text:
    A99A1054.
    In the Interest of A. S. H. et al., children.
    (521 SE2d 604)
   Eldridge, Judge.

The appellant in this case is a thirty-year-old woman whose parental rights to her two children, ages eight and ten, were terminated in Stephens County Juvenile Court in November 1998. We affirm the trial court’s ruling.

The facts of this case, viewed in the light most favorable to the State, are as follows: The appellant is the mother of eight-year-old A. S. H., a girl, and ten-year-old L. L. H., a boy. In 1991, the appellant voluntarily placed her children in the custody of the Department of Family & Children Services (“DFACS”), following a history of seizures, mental and emotional problems, homelessness, and thoughts of suicide. DFACS provided substantial, intensive assistance to the appellant in an attempt to keep the family together. However, in 1993, the children were placed in court-ordered foster care following a suicide attempt by the appellant. The children have remained in the custody of DFACS until the present, pursuant to numerous continuation orders by the juvenile court. The appellant did not appeal any of the custody extensions or the underlying findings that the children were deprived.

The appellant has since married and currently resides with her husband in an apartment, where they share homemaking responsibilities, although the husband usually does the cooking out of concern that the appellant might have a seizure and burn herself. The appellant has worked at one job during the six months prior to the termination proceeding, but she left the job after a few hours because she did not like it. Her previous job lasted only a few weeks.

On April 1, 1998, the State filed a petition to terminate the appellant’s parental rights. The petition noted that, during a DFACS home evaluation, the appellant was unable to understand simple questions and “has not demonstrated any skills to take care of the children,” despite her participation in parenting classes.

According to a psychological examination performed prior to the termination proceedings, the appellant suffers from mild mental retardation, with a full scale I.Q. of 70 and a first grade reading and math ability. She exhibited significant problems with memory and social reasoning ability, was highly dependent on others, and exhibited a passive-aggressive personality disorder.

In addition to her mental deficiencies, the appellant has been diagnosed with a major depressive disorder with psychotic features, a schizo affective disorder, a seizure disorder, and asthma. She contemplated suicide in 1991. She presently takes several types of medication to control these disorders, but has resisted mental health care.

The psychologist found that the appellant’s low scores from the parenting abilities assessment suggest that she “will not be able to sufficiently provide for children in the area of parenting without intervention and assistance from a third party.” He also noted that, due to her passive-aggressive personality, she quickly becomes “defiant and difficult when things are not going her way,” so that her reactions to normal parenting situations are “unpredictable.” Based on his observations of the appellant, he determined that the appellant “overestimates her own ability to function [and] believes she can function totally independently,” even though he found that “[h]er potential for parenting is very low and there appears to be serious questions regarding her ability to independently be responsible for parenting children.”

Further, he expressed concerns that she may become physically aggressive with the children, or may use guilt, negative comments, or manipulation to control the children. Such concerns were realized in part when, during supervised visits with the children, the appellant jokingly called the boy a “dummy”; complained that the children did not bring anything for her; and told the boy that she depended on him to take care of her.

The psychologist also evaluated the appellant’s husband, who presented a full scale I.Q. score of 73 (mild mental retardation) and exhibited a second to third grade ability in reading and math. However, unlike the appellant, her husband completed high school and held a driver’s license. He was not employed and had no demonstrable employment history. The psychologist also noted various specific concerns about the husband’s ability to manage additional parental responsibilities if the children were returned to their mother.

After examining L. L. H., the ten-year-old boy, the psychologist found that the boy exhibited an extremely high full scale I.Q. of 121. He also noted that the child had expressed feelings of being concerned about his mother’s well-being. In the psychologist’s opinion, if the child was reinstated in his mother’s home, the roles of mother and child may be reversed, so that the child would become the caregiver and the mother would become increasingly dependent. As a result, the child “would increasingly be looked to as an individual who could make decisions and be available to provide appropriate information to others. This would make it difficult for [the child] to experience normal childhood development due to the risk of precocious adult responsibilities being placed on him. Even if they were not imposed by the adults around him, [the child] would likely feel he needed to assume the role in order to have things run smoothly.” Further, the child exhibited negative behavior in the recent past, including aggression, destruction of property, lying, and stealing; such behavior increased following visits with his mother.

In contrast to her half-brother, the eight-year-old girl, A. S. H., exhibited a borderline to low average range of intelligence, with a full scale I.Q. of 76. She was in need of speech and language intervention and showed “significant academic impairment.” She also showed signs of attention deficit hyperactivity disorder.

Both children expressed confusion “by the fact that other children in the foster home are being adopted and these children are not free for adoption.” Therefore, DFACS noted that it “can offer them no sense of stability or security at this time.”

Additional testimony was elicited from numerous DFACS caseworkers who had assisted the family over the years. The caseworkers consistently reported their observations and concerns that the appellant lacked the maturity and parenting skills necessary to care for the children. One caseworker testified about the difficulty she had in communicating with the appellant, due to appellant’s apparent inability to understand even simple questions. The caseworkers testified that the appellant had long-standing problems obtaining housing and ensuring that utility and rent bills were paid on time. The caseworkers also noted that the appellant had failed to make any significant progress in meeting case plan goals, including court-ordered mental health counseling, in part because her attendance at the mandatory counseling sessions was “sporadic.” The appellant’s most recent caseworker expressed concerns that the appellant was not taking her medication as directed, based on incidents in which the appellant suddenly became extremely agitated, aggressive, and violent; began hallucinating; or required restraints from hurting herself or others. According to this caseworker, this indicated the possibility that the appellant may become violent with the children. The caseworkers unanimously opined that termination of the appellant’s parental rights was appropriate in this case and in the best interests of the children.

After hearing testimony during the termination proceeding and considering all of the evidence, the trial court found that, due to her limited mental capacity and parenting abilities, the appellant was “barely” able to take care of herself, so that the children would not have a secure, stable home with her. He found that such parental inability caused the children to be deprived, and that they were harmed thereby “by virtue of their languishing in temporary foster care” for over five years. As such, termination was in the children’s best interests. Accordingly, he terminated the appellant’s parental rights, and she appeals. Held:

1. In her first enumeration, the appellant contends that the trial court erred in finding that there was clear and convincing evidence of parental inability under OCGA § 15-11-81 (b) (4). We disagree.

The standard of appellate review where a parent’s rights to [her] child have been severed is whether [,] after reviewing the evidence in the light most favorable to the appellee [(DFACS)], any rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights to custody have been lost. The factfinding and weighing of evidence is to be done in the trial court under the clear and convincing evidence test. The reviewing court is to defer to the lower court in the area of factfinding and should affirm unless the appellate standard of review is not met.

(Citations and punctuation omitted.) In the Interest of A. Q. W., 217 Ga. App. 13, 14 (456 SE2d 284) (1995). See also In the Interest of C. G., supra; In the Interest of K. A. C., 229 Ga. App. 254 (493 SE2d 645) (1997); In the Interest of T B. R., 224 Ga. App. 470, 472 (480 SE2d 901) (1997); In the Interest of R. N., 224 Ga. App. 202 (480 SE2d 243) (1997); In the Interest of J. H., 210 Ga. App. 255, 258 (1) (435 SE2d 753) (1993).

The statutory criteria for the termination of parental rights is the two-step procedure of OCGA § 15-11-81 (a). First [,] the court determines whether there is clear and convincing evidence of parental misconduct or inability. Second [,] the court considers whether termination is in the best interest of the child. [As to the first step, parental misconduct or inability] is determined by finding: 1) the child is deprived; 2) lack of proper parental care or control is the cause of the deprivation; 3) such deprivation is likely to continue or will not be remedied; 4) continued deprivation is likely to cause serious physical, mental, emotional or moral harm to the child. OCGA § 15-11-81 (b) (4) (A). Among the factors which may be considered with regard to a child lacking proper parental care or control [is a] medically verifiable deficiency of the parent’s mental or emotional health of such duration or nature as to render the parent unable to provide adequately for the child’s [physical, mental, emotional, or moral] needs.

(Citations and punctuation omitted.) In the Interest of A. M. V., 222 Ga. App. 528, 529 (474 SE2d 723) (1996). See also OCGA § 15-11-81 (b) (4) (B) (i); In the Interest of C. W. S., 231 Ga. App. 444, 445 (2) (498 SE2d 813) (1998); In the Interest of K. A. C., supra.

In this case, the trial court heard extensive evidence that the appellant suffers from mental retardation and mental illness, as well as seizures. The psychologist testified that, due to mental retardation, the appellant’s ability to care for her children without significant assistance from others was “seriously questioned.” Although the appellant receives some assistance from DFACS and her husband, such assistance cannot justify returning the children to a parent with such limited mental abilities and such complex physical and mental health problems.

This case is similar to In re S. R. J., 176 Ga. App. 685, 686 (337 SE2d 444) (1985), wherein this Court specifically considered the following issue:

whether a juvenile court can terminate a parent’s right to rear and control a natural born child where the parent is mentally incapable of rearing a child but who, with ever present and capable help, can keep custody and control of a child even though ultimate responsibility is placed upon someone other than the parent.

In answering in the affirmative, this Court noted that

[i]n the case of In the Interest of T. R. G., 162 Ga. App. 177, 179 (290 SE2d 523) [(1982)], we held: “The majority of cases in this state dealing with factual situations of this type have enunciated a rule that in termination cases the welfare of a child is of paramount importance provided there is also evidence that (as pertinent to this case) the parent suffers from some mental disability that renders the parent unable to care for the child (i.e., unfit). This case clearly fits that mold. There is no dispute that as of the time of the hearing and for the foreseeable future, the appellant mother is unable to furnish proper parental care and control necessary for the child’s physical, mental and emotional health and that these conditions and causes of deprivation are likely to continue for the foreseeable future.” Of similar import is the case of Chancey v. Dept. of Human Resources, 156 Ga. App. 338, 340 (274 SE2d 728) [(1980)]. In the instant case, the inquiry at the deprivation hearing was not whether the parent, for her misconduct, deserved to have her parental rights terminated. The question was whether the child was without proper parental care or control, subsistence, education as required by law. The evidence is uncontested that the mother, standing alone, cannot fulfill those responsibilities.

In re S. R. J., supra at 686. See also In the Interest of C. D. C., 230 Ga. App. 237, 238 (495 SE2d 872) (1998); In the Interest of C. D. F., 222 Ga. App. 905 (476 SE2d 654) (1996). This is particularly true in a case such as this, wherein the mother experiences chronic physical and mental health problems which further reduce her already limited ability to cope with parenting responsibilities.

Further, even though the appellant is now married,

[t]his case is not dependent upon the parenting skills of the [appellant’s spouse,] who has no parental rights in the child, but upon the parental rights of the natural mother. The test must be whether the parent, ultimately standing alone, is capable of mastering and can effectively demonstrate the ability to utilize those parenting skills. That is the sole issue for determination. The facts disclose [that] she alone cannot.

In re S. R. J, supra at 686.

The evidence presented also clearly demonstrated that the appellant’s mental and physical status was likely to remain unchanged. As such, this case is distinguishable from In the Interest of C. G., supra, because evidence was presented that the appellant’s mental disability and personality disorders “would remain constant over time, even if [the appellant] were to be involved in counseling, parenting training, or mental health treatment involving medication [.]”

Finally, the evidence demonstrated that the children have been harmed by the instability in their lives as a result of remaining in foster care for over five years. The trial court found that “the children are being harmed by virtue of their languishing in temporary foster care.” Such “foster care drift . . . prevents children from forming emotional attachments with others.” In the Interest of T. B. R., supra at 476 (1) (d). See also In the Interest of M. E. C., 228 Ga. App. 9, 14 (1) (d) (491 SE2d 107) (1997); In the Interest of E. P. N., 193 Ga. App. 742, 747 (2) (c) (388 SE2d 903) (1989).

In addition to foster care drift, the evidence showed that the children were also at risk due to the appellant’s potential for seizures while caring for the children. Although the appellant points out that the children have never been harmed while in her care, the children have not lived with the appellant in over five years and her visitations with the children have been supervised by DFACS personnel. Moreover, when the evidence demonstrates the significant possibility that the children may be physically, emotionally, or mentally harmed if returned to their parent’s care, the trial court is not obligated to return the children and wait until the children actually have been harmed before terminating the parent’s rights. See In the Interest of C. D. F., supra; In the Interest of E. P. N., supra at 749.

Accordingly, under the specific facts and circumstances of this case, we find that there is clear and convincing evidence to support the trial court’s determination that the appellant suffers from a medically-verifiable mental inability, coupled with mental and physical illness, which renders her unable to adequately provide for the needs of the children, and that such inability is likely to continue and cause harm to the children. There was no error.

2. In her second enumeration, the appellant challenges the trial court’s determination that termination of her parental rights was in the best interests of the children.

Once the trial court has determined that continued parental misconduct or inability will cause or is likely to cause harm to the children, the court must then consider whether termination of parental rights is in the child’s best interest. OCGA § 15-11-81 (a). In making such determination, the trial court should consider the child’s physical, mental, emotional, and moral needs, including the need for a secure and stable home, as well as the detrimental effects of prolonged foster care. Id.; In the Interest of K. A. C., supra; In the Interest of M. L., 227 Ga. App. 114, 117 (488 SE2d 702) (1997); In the Interest of D. I. W., 215 Ga. App. 644, 646 (451 SE2d 804) (1994); In the Interest of J. M. G., 201 Ga. App. 173, 175 (410 SE2d 368) (1991). “The same factors which show parental inability may also show that termination would be in the children’s best interest. In the Interest of G. K. J., 187 Ga. App. 443, 444 (2) (370 SE2d 490) (1988).” (Punctuation omitted.) In the Interest of M. L., supra at 114 (2).

After reviewing the complete record of this case, we find that the trial court’s determination that termination of the appellant’s parental rights is in the children’s best interest is supported by clear and convincing evidence.

Judgment affirmed.

Pope, P. J., and Smith, J., concur.

Decided August 10, 1999.

Sean A. Black, for appellant.

Thurbert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen A. Sgrosso, Assistant Attorney General, Joanna Temple, for appellee.

        In the Interest of C. G., 235 Ga. App. 23 (508 SE2d 246) (1998).

       The children have different fathers, and the State petitioned to terminate their parental rights, also. However, neither father participated in this appeal.

       The appellant did not dispute on appeal the trial court’s finding that the children were deprived.

       In that case, the facts showed that the mother was mentally retarded and “demonstrated an inability to comprehend or retain more than the simplest of parenting skills in spite of prolonged training. There [was] evidence that the mother has never harmed the child!]” In re S. R. J., supra at 685.

       In that case, this Court determined that the State had not established that the parent’s mental disability was likely to continue to the detriment of the child. Accordingly, the termination was reversed, but the State was allowed the opportunity to make the requisite showing upon remand.


source: Caselaw Access Project

author: Eldridge, Judge.

license: Public Domain

text:
    A99A1101.
    GIBSON v. THE STATE.
    (521 SE2d 599)
   Eldridge, Judge.

In challenging a Muscogee County jury verdict finding him guilty of aggravated assault, Walter L. Gibson contends that he received ineffective assistance of counsel because his trial attorney (a) failed to raise the issue of Gibson’s alleged mental illness in relation to the voluntary nature of his confession; and (b) raised a defense of justification, instead of a defense of guilty but mentally ill. We find these contentions meritless.

To show that trial counsel was ineffective, Gibson must show both that counsel’s performance was deficient and that the deficiency so prejudiced his defense that a reasonable probability exists that the outcome of trial would have been different but for the deficiency. Has-san v. State, 231 Ga. App. 783, 784 (500 SE2d 644) (1998).

(a) During the Jackson/Denno hearing, the State produced testimony from the arresting officer which authorized the trial court’s finding that Gibson’s statement was knowingly and voluntarily made. Gibson has failed to direct our attention to any place in the record which would show that, at the time Gibson gave his statement to the police, he suffered from a mental illness that impacted on the voluntary nature of such statement. He simply states on appeal that he was “mentally ill and highly intoxicated.” Such conclusory statements are not proof. Further, Gibson’s trial attorney testified at the motion for new trial that Gibson never mentioned a mental illness; nor did he display signs that would have signaled the existence of such. Accordingly, defense counsel’s failure to raise an issue of mental illness at the Jackson/Denno hearing was not a “defective” performance.

(b) Equally meritless is Gibson’s contention that “trial counsel was ineffective in failing to raise the more plausible defense of guilty but mentally ill.” As the trial court noted, Gibson’s attorney could not raise a defense of mental illness when the existence of such alleged illness was neither manifest nor brought to the attorney’s attention in any fashion. Gibson, himself, maintained from the beginning that the victim was armed with a knife and thus his actions were justified. In light of his subsequent conviction, a mental illness defense may now appear to Gibson to be more “plausible,” but, as this Court has noted many times: “Effectiveness is not judged by hindsight or by the result” (Emphasis supplied.) Karvonen v. State, 205 Ga. App. 852, 853 (424 SE2d 47) (1992); Cauley v. State, 203 Ga. App. 299, 301 (2) (416 SE2d 575) (1992); Garrett v. State, 196 Ga. App. 872, 873 (1) (397 SE2d 205) (1990); Hosch v. State, 185 Ga. App. 71, 72 (2) (363 SE2d 258) (1987).

Decided August 10, 1999.

William P. Nash, Jr., for appellant.

J. Gray Conger, District Attorney, George E. Lipscomb II, Assistant District Attorney, for appellee.

Judgment affirmed.

Pope, P. J., and Smith, J., concur.

        Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908) (1964).

       “The standard of effectiveness is not to be judged by hindsight nor by the result that the appellants were convicted.” Kervin v. State, 178 Ga. App. 601, 606 (344 SE2d 441) (1986). See also Solomon v. State, 247 Ga. 27, 28 (1) (277 SE2d 1) (1981) (“effective counsel does not mean errorless counsel and not counsel judged ineffective by hindsight”); Pitts v. Glass, 231 Ga. 638 (203 SE2d 515) (1974); Harrell v. State, 139 Ga. App. 556, 557 (2) (228 SE2d 723) (1976).


author: Johnson, Chief Judge.

text:
    A99A1236, A99A1259.
    In the Interest of R. U. et al., children (two cases).
    (521 SE2d 610)
   Johnson, Chief Judge.

The parents of nine-year-old R. U. and eight-year-old J. U. appeal from the juvenile court’s order approving the decision of the Whitfield County Department of Family & Children Services (“the department”) to discontinue services designed to reunite the children with their parents. The father also appeals from the court’s decision to extend its order placing temporary custody of the children in the department. The mother appeals in Case No. A99A1236. The father appeals in Case No. A99A1259.

This is the second time the parents of R. U. and J. U. have appealed to this court for a review of a decision of the juvenile court. The department took custody of R. U. in 1992 and J. U. in 1993 because of the mother’s substance abuse; her mental problems, including depression, personality disorders, and attempted suicide; the parents’ mutual physical abuse; the father’s emphysema and arthritis; and the father’s admitted inability to raise the children alone. The juvenile court terminated their parental rights in 1995. The parents appealed the decision.

On appeal, this court vacated the juvenile court’s order because the parents had made improvements and had accomplished many of the goals included in the case plan, the evidence of parental misconduct was stale, and there was an absence of clear and convincing evidence that the deprivation was likely to continue. In the Interest of R. U., 223 Ga. App. 440, 442 (477 SE2d 864) (1996). We remanded the case to the juvenile court for consideration of alternative dispositions.

On remand, the juvenile court found the children were still deprived and continued temporary legal custody in the department. The step-grandparents continued to have physical custody of the children. The order was not appealed.

New case plans were developed in August 1997 and March 1998 which required the parents to pay child support; attend a support group for parents of hyperactive children; maintain consistent contact with the children; provide a safe, stable, appropriate home environment; undergo alcohol and drug abuse evaluation and submit to drug screening; cooperate with the department; and attend Parents Anonymous.

In April 1998, after finding that some of these goals had not been achieved, a citizen review panel recommended a non-reunification plan. The department agreed with the recommendation, and filed a motion requesting that the juvenile court approve its decision to discontinue reunification services. The department also moved to extend the juvenile court’s April 1997 order which placed temporary custody in the department. In July 1998, after a hearing, the juvenile court granted the motions.

1. Both parents argue that the juvenile court erred in granting the department’s motion to discontinue services aimed at reuniting them with the children. We disagree.

OCGA § 15-11-41 (i) provides that:

There shall be a presumption that reunification services should not be provided if the court finds by clear and convincing evidence that: (1) The parent has unjustifiably failed to comply with a previously ordered plan designed to reunite the family; (2) A child has been removed from the home on at least two previous occasions and reunification services were made available on those occasions; (3) Any of the grounds for terminating parental rights exist, as set forth in [OCGA § 15-11-81 (b)]; or (4) Any of the circumstances set out in [OCGA § 15-11-81 (b) (4)] exist, making it unnecessary to provide reasonable efforts to reunify.

The criteria set forth in OCGA § 15-11-41 (i) (1) through (3)-have been met.

Both parents unjustifiably failed to comply with previous reunification plans. The mother failed to complete alcohol and drug abuse assessment and treatment as required by the plan. And, other than sometimes sending the children $20 or $50 for “spending money” and as gifts, she made no child support payments while the children were in the department’s custody.

Nor did the mother maintain consistent contact with the children. She moved to California two and one-half years before the hearing and since then has not been involved with the children except to telephone them once a month and send them birthday presents, cards and spending money. She has visited the children only once during the past two and one-half years. The visit took place a few days before the hearing and ended abruptly two hours after the visit began; the mother decided it was “time to go” because R. U. had become “a little rowdy.” The mother testified that she did not visit the children on any other occasion because she could not afford to travel to Georgia.

The father admitted that he does not always cooperate with the department, that he has “just given up” on some of the case plan goals and that he has stopped trying to achieve them. Although one of the requirements of the 1997 and 1998 case plans was that he attend Parents Anonymous meetings, he has not attended any meetings since the termination hearing in 1995.

He only visits the children once or twice a month, although he apparently lives just a short drive away. He admitted that he does not “keep as regular contact as [he] could.” He sometimes does not visit because he gets “disgusted” by R. U.’s attitude. The father testified that health problems, including emphysema and asthma, limit his ability to engage in physical activities with the children, though he believed the limitations would not otherwise interfere with his parenting responsibilities. When asked if he is able to engage in physical activity with the children, he replied they are “pretty much on their own,” and are “old enough you don’t have to do much with them.” The father has attention deficit hyperactive disorder, which is treated with medication and counseling. He receives Social Security benefits, from which support payments are deducted for the children. The children also have psychological disorders, for which they are treated with medication.

The record also demonstrates the father’s failure to maintain a safe, appropriate and stable home. The step-grandmother testified that the father, who is her stepson, has a pattern of permitting women who are convicted felons and addicted to drugs and alcohol to live with him. She knew of three such women and believed the pattern had existed for at least three years. The father admitted having this habit, saying he sometimes “let[s] people come out there and stay because they have nowhere to stay.” He stated that one of the women lived with him for a year and was present when the children came to visit. One such crack-addicted woman had moved out only four months before the hearing. She was at his house on the day of the hearing, though the father said she was not living there, but was doing housework for him.

The coordinator for the citizen review panel advised the father that he could not have custody of the children as long as he allowed drug-abusing women to live with him. Indeed, one of the court-ordered case plan goals was that “visitation shall not occur with either parent in the company of persons who may put the children at risk.” The citizen review panel found in August 1997 that this goal was not achieved because the father had a woman living with him who had been incarcerated for murder. In March 1998, the review panel found that the father failed to meet the goal of providing a safe, appropriate and stable home because he was residing with a woman who had a criminal background and drug problem. At the hearing, the father admitted knowing that the panel was concerned about these relationships, but testified that they were not the department’s concern as long as the children were not in his custody and were not being harmed. The panel coordinator testified that when she discussed the issue with the father, he laughed and told her that his counselor said he had a pattern of being attracted to crack-addicted women. There was clear and convincing evidence that both parents unjustifiably failed to comply with case plans designed to reunite them with the children.

Furthermore, non-reunification is justified by the undisputed fact that the children were removed from the parents’ custody on two or more occasions and reunification services were previously provided. See OCGA § 15-11-41 (i) (2).

Finally, non-reunification is justified by the existence of grounds for terminating parental rights. See OCGA § 15-11-41 (i) (3). Termination is authorized where, among other things, the parents have failed to provide for the care , and support of the children and have failed to comply with a court-ordered plan designed to reunite the children with the parents. See OCGA § 15-11-81 (b) (4) (C). Here, both parents failed to comply fully with the court-ordered reunification plans. Although they had six years to demonstrate their ability to exercise proper parental care and control of the children, they failed to do so. The mother relocated to California and failed to support or visit her children. The father refused to remove troubled women from his home, despite case goals specifically requiring him to provide a safe, appropriate and stable home environment, despite goals prohibiting visitation when persons who may put the children at risk are present, and despite knowing that living with women convicted of felonies and addicted to drugs would prevent him from achieving these goals. He also failed to visit the children as often as he could have. We point out that four months before the July 1998 hearing, the father told the caseworker that he did not feel he would be able to “handle” or raise the children at that time, but that he would like to have custody of them when they were older.

The court-appointed special advocate, the case manager, and the caseworker recommended non-reunification. The case manager and step-grandmother testified that the children were happy and doing well in the grandparents’ home.

On appeal, this court neither weighs the evidence nor determines the credibility of witnesses; we defer to the juvenile court’s factfinding and affirm unless the appellate standard is not met. In the Interest of C. S., 236 Ga. App. 312, 314 (1) (511 SE2d 895) (1999). In light of the length of time the problems existed, the parents’ failure to comply with the case plan goals, and the fact that the department removed the children from the parents’ custody on at least two prior occasions, there was sufficient clear and convincing evidence from which the juvenile court could conclude that reunification services should not be provided. Therefore, the juvenile court did not err in approving the non-reunification plan. See In the Interest of S. A. W., 228 Ga. App. 197, 200 (2) (491 SE2d 441) (1997).

2. The father argues the juvenile court erred in continuing custody of the children with the grandparents because the evidence showed he had changed and the evidence of his misconduct was stale. We disagree.

Just four months before the July 1998 hearing, the father told the caseworker that he did not feel he would be able to “handle” or raise the children at that time, but that he would like to have them when they were older. In addition, the father admitted that a drug-addicted woman moved out of his trailer only months before the hearing, and that she was at his house on the day of the hearing. He also admitted that he had given up on some of the case plan goals. This evidence was not outdated. See In the Interest of B. D., 236 Ga. App. 119, 120 (1) (511 SE2d 229) (1999).

3. For the same reasons, the father’s separate but similar enumeration that his present circumstances do not support the department’s decision to cease reunification services is also without merit.

Decided August 10, 1999.

Michael R. McCarthy, for appellant (case no. A99A1236).

Jerry W. Moncus, for appellant (case no. A99A1259).

Thurhert E. Baker, Attorney General, Shalen A. Sgrosso, Stephanie B. Hope, Assistant Attorneys General, Way caster, Morris, Johnson & Dean, Cynthia N. Johnson, for appellee.

4. The father contends the evidence is insufficient to show that continuing efforts to reunite him with the children would be detrimental to the children. We disagree.

The caseworker, special advocate and step-grandmother testified that the children are doing well in the grandparents’ home and agreed that the children should stay there. As discussed above, the father has had nearly seven years to achieve the court-ordered case goals. Allowing him additional time for improvement would be detrimental to these children who have spent all of their lives with no security regarding who would parent them. See generally In the Interest of J. D. D., 215 Ga. App. 68, 71 (449 SE2d 655) (1994). They do not need further insecurity. See In the Interest of D. I. W., 215 Ga. App. 644, 646 (1) (451 SE2d 804) (1994). We agree with the juvenile court’s finding that these children need and deserve the stability they have in their grandparents’ home, and see only detriment in trying to reunite them with their father.

Judgments affirmed.

Smith and Eldridge, JJ, concur.


text:
    A99A1472.
    DAYOUB v. YATES-ASTRO TERMITE PEST CONTROL COMPANY.
    (521 SE2d 600)
   Eldridge, Judge.

In 1994, Michael Dayoub, plaintiff-appellant, contracted with Mark One Construction (“Mark One”), defendant, to build an office building for him. Mark One persuaded Dayoub to use artificial stucco instead of real stucco on the exterior, and Dayoub agreed. Mark One used Southern Tile and Carpet of Valdosta, Inc. (“Southern Tile”), defendant, as the subcontractor that applied the exterior artificial stucco. Southern Tile used a product manufactured by Dryvit Systems, Inc., defendant, to clad the exterior walls of the office building in an exterior insulation and finishing system called Dryvi, which is a synthetic stucco.

An inherent problem of Dryvit is that it retains moisture in the insulating foam that is glued to the underlying wood framing, plywood, or oriented strand board (“OSB board”). The moisture creates a substantial risk for termite infestation. The Dryvit, covering the exterior walls, was improperly extended from the roof line to the dirt and, in some places, below ground, which provided hidden termite access.

Yates-Astro Termite Pest Control Company (‘Yates-Astro”), defendant-appellee, contracted to pre-treat the new building to create a chemical termite barrier, to provide a termite bond, and to do annual inspections for termite infestation and damage. In 1996, Dayoub discovered termite infestation had occurred throughout the new building under the moist insulation.

Dayoub sued all of the defendants; however, prior to trial, he settled with everyone except Yates-Astro. Dayoub went to trial against Yates-Astro on a negligence and breach of contract theory.

Dr. Macy Nolan III, an entomologist, was Dayoub’s only expert witness. On voir dire of the expert in establishing his qualifications, it was shown that he had a Ph.D. in entomology; that he was in the business of consulting with pest control companies regarding termites; that he was familiar with pest control companies’ methods and techniques, including Yates-Astro, with which he had consulted; that he worked with the Georgia Department of Agriculture inspectors regarding pest and termite control; and that he was familiar with the published standards of the National Pest Control Association (“NPCA”) and the Georgia Pest Control Commission. Yates-Astro objected that Dr. Nolan was not competent to testify as an expert on pest and termite control, because he was not a licensed pest control operator. The trial court sustained such objection and would not allow Dr. Nolan to testify regarding the standards of care of the pest control industry regarding termites or any deviation from such standard.

Also, the trial court denied admission of the rules and regulations of the Georgia Pest Control Commission, because they were not certified. The trial court denied admission of the NPCA standards, because Dr. Nolan was not allowed to identify, authenticate, or explain them as part of his expert testimony. At the close of Dayoub’s evidence, the trial court granted Yates-Astro’s motion for directed verdict as to the issue of negligence.

The case went to a jury on breach of contract theory only, and a verdict was returned for $11,000. Dayoub’s motion for new trial was denied.

1. Plaintiff contends that the trial court erred in limiting and excluding the testimony of a qualified expert witness. We agree.

The question of whether a witness is qualified to render an opinion as an expert is a legal determination for the trial court and will not be disturbed absent a manifest abuse of discretion. OCGA § 24-9-67; Bales v. Shelton, 197 Ga. App. 522, 525 (3) (399 SE2d 78) (1990); see also Carlock v. KMart Corp., 227 Ga. App. 356, 361 (3) (b) (489 SE2d 99) (1997); Drummond v. Gladson, 219 Ga. App. 521, 522 (1) (465 SE2d 687) (1995); Goodman v. Lipman, 197 Ga. App. 631 (1) (399 SE2d 255) (1990).

However, in this case, the trial court erred as a matter of law in requiring that an expert witness have a pest control operator’s license before he was qualified to testify, although he had a Ph.D. in entomology; had experience and training in the pest control field; acted as a paid consultant to pest control companies, including the defendant; and was knowledgeable in the area of termite control. Goodman v. Lipman, supra at 631-632. Such license requirement is arbitrary and capricious and imposed a standard of qualification greater than that required by law. OCGA § 24-9-67; In the Interest of C. W. D., 232 Ga. App. 200, 206-207 (3) (501 SE2d 232) (1998); In the Interest of S. T., 201 Ga. App. 37, 38-39 (1) (410 SE2d 312) (1991); Goodman v. Lipman, supra at 631-632. “The possession of a license in Georgia does not go to qualification as an expert witness but may go to the weight and credibility that a jury gives to such expert’s opinion.” In the Interest of C. W. D., supra at 206-207; accord Goodman v. Lipman, supra at 631-632. Further, the trial judge failed to exercise his discretion but, instead, excluded the expert witness for lack of a license; failure to exercise discretion is, in fact, a manifest abuse of discretion when the expert is qualified. See Drummond v. Gladson, supra at 522; Goodman v. Lipman, supra at 631-632.

The requirements for qualification as an expert witness are minimal; generally, nothing more is required to qualify an expert than evidence that the person has been educated in a particular trade, science, or profession. Formal education or training in an area of expertise is not necessary, provided the witness possesses the qualifications of such area of expertise through skill and experience. It is the possession of special knowledge derived either from experience, study, or both in a field of expertise that makes one an “expert.” Thus, an expert witness can express an opinion on a matter which comes within the person’s qualifications.

(Citations omitted.) In the Interest of C. W. D., supra at 206.

2. Plaintiff also contends that the trial court erred in excluding applicable rules, regulations, and nationally published standards on the issue of negligence. While Division 1 requires a new trial, the issues raised by this enumeration are highly likely to occur on retrial; therefore, we will address them.

(a) A trial court must take judicial notice of rules and regulations of the State of Georgia that are published under authority by the Secretary of State. OCGA § 24-1-4. Pursuant to the Administrative Procedure Act (APA), the Georgia Department of Agriculture, Pest Control Commission, must promulgate all of its rules and regulations as prescribed by said Act. OCGA §§ 50-13-2 (1) and (6); 50-13-3; see also Orkin Exterm. Co. v. Blackmon, 229 Ga. 146, 149 (5) (190 SE2d 43) (1972). All such rules and regulations must be published by the Secretary of State as the Rules and Regulations of the State of Georgia. OCGA §§ 50-13-3 (b); 50-13-5; 50-13-7. Therefore, such rules and regulations were published by the Secretary of State under statutory authority within the meaning of OCGA § 24-1-4. Judicial notice of the rules and regulations promulgated under the APA and published under authority must be taken by the trial court. OCGA §§ 24-1-4; 50-13-8; Owens v. Ga. Underwriting Assn., 223 Ga. App. 29, 32 (3) (476 SE2d 810) (1996); Blossman Gas Co. v. Williams, 189 Ga. App. 195, 200-201 (5) (375 SE2d 117) (1988); Cullers v. Home Credit Co., 130 Ga. App. 441, 443 (3) (203 SE2d 544) (1973).

Plaintiff’s counsel requested that the trial court take judicial notice of the Pest Control Commission rules and regulations. See 10 Rules & Regulations of the State of Georgia, Part 2: §§ 620-4-.01 et seq.; 620-6-.01 et seq. However, the trial court erroneously believed that it lacked authority to do so and denied the motion to take judicial notice. Since such rules and regulations were some evidence of defendant’s deviation from the standard of care and possible violation of the rules and regulations, the error was harmful.

(b) The NPCA standards are private; as such, private standards are not admissible without expert testimony to identify, authenticate, and explain them. Planters Elec. Membership Corp. v. Burke, 98 Ga. App. 380, 389-390 (2) (105 SE2d 787) (1958).

The general rule that safety codes or rules promulgated by government departments or voluntary associations for their informative value do not have the force of law and are not admissible in evidence upon the subjects to which they relate, applies to bar the admission of such codes or rules on the issue of negligence [.] . . . The fact that such authority is not sworn to, is met in this jurisdiction by the sworn evidence of an expert witness that such authority is esteemed by the professions as good authority on the subject. . . . What is written here is not to be construed as a pronouncement that an expert witness may not predicate his opinion upon information gained from authentic and authoritative books as well as upon his own experience in fields of science and endeavor to which his testimony relates.

(Citations and punctuation omitted.) Id. at 389-390 (2). “Generally speaking, expert testimony as to the practices of an industry is admissible, as is expert testimony as to whether a particular condition is safe or unsafe.” (Citations and punctuation omitted.) Gilbert v. CSX Transp., 197 Ga. App. 29, 31 (1) (397 SE2d 447) (1990); see also Anderson v. Turton Dev., 225 Ga. App. 270, 273 (1) (483 SE2d 597) (1997); Wooten v. Central Ga. Elec. Membership Corp., 214 Ga. App. 290, 291 (447 SE2d 672) (1994). Thus, the expert witness can testify regarding national standards, but the standards are not admissible alone without such predicate expert testimony.

Decided August 10, 1999

Eugene C. Brooks IV, Russell M. Stookey, for appellant.

Decker & Hallman, William W. Briggs, for appellee.

Judgment reversed.

Pope, P. J., and Smith, J., concur.

       Further, we note that “[PJrivately established rules are admissible as illustrative of negligence, but the violation of such a rule is not negligence in and of itself.” (Citations and punctuation omitted.) Luckie v. Piggly-Wiggly &c., 173 Ga. App. 177, 178 (325 SE2d 844) (1984); accord Davis v. GBR Properties, 233 Ga. App. 550, 551 (1) (504 SE2d 204) (1998); DuPree v. Keller Indus., 199 Ga. App. 138, 142 (1) (404 SE2d 291) (1991).


text:
    A99A1039.
    PUCKETT v. THE STATE.
    (521 SE2d 634)
   Eldridge, Judge.

Steven Glenn Puckett appeals a Fayette County State Court’s denial of his plea in bar. In addition, he challenges the trial court’s denial of his motion to suppress the results of his breath test. We affirm the trial court’s rulings.

1. Following his arrest, Puckett faced two state law offenses: OCGA § 40-6-391 (a) (1), DUI — less safe driver; and OCGA §§ 40-6-48 and 40-6-1, failure to maintain a lane. In addition, Puckett was charged with a violation of § 14-2 of the Peachtree City Code of Ordinances, resisting/interfering with arrest. In the Peachtree City Municipal Court, Puckett filed a motion requesting to have all three charges bound over to the State Court of Fayette County for a jury trial. The municipal court bound over the two state charges, but kept jurisdiction over the municipal offense. Puckett was found guilty on the municipal offense.

Thereafter, based on double jeopardy grounds, Puckett filed in the Fayette County State Court a plea in bar as to the state law offenses, contending that, pursuant to OCGA § 16-1-7 (b), the State was required to prosecute Puckett for all crimes arising from the same conduct, and thus, the State’s failure to prosecute the DUI and failure to maintain a lane offenses in conjunction with the ordinance violation resulted in a statutory bar as to the untried state law offenses. The trial court disagreed and denied the plea in bar. We concur in that judgment.

OCGA § 16-1-7 (b) provides that “[i]f the several crimes arising from the same conduct are known to the proper prosecuting officer at the time of commencing the prosecution and are within the jurisdiction of a single court, they must be prosecuted in a single prosecution.” (Emphasis supplied.)

Puckett is correct that, initially, the Peachtree City Municipal Court had jurisdiction over all three offenses. However, when Puckett filed his motion requesting a jury trial, the municipal court was divested of jurisdiction over the state law offenses of DUI and failure to maintain a lane. OCGA § 40-13-23 (a); see also OCGA § 15-9-30.6 (c). The municipal court retained jurisdiction over the ordinance violation. Kolker v. State, 260 Ga. 240 (391 SE2d 391) (1990). Accordingly, there was no error in disposing of the ordinance violation in municipal court, while binding over the state law offenses for a jury trial in state court, as per Puckett’s request. “OCGA § 16-1-7 (b) does not preclude successive state and municipal prosecutions, only successive prosecutions for state crimes.” (Citation and punctuation omitted.) Dickinson v. State, 191 Ga. App. 467, 468 (382 SE2d 187) (1989). See also Fuller v. State, 169 Ga. App. 468, 469 (313 SE2d 745) (1984). Notably, “[o]ne cannot complain of a judgment, ruling or result he has procured or aided in causing by his own strategy, tactics or conduct. [Cits.]” Turney v. State, 235 Ga. App. 431, 433-434 (509 SE2d 670) (1998).

2. Puckett claims error in the trial court’s denial of his oral motion in limine to suppress the result of his blood alcohol test. This enumeration is bottomed on the following set of facts, construed “most favorably to the upholding of the trial court’s findings and judgment”:

At just after midnight on March 28, 1996, Captain S. Pye of the Peachtree City Police Department concluded his tour of duty on the evening shift. It had been raining very heavily that evening; “[t]he rain had literally been a downpour, just a torrential downpour, up until 11:30 [p.m.]” A deputy was driving Pye home when the officers spotted “on Peachtree Parkway south, right there at Center Green, there was a large area of grass and mud that had been disturbed obviously by a vehicle. . . . The median was very tom up. A lot of mud displaced in the median, a lot of grass throwed [sic] everywhere.” It was clear that a motor vehicle had done the damage.

The vehicle had entered the median, slid to the driver’s side, slid to the left, come within just a matter of four to six inches, probably, of hitting a Bradford Pear there in the median of the road. It came back on the road slightly, went back into the median tearing the grass again and exiting back out of the median almost rolling over into a four-inch-high curb.

The vehicle left a mud trail originating from the damaged area in the median, which trail the officers followed. “From that point on, there was a steady trail of huge clumps of mud and mud debris and grass on the left-hand lane as you’re heading south on Peachtree Parkway. It was just like somebody had left a stream from there to where the vehicle was finally located.” The trail ended at appellant Puckett’s residence on Brookwood Drive.

Right in the driveway was — I believe the truck color was black and gray, black and silver-colored truck, if I am not mistaken!,] ... on the driver’s side of the truck, there was still, indeed, wet, fresh dripping mud actually dripping off and hitting the ground while we were sitting out front of the house radioing the tag in of the vehicle.

In addition, “[t]he whole hood of the truck, the engine compartment of the truck, was still hot. The engine hood was still warm to the touch.”

Captain Pye knocked on the front door of the residence. Puckett answered the door.

As soon as he opened the door, there was an immediate odor of alcoholic beverage that hit me when he opened the door . . . there was an immediate odor of an alcoholic beverage coming from his direction and from his ... it appeared to me his person. . . . His eyes were red and bloodshot and watery.

Pye asked to see Puckett’s license and insurance. Upon such request, Puckett exited the house and retrieved his license and proof of insurance from the truck. At that time, it was ascertained that the odor of alcohol was indeed emanating from Puckett’s person. While Puckett was getting his license and insurance, Pye spoke with Puckett’s fiancee, who confirmed that they had recently returned from dinner where they had “had some drinks.” Puckett’s fiancee stated that they had consumed no alcohol since returning home from dinner.

Thereafter, in the driveway beside the truck, Pye interviewed Puckett. “I walked outside to the pickup truck. ... At that time I advised Mr. Puckett of his Miranda rights. We were standing at the — I think the left front headlight of his truck right in front of his garage when I was reading the card.” At first Puckett stated that there was mud on his truck because “he had to pull a friend out of a mud hole at 3:30 that afternoon.” However, when Pye expressed doubt that the mud could have remained on the truck since 3:30 with the amount of rain that had fallen, Puckett admitted to Pye that “well, the mud could’ve came up when I drove home from going to dinner and back.” Puckett also admitted that he had consumed alcohol during dinner.

At that time, in the driveway beside the truck, Pye placed Puckett under arrest.

I told him, I said, you need to go [in] side and you need to get some shoes. I said I am going to ask you to come down to the station to take a DUI test and we are also going to finish talking about the damage to city property. ... So once we left from the truck and went inside, he walked in and walked to the right where I just described was the kitchen, living room area. At that time I started reading his Implied Consent.

Puckett was transported to the precinct where a breath test was administered. His blood alcohol content registered .18.

Puckett contends that his arrest was illegal because (a) the arrested Puckett “without probable cause, without a warrant and without seeing Appellant commit a crime in their presence or within their immediate knowledge as prohibited by OCGA § 17-4-20”; and (b) pursuant to Steagald v. United States, 451 U. S. 204 (101 SC 1642, 68 LE2d 38) (1981), Puckett “was arrested in his home without a warrant and without exigent circumstances.” Thus, Puckett contends that the results of his breath test should have been suppressed as a consequence of an illegal arrest. We disagree with Puckett’s contentions.

(a)

A warrantless arrest is constitutionally valid if, at the moment the arrest is made, the facts and circumstances within the knowledge of the arresting officers and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the accused had committed or was committing an offense.

(Citations and punctuation omitted.) Bishop v. State, 268 Ga. 286, 288 (2) (486 SE2d 887) (1997); Davis v. State, 203 Ga. App. 227 (416 SE2d 771) (1992); see also OCGA § 17-4-20 (a).

Here, there was probable cause for arrest because, based on the officer’s personal observations and initial investigation which included the non-custodial interviews with both Puckett and his fiancee: (1) Puckett drove his truck immediately after consuming alcohol with dinner; (2) during the ride home from dinner, Puckett lost control of his truck, twice swerving it off the roadway and onto the median, barely missing a tree; (3) Puckett only recently exited the truck at his residence since his truck’s engine was still warm and fresh mud was still dripping from the body of the truck; (4) the only alcohol consumed by Puckett was just prior to his recent drive home; and (5) shortly after exiting the truck, Puckett still smelled of alcohol and his eyes were bloodshot and watery. Accordingly, Pye “knew facts and circumstances, based on reasonably trustworthy information, sufficient to warrant a prudent man to believe that [Puckett] had committed an offense,” i.e., driving while under the influence of alcohol to the extent that he was a less safe driver pursuant to OCGA § 40-6-391 (a) (1). (Citations and punctuation omitted.) Cothran v. State, 177 Ga. App. 58 (1) (338 SE2d 513) (1985); Ellis v. State, 164 Ga. App. 366-367 (2) (296 SE2d 726) (1982).

(b)

Except in such special situations, [the United States Supreme Court has] consistently held that the entry into a home to conduct a search or make an arrest is unreasonable under the Fourth Amendment unless done pursuant to a warrant. See Payton v. New York, 445 U. S. 573 [(100 SC 1371, 63 LE2d 639)] (1980); Johnson v. United States, 333 U. S. 10, 13-15 [(68 SC 367, 92 LE 436)] (1948).

Steagald v. United States, supra at 211-212.

However here, pursuant to Captain Pye’s testimony, Puckett was not arrested in his home; he was arrested in his driveway when Pye told him that they were going inside to get Puckett’s shoes, because Puckett was going to the station for a “DUI test.” State v. Nelson, 261 Ga. 246 (1) (404 SE2d 112) (1991). Accordingly,

[t]here was . . . evidence adduced at the hearing from which the trial court was further authorized to find that appellant’s arrest had occurred [in the driveway] of his house, after he had complied with the request of a police officer to step outside. An arrest of appellant under such circumstances would not constitute an arrest which was made inside his home. Mincey v. State, 251 Ga. 255, 260 (6) (304 SE2d 882) (1983). See also United States v. Santana, 427 U. S. 38, 41 (II) (96 SC 2406, 49 LE2d 300) (1976) (holding that, for Fourth Amendment purposes, one who is in the threshold of his dwelling is in a public place and not within the dwelling). Accordingly, appellant’s reliance on Payton v. New York, [supra], [Steagald v. United States, supra], and similar cases as authorizing the grant of his motion to suppress is misplaced. All of those cases involved the warrant-less entry by the police into the private living quarters of the accused for the purpose of making an arrest or of conducting a search therein. Appellant’s cited cases are, therefore, factually distinguishable and they are, for that reason, legally inapposite. [Cit.] It follows the trial court did not err in denying appellant’s motion to suppress.

(Punctuation omitted; emphasis in original.) Keyser v. State, 187 Ga. App. 95-96 (369 SE2d 309) (1988). See also Collins v. State, 191 Ga. App. 289, 292 (7) (381 SE2d 430) (1989); Malpass v. State, 173 Ga. App. 690, 691 (327 SE2d 753) (1985).

Judgment affirmed.

Pope, P. J., and Smith, J., concur.

Decided August 11, 1999

Lee Sexton, for appellant.

Steven L. Harris, Solicitor, for appellee.

       No court defined in this article [municipal and probate courts] shall have the power to dispose of traffic misdemeanor cases as provided in this article unless the defendant shall first waive in writing a trial by jury. If the defendant wishes a trial by jury, he shall notify the court and, if reasonable cause exists, he shall be immediately bound over to the court in the county having jurisdiction to try the offense, wherein a jury may be impaneled.
      OCGA § 40-13-23 (a).

        Tate v. State, 264 Ga. 53, 54 (1) (440 SE2d 646) (1994).

       Puckett retrieved Ms license and Msurance from the truck wMle barefoot: “I [Pye] even asked Mm made a comment to Mm, ‘Do you want to get some shoes?’ And he [Puckett] said, no, that is fine, and walked out to the truck barefooted, wet ground, to produce the insurance.”

       We note that, both before this Court and the court below, Puckett has contested neither the officer’s investigation pursuant to Terry v. Ohio, 392 U. S. 1, 23 (88 SC 1868, 20 LE2d 889) (1968), nor the scope of such investigation which led to the development of probable cause to arrest.

       “Under our statute a person is under arrest whenever his liberty to come and go as he pleases is restrained, no matter how slight such restraint may be. OCGA § 17-4-1.” (Citation and punctuation omitted.) State v. Nelson, 261 Ga. 246, 247 (1) (b) (404 SE2d 112) (1991). “An arrest is complete whenever the liberty of a person to come and go as he pleases is restrained, even though the arresting officer does not expressly inform the person that he is under arrest.” Williams v. State, 166 Ga. App. 798, 799 (1) (305 SE2d 489) (1983).


text:
    A99A1426, A99A1427.
    T. J. BROOKLYNE, INC. v. SULLIVAN 75, L.R; and vice versa.
    (521 SE2d 644)
   Eldridge, Judge.

These appeals arose out of a dispossessory action filed on March 12, 1998, by Sullivan 75, L.P. (“Sullivan”), against T. J. Brooklyne, Inc. (“Brooklyne”). In such action, Sullivan sought to have Brooklyne removed from the property because Brooklyne had failed to pay its rent timely and because Brooklyne was holding over beyond the term. On April 3, 1998, Brooklyne filed its response to the disposses-sory action, which included a counterclaim for abusive litigation.

Brooklyne paid the March rent into the registry of the court. Brooklyne also made a payment into the registry of the court of the amount which it believed to be due for April rent. On April 14, 1998, the attorneys for Sullivan and Brooklyne entered into a consent order requiring the payment of an additional $175.15 by either cash, cashier’s check, or certified funds into the registry of the court on or before 5:00 p.m. on April 17, 1998. The consent order further required the payment of future rent owed by Brooklyne to be paid into the registry of the court and for all payments made by Brooklyne to be paid instanter to Sullivan by the clerk.

Brooklyne failed to make the payment of $175.15 into the registry of the court by 5:00 p.m. on April 17, 1998. Therefore on April 20, 1998, Sullivan applied for immediate possession. On such date, an order was entered granting immediate possession to Sullivan.

On April 29, 1998, Brooklyne filed a motion to set aside the consent order entered into between the parties on April 14, 1998. No motion to set aside the order granting immediate possession of the premises was filed. On May 15, 1998, Brooklyne filed an application for stay of execution in which it sought to stay the enforcement of the writ of possession. On May 20, 1998, the parties entered into a consent order in which they agreed to a stay of the execution of the order granting immediate possession to Sullivan until Brooklyne’s motion to set aside could be heard by the trial court. On June 22, 1998, the trial court held a hearing on Brooklyne’s motion to set aside. On June 25, 1998, the trial court entered an order which denied Brooklyne’s motion to set aside the April 14,1998 consent order; vacated the consent order entered on May 20, 1998, which stayed the execution of the writ of possession; and granted Sullivan immediate possession of the property. Brooklyne timely appealed from the entry of this order.

Case No. A99A1426

1. Brooklyne contends that the trial court erred when it denied its motion to set aside and lifted the stay of execution. Brooklyne argues that “the trial court has plenary power to set aside, modify or alter an order during the term it was granted.”

In the motion to set aside the April 14, 1998 consent order, Brooklyne contended that Sullivan misrepresented the amount that Brooklyne owed under the lease; that the $175.15 it had agreed to pay was not the correct amount due; that Brooklyne paid $175.15 directly to Sullivan; and that such amount was returned to Brook-lyne with the notation that such charges were for “late charges, common area maintenance (“CAM”) expenses recovery and janitorial.” Brooklyne also contended that any net adjustments under the lease were not due until April 20, 1998, the date of the next statement.

Cobb County’s terms of court begin on the second Monday of January, March, May, July, September, and November. OCGA § 15-6-3 (11). Thus, Brooklyne’s April 29, 1998 motion to set aside was filed within the same term of court as the April 14, 1998 consent order it sought to set aside.

It has always been the rule in this State that where a judgment is not based on the verdict of a jury, but is the act of the judge, it is in the breast of the court during the term in which it is rendered, and in the exercise of a sound discretion, the judge may set it aside. Thus, whatever limitations may exist in OCGA § 9-11-60 (d) for post-term motions to set aside, a trial judge has the power during the same term of court at which a judgment is rendered to reverse, correct, revoke, modify or vacate the judgment in the exercise of his discretion.

(Citations and punctuation omitted.) Piggly Wiggly Southern v. McCook, 216 Ga. App. 335, 337 (454 SE2d 203) (1995). “[I]n the absence of a clear abuse of discretion, this [C]ourt will not reverse a trial court’s refusal to set aside a judgment. [Cit.]” Powell v. Darby Bank &c. Co., 163 Ga. App. 524, 525 (2) (295 SE2d 222) (1982).

The evidence before the trial court on the motion to set aside showed the following: There was a prior dispossessory action between the parties in 1997. In such prior action, the trial court ordered Brooklyne to make all of its rent payments into the registry of the court. Brooklyne failed to make all of such rent payments in a timely manner. By letter dated March 11, 1998, Sullivan notified Brooklyne that it was terminating its lease for failure to pay past rent into the registry of the court and failure to provide Sullivan with a copy of Brooklyne’s certificate of insurance and HVAC maintenance agreement, as required under the lease. Subsequent to the March 11, 1998 letter, the trial court granted judgment in favor of Brooklyne in the prior action.

On April 14, 1998, when this case initially came before the trial court for a hearing, the only issue for the trial court’s decision was the amount of rent to be paid into the registry of the court pursuant to OCGA § 44-7-54, since Brooklyne had filed a jury demand. At the time of the hearing, Brooklyne had paid $1,904.62, the amount due for March rent, into the registry of the court and had made another payment of $1,904.62 in early April for April rent. However, according to the terms of the lease between the parties, there was an increase in the rent due for April. Therefore, at the time of the hearing, the only rent past due was the increase in April’s rent and reconciliation of CAM expenses, taxes, and insurance.

Under the terms of the lease between Brooklyne and Sullivan, Sullivan, on an annual basis, would reconcile the monthly charges paid by Brooklyne for CAM expenses with the actual charges incurred by Sullivan. Brooklyne was sent an invoice reflecting its actual pro rata share for CAM expenses and the amount it had paid. If Brooklyne had paid in excess of its actual CAM expenses, it received a credit. If it had paid less, it was required to pay the additional amount due within the time set forth under the lease. In addition, the lease required Brooklyne to pay a pro rata share of any increases in taxes and insurance. In March 1998, Brooklyne received invoices dated March 12, 1998, and March 16, 1998, showing the amount due under the lease after Sullivan’s reconciliation for CAM expenses, taxes, and insurance. The invoice indicated that the net adjustment would be reflected on Brooklyne’s next statement, which was sent on April 20, 1998. However, under the terms of the lease, Sullivan was not required to send monthly statements to Brooklyne; Sullivan sent such monthly statements as a reminder to their tenants. The lease required that the sums due as a result of the reconciliation were due 30 days from the date of the invoices. Also, by letter dated April 10,1998, Sullivan informed Brooklyne that the reconciliation of CAM expenses, insurance, and taxes was due.

After reviewing Sullivan’s ledgers, the parties agreed that $175.15 was due for reconciliation of CAM expenses, insurance, and taxes and entered into the April 14, 1998 consent order in which Brooklyne agreed to pay such sum into the registry of the court by either cash, cashier’s check, or certified funds by April 17,1998, at or before 5:00 p.m. While Sullivan admits there was a mathematical error of $20 and that the actual amount due was $155.15, there was no error in the actual charges shown on the ledgers, which Brooklyne had the opportunity to examine.

Brooklyne did not pay any amount into the registry of the court by April 17, 1998. On April 17, 1998, counsel for Brooklyne called counsel for Sullivan and indicated that he thought there was a mathematical error of $20 and that he was sending a regular check directly to Sullivan. Counsel for Sullivan advised counsel for Brook-lyne that this was not acceptable and that he was insisting on compliance with the consent order, which required the funds to be paid by cash, cashier’s check, or certified funds into the registry of the court. Despite Sullivan’s warnings, Brooklyne mailed a check from its corporate business account for $175.15 directly to Sullivan. On April 20, 1998, after confirming with the clerk that the $175.15 had not been paid into the registry of the court, Sullivan applied for and was granted a writ of possession.

The corporate check which Brooklyne mailed directly to Sullivan was sent to a lockbox maintained by the Brannen/Goddard Company (“Brannen/Goddard”), which manages Sullivan’s lease accounts. In the ordinary course of business, the lockbox company made a copy of the check it received from Brooklyne and indicated on the copy of the check the date the check was received. The lockbox company provided a copy of the check and the original envelope to Brannen/God-dard. Brannen/Goddard’s records indicated that Brooklyne’s corporate check was mailed on April 18, 1998, the day after the funds should have been paid into the registry of the court and was not received by the lockbox company until April 20, 1998. Sullivan returned the $175.15 payment to Brooklyne. Brooklyne did not pay the $175.15 into the registry of the court until June 22, 1998, which was the day of the hearing on its motion to set aside judgment. Even after the untimely payment of the funds into the registry of the court, Brooklyne was still in violation of the April 14, 1998 consent order, as such funds were made by a check from Brooklyne’s corporate account and were not made by cash, cashier’s check, or certified funds.

Under the evidence before the trial court, there was no abuse of discretion in the trial court’s denial of Brooklyne’s motion to set aside the April 14, 1998 consent order. Since the April 14, 1998 consent order was not set aside and remained valid, and Brooklyne failed to comply with the term of such order, there was no error in the trial court lifting the stay of execution of the order granting immediate possession of the subject property to Sullivan. See OCGA § 44-7-54 (b); Baker v. G. T., Ltd., 194 Ga. App. 450 (391 SE2d 1) (1990).

Decided August 11, 1999.

Sidney L. Storesund, for appellant.

Harman, Owen, Saunders & Sweeney, Perry A. Phillips, for appellee.

2. Sullivan moved to dismiss Brooklyne’s appeal on two grounds: (1) the appeal was untimely, and (2) Brooklyne’s failure to timely pay the cost bill for appeal in the trial court. The trial court’s denial of Sullivan’s motion to dismiss the appeal has been appealed by Sullivan in Case No. A99A1427, and this is the proper forum for this Court to address such alleged error. Further, this appeal is from the trial court’s order of June 25, 1998, which denied Brooklyne’s motion to set aside the April 14, 1998 consent order. No other issues remain for the trial court’s determination. Brooklyne’s failure to appeal the order of April 20, 1998, which granted immediate possession of the property to Sullivan, in no way precludes this Court from reviewing the trial court’s later order denying Brooklyne’s motion to set aside. In its motion to set aside, Brooklyne relied upon the inherent power of the trial court to modify or set aside its judgment within the same term of court. “Appeal from this ‘discretionary’ power of the trial court is direct. [Cit.]” Harbor Light Marina v. Ellis, 190 Ga. App. 389 (378 SE2d 746) (1989). Sullivan’s motion to dismiss this appeal is without merit and is denied.

Case No. A99A1427

3. Sullivan alleges the trial court abused its discretion in failing to grant its motion to dismiss Brooklyne’s appeal in Case No. A99A1426 for failure of Brooklyne to timely pay the cost of appeal. Having affirmed the trial court’s ruling in Division 1, this enumeration of error is moot.

Judgment affirmed.

Pope, P. J., and Smith, J., concur.

       A transcript of the hearing on the motion to set aside is not part of the record on appeal. Thus, our review is limited to the evidence which is part of the record on appeal.


text:
    A99A1431.
    BURNETT v. THE STATE.
    (521 SE2d 629)
   Eldridge, Judge.

Appellant Reginald Burnett challenges his conviction for armed robbery and possession of a firearm during the commission of a crime. We affirm.

1. In his first enumeration, Burnett contends that the evidence was insufficient to support the jury’s verdict. However, on appeal, the appellant no longer enjoys a presumption of innocence, and the evidence is viewed in a light most favorable to the verdict. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Grant v. State, 195 Ga. App. 463, 464 (393 SE2d 737) (1990). When reviewing the sufficiency of evidence on appeal, this Court does not weigh the evidence presented or determine the credibility of witnesses. Jackson v. Virginia, supra. “[T]he relevant question is whether . . . any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. [Cit.]” (Emphasis in original.) Id. at 319.

Viewed in this light, the evidence in this case showed that on August 25, 1993, Burnett, Henry Stephens, and two co-defendants arrived at a Days Inn Motel in Richmond County. Deputy Timothy Johnson, a Richmond County Sheriff’s Department drug enforcement officer who was acting undercover as a drug buyer, previously had arranged to meet the co-defendants at the motel under the pretext of conducting a drug transaction. Additional police officers were stationed in the next room and monitored the attempted drug transaction through the use of a videotape camcorder and an audiotape bugging device; both tapes were entered into evidence at trial.

Burnett testified at trial that, while waiting outside after Stephens and a co-defendant entered the motel room, he hid approximately ten ounces of cocaine under a beverage machine outside the room. He then placed a handgun in his waistband and entered the room with a small paper bag that contained only duct tape, rubber gloves, and a mask. Burnett noticed that Deputy Johnson had a gun in the back of his waistband, so he and Stephens went into the bathroom and talked about what to do next. Deputy Johnson testified that, after the two emerged from the bathroom, Burnett pointed his handgun at Deputy Johnson and told him that “this is the way this is going to happen. We’ll have to get [the money] from you.” While Burnett admitted taking his gun from his waistband, he claimed that he only “waved” it around without pointing it directly at the officer’s head. Stephens took the officer’s gun, pointed the gun at the officer, and told him to lie down. At some point, a third co-defendant attempted to leave the room with the officer’s money. Recognizing that the drug sting had become potentially violent, police officers next door stormed the motel room. During the scuffle that ensued, both Burnett and Stephens were shot and wounded.

A few days after the incident, Stephens gave a detailed statement to the police regarding his involvement in the crime. The statement’s references to the other co-defendants were redacted, and the statement was presented to the jury at trial in April 1994. In addition to the statement, the videotape, and the audiotape, the jury also heard testimony from Deputy Johnson, other investigative personnel, and the four co-defendants. After hearing this evidence, the jury convicted Burnett and Stephens on both counts and acquitted the two remaining co-defendants.

This Court finds that the evidence presented was sufficient for rational jurors to find Burnett guilty beyond a reasonable doubt of armed robbery and possession of a firearm during the commission of a crime. Jackson v. Virginia, supra.

2. In his second enumeration of error, Burnett asserts that the trial court’s denial of his request to give both opening and concluding arguments to the jury during summation was reversible error as a matter of law. After the close of evidence, the trial court ruled that the four co-defendants would receive 90 minutes total for their opening and concluding arguments; the co-defendants could decide how they would allocate this time; and each co-defendant would be allowed to argue only once — either before or after the State, but not both. Burnett objected to this ruling on the record, thereby preserving this issue for appeal.

This issue previously has been decided adversely to Burnett in the appeal of his co-defendant, Henry Stephens. In Stephens v. State, 233 Ga. App. 32, 34 (2) (503 SE2d 311) (1998), this Court held that the trial court’s refusal to allow a defendant to give a concluding argument to the jury when he had not introduced evidence other than his own testimony was error. See also OCGA § 17-8-71. However, we also held that such error did not constitute grounds for automatically reversing Stephens’s conviction and found that, under the circumstances of the case, the trial court’s error was harmless, citing McDuffie v. Jones, 248 Ga. 544, 547 (2) (283 SE2d 601) (1981), as follows:

As in McDuffie, supra at 548, no correlation can be discerned between opening or concluding closing argument and conviction or acquittal. Two of Stephens’s codefendants [including the appellant herein] argued before the State; one was acquitted and one convicted. Stephens and the third codefendant argued after the State; Stephens was convicted while his codefendant was acquitted. “This defendant was not denied the right to argue his case to the jury and in fact did so. He was merely prohibited from making the closing argument. The co-defendant who had the closing argument was also found guilty by the jury. In view of the evidence against the defendants, it is highly probable, if not a certainty, that the error did not contribute to the conviction. (Cit.) Thus, a new trial is not required by the trial court’s harmless error.” Id.

Decided August 11, 1999.

Jeffrey S. Bowman, for appellant.

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

Stephens, supra at 34 (2). See also Hayes v. State, 268 Ga. 809, 813-814 (7) (493 SE2d 169) (1997) (the presumption of harm arising from the trial court’s error was overcome by the compelling evidence against the defendant, which made his asserted defense “virtually incredible”).

Even so, Burnett claims that our ruling in Stephens is not dis-positive due to the fact that there was more evidence presented against Henry Stephens, including a detailed statement he had given to the police a few days after the robbery. See Givens v. State, 264 Ga. 522 (448 SE2d 687) (1994) (finding reversible error when the defendant presented a plausible defense); Dasher v. State, 233 Ga. App. 833 (505 SE2d 792) (1998). Further, he argues that Stephens, in fact, was permitted to give a concluding argument after the State.

However, as discussed above, Stephens was convicted even though he had the opportunity to give the final concluding argument, while another co-defendant was acquitted even though he, like Burnett, was prevented from arguing after the State. Accordingly, “[i]n view of the lack of correlation between [Burnett’s] position in closing argument and conviction or acquittal, as well as the overwhelming evidence implicating [Burnett] in the robbery, including video and audio tape of the incident and his own [inculpatory admissions at trial],” Stephens, supra at 34 (2), we find that, under the circumstances of this case, the trial court’s error in refusing to allow each defendant to give both opening and concluding arguments during summation was harmless.

Judgment affirmed.

Pope, P. J., and Smith, J., concur.

       Additional facts were presented in the appeal of Burnett’s co-defendant, Henry Stephens. See Stephens v. State, 233 Ga. App. 32 (503 SE2d 311) (1998). The two remaining co-defendants were acquitted of both charges.

       Burnett filed a motion for new trial on May 26,1994, but a hearing was not conducted until July 1, 1998. The trial court granted Burnett’s request for an out-of-time appeal on December 22,1998, and a notice of appeal was filed on December 23,1998.


text:
    A99A1499.
    HARDY v. GEORGIA BAPTIST HEALTH CARE SYSTEMS, INC.
    (521 SE2d 632)
   Eldridge, Judge.

On June 7, 1996, Tina Hardy, plaintiff-appellant, sued Georgia Baptist Health Systems, Inc. d/b/a Liberty Home Health Services, defendant-appellee, on claims arising from her termination as an employee. These claims were based upon three federal issues theories, as follows: (1) 42 USC § 1985 (3); (2) equal protection, and the privileges and immunity clause, as guaranteed by the Fourteenth Amendment; and (3) the free speech clause of the First Amendment. There were also two pendent state issues, i.e., a claim of intentional infliction of emotional distress and a defense pursuant to OCGA § 31-39-7. In the federal action, defendant moved for, and on April 25, 1997, was granted summary judgment on all theories.

In anticipation of such adverse determination, on February 7, 1997, plaintiff filed this defamation action against the defendant. By subsequent amendments on February 14, 1997, July 9, 1997, and July 25,1997, plaintiff expanded the complaint also to allege conspiracy to terminate and wrongful termination in retaliation for free speech, intentional infliction of emotional distress, and a defense pursuant to OCGA § 31-39-7. Defendant again moved for summary judgment.

Defendant did not raise in either the answer or the amended answer the affirmative defense of res judicata. See OCGA § 9-11-8 (c). However, defendant raised the affirmative defense of res judicata as part of its motion for summary judgment and filed copies of the federal complaint and federal order granting summary judgment.

On December 7, 1997, the trial court granted summary judgment on the basis of res judicata. On January 2, 1998, plaintiff filed her notice of appeal.

The enumeration of error is that the trial court erred in granting summary judgment. We do not agree.

1. Plaintiff first contends that the trial court erred in considering the affirmative defense on summary judgment when it had not been first raised by answer or amendment. However, subsection (c) of OCGA § 9-11-8 does not imply that an affirmative defense can be raised only by answer. OCGA § 9-11-8 (c); Brown v. Moseley, 175 Ga. App. 282 (333 SE2d 162) (1985).

The purpose of the requirement that affirmative defenses be pleaded is to prevent surprise and to give the opposing party fair notice of what he must meet as a defense. If it is not pleaded it is generally held that the defense is waived, but if it is raised by motion, or by special plea in connection with the answer or by motion for summary judgment there is no waiver. [Cits.]

Phillips v. State Farm Mut. Auto. Ins. Co., 121 Ga. App. 342, 346 (2) (173 SE2d 723) (1970); Daniel & Daniel, Inc. v. Cosmopolitan Co., 146 Ga. App. 200, 201 (1) (245 SE2d 885) (1978). An affirmative defense can be raised for the first time on motion for summary judgment or other motions. O’Quinn v. O’Quinn, 237 Ga. 653, 654 (229 SE2d 428) (1976); Beazley v. Williams, 231 Ga. 137, 138 (200 SE2d 751) (1973); Rimes Tractor & Equip, v. Agricredit Acceptance Corp., 216 Ga. App. 249, 250-251 (454 SE2d 564) (1995); Brown v. Quarles, 154 Ga. App. 350, 351-352 (1) (268 SE2d 403) (1980); Phillips v. State Farm Mut. Auto. Ins. Co., supra at 346; Ezzard v. Morgan, 118 Ga. App. 50, 51 (1) (162 SE2d 793) (1968). However, an affirmative defense cannot be raised for the first time on oral argument on motion for summary judgment, because the opposing party has been afforded no notice to defend against such surprise affirmative defense. Hansford v. Robinson, 255 Ga. 530 (1) (340 SE2d 614) (1986). In this case, the trial court had the issue of res judicata before it on the record.

2. OCGA § 9-12-40 provides that “[a] judgment of a court of competent jurisdiction shall be conclusive between the same parties and their privies as to all matters put in issue or which under the rules of law might have been put in issue in the cause wherein the judgment was rendered.” Plaintiff brought the action in federal district court against the defendant on substantially the same issues and such trial court entered judgment adverse to her. In such federal action there was an adjudication on the merits by motion for summary judgment. See OCGA § 9-12-42.

While the issues of defamation were not raised in the federal action, such pendent state claims could have been litigated.

This court has held in Pope v. City of Atlanta, 240 Ga. 177 (240 SE2d 241) (1977), and, more recently, in Hill v. Wooten, 247 Ga. 737 (279 SE2d 227) (1981), that where a party fails to present a state law claim in federal court, a later suit in the state courts will be barred if the state claim could have been litigated in the federal court under its pendent jurisdiction. [Id.] at 738.

(Punctuation omitted.) McNeal v. Paine, Webber, Jackson &c., Inc., 249 Ga. 662, 663 (1) (293 SE2d 331) (1982). “In order for the federal and state questions to be considered as one ‘case,’ the federal question must be sufficiently substantial to confer subject matter jurisdiction, and the federal and state claims ‘must derive from a common nucleus of operative fact.’ ” Id.; accord Bradley v. Ga. Institute of Technology, 228 Ga. App. 216, 218 (1) (a) (491 SE2d 453) (1997); Danzell v. Cannon, 224 Ga. App. 602, 603 (1) (481 SE2d 588) (1997); Franklin v. Gwinnett County Pub. Schools, 200 Ga. App. 20, 21-22 (407 SE2d 78) (1991).

Decided August 11, 1999.

Lucinda Perry, for appellant.

Duvall, McCumber & Doverspike, Jerry D. McCumber, Arnall, Golden & Gregory, Stacy G. Freeman, for appellee.

The federal district judge determined that the federal question was sufficiently substantial to confer subject matter jurisdiction, because she rendered a judgment not only on the merits of the federal questions but also on the pendent state claims as well.

Therefore, the trial court properly granted summary judgment on the basis that the prior adjudication in federal court barred pursuit of the defendant by operation of the doctrine of res judicata. McNeal v. Paine, Webber, Jackson &c., Inc., supra at 663.

Judgment affirmed.

Pope, P. J., and Smith, J., concur.


author: Miller, Judge.

text:
    A99A1226.
    WILLIAMS v. THE STATE.
    (521 SE2d 650)
   Miller, Judge.

Charles Williams was convicted of four counts of aggravated assault and one count of possession of a firearm during the commission of a felony, all arising out of an incident where he threatened the occupants of a residence with a gun and made demands for money. Challenged are the sufficiency of the evidence and the effectiveness of his counsel.

1. Based on the evidence presented, could a rational trier of fact have found beyond a reasonable doubt that Williams committed the crimes? See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). We hold in the affirmative.

Five eyewitnesses, each of whom positively identified Williams in court, established that Williams burst into the residence, demanded money, placed a gun to the head of two occupants (pulling the trigger twice on one), pointed the gun threateningly at two other occupants, and then threatened and struck a fifth occupant with the gun. The evidence sufficed to sustain the convictions.

Williams contends that the witnesses contradicted each other as to their locations in the residence during the incident and thus are not worthy of belief as a matter of law. But

[c]onflicts in the testimony of the witnesses, including the State’s witnesses, are a matter of credibility for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.

(Citations and punctuation omitted.) Ford v. State, 234 Ga. App. 301, 302 (1) (506 SE2d 668) (1998).

2. To prove his ineffective assistance of counsel claim, Williams had to show that his counsel’s performance fell below an objective standard of reasonableness and thereby prejudiced his defense. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984); Johnson v. State, 266 Ga. 380, 381 (2) (467 SE2d 542) (1996). Following a post-trial evidentiary hearing, the court found that Williams failed to make these showings, which finding is not disturbed unless clearly erroneous. Id. at 383 (2). Evidence supported the court’s findings on Williams’ three claims of ineffective assistance.

Williams first contends his counsel erred in failing to strike a juror. He claims he informed counsel that he was acquainted with the juror, but counsel testified that he did not remember being informed of this, and the juror denied knowing Williams. Moreover, the juror was selected as an alternate and did not participate in the deliberations.

Next Williams contends his counsel failed to vigorously cross-examine the eyewitnesses on the inconsistencies in their testimony regarding their respective locations in the residence when the incident occurred. Williams did not query his counsel on this issue at the new trial hearing nor otherwise argue the issue below. “Failure of post-judgment counsel at the new trial hearing to raise a particular ground for ineffective assistance against trial counsel waives appellate review.” (Footnote omitted.) Mackey v. State, 235 Ga. App. 209 (1) (509 SE2d 68) (1998).

Even if the matter had not been waived, the record reflects that cross-examination covered this point. Because the alleged inconsistencies were apparent from the direct examination, further cross-examination on this issue may have been superfluous and potentially harmful in that the witnesses may have been able to explain the inconsistencies. This falls within the realm of trial strategy and tactics, which do not equate with ineffective assistance of counsel. Etheridge v. State, 210 Ga. App. 96, 98 (1) (435 SE2d 292) (1993).

Williams concludes with the assertion that his counsel erred in advising him not to testify. The court examined Williams at length about his decision not to testify and determined that he made that decision knowingly and voluntarily. Counsel had earlier advised him not to testify because of Williams’ background and because he perceived Williams’ version to lack credibility. Such advice is a classic example of trial strategy and tactics that do not fall outside the wide range of reasonable professional conduct. Jenkins v. State, 268 Ga. 468, 473 (10) (491 SE2d 54) (1997); Etheridge v. State, 228 Ga. App. 788, 790 (2) (492 SE2d 755) (1997); see Bridges v. State, 205 Ga. App. 664, 666 (2) (423 SE2d 293) (1992).

Decided August 12, 1999.

Robert A. Butler, for appellant.

Charles H. Weston, District Attorney, Wayne G. Tillis, Myra Z Christian, Assistant District Attorneys, for appellee.

Judgment affirmed.

Andrews, P. J, and Ruffin, J., concur.


author: Ellington, Judge.

text:
    A99A1353.
    BURROUGHS v. THE STATE.
    (521 SE2d 652)
   Ellington, Judge.

Arthur Burroughs appeals the denial of his motion for an out-of-time appeal, arguing his trial counsel neglected to file a notice of appeal or motion for new trial on his behalf. Burroughs also contends he was entitled to the assistance of counsel on his out-of-time appeal motion. For the following reasons, we affirm.

1. As we have held:

“ ‘Our courts have long recognized the right to effective assistance of counsel on appeal from a criminal conviction, and have permitted out-of-time appeals if the appellant was denied his right of appeal through counsel’s negligence or ignorance, or if the appellant was not adequately informed of his appeal rights.’ ” (Citations omitted.) Franz v. State, 208 Ga. App. 677, 678 (2) (432 SE2d 554) (1993). “ ‘The right to appeal is violated when the appointed lawyer deliberately (forgoes) the direct appeal without first obtaining his client’s consent. . . .’ (Cit.)” Moore v. State, 176 Ga. App. 882, 883 (339 SE2d 271) (1985). Such action constitutes ineffectiveness. Cannon v. State, 175 Ga. App. 741, 742 (334 SE2d 342) (1985). “A criminal defendant who has lost his right to appellate review of his conviction due to error of counsel is entitled to an out-of-time appeal.” Rowland v. State, 264 Ga. 872, 875 (2) (452 SE2d 756) (1995). However, a convicted party may, by his own conduct or in concert with his counsel, forfeit his right to appeal by sleeping on his rights. Cannon, 175 Ga. App. at 742. The disposition of a motion for out-of-time appeal hinges on a determination of who bore the ultimate responsibility for the failure to file a timely appeal. Id.

Haynes v. State, 227 Ga. App. 64, 65 (488 SE2d 119) (1997).

Following a bench trial held on June 30, 1992, Burroughs was convicted of three counts of child molestation. Burroughs admits he was advised of his appellate rights. Burroughs assumed his attorney, Albert C. Smarr, was handling the appeal because, immediately after the trial, Smarr told him that even though he saw no basis for an appeal and generally did not handle appeals, he would nevertheless “look in to it.” However, Smarr testified that within the 30-day period for filing a notice of appeal or motion for new trial, he told Burroughs that he saw no grounds for an appeal, “but that this was something [Burroughs] could pursue” with other counsel. Although Smarr did continue to represent Burroughs in a divorce case and other matters, he . did not agree to handle the criminal appeal. He told Burroughs: “If you want somebody else to do it, it won’t hurt my feelings.” In fact, Smarr received correspondence that led him to believe Burroughs had obtained other appellate counsel.

Burroughs testified that four years after his conviction, he discovered that no appeal had been filed. Burroughs admits that during that four-year period he had no discussions with Smarr about the criminal appeal — even though they discussed other legal matters. Further, when he learned that no appeal had been filed, Burroughs did nothing. He waited an additional two years before filing the motion for an out-of-time appeal. Burroughs presented no evidence suggesting an appeal would have been successful.

Given the circumstances of this case, we conclude Burroughs bore the responsibility for the failure to file timely an appeal. The court did not err in denying the motion for an out-of-time appeal. See Franz, supra.

2. Burroughs was not entitled to the assistance of counsel on his motion for an out-of-time appeal.

Under the United States Constitution, the state is required to provide counsel to indigent defendants for their trial, Gideon v. Wainwright, 372 U. S. 335 (83 SC 792, 9 LE2d 799) (1963), and for their first appeal as a matter of right, Douglas v. California, 372 U. S. 353 (83 SC 814, 9 LE2d 811) (1963), but no further. The Constitution does not even require states with multi-tiered appellate systems to appoint appellate counsel through the exhaustion of an indigent defendant’s discretionary direct appeals. Ross v. Moffitt, 417 U. S. 600 (94 SC 2437, 41 LE2d 341) (1974).

Decided August 12, 1999.

Arthur Burroughs, pro se.

J. Tom Morgan, District Attorney, Barbara B. Conroy, Assistant District Attorney, for appellee.

Gibson v. Turpin, 270 Ga. 855, 857 (1) (513 SE2d 186) (1999). Because a motion for an out-of-time appeal cannot be construed as part of a criminal defendant’s first appeal of right, Burroughs was not entitled to the assistance of appointed counsel. See Paino v. State, 263 Ga. 331 (435 SE2d 24) (1993) (no right to counsel on petition for certiorari). We find no error.

Judgment affirmed.

Blackburn, P. J, and Barnes, J., concur.