author: Phipps, Judge.

text:
    A00A2237.
    CARTHON v. THE STATE.
    (548 SE2d 649)
   Phipps, Judge.

Ijean Carthon was convicted of second degree vehicular homicide, driving under the influence of alcohol to the extent she was a less safe driver, driving under the influence of drugs, and failure to yield the right of way.* She asserts the following errors: (1) the trial court erred in sentencing her for both second degree vehicular homicide and failure to yield; (2) the trial court erred in denying her motion to suppress the results of the State-administered blood tests; (3) the trial court erred in sentencing her for both driving under the influence of alcohol and driving under the influence of drugs; (4) her conviction for driving under the influence of drugs is invalid because it is based upon a statute which has been declared unconstitutional; and (5) there was insufficient evidence to support her conviction for driving under the influence of alcohol.

Of Carthon’s five claims of error, we find merit in two. The trial court erred in denying Carthon’s motion to suppress because the implied consent warning was not timely read to her. And the trial court erred in sentencing her for both second degree vehicular homicide and failure to yield because the two offenses merged. We reverse Carthon’s convictions for driving under the influence of alcohol to the extent that she was a less safe driver and driving under the influence of drugs. We also reverse her conviction for failure to yield and vacate her sentence for that offense. We affirm the conviction and sentence for second degree vehicular homicide.

Viewed in the light most favorable to the verdict and judgment, the evidence shows that the following occurred. As a light rain fell, Daniel Sessions drove east on Highway 74 in Thomaston between 8:00 and 8:30 p.m. on October 4, 1995. At the same time, Carthon drove south on a street that intersected with Highway 74. At the intersection, a caution light faced Sessions and a stop sign faced Carthon. According to Sessions, Carthon’s car began to slow as it approached the stop sign; he believed Carthon was stopping; but instead, she continued into the intersection, looking straight ahead. Sessions’s car collided with the passenger side of Carthon’s car.

Carthon’s car was forced into a ditch, and Sessions’s car came to rest “two wheels on the pavement, two wheels on the dirt.” Carthon’s front seat passenger, Barbara Watson, was seriously injured and trapped between the driver’s and passenger’s seats.

Sessions testified that after the collision Carthon was “talking crazy,” had slurred speech, and smelled strongly of alcohol. He believed she had been drinking.

Officer John Edwards and his partner Officer Phil Hammond went to the scene. Edwards took charge of investigating the scene for injuries and spoke to Sessions and Carthon. Another officer arrived later and assisted with traffic control.

When Edwards spoke to Carthon, he smelled alcohol. He asked her if she had been drinking, and she said that she had consumed one quart of beer. Edwards testified that he placed Carthon in the back of his patrol car because it was raining heavily, other cars were traveling close by, and he believed she was intoxicated. At some point, Carthon asked Edwards “if she was going to go to jail,” and Edwards told her, “No.”

After placing Carthon in his patrol car, Edwards returned to Carthon’s car to help emergency medical technicians remove Watson. Hammond sat in the patrol car with Carthon and recorded driver’s license and insurance information on Carthon and Sessions.

About 20 to 30 minutes after Edwards and Hammond arrived on the scene, Watson was extricated and a wrecker arrived to remove the wrecked vehicles. Edwards turned over the vehicles to the wrecker drivers and transported Carthon to the hospital for testing. At the hospital laboratory, 45 minutes to an hour after his arrival at the accident scene, Edwards read an implied consent warning to Carthon. Carthon initially refused but consented after Edwards reiterated that her driver’s license would be suspended for a year if she did not consent. After Carthon provided a blood sample, Edwards issued her citations for failure to yield, no insurance, driving under the influence of alcohol, and driving under the influence of drugs. Then, he released her.

Five days later, Watson died from injuries sustained in the collision. The results of Carthon’s blood tests showed that she had an alcohol concentration of 0.12 grams and a trace of cocaine metabolite in her blood.

1. Partly on the ground that implied consent warnings were not read to her in a timely fashion, Carthon moved to suppress the results of the State-administered blood tests. The trial court denied the motion, finding that the time frame within which Edwards advised Carthon of her implied consent rights was reasonable under the circumstances. Carthon has appealed that ruling.

Georgia law authorizes a police officer to seek chemical testing of a person’s blood, breath, or urine when the officer reasonably suspects the person of driving under the influence of alcohol or drugs or when the person has been involved in a traffic accident resulting in serious injuries or fatalities. For the State-administered chemical tests to be admissible, implied consent warnings must be given in a timely manner. On a motion to suppress, the State bears the burden of showing that implied consent warning requirements have been met.

OCGA § 40-6-392 (a) (4) provides that when the State administers a chemical test to a person based on suspicion of DUI, implied consent warnings must be read to the person at the time of arrest for DUI. The Supreme Court of Georgia has interpreted that provision narrowly, to mean at “the time of arrest or a time as close in proximity to the instant of arrest as the circumstances of the individual case might warrant.” A majority of the court rejected a dissenting opinion that “time of arrest” means “at the time of original custody! ] and prior to the time the defendant-motorist must decide whether to undergo or refuse the state-administered test. . . .”

When a motorist is not arrested for DUI but is tested solely based upon involvement in an accident involving serious injuries or fatalities, implied consent warnings must be given within a reasonable time after the accident, as determined by the circumstances. Under ordinary circumstances, that may be “at the time [a chemical] test is requested, which may or may not be at the time of actual testing.”

The test for determining whether a person is under arrest at a traffic stop is whether a “reasonable person in the suspect’s position would have thought [his] detention would not be temporary.” Traffic stops are analogous to investigative stops under Terry v. Ohio; the power of the police to detain does not last beyond the period necessary for investigation. When the suspect’s freedom of movement continues to be curtailed after the general on-the-scene investigation has concluded, the suspect is under arrest.

Edwards placed Carthon in the locked backseat of his patrol car because he suspected that she was guilty of DUI. Sessions, who was not suspected of DUI, was allowed to remain free at the accident scene.

After Edwards concluded his on-the-scene investigation, he returned to his patrol car and drove Carthon away to the hospital for blood tests which he expected to provide definitive evidence of her level of intoxication. The record does not indicate that he procured Carthon’s consent before leaving the scene for the hospital or that he even explained to her where he was taking her or why. On the other hand, Edwards simply told Sessions that he should go to the hospital for a blood test and allowed him to ride with his mother.

After arriving at the hospital, based solely upon the same information he had acquired at the scene of the wreck, Edwards issued citations charging Carthon with driving under the influence of alcohol and driving under the influence of drugs. Under these circumstances, we must conclude that Edwards placed Carthon under arrest at the scene of the collision where she sat in the backseat of his patrol car while he investigated the collision.

Thus, it is clear that Carthon was not read implied consent warnings at the time she was arrested at the wreck scene but later after she was taken to the hospital. The question is whether she was read the implied consent warnings as soon in proximity to the instant of arrest as the circumstances might have warranted. That question turns on whether the delay in reading the implied consent warnings was excusable, given the facts and circumstances of the case. Morrissette v. State and State v. Marks compel a finding that the “exigencies of police work” had ceased when Edwards returned to his car after working the wreck scene to transport Carthon to the hospital. Thus, it was incumbent upon him to read the implied consent warnings to Carthon before he drove her away from the scene of the collision. Because this was not done, Perano v. State requires us to hold that the implied consent warnings were not timely read to Carthon and that the trial court erred in denying Carthon’s motion to suppress. Because we do not know what weight the jury may have placed upon the blood test results, we reverse Carthon’s convictions for driving under the influence of alcohol to the extent she was a less safe driver and driving under the influence of drugs.

2. In regard to her claim that the evidence was insufficient to support her conviction for driving under the influence of alcohol to the extent that she was a less safe driver, Carthon argues that Edwards’s opinion testimony that she was intoxicated lacked an adequate foundation. She also argues that her blood alcohol test result should not be considered because the trial court erred in admitting it.

Even if Edwards’s opinion testimony and the blood test results are not considered, the evidence was adequate to allow a rational trier of fact to conclude that Carthon drove while under the influence of alcohol to the extent it was less safe for her to drive. Thus, although we determined in Division 1 of this opinion that Carthon’s conviction for driving under the influence of alcohol to the extent that she was a less safe driver must be reversed, she may be retried for that offense because a rational jury may find the properly admitted evidence is sufficient for conviction.

3. Next, Carthon argues that her conviction for driving under the influence of drugs should be reversed because the relevant portion of the DUI statute, OCGA § 40-6-391 (a) (6), has been declared unconstitutional. Section 40-6-391 (a) (6) provides that

A person shall not drive or be in actual physical control of any moving vehicle while [,] [s]ubject to the provisions of subsection (b) of this Code section, there is any amount of marijuana or a controlled substance . . . present in the person’s blood or urine, or both, including the metabolites and derivatives of each or both without regard to whether or not any alcohol is present in the person’s breath or blood.

Subsection (b) states in part that if a person is or has been legally entitled to use a given drug, “such person shall not be in violation of this Code section unless such person is rendered incapable of driving safely as a result of using [the] drug. . . .”

Carthon relies upon Love v. State There, the Supreme Court of Georgia held that OCGA § 40-6-391 (a) (6) violated equal protection because there was no rational basis for the different treatment of persons based on whether the presence of marijuana metabolites in their blood derived from legal versus illegal use of marijuana. However, in the recent case of Keenum v. State, we held that “[t]here is nothing in Love . . . which states that the statute is unconstitutional when applied to those convicted of driving with a detectable level of cocaine in their system.” Thus, as in Keenum, we conclude that Love does not apply to this case.

4. The trial court sentenced Carthon to concurrent one-year sentences for driving under the influence of alcohol to the extent it was less safe and driving under the influence of drugs. Based upon Dotson v. State and O’Dell v. State, Carthon contends that she could not be sentenced for both. Dotson and O’Dell stand for the proposition that the defendant may not be convicted of both driving under the influence of alcohol to the extent it is less safe and driving with an unlawful alcohol concentration where the two charges are predicated upon the same conduct.

Decided March 23, 2001.

Virgil L. Brown & Associates, Larkin M. Lee, for appellant.

William T. McBroom III, District Attorney, Ronnie Poole, Assistant District Attorney, for appellee.

Carthon’s charges for driving under the influence of alcohol to the extent it was less safe and driving under the influence of drugs were not predicated upon precisely the same conduct. Thus, there was no error on this ground in convicting and sentencing her on both charges.

5. The trial court sentenced Carthon to serve one year in confinement for second degree vehicular homicide and twelve months on probation for failure to yield. Carthon was indicted for first degree vehicular homicide based upon the allegation that she caused Watson’s death through commission of the crimes of driving under the influence of alcohol and driving under the influence of drugs. The jury acquitted Carthon of first degree vehicular homicide and convicted her of the lesser included offense — second degree vehicular homicide. That offense was predicated upon the allegation that Carthon caused Watson’s death by failing to yield.

Under the circumstances, failure to yield was a lesser included offense of second degree vehicular homicide. The two offenses merged, and Carthon could not be convicted of both. Thus, we reverse Carthon’s conviction for failure to yield and vacate her sentence for that offense.

Judgment affirmed in part, reversed in part and vacated in part.

Johnson, P. J, and Smith, P. J., concur.

       Carthon was also indicted for driving with an unlawful alcohol concentration and operating a vehicle without proof of insurance. Before trial, the court granted Carthon’s motion to quash the unlawful alcohol concentration charge. And after the close of the State’s case, the court directed a verdict for Carthon on the charge of no proof of insurance.

       See Self v. State, 245 Ga. App. 270, 271-273 (1), (2) (537 SE2d 723) (2000).

       Carthon was cited for no insurance but indicted for no proof of insurance.

       The record contains no evidence regarding Edwards’s basis for citing Carthon with driving under the influence of drugs.

       See OCGA §§ 40-5-55 (a); 40-5-67.1; 40-6-392.

       See OCGA § 40-5-55 (a).

       See generally Perano v. State, 250 Ga. 704 (300 SE2d 668) (1983).

        Miller v. State, 238 Ga. App. 61 (1) (516 SE2d 838) (1999).

       See Vandiver v. State, 207 Ga. App. 836, 837 (1) (429 SE2d 318) (1993).

       (Punctuation omitted.) Perano, supra, 250 Ga. at 708.

       See id. at 709 (Hill, C. J., dissenting).

        State v. Becker, 240 Ga. App. 267, 270 (1) (523 SE2d 98) (1999); Seith v. State, 225 Ga. App. 684, 686-687 (484 SE2d 690) (1997).

       (Emphasis omitted.) Joiner v. State, 239 Ga. App. 843, 848 (2) (522 SE2d 25) (1999).

       (Citations, punctuation and emphasis omitted.) Lyons v. State, 244 Ga. App. 658, 663 (2) (535 SE2d 841) (2000); Seith, supra, 225 Ga. App. at 685.

       392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968).

        Berkemer v. McCarty, 468 U. S. 420, 439 (104 SC 3138, 82 LE2d 317) (1984) (traffic stops analogous to Terry stops); Smith v. State, 216 Ga. App. 453, 454 (2) (454 SE2d 635) (1995) (limits of Terry stops).

       Cf. Hughes v. State, 259 Ga. 227, 228 (1) (378 SE2d 853) (1989); Montero v. State, 245 Ga. App. 181, 184 (537 SE2d 429) (2000).

       Compare Seith, supra, 225 Ga. App. at 685 (defendant who had been involved in serious accident agreed to go to hospital for blood test and agreed to wait in patrol car so that officer could be assured he did not ingest intoxicants before test).

       See Edge v. State, 226 Ga. App. 559, 561 (1) (a) (487 SE2d 117) (1997).

       229 Ga. App. 420, 424 (2) (b) (494 SE2d 8) (1997).

       239 Ga. App. 448, 453-454 (2) (521 SE2d 257) (1999).

       Id. at 453 (2) (quoting Edge, supra, 226 Ga. App. at 560).

       See id. at 453-454; Morrissette, supra, 229 Ga. App. at 424; see also Vandiver, supra, 207 Ga. App. at 837-838 (without exigencies, reading implied consent warnings at police station found untimely); Clapsaddle v. State, 208 Ga. App. 840, 841-842 (2) (432 SE2d 262) (1993) (same).

       Supra, 250 Ga. 704.

       See Gilmore v. State, 242 Ga. App. 470 (1) (530 SE2d 221) (2000) (strong odor of alcohol and involvement in accident were sufficient evidence); see also Garrett v. State, 230 Ga. App. 97 (2) (495 SE2d 579) (1998) (strong odor of alcohol, involvement in accident, admission of alcohol consumption, and talkativeness were sufficient evidence).

       The statute excludes alcohol from the meaning of drugs.

       271 Ga. 398, 402-403 (3) (517 SE2d 53) (1999).

       248 Ga. App. 474, 475 (1) (546 SE2d 288) (2001).

       213 Ga. App. 7, 10 (1) (443 SE2d 650) (1994).

       200 Ga. App. 655, 657 (3) (409 SE2d 54) (1991).

       See Duncan v. State, 183 Ga. App. 368, 370 (5) (358 SE2d 910) (1987); Rank v. State, 179 Ga. App. 28, 30 (2) (345 SE2d 75) (1986).

       Id.

       Id.


source: Caselaw Access Project

author: Ruffin, Judge.

license: Public Domain

text:
    A00A2301.
    PREFERRED REAL ESTATE EQUITIES, INC. v. HOUSING SYSTEMS, INC.
    (548 SE2d 646)
   Ruffin, Judge.

Preferred Real Estate Equities, Inc. (“Preferred”) filed this action for declaratory judgment and trespass, requesting the court to declare that an easement on Preferred’s property has been terminated and that Housing Systems, Inc. (“HSI”) is trespassing on the easement property. HSI counterclaimed, requesting the court to declare that the easement has not been terminated. On cross-motions for summary judgment, the trial court granted summary judgment to HSI and denied summary judgment to Preferred. Preferred appeals, and for reasons that follow, we affirm.

On appeal, we review the trial court’s grant of summary judgment de novo to determine whether the evidence of record, viewed in a light most favorable to the nonmoving party, demonstrates any genuine issue of material fact. Summary judgment is proper only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.

The evidence in this case shows that in 1981, Steak & Ale of Georgia, Inc. (“Steak & Ale”) owned a parcel of land that contained a Bennigan’s restaurant, a parking lot, and an office building. That year, Steak & Ale conveyed, by warranty deed (“deed”), that portion of land containing the office building (“office property”) to Patlyn Associates (“Patlyn”). Steak & Ale retained the portion that included the restaurant and parking lot (“restaurant property”). In the deed, Steak & Ale granted an easement in the parking lot to Patlyn. In addition to granting the easement, the deed required Patlyn to maintain the parking lot and pay property taxes on the easement property. Specifically, the deed provided that Patlyn

by the acceptance of this easement, understands and agrees that it shall have the sole obligation of maintaining the easement property in a good state of repair to the reasonable specifications of [Steak & Ale] at all times and that any and all taxes accruing against said easement property shall be the sole obligation of and be timely paid by [Patlyn]. In the event [Patlyn] fails to pay such taxes . . . and such failure continues for a period of sixty (60) days after its receipt of [Steak & Ale’s] written notice thereof, then, in that event, [Steak & Ale] shall have the right to cancel and terminate this easement hereby granted. . . . The easements granted hereby and the covenants contained herein shall be binding upon and shall inure to the benefit of [Steak & Ale] and [Patlyn], and their respective heirs, legal representatives, successors and assigns and shall be deemed easements and covenants running with the land.

In 1989, Steak & Ale conveyed the restaurant property to S&A Properties Corporation, and in 1992, HSI acquired the office property. From 1981 to 1996, HSI and its predecessors in title did not receive any notices or demands for tax payments for the easement property and did not pay the taxes as required by the deed. Instead, Steak & Ale paid the taxes during this time.

In October 1996, HSI received a written demand from “S&A Restaurant Corp.” to reimburse Steak & Ale for tax payments it made on the easement property over the previous 16 years. The letter, dated October 7, 1996, stated in pertinent part:

Pursuant to the above-referenced Deed, enclosed is . . . Bennigan’s general ledger regarding yearly Fulton County paid taxes. Highlighted for your convenience is the easement tract taxes paid totaling $14,747.52. Kindly reimburse Steak and Ale of Georgia, Inc. $14,747.52 within sixty days (60) days from today’s date.

HSI did not comply with the request, and on July 25, 1997, the assistant secretary of Steak & Ale filed an “Affidavit of Cancellation and Termination of Easement” in the county land records. The affidavit states that it was recorded for “the purpose of giving public notice that [Steak & Ale], pursuant to its rights under the Deed, has canceled and terminated the Easement due to [Patlyn’s] failure to pay . . . $14,747.52 in taxes on the easement property.”

On September 30, 1997, S&A Properties conveyed the restaurant property to Preferred. Preferred subsequently filed this action for a declaration that the easement has been terminated. In its motion for summary judgment, HSI asserted, among other arguments, that Preferred’s predecessors had no right to terminate the easement because they failed to properly notify HSI of the default. We agree.

The office property owner’s duty to timely pay the accruing taxes is a condition subsequent. Upon breach of this condition and a failure to cure after proper notice, the restaurant property owner had a right of entry which would serve as a forfeiture of the easement. In determining whether the deed gave the restaurant property owner a right of entry in this case, we are guided by the rules of contract construction. Although the cardinal rule of construction is to ascertain the parties’ intent, the law in Georgia does not favor the termination of easements. Consequently, where a party attempts to terminate an easement according to a forfeiture clause contained in a deed, the forfeiture clause is “ ‘subject to a very strict construction,’ ” and the party attempting the termination must strictly comply with the terms of the clause. Furthermore, it is irrelevant whether the party defending against the forfeiture

was in fact harmed by failure to give [proper notice],. . . the question being whether [the party attempting the termination] can insist upon a forfeiture clause in the contract when it has not complied with the terms of the contract under which such forfeiture clause may be invoked.

In this case, the forfeiture clause provides that if the office property owner fails to pay the accruing taxes, and “such failure continues for a period of sixty (60) days after its receipt of [the restaurant property owner’s] written notice thereof,” then the restaurant property owner has a right of entry. Strictly construing this language, it required the notice to be given by the restaurant property owner.

Preferred’s predecessor, S&A Properties Corporation, did not strictly comply with this requirement. The notice was not from the owner of the restaurant property. Indeed, the notice was clearly sent by “S&A Restaurant Corp.,” and there is no evidence that this entity ever owned the restaurant property. Although, at the time the notice was sent, the restaurant property was owned by a company with a similar name, we are unaware of any evidence establishing the relationship between the two entities, much less establishing that S&A Restaurant Corporation was authorized to provide the notice on behalf of S&A Properties Corporation. Indeed, in the October 7 letter, S&A Restaurant Corporation does not even state that it was demanding payment on behalf of S&A Properties Corporation. Thus, HSI was not properly notified of its failure to pay the taxes, and the owner of the restaurant property was not entitled to terminate the easement.

Decided March 23, 2001.

Friedman, Dever & Merlin, Hayes M. Dever, Michael F. O’Neill, for appellant.

Schreeder, Wheeler & Flint, David H. Flint, Timothy C. Batten, Kevin T. Caiaccio, for appellee.

Judgment affirmed.

Andrews, P. J, and Ellington, J., concur.

       Preferred originally appealed to the Supreme Court of Georgia based on its belief that the case sounded in equity and involved title to land. The Supreme Court found that “any equitable relief sought is merely ancillary to the legal issues raised,” and transferred the case to this Court.

       See OCGA § 9-11-56 (c); Leal v. Hobbs, 245 Ga. App. 443 (538 SE2d 89) (2000).

       See id.; see also Paden v. Murray, 240 Ga. App. 487 (523 SE2d 75) (1999).

       (Emphasis supplied.)

       See OCGA § 44-6-42; Wilkes v. Groover, 138 Ga. 407, 408 (1), (2) (75 SE 353) (1912).

       See OCGA § 44-6-42; Wilkes, supra.

       See Khamis Enterprises v. Boone, 224 Ga. App. 348, 349 (480 SE2d 364) (1997).

       See id.

       See Eagle Glen Unit Owners Assn. v. Lee, 237 Ga. App. 240, 242 (1) (b) (514 SE2d 40) (1999); see also Burritt v. Media Marketing Svcs., 204 Ga. App. 848, 849 (3) (420 SE2d 792) (1992) (stating that forfeitures are not favored).

       Id.

       (Punctuation omitted.) Id.

       We note that although Steak & Ale was the entity that attempted to terminate the easement, that company did not own the restaurant property when it filed the “Affidavit of Cancellation and Termination of Easement.” It is thus unclear where Steak & Ale derived its purported authority to terminate the easement.


author: Johnson, Presiding Judge.

text:
    A01A0071.
    PARKER v. THE STATE.
    (548 SE2d 634)
   Johnson, Presiding Judge.

A jury found Herman Lee Parker guilty of selling cocaine. Parker appeals, contending (1) the weight of the evidence is contrary to the verdict, (2) the trial court erred in its pre-charge to the jury, (3) the state inadvertently failed to disclose his statement prior to trial, (4) the trial court erred in refusing to order that he be produced for his motion for new trial, and (5) the trial court erred in allowing the state to replay an audiotape four times during the course of the trial. Because each of these enumerations of error lacks merit, we affirm Parker’s conviction.

1. Viewed in a light most favorable to support the jury’s verdict, the evidence shows that Parker approached a car driven by an undercover narcotics agent. The agent asked if he could get “a twenty,” referring to $20 worth of crack cocaine. Parker walked around the front of the agent’s car, got in the passenger side, reached into a small plastic bag, and handed the agent a piece of crack cocaine. The agent handed Parker two $10 bills which had previously been photocopied. The agent then left the parking lot, but watched Parker. Within 20 seconds, a second agent arrested Parker. No one had approached Parker prior to his arrest.

The buy money was recovered from Parker’s possession. A digital audiotape of the conversation between the undercover agent and Parker was admitted into evidence and played for the jury. The state also introduced and played for the jury a videotape with Parker identified as the person approaching the agent’s car.

Parker testified that he was wearing the clothes described by the agents at trial, that he had the buy money on him, and that he was in the parking lot where the incident took place. However, Parker claimed that his height and weight did not match that described by the undercover agent. He also testified that a larger man dressed like him asked him for a $20 bill in exchange for two $10 bills, and he obliged. He further pointed out an alleged inconsistency in the agents’ testimony concerning whether he dropped some drugs.

When reviewing a criminal conviction, this Court must determine whether, after viewing the evidence in a light most favorable to support the jury’s verdict, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. This Court only determines the legal sufficiency of the evidence; we do not weigh the evidence or judge the credibility of the witnesses. In light of the agents’ testimony identifying Parker as the individual who sold the cocaine, as well as the taped evidence and Parker’s possession of the buy money, the evidence was sufficient to enable a rational trier of fact to find Parker guilty beyond a reasonable doubt of sale of cocaine. The jury was authorized to resolve the conflicts in the evidence and reject Parker’s testimony.

2. In its pre-charge to the jury, the trial court gave an illustration to help show the jury what constitutes evidence in the case. In part, the court charged as follows: because at the end of the trial you’re supposed to use only the words that are in your evidence filing cabinet plus the exhibits to decide the facts. One complication of that is that sometimes the lawyers use what I call the yellow rose technique. They ask the first witness well did you see the yellow roses there that day. And the witness says what, I don’t know anything about any yellow roses. Then they ask the next witness did they tell you about the yellow roses. The witness says I don’t know anything about any yellow roses. By the end of the trial, half the jury is convinced the place was covered with yellow roses even though there hasn’t been one single smidgen of testimony to that effect from the witness stand. See what I mean? Now the way our trials work, after I finish speaking the lawyers will make an opening statement to you. These statements by the lawyers are predictions of what they think the evidence is going to be. We encourage these predictions because they can help you to fit the stories together better. And also sometimes they can alert you that a seemingly insignificant piece of information may later turn out to be critical. It goes without saying, ladies and gentlemen, that you decide the case according to what the evidence actually turns out to be and not according to what the lawyers predict that it’s going to be. Now after the opening statement, then the State — by that I mean the assistant district attorney seated at the front table with a police officer. I think we call them drug agents these days, but it’s still a police officer. The State has the burden, the task, of proving each essential element of its case by the introduction of evidence. . . .

You will be reassured to know that among the twelve of you you can remember all of the testimony. One person may remember one part of it well. Another person may have notes on another part. When you put your heads together you can remember it all. Notice that you will hear thousands of words which are not evidence. What I say is not evidence. What the lawyers say is not evidence. You want to listen to everything of course, but it is as if you need to have two different filing cabinets in your head. And when you hear words spoken that are evidence, you put them in one place. And when you hear words spoken that are not evidence, you put them in another part of your brain. And you try to keep them separate. This is very difficult to do. But it’s important

Parker contends that the illustration amounted to an intimation of opinion by the trial court in violation of OCGA § 17-8-57. However, the illustration was not an unauthorized expression of an opinion by the trial court as to what actually had been proven in the case or as to Parker’s guilt. Rather, the illustration was a preliminary reference to what the jury could expect to hear once the evidence began and a warning to differentiate between words that are evidence and words that are not. Moreover, Parker failed to object to the trial court’s precharge or move for a mistrial on the basis of the pre-charge. Hence, he waived the right to contend that the trial court violated OCGA § 17-8-57.

Parker also alleges that the same pre-charge by the trial court violated his due process rights. He argues that the illustration used by the trial court essentially instructed the jury that the attorneys might ask questions that introduce irrelevant evidence into the trial, undermining the effectiveness of cross-examination of the state’s witnesses and minimizing the state’s burden of proof. However, as with his contention concerning OCGA § 17-8-57, Parker did not raise this issue at trial and, therefore, has forfeited the right to subsequently assert it. Moreover, we find that the trial court’s attempt to explain the difference between words that constitute evidence and words that do not, using “yellow roses” as an illustration, was proper, correctly illustrated the evidentiary concepts, neither misled nor confused the jury, and in no manner resulted in an unfair statement of the law.

When a trial court correctly instructs the jury on the law, but an objection is made to a hypothetical illustration offered by way of explanation, this Court will not narrowly scrutinize that illustration unless a showing is made that the illustration confused or misled the jury. Here, no such showing has been made. There was no error.

3. Parker maintains the state “may have inadvertently failed to disclose” his statement to police. However, the record shows that Parker did not make a statement to police and no statement was used to prosecute him. One agent testified that he could not recall if he questioned Parker, but believed that he did not, and no evidence has been presented to show that any statement exists. This enumeration of error lacks merit.

4. Parker alleges the trial court erred by refusing to have him brought to court for his motion for new trial. However, it is well settled that a defendant’s right to be present during the course of his trial does not extend to post-verdict proceedings such as a motion for new trial.

5. Parker contends the trial court erred in allowing the state to replay the digital audiotape four times during the course of the trial. The record shows that the audiotape was played, without objection, during the undercover agent’s testimony for authentication purposes. The audiotape was replayed, without objection, to establish how many seconds passed between the time Parker exited the car and his arrest. The audiotape was again played, this time over objection, when the state cross-examined Parker. The audiotape was played the fourth time when the jury requested to hear it again during their deliberations. Parker asserts that the audiotape should not have been replayed during his cross-examination or when the jury requested to hear it again because the replaying was repetitive. We disagree.

Decided March 23, 2001.

Gerald L. Olding, for appellant.

Spencer Lawton, Jr., District Attorney, Thomas M. Cerbone, Assistant District Attorney, for appellee.

Regarding the state’s cross-examination of Parker, it is well established that the scope and extent of cross-examination rest within the trial court’s sound discretion and will not be disturbed absent an abuse of that discretion. Moreover, whether to permit the replaying of a portion of testimony is within the discretion of the trial court. Here, the state had a right to cross-examine Parker regarding the audiotape of the controlled buy between the undercover agent and Parker. It was within the trial court’s discretion to permit the state to do this by first replaying the audiotape and then questioning Parker about the contents of the audiotape and the circumstances surrounding the controlled buy. We find no abuse of the trial court’s discretion by permitting the replay of the audiotape.

Parker’s contention that the trial court erred in allowing the jury to again hear the audiotape after commencing deliberations is without merit. “It has been recognized for more than 100 years that it is permissible for the trial judge, in his discretion, to permit the jury at their instigation to rehear requested parts of the evidence after they have retired and begun deliberations.”* The tape was admissible, and the trial court did not err in allowing its replay.

Judgment affirmed.

Ruffin and Ellington, JJ., concur.

        Holzendorf v. State, 235 Ga. App. 462, 463 (509 SE2d 737) (1998); Little v. State, 230 Ga. App. 803, 804 (1) (498 SE2d 284) (1998).

        Holzendorf, supra at 464; Little, supra.

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

        Cammon v. State, 269 Ga. 470, 475 (8) (500 SE2d 329) (1998); Walker v. State, 258 Ga. 443, 444 (3) (a) (370 SE2d 149) (1988).

        Walker, supra at 444 (3) (b).

        Druitt v. State, 225 Ga. App. 150, 153-154 (4) (483 SE2d 117) (1997).

        Grimes v. State, 245 Ga. App. 277, 278 (1) (537 SE2d 720) (2000).

        Dobbs v. State, 245 Ga. 208, 209 (2) (264 SE2d 18) (1980); Pena v. State, 247 Ga. App. 211, 217 (4) (542 SE2d 630) (2000).

       See Timley v. State, 268 Ga. 611, 612 (2) (492 SE2d 214) (1997).

       See Stephens v. State, 261 Ga. 467, 468 (4) (405 SE2d 483) (1991).

       (Citation and punctuation omitted.) Brown v. State, 239 Ga. App. 674, 677 (2) (522 SE2d 41) (1999).

       See McGee v. State, 205 Ga. App. 722, 728 (11) (423 SE2d 666) (1992).


text:
    A01A0118.
    HINES v. THE STATE.
    (548 SE2d 642)
   Johnson, Presiding Judge.

After a jury trial, Larry Hines was convicted of two counts of aggravated child molestation and two counts of child molestation for offenses committed against his six-year-old stepson, A. S. He was also convicted of one count of child molestation for an act committed against a neighbor’s six-year-old child, R. M. Hines appeals, asserting that the trial court erroneously admitted hearsay evidence, that in its jury charge the trial court expressed its opinion as to what had been proven, and that he was denied effective assistance of counsel. Because each of the enumerations is without merit, we affirm the convictions.

1. Hines contends the trial court committed reversible error by allowing R. M.’s mother to testify regarding what her son told her about the molestation of A. S. He urges that the alleged error was harmful because there was no other evidence corroborating A. S.’s allegations that Hines molested him.

At trial, the state called R. M.’s mother to the stand. She testified that R. M. told her that he and A. S. were playing at Hines’ house when Hines pushed both boys’ faces down onto his lap. Hines’ penis was outside of his clothing at the time. She added that A. S. came into her house immediately afterward and told her the same story.

When the trial court called R. M. to testify, he refused to enter the courtroom. The trial court excused the jury from the courtroom. The prosecutor informed the court that the child was crying, did not want to be there, did not want to answer questions, and, in the prosecutor’s opinion, “cannot answer questions in this environment.” The trial judge asked that R. M. be brought to the bench so he could talk to the child. The trial judge asked R. M. his age. In response, R. M. held up six fingers. The trial court noted for the record that the child was crying. Stating that he was deciding the issue as a human being, a judge, and a father, the trial judge announced that the child did not have to testify. The court asked the child if he wanted to get up on the stand and say anything. The child shook his head negatively. The trial court asked defense counsel if he wanted to establish anything for the record. After voicing his uncertainty as to whether the child should be forced to testify, defense counsel remarked that the child was very upset and “having seen him like this, . . . and having seen him answer your questions, we don’t want to ask him any questions.”

Under OCGA § 24-3-16, a child’s out-of-court statements are admissible if, among other things, the child is available to testify in the proceedings. The term “available” denotes a witness who can be confronted and cross-examined. A child who is unable to take the stand obviously cannot respond to opposing counsel’s questions and is unavailable within the meaning of the statute.

In this case, the child would not take the stand and was not made available for confrontation and cross-examination. Since the result of the trial court’s ruling was that Hines could not confront and cross-examine the child, he was not available to testify within the meaning of OCGA § 24-3-16.

Contrary to the state’s argument, this case is unlike those cases in which the child actually took the stand and could be examined and cross-examined, but was merely unresponsive, inarticulate, or did not corroborate the testimony of other witnesses. The trial court decided, and we certainly understand the reason for the ruling, that the distraught child should not be forced to take the stand. However, because the trial court excused the child without him ever being sworn and examined as a witness, he was not available to testify within the meaning of the statute, and his mother’s testimony regarding his statements to her were therefore inadmissible.

Even so, reversal is not required because the evidence at issue was admitted through several other witnesses. For instance, a police detective testified that A. S. told her that Hines threw him on the bed, pulled down A. S.’s underwear, rubbed the child’s penis with his hand, turned him onto his stomach, and put his penis in the child’s anus. A. S. also told the detective that Hines had put his penis in A. S.’s mouth. The child gave the same testimony in a videotaped interview which was played for the jury.

A. S. testified that he told the police officer the truth about what Hines had done to him. The child further testified that Hines pulled the children’s faces onto his exposed penis. And A. S. told his mother the day of the incident that Hines put the children’s faces in his lap while his penis was exposed.

Hines testified that he pulled both children’s faces onto his lap while he had on boxer shorts and that the children might have rubbed up against or seen his penis. He also testified that while playing with A. S., he inadvertently pulled down the child’s pants and accidentally rubbed his penis.

Inasmuch as the testimony in question was merely cumulative of other testimony properly admissible under OCGA § 24-3-16, any error in this regard was harmless. We note that, contrary to Hines’ contention, it was not necessary that the child’s testimony be corroborated.

2. Hines complains that the trial judge’s use of voice tone, inflection, and pauses during the jury charge constituted an expression of his opinion and a comment on the evidence in the case. To support his contention, Hines introduced into the record at the hearing on the motion for new trial, and caused to be included in the appellate record, the court reporter’s audiotape of the court’s jury charge.

An appellant’s contentions that he was prejudiced due to a trial judge’s vocal emphasis, facial expressions, or other bodily demeanor are reviewable on appeal if the appellant has completed a record which will enable an appellate court to review his contentions. According to our Supreme Court, the record is reviewable if the trial attorney called as witnesses people who were in the courtroom at the time of the incident in question and questioned them as to the trial judge’s demeanor.

Hines does not cite, nor have we found, any authority addressing the question of whether an appellant can preserve the issue of the trial court’s manner of speech by including in the record the court reporter’s audiotape. We hold that the inclusion of such a tape can be sufficient to preserve this issue. However, Hines does not direct our attention to any particular parts of the jury charge and fails to explain how the trial court’s use of tone, inflection, or pauses might have indicated to the jury the court’s opinion as to what had been proven. Indeed, we have listened to the tape and found nothing in the manner in which the trial court gave its charge which could reasonably be considered prejudicial against Hines.

Moreover, the trial court specifically told the jury at the end of its charge:

[A]s some of you have heard me say before this week, it is not my role or my decision to make in this case. Nothing that I have said or done, voice inflection, ... or anything that I may have done . . . was not meant to hint, suggest, intimidate [sic], cajole, persuade, to try to convince you what to do in this case.

(Emphasis supplied.) Under the circumstances, Hines has not shown reversible error.

3. During his closing argument, the prosecutor stated that because Hines is capable of molesting his own stepson and any other child that comes into his home, the thought that Hines could be acquitted frightens him. Hines says that his trial attorney’s failure to object to this argument warning the jurors of his “future dangerousness” shows that he received ineffective assistance of counsel.

Decided March 23, 2001.

William J. Mason, for appellant.

J. Gray Conger, District Attorney, Julia A. Slater, Assistant District Attorney, for appellee.

Hines is correct that it is improper for a prosecutor to argue during the guilt-innocence phase of a criminal trial that if found not guilty, a defendant poses a threat of future dangerousness. However, in this case, defense counsel’s failure to object (or decision not to object) to the prosecutor’s comments did not constitute ineffective assistance of counsel.

At the hearing on the motion for new trial, Hines’ trial counsel testified that he knew that the state’s “future dangerousness” argument was improper, but that he did not want to call the jury’s attention to the issue by objecting. According to trial counsel, it was “just a judgment call,” a “strategic position” not to object to the argument. “Trial strategy and tactics do not equate with ineffective assistance of counsel.” The fact that Hines and his present counsel disagree with the decision made by trial counsel does not require a finding that Hines’ original representation was inadequate.

Judgment affirmed.

Ruffin and Ellington, JJ., concur.

        Woodruff v. Woodruff, 272 Ga. 485, 486 (1) (531 SE2d 714) (2000); Lang v. State, 201 Ga. App. 836, 837 (1) (412 SE2d 866) (1991).

        Lang, supra.

        Woodruff, supra.

       See Lang, supra at 837-838 (1).

       See, e.g., Jenkins v. State, 235 Ga. App. 53, 55 (1) (b) (508 SE2d 710) (1998).

       See Lang, supra.

       See Letlow v. State, 222 Ga. App. 339, 345 (4) (474 SE2d 211) (1996).

       See Vickers v. State, 241 Ga. App. 452, 453 (527 SE2d 217) (1999).

        Milhouse v. State, 254 Ga. 357, 358-359 (2) (329 SE2d 490) (1985).

       Id. at 359 (2).

       See Wyatt v. State, 267 Ga. 860, 864 (2) (b) (485 SE2d 470) (1997).

       (Punctuation omitted.) Powell v. State, 210 Ga. App. 409, 413 (6) (b) (437 SE2d 598) (1993).

       See id. at 414.


text:
    A00A1914. A00A1995.
    In the Interest of C. D. E. et al., children. In the Interest of S. K. S.-F.
    (546 SE2d 837)
   Ruffin, Judge.

In these two cases, Patricia E. and Deryl E. appeal the juvenile court’s order finding that several of their children were deprived and awarding temporary custody of those children to the Gwinnett County Department of Family & Children Services (DFCS). For reasons discussed below, we reverse the judgment in both cases.

In late 1999, Patricia and Deryl were living together with their infant son, D. E. (born July 24, 1999); three of Deryl’s children from a prior marriage, S. M. E. (born April 21, 1989), D. C. E. (born December 28,1987), and C. D. E. (born May 20,1985); and Patricia’s daughter, S. K. S.-F. (born February 20,1992) (referred to hereafter as S. K. S.). Deryl also had another teenage child, Cl. E., who had previously been placed in DFCS’ custody due to severe emotional problems. At the time, Deryl was on probation for convictions for simple battery and obstruction.

In January 2000, Deryl was arrested on a domestic violence charge for pushing Patricia to the ground while she was holding their baby, D. E. On February 14, 2000, DFCS filed deprivation petitions with respect to S. M. E., D. C. E., C. D. E., and S. K. S., alleging that there was domestic violence in the home. Following a hearing on that date, the trial court entered an order temporarily awarding custody of the children to DFCS pending a final deprivation hearing.

The final deprivation hearing was held on February 28, 2000. At the beginning of the hearing, the court was advised that S. K. S.’s father, Derek Franco, had filed a motion to change custody of S. K. S. The court indicated that it would consider the issue of S. K. S.’s deprivation at the hearing, but would not consider the change of custody motion until a later time.

The evidence presented at the hearing was very sketchy and largely based on hearsay. Nancy Conrey, a DFCS caseworker, testified that she was “assisting on the investigation” with respect to the various children, although she did not specify her precise role in the investigation. She testified that the children had been removed from Patricia and Deryl’s home due to

[Repeated incidents of domestic violence in the home. The issues between [Deryl] and [Patricia]. The children telling us in separate interviews repeated incidents of [Deryl] beating [Patricia]. The children continually exposed to this in the home. Also “C. D. E.,” the 14-year-old, allegedly being physically abusive to [Patricia] which she chose not to handle through our recommendation to Juvenile Court for an unruly. We’ve documented, you know, domestic violence on [Deryl] from ‘88 up until the present and he’s been in the anger management classes because he’s on Federal probation and now on State probation for domestic violence and it doesn’t seem to be working.

Although Conrey referred to “repeated” and “documented” incidents of domestic violence, it is apparent from her testimony that she had no personal knowledge of any such incidents. Rather, she relied completely on information related to her by others, primarily statements she claims were made by some of the children to unidentified persons at DFCS. Deryl’s attorney objected to these statements on hearsay grounds, requesting that the judge interview the children himself, and the judge responded, “Okay. All right.” However, the judge never actually questioned the children regarding the alleged violence, and no evidence of any specific allegations by the children was introduced. Conrey also stated that “there’s evidence that [Patricia] maltreats . . . ‘C. D. E.’ and ‘D. C. E.,’ ” but offered no explanation as to what that evidence might be.

Conrey testified that Deryl had completed a court-ordered psychological evaluation, and the psychologist’s written report was offered into evidence without objection. The report indicated that it was based on one interview session with Deryl, as well as information about Deryl and his family provided to the psychologist by Conrey. The report offered no conclusions regarding Deryl’s ability to properly parent his children, but nevertheless recommended that he “not get his children back at this time.” The psychologist who prepared the report did not testify at the hearing.

Patricia testified that, in 1996, she had taken out a warrant against Deryl for simple battery. She did not, however, offer any details regarding the incident. Deryl went to prison for a time, and there were no more violent incidents after he was released until late 1999 or early 2000. While Deryl was in prison, Patricia had custody of his children from his earlier marriage.

Patricia testified that her relationship with Deryl deteriorated in late 1999, largely as a result of stress over how to deal with C. D. E., who Patricia said had become sexually active with an older man. By the beginning of December, Patricia and Deryl were arguing “on a regular basis.” Patricia testified at the deprivation hearing that, shortly before his January arrest, Deryl had begun to “get physical” with her, such as by biting her head or banging her head against a wall or door frame. She said that none of these incidents, however, had resulted in any bruising. She testified that she “told [Deryl] if it ever happened again that it would be the last time.” In January, Deryl pushed her to the ground while she was holding their five-month-old child, D. E. It was this incident that caused her to take out a warrant for Deryl’s arrest.

Patricia testified that, except for the one incident when she was holding their baby, none of the children ever observed any acts of violence by Deryl. She testified that, after she had their father arrested, the situation with Deryl’s children “got way out of control.” According to Patricia, they “started threatening me that they were going to have me arrested and call DFACS on me because I had done this to their father.” She testified that she and Deryl were no longer living together and had agreed to get a divorce. She promised to abide by any restrictions the court imposed on Deryl having contact with her or her children.

Jane Hudson, a licensed clinical social worker, testified that she had observed Patricia and Deryl and their children on several occasions, as part of a family assessment conducted in connection with Deryí’s son Cl. E., who had previously been placed in DFCS’ custody. Hudson testified that “[Patricia and Deryl] have a wonderful family. They have beautiful, very intelligent children, and they do a lot of things together as a family.” She said, however, that “I think the children have ambivalent feelings. I think they at times feel very, very attached to Patti and to [Deryl]. And then at other times, I think they feel concerned; and, at times, afraid in the home.” When asked whom the children were afraid of, she said that the children “expressed indirectly being afraid of [Deryl].” When asked exactly what the children had said or done to give her this impression, she testified that “[d]uring a family session . . . they said that they wanted to talk about some things in my presence but were concerned that there might be repercussions after the fact.” Other than this cryptic reference to a desire to talk about “some things,” Hudson offered nothing to support her belief that the children were at times afraid of Deryl.

Hudson testified that she had no concerns about Patricia’s ability to parent, although she noted that Deryl’s children “have pretty ambivalent feelings” toward her. With regard to Patricia’s own children, Hudson said: “Do I have any concerns about Patti’s ability to parent [S. K. S.] or [D. E.], no I don’t.”

DFCS presented no testimony from any of the children and presented no evidence as to how the children were affected by any family violence. It offered no evidence that Deryl had ever abused any of his children and offered no evidence regarding his fitness as a parent.

At the conclusion of the hearing, the trial court stated that it

finds by clear and convincing evidence that these children are deprived. They have been subjected to violence in the home, repeated violence visited upon the mother by the father. . . . [L]ooking at this psychological report, [Deryl] here appears to be somewhat of a walking time bomb that presents a danger to his own children and his own family.

Although stating that “these children” were deprived, the trial court announced that it was

going to withhold disposition in regards to [S. K. S.] I want to hear more evidence at another time and she will remain in the temporary custody of the Department based upon what we have previously discussed. And we will complete the hearing on [S. K. S.] when I hear evidence regarding Mr. Franco and [Patricia’s] concern about Mr. Franco and how we should go on that.

The court subsequently entered a written order setting forth its ruling. Although the court had orally stated that it would withhold judgment regarding S. K. S., the written order found that all of the children, including S. K. S., were deprived. The order provided that DFCS would retain custody of all the children except the infant, D. E., who was to remain in Patricia’s custody provided that she have “absolutely no contact with [Deryl].”

In Case No. A00A1995, Patricia appeals the deprivation order as it relates to S. K. S. In Case No. A00A1914, Deryl appeals the deprivation order as it relates to S. M. E., D. C. E., and C. D. E.

Case No. A00A1995

1. In her appeal, Patricia contends that there was insufficient evidence to support the trial court’s finding that S. K. S. was deprived. We agree.

OCGA § 15-11-2 (8) (A) provides that a child is deprived if she “ [i] s without proper parental care or control, subsistence, education as required by law, or other care or control necessary for the child’s physical, mental, or emotional health or morals.” We have held that

to authorize a . . . loss of temporary custody by a child’s parents, on the basis of deprivation, the deprivation must be shown to have resulted from unfitness on the part of the parent, that is, either intentional or unintentional misconduct resulting in the abuse or neglect of the child or by what is tantamount to physical or mental incapability to care for the child.

An order temporarily transferring custody of a child based on her alleged deprivation must be “grounded upon a finding that the child is at the present time a deprived child,” and “[a] finding of parental unfitness is essential to support an adjudication of present deprivation.” Clear and convincing evidence is required to support a finding of deprivation. On appeal, we determine whether,

after reviewing the evidence in the light most favorable to the appellee, any rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights to custody have been lost. This standard of review safeguards the high value society places on the integrity of the family unit and helps eliminate the risk that a factfinder might base his determination on a few isolated instances of unusual conduct or idiosyncratic behavior. Only under compelling circumstances found to exist by clear and convincing proof may a court sever the parent-child custodial relationship.

At trial, there was absolutely no evidence presented that Patricia was anything other than a fit parent for her children. Indeed, the only person who even expressed an opinion on the subject testified that she had no concerns whatsoever about Patricia’s ability to parent her children. The only basis for asserting that any of the children were deprived was Deryl’s violence toward Patricia. Even assuming that spousal abuse alone could support a finding that a child is deprived, the evidence was undisputed that Patricia and Deryl were no longer living together at the time of the deprivation hearing and were in the process of obtaining a divorce. Thus, that cause, if any, of deprivation had been removed with respect to Patricia’s children. The trial court apparently recognized this in its order, allowing Patricia to retain custody of her youngest child on the condition that she have no further contact with Beryl. Accordingly, there was absolutely no basis for the trial court to conclude that Beryl’s abuse of Patricia rendered S. K. S. a deprived child at the time of the deprivation hearing.*

BFCS asserts that the trial court’s order must be upheld because there is no guarantee that Patricia and Beryl will not reconcile at some point. We note that no evidence was presented at trial that Patricia has any intent of reconciling with Beryl, and she was quite firm in her insistence to the contrary. Thankfully, we have not yet reached the point where the State is authorized to take children away from an admittedly fit mother based solely on the mere possibility that she may in the future have contact with someone who has previously beaten her.

Because there was no evidence, much less clear and convincing evidence, that S. K. S. was a deprived child at the time of the deprivation hearing, the juvenile court erred in removing the child from her mother’s custody and transferring custody to BFCS.

Case No. A00A1914

2. In his appeal, Beryl contends that the evidence was insufficient to support the trial court’s finding that S. M. E., B. C. E., and C. B. E. were deprived. We agree.

The trial court’s order does not clearly state the basis for the court’s conclusion that Beryl’s children are “deprived” within the meaning of OCGA § 15-11-2 (8). Rather, the order simply states that the children are deprived and then describes various facts and conclusions, without clearly articulating how the children are without proper parental care or control or how Beryl is an unfit parent. It is apparent, though, that the court’s ruling is based upon Beryl’s acts of domestic violence against his wife and upon the court’s conclusion that Beryl is “a walking time bomb.” In reciting the facts that are apparently meant to support this conclusion, however, the court in many instances either misstates the evidence, relies on irrelevant and unproven allegations or hearsay statements, or draws conclusions that are not supported by the evidence.

In describing the incident that led to Deryl’s arrest, for example, the trial court states that “[Deryl] threw [Patricia] ... to the ground. He slammed her head, held her briefcase to her head and threatened to kill her. One child was in the home and heard the violence.” This description of the facts is inaccurate in several significant respects. First, there is absolutely no evidence that Deryl “slammed” Patricia’s head, “held her briefcase to her head,” or “threatened to kill her.” To the contrary, in the only description of the event offered at trial, Patricia testified that Deryl “pushed me down on the ground with a briefcase and threatened me and I can’t remember his exact wordage.” Although this may constitute simple battery, the trial court’s description greatly overstates the severity of the incident, providing specific and inflammatory details that are not supported by the evidence. The trial court’s statement that “[o]ne child . . . heard the violence” is also not supported by the evidence. Rather, Patricia simply testified that S. K. S., who was in her room at the time, “heard us arguing . . . and she knew I was upset.” These misstatements of the evidence suggest that the court’s ultimate conclusion was based on a flawed view of the facts.

The trial court also states in its order that “[C. D. E.] has alleged that she is the victim of physical abuse from the parents.” This statement appears to have no support in the record, however, since C. D. E. never testified at trial and no witness testified that she had made any such allegations. More fundamentally, even if such an allegation had been made, the trial court did not purport to find that it was true, and an unproven allegation of abuse cannot support a finding that someone is “a walking time bomb” who is a danger to his children. The trial court’s inclusion of this supposed allegation in its order indicates that it was a factor influencing its ruling, once again suggesting that the court based its conclusion on a flawed view of the facts.

The trial court also apparently based its finding of deprivation, in part, on the fact that Deryl “has been diagnosed with a bipolar disorder.” It is true that, in determining whether a child is without proper parental care or control, and thus a “deprived child,” a court may consider “[a] medically verifiable deficiency of the parent’s physical, mental, or emotional health of such duration or nature as to render the parent unable to provide adequately for the physical, mental, emotional, or moral condition and needs of the child.” However, even assuming that Deryl had been diagnosed with a bipolar disorder, the court completely failed to discuss how such condition was relevant to a finding of deprivation. Indeed,

[t]he record is devoid of any evidence describing what the behavior is or how it might limit [Beryl’s] parental abilities. So even though there may have been such a diagnosis, there is no evidence of a medically verifiable mental or emotional deficiency that renders [Deryl] unable to provide for the needs of [his] child [ren].

The trial court also relied heavily, if not exclusively, on the psychological report to conclude that Deryl is “a walking time bomb” who “presents a danger to his own children.” As discussed above, however, the psychologist who prepared the report did not testify at the hearing and thus was not subject to cross-examination. As we have previously held, “records which contain diagnostic opinions of third parties who are not available for cross-examination are generally inadmissible.” Although there was no objection to the introduction of the report, hearsay evidence has no probative value even when it is admitted without objection. Accordingly, the trial court erred in relying on the psychological report as the basis for its conclusion that Deryl is a walking time bomb. And given the court’s express reliance on the report, we cannot apply the principle that judges are presumed to “separate the wheat from the chaff” and to ignore hearsay evidence in making their determinations.

In any event, even if the psychologist’s report constituted competent evidence, it provides no support for the trial court’s conclusion that Deryl is a danger to his children. In this regard, the actual conclusions stated in the report deserve quoting at some length:

Test findings indicate that [Deryl] is depressed. ... In fact, he appears at present to be experiencing a fair amount of emotional stress that is giving rise to unpleasant affect and increasing his susceptibility to becoming depressed. . . . This may be reducing his usual level of effectiveness in making decisions and pursuing courses of action. . . . That his psychological resources are insufficient to meet the demands he is experiencing makes it likely that his capacity for self control is impaired and that he has a marked tendency toward impulsiveness in what he thinks, says and does. [Deryl’s] persistent difficulty in mustering adequate resources to cope with demands being imposed on him by circumstances in his life places him at risk for recurrent episodes of anxiety, tension, nervousness and irritability. It is likely that... he has less than average ability to persevere in the face of obstacles. He is likely to show a tendency toward impulsive outbursts of unwarranted affect and/or ill-advised actions. . . . [Deryl] is at risk for being psychologically incapacitated, at least temporarily, and for appearing to others as noticeably agitated and distraught. . . . [H]e is likely to be an emotionally immature person who experiences and expresses affect in an overly dramatic and overly intense manner. [Deryl] has oppositional tendencies that are likely to be associated with underlying anger and resentment toward people and toward the world in general, possibly including negativity toward authority. . . . [Deryl] appears to be less capable than most people of dealing effectively with his everyday experiences. . . . His limited social skills are likely to be contributing to awkward, inept or inappropriate management of his interpersonal relationships.

Although the sheer length of the report might suggest extreme emotional problems rendering Deryl an unfit parent, a closer reading shows nothing of the sort. In addition to the abundance of qualifying language (“likely,” “tendency,” “at risk,” “may,” “possibly,” “less than average,” “less capable than most”) — which undoubtedly reflects the fact that the report is based on a single interview session — the report conspicuously fails to conclude, or even to suggest, that Deryl poses any threat whatsoever to his children or that his emotional makeup renders him unable to provide proper parental care and control. Indeed, nothing in the report even addresses Deryl’s relationship with his children or his ability to parent. Rather, the report indicates that he is “susceptible]” to becoming “depressed,” that his stress gives rise to “unpleasant affect,” that he “may be” less “effective” than “usual” in “pursuing courses of action,” that it is “likely” he has a “tendency” toward “impulsiveness,” that he is “at risk” of “anxiety, tension, nervousness and irritability,” that he is “likely” to have a “tendency” toward “impulsive outbursts of unwarranted affect” (whatever that means), and that he has “limited social skills” that are “likely” to “contribute” to “awkward, inept or inappropriate management” of “interpersonal relationships.” Although such tentative descriptions of Deryl’s possible emotional makeup may be of interest to a psychologist, they provide no basis to conclude, by clear and convincing evidence, that Deryl is “a walking time bomb” who “presents a danger to his own children.”

As discussed above, the trial court’s mischaracterization of evidence and reliance on inadmissible evidence — evidence the court thought significant enough to discuss in its order — calls into question the reasoning behind the court’s implicit conclusion that Deryl is unable to offer proper parental care or control because he is a danger to his children. Even if the evidence, properly characterized, were sufficient to support such a conclusion, we would thus be required at a minimum to vacate the court’s judgment and remand for reconsideration. We do not, however, believe the evidence is sufficient for a factfinder to conclude, by clear and convincing evidence, that the children are deprived.

As stated above, a child is deprived if he is “without proper parental care or control.” In order to justify a temporary transfer of custody, the deprivation must be based upon the unfitness of the parent. In this case, there was absolutely no evidence presented relating to Deryl’s ability to parent his children. The only evidence arguably bearing on this issue was that he had on an unspecified number of occasions committed acts of domestic violence against his wife, although none of these acts was witnessed by his children and none was severe enough to cause bruising. The issue in a deprivation hearing involving a transfer of custody, however, is not whether the parent has committed illegal acts, but whether there is “intentional or unintentional misconduct resulting in the abuse or neglect of the child or . . . what is tantamount to physical or mental incapability to care for the child.”

Decided March 6, 2001

Reconsideration denied March 26, 2001.

David L. Whitman, Sandra D. Hicks, for appellants.

Thurbert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen S. Nelson,. Laura W. Hyman, Assistant Attorneys General, Cheeley & Joyner, John P. Cheeley, for appellee.

Even where the parent has been convicted and incarcerated for commission of a felony, a finding of parental unfitness must be based on a showing that there is “a demonstrable negative effect on the quality of the parent-child relationship.” Here, DFCS failed to present any evidence that Deryl’s misdemeanor acts of domestic violence against Patricia, with whom he is no longer living, had any negative effect on his relationship with his children. Nor was there any evidence that Deryl had ever abused or neglected his children or that he was likely to do so in the future. In the absence of such evidence, there was no clear and convincing basis for the trial court to conclude that the children were deprived within the meaning of OCGA § 15-11-2 (8) (A).

3. Due to our rulings above, it is not necessary to address the other enumerations raised by Patricia or Deryl.

Judgments reversed.

Andrews, P. J., and Ellington, J., concur.

       DFCS apparently also filed a petition with respect to the infant, D. E., but that petition is not contained in the record, and these appeals raise no issues with respect to D. E.

       It is not clear whether he went to prison on this or another charge or how long he remained in prison.

       Patricia did not actually describe these incidents of domestic violence or provide any details regarding them, but simply testified as follows:
      Q. Now, there was an incident back in January where you took out an arrest warrant for your husband; is that correct? A. That is correct. Q. You reported that your husband regularly abuses you via biting your head or banging your head into a wall or door frame; is that correct? A. That is correct. Q. Do you stand by those statements today? A. Yes, sir, I do.
      When asked, “How often would that occur,” she stated that she and Deryl had been arguing “[s]everal times a week,” but did not quantify the amount of physical violence except to state that “[i]t had just recently started to get physical” and that “he had struck me a few times before [the January incident].”

       Subsections (B), (C), and (D) of OCGA § 15-11-2 (8) describe other ways in which a child may be deprived, but they are not relevant to these appeals.

        In the Interest of D. H., 178 Ga. App. 119, 124 (342 SE2d 367) (1986). See also In the Interest of S. S., 232 Ga. App. 287, 289 (501 SE2d 618) (1998).

       (Emphasis supplied.) In re J.C.P., 167 Ga. App. 572, 576 (307 SE2d 1) (1983).

       (Emphasis in original.) Id. at 575.

        In the Interest of D. E. K., 236 Ga. App. 574, 577 (512 SE2d 690) (1999). See also OCGA § 15-11-56 (b) (1).

       (Citations and punctuation omitted.) In the Interest of S. E. H., 180 Ga. App. 849, 850 (350 SE2d 833) (1986). See also In the Interest of D. S., 217 Ga. App. 29, 31 (456 SE2d 715) (1995) (physical precedent only).

       The court gave no explanation of why it believed Patricia was fit to retain custody of D. E., but not S. K. S.

       See D. E. K., supra at 578 (mother’s “relationship with an abusive husband,” even combined with other factors, was not sufficient to render child deprived so as to authorize temporary transfer of custody to DFCS).

       See id. at 577 (mother had history of reconciling with abusive husband, but testified that she was going to get a divorce “as soon as she saved enough money to obtain a lawyer”).

       See id.

       Indeed, the court prefaces its findings and conclusions by stating that, “[t]he Court specifically finds, and all parties agree, as follows,” when it is quite apparent that the parties did not agree to the court’s findings and conclusions. In fact, at the beginning of the deprivation hearing, the trial court specifically asked Patricia’s attorney, “Do you contest the allegations [of deprivation],” and the attorney responded, ‘Yes.” We thus find puzzling the trial court’s assertion that “all parties agree.”

       It appears that the trial court focused on the attorney’s question to Patricia — “Did he slam your head on the ground and threaten to kill you?” — rather than on Patricia’s answer. Questions, of course, do not constitute evidence.

       Conrey did state in passing that “there’s evidence that [Patricia] maltreats . . . ‘C. D. E.’ and ‘D. C. E.,’ ” although she did not bother to explain what that evidence was.

       See OCGA § 15-11-2 (8) (A).

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

       There was no expert testimony that Deryl had been diagnosed with a bipolar disorder. The only evidence to that effect was (1) Conrey’s claim that Deryl “provided [her] with the information from Dr. Mayfield about him being bipolar,” and (2) hearsay statements in the psychologist’s report that Deryl had said he had recently been diagnosed.

        In the Interest of A. G. L., 246 Ga. App. 85, 87-88 (2) (a) (539 SE2d 584) (2000).

        In the Interest of J. T. S., 185 Ga. App. 772, 773-774 (2) (365 SE2d 550) (1988).

       See In the Interest of A. F., 236 Ga. App. 60-61 (1) (510 SE2d 910) (1999).

       See In the Interest of M. A. C., 244 Ga. 645, 655 (4) (261 SE2d 590) (1979). OCGA § 15-11-56 (c) provides no basis for the trial court to consider hearsay statements made in the psychological report, as that section applies to dispositional hearings, and not to factfinding hearings on the threshold issue of deprivation. See In the Interest of J. C., 242 Ga. 737, 740-741 (251 SE2d 299) (1978); In the Interest of D. S., 212 Ga. App. 203, 204 (441 SE2d 412) (1994).

       See McBride v. State, 247 Ga. App. 767, 770 (1) (545 SE2d 332) (2000) (presumption that court correctly applies the law is inapplicable where it affirmatively appears to the contrary). Cf. M. A. C., supra (“When a trial judge considers both admissible and inadmissible evidence, it is presumed that he separates the wheat from the chaff.”).

       (Emphasis supplied.)

       Although the report recommends that Deryl “not get his children back at this time,” nothing in the report suggests that this recommendation is anything more than the personal preference of the psychologist.

       See, e.g., In the Interest of J B., 241 Ga. App. 679, 680 (1) (527 SE2d 275) (1999) (deprivation order must, in addition to reciting factual findings, show “how those facts give support to . . . the separate conclusions” and “state . . . the process by which [the court’s decision] was reached”).

       OCGA § 15-11-2 (8) (A).

       See D. H., supra.

        D. H., supra.

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

       Compare In the Interest of J. L. M., 204 Ga. App. 46, 47-48 (418 SE2d 415) (1992) (upholding finding of parental unfitness in parental rights termination case where father murdered children’s mother, but only because murder was accompanied by other evidence of parental unfitness).


text:
    A00A2474.
    CHOUINARD v. CITY OF EAST POINT.
    (546 SE2d 827)
   Ruffin, Judge.

This is the second appearance of this case before this Court. In Chouinard v. City of East Point, we affirmed in most respects the trial court’s award of damages to Alfred Chouinard in a condemnation action, but remanded with direction that the trial court recalculate the amount of interest to which Chouinard was entitled. In this appeal, Chouinard challenges several aspects of the trial court’s ruling on remand. For reasons discussed below, we affirm in part and reverse in part.

Many of the relevant facts are set out in our prior opinion. On September 8,1989, the City of East Point filed a condemnation action relating to a shopping center owned by Chouinard. The complaint identified certain tenants of the shopping center, including Johnny’s Pizza and Starship Enterprises, as additional condemnees. At the time it filed the complaint, the city paid $326,700 into the registry of the court, representing its estimate of just and adequate compensation for the taking. This amount was not, however, apportioned among the various condemnees eligible for compensation. On November 2, 1989, the trial court entered a consent order allocating the funds among the various condemnees, and on November 9, 1989, the court directed the clerk to pay $243,700 to Chouinard.

Chouinard and the other condemnees challenged the city’s value estimate, and a jury trial was held in November 1994. The jury found that Chouinard was entitled to compensation in the amount of $288,000, which was $44,300 more than he had previously received. The jury also found that Starship Enterprises was entitled to $40,480 in compensation and that Johnny’s Pizza was entitled to $32,705. The court entered a final judgment on the verdict on January 12, 1995, crediting the various condemnees with the amounts that they had previously received. Under the final judgment, Chouinard was entitled to an additional $44,300 in compensation, plus prejudgment interest on this sum in the amount of $16,576. Starship Enterprises was entitled to an additional $16,280 in compensation, plus $6,091.12 in prejudgment interest. The city was entitled to recover $7,815 from Johnny’s Pizza, which received less from the jury than it had already been paid. The order also provided that the parties were entitled to postjudgment interest at the rate of 12 percent from the date of judgment.

On January 23, 1995, the city paid $82,770.70 into the registry of the court. Although not remarked upon by the parties at the time, this amount was insufficient to satisfy the entire judgment, being $476.42 less than the combined amount of principal and prejudgment interest owed to Chouinard and Starship Enterprises. In addition, postjudgment interest had continued to accrue since the date of the judgment. Chouinard did not attempt to withdraw any of the funds, but instead filed a motion for new trial on February 9, 1995. This motion was denied on October 10, 1997, and Chouinard then appealed to this Court.

In our prior opinion, we affirmed on most issues, but held that, pursuant to OCGA § 32-3-19 (c), the trial court should have awarded Chouinard interest on the $243,700 amount from September 8, 1989, when the condemnation was filed, until November 9, 1989, when Chouinard was authorized to withdraw such amount. We thus remanded the case to the trial court with direction to calculate the interest due and enter a judgment reflecting that interest.

On remand, Chouinard raised several issues, two of which are pertinent to this appeal. First, he asserted that the interest on the $243,700 amount should be computed at the postjudgment rate of twelve percent, as opposed to the seven percent rate set forth in OCGA § 32-3-19 (c). Second, he argued that, since the $82,770.70 deposited by the city on January 23, 1995, was not sufficient to cover the entire amounts owed to him and Starship Enterprises and was not allocated between the two, it did not constitute a sufficient tender to stop the accrual of postjudgment interest. Therefore, he argued that he was entitled to postjudgment interest on the $44,300 amount from the date of the judgment. The trial court rejected both arguments, holding that interest on the $243,700 was to be computed at the rate of seven percent and that Chouinard was not entitled to any postjudgment interest on the $44,300.

1. In his first enumeration, Chouinard contends that the trial court erred in holding that he was not entitled to any postjudgment interest. For reasons discussed below, we agree that the trial court’s ruling was in error, although we do not agree that Chouinard is necessarily entitled to postjudgment interest on the entire $44,300 amount.

OCGA § 7-4-12 provides that all judgments bear interest at the rate of 12 percent per year until paid. To stop the accrual of interest, a party must make a valid tender of payment. As a general rule, such a tender “must be certain and unconditional, and must be in full of the specific debt.” Payment of the full judgment into the registry of the court is one way of making such a valid tender.

In holding that Chouinard was not entitled to postjudgment interest, the trial court concluded that the city’s deposit of $82,770.70 into the registry of the court constituted a valid tender of the entire judgment. The court stated that

[although the January 23, 1995 deposit did not specifically allocate money to each condemnee, Chouinard knew of the proper portion due him and could have withdrawn his portion at any time. Condemnor’s payment was sufficient to fully satisfy Chouinard’s judgment and is a valid and continuing tender of the judgment as set forth by the January 12, 1995 judgment. Accordingly, Chouinard is not due any additional postjudgment interest on the $44,300.

We agree with Chouinard that the trial court erred in concluding that the city’s deposit constituted a valid tender of the entire judgment. To constitute a valid tender, a tender must be “ ‘in full of the specific debt.’ ” The city’s deposit was not specifically for payment of Chouinard’s judgment, but was for the payment of both Chouinard and Starship Enterprises. Although the deposit was more than the amount of Chouinard’s judgment, it was less than the amount of the combined judgments. Since the two condemnees had equal claims to the funds on deposit, any withdrawal would have had to be allocated pro rata between them, and neither would have been entitled to have its judgment satisfied in full.* Accordingly, the trial court erred in concluding that the deposit constituted a valid tender in full of Chouinard’s judgment and that Chouinard was therefore not entitled to postjudgment interest on any portion of the $44,300.

However, the mere fact that the deposit does not qualify as a valid tender in full does not mean that Chouinard is entitled to postjudgment interest on the entire amount, as he asserts on appeal. OCGA § 9-11-67 sets forth a sort of corrollary to the full tender rule, stating that

[i]n an action in which any part of the relief sought is a judgment for a sum of money or the disposition of any other thing capable of delivery, a party, upon notice to every other party, and by leave of court, may deposit with the court all or any part of such sum or thing to be held by the clerk of the court, subject to withdrawal, in whole or in part, at any time thereafter upon order of the court, upon posting of sufficient security. Where the thing deposited is money, interest thereupon shall abate.

Where money is paid into the registry of the court in compliance with this section, no prejudgment or postjudgment interest accrues on such sums.

In this case, although it does not appear that the city obtained the permission of court before making the $82,770.70 deposit, on May 19, 1995, the court entered a consent order stating that the funds had been placed into the court’s registry for the benefit of the condemnees and providing that such funds would be deposited into an interest-bearing account. Neither party has filed a brief in this Court, or the trial court, on the effect of OCGA § 9-11-67 with respect to calculating postjudgment interest. On remand, the trial court should consider the effect of the statute in determining what portion of the $44,300 amount is subject to postjudgment interest.

2. Chouinard also contends that, in calculating the interest due on the $243,000 amount, the trial court should have applied the twelve percent postjudgment rate set forth in OCGA § 7-4-12, as opposed to the seven percent rate set forth in OCGA § 32-3-19 (c). This assertion is incorrect, as our earlier opinion clearly provided that the interest was to be calculated pursuant to OCGA § 32-3-19 (c). This ruling remains the law of the case and is binding both on the trial court and this Court. Accordingly, this enumeration is without merit.

Decided March 5, 2001

Reconsideration denied March 26, 2001

Glenville Haldi, for appellant.

Holland & Knight, Charles S. Johnson III, Steven W. Hardy, Chamberlain, Hrdlicka, White, Williams & Martin, Richard N. Hubert, for appellee.

3. In his final enumeration, Chouinard asserts that the trial court erred by not awarding him costs for the earlier appeal pursuant to OCGA § 5-6-5. He provides no argument in support of this assertion, however, simply stating that “[w]e will not argue this point at length because it seems patent that this was an erroneous omission from the [judgment] of the Trial Court which is here on appeal.” What is self-evident to Chouinard, however, may not be so to this Court, and we do require that an appellant stir himself to make at least some effort to tell us why he is entitled to reversal. Thus, this enumeration is abandoned for lack of argument.

Judgment affirmed in part and reversed in part.

Andrews, P. J., and Ellington, J., concur.

       237 Ga. App. 266, 272 (7) (514 SE2d 220) (1999).

       With respect to prejudgment interest, the order recited that Chouinard was entitled to $16,278.50 interest for the period from September 8, 1989, to December 8, 1994, plus a per diem rate of $8.50 through January 12, 1995, the date of the judgment. With 35 days of interest at the per diem rate, the total prejudgment interest due was thus $16,576.

       The order recited that Starship Enterprises was entitled to $5,981.92 interest for the period from September 8, 1989, to December 8, 1994, plus a per diem rate of $3.12 through January 12, 1995, the date of the judgment. With 35 days of interest at the per diem rate, the total prejudgment interest due was thus $6,091.12.

       OCGA § 32-3-19 (c) provides that the judgment shall include interest from the date of taking to the date of payment pursuant to final judgment at the rate of 7 percent per annum on the amount awarded by final judgment as the value of the property as of the date of taking; but interest shall not be allowed on so much thereof as shall have been paid into the court and was subject to withdrawal by the condemnee without the requirement of posting a bond as required by Code Section 32-3-15.

        Chouinard, supra.

       Id.

       See Heath v. L. E. Schwartz & Sons, Inc., 203 Ga. App. 91, 92 (2) (416 SE2d 113) (1992).

       (Punctuation omitted.) Id.

       See id. at 92, n. 1.

       Id. at 92.

       Nothing in the tender suggests that the funds were intended to be available for withdrawal on a “first-come, first-served” basis by whichever of the condemnees made the first claim thereto.

       (Emphasis supplied.)

       See Sacha v. Coffee Butler Svc., 215 Ga. App. 280, 281 (1) (450 SE2d 704) (1994).

        Chouinard, supra.

       See In re Spruell, 237 Ga. App. 259, 260 (515 SE2d 190) (1999).

       Indeed, were we to address the merits of this enumeration, we might question whether Chouinard’s faitee to file a written motion for costs might have been the reason the trial court did not award them. See Dept. of Med. Assistance v. Llewellyn, 197 Ga. App. 231, 232 (1) (398 SE2d 256) (1990). Or we might consider whether our prior ruling, which went against Chouinard on every issue except the recoverability of two months worth of interest, constituted a “substantial modification” of the judgment so as to entitle him to costs. See Burritt v. Media Marketing Svcs., 242 Ga. App. 92, 95 (4) (527 SE2d 890) (2000).

       See Jivens v. State, 215 Ga. App. 306, 308 (7) (450 SE2d 328) (1994); Brooks v. Meriwether Mem. Hosp. Auth., 246 Ga. App. 14, 16 (2) (539 SE2d 518) (2000).