author: Dillard, Judge.

text:
    A10A2307.
    MINCEY v. GEORGIA DEPARTMENT OF COMMUNITY AFFAIRS.
    (708 SE2d 644)
   Dillard, Judge.

In this personal injury action, we granted appellant Carolyn L. Mincey’s application for interlocutory appeal to review the trial court’s order denying her motion for a protective order and directing her to execute a release of her mental-health records to appellee Georgia Department of Community Affairs (“GDCA”). The trial court denied Mincey’s motion after concluding that she waived the right to assert a mental-health privilege by providing evasive and/or false responses about her medical history to GDCA during discovery. The trial court further granted GDCA a continuance and reopened discovery as a sanction for Mincey’s conduct pursuant to OCGA § 9-11-37. Because we conclude that Mincey’s handling of discovery, albeit troublesome, did not amount to a decisive and unequivocal waiver of her mental-health privilege as the law requires, we reverse that aspect of the trial court’s order and remand this case with direction. We affirm in all other respects.

Here, the record shows that in November 2006, Mincey was injured while riding as a passenger in a vehicle that was struck by a car being driven by a GDCA employee. Mincey thereafter sued GDCA, alleging that the accident was a result of the driver’s negligence and further asserting that the driver was working within the scope, authority, and employ of GDCA at the time of the accident, thus rendering GDCA liable for her injuries. During discovery, Mincey reported that she suffered, as a direct result of the accident, damages that included “pain in both knees on a daily basis,” a herniated disk in the lumbar region of her back, “inconsistent moods,” and “daily bouts of fatigue and depression.”

In written interrogatories, GDCA requested that Mincey identify “each and every physician or other practitioner of the healing arts who examined, diagnosed or treated” her during the ten years prior to the accident, and to further state “the nature and extent of any physical or mental disability, impairment, or handicap of any kind” from which she suffered at the time of the accident. After qualifying her response with an objection that the request was “overly broad and unduly burdensome,” Mincey offered the names of three doctors who previously treated her for three pre-accident conditions (i.e., the removal of a brain lesion, a blood transfusion, and a gastrointestinal procedure), but made no mention of any history of pain in her knees, back trouble, or depression. GDCA then served a third-party request for production of documents on each of the named pre-accident medical providers, in addition to the 13 medical providers that treated Mincey after the accident, and received records from each. Although Kaiser Permanente (“Kaiser”) was not identified as a pre-accident medical provider, it was included in the names of facilities that rendered Mincey care after the accident. And while Mincey executed a release of the Kaiser records, she limited the release to those records dated on or after the date of the accident.

GDCA then deposed Mincey for the first time in September 2008, and, during the course of this deposition, asked her whether she suffered pain in her knees or lower back prior to the accident. After doing so, the following colloquy transpired:

[Mincey]: Prior to the accident?
[Counsel]: Prior to the accident.
[Mincey]: No. No.
[Counsel]: Had you ever experienced any sort of swelling in your knees prior to the accident?
[Mincey]: No.
[Counsel]: Any sort of stiffness prior to the accident?
[Mincey]: No.
[Counsel]: No recurrent sort of pains that you can think of prior to the accident?
[Mincey]: Nothing that didn’t—if I did, it was just nothing that was a continued thing. I guess with age, a little bit of everything ache [sic] every now and then. But nothing abnormal or on a continuous basis.
[Counsel]: Is it the same for your lower back?
[Mincey]: No. I basically have never had problems with my back.

With respect to Mincey’s mental health, she maintained (during this same deposition) that her struggles with depression directly resulted from the accident:

[Counsel]: I see from . . . some of the medical records that you might have a history of depression. I’m only interested in that, and you can answer this however you want. To the extent that this injury and taking pain medication and that sort of thing would, you know, worsen your mood or decrease your positive outlook—
[Mincey]: I do deal with that now continuously. I don’t have a history of it. . . . But since the accident I’ve dealt with depression, anxiety. . . .
[Counsel]: Had you ever had—lets just take any time prior to the accident—had a diagnosis of depression?
[Mincey]: No.
[Counsel]: Has anyone given you a diagnosis of depression after the accident?
[Mincey]: Not necessarily a diagnosis, but that is something that I deal with because of it, but I have not been given a diagnosis of depression.
[Counsel]: I understand. And prior to this accident,... no one had ever told you that you had any sort of degenerative changes in your lower back or in your knees?
[Mincey]: No.

Despite Mincey’s responses to questions about her medical history, certain medical records produced by Kaiser indicated that she may have indeed complained of similar ailments prior to the accident. For example, one computer-generated record contained a “Problem List” that included “arthralgia [pain] of knee” as an unresolved issue that was “noted” in January 2006, more than ten months prior to the accident. Moreover, that same medical record made references (from which one could infer) that the onset of Mincey’s mood instability and/or depression may have pre-dated the accident, including reports that her “[m]ood ha[d] been worsening over the past two years [prior to the accident],” as well as containing notes attributing “much sadness” to a “decline of health over the past 7 years.”

The discovery period ended in October 2008. In August 2009, GDCA sent a letter to Mincey’s counsel requesting that Mincey sign a release authorizing the production of her complete medical records, including medical care pre-dating the accident as well as her mental-health records. GDCA nonetheless announced at the calendar call in September 2009 that it was ready to proceed to trial, although it then sent a second letter to Mincey acknowledging her refusal to sign the release by invoking the mental-health privilege, and conditioning its “ready” announcement upon the production of the records sought. GDCA further asserted in the correspondence that “at an absolute minimum, [GDCA] has the right to Mincey’s medical records as they relate to her pre-existing problems with knee pain.”

Mincey repeatedly asserted to both GDCA and the trial court that all of her nonprivileged medical records, including those from Kaiser, had been produced, and denied that she had withheld relevant or requested information during the discovery period. Nevertheless, in October 2009, GDCA filed a motion to compel the discovery of any medical records not already produced by Mincey, including those that would otherwise be protected by the mental-health privilege. In response, Mincey continued to assert that all nonprivileged medical records had been produced. She also maintained that GDCA was not entitled, in any event, to pursue further discovery because the discovery period had already ended.

GDCA thereafter subpoenaed the deposition of Kasier’s custodian of records and ordered the custodian to produce all of Mincey’s nonprivileged medical records. In response, Mincey filed a motion for protective order on the basis that the documents sought were included in the pending motion to compel and that discovery had expired.

The trial court denied Mincey’s motion for a protective order and GDCA obtained the additional Kaiser records that it sought. The records from a May 2006 visit—six months prior to the accident—revealed that Mincey had previously received diagnoses of “osteoarthritis of [the] knee” and “strain of [the] lumbar region” of her back. On the day of that particular visit, Mincey had “pain, swelling and crunching of the affected joints, especially the left knee.” Suggesting that the problems were not new, the record referenced Mincey’s prior treatment, noting that her “symptoms have been improved by analgesics and intraarticular steroid injections” but “ha[d] not been improved by footwear and physical therapy.” During this same visit, Mincey complained of “low[er] back pain,” including “radicular symptoms involving both lower extremities!,]” and advised that she had a “[h]istory of intermittent back discomfort[.]”

The records further reflected the summary of an October 2009 telephone call from Mincey to her Kaiser doctor, placed on the same day that the parties held a teleconference with the trial judge regarding GDCA’s attempt to obtain the additional medical records. The notes indicate that Mincey called to inquire about the January 2006 “arthralgia of the knee” reference that had prompted GDCA’s request for additional records. Her doctor’s response to the reporting nurse read:

Notify patient that this diagnosis was entered by [another doctor] and [Mincey] was prescribed an analgesic (generic DARVOCET N-100MG). The diagnosis indicates she had pain in the knee joint but not specifically from arthritis. The diagnosis cannot be changed or deleted by me. Schedule a followup visit with me for any persistent knee symptoms.

Finally, the newly obtained Kaiser records reflected that Mincey had been diagnosed with depression in July 2006, four months prior to the accident at issue.

After conducting a hearing, the trial court issued an order on March 17, 2010, finding that Mincey’s “deposition testimony regarding pre-existing conditions was evasive, and in some instances false” and that she “ha[d] not fully complied with the requirements of discovery, specifically including [GDCA’s] discovery of [her] prior medical providers and pre-existing conditions.” The trial court, therefore, concluded that Mincey “waived her mental health privilege by claiming inconsistent moods and bouts of depression as elements of her damages, and then electing to testify falsely regarding pre- and post-accident diagnoses of depression.” The trial court then opened discovery for an additional three months, and directed that Mincey execute a release to authorize the disclosure of her mental-health records. This appeal follows.

1. Mincey argues that the trial court erred by ruling that she waived her mental-health privilege as a result of her conduct during discovery. We agree, in part.

At the outset, we note that the grant or denial of a motion for protective order lies within the sound discretion of the trial court, and we will reverse the court’s decision in this regard only when it has abused its discretion. Moreover, “[i]n determining whether a party has abused discovery, the trial court sits as trier of fact, and this Court will uphold a finding of wilful discovery abuse if there is any evidence to support it.”

Additionally, under Georgia law, “[p]arties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery . . . ,” But, “[a]s a matter of public policy, this state has long provided for the confidentiality of communications between [a mental-health professional] and patient.” Thus, in order to encourage a patient to speak freely to his or her mental-health professional, we declare such communications “absolutely privileged,” and protect them from discovery in the absence of an affirmative waiver by the patient. This is true regardless of whether “the patient’s ‘care and treatment or the nature and extent of his [or her] injuries (have been put) at issue in any civil . . . proceeding.’ ”

Moreover, in the absence of an express statement of waiver, one seeking the disclosure of privileged mental-health records must establish a waiver by the patient’s “decisive unequivocal conduct reasonably inferring the intent to waive[.]” And, in this respect, we have previously held that a patient’s affirmative act of calling his or her psychiatrist to testify at trial when the patient’s mental health is at issue evinces an intent to waive the privilege, but a failure to timely object to the discovery of privileged information does not. Given these precedential strictures, we simply cannot conclude that Mincey’s arguably misleading responses to opposing counsel’s questions regarding a previous diagnosis of depression amounted to a “decisive” and “unequivocal” waiver of her mental-health privilege; nor can we find that Mincey’s decision to answer the deposition question posed to her (whether she suffered from a history of depression), rather than object to it at the time the issue of depression was raised, constitutes an explicit waiver of this privilege.

Nevertheless, we agree with the trial court that GDCA is entitled to the discovery of information disclosing whether Mincey was treated for mental-health-related issues prior to the accident and/or the dates of her pre-accident treatment for same. The privilege covers “communications and admissions” between the patient and the mental-health professional, and any information that the professional holds which has its origins in those communications. But “the fact of employment of or treatment by a mental health provider and the dates thereof do not fall within the mental health privilege and may be disclosed.”

We therefore hold that the trial court erred in concluding that Mincey waived the mental-health privilege, and the trial court’s order is therefore reversed to the extent it requires the production of any confidential communications made between Mincey and her mental-health-care providers. The trial court’s order is affirmed, however, insofar as it allows GDCA to proceed with discovery of nonprivileged evidence relevant to Mincey’s mental health care (as set forth supra). Accordingly, we remand this case to the trial court, so that it may conduct an in camera review of the records sought by GDCA to identify and redact privileged information contained therein in conformity with this opinion.

2. Mincey further argues that the trial court abused its discretion by determining that her deposition testimony “was evasive, and in some instances false” and that her interrogatory responses were incomplete, and that it further erred by assessing sanctions against her pursuant to OCGA § 9-11-37 (a) (3), (d) (1). The trial court’s sanctions included continuing the case and reopening discovery for a three-month period to allow GDCA to take depositions of doctors who treated Mincey and to subpoena additional documents; allowing GDCA to redepose Mincey; giving the parties until 30 days following the expiration of the reopened discovery period to identify expert witnesses; and vacating the existing pretrial order so that it may be superseded by a new pretrial order after the additional discovery period concludes.

In matters involving discovery disputes, “[tjrial judges have broad discretion in controlling discovery, including the imposition of sanctions, and this Court will not reverse a trial court’s decision on such matters unless there has been a clear abuse of discretion.” OCGA § 9-11-37 (a) (3) instructs the trial court that, as to depositions and discovery, “an evasive or incomplete answer is to be treated as a failure to answer,” and OCGA § 9-11-37 (d) authorizes the court in such an event to “make such orders in regard to the failure as are just,” up to and including a dismissal of the plaintiffs complaint.

In the case sub judice, there is ample evidence in the record to support the trial court’s finding as to the lack of completeness and veracity in Mincey’s deposition and discovery responses, and therefore, it was well within the trial court’s discretion to reopen discovery to provide GDCA with an opportunity to fully explore the relevant aspects of its defense.

Decided March 24, 2011.

Michael A. Baskin, for appellant.

Thurbert E. Baker, Attorney General, Bryon A. Themes, Assistant Attorney General, for appellee.

Judgment affirmed in part, reversed in part, and case remanded with direction.

Barnes, P. J., and Blackwell, J., concur.

       Mincey claims that GDCA explained the delay in requesting the additional records by stating that it “had simply not gotten around to it.” That alleged statement by GDCA does not appear in the record before this Court. Regardless, given the trial court’s broad discretion in controlling discovery (discussed infra), the reason for the delay is irrelevant to our inquiry.

       GDCA deposed Mincey for a second time in March 2010. Mincey’s counsel instructed her not to answer any question related to depression, either before or after the accident.

        See McKesson HBOC, Inc. v. Adler, 254 Ga. App. 500, 505 (3) (562 SE2d 809) (2002).

        Santora v. Am. Combustion, Inc., 225 Ga. App. 771, 772 (1) (a) (485 SE2d 34) (1997).

       OCGA § 9-11-26 (b) (1).

        Kennestone Hosp., Inc. v. Hopson, 273 Ga. 145, 148 (538 SE2d 742) (2000) (footnote omitted); see OCGA § 24-9-21 (5)-(8) (deeming privileged all communications between a patient and a psychiatrist, a licensed psychologist, a licensed clinical social worker, a clinical nurse specialist in psychiatric/mental health, a licensed marriage or family therapist, and a licensed professional counselor); OCGA § 43-39-16 (“The confidential relations and communications between a licensed psychologist and client are placed upon the same basis as those provided by law between attorney and client; and nothing in this chapter shall be construed to require any such privileged communication to be disclosed.”).

         State v. Herendeen, 279 Ga. 323, 325-26 (613 SE2d 647) (2005) (“[T]he purpose of the privilege is to encourage the patient to talk freely without fear of disclosure and embarrassment, thus enabling the psychiatrist to render effective treatment of the patient’s emotional or mental disorders.” (citations and punctuation omitted)).

        See Herendeen, 279 Ga. at 327; Hopson v. Kennestone Hosp., Inc., 241 Ga. App. 829, 829 (526 SE2d 622) (1999) (“Communications between a patient and psychiatrist are absolutely privileged and not discoverable unless the patient affirmatively waives the privilege.” (footnote omitted)); Plunkett v. Ginsburg, 217 Ga. App. 20, 21 (456 SE2d 595) (1995) (“[CJommunica-tions between a psychiatrist and patient are absolutely privileged and that privilege must be waived as a pre-condition of discovery.” (citation, punctuation and emphasis omitted)).

        Dynin v. Hall, 207 Ga. App. 337, 339 (4) (428 SE2d 89) (1993) (“To hold that communications between the [patient] and her psychiatrist have lost their privileged character and are discoverable merely because they are the most objective evidence of the relevant issue of the [patient’s] mental state would contravene the legislature’s express intent.” (citation omitted)). But see Bobo v. State, 256 Ga. 357, 359-61 (3), (4) (349 SE2d 690) (1986) (in the criminal context, a witness’s statutory mental-health privilege must yield to a defendant’s constitutional right to confront witnesses against him if the evidence in question is critical to his defense and substantially similar evidence is otherwise unavailable to him).

        Herendeen, 279 Ga. at 327 (citation and punctuation omitted). See generally Mullis v. Bibb County, 294 Ga. App. 721, 725 (3) (669 SE2d 716) (2008) (“Waiver is the voluntary relinquishment of a known right and may be established by express statements or implied by conduct. An implied waiver is one shown by a party’s decisive, unequivocal conduct reasonably inferring the intent to waive.” (punctuation and footnote omitted)).

        See Griggs v. State, 241 Ga. 317, 318 (3) (245 SE2d 269) (1978) (defendant who introduced testimony by his psychiatrist to bolster defense that he was mentally disturbed at the time of the crime waived any objection to the State cross-examining the witness and calling in rebuttal a second psychologist who also evaluated defendant); Fields v. State, 221 Ga. 307, 309 (2) (144 SE2d 339) (1965) (“To call a physician to the stand, and examine him as a witness to one’s physical condition formerly communicated to him, is a waiver of the privilege in regard to all of his knowledge of the physical condition asked about.” (citation, punctuation and emphasis omitted)); Trammel v. Bradberry, 256 Ga. App. 412, 424 (6) (568 SE2d 715) (2002) (“Where a party calls his or her psychiatrist to testify at trial on the party’s behalf, when the mental status of the party is in issue, this constitutes decisive, unequivocal conduct that reasonably implies the intent to waive the psychiatric privilege.” (citations omitted)).

        See Kennestone Hosp., Inc., 273 Ga. at 149 (“Given the importance of the privilege in encouraging and protecting confidential communications concerning the emotional and mental health of individuals, we hold that a party’s silence and failure to act in response to a request for privileged matter from a nonparty health care provider or facility . . . does not waive the party’s privilege by implication.”). Cf. Alston & Bird LLP v. Mellon Ventures II, L.P., 307 Ga. App. 640, 645 (4) (706 SE2d 652) (2011) (holding that plaintiffs did not waive the attorney-client privilege by inadvertently producing privileged documents during discovery).

        See Kennestone Hosp., Inc., 273 Ga. at 149. Cf. Alston & Bird LLP, 307 Ga. App. at 645 (4).

        See Herendeen, 279 Ga. at 327.

        Herendeen, 279 Ga. at 327; see also Kennestone Hosp., Inc., 273 Ga. at 148 (“[T]he fact that a patient has undergone psychiatric treatment and the dates of the care are not subject to the psychiatrist-patient privilege[,]”); Cranford v. Cranford, 120 Ga. App. 470, 472-73 (2) (170 SE2d 844) (1969) (same).

        See Herendeen, 279 Ga. at 328; Plunkett, 217 Ga. App. at 22.

       Mincey includes as a separate enumeration of error the trial court’s implicit overruling of her motion to exclude GDCA’s expert witness because GDCA failed to timely provide her with the subject matter on which the expert is expected to testify and the substance of his testimony. See OCGA § 9-11-26 (e) (1) (B). This argument fails for the same reasons as those set forth in Division 2.

        Level One Context, Inc. v. BJL Enters., LLC, 305 Ga. App. 78, 83 (4) (699 SE2d 89) (2010) (footnote omitted).

        See Res. Life Ins. Co. v. Buckner, 304 Ga. App. 719, 737 (4) (b) (698 SE2d 19) (2010) (“An interrogatory answer that falsely denies the existence of discoverable information is . . . worse than no response. When there is no response to an interrogatory or the response is devoid of content, the party serving the interrogatory at least knows that it has not received an answer.” (citation and emphasis omitted)); MARTA v. Doe, 292 Ga. App. 532, 532 (664 SE2d 893) (2008) (“[F]or purposes of OCGA § 9-11-37 (d) sanctions, a defendant’s intentional false response to a discovery request equates to a total failure to respond!.]”).

        See generally OCGA § 9-11-37 (a) (3), (b) (2) (A)-(C), (d); Doe, 292 Ga. App. at 537 (1) (affirming the trial court’s order striking defendant’s answer after concluding that defendant gave intentionally false responses to discovery requests); Deep South Const., Inc. v. Slack, 248 Ga. App. 183, 186 (2) (546 SE2d 302) (2001) (affirming the trial court’s dismissal of plaintiff s action as a sanction for a failure to produce requested documents).


source: Caselaw Access Project

author: Ellington, Chief Judge.

license: Public Domain

text:
    A11A0034.
    CHAMBERS v. THE STATE.
    (708 SE2d 651)
   Ellington, Chief Judge.

A Hall County jury found Michael Chambers guilty beyond a reasonable doubt of aggravated assault, OCGA § 16-5-21 (a) (2) (with an instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury). Following the denial of his motion for a new trial, Chambers appeals, contending that the trial court erred in limiting his cross-examination of the victim and in denying his request to instruct the jury on reckless conduct as a lesser included offense of aggravated assault. Finding no error, we affirm.

Viewed in the light most favorable to the jury’s verdict, the evidence shows the following. The victim began dating Chambers in July 2007. On October 15, 2007, Chambers visited the victim at the hotel where she was staying, and the two had an argument. Chambers verbally abused the victim and kicked her in the side. They reconciled the next day.

On October 21, 2007, Chambers again visited the victim at her hotel. The couple began arguing, and Chambers kicked the victim off the bed. The victim testified that she and Chambers struggled beside the bed and then he “ended up on top of [her] and was choking [her] . . . [with] his hands around [her] neck” until she felt she would die. As the victim tried to break Chambers’ grip, she scratched his face. The victim went into the bathroom, where Chambers repeatedly punched her in the face. During a long struggle in the bathroom, the victim picked up the lid of the toilet tank to defend herself but dropped it without hitting Chambers.

Eventually, Chambers stopped hitting the victim and told her to clean up her face, which was bloodied and battered. Chambers told the victim that he had done too much damage and that he needed to kill her. The victim repeatedly told Chambers that she needed to go to the hospital, and he eventually told her to get out of the room. The victim went down to the front desk and then, by ambulance, to the hospital.

The indictment charged Chambers with assaulting the victim with his hands by choking her around the neck and threatening to kill her.

1. Chambers contends that his sole intended defense at trial was justification. As a result, he contends, he needed to show that the victim was in fact the aggressor, which he intended to do by exploring on cross-examination what the victim meant when she testified that there was tension in her relationship with Chambers because she was “going through a transitional period in [her] life.” Specifically, Chambers contends that a thorough and sifting cross-examination would have revealed that, in the week leading up to the alleged assault, he and the victim argued about her failure to comply fully with a drug rehabilitation program in which she was enrolled and that he was upset about the possibility that she would have to leave Georgia if she failed to complete the program, thereby ending their relationship. Chambers contends that, because such evidence would inform the jury about the status of the couple’s relationship, it was relevant and material to his defense and, therefore, that the trial court abused its discretion in limiting his cross-examination on these issues.

Although OCGA § 24-9-64 entitles a defendant to a thorough and sifting cross-examination of witnesses against him, the trial court is vested with discretion to limit the scope of cross-examination to matters that are material to the issues. Gaines v. State, 285 Ga. App. 654, 656 (2) (647 SE2d 357) (2007); see also Kolokouris v. State, 271 Ga. 597, 600 (4) (523 SE2d 311) (1999) (“Generally speaking, the Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way and to whatever extent, the defense might wish.”) (citation and punctuation omitted). In particular, “the victim’s character is rarely relevant for any purpose in a criminal proceeding.” (Citations omitted.) Kolokouris v. State, 271 Ga. at 600 (4). The trial court’s exercise of its discretion to curtail cross-examination will not be disturbed on appeal unless it is abused. Kay v. State, 306 Ga. App. 666, 670 (4) (703 SE2d 108) (2010); Schwindler v. State, 254 Ga. App. 579, 586 (7) (563 SE2d 154) (2002).

In this case, Chambers fails to articulate how the evidence that the trial court excluded would have supported his intended defense of justification. Under Georgia law, a person is justified in using force against another

when and to the extent that he or she reasonably believes that such threat or force is necessary to defend himself or herself or a third person against such other’s imminent use of unlawful force; however, except as provided in Code Section 16-3-23, a person is justified in using force which is intended or likely to cause death or great bodily harm only if he or she reasonably believes that such force is necessary to prevent death or great bodily injury to himself or herself or a third person or to prevent the commission of a forcible felony.

OCGA § 16-3-21 (a). Thus, “^Justification is an affirmative defense whereby the defendant admits acting with the intent to inflict an injury, but claims that he did so while in reasonable fear of suffering immediate serious harm to himself or another.” (Citation omitted.) Broussard v. State, 276 Ga. 216, 216-217 (2) (576 SE2d 883) (2003). In some circumstances, evidence of a victim’s general reputation for violence or of specific acts of violence by the victim may be admissible, where the defendant claims he or she justifiably used force in self-defense, to show that the defendant was in a state of reasonable fear at the time of the alleged offense against the victim. Hewitt v. State, 277 Ga. 327, 333 (3) (588 SE2d 722) (2003) (specific bad acts of violence by the victim); Woods v. State, 269 Ga. 60, 63-64 (5) (495 SE2d 282) (1998) (victim’s reputation for violence). For either the victim’s general reputation for violence or specific acts of violence by the victim to be admissible, the defendant must, among other procedural and substantive burdens, make a prima facie showing that the victim was the aggressor, that the victim assaulted the defendant, and that the defendant responded with force only to defend himself or herself. Hewitt v. State, 277 Ga. at 333 (3); Stobbart v. State, 272 Ga. 608, 610 (2) (533 SE2d 379) (2000); Woods v. State, 269 Ga. at 63 (5).

In this case, the excluded evidence that Chambers contends was material to his justification defense was not evidence either of the victim’s general reputation for violence or of specific acts of violence by the victim. Smiley v. State, 271 Ga. 734, 735 (2) (524 SE2d 234) (1999) (Evidence of any prior drug use by the victim would not have tended to prove his reputation for violence or the reasonableness of the defendant’s claim that the defendant’s use of deadly force was necessary.). Furthermore, Chambers failed to make a prima facie showing of justification, that is, there is no evidence that the victim was the aggressor, that the victim assaulted him, or that he used force against her only to defend himself. Hewitt v. State, 277 Ga. at 332 (3); Watkins v. State, 264 Ga. 657, 662 (5) (449 SE2d 834) (1994). Finally, we conclude that the evidence that Chambers intended to elicit about the status of the couple’s relationship and the nature of their arguments in the week leading up to their fight would not have shed any light on whether Chambers was in reasonable fear of suffering immediate serious harm to himself when he choked the victim and threatened to kill her. Accordingly, the trial court did not abuse its discretion in ruling that the evidence was irrelevant and in sustaining the State’s objection to the evidence on that basis. Smiley v. State, 271 Ga. at 735 (2); Watkins v. State, 264 Ga. at 663 (5).

2. Chambers contends the trial court erred in failing to give his requested jury instruction on reckless conduct as a lesser included offense of aggravated assault.

[A] written request to charge a lesser included offense must always be given if there is any evidence that the defendant is guilty of the lesser included offense. However, when the evidence establishes all of the elements of the indicted offense and there is no evidence showing the lesser offense, there is no error in refusing to charge the lesser offense.

(Punctuation and footnote omitted.) Young v. State, 294 Ga. App. 227, 230 (669 SE2d 407) (2008).

The offense of aggravated assault and the offense of reckless conduct both proscribe the same general conduct, i.e., subjecting another to actual injury or the possibility of injury. See OCGA §§ 16-5-20; 16-5-21 (a) (2); 16-5-60 (b). Because aggravated assault requires proof that the forbidden act is intentional, while in the case of reckless conduct the forbidden act is the product of criminal negligence, reckless conduct can be deemed a lesser included offense of aggravated assault. Bowers v. State, 177 Ga. App. 36, 37-38 (1) (338 SE2d 457) (1985).

Decided March 24, 2011.

Nathanael A. Horsley, for appellant.

Lee Darragh, District Attorney, Wanda L. Vance, Assistant District Attorney, for appellee.

Chambers contends that, because “the action of putting one’s hands around a person’s throat for offensive purposes and the act of putting one’s hands on a person’s upper chest in a defensive manner are very similar,” he should have been allowed to argue that he “was merely negligent in putting [the victim] in a situation where she would misperceive his actions.” Although the victim did not remember exactly how their fight started, however, there was no evidence that Chambers put his hands on her upper chest in a defensive manner. To the contrary, the victim testified unequivocally that Chambers put his hands around her throat and choked her until she felt she would die. Because there was absolutely no evidentiary support for a finding that Chambers’ conduct in putting his hands around the victim’s throat was the result of anything less than deliberate intention, his request to instruct the jury on the offense of reckless conduct was based on mere speculation and conjecture. In the absence of even slight evidence to support the requested jury instruction, the trial court properly refused to give it. Heyward v. State, 278 Ga. 342, 343 (2) (602 SE2d 831) (2004).

Judgment affirmed.

Miller, P. J., and Doyle, J., concur.

        Jackson v. Virginia, 443 U. S. 307, 318-319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979).

       See OCGA § 24-2-2 (“The general character of the parties and especially their conduct in other transactions are irrelevant matter unless the nature of the action involves such character and renders necessary or proper the investigation of such conduct.”).

       Chambers and the victim were the only witnesses to their altercation on October 21, 2007. The victim testified that she had consumed several glasses of wine that night and did not remember how the fight started, and Chambers did not testify. The first act of violence for which there is any evidence was committed by Chambers, when he kicked the victim off the bed. Furthermore, no evidence contradicted the victim’s testimony that her violent acts (scratching Chambers’ face and picking up the toilet tank lid) were defensive, not aggressive.

       OCGA § 16-2-1 (b) (“Criminal negligence is an act or failure to act which demonstrates a willful, wanton, or reckless disregard for the safety of others who might reasonably be expected to be injured thereby.’’).

       See Heyward v. State, 278 Ga. 342, 343 (2) (602 SE2d 831) (2004) (Because the State’s evidence showed that the defendant intentionally shot the unarmed victim in an unprovoked attack, and because the defense did not present anything to authorize a finding that the victim was armed, that he provoked the assault, or that the defendant fired in the reasonable, but mistaken, belief that he was justified in doing so, the defendant was not entitled to jury instructions on justification, mistake of fact, or voluntary manslaughter.).


author: MCFADDEN, Judge.

text:
    A11A0214.
    THE STATE v. HARTSFIELD.
    (711 SE2d 1)
   MCFADDEN, Judge.

The state appeals the order granting Eugene Hartsfield’s motion to dismiss the indictment against him for violation of his constitutional right to a speedy trial. Because some of the trial court’s findings of fact are not supported by the record and the trial court erred in concluding that the reason for the delay was “far from benign,” we vacate the trial court’s order and remand the case for reconsideration.

Hartsfield was arrested on April 16, 2005. He was indicted on April 14, 2009, for aggravated battery, aggravated assault, and three counts of violation of oath by a public officer. The case was placed on a trial calendar in July 2010, but on July 30, 2010, Hartsfield filed a motion to dismiss the indictment for violation of his right to a speedy trial under the state and federal constitutions. The trial court granted the motion on August 6, 2010, and the state filed this appeal.

1. The template for deciding all constitutional speedy trial claims is laid out in Barker v. Wingo, 407 U. S. 514 (92 SC 2182, 33 LE2d 101) (1972) and Doggett v. United States, 505 U. S. 647 (112 SC 2686, 120 LE2d 520) (1992). Ruffin v. State, 284 Ga. 52, 55 (2) (663 SE2d 189) (2008). The analysis has two stages.

In the first stage of the analysis, the court must determine whether the pretrial delay is sufficiently long to be considered presumptively prejudicial. The pretrial delay is measured from the accused’s arrest, indictment, or other formal accusation!,] whichever comes first!,] to the trial or, if the accused files a motion to dismiss the indictment, until the trial court denies the motion. If the delay has passed the point of presumptive prejudice, the court must proceed to the second step of the Barker-Doggett analysis, which requires the application of a delicate, context-sensitive, four-factor balancing test to determine whether the accused has been deprived of the right to a speedy trial.

(Citations, punctuation and footnote omitted.) Ferguson v. State, 303 Ga. App. 341, 342 (693 SE2d 578) (2010).

The four factors to be considered in the case of presumptively prejudicial delay are (a) the length of the delay, (b) the reason for the delay, (c) the defendant’s assertion of his right, and (d) the prejudice to the defendant. State v. Redding, 274 Ga. 831, 831-832 (561 SE2d 79) (2002). We review the trial court’s decision under an abuse of discretion standard. Id. And we defer to the trial court’s findings of fact and its weighing of disputed facts. State v. White, 282 Ga. 859, 861 (2) (655 SE2d 575) (2008). However,

where the trial court has clearly erred in some of its findings of fact and/or has misapplied the law to some degree, the deference owed the trial court’s ultimate ruling is diminished. Moreover, ... it is imperative that in cases implicating a defendant’s constitutional right to speedy trial, the trial court enter findings of fact and conclusions of law consistent with Barker. Absent such findings, there is no exercise of discretion for this Court to review, and the trial court’s order must be vacated and the case remanded for the entry of a proper order pursuant to Barker.

(Citations and punctuation omitted.) State v. Porter, 288 Ga. 524, 533 (2) (e) (705 SE2d 636) (2011).

(a) The state concedes that the length of the delay, more than 63 months from Hartsfield’s arrest to the trial court’s grant of his motion to dismiss, is presumptively prejudicial. See Brannen v. State, 274 Ga. 454 (553 SE2d 813) (2001) (52-month delay is presumptively prejudicial); Boseman v. State, 263 Ga. 730, 732 (1) (a) (438 SE2d 626) (1994) (as the delay approaches one year, it is generally presumptively prejudicial). The trial court therefore properly proceeded to apply the Barker factors in the second stage of the analysis.

(b) After determining that the delay is presumptively prejudicial so as to trigger application of the four factors of Barker, the length of delay must be reconsidered as the first factor. Ruffin, supra at 56-57 (2) (b) (i). “This is because uncommonly long delays have a tendency to compromise the reliability of trials in ways that neither party can prove or, for that matter, identify.” (Citation and punctuation omitted.) Hayes v. State, 298 Ga. App. 338, 341 (2) (a) (680 SE2d 182) (2009). Given the 63-month delay between Hartsfield’s arrest and the ruling on his motion to dismiss, the first Barker factor weighs in Hartsfield’s favor and against the state, as the state concedes and as the trial court impliedly found. See State v. Moses, 301 Ga. App. 315, 318 (2) (a) (692 SE2d 1) (2009) (holding the slightly more than four-year delay far exceeded the one-year benchmark for presumptive prejudice and thus weighed against the state).

(c) As for the second Barker factor, the reason for the delay, the state concedes that it is responsible for the delay. Observing that the state offered no reason whatsoever for the delay, the trial court found that the delay was caused by the state’s “neglect.” Although the court found no evidence of good faith on the part of the state, it found no evidence of bad faith, either. Yet it concluded that the reason for the delay was “far from benign.” However, “[w]here no reason appears for a delay, we must treat the delay as caused by the negligence of the [s]tate in bringing the case to trial.” Boseman v. State, supra at 733 (1) (b). And “if the delay attributable to the state’s preparation of its case is not deliberate but is negligent, it is weighted as a ‘relatively benign’ factor against the state.” Jackson v. State, 272 Ga. 782, 784 (534 SE2d 796) (2000). The trial court thus erred in characterizing the reason for the delay as “far from benign” instead of “relatively benign.”

(d) The third Barker factor is the defendant’s assertion of the right to a speedy trial. “It is the defendant’s responsibility to assert the right to trial, and the failure to exercise that right is entitled to strong evidentiary weight against the defendant.” (Citation and punctuation omitted.) Brannen, supra at 456. Hartsfield’s case was placed on a trial calendar in July 2010. He filed his motion to dismiss the indictment on July 30, 2010, more than 63 months after his April 16, 2005 arrest and more than 15 months after his April 14, 2009 indictment. See Jackson v. State, 279 Ga. 449, 453 (614 SE2d 781) (2005) (nineteen-month delay in asserting constitutional speedy trial rights weighs against the defendant). See also Ruffin, supra at 64 (appellant must be “dogged” in the assertion of his speedy trial rights).

The court acknowledged that Hartsfield did not assert his right until the eve of trial. But, it found, Hartsfield’s late demand was mitigated by several considerations. See Moses, supra at 319 (2) (c) (circumstances can mitigate a defendant’s delay in asserting his right to trial).

One factor the trial court considered to be mitigating was the delay in appointing defense counsel. Hartsfield testified at the hearing on his motion to dismiss that he did not qualify for a public defender when he was arrested, and he therefore hired an attorney. After making one payment, he could no longer afford to pay the attorney. Yet there was no evidence presented that at that time, he qualified for appointed counsel. Once he was indicted in April 2009, he was suspended from his job without pay and then fired. Counsel was appointed in October 2009. The trial court omitted any discussion of these facts when it concluded that the delay in appointing counsel mitigated Hartsfield’s delay in his asserting his right to a speedy trial. A delay in appointing counsel cannot be weighted in favor of the defendant if counsel is appointed promptly after it is determined that the defendant is entitled. See Robinson v. State, 287 Ga. 265, 267 (1) (b) (695 SE2d 201) (2010). See also Henderson v. State, 290 Ga. App. 427, 430 (1) (c) (662 SE2d 652) (2008).

Further, once appointed, counsel did not file the motion to dismiss the indictment for nine months, a delay, which in and of itself, could be weighted strongly against Hartsfield. Jones v. State, 284 Ga. 320, 324 (2) (667 SE2d 49) (2008) (nine-month delay in asserting right weighed against defendant). See also Robinson, supra at 268-269 (1) (c). Counsel’s failure to act is attributed to Hartsfield. Id. at 268 (1) (b).

The trial court apparently mitigated appointed counsel’s delay in moving to dismiss the indictment by the fact that he faced a sudden increased workload when the other attorney assigned to the courtroom was placed on interim suspension by the State Bar of Georgia. However, there was no testimony at the hearing on the motion to dismiss regarding defense counsel’s workload. The court erred in making this finding of fact and should not have considered it in mitigation of Hartsfield’s delay in asserting his right to trial. See Porter, supra at 529 (2) (c) (4).

The trial court also found in mitigation of Hartsfield’s delay in asserting his right that the state did not provide defense counsel with an updated witness list until July 16, 2010, and for defense counsel to “invok[e] a demand for a speedy trial blindly would be foolhardy.” But Hartsfield asserted no connection between the state’s delay in providing an updated witness list and his delay in asserting his rights. See Williams v. State, 300 Ga. App. 797, 798 (c) (686 SE2d 407) (2009) (no connection between the state’s failure to respond to defendant’s discovery requests and defendant’s failure to assert her rights). The court thus erred in considering this in mitigation. See id.

The court also considered in mitigation that Hartsfield personally wrote the court, in either March or May of 2010, seeking a rapid resolution of the case. Hartsfield never offered the letter into evidence at the hearing on the motion to dismiss, and it does not appear in the appellate record. Therefore, the court’s finding is not supported by the record, Porter, supra at 529 (2) (c) (4), and the court should not have considered it in mitigation of Hartsfield’s delay in asserting his right to trial.

(e) The trial court weighted the final Barker factor, prejudice to the defense, in favor of Hartsfield. When evaluating the prejudice factor in the speedy trial analysis, courts must consider the “three interests which the speedy trial right is designed to protect: preventing oppressive pretrial incarceration, minimizing anxiety and concern of the defendant, and, most importantly, limiting the possibility that the defense will be impaired.” Nelloms v. State, 274 Ga. 179, 181 (549 SE2d 381) (2001).

Hartsfield did not suffer oppressive pretrial incarceration, as he spent only several nights in jail. Concerning his anxiety and concern, he testified that because of his arrest he was suspended with pay but lost the opportunity to be promoted and to work overtime. Once he was indicted, he was suspended without pay and then terminated from his job.

As for the most important third factor, see Nelloms, supra at 181, the trial court found that the delay impaired Hartsfield’s defense because he was without counsel for almost the entire time from the date of his arrest until he appeared at arraignment on October 22, 2009. Therefore, he lacked professional assistance to investigate his case. The court found that Hartsfield’s “ability to track down [witnesses to the incident] has been severely hampered by the passage of time during which [Hartsfield] had no counsel to prepare his case and protect his interests.” This factual finding is not supported by the record. Hartsfield offered no evidence that he was unable to locate witnesses because of the delay. See Porter, supra at 529 (2) (c) (4). Accordingly, there was no basis for the trial court to conclude that Hartsfield’s defense was impaired because of counsel’s difficulty in locating witnesses.

Decided March 24, 2011.

Paul L. Howard, Jr., District Attorney, Lenny I. Krick, Stephany J. Luttrell, Assistant District Attorneys, for appellant.

Brian A. Hobbs, for appellee.

(f) In sum, the trial court erred in concluding that the reason for the delay was “far from benign” when considering the second Barker factor; it improperly considered circumstances in mitigation of Hartsfield’s delay in asserting his right when considering the third Barker factor; and it made improper factual findings in regard to the impairment-of-defense component of the fourth Barker factor. Therefore, the trial court could not properly balance the Barker factors. Porter, supra at 533 (2) (e). We thus vacate the order granting Hartsfield’s motion to dismiss and remand for the trial court to reconsider Hartsfield’s speedy trial claim “using properly supported factual findings and the correct legal analysis.” Id. at 534 (2) (e).

2. Hartsfield’s motion to dismiss this appeal on the ground that the state’s brief did not comply with the rules of this Court is hereby denied. See OCGA § 5-6-30.

Judgment vacated and case remanded.

Phipps, P J., and Andrews, J., concur.


author: McFadden, Judge.

text:
    A11A0280.
    In the Interest of C. A. S., a child.
    (708 SE2d 655)
   McFadden, Judge.

The mother of five-year-old C. A. S. appeals the termination of her parental rights. Because the juvenile court’s decision is supported by clear and convincing evidence, we affirm the termination.

OCGA § 15-11-94 sets forth the procedure for termination of parental rights, which involves two steps. First, the juvenile court must find

parental misconduct or inability, which requires clear and convincing evidence that: (1) the child is deprived; (2) the lack of proper parental care or control is the cause of the deprivation; (3) the cause of the deprivation is likely to continue; and (4) continued deprivation is likely to cause serious physical, mental, emotional, or moral harm to the child. If these four factors exist, then the court must determine whether termination of parental rights is in the best interest of the child, considering the child’s physical, mental, emotional, and moral condition and needs, including the need for a secure, stable home.

(Footnote omitted.) In the Interest of J. R. N., 291 Ga. App. 521, 525 (2) (662 SE2d 300) (2008). We view the evidence in the light most favorable to the juvenile court’s ruling to determine whether a rational trier of fact could have found by clear and convincing evidence that the parent’s rights should have been terminated. In the Interest of T. J. J., 258 Ga. App. 312, 314 (574 SE2d 387) (2002).

So viewed, the record shows that C. A. S. was born in September 2005 and removed from his mother’s custody in September 2007 due to her use of methamphetamine and her lack of stable housing and employment. C. A. S.’s father has never legitimated him. C. A. S. was adjudicated to be deprived in an order that neither parent appealed.

C. A. S. was placed in the custody of his maternal grandmother, but he was removed from her custody in 2009 because she repeatedly violated safety plans by allowing C. A. S.’s mother to live in the house. She also allowed drug activity to occur on her property. In June 2009, C. A. S. was again adjudicated to be deprived and this time placed in the custody of the Department of Family and Children Services (“DFCS”). He is now in a foster home, along with two cousins, and is doing well. His foster parents intend to adopt all three children.

In August 2009, the juvenile court adopted a case plan that imposed certain goals the mother had to meet to regain custody. The court required the mother to obtain and maintain stable housing and sufficient income for six months; to pay child support; to visit C. A. S.; to complete a parenting class; to complete a drug and alcohol assessment and to follow through with recommended treatment; to have six months of negative random drug screens; and to undergo a psychological evaluation and to follow through with recommended treatment. The court also required the mother to provide written proof of completion of the goals to her case manager. She submitted to her caseworker evidence that she made three child support payments and completed a parenting class; she submitted no other evidence of her progress toward completing the requirements of her case plan.

At the termination hearing, the mother presented the testimony of her counselor from the substance abuse program in which she was enrolled, and she herself testified. On February 1, 2010, the mother began her treatment in the program, where she was subject to random drug screens. Each time she was tested, she tested negative. She completed parenting classes and an anger management course. She also started a trauma recovery class, an emotional management class, and addiction education. In spite of the juvenile court’s requirement that she do so, the mother testified that she did not inform her case manager of her progress in her treatment program — or her progress in satisfying the goals in her case plan — because the case manager was hostile toward her. Although the mother was able to work while undergoing drug treatment, she testified that she quit her job to enter the program and was not able to find another job that would accommodate her schedule better. She quit her job in October 2009, four months before she entered treatment.

The juvenile court found that the mother had completed some, but not all, of the steps required by her case plan. She had completed a parenting class and had moved into her own apartment. However, she did not enter the drug treatment program until years after her child had been removed from her custody because of her drug use. Although she had submitted to the psychological evaluation required by the plan, she did not complete the recommended treatment.

The court also observed that the mother was arrested and incarcerated in January 2010, for a probation violation after she failed to report for probation for ten months. She remained unemployed at the time of the hearing. The juvenile court found the mother could have worked while completing treatment. And even though she could have paid more while employed, she paid only $250 in child support the entire time C. A. S. was out of her care. In sum, the juvenile court found that although the mother had begun addressing her case plan goals, she had had more than sufficient time to complete them before the hearing but had not done so.

Based on its findings, the juvenile court concluded that C. A. S. was deprived because his mother could not care for him; that his deprivation was likely to continue and to harm him; and that termination of the mother’s parental rights was in his best interests.

1. The mother contends that the juvenile court should not have terminated her parental rights for failing to pay child support because of the difficulties she had in obtaining employment. Yet the mother testified that for almost a year she was employed in a job where she earned at least $1,700 per month. And she does not dispute that she paid a total of only $250 in child support for C. A. S. A parent’s failure to pay child support is compelling evidence that she is not an able parent. In the Interest of T. B., 267 Ga. App. 484, 486-487 (1) (600 SE2d 432) (2004). The juvenile court was authorized to find that the mother “wantonly and willfully failed to comply,” for at least a year, with a court order to pay child support, which is a ground for termination under OCGA § 15-11-94 (b) (2).

2. The mother argues that termination was premature because she was not granted the one-year period required by OCGA § 15-11-94 (b) (4) (C) (iii) to complete her case plan goals. That statute provides that,

[i]n addition to the considerations in subparagraph (B) of this paragraph, where the child is not in the custody of the parent who is the subject of the proceedings, in determining whether the child is without proper parental care and control, the court shall consider, 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 . . . [t]o comply with a court ordered plan designed to reunite the child with the parent or parents. . . .

The mother observes that the case plan order was entered August 3, 2009, yet the petition to terminate her parental rights was filed less than a year later, on March 26, 2010. The August 3, 2009 order, however, was a supplemental order; at least since March 2008, shortly after the child was first removed from the mother’s custody, the juvenile court had established goals for her to meet to regain custody, including maintaining stable employment and paying child support. Therefore, the trial court’s finding that the mother failed, for more than two years, to comply with court-ordered goals is accurate.

Further, “even if the reunification plan has been in effect for less than one year, a termination of parental rights may be warranted by other factors.” In the Interest of R. S., 270 Ga. App. 810, 813 (2) (608 SE2d 286) (2004). Those factors include, but are not limited to, whether the parent failed to care for and support the child, OCGA § 15-11-94 (b) (4) (C) (ii), and whether the child is without proper parental care and control because of the physical, mental, or emotional neglect of the child. See OCGA § 15-11-94 (b) (4) (B) (v). The evidence of the mother’s belated entry into a drug treatment program, her failure to complete psychological treatment, her failure to support the child, and her incarceration for a probation violation supports the juvenile court’s conclusion that the lack of proper parental care or control caused C. A. S.’s deprivation. OCGA § 15-11-94 (b) (4) (B) (v), (C) (ii).

3. The mother argues that the evidence did not show that C. A. S. is currently deprived, given her recent progress in addressing her case plan goals. She cites In the Interest of K. M., 240 Ga. App. 677 (523 SE2d 640) (1999), in which we reversed an order terminating the parental rights of a mother who had made significant, recent progress in turning her life around. “Despite the mother’s past conduct,” we wrote, “there is not clear and convincing evidence of present unfitness.” Id. at 680. We also observed that the evidence clearly showed that termination was not in the ten-year-old child’s best interest because of her strong attachment to her mother. Id.

Here, on the other hand, as recently as January 2010, the mother was arrested for a probation violation for which she gave no plausible explanation. Although C. A. S. was removed from her custody in September 2007 because of her drug use, she did not begin treatment until February 2010. At the time of the termination hearing, she still was unemployed, having quit her job to enter the treatment program, even though she could complete treatment while working.

Clear and convincing evidence supports the juvenile court’s conclusion that C. A. S. is presently deprived. Consequently, “what weight to give recent improvements is a question for the trier of fact. In considering a parent’s claims of recent improvement, the trial court, not the appellate court, determines whether a parent’s conduct warrants hope of rehabilitation.” (Punctuation and footnotes omitted.) In the Interest of A. T. H., 248 Ga. App. 570, 573 (1) (547 SE2d 299) (2001).

4. The mother argues that the evidence does not show that the deprivation is likely to continue.

While the record does show the [mother’s] efforts to comply with some aspects of the case plan, what weight to give that evidence was a question for the trier of fact. Likewise, judging the credibility of [her] good intentions was a task for the juvenile court. Moreover, the juvenile court was authorized to consider the [mother’s] past conduct in determining whether the causes of deprivation were likely to continue. And the decision as to a child’s future must rest on more than positive promises which are contrary to negative past fact.

Decided March 24, 2011.

Avrett, Ponder & Withrock, William B. Barnwell, for appellant.

Thurbert E. Baker, Attorney General, Shalen S. Nelson, Senior Assistant Attorney General, Penny Hannah, Assistant Attorney General, Bruce A. Kling, for appellee.

(Footnotes omitted.) In the Interest of D. B., 306 Ga. App. 129, 137 (1) (701 SE2d 588) (2010).

Given the mother’s failure to complete her case plan, her limited financial support of her child, her delay in obtaining drug treatment, and her January 2010 incarceration, the juvenile court was authorized to conclude that the deprivation is likely to continue, despite her belated efforts to comply with certain case plan requirements. See In the Interest of M. C., 287 Ga. App. 766, 769 (1) (c) (653 SE2d 120) (2007).

5. The mother argues that the evidence does not show that termination is in C. A. S.’s best interest. “In determining how the interest of the child is best served, the juvenile court is vested with a broad discretion which will not be controlled in the absence of manifest abuse. . . .” (Footnote omitted.) In the Interest of B. W., 287 Ga. App. 54, 64 (3) (651 SE2d 332) (2007). And “the same factors that show parental misconduct and inability support a finding that termination of parental rights is in the child’s best interest.” Id.

Based on the evidence of the mother’s instability, her failure to support her child, and the foster parents’ desire to adopt C. A. S. and his cousins, the juvenile court did not manifestly abuse its discretion in concluding that termination is in the best interests of C. A. S. See In the Interest of C. M., 282 Ga. App. 502, 507 (2) (639 SE2d 323) (2006).

Judgment affirmed.

Phipps, P J., and Andrews, J., concur.


author: Miller, Presiding Judge.

text:
    A10A0884.
    JENKINS v. SMITH et al.
    (709 SE2d 23)
   Miller, Presiding Judge.

The instant lawsuit arises out of a dispute between appellant Bobby Jenkins, the former Superintendent of the Randolph County School District; Henry Cook, the former chairman of the Randolph County Board of Education; and appellees Don Smith, Dymple McDonald, and James E. Mock, who are members of the Randolph County Board of Education (collectively “the Board members”). The Board members sought to replace Cook as the chairman and to terminate Jenkins’s employment contract. Both Cook and Jenkins filed separate lawsuits against the Board members, seeking to enjoin their actions to remove them from their respective positions.

In Jenkins’s lawsuit, the parties filed several motions, including, inter alia, a motion for contempt against Jenkins; Jenkins’s motion to recuse the trial judge and “motion for disclosure of all contacts between the Court, counsel, and judges”; and requests for injunctive relief. In resolving the motions, the trial court entered orders finding Jenkins in contempt and denying Jenkins’s motions for recusal and for disclosure of contacts. Although the trial court had initially granted Jenkins’s request for an interlocutory injunction, it later dissolved the injunction. Thereafter, the trial court granted an injunction in favor of the Board members.

Jenkins has filed the instant appeal to challenge the trial court’s aforementioned rulings. He contends that the trial court erred in: (i) dissolving his interlocutory injunction; (ii) in holding him in contempt; (iii) in denying his motion to recuse; (iv) in awarding overly broad injunctive relief to the Board members when a petition for quo warranto was the exclusive remedy; and (v) in denying his motions without due consideration. We discern no error and affirm.

The record shows that in 1997, Jenkins entered into an employment contract to serve as the superintendent for the Randolph County School District. The contract was extended for subsequent terms. The contract set forth Jenkins’s duties and responsibilities, which included the implementation of the Board’s policies and attendance and participation in the Board’s meetings. The contract also specified the grounds and procedures for Jenkins’s termination and removal from office.

While Jenkins served as superintendent, Cook was the chairman of the Board. At some point, however, Jenkins’s and Cook’s relationships with the other three Board members became contentious. The Board members sought to remove Cook and Jenkins from their respective positions.

Both Cook and Jenkins filed lawsuits against the Board members. Jenkins requested an interlocutory injunction to prevent the Board members from pursuing the termination of his employment contract. The trial court initially granted Jenkins’s request for an interlocutory injunction. Thereafter, the Board members filed an answer and counterclaim, requesting dissolution of the interlocutory injunction so that they could move forward with Jenkins’s termination hearing. The trial court granted the Board members’ request, and the interlocutory injunction was dissolved. On June 16, 2009, the trial court also entered an order, which stated as follows:

It further appearing from the verified pleadings that previous Boards of Education of Randolph County have adopted certain policies and procedures that are contrary to our basic tenets of government and that are designed to prevent free legislation in matters; therefore, until further order of the Court it is ordered as follows:
1. Any member of the Board of Education of Randolph County shall have the right to include an item on the Agenda as same is defined by O.C.G.A. Section 50-14-1 and by current policy.
2. Any ruling by the chairman may be appealed by any member of the Board of Education to the members present at such meeting and a decision of the majority of the Board of Education voting on such matter shall prevail on said matter. Although the order was only filed and entered in Cook’s lawsuit, Jenkins was aware of the order and its mandates.

On June 24, 2009, the Board members sent Jenkins a letter requesting that certain items be added to the agenda for an upcoming meeting. Jenkins, however, failed and refused to add the requested items to the agenda. Thereafter, when the Board members made motions to add the items during the meeting, Cook repeatedly interrupted and refused to address the items.

Based on the actions of Jenkins and Cook, the Board members filed a motion for contempt. Following a consolidated contempt hearing, both Jenkins and Cook were found in contempt for violating the June 16 order and were ordered to spend four days in jail. Jenkins immediately filed a notice of appeal and a motion for supersedeas. The trial court initially denied the motion for super-sedeas, but later rescinded its order and granted the motion.

On September 4, 2009, the Board members conducted Jenkins’s termination hearing. Jenkins was present and was represented by counsel at the hearing. At the conclusion of the hearing, Jenkins’s employment contract was terminated by a majority vote of the Board members.

The Board members subsequently filed a request for an injunction against Jenkins, contending that Jenkins refused to acknowledge his termination, refused to vacate the office, and was continuing to take actions as if he was still the superintendent. Before a hearing could be held on the Board members’ request for relief, Jenkins filed a motion for recusal, contending that the trial judge was not impartial. Jenkins also filed a “motion for disclosure of all contacts between the Court, counsel, and judges[.]”

The trial court denied Jenkins’s motions. Following an eviden-tiary hearing, the trial court granted injunctive relief in favor of the Board members, restraining Jenkins from acting as superintendent and from interfering with the lawful operations of the Randolph County School District. Jenkins then filed the instant appeal.

1. Jenkins contends that the trial court erred in dissolving his interlocutory injunction and doing so without conducting an eviden-tiary hearing. This contention of error, however, is moot.

It is a rather fundamental rule of both equitable jurisprudence and appellate procedure, that if the thing sought to be enjoined in fact takes place, the grant or denial of the injunction becomes moot. To prevent such an appeal from becoming moot the appealing party must obtain a super-sedeas.

(Citations and punctuation omitted.) Jackson v. Bibb County School Dist., 271 Ga. 18, 19 (515 SE2d 151) (1999).

Here, the record establishes that the purpose of the previously entered interlocutory injunction was to preserve the status quo and prevent the Board members from conducting a hearing to terminate Jenkins’s employment. After the trial court dissolved the interlocutory injunction, Jenkins failed to seek a supersedeas from the trial court, or from this Court, to prevent the termination hearing. The termination hearing was subsequently conducted and Jenkins’s employment was terminated. Since the acts sought to be enjoined have taken place, the issues pertaining to the dissolution of the injunction have been rendered moot. See Jackson, supra, 271 Ga. at 19; Strickland v. Adams, 231 Ga. 729 (204 SE2d 294) (1974).

2. Jenkins also challenges the trial court’s finding of contempt. As stated in footnote 1 above, Jenkins’s arguments are substantially similar to those addressed by the Supreme Court of Georgia in a related appeal filed by Cook. See Cook, supra, 288 Ga. at 412 (3). Accordingly, we adhere to the Supreme Court’s rulings and affirm as to those claims.

We further conclude that the evidence supports the trial court’s findings that Jenkins was aware of its June 16 order and had wilfully violated the order by refusing to add the Board members’ requested items to the meeting agenda. The trial court therefore did not abuse its discretion when it held Jenkins in contempt. See Cook, supra, 288 Ga. at 412 (3); Gen. Teamsters Local Union No. 528 v. Allied Foods, 228 Ga. 479, 483-484 (3) (a) (186 SE2d 527) (1971).

3. Jenkins further contends that the trial court erred in denying his motion to recuse. The trial court concluded that Jenkins’s recusal motion was untimely and that the accompanying affidavit was legally insufficient. “We review the trial court’s ruling on a motion to recuse for abuse of discretion.” (Citation omitted.) Hill v. Clayton County Bd. of Commrs., 283 Ga. App. 15, 20 (3) (640 SE2d 638) (2006). We discern no error.

Motions to recuse must be timely and made as soon as the facts demonstrating the basis for disqualification become known. Uniform Superior Court Rule 25.1 requires that such motions must be made “not later than five (5) days after the affiant first learned of the alleged grounds for disqualification,” unless good cause is shown. Absent the filing of a timely recusal motion accompanied by a legally sufficient affidavit, such motion is subject to denial on its face. Additionally, Uniform Superior Court Rule 25.2 requires that “[t]he affidavit shall clearly state the facts and reasons for the belief that bias or prejudice exists, being definite and specific as to time, place, persons and circumstances [.]” Bare conclusions and opinions are not legally sufficient.

(Citations and punctuation omitted.) Id.

Jenkins filed his recusal motion on September 22, 2009. The accompanying affidavit reflected that his motion was based upon the unfavorable contempt and supersedeas rulings entered by the trial judge on July 30, 2009, along with his suspicion that the trial judge had engaged in ex parte communications with opposing counsel as to scheduling matters on or about June 10, 2009, July 17, 2009, and August 7, 2009. The affidavit further asserted bias based upon the trial court’s decision to schedule a hearing on the Board members’ request for an injunction, notwithstanding Jenkins’s argument that the filing of his notice of appeal from the contempt order divested the trial court of jurisdiction over further proceedings.

Based upon the assertions in the recusal motion and the affidavit, the trial court correctly concluded that the motion was untimely. See Wall v. Thurman, 283 Ga. 533, 535 (5) (661 SE2d 549) (2008). Moreover, Jenkins’s mere dissatisfaction with the trial judge’s rulings and bare allegations that the trial judge engaged in ex parte communications with opposing counsel as to scheduling matters were insufficient to warrant a belief that bias existed. See Rice v. Cannon, 283 Ga. App. 438, 442-443 (2) (641 SE2d 562) (2007); Stephens v. Ivey, 212 Ga. App. 407, 408 (2) (442 SE2d 248) (1994). Consequently, the trial court did not abuse its discretion in denying the recusal motion on its face. See id.

4. Jenkins also argues that the trial court erroneously awarded overly broad injunctive relief to the Board members and that a petition for quo warranto was the exclusive remedy. Again, we disagree.

Here, the injunction was requested and granted to immediately and fully restrain Jenkins from interfering with the Board’s operations, attempting to assume and carry on the duties of the superintendent’s office, and refusing to vacate the office and premises following his termination. Jenkins’s claim that the injunction was overbroad is without merit. See Murdock v. Perkins, 219 Ga. 756, 758-759 (1) (135 SE2d 869) (1964). Likewise, there is no merit to Jenkins’s argument that a writ of quo warranto was the exclusive remedy against him. See id. at 759 (1); Cummings v. Robinson, 194 Ga. 336, 345-346 (1) (21 SE2d 627) (1942). The trial court’s decision granting injunctive relief in favor of the Board members was authorized. Id.

5. Lastly, Jenkins asserts that the trial court erred in denying his motions without due consideration. Particularly, Jenkins contends that the trial court erroneously denied his “motion for disclosure of all contacts between the Court, counsel, and judges” and failed to rule upon his subsequent motion to vacate and/or set aside the order granting injunctive relief to the Board members. These contentions are also without merit.

Jenkins’s motion for disclosure of “all contacts” was overbroad and was not limited in scope to communications relevant to the instant lawsuit. As such, the motion was properly denied. See Dikeman v. Mary A. Stearns, P.C., 253 Ga. App. 646, 647-648 (1) (a) (560 SE2d 115) (2002) (the trial court did not abuse its discretion in denying an overbroad request for information).

Decided March 25, 2011.

Maurice L. King, Jr., for appellant.

Perry & Walters, Franklin T. Coleman III, for appellees.

Moreover, Jenkins filed his notice of appeal from the injunction on October 5, 2009, and belatedly filed the motion to vacate the injunction on October 14, 2009. Since the injunction was the order being appealed, the trial court was divested of jurisdiction to rule upon the motion to vacate the injunction. See McLeod v. Clements, 306 Ga. App. 355, 357 (2) (702 SE2d 638) (2010) (“A notice of appeal divests the trial court of jurisdiction to supplement, amend, alter, or modify the judgment while the appeal of that judgment remains pending.”); Rocha v. State, 287 Ga. App. 446, 448 (1) (b) (651 SE2d 781) (2007) (same). Accordingly, due to a lack of jurisdiction, the trial court did not err in withholding a ruling upon the motion.

Judgment affirmed.

Phipps, P J., and McFadden, J., concur.

       Cook and Jenkins asserted similar claims in their respective lawsuits. See Cook v. Smith, 288 Ga. 409 (705 SE2d 847) (2010). Like Cook, Jenkins also contends that the trial court erred in: (a) failing to make written findings of fact and conclusions of law in its order dissolving the prior interlocutory injunction; (b) in consolidating his contempt hearing with the hearing against Cook; (c) in finding him in contempt since the prior order was too indefinite and the exclusive remedy against him was mandamus, and; (d) in continuing to preside over the case after a notice of appeal was filed for review of the contempt order. The Supreme Court of Georgia exercised jurisdiction over Cook’s appeal and resolved these claims against Cook. See id. “[W]e are constitutionally bound by the decisions of our own Supreme Court. See Ga. Const, of 1983, Art. VI, Sec. VI, Par. VI.” Williamson v. Ward, 192 Ga. App. 857, 858 (1) (386 SE2d 727) (1989). Accordingly, Jenkins’s claims fail for the reasons explained in Cook.

       Under OCGA § 20-2-101 (a), “[sluperintendents of each school system shall be employed by the local board of education under written contracts!.]” Subsection (f) of the statute further provides that “the terms and conditions of employment of a school superintendent by a local school system shall be determined exclusively by the contract between those parties and may include, without being limited to, the conditions under and procedures by which that contract may be terminated prior to the end of the term of that contract.”

       Contrary to Jenkins’s argument, the trial court did not err by continuing to preside over this case after the notice of appeal had been filed as to the contempt ruling. See Cook, supra, 288 Ga. at 412-413 (4).


author: MILLER, Presiding Judge.

text:
    A10A1614.
    McKINLEY v. COLISEUM HEALTH GROUP, LLC.
    (708 SE2d 682)
   MILLER, Presiding Judge.

Coliseum Health Group, LLC d/b/a Coliseum Health Group (“Coliseum”) sued its former employee, Dr. Mary E. McKinley, for breach of contract seeking to recover $49,907 allegedly overpaid to McKinley under their employment agreement. McKinley timely answered and counterclaimed asserting that she was entitled to a refund of $46,559.53 based upon the claim that unauthorized fees and overcharges had been assessed against her in the amount of $96,466.53. Cross-motions for summary judgment followed based upon the express terms of the Agreement. The trial court granted summary judgment in favor of Coliseum and against McKinley. McKinley appeals, contending that the trial court erred: (i) in construing the parties’ agreement as authorizing Coliseum to charge McKinley with management fees, collection fees, and for allowances for bad debts actually collected, and (ii) in considering inadmissible parol evidence. We discern no error and affirm.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. A de novo standard of review applies to an appeal from a grant of summary judgment, and we review the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

(Footnotes omitted.) Coleman v. Arrington Auto Sales & Rentals, 294 Ga. App. 247 (669 SE2d 414) (2008).

So viewed, the evidence shows that in February 2002, McKinley and Coliseum entered into a Physician Employment Agreement (the “Agreement”) commencing on August 1, 2002 and terminating on September 30, 2006. Exhibit B of the Agreement provided that McKinley would be paid “the difference between “(a) the product of Ninety percent (90%) of the Practice’s Precompensation Earnings, and (b) Physician Expenses.’ ” Exhibit B further defined “precom-pensation earnings” as the difference between net practice revenues (defined as all gross revenues) and practice operating expenses. In turn, the Agreement defined practice operating expenses as

all direct and indirect non-capital expenses incurred subsequent to the Effective Date in the day-to-day management and operation of the Practice and any of its satellite offices (all in accordance with Employer’s general accounting policies and procedures), including, without limitation, ... allowances for bad debts.

Also defined as practice operating expenses by the Agreement were salaries, benefit expenses, rent, taxes, utility expenses, office and medical supplies, premises and general liability insurance, repairs to the building, and professional liability insurance.

By the Agreement, Coliseum also agreed to provide McKinley a monthly draw in the amount of $12,083, commencing on August 1, 2002, as an advance towards her compensation. Upon the expiration of the Agreement amounts received in this manner were to be reconciled “within 30 calendar days” of the expiration or earlier termination of the Agreement. If the amount received by McKinley under the Agreement was in excess of the amount due, then the amount of the excess was owed by McKinley to Coliseum.

On September 30, 2006, the term of the Agreement between Coliseum and McKinley ended, and Coliseum reconciled her account. The reconciliation reflected that McKinley received $49,907 in excess of the physician compensation she earned. Subsequently, Coliseum sent demand letters to McKinley for payment in full or repayment arrangements for the amount owed. The instant litigation followed McKinley’s failure to comply with the demand letters.

1. McKinley contends that the trial court erred in construing the Agreement as authorizing Coliseum to charge management fees, collection fees, and for bad debts actually collected. We disagree.

The construction of a contract, including the existence or nonexistence of any ambiguities in the contract, presents a question of law for the court, which this Court reviews de novo. Reynolds Properties, Inc. v. Bickelmann, 300 Ga. App. 484, 487 (685 SE2d 450) (2009); Coleman, supra, 294 Ga. App. at 249 (2).

In Georgia, the construction of a contract involves three steps.

At least initially, construction is a matter of law for the court. First, the trial court must decide whether the contract language is clear and unambiguous. If it is, the trial court simply enforces the contract according to its clear terms; the contract alone is looked to for its meaning. Next, if the contract is ambiguous in some respect, the court must apply the rules of contract construction to resolve the ambiguity. Finally, if the ambiguity remains after applying the rules of construction, the issue of what the ambiguous language means and what the parties intended must be resolved by a jury.

(Citation and punctuation omitted.) Record Town, Inc. v. Sugarloaf Mills Ltd. Partnership of Ga., 301 Ga. App. 367, 368 (3) (687 SE2d 640) (2009).

Here, the trial court properly granted summary judgment for Coliseum and against McKinley upon resolving ambiguity in the Agreement based on the rules of contract construction and parol evidence. In this regard, the Agreement broadly defined the term “Practice Operating Expense,” as including “all direct and indirect non-capital expenses incurred,” “all in accordance with [Coliseum’s] general accounting policies and procedures,” and “without limitation” those for “bad debts,” incurred prior to the expiration of the employee physician’s contract. Significantly, however, terms “general accounting policies and procedures” and “bad debts” were not defined in the Agreement. As such, these terms were ambiguous and required explanation. Under the rules of contract construction, “parol evidence is admissible to explain an ambiguity in a written contract, although such evidence is inadmissible to add to, take from, or vary the writing itself.” (Citation omitted.) Andrews v. Skinner, 158 Ga. App. 229, 230 (279 SE2d 523) (1981). Here, Coliseum presented the parol evidence of its senior financial analyst who deposed that at the time of McKinley’s employment, the standard procedure was to declare a “debt” a “bad debt” 150 days after the date medical services were provided. Such deponent also stated that “ credit [ing]” employee physicians with bad debts collected after the expiration of the employee physician’s contract was not standard procedure at the time McKinley left the practice. Moreover, the record reveals that Coliseum’s practice administrator met with McKinley frequently regarding her compensation and explained the “Management Fee, amounts for collection, and amounts for bad debt. . . being deducted from her compensation and answered all of [her] questions regarding the same.”

Decided March 25, 2011.

Jones, Cork & Miller, Hubert C. Lovein, Jr., for appellant.

The broad and inclusive language of the Agreement itself constitutes evidence that the parties intended that physician’s compensation be reduced by deductions for the day-to-day management and operation of the practice — these including management fees, collection fees, and bad debt fees, including bad debts for which collection was later received. Coliseum’s continued deduction of such amounts throughout the four-year term of the Agreement and McKinley’s acceptance of the benefits of the arrangement for four years, without objection, is additional evidence that the parties intended that the complained of fees be charged against physician compensation. “The construction placed upon a contract by the parties thereto, as shown by their acts and conduct, is entitled to much weight and may be conclusive upon them. Scruggs v. Purvis, 218 Ga. 40, 42 (126 SE2d 208) (1962).” (Punctuation omitted.) Toncee, Inc. v. Thomas, 219 Ga. App. 539, 541 (2) (466 SE2d 27) (1995).

Under these circumstances, we conclude that the trial court’s grant of summary judgment for Coliseum and against McKinley was proper. Andrews, supra, 158 Ga. App. at 230.

2. As stated in Division 1, parol evidence was admissible to explain ambiguity in the Agreement related to Coliseum’s general accounting procedures as these related to charges against McKinley’s compensation for management and bad debt collection. McKinley’s claim that such evidence was inadmissible is therefore without merit.

Judgment affirmed.

Phipps, P. J., and McFadden, J., concur.

Thomerson & Macchiaverna, Michael J. Thomerson, for appel-lee.

       By her amended counterclaim McKinley averred that she had been overcharged fees in the amount of $76,684.46 and allowances for bad debts which had actually been collected in the amount of $19,782.07.

       Stated otherwise, McKinley was to be paid (90% times Precompensation Earnings) minus (Physician’s Expenses).


author: BARNES, Presiding Judge.

text:
    A10A1641.
    MACHIAVELLO v. THE STATE.
    (709 SE2d 28)
   BARNES, Presiding Judge.

A jury convicted Louis Machiavello of aggravated child molestation and two counts of child molestation, sexual battery, and cruelty to a child, and he appeals. He asserts that his trial counsel was ineffective for failing to obtain a severance, for not calling certain witnesses, and for the manner of his cross-examination. He also argues that the trial court erred in denying his motion to sever. For the reasons that follow, we affirm the convictions.

1. As a threshold matter, Machiavello’s brief does not comply with the rules of the Court of Appeals. Most importantly, Rule 25 (c) (1) requires that the sequence of arguments follow the order of the enumeration of errors and be numbered accordingly. Machiavello enumerates seven errors, each of which includes multiple issues, then argues enumerations one, two, three, and seven together. The arguments do not follow the order of the enumerations, and are difficult to address in an orderly manner. As we have previously held, “Rule [(25)] (c) (1) is more than a mere formality. It is a requirement which this Court imposes to ensure that all enumerations of error are addressed and to facilitate review of each enumeration.” (Citation omitted.) McCombs v. State, 306 Ga. App. 64 (1) (701 SE2d 496) (2010). To the extent that we are able, however, we will address Machiavello’s enumerations and arguments.

2. Machiavello argues that the trial court erred in denying his motion to sever because the offenses related to one victim would not have been admissible during trial on offenses related to the other victim, and because the trial court failed to assess whether severance of the offenses would promote a fair determination of guilt or innocence as to each offense. He was indicted on seven counts, two involving one victim in February or March 1999, and five involving another victim between October 2001 and February 2002. Machia-vello moved to sever trial on Counts 1 and 2, arguing these charges were unrelated to Counts 3 through 7; that they differed from the charges related to the other victim; that due to the complexity of evidence and number of offenses it was probable the jury would be unable to distinguish the evidence and apply the law intelligently to each offense; and that trying them together would serve no purpose other than to impugn his character.

When two or more crimes of the same general nature are committed against different persons, at different times and places, and are charged in separate counts of an indictment, severance is mandatory upon the defendant’s motion if the crimes are joined solely because they are of the same or similar character. Dingler v. State, 233 Ga. 462 (211 SE2d 752) (1975). If the offenses are not joined solely because they are of the same or similar character, and evidence of one charged offense would be admissible as a similar transaction during trial on another charged offense, the trial court is vested with discretion in deciding whether to grant a motion to sever. Stewart v. State, 277 Ga. 138, 140 (587 SE2d 602) (2003). In making this decision, the court must consider the number of offenses charged, the complexity of the charges, and the complexity of the evidence and determine whether the jury will be able to fairly and intelligently “parse the evidence and apply the law with regard to each charge.” Id. at 139.

During a hearing on the motion to sever, trial counsel argued that although both incidents involved allegations of child molestation, they involved “totally unrelated individuals” and a “totally unrelated set of facts.” Initially, the State did not prosecute the 1999 case. Machiavello was never arrested, and after some investigation the file was closed. The State did not arrest Machiavello for the 1999 incident until after it began investigating the second incident, and counsel argued that making Machiavello

go forward on trial on both cases at the same time would be highly prejudicial and would complicate the matter because we’ve got two different sets of facts. We’ve got two different sets of individuals. We’ve got different times, different dates. And I believe it would tend to confuse the jury, and I would rather we go to trial on one case at a time.

Counsel also argued that if the State filed a motion to present the first incident as a similar transaction during trial on the second incident, “then we would be handling and dealing with that issue,” which he preferred.

The State responded that trying the offenses together would not confuse the jury and would not be so prejudicial as to require severance. Further, evidence of one incident would be admissible during trial on the other, because the cases showed a common pattern of conduct and were “extremely similar in nature. The Defendant was involved in a romantic relationship with the victims’ mothers. He was responsible for watching these children when the abuse took place while their mothers were at work. . . . He showed favoritism to each of the individual girls by giving them items of value.” The first victim and her mother had lived with Machiavello then moved to their own house, where the abuse occurred. The second victim, her mother, and her brother were living with Machia-vello when he committed the offenses. The female victims, who were ten and twelve, were also close in age.

The trial court noted that if it did sever the case, proof of one offense would be admissible during trial on the other. The allegations portrayed a series of criminal acts closely connected by geography, involving similar victims who had both lived with Machiavello. The court held that the cases did not appear to be joined solely because they were similar, and questioned what severance would gain “in terms of intelligibility.” It held that the offenses “may be . . . an uninterrupted course of conduct. . . not just a similar transaction^ with n]o intervening closure that makes it a separate course of conduct other than it’s just different people.” The trial court denied the motion to sever but urged the parties to do more research on the issue and granted them leave to raise the issue again if either party found persuasive authority to the contrary. While the court thought the issue was close, it also held that “clearly... if I were to sever these, the evidence of one set of cases would be admissible in the trial of the other.”

When “in the sound discretion of the trial court, the number of offenses charged and the complexity of the evidence do not reasonably impinge upon a fair determination of the defendant’s guilt or innocence as to each offense charged, a severance need not be granted.” Chaparro v. State, 279 Ga. App. 145, 147 (3) (630 SE2d 645) (2006) (affirming denial of motion to sever molestation charges related to one victim from trial on charges related to another victim). As the State observed,

[w]hen the facts brought out at trial are considered as a whole, . . . not only were the two victims’ stories strikingly similar, but the manner in which Machiavello gained access to his second victim appears to have been a blatant attempt to recreate, through artifice and deceit, the very circumstances that allowed him access to his first victim.

Under the circumstances of this case, the trial court did not abuse its discretion in denying the requested severance. See Rollinson v. State, 276 Ga. App. 375, 380 (2) (623 SE2d 211) (2005).

3. Machiavello argues throughout the section of his brief related to severance that his trial counsel was ineffective for failing to submit a brief to support the motion to sever, by being unprepared during argument on the motion, and by failing to pursue the severance issue or raise a similar transactions objection, despite the trial court’s invitation to do so. Whether trial counsel was ineffective is a two-part test, considering first whether counsel performed reasonably under prevailing professional norms, and second, whether counsel’s deficient performance prejudiced the defense. Wadley v. State, 258 Ga. 465, 466-467 (3), (4) (369 SE2d 734) (1988). The defendant establishes prejudice by showing that, but for counsel’s inadequate performance, there is a reasonable probability the result would have been different, and if the defendant suffers no prejudice, it does not matter whether counsel’s performance was adequate. Id. Thus, we need not address both components if the defendant makes an insufficient showing on one. Nelson v. State, 255 Ga. App. 315, 322-323 (10) (565 SE2d 551) (2002).

There is a strong presumption that trial counsel’s performance falls within the wide range of reasonable professional assistance, and ... [a] trial court’s determination that a defendant has not been denied effective assistance of counsel will be affirmed on appeal unless that determination is clearly erroneous.

(Punctuation and footnotes omitted.) Collier v. State, 266 Ga. App. 345, 351 (2) (596 SE2d 795) (2004).

During the new trial motion in this case, the trial court reviewed in depth the reasoning behind its denial of the motion to sever and its comments regarding the similar transaction and joinder issues. It noted that it would be logical to consider similar transaction issues when deciding whether it was just or proper to allow the evidence of both victims in one case, but that the real issue was whether doing so would be “unduly prejudicial.” The crimes here were “sufficiently similar under any construction of sex crimes that proof of one would have established the proof of the other in the elements not only of intent but identity,” both of which were issues in the case. The court noted that the fact that the new case resulted in the opening of a closed case was not meaningful because the case was revived by additional evidence, which here was “evidence of lustful disposition, evidence of intent, evidence of motive, evidence of common plan or scheme ... to deal with people of similar age.” The court also noted that these were sex crimes, in which greater latitude of admissibility is allowed. Further, the offenses were not joined solely because they were sex crimes, but because proof of one helped establish the elements necessary to prove the other. The court determined that trying the offenses together was not confusing, because there were only two victims. Finally, the trial court found that in retrospect it would not have done anything differently even if it had held a hearing on whether the incidents were similar transactions.

Decided March 25, 2011

Thus, if trial counsel had pursued the motion to sever and obtained a similar transaction hearing, the trial court still would have denied the motion. Trial counsel will not be found ineffective for failing to take action that would not have made any difference. Johnson v. State, 159 Ga. App. 333 (2) (283 SE2d 375) (1981) (“|F]allure to make a useless and incorrect objection was not ineffective assistance of counsel.”)- The trial court did not err in concluding that trial counsel was not ineffective in this regard.

4. Machiavello contends his trial counsel was ineffective in failing to present expert medical testimony and failing to interview the State’s medical witnesses before trial, who testified that one of the victim’s normal physical examinations was not inconsistent with sexual molestation or penetration. Trial counsel testified that the medical reports indicated that the victim had no evidence of physical injury, which counsel thought was helpful to the case, and he focused on that finding in his cross-examination. Further, counsel contacted an expert to review the children’s interviews, and she told them she thought they had been properly conducted and that if called to testify she would “hurt” them. His strategy, in consultation with Machia-vello, was to “harp on the fact that there is no injury,” and they did not think they needed expert witnesses to make that point. While a proposed expert medical witness testified at the new trial hearing, the trial court noted that it had not “heard of a single thing that [the expert] could have testified in this case” that would have helped the defense and concluded that trial counsel chose not to pursue that kind of evidence for valid reasons. Machiavello is correct that not every decision labeled “tactical” is per se beyond reproach, but in this case the decision not to hire an expert or interview the State’s medical witnesses before trial was clearly a tactical and strategic decision that cannot form the basis for an ineffective assistance claim.

5. Machiavello contends his trial counsel was ineffective for failing to call certain witnesses, but he did not call them to testify during the new trial motion hearing and has presented no evidence that these witnesses would have been helpful to the defense or that their testimony would have been admissible. Finally, Machiavello contends his trial counsel was ineffective in his cross-examination of the victims, one of the detectives, and the mother of one of the victim’s friends. We have reviewed these enumerations, and find them to be without merit.

Judgment affirmed.

Blackwell and Dillard, JJ., concur.

Burns, Speights & Grisham, J. Doran Burns, Scott P. Archer, for appellant.

Garry T. Moss, District Attorney, Cliff Head, Lara A. Snow, Assistant District Attorneys, for appellee.