author: ELLINGTON, Presiding Judge.

text:
    A13A2496.
    In the Interest of D. P., a child.
    (756 SE2d 207)
   ELLINGTON, Presiding Judge.

The mother of four-year-old D. P. appeals from an order of the Juvenile Court of Coweta County that terminated her parental rights. She contends that there was insufficient clear and convincing evidence to support the court’s conclusions that termination of her parental rights was authorized by her failure to complete certain requirements while her son was in foster care, that her son’s deprivation is likely to continue, and that he will suffer serious harm unless her parental rights are terminated. For the following reasons, we agree with these contentions and, as a result, reverse the juvenile court’s termination order.

Before terminating a parent’s rights, a juvenile court must employ a two-prong test. In the first prong, the court must decide whether there is present clear and convincing evidence of parental misconduct or inability. [Former] OCGA § 15-11-94 (a).[] Parental misconduct or inability, in turn, is proven by evidence showing: (1) that the child is deprived; (2) that lack of proper parental care or control is the cause of deprivation[] (3) that the cause of deprivation is likely to continue or will not likely be remedied; and (4) that continued deprivation is likely to cause serious physical, mental, emotional, or moral harm to the child. [Former] OCGA § 15-11-94 (b) (4) (A). In the second prong of the termination test, the juvenile court must consider whether termination of parental rights would be in the best interest of the child[, after considering the child’s physical, mental, emotional, and moral condition and needs, including the need for a secure, stable home. [Former] OCGA § 15-11-94 (a).]

(Citation and punctuation omitted.) In the Interest of C. J. V., 323 Ga. App. 283, 283-284 (746 SE2d 783) (2013).

In reviewing a juvenile court’s decision to terminate parental rights, we view the evidence in the light most favorable to the juvenile court’s disposition and determine whether any rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights to custody should be terminated. In so doing, we do not weigh the evidence or determine the credibility of witnesses; rather, we defer to the juvenile court’s factfinding and affirm unless the appellate standard is not met.

(Footnotes omitted.) In the Interest of T. L., 279 Ga. App. 7, 10 (630 SE2d 154) (2006).

Even so, in conducting our review, we must proceed

with the knowledge that there is no judicial determination which has more drastic significance than that of permanently severing a natural parent-child relationship. It must be scrutinized deliberately and exercised most cautiously. The right to raise one’s children is a fiercely guarded right in our society and law, and a right that should be infringed upon only under the most compelling circumstances.

(Citations and punctuation omitted.) In the Interest of C. J. V., 323 Ga. App. at 283. In fact, historically, this Court has made it clear

that a parent’s rights to his or her child will not be terminated without some required showing of parental unfitness, caused either by intentional or unintentional misconduct resulting in abuse or neglect of the child, or be what is tantamount to physical or mental incapability to care for the child.

(Citations and punctuation omitted.) In the Interest of H. L. T., 164 Ga. App. 517, 518 (298 SE2d 33) (1982).

Viewed in favor of the juvenile court’s judgment, the record shows the following relevant facts. In December 2010, when D. P. was about 17 months old, his 21-year-old mother contacted the Coweta County office of the Georgia Department of Human Services, Division of Family and Children Services (“the Department”) and asked for help because she was unemployed and homeless and had been unable to find a shelter that would accept both her and her son. A Department caseworker arranged for the mother and D. P. to stay in a relative’s home, but, five days later, the relative contacted the caseworker and notified her that the arrangement had to end because the child cried too much. Unable to find another relative placement for the mother and child, the Department placed D. P. in foster care. The Department created a reunification plan for the mother that required her to maintain stable employment for at least six months, to maintain safe, clean, and stable housing for at least six months, and to participate in in-home counseling and parenting skills training.

According to the Department’s June 2011 report on the mother’s progress on her reunification plan, the mother “has been searching for employment and is in school.” Similarly, in a November 2011 report, the citizen’s review panel noted that the mother “is a full-time student [and] doing very well. She has been diligently looking for a job.”

Further, in a November 2011 report, the Coweta County Court Appointed Special Advocate (“CASA”) volunteer stated that the mother

is a loving mother who is young (22 years old) and trying to make a success of her life with little family or community support. [The mother] voluntarily brought her child into foster care. There was NO abuse, NO neglect, and NO drug use that required [the Department] to take this child for protection.

(Emphasis in original.) The report also noted that the mother had expressed that “she feels depressed and misses her son,” but had not yet received a referral from the Department for in-home counseling. Moreover, according to the CASA volunteer, some of the mother’s failure to complete her case plan goals

can be attributed to her lack of skills to procure a job [,] and[,] without a job[,] she is unable to obtain and maintain safe housing for herself and her child. [The mother] has applied to numerous jobs but has not been offered employment. [The mother] is working to change her life. She is currently a full time student with perfect attendance and an overall [grade point average] of 3.5. [Further, the mother] has maintained communication with her son throughout. She has been available for every parent-child visit and has provided food and items to the best of her ability.

(Emphasis in original.)

In fact, it is undisputed that, while working with the Department on her reunification plan, the mother completed a full-time, eight-month program to become a certified medical assistant. She was unahle to become certified, however, because she could not pay the separate $400 fee for the certification test or pay for transportation to the testing site.

Despite the mother’s documented progress on her reunification plan goals in the eight months after D. P. entered foster care, including her enrollment in the full-time job training program, the Department announced its intention to file a petition to terminate the mother’s parental rights in August 2011. However, after the citizen review panel disagreed with the Department’s termination recommendation, the juvenile court ordered that it would not consider a termination petition before February 2012, when the panel was scheduled to reevaluate the mother’s situation and progress.

In a May 2012 report, the citizen review panel noted that, although the mother had no job or permanent housing, she was still “on track with school,” the “visitations and parenting classes [were] both going well,” and, in individual therapy, the mother was working on “coping skills” and the sessions were “going well so far.” The panel recommended that the Department continue to provide therapy and other reunification services for the mother.

Then, in November 2012, the juvenile court issued an order discontinuing the mother’s visitation with D. P. and the Department’s reunification efforts. A month later, in December 2012, the CASA volunteer reported that D. P. “speaks often about Momma_[] and how he wants to go and see her. There is a strong bond between Mother and child. Therapy may be needed to help [D. P] adjust to no longer visiting with his mother.”

Ultimately, in February 2013, after D. P. had been in foster care for two years, the Department filed a petition to terminate the mother’s parental rights. During the April 2013 termination hearing, the Department presented the testimony of two of its caseworkers, a parent aide, and the CASA volunteer. In contrast to the reports cited above, the witnesses testified that, in their opinions, the mother had demonstrated a lack of motivation and had failed to make sufficient progress on most of her case plan goals, despite their efforts to assist her. Specifically, the Department showed that the mother had failed to obtain and maintain a full-time, permanent job, although she had sporadically earned money by babysitting, house cleaning, and hair styling, had worked for a few months in a temporary retail position, and had been a full-time student for eight months. She had also failed to secure adequate housing, despite having been encouraged to apply for public subsidized housing. Instead, the mother had stayed with friends or relatives while D. P. was in foster care.

Further, the witnesses testified that the Department had provided the mother with a counselor to assist her in coping with her depression and stress, dealing with her separation from D. P., and reducing her isolation from family and community resources. A caseworker testified, however, that the Department cancelled the service after several months because the mother had refused to work with the counselor. The Department also provided the mother with a parent aide to supervise her visitations with D. P. and to help her improve her parenting skills. According to the parent aide, the mother sometimes had difficulty controlling D. P.’s behavior during visitations, but otherwise exhibited appropriate parenting techniques.

In addition to this evidence, the Department showed that the mother had been incarcerated twice while D. P. was in foster care. She was incarcerated from August to October 2012 based upon a July 2011 charge for shoplifting at WalMart. She was also incarcerated for a month in early 2013 for failing to pay the Department child support for D. P. while he was in foster care.

1. The mother contends that there was insufficient clear and convincing evidence to support the juvenile court’s conclusion that, pursuant to former OCGA § 15-11-94 (b) (4) (C), termination of her parental rights was authorized based upon its findings that she failed to comply with the following requirements for at least one year: (a) complete her reunification case plan goals of obtaining and maintaining employment and housing, (b) maintain a parental bond with her son, and (c) pay child support.

(a) The mother contends that there was insufficient clear and convincing evidence to support a finding that she has, without justifiable cause, failed to complete her plan goal of obtaining stable employment and housing.

As shown above, while it is undisputed that the mother failed to obtain permanent, full-time employment while D. P. was in foster care, it is also undisputed that she applied for numerous jobs without success, worked in at least one temporary job, and earned money cleaning houses and doing other small jobs. In addition, she was eventually hired for a full-time job with a company about ten minutes from her home, to begin three days after the termination hearing. She also testified, without contradiction, that this job would eventually pay enough for her to find stable housing and to support both her and D. P. Significantly, throughout the time D. P. was in foster care, the mother had to cope with a major financial recession, as well as her inability to secure stable housing and the lack of reliable transportation. Moreover, it is possible that her efforts to get a full-time job and obtain some financial stability were further hindered by her participation in the eight-month, full-time job training program, as well as her incarceration for two to three months. The juvenile court’s ruling, however, fails to address whether the mother’s failure to secure permanent full-time employment was “without justifiable cause,” as required by former OCGA § 15-11-94 (b) (4) (C).

The same is true with the issue of the mother’s failure to obtain stable housing. It is undisputed that Coweta County’s subsidized housing program had a waiting list and that applicants could wait from 18 months to two years for available housing. The mother testified that she had been on that waiting list for at least a year; in addition, she had applied for government housing in two other jurisdictions. She also testified that her lack of stable employment and reliable transportation hindered her ability to obtain stable housing.

Given this evidence,

it appears that this is a case where the primary reason the mother’s rights were terminated was due to economic inability to provide for [D. R], and that her shortcomings in failing to comply with the two major components of her case plan stem largely from her relative poverty. However, it is well established that poverty alone is not a basis for termination. Similarly, we have held that the fact that a mother is unemployed, without prospects for future employment, and without any stable living arrangements is not sufficient to terminate parental rights. Moreover, in this case there is no evidence of a verifiable mental or physical condition that indicates the mother is incapable of caring for [D. P.]. And the juvenile court appears to have totally discounted the fact that[,] despite the hurdles facing the mother in her bleak economic environment, she managed to find a job which [will give] her enough income to pay her rent and [financially support her child]. Accordingly, this is not a case where the “evidence” consisted of merely “positive promises” from the parent that she would change and rectify past failures so as to avoid termination of her parental rights, and the juvenile court appears to have prematurely discounted the mother’s progress toward meeting her [reunification plan] goals.

(Citations and punctuation omitted.) In the Interest of C. J. V., 323 Ga. App. at 286-287. See also In the Interest of K. J., 226 Ga. App. 303, 305 (1) (486 SE2d 899) (1997); see generally In the Interest of E. M., 264 Ga. App. 277, 281 (590 SE2d 241) (2003) (This Court reversed the termination of the father’s parental rights, ruling that, “[although the father’s inability to secure stable housing and employment regrettably serves neither his nor his child’s best interests, it in no way constitutes intentional or unintentional misconduct resulting in abuse or neglect of the child.”).

Thus, we conclude that there was insufficient clear and convincing evidence to support a finding that the mother has, without justifiable cause, failed to complete her reunification plan goals of obtaining stable employment and housing. As a result, the court was not authorized to terminate the mother’s parental rights on that basis.

(b) We also agree with the mother’s contention that there was insufficient clear and convincing evidence to support the juvenile court’s findings that she failed to maintain a close parental bond with D. P. in a meaningful and supportive manner and that, instead, the child’s behavior “regressed” during visitations with her.

The hearing transcript shows that one of the Department’s caseworkers testified that D. P. “loved his mother,” called her “Mama _,” and talked about her, and that there “obviously was a bond” between him and his mother. Further, the parent aide testified that, when she started working with the mother and D. P. in March 2011, they were “very close” and had one of the strongest bonds she had ever observed, so much so that D. P. would kick and scream when he had to leave his mother after visits. After spending several months in foster care, however, D. P. began exhibiting angry and/or aggressive behavior during visits with his mother. The parent aide admitted that D. P. may have behaved like that because he was angry about being separated from his mother, with whom he had a strong bond. Further, it is undisputed that D. P. exhibited similar aggressive behavior when he was at day care, causing him to get “kicked out” of two day care centers.

As to whether D. P.’s behavior “regressed” during visitations, the only evidence on this issue was the opinion testimony of a parent aide and a Department caseworker, neither of whom were experts in child behavior. In fact, the caseworker reached her conclusion about D. P.’s “regression” after observing a single visitation session, during which three-year-old D. P. acted “aggressively” toward his mother, threw things, and engaged in “baby talk.” The Department presented no expert witness testimony, however, that the child’s behavior was anything other than what would be expected for a very young child during a brief, periodic visit with his mother, with whom he had a strong bond. And, significantly, the evidence did not demonstrate a clear causal link between the mother’s presence and the child’s aggressive behavior, as it is undisputed that D. P. exhibited similar aggressive behavior while attending day care.

Finally, the parent aide testified that the mother generally exhibited appropriate parenting techniques, but she needed to continue to work on her methods of disciplining the child, while the caseworker testified that, in dealing with D. P.’s behavior, the mother tried to implement the techniques she had learned during her parenting sessions.

We find that there was insufficient clear and convincing evidence to support a conclusion that the mother failed, without justifiable cause, to maintain a parental bond with D. P. As a result, the juvenile court was not authorized to terminate the mother’s parental rights on this basis. See In the Interest of C. S., 319 Ga. App. 138, 146 (1) (735 SE2d 140) (2012) (The juvenile court erred in concluding that the father had failed to maintain a bond with his children when every witness who testified concerning the appellant’s relationship with his children showed that he had maintained regular, scheduled visitation with his children and that, except for some indication he needed to be more of a father figure to his children instead of a friend, all of his interactions with his children were positive and appropriate.); In the Interest of M. T. F., 318 Ga. App. 135, 146-147 (1) (a) (733 SE2d 432) (2012) (The juvenile court erred in concluding that the mother failed to develop and maintain a parental bond with her child before the filing of the termination petition. Indeed, the evidence showed that the mother had always appeared ready for visitations, she appeared loving and caring toward her child, and he recognized her as his mother.).

(c) We also find that the juvenile court erred to the extent that it concluded that termination of the mother’s rights was authorized by her failure to pay child support for D. P., pursuant to former OCGA § 15-11-94 (b) (4) (C) (ii). While the undisputed evidence supports the court’s finding that the mother failed to pay child support while D. P. was in foster care, the juvenile court did not address whether that failure was “without justifiable cause,” as required by the statute in order to authorize the termination of the mother’s rights.

On that issue, the record shows that there was nothing in the numerous reunification plans, progress reports, and court orders that notified the mother of her obligation to pay the Department child support for its care of D. P, let alone any notice of how much she must pay, when, and to whom. In fact, the first time the mother’s obligation to pay child support for D. P. was mentioned in a document that was either signed by or served to the mother was in a September 2012 case plan report. That notice gave general information and did not state the amount the mother was expected to pay or when. And, despite the fact that there was no outstanding warrant for her failure to pay child support as of November 7, 2012, the mother was incarcerated for failure to pay child support about three months later, at which time she was allegedly about $2,000 in arrears. Finally, although the mother’s month-long incarceration began on February 14, 2013, the Department did not mention her failure to pay child support or her resulting incarceration as a basis for terminating her parental rights in its termination petition, which it filed the next day.

Accordingly, we conclude that there was insufficient clear and convincing evidence in the record to support a finding that the mother’s failure to pay child support was without justifiable cause, as required by former OCGA § 15-11-94 (b) (4) (C) (ii). It follows that such failure did not authorize the termination of her parental rights.

2. We also agree with the mother’s contention that there was insufficient clear and convincing evidence to support the juvenile court’s conclusion that D. P.’s deprivation is likely to continue if her rights are not terminated.

“As we have stated, termination of parental rights is a remedy of last resort and can be sustained only when there is clear and convincing evidence that the cause of the deprivation is likely to continue.” (Citations and punctuation omitted.) In the Interest of C. J. V., 323 Ga. App. at 287.

Although it is well settled that a juvenile court may consider the past conduct of the parent in determining whether the conditions of deprivation are likely to continue, it is equally true that evidence of past unfitness, standing alone, is insufficient to terminate the rights of a parent in her natural child; clear and convincing evidence of present unfitness is required.

(Citation and punctuation omitted; emphasis in original.) Id. at 285-286. See also In the Interest of K. J., 226 Ga. App. at 304 (1) (accord).

After carefully considering the evidence outlined above, we find that it shows that the mother has made some progress on her case plan, that she has maintained a strong bond with her child, and that her failure to complete all of the required tasks was not entirely due to circumstances within her control. See In the Interest of A. F., 283 Ga. App. 509, 516 (642 SE2d 148) (2007) (noting that the parents had made significant progress on their case plans and that “their inability to dot every ‘i’ and cross every ‘t’ [of their plans] cannot be placed entirely on their own shoulders.”). A parent’s failure “to live up to societal norms for productivity, morality, cleanliness and responsibility does not summarily rob [him or her] of the right to raise [his or her] own offspring, nor does it end the [child’s] right to be raised by [his or her] own parent[ ].” (Punctuation and footnote omitted.) Id.

Therefore, we conclude that there was insufficient clear and convincing evidence at the time of the termination hearing to support the juvenile court’s finding that D. P.’s deprivation is likely to continue. See In the Interest of C. G., 324 Ga. App. 110, 115-117 (749 SE2d 411) (2013); In the Interest of A. F., 283 Ga. App. at 516; In the Interest of K. J., 226 Ga. App. at 305-306 (1); see also In the Interest of C. J. V., 323 Ga. App. at 284-286 (The evidence showed, inter alia, that, despite recent economic downturns in the area, the mother had found a job and worked for three to four months before being laid off, but had been assured by her employer that she would be called back to work. The juvenile court concluded that, because the mother might be unemployed long enough to lose the apartment she had been renting, her children’s deprivation was likely to continue. This Court reversed, finding that this conclusion was based upon mere speculation that was unsupported by clear and convincing evidence.).

3. Finally, the mother contends that there was insufficient clear and convincing evidence to support the court’s findings that her son needs “permanency” in his life and that, if her rights are not terminated, the lack of such permanency is likely to cause her son to experience serious physical, mental, emotional, or moral harm. She also argues that the court erred in failing to make any express findings of fact to support its summary conclusion on this issue. We agree with both contentions.

(a) Regarding the lack of findings of fact to support the court’s legal conclusion, this Court has previously ruled as follows:

[A] n order terminating parental rights must contain explicit findings supporting the conclusions that by reason of the deprivation the child is suffering or will probably suffer serious physical, mental, moral, or emotional harm. A dry recitation that certain legal requirements have been met is insufficient to satisfy the requirements of the law. The trial judge is to ascertain the facts and to state not only the end result of that inquiry but the process by which it was reached. Although the order in this case recited that continued deprivation would likely cause serious physical, mental, emotional, or moral harm to the child, it did not set forth any facts which would support this conclusion.

(Citations and punctuation omitted.) In the Interest of K. J., 226 Ga. App. at 307-308 (2) (b).

Accordingly, even pretermitting whether there was sufficient evidence to support the court’s order, its failure to state specific findings of fact to support its conclusion that D. P. would suffer serious harm unless the mother’s rights were terminated requires that we reverse the termination order. In the Interest of K. J., 226 Ga. App. at 307-308 (2) (b).

(b) We also conclude that there was insufficient clear and convincing evidence to support the court’s finding that, if the mother’s rights are not terminated, the lack of “permanency” in D. P.’s life is likely to cause him serious harm.

First, there was no evidence that the mother’s financial problems caused any actual harm to D. P, that she physically, mentally, or emotionally abused D. P. or intentionally neglected him, or that she ever exposed him to such abuse, domestic violence, or other inappropriate behavior. Likewise, there was no evidence that the mother is unfit, abuses drugs or alcohol, or is suffering from a mental illness that would render her incapable of caring for D. P. if she had the financial resources to do so, nor was there any evidence that D. P. had any special needs that might make such care more difficult.

In fact, both caseworkers who had worked with the mother admitted that the only reasons the Department removed D. P. from the mother’s custody in December 2010 were that the mother was unemployed, had no other source of income, and lacked adequate housing for her and D. P. One of the caseworkers even admitted that this case “basically boils down” to the mother’s lack of financial resources.

As this Court has previously held, “[t]he mother’s inability to care for her child[ ] does not necessarily mean that her current relationship with [the child] is detrimental.” (Citations and punctuation omitted.) In the Interest of A. T., 271 Ga. App. 470, 473 (610 SE2d 121) (2005). See also In the Interest of J. S. B., 277 Ga. App. 660, 663 (2) (d) (627 SE2d 402) (2006) (accord).

Second, regarding the court’s conclusion that the child would be seriously harmed by the lack of “permanency” if the mother’s rights were not terminated, there was

no expert testimony with regard to the effect on [D. P] if the mother’s parental rights were not terminated; there is no testimony that [D. P.’s] relationship with [his] mother was harmful; and there is no testimony that the [child is] currently suffering due to [his] placement in foster care or that[,] without a permanent placement[, he] would suffer serious harm. We note that the Department presented no identifiable prospects for adoption, and the current foster parents do not want to adopt [D. P]. It appears to us that the Department wishes to terminate [D. P.’s] existing relationship with [his] mother, which they cannot show is likely to cause serious harm, in return for the possibility that [he] will be placed in an as yet unidentified permanent home.

Decided March 11, 2014.

Azadeh Golshan, for appellant.

Samuel S. Olens, Attorney General, Shalen S. Nelson, Senior Assistant Attorney General, Linda B. Taylor, for appellee.

(Citation and punctuation omitted.) In the Interest of A. T., 271 Ga. App. at 474. See also In the Interest of D. F., 251 Ga. App. 859, 862 (555 SE2d 225) (2001) (accord); In the Interest of J. M., 251 Ga. App. 380, 383 (4) (554 SE2d 533) (2001) (accord); In the Interest of K. J., 226 Ga. App. at 308 (2) (b) (accord).

“Only under compelling circumstances found to exist by clear and convincing proof may a court sever the parent-child custodial relationship.” (Citation and punctuation omitted.) In the Interest of A. T., 271 Ga. App. at 475. “Where the evidence shows that. . . the mother and [her child] are bonded and emotionally close (as here), the lack of specific evidence regarding potential harm mandates reversal even more strongly.” (Citations omitted.) Id. at 474. Moreover, “[a] court is not allowed to terminate a parent’s natural right because it has determined that the child might have better financial, educational, or even moral advantages elsewhere.” (Citation and punctuation omitted.) In the Interest of C. S., 319 Ga. App. at 146 (1).

Accordingly, given the absence of sufficient clear and convincing evidence on this issue, the juvenile court’s ruling constitutes reversible error. See In the Interest of A. T., 271 Ga. App. at 475; see also In the Interest of J. S. B., 277 Ga. App. at 663-664 (2) (d) (Although the Department caseworker testified that “the mother’s past history of arrests, mental health issues, and inability to maintain employment created an unsafe and unstable environment” for her children, no expert or lay witness testified that the mother’s antisocial personality disorder or learning disability would be detrimental to the children, nor did any witness testify that impermanency and instability were causing specific harms to the children. Consequently, this Court concluded that there was insufficient clear and convincing evidence that the children would be seriously harmed unless the mother’s parental rights were terminated.).

Judgment reversed.

Phipps, C. J., and Branch, J., concur.

       This Court granted the mother’s application for discretionary review, Case No. A13D0395. See OCGA § 5-6-35 (a) (12) (2013).

       In 2013, the General Assembly adopted a new Juvenile Code to replace Chapter 11 of Title 15 of the Georgia Code. Ga. L. 2013, p. 294, § 1-1. The new Juvenile Code became effective on January 1, 2014, and applies to all juvenile proceedings commenced on and after such date. Ga. L. 2013, p. 294, § 5-1.

       Subsections (b) (4) (B) and (b) (4) (C) of former OCGA § 15-11-94 set out several factors that a juvenile court may consider in deciding whether the child is without proper parental care and control.

       The CASA volunteer attached a letter from the mother that, according to the report, “shows her concern and caring for her son’s well being now and in the future.”

       In addition, the mother incurred at least $7,400 in student loans to pay for the medical assisting program.

       The mother’s first name has been omitted for privacy reasons.

       According to the mother, the anxiety and depression she was experiencing arose from her financial problems, her inability to find a job or housing, and her separation from her son. She testified that she did not refuse counseling, but had told the counselor that she did not believe the counseling sessions were helping, because they did not address those core issues and, until those problems were resolved, she would continue to feel stressed and anxious.

       Under former OCGA § 15-11-94 (b) (4) (C), in determining whether the child is without proper parental care and control when the child is not in the custody of the parent who is the subject of the proceedings,
      the court shall consider, without being limited to, whether the parent without justifiable cause has failed significantly for a period of one year or longer prior to the filing of the petition for termination of parental rights: (i) To develop and maintain a parental bond with the child in a meaningful, supportive manner; (ii) To provide for the care and support of the child as required by law or judicial decree; and (iii) To comply with a court ordered plan designed to reunite the child with the parent or parents [.]

       There is no evidence that Coweta County has a public transportation system, and the mother testified that she does not have a driver’s license or money to pay for gas or a cab.

       See generally In the Interest of T Z. L., 325 Ga. App. 84, 93 (1) (a) (751 SE2d 854) (2013) (The father’s inability to complete reunification plan goals of obtaining employment and housing and completing an assessment for drug abuse was due to his incarceration for a theft conviction and, therefore, did not support termination of his rights under former OCGA § 15-11-94 (b) (4) (C) (iii).).

       In fact, as noted by the CASA volunteer in her November 2011 report to the juvenile court, D. P.’s preschool teacher reported that he could be “aggressive in class[,] often hitting, screaming and running around the classroom, though she noted that these were typical two year old behaviors.” (Emphasis supplied.)

       But see In the Interest of R. W., 248 Ga. App. 522, 526 (2) (546 SE2d 882) (2001) (“A parent . . . has a statutory duty to support her children, with or without a court order. OCGA § 19-7-2.”).

       The report stated as follows: “Please note that [the Department] expects you to pay child support while your child is in state custody. Failure to pay child support is a ground for termination of your parental rights.” (Emphasis omitted.)


source: Caselaw Access Project

author: Miller, Judge.

license: Public Domain

text:
    A13A1658.
    SCOTT v. THE STATE.
    (756 SE2d 220)
   Miller, Judge.

Following a jury trial, Michael Scott was convicted of trafficking cocaine (OCGA § 16-13-31 (a) (1)) (Count 1); possession of cocaine with intent to distribute (OCGA § 16-13-30 (b)) (Count 2); possession of marijuana with intent to distribute (OCGA § 16-13-30 (j)) (Count 3); maintaining a dwelling or structure for the distribution of controlled substances (OCGA § 16-13-42 (a) (5)) (Count 4); and three counts of possession of a firearm during the commission of a crime (OCGA § 16-11-106 (b) (4)) (Counts 5, 6, and 7). Scott appeals from the denial of his motion for new trial, contending that the evidence was insufficient to sustain his convictions on any of the charges, the trial court erred by not granting a directed verdict, the trial court erred in allowing a witness to testify as an expert, and he received ineffective assistance of counsel. For the reasons that follow, we reverse.

On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to support the verdict, and the defendant no longer enjoys a presumption of innocence. We determine only whether the evidence authorized the jury to find the defendant guilty beyond a reasonable doubt, and in doing so we neither weigh that evidence nor judge the credibility of the witnesses.

(Citations and punctuation omitted.) Castillo v. State, 288 Ga. App. 828 (655 SE2d 695) (2007).

So viewed, the trial evidence shows that Anthony Holloway had known Michael Scott and his brother, Kenneth Scott, for at least 16 years through the neighborhood surrounding 307 East Jenkins Street in Vi dalia, Georgia. Michael Scott lived at 307 Martin Luther King Jr. Boulevard, in a house behind his brother. Kenneth Scott also rented the property at 307 East Jenkins from an individual who testified that he was unaware of the drug activity at the house. Co-defendant Lane lived next door, and an electrical cord was run from Lane’s residence to 307 East Jenkins to provide power.

Holloway had been going to 307 East Jenkins for a couple of years and had been inside the house. While there, Holloway observed the sale of drugs. When people would drive up to the house to buy drugs, they would blow the horn, and Kenneth Scott would tell someone to “hit a block.” On some occasions, Holloway heard Kenneth Scott tell people that he did not have any drugs. Acouple of days later, Kenneth Scott would have more drugs, and he would tell people that he had “re’d up.” According to Holloway, co-defendant Anderson would be at the house for a couple of weeks, and, when he would leave, Kenneth Scott would run out of drugs. When Anderson returned, people would return to the house to buy drugs. Holloway witnessed over 100 drug transactions take place at 307 East Jenkins Street.

In 2009, the Vidalia Police Department began receiving tips about suspected drug activity around 307 East Jenkins Street. Upon investigating those tips, an undercover police officer made a hand-to-hand purchase of drugs at 307 East Jenkins Street in June or July. Thereafter, police officers used a confidential informant to make a controlled drug buy of three packages of crack cocaine. Police officers then obtained a search warrant for 307 East Jenkins Street.

On September 25, 2009, several police officers executed the search warrant. About ten minutes prior to the execution of the warrant, one officer, who was on patrol in the area, drove by 307 East Jenkins and observed Michael Scott and the three other co-defendants standing outside in the front yard. The officer later returned to 307 East Jenkins with the search team, and Michael Scott was walking along the side of the house at that time. Officers detained Michael Scott during a search of the house. Officers also detained Anderson, who had been sitting on the front porch, and Holloway, who had been standing near Michael Scott. An officer subsequently searched Michael Scott prior to placing him in a patrol car, and the officer found approximately $254 in cash on Scott’s person. The cash was in small denominations, with no bill larger than $20.

Upon entering 307 East Jenkins, officers saw several packages of crack cocaine, packaged as if for resale, and slung in a straight line from the front door, where Anderson had been seated, to a small table in the middle of the room. During a search of the residence, officers found: 37 individually wrapped packages of powder cocaine; another large chunk of cocaine of powdery substance in a Ziploc bag inside a box in the corner of the front room; three cigar boxes containing individual packages of marijuana and another individual package of cocaine; money scattered on the floor; digital scales; and cutting tools. Officers also found a large slab of crack cocaine weighing approximately 72 grams. Officers also found three loaded guns in the front room of the house that were strategically placed such that if a person was standing in the middle of the room, he could easily access any one of the three guns. Officers also recovered personal items belonging to Kenneth Scott and Anderson from inside the residence.

A detective testified that the slab of cocaine weighing 72 grams would be cut down and packed for individual sale, and that it had an estimated value of $7,200. The detective testified that the seized evidence was consistent with drug distribution, and that 307 East Jenkins was a “trap house,” or a building used mainly for distributing drugs.

1. On appeal, Scott contends the evidence was insufficient to support any of the drug charges, because he was merely present at 307 East Jenkins when the search warrant was executed, there was no evidence that he had actual or constructive possession of the drugs, and there was no evidence that he was a party to these crimes. We agree.

In order to prove the three drug charges, the State was required to prove that Scott possessed the requisite drugs. For cocaine trafficking, the State was required to prove that Scott knowingly possessed 28 grams or more of cocaine. OCGA § 16-13-31 (a) (1); McGee v. State, 316 Ga. App. 661, 664 (1) (730 SE2d 131) (2012) (“[T]he State must prove that the defendant knew that he possessed a substance and knew that the substance contained some amount of cocaine.”) (citation and punctuation omitted). Similarly, the State was required to prove that Scott possessed cocaine and marijuana with the intent to distribute. OCGA § 16-13-30 (b) (possession with intent to distribute cocaine); OCGA § 16-13-30 (j) (1) (possession with intent to distribute marijuana).

In this case, it is undisputed that Scott did not actually possess the drugs. Accordingly, “[t]he issue before us is whether [Scott] was in joint constructive possession of the drug, and the question turns on whether he and the other defendants knowingly shared the power and intention to exercise dominion or control over them.” Vines v. State, 296 Ga. App. 543, 545 (1) (675 SE2d 260) (2009). Mere spatial proximity to contraband is not sufficient to prove constructive possession. Brown v. State, 285 Ga. App. 330, 331 (646 SE2d 273) (2007). Rather, the State must show that the defendant had the power and intent to exercise control over the drugs, which requires “evidence of some meaningful connection between the defendant and the [drugs].” (Citation and punctuation omitted.) Id. Moreover,

one who intentionally aids or abets in the commission of a crime is a party to it. OCGA § 16-2-20 (b) (3). It is true mere presence at the scene of a crime, even coupled with knowledge and approval, is insufficient to convict one of being a party. However, presence, companionship, and conduct before and after the offense are circumstances from which one’s participation in the criminal intent may be inferred. A person will not be presumed to act with criminal intention, but the trier of facts may find such intention upon consideration of the words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted. If the totality of circumstantial evidence is sufficient to connect the defendant with the possession of the drugs, the conviction will be sustained, even though there is evidence to authorize a contrary finding.

(Citations and punctuation omitted.) Martinez v. State, 303 Ga. App. 71, 73-74 (692 SE2d 737) (2010).

Here, when the police executed the search warrant on September 25, 2009, they found Scott standing outside 307 East Jenkins. The undisputed evidence shows, however, that he did not own or lease that residence. Consequently, there is no presumption that Scott possessed the drugs. See Bailey v. State, 294 Ga. App. 437, 439-440 (1) (669 SE2d 453) (2008) (where evidence shows that a defendant owned or controlled premises where contraband was found, it gives rise to a rebuttable presumption that the defendant possessed the contraband). While Scott was seen outside the house on prior occasions, including about ten minutes prior to the police officers’ arrival, there was no evidence that he was inside the house the day the search was conducted. Additionally, police officers did not find anything “in the residence that linked [Scott] to the residence such as clothing, bills, fingerprints, financial statements, photographs, records, books, or other personal belongings.” Brown, supra, 285 Ga. App. at 332. The officers also did not find drugs on Scott or “anything on his person linking him to the house or its contents.” Id. The fact that Scott had over $250 when arrested is also insufficient to connect him to the drugs found inside the residence. See Paden v. State, 216 Ga. App. 188, 190 (1) (453 SE2d 788) (1995).

Further, Scott’s conviction cannot be upheld on the ground that he was a party to the crimes, because the State failed to present evidence that he intentionally caused another to commit the crimes, aided or abetted in the commission of the crimes, or advised or encouraged another to commit the crimes. Notably, although Holloway testified that he saw hundreds of drug transactions at the house, there is no evidence that Scott was involved in any of these transactions. Rather, Holloway testified that Scott’s brother, Kenneth, directed the drug transactions and that Anderson supplied the drugs; however, he never specifically identified Scott as being involved. Likewise, while the police purchased drugs at 307 East Jenkins, including a hand-to-hand purchase by an undercover officer in June or July 2009, there was no evidence that Scott was involved in these transactions either. In other words, while the circumstantial evidence shows that Scott may have been aware of the drug trafficking at the house, there was no evidence showing that Scott participated in any criminal activity occurring on the property. See Crenshaw v. State, 183 Ga. App. 527, 529 (1) (359 SE2d 419) (1987). Consequently, the State’s evidence did not show essential links between Scott’s proven conduct and the drug trafficking and distribution charges. See, e.g., Flores v. State, 308 Ga. App. 368, 373 (4) (707 SE2d 578) (2011) (defendant’s mere presence in vehicle, which he did not own or control, was insufficient to sustain conviction for trafficking methamphetamine where the State failed to present evidence of some meaningful connection between the defendant and the drugs); Brown, supra, 285 Ga. App. at 330, 332-333 (even though defendant arranged to sell cocaine to a confidential informant, his presence outside the residence was insufficient to sustain conviction for trafficking cocaine where no evidence linked the defendant to the property or to the drugs found inside); Stringer v. State, 275 Ga. App. 519, 521-522 (621 SE2d 761) (2005) (reversing conviction for possession of cocaine where no evidence linked defendant to cocaine found in hotel room other than fact that the defendant was in the room and it was registered in his name). Compare Lott v. State, 303 Ga. App. 775, 779 (1) (694 SE2d 698) (2010) (evidence supported possession for trafficking conviction even though defendants did not own house where drugs were found because the defendants had keys to the house, they were found inside the house, another defendant ran toward the bedroom when officers arrived to execute a search warrant, and they found the defendants’ personal items inside the residence).

Accordingly, we reverse Scott’s convictions for trafficking cocaine (Count 1), possession of cocaine with intent to distribute (Count 2), and possession of marijuana with intent to distribute (Count 3). Since Scott’s convictions for possession of a firearm during the commission of a felony (Counts 5,6, and 7) hinge on these other felony convictions, they must also be reversed. See Flores, supra, 308 Ga. App. at 373-374 (4).

2. Scott also contends that the evidence was insufficient to support his conviction for knowingly keeping a dwelling for the purpose of using controlled substances in violation of OCGA § 16-13-42 (a) (5). We agree.

[I]n order to support a conviction under OCGA § 16-13-42 (a) (5) for maintaining a residence or other structure or place used for keeping controlled substances, the evidence must show that one of the purposes for maintaining the structure was the keeping of the controlled substance; thus, the mere possession of limited quantities of a controlled substance within the residence or structure is insufficient to support a conviction under OCGA § 16-13-42 (a) (5). . . . [I]n order to support a conviction under this statute for maintaining a residence or other structure or place used for selling controlled substances, the evidence must be sufficient to support a finding of something more than a single, isolated instance of the proscribed activity. . . . [I]n determining the sufficiency of the evidence in these regards, each case must be adjudged according to its own unique facts and circumstances, and there is no inflexible rule that evidence found only on a single occasion cannot be sufficient to show a crime of a continuing nature.

Decided March 12, 2014.

Rahmaan A. Bowick, for appellant.

S. Hayward Altman, District Attorney, Rizza C. Palmares, Assistant District Attorney, for appellee.

(Citation and punctuation omitted.) Chua v. State, 289 Ga. 220, 230 (1) (c) (710 SE2d 540) (2011).

Here, although the evidence described above shows that the house at 307 East Jenkins was used mainly for the distribution of drugs, there is no evidence that Scott knowingly kept or maintained the house. While Scott told officers that he did yard work at the property, by its plain language, OCGA § 16-13-42 (a) (5) proscribes only the keeping or maintaining of a structure, not groundskeeping. Moreover, the trial evidence does not show that Scott was inside the residence prior to the execution of the search warrant or that he had ever been inside the house at all. Consequently, the evidence was insufficient to sustain his conviction under OCGA § 16-13-42 (a) (5) (Count 4).

3. In light of our holdings in Divisions 1 and 2, it is unnecessary to address Scott’s remaining enumerations of error.

Judgment reversed.

Barnes, P. J., and Ray, J., concur.

       Scott was tried with co-defendants Kenneth Scott, Anthony Christopher Anderson, and Michael Lane. This Court affirmed the convictions of Kenneth Scott and Anderson in Case Nos. A12A1961 and A12A2293, respectively, and the Court’s opinion in the consolidated appeals was unpublished (320 Ga. App. XXV). Michael Scott’s appeal was remanded to the trial court for completion of the record, was subsequently redocketed in this Court, and is presently before us.


author: BARNES, Presiding Judge.

text:
    A13A1794.
    GRANT v. THE STATE.
    (756 SE2d 255)
   BARNES, Presiding Judge.

Michael Grant appeals his convictions for aggravated assault and fleeing or attempting to elude a police officer. He enumerates five errors, contending first that the State failed to prove venue on the fleeing or eluding count. Grant also argues that the trial court erred in sustaining the State’s objection to evidence about the victim’s acts of violence against third parties, in allowing the State to present evidence of the witnesses’ prior consistent statements, and in sentencing Grant to serve time without parole as a recidivist. He also argues that his trial counsel was ineffective for failing to object to one of the guilty pleas that served as the basis for his recidivist sentence. For the reasons that follow, we reverse the conviction for fleeing or eluding for insufficient evidence of venue, affirm the aggravated assault convictions, and remand for resentencing.

Once a defendant has been convicted, the evidence is construed to support the jury’s verdict, and “the defendant no longer enjoys the presumption of innocence.” (Footnote omitted.) Powell v. State, 310 Ga. App. 144 (712 SE2d 139) (2011). Furthermore, we do not weigh the evidence or determine witness credibility but only resolve whether “the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offense beyond a reasonable doubt.” Id. As long as some competent evidence supports the essential elements of the State’s case, we must uphold the jury’s verdict. Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).

So viewed, the evidence showed that Grant was a restaurant manager and got into an argument with the short order cook, who was the restaurant co-owner’s son. After Grant and the cook exchanged words, Grant said, “Now I got [sic] something for you,” and walked out the front door. He got into his car, drove around the restaurant, and came in the back door holding a handgun behind his leg, covered with a towel. When the cook turned to look at him, Grant shot him in the hand, then shot him several more times in the legs. Grant pistol-whipped the cook until both men fell to the ground. After a struggle, the cook got to his feet and Grant shot him twice more as the cook made his way out the front door and again fell to the ground.

A customer intervened as Grant approached the victim again, and Grant got into his car and drove away. The cook was transported to the emergency room, where he was treated for multiple gunshot wounds in his hand, arm, pelvis, and leg. He underwent immediate “damage control” surgery to repair his bladder, his intestine, and a large vein in his pelvis that was bleeding into his abdominal cavity. After 36 hours in the ICU, the cook underwent further abdominal surgery, followed by numerous additional operations to repair other damage.

A police officer with the Savannah-Chatham Metro Police Department (SCMPD) testified that he was looking for Grant’s car in response to a be-on-the-lookout when Grant drove past him traveling in the opposite direction. The officer turned around, caught up with Grant at a red light, and hit his blue lights and siren for one “quick whoop” to make a traffic stop. Grant turned and looked at the officer, then took off at a high rate of speed with the officer following. The officer finally lost sight of the car briefly in a residential neighborhood. Shortly after that, Grant stopped his car, got out, and was apprehended by other SCMPD officers.

After Grant was arrested, he indicated to one of the officers that he wanted to talk about the incident. After being advised of his rights, Grant told the officer in a recorded discussion played for the jury that he did not know why he shot the cook and did not want to do it, but the cook had been coming into the restaurant every day angry about something. A few weeks before the cook had “jumped on his girlfriend” in the store, Grant said, and the day before he had been “cussing and hollering at his mama.” The day of the shooting, the cook began talking about Grant to his mother and the two men began to argue. He told the arresting officer that he shot the cook four or five times, and he emphasized, “I shot him low. I didn’t shoot him in the groin. I just put some lube in his ass.”

Grant was acquitted of criminal attempt to commit murder. He was convicted of aggravated assault by shooting the cook with the intent to murder him, of aggravated assault by shooting the cook with a deadly weapon, and for fleeing or eluding a police officer.

1. Although Grant did not specifically challenge the sufficiency of the aggravated assault convictions, the evidence as outlined above was sufficient to sustain them. To authorize a conviction for aggravated assault with intent to murder, the State must show that the defendant acted with the deliberate intent to kill at the time of the assault, which the jury may infer from “the nature of the instrument used in making the assault, the manner of its use, and the nature of the wounds inflicted.” (Citations and punctuation omitted.) Tanner v. State, 86 Ga. App. 767 (1) (72 SE2d 549) (1952). In this case, evidence that Grant deliberately shot the cook in the back multiple times as the cook tried to get away was sufficient to authorize the jury to find Grant guilty of aggravated assault with intent to murder. Moody v. State, 279 Ga. App. 440, 443 (1) (631 SE2d 485) (2006).

As to the second assault count, the State is not required to prove specific intent when charging someone with aggravated assault by means of a deadly weapon; rather, the State need only prove a general intent to injure. Barnes v. State, 296 Ga. App. 493, 495 (675 SE2d 233) (2009). The evidence in this case was sufficient for a rational trier of fact to find that Grant had the requisite intent to commit aggravated assault based on his words, conduct, and demeanor.

2. Grant argues that the State failed to present evidence of venue to sustain the conviction for fleeing or attempting to elude a police officer. Grant was charged with and convicted of the offense of fleeing or attempting to elude in Chatham County in violation of OCGA § 40-6-395 (a), which makes it “unlawful for any driver of a vehicle willfully to fail or refuse to bring his or her vehicle to a stop or otherwise to flee or attempt to elude a pursuing police vehicle or police officer when given a visual or an audible signal to bring the vehicle to a stop.”

The evidence showed that the shooting occurred at a restaurant located in Chatham County, and that afterward Grant left the scene in his car. Several police officers gave extensive testimony identifying the streets over which they traveled in their successful pursuit of Grant. After his arrest, Grant told a detective which streets he had driven down and the location where he threw his gun from the car window. But neither Grant nor the officers identified the county where Grant refused to stop when signaled to do so or the county or counties through which the chase occurred.

Criminal actions must generally be tried in the county where the crime occurred. OCGA § 17-2-2 (a). When a defendant pleads not guilty, the State must prove every element of the charged crime, including venue, beyond a reasonable doubt. Jones v. State, 272 Ga. 900, 902-903 (2) (537 SE2d 80) (2000). It may prove venue “by whatever means of proof are available to it,” including both direct and circumstantial evidence. Id. When a crime is committed in a vehicle traveling within this state, “and it cannot readily be determined in which county the crime was committed, the crime shall be considered as having been committed in any county in which the crime could have been committed through which the ... vehicle ... has traveled.” OCGA § 17-2-2 (e).

The State argues here that it proved venue for this count under OCGA § 17-2-2 (h), which provides: “If in any case it cannot be determined in what county a crime was committed, it shall be considered to have been committed in any county in which the evidence shows beyond a reasonable doubt that it might have been committed.” “The purpose of [subsection (h)] is to provide for establishment of venue in situations in which there is either some doubt as to which county was the scene of the crime or where the crime in fact occurred in more than one county.” Bundren v. State, 247 Ga. 180, 180 (1) (274 SE2d 455) (1981).

But the offense of eluding an officer is complete when a defendant refuses to stop his vehicle despite visual and audible signals to do so. Mack v. State, 283 Ga. App. 172, 173 (1) (641 SE2d 194) (2007). In this case, the location where Grant refused to stop when signaled to do so was known. The officer from whom Grant fled could have established which county they were in when Grant refused to stop his car, and any of the officers could have identified the county or counties through which Grant was pursued and taken into custody, but they were never asked to do so. The evidence did not establish that it was difficult to determine where the crime was committed, or that the crime could have been committed in more than one county; the State simply failed to present any evidence about counties except that the shooting took place in Chatham County.

The State argues that testimony identifying which streets Grant traveled and that the officers worked with the SCMPD was sufficient, noting that Grant did not move for a directed verdict on the issue of venue. It also argues that the evidence of venue was not conflicting and that under these circumstances slight evidence was sufficient to prove venue. But our Supreme Court in Jones specifically held in 2000 that “slight evidence” is not sufficient to prove venue, that venue is an element of each crime, and that it must be proven beyond a reasonable doubt. Jones, 272 Ga. at 903 (2); see also Segel v. State, 293 Ga. App. 506, 507 (1) (b) (667 SE2d 670) (2008).

While Grant and several police officers testified about the streets on which they traveled, “a street name, standing alone, is never sufficient to establish venue.” (Footnote omitted.) Jones, 272 Ga. at 904 (3). “The only other alleged evidence of venue consisted of the testimony of the four law enforcement officers who [tried to stop Grant or] responded to the scene, each of whom stated that they were employed by the [SCMPD].” In the Interest of B. R., 289 Ga. App. 6, 8 (2) (656 SE2d 172) (2007). Merely identifying the names of streets and the arresting officers’ place of employment is insufficient to prove venue beyond a reasonable doubt, and therefore Grant’s conviction for fleeing or eluding must be reversed. See id.; Jones, 272 Ga. at 904 (3) .

3. Grant next argues that the trial court erred in prohibiting him from presenting evidence of the victim’s acts of violence against third parties. Grant filed a pretrial notice that he was claiming the affirmative defense of justification and intended to present evidence of violent acts the victim committed against third parties. See Uniform Superior Court Rule 31.6; Chandler v. State, 261 Ga. 402, 407-408 (3) (405 SE2d 669) (1991).

An exception to the general rule that a victim’s violent character is rarely relevant in a criminal proceeding exists when a defendant claims his actions were justified and offers evidence that the victim was the aggressor. To make a prima facie showing of justification so as to allow evidence of violent acts of the victim against third parties, the defendant must show that the victim was the aggressor, the victim assaulted the defendant, and the defendant was honestly trying to defend himself. The key showing must be that the victim was the aggressor in the fatal encounter. The trial court’s decision to exclude evidence of a victim’s acts of violence against third persons is examined by the appellate court for abuse of discretion.

(Citations and punctuation omitted.) Smith v. State, 292 Ga. 316, 317-318 (2) (737 SE2d 677) (2013).

Grant argues that a prima facie case of justification was established by evidence of his statement to one of the detectives, a recording of which was played during the trial. Grant told the detective that after he and the cook began to argue, the cook “got up in [Grant’s] face” and started making body contact with him. As Grant was leaving the restaurant, the cook came up behind him and “was all up on [him],” but other people stepped between the men, and Grant walked out the front door alone. Grant told the detective that he retrieved a pistol and came in the back door holding the gun, then said:

And [the cook] saw me, came from behind the counter. I don’t know what it was he had in his hand. I ain’t going [to] sit here and lie. I don’t know what he had in his hand and he couldn’t see what I had in my hand, because I had it behind my leg____ But there’s a trash can right there and a refrigerator right there. I just really seen [sic] the silhouette, like just a silhouette, and I don’t know, I can’t •— I’m not going [to] lie to you if he had a knife or what he had, I don’t know. I know he had something, right? And then it could have — because it’s chrome, right beside the refrigerator is chrome, right?... And I don’t know when he came, when he come around and he started coming towards me again, right, I just — I brung the pistol out [sic] and I shot him in the leg.

Grant explained to the detective that at that point, he “just lost control” and shot the cook several more times.

Grant argued during trial that evidence that the cook came toward him with something in his hand, along with pictures of blood spatter that allegedly corroborated Grant’s description of the event, constituted prima facie evidence that Grant acted to defend himself against an assault. The trial court noted that after the first argument between Grant and the cook ended, Grant chose to return to the restaurant armed with a gun he was hiding in his clothing. The court further observed:

and the most the evidence shows is that the victim turned towards him, advanced, and it’s not clear how close or how far away he was when he did advance, with something in his hand, and the defendant shot first without finding out what was in his hand, with no verbal threats of any kind from the victim by the defendant’s testimony, and I don’t think he’s made a showing that was an assault on him that justified him shooting.

To gain the admission of evidence that the victim committed violent acts against third parties, “the key showing must be that the victim was the aggressor in the . . . encounter.” State v. Hodges, 291 Ga. 413, 418 (728 SE2d 582) (2012). “Justification cannot be based on an assault which has ended.” (Citation omitted.) Cloud v. State, 290 Ga. 193, 196 (2) (719 SE2d 477) (2011) (no error in disallowing evidence of victims’ prior violent acts against third parties when defendant, after being beaten by victims, retrieved a shotgun from his truck and fired on the men as they ran toward their cars). Here, the initial argument ended before Grant retrieved his gun, returned to the kitchen, and shot the victim. Further, Grant never said he thought that the victim had a knife in his hand, only that he thought the victim had “something” in his hand which could possibly have been a knife. Given the evidence outlined above, the trial court did not clearly err by denying the introduction of the evidence that Grant sought. See Slaughter v. State, 292 Ga. 573, 576 (2) (740 SE2d 119) (2013).

We note that, notwithstanding the trial court’s ruling, the jury-heard evidence about the cook’s temperament and his prior acts of violence against third parties. The cook’s mother testified that her son had a temper and “the least little thing can kinda make him hot.” She also testified that he had hit his girlfriend at the restaurant, and while she did not call the police that time, she had done so twice before. Finally, she testified that her son the cook had been “talking junk” to her before arguing with Grant on the day of the shooting. Another witness testified that she had been present at the restaurant once when the mother called the police because she and the cook were arguing and she wanted him to leave the restaurant. On cross-examination, the cook admitted that he had been previously charged with making a false statement because he had told the police that two men shot him after an altercation when the truth was that he had shot himself during an argument with his girlfriend and her father. A police officer testified that, on another occasion, he responded to a call and found the cook’s girlfriend with a split lip and red face, who told him that she and the cook had been in an altercation and slapped each other. The cook gave the officer a false name. Another officer testified that he responded to a call from the cook’s girlfriend, who was “basically looking for some protection” from the cook, who had struck her in the face. She told the officer there had been prior instances of violence between them. Thus the jury had a great deal of evidence related to the cook’s acts of violence against other people, and we find no merit in this enumeration of error.

4. Grant asserts in a well-researched argument that the trial court erred in allowing the State to introduce evidence of prior consistent statements by witnesses to the shooting, which thus improperly fortified or bolstered their testimony. During his cross-examination of these witnesses, Grant questioned them about differences between their statements to the initial patrol officer and their testimony at trial, intimating that they had all changed their stories to protect the cook after speaking with the officer. The State then called the lead detective to testify. Grant moved in limine to bar the detective from testifying about his interviews with these witnesses, whose statements mirrored their trial testimony, arguing that he was not challenging their statements to the detective, but rather the consistency of their statements to the initial patrol officer.

The trial court denied the motion, ruling that Grant had challenged the witnesses’ credibility and thus the State was entitled to introduce their prior consistent statements. The detective testified that he arrived on the scene about 50 minutes after the shooting, and uniformed patrol officers had secured the area. He recorded interviews with the witnesses, all of whom had been gathered in the parking lot except for the restaurant owner and the cook’s mother, who was sitting in the salon next door, and testified about the substance of those interviews. The State then played the recorded interviews for the jury, over Grant’s objection.

The trial court’s admission of the detective’s recorded interviews with these witnesses was error.

Since 1985, Georgia law has allowed certain prior consistent statements of a witness to be admitted as substantive evidence. In 1998, this Court clarified that a witness’s prior consistent statement is admissible only where (1) the veracity of a witness’s trial testimony has been placed in issue at trial; (2) the witness is present at trial; and (3) the witness is available for cross-examination.

(Citations and punctuation omitted.) Cowart v. State, 294 Ga. 333, 339 (4) (a) (751 SE2d 399) (2013).

The State argues that the trial court did not err because Grant repeatedly attempted to elicit testimony from the witnesses admitting that their version of events was colored by the fact that the victim was the son of their employer and friend, and intimated that they had revised their stories as a group to present the victim in the best light after speaking with the initial patrol officer. But a prior consistent statement is only admissible if affirmative charges of recent fabrication, improper influence, or improper motive are raised during cross-examination; otherwise “the witness’s prior consistent statement is pure hearsay evidence, which cannot be admitted merely to corroborate the witness, or to bolster the witness’s credibility in the eyes of the jury.” (Citation and punctuation omitted.) Cowart, 294 Ga. at 340 (4) (a). Most importantly here,

to be admissible to refute the allegation of recent fabrication, improper influence, or improper motive, the prior statement must predate the alleged fabrication, influence, or motive. If the [consistent] statement was made later, proof of the statement does not assist the jury to evaluate the witness’s testimony because the reliability of the statement is subject to the same doubt as the trial testimony.

(Citations and punctuation omitted; emphasis supplied.) Id.

In this case, the witnesses’ prior consistent statements to the detective did not predate when they were alleged to have fabricated and revised their stories, namely, after speaking with the initial patrol officer who responded to the scene. The only motive Grant asserts as a reason for their unified fabrication was a desire to help the victim — allegedly by the time that they gave their statements to the detective. Accordingly, the trial court erred in admitting evidence of the statements the witnesses made to the detective, which did not qualify as prior consistent statements and were instead improperly used to bolster the witnesses’ credibility. Duggan v. State, 285 Ga. 363, 366 (2) (677 SE2d 92) (2009) (trial court erred in admitting statement witness made to police the night of shooting, because any motive to lie related to fact that victim was a relative predated the statement).

We conclude, however, that the error is harmless. In making this determination, we do not rely on the fact that the witnesses gave similar testimony at trial, “as the very nature of the error in admitting the prior consistent statement is that it is repetitive of that to which the witness has already testified.” (Punctuation and footnote omitted). Character v. State, 285 Ga. 112, 120 (6) (674 SE2d 280) (2009). Other evidence was sufficient to establish the aggravated assault, including the victim’s detailed testimony and Grant’s version of events revealed through the statements he made to the detective in charge of the case. While Grant said he thought he saw something in the victim’s hand before he shot and denied that he intended to kill the victim, he also said he did not know why he shot him and that he realized he could have chosen not to go back into the kitchen with a gun in his hand. We thus conclude that the trial court’s error in admitting evidence of the witnesses’ prior statements was harmless.

5. Grant contends that the trial court erred in sentencing him as a recidivist ineligible for parole under OCGA § 17-10-7 (c). OCGA § 17-10-7 (c) provides that a person convicted ofa fourth felony “shall... serve the maximum time provided in the sentence of the judge based upon such conviction and shall not be eligible for parole until the maximum sentence has been served.” During the sentencing hearing, the State introduced evidence of three prior felony convictions as evidence in aggravation of punishment. Grant objected to two of the three convictions, the trial court overruled the objections, and Grant was sentenced under OCGA § 17-10-7 (c). Grant argues on appeal that the trial court erred in considering the third prior felony conviction because the State failed to establish that he knowingly and voluntarily entered his 1981 plea of guilty to two counts of armed robbery.

“The existence and validity of three prior felony convictions are necessary predicates to the imposition of a recidivist sentence under OCGA § 17-10-7 (c).” von Thomas v. State, 293 Ga. 569, 572 (2) (748 SE2d 446) (2013). The record establishes, however, that Grant failed to object to the admission of evidence of this conviction, and therefore waived his claim that the State failed to prove that the plea was entered knowingly and voluntarily. Id. at 575 (“[Objections to the validity of prior convictions used in aggravation of sentence — including objections that the defendant was denied the assistance of counsel in connection with the prior convictions — can be waived.”); Dunham v. State, 315 Ga. App. 901, 905 (3) (729 SE2d 45) (2012) (defendant who failed to object to trial court’s use of prior guilty plea to sentence him as recidivist waived issue of voluntariness of the plea).

6. Grant asserts that his trial counsel was ineffective for failing to object to the admission of evidence concerning his 1981 guilty plea to two counts of armed robbery, without which he would not have been sentenced under OCGA § 17-10-7 (c) as a recidivist ineligible for parole during his incarceration.

It is well established that the failure to object in the trial court constitutes a waiver of a party’s right to raise a matter on appeal. See, e.g., Rosser v. State, 284 Ga. 335, 337 (3) (667 SE2d 62) (2008). However, when those same matters are raised in a claim of ineffective assistance of trial counsel, we consider the alleged errors within the analytical framework of an ineffectiveness claim, under which, in order to prevail, [Grant] must show both that his trial counsel’s performance was deficient and that, but for the deficient performance, there is a reasonable probability the outcome of the trial would have been different. Id. at 337 (4). See also Smith v. Francis, 253 Ga. 782 (1) (325 SE2d 362) (1985).

Raymond v. State, 298 Ga. App. 549, 552 (2) (680 SE2d 598) (2009).

Grant argues that his trial counsel’s failure to object to the admission of evidence concerning his 1981 guilty plea constituted deficient performance, because the evidence established affirmatively that his plea was not knowing and voluntary. He further contends that but for the deficient performance, there is a reasonable probability that his sentence would have been different.

The burden of proof for establishing that a guilty plea was entered freely and voluntarily differ depending on whether the challenge is to the plea itself or to the use of the plea to aggravate a sentence. In the direct appeal of a guilty plea, the State must affirmatively show that the defendant validly waived the constitutional rights affected by entering the plea, including his privilege against compulsory self-incrimination, the right to trial by jury, and the right to confront one’s accusers. Boykin v. Alabama, 395 U. S. 238, 243 (89 SCt 1709, 23 LE2d 274) (1969); Beckworth v. State, 281 Ga. 41, 42 (635 SE2d 769) (2006) (“the three Boykin rights”). But in a collateral attack on a felony guilty plea used to impose a recidivist sentence, such as the one here, the State’s initial burden is to prove only that the plea existed and that the defendant was represented by counsel when he entered the plea. Parke v. Raley, 506 U. S. 20, 29 (113 SCt 517, 121 LE2d 391) (1992). After making this showing, the State may then rely on “the ‘presumption of regularity’ that attaches to final judgments.” Id.

At that point, the burden shifts to the defendant “to produce some affirmative evidence showing an infringement of his rights or a procedural irregularity in the taking of the plea.” Nash v. State, 271 Ga. 281, 285 (519 SE2d 893) (1999); Johnson v. State, 268 Ga. App. 1, 6 (2) (601 SE2d 392) (2004). If the defendant presents affirmative evidence of a constitutional infirmity, the burden shifts back to the State to prove the constitutionality of the plea. Nash, 271 Ga. at 285.

In this case, at sentencing the State introduced a certified copy of the entire record related to the 1981 plea of guilty to two counts of armed robbery, which included the indictment signed by Grant and his attorney, the order sentencing Grant to serve eight years in prison, a one-page document with questions and answers titled “Transcript,” and a one-paragraph document signed by the trial court titled “Certificate,” which states that the defendant answered in open court the questions in the “Transcript” and entered his plea freely and voluntarily. The State thus met its initial burden to show that Grant was represented by counsel when he entered this guilty plea. The State could then rely on the presumption of regularity in judgments and the burden shifted to Grant to establish affirmative evidence showing an infringement of his rights or a procedural irregularity in entering his plea. Beck v. State, 283 Ga. 352, 354 (2) (658 SE2d 577) (2008).

Decided March 12, 2014.

Steven L. Sparger, for appellant.

Meg E. Heap, District Attorney, Anna Guardino, Assistant District Attorney, for appellee.

Grant argued in his motion for new trial and on appeal that the “Transcript” and “Certificate” forms that are part of the record in his 1981 armed robbery plea establish that he was advised of only one of his three Boykin rights, which was his right to trial by jury. The forms do not establish that he was informed of his right to the assistance of counsel at trial or of his right to avoid self-incrimination at trial. Additionally, Grant submitted an affidavit of the court reporter, who averred that he could not locate the transcript of the guilty plea hearing or any notes from which the transcript could be recreated. Thus, Grant has made an affirmative showing of a constitutional infirmity in the taking of his plea. See Beckworth, 281 Ga. at 42 (in habeas appeal, waiver forms used in plea hearing containing only one of three Boykin rights did not establish defendant made a knowing, voluntary, intelligent waiver of rights).

Grant having produced affirmative evidence showing “an infringement of his rights or a procedural irregularity in the taking of the plea,” the burden should thus shift back to the State to prove the constitutionality of the 1981 plea. Nash, 271 Ga. at 285. The State has not yet had an opportunity to make such a showing, but we conclude that a reasonable probability exists that, but for trial counsel’s deficient performance in failing to object to the use of this plea, Grant might have received a different sentence. Thompson v. State, 276 Ga. 701, 704 (583 SE2d 14) (2003) (trial court erred in relying on uncounseled guilty plea to enhance sentence).

Accordingly, Grant’s sentence is vacated and the case is remanded for further proceedings consistent with this opinion. Donaldson v. State, 244 Ga. App. 89, 93 (5) (c) (534 SE2d 839) (2000) (sentence vacated and case remanded “for a resentencing hearing wherein the ‘shifting’ burdens of Nash v. State, supra, are recognized and followed”).

Judgment affirmed in part and reversed in part, sentence vacated, and case remanded for resentencing.

Miller, J., concurs. Ray, J., concurs in Divisions 1, 2, 3, 4, and 5, and concurs in judgment only as to Division 6.

       The two aggravated assault counts were merged for sentencing, and the trial court granted an order of nolle prosequi on one count of possession of a firearm by a convicted felon and one count of possession of a firearm during the commission of a crime.

       Grant was tried in 2011, so Georgia’s new Evidence Code does not apply to this case. See Ga. L. 2011, p. 99, § 101.

       The transcription of these recordings as they were being played for the jury was of great help in considering this appeal.

       “Georgia had no statute governing the admission of prior consistent statements in the pre-2013 [evidence] code. OCGA§ 24-6-613 (c) fills this gap and codifies [prior case law].” Ronald L. Carlson and Michael Scott Carlson, Carlson on Evidence: Comparing Georgia Rules & Federal Rules 269 (2nd ed. 2014). OCGA § 24-6-613 (c) provides: “If a prior consistent statement is offered to rebut an express or implied charge against the witness of recent fabrication or improper influence or motive, the prior consistent statement shall have been made before the alleged recent fabrication or improper influence or motive arose.”

       Grant was also sentenced under OCGA § 17-10-7 (a), which provides that a person convicted of a second felony shall be sentenced to the maximum length of time prescribed for the punishment of that felony, but gives the trial court the discretion to probate or suspend part or all of the sentence. He does not challenge being sentenced under this subsection.