text:
    A00A0608.
    A00A0609.
    RILEY v. THE STATE. BARNES v. THE STATE.
    (534 SE2d 437)
   Andrews, Presiding Judge.

After being charged with two counts of armed robbery, possession of a firearm during the commission of a crime and possession of a sawed-off shotgun, Larry Riley and Michael Barnes pled guilty and were sentenced to fifteen years, with eight to serve, followed by seven years probation. Because the trial court gave Riley and Barnes first offender status under OCGA § 42-8-60, it did not sentence them to serve the ten-year mandatory minimum sentence required by OCGA § 17-10-6.1 (b) for serious violent felonies. As a result, the Department of Corrections refused to pick up Riley and Barnes from the Liberty County jail, contending they were given an illegal sentence because they were not given the mandatory ten-year minimum sentence.

After another hearing, the trial court declared the previous sentence void and resentenced Riley and Barnes to fifteen years, with ten to serve. Both Riley and Barnes appealed this to the Supreme Court of Georgia, claiming that the sentence violated the constitutional prohibition against ex post facto laws. They argue that at the time the crimes were committed there was no prohibition against according them first offender status.

The Supreme Court transferred the case to this Court, stating that jurisdiction was within the Court of Appeals because of its opinion in Fleming v. State, 271 Ga. 587 (523 SE2d 315) (1999). In Fleming, the Supreme Court agreed with appellants’ argument that denying them the opportunity to be treated as first offenders impermissibly altered their situations to their disadvantage and inflicted a greater punishment than was mandated at the time the crimes were committed. Id. at 590.

OCGA § 17-10-6.1 provides that any person convicted of a serious violent felony “shall be sentenced to a mandatory minimum term of imprisonment of ten years and no portion of the mandatory minimum sentence imposed shall be suspended, stayed, probated, deferred, or withheld by the sentencing court. . . .” OCGA § 17-10-6.1 (b).

The legislature amended this subsection and also enacted a new provision in OCGA § 42-8-66, the First Offender Act, to state that a defendant who is convicted of a serious violent felony as defined in OCGA § 17-10-6.1 (a) is not eligible for first offender treatment under OCGA § 42-8-60. Fleming, supra at 588-589. These provisions became effective on March 27, 1998. Id.

Decided April 25, 2000.

John E. Pirkle, for appellant (case no. A00A0608).

Phillips & Kitchings, Joseph C. Kitchings, for appellant (case no. A00A0609).

J. Thomas Durden, Jr., District Attorney, Timothy B. Lumpkin, Assistant District Attorney, for appellee.

Riley and Barnes committed the crimes charged on January 29, 1998. A crime must be construed and punished according to the provisions of the law existing at the time of its commission. Fleming, supra at 590. Therefore, the trial court erred in determining that Riley and Barnes were not eligible for first offender status. Accordingly, the above cases are reversed and are remanded to the trial court for consideration under the First Offender Act. Id. See also Horton v. State, 241 Ga. App. 605, 606 (527 SE2d 254) (1999).

Judgments reversed and cases remanded.

Ruffin and Ellington, JJ., concur.

       It should be noted that when the trial court resentenced Riley and Barnes, it relied on case law that had not yet been reversed by the Supreme Court in this opinion. See Fleming v. State, 233 Ga. App. 483 (504 SE2d 542) (1998); Burleson v. State, 233 Ga. App. 769 (505 SE2d 515) (1998).


source: Caselaw Access Project

author: Andrews, Presiding Judge.

license: Public Domain

text:
    A00A0668.
    BERKOW v. THE STATE.
    (534 SE2d 433)
   Andrews, Presiding Judge.

Oliver C. Berkow was found guilty of three counts of driving a vehicle while under the influence of alcohol: (1) driving while under the influence of alcohol to the extent that it was less safe for him to do so in violation of OCGA § 40-6-391 (a) (1); (2) driving while under the age of 21 while having an alcohol concentration of 0.02 or more in violation of OCGA § 40-6-391 (k); and (3) driving while having an alcohol concentration of 0.10 grams or more in violation of OCGA § 40-6-391 (a) (5).

The convictions were supported by evidence of a state-administered breath test which showed that, less than three hours after he was driving, Berkow had an alcohol concentration of 0.102 grams. Berkow claims that the test was not performed according to methods approved by the Division of Forensic Sciences (DFS) of the Georgia Bureau of Investigation (GBI), as required by OCGA § 40-6-392 (a) (1) (A), and, therefore, the trial court erred by denying his motion in limine to exclude the breath test results. Specifically, Berkow claims that the State failed to observe him for a period of 20 minutes prior to the test to ensure that, during this time period, he did not regurgitate previously consumed alcohol, thereby contaminating the breath test by leaving alcohol residue in his mouth.

The evidence showed that the arresting officer arrived at the scene of a one-car accident and determined that Berkow was the driver of the overturned car. After detecting the odor of alcohol on Berkow’s breath and observing his inability to successfully complete field sobriety tests, the officer arrested Berkow, read the applicable implied consent rights, and placed Berkow in the rear of his patrol car. The officer sat in the front seat of his car completing paperwork until a second officer arrived at the scene, at which point the officer exited his car and was out of Berkow’s presence for not more than five minutes. The officer then returned to his car and drove Berkow directly to the police station, where he was administered the breath test. Approximately ten minutes elapsed between the time the officer returned to his car to drive to the station and the time the breath test was administered. Although the officer was with Berkow for almost an hour between the time the officer arrived at the accident scene and the time he accompanied Berkow to the breath test, Berkow contends that the five minutes he was left alone in the patrol car — only ten minutes before the breath test was administered — violated the so-called “20-minute rule” and required exclusion of the test results.

In support of his claim that the 20-minute rule was a method approved by the DFS pursuant to OCGA § 40-6-392, Berkow elicited the following cross-examination testimony from the DeKalb County detention officer who was trained and certified by the DFS to perform the breath test on Berkow:

Q Now, part of the methods approved by the Division of Forensic Sciences require that for twenty minutes prior to the test that the subject be observed; correct?
A Correct. ...
Q And if that twenty-minute-observation period is not observed, then the test is not performed according to the methods approved , by the Division of Forensic Sciences; is that correct?
A That’s correct.

Based on these facts, Berkow claims that the 20-minute rule is a breath test method approved by the DFS pursuant to OCGA § 40-6-392 (a) (1) (A) and that compliance with all such approved methods is a requirement for admission of the test results. OCGA § 40-6-392 (a) (1) (A) provides that:

Chemical analysis of the person’s blood, urine, breath, or other bodily substance, to be considered valid under this Code section, shall have been performed according to methods approved by the Division of Forensic Sciences of the Georgia Bureau of Investigation on a machine which was operated with all its electronic and operating components prescribed by its manufacturer properly attached and in good working order and by an individual possessing a valid permit issued by the Division of Forensic Sciences for this purpose. The Division of Forensic Sciences of the Georgia Bureau of Investigation shall approve satisfactory techniques or methods to ascertain the qualifications and competence of individuals to conduct analyses and to issue permits, along with requirements for properly operating and maintaining any testing instruments, and to issue certificates certifying that instruments have met those requirements, which certificates and permits shall be subject to termination or revocation at the discretion of the Division of Forensic Sciences.

In accordance with this statutory mandate, the GBI/DFS approved rules through the Administrative Procedure Act (APA) setting forth qualification requirements for breath test machine operators, including a requirement that the operators complete a training course in breath analysis conducted by the DFS. Ga. Comp. Rules & Regs., GBI Rule 92-3-.02 (2). By the same process, the GBI/DFS also approved techniques and methods for breath testing which set forth the approved machines which may be used to conduct the tests and which require that all breath testing on these machines shall be performed by an operator qualified and trained in accordance with Rule 92-3-.02 (2). OCGA § 40-6-392 (a) (1) (A). Rule 92-3-.06 (5), (6).

Accordingly, whenever the State seeks to prove a violation of OCGA § 40-6-391 by evidence of a chemical test, it has the burden of showing compliance with the requirements of OCGA § 40-6-392. Munda v. State, 172 Ga. App. 857, 858 (324 SE2d 799) (1984). In the present case, the State showed that the breath test was conducted on a machine approved by the DFS, that the operator was qualified and certified to operate the machine, and that the machine was in proper operating condition. Nevertheless, Berkow contends the State did not show compliance with the methods approved by the DFS pursuant to OCGA § 40-6-392 because the State failed to continuously observe him for 20 minutes prior to the test.

Decided April 25, 2000

Chestney Hawkins Law Firm, Robert W. Chestney, for appellant.

In State v. Richardson, 186 Ga. App. 888, 889 (368 SE2d 825) (1988), we addressed the same contention that the 20-minute rule was one of the breath-testing methods approved by the DFS and that failure to comply with the rule required exclusion of the test results. We rejected the contention on the basis that approval of testing methods must be sought through the APA, and there was no evidence the DFS had ever sought approval of such a 20-minute rule through the APA. Id. at 889; see also Stinson v. State, 203 Ga. App. 225, 226 (416 SE2d 765) (1992); Rindone v. State, 210 Ga. App. 639, 641 (437 SE2d 338) (1993). Subsequent to these decisions, the legislature enacted OCGA § 35-3-155, which provides that the DFS need not seek approval of testing methods through the APA. Price v. State, 269 Ga. 222, 225 (498 SE2d 262) (1998).

In light of the enactment of OCGA § 35-3-155, Berkow claims that the testimony from the DFS trained and certified operator that the 20-minute rule is an approved DFS testing method was sufficient to establish this as fact. In the absence of any effort by the State to prove to the contrary in this case, we will assume, without deciding, that the 20-minute rule is a testing method approved by the DFS pursuant to OCGA § 40-6-392 (a) (1) (A). See Lewis v. State, 215 Ga. App. 486, 489 (451 SE2d 116) (1994).

Nevertheless, we conclude on the present facts that the failure to continuously watch Berkow for 20 consecutive minutes prior to the breath test does not require exclusion of the test results. First, the evidence shows that the State substantially complied with the 20-minute rule. See Rowell v. State, 229 Ga. App. 397, 398 (494 SE2d 5) (1997). The arresting officer was with or near Berkow for almost an hour prior to the breath test, except for a brief period not exceeding five minutes when Berkow was left in the rear of the patrol car. There was no evidence that Berkow regurgitated during this period of time. Second, although an accused can always introduce evidence of the possibility of circumstances that might cause error in the test results, such evidence relates to the weight rather than the admissibility of the test results. Lattarulo v. State, 261 Ga. 124, 126 (401 SE2d 516) (1991).

Under the circumstances, the trial court did not err by denying Berkow’s motion in limine and admitting the breath test results.

Judgment affirmed.

Ruffin and Ellington, JJ, concur in the judgment only.

Gwendolyn R. Keyes, Solicitor, Christopher M. Toles, Thomas E. Csider, Assistant Solicitors, for appellee.

       In entering a single sentence, the trial court merged the three counts.


text:
    A00A0814.
    THRASHER v. THE STATE.
    (534 SE2d 439)
   Andrews, Presiding Judge.

Willie Gene Thrasher appeals from the judgment entered after a jury found him guilty of possession of cocaine. Thrasher claims the trial court erred in allowing the State to introduce evidence of a prior conviction when he had not placed his character in evidence. Because we conclude that the evidence was properly admitted to impeach Thrasher’s testimony, we affirm.

The evidence at trial, taken in the light most favorable to support the verdict, was as follows. After a deputy sheriff stopped Thrasher for speeding, he recognized Thrasher and remembered there was an outstanding warrant for his arrest. The officer arrested Thrasher and took him back to the county jail. After they entered the building, the deputy saw Thrasher stop, turn sideways, and drop a bag or some other object down by his' foot. As Thrasher stepped forward, he dragged his foot over the bag and left a line of an off-white powdery substance about four or five feet long. The substance was later tested and identified at trial as cocaine.

Thrasher testified in his own defense and said he did not drop the bag; instead, he claimed it was already on the floor when he walked in the door. He said he dragged the bag along with his foot because he thought there was food in it and he was hungry.

On cross-examination, the prosecutor asked Thrasher why he did not ask the deputy about the bag. Thrasher said he did not know what to say to him. Then the prosecutor asked: ‘You were exercising authority over that substance by sliding it across the floor; is that right?” Thrasher replied: ‘Yeah, I slid it across the floor, no doubt about it, but I didn’t have no idea what it was, no idea. If I knew it was cocaine, ain’t no way in the world I’d put my foot on it.” The prosecutor asked: “Why not?” Thrasher replied: “Because I don’t fool with that.” After Thrasher made this statement, the trial court allowed the prosecutor, over objection, to ask Thrasher about a previous conviction for selling cocaine.

Thrasher contends on appeal that the trial court erred in allowing evidence of the prior conviction. Relying on Jones v. State, 257 Ga. 753 (363 SE2d 529) (1988), he argues that this was an inadvertent statement of good conduct which did not put his character in issue.

OCGA § 24-9-20 (b) provides that if a defendant in a criminal case testifies in his own behalf, he may be examined and cross-examined as any other witness, except that no evidence of general bad character or prior convictions is admissible unless and until the defendant first puts his character in issue. But, even in situations where the defendant has not placed his character in issue within the meaning of OCGA § 24-9-20 (b), when a defendant testifies and falsely denies past criminal conduct or misdeeds, the State may introduce evidence that reflects negatively on the defendant’s character insofar as that evidence “proves the falsity of specific testimony of the defendant.” (Citation, punctuation and emphasis omitted.) Jones, supra at 759. See also King v. State, 203 Ga. App. 287, 289 (416 SE2d 842) (1992) (prior conviction involving drugs was admissible to refute defendant’s testimony denying drug use); Sanders v. State, 199 Ga. App. 671, 672-673 (405 SE2d 727) (1991) (prior marijuana conviction admissible to rebut defendant’s statement that he did not use drugs).

Decided April 25, 2000.

Chapman & Pope, Russell W. Pope, for appellant.

Alan A. Cook, District Attorney, Brian M. Deutsch, Assistant District Attorney, for appellee.

Here, as in the cases cited above, the prior conviction was admissible, not as evidence of bad character but to rebut Thrasher’s previous testimony. As such, the evidence constituted impeachment, not character evidence, and the trial court properly admitted it.

Judgment affirmed.

Ruffin and Ellington, JJ, concur.


author: Barnes, Judge.

text:
    A00A1137.
    BARNES v. THE STATE.
    (534 SE2d 440)
   Barnes, Judge.

Norman Lee Barnes appeals the dismissal of his motion for an out-of-time appeal. He contends that his constitutional and statutory rights to appeal his convictions were violated by his trial attorney’s failure to file a motion for new trial and to file a notice of appeal. Because we find the record does not show a determination by the trial court that Barnes forfeited his rights to appeal his convictions, we remand this case for that adjudication.

On November 10, 1993, a jury convicted Barnes of two counts of aggravated assault with a deadly weapon, a pistol. The trial court then imposed a recidivist sentence upon Barnes, a repeat offender. For reasons not adequately explained by the record, no appeal followed. More than six years after the verdict and sentencing, Barnes filed a pro se motion for an out-of-time appeal. In this motion, Barnes asserted that his defense counsel failed “to perfect arid pursue a direct appeal.”

Without providing an explanation, the trial court dismissed the motion for an out-of-time appeal. Although the trial court’s order does not reflect that a hearing was held on Barnes’ motion, and there is no transcript of a hearing, in an earlier order the court directed that Barnes be brought to the courthouse “to appear for his motion for out-of-time appeal.” Barnes appeals the dismissal of his motion for out-of-time appeal.

Although the State argues that Barnes’ motion for an out-of-time appeal was actually an extraordinary motion for new trial requiring a discretionary application, we disagree. See Lunsford v. State, 237 Ga. App. 696 (515 SE2d 198) (1999) (order denying a motion for an out-of-time appeal is directly appealable). The State’s position that this appeal is procedurally foreclosed lacks merit. See Bohannon v. State, 262 Ga. 697 (425 SE2d 653) (1993).

As a fundamental principle of law,

[o]ur 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 and punctuation omitted.) Hasty v. State, 213 Ga. App. 731-732 (445 SE2d 836) (1994). If a timely direct appeal was not taken as the result of ineffective assistance of counsel, then an out-of-time appeal is appropriate. Gibbs v. State, 239 Ga. App. 249 (519 SE2d 511) (1999). When a criminal defendant has lost his right to appellate review of his conviction due to error of counsel, he is entitled to an out-of-time appeal. Rowland v. State, 264 Ga. 872, 875 (2) (452 SE2d 756) (1995). But when a convicted party by his own conduct or in concert with his counsel has slept on his rights, he forfeits his right to appeal. Cannon v. State, 175 Ga. App. 741, 742 (334 SE2d 342) (1985).

In this case, we cannot determine from the record before us whether the trial court conducted the requisite inquiry concerning who ultimately bore the responsibility for the failure to file a timely appeal. Randolph v. State, 220 Ga. App. 769, 771 (1) (470 SE2d 300) (1996); Hasty, supra, 213 Ga. App. at 732. We vacate the order dismissing the motion for out-of-time appeal and direct the trial court to (1) hold a hearing on Barnes’ motion for an out-of-time appeal, if one was not already held; and (2) make findings on the record in accordance with this opinion. Eisele v. State, 238 Ga. App. 289, 290 (519 SE2d 9) (1999). An out-of-time appeal will not be authorized if the delay was attributable to the conduct or actions of Barnes, either alone or in concert with counsel. Evans v. State, 198 Ga. App. 537, 538 (402 SE2d 131) (1991).

Decided April 25, 2000.

Norman L. Barnes, pro se.

Robert E. Keller, District Attorney, Jack S. Jennings, Assistant District Attorney, for appellee.

Judgment vacated and case remanded with direction.

Blackburn, P. J., and Eldridge, J., concur.


author: Smith, Presiding Judge.

text:
    A00A0147.
    HARPER v. THE STATE.
    (534 SE2d 157)
   Smith, Presiding Judge.

Chris Marion Harper was convicted of driving under the influence of alcohol. Following denial of his motion for new trial, he appeals. He claims that the trial court erred by not excluding evidence of his sobriety tests because the tests were administered after he was placed under arrest but before he was advised of his Miranda rights. We find this contention to be without merit, and we affirm.

Early in the morning of September 21,1996, Officer Stewart saw Harper driving west on Lindbergh Road in Atlanta. Harper made an illegal right turn onto Peachtree Road at a red light at the intersection of Lindbergh Road and Peachtree Road, and the officer pulled him over. Officer Stewart noticed that Harper’s eyes were red, that his speech was slurred, and that there was a strong smell of alcohol coming from his vehicle. Suspecting Harper to be driving under the influence, Officer Stewart called for a DUI task force officer. In response, Officer Garrison arrived and led Harper through a series of field sobriety tests. Officer Garrison then informed Harper that he was under arrest, read him the implied consent notice, and took him into custody.

1. Harper claims that his detention had ripened into an arrest before Officer Garrison conducted the sobriety tests and that because he had not been previously read his Miranda rights, the tests were improper and should not have been admitted into evidence. We disagree.

OCGA § 24-9-20 (a) provides that no person who is charged with a crime can be compelled to give evidence against himself. Applying this statute, we have held that if an officer gives a field sobriety test to a person who is under arrest but who had not been warned of his right against self-incrimination, then the test is inadmissible. See State v. Warmack, 230 Ga. App. 157, 158 (495 SE2d 632) (1998); State v. O’Donnell, 225 Ga. App. 502, 504 (2) (484 SE2d 313) (1997). Conversely, if an officer gives a field sobriety test to a person who is not under arrest, then the test is admissible even if the person had not been warned of his Miranda rights. See Crum v. State, 194 Ga. App. 271, 272 (390 SE2d 295) (1990).

The trial court found that Harper was placed in custody only after Officer Garrison completed his DUI investigation. “The issue of whether one is in custody for Miranda purposes is a mixed question of law and fact, and the trial court’s determination will not be disturbed unless it is clearly erroneous. [Cit.]” Johnson v. State, 234 Ga. App. 116, 118 (2) (506 SE2d 234) (1998). “The test for determining whether a person is ‘in custody’ at a traffic stop is if a reasonable person in the suspect’s position would have thought the detention would not be temporary. [Cit.]” Hughes v. State, 259 Ga. 227, 228 (1) (378 SE2d 853) (1989).

Harper emphasizes the length of time from the traffic stop to the arrival of the DUI task force officer and argues that because of the excessive delay, his detention ripened into an arrest. There is conflicting testimony concerning the time it took from the initial traffic stop until Officer Garrison arrived to conduct the investigation. Officer Stewart estimates the wait was only a few minutes while Harper testified that it was approximately a half-hour, and other evidence would support a finding that the delay lasted up to an hour. We have previously held that a wait of 45 to 50 minutes from the time of a traffic stop to the commencement of an investigative search of a car did not convert the investigation into a custodial situation. See Aldridge v. State, 237 Ga. App. 209, 213 (3) (515 SE2d 397) (1999). Here, Harper was allowed to walk around. He was not placed in the back of the police car, nor was he handcuffed. Officer Stewart told Harper that he had called for a DUI task force officer because he was under suspicion of DUI. And although Officer Stewart told Harper that he was not free to leave while they waited for the DUI task force to arrive, not every detention is an arrest. See State v. Dible, 232 Ga. App. 73, 74 (502 SE2d 245) (1998). Under these circumstances, a reasonable person could conclude that his freedom of action was only temporarily curtailed and that a final determination of his status was simply delayed. The trial court’s finding that Harper was placed under arrest only after the field sobriety test is not clearly erroneous.

2. We need not consider Harper’s remaining enumerations of error. Harper’s first enumeration of error asks whether Harper’s traffic stop ripened into an arrest. This is not a claim of error on the part of the trial court, but it is an issue in the analysis of the other enumerations of error.

Decided April 26, 2000.

Robert A. Meier IV, for appellant.

Joseph J. Drolet, Solicitor, Shukura L. Ingram, Assistant Solicitor, for appellee.

In his third enumeration of error, Harper claims that his refusal to submit to the State-mandated chemical test should have been excluded from evidence because the implied consent notice was not read to him when he was arrested. This enumeration assumes that competent evidence of Harper’s refusal to take the State-administered breath test was before the court, but that is not so. After the hearing on his motion in limine, Harper waived a jury trial, the solicitor and defense counsel stipulated that the evidence presented at the hearing would be deemed to be the evidence presented to the court, and no further evidence was presented. Although the solicitor stated that Officer Corroto would testify at trial that Harper refused a breath test, Corroto never testified at the hearing on Harper’s motion in limine. In any event, Officer Garrison read Harper the implied consent notice immediately after arresting him. Harper’s enumerations of error 1 and 3 are without merit.

Judgment affirmed.

Pope, P. J., and Miller, J., concur.


author: McMurray, Senior Appellate Judge.

text:
    A00A0926.
    In the Interest of M. C., a child.
    (534 SE2d 442)
   McMurray, Senior Appellate Judge.

F. G. appeals the termination of his parental rights, contending the evidence was insufficient to support a finding of present parental misconduct or inability to provide for his child, M. C. Held:

1. The evidence was sufficient to support the termination. The standard of review applicable to a juvenile court’s decision to terminate parental rights is “whether after reviewing the evidence in the light most favorable to the appellee, any rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights to custody have been lost.” (Citations and punctuation omitted.) In the Interest of A. C., 230 Ga. App. 395, 396 (1) (496 SE2d 752).

In reviewing the juvenile court’s decision, “ ‘[t]his Court neither weighs evidence nor determines the credibility of witnesses; rather, we defer to the trial court’s factfinding and affirm unless the appellate standard is not met. [Cit.]’ ” In the Interest of S. N. N., 230 Ga. App. 109 (495 SE2d 602).

OCGA § 15-11-81 (a) sets out a two-part test that the juvenile court must apply in determining whether to terminate a parent’s rights. First, the court must find present clear and convincing evidence of parental misconduct or inability. Second, the court must decide whether such termination would be in the best interest of the child. In the Interest of V. S., 230 Ga. App. 26, 27 (495 SE2d 142).

Four factors must be demonstrated as a prerequisite to finding parental misconduct or inability: (1) the child is deprived; (2) lack of proper parental care or control is causing the deprivation; (3) the cause of the deprivation is likely to continue or will not likely be remedied; and (4) continued deprivation will cause or is likely to cause serious physical, mental, emotional, or moral harm to the child. In the Interest of A. N. M., 238 Ga. App. 21, 22 (1) (517 SE2d 548); OCGA § 15-11-81 (b) (4) (A).

We will discuss these factors seriatim.

(a) The evidence of deprivation is clear, convincing, and overwhelming.

A caseworker with the Wilkes County Department of Family & Children Services (“DFACS”) testified at the hearing that on August 5, 1997, M. C. and his older brother, T. C., who lived with their mother, had been locked out of their home all day without food. They were dirty, hungry, and disheveled, and T. C. had had a confrontation with his mother. This event capped three years of neglect by their chronically alcoholic mother. On August 22, the juvenile court found the children were deprived and awarded temporary custody to DFACS. M. C., who was then seven years old, was placed in a foster home. DFACS also drew up a plan to reunite the natural mother and children.

F. G. apparently did not learn that he was M. C.’s father until January 1998, when he contacted DFACS and requested a paternity test. F. G. was ordered to pay child support effective July 1. On August 19, 1998, the juvenile court entered a second deprivation order, finding that it was in M. C.’s best interest to remain in foster care. F. G. was personally served with notice of the hearing but failed to appear. Nor did F. G. appeal the deprivation order; thus, he is bound by its finding. In the Interest of L. H., 236 Ga. App. 132, 134 (1) (511 SE2d 253). Finally, F. G. concedes on appeal that M. C. was deprived.

(b) Similarly, we agree with the juvenile court’s finding that the lack of F. G.’s proper parental care or control is a significant factor contributing to M. C.’s deprivation.

In determining whether a lack of proper parental care and control exists, the court may consider several factors, including the following:

excessive use of or history of chronic unrehabilitated abuse of intoxicating liquors or narcotic or dangerous drugs or controlled substances with the effect of rendering the parent incapable of providing adequately for the physical, mental, emotional, or moral condition and needs of the child; [and] conviction of the parent of a felony and imprisonment therefor which has a demonstrable negative effect on the quality of the parent-child relationship.

In the Interest of J. H., 240 Ga. App. 309, 310 (523 SE2d 374); OCGA § 15-11-81 (b) (4) (B) (ii), (iii).

The juvenile court properly considered F. G.’s seven convictions of violating the Georgia Controlled Substances Act from 1990 through 1992, which were based on his sale and possession of cocaine. F. G.’s parole officer testified that F. G. has been arrested four times since 1994 for parole violations and is not scheduled to be released from parole until 2007. The arrests have been based on F. G.’s alcohol and drug use, changing residences without permission, and stealing his wife’s car. At the time of the hearing, F. G. was in an inpatient drug rehabilitation program, with no set release date.

F. G. contends that his “enrollment” in the drug rehabilitation program shows that he is not presently unfit to parent. We disagree. While F. G. claimed he was becoming sober to enable him to care for his child, F. G.’s parole officer testified that his placement in the program was essential to avoid parole revocation and incarceration.

F. G.’s initiative to establish his paternity may well indicate his sincere desire for a relationship with M. C., but the fact that the original termination hearing had to be continued because F. G. was in jail for absconding with his new bride’s car spoke volumes about his present misconduct and inability to care for M. C.

Although [F. G.] contends that he has now changed, “judging the credibility of (his) good intentions was a task for the juvenile court. The decision as to a child’s future must rest on more than positive promises which are contrary to negative past fact.” (Punctuation omitted.) In the Interest of M. L., 227 Ga. App. 114, 117 (2) (488 SE2d 702) (1997).

In the Interest of K. A. C., 229 Ga. App. 254, 257 (3) (493 SE2d 645).

Moreover, E G. admitted on cross-examination that he could not provide for M. C. He testified that his mother was willing to take custody of the child. However, F. G.’s mother did not attend the hearing, so this testimony was hearsay. Also, F. G.’s mother never visited the child or provided any support, according to the report of the guardian ad litem.

In addition to the factors set out above, in determining the sufficiency of the evidence of parental misconduct or inability, the juvenile court was required to consider whether F. G. paid court-ordered child support or bonded with M. C. in a meaningful, parental manner during the year before the termination petition was filed, on August 11, 1999.

The record reveals that F. G. has visited the child only once in foster care, on February 1,1999. He failed to contact DFACS to set up any more visits and did not keep DFACS apprised of his address, frustrating DFACS’ attempt to contact him to arrange additional visits. He admitted that he did not attempt to communicate with the child in any way. F. G. also admitted he has not established a parental bond with M. C. His incarcerations for parole violations continue to keep him from forming that bond. Also, the guardian ad litem’s report indicated that F. G. resided in the same county as the foster parents prior to his most recent incarceration and did not attempt to contact the child.

F. G. was ordered to pay $245 per month in child support beginning July 1, 1998. He paid nothing until he was held in contempt in November, after which he remitted $980. F. G. has paid no more child support.

Thus, although F. G. paid some child support, the evidence demonstrates that he failed to develop a parental bond with M. C.

(c) The evidence supports the juvenile court’s finding that absent termination of F. G.’s rights, the deprivation is likely to continue.

A parent’s past conduct is relevant to whether the conditions of deprivation are likely to continue. In the Interest of C. W. D., 232 Ga. App. 200, 204 (1) (501 SE2d 232). The guardian ad litem, who recommended termination, saw little chance that F. G. would be able to take custody of M. C. in the near future based on F. G.’s history of incarceration and drug abuse.

Further, F. G. testified that he would be required to reside in a halfway house during the second phase of his drug rehabilitation program. F. G. also testified that he did not plan to return to the county of the child’s residence upon his release from the drug rehabilitation program.

F. G. argues that his efforts at rehabilitation demonstrate that M. C.’s deprivation will likely be remedied. F. G. testified that he is a skilled journeyman electrician and had been offered a job that paid $50,000 per year. The court did not find this latter statement credible, and we defer to its role as factfinder.

(d) The evidence was sufficient to show that continued deprivation is likely to cause serious physical, mental, emotional, or moral harm to the child.

M. C.’s foster mother testified that M. C. suffers nightmares relating to his parents’ alcohol and drug abuse and finds F. G.’s failure to contact him hurtful. She believed that the child has feelings of rejection which have caused him to act out. The evidence met the standard required to show that continued deprivation is likely to cause emotional harm to M. C. See In the Interest of C. L. R., 232 Ga. App. 134, 138 (1) (d) (501 SE2d 296).

2. We agree with the juvenile court that termination of F. G.’s rights is in the best interest of M. C., considering M. C.’s “physical, mental, emotional, and moral condition and needs . . . including the need for a secure and stable home.” OCGA § 15-11-81 (a).

The guardian ad litem noted that M. C.’s foster home provides a “loving and safe” environment. She also indicated that his foster parents want to adopt him. M. C.’s foster mother testified that his behavior and grades have improved dramatically since joining her family; he has formed a strong bond with her family members and would suffer greatly if he were removed; he has many friends; and she is willing to adopt him. A foster care worker with DFACS rated M. C.’s progress in foster care “excellent.” The worker stated that M. C. excels in sports, performs well in school, and gets along well with his foster family.

“[T]he juvenile court was authorized to consider the child[’s] need for a stable home situation and the detrimental effects of prolonged foster care.” In the Interest of M. L., 227 Ga. App. 114, 117 (2) (488 SE2d 702). “Moreover, factors indicating parental misconduct or inability can also establish that the termination of parental rights is in the best interest of the child.” In the Interest of L. M., 219 Ga. App. 746, 749 (2) (466 SE2d 887).

Decided April 26, 2000.

Regina E. McMillan, 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, Thomas B. Hammond, for appellee.

We will not consider F. G.’s argument, made for the first time on appeal, that the juvenile court erred in failing to attempt to place the child with a suitable relative in accordance with OCGA § 15-11-90 (a) (1). F. G. has waived this contention by failing to object in the trial court. In the Interest of K. A. C., supra at 255 (2). Even if the issue had been preserved for appellate review, ample evidence was presented to support the juvenile court’s finding that no family member was willing or able to assume custody of M. C. Compare In the Interest of C. L. R., supra at 139 (3).

“The termination of parental rights is a severe measure. However, a termination hearing seeks above all else the welfare of the child. In determining how the interest of the child is best served, the juvenile court is vested with a broad discretion which will- not be controlled in the absence of manifest abuse.”

(Citations omitted.) In the Interest of M. L. P., 236 Ga. App. 504, 510 (1) (d) (512 SE2d 652).

After reviewing the juvenile court’s order and the entire record, this Court finds that the trial court did not abuse its discretion in terminating F. G.’s parental rights.

Judgment affirmed.

Pope, P. J, and Miller, J, concur.

       The juvenile court also terminated the parental rights of M. C.’s mother. Only the father appeals. T. C. is not F. G.’s child, was placed with a relative, and was not at issue at the hearing.

       A third deprivation order was issued on June 29, 1999, upon DFACS’ petition that also sought to terminate parental rights. F. G. was incarcerated on a parole violation at that time so the termination hearing was continued. The hearing which culminated in the termination of F. G.’s parental rights was held on October 6, 1999.

       F. G. was married on April 2, 1999.

       OCGA § 15-11-81 (b) (4) (C) provides in relevant part:
      where the child is not in the custody of the parent who is the subject of the proceedings, in determining whether the child is without proper parental care and control, the court shall consider ... whether the parent without justifiable cause has failed significantly for a period of one year or longer prior to the filing of the petition ...:
      (i) [t]o develop and maintain a parental bond with the child in a meaningful, supportive manner; (ii) [t]o provide for the care and support of the child as required by law or judicial decree; and (iii) [t]o comply with a court ordered plan designed to reunite the child with the parent. .. .
      See In the Interest of D. A. P., 234 Ga. App. 257, 259 (2) (506 SE2d 438); In the Interest of K. A. C., supra at 254 (1) (factors are considered only if such failure is for a year or longer).


author: Johnson, Chief Judge.

text:
    A00A0269.
    CURRY v. THE STATE.
    (534 SE2d 168)
   Johnson, Chief Judge.

John Willie Curry appeals from his convictions of rape and kidnapping. He contends that the evidence was insufficient to support the verdict and that the trial court erred in admitting certain photographic evidence, in denying him the opportunity to impeach the victim by asking her about her alleged cocaine use hours before she met Curry, and in questioning the victim in order to prove an element of the state’s case. Because each of his contentions is without merit, we affirm the convictions.

1. On appeal, the evidence must be construed in a light most favorable to the verdict, and the appellant no longer enjoys the presumption of innocence; this court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard set out in Jackson v. Virginia.

Viewed most favorably to the verdict, the evidence shows that on March 8, 1995, at about 11:30 p.m., the victim was walking home when a car pulled up alongside her and stopped. Curry, the driver, started talking to the victim. The victim assumed that Curry knew her because he was asking her about her relatives, whom he apparently knew. Curry offered to drive the victim to her home, which was about a block away. The victim, thinking Curry was a friend of the family, accepted the offer. The door on the passenger’s side did not open, so she entered the car on the driver’s side.

When Curry drove past the victim’s street, she asked him where he was going. He said “I know where you live,” but then continued driving and turned off onto a dirt road. Curry told her he was facing two life sentences in prison and did not care what happened to him and that if she wanted to see her children again, she would do what he said. Curry said he had a shovel in the trunk and that he could kill her and nobody would ever know she had been out there. The victim tried to get out of the door on the passenger’s side, but it would not open. Curry allowed the victim to get out of the car to urinate. Once outside, she started running. Curry caught her and beat her in the head. Using a two and one-half-inch nail she had in her pocket, the victim stabbed Curry in the head and caused it to bleed. Curry wiped the blood on the victim’s pants, then picked her up by the neck and choked her until she collapsed onto the ground. He picked her up and threw her into the car. The victim said, “I give up. I’ll just go ahead on and do what you want me to do.” Curry had sex with the victim, then she pleaded with him to take her home. He refused. Curry eventually started the car and began driving but soon turned around and returned to the same location. The victim again pleaded with him to take her home, which he finally did at about 5:00 a.m. She called an ambulance and was taken to the hospital.

An emergency room physician testified that he examined the victim the morning of the crimes and found that she had abrasions and contusions on her breasts, neck and back and redness in the vaginal area. A rape kit was prepared and sent with the victim’s clothing to the State Crime Laboratory for analysis.

A forensic serologist from the crime laboratory testified that slides taken during the examination of the victim revealed the presence of sperm. He noted that the victim’s pants had human blood on them and were heavily soiled, and her underpants were soiled and torn.

Curry testified on his own behalf, giving a very different description of the encounter. He testified that the victim approached his car that night and when he said he was “out here to have some fun,” she said she wanted to have some fun, too, and got into the car. As he drove her to the dirt road, he mentioned that he had only $10, to which she replied “okay.” They made small talk; she took off her clothes; and they had sex. As they were leaving, the victim told him not to take her home yet. They went back to the dirt road and had sex again. Curry hit his head on the uncovered overhead light in the car as they were having sex, and his head started bleeding. He wiped the blood on the victim’s pants. When they finished having sex, Curry gave the victim $10. She asked him to take her to buy crack cocaine, but he took her home instead.

As Curry points out, his version of events is in stark contrast with the victim’s. It is well settled, though, that the jury is to assess the credibility of the witnesses, resolve any conflicts in the evidence, and come to a determination of the facts. The jury apparently chose to believe the victim’s testimony which, we note, is supported by the testimony of the state’s witnesses. In any event, it is not for the appellate courts to determine or question how the jury resolved any apparent conflicts or uncertainties in the evidence. A rational trier of fact could have found Curry guilty beyond a reasonable doubt of kidnapping and rape.

2. Curry raises two enumerations regarding the trial court’s admission of photographic evidence.

(a) He argues the trial court should not have admitted Exhibits 10 and 11 because they were no different from photographs already admitted as Exhibits 3 through 8. Exhibits 3 through 8 are photographs taken of the victim at the hospital hours after the incident. According to the trial testimony, the pictures show abrasions and scars about the victim’s neck, ear, chest, arm and back.

Exhibits 10 and 11 are photographs the sheriff’s department took of the victim a few days later. The sheriff asked the victim to return to the department four days after the incident so investigators could check for bruising since, according to the sheriff, bruising patterns sometimes change over the course of a few days. The later photographs were taken using special film and ultraviolet light.

The complaint that photographs of the injured victim are duplicative is not a ground to exclude them from evidence. Photographs which are material and relevant to any issue are admissible even if they may be duplicative. “[T]he Georgia rule favors the admission of any relevant evidence, no matter how slight its probative value.” The photographs at issue were taken a few days later with different photographic equipment. Although the sheriff testified that he could discern no material differences in the victim’s appearance in the later photographs, that does not mean that the jurors could not see any differences or that the jurors could not use the later photographs as a basis for determining the severity of the victim’s injuries or the credibility of her version of events. The pictures were admissible even if they, to some extent, duplicated other photographs. The trial court did not abuse its discretion in admitting the photographs.

(b) Curry also challenges the admission of Exhibit 13, a photograph showing bruises and scabs on the victim’s ear. Curry complains that the picture was taken four days after the alleged rape and that, because investigators did not mention or take photographs depicting such injuries in the initial examination, the injuries might have been inflicted during the four-day interim period. This argument presents no ground for reversal.

The victim testified that Curry pulled and pinched her ears in order to restrain her while he had sexual intercourse with her. The sheriff testified that, while he noticed no injuries to her ear on the morning of the incident, the victim told him that morning that Curry had pulled her ears, and he added that the ear injury shown in Exhibit 13 was consistent with what she told him. Whether the injury to the victim’s ear as shown in the photograph occurred in the manner described by the victim or in some other manner goes to the weight of the evidence, not its admissibility. The ultimate weight and believability of the evidence were left to the jury, as they should have been.

3. Curry argues that the trial court should have permitted him to impeach the victim by calling witnesses to show that she used crack cocaine on the day of the incident, before she encountered Curry. This enumeration presents no basis for reversal.

The state filed a pretrial motion in limine seeking to prevent Curry from introducing evidence showing that the victim consumed cocaine shortly before she met Curry. Curry argued that the evidence was admissible to show the victim’s state of mind at the time of the occurrence and to impeach her credibility. The court reserved ruling on the motion and, just before trial started, handed both attorneys a copy of a case, apparently Dunton v. State, told counsel it was “exactly [on] point,” and instructed defense counsel to “digest it” and “hand it back to the court later.” In Dunton, this Court held that the trial court acted properly in not permitting the defendant to question a rape victim about her past cocaine use because it was not relevant to the issue of rape and because instances of misconduct may not be used to impeach a witness’ veracity unless the misconduct resulted in a conviction of a crime involving moral turpitude.

The trial court in the instant case made no express ruling on the state’s motion although, considering the trial court’s reliance on Dunton and later comments made by both counsel indicating that the motion in limine had been granted, we find that the court implicitly granted the state’s motion. Thus, contrary to the state’s position that the issue was not preserved because there was no ruling on the motion, we hold that the issue was preserved for our consideration.

During cross-examination, Curry asked the victim if she had consumed any drugs or alcohol on the day of the incident. The victim testified that she smoked a marijuana cigarette and drank four beers and a shot of gin that day. Curry then asked if she had consumed any other drug or alcohol, to which she replied: “Not as I can remember, no.” It is this statement Curry sought to impeach with evidence that she also smoked crack cocaine on that day.

A witness may be impeached by disproving facts testified to by her. We note that the evidence at issue does not involve the victim’s past sexual conduct and does not come within the ambit of the Rape Shield Statute. And, while a witness may not be discredited because of a discrepancy as to a wholly immaterial matter, the victim’s consumption of drugs shortly before the incident occurred is not immaterial, inasmuch as it may affect her recollection of events. Moreover, in this case it may be relevant considering Curry’s testimony that the victim accepted $10 as payment for sex and then asked him to take her to buy crack cocaine. Under the circumstances of this case, the trial court erred in excluding the evidence.

Nonetheless, even if the evidence should have been admitted, the question remains whether the exclusion of this impeachment evidence was harmful error requiring a reversal and a new trial. The victim admitted at trial that she had used alcohol and illegal drugs on the day she met Curry. And Curry testified, without objection, that after the two had sex, the victim asked him to take her to get crack cocaine. Thus, evidence of her illegal drug use was already before the jury. In light of the other evidence of the victim’s drug use and the overwhelming evidence supporting the state’s case against Curry, it is highly unlikely that any error in not allowing Curry to call witnesses to show that the victim had smoked crack cocaine earlier that day contributed to the verdict.

4. Curry argues that the trial court “aligned itself with the prosecution” by attempting to prove an essential element of the state’s case, namely by asking the victim whether Curry’s penis penetrated her vagina. Although a trial judge is prohibited from expressing or intimating his opinion as to what has or has not been proved, the judge does have the right to ask a question or series of questions of any witness for the purpose of developing the truth of the case. The trial court did not express or intimate its opinion regarding what had been proved. Its questions were addressed to a relevant issue with a view of assisting the jury in ascertaining the truth. There was no error.

Decided April 27, 2000.

Wallace, Hammond & Hammond, Harold W. Wallace III, for appellant.

Dennis C. Sanders, District Attorney, for appellee.

Judgment affirmed.

Phipps, J, and McMurray, Senior Appellate Judge, concur.

       443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Vickers v. State, 241 Ga. App. 452, 453 (527 SE2d 217) (1999).

       See Adams v. State, 271 Ga. 485, 486 (1) (521 SE2d 575) (1999); Vickers, supra.

        Williams v. State, 236 Ga. App. 790, 792 (513 SE2d 757) (1999).

       See generally Gulley v. State, 271 Ga. 337, 339 (1) (519 SE2d 655) (1999).

       The appellate record contains only poor-quality photocopies of the photographs admitted at trial. Therefore, we rely on the trial testimony to tell us what is depicted in the pictures.

        Dukes v. State, 224 Ga. App. 305, 309-310 (5) (480 SE2d 340) (1997); see Floyd v. State, 272 Ga. 65, 68 (4) (525 SE2d 683) (2000).

       (Citations and punctuation omitted.) Martin v. State, 235 Ga. App. 844, 845 (3) (510 SE2d 602) (1998).

       See Jackson v. State, 270 Ga. 494, 498 (8) (512 SE2d 241) (1999).

       See id.

       See generally Thomas v. State, 166 Ga. App. 559, 561 (305 SE2d 151) (1983).

       216 Ga. App. 191 (453 SE2d 800) (1995). We say “apparently” because the trial court did not state the case name or citation on the record, just the decision date. The state has provided the case name and citation. Curry does not dispute the accuracy of the information provided.

       See generally OCGA § 5-6-30.

       OCGA § 24-9-82.

       OCGA § 24-2-3; see generally Raines v. State, 191 Ga. App. 743, 745 (2) (382 SE2d 738) (1989).

        Brown v. State, 260 Ga. 153, 156 (4) (391 SE2d 108) (1990).

        See Letlow v. State, 222 Ga. App. 339, 342 (2) (474 SE2d 211) (1996) (one purpose of cross-examination is to test the witness’ memory); but also see Parrish v. State, 237 Ga. App. 274, 282 (6) (514 SE2d 458) (1999) (whether the victim used drugs in the past or was generally knowledgeable about illegal drugs is irrelevant to the issue of whether she was raped, as rape is no more lawful when committed against a drug addict than it is against a nondrug addict); Dukes, supra (victim’s past use of cocaine not admissible because no conviction of crime involving moral turpitude and because victim’s past use of drugs was unrelated to the issue of whether defendant committed aggravated assault upon him); Harris v. State, 196 Ga. App. 304, 306 (3) (396 SE2d 288) (1990) (defendant cannot introduce evidence of victim’s past drug use in order to impeach her testimony that he forced her to use drugs, as question of whether victim was addicted to cocaine was irrelevant to whether defendant assaulted and imprisoned her).

        Letlow, supra at 343.

       See id.; Dukes, supra at 307-308 (2); see generally Watson v. State, 230 Ga. App. 79, 81-82 (4) (495 SE2d 305) (1998).

        Dixon v. State, 196 Ga. App. 15, 19 (10) (b) (395 SE2d 577) (1990); Mitchell v. State, 157 Ga. App. 146, 147 (2) (276 SE2d 658) (1981).

       See Dixon, supra.


text:
    A00A0869.
    SEQUEIRA v. THE STATE.
    (534 SE2d 166)
   Johnson, Chief Judge.

Jairon Antonio Sequeira pled guilty to two counts of simple battery, one count of affray and one count of public intoxication. The trial court entered a judgment of conviction on the plea and sentenced Sequeira to serve 11 months and 29 days on probation for each offense. Several weeks later, the county probation department requested that Sequeira be ordered to register as a sexual offender under OCGA § 42-1-12 because one of his simple battery convictions was for having placed his hands on the breasts and between the legs of a fifteen-year-old girl. The court granted the request and ordered Sequeira to register. Sequeira appeals from that order.

1. Sequeira asserts that the trial court erred in ordering him to register as a sexual offender based on a conviction for the nonsexual offense of simple battery. We agree and reverse the trial court’s ruling.

Under OCGA § 42-1-12 (b) (1) (A) (i), after July 1, 1996, a person convicted of a “criminal offense against a victim who is a minor” must register his name, address, place of employment, the crime he was convicted of, and the date he was released from prison or placed on parole or probation with the sheriff’s office in the county where he will reside. According to OCGA § 42-1-12 (a) (4) (A), a “[c]riminal offense against a victim who is a minor” means a criminal offense under Title 16 or an offense under federal law or the laws of another state which consists of kidnapping a minor, false imprisonment of a minor, criminal sexual conduct toward a minor, soliciting a minor to engage in sexual conduct, using a minor in a sexual performance, soliciting a minor to practice prostitution, or any conviction resulting from an underlying sexual offense against a victim who is a minor.

The state relied on this emphasized meaning in successfully-arguing to the trial court that Sequeira must register as a sexual offender based on the conduct underlying his simple battery conviction — touching a 15-year-old girl’s breasts and legs. But the state’s argument and the trial court’s order ignore the plain statutory language that a conviction must result from an underlying sexual offense.

In interpreting a statute, we must look for the legislative intent. We must also give words their ordinary and literal meaning. And any criminal law must be strictly construed against the state. Applying these rules of statutory construction to the instant case, the ordinary and literal language of OCGA § 42-1-12 does not require registration as a sexual offender based merely on the conduct underlying a criminal conviction. Instead, the ordinary language of the statute requires registration if the conviction results from an underlying sexual offense.

We must presume that by using the term “sexual offense” in OCGA § 42-1-12 (a) (4) (A) the legislature intended to refer to the criminal code chapter entitled “SEXUAL OFFENSES,” which defines such crimes as rape, aggravated sodomy, child molestation, and enticing a child for indecent purposes. If, as the state has suggested, the legislature intended to require sexual offender registration based on underlying sexual conduct rather than on a sexual offense, they could have used such plain language. But because they did not use such language, we must construe the term “sexual offense” to mean those sexual crimes that have been defined by the legislature.

Simple battery is not one of those sexual offenses. It is not contained in the criminal code chapter on sexual offenses and is instead found in the chapter on crimes against a person. Thus, Sequeira’s conviction for touching the victim’s breasts and legs did not result from an underlying sexual offense but instead resulted from the nonsexual offense of simple battery.

Because Sequeira’s simple battery conviction was not for an underlying sexual offense, he was not convicted of a criminal offense against a victim who is a minor as defined by OCGA § 42-1-12 (a) (4) (A). Consequently, the trial court erred in ordering Sequeira to register as a sexual offender based on his simple battery conviction. The trial court’s erroneous order is thus reversed.

Decided April 27, 2000.

Manchel, Johnson & Wiggins, Howard J. Manchel, for appellant.

Daniel J. Porter, District Attorney, for appellee.

2. Because of our holding in Division 1, we need not address Sequeira’s remaining enumerations of error.

Judgment reversed.

Phipps, J., and McMurray, Senior Appellate Judge, concur.

       OCGA § 1-3-1 (a); Chastain v. State, 231 Ga. App. 225, 227 (4) (498 SE2d 792) (1998).

       OCGA § 1-3-1 (b); Chastain, supra.

        State v. Bangley, 209 Ga. App. 208, 209 (433 SE2d 372) (1993).

       OCGA § 16-6-1.

       OCGA § 16-6-2.

       OCGA § 16-6-4.

       OCGA § 16-6-5.

       OCGA § 16-5-23.


author: Eldridge, Judge.

text:
    A00A1064.
    In the Interest of S. H. P. et al., children.
    (534 SE2d 161)
   Eldridge, Judge.

The father of S. H. P. and V. R. P. appeals an order of the juvenile court terminating his parental rights. Although appellant argues that the evidence was insufficient to support the termination, we find that the evidence presented amply supports the juvenile court’s decision to terminate his parental rights to both children.

The termination of parental rights under OCGA § 15-11-81 involves a two-step analysis.

First, the court determines whether there is clear and convincing evidence of parental misconduct or that the parent is unable to care for and control the child. Second, the court determines whether termination is in the best interest of the child. In determining whether a parent’s misconduct or inability warrants a termination of parental rights, a court must consider whether (1) the child is deprived; (2) the lack of proper parental care or control is the cause of the deprivation; (3) the cause of the deprivation is likely to continue or will not be remedied; and (4) the continued deprivation will cause or is likely to cause serious physical, mental, emotional, or moral harm to the child.

(Citation omitted.) In the Interest of J. M. D., 221 Ga. App. 556-557 (472 SE2d 123) (1996).

On appeal, we must view the evidence in a light most favorable to the juvenile court’s order and determine whether a rational trier of fact could have found by clear and convincing evidence that the parent’s rights should have been terminated. We do not weigh the evidence and must defer to the trial judge as the factfinder.

(Citations and punctuation omitted.) In the Interest of K. A. C., 229 Ga. App. 254, 255 (493 SE2d 645) (1997).

Viewed in this light, the record shows that the appellant has a long history of involvement with criminal activity. The appellant has been arrested 32 times since 1982 and convicted of armed robbery, simple battery, theft by taking, deposit account fraud, battery, possession of tools for commission of a crime, theft by receiving stolen property, theft by shoplifting, and cruelty to children. Appellant was sentenced to time in jail for the 1982 armed robbery and, at the time of the termination hearing, was serving a two-year sentence for cruelty to children and theft by shoplifting.

S. H. P. was born on December 1, 1993, and V. R. P. was born on March 1, 1995. The mother has a third male child, born in 1981, who is not the child of appellant but who resided with the mother and appellant. The Department of Family & Children Services (“DFACS”) first became involved with the family in 1994, prior to V. R. P.’s birth. In 1995, all three children were taken into DFACS’ custody because of domestic violence between the appellant and the mother. The mother also had a history of drug abuse.

After the children came into the care of DFACS, appellant legitimated S. H. P. and V. R. P. Initially, appellant worked with the agency. The children were returned to both the appellant and the mother because both adults stated that they had obtained counseling and promised to continue with counseling in the future. In 1996, the mother left the home, leaving the three children with appellant. All three children were placed by DFACS in appellant’s care. In 1997, all three children came back into the custody of DFACS because appellant had been arrested in April and July for two separate acts of physical abuse against his stepson; one of the acts resulted in the child’s hospitalization. The mother had also returned to the home, unbeknownst to DFACS, and was involved in the use of illegal drugs.

DFACS developed a reunification plan for appellant with regards to S. H. P. and V. R. P. The 30-day case plan required the appellant to obtain violence counseling, complete a course on parenting skills, contact and visit S. H. P. and V. R. P, and maintain a sense of stability for the family. A DFACS caseworker testified that appellant failed to comply with the reunification plan. Prior to the termination hearing, DFACS was never provided with any proof that the father completed any domestic violence counseling or parenting skills classes. While appellant contacted DFACS three times between 1997 and the date of the termination petition, appellant has not corresponded with S. H. P. or V. R. P., asked to visit with the children, or provided any financial support. Appellant did not become incarcerated until 1998 on the cruelty to children and theft by shoplifting charges. Held:

1. (a) As appellant “did not appeal the original order[s] of the juvenile court finding that his children were deprived, he cannot now complain about that finding.” (Citations and punctuation omitted.) In the Interest of N. J. W., 233 Ga. App. 130, 133 (503 SE2d 366) (1998). Such unappealed deprivation orders establish that S. H. P. and V. R. P. are deprived within the meaning of OCGA § 15-11-81 (b) (4) (A) (i). In the Interest of K. R. C., 235 Ga. App. 354 (510 SE2d 547) (1998).

Appellant argues that the court erred in taking judicial notice of previous orders that were not tendered into evidence. We disagree. A court may take “judicial notice of records in the same court.” Petkas v. Grizzard, 252 Ga. 104, 108 (312 SE2d 107) (1984). “Because no appeals were taken from those orders, [appellant was] bound by the determinations. [Cit.]” In the Interest of J. M. D., supra at 558. As required by Graves v. State, 269 Ga. 772, 774 (504 SE2d 679) (1998), the juvenile court judge announced his intention to take judicial notice of such orders on the record, and appellant was given an opportunity to be heard on whether judicial notice should be taken. Thus, there was no error in the juvenile judge taking judicial notice of the deprivation orders previously entered in the same court, even though such orders had not been entered into evidence. See In the Interest of J. R., 202 Ga. App. 418, 422-423 (414 SE2d 540) (1992).

The case of In the Interest of B. K., 239 Ga. App. 822 (522 SE2d 255) (1999), which was cited by appellant in his brief, is distinguishable. In the Interest of B. K. dealt with a revocation of a juvenile’s probation, which has different procedural guidelines than does a petition for termination of parental rights. Further, the judge in that case did not state on the record that he was taking judicial notice of the prior adjudication of delinquency and allow counsel an opportunity to be heard on the matter, as required by Graves v. State, supra.

(b) Further, the juvenile court had sufficient evidence to determine that appellant’s inability to adequately care for his children was the cause of their deprivation.

In determining whether a child is without proper parental care and control, the juvenile court was authorized to consider the conviction of the parent of a felony and imprisonment therefor which [has] a demonstrable negative effect on the quality of the parent-child relationship. OCGA § 15-11-81 (b) (4) (B) (iii). A conviction of a crime and incarceration [do] not always compel a termination of parental rights but will support such a ruling when adequate aggravating circumstances are shown to exist.

(Citation and punctuation omitted.) In the Interest of N. J. W., supra at 133.

It is undisputed that throughout the children’s lifetime, appellant has consistently been involved in criminal activity. Since 1982, he has been arrested thirty-two times and has been convicted of nine offenses, of which at least five were felonies. Further, appellant is currently imprisoned for physically abusing his stepson on two occasions. See OCGA § 15-11-81 (b) (4) (B) (v) (evidence of past physical, mental, or emotional neglect of the child or of another child by the parent can be considered in determining whether lack of proper parental care and control is the cause of the deprivation). Additionally, since DFACS assumed custody of the children and they were placed in foster care, appellant has failed to comply with the reunification plan. Prior to the termination hearing, appellant had not provided DFACS with proof that he had obtained violence counseling or attended the required parenting classes. Both prior to and since his incarceration, appellant failed to visit or correspond with the children and did not provide any financial support. Such evidence provides a clear and convincing basis for the finding that the children’s deprivation was caused by appellant’s inability to care for them.

(c) The evidence also supports the finding by the juvenile judge that the deprivation is likely to continue. “Although past deprivation is not sufficient for termination without a showing of present deprivation, the court can consider a parent’s past conduct in determining whether such conditions of deprivation are likely to continue.” (Citation and punctuation omitted.) In the Interest of V. S., 230 Ga. App. 26, 29 (495 SE2d 142) (1997). The court was entitled to infer from the evidence that the same pattern of deprivation would continue if the children were reunited with appellant.

While appellant testified that he had completed both domestic violence and parenting classes, as well as other classes, while in prison, appellant did not start any of these classes until the month prior to the termination petition being filed. This late activity does not negate the years of appellant’s previous neglect of his children. While appellant testified that he hoped to be released from prison in January 2000, such release date was tentative. Appellant did not produce any evidence that, on release from prison, he would be able to establish a stable home and find steady employment. Appellant could testify only that he hoped he would be able to reestablish the grocery store and detail shop he was operating prior to his imprisonment. Such evidence supports the conclusion that the deprivation of the children will likely continue into the future.

Decided April 27, 2000.

Hassett, Cohen, Goldstein & Port, Jeffrey A. Bashuk, 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, William R. Jenkins, for appellee.

(d) We also find clear and convincing evidence that the children are likely to be seriously harmed by the continued deprivation. Appellant will be totally unable to care for the children prior to his release from prison. The DFACS caseworker testified that when the children were removed from their first foster placement due to the terminal illness of the foster parent, S. H. P. started to show signs of foster care drift. She was unable to focus and had difficulty relating to adults and her peer group. The caseworker further testified that, for the past eighteen months, appellant’s two children, as well as their half-brother, have been together in- foster care. All three children have bonded with their foster parents and appear to be “stabilized.”

2. Finally, “[i]n determining that terminating [appellant’s] parental rights would serve the best interests of the children, the court properly concerned itself with the need for stability in their lives.” In the Interest of R. N., 224 Ga. App. 202, 205 (480 SE2d 243) (1997). The children are presently in foster care and are doing well. All three children have realistic prospects of being adopted as a sibling group. When appellant is released from prison, he will emerge as a single parent with no job or home and a history of unabated criminal activity that often included violence. While appellant testified that he feels that the classes he has taken have equipped him to be a proper parent, “the decision as to a child’s future must rest on more than positive promises which are contrary to negative past fact.” (Citation and punctuation omitted.) In the Interest of D. I. W., 215 Ga. App. 644, 646 (451 SE2d 804) (1994). Further, “[t]he same factors which prove a parent’s inability to properly raise [his] children may also serve to show that termination of parental rights would be in the children’s best interests. [Cit.]” In the Interest of V. S., supra at 30. Thus, there was clear and convincing evidence that termination of appellant’s parental rights is in the children’s best interests.

Judgment affirmed.

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

       The mother’s parental rights to three of her children, including S. H. P. and V. R. R, were also terminated, as were the rights of the two possible putative fathers of the third child. Neither the mother nor the putative fathers have appealed the termination of their parental rights.


text:
    A00A1109.
    SANDERS v. THE STATE.
    (534 SE2d 173)
    Decided April 27, 2000.

      M. Francis Stubbs, for appellant.

      J. Thomas Durden, Jr., District Attorney, Joe G. Skeens, Assistant District Attorney, for appellee.
   Eldridge, Judge.

A Tattnall County jury found state inmate Larry Sanders guilty of aggravated assault arising from an incident in which Sanders stabbed another inmate with a “shank.” In his sole enumeration of error, Sanders contends that the verdict form used by the trial court improperly gave the jury the choice of “guilty” before “not guilty” and, therefore, did not conform with Sanders’ presumption of innocence. However, a jury’s task is to decide whether the State has proved beyond a reasonable doubt that the defendant is “guilty.” The negative “not guilty” flows from the State’s failure to prove guilt beyond a reasonable doubt and, thus, the order of the form: “guilty,” or in the absence of sufficient proof of guilt, “not guilty.”

Judgment affirmed.

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


text:
    A00A1133.
    VARGAS v. STATE OF GEORGIA.
    (534 SE2d 173)
   Eldridge, Judge.

This is an appeal from a judgment absolute entered for the forfeiture of a $5,000 criminal appearance cash bond. The procedural history is as follows.

In October 1991, defendant Petra Lopez Vargas, a native of Mexico who was in the United States illegally, was arrested in Cobb County on charges involving, inter alia, the forgery of documents from the United States Immigration & Naturalization Service (“INS”). She was given a $250 cash bond on October 8, 1991. Thereafter, in July 1992, a four-count forgery indictment was returned against Vargas in Cobb Superior Court. Arraignment was scheduled for August 8,1992. Vargas failed to appear, and a bench warrant was issued. A show-cause hearing for the forfeiture of Vargas’ bond was set for December 22, 1992. Vargas did not appear at the hearing, and a judgment was entered forfeiting the $250 cash bond. That same day, December 22, 1992, Vargas’ case was placed on the dead docket until such time as Vargas was arrested on the bench warrant.

In addition, an order was entered by the INS deporting Vargas from the United States to Mexico, her country of origin. The INS placed a hold against the Cobb County bench warrant so that they would be notified when Vargas was arrested thereon.

Six years went by. Vargas did not contact INS to resolve deportation issues, although she knew she was in the United States illegally. Neither did Vargas contact Cobb County to resolve the forgery charges against her. She was arrested on the Cobb County bench warrant on December 12, 1998. On December 15, 1998, Vargas was — inexplicably — given a $5,000 cash bond and her husband, Francisco Bandadukay, provided the money. Presumably, INS was notified pursuant to its hold. Vargas’ case was taken off the dead docket and placed on the March 22, 1999 court calendar. However, on January 27,1999, Vargas was picked up by the INS and deported to Mexico.

When Vargas failed to appear in Cobb Superior Court at the call of the calendar, another bench warrant was issued for her arrest and another bond forfeiture hearing was scheduled. Vargas was represented at the hearing by her attorney on the criminal charges, Martin M. del Mazo. At the hearing, del Mazo contended that, following her deportation, Vargas is not permitted to return to the United States. Del Mazo contended that because of Vargas’ “sentence” of deportation, she was being “detained” in Mexico and, thus, under the exception supplied in OCGA § 17-6-72 (b), forfeiture of bond was not warranted. Del Mazo introduced a “status report” from the United States Justice Department showing that Vargas “was deported from the United States on 1-27-99 to Mexico”; he argued that such report was the equivalent of “official written notice from the holding institution” as required by OCGA § 17-6-72 (b). ¡Following evidence and argument of counsel, the trial court entered a final judgment forfeiting the $5,000 cash bond. Held'.

In her sole claim of error, Vargas again contends that her deportation to Mexico with an inability to return to the United States is the functional equivalent of a “sentence” and resulting “detention” as contemplated by OCGA § 17-6-72 (b). We do not agree.

OCGA § 17-6-72 (b) states in pertinent part that:

[n]o judgment shall be rendered on a forfeiture of any appearance bond if it is shown to the satisfaction of the court that the principal on the bond was prevented from attending because he or she was detained by reason of arrest, sentence or confinement in a penal institution or jail in the State of Georgia, or so detained in another jurisdiction. . . . An official written notice of the holding institution in which the principal is being detained or confined shall be considered proof of the principal’s detention or confinement.

Decided April 27, 2000.

Martin M. del Mazo, for appellant.

Patrick H. Head, District Attorney, Dana J. Norman, Maria B. Golick, Assistant District Attorneys, for appellee.

(Emphasis supplied.)

Under the plain language of the statute, OCGA § 17-6-72 (d) provides a forfeiture exception in those instances where the principal is not present in court because he or she has been detained in a penal institution, whether by reason of arrest or sentence. An historical overview of OCGA § 17-6-72 (b) reinforces the plain meaning of the statute. See Ga. L. 1965, p. 266, § 2 (principal in the bond is prevented from attending “because he is being detained in a jail or in a penitentiary in another jurisdiction”); Ga. L. 1987, pp. 1342,1344, § 4 (principal in the bond “was prevented from attending because he was detained under sentence in a penal institution in another jurisdiction”); Ga. L. 1989, pp. 556, 557-558, § 2 (principal in the bond “was prevented from attending because he or she was detained by reason of arrest, sentence, or confinement in a penal institution or jail in the State of Georgia, or so detained in another jurisdiction”). When the language of a statute is plain and unequivocal, judicial construction is not only unnecessary but forbidden. Fleming v. State, 271 Ga. 587, 589 (523 SE2d 315) (1999).

Here, Vargas is not being detained in a penal institution. She is not being detained at all. That she cannot reenter the United States does not make her “detained” in Mexico. Under the plain language of the statute, the forfeiture exception provided by OCGA § 17-6-72 (b) does not apply in the instant case. The trial court did not err in entering a final judgment ordering the forfeiture of the bond amount.

Judgment affirmed.

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


author: Miller, Judge.

text:
    A00A0118.
    In the Interest of A. D., a child.
    (534 SE2d 457)
   Miller, Judge.

Appellant, the natural mother of the child A. D., appeals from the judgment of the juvenile court terminating her parental rights in A. D. Her sole enumeration of error challenges the sufficiency of the evidence and argues only that she did nothing harmful or neglectful.

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

Viewed in the proper light, the evidence showed the following.

A. D. was born on April 18, 1989. Two older siblings, C. D. and another, had been in the custody of the Department of Family & Children Services since 1984. In 1993, A. D. and two other siblings were found to be deprived and placed in the temporary custody of the Department, based upon evidence that their father had sexually molested C. D., then age 13, while she was visiting. At the same time, four-year-old A. D. showed a caseworker where the father touched her private parts. C. D. told her mother what happened, but appellant, just home from the hospital and paralyzed on one side after a seizure, did nothing to stop it.

After repeated extensions of temporary custody, in May 1998, the Department petitioned for termination of the parental rights of appellant and her husband, in order to place A. D. for adoption. The alleged grounds were the parents’ refusal to cooperate with the reunification case plans, the history of sexual abuse in the family, and the parents’ inability to provide care and supervision.

Appellant did not testify at the hearing. Dr. Wallace A. Kennedy, a clinical psychologist, administered a series of psychological tests to appellant and evaluated her as a passive/dependent person who was overweight with serious health problems, including having had a light stroke. Dr. Kennedy concluded that appellant was “utterly dominated by her husband” and that while appellant had good intentions she was “not socially and emotionally competent.” Appellant had more potential native intelligence that she employed after long-term domination, but she was preoccupied with her own health and her total and absolute dependence on her husband. Appellant’s passive/ dependent personality disorder was not a treatable mental disease, i.e., it cannot be medicated.

Appellant showed very low vigilance or alertness and little awareness of what she would have to do to protect her children from her husband’s indecent liberties. She did not believe any sexual abuse occurred because her husband denied it. If the Department attempted any intrusive behavioral management such as placing a full-time homemaker with the family, appellant would not change her own behavior but would simply transfer her dependence to that homemaker.

Dr. Kennedy thought A. D. was a good candidate for adoption because of her young age and her success in foster care. The alternative to termination was “foster care drift,” where children who remain in foster care over extended periods are unable to put down roots, to make friends, or to develop any notion of permanence, which has a seriously deforming impact on children.

Jim Lanier, a licensed clinical social worker, interviewed nine-year-old A. D. and concluded it would be improper to remove A. D. from foster care where she is flourishing. A. D.’s express desire was to stay where she was. She absolutely did not want to go back and live with her natural parents. Lanier recommended termination of parental rights and placement of A. D. in a safe, stable, and permanent home. In foster care, A. D. has improved her reading tremendously and developed a concept of belonging to a family.

The initial reunification plan did not require the father to leave the home; rather, he volunteered to remove himself, if that would result in the return of A. D. But he never followed through with this voluntary separation. Dr. Kennedy was not optimistic that the father would readily accept intrusive supervision.

Termination of parental rights requires a clear and convincing showing that the [child is] deprived due to parental misconduct or inability which is likely to continue or is not likely to be remedied, thereby causing serious physical, mental, emotional, or moral harm to the [child]. [Cit.] Lack of proper parental control may be shown by evidence of the parent’s past physical, mental, or emotional neglect of the child or of another child. OCGA § 15-11-81 (b) (4) (B) (v).

Here, there is ample proof that appellant was not physically or emotionally capable of affording A. D. proper parental care and control and that this situation cannot be remedied medically or addressed effectively by the Department through behavior management. This is a clear and convincing evidentiary basis supporting the juvenile court’s determination that the child remains deprived owing to ongoing parental inability. The opinions of the clinical psychologist and the licensed social worker clearly and convincingly support the conclusion that termination of appellant’s parental rights was in the best interest of A. D.

Decided April 28, 2000.

McGee & McGee, James B. McGee III, for appellant.

Thurbert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen A. Sgrosso, Laura W. Hyman, Assistant Attorneys General, Charles R. Reddick, for appellee.

Judgment affirmed.

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

       (Citations and punctuation omitted.) In the Interest of K. S. W., 233 Ga. App. 144, 147 (1) (503 SE2d 376) (1998).

        In the Interest of W. M., 239 Ga. App. 319, 321 (2) (521 SE2d 230) (1999). Accord In the Interest of M. E. C., 228 Ga. App. 9, 12 (1) (b) (2) (491 SE2d 107) (1997) (parent’s disbelief of allegations of sexual abuse can evince physical, mental, and emotional neglect amounting to deprivation). See also In the Interest of J. C., 242 Ga. 737, 738 (1) (251 SE2d 299) (1978) (the State’s compelling interest in the welfare of children authorizes termination of parental rights of mentally deficient parents incapable of caring for children).

        W. M., supra, 239 Ga. App. at 322 (2).

        In the Interest of A. W., 198 Ga. App. 391, 392 (401 SE2d 560) (1991).


text:
    A00A0272.
    ALLEN v. THE STATE.
    (534 SE2d 190)
   Smith, Presiding Judge.

Joseph C. Allen III was indicted by a Clarke County grand jury on one count of aggravated assault. A jury found him guilty, and his motion for new trial was denied. He appeals, raising three enumerations of error. We find no merit in any of his contentions, and we affirm his conviction.

Construed to support the verdict, the evidence presented at trial showed that the victim knew Allen because Allen’s mother was related to the victim by marriage. Two or three days before the incident, the victim borrowed a small amount of money from Allen to buy food. Allen wanted to be repaid and came to the victim’s home to get the money. The victim told Allen he did not have the money at that time but could give it to him in a few days. The victim feared that Allen and several friends were about to beat him up and asked Allen not to do that in front of the victim’s children. Allen then shot the victim in the abdomen and the arm.

It is undisputed that the victim told police officers and an investigator for the district attorney’s office that Allen shot him. He picked Allen’s picture from a photo array. At trial, however, the victim testified several times that he could not recall who shot him. He also testified, however, that he just did “not want to prosecute anyone.” The victim went on to say that Allen “had called and he apologized, and I accepted his apology of him shooting me which it was wrong that he did. I could have been seriously hurt, but I am not.”

1. Allen contends the evidence was insufficient to support his conviction because the victim testified at trial that he was not sure who had actually shot him and no other witness identified Allen as the shooter. We do not agree.

Evidence is sufficient as a matter of law if, when construed favorably toward the verdict, a rational trier of fact could find all essential elements of the crime charged beyond a reasonable doubt. Aggravated assault has two essential elements: an assault and aggravation, consisting of a deadly weapon, object, or device that, when used against another, is likely to or actually does result in serious bodily injury. OCGA § 16-5-21 (a); Elrod v. State, 238 Ga. App. 80, 81-82 (1) (517 SE2d 805) (1999). In this case, therefore, to convict Allen the State was required to prove those two elements and that Allen was the shooter.

Here, as in Elrod, the accused does not deny the assault; he simply argues that the evidence was insufficient because of the lack of positive testimony that he was the shooter. Here, as in Elrod, we find that prior inconsistent statements made by the victim were admissible as substantive evidence under Gibbons v. State, 248 Ga. 858, 862 (286 SE2d 717) (1982). The victim made a number of prior statements that Allen shot him, including one to an investigator, who testified the victim “said I am a hundred percent sure. I am positive it was Joseph Allen. He was no further than five or six feet from him when he shot him.” These statements were sufficient to support a finding that Allen was the shooter notwithstanding his trial testimony.

Moreover, the victim’s trial testimony itself supports the conviction. The victim acknowledged that Allen shot him and that it was wrong. His testimony shows that it was not uncertainty about the identity of the shooter that motivated his change of heart but simply forgiveness. The necessary elements were sufficiently proved.

2. Allen also maintains the State did not prove venue. The issue of venue was not raised at trial, and when that is the situation and the evidence is not in conflict, slight evidence is sufficient to prove venue. Frisbey v. State, 236 Ga. App. 883, 885 (2) (514 SE2d 453) (1999). This court has held that evidence that the investigating officer was employed by the police department of the county in which the case was tried is sufficient to prove venue when only slight evidence is needed, because “ ‘the State is at least entitled to an inference’ that the officer acted within his territorial jurisdiction.” Joiner v. State, 231 Ga. App. 61 (497 SE2d 642) (1998); Frisbey, supra. Here, evidence was presented that the initial investigating officer was employed by the Athens-Clarke County Police Department and that he was on duty when he responded to the shooting. This was sufficient to establish venue in Clarke County.

Decided April 28, 2000.

David T. Wooten, for appellant.

Harry N. Gordon, District Attorney, John A. Parsley, Assistant District Attorney, for appellee.

3. In Allen’s final enumeration of error, he challenges the admission into evidence of a bench warrant for his arrest issued after he failed to appear for trial on the initial trial date for this case. We do not agree.

“The State is entitled to offer evidence of flight while a defendant is awaiting trial and argue that it demonstrates consciousness of guilt. [Cits.]” Turner v. State, 237 Ga. App. 642, 644 (3) (516 SE2d 343) (1999). “Further, evidence that the defendant forfeited his appearance bond is admissible as tending to show flight.” (Citations and punctuation omitted.) Scott v. State, 216 Ga. App. 692, 693 (2) (455 SE2d 609) (1995). The trial court did not err in allowing the State to introduce this evidence.

Judgment affirmed.

Pope, P. J, and Miller, J, concur.