text:
    A99A2078.
    GALLOWAY et al. v. LINNELL.
    (529 SE2d 226)
   Ruffin, Judge.

Keith Linnell filed a dispossessory action against his tenants, Mark Galloway and Mark Osenbach. The tenants counterclaimed for actual and punitive damages, alleging that Linnell failed to repair the premises. Linnell dismissed the dispossessory action before the start of trial, stating that he was no longer the tenants’ landlord. Following a bench trial on the tenants’ counterclaim, the trial court entered judgment in favor of Linnell. Galloway and Osenbach appeal, contending that the trial court erred in denying their motion to compel and in entering judgment for Linnell. We affirm.

1. About two months before trial, the tenants filed a motion to compel responses to discovery requests. Although the trial court apparently held a hearing on the motion, the record does not contain a transcript of the hearing or a copy of the trial court’s ruling. Accordingly, even if we assume that the trial court denied the motion to compel, we have no way of knowing the reason for its decision. The tenants admit that “there is not a record of the ruling by the lower court as to Appellants’ motion to compel,” but urge us “to review the pleadings . . . and determine whether or not the lower court erred by allowing the Appellee, via counsel, to thimblerig the discovery process in this case.” Contrary to the tenants’ assertions, however,

[i]t is incumbent upon [the tenants], as appellant[s], to provide this Court with a record from which we can ascertain whether the trial court correctly ruled upon [their motion], and mere assertions of error in [their] brief do not suffice. In the absence of a sufficient record, we must assume that the trial court’s ruling was proper.

2. In their second enumeration of error, the tenants contend that the trial court “erred by granting judgment to [Linnell] under the facts of this case.” The tenants dó not provide a single citation to the record to support this enumeration. Indeed, they do not even make any argument as to how the facts required judgment in their favor but simply assert that “[w]hile, it was certainly within the discretion of the lower court to grant judgment to the Appellee, it is Appellants’ position that the lower court’s judgment was not based upon the evidence or facts of the case.” In particular, the tenants do not point to any facts contradicting the trial court’s finding that they failed to prove any damages and do not even mention that issue in their brief.

It is one thing when a party simply fails to provide a record citation to a particular fact he discusses in his brief. In such case, especially if the record is small, we will usually address the issue on its merits. It is quite another thing, however, when a party challenges the sufficiency of the evidence but fails to provide any discussion of the facts or any argument as to how they require reversal. This case falls into the latter category. In essence, the tenants are simply saying, “We don’t like the trial court’s judgment. Please review the record and see what you think.” As we have repeated time and time again, however, “it is not the function of an appellate court to cull the record in search of error on behalf of a party.” In the absence of any proper argument or discussion of the facts, we decline to sift the record to determine whether there was evidence to support the trial court’s ruling.

Judgment affirmed.

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

Decided February 3, 2000.

Mark Galloway, pro se.

Mark Osenbach, pro se.

Wayne A. Bailey, for appellee.

       Linnell had apparently leased the premises from a third party and was himself dispossessed prior to trial.

       (Citations omitted.) Self v. State, 232 Ga. App. 735, 737 (3) (503 SE2d 625) (1998). We also note that the tenants’ brief fails to provide any citations to the record.

       In one sentence, the tenants appear to suggest that they believe the trial court entered judgment for Linnell because his attorney would not get paid otherwise, but they provide no support for this belief. They also state that, after the filing of their notice of appeal, the trial court allowed Linnell’s counsel to “abscond” with funds in the court’s registry and that this fact “further supports Appellants’ position that the proceeding in the lower court were [sic] not upon an even legal playing field.” Apart from the fact that this does not address the tenants’ enumeration, there is nothing in the record to support their factual assertions.

       See Collins v. Newman, 237 Ga. App. 861 (1) (517 SE2d 100) (1999).

       (Punctuation omitted.) Wilson v. Mallard Creek Holdings, 238 Ga. App. 746, 748 (519 SE2d 925) (1999). See also Collins, supra; Sparti v. Joslin, 230 Ga. App. 346, 347 (2) (496 SE2d 490) (1998).

       See Clark v. Stafford, 239 Ga. App. 69, 74 (4) (522 SE2d 6) (1999); Sparti, supra.


source: Caselaw Access Project

author: Ruffin, Judge.

license: Public Domain

text:
    A99A2195.
    TUTEN v. THE STATE.
    (529 SE2d 221)
   Ruffin, Judge.

Nash Newbill Tuten was convicted of armed robbery and possession of a firearm during the commission of a crime. He appeals, raising several issues. For reasons discussed below, we affirm.

Gira Vashi testified that she was working at a hotel on February 19, 1996, when two men walked into her office. Both men pointed guns at her, and one of them told her, “Don’t scream or else I’ll shoot you, and give me all the money you have.” She opened the cash register, and they took all the money from it. As the two men left, Vashi called an employee, Lakeisha Montes, asking her to come to the office. Montes testified that she saw two men running from the hotel. They ran down a hill and got into a beige, four-door automobile, which then pulled away. Montes testified that it appeared the car was being driven by a third person. Montes ran back to Vashi, who called the police.

Deputy Elijah Parker testified that he received a dispatch to be on the lookout for two males who were racially described, one wearing a black shirt with a hood, in a brown and beige Oldsmobile Cutlass, which was last seen headed toward Milledgeville Road. Shortly thereafter, he saw a vehicle matching that description turn onto Golden Camp Road. He pulled behind the vehicle and saw that it had three occupants. According to Parker, the occupants “started acting suspicious” when they saw him and ducked down in their seats. The driver sped away, passing a school bus. After Parker activated his blue lights and siren, the vehicle made a left turn into a residential neighborhood and stopped. The two passengers jumped out of the car and ran away, but Parker apprehended the driver, Peter Garris. Deputy David Vest chased the two passengers and apprehended one of them, Jamar Rashad Davis. Deputy Parker discovered two pistols in the vehicle.

Davis told police that he had robbed the hotel along with Garris and Tuten. Investigator Kenny Lynch prepared a photographic lineup for Vashi, and she identified Tuten as one of the gunmen. Davis and Garris also selected Tuten out of a photographic lineup. At trial, Vashi identified Tuten as one of the robbers,, saying that she was ‘TOO percent sure” of her identification. Davis, who had previously been convicted of the robbery, testified that he and Tuten were the two gunmen, while Garris was the getaway driver.

1. Tuten’s brief violates our Court of Appeals rules in several respects. For example, there is no statement of the method by which each enumeration was preserved for appellate review, as required by Rule 27 (a) (1). In this case, that omission is far from immaterial, as several enumerations were not preserved at all. We take this opportunity to caution counsel that Rule 27 (a) (1) is not optional, to be ignored when it is inconvenient. If no objection or motion was made below on an issue, counsel should not conceal this fact by simply failing to include the statement required by Rule 27 (a) (1).

In addition, Tuten’s brief violates Rule 27 (c) (1) in that the argument section does not correspond to the enumerations of error. Instead, Tuten lumps several different enumerations together, without any clear indication as to how the argument relates to the various enumerations. Such failure makes it difficult to determine precisely what errors Tuten is asserting on appeal. Nevertheless, we will address Tuten’s enumerations of error to the extent that they are supported by argument in his brief.

2. In his first enumeration, Tuten contends that the trial court “erred in failing to strike as unresponsive, testimony from the State’s investigators naming appellant Tuten as a suspect in violation of the rule against hearsay.” Nowhere in his brief, however, does Tuten show that he ever objected to any testimony on the grounds of nonresponsiveness or that he ever moved to strike any such testimony. Moreover, Tuten’s brief does not contain any argument whatsoever relating to this particular enumeration. Accordingly, this enumeration is deemed abandoned.

3. In his second enumeration, Tuten argues that the trial court “erred in failing to declare a mistrial when the [State’s] investigators named appellant Tuten as a suspect in violation of the rule against hearsay.” Nowhere in his brief, however, does Tuten indicate that he ever moved for mistrial on such basis, and our review of the portions of the record cited by Tuten does not reveal such a motion. Since Tuten has not shown that he moved for mistrial on this basis, this enumeration provides no ground for reversal.

4. In his third enumeration, Tuten contends that the trial court erred in failing to rebuke the prosecutor for asking certain questions. Again, Tuten fails to show that he ever raised the issue of prosecutorial misconduct or asked the trial court to rebuke the prosecutor. As the Supreme Court has stated, “prosecutorial conduct not objected to at trial will not warrant reversal on appeal.” Moreover, Tuten has wholly failed to address this enumeration in his brief, and thus it is deemed abandoned.

5. During direct examination of Investigator Woods, the prosecutor asked Woods what he did after the police had interviewed the various witnesses. Woods responded that the investigation “centered on the name of Nash Newbill Tuten. We developed the photograph of him from previous files and then presented that to Ms. Vashi in the lineup fashion.” Tuten did not raise any objection to this response at the time. After the prosecutor asked two more questions and Woods responded to these questions, Tuten’s attorney told the court that .

I need to make an objection. I mean, I can make it later, but it needs to be made out of the jury’s presence. If you can give me the opportunity to make it later, as well as perfect the record on these other points, I’ll do that. Please let it be known I’m objecting at this time.

The court responded, “Sure. Okay. Go ahead.” At the conclusion of Woods’ testimony, Tuten’s attorney moved for a mistrial on the grounds that Woods’ reference to “previous files” placed Tuten’s character in evidence. The trial court denied the motion, and Tuten asserts this ruling as error.

As an initial matter, it appears that Tuten waived his right to seek a mistrial based on Woods’ testimony by failing to make such motion at the time the testimony was given. “It is well settled that a motion for mistrial must be made contemporaneously with the objectionable testimony.” Merely objecting to testimony at the time it is offered does not preserve the right to later move for a mistrial based on such testimony. 7Although several questions after Woods’ reference to “previous files,” Tuten’s attorney informed the court that he had an unspecified objection to make, the attorney did not indicate that he intended to move for a mistrial and did not seek or obtain permission to make such motion at a later time.

Even if Tuten’s motion for mistrial were timely, however, the trial court did not err in denying the motion. In Gravitt v. State, a police officer testified that a picture of the defendant shown to the victim “ ‘was a mug shot from the files of the DeKalb County Police Department.’ ” The Supreme Court held that “such evidence, without more, contains nothing to indicate that the defendant was guilty of previous crimes [and] did not put the appellant’s character [in] issue.” In Woodard v. State, the Supreme Court held that “the mere statement of the detective that he ‘decided to pull some pictures of [the defendant] from our files’ would not place the defendant’s character [in] evidence.”* Similarly, the Supreme Court held in Fleming v. State that testimony that a defendant’s identification photograph “came from the G. B. I.” did not impermissibly place his character in evidence. Finally, the Supreme Court has stated that

[u]nder previous decisions of this court, actually exhibiting a mugshot to the jury has not been held erroneous. Therefore, an arguable reference to a mugshot, while not to be encouraged, did not impermissibly place appellant’s character [in] issue.

Accordingly, Woods’ reference to “previous files” did not impermissibly place Tuten’s character in issue. Even if it did, the trial court would not have committed error in refusing to grant a mistrial.

The granting or refusing of a motion for mistrial is necessarily a matter largely within the discretion of the trial judge, and unless it is apparent that a mistrial is essential to the preservation of the right to a fair trial, the exercise of the judge’s discretion will not be interfered with.

Given the fleeting nature of Woods’ reference to “previous files,” made during a narrative account of the officer’s actions, we cannot say it is apparent that a mistrial was necessary to preserve the right to a fair trial, and Woods did not request any further relief such as a curative instruction to the jury.

6. In his fifth enumeration, Tuten contends the trial court erred in allowing Woods to testify to the results of the various photographic lineups. However, as we noted in Neal v. State,

[a] law enforcement officer is permitted to testify to a vocal fact of identification witnessed by himself without its being subject to a hearsay objection. Moreover, the Georgia Supreme Court has also held that such testimony is not subject to a hearsay objection. See Haralson v. State, 234 Ga. 406 (216 SE2d 304) (1975).

Although we suggested in Neal that the Supreme Court should reconsider its decision in Haralson or at least “limit its application to cases in which the identifying witness is available for cross-examination,” we stated that we were “constrained to follow the rule.” Tuten does not attempt to distinguish Haralson or Neal or suggest that they are not controlling in this case. Accordingly, the trial court did not err in allowing Woods to testify as to the results of the photographic lineups.

1. Tuten presented an alibi defense at trial, claiming that he was working the day of the robbery. During cross-examination, the prosecutor questioned Tuten about whether he had related his version of events to anyone before trial. In his sixth enumeration, Tuten contends that the trial court “erred in failing to grant appellant’s motion for mistrial when the State cross-examined appellant regarding his failure to present evidence of his alibi before trial.” However, the transcript does not reflect that Tuten moved for a mistrial following such questioning by the State. Accordingly, this enumeration is without merit.

8. In his seventh enumeration of error, Tuten contends that the trial court erred in allowing the prosecutor to cross-examine him regarding privileged communications with his attorney. Again, however, Tuten fails to show that his attorney ever objected on the basis of attorney-client privilege.

Decided February 3, 2000

George D. Bush, for appellant.

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

9. In his final enumeration, Tuten claims that his trial counsel was ineffective. Tuten makes no real argument in support of this enumeration but “respectfully requests that any error found not to be preserved due to shortcomings of trial counsel be considered as grounds for his ineffective assistance of counsel claim.” We do not believe that this constitutes the type of “argument” necessary to preserve an enumeration for appeal. There is no citation whatsoever to the record, no analysis of any substantive authority, no discussion of how trial counsel’s actions fell below an objective standard of reasonableness, no discussion of whether the result would have been different but for counsel’s actions, no indication of what allegations of ineffectiveness were raised below, and no citations to trial counsel’s testimony at the motion for new trial hearing. In essence, there is nothing but a plea that we find trial counsel ineffective if we think he did anything wrong. “In the absence of proper argument, citation to the record, or citation to authority, we will not consider this enumeration.”

Judgment affirmed.

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

       Court of Appeals Rule 27 (c) (2).

       See Kapua v. State, 228 Ga. App. 193, 196 (2) (491 SE2d 387) (1997).

        Spencer v. State, 260 Ga. 640, 646 (9) (398 SE2d 179) (1990). See also Kapua, supra.

       Court of Appeals Rule 27 (c) (2).

        Stephens v. State, 232 Ga. App. 738, 739 (2) (503 SE2d 643) (1998). See also Flynn v. State, 255 Ga. 415, 419 (6) (a) (339 SE2d 259) (1986) (“a motion for mistrial not made contemporaneously with the alleged misconduct makes the motion not timely”).

       See Stephens, supra.

       239 Ga. 709 (239 SE2d 149) (1977).

       Id. at 712 (5).

       Id.

       234 Ga. 901 (218 SE2d 629) (1975).

       Id. at 902 (2).

       236 Ga. 434 (224 SE2d 15) (1976).

       Id. at 439.

       (Citations omitted.) Knight v. State, 243 Ga. 770, 775 (3) (257 SE2d 182) (1979).

       See Benjamin v. State, 211 Ga. App. 670, 672 (2) (440 SE2d 259) (1994) (“a police officer’s references to ... the defendant’s picture being in a mug book have been determined not to place a defendant’s character in issue”).

       (Punctuation omitted.) Hall v. State, 177 Ga. App. 464, 465 (339 SE2d 658) (1986).

       See id.; Jones v. State, 250 Ga. 166, 168-169 (3) (296 SE2d 598) (1982).

       211 Ga. App. 829 (440 SE2d 717) (1994).

       (Citations and punctuation omitted.) Id. at 830 (1) (b).

       Id.

       Well before this line of questioning began, Tuten moved for a mistrial on different grounds, arguing that certain questions by the prosecutor improperly suggested that Tuten should have called his wife as a witness.

       See Kapua, supra.

       Tuten appears to obfuscate this issue by stating that “[w]hen Appellant’s trial counsel moved for a mistrial due to the state’s violation of the rules of trial practice, the trial court should have granted the motion.” However, the motion to which Tuten refers had nothing to do with attorney-client privilege, but with the State’s questioning regarding Tuten’s failure to call his wife as a witness.

       In particular, Tuten mentions the possibility that we might determine that trial counsel failed to timely object to Woods’ reference to Tuten’s “previous files.” Tuten makes no argument on this issue, however, except to assert that any such failure would be “ineffective, prejudicial and harmful.” In any event, as discussed in Division 5, the reference to “previous files” did not impermissibly place Tuten’s character in evidence.

        Clark v. Stafford, 239 Ga. App. 69, 74 (4) (522 SE2d 6) (1999).


text:
    A99A2354.
    THE STATE v. WINNIE.
    (529 SE2d 215)
   Ruffin, Judge.

The State appeals the trial court’s grant of Richard Winnie’s motion to suppress evidence resulting from a traffic stop. Because the evidence supported the trial court’s determination that there was no articulable suspicion for the stop, we affirm.

When faced with a motion to suppress evidence based on an illegal search, the burden is on the State to prove the lawfulness of the search. On appeal, we construe the evidence in the light most favorable to uphold the court’s ruling. The trial court’s application of the law to undisputed facts is subject to de novo review.

Officer John Ottaway testified that, at about 4:00 a.m. on September 12, 1998, he was driving on Currahee Street when he saw a truck turn into the parking lot of a Salvation Army facility on East Franklin Street. Ottaway thought this was suspicious because the facility wás closed, so he turned around to look for the truck. As Ottaway pulled into the back of the facility, the truck began to drive away. Ottaway activated his blue lights, and the truck stopped. A subsequent search of the driver, Winnie, resulted in the discovery of a quantity of cocaine and a pill.

Ottaway testified that he did not observe any traffic violations by Winnie and had not received any report of criminal activity at the Salvation Army facility. He decided to stop the truck because “ [i] t was odd that it was parked behind a closed business at 4 o’clock in the morning with its lights off.” He said he stopped the truck “to identify the occupants [and] |j]ust to investigate . . . and find out what they were doing behind a closed business.” He said there “[c]ould have been criminal activity going on. . . . Could have been there to commit a burglary.”

Ottaway did not indicate that his decision to stop the truck was influenced by the fact that it started to pull away as he approached, nor did he claim that it appeared the driver was attempting to flee after noticing the police vehicle. In holding that there was no articulable suspicion for the stop, the trial court found that “the vehicle had begun to exit the parking lot as Officer Ottaway approached. There was no evidence of flight or evasive action.”

In Hughes v. State, our Supreme Court set forth the principles governing the legality of an investigative stop:

[A]lthough an officer may conduct a brief investigative stop of a vehicle, such a stop must be justified by specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion. The U. S. Supreme Court recognized the difficulty in defining the elusive concept of what cause is sufficient to authorize police to stop a person, and concluded that the essence of the elusive concept was to take the totality of the circumstances into account and determine whether the detaining officer has a particularized and objective basis for suspecting the particular person stopped of criminal activity. This demand for specificity in the information upon which police action is predicated is the central teaching of the Supreme Court’s Fourth Amendment jurisprudence.

This case is similar to Attaway v. State, where the police received a report that a car was circling around a subdivision several times late at night. An officer followed the car for a while and then stopped it when it was on a road leading out of the subdivision. In reversing the denial of Attaway’s motion to suppress, we noted that

[n]o evidence was introduced that such activity violated any local ordinance or other applicable law, or that there was any other basis for the stop. While the police officer testified that there had been past incidents of vandalism in the area, the police received no information that Attaway had committed any such acts. Although, as in Hughes, the police might have been justified in closely observing Attaway’s actions, his behavior did not provide a particularized and objective basis for suspecting him of criminal activity sufficient to justify an investigatory stop.

Clearly, an officer is justified in “closely observing” a vehicle that pulls into the parking lot of a closed business at 4:00 in the morning. However, as a police officer admitted at the hearing on the motion, such conduct itself is not illegal. In holding that there was no articulable suspicion for the stop, the trial court relied upon the fact that “the vehicle had begun to exit the parking lot as Officer Ottaway approached.” Although Ottaway might have suspected an attempted burglary when he saw the truck enter the parking lot, the basis for such suspicion disappeared when the truck started to leave the parking lot. Ottaway did not claim that the truck had been parked or out of his sight long enough to have already accomplished a burglary. Thus, once the vehicle started to leave the premises, there was no longer any “particularized and objective” reason for Officer Ottaway to suspect that the occupants of the vehicle were involved in criminal activity.

Although the State suggests that Winnie was attempting to flee from the police when he started to drive away, the trial court found to the contrary, holding that “[t]here was no evidence of flight or evasive action.” This finding is not clearly erroneous, as the State presented no evidence that the occupants of the truck noticed Ottaway’s vehicle before they started to pull away. Indeed, Officer Ottaway never stated that he believed the occupants were attempting to flee or even that he thought they had noticed him before they began to drive off. “In the absence of evidence of record demanding a finding contrary to the judge’s determination, this court will not reverse the ruling sustaining a motion to suppress.” Accordingly, we cannot say that the trial court’s finding that the truck had already started to exit the parking lot when Ottaway approached was clearly erroneous.

Decided February 3, 2000.

Michael H. Crawford, District Attorney, William C. Akins, Assistant District Attorney, for appellant.

The State’s reliance on State v. Hodges is misplaced. In that case, officers approached a vehicle parked in an unlit area of a shopping center parking lot late at night, when all shops except a Dairy Queen were closed. When the officers activated their blue lights to announce their identity, they saw the occupants of the car “frantically [begin] pushing something underneath the seat very quickly.”* The officers asked the occupants to exit the car. They did so and rapidly moved far away from the vehicle. The officers looked inside the vehicle and saw contraband in plain view. We held that “the circumstances created a justifiable suspicion of the conduct of the appellees so as to warrant the limited investigative detention.” In this case, by contrast, Winnie merely pulled into a parking lot and then began to drive away. Officer Ottaway noticed no other suspicious conduct while the truck was on the premises and before it started to drive away. Accordingly, at the time he made the stop, Ottaway had no “particularized and objective” reason for believing that the occupants of the truck were engaged in criminal activity.

Judgment affirmed.

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

Healy & Svoren, Timothy P. Healy, Nina M. Svoren, for appellee.

        State v. Banks, 223 Ga. App. 838 (479 SE2d 168) (1996).

       Id. at 839.

       Id.

       269 Ga. 258 (497 SE2d 790) (1998).

       (Citations and punctuation omitted.) Id. at 259-260.

       236 Ga. App. 307 (511 SE2d 635) (1999).

       (Punctuation omitted.) Id. at 309.

       (Punctuation omitted; emphasis supplied.) State v. Betsill, 144 Ga. App. 267, 268 (2) (240 SE2d 781) (1977).

       See Young v. Kitchens, 228 Ga. App. 870, 874 (3) (492 SE2d 898) (1997) (“It is the [trier of fact’s] function to draw an inference from the evidence when more than one inference can be drawn.”).

       184 Ga. App. 21 (360 SE2d 903) (1987).

       Id. at 22.

       Id. at 24.

       Because of our holding above, we need not determine whether the scope of the detention and search was excessive.


text:
    A99A2392, A99A2393.
    In the Interest of B. R. W., a child (two cases).
    (530 SE2d 5)
   Ruffin, Judge.

On May 28, 1999, the juvenile court entered an order terminating the parental rights of Jane Watts and Robbie Ritchie, the natural parents of B. R. W. In Case No. A99A2392, Watts appeals the termination of her parental rights. In Case No. A99A2393, Watts’ mother, Mary Janet Carroll, contends that the trial court violated OCGA § 15-11-90 (a) by failing to place B. R. W. with her following termination of the natural parents’ rights. For reasons discussed below, we affirm in both cases.

Case No. A99A2392

In March 1997, Watts was picked up by authorities after running away from home. She was 16 years old at the time. The Murray County Department of Family & Children Services (DFCS) was contacted because Watts indicated that she did not want to return to her mother and stepfather. She told DFCS that her stepfather had sexually abused her but did not provide details other than to say that he had pinched her on her legs. An investigation was conducted by the Gilmer County Department of Family & Children Services, which apparently found the charges unsubstantiated.

A few days later, Watts apparently ran away from her grandmother’s home and was picked up in the company of Ritchie, an 18-year-old who had been twice convicted of theft by taking. They began a sexual relationship, and Watts became pregnant with B. R. W. In June 1997, Ritchie was arrested for forgery. He pled guilty and was incarcerated until April 1999. It appears that Watts was also arrested in connection with the forgery.

When Watts was four or five months pregnant, she was placed in DFCS’ custody and began living with a foster family, the Beavers. Watts gave birth to B. R. W. in December 1997. B. R. W. was also placed in DFCS! custody and placed in foster care with the Beavers. After the birth, Watts continued for a time to attend school and live with the Beavers. Around June 1998, however, against DFCS’ recommendation, Watts decided to leave the foster home and return to live with her mother, while leaving B. R. W. to be raised by the Beavers. At that time, Watts told several people that she did not think B. R. W. should be placed in her mother’s home.

DFCS prepared several case plans designed to reunify Watts and B. R. W. These case plans required Watts to contribute financially to the support of the child; to maintain a meaningful relationship with the child, including regular visitation; to cooperate with DFCS; to acquire nurturing and parenting skills, including the completion of a Better Beginnings program; and to obtain stable employment in order to provide a home for the child.

Ruby Slack, Watts’ DFCS case manager, testified that Watts called her several times in early 1999, telling her that she wanted to surrender her parental rights. They met in Slack’s office, and Slack advised Watts to think more about it before surrendering her rights. Two or three weeks later, on February 16, Watts called back and said that she had thought about it and wanted to come in and sign her rights away. Watts came into the office that day, and Slack discussed the surrender papers with her, giving her a copy to study and making an appointment to sign the papers two days later. Watts did not show up for the appointment, however, and called Slack on February 23 to say that she had changed her mind. Later that day, Slack informed Watts and her mother that DFCS was going to request termination of parental rights. The decision to recommend termination was approved by the citizens review panel on March 10. The petition for termination was filed on April 16,1999, and a hearing on the petition was held on May 18, 1999.

At the hearing, Slack testified that Watts was required under the case plans to make support payments of $10 per week. Watts began making such payments in July 1998 but did not make any payments after February 12, 1999, three months before the termination hearing. The total amount paid by Watts was $350.

Linda Moore, a teacher in the Better Beginnings program, testified that the program is designed to improve the parenting skills of teenage mothers. Under the program, a mother and her child would come together twice a week for four hours. Moore testified that a bus would be sent to pick up Watts and then B. R. W. According to Moore, when Watts first entered the program, she showed positive interaction with the child. Over time, however, “that began to diminish,” and Moore said that it appeared Watts was losing interest in caring for the child. At one point, Watts “talked about giving up her rights with [the child] because she thought that [DFCS] would never give her child back and she thought it would be better that she just gave it up.” Moore said that Watts eventually just stopped showing up for the program, without ever contacting her. At the termination hearing, Watts admitted that she had stopped attending the program around March 1999 and that she never informed her caseworker of that fact. She said one reason she stopped attending the program was because Slack had told her she was going to seek termination of parental rights. Watts testified that she attended four two-hour parenting classes at a church in Dalton but did not indicate exactly what those classes consisted of.

Slack testified that Watts did not contact her to arrange any visits with the child after the March 10 panel review. Ms. Beaver testified that, during the two months before the May 18 termination hearing, Watts visited the child only once. Watts stopped by the house on another occasion with a male companion but told Ms. Beaver that she had come to see her, not B. R. W. Beaver told Watts that she needed to get in touch with Slack to make arrangements to visit the child. Although Watts said she would, she never did. Watts admitted at the hearing that she stopped regularly visiting B. R. W. in early 1999, claiming she was never able to get hold of Slack to set up an appointment. Slack, however, testified that she had no contact with Watts after the March 10 panel review, except for one occasion when Watts left a message saying she could not show for a court date.

Ms. Beaver testified that she had ample opportunity to observe Watts’ interaction with B. R. W. while they were living together. Although Watts appeared to love B. R. W, Beaver said “she just didn’t seem to have the ability to discern, you know, certain things to make wise decisions in some circumstances.” For example, Watts once tried to give her a bottle that was “extremely hot.” Beaver testified that Watts resented it when she would try to teach her how to take care of the child. After Watts moved back in with her mother, she was allowed to keep B. R. W. for an overnight visit on at least one occasion. When B. R. W. was returned to Beaver, the child was “very upset, sort of agitated, cried a lot.” On several occasions, Watts told Beaver that she did not think she was able to take care of B. R. W. and asked if the Beavers wanted to adopt the child. Watts’ mother agreed that Watts did not have the maturity to raise B. R. W. and said that it would not be a good idea to let Watts keep the child by herself.

With respect to employment, Watts testified that she worked at Kentucky Fried Chicken for about a month, worked part-time for Hardee’s for about six months, and then worked for McDonald’s for about a month. After quitting the McDonald’s job, she testified that she was unemployed for about a month. She testified at the hearing that she had been working the 11:00 p.m. to 7:00 a.m. shift at a different company, Beaulieu, for about a month. However, she never notified Slack that she had obtained this job. Watts testified that if B. R. W. were returned to her, a neighbor would take care of her while she was at work. However, she admitted that she had not discussed this with the neighbor and did not know whether the neighbor would agree to take care of the child.

After leaving the Beavers’ home in spring 1998, Watts moved in with her mother, Carroll. According to Watts, Carroll would often tell her that she did not want Watts living with her anymore. However, Watts said “[s]he always said it out of anger, but she didn’t mean it.” Every two weeks, Watts would go to stay with her father for a few days in Copperhill, Tennessee. Around December 1998, Watts said she stayed for about two weeks with a friend in Cleveland, Tennessee. Watts testified at the hearing that she was buying a trailer and had been living by herself for the past month. However, she could not give an address and did not know the name of the person from whom she was buying the trailer. Slack testified that Watts did not keep her informed of her whereabouts. She said Watts told her that she “went back and forth” to Cleveland to stay with a friend but that Watts would not identify the friend. Slack said Watts never informed her that she was buying a trailer.

1. In her first enumeration, Watts contends that DFCS prematurely filed its termination petition. Watts relies on OCGA § 15-11-41 (n), which requires DFCS, subject to certain exceptions, to seek termination if a child has been in foster care under DFCS’ responsibility for 15 of the most recent 22 months. Because Watts moved out of the Beavers’ home less than 15 months before the petition was filed, Watts argues that the petition was premature. This contention is without merit, however, as OCGA § 15-11-41 (n) does not limit DFCS’ ability to seek termination but simply requires it to seek termination under certain circumstances. Moreover, although Watts lived with B. R. W. in the Beavers’ foster home for a period of time, DFCS has had custody of B. R. W. since her birth in December 1997, more than 15 months before the filing of the termination petition.

2. In two enumerations, Watts contends the evidence was insufficient to support the termination. In considering this issue, we view the evidence in the light most favorable to the lower court’s judgment to determine whether any rational trier of fact could have found by clear and convincing evidence that Watts’ parental rights have been lost. We neither weigh the evidence nor determine the credibility of witnesses but defer to the trial court’s factfinding and affirm unless the appellate standard is not met.* ***

A juvenile court must employ a two-step procedure before terminating a parent’s rights:

First, the court shall determine whether there is present clear and convincing evidence of parental misconduct or inability as provided by OCGA § 15-11-81 (b). Secondly, if there is clear and convincing evidence of such parental misconduct or inability, the court shall then consider whether termination of parental rights is in the best interest of the child. Parental misconduct or inability is found where (1) the child is deprived, (2) the lack of proper parental care or control by the parent in question is the cause of the child’s deprivation, (3) the cause of deprivation is likely to continue or will not likely be remedied, and (4) the continued deprivation will cause or is likely to cause serious physical, mental, emotional, or moral harm to the child. OCGA § 15-11-81 (b) (4) (A).

A child is deprived if she is “without proper parental care or control, subsistence, education as required by law, or other care or control necessary for [her] physical, mental, or emotional health or morals.” The evidence in this case clearly authorized a finding that B. R. W. was deprived and that lack of proper parental care or control by Watts was the cause of her deprivation. Since she was born, B. R. W. has been in foster care, and Watts has never acted as the child’s primary caretaker. Although Watts had the opportunity to participate in B. R. W.’s care after the child was born, she voluntarily separated herself from her child by moving out of the Beavers’ home, against DFCS’ advice. Thus, B. R. W.’s lack of parental care is largely due to Watts’ own decision to leave the child with the Beavers.

In addition, there was evidence that Watts seemed indifferent to the child during their sessions at Better Beginnings. On more than one occasion, Watts indicated that she was unable to care for the child and desired to surrender her parental rights. In the months before the termination hearing, Watts admittedly failed to stay in contact with her child. Under all of these circumstances, the juvenile court was authorized to find that B. R. W. was deprived and that lack of proper parental care or control by Watts was the cause of the deprivation.

The evidence was also sufficient to allow the juvenile court to find that the cause of B. R. W.’s deprivation was likely to continue or would not likely be remedied and that continued deprivation would likely cause serious harm to the child. Since B. R. W. has been in foster care, Watts has displayed an on-again, off-again interest in parenting. Although Watts had the opportunity to help raise B. R. W. while living in the Beavers’ home, she elected to move out, leaving the child to be raised by the Beavers. Watts’ own mother testified that Watts did not have the maturity to raise B. R. W. As discussed above, Watts has indicated on several occasions that she does not believe she is able to raise the child and has often expressed a desire to surrender her parental rights. Although she claims to have changed her mind, her conduct after making such declarations does not demonstrate a commitment to parenting. To the contrary, Watts’ interest in the child appeared to diminish in the months before the termination hearing.

“Judging the credibility of [Watts’] good intentions was a task for the juvenile court. The decision as to a child’s future must rest on more than positive promises which are contrary to negative past fact.” The juvenile court was authorized to find that Watts lacked the requisite maturity and commitment to care for the child. In addition, as the court noted, Watts has never established a stable home or stable employment. In short, the evidence authorized the juvenile court to conclude that Watts did not have the maturity, the inclination, nor the ability to provide the proper parental care and control necessary for B. R. W.’s physical, mental and emotional health and that these conditions were likely to continue for the foreseeable future. The court was also authorized to consider “the adverse effects of prolonged foster care in determining that continued deprivation is likely to cause serious physical, mental, emotional, or moral harm to [B. R. W.]”

With respect to the final element, “[t]he same factors which show a parent’s inability to properly raise her [child] may also provide proof that termination of parental rights would be in the [child’s] best interests.” In addition, the juvenile court properly considered B. R. W.’s “need for a secure and stable home.” In light of B. R. W.’s age and the unlikelihood of Watts being able to properly care for her in the foreseeable future, the juvenile court was authorized to conclude that termination was in the child’s best interest.

Case No. A99A2393

Two weeks before DFCS filed its termination petition, B. R. W.’s grandmother, Carroll, filed a petition to modify custody, asking that custody of the child be transferred to her. Although the custody and termination actions were given separate case numbers, the juvenile court considered them both at the May 18 hearing. Carroll’s attorney was allowed to cross-examine all witnesses in the termination action and then to present evidence in support of her modification petition. The trial court addressed both petitions in its written order, first denying Carroll’s petition to modify custody and then granting DFCS’ petition to terminate parental rights. The court then found that there was no suitable family member to take custody of the child and therefore granted custody to DFCS. Carroll contests various aspects of the trial court’s rulings.

3. In two enumerations, Carroll contends that the juvenile court erred in failing to properly follow OCGA § 15-11-90 (a). This statute provides that

[i]f, upon the entering of an order terminating the parental rights of a parent, there is no parent having parental rights, the court shall first attempt to place the child with the child’s extended family or with a person related to the child by blood or marriage. An exhaustive and thorough search for a suitable family member shall be made by the court and the Department of Human Resources in attempting to effect this placement. A placement effected under this paragraph shall be conditioned upon the family member who is given permanent custody or who is granted an adoption of the child agreeing to abide by the terms and conditions of the order of the court. A placement shall be made under the terms of this paragraph only if such a placement is in the best interest of the child.

Carroll makes two separate arguments with respect to this statute. First, she argues that DFCS did not conduct a thorough search for suitable family members who could take custody of the child. Second, she argues that the trial court should have awarded her custody pursuant to the statute following termination of the natural parents’ rights.

With respect to the first contention, Carroll does not argue that the alleged failure to conduct a thorough search in any way jeopardized her own ability to seek custody or prevented the court from adequately considering her as a candidate for custody. Indeed, the court allowed Carroll to participate fully in the hearing and to present evidence of her fitness. To the extent that Carroll is simply arguing that DFCS should have conducted a broader search for other family members, she has not shown how she has the right to raise this issue on appeal, as she is neither the parent nor the guardian of the child on whose behalf such search is to be conducted. Only a party who is aggrieved by a judgment has the right to appeal that judgment. A party is “aggrieved” by a judgment if the judgment “operates on his rights of property, or bears directly upon his interest.” It seems clear, therefore, that Carroll, whose claim to custody was in fact considered by the juvenile court, has no right to complain on appeal that DFCS and the court failed to conduct a thorough search for other family members.

With respect to the second issue — whether OCGA § 15-11-90 (a) required the juvenile court to award custody to Carroll following termination of the natural parents’ rights — we are aware of no cases holding that a relative other than a parent has the right to appeal a termination order on the ground that the trial court failed to award such relative custody pursuant to OCGA § 15-11-90 (a). Nevertheless, even assuming that Carroll has the right to raise this issue on appeal, the trial court did not abuse its discretion in failing to award custody to Carroll following termination of parental rights.

OCGA § 15-11-90 (a) does not require a trial court to give preference to family members in making a placement of a child following termination of parental rights. Rather, the statute states that “[a] placement shall be made under the terms of this paragraph only if such a placement is in the best interest of the child.” In this case, there was evidence to support the trial court’s determination that it was not in the child’s best interest to be placed with Carroll. There was evidence that Carroll and her daughter, Watts, had a stormy relationship and that Watts ran away from home on at least one occasion. At one point, Carroll’s mother told Carroll that she had seen Watts “sniffing gas,” but Carroll testified that she “didn’t want to take [her] mother’s word at that time.” After ignoring this warning, Carroll personally observed Watts sniffing gas and had to take her to the emergency room.

After Watts left the Beavers’ foster home, she expressed her belief that B. R. W. should not come to live in Carroll’s household. The DFCS caseworker, Slack, testified that she had recently performed an inspection of Carroll’s mobile home and that it was not fit for a young child to live there. She testified that there were exposed electrical wires in the room where B. R. W. was to stay, as well as a kerosene heater in a corner of the home. There were no screens on the doors or windows, and flies were in the home. When Slack asked Carroll for references, Carroll refused to give the names of any neighbors. When questioned about who would take care of B. R. W. while Carroll was at work, Carroll responded, “Well, I asked my brother to ask his girlfriend’s grandmother to watch her, so I’ve got to get back with her tonight and find out what the verdict is on that.” Under all of the circumstances, we cannot say that the trial court abused its discretion in determining that it was not in the child’s best interest to be placed with Carroll.

Decided February 3, 2000

James E. Wilbanks, for appellant (case no. A99A2392).

Avrett, Ponder & Withrock, William B. Barnwell, for appellant (case no. A99A2393).

Thurbert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen A. Sgrosso, Laura W. Hyman, Assistant Attorneys General, Waycaster, Morris, Johnson & Dean, Cynthia N. Johnson, for appellee.

4. In her final enumeration, Carroll contends that the trial court erred in allowing DFCS’ attorney, over objection, to ask a leading question regarding DFCS’ attempts to find a suitable relative for placement. The question was as follows: “Have you done an exhaustive search to determine whether or not there are any other appropriate family membérs?” Pretermitting whether such question was in fact leading, the witness did not answer the question asked but simply described the efforts undertaken by DFCS. Therefore, Carroll has not shown any harm from the overruling of her objection.

Judgment affirmed.

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

       Ritchie does not appeal the termination of his parental rights.

       Although the trial court took judicial notice of all court files relating to Watts and B. R. W., the order placing B. R. W. in DFCS’ custody is not in the record on appeal.

       Copies of these case plans are not included in the record on appeal.

       We note that the trial court took judicial notice of all previous findings and orders relating to B. R. W., including reports of the citizens review panel’s reviews and orders incorporating the panel’s recommendations. It appears, however, that all of these documents have not been included in the record on appeal. In In the Interest of M. L. P., 236 Ga. App. 504, 510-511 (2) (512 SE2d 652) (1999), we held that OCGA § 15-11-33 (d) permits a trial court in a termination action to rely on findings of a citizens review panel “to the extent of [their] probative value.” In the absence of these documents, we cannot say whether they would provide additional support for the juvenile court’s decision to terminate parental rights. It is at least arguable that the absence of these documents would prevent us from reversing the juvenile court’s decision on the grounds of insufficient evidence. As discussed below, however, the evidence actually introduced at the hearing was sufficient to support the court’s decision, so it is not necessary to consider the effect of the absence of these documents.

        In the Interest of C. J. V., 236 Ga. App. 770, 771 (513 SE2d 513) (1999).

       (Punctuation omitted.) Id.

       OCGA § 15-11-2 (8) (A).

       (Punctuation omitted.) In the Interest of C. D. P., 238 Ga. App. 393, 395 (519 SE2d 37) (1999).

       See M.L.P., supra at 509 (1) (c).

       See In the Interest of T. R. G., 162 Ga. App. 177, 179 (290 SE2d 523) (1982); see also In the Interest of K. C. O., 142 Ga. App. 216, 218 (235 SE2d 602) (1977) (mother had periods where she lost interest in parenting, had history of running away from home and of inability to establish stable home, was unwilling or unable to return to school or find employment, had originally expressed interest in placing child for adoption, and never established stable home environment or child care plan to allow child to be returned to her custody); In the Interest of C. L. R., 232 Ga. App. 134, 138 (501 SE2d 296) (1998) (evidence showed mother’s “unwillingness or inability to care for her child to the child’s physical, mental and emotional detriment”).

        In the Interest of R. M., 232 Ga. App. 727, 728-729 (503 SE2d 635) (1998). See also In the Interest of J. O. L., 235 Ga. App. 856, 858 (510 SE2d 613) (1998) (“Children need permanence of home and emotional stability or they are likely to suffer serious emotional problems”).

        In the Interest of S. J. C., 234 Ga. App. 491, 494 (1) (507 SE2d 226) (1998).

       OCGA § 15-11-81 (a).

       OCGA § 15-11-90 (a) (1). The language of the statute was slightly modified effective July 1, 1999. See Ga. L. 1999, p. 252, § 2.

       See C. L. R., supra at 139 (3) (rejecting mother’s claim that court did not consider relative placement, where court heard evidence regarding option of placing child with paternal grandmother).

       In In the Interest of S. B., 237 Ga. App. 692, 695-696 (515 SE2d 209) (1999), we held that a father lacked standing to assert that the mother’s rights were violated by the failure to place the child with her relatives. In the subsequent case of In the Interest of N. B., 239 Ga. App. 336 (521 SE2d 47) (1999), however, we agreed with the mother’s assertion that the trial court and the Department of Human Resources did not adequately investigate the child’s paternal grandfather as a possible candidate for placement. Although these cases appear to conflict as to the scope of a parent’s right to complain about the failure to consider relative placement, neither case suggests that any relative other than a parent has the right to raise such issue — particularly a relative whose own merits have in fact been considered.

       See Johnson v. Pulaski County Bd. of Ed., 231 Ga. App. 576, 578 (3) (499 SE2d 345) (1998).

       (Punctuation omitted.) Southwire Co. v. Hull, 212 Ga. App. 131, 132 (441 SE2d 293) (1994).

       In several cases, we have considered claims by the child’s natural parent, whose rights had been terminated, that the trial court failed to consider relative placement. See C. L. R., supra; In the Interest of M. R., 213 Ga. App. 460, 466-467 (3) (444 SE2d 866) (1994); In the Interest of D. T., 221 Ga. App. 328, 330 (2) (471 SE2d 281) (1996); N. B., supra; S. B., supra.

       OCGA § 15-11-90 (a) (1).

       See M. R., supra; C. L. R., supra.

       See English v. State, 234 Ga. 602, 603-604 (2) (216 SE2d 851) (1975) (no reversible error unless appellant shows prejudice and injury from overruling of objection to leading question).


author: McMURRAY, Presiding Judge.

text:
    A00A0252.
    BURRUSS v. THE STATE.
    (529 SE2d 375)
   McMURRAY, Presiding Judge.

Defendant was indicted for one count of obtaining a controlled substance by fraud. By accusation, he was charged with driving after being declared a habitual violator, reckless driving, driving under the influence of alcohol to the extent that it was less safe for him to drive, operating a motor vehicle without proof of insurance, driving with an expired State tag, and driving on the wrong side of the road. Defendant entered into plea bargain negotiations as to the offenses charged. An agreement was reáched whereby he agreed to enter an open-ended guilty plea to such offenses. In exchange, the State agreed to offer defendant’s three prior felony convictions in aggravation of punishment only and waived prosecuting the defendant as a recidivist under OCGA § 17-10-7. A hearing was held wherein the superior court accepted the guilty pleas and, without objection from defendant, imposed an eight-year sentence without parole pursuant to OCGA § 17-10-7 (c) as to the charge of obtaining a controlled substance by fraud to run concurrent to its sentence on the traffic violations. Thereafter, the trial court granted defendant’s motion to reconsider its sentence as to the charge of obtaining a controlled substance by fraud and resentenced defendant therefor to serve five years, this time omitting the words “without parole” set out in its original order and again providing that its sentence, as reconsidered, be served concurrently with that imposed against defendant for his traffic offenses. In signing its final order resentencing defendant nunc pro tunc to the date of the original order on sentence, the superior court restored the language it omitted in granting defendant’s motion for reconsideration of sentence, specifying that the sentence was to be served without parole. Defendant filed a timely notice of appeal and enumerates that: (1) the superior court impermissibly enhanced his sentence by adding language to its final order on sentence providing that the sentence was without parole pursuant to OCGA § 17-10-7 (c); and (2) the sentence upon accusation as to his traffic offenses was illegal since the State’s attorney had not given defendant notice of his intent to prosecute him as a recidivist. Held:

1. The superior court did not err in resentencing defendant to confinement to be served without parole by its final order on resentence. Although in granting defendant’s motion for reconsideration of sentence the superior court omitted the words “without parole” required under OCGA § 17-10-7 (c), it validly resentenced the defendant upon entering its final order on resentence correcting such omission. See Conrad v. State, 217 Ga. App. 388, 390-391 (3) (457 SE2d 592). “ ‘[I]f the sentence imposed was a void sentence, then a new and valid sentence can be imposed ... at any time.’ (Punctuation and citations omitted.) McCranie v. State, 157 Ga. App. 110, 111 (276 SE2d 263) (1981).” Gonzalez v. State, 201 Ga. App. 437, 438 (411 SE2d 345). The superior court did not err in doing so in the case sub judice.

Decided February 3, 2000.

Barr, Warner, Lloyd & Pine, John V. Lloyd, for appellant.

Frank P. Burruss, pro se.

Spencer Lawton, Jr., District Attorney, Michael K. Dennard, Assistant District Attorney, for appellee.

2. Neither is there merit in defendant’s claim that the superior court erred in sentencing him as a recidivist under OCGA § 17-10-7 for want of notice of the State attorney’s intent to prosecute him as such under OCGA § 17-10-2 (a). OCGA § 17-10-2 (a) is not applicable to sentences imposed pursuant to a hearing on a guilty plea. Powell v. State, 229 Ga. App. 52 (1) (494 SE2d 200). Further, defendant’s complaint that he was not given appropriate notice notwithstanding, defendant’s counsel offered no objection to the admission of his prior convictions. Thus, even had there been error attendant thereto (and we find none), it would have been waived. Howard v. State, 233 Ga. App. 724, 726 (1) (a) (505 SE2d 768); Hatcher v. State, 224 Ga. App. 747, 750 (2) (a) (482 SE2d 443).

Judgment affirmed.

Johnson, C. J., and Phipps, J., concur.

       The superior court correctly noted in this regard that defendant’s conviction of obtaining a controlled substance by fraud was defendant’s fifth felony.

       On these the superior court sentenced defendant to five years to serve on Count 1 (habitual violator), twelve months to serve on Count 2 (reckless driving), twelve months to serve and a $1,000 fine on Count 3 (driving under the influence), six months to serve on Count 4 (driving without proof of insurance), a $50 fine on Count 5 (driving with an expired State tag), and twelve months to serve concurrent on Count 6 (driving on the wrong side of the road).


author: McMurray, Presiding Judge.

text:
    A00A0786.
    In the Interest of J. T. D., a child.
    (529 SE2d 377)
   McMurray, Presiding Judge.

Following a juvenile court adjudicatory hearing, J. T. D. was adjudicated a juvenile delinquent for committing a delinquent act constituting the offense of criminal damage to property in the second degree if committed by an adult — this arising out of a fight he had with another boy on the hood and roof of a car belonging to Jeanene Cooper. J. T. D. appeals the juvenile court’s denial of his motion to dismiss the charges, arguing the court lost jurisdiction over him when he turned 17 because he was no longer a child within the meaning of OCGA § 15-11-2 (2) (A) and (B) at the time of his hearing. Held:

J. T. D. correctly argues that he no longer qualified as a child under OCGA § 15-11-2 (2) (A) and (B) after his seventeenth birthday. Subsection (A) of the foregoing Code section defines “child” as any individual under the age of 17. Subsection (B) thereof defines “child” as an individual under the age of 21 who committed an act of delinquency before turning 17 while under the juvenile court’s supervision or on probation. In the Interest of D. L., 228 Ga. App. 503, 504 (1) (a) (492 SE2d 273).

Decided February 3, 2000.

Robert M. Boulineau, for appellant.

Bellury & Luton, Evelyn P. Luton, for appellee.

Notwithstanding the foregoing, J. T. D.’s age at the time of his adjudicatory hearing is not determinative of the juvenile court’s jurisdiction over him. Rather, his age at the time of the offense controls. “ ‘Under (OCGA §§ 15-11-5 and 15-11-2), the juvenile court has jurisdiction if the accused is under the age of seventeen at the time the offense is committed.’ Edmonds v. State, 154 Ga. App. 650 (269 SE2d 512) (1980).” In the Interest of D. L., 228 Ga. App. at 504-505 (1) (a), supra. Inasmuch as it is undisputed that J. T. D. was under the age of 17 at the time he committed the act of delinquency in the case sub judice, the juvenile court properly exercised exclusive original jurisdiction over his case. See id.; OCGA § 15-11-5. Accordingly, the juvenile court did not err in denying J. T. D.’s motion to dismiss.

Judgment affirmed.

Johnson, C. J., and Phipps, J., concur.

       The juvenile court acquitted J. T. D. of committing a delinquent act which would have constituted the offense of disorderly conduct if committed by an adult.


author: Johnson, Chief Judge.

text:
    A99A2073.
    BUILDERS DEVELOPMENT CORPORATION et al. v. HUGHES SUPPLY, INC.
    (529 SE2d 388)
   Johnson, Chief Judge.

Builders Development Corporation applied for credit from Hughes Supply, Inc. P. R. Wood, the president and sole shareholder of Builders Development, signed a Continuing Personal Guaranty, in which he agreed to be personally responsible to Hughes Supply for all purchases made by Builders Development. Over the course of the next several months, Builders Development became indebted to Hughes Supply for more than $50,000. When the debt went unpaid, Hughes Supply sued Builders Development and Wood as guarantor of the debt. After a bench trial, the court granted judgment to Hughes Supply, finding that Builders Development and Wood are jointly and severally liable for the debt. Builders Development and Wood filed a joint appeal from that judgment, though the arguments raised on appeal relate only to Wood’s liability and not to Builders Development’s liability.

Citing OCGA § 10-7-22, Wood maintains his obligation was discharged because Hughes Supply committed an act that increased his risk. The act with which Wood finds fault is Hughes Supply’s extension of credit to Builders Development in an amount exceeding the requested $15,000 credit limit. He argues that since any change in the terms of the agreement results in the discharge of the guarantor, Hughes Supply’s extension of credit beyond the amount requested in the credit application extinguished his liability. Under the facts presented here, we must disagree.

Wood is correct that under OCGA § 10-7-22, “[a]ny act of the creditor . . . which injures the surety or increases his risk or exposes him to greater liability shall discharge him.” But the protections of OCGA § 10-7-22 can be waived by the guarantor’s consent to the additional risk. Underwood v. NationsBanc Real Estate Svc., 221 Ga. App. 351, 353 (471 SE2d 291) (1996). It is the unconsented-to change in potential risk that causes the discharge. Cantrell v. First Tenn. Nat. Bank Assn., 207 Ga. App. 458, 460 (2) (428 SE2d 368) (1993). The guarantor’s liability is not extinguished where the change is done with his knowledge and consent. See South Atlanta Assoc. v. Strelzik, 192 Ga. App. 574, 576 (2) (385 SE2d 439) (1989). Thus, he is not discharged by any act of the creditor to which he consents. Bank of Terrell v. Webb, 177 Ga. App. 715 (2) (341 SE2d 258) (1986). Consent can be given in advance, even at the time the guaranty is signed. Underwood, supra.

We hold that Wood consented to the additional risk created by the extension of credit beyond $15,000. The language of the guaranty agreement at issue here is clear, unconditional and unambiguous. It provides that “[t]he Guaranty is a condition for extending credit to Purchaser,” and that the guaranty applies to “all sales made by Seller to Purchaser.” It provides further that “the Guarantor [’s] liability under this Guaranty shall be UNLIMITED.” (Emphasis in original.) It also provides that the guaranty remains in full force and effect until the guarantor gives written notice to the seller to make no further advances on the security of the guaranty. There is no evidence that Wood notified Hughes Supply that it should make no further advances on the security of the guaranty. Given this lack of notice and the plain contract language, we find that Wood consented to take on the additional risk. See generally Ramirez v. Golden, 223 Ga. App. 610, 612 (478 SE2d 430) (1996).

We also point out that Wood, who was the sole shareholder of the corporation whose credit he was guaranteeing, continued to accept credit extended to the corporation on the strength of his guaranty, rather than terminating the advances, which he had the right to do. Considering this fact, it is clear that the guaranty was not limited to $15,000. See generally Goldstein v. Ipswich Hosiery, 104 Ga. App. 500, 505-506 (3) (122 SE2d 339) (1961). Wood consented to the change in credit limit and has waived the protections of OCGA § 10-7-22.

Decided February 4, 2000.

Mumford, Myers & Mooney, Albert A. Myers III, for appellants.

Pursley, Howell, Lowery & Meeks, Roy H. Meeks, Jr., for appellee.

We note that the cases relied upon by Wood as requiring a contrary result are distinguishable. None of those cases involved language providing that the guaranty applied to all sales between the parties, that the guarantor’s liability was unlimited and that the guarantor could stop future advances by making a written request. See Carpenter v. Cordele Elec. Supply, 220 Ga. App. 548, 549 (1) (469 SE2d 799) (1996); Southeastern Auto. Warehouse v. McCurdy, 205 Ga. App. 550 (422 SE2d 574) (1992); West Cash &c. of Savannah v. Liberty Mtg. Corp., 160 Ga. App. 323 (287 SE2d 320) (1983). Nor does it appear that any of those cases involved a guarantor who was the corporation’s sole stockholder and sole officer continuing to take advantage of extensions of credit exceeding the amount requested in the credit application. We hold that, under these facts, Wood consented to the increase in risk. Neither Wood nor Builders Development has shown that the trial court erred in entering judgment against them.

Judgment affirmed.

McMurray, P. J., and Phipps, J., concur.


author: Smith, Judge.

text:
    A99A2270.
    WARD v. THE STATE.
    (529 SE2d 378)
   Smith, Judge.

Stephen A. Ward was convicted of one count of burglary and was sentenced as a recidivist under the fourth felony provisions of OCGA § 17-10-7 (c). After the denial of Ward’s motion for new trial, this appeal followed. Ward now challenges the sufficiency of the evidence supporting his conviction and the denial of his motion for new trial grounded on an ineffective assistance of counsel claim. Having reviewed both purported errors and finding no merit to either, we affirm.

On appeal, the evidence must be viewed in a light most favorable to the verdict, and Ward is no longer entitled to a presumption of innocence. Pollard v. State, 230 Ga. App. 159 (495 SE2d 629) (1998). When viewed in that manner, the evidence established that at about 2:25 a.m., the burglar alarm was activated at Junebug’s Grocery. When police responded, they discovered a brick had been thrown through the store’s plate glass front door. A surveillance camera inside Junebug’s recorded a black male entering the store immediately after the glass broke. The burglar was carrying a cardboard box into which he placed items he removed from behind the counter. Because the perpetrator had either a shirt or rag over his head, his facial features were not discernible on the videotape. The store’s owner, Milton Griffin, reported that beer, cigars, and cigarettes had been stolen.

The day after the break-in, acting on a tip from an informant, Investigator James Williams of the Albany Police Department contacted Ward at his mother’s house located within walking distance of .Junebug’s. Ward voluntarily agreed to accompany Williams to the police station where Williams fully informed him of his rights under Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966). After Williams read and explained a waiver of rights form to him, Ward signed it. Then, at Williams’s request, Ward wrote out a statement admitting to entering Junebug’s with a shirt over his head and stealing beer and cigarettes.

1. Ward contends that the evidence was not sufficient to sustain his conviction because the State failed to provide corroborating evidence as required by OCGA § 24-3-53.

OCGA § 24-3-53 provides: “All admissions shall be scanned with care, and confessions of guilt shall be received with great caution. A confession alone, uncorroborated by any other evidence, shall not justify a conviction.” Corroboration in any material particular satisfies the law. McCant v. State, 234 Ga. App. 433, 434 (1) (506 SE2d 917) (1998). The precise amount of evidence needed to corroborate a confession must be decided by the jury. McCloud v. State, 210 Ga. App. 69 (1) (435 SE2d 281) (1993).

Here, the State’s evidence demonstrated the occurrence of an early morning break-in at Junebug’s. The owner testified that someone broke into his store without consent and stole beer, cigars, and cigarettes. The videotape showed that the burglar concealed his face with some clothing and took items from behind a counter. The details concerning the commission of the burglary corroborated Ward’s confession to entering the store with a shirt over his head, stealing beer and cigarettes and then selling them. This evidence was sufficient within the meaning of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979) to sustain Ward’s conviction for burglary. See Ford v. State, 234 Ga. App. 301, 303 (1) (506 SE2d 668) (1998); Wallis v. State, 170 Ga. App. 354 (1) (317 SE2d 331) (1984).

2. Ward asserts the trial court erred in finding that his trial counsel did not render ineffective assistance. He claims his trial counsel failed to properly prepare a defense, did not conduct an adequate pretrial investigation, and failed to move for a directed verdict of acquittal.

To establish ineffectiveness, an appellant must show not only that his counsel’s performance was deficient, but also that the deficiency prejudiced him. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984); Rucker v. State, 268 Ga. 406, 407 (2) (489 SE2d 844) (1997). Failure to satisfy either prong of the Strickland standard is fatal to an ineffective assistance claim. Brewer v. State, 224 Ga. App. 656, 657-658 (2) (481 SE2d 608) (1997). In addition, a defendant must overcome the strong presumption that trial counsel’s conduct fell within the wide range of reasonable professional conduct. Id.

The record belies Ward’s contentions that his trial counsel did not adequately prepare for trial. At the motion for new trial hearing, Ward’s trial counsel testified that he had met with his client, reviewed the entire district attorney’s file, and attempted to locate witnesses. Defense counsel testified that when he interviewed “Brand New,” that person “did not confirm what I was told by Mr. Ward and I did not call him as a witness.” Similarly, counsel testified that his recollection was that Ward’s girlfriend was unwilling or unable to substantiate an alibi. Decisions not to subpoena witnesses or not to call certain witnesses are tactical or strategic in nature and do not equate with ineffectiveness of counsel. Allen v. State, 199 Ga. App. 365, 367 (6) (405 SE2d 94) (1991); see Harper v. State, 232 Ga. App. 224, 227 (2) (d) (501 SE2d 591) (1998) (tactical decisions do not generally equate with ineffectiveness of counsel claims).

Ward’s claim that his trial attorney should have sought a hearing under Jackson v. Denno, 378 U. S. 368 (84 SC 1774, 12 LE2d 908) (1964) misperceives the law. When the voluntariness of a statement is not challenged, no violation of OCGA § 24-3-50 is asserted, and no hearing is required. Helton v. State, 206 Ga. App. 600, 601 (426 SE2d 172) (1992). In this case, after the trial court agreed to conduct a Jackson-Denno hearing, the defense conceded the voluntariness of Ward’s incriminating statement, opting instead to dispute the accuracy of the writing itself. From that point, the issue became not voluntariness but witness credibility, a question for the jury, not the trial court, to resolve.

The record similarly refutes Ward’s claim that his counsel failed to properly prepare him to testify. During the trial, Ward created an ethical dilemma for his lawyer when he spontaneously decided to deny writing any part of the confession despite having admitted to his lawyer that he did write portions of it. Counsel explained to the court that he wanted no part in suborning perjury. Outside the presence of the jury and the prosecutor, Ward admitted that what he was telling the jury and what he had previously told his counsel differed. No rule of law requires or permits an attorney to assist in the commission of a crime. There is no right, constitutional or otherwise, for a defendant to use false evidence. Stephenson v. State, 206 Ga. App. 273, 275 (424 SE2d 816) (1992). The right to counsel, including the right to effective assistance of counsel, does not include cooperation in planned peijury. Id.

Decided February 4, 2000.

Willie C. Weaver, for appellant.

Kenneth B. Hodges III, District Attorney, Richard E. Thomas, Assistant District Attorney, for appellee.

Nor has Ward shown that he was prejudiced by the decision not to retain a handwriting expert. At the new trial motion hearing, Ward’s counsel testified that when he reviewed the handwritten statement, he concluded that “it all appeared to be the same writing.” Counsel testified that “it is my opinion that Stephen Ward is not the most honest person in the world. I did not believe Stephen when he told me he didn’t write certain parts of that statement.” In these circumstances, counsel’s refusal to “chase rabbits” by hiring a handwriting expert was purely a matter of trial strategy. Id. Since the trial court’s explicit and detailed finding that Ward was not denied effective assistance of counsel was not clearly erroneous, it must be affirmed. Kelly v. State, 267 Ga. 252, 253 (2) (477 SE2d 110) (1996).

Judgment affirmed.

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

       According to the handwritten statement: “I went in to June bug store. I got some Cigs an Beer. Sold them to brand New. an I walk a round an dunk beer. I had on some shorts an I had the Shirt over my head.” (Spelling and punctuation.are as in the original.) A person known as “Brand New” was interviewed by defense counsel.


text:
    A00A0048.
    MOORE v. THE STATE.
    (529 SE2d 381)
   Johnson, Chief Judge.

Willie Moore was convicted of armed robbery, possession of a firearm by a felon and possession of a sawed-off shotgun. He appealed to this court, and we remanded the case to the trial court for a determination of Moore’s ineffective assistance of counsel claim. On remand, the trial court held an evidentiary hearing on Moore’s motion for a new trial due to ineffective assistance of counsel and later denied the motion. Moore appeals from the trial court’s denial of his motion for a new trial.

1. Moore argues that his trial counsel was ineffective because he did not object when the state introduced only a certified copy of his prior robbery conviction and no other evidence about that similar transaction, he did not object to the prosecutor’s improper closing argument remarks, and he did not call Moore’s daughter as a witness.

In order to prove ineffective assistance of counsel, the appellant must show (1) that counsel’s performance was deficient and (2) that the deficiency prejudiced the appellant, i.e., there is a reasonable probability that but for counsel’s error the jury would have had a reasonable doubt regarding the appellant’s guilt. Contrary to Moore’s arguments, we cannot find that hé has made both showings needed to prove that his trial counsel was ineffective.

(a) Moore correctly asserts that his trial counsel should have objected to the state’s proving of its similar transaction by introducing only a certified copy of Moore’s prior armed robbery conviction. The Supreme Court has held that it is error for the state to prove a similar transaction by merely introducing a certified copy of a conviction without any independent evidence establishing the similarity between the other crime and the crime charged. Had Moore’s attorney objected to the state’s inadequate proof of the similar transaction, the trial court would have been obligated to exclude evidence of that prior robbery.

However, the erroneous admission of similar transaction evidence may be harmless if there is such overwhelming evidence of the defendant’s guilt that it is highly probable that the error did not contribute to the guilty verdict. In the instant case, there was such overwhelming evidence.

The state presented the testimony of the victim and several police officers. Their testimony established that the victim was working as a cashier in a convenience store when Moore and another man came into the store. The other man left while Moore got a can of Budweiser beer, set it on the counter, pointed a sawed-off shotgun at the victim and demanded money. The victim gave him money from the cash register, including a marked $2 bill. Moore then left the store, and the cashier immediately called the police. She described Moore to the police; she told them about a hat, sunglasses and a v-neck burgundy sweater that he was wearing, and about a tattoo that she had seen on his chest through his v-neck sweater.

An officer quickly arrived at the scene of the crime and saw the man who had been with Moore walking away from the area, and he saw Moore sitting in a nearby parked car. The officer stopped the man who was trying to walk away and ordered Moore not to leave. But Moore drove away from the scene.

Another officer stopped Moore a short time later. In the car, the police discovered a sawed-off shotgun, a hat, a burgundy v-neck sweater, sunglasses, an unopened can of Budweiser beer and money, including the marked $2 bill. Another officer later saw a tattoo on Moore’s chest similar to the tattoo described by the victim.

Soon after Moore was arrested, the victim positively identified him as the armed robber. She also identified him during the trial as the man who robbed her. In addition, the state introduced a surveillance videotape showing the armed robbery.

Given this overwhelming evidence of Moore’s guilt, there is no reasonable probability that the jury would have returned a different verdict if the certified copy of Moore’s prior conviction had not been allowed into evidence. We therefore conclude that even though Moore’s lawyer was deficient in not objecting to the admission of merely the copy of his conviction without any independent evidence of that purportedly similar crime, the deficiency did not prejudice Moore.

(b) Moore contends that his trial counsel was ineffective because he did not object when the prosecutor stated during his closing argument (1) that a witness who testified against Moore might be in danger and (2) that Moore had served only 14 years of a 20-year sentence for his prior armed robbery conviction. We agree with Moore that the prosecutor’s closing remarks were highly inappropriate and provided grounds for not only objections from the defense, but also a rebuke from the trial judge. Nevertheless, this case is not in a posture where we are simply reviewing errors by the prosecutor but is before us in the context of an ineffective assistance of counsel claim. As noted above, such a claim requires a showing of both error and prejudice to the defendant. After a review of the trial transcript, it is apparent that Moore cannot make both of these showings as to his attorney’s responses to the prosecutor’s improper closing remarks.

The transcript reveals that although Moore’s lawyer did not immediately object when the prosecutor inappropriately referred to the witness possibly being in danger, his lawyer did properly object to the impropriety after the prosecutor’s argument and moved for a mistrial on that basis. The court denied the motion but gave the jury a curative instruction regarding the prosecutor’s improper statements. Thus, contrary to Moore’s claim, his counsel was not deficient because he did in fact object to the prosecutor’s improper remarks, and he obtained a ruling from the court on his objection and motion for a mistrial. The lawyer’s decision about when to register his objection to the prosecutor’s highly improper comments was a tactical decision that does not amount to a deficient performance. Furthermore, there is no reasonable probability that the jury would have found Moore not guilty if his attorney had objected and moved for a mistrial during, instead of after, the prosecutor’s argument. Thus, counsel’s failure to object during the argument was not prejudicial to Moore.

Moore also claims that when the prosecutor said that Moore had served only 14 of 20 years for a prior conviction, his counsel should have objected on the ground that such a statement violated OCGA § 17-8-76. That Code section provides that an attorney in a criminal case shall not argue in front of the jury that a defendant, if convicted, may not suffer the full penalty imposed by the court because he might be granted a pardon, parole or clemency. Moore’s counsel was not deficient in failing to object on the basis of OCGA § 17-8-76, because the prosecutor did not actually argue to the jury that if Moore were convicted, he might not suffer the full penalty imposed by the court. Nevertheless, we note that the prosecutor’s statement was, again, highly improper. The fact that Moore had not served all of his prior 20-year sentence was completely immaterial to the issue to be decided by the jury, i.e., whether Moore committed the crimes charged. In spite of the prosecutor’s error, given the overwhelming evidence of Moore’s guilt we cannot find that it is highly probable the outcome of the trial would have been different without that error. Thus, Moore was not prejudiced by his attorney’s decision not to object to the prosecutor’s improper statement.

(c) Moore’s claim that his attorney was ineffective because he failed to call Moore’s daughter as a witness is without merit. At the motion for new trial hearing, the attorney testified that he believed he had spoken with the daughter before the trial, that all the witnesses Moore had wanted for the trial were in fact subpoenaed, and that he presented all the witnesses who he thought were needed for the defense.

The decision of which defense witnesses to call is a matter of trial strategy for the attorney and does not constitute ineffective assistance of counsel. Thus, Moore’s counsel was not deficient in deciding not to call Moore’s daughter as a witness.

Decided February 4, 2000.

Kathleen J. Anderson, for appellant.

Timothy G. Madison, District Attorney, Robin R. Riggs, Assistant District Attorney, for appellee.

Moreover, the daughter’s testimony at the motion for new trial hearing did not provide an alibi for Moore, but only established that she had seen him several hours before the crime. Given such testimony, there is no reasonable probability that the jury would have found Moore not guilty if she had testified at trial.*

2. A trial court’s finding that a defendant has received effective assistance of counsel must be upheld unless it is clearly erroneous. Because Moore has not carried his burden of showing affirmatively by the record both that his lawyer’s performance was deficient and that he was prejudiced by such deficiency, we must uphold the trial court’s denial of Moore’s motion for a new trial on the ground of ineffective assistance of counsel.

Judgment affirmed.

McMurray, P. J., and Phipps, J., concur.

        Gomillion v. State, 236 Ga. App. 14, 16 (3) (512 SE2d 640) (1999).

        Williams v. State, 261 Ga. 640, 642-643 (2) (409 SE2d 649) (1991).

       See Harris v. State, 216 Ga. App. 672, 673 (1) (455 SE2d 387) (1995); Little v. State, 202 Ga. App. 7, 8 (1) (413 SE2d 496) (1991).

        Howard v. State, 215 Ga. App. 342, 344 (2) (450 SE2d 824) (1994).

       See Bowdry v. State, 211 Ga. App. 626, 627 (440 SE2d 59) (1994).

       Compare Hines v. State, 267 Ga. 92 (2) (475 SE2d 610) (1996) (defendant precluded from a review of prosecutor’s improper closing argument because he failed to object either during or after the argument).

       See Anderson v. State, 206 Ga. App. 354, 355-356 (2) (426 SE2d 6) (1992).

       See Polk v. State, 225 Ga. App. 257, 258 (1) (b) (483 SE2d 687) (1997); Mency v. State, 228 Ga. App. 640, 648 (2) (i) (492 SE2d 692) (1997).

       OCGA § 17-8-76 (a).

        Rutledge v. State, 237 Ga. App. 390, 392 (2) (515 SE2d 1) (1999); McCant v. State, 234 Ga. App. 433, 436 (3) (506 SE2d 917) (1998).

       See id. at 436-437 (3).

        Samples v. State, 234 Ga. App. 8, 10 (1) (b) (505 SE2d 813) (1998).

       See id. at 11.


text:
    A00A0405.
    CARLISLE v. THE STATE.
    (529 SE2d 385)
   McMurray, Presiding Judge.

Following a pretrial hearing in which the superior court accepted defendant’s plea of nolo contendere to Count 2, the offense of possession of marijuana, of a two-count accusation, a jury convicted defendant of Count 1, possession of cocaine. The superior court denied her motion for new trial, as amended. Defendant now appeals, contending that: (a) the evidence was insufficient to support her conviction of possession of cocaine; and (b) the superior court erred in admitting hearsay in evidence by allowing the investigating officers in the case sub judice to testify that they initiated their investigation on the basis of an anonymous tip alleging drug activity in defendant’s home. Held:

1. We first consider the sufficiency of the evidence to support defendant’s conviction of possession of cocaine.

The evidence shows that Investigators J. D. Parish and D. A. Borgen went to defendant’s residence to investigate an anonymous complaint of drug activity therein. After the investigators identified themselves, defendant consented to a search of the premises for narcotics, telling Investigators Parish and Borgen, “I have nothing to hide, go ahead.” While Investigator Borgen watched defendant’s teenage daughter in the living room, Investigator Parish and the defendant proceeded to defendant’s bedroom. Once there, defendant walked to a position in front of her nightstand as Investigator Parish began his search with an ashtray located on a dresser on the opposite side of the room. Therein, Investigator Parish found the residue of a marijuana cigarette in plain view. Defendant acknowledged knowing the marijuana cigarette was in the ashtray when Investigator Parish asked what it was by exclaiming, “Oh no, I forgot that was there.” As she did so, Investigator Parish noticed she appeared to fidget and fumble in front of the nightstand from which she had not moved since coming into the room. When the defendant bent down to pick up a pair of pants, Investigator Parish also noticed a pack of rolling papers on the nightstand. Investigator Parish went to the nightstand, picked up the rolling papers, and found a plastic baggy containing a substance later determined to be cocaine. At trial, Investigator Parish pertinently testified that defendant’s bedroom and nightstand had been neat during his search thereof. The defendant denied any knowledge of the cocaine found in her bedroom. Further, while she testified that her daughter did not “frequent” her bedroom, she stated that a distant cousin whom she described as an “obnoxious, mean, evil man,” had been in her bedroom the evening it was searched. On cross-examination, she charged that her cousin left the cocaine in her bedroom because he was upset that she “put him out” when he had earlier been a house guest.

Although “[t]he head of household presumption of possession of contraband found therein is no longer a viable presumption in this state[,]” Ramsay v. State, 175 Ga. App. 97, 100 (7) (332 SE2d 390), there was circumstantial evidence upon which the jury might reasonably have concluded that the defendant was in sole constructive possession of the cocaine found on her nightstand. See Anderson v. State, 166 Ga. App. 459, 460 (3) (304 SE2d 550) (sole constructive possession of a thing obtains when, though not having actual possession thereof, one has power and intention at a given time to exercise dominion and control over it). In particular, there was evidence from which the jury could have reasonably inferred that defendant had cleaned up her bedroom, hidden the cocaine but forgotten to hide the residue of a marijuana cigarette, and nervously persisted in hiding the cocaine as her bedroom was searched. The jury was properly charged on burden of proof, reasonable doubt, parties to a crime, possession (sole and joint, actual and constructive), and equal access. Under these circumstances, the evidence was sufficient to connect the defendant to the possession of the cocaine though the evidence would have authorized the jury to find that others had equal access to it. Ramsay v. State, 175 Ga. App. at 99-100 (7), supra. With respect to the defense of equal access,

[i]t is general law in this state that “[mjerely finding contraband on premises occupied by defendant is not sufficient to support a conviction if it affirmatively appears from the evidence that persons other than the defendant had equal opportunity to commit the crime. [Cit.] Presence at the scene of a crime and nothing more will not support a conviction. [Cit.]” Blankenship v. State, 135 Ga. App. 482, 483 (218 SE2d 157). Whether the evidence of equal access is sufficient to rebut any inference of possession arising from discovery of drugs in the defendant’s bedroom, and other places of the house, is a question properly left to the jury. Gumina v. State, 166 Ga. App. 592, 593 (305 SE2d 37).

Id. at 99 (7). We conclude that the evidence viewed in the light most favorable to the verdict was sufficient to authorize a rational trier of fact to find the defendant guilty beyond a reasonable doubt of the offense of possession of cocaine. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Ramsay v. State, 175 Ga. App. at 99-100 (7), supra.

2. As to defendant’s remaining claim of error, we conclude that the trial court erred in admitting the testimony of Investigators Parish and Borgen explaining that they had gone to defendant’s home to investigate an anonymous complaint of drug activity.

[U]nless it is the rare instance in which the conduct of an investigating officer is a matter concerning which the truth must be found, it is error to permit an investigating officer to testify, under the guise of explaining the officer’s conduct, to what other persons related to the officer [did] during the investigation. Render v. State, 267 Ga. 848 (2) (483 SE2d 570) (1997); Cowards v. State, 266 Ga. 191 (3) (a) (465 SE2d 677) (1996); Morris v. State, 264 Ga. 823 (2) (452 SE2d 100) (1995); Nelson v. State, 262 Ga. 763 (3) (426 SE2d 357) (1993); Howard v. State, 262 Ga. 78 (5) (414 SE2d 198) (1992). The case before us is not one of the “rare instances” where the conduct of the investigating officer was a relevant issue. Compare Greene v. State, 266 Ga. 439 (25) (469 SE2d 129) (1996). Nor does police conduct become an issue in need of explanation by means of hearsay testimony in a case where an appellate court suggests that the jury may find police behavior so inexplicable as to cast doubt on the prosecution (Ross v. State, 210 Ga. App. 455 (1) (436 SE2d 496) (1993)), or where a confidential informant has provided information which initiates an investigation. Copeland v. State, 228 Ga. App. 734 (2) (492 SE2d 723) (1997).

Decided February 4,2000.

Stepp & Randazzo, Glynn R. Stepp, for appellant.

Daniel J. Porter, District Attorney, Donald P. Geary, Assistant District Attorney, for appellee.

(Footnote omitted.) Weems v. State, 269 Ga. 577-579 (2) (501 SE2d 806). While it was error to admit the investigators’ testimony regarding the anonymous complaint which brought them to defendant’s residence, such error may be deemed harmless for improbable impact on the verdict in view of defendant’s consent to the investigators’ search, direct evidence of defendant’s possession of marijuana, and strong Circumstantial evidence showing she was in possession of cocaine.

Judgment affirmed.

Johnson, C. J, and Phipps, J., concur.