statute.

Barrios filed a timely answer asserting defenses of lack of personal jurisdiction, improper venue, and insufficiency of service of process. On December 21, 2001, Barrios filed a motion to dismiss asserting that the statute of limitation had expired, that he had not been served properly under the NRMA, and that the NRMA was the exclusive means of obtaining proper service over a defendant who was never a resident of Georgia and was involved in an automobile collision within the state. The trial court granted Barrios’ motion, and King appeals. In three enumerations of error, King asserts that the trial court erred in granting Barrios’ motion to dismiss. We agree.

In Farrie v. McCall, 256 Ga. App. 446 (568 SE2d 603) (2002), this Court held that “the NRMA provides only an alternative, not an exclusive, means of perfecting service on a nonresident motorist.” Service on a nonresident motorist is proper under both the NRMA or the Long Arm Statute.

The basis for jurisdiction under the NRMA is the use of our state’s highways by a nonresident [(OCGA § 40-12-1)]; the. basis for jurisdiction under the Long Arm Statute is the commission of a tortious act within the state [(OCGA § 9-10-91 (2))]. Nothing in either statute precludes using either method of obtaining personal jurisdiction when the alleged tortfeasor was a nonresident of this state at the time of the tortious act. The exercise of long arm jurisdiction over a nonresident motorist does not offend traditional notions of fair play and substantial justice. Intl. Shoe [Co. v. Washington, 326 U. S. 310, 316 (66 SC 154, 90 LE 95) (1945)]. Further, it is illogical to hold that personal service under the Long Arm Statute, the form of service most apt to give defendants proper notice of a suit against them, is invalid because of the existence of an alternative statutory method of service enacted 30 years earlier. While we still strictly construe the provisions of the NRMA when service is attempted pursuant to it, that rule of strict construction does not apply when jurisdiction is obtained under the Long Arm Statute.

Decided September 20, 2002.

Goldman & Associates, Steven I. Goldman, Robert A. McDonald, for appellant.

Sharon W. Ware & Associates, Ambadas B. Joshi, for appellee.

(Punctuation omitted.) Id. at 448. Since King served Barrios within the applicable statute of limitation under the Long Arm Statute, the trial court erred in granting Barrios’ motion to dismiss.

Judgment reversed.

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


text:
    A02A2005.
    ZACHERY v. THE STATE.
    (571 SE2d 529)
   Eldridge, Judge.

A jury found Lakeisha Zachery guilty of obstruction of a law enforcement officer, a violation of OCGA § 16-10-24 (a), a misdemeanor offense. Zachery appeals from the denial of her motion for new trial. In her sole enumeration of error, Zachery contends the trial judge erred when he denied her motion for directed verdict of acquittal. Finding no error, we affirm.

In reviewing a trial court’s denial of a defendant’s motion for directed verdict of acquittal, an appellate court applies the “sufficiency of the evidence” test of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Moore v. State, 273 Ga. 11, 12 (1) (537 SE2d 334) (2000). Viewed in the light most favorable to the verdict, the evidence shows the following. On June 2, 2001, Officer D. M. Vagnini of the DeKalb County Police Department responded to a 911 call at 1908 Pennington Place. When Officer Vagnini arrived, Jeffrey Thompson was standing in the driveway; he directed her to. his brother, Kirby Thompson, who was at the top of the driveway demolishing J. Thompson’s car. As Officer Vagnini attempted to calm K. Thompson down, K. Thompson started running down the driveway toward his brother threatening to kill him. Officer Vagnini was unable to restrain K. Thompson as he kept breaking free. Backup officers arrived, and Officer Vagnini and three other officers were able to subdue and handcuff K. Thompson. Officer Vagnini and Officer A. S. Lewis both testified that during the struggle to subdue and handcuff K. Thompson, Zachery and another female started yelling and attempted to pull Officer Vagnini off K. Thompson’s legs by grabbing and pulling Officer Vagnini’s shirt and arms as the officer sought to stop K. Thompson’s kicking.

Zachery alleges that because J. Thompson’s testimony at trial was “diametrically opposed to the two officers’ testimony,” it provided a basis for a reasonable doubt which demands reversal. However, this argument goes to witness credibility and asks this Court to do what we are not authorized to do, which is, to weigh evidence and determine witness credibility. “On appeal the evidence must be viewed in a light most favorable to the verdict, and [the defendant] no longer enjoys a presumption of innocence; moreover, on appeal this [C]ourt determines evidence sufficiency, and does not weigh the evidence or determine witness credibility.” (Citations omitted.) Grant v. State, 195 Ga. App. 463, 464 (1) (393 SE2d 737) (1990).

“A jury is authorized to believe or disbelieve all or any part of the testimony of witnesses, and it serves as the arbiter of conflicts in the evidence before it. [Cit.]” Drake v. State, 238 Ga. App. 584, 586 (1) (519 SE2d 692) (1999). The jury heard all the evidence and accepted the testimony of Officers Vagnini and Lewis, which was sufficient to enable a rational trier of fact to find Zachery guilty beyond a reasonable doubt of the offense of obstruction of an officer (misdemeanor) in that Zachery knowingly and wilfully obstructed or hindered Officer Vagnini in the lawful discharge of her official duties. See OCGA § 16-10-24 (a).

Judgment affirmed.

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

Decided September 20, 2002.

Robert J Storms, for appellant.

Gwendolyn R. Keyes, Solicitor-General, Heather C. Waters, Assistant Solicitor-General, for appellee.

       J. Thompson testified that he called the police and helped the police subdue his brother. J. Thompson further testified that Officer Vagnini was not involved in the actual handcuffing of his brother and that it was only after the handcuffs had been placed on his brother that Officer Vagnini came over to where K. Thompson was and began hitting him with her baton. J. Thompson went on to testify that Zachery was either standing in the yard across the street or in the street the entire time and did not interfere with any of the police in their arrest of his brother.


text:
    A02A2139.
    ROSS v. THE STATE.
    (573 SE2d 402)
   Eldridge, Judge.

On January 1, 2002, appellant-defendant Michael Ross was stopped at a Clayton County police roadblock. He was charged with driving under the influence of alcohol to the extent it was less safe for him to drive (OCGA § 40-6-391 (a) (1)), and with having an alcohol concentration of 0.08 grams or more within three hours of driving as a result of alcohol consumed before the driving activity ended. OCGA § 40-6-391 (a) (5). This Court granted Ross’s application for interlocutory appeal from the Clayton County State Court’s denial of his motion to suppress, as amended. On interlocutory appeal, Ross contends that the denial of his motion to suppress was error for want of evidence at the programmatic level showing a proper primary purpose for the roadblock in issue. Secondly, Ross challenges the roadblock as not in compliance with the requirement that all vehicles be stopped. Finding these claims of error to be without merit, we affirm. Held:

1. In LaFontaine v. State, 269 Ga. 251, 253 (3) (497 SE2d 367) (1998), the Supreme Court of Georgia established five criteria as determinative of the constitutionality of a roadblock.

A roadblock is satisfactory where the decision to implement the roadblock was made by supervisory personnel rather than the officers in the field; all vehicles are stopped as opposed to random vehicle stops; the delay to motorists is minimal; the roadblock operation is well identified as a police checkpoint; and the “screening” officer’s training and experience [are] sufficient to qualify him to make an initial determination as to which motorists should be given field tests for intoxication. [State v. Golden, 171 Ga. App. 27, 29-30 (318 SE2d 693) (1984).]

Id. Thereafter, relying upon City of Indianapolis v. Edmond, 531 U. S. 32 (121 SC 447, 148 LE2d 333) (2000), this Court modified the first of the LaFontaine criteria to further require a showing by the state that the roadblock program was implemented at the programmatic level for a legitimate primary purpose, i.e., proof that the roadblock was ordered by a supervisor and implemented to ensure roadway safety rather than as a constitutionally impermissible pretext aimed at discovering general evidence of ordinary crime. Baker v. State, 252 Ga. App. 695, 701 (1) (556 SE2d 892) (2001) (whole court, Pope, P. J., Andrews, P. J., and Eldridge, J., dissenting), cert. denied, 252 Ga. App. 905 (2002); Perdue v. State, 256 Ga. App. 765 (578 SE2d 456) (2002). “In looking to the programmatic purpose, we consider all the available evidence in order to determine the relevant primary purpose.” Ferguson v. City of Charleston, 532 U. S. 67, 81 (III) (121 SC 1281, 149 LE2d 205) (2001). That is, the program’s ultimate effect is the issue, thus making review of the program’s application and implementation pertinent in addition to such evidence as provided by supervisory personnel.

Ross’s claim to the contrary notwithstanding, there is evidence of record showing that the decision to implement the roadblock was made at the programmatic level for a proper purpose by a supervisory officer. Although it is undisputed that Lieutenant Tom Israel was in the field at the time the roadblocks in issue were established, he testified that he was there not as a field officer participating in the roadblocks, but as the supervisor on the scene; that he supervised the Traffic Unit of the Clayton County Police Department as its officer-in-charge, supervising six full-time traffic officers and, on a part-time basis, five officers assigned to the DUI task force; that Chief of Police policy authorized him to order roadblocks as a supervisor; that he ordered the roadblocks, determining where and when they would occur; that the officers who executed the roadblocks had not participated in the decision to do so; and that the roadblocks were set up to check drivers for sobriety and operator’s permits. Roadblocks for such purposes are proper under the special needs doctrine. Michigan Dept. of State Police v. Sitz, 496 U. S. 444, 445 (110 SC 2481, 110 LE2d 412) (1990) (sobriety checkpoint); Delaware v. Prouse, 440 U. S. 648, 658, 663 (99 SC 1391, 59 LE2d 660) (1979) (driver’s license and vehicle registration checkpoint); Wrigley v. State, 248 Ga. App. 387, 390 (2) (546 SE2d 794) (2001). Under these circumstances, the instant roadblocks may not be deemed unauthorized for want of proof at the programmatic level of a proper primary purpose.

Decided September 20, 2002

Jay M. Jackson, George C. Creal, Jr., for appellant.

Keith C. Martin, Solicitor-General, Tasha M. Mosley, Assistant Solicitor-General, for appellee.

2. Neither was the denial of Ross’s motion to suppress error upon the claim that vehicles were stopped randomly at the roadblocks in issue. Lieutenant Israel testified that he stopped and restarted the challenged roadblocks three times to safeguard his officers and the public, each time letting backed-up traffic clear the roadblocks. Otherwise, it is undisputed in the record that all vehicles stopped at the roadblocks were checked. “We held in State v. Manos, 237 Ga. App. 699 (516 SE2d 548) (1999), that ‘common sense recognizes the reasonableness of some type of procedure to suspend or halt a roadblock where the flow of traffic overwhelms the resources dedicated to that roadblock and poses a threat to public safety.’ ” Boyce v. State, 240 Ga. App. 388, 390 (523 SE2d 607) (1999), overruled on other grounds, Baker v. State, supra at 702 (1).

“In reviewing a trial court’s decision on a motion to suppress, an appellate court must adopt the trial court’s findings of fact unless they are clearly erroneous and not supported by any evidence admitted at the suppression hearing. [Cits.]” State v. David, 269 Ga. 533, 535 (1) (501 SE2d 494) (1998). Given authority to “interrupt” roadblocks for purposes of ensuring safety and the undisputed evidence as showing that no vehicle subject to the instant roadblocks went unchecked, the state court did not err in denying Ross’s motion to suppress upon the claim that the roadblocks were not randomly conducted.

Judgment affirmed.

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

       “[I]n limited circumstances, a search unsupported by either a warrant or probable cause can be constitutional when ‘special needs’ other than the normal need for law enforcement provide sufficient justification.” Ferguson v. City of Charleston, supra at 74, n. 7; see also City of Indianapolis v. Edmond, supra at 37-40 (summary of special needs exceptions).


author: Pope, Senior Appellate Judge.

text:
    A02A0895.
    In the Interest of C. C., a child.
    (571 SE2d 537)
   Pope, Senior Appellate Judge.

S. J. C., the mother of C. C., appeals the termination of her parental rights. In two separate opinions, we have already reversed a finding of deprivation based on evidence presented at a hearing held on February 16, 2000, In the Interest of C. C., 249 Ga. App. 101 (547 SE2d 738) (2001) (“C. C. F), and a subsequent finding of termination based on that deprivation order, In the Interest of C. C., 252 Ga. App. 98 (555 SE2d 762) (2001) (“C. C. II"). The trial court has now entered another termination order, but this time based on evidence of deprivation presented at a second hearing, held on August 30 and 31, 2000. The primary issue on appeal is whether the State presented sufficient evidence at the August hearing to sustain the termination order. We hold that although several witnesses presented testimony about S. J. C. and her child, much of the testimony was flawed, weak, or seriously contested, and therefore the decision below must be reversed.

The facts developed at the first hearing are set forth in C. C. I. For the purpose of background, they are summarized here. C. C. was born in 1994. In November 1997, the mother and child moved to Georgia and began living with friends, Mr. and Mrs. Skutka. During this time, S. J. C. was underemployed and had increasing mental health problems. Eventually, Mrs. Skutka, concerned for C. C.’s safety, took over care of the child. In August 1998, S. J. C. sought mental health treatment in Georgia for several months. In December she was admitted to an eight-month, mental health program in Florida. In order to go, she gave temporary custody of C. C. to the Skutkas, who agreed to care for the child and became the child’s temporary guardians. S. J. C. maintained contact with her child between two and four times a month. While in Florida, she attempted suicide. She testified that she had been diagnosed as “bipolar with borderline personality.”

In the summer of 1999, C. C. began regular meetings with a counselor named Janice Turber to assist her in dealing with her mother’s lengthy absence and to assess long-term care options. In October, the child contracted lice, and Mrs. Skutka fell and broke her wrist at the same time, which prevented her from giving C. C. proper care for the lice. Ms. Skutka sought Turber’s advice about how to proceed, and the counselor notified the Cobb County Department of Family & Children Services, which led to the child being placed in foster care. About two weeks later, DFACS filed a deprivation petition, whereupon S. J. C. returned to Georgia. She eventually resumed living with the Skutkas, continued her mental health treatment including medication, obtained a job, and began supervised visits with C. C.

Three months later, in February 2000, the Juvenile Court of Cobb County held a hearing on deprivation. The trial court held that the child was deprived, finding that S. J. C. was unable to provide a stable living environment, did not contribute to the child’s financial support, and failed to maintain a meaningful and supportive parental bond with the child. The court also found that Ms. Skutka had numerous health problems that made it unrealistic for the child to be placed in her home. S. J. C. appealed.

On appeal, we found that the evidence presented at the deprivation hearing showed that although the mother had a lengthy history of mental health problems, she had sought treatment; and, “remarkably,” by placing the child with the Skutkas, she ensured that her child received proper care while she received treatment. C. C. I, 249 Ga. App. at 103-104.We also held that there was no evidence that Mrs. Skutka’s medical ailments were an impediment to her continued ability to care for the child. Id. at 104. We added that the mere fact that the child was being cared for by someone other than a parent “does not prove a lack of parental fitness.” Id. Finally, the evidence showed that "while in the Skutkas’ care, all of C. C.’s physical, mental, and emotional needs were met.” Id. Therefore, we held that the trial court erred by concluding the child was deprived. Id.

Meanwhile, four days after the deprivation order, and long before the appeal from that order was docketed in this Court, DFACS petitioned for termination. The juvenile court held an evidentiary hearing on August 30 and 31, 2000, after which it terminated the rights of both parents. In the second appeal, we vacated the termination order because the juvenile court clearly relied on the earlier deprivation order and remanded the case for the court to enter findings of fact, conclusions of law, and a new judgment based on all the evidence. C. C. II, 252 Ga. App. at 99.

S. J. C. now appeals the termination order entered following remand. Essentially, she asserts that no new evidence was introduced at the second hearing sufficient to support deprivation or termination. She also alleges that the trial court made factual findings that are not supported by the evidence.

In addition to the evidence presented at the deprivation hearing, DFACS presented the following evidence at the termination hearing.

As early as age 14, S. J. C. engaged in self-mutilation because of depression.

In addition to the testimony that she gave at the first hearing, Turber testified that she evaluated C. C. in February 1999, when the child was only four and one-half years old, and found that the child had some academic and developmental delays and anxiety. C. C. felt loss, fear of loneliness, rejection, transience, and parent-child role reversal. The child gave some indications of neurological problems and suffers from an inability to remember things. She expressed concerns about never wanting to see her mother again. She looked terrified when asked whether she had heard from her mother and said that she did not want to be around the “mean mommy.” During 2000, Turber continued to work with the child and also supervised visits between the child and S. J. C. On May 18, 2000, the child expressed feeling responsible for S. J. C.’s moods. She behaved differently when S. J. C. was not present. She was much more childlike and playful and had normal speech, whereas, with the mother present, she regressed, sounded like a much younger child, and made statements like “I need to get a job so my mommy can get a house.” However, most of the meetings between the mother and child went well. Finally, Turber testified that compared to when she first began seeing C. C., the child had improved significantly. She was more relaxed and more self-assured and had less anxiety. Turber attributed the changes to a stable foster home environment.

Turber testified that a child can suffer from being exposed to a parent with a mental dysfunction, especially one involving self-mutilation, attempted suicide, and homicidal ideations. The problem is made worse when the parent refuses to take prescribed medication. If the parent were to act on any of those violent urges, the child would be traumatized. Turber had also witnessed the mother at a citizens review panel. Turber felt that the mother’s explanation that she quit her job before obtaining another one because of the stress of commuting by bus was telling because raising a child is more stressful than commuting. She also observed that S. J. C. was unable to control her emotions during the panel meetings unlike other parents she had observed in the same setting; S. J. C. became very angry, spoke disrespectfully, cried, and left the room at times.

Turber was also a counselor for the Skutkas. She testified that she has concerns about C. C. being placed in their home because of Mrs. Skutka’s ongoing medical problems. She also testified that C. C. loves the Skutkas and is more bonded to them than to anybody else. Turber recommended continued contact between C. C. and the Skutkas. She had no concern that the Skutkas would abuse or harm C. C. in any manner. The Skutkas appeared to be meeting C. C.’s needs. The child had bonded, but to a lesser degree, with the foster parents.

In March 2000, S. J. C. apparently met with a psychiatrist named Dr. Friedman, but Friedman did not testify and his file was not introduced into the record. She apparently missed an earlier appointment set for February 24. S. J. C. testified that Dr. Friedman prescribed Paxil. On May 30, 2000, she sought the care of Dr. Anthony Ekwenchi, a psychiatrist, because she had run out of her medication, Depakote and Paxil, that had been prescribed by other doctors. Dr. Ekwenchi saw S. J. C. for about 25 minutes and based on an understanding that Dr. Friedman had diagnosed her as having a bipolar disorder, he prescribed the same medications because he felt that she still needed them. S. J. C. had indicated to Ekwenchi that she had attempted suicide on several occasions.

Dr. Ekwenchi testified that the Depakote prescription was important because it controls a bipolar patient’s mood and if the patient does not take the medication, the illness returns. However, he never explained what the illness was or how it could affect the parent-child relationship. He told S. J. C. to return in one month to renew the prescriptions, but she never did. He also scheduled related blood work for her, but she did not follow through. Dr. Ekwenchi explained that because of “poor insight into their illness, some people do get off the medication. But when they do, . . . they will relapse and then either the police will take them to the emergency room or they can do something that would end up being dangerous to them or to other people — for instance, you know, suicide.” The doctor said, “once bipolar, always bipolar unless maybe the person is still taking the medications, in which case you don’t see the cardinal symptoms.”

On cross-examination, Dr. Ekwenchi stated that although he performed his own psychiatric assessment during those 25 minutes, he did not diagnose S. J. C.; rather, he was relying on Dr. Friedman’s diagnosis, with whom he had not spoken. But Dr. Ekwenchi’s records did not show whether Dr. Friedman had performed several tests on S. J. C., some of which are necessary to diagnose her as bipolar. Dr. Ekwenchi also testified that it takes “four, five, six visits — in order to be able to conclusively tell that this patient has [a personality] disorder.” He testified that he must meet with a patient five to six times for at least 25 to 30 minutes each and corroborate the information with the patient’s family or friends in order to diagnose someone with having a bipolar disorder. But, he testified, each patient is different and some require less meetings, and each psychiatrist is different and some can diagnose in one or two meetings. Finally, Ekwenchi admitted that the information contained in Dr. Friedman’s notes was barely sufficient to support a diagnosis of bipolar.

S. J. C. testified that she was still under Dr. Ekwenchi’s care at the time of the hearing even though she had only seen him once and did not have an appointment. She claimed she was told that she could not get a second appointment with Dr. Ekwenchi for six months after the first.

Erica Durham, a foster care case manager for DFACS, testified that she worked with S. J. C. on accomplishing the goals of a reunification case plan. Durham testified that S. J. C. did not accomplish the goals of the plan. Specifically, she failed to continue free mental health counseling with Ann Clark because she wanted a “Christian counselor.” She discontinued sessions with Dr. Jeff Pipe after May 2000, failed to take her medications, and failed to manage her mental health needs on an ongoing basis. Durham admitted that S. J. C. accomplished some of the case plan goals. She had paid her child support, submitted to drug testing, and contacted a therapist on her own.

Amy Schwartz, a DFACS social services case manager, testified that S. J. C. had inadequate housing and unstable employment, failed to maintain a lengthy relationship with any one counselor or psychiatrist, was not addressing her mental health issues, and did not believe that she had any mental health problems. Accordingly, she had concerns about C. C.’s safety if she was returned to her mother. She also testified that the Skutkas’ stepchild had alleged that her stepparents had abused her physically and sexually. Consequently the agency told S. J. C. pot to live with the Skutkas, but she has not complied with that request. However, Schwartz had no personal knowledge of the allegations and had never visited the Skutka home. Finally, Schwartz testified that the child was in foster care and that, in her opinion, the child could be harmed by prolonged exposure to foster care.

On cross-examination, Schwartz admitted that she is the “termination caseworker” and does not attempt to reunite the family; that she had only spoken with S. J. C. one time; that she based her opinion on the fact that S. J. C. was not a part of her child’s life while she was in Florida; that she had never visited S. J. C. at her job, never spoken with S. J. C. about her employment, and never contacted any of S. J. C.’s employers; and that she had never spoken with any of S. J. C.’s doctors, reviewed the medical records, nor talked to S. J. C. about her mental health history.

From January to May, S. J. C. worked at Office Depot but quit because she did not like the commute. She was employed at Garden Botanika at the time of the termination hearing, having started training the day before the hearing. She testified that for part of the time between May and August, she was not working because she had broken her foot. A DFACS worker corroborated that she had injured her foot but understood that S. J. C. quit her job before the injury. Prior to the hearing, she had not worked full time for a period of more than six months for the same employer since April 1996. The last time she had an independent residence was from 1995 to 1997, but she had been evicted from that residence. She has not been able to establish an independent residence in accordance with the case plan because she cannot afford it. She does not have any property or bank accounts. But she paid child support of $80 per month in June and July 2000 in accordance with a court order.

S. J. C. testified that the doctors that she had seen were not concerned about her medical condition. She did not think that any doctor had taken sufficient time with her to develop a correct diagnosis. She testified that Ekwenchi never diagnosed her as being bipolar. She does not believe that she is bipolar or still suffering from any disorder or depression. However, she was seeing Dr. Pipe, a therapist, at the time of the hearing; the parties stipulated that S. J. C. saw Dr. Pipe four times in April and three times in August. She testified that she missed three months because she was not working and could not afford it. S. J. C. admitted she stopped taking Depakote in June because, she claimed, she could not afford it and it did not help her; she was still taking Paxil. Finally, she was less than candid at all times at the hearing. For instance, she claimed that she completed an in-patient program at Caring People Ministries in Florida but later admitted that she had been asked to leave.

Georgia law requires a court to conduct a two-step analysis to determine whether a parent’s rights to his or her child should be terminated. First, a court must determine whether the state has met its burden of presenting clear and convincing evidence of parental misconduct or inability. Second, if the court finds such evidence, it must then determine whether termination of parental rights is in the best interest of the child. To satisfy the first part of this inquiry, the evidence must establish that (i) the child is deprived, (ii) the parent’s lack of proper parental care or control is causing the deprivation, (iii) this cause is likely to continue or will not be remedied, and (iv) the continued deprivation will cause or is likely to cause serious physical, mental, emotional, or moral harm to the child.

(Punctuation and footnotes omitted.) In the Interest of B. N. A., 248 Ga. App. 406, 409-410 (1) (546 SE2d 819) (2001). The court must also consider a “medically verifiable deficiency of the parent’s physical, mental, or emotional health of such duration or nature as to render the parent unable to provide adequately for the physical, mental, emotional, or moral condition and needs of the child.” OCGA § 15-11-94 (b) (4) (B) (i). And in a case of this type, where the child is not in the parent’s custody, the court must also consider whether the parent “without justifiable cause has failed significantly for a period of one year or longer prior to the filing of the petition for termination of parental rights,” to maintain a meaningful bond with the child, to provide care and support required by law or decree, and to comply with a reunification plan. (Emphasis supplied.) OCGA § 15-11-94 (b) (4) (C).

Finally, the standard of review is well known.

In determining whether a termination of parental rights is supported by sufficient evidence, we construe [the] evidence and all reasonable inferences from it in a light most favorable to the trial court’s ruling and ask whether a rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights had been lost.

(Citation omitted.) In the Interest of J. E. L., 223 Ga. App. 269 (1) (477 SE2d 412) (1996).

This Court has already determined that the evidence presented at the deprivation hearing does not constitute clear and convincing evidence of deprivation. C. C. I, 249 Ga. App. at 104. Thus, unless DFACS presented additional evidence of deprivation at the termination hearing a finding of deprivation cannot be supported.

DFACS’s primary argument is that S. J. C. had serious, ongoing, untreated mental health problems about which she was in denial that affected her parenting abilities. DFACS tried to show that she had been diagnosed as bipolar but failed. Dr. Friedman, the doctor who allegedly made the diagnosis, did not testify and was not available for cross-examination. Any evidence of his diagnosis was therefore inadmissible to prove the point. See In the Interest of C. D. E., 248 Ga. App. 756, 764 (2) (546 SE2d 837) (2001). Furthermore, DFACS failed to present evidence describing what being bipolar means or how it might affect S. J. C.’s parenting abilities. Id. Even if the diagnosis had been made, Dr. Ekwenchi only talked in terms of “the illness” returning if proper medication was not taken. He did refer to suicide but did not explain the relationship between a diagnosis of bipolar and suicide. Merely eliciting the word bipolar does not provide clear and convincing evidence of a condition that renders a person incapable of parenting. On cross-examination, Ekwenchi admitted that he did not diagnose the patient himself, and his testimony seriously undermined the diagnosis of Dr. Friedman, upon whom he relied. DFACS also failed to present medical testimony regarding any of S. J. C.’s treatment in Florida. Although Turber testified that a child can suffer from exposure to a parent with a serious mental dysfunction, that testimony has little relevancy without solid evidence that S. J. C. had such a condition and that the condition was likely to continue.

In short, DFACS failed to present clear and convincing evidence of a medically verifiable deficiency in the mother’s mental condition that would affect her parenting. See In the Interest of C. D. E., 248 Ga. App. at 756, 764-767 (2). The mother’s own testimony, although troubling, simply does not include the detail necessary to make conclusions about her mental condition, its effect on her parenting skills, or the likelihood that it will continue. Although she clearly has mental problems, the record does not contain sufficient evidence to show the nature of her problems and the prognosis for her future.

DFACS also argued that S. J. C. failed to carry out her responsibilities under the reunification plan. But the actual case plan was never introduced into evidence. Durham, the only reunification case manager who testified, said that in connection with the plan she “worked with” S. J. C. on her mental health issues, on caring for the child, and on obtaining stable housing and a steady income. But she did not articulate the definitive goals of the plan except to say that with regard to mental health issues, S. J. C. was required to “handle them on an ongoing basis.” On mental health issues, Durham noted that S. J. C. had not followed through with Clark because she wanted a Christian counselor. But, S. J. C. initiated the contact with Clark and sought out another named Dr. Pipe to replace her. Durham testified that S. J. C. failed to continue with Dr. Pipe. But the parties stipulated that S. J. C. saw Dr. Pipe four times in April and three times in August; she also paid for those visits herself. Durham testified that S. J. C. had not taken her medications, but no details were given to identify the medications, the prescribed dosages, the degree to which S. J. C. had not complied, or the effect. Durham testified that S. J. C. had failed to handle her mental health needs on an ongoing basis, but she failed to give any evidence that S. J. C. had failed to follow a counselor’s or a doctor’s specific advice. She apparently personally concluded that S. J. C. had not seen a counselor or doctor enough, but without support for that opinion, it adds little to DFACS’s case.

Durham also admitted that S. J. C. had accomplished some of the goals of the plan, namely, she obtained a job for five of the eight months between her return to Georgia and the termination hearing. S. J. C. had paid the required child support, and she sought therapists on her own. She had submitted to a substance abuse assessment as required by the plan. And it was DFACS that failed to follow through on the required neurological exam for the child despite a court order to do so. Finally, although Schwartz also testified that S. J. C. failed to follow the reunification case plan, as shown above, her testimony was largely flawed by a lack of personal knowledge.

DFACS also argued that S. J. C. was unable to maintain a stable residence or job and thus was unable to provide a safe and permanent home and support for C. C. But she was living with her friends the Skutkas and had been for seven months prior to the hearing. DFACS argued that because neither Mr. nor Mrs. Skutka testified at the termination hearing, S. J. C. had failed to show that they were still available caretakers for the child. But DFACS had the burden of proof to show that the mother’s proposed living arrangements were unavailable. In the Interest of B. N. A., 248 Ga. App. at 409. This they did not do. Finally, we have already held that S. J. C. “exercised good parental judgment in temporarily placing her child with the Skutkas,” and that “while in the Skutkas’ care, all of C. C.’s physical, mental, emotional, and moral needs were met” while S. J. C. obtained the help she needed to be a better parent. C. C. I, 249 Ga. App. at 104.

DFACS also argued that S. J. C. refused to follow its advice about living with the Skutkas. Durham testified that she told S. J. C. not to live with the Skutkas but that she did so anyway. But the court sustained an objection to Durham’s testimony about the reason DFACS did not want S. J. C. living there. And although DFACS introduced a document showing that in August 1995, a court found that the Skutkas’ 15-year-old child had been deprived, no details were given and no other evidence was introduced to show the impact of that fact on the Skutkas’ ability to help S. J. C. and C. C.

Decided September 23, 2002

Elena M. Mushkin, for appellant.

Thurbert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General,

DFACS also argued that the child had suffered because of her mother’s mental condition and inability to maintain steady housing and employment. But, although Turber testified that the child was experiencing certain psychological problems, she did not connect those problems with S. J. C.’s mental condition or distinguish them from the effect caused by S. J. C.’s absence while in Florida. Meanwhile, there was no evidence that the mother did not regularly visit with the child and try to maintain a relationship with the child.

In summary, much of the evidence presented by DFACS is flawed, weak, or seriously contested. It is obvious that S. J. C. has mental problems, but the true scope and future prognosis are unclear. Yes, she admitted failing to take one of two medications, but there is no clear and convincing evidence that she has been diagnosed as being bipolar or that the nature of her mental condition means that she is unable to parent a child. She did not see a counselor every month for the eight months between her return from Florida and the termination hearing, but no counselor or doctor testified that she was required to do so. She does not have her own housing, but she has friends willing to have her and her child live in their home. The testimony is that the child received proper care at the Skutkas and was not deprived while she lived there. The fact that the Skutkas could not care for the child’s lice and the counselor’s call to DFACS are the events that sent the child to foster care. S. J. C. has been trying since that time to regain custody.

Accordingly, we find that DFACS failed to present clear and convincing evidence that the child was deprived or that the mother was the cause of any deprivation such that a rational trier of fact could find that the parent’s rights have been lost.

This is a close case. If the standard of proof was the preponderance of the evidence, we would affirm. But the standard in a termination case is clear and convincing evidence. It could well be that clear and convincing evidence was available, but in our opinion it was not presented to the court.

Judgment reversed.

Ruffin, P. J., concurs. Barnes, J., concurs in judgment only.

Shalen S. Nelson, Assistant Attorney General, Sanders B. Deen, Catherine C. Vandenberg, for appellee.


author: Miller, Judge.

text:
    A02A0957.
    PULLUM et al. v. SEWELL et al.
    (571 SE2d 552)
   Miller, Judge.

Hazel Pullum and several other plaintiffs appeal from the trial court’s order denying their motion to transfer this case from Dough-erty County Superior Court to Fulton County. Despite their three enumerations of error, the dispositive issue on appeal is whether appellants should have been allowed to sue both defendants in Fulton County, the county in which defendant Georgia Power Company maintained its principal place of business. We discern no error and affirm.

The record reveals that Thomas Peters and his wife, Minion, were involved in a car accident with a vehicle owned by Georgia Power. The accident took place in Terrell County, Georgia. The Georgia Power vehicle was driven by a Georgia Power employee, Tommy Sewell. Sewell was a resident of Muscogee County.

Minion Peters and representatives of Thomas Peters’s estate sued Georgia Power and Sewell as joint tortfeasors. Although plaintiffs originally brought suit in Dougherty County, they eventually amended their complaint and filed a motion to transfer the case to Fulton County, because they determined that venue and jurisdiction were improper in Dougherty County. Plaintiffs argued that under the Georgia Constitution, Georgia Power and Sewell could be sued in the counties in which either one of them resided — Muscogee or Fulton. Plaintiffs argued that Georgia Power was a resident of Fulton County because that was the location of its principal place of business.

Georgia Power denied that venue was proper in Fulton County, because OCGA § 46-1-2 (c) provides that suits against electric companies shall be brought in the county in which the cause of action arose, provided that the company has an agent for service in that county. Georgia Power has a business office and a manager in Terrell County, which is where the cause of action arose in this case.

The trial court denied plaintiffs’ motion to transfer the case to Fulton County and ruled that plaintiffs could only sue defendants in either Muscogee or Terrell County. Plaintiffs appeal from this ruling.

Pursuant to OCGA § 46-1-2 (c),

[a]ny railroad or electric company shall be sued by anyone whose person or property has been injured by such railroad or electric company, or by its officers, agents, or employees, for the purpose of recovering damages for such injuries, in the county in which the cause of action originated. . . . [I]f the company has no agent in the county where the cause of action arises, an action may be brought in the county of the residence of such company.

Decided September 23, 2002.

Green & Green, Donarell R. Green IV, Preddrell R. Green, Derrell Dowdell, for appellants.

McNatt, Greene & Thompson, Hugh B. McNatt, Troy L. Greene, for appellees.

(Emphasis supplied.) The Georgia Constitution provides that joint tortfeasors may be sued in the county in which either tortfeasor resides. Ga. Const., of 1983, Art. VI, Sec. II, Par. IV.

The General Assembly has the power to determine residence and venue with respect to a company. See, e.g., C. W. Matthews Contracting Co. v. Barnett, 219 Ga. App. 763, 764 (1) (466 SE2d 657) (1996) (“When the General Assembly enacts statutes providing that suits against certain corporations should be filed in the county where the cause of action arose, [the law] proceed[s] on the theory that this constitutes an implied designation of that county as the residence of the corporation for the purposes of that suit. [Cit.]”). The General Assembly has done this very thing with OCGA § 46-1-2 (c). As with other similar special venue statutes, the General Assembly has properly determined that Georgia Power “resides” in the county where the accident occurred for purposes of cases such as this one. Cf. C. W. Matthews Contracting Co., supra, 219 Ga. App. at 764 (1). Therefore, plaintiffs could sue Georgia Power in either Terrell County, where it resides for purposes of this lawsuit, or Muscogee County, where the other tortfeasor resides.

Plaintiffs cite no authority for the proposition that the presence of a joint tortfeasor authorizes suit against an electric company in any county other than the county where the co-defendant resides or where the accident occurred. We decline to adopt a holding that would essentially render the venue provisions of OCGA § 46-1-2 (c) meaningless in cases involving joint tortfeasors.

Judgment affirmed.

Blackburn, C. J, and Johnson, P. J, concur.


text:
    A02A1488.
    DARNELL v. THE STATE.
    (571 SE2d 547)
   Miller, Judge.

Following a jury trial, Theron Darnell was convicted of armed robbery, possession of a firearm during the commission of a felony, and false imprisonment. On appeal he asserts 15 enumerations of error, all of which are without merit.

Viewed in the light most favorable to the verdict, the record reveals that a man entered a pawnshop and pulled out a gun. The man forced two employees to the back room of the shop, where he restrained one of the employee’s hands with duct tape. The man then stole cash and jewelry from the shop. The entire incident was recorded by the store’s video surveillance cameras.

The surveillance video was played on a local news program, and a viewer of the video identified Darnell to the police as the man who robbed the store. A detective later showed a photographic lineup to the store employee who had been restrained with duct tape, and the employee identified Darnell as the man who robbed the pawnshop.

Prior to trial, Darnell moved for several jurors to be dismissed for cause, but his motions were denied. Darnell also made a motion under Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986), contending that the State improperly used its peremptory challenges to strike five African-American venirepersons from the jury. After the court found that Darnell had made a prima facie showing of discrimination, the State gave race-neutral explanations for its peremptory challenges. Specifically, four of the jurors had indicated that they, or someone close to them, had been falsely accused of a crime, and one of the jurors had testified for the defense in a previous armed robbery trial. Darnell then attempted to show that the reasons for dismissing the jurors were pretextual by pointing out that the State did not strike a white juror after she stated that she had misidentified someone in the past. The court denied the Batson challenge.

Prior to trial, Darnell also stipulated that he would allow a police officer to testify at trial that an unnamed person identified Darnell on the surveillance video after the video was played on the local news.

At trial one of the victims identified Darnell as the robber. In addition, the court allowed the State to present the photographic lineups that were used to identify Darnell as the robber. Although the State did not formally tender the lineups into evidence, the defense raised no objection to their admission. The court also allowed the lineups to go back with the jury during deliberations, again with no objection from defense counsel.

The court instructed the jury that, in evaluating the reliability of an eyewitness identification, they could consider, as one of several factors, the witness’s level of certainty in the identification. The jury found Darnell guilty of armed robbery, possession of a firearm during the commission of a felony, and false imprisonment, and Darnell now appeals.

1. Darnell contends in his first three enumerations of error that the evidence at trial was insufficient to sustain his convictions for armed robbery, possession of a firearm during the commission of a felony, and false imprisonment. We disagree.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the jury’s verdict, and the defendant no longer enjoys the presumption of innocence. Short v. State, 234 Ga. App. 633, 634 (1) (507 SE2d 514) (1998). We do not weigh the evidence or determine witness credibility, but only determine if the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offense beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Here, Darnell was identified to police by a person who saw the video as well as one of the victims, who identified Darnell at trial and also in a photographic lineup. The victim testified that Darnell was the man who robbed the pawnshop while carrying a gun, held him at gunpoint, and bound his hands with duct tape in the back room of the store. Ample evidence sustained the convictions. See OCGA §§ 16-5-41 (a); 16-8-41 (a); 16-11-106 (b).

2. Darnell argues in his fourth enumeration that the trial court erred in allowing a police officer to testify to hearsay that an unnamed declarant contacted the officer and identified Darnell as the robber after seeing the surveillance video. However, the record reveals that Darnell’s trial counsel agreed that the officer would be allowed to testify on this very point. Thus, any alleged error from the admission of this testimony was of Darnell’s own making, and he will not be heard to complain of the results here. See Hathaway v. State, 241 Ga. App. 790 (1) (527 SE2d 894) (2000) ("One cannot complain of a judgment, order, or ruling that his own procedure or conduct procured or aided in causing.”) (punctuation and footnote omitted); see also Reynolds v. State, 147 Ga. App. 488, 491 (4) (249 SE2d 305) (1978) (defendant induced error where he stipulated to admission of polygraph test results and later attempted to complain about admission of the evidence).

3. In three enumerations, Darnell argues that the trial court erred in failing to excuse three prospective jurors for cause. The court asked the statutory questions of OCGA § 15-12-164 (a), and none of the jurors responded that he or she had any bias or partiality. The record also reveals that in every instance where a juror expressed discomfort with sitting on the jury based on their personal experiences, each of the jurors agreed (after being questioned by the court) that he or she would do his or her best to be fair and impartial. We find no merit to Darnell’s argument that the trial court abused its discretion by failing to remove these prospective jurors for cause. See Holmes v. State, 269 Ga. 124, 125-126 (2) (498 SE2d 732) (1998).

4. Darnell asserts in his tenth enumeration that the State improperly used, its peremptory strikes to remove five African-American venirepersons from the jury. We disagree.

The United States Supreme Court in Purkett v. Elem[, 514 U. S. 765, 767-769 (115 SC 1769, 131 LE2d 834) (1995),] established a three-step test for evaluating challenges to peremptory strikes on Batson grounds. First, the opponent of a peremptory challenge must make a prima facie showing of racial discrimination. Second, the burden of production then shifts to the proponent of the strike to give a race-neutral reason for the strike. Third, after hearing from the opponent of the strike and considering the totality of the circumstances, the trial court then decides whether the opponent of the strike carried his burden of proving discriminatory intent in fact motivated the strike.

(Footnotes omitted.) Freeman v. State, 253 Ga. App. 401, 402 (1) (559 SE2d 146) (2002).

Here, the issue of whether Darnell established a prima facie case of discrimination is moot because the State offered purportedly race-neutral explanations for striking each of the potential jurors, and the trial court ruled on the ultimate question of intentional discrimination. Jackson v. State, 220 Ga. App. 98 (469 SE2d 264) (1996). We find that the State’s race-neutral explanations were sufficient. See Jones v. State, 226 Ga. App. 428, 429 (1) (487 SE2d 62) (1997) (“At [the] second step of the Batson proceeding, the proffered reasons must be accepted by the trial court so long as they are not inherently discriminatory. The reasons given need not be persuasive or even plausible, so long as they are based on something other than the race of the juror.”) (citations omitted); cf. Dennis v. State, 238 Ga. App. 343, 346-347 (5) (d), (f) (518 SE2d 745) (1999) (reasons for dismissing a juror who had a son who was falsely accused of a crime and another who believed convicted relative acted in self-defense were race-neutral). We now, therefore, address the issue of whether Darnell carried his burden of proving that discriminatory intent motivated the strikes.

We hold that the trial court did not clearly err in concluding that Darnell did not carry his burden of showing that the State’s race-neutral reasons for dismissing the jurors were pretextual. Darnell’s attempt to show that the white juror who had misidentified a person in the past was somehow similarly situated to the African-American jurors who had themselves been misidentified, or knew someone close to them who had been misidentified, is without merit. Being personally misidentified or falsely accused of a crime is not the same thing as being a person who has simply misidentified someone else. See Freeman v. State, 268 Ga. 181, 183 (1) (486 SE2d 161) (1997) (denial of Batson challenge upheld where “the other jurors to whom [defendant] compare [d] the stricken African-American venireperson were not so similarly situated as to diminish the force of the explanations given for the strike”) (citation omitted).

5. Darnell contends in his eleventh enumeration that the trial court erred in instructing the jury that, in evaluating the reliability of an eyewitness identification, the jury could consider, as one of several factors, the witness’s level of certainty in the identification. This Court, however, has already rejected Darnell’s argument in Armstead v. State, 255 Ga. App. 385, 386-389 (2) (565 SE2d 579) (2002).

6. In his twelfth and thirteenth enumerations, Darnell argues that the trial court erred in (a) failing to exclude at trial the victim’s pre-trial identification of Darnell in the photographic lineup, because the photographic lineup was marked as an exhibit but never formally tendered into evidence, and (b) submitting these documents that were not formally tendered into evidence to the jury during deliberations. However, Darnell raised no objection at trial and has therefore presented nothing for this Court to review. See, e.g., Kelly v. State, 204 Ga. App. 789 (1) (420 SE2d 651) (1992) (“If counsel desires to preserve an objection upon a specific point for appeal, the objection must be made at trial upon that specific ground.”) (citations and punctuation omitted).

7. In his remaining enumerations, Darnell contends that his counsel was ineffective for (a) agreeing to allow the police officer to testify regarding the witness who identified Darnell on the surveillance tape after the tape was played on the local news, (b) failing to call an expert witness on the problems inherent to eyewitness identification, (c) allowing the photographic lineups to go out with the jury during deliberations, and (d) failing to make a continuing witness objection to the photographic lineups going out with the jury during deliberations. We disagree.

To prove ineffective assistance, Darnell was required to show that counsel's performance was deficient and that this deficient performance prejudiced his defense. Ellison v. State, 242 Ga. App. 636, 638 (7) (530 SE2d 524) (2000), citing Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984). The trial court’s determination with respect to counsel’s effectiveness will be upheld on appeal unless clearly erroneous. Jackson v. State, 209 Ga. App. 53, 56 (7) (432 SE2d 649) (1993). Evidence supported the trial court’s finding that Darnell did not meet his burden of showing deficient performance or prejudice based on his counsel’s actions.

Decided September 23, 2002.

Franklin & Hubbard, Cynthia G. Morris, for appellant.

Paul L. Howard, Jr., District Attorney, Bettieanne C. Hart, Anne E. Green, Assistant District Attorneys, for appellee.

(a) Darnell’s counsel testified at the motion for new trial hearing that he was concerned about the State calling Darnell’s stepfather as the actual witness who identified Darnell from the surveillance videotape if counsel did not agree to allow the police officer to testify instead that an unnamed person had identified Darnell from the videotape. As counsel made a strategic decision in this regard, evidence supported the trial court’s finding that Darnell failed to meet his burden of showing ineffective assistance. See Adkinson v. State, 245 Ga. App. 178, 179-180 (1)-(3) (537 SE2d 474) (2000).

(b) Darnell cites to Johnson v. State, 272 Ga. 254 (526 SE2d 549) (2000), for the proposition that his trial counsel should have called an expert witness to challenge the reliability of the eyewitness identification of Darnell. However, Johnson does not stand for the proposition that defense counsel is required to call an expert witness at trial where one of the primary issues involved is eyewitness identification of the defendant, let alone the proposition that the failure to call such an expert witness amounts to ineffective assistance. We find no merit to Darnell’s contention and hold that the trial court did not clearly err in concluding that Darnell did not carry his burden of showing ineffective assistance here.

(c) Darnell’s arguments that trial counsel was ineffective for allowing the jury to view photographic lineups that were not admitted into evidence and failing to raise a continuing witness objection to the unadmitted lineups are without merit. Even though Darnell’s trial counsel did not object to the photographic lineups, the photographic lineup evidence would have been merely cumulative of the victim’s eyewitness identification of Darnell at trial and the further identification of him on the surveillance videotape. We hold that the trial court did not clearly err in concluding that Darnell failed to carry his burden of showing that counsel’s performance prejudiced his defense. Cf. Smart v. State, 253 Ga. App. 649, 656 (10) (c) (560 SE2d 92) (2002).

Judgment affirmed.

Blackburn, C. J., and Johnson, P. J., concur.


author: POPE, Senior Appellate Judge.

text:
    A02A1578.
    WHITE v. JENSEN. WHITE v. FLOYD.
    A02A1579.
    (571 SE2d 544)
   POPE, Senior Appellate Judge.

Plaintiffs/appellees June Jensen and Tonya Floyd each filed complaints against defendants Kerry White and David Holcombe, jointly and severally, seeking to recover damages for injuries they allegedly received when the car in which they were riding overturned. The cases were tried together, and the jury returned a verdict for Jensen against both defendants in the amount of $50,793 and for Floyd against both defendants in the amount of $43,288. Jensen subsequently moved to amend the final judgment to include an award of pre-judgment interest. The trial court amended the judgment and awarded $15,649.31 against defendant White as unliquidated damages pursuant to OCGA § 51-12-14. White now appeals the judgment and amended judgment for Jensen, and that appeal has been docketed in this Court as Case No. A02A1578. White also appeals the judgment for Floyd, and that appeal has been docketed in this Court as Case No. A02A1579.

Case No. A02A1578

1. White first contends that the trial court should have granted the defendants’ motion for directed verdict on Jensen’s claim for future medical expenses because the only evidence of the amount of those expenses was the treating orthopedic surgeon’s “guess” as to how much a future surgical procedure to repair Jensen’s knee would cost. As pertinent to this issue, the transcript shows the doctor testified as follows: “I’m pretty much guessing. With the total surgical charge and a facility fee from the hospital, probably between five and seven thousand dollars total. . . with anesthesia included.” We find this testimony, which listed the specific costs included in the figure given, was sufficient to authorize an award for future medical expenses. Food Lion v. Williams, 219 Ga. App. 352, 355 (2) (464 SE2d 913) (1995); see also Bull Street Church of Christ v. Jensen, 233 Ga. App. 96, 102-103 (.3) (504 SE2d 1) (1998).

2. White also contends that the trial court erred by amending the judgment to award pre-judgment interest because the aggregate sum Jensen demanded in her settlement letters was greater than the judgment entered on the jury’s verdict. The record shows that prior to trial Jensen sent separate settlement demand letters to each defendant pursuant to OCGA § 51-12-14, the Unliquidated Damages Interest Act. The settlement amount demanded against White was $40,000; the amount demanded against Holcombe was $50,000. Judgment was entered on the jury verdict for $50,793 against both defendants, jointly and severally.

Citing Wolf Camera v. Royter, 253 Ga. App. 254, 261 (558 SE2d 797) (2002), and Bullman v. Tenneco Oil Co., 197 Ga. App. 408, 409-410 (398 SE2d 311) (1990), White argues that the award of prejudgment interest must be reversed because the aggregate sum demanded against both defendants, $90,000, was greater than the amount of the judgment awarded Jensen following trial. We agree that those cases are controlling here. As we explained in Wolf Camera:

The Unliquidated Damages Interest Act establishes specific procedures for the recovery of prejudgment interest. OCGA § 51-12-14. As the statute is in derogation of the common law, it must be strictly construed. Claimants who give the requisite statutory written notice and demand can recoup prejudgment interest “on the amount demanded if, upon trial of the case in which the claim is made, the judgment is for an amount not less than the amount demanded.” OCGA § 51-12-14 (a). (Citation omitted.) Kuhl v. Shepard[, 226 Ga. App. 439, 440 (487 SE2d 68) (1997)]. As an initial matter, (a)lthough the law in this state encourages the resolution in one action of all claiiñs arising from a single occurrence or transaction, each letter sent by [plaintiff] offered to settle (his) claims by covenant not to sue in favor of the letter’s recipient, thus terminating the action as to that particular party. It is apparent from the demand letters that if any recipient had paid the sum demanded in the letter it received, that payment would not have ended the entire litigation, which would have continued against the other defendants until the total of the sums demanded from all was paid. Thus, the aggregate sum claimed by [plaintiff] from all the defendants — the “sum claimed” — in this case was ($600,000) rather than $300,000 as argued by [plaintiff], (Citations and punctuation omitted.) Bullman v. Tenneco Oil Co. [, 197 Ga. App. at 409-410].

Wolf Camera v. Royter, 253 Ga. App. at 261-262 (4).

Jensen argues, however, that this case is distinguishable because she did not include a covenant not to sue a particular defendant in her demand letters, and thus she argues “unlike Wolf and Bullman, if either of the defendants here had paid [her] demand, the litigation would have ended as to both defendants.” We find this argument unavailing. Jensen sent separate and individually addressed letters demanding different settlement amounts from each defendant. There is simply nothing to suggest that Jensen would have dismissed her claims against both defendants had either defendant met the settlement demand made against him, and thus no basis for concluding that the “sum claimed” in this case is the amount demanded from each defendant, rather than the aggregate amount sought from both defendants.

If OCGA § 51-12-14 (a) is to be read fairly and according to its . most natural and obvious import, the terms “judgment” and “sum claimed” must be treated congruently. If the terms are treated in like fashion, it becomes apparent that the circumstances present here do not satisfy the requirements of OCGA § 51-12-14 (a). Construing both terms as referring to an aggregate amount, the judgment [Jensen] received for [$50,793] was less than . . . the aggregate sum claimed from all parties sued [$90,000]. . . . Similarly, if both terms are construed as referring to amounts from the individual defendants, each [defendant’s] pro rata share of the judgment is [$25,395], which is less than [$40,000, the lowest amount claimed from either defendant]. Construing the statute’s terms in either fashion, we must conclude that [Jensen] was not entitled to prejudgment interest under the statute. . . .

Bullman v. Tenneco Oil, 197 Ga. App. at 410.

Accordingly, the trial court’s amended judgment awarding Jensen pre-judgment interest is reversed.

Case No. A02A1579

3. In his sole enumeration in Case No. A02A1579, White contends that the trial court erred by denying the defendants’ motion for directed verdict on the issue of whether there was sufficient evidence to show that Floyd had suffered a compression fracture as a result of the accident. As to this issue, Floyd testified that at the time of the accident she was 18 years old and had never had any previous back problems. The orthopedic doctor who treated Floyd for her injuries testified that Floyd told him that she experienced ankle and low back pain following the accident. The doctor also testified that x-rays taken after the accident indicated a possible mild compression at the second lumbar vertebra, and that this type of trauma would be consistent with this type of accident. The doctor also testified that there was nothing in Floyd’s previous medical history to indicate another cause of her back problems. The doctor testified that he treated Floyd for approximately six months, and that he prescribed both physical therapy and medication for her continued back and neck pain. The doctor also testified that although he could not say within a reasonable probability whether the back injury was a vertebra injury or soft tissue injury, his treatment of the two conditions would be the same. This evidence was sufficient to authorize the jury to conclude that Floyd had injured her back as a result of the accident; moreover, in light of the fact that the treating physician testified that the course of treatment and expected recovery would be the same for either injury, we do not agree with White that a directed verdict was appropriate because the evidence did not show with certainty what type of injury Floyd had sustained.

Decided September 23, 2002.

Karsman, Brooks & Callaway, R. Kran Riddle, for appellant.

Lloyd D. Murray & Associates, Lloyd D. Murray, Todd H. Martin, for appellees.

Judgment affirmed in part and reversed in part in Case No. A02A1578. Judgment affirmed in Case No. A02A1579.

Ruffin, P. J., and Barnes, J., concur.


author: Johnson, Presiding Judge.

text:
    A02A1812.
    CONLEY v. THE STATE.
    (571 SE2d 554)
   Johnson, Presiding Judge.

A jury found Robert Conley guilty of cruelty to children in the first degree by burning the back of his three-year-old son with a cigarette. Conley contends the trial court erred in admitting statements by a doctor and the victim through the testimony of law enforcement officers and a videotaped interview of the victim. We find no error and affirm Conley’s conviction.

1. Conley contends the trial court erred in allowing an officer to testify as follows: “The doctor had told me, when I arrived, that [the victim] had told him that he received two cigarette burns on his back from his father.” He further contends the trial court erred in allowing a different police officer to testify that the doctor “said that [the victim] had told him, ‘Daddy did it because he was angry.’ ” Because both the doctor and the victim were present at trial and available for cross-examination, and because these statements were cumulative of other testimony properly admitted at trial, we find no error.

Evidence is hearsay when a witness at trial offers evidence of what someone else said or wrote, outside of court, and the proponent’s use of the evidence essentially asks the jury to assume that the out-of-court declarant was not lying or mistaken when the statement was made. Clearly, the officers’ statements in the present case fall within the definition of hearsay. However, there are many exceptions to the exclusion of hearsay testimony.

“The primary flaw of hearsay testimony is the lack of opportunity for the declarant to be cross-examined as to honesty, truthfulness, perception, and memory.” Thus, even our Supreme Court has noted that the modern trend regarding hearsay evidence is to allow the out-of-court declaration where the declarant is present and may be cross-examined. As long as the declarant testifies at trial and is available for cross-examination by the defendant, the purpose behind the hearsay rule is satisfied with regard to his declarations. Here, the record shows that both the doctor and the victim testified at trial, and both were subject to a full cross-examination by defense counsel. Therefore, we find the trial court did not err in admitting the officers’ statements.

Further, the out-of-court statements were cumulative to the victim’s testimony on the witness stand and the victim’s videotaped statement to police, which was played for the jury. In addition, the victim’s mother testified at trial that the victim told the doctor, “My daddy burned me on the back with a cigarette.” “Evidence which is cumulative of other legally admissible evidence of the same fact[ ] renders harmless admission of incompetent evidence.” The trial court did not abuse its discretion in admitting the officers’ statements.

2. Conley next contends the trial court erred in admitting the victim’s videotaped interview because it lacked sufficient indicia of reliability. We disagree.

“The trial court has broad discretion in determining the admissibility of child hearsay evidence,” and we will reverse a trial court’s ruling on the admissibility of statements under OCGA § 24-3-16 only if the trial court abused its discretion. We have previously listed ten factors which a trial court may consider in determining the indicia of reliability. However, we cautioned that “[t]hese factors are to be applied neither in mechanical nor mathematical fashion, but in that manner best calculated to facilitate determination of the existence or absence of the requisite degree of trustworthiness.” Thus, even if all factors do not indicate reliability, the trial court does not necessarily abuse its discretion in admitting the taped interview.

Although several factors weighed against admitting the victim’s videotaped interview in this case, such as the victim’s tender age, the length of time between the event and the videotaped interview, and the fact that police officers conducted the interview, we cannot conclude that these factors required that the videotaped interview be excluded as a matter of law. The trial court did not abuse its discretion in admitting the videotaped interview.

Moreover, the record shows that the victim was present at trial, testified as a witness, and was subject to cross-examination. Thus, Conley had every conceivable opportunity to examine and cross-examine the victim in the presence of the jury regarding the victim’s memory of and the circumstances surrounding his videotaped interview. Conley also had the opportunity to allow the jury to judge the child’s demeanor in response to any examination or cross-examination about the alleged making and veracity of the videotaped interview. This provided an additional safeguard to Conley’s right of fair trial and provided Conley full opportunity for confrontation.

3. In his final enumeration of error, Conley contends the evidence was insufficient to support his conviction. However, the victim testified at trial that Conley burned his back. This evidence, standing alone, was sufficient to establish Conley’s conviction for cruelty to children in the first degree. Any conflict in the victim’s testimony is a matter of credibility for the jury to resolve.

In addition to the victim’s testimony and the evidence which we have held in this appeal was properly admitted by the trial court, additional evidence not attacked on appeal supported Conley’s conviction. The burn marks were found on the victim’s back by his mother following the victim’s weekend visit with Conley. The victim’s mother testified that the victim told the doctor his father burned him on the back with a cigarette. The doctor testified that the marks were consistent with cigarette burns and not consistent with friction injury. And, the doctor opined that the burns were probably second degree burns and appeared to be three to seven days old, consistent with the timing of the victim’s visit with Conley. Photographs of the burns were admitted into evidence. The evidence was sufficient for a rational trier of fact to find Conley guilty beyond a reasonable doubt of cruelty to children in the first degree.

Decided September 23, 2002.

Axam, Adams & Secret, Akil K. Secret, Mary Erickson, for appellant.

Patrick H. Head, District Attorney, H. Maddox Kilgore, Amelia G. Pray, Assistant District Attorneys, for appellee.

Judgment affirmed.

Blackburn, C. J., and Miller, J., concur.

        See Armstead, v. State, 255 Ga. App. 385, 389 (3) (565 SE2d 579) (2002).

        Armstead, supra.

        Quintanilla v. State, 273 Ga. 20, 23 (3) (a) (537 SE2d 352) (2000).

       Id.

       (Citations and punctuation omitted.) Griffis v. State, 222 Ga. App. 322, 324 (2) (474 SE2d 119) (1996).

       (Punctuation and footnote omitted.) Woolums v. State, 247 Ga. App. 306 (1) (540 SE2d 655) (2000).

        Howard v. State, 252 Ga. App. 465, 467 (1) (556 SE2d 536) (2001).

        Gregg v. State, 201 Ga. App. 238, 240 (3) (b) (411 SE2d 65) (1991).

       Id. at 241.

       See Woolums, supra at 307.

       See Bryant v. State, 249 Ga. App. 383, 386 (4) (c) (547 SE2d 721) (2001); Woolums, supra.

        Bryant, supra at 385 (4) (a); Gregg, supra at 241 (3) (c).

       See OCGA § 24-4-8; Vickers v. State, 241 Ga. App. 452, 453 (527 SE2d 217) (1999).

        Sewell v. State, 244 Ga. App. 449, 451 (1) (a) (536 SE2d 173) (2000).

        Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Grier v. State, 257 Ga. 539, 540 (2) (361 SE2d 379) (1987); Weeks v. State, 220 Ga. App. 141, 143 (2) (469 SE2d 316) (1996).