text:
    A01A0058.
    LAW v. THE STATE.
    (547 SE2d 784)
   Ruffin, Judge.

Jason Law appeals from his convictions for armed robbery, aggravated assault, and two counts of possession of a firearm during the commission of a crime. He does not challenge the sufficiency of the evidence. Instead, he argues that the trial court erred in admitting certain testimony and in charging the jury. He also claims that the trial court erroneously imposed consecutive sentences for the two firearm charges under OCGA § 16-11-106. For the reasons discussed below, we affirm Law’s convictions, but vacate his sentences on the two firearm possession counts.

Law’s convictions arose out of two separate incidents. Cynthia Pointer testified that on December 23,1998, an individual she identified as Law approached her in a laundromat, “stuffed [a] gun in [her] stomach,” and demanded money. Pointer gave Law her money. Law then took Pointer into a bathroom and threatened to kill her. Pointer managed to grab the gun, and Law fled. As Law ran from the premises, Pointer threw the gun at him. Law picked up the gun and left the scene. Asked to describe the gun, Pointer testified that “it actually looked like a cap gun now to think of it, but it is like — had the round barrel which you put the single bullets in.” The gun was not admitted into evidence.

George Saade similarly identified Law as the individual who robbed his electronics store on January 18,1999. According to Saade, Law entered his store and pulled a gun, demanding money and merchandise. Law was apprehended by police shortly after leaving the store with a bag of stolen goods.

The jury found Law guilty of aggravated assault on Pointer and possessing a firearm during the commission of the aggravated assault. It also found Law guilty of the armed robbery of Saade and possessing a firearm during the commission of the armed robbery.

1. Law contends that the trial court erred in allowing the state to recall Pointer to explain a discrepancy between her testimony and the testimony of a police officer. In particular, Law argues that Pointer’s additional testimony violated the rule of sequestration because Pointer remained in the courtroom after the trial court initially excused her as a witness.

Law has provided no record support for his claim that the rule of sequestration was invoked in this case. The record also does not clearly establish that Law objected to the state recalling Pointer. Even if the rule was invoked and Law raised a proper objection, however, no error occurred.

“[T]he recalling of a witness for further examination at the instance of either party is always within the discretion of the trial judge.” We find no abuse of that discretion here. Furthermore, “[i]n criminal cases, the violation of the rule of sequestration by any witness either for the defense or for the prosecution goes to the credibility rather than to the admissibility of the witness’ testimony.” The trial court’s decision to admit Pointer’s additional testimony was not error.

2. Law also argues that the trial court erred in refusing to define the term “firearm” during jury instructions. We disagree.

The trial court’s jury instruction defining “possession of a firearm during commission of a crime” tracked the applicable provisions of OCGA § 16-11-106 (b). After the charge, Law asked the trial court to further instruct the jury that a firearm is “a weapon capable of discharging a projectile via force of gunpowder.” Law noted Pointer’s testimony that the gun he used “looked like a cap gun” and argued that a specific definition of “firearm” was necessary. The trial court refused to give the requested definition, finding that the word “firearm” has a “common usage.”

Jury instructions need not specifically define “[t]erms of common usage and meaning.” We agree with the trial court that “firearm” is such a term and requires no specific definition. Our decision in Fields v. State does not demand a different result. In Fields, we considered whether a BB pistol is a “firearm” under OCGA § 16-11-106. We concluded that, except as otherwise noted in the statute, a “firearm” is a weapon “which discharge^] a projectile by force of gunpowder.” In reaching this decision, we assigned the term “firearm” its ordinary and logical meaning and found its common definition.

Nothing in Fields required the trial court to define “firearm” in this case. On the contrary, that decision indicates that the word “firearm” has a common and ordinary usage. The trial court did not err in rejecting Law’s requested charge.

3. Finally, Law challenges the consecutive sentences imposed by the trial court on the firearm possession counts. The trial court concluded that “the two firearm possession charges require not only consecutive sentencing with respect to the armed robbery and/or aggravated assault but with respect to each other as well.” Finding that it had no discretion to run the firearm possession sentences concurrently to each other, the trial court sentenced Law to two consecutive five-year terms.

In Busch v. State, however, the Supreme Court determined that OCGA § 16-11-106 (b) does not prevent a trial court from imposing concurrent sentences for multiple convictions under OCGA § 16-11-106 (b). The Supreme Court held: “when [OCGA § 16-11-106 (b)] provides that its five-year sentence must be imposed consecutively to any other sentence which [the defendant] has received, the statute is referring to the sentence that the person has received for the underlying felony.” The trial court apparently imposed consecutive sentences for the two firearm possession counts because it erroneously believed it had no discretion to do otherwise. Accordingly, Law’s sentences on the possession of a firearm during commission of a crime convictions (Counts 2 and 6) are vacated, and this case is remanded for resentencing in light of the Supreme Court’s decision in Busch v. State.

Judgment of conviction affirmed.

Sentence partially vacated and case remanded for resentencing. Johnson, P. J, and Ellington, J., concur.

Decided April 17, 2001.

James S. Garner III, for appellant.

TambraP. Colston, District Attorney, FredR. Simpson, Assistant District Attorney, for appellee.

       Law was charged with two other armed robberies and two additional counts of possession of a firearm during the commission of a crime, but was acquitted of those offenses.

       (Punctuation omitted.) Clarke v. State, 241 Ga. App. 186, 191 (2) (526 SE2d 395) (1999); McGee v. State, 205 Ga. App. 722, 723 (4) (423 SE2d 666) (1992).

       (Emphasis in original.) Blanchard v. State, 247 Ga. 415, 417 (1) (276 SE2d 593) (1981); see also Johnson v. State, 258 Ga. 856, 857 (4) (376 SE2d 356) (1989); Robinson v. State, 246 Ga. App. 576, 583 (7) (541 SE2d 660) (2000).

        Philpot v. State, 268 Ga. 168,171 (3) (486 SE2d 158) (1997).

       See Anderson v. State, 226 Ga. 35, 36 (2) (172 SE2d 424) (1970) (“[T]he word ‘assault’ is certainly a term in common usage.”); Turner v. State, 246 Ga. App. 49, 54-55 (5) (a) (539 SE2d 553) (2000) (no error in failing to charge jury on definition of “destructive device”);
        Clarke v. State, supra at 192 (3) (“We find that telemarketing is a term of common usage and meaning, and that the trial court did not err in failing to give a charge defining it”).

       216 Ga. App. 184 (453 SE2d 794) (1995).

       Id. at 187 (1).

       Id. at 186-187.

       271 Ga. 591, 595 (523 SE2d 21) (1999).

       (Punctuation omitted.) Id. at 594.


source: Caselaw Access Project

author: Ruffin, Judge.

license: Public Domain

text:
    A01A0249.
    THE STATE v. WATSON.
    (547 SE2d 789)
   Ruffin, Judge.

Barbara Watson was indicted for possessing a sawed-off shotgun in violation of OCGA § 16-11-122. It is undisputed that when police seized the shotgun from Watson, it lacked a firing pin. Watson moved the trial court to dismiss the charge on the ground that the missing firing pin rendered the shotgun inoperable. The trial court granted the motion, and the State appeals. For reasons that follow, we reverse.

The Georgia Firearms and Weapons Act (the “Act”) proscribes the possession of certain firearms. Specifically, the Act prohibits individuals from possessing “any sawed-off shotgun, sawed-off rifle, machine gun, dangerous weapon, or silencer except as provided in Code Section 16-11-124 ” Section 16-11-124 enumerates four exceptions to the prohibition against possessing these weapons. Three of the exceptions apply to certain members of the law enforcement community and military servicemen, and to manufacturers and importers who have registered the particular weapon in accordance with the National Firearms Act. The fourth exception applies to “[a]ny sawed-off shotgun, sawed-off rifle, machine gun, dangerous weapon, or silencer which has been modified or changed to the extent that it is inoperative. Examples of the requisite modification include weapons with their barrel or barrels filled with lead, hand grenades filled with sand, or other nonexplosive materials.”

In this case, the State concedes that the sawed-off shotgun could not be fired without the firing pin, but points out that the shotgun could be readily restored to a firing condition by inserting a firing pin. The State argues that the legislature intended for the exception to apply only to more permanent modifications which render the shotgun inoperable, as illustrated by the legislature’s examples of a gun barrel filled with lead and a hand grenade filled with sand. Watson responds that if the legislature had intended to exempt only permanently modified firearms, it would have included the word “permanently” in the statute.

We are guided by the rules of statutory construction. The cardinal rule of statutory construction is to ascertain the intent of the legislature. OCGA § 1-3-1 instructs that “[i]n all interpretations of statutes, the courts shall look diligently for the intention of the General Assembly, keeping in view at all times the old law, the evil, and the remedy.” And, although we are usually required to apply the ordinary meaning “to all words, except words of art or words connected with a particular trade or subject matter,” it is well settled that the wording used by the legislature does not always express its intent. Thus,

[t]o give effect to the intention of the legislature, courts are not controlled by the literal meaning of the statute, but the spirit or intention of the law prevails over the letter thereof. Where the letter of the statute results in absurdity or injustice or would lead to contradictions, the meaning of general language may be restrained by the spirit or reason of the statute. It is the duty of the court to consider the results and consequences of any proposed construction and not so construe a statute as will result in unreasonable or absurd consequences not contemplated by the legislature.

Finally, “[a]s a criminal statute, OCGA § [16-11-124] ‘must be construed strictly against criminal liability and, if it is susceptible to more than one reasonable interpretation, the interpretation most favorable to the party facing criminal liability must be adopted.’ ”

The interpretation of OCGA § 16-11-124 (3) is a matter of first impression; the reason for prohibiting sawed-off shotguns is not. As stated by the Supreme Court of Georgia, the evil of sawed-off shotguns is that they “are of a size such as can easily be concealed and which are adapted to and commonly used for criminal purposes.” Thus, the legislature found it appropriate to “prohibit the keeping and carrying of sawed-off shotguns,” except under limited circumstances. Three of those exceptions apply only to a limited class of people who have a legitimate reason to possess a working sawed-off shotgun: law enforcement personnel, servicemen who possess them in the line of duty, and certain importers and manufacturers. Because the general public, as a rule, has no legitimate reason to possess such a dangerous weapon, the legislature obviously deemed it appropriate to authorize the public to possess sawed-off shotguns only when they are inoperative and can do no harm.

The National Firearms Act, which is referenced in OCGA § 16-11-124 (4), and also governs possession of sawed-off shotguns, was similarly enacted to regulate the possession of these “highly dangerous weapons/’ Like Georgia’s Act, the National Firearms Act does not apply to shotguns that are incapable of discharging a shot. If, however, an inoperable shotgun can be “readily restored to fire,” the National Firearms Act applies. Thus, in the numerous reported federal cases that have interpreted that statute, the courts have not considered whether the firearm was actually functional, but whether it could be readily restored to fire.

We believe the Georgia Legislature intended OCGA § 16-11-124 (3) to have a similar meaning. Although that section applies to sawed-off shotguns that have been modified to make them “inoperative,” it is clear that not all such modifications would qualify under the statute. Such is the reason the legislature provided examples of the types of modifications that are required. Had the legislature deemed it appropriate to make the immediate functional capacity of the weapon the sole factor for consideration, then it would have dispensed with providing any examples of the required modifications. Indeed, under such interpretation a bright line test is surely more favorable than one that requires consideration of whether the modification is akin to a lead-filled barrel or a sand-filled grenade. Moreover, the interpretation applied by the trial court and urged by Watson “would severely undermine the efficacy of this legislation.” Individuals wrongfully possessing these weapons could avoid prosecution by simply removing any essential part that can readily be replaced. Likewise, if construed literally, the legislation would permit an individual to merely install a device on the dangerous firearm which would prevent firing, even if the device could be readily removed. Surely the legislature did not intend such absurd and unreasonable results.

Decided April 17, 2001

Richard E. Currie, District Attorney, Albert H. Tester, Assistant District Attorney, for appellant.

James D. Hudson, for appellee.

We do not hold that the removal of the firing pin in this case, or in any case, does not qualify as a requisite modification under OCGA § 16-11-124. Rather, we merely conclude that the trial court erred in dismissing the charge of possessing a sawed-off shotgun. From the record before us, it does not appear as a matter of law that removing the firing pin from the sawed-off shotgun possessed by Watson is akin to filling the barrel with lead. It is ultimately for the jury to determine from the evidence whether such modification rendered the sawed-off shotgun inoperative as that term is used and illustrated in OCGA § 16-11-124 (3).

Judgment reversed.

Johnson, P. J., and Ellington, J., concur.

       Watson was also indicted for driving under the influence of alcohol, but has not asserted any error concerning that charge.

       OCGA § 16-11-120 et seq.

       See OCGA § 16-11-122.

       Id.

       See OCGA § 16-11-124; see also 26 USC § 5841 et seq. (1989) (codifying National Firearms Act).

       OCGA § 16-11-124 (3).

       The trial court judge, who was “fairly familiar with firearms,” similarly professed his knowledge that “a firing pin can be taken in and out very easy [sic].”

        Johnson v. State, 267 Ga. 77, 78 (475 SE2d 595) (1996).

       OCGA § 1-3-1 (a).

       OCGA § 1-3-1 (b).

       See Johnson, supra; Hardwick v. State, 264 Ga. 161, 163 (442 SE2d 236) (1994); see also Roberts v. State, 4 Ga. App. 207, 210 (60 SE 1082) (1908).

       (Citations and punctuation omitted.) Hardwick, supra at 163 (1).

       (Citations and punctuation omitted; emphasis supplied.) Vines v. State, 269 Ga. 438-439 (499 SE2d 630) (1998).

        Carson v. State, 241 Ga. 622, 628 (5) (a) (247 SE2d 68) (1978).

       Id.

       See OCGA § 16-11-124 (1), (2), (4); 26 USC § 5841 (1989).

       See 26 USC §§ 5845 (a), (d) (defining short-barreled shotguns as firearm); 5861 (restricting possession) (1989).

       See United States v. Greer, 588 F2d 1151, 1155 (6th Cir. 1978).

       See 26 USC § 5845 (d), (h) (defining “shotgun” and “unserviceable firearm”).

       See 26 USC § 5845 (d).

       See, e.g., United States v. Yannott, 42 F3d 999, 1006-1007 (6th Cir. 1994) (citing numerous federal cases addressing whether weapon could be readily restored to fire); S. W. Daniel, Inc. v. United States, 831 F2d 253 (11th Cir. 1987) (discussing whether weapon which could be easily modified into a machine gun constituted a machine gun).

        People v. Vigil, 758 P2d 670, 673 (Colo. 1988).

       See Myrick v. State, 155 Ga. App. 496, 499 (4) (271 SE2d 637) (1980).


author: Ellington, Judge.

text:
    A01A0491.
    DORSEY et al. v. MANCUSO.
    (547 SE2d 787)
   Ellington, Judge.

Dorothy S. Dorsey, as administrator of the estate of Carrie E. Colclough, along with the heirs of Colclough (collectively “Dorsey”) filed suit against Peter B. Mancuso seeking to set aside the sale of certain real property of the estate. In ruling on Mancuso’s motion for summary judgment, the trial court concluded that Dorsey’s action sought to relitigate matters decided in the earlier nonjudicial foreclosure proceeding. The trial court therefore found Dorsey’s action was barred by the doctrines of res judicata and/or collateral estoppel and granted Mancuso’s motion. For the reasons which follow, we reverse.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). A defendant may meet its burden in moving for summary judgment by showing the court that the documents, affidavits, depositions, and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case. Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). Our review is de novo, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant. Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

Viewed in the light most favorable to Dorsey, the record shows that, at her death, Carrie Colclough owned real property located at 120 Church Street in Fayette County. In accordance with Carrie Colclough’s will, the probate court appointed Charles E. Colclough the executor of the estate.

Carrie Colclough’s will authorized the executor, inter alia, to borrow money and to secure any indebtedness by mortgaging or conveying any property of the estate. Charles Colclough borrowed $21,397 from Mancuso and, with no indication of his representative capacity, executed a security deed for 120 Church Street to secure the note.

After Charles Colclough defaulted, Mancuso advertised the property for sale under power, as authorized by the security deed. The notice stated that the property to be sold was owned by “the Estate of Carrie Elizabeth Colclough by Charles B. Colclough, as Executor.” At the auction, Mancuso submitted the only bid and purchased the property for $35,000. Thereafter, Mancuso filed a report of nonjudicial sale and petition for confirmation of the sale, pursuant to OCGA § 44-14-161.

After a hearing, the trial court found that the foreclosure advertising notice was legally adequate, that the foreclosure proceeding was properly conducted, and that the amount Mancuso paid exceeded the fair market value of the property. The trial court confirmed the nonjudicial sale of the property. Charles Colclough’s appeal of the order confirming the sale was dismissed by this Court as untimely.

Dorsey contends the trial court erred in concluding that her action sought to relitigate matters decided when the trial court confirmed the nonjudicial foreclosure. In the complaint, Dorsey alleged that Charles Colclough executed the security deed in his individual capacity, rather than as executor of Carrie Colclough’s estate. Dorsey contends Charles Colclough, as an heir at law and devisee of Carrie Colclough, had “an assignable right” in the property. Therefore, according to Dorsey’s theory, when Charles Colclough executed the security deed, without noting his representative capacity as executor of the estate of Carrie Colclough, he granted Mancuso a security interest only in his “expected inheritance.”

Citing Harris & Tilley, Inc. v. First Nat. Bank of Cartersville, 157 Ga. App. 88, 91 (5) (276 SE2d 137) (1981), Dorsey contends the trial court was not authorized to adjudicate this issue as to the title during a confirmation proceeding under OCGA § 44-14-161. In Harris & Tilley, we held:

The confirmation proceeding is a statutory proceeding which by law determines only that the sale was properly advertised and brought the fair market value of the land. It originated as a means of protecting the debtor from being subject to double payment in cases where the property was purchased for a sum less than its fair market value. . . . The duty of the trial court is to test the fairness of the technical procedure of the actual sale and to insure that it brought at least the true market value; the statute does not undertake to decide controversies between parties as to the amount of the debt, side agreements, or matters in defense of default or in denial of indebtedness, or which might have been the basis of an injunction preventing the foreclosure sale. . . . The confirmation judgment is not a personal judgment and it does not adjudicate the title of the property sold. Except as to the confirmed amount of the sale, it does not establish the liability of any party with regards to the indebtedness.

(Citations omitted.) 157 Ga. App. at 91 (5).

The purpose of the summary confirmation proceeding is “to protect debtors from deficiency judgments when the forced sale of their property brings less than the fair market value.” Commercial Exchange Bank v. Johnson, 197 Ga. App. 529, 530 (1) (398 SE2d 817) (1990). Therefore, by law, a confirmation proceeding is limited to determining whether the sale was properly advertised and brought the fair market value of the land. Harris & Tilley, 157 Ga. App. at 91-92 (5); see also Wall v. Fed. Land Bank of Columbia, 240 Ga. 236, 237 (1) (240 SE2d 76) (1977); Kong v. Shearson Lehman Hutton Mtg. Corp., 211 Ga. App. 93, 95 (438 SE2d 132) (1993); Alexander v. Weems, 157 Ga. App. 507-508 (1) (277 SE2d 793) (1981).

Under the doctrine of res judicata, a judgment of a court of competent jurisdiction is conclusive between the parties to the action and to their privies “as to all matters put in issue or which might have been put in issue” in the action in which the judgment was rendered. Turner v. Butler, 245 Ga. App. 250, 251 (1) (537 SE2d 703) (2000). “The doctrine of collateral estoppel applies when an issue of fact or law is actually litigated, is determined by a valid judgment, and that determination is essential to the judgment.” (Footnote omitted.) Fleming v. Fleming, 246 Ga. App. 69, 71 (539 SE2d 563) (2000). Based on the authorities cited above, we conclude that the issues regarding whether the security deed executed by Charles Colclough could and did secure his personal debt with an undivided interest in estate property could not have been put in issue and determined in the confirmation proceeding. Consequently, the trial court’s grant of summary judgment must be reversed.

Decided April 17, 2001.

Howard G. Slade, for appellants.

C. Terry Blanton, for appellee.

Judgment reversed.

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


text:
    A01A0499.
    WESTERN HERITAGE INSURANCE COMPANY v. NEWCASTLE AUTO SALES, INC.
    (547 SE2d 792)
   Ellington, Judge.

Newcastle Auto Sales, Inc. sued Western Heritage Insurance Company for breach of contract after Western Heritage refused to pay benefits under an insurance policy. Western Heritage moved for summary judgment, arguing that the policy excluded Newcastle’s loss. The trial court denied Western Heritage’s motion, but issued a certificate of immediate review. This Court granted Western Heritage’s application for interlocutory appeal. Because we find that the trial court misconstrued the insurance contract and misapplied the contract to the facts in this case, we reverse and remand.

On February 18, 1999, a man entered Newcastle Auto Sales and asked if he could test drive a 1994 Ford Explorer. A Newcastle employee photocopied the man’s driver’s license and gave him the keys to the vehicle. There is no evidence that the employee attempted to check the validity of the driver’s license. It is undisputed that the driver drove the vehicle off the lot unaccompanied by a Newcastle employee. When the driver did not return the vehicle after an hour, the employee called the police and reported it stolen.

Western Heritage provided insurance coverage for Newcastle at the time of the theft. Newcastle notified Western Heritage of the theft. When Western Heritage refused to pay for the loss, Newcastle sued for breach of contract. Western Heritage answered and asserted that the loss was not covered under the insurance policy. Although the policy covered loss due to theft, an exclusion provided that Western Heritage would not pay “for ‘loss’ to a covered ‘auto’ caused by or resulting from . . . [s]omeone causing you to voluntarily part with it by trick or scheme or under false pretenses.” Endorsements to the policy also excluded “ ‘loss’ due to theft if at the time of‘loss’ the keys for the stolen ‘auto’ were in that ‘auto,’ or upon that ‘auto.’ ”

Western Heritage moved for summary judgment, arguing that it was not required to cover the loss under the contract. Newcastle responded, claiming that a jury issue existed as to whether the phrase “voluntarily part with it means to part with title and possession or custody.” Newcastle asserted that its employee never voluntarily parted with “actual possession” of the auto, but only temporary custody during the test drive.

The trial court embraced Newcastle’s argument and denied summary judgment. In its order, the trial court construed the insurance contract narrowly to define “voluntarily parting] with it” as referring to the title to or “actual possession” of the auto. See Furgerson v. Cambridge Mut. Fire Ins. Co., 237 Ga. App. 637, 639 (1) (516 SE2d 350) (1999) (exclusions must be construed strictly in favor of the insured). The trial court found that the exclusion did not apply because Newcastle “merely parted with custody of the vehicle for a temporary time.”

On appeal, this Court is asked to decide a case of first impression regarding the proper construction of this “false pretenses” exclusion clause. It is unnecessary, however, to decide whether the trial court erred in construing the exclusion to apply only when Newcastle “voluntarily part[ed]” with the title to or “actual possession” of the vehicle.

This Court previously has defined “actual possession” as when a person “knowingly has direct physical control over a thing at a given time.” (Citation and punctuation omitted.) Preston v. State, 183 Ga. App. 20, 21 (1) (357 SE2d 825) (1987). The undisputed facts in this case clearly show that Newcastle’s employee voluntarily relinquished the keys to someone posing as a customer and then voluntarily allowed the person to drive the vehicle off the lot unaccompanied by a Newcastle employee. Therefore, even under a limited construction of the exclusion clause, the evidence demonstrated that Newcastle in fact voluntarily parted with actual possession of the vehicle.

Decided April 17, 2001.

Whelchel, Brown, Readdick & Bumgartner, Gregory T. Carter, Heather B. McNatt, for appellant.

J. Alan Welch, for appellee.

Therefore, because a loss occurring under these circumstances fell squarely within the trial court’s construction of the exclusion clause, Western Heritage was relieved from insuring the loss. Since this finding is dispositive of the case and no jury issue remains, the trial court erred in denying Western Heritage’s motion for summary judgment. See Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). We remand this case with direction for the trial court to grant Western Heritage’s motion for summary judgment.

Judgment reversed and case remanded.

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

       The trial court also found that the keys were not “in” or “upon” the auto at the time of the theft and, therefore, the other policy exclusion also did not apply.

       But see Hanover Fire Ins. Co. &c. v. Scroggs, 92 Ga. App. 548, 550 (2) (88 SE2d 703) (1955) (wherein the Court found unambiguous a clause which specifically excluded a loss due to “ Voluntarily parting with title and possession’ ” of the vehicle if induced by false pretenses); Liggans R.V. Center v. John Deere Ins. Co., 575 S2d 567, 569-570 (IV) (Ala. 1991) (wherein the Alabama Supreme Corut held that an identical clause was not ambiguous when the words are “‘assigned their “usual and ordinary” meanings’” and “‘clearly exclude [d] from its coverage a loss’ ” resulting from very similar circumstances).


text:
    A01A0719.
    SCOTT v. CUSHMAN & WAKEFIELD OF GEORGIA, INC.
    (547 SE2d 794)
   Ellington, Judge.

We granted Hugh H. Scott, Jr. an interlocutory appeal to review whether the trial court erred in denying his motion for partial summary judgment on Cushman & Wakefield of Georgia, Inc.’s claim for real estate commissions. For the reasons which follow, we find that Cushman & Wakefield lacked standing to bring this action and Scott is entitled to partial summary judgment. Consequently, we reverse the trial court’s order.

To prevail at summary judgment under OCGA § 9-11-56, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law. OCGA § 9-11-56 (c). A defendant may do this by showing the court that the documents, affidavits, depositions, and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of the plaintiff’s case. Law’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991). In reviewing the grant or denial of a motion for summary judgment, we apply a de novo standard of review and consider the evidence with all reasonable inferences therefrom in favor of the party opposing summary judgment. Birnbrey, Minsk & Minsk, LLC v. Yirga, 244 Ga. App. 726 (535 SE2d 792) (2000). Viewed in the light favorable to Cushman & Wakefield, the evidence showed the following: In 1989, Scott entered into an exclusive real estate listing agreement with Royal LePage Real Estate Services of Atlanta, a Georgia corporation (“Royal Georgia”), to list a commercial property he owned. The listing agreement provided that if Royal Georgia procured a tenant, it would be entitled to a specified commission for the term of the lease. The listing agreement further provided that if the tenant exercised an option to renew or extend the lease or to lease additional space, Scott would pay the commission on the extended period or additional space. The evidence is undisputed that Royal Georgia procured a tenant for Scott’s property for a seven-year term beginning March 1,1991, and that the tenant extended the lease and added space in amendments executed in 1994, 1995, and 1996.

Cushman & Wakefield of Georgia, Inc., a Georgia corporation (“Cushman Georgia”), alleging it was the successor in interest to Royal Georgia, sued Scott for commissions allegedly owed under the listing agreement. Scott contends he is entitled to summary judgment under three alternative theories: (1) the potentially perpetual commission obligation is unenforceable as against public policy; (2) Royal Georgia’s right to commissions is not assignable; and (3) Royal Georgia did not assign its right to commissions to Cushman Georgia. Pretermitting whether the commission provision of the listing agreement is unenforceable as against public policy and whether the right to commissions is assignable, we conclude Cushman Georgia failed to present evidence that it was the successor in interest to Royal Georgia, an essential element of its right to recover under the listing agreement between Scott and Royal Georgia.

The doctrine of privity of contract requires that only parties to a contract may bring suit to enforce it. Decatur North Assoc. v. Builders Glass, 180 Ga. App. 862, 863 (1) (350 SE2d 795) (1986); see OCGA § 9-2-20 (a). Cushman Georgia invoked a recognized exception to the requirement of immediate contractual privity between the parties to an action, specifically, that a party may assign to another a contractual right to collect payment, including the right to sue to enforce the right. Decatur North Assoc., 180 Ga. App. at 863 (1); Chancellor v. Gateway Lincoln-Mercury, 233 Ga. App. 38, 41 (1) (502 SE2d 799) (1998) (choses in action, including accounts receivable, may be assigned); Paulsen Street Investors v. EBCO Gen. Agencies, 224 Ga. App. 507, 509 (481 SE2d 246) (1997) (choses in action include the proceeds from a contract performance and are assignable). See OCGA §§ 44-12-20 (chose in action defined); 44-12-22 (assignment of choses in action arising upon contracts). To be enforceable by the assignee, such an assignment must be in writing. Levinson v. American Thermex, 196 Ga. App. 291, 292 (1) (396 SE2d 252) (1990). Cushman Georgia relies on the affidavit of its senior counsel, a sharing agreement, and two notices of assignment to show that Royal Georgia assigned to it the right to collect commissions from Scott.

Decided April 17, 2001.

The parties to the 1992 “sharing agreement” which assigned certain commission receivables were Royal LePage Real Estate Services Limited, an Ontario corporation (“Royal Ontario”), and Cushman & Wakefield, Inc., a New York corporation (“Cushman New York”). The record shows that Royal Georgia ceased to exist as a Georgia corporation in June 1993 when it merged with Royal LePage Real Estate Services United States, Inc., a Delaware corporation (“Royal Delaware”). Cushman Georgia, however, has not identified any document purporting to memorialize an assignment of the right to receive the commissions from Scott by Royal Georgia (or Royal Delaware) to Royal Ontario, or from Cushman New York to Cushman Georgia. In notices Royal Ontario sent to clients responsible for commissions receivable, it stated that it “and its affiliates” entered into a sharing agreement with Cushman New York “and its affiliates” and directed questions to an employee of Cushman Georgia. The face of the sharing agreement, however, shows that neither Royal Georgia nor its successor, Royal Delaware, was a signatory to the agreement. Nor did the affidavit of Cushman Georgia’s senior counsel refer to any written agreements which could complete the chain of assignments from Cushman New York to Cushman Georgia. Therefore, Cushman Georgia failed to come forward with evidence supporting its allegation that it was the successor in interest to Royal Georgia’s right to receive the commissions from Scott. Levinson, 196 Ga. App. at 292 (1). Because Cushman Georgia failed to show it was entitled to file suit to recover the commissions Scott owed to Royal Georgia, Scott is entitled to summary judgment on Cushman Georgia’s claim. Lau’s Corp., 261 Ga. at 491; Benton v. Gaudry, 230 Ga. App. 373, 376 (2) (496 SE2d 507) (1998).

The judgment is reversed and the case is remanded for entry of judgment in favor of Scott on Cushman Georgia’s claim.

Judgment reversed and case remanded.

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

Charles H. Ivy, for appellant.

Grizzard, Simons & Martin, Theodore N. Stapleton, for appellee.

       Scott’s counterclaim remains pending.


author: Phipps, Judge.

text:
    A01A0968.
    COBB v. SMITH.
    (547 SE2d 796)
   Phipps, Judge.

Norman Smith filed this action against Arty Cobb, individually and d/b/a Cobb Associates. Cobb appeals a summary judgment award to Smith.

In the complaint, Smith alleged that he and Cobb entered into a joint venture to manufacture and sell printed plastic bags to Bell-South Mobility and that, after receiving payment from BellSouth for hundreds of thousands of the bags, Cobb failed to pay Smith the full amount he was owed.

The trial court awarded Smith summary judgment in the principal amount of $25,382.46 based on its determination that the evidence showed without dispute: that Smith and Cobb entered into a written joint venture contract to sell bags to BellSouth at a price of $119.50 per 1,000 bags; that the contract specified that Cobb as manufacturer was to receive $69.85 per 1,000 bags and that Smith was to receive the remaining $49.15; that 659,000 bags were sold and invoiced to BellSouth at the price specified in the contract; that Bell-South paid Cobb $78,703.50 for delivery of the bags; that Smith was entitled to $32,398.85; and that Cobb remitted only $7,007.39 to Smith, thereby leaving a balance due of $25,382.46.

Cobb claims that the trial court misinterpreted his and Smith’s agreement, in that the agreement left open for future negotiation the respective amounts due the parties on the BellSouth contract. We disagree. While recognizing that the parties had not agreed upon the amounts each was to receive for bags to be sold under unbid contracts, the agreement did set forth such amounts for the bags sold to BellSouth. These amounts were correctly stated in the trial court’s order.

Cobb also argues that there are material issues of fact on the question of whether Smith is contractually entitled to the sums he seeks to recover, because the parties’ agreement provided that Smith would be entitled to these monies only if BellSouth’s business was obtained through his efforts, and Cobb has testified that he obtained such business through the efforts of others.

We cannot accept this argument either. Its resolution requires a review of the evidence. In part, the trial court based its judgment on evidentiary stipulations set forth in the transcript of the summary judgment hearing. The transcript of the hearing has not been included in the appellate record. Therefore, we must assume that the stipulations support the trial court’s ruling.

Decided April 17, 2001.

Smith, White, Sharma & Halpern, Jonathan Goldberg, for appellant.

Rubin & Hoyt, Robert P. Hoyt, for appellee.

Judgment affirmed.

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

       See Ware v. Fidelity Acceptance Corp., 225 Ga. App. 41, 44 (4) (482 SE2d 536) (1997); Lee v. Trust Co. Bank, 204 Ga. App. 28, 29 (2) (418 SE2d 407) (1992).


author: Barnes, Judge.

text:
    A01A0480.
    HODGES v. THE STATE.
    (547 SE2d 386)
   Barnes, Judge.

A jury convicted Johnny Ben Hodges of cocaine possession with intent to distribute, and the trial court sentenced him to serve life in prison. He appeals, contending that the trial court erred in (1) denying his motions for directed verdict and for new trial because the evidence was insufficient; (2) denying his motion for mistrial due to juror misconduct; (3) allowing the State to introduce evidence of his bad character; (4) allowing the State to introduce evidence of statements he made to police; (5) allowing a recent graduate to testify as an expert in chemical testing; and (6) charging the Suggested Pattern Jury Instructions on intent. For the reasons that follow, we affirm.

Construed to support the verdict, the evidence revealed that, on February 5, 1999, a detective with the Baldwin County Sheriff’s Department was watching Hodges’ house from a field. The detective intended to wait until Hodges left and execute a search warrant of the house. He explained that he had a marked car waiting nearby to pull Hodges over and execute a search warrant of his person. On that day, however, the detective saw a man named Rodney Sanford drive up and talk to Hodges for a short time. Hodges went into the house, then came back out, and handed Sanford something. Sanford drove away, and the detective radioed the waiting marked car to pull him over.

The detective left his observation of Hodges’ house and went to assist the officers in the marked car, who found almost two ounces of cocaine in Sanford’s van. Sanford and his passenger were arrested for cocaine trafficking, and Sanford testified at Hodges’ trial that Hodges had given him the cocaine to sell, as he had two or three times previously.

The detective went back with his partner to observe Hodges’ home the next week. When Hodges drove off, the partner remained behind to execute a search warrant on the house., and the detective followed him in an unmarked car. Hodges pulled into a driveway and stopped; the detective pulled in behind him, made him get out of his car, and executed the search warrant on Hodges. The detective found four bags of cocaine and more than $2,000 cash in Hodges’ pocket and arrested him for possession with intent to distribute.

The partner executed the search warrant on Hodges’ house. In his bedroom were a box of plastic sandwich bags, sandwich bag corners with white residue in them, inositol, and mannitol. The latter substances are typically added to cocaine before it is sold in order to increase its volume and thus increase its profitability.

Both the detective and his partner testified that, after he was taken to the booking room in the sheriff’s department, Hodges asked them what he could do to help himself. In response the detective gave him his Miranda rights and told him that he would talk to him the next day. The next day, the detective and his partner met with Hodges in the detective’s office and again told him about his right to remain silent, to have an attorney, and that anything he said could be used against him in court. He elected to discuss candidly his drug dealings, naming his supplier from whom he bought five to eight ounces every couple of weeks. He admitted the drugs in his pocket and the residue at his house belonged to him, the remainder of a large shipment from the previous week. He was just about to go out of business, he said, because he became frightened when Sanford was arrested for trafficking the week before.

1. The evidence was sufficient to enable a rational trier of fact to find beyond a reasonable doubt Hodges’ guilt of cocaine possession with intent to distribute. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Hodges contends the trial court erred in not granting a mistrial due to juror misconduct. On the second day of trial, the State told the court that a juror called one of the State’s witnesses the previous night. The witness, who is the county’s chief detective and the evidence custodian, testified that the juror and her husband were close friends of his, and she called to express her pleasure at being selected to sit on the jury. At the time of the call, the witness had not testified, and there is no indication that the juror knew the detective would be a witness. The juror’s husband is a drug agent in another county. She said that if the defendant was guilty, then she would find him guilty. The witness told her he could not talk to her, then immediately called the prosecutor to report the exchange. The juror also testified about the brief conversation. In response to the trial court’s questioning, she asserted that she could treat both the State and the defendant fairly and she was not influenced by her conversation with the witness, who would not speak to her. She added, “If I had to make a choice yesterday, I would have thought he was guilty [,] . . . but I haven’t heard the evidence today.” She reiterated that she could listen to and base her verdict on the evidence and be fair to both sides. Based on this testimony, the trial court did not remove the juror.

“There is a presumption of prejudice to the defendant when an irregularity in the conduct of a juror is shown and the burden is on the prosecution to prove beyond a reasonable doubt that no harm has occurred.” (Citation and punctuation omitted.) Henry v. State, 265 Ga. 732, 738 (7) (a) (462 SE2d 737) (1995). Both witness and juror testified that neither discussed the merits of the case and that the witness immediately told the juror he could not speak with her. He reported the conversation to the prosecutor, who brought it to the court’s attention at the first opportunity. A juror’s unauthorized contact with another will not necessarily require a new trial if the two do not discuss the merits of the case. Id. Furthermore, “where the substance of the communication is established without contradiction, the facts themselves may establish the lack of prejudice or harm to the defendant.” (Citation and punctuation omitted.) Id. at 738-739 (7) (a). The State rebutted the presumption of harm here, and we find no error.

The opinion in Mullins v. State, 241 Ga. App. 553, 555-557 (2) (525 SE2d 770) (1999), does not require a different result. In Mullins, the jurors were approached by an acquaintance who said the defendants would not be on trial if they were not guilty. The jurors initially denied to the trial court that they even had the conversation, although when requestioned they admitted that the acquaintance made the statement. Under “the particular facts and circumstances” of that case, we held that the State failed to meet its burden of establishing beyond a reasonable doubt that the defendants were not harmed. Id. at 556. In this case, no evidence contradicted the testimony of the juror and witness, who both agreed the conversation involved nothing substantive about the case.

3. Hodges asserts that the trial court erred in not granting a mistrial when the State twice introduced evidence of his bad character in violation of OCGA § 24-9-20 (b). That statute provides:

If a defendant testifies, he shall be sworn as any other witness and may be examined and cross-examined as any other witness, except that no evidence of general bad character or prior convictions shall be admissible unless and until the defendant shall have first put his character in issue.

In the first instance, the State asked a detective on direct examination, “What was your first contact with this case?” The detective responded,

I couldn’t say probably my first contact as far as knowledge-wise. As he stated — as Sergeant Myers stated earlier, I had been hearing about Ben Hodges for up to a year through different sources, reliable sources, telling me that Ben Hodges was a trafficker in cocaine.

Hodges objected and moved for a mistrial. After a bench conference, the trial court denied the motion but instructed the jury, “Ladies and gentlemen, disregard the last answer that this witness gave, and give it no consideration whatsoever in your deliberation.” Hodges did not object or renew his motion for a mistrial after these curative instructions.

In the second instance, Hodges held the following exchange with the same detective on cross-examination, during a discussion about the cash Hodges had on him when he was arrested:

Q: Did you just not say that a week before he had gotten $2,000.00 in money?
A: I don’t know whether he got $2,000.00 in money. I know he sold $2,000.00 in product.
Q: All right, sir.
A: And I know that that’s not the first time he’s sold cocaine.

Hodges again objected. After another bench conference, the trial court denied the motion but instructed the jury, “Ladies and gentlemen, disregard the last response of the witness and give it no consideration in your deliberation whatsoever.” Again, Hodges did not renew his objection or ask for a mistrial after the curative instructions.

Because Hodges failed to object or renew his motion for a mistrial after these curative instructions, he failed to preserve the issue for appeal. Jones v. State, 221 Ga. App. 374, 375 (2) (471 SE2d 318) (1996). Consequently, this enumeration of error presents nothing for review.

4. Hodges alleges the trial court erred in admitting into evidence statements he made to the investigating detectives. At a JacksonDenno hearing to determine the voluntariness of his statements, Hodges testified that no one ever gave him his Miranda rights, that he never told the detective he had been dealing drugs, and that the detective was lying in his testimony about Hodges’ statement. The detective testified to the contrary and asserted that Hodges talked without hope of benefit or fear of injury. The trial court held that Hodges was advised of his Miranda rights, understood them, voluntarily waived them, and gave his statement freely and voluntarily without hope of benefit or fear of injury.

“The trial court sits as the factfinder in a Jackson-Denno hearing, and its resolution of factual issues will be upheld by the appellate court unless it is clearly erroneous.” (Citation omitted.) York v. State, 242 Ga. App. 281, 292 (6) (528 SE2d 823) (2000). Evidence that Hodges initiated the conversation with the officers and, “during the course of such initiated conversation, exercised a free and voluntary waiver of his rights” supports the trial court’s conclusion. (Citation and punctuation omitted.) Id. The trial court did not err in allowing the State’s witnesses to testify about Hodges’ statements.

5. Hodges argues that the trial court erred in declaring one of the State’s witnesses to be an expert in the field of drug identification because the witness was only twenty-four and had finished training only seven days before the offense occurred.

“Generally nothing more is required to entitle one to give testimony as an expert than that he has been educated in the particular trade or profession. . . . [Cits.]” (Punctuation omitted.) Lindley v. State, 225 Ga. App. 338, 340 (1) (484 SE2d 33) (1997).

It lies in the trial court’s sound discretion to decide whether a witness has such learning or experience in a particular art, science, or profession to be treated as an expert, or to be deemed prima facie an expert; the exercise of this discretion will not be disturbed unless manifestly abused.

(Citations and punctuation omitted.) Smith v. State, 210 Ga. App. 451, 452 (3) (436 SE2d 562) (1993).

Hodges has cited no authority for the proposition that a 24-year-old witness is too young to be an expert. Further, while the offense occurred in February 1999, the witness tested the 15.2 grams of cocaine in June 1999, after he had been working full-time at the crime lab for four months. He had a bachelor of science degree in chemistry, had undergone nine months of training, and as of trial had tested more than 1,200 substances at the Macon Crime Lab. We find no abuse of discretion in the trial court’s finding that the witness was an expert in the field of drug identification.

6. Finally, Hodges argues that the trial court erred in giving the Suggested Pattern Jury Instruction on intent. The trial court charged the jury in the exact language of the pattern charge as follows:

Intent is an essential element of any crime and must be proved by the State beyond a reasonable doubt. Intent may be shown in many ways, provided you, the jury, believe that it existed from the proven facts before you. It may be inferred from the proven circumstances or by acts and conduct, or it may be, in your discretion, inferred when it is the natural and necessary consequence of the act. Whether or not you draw such an inference is a matter solely within your discretion. Criminal intent does not mean an intention to violate the law or to violate a penal statute, but means simply to intend to commit the act which is prohibited by a statute.

Decided March 28, 2001 —

Reconsideration denied April 18, 2001

Thomas J. Phillips, Jr., for appellant.

Fredric D. Bright, District Attorney, Stephen A. Bradley, Assistant District Attorney, for appellee.

Hodges argues that the use of “inferred” twice and “inference” violates “the beyond a reasonable doubt requirement of OCGA § 24-4-5.”

Our Supreme Court addressed this precise argument many years ago, approving the charge as a proper statement of the law. Griffin v. State, 230 Ga. 449, 452-453 (3) (197 SE2d 723) (1973). The trial court did not err in giving the charge.

Judgment affirmed.

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


author: Smith, Presiding Judge.

text:
    A01A0047.
    FORD’S & GANTT COMPANY, INC. et al. v. WALLACE.
    (548 SE2d 31)
   Smith, Presiding Judge.

Appellee Norris W. Wallace III brought this action for breach of a lease agreement against appellants Ford’s & Gantt Company, Inc. and its principal and guarantor, E. Van Williams. Shortly before trial, Wallace amended his complaint to seek expenses of litigation and attorney fees for bad faith and stubborn litigiousness. After a two-day trial, a jury found in favor of Wallace and awarded expenses of litigation. Ford’s & Gantt and Williams’s motion for new trial was denied, and they appeal. Appellants’ three enumerations of error all concern an issue that they attempted to raise after the trial was under way. Finding no error in the trial court’s decision not to allow an amendment or in its charges to the jury on this issue, we affirm.

Wallace owned a commercial property in Macon which he leased to Ford’s & Gantt in 1995. Williams signed the lease as guarantor. In July 1998, appellants moved to a new location and turned in the keys to Wallace’s building. After sending a letter demanding the rent due under the lease and giving notice of his intent to seek attorney fees, Wallace brought this action. Appellants answered and denied liability, asserting as a separate defense that the parties had agreed to a release because Wallace wanted to sell the property.

The testimony in the trial was completed in a single day. Wallace testified that appellants were two to three months behind on their rent when he became aware that they were relocating their business. At that time, Wallace presented Williams with a proposed “addendum to lease” providing that the lease would be terminated as soon as Wallace could locate a new tenant. Williams never signed or returned this addendum; while Wallace contended that Williams ultimately told him “that his attorney had advised him not to sign it,” Williams testified that “[i]t got put to the side,” and he “really didn’t read it.” Williams contended that Wallace’s re-leasing of the property after he had failed to pay rent for six months terminated the lease. He also denied that he was moving out of the premises; he claimed that Wallace came to him, told him he had a tenant that wanted either to rent or to purchase the property, and agreed to let him out of the lease. Wallace “absolutely” denied that he had released appellants from the agreement.

During opening statements, which were not recorded, appellants raised the question of condemnation of a portion of the property by the City of Macon for a street widening project. Wallace objected to the introduction of this issue, and the trial court reserved its ruling. During appellants’ cross-examination of Wallace, their counsel began to question Wallace regarding the condemnation and contended for the first time that Williams was entitled to an offset for some portion of the condemnation. Wallace again objected. The trial court responded, “I’ll sustain the objection at this point. We may go into it off the record, and we’ll talk some more about it, but at this point, I don’t see the relevancy of that.”

The condemnation was still not complete at the time of trial, and Williams acknowledged that the property had not been taken at the time appellants left the premises and that the only work that had been undertaken was the relocation of a telephone pole. Williams testified at trial that the relocation of the pole “created a lot of problems” for his business, even though he had testified on his deposition that it was “just a nuisance,” that he may have lost customers, “but I have no way of telling that.” Wallace did not recall Williams ever speaking to him about the telephone pole. Appellants do not point to any evidence in the record that they notified Wallace regarding the pole.

After Wallace rested his case, the trial court discussed the condemnation claim at some length with counsel. During this discussion, the trial court asked counsel for appellants regarding the issue to be put to the jury, “It’s just the question of whether or not there’s an issue of a release, isn’t it?” Counsel responded, ‘Yes, sir.” When further asked if he had any requests to charge on the point, appellants’ counsel stated that he was requesting a charge on oral modification of an agreement, adding, “We’re not saying there was a rescission, but there was an oral agreement that the termination date of the lease would be changed.”

On direct examination of Williams, his counsel asked him if he had received any credit for condemnation funds received by Wallace. Wallace objected to this line of questioning on the basis that he was not required to share any compensation with Williams and that Williams was entitled to pursue any damage to his leasehold interest with the condemnor. The trial court ruled that, in the absence of any agreement to share a payment for the condemnation, the issue was irrelevant: “[fit’s not a part of the pleadings, it’s not a part of the issues that have been raised in this case. . . . Condemnation is something that’s outside of those issues.” After the close of evidence, the trial court revisited the issue and stated on the record that the pleadings contained nothing regarding condemnation, that it was too late to introduce a new issue “without some notice to the other side,” and that in any event with the exception of moving one telephone pole the condemnation occurred after appellants vacated the premises.

On the following morning, appellants attempted to amend their answer to add a defense of condemnation. The trial court observed that the evidence had closed the previous day, that the only issue regarding the condemnation was the relocation of the telephone pole, and that appellants presented no evidence that any problem about the pole was ever communicated to Wallace. Concluding that appellants were obligated to inform Wallace if the property became untenable and had not done so, the trial court reiterated that release was the disputed issue in the case, that appellants would not be allowed to reopen the evidence, and that the jury would not be charged on the issue of the condemnation proceedings.

1. Appellants contend that the trial court erred in refusing to allow them to amend their complaint to add the condemnation claim. After the first day of trial, appellants rested their case. Appellants did not file their attempted amendment to assert the condemnation claim until the following day.

Appellants contend that OCGA § 9-11-15 allows them to file an amendment at any time, because it specifies that amendments may be made “before the entry of a pretrial order,” OCGA § 9-11-15 (a), and no pretrial order was entered in this case. But this attempted reading of the Code section is without merit:

[A]fter the time for a pre-trial conference has passed and neither the court nor the parties have insisted upon the entry of a pre-trial order and no such order is entered, pretrial proceedings end with the commencement of the trial proper and the taking of evidence. The unfettered right to amend ceases and a party may amend his pleading only by leave of court or by the consent of the adverse party.

(Citations and punctuation omitted.) Black v. Lowry, 159 Ga. App. 57, 58 (1) (282 SE2d 700) (1981). Wallace repeatedly objected to introduction of evidence of the condemnation.

[A] post-judgment amendment would clearly have been proper under OCGA § 9-11-15 (b) if the issue . . . had been tried “by express or implied consent of the parties.” Here, however, there was no express or implied consent, but rather an express objection to the trial of an issue not raised by the pleadings. Under that circumstance, OCGA § 9-11-15 (b) did not operate to give vitality to appellee’s post-judgment amendment to his pleadings. [Cit.]

(Emphasis in original.) Preferred Risk Ins. Co. v. Boykin, 174 Ga. App. 269, 275 (7) (329 SE2d 900) (1985).

We note the provision of OCGA § 9-11-15 (b) that even when an amendment is objected to, the trial court may allow the pleadings to be amended and “shall do so freely” if it assists the presentation of the merits of the action and the objecting party fails to show prejudice. But this is a matter wholly within the discretion of the trial court. “Not only is the right of amendment very broad, but so is the court’s discretion in this regard, and its determination will not be disturbed absent abuse.” (Citation and punctuation omitted.) Kim v. McCullom, 222 Ga. App. 439, 440 (2) (474 SE2d 654) (1996) (full concurrence in Division 2); Southern Cellular Telecom v. Banks, 208 Ga. App. 286, 289 (8) (431 SE2d 115) (1993). The trial court expressly found that the attempt to amend the answer to add the defense of condemnation came too late and was not supported by the evidence. This conclusion was not an abuse of discretion.

2. Appellants also claim as error the trial court’s refusal to give their requested jury instruction number 5, contending that it concerns their alleged interest in the property by virtue of a lease. But appellants’ request number 5 deals with mitigation of damages; the charge with respect to a leasehold interest was submitted by Wallace. “[T]he request to charge in question was not submitted by the appellant but by the appellees. Consequently, this enumeration of error presents nothing for review. [Cits.]” Pritchett v. Anding, 177 Ga. App. 34, 35 (5) (338 SE2d 503) (1985). Moreover, appellants failed to record an exception to this instruction after the trial court’s charge to the jury. “In a civil case, an exception or objection to a charge must be made after the jury is charged and before the verdict; an objection made at a charge conference before the charge is given does not preserve a charging issue for appellate review.” (Citations omitted.) Johnson v. Bruno’s, Inc., 219 Ga. App. 164, 166 (4) (464 SE2d 259) (1995).

3. Finally, appellants contend the trial court erred in refusing to give their requested jury instruction number 6. This request sought a charge that if a tenant is dissatisfied and offers to surrender the premises, and the landlord tacitly accepts the offer by taking possession or control of the premises in a manner “inconsistent with the tenant’s right of occupation,” the tenant is discharged, “and a cancellation or rescission of the contract is thus effected by agreement of the parties, express or implied.”

But “[a] request to charge itself must be correct, legal, apt, even perfect, and precisely adjusted to some principle involved in the case. If any portion of the request is inapt or incorrect, denial of the request is proper.” (Citations and punctuation omitted; emphasis in original.) Mattox v. MARTA, 200 Ga. App. 697, 699 (4) (409 SE2d 267) (1991). In this case, no evidence was presented that Williams or Ford’s & Gantt ever notified Wallace of any dissatisfaction with the property. To the contrary, the evidence of discussions between the parties went entirely to Ford’s & Gantt’s alleged intention to relocate, and Wallace’s offer of a written addendum to the lease which was never accepted. Accordingly, the charge was not adjusted to the evidence, and the trial court did not err by refusing to give it.

The trial court instructed the jury on the modification of a written contract by subsequent oral agreement, consideration, partial performance, and release by mutual agreement. When the trial court substantially covers the principles of law requested by a party, it does not err in refusing to charge the precise language requested. Joiner v. Lane, 235 Ga. App. 121, 122 (1) (b) (508 SE2d 203) (1998). Particularly in light of the statement by appellants’ counsel that the alleged oral agreement was not a rescission, these instructions substantially informed the jury of those legal principles in appellants’ request to charge that were pertinent and adjusted to the facts in evidence, and the trial court did not err in refusing to give the charge in the exact language requested.

Decided April 18, 2001.

Phillips & Phillips, Arthur L. Phillips, for appellants.

Talbot & Rowe, Thomas W. Talbot, for appellee.

Judgment affirmed.

Barnes and Phipps, JJ., concur.

       While opening statements were not recorded, the colloquy between counsel and the trial court on the issue of the condemnation was recorded.

       Appellants properly excepted to the refusal to give this charge.


author: Johnson, Presiding Judge.

text:
    A01A0358.
    In the Interest of A. W. et al., children.
    (547 SE2d 797)
   Johnson, Presiding Judge.

The juvenile court terminated the parental rights of the mother of A. W. and B. W. The mother appeals from the termination order. She asserts that the court erred in terminating her parental rights because there is insufficient evidence of her present parental inability or misconduct. We agree that there is insufficient evidence and therefore reverse the judgment of the juvenile court.

In July 1997, the Department of Family & Children Services (DFCS) removed two-and-a-half-year-old A. W. and five-month-old B. W. from their mother’s home. The home was infested by fleas, pet feces was found on the house floor, A. W. had head lice and had been rushed to the emergency room after ingesting the drug ephedrine, B. W. had a severe diaper rash, the children were underfed, and the mother had left the children home alone. The juvenile court found that the children were deprived and awarded temporary custody of the children to DFCS. The children were eventually placed with their aunt and uncle, with whom they still live.

A plan to reunite the mother with the children was implemented. It required the mother to maintain a clean and stable home, to address her emotional needs, and to obtain her high school equivalency degree.

In June 1998, the mother stipulated that the temporary placement of the children should be extended. And in July 1999, the mother stipulated that the children were still deprived, so another temporary placement order and reunification plan were entered.

Thereafter, DFCS filed its petition to terminate the mother’s parental rights on the grounds that she has failed to comply with the reunification plan and that she suffers from a mental health deficiency which renders her unable to provide for the children. After a hearing, the court granted the petition, terminating the mother’s parental rights to A. W. and B. W.

No judicial determination is more drastic than that of severing the relationship between a parent and a child. A court must make such a determination cautiously and only after deliberate scrutiny. A court therefore may terminate parental rights only if there is clear and convincing evidence of parental inability or misconduct.

In the instant case, there is no question of the mother’s past parental misconduct and inability as shown by the facts supporting the initial finding of deprivation in 1997. But the juvenile court erred in finding that DFCS had met its burden of proving by clear and convincing evidence the specific allegations which form the basis of the petition to terminate parental rights, namely, the mother’s noncompliance with the reunification plan and her medically verifiable mental health deficiency.

There is no clear and convincing evidence to support DFCS’ claim that the mother failed to comply with the reunification plan. It is undisputed that the mother obtained her GED as required by the reunification plan. Furthermore, even though she moved several times after DFCS took custody of the children, at the time of the termination hearing she had lived in her current three-bedroom home for approximately a year and five months with her husband, whom she had married in 1998.

While DFCS workers claimed that the home was messy, pictures introduced at the hearing show a clean home, and there is no evidence of the filth that was present in the mother’s home when the children were removed in 1997. The mother and her husband have a small but stable income. She receives a monthly Social Security disability check of $512, and the husband works regularly at a restaurant and periodically earns money working on movie sets. Contrary to the arguments of DFCS, this evidence shows the mother has complied with the reunification plan by maintaining a stable home for more than a year. It cannot be said that there is clear and convincing evidence that she has failed in this regard.

As for the mother’s mental health problems, she was previously diagnosed with bipolar disorder, was prescribed medications, had stopped taking the medication, and failed to go to the mental health board for treatment from August 1998 until February 2000. But when she did meet with mental health professionals in 2000, prior to the termination hearing, the mental health professionals found that her bipolar disorder was in remission and recommended that she not continue on any medications. While DFCS questions these recent diagnoses, it has not come forth with sufficient credible evidence to allow us to disregard them. Given the record before us, we cannot say that there is clear and convincing evidence that the mother has a mental health deficiency that renders her an unfit parent who has lost all parental rights.

Decided April 18, 2001.

Teresa G. Bowen, for appellant.

Thurbert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen S. Nelson, Assistant Attorney General, Michael D. DeVane, for appellee.

Because there is not clear and convincing evidence of present parental inability or misconduct as alleged in the termination petition, the juvenile court erred in taking the drastic step of terminating the parental rights of the mother. That order of termination must therefore be reversed.

Judgment reversed.

Ruffin and Ellington, JJ, concur.

        In the Interest of R. A., 226 Ga. App. 18, 20 (486 SE2d 363) (1997).

        In the Interest of K. M., 240 Ga. App. 677, 679-680 (523 SE2d 640) (1999).

       OCGA § 15-11-94 (a).

       See In the Interest of K. M., supra; In the Interest of R. A., supra.

       See In the Interest of K. J, 226 Ga. App. 303 (486 SE2d 899) (1997).


text:
    A01A0120.
    In the Interest of C. A., a child.
    (548 SE2d 37)
   Smith, Presiding Judge.

After a hearing, a juvenile court adjudicated delinquent thirteen-year-old C. A., upon its finding that the juvenile committed acts which, if committed by an adult, would have constituted two counts of terroristic threats and acts, two counts of pointing a gun or pistol at another, and one count of aggravated assault. On appeal, C. A. challenges the sufficiency of the evidence. Because the adjudication of delinquency was predicated at least in part on an unauthorized finding, we reverse.

When a juvenile is charged with offenses that would constitute crimes if committed by an adult, the standard of proof in the lower court is “ ‘beyond a reasonable doubt. [Cit.]’ ” In the Interest of E. D. F, 243 Ga. App. 68 (1) (532 SE2d 424) (2000). Any conflicts in the evidence are resolved by the trier of fact, which in this case was the juvenile court judge. Id. On appeal, we view the evidence in the light most favorable to the findings and judgment of the juvenile court. Id.

The evidence presented at the hearing showed that at approximately 10:00 p.m. on July 17, 2000, B. M., D. R, and S. P., all minors, were riding bicycles from B. M.’s house to D. P.’s house. B. M. testified that C. A., who had been threatening to beat up D. R, rode his bicycle toward them, telling D.P. to “come here you stupid motherf — .” D. P. did not go to C. A. but “took off” home. B. M. stated that C. A. continued calling for D. R, saying, “I got something waiting on you.” C. A. next approached B. M. and S. P. and said, “if anybody else messes with my girlfriend, I got something for them,” then pulled a gun from his pocket.

A deputy who investigated the incident testified that C. A. told him that he had given the gun to a friend, and the deputy did retrieve the gun from that friend’s house. The deputy identified the gun as a .177-caliber BB gun that was capable of “hurting, injuring or perhaps even causing death if it hits somebody in the right place.”

1. C. A. contends that the evidence is insufficient to show that he committed the acts constituting two counts of terroristic threats as against D. P. and B. M. He argues that there is a lack of corroborative evidence of the testimony of B. M. This contention is without merit.

Only “[s] light corroboration of the circumstances during which a terroristic threat is uttered is all that is necessary to satisfy OCGA § 16-11-37 (a)’s requirement that the victim’s account of the terroristic threat be corroborated. [Cit.]” In the Interest of C. S. G., 241 Ga. App. 37, 38 (1) (525 SE2d 106) (1999). “[I]f there is any evidence of corroboration, this Court will not second-guess the factfinder and pass on the corroborating evidence’s probative value. [Cit.]” Id.

A person makes a terroristic threat when he threatens to commit any crime of violence with the purpose of terrorizing another person. OCGA § 16-11-37 (a). Displaying a handgun to another under threatening circumstances may constitute a terroristic threat if committed by an adult. In the Interest of C. S. G., supra.

In this case, D. P. testified that on the evening of the incident, he saw that C. A. had a gun as C. A. approached, saying, “come here you motherf — .” Moreover, C. A. admitted telling B. M., “if anybody messed with [his] girlfriend, [he] had something for them,” and admitted displaying the gun. B. M.’s testimony that C. A. issued terroristic threats to D. P. and to him therefore was sufficiently corroborated by the testimony of the deputy, D. R, and C. A. The evidence was sufficient to enable a rational trier of fact to conclude beyond a reasonable doubt that C. A. committed acts which, if committed by an adult, would have constituted the offenses of two counts of terroristic threats and acts.

2. C. A. contends that the evidence is insufficient to show that he committed acts which, if committed by an adult, would constitute two counts of pointing a gun or pistol at another as to B. M. and D. P. A person commits the offense of pointing a gun at another when he intentionally and without legal justification points a gun or pistol at another. OCGA § 16-11-102. C. A. claims that he only showed the gun without pointing it at anyone.

Evidence was presented showing that C. A. pointed the gun at B. M., who testified that although he could not see very well that late night, “it looked like [C. A.] was holding it towards me and ‘Little [S].’ ” As to D. P., however, although the State asserts in its appellate brief that “Little [S]” is a “street name for D. P.,” the record clearly shows that “Little [S]” is D. P.’s younger brother, S. P. The State also points out that the deputy testified without objection that D. P. and B. M. told him during his investigation of the incident that C. A. had pointed the gun at both of them. But even in the absence of an objection, such hearsay evidence has no probative value and establishes no fact unless it falls within an exception to the hearsay rule, Day v. State, 235 Ga. App. 771, 772 (2) (510 SE2d 579) (1998). The State has shown no applicable exception. We note that the prior inconsistent statement exception is unavailable because the State failed to lay a proper foundation during the hearing. See Hamilton v. State, 238 Ga. App. 320, 321 (2) (517 SE2d 118) (1999); Duckworth v. State, 223 Ga. App. 250, 253-254 (2) (474 SE2d 336) (1996). Moreover, at the hearing, D. P. stated that C. A. had not pointed the gun at him. The State failed to show competent evidence to support a finding that C. A. pointed a gun at D. R, although the evidence was sufficient to enable a rational trier of fact to conclude beyond a reasonable doubt that C. A. committed acts which, if committed by an adult, would have constituted the offense of one count of pointing a gun at another, B. M.

3. Finally, C. A. contends that the evidence is insufficient to show that he committed acts which, if committed by an adult, would constitute aggravated assault, as against B. M. He argues that the State failed to show that he pointed a gun at B. M. and that he had the present intent to do bodily injury to him. When the use of a deadly weapon places the victim in reasonable apprehension of immediate violent injury, the felony of aggravated assault has occurred. OCGA § 16-5-21 (a) (2); Smith v. Hardrick, 266 Ga. 54, 55 (2) (464 SE2d 198) (1995). It is the victim’s reasonable apprehension of injury from an assault by a deadly weapon, such as a firearm, that establishes the crime of aggravated assault, not the assailant’s intent to injure. Collins v. State, 199 Ga. App. 676, 677 (405 SE2d 892) (1991). When the deadly weapon used in the commission of aggravated assault is in fact a BB gun, the proper test is whether the gun that the accused used reasonably appeared to the victim to be a deadly weapon. See Mitchell v. State, 222 Ga. App. 866, 867 (1) (476 SE2d 639) (1996).

Decided April 19, 2001.

Sullivan & Sturdivant, Harold A. Sturdivant, Michele W. Ogle-tree, for appellant.

William T. McBroom III, District Attorney, James E. Sherrill, Assistant District Attorney, for appellee.

We have already determined, supra, that there is evidence that C. A. did point the gun at B. M., who testified that when C. A. pointed the gun at him, he was “real scared.” B. M. testified that the gun to him, “looked like a .45,” and the gun was also introduced into evidence at trial. There was sufficient evidence that the gun reasonably appeared to B. M. to be a deadly weapon. The evidence was sufficient to enable a rational trier of fact to conclude beyond a reasonable doubt that C. A. committed acts which, if committed by an adult, would have constituted the offense of one count of aggravated assault.

We conclude that there is an absence of competent proof on the charge that C. A. pointed a gun at D. P. (see Division 2, supra). Because the adjudication of delinquency was predicated at least in part on that unauthorized finding, it must be reversed. The case is remanded for the trial court to adjudge whether C. A. is delinquent based on all of the authorized findings. See In the Interest of J. H. M., 202 Ga. App. 79, 81 (413 SE2d 515) (1991).

Judgment reversed and case remanded. Barnes and Phipps, JJ, concur.

       The juvenile court also found that C. A. was ungovernable and had violated his probation, but C. A. does not appeal those findings.


text:
    A01A0329.
    In the Interest of T. B., a child.
    (548 SE2d 45)
   Ruffin, Judge.

Appellant, the mother of T. B., challenges the sufficiency of the evidence supporting termination of her parental rights. We agree that the evidence was insufficient to support the termination order and reverse.

The record shows that the Georgia Department of Human Resources, acting through the Bulloch County Department of Family & Children Services (“DFACS”), filed a petition to terminate appellant’s rights to T. B. on November 1, 1999. The Bulloch County Juvenile Court held two hearings on the termination issue, which produced testimony showing the following. In August 1997, appellant, who was pregnant with T. B., and her two young children left the home they shared with appellant’s boyfriend to escape the boyfriend’s violent behavior. They entered a shelter in Liberty County, where they stayed for a few weeks until authorities discovered drug paraphernalia in their belongings, arrested appellant, and took custody of the two children. Appellant was later accepted into a drug rehabilitation program in Brunswick, which she apparently completed. She then entered a second drug treatment program at the Women’s Place in Bulloch County, a facility that could accommodate her pregnancy.

T. B. was born on March 3, 1998, while appellant was in treatment at the Women’s Place. Approximately one month later, appellant was asked to leave the facility for violating program rules. Almost immediately, DFACS removed T. B. from appellant, who had told authorities that “she had no place to go.” On April 6, 1998, the juvenile court ordered that T. B. be placed in foster care. A few days later, DFACS filed a deprivation petition, claiming that appellant had “persistent problems with substance abuse, domestic violence and a lack of stability.” On April 28, 1998, the juvenile court found that T. B. was deprived and granted DFACS temporary custody. DFACS developed a reunification plan that required appellant to maintain contact with T. B.; give T. B. “permanency”; secure and maintain a stable, alcohol and drug free home; attend drug and alcohol counseling; attend mental health counseling; and obtain income.

After DFACS took custody of T. B., appellant went to Savannah and began looking for a job and housing. Although she applied for public housing, the waiting list was long. Between April 1998 and June 1999, she lived for short periods with friends in Savannah — including the individual she left in 1997 for domestic violence — and at a motel. In May 1998, she began working as a store manager at Family Dollar, but was fired in August 1998 because she had no reliable transportation to travel between stores, as her job duties required. Appellant remained unemployed until November 1998, then took another job in Savannah, which she held until January 1999. In July 1999, appellant moved to the Atlanta area, where she accepted a job with an insurance company. Although appellant initially lived with her cousin, she moved into her own apartment in September 1999. Appellant was still working with the insurance company on May 8, 2000, the date of the last hearing on the termination petition. She also lived at the same apartment, but was looking for a larger apartment. Appellant’s boss at the insurance company testified that appellant received a very good work evaluation and “does a great job.”

While appellant lived in Savannah, she visited T. B. in Bulloch County approximately once every month, though the reunification plan required two visits per month. After she moved to Atlanta, appellant visited T. B. only once between July 1999 and January 2000. It appears, however, that DFACS sent T. B. to live with a relative in Nebraska in October 1999. Appellant testified that her job duties prevented her from visiting T. B. more often, especially during her first few months in Atlanta, when she was in a 60-day probationary period with her job. She admitted that T. B. does not recognize her as “mother,” but asserted that she has a “connection” with the child that developed during their visits.

A DFACS caseworker testified that appellant did not complete her reunification plan goals. According to the caseworker, appellant went “from job to job, and a lot of times she didn’t have a job at all.” She established a stable home occasionally, but often moved from place to place. In addition, DFACS had no record that appellant attended alcohol or drug counseling, and the only record of mental health counseling was a psychological evaluation obtained by appellant. Appellant also failed to keep DFACS informed about her address changes and did not visit T. B. every two weeks, as required by the reunification plan.

Appellant testified that she attended mental health counseling while she was in Savannah and spent two weeks in a drug recovery program in July 1998. She completed a parenting class in 1998 and took drug screens when requested by DFACS. All drug screens were negative, except one which was positive for cocaine in September 1998. She testified at the first termination hearing that she was involved in drug and alcohol counseling and stated at the second hearing that she was attending mental health therapy.

On March 6, 2000, the juvenile court entered its order terminating appellant’s parental rights to T. B. In particular, the court found “a lack of parental care and control [by appellant] as specifically evidenced by the failure to maintain a stable home environment.” It further noted that the “evidence presented showed a history and pattern of instability.” The juvenile court concluded that T. B. was a deprived child, that lack of parental care and control by appellant caused the deprivation, and that “the conditions and causes of the deprivation are likely to continue and will not be remedied.”

1. Before a juvenile court terminates parental rights, it must undertake a two-step analysis:

First, there must be a finding of parental misconduct or inability, which requires clear and convincing evidence that: (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; and (4) continued deprivation is likely to cause serious physical, mental, emotional, or moral harm to the child. If these four factors exist, then the court must determine whether termination of parental rights is in the best interest of the child, considering the child’s physical, mental, emotional, and moral condition and needs, including the need for a secure, stable home.

On appeal, we view the evidence in the light most favorable to the juvenile court’s ruling 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.

In its termination order, the juvenile court noted a “history and pattern of instability” surrounding appellant. It found that she had lived at seven different residences since April 1998, lost a job in September 1998, tested positive for cocaine that same month, failed to abide by the reunification plan’s visitation schedule, did not complete required counseling, and stopped attending case reviews with DFACS. According to the juvenile court, this instability demonstrated “a lack of parental care and control.”

Nothing in the record, however, provides clear and convincing evidence that appellant’s lack of proper parental care and control is likely to continue here. Instead, the evidence revealed that appellant secured a job with an insurance company in July 1999 and was still a valued employee in May 2000, when the juvenile court held its last hearing. Appellant obtained an apartment in September 1999, where she remained the following May, and had enrolled in mental health and substance abuse counseling. The record further shows that appellant paid over $700 in child support for T. B. between February and May 2000 and that appellant spoke frequently with the individuals caring for T. B. in Nebraska.

We have noted that “[p]ast conduct of the mother may reflect whether the conditions of deprivation are likely to continue” and that a mother’s “recent attempts to put her life in order” may be unconvincing. These general statements, however, do not fit every case; they are not absolutes. The evidence below established that well before DFACS filed its termination petition in November 1999, appellant began stabilizing her life, and she continued those efforts throughout the ensuing months. Appellant’s recent conduct cannot be characterized as mere “positive promises which are contrary to negative past fact.”

Decided April 19, 2001.

James K. Kidd, for appellant.

Thurhert 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, Anne R. Moore, for appellee.

Under the circumstances of this case, no rational trier of fact could find clear and convincing evidence that appellant’s instability — and the resulting lack of parental care and control — was likely to continue. Accordingly, the juvenile court erred in terminating appellant’s parental rights to T. B.

2. Our decision in Division 1 renders appellant’s remaining enumeration of errors moot.

Judgment reversed.

Johnson, P. J., and Ellington, J., concur.

       This appeal does not concern custody of these two children.

       According to appellant, she was asked to leave because she had “complications” with certain program participants and she took two diapers from her roommate, apparently without the roommate’s permission.

       (Footnotes omitted.) In the Interest of V. M. T., 243 Ga. App. 732, 735-736 (3) (534 SE2d 452) (2000).

        In the Interest of S. H. P, 243 Ga. App. 720, 721 (534 SE2d 161) (2000).

       (Emphasis supplied.) In the Interest of K. D. S., 237 Ga. App. 865, 866 (1) (c) (517 SE2d 102) (1999).

       See In the Interest of L. J. L., 247 Ga. App. 477, 480 (543 SE2d 818) (2001) (noting that “past unfitness, alone, is insufficient to terminate [a parent’s] right to custody”).

       (Punctuation omitted.) In the Interest of D. I. W., 215 Ga. App. 644, 646 (1) (451 SE2d 804) (1994).

       DFACS notes that “in considering recent improvement, the trial court, not the appellate court, determines whether a parent’s conduct warrants hope of rehabilitation.” (Punctuation omitted.) In the Interest of L. S. D., 243 Ga. App. 626, 628 (534 SE2d 109) (2000). The record, however, must still reflect clear and convincing evidence that the cause of the deprivation is likely to continue. See id.; see also L.J.L., supra. The evidence in this case does not support such a finding.