author: PHIPPS, Presiding Judge.

text:
    A11A0162.
    CRAFT v. THE STATE.
    (710 SE2d 891)
   PHIPPS, Presiding Judge.

In connection with a shooting at an apartment complex, Eldreco Craft was convicted of aggravated assault, disorderly conduct, possession of a firearm by a convicted felon, criminal damage to property in the first degree, and possession of a firearm during the commission of a felony. He argues on appeal that the state violated Batson v. Kentucky during jury selection; the evidence was insufficient to support his aggravated assault conviction; a count of the indictment was defective; the judge improperly expressed an opinion during trial; the court improperly charged the jury; and he received ineffective assistance of counsel. Craft has shown that the court committed reversible error when it charged the jury on possession of a firearm during the commission of a felony, and thus we reverse Craft’s conviction for that offense; because the evidence was sufficient to support that conviction, however, Craft may be retried. There is no merit in Craft’s remaining contentions, and accordingly we affirm his other convictions.

1. Craft argues that the trial court erred in denying his Batson challenge to one of the state’s peremptory jury strikes.

The evaluation of a Batson challenge involves a three-step process: (1) the opponent of a peremptory challenge must make a prima facie showing of racial discrimination; (2) the proponent of the strike must then provide a race-neutral explanation for the strike; and (3) the court must decide whether the opponent of the strike has proven discriminatory intent.

The findings of the trial court are entitled to great deference, and should not be disturbed unless clearly erroneous.

The court found that Craft had made a prima facie showing of racial discrimination because the state used six of eight peremptory strikes against prospective jurors who were members of racial minority groups. After the state offered explanations for the strikes, the court reinstated one juror (the alternate) but allowed the other five strikes to stand, ruling that the state’s proffered explanations for those five strikes were race-neutral and that Craft had failed to show discriminatory intent.

Craft challenges the court’s ruling regarding one of the five permitted strikes. The state’s explanation for striking the prospective juror was that he had been “slumped down in his chair” during voir dire and “seemed disinterested in what was going on.” This was a race-neutral explanation for exercising the strike.

Craft questions whether the prospective juror was in fact disinterested and notes that the court failed to make a specific finding on this point. But the court was not required to make a finding on the juror’s actual disinterest; it was required to determine, considering the totality of the circumstances, whether Craft had shown that the state was motivated by discriminatory intent in the exercise of the strike. Under the circumstances, we cannot conclude that the court’s Batson ruling was clearly erroneous. There was not, for example, a showing that “similarly situated jurors of another race were not struck or that the [state’s] race-neutral reason for [the] strike [was] so implausible or fantastic that it render[ed] the explanation pretextual.” Nor was there any other ground shown that required a finding that the prosecutor had a discriminatory intent. That the court reinstated another juror, against whom the state used a peremptory strike for a different reason, does not demand a different result. George v. State, cited by Craft, is inapposite; in that case, the record did not support the state’s proffered explanations for several peremptory strikes.

The trial court was authorized to find that Craft failed to carry his burden of showing purposeful discrimination. Consequently, the court did not clearly err in denying Craft’s Batson motion.

2. Craft was charged with aggravated assault against a specific resident of the apartment complex, into whose apartment a bullet had passed during the shooting. He argues that there was insufficient evidence to support his conviction for this offense. When an appellant challenges the sufficiency of the evidence to support the conviction, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”

So viewed, the evidence showed that on March 19, 2008, Craft, while standing outside an apartment complex amid a group of people, waved a gun in the air and then intentionally fired it several times toward an apartment building. A bullet entered an apartment through a window, passed through the living room, and lodged in a closet door. The apartment’s resident and her children were in the living room at the time. The resident testified that she heard the sounds of bullets and breaking glass, that she and her children were on the floor of her apartment when the bullet came through the window, that she was “paranoid,” that she remained on the floor of her apartment for about ten minutes afterward, and that she crawled to her telephone to call for help and crawled to her door when assistance arrived.

A person commits an aggravated assault, among other ways, by assaulting another with a deadly weapon. A person commits an assault by, among other things, committing an act which places another in reasonable apprehension of immediately receiving a violent injury. The jury was authorized to find from the evidence that Craft intentionally committed an act that placed the apartment resident in reasonable apprehension of immediately receiving a violent injury. The evidence thus was sufficient to support his conviction for aggravated assault.

3. The indictment charged Craft with possessing a firearm during the commission of the felony of criminal damage to property in the first degree. Craft argues that this count was defective because the felony alleged in the count could not serve as a predicate for the possession offense. He raised this argument to the trial court at the close of the state’s case through a motion for directed verdict of acquittal on the charge of possession of a firearm during the commission of a felony. But a “motion for directed verdict of acquittal addresses the sufficiency of the evidence, not the sufficiency of the underlying indictment.” Because Craft moved for a directed verdict of acquittal, the issue presented for appellate review is the propriety of the court’s denial of that motion, which issue “is determined, not by the sufficiency of the indictment, but by whether the evidence adduced at trial demanded a verdict of ‘not guilty,’ under the standard of Jackson v. Virginia.”

OCGA § 16-11-106 provides, in pertinent part, that a person commits a felony by having on or within arm’s reach of his or her person a firearm during the commission of certain enumerated felonies. The indictment alleged that Craft violated OCGA § 16-11-106 by possessing a firearm while committing criminal damage to property in the first degree. Although the Code section does not specifically list criminal damage to property in the first degree as a predicate felony, it more generally enumerates as a predicate offense any crime which is a felony “against or involving the person of another.”

A person commits the offense of criminal damage to property in the first degree when he or she, among other things, “[kjnowingly and without authority interferes with any property in a manner so as to endanger human life” This statutory language contemplates that the defendant’s actions create an actual risk of danger to a person. Accordingly, the offense of criminal damage to property in the first degree “involves” a person, and thus may serve as a predicate for a conviction for possession of a firearm during the commission of a felony under OCGA § 16-11-106 (b) (l). And the requirements of Jackson v. Virginia were met as to this conviction, because the evidence authorized the jury to find that Craft, while possessing a firearm, knowingly and without authority interfered with property in a manner endangering human life, by shooting at an inhabited apartment building.

4. Craft contends that the judge violated OCGA § 17-8-57, which provides: “It is error for any judge in any criminal case, during its progress or in his charge to the jury, to express or intimate his opinion as to what has or has not been proved or as to the guilt of the accused.” He does not claim that any specific statement made by the judge before the jury violated this Code section, but he asserts that throughout the trial the judge advised and assisted the state in various ways, including questioning witnesses and helping the state lay evidentiary foundations. Craft argues that, “[w]hen a trial court so blatantly helps the State admit inculpatory evidence through its own questioning of witnesses, and advice to the prosecutor, it not only intimates, but expresses an opinion that it supports the State’s theory that the accused is guilty.”

Although the record shows that the judge asked numerous questions of witnesses during trial,

[i]t has long been a part of Georgia jurisprudence that a trial judge may propound questions to any witness for the purpose of developing fully the truth of the case, and the extent of such an examination is a matter for the trial court’s discretion. The trial court’s examination of a witness called by either side is not cause for a new trial unless the court, during its examination of the witness, expresses or intimates an opinion on the facts of the case or as to what has or has not been proved, or the questioning becomes argumentative.

We discern no violation of OCGA § 17-8-57. The actions cited by Craft that occurred in the jury’s presence do not constitute statements of the judge’s opinion on matters specified in OCGA § 17-8-57, nor argumentative questioning by the judge. In addition, the actions cited by Craft do not reflect an “[ejxtreme anxiety” on the part of the judge “to develop the truth as to facts which, if proved, will be peculiarly beneficial to one of the parties in the case and correspondingly detrimental to the other,” from which the jury could infer the court’s opinion. Rather, the record shows that the judge questioned witnesses called by both Craft and the state about facts that could be considered both beneficial and detrimental to each side’s case.

5. Craft argues that the court erred in instructing the jury that it could find him guilty of possessing a firearm during the commission of a felony in a manner not alleged in the indictment. We agree.

The indictment alleged that Craft committed the offense by possessing a firearm while committing criminal damage to property in the first degree. In its charge to the jury, the court stated that a person commits the offense of possessing a firearm during the commission of a felony “when the person has on or within arm’s reach of his person a firearm during the commission of any or any attempt to commit a felony, which is any crime against or involving the person of another.” As discussed above, criminal damage to property in the first degree is a felony that is a crime against or involving the person of another. Evidence was presented that Craft possessed a firearm during the commission of criminal damage to property in the first degree. However, evidence also was presented that Craft possessed a firearm during the commission of another felony that was a crime against or involving the person of another — aggravated assault.

We considered a similar circumstance in Milner v. State. The indictment in that case charged the defendant with committing the offense of terroristic threats by threatening to murder the victim, but the court charged the jury that a person committed the offense by threatening to commit any violence to the victim. Evidence was presented that the defendant had threatened both to murder the victim and to commit other acts of violence against her. And the court in Milner neither gave a limiting instruction to ensure that the jury could find the defendant guilty of the offense only in the specific manner charged in the indictment, nor instructed the jury not to consider the offense as having occurred in another manner. We held in Milner that, under those circumstances, “without a remedial instruction, it [was] probable that the jury found [the defendant] guilty of committing the [offense] in a manner not charged in the indictment.” Consequently, we found that the defendant’s due process rights were violated and we reversed his conviction on that offense.

The circumstances requiring reversal in Milner are also present in this case. The possession offense was defined by the court as predicated on any felony against or involving the person of another, evidence was presented that Craft committed another such felony, and the court did not instruct the jury to limit its consideration only to the predicate felony specified in the indictment. Thus, we find that under these circumstances there was a reasonable possibility that the jury found Craft guilty of committing the offense in a manner not charged in the indictment, and that Craft’s right to due process accordingly was violated. “This error is sufficiently egregious to preclude a finding that it was waived,” even though Craft did not object to the charge at trial. For this reason, we reverse Craft’s conviction for possession of a firearm during the commission of a felony.

6. Craft’s trial was bifurcated; after the jury found him guilty of several of the charges, evidence was presented on the offense of possession of a firearm by a convicted felon, and the jury heard argument from counsel and was charged by the court on that offense. Craft argues that the court erred when it responded to a juror’s question regarding the court’s charge to the jury on that offense.

The court had instructed the jury that “felony” meant “any offense punishable by imprisonment for a term of one year.” Shortly before that instruction, during closing argument, Craft’s attorney had asserted that Craft had received probation, rather than prison time, for a prior conviction. After the court charged the jury, a juror stated: “Punishable. Which means any offense punishable by imprisonment for one year. Would that mean that the sentence —” A conference then occurred outside the jury’s hearing, at which the court stated: “I don’t think you did it intentionally, but you misstated the law. It does not say they have to go to jail. The punishment has to be for at least a year, and the punishment could be probation or jail.” The court then instructed the jury that an offense “punishable” by imprisonment for 12 months or more was a felony, even if the person convicted of such offense received a probated sentence.

Craft contends that, in giving this additional instruction, the court violated OCGA § 17-8-56, which provides that a superior court judge “shall, when the counsel for either party requests it before argument begins, write out their charges and read them to the jury; and it shall be error to give any other charge or additional charge than that so written and read.” But where, as here, a court reporter took down the trial court’s charge, the requirements of OCGA § 17-8-56 do not apply.

Furthermore, “[gjenerally, the scope and content of additional jury instructions are left to the sound discretion of the trial court, and the trial court may address only the jury’s request on a particular point or [may] give additional instructions.” We discern no abuse of discretion in the court’s response to the juror’s question.

7. Craft claims that he received ineffective assistance of counsel. To prevail, Craft

must establish, pursuant to Strickland v. Washington, that counsel’s performance was deficient and that the deficient performance was prejudicial to his defense. ... In reviewing a trial court’s determination regarding a claim of ineffective assistance of counsel, this court upholds the trial court’s factual findings unless they are clearly erroneous; we review a trial court’s legal conclusions de novo.

We need not address both components of the Strickland test if the showing on one is insufficient, nor must we address the components in any particular order.

(a) Citing Shaw v. State, Craft argues that evidence that he fired a gun into the air, rather than at any particular person, warranted a charge on reckless conduct as a lesser included offense to aggravated assault against the resident in whose apartment the bullet lodged; he contends that his counsel committed professional error in failing to request such a charge. Shaw does not support Craft’s position. Rather, Shaw holds that, despite evidence that the defendant fired a gun into the air, “a reckless conduct charge is not warranted for an aggravated assault committed by placing another in reasonable apprehension of immediately receiving a violent injury.” This is because evidence that a defendant fired a gun into the air, and thereby placed another in reasonable apprehension of immediately receiving a violent injury, demonstrates the intent required for aggravated assault, not the criminal negligence required for reckless conduct. Because the court was not required, under the evidence, to give a charge on reckless conduct, there is no merit in Craft’s claim that his trial counsel’s failure to request such a charge constituted professional error.

(b) Craft asserts that the evidence warranted a jury charge on criminal trespass as a lesser included offense to criminal damage to property in the first degree, and that his counsel committed professional error in failing to request such a charge.

A person commits the offense of criminal trespass when he or she intentionally damages any property of another person without consent of that other person and the damage thereto is $500.00 or less or knowingly and maliciously interferes with the possession or use of the property of another person without consent of that person.

Craft concedes, however, that “there was no testimony or other evidence as to the amount of damage” that was caused to property. And the Supreme Court of Georgia has held that where the only evidence of interference with property showed the defendant’s commission of a life-endangering act, there was no evidence of a “mere knowing and malicious interference with the property of another without his consent,” as required for criminal trespass. Consequently, there was no evidence in this case of the lesser included offense of criminal trespass, and counsel did not commit professional error by not requesting a charge on that offense.

Decided May 31, 2011

John W. Donnelly, for appellant.

Kenneth W. Mauldin, District Attorney, David T. Lock, Assistant District Attorney, for appellee.

(c) Craft asserts that his counsel committed professional error by failing to object when the trial court assisted the state in presenting evidence, allegedly in violation of OCGA § 17-8-57. But as we have concluded, the trial court’s actions did not violate OCGA § 17-8-57. This assertion is without merit.

(d) Craft’s remaining assertion of ineffective assistance of counsel is moot.

Judgment affirmed in part and reversed in part.

Andrews and McFadden, JJ., concur.

       476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986).

       See Lively v. State, 262 Ga. 510, 512 (3) (421 SE2d 528) (1992).

        Flanders v. State, 279 Ga. 35, 37 (2) (609 SE2d 346) (2005) (citation omitted).

        Jackson v. State, 265 Ga. 897, 900 (2) (463 SE2d 699) (1995).

       See Arrington v. State, 286 Ga. 335, 340 (9) (687 SE2d 438) (2009) (strike based on prospective juror’s demeanor can be race-neutral); Rakestrau v. State, 278 Ga. 872, 875 (3) (c) (608 SE2d 216) (2005) (inattentiveness during voir dire has been upheld as a valid race-neutral reason for striking potential jurors). See generally Jackson, supra at 898 (unless discriminatory intent is inherent in proponent’s explanation, reason offered will be deemed race-neutral).

        Barnes v. State, 269 Ga. 345, 349 (6) (496 SE2d 674) (1998); see Flanders, supra.

       See Barnes, supra at 350-351 (6).

       Id. (punctuation and footnote omitted).

       The prosecutor explained that he had struck the reinstated juror because of the emphasis she had placed on her church attendance.

       See Kimble v. State, 301 Ga. App. 237, 247 (6) (687 SE2d 242) (2009).

       263 Ga. App. 541 (588 SE2d 312) (2003).

       Id. at 544-548 (2) (a)-(d).

       See Flanders, supra.

       Id.

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

       OCGA § 16-5-21 (a) (2).

       OCGA § 16-5-20 (a). See generally Brinson v. State, 272 Ga. 345, 347 (1) (529 SE2d 129) (2000) (central to the offense of aggravated assault is that an assault as defined in OCGA § 16-5-20 be committed on the victim).

       See Smith v. State, 280 Ga. 490, 492 (1) (629 SE2d 816) (2006) (in aggravated assault case involving deadly weapon, all that is required is that assailant intend to commit act which in fact places another in reasonable apprehension of violent injury, not that assailant specifically intend to cause such apprehension); Thompson v. State, 277 Ga. App. 323, 324 (1) (626 SE2d 825) (2006) (evidence that defendant intentionally fired shots in direction of another person, who was frightened, was sufficient to support conviction for aggravated assault, despite defendant’s claim that he fired shots to quell a disturbance, not to injure victim); Maynor v. State, 257 Ga. App. 151, 155 (570 SE2d 428) (2002) (evidence that victims heard gunshots outside their house, realized that shots had hit the house, and were afraid that the person might continue shooting at the house, was sufficient to show the reasonable apprehension required for an assault conviction).

        Thompson, supra.

        Adkins v. State, 279 Ga. 424, 426 (2) (614 SE2d 67) (2005) (citation and punctuation omitted).

       Id. (citations and punctuation omitted); see Williams v. State, 237 Ga. App. 814 (1) (515 SE2d 875) (1999).

       OCGA § 16-11-106 (b).

       OCGA § 16-11-106 (b) (1).

       OCGA § 16-7-22 (a) (1) (emphasis supplied).

       See Carthern v. State, 272 Ga. 378, 380-381 (529 SE2d 617) (2000) (criminal damage to property in the first degree is “an inherently dangerous or life-threatening felony”); Carter v. State, 212 Ga. App. 139 (441 SE2d 100) (1994) (describing criminal damage to property in the first degree as an offense, not against property ownership, hut rather against the state involving an act that endangers human life).

       Compare OCGA § 16-7-23 (a) (setting forth elements of criminal damage to property in the second degree, which do not include showing a risk to a person); Johnson v. State, 302 Ga. App. 318, 320-321 (1) (b) (690 SE2d 683) (2010) (criminal damage to property in the second degree is not a predicate felony supporting a violation of OCGA § 16-11-106). See generally Carthern, supra at 379 (explaining that criminal damage to property in the first degree and criminal damage to property in the second degree are two separate crimes).

       See Carthern, supra at 381 (evidence that defendant fired gun into inhabited dwelling was sufficient for jury to find that he committed the offense of criminal damage to property in the first degree).

        Mullins v. State, 269 Ga. 157, 158-159 (3) (496 SE2d 252) (1998) (citations omitted); see Ashley v. State, 263 Ga. 820, 822 (3) (a) (439 SE2d 914) (1994) (trial court has right to develop fully the truth of a case, which it may do by examining witnesses called by the parties or by calling its own witnesses).

       Craft also cites actions that occurred outside the jury’s presence; because these actions did not occur in the jury’s presence they could not have violated OCGA § 17-8-57. See Linson v. State, 287 Ga. 881, 883-884 (2) (700 SE2d 394) (2010).

        Paul v. State, 272 Ga. 845, 848 (1) (537 SE2d 58) (2000) (citation and punctuation omitted) (noting that a judge’s display of “extreme anxiety” could be interpreted by the jury as an expression of its opinion on the issues to be decided in the case), overruled in part on other grounds by Ledford v. State, 289 Ga. 70, 84 (14) (709 SE2d 239) (2011).

       See Division 3, supra.

       297 Ga. App. 859 (678 SE2d 563) (2009).

       Id. at 860 (1).

       Id.

       Id.

       Id. See generally Dukes v. State, 265 Ga. 422, 423 (457 SE2d 556) (1995) (conviction is defective if there is a “reasonable possibility” that the jury convicted the defendant of the commission of a crime in a manner not charged in the indictment).

        Milner, supra at 861 (1).

       See id. at 860; see also Dukes, supra.

       See Dukes, supra at 422-424 (discussing application of due process analysis where trial court’s jury charge differs from indictment); Milner, supra at 860-861; Levin v. State, 222 Ga. App. 123, 127 (6) (473 SE2d 582) (1996) (concerning conviction for possession of firearm during commission of felony). Compare Martin v. State, 303 Ga. App. 117, 120-121 (3) (692 SE2d 741) (2010) (where state did not introduce evidence that defendant committed crime in any manner other than that specified in indictment, no reasonable possibility existed that jury found defendant committed crime in a manner not alleged in indictment, notwithstanding jury charge defining crime to include both manners).

        Levin, supra; see also OCGA § 17-8-58 (b) (jury charge may be considered on appeal notwithstanding appellant’s failure to object at trial where charge constituted “plain error which affects substantial rights of the parties”); Milner, supra at 859 (1), n. 1.

       See Dukes, supra at 424; Milner, supra at 861; Levin, supra.

       OCGA § 17-8-56 (a).

       OCGA § 17-8-56 (c).

        Lawson v. State, 224 Ga. App. 645, 649 (4) (481 SE2d 856) (1997).

       See id.

       466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984).

        Espinosa v. State, 285 Ga. App. 69, 72 (2) (645 SE2d 529) (2007) (footnotes omitted).

       Id.

       238 Ga. App. 757 (519 SE2d 486) (1999).

       See OCGA § 16-5-60 (b) (a person commits the offense of reckless conduct when he causes bodily harm to or endangers the bodily safety of another person by consciously disregarding a substantial and unjustifiable risk that his act or omission will cause harm or endanger the safety of the other person and the disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise).

        Shaw, supra at 759 (1) (emphasis supplied).

        See Dunagan v. State, 269 Ga. 590, 593-594 (2) (b) (502 SE2d 726) (1998); Shaw, supra.

       See generally Edwards v. State, 264 Ga. 131, 132 (442 SE2d 444) (1994) (written request to charge on lesser included offense must always be given if there is any evidence that defendant is guilty of lesser included offense).

       See Chancey v. State, 258 Ga. App. 319, 321 (4) (a) (574 SE2d 383) (2002).

       OCGA § 16-7-21 (a).

        Waugh v. State, 263 Ga. 692, 694 (6) (437 SE2d 297) (1993).

       See Edwards, supra at 133.

       See Chancey, supra.

       See Division 4, supra.

       See Moore v. State, 278 Ga. 397, 401 (2) (e) (603 SE2d 228) (2004) (failure to make a meritless objection is not professional error).


source: Caselaw Access Project

license: Public Domain

text:
    A11A0287.
    COOKSTON v. THE STATE.
    (710 SE2d 900)
   PHIPPS, Presiding Judge.

Nina Cookston was convicted of felony theft by taking, after a jury found that she took more than $500 from a house she was hired to clean. Cookston appeals, challenging the sufficiency of the evidence to support the conviction. We affirm.

When an appellant challenges the sufficiency of the evidence to support the conviction, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”

So viewed, the evidence showed the following. In March 2007, Loreane Watson hired Betty McFarland to help organize and clean the second floor of her two-story home. McFarland worked alone the first day, then brought Cookston to assist her the next two days. Watson was present during and supervised the work.

Watson kept more than $500 in a large coffee can in a first-floor bedroom. She also kept a zippered bag containing more than $100 in the pocket of a chair in the first-floor living room. When McFarland and Cookston arrived, Watson went into the bedroom and placed clothing over the coffee can so that nobody would see it. All of the work was to be done on the second floor, and there was no reason for McFarland or Cookston to enter the first-floor bedroom.

Watson kept the home locked “most of the time,” including while McFarland and Cookston were working inside the home. Watson affirmed that she had not let anyone else in the house “in the meantime” besides her husband, and that she was not “in the habit of letting a bunch of people come through [her] house.”

Watson recalled that on Cookston’s second day of work, when the three women were in an upstairs bedroom, Cookston remarked that she was going downstairs to get a soft drink. She went alone. After Cookston had been gone for 20 minutes or more, Watson became uneasy and asked McFarland where Cookston was. McFarland guessed that Cookston was downstairs smoking. Noting that Cookston could smoke upstairs, Watson moved the boxes that McFarland and Cookston had placed on her walker and “all around” her and went downstairs; by the time Watson encountered Cookston, Cookston was either heading back upstairs or cleaning up downstairs (a point on which Watson’s testimony is unclear). When Watson was asked at trial whether there were any other times during which she was with only one of the women, she replied only that McFarland and Cookston went outside to smoke and talk for a while on both days when Cookston worked.

At the end of McFarland’s third and Cookston’s second work day, Watson noticed that the coffee can and the money it contained were missing. Watson telephoned McFarland to ask her about the money. McFarland “said not to have her arrested.”

Watson then telephoned Cookston and told her she knew Cook-ston had taken the money and that she wanted it back. At first, Cookston denied having taken the money. Cookston later telephoned Watson and told her that she could not send all of it back at once, but that she could return some of the money. Cookston had “described . . . the money” to Watson.

The day after Cookston’s last day of work, Watson noticed that $100 was missing from the zippered bag. Watson had seen the zippered bag on Cookston’s last day of work, and the money was in the bag before the work started. None of the money was recovered. McFarland and Cookston were indicted for theft by taking the money, and tried together. Neither defendant testified at trial. McFarland was found not guilty.

Cookston contends that the evidence was insufficient to support her conviction because it was “purely circumstantial and [did] not exclude beyond a reasonable doubt the hypothesis” that McFarland or another individual had committed the theft.

“For a conviction based on circumstantial evidence to stand, the facts must prove not only the hypothesis of guilt, but must exclude every other reasonable hypothesis but the guilt of the accused.”

Questions as to the reasonableness of hypotheses are generally to be decided by the jury which heard the evidence and where the jury is authorized to find that the evidence, though circumstantial, was sufficient to exclude every reasonable hypothesis save that of guilt, that finding will not be disturbed unless the verdict of guilty is insupportable as a matter of law.

Here, there was evidence that Cookston was alone for 20 minutes or more on the floor of the house where the money was kept (and where no cleaning was to be performed); the money found to be missing from the zippered bag the day after Cookston last worked was in the bag before the work started; the money-filled coffee can was in the first-floor bedroom when Cookston came to work and was missing at the end of her last day of work; and when Watson accused Cookston of taking the money from the coffee can, Cookston replied that she could not return all of the money at once. While there was circumstantial evidence that also implicated McFarland, reasonable jurors could have found from the evidence that the hypothesis that McFarland took the money was excluded based on testimony that Cookston had been alone in the area of the house where the money was kept — while there was no such evidence regarding McFarland. And there was evidence that Cookston had incriminated herself by offering to return some of the money to Watson — while McFarland had made no such statement. As for the hypothesis that some other person committed the crime, there was evidence that the house stayed locked most of the time, and no evidence that anyone else (other than Watson, her husband, McFarland and Cookston) was in the house during the relevant time period. The jury was thus authorized to reject Cookston’s hypothesis.

Decided May 31, 2011.

Sean J. Lowe, for appellant.

Herbert E. Franklin, Jr., District Attorney, Michael J. Moeller, Assistant District Attorney, for appellee.

Moreover, evidence that McFarland may have taken the money would not necessarily have precluded a finding of Cookston’s guilt. The court charged the jury that “[ejvery party to a crime may be charged with and convicted of commission of the crime,” and that a person is a party to a crime “if that person directly commits the crime or intentionally helps in the commission of the crime.” The jury was authorized to find from the evidence presented that Cookston was guilty beyond a reasonable doubt as a party to the crime. We note that McFarland’s acquittal did not bar Cookston’s conviction as a party to the crime.

A rational trier of fact was authorized to find that the evidence was sufficient to exclude every reasonable hypothesis except that of Cookston’s guilt, and to conclude beyond a reasonable doubt that Cookston was guilty of theft by taking.

Judgment affirmed.

Andrews and McFadden, JJ., concur.

       OCGA § 16-8-2 provides that a person commits the offense of theft hy taking when he unlawfully takes or, being in lawful possession thereof, unlawfully appropriates any property of another with the intention of depriving him of the property, regardless of the manner in which the property is taken or appropriated. OCGA § 16-8-12 (a) (1) permits felony punishment where the property which was the subject of the theft by taking exceeded $500 in value.

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

       See Ingram v. State, 268 Ga. App. 149, 150 (2) (601 SE2d 736) (2004) (voluntary, noncustodial, incriminating statements of defendants are admissible through the testimony of anyone who heard them).

        Tauch v. State, 305 Ga. App. 643, 645 (1) (700 SE2d 645) (2010) (citations and punctuation omitted).

        Crouch v. State, 279 Ga. 879, 880 (1) (622 SE2d 818) (2005) (citations and punctuation omitted).

       For instance, in addition to the facts recited above, there was evidence that household items found in McFarland’s home had been taken without permission from Watson’s home.

       See generally Holland v. State, 251 Ga. App. 312, 313 (554 SE2d 303) (2001).

       See OCGA §§ 16-2-20 (a) (providing that every person concerned in the commission of a crime is a party thereto and may be charged with and convicted of commission of the crime); 16-2-20 (b) (providing, in pertinent part, that a person “is concerned in the commission of a crime only if he: (1) [d]irectly commits the crime; . . . [or] (3) [i]ntentionally aids or abets in the commission of the crime”).

       See generally Underwood v. State, 198 Ga. App. 384, 385 (401 SE2d 589) (1991).

       See OCGA § 16-2-21 (providing, in pertinent part, that any party to a crime who did not directly commit the crime may be convicted for commission of the crime upon proof that the crime was committed and that he was a party thereto, although the person claimed to have directly committed the crime has not been convicted or has been acquitted); White v. State, 257 Ga. 236 (356 SE2d 875) (1987).

       See generally McClain v. State, 301 Ga. App. 844, 847 (1) (689 SE2d 126) (2010).


author: Mikell, Judge.

text:
    A11A0428.
    MADISON RETAIL SUWANEE, LLC et al. v. ORION ENTERPRISES SALES & SERVICE, INC.
    (711 SE2d 71)
   Mikell, Judge.

Orion Enterprises Sales and Service, Inc. d/b/a Orion Access Control (“Orion”) sued Madison Retail Suwanee, LLC (“Madison”), and Platte River Insurance Company (“Platte”) to recover under a lien discharge bond for monies allegedly owed for materials, services, and labor Orion supplied to a construction project. The trial court granted summary judgment to Orion. Madison and Platte appeal, but have shown no error. We affirm.

“To prevail at summary judgment, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the nonmovant’s favor, warrant judgment as a matter of law.” “We review de novo a trial court’s grant of summary judgment, construing the evidence in a light most favorable to the nonmoving party.”

So construed, the evidence reflects that, pursuant to a Subcontract Agreement dated March 17, 2006, Orion served as subcontractor to Cannon/Estapa General Contractors, Inc. (“Cannon”), supplying labor, materials, and services to real property owned by Madison (the “property”). Cannon subsequently abandoned the job and refused payment to Orion. According to the affidavit of Michael J. White, Orion’s vice president, Orion furnished labor, materials, and services to the property from March 17, 2006, through December 11, 2006, successfully fulfilling its obligations under the Subcontract Agreement. When Orion’s final invoice for $25,851.05 was not paid by Cannon or Madison, Orion recorded a claim of lien against the property on February 12, 2007. Madison, as principal, and Platte, as surety, subsequently recorded a bond to discharge the lien. On November 21, 2007, Orion filed the underlying action against Cannon, Madison, and Platte, seeking in Count 6 of the Complaint to recover under the discharge bond against Madison and Platte. Orion obtained a default judgment against Cannon on April 14, 2008. Subsequently, Orion moved for summary judgment against Madison and Platte. The trial court granted Orion’s motion for summary judgment as to recovery under the discharge bond, and Madison and Platte appeal.

1. Appellants contend that the trial court erred in granting summary judgment to Orion because Orion failed to comply with the statutory requirement found in OCGA § 44-14-361.1 (a) (2), that upon filing for record of the claim of lien, the lien claimant must send a copy of the claim of lien to the owner of the property. Because we conclude that Orion complied with the copy requirement of OCGA § 44-14-361.1 (a) (2), we find this enumeration of error to be without merit.

Under Georgia’s “detailed statutory scheme for regulating liens filed by materialmen who furnish supplies and materials for building, repairing, or improving property , a materialman must comply with the provisions of OCGA § 44-14-361.1 (a) in order to ‘make good’ his lien.” Under the statute as in effect when Orion filed its claim of lien, the materialman was required (among other things) to file a claim of lien with the clerk of the superior court of the county where the property is located,

[which] claim shall be in substance as follows: “A. B., [the materialman or other claimant], claims a lien in the amount of (specify the amount claimed) on the . . . real estate ... of C. D. (describing the . . . real estate . . .), for satisfaction of a claim which became due on (specify the date the claim was due) for building, repairing, improving, or furnishing material (or whatever the claim may be).”

The statute further required the lien claimant to “send a true and accurate copy of the claim of lien ... to the owner of the property.”

Appellants point out that the claim of lien Orion filed with the clerk differs in certain respects from the copy of the claim of lien which Orion supplied to Madison. On the claim of lien filed with the clerk, a hand-written line states: “Owned by Madison Retail Suwan-nee [sic], LLC.” On the copy supplied to Madison, however, the word “Retail” is omitted, and the hand-written line reads: “Owned by Madison Suwannee [sic] LLC.”

Relying on Phillips, Inc. v. Historic Properties of America, appellants argue that, because of the omission of the word “Retail,” the copy of the claim of lien sent to Madison did not constitute a “copy” in compliance with the statute. However, appellants’ argument fails. In Phillips, we held that the lien claimant failed to preserve his lien because it transmitted the copy of its claim of lien to the property owner by facsimile, a method of delivery not authorized by the statute. Thus, Phillips does not address the issue in the case before us: whether the copy itself was adequate.

The Phillips decision does, however, shed light on the purpose of the claim of lien provisions found in OCGA § 44-14-361.1 (a) (2). The Court ruled that “the inherent unreliability of service via facsimile does not serve the purpose of ensuring that the owner timely receives notice of a lien.” In the case before us, by contrast, the copy of the claim of lien sent to Madison by Orion clearly “served the purpose of ensuring that the owner timely receive[d] notice” of Orion’s lien, even though one word of Madison’s name was omitted.

We recognize that the statutes regarding materialman’s liens are to be construed in favor of the property owner and against the materialman; and that the lien claimant must show strict compliance with the statute before a materialman’s lien can be allowed. We have also noted, however, that with respect to the form of the claim of lien, this principle of strict construction is tempered by OCGA § 44-14-361.1 (a) (2), which requires the form of the claim of lien to be “in substance” as set forth in the statute. Thus, this Court has ruled that a claim of lien which did not “specify the date the claim was due” as provided in OCGA § 44-14-361.1 (a) (2) nonetheless complied “in substance” with the form provided in that statute. Similarly, we have ruled that a claim of lien was sufficient even though the property description set forth therein contained an incorrect plat book page number.

In light of these decisions, we conclude that Orion’s claim of lien was not ineffective by reason of the slight variance to be found in the copy supplied to Madison.

2. Appellants contend that Orion’s lien is invalid because of the variance between the party which executed the Subcontract Agreement and the party which filed the claim of lien. We disagree.

The Subcontract Agreement was executed as follows: “Orion Access Control (“Subcontractor”) By: /s/Michael J. White . . . Title: VE” White testified in his affidavit that “Orion Enterprises Sales and Svc., Inc. d/b/a Orion Access Control” furnished labor, services, and materials used in the improvements on the property. Invoices for this work were submitted in the name of “Orion Access Control.” Madison has presented no evidence that the entity supplying the materials was any other than Orion. On the claim of lien, the materialman’s name is listed first as “Orion Enterprises Sales and Svc., Inc.” and then repeated as “Orion Enterprises Sales & Svc., Inc. . . . D.B.A. Orion Access Control.” It is this entity which filed suit against the general contractor, Cannon, and appellants Madison and Platte.

Appellants argue that Orion failed to register “Orion Access Control” as a trade name, and therefore Orion cannot file a claim of lien for work done under a contract executed in the name of “Orion Access Control.” However, whether the trade name was properly registered or not does not have any impact on the issue at hand. Orion fulfilled its obligations under the Subcontract Agreement with Cannon, the general contractor; Orion filed its claim of lien for work it had performed and for which it had not been paid; and Orion brought the underlying action against Cannon and appellants on the lien bond. Thus, the trial court did not err in determining that Orion was the proper party to enforce the lien, and therefore had authority to sue under the bond.

Appellants’ reliance on Ga. North Contracting, Latham Plumbing & Heating Co. v. Ledbetter Trucks, and Nix v. Luke is misplaced. In those cases, the party seeking to enforce the lien was not the same party which filed the claim of lien. In Ga. North Contracting, a claim of lien filed by an individual could not be enforced by an action brought by the corporation that was in privity of contract with the owner of the real estate. In that case the individual lien claimant had no standing to assert lien rights, and the lien was found to be unenforceable. Similarly, in Latham Plumbing, because the contract and the claim of lien were executed by an individual, the lien could not be enforced by an action brought by the corporation of which the individual was an officer. Lastly, in Nix, where the claim of lien was filed in the name of a corporation, it was not enforceable in an action brought by an individual. In the case at bar, on the other hand, the corporate plaintiff seeks to recover under the bond on a lien which it filed for work it performed. The trial court did not err in determining that Orion’s claim of lien was not unenforceable on this ground.

3. Appellants argue that Orion failed to comply with the lien statute in filing a concurrent action against Cannon on the underlying contract and against Madison and Platte on the discharge bond. We disagree.

In order to perfect a lien, after filing the claim of lien for record and sending a copy thereof to the property owner, the lien claimant must “commence an action against the contractor to recover the amount of the claim within 12 months of when the claim became due.” Only under certain circumstances, listed in OCGA § 44-14-361.1 (a) (4), is the materialman permitted “to bring an action directly against the property owner to enforce the lien against the property without ‘filing an action or obtaining judgment against the contractor ... as a prerequisite to enforcing a lien against the property.’ ” In the case before us, the concurrent action filed by Orion against Cannon and appellants is permitted by this Court’s decision in West Lumber Co. v. Aderhold. In that case, we determined that the lien claimant’s action against the contractor and its action against the property owner to enforce the lien could be brought concurrently and could be combined in the same petition. West Lumber Co. is controlling on this issue. Appellants invite us to overrule this decision. We decline to do so. Appellants’ enumerated error fails.

4. In their fourth enumeration of error, appellants ask us to rule on an issue not ruled on by the trial court. On November 23, 2009, the trial court heard oral argument on Orion’s motion for summary judgment, and the court’s order granting summary judgment was entered on February 2, 2010. On February 18, 2010, appellants filed an “emergency motion” for reconsideration, attaching the amended affidavit of William E. Allen, a Madison member. In their motion, appellants argued, inter alia, that the amended Allen affidavit corrected a “typographical error” contained in his original affidavit and, therefore, raised a material issue of fact as to the issue of the timeliness of Orion’s filing of its claim of lien.

Decided May 6, 2011

Reconsideration denied June 1, 2011.

Stone & Bellus, Freddie R. Stone, Jr., John E. Bellus, Jr., for appellants.

L. Matt Wilson, for appellee.

However, appellants failed to obtain a ruling from the trial court on their motion for reconsideration, as appellants filed their notice of appeal on March 1, 2010, before the trial court issued a ruling on the motion. “Without an order of the trial judge ruling either for or against [appellants’] motion, there is nothing for this [CJourt to pass on in that respect.” It is well established that this Court “may not address issues on appeal which were not addressed by the trial court,” because “[t]his [C]ourt is a court for the correction of errors and it does not consider matters which were not raised and ruled on by the trial court.” This enumeration of error presents nothing for our review.

Judgment affirmed.

Smith, P. J., and Dillard, J., concur.

        Latson v. Boaz, 278 Ga. 113 (598 SE2d 485) (2004), citing OCGA § 9-11-56 (c).

       (Citation omitted.) Id.

       See OCGA § 44-14-364.

       The trial court denied Orion’s motion for summary judgment as to its claim for breach of contract against Madison, and this issue is not before us on appeal.

       (Punctuation and footnotes omitted.) Gen. Elec. Co. v. North Point Ministries, 289 Ga. App. 382, 383 (657 SE2d 297) (2008).

       The 2008 amendments to OCGA § 44-14-361.1, which became effective on March 31, 2009, do not apply retroactively. Vulcan Constr. Materials v. Franklin Builders Properties, 298 Ga. App. 120, 122, n. 1 (679 SE2d 356) (2009).

       (Emphasis supplied.) OCGA § 44-14-361.1 (a) (2) (2008).

       Id.

       260 Ga. App. 886 (581 SE2d 389) (2003).

       Id. at 886-887. See OCGA § 44-14-361.1 (a) (2) (2008) (lien claimant required to provide owner with copy of claim of lien “by registered or certified mail or statutory overnight delivery”).

       (Punctuation omitted; emphasis supplied.) Id. at 887.

        Kendall Supply v. Pearson Communities, 285 Ga. App. 863, 865 (648 SE2d 158) (2007).

        Vulcan Constr. Materials, supra at 122-123.

       Id. at 123, citing J. H. Morris Bldg. Supplies v. Brown, 245 Ga. 178, 179 (264 SE2d 9) (1980); Ga. North Contracting v. Haney & Haney Constr. &c. Corp., 204 Ga. App. 366, 367-368 (1) (a) (419 SE2d 348) (1992); and L & W Supply Corp. v. Whaley Constr. Co., 197 Ga. App. 680, 682 (399 SE2d 272) (1990).

        Grubb v. Woodglenn Properties, 220 Ga. App. 902, 905 (4) (470 SE2d 455) (1996).

       Supra.

       96 Ga. App. 219 (99 SE2d 545) (1957).

       96 Ga. App. 123 (99 SE2d 446) (1957).

        Ga. North Contracting, supra at 368 (2)

        Latham Plumbing, supra at 220-221.

        Nix, supra at 127 (3).

       (Footnote omitted.) Few v. Capitol Materials, 274 Ga. 784-785 (1) (559 SE2d 429) (2002). See OCGA § 44-14-361.1 (a) (l)-(3) (2008).

       (Punctuation omitted.) Few, supra at 785 (1), quoting OCGA § 44-14-361.1 (a) (4).

       90 Ga. App. 255 (82 SE2d 670) (1954).

       Id. at 256.

       Allen’s original affidavit asserted that “Madison denies that Plaintiff [Orion] provided lienable materials or labor to the project after November 11, 2007 and demands strict proof thereof.” His amended affidavit changed the date to “November 11, 2006.”

       (Citations and punctuation omitted.) Hipple v. Simpson Paper Co., 234 Ga. App. 516, 517 (2) (507 SE2d 156) (1998). Accord Allen v. Santana, 303 Ga. App. 844, 847-848 (3) (695 SE2d 314) (2010) (appellate review waived where appellant failed to invoke ruling on motion to dismiss).

       (Citations omitted.) Hipple, supra.

       (Citation omitted.) Parker v. Silviano, 284 Ga. App. 278, 280 (1), n. 3 (643 SE2d 819) (2007). Accord SAKS Assocs. v. Southeast Culvert, 282 Ga. App. 359, 365 (3) (638 SE2d 799) (2006), citing Rowe v. Fleet Mtg. Corp., 226 Ga. App. 593, 594-595 (3) (487 SE2d 133) (1997).


author: Blackwell, Judge.

text:
    A09A1397.
    JORDAN JONES AND GOULDING, INC. v. NEWELL RECYCLING OF ATLANTA, INC.
    (710 SE2d 915)
   Blackwell, Judge.

The earlier decision of the Court in this case, Jordan Jones and Goulding v. Newell Recycling of Atlanta, 299 Ga. App. 294 (682 SE2d 666) (2009), was reversed by the Supreme Court of Georgia, Newell Recycling of Atlanta v. Jordan Jones and Goulding, 288 Ga. 236 (703 SE2d 323) (2010). We now vacate our earlier decision and adopt the opinion of the Supreme Court as our own. The question remains, however, whether the claims in this case are governed by the statute of limitation for simple contracts in writing, OCGA § 9-3-24, or by the statute of limitation for express oral promises and implied promises, OCGA § 9-3-25. See Newell Recycling, 288 Ga. at 238-239.

Decided June 1, 2011.

Smith, Currie & Hancock, Joseph C. Staak, Robert O. Fleming, Jr., for appellant.

Shapiro, Fussell, 'Wedge & Martin, H. Fielder Martin, Stephen G. Lowe, for appellee.

As our Supreme Court explained,

[w]here a complete written contract exists and an action for breach of contract is pursued, the Legislature and this Court have made clear that the six-year statute of limitation of OCGA § 9-3-24 applies, regardless of whether the alleged breach stems from the express terms of the agreement or duties that are implied in the agreement as a matter of law.

288 Ga. at 238. On the other hand, “[w]here the agreement is incomplete, such that the writing does not form a contract or the promise allegedly broken stems from a purely oral agreement, the four-year statute of limitation of OCGA § 9-3-25 applies.” Id. As an example of a case in which the written contract was found to be incomplete, the Supreme Court cited our decision in Jankowski v. Taylor, Bishop & Lee, 154 Ga. App. 752 (269 SE2d 871) (1980). See 288 Ga. at 238-239 (citing Jankowski). In Jankowski, we held that a retainer letter did not constitute the entire contract between a law firm and its client because it addressed only two aspects of the relationship between the firm and client, and we applied the statute of limitation for the breach of oral promises because the remainder of the contract was in parol. See 154 Ga. App. at 754-755 (2).

To afford the trial court the opportunity to apply these principles to the circumstances presented in this case in the first instance, we vacate the decision below and remand for further proceedings consistent with this opinion and the opinion of our Supreme Court. More specifically, the trial court should reconsider whether the writings upon which Newell Recycling relies form the entire contract between the parties, and its reconsideration of this issue should be informed by the principles and authorities cited in the opinion of the Supreme Court and above.

Judgment vacated and case remanded.

Adams and Doyle, JJ., concur.


author: SMITH, Presiding Judge.

text:
    A11A0159.
    REIDLING v. THE STATE.
    (710 SE2d 903)
   SMITH, Presiding Judge.

James Reidling appeals from his conviction for committing two counts of burglary. He asserts insufficient evidence supports his convictions and that the tried court erred by denying his request for a charge on the lesser included offense of criminal trespass. We disagree and affirm.

The State charged Reidling with committing two separate burglaries of a generator building on consecutive days: May 28 and May 29, 2008. Viewed in the light most favorable to the verdict, the record shows that the victim owned 33 acres of land with six chicken houses, a generator shed, and a mobile home on it.

A witness testified that on May 28, 2008, he went to the victim’s property to spread chicken manure over a field on the property. When he pulled into the yard, he saw a blue or black van parked behind the mobile home “and a fellow coming out where the generator was at for the chicken houses that was on the farm.” The man walked approximately 100 feet from the generator shed to the witness and asked if the mobile home was for rent before leaving in the van. Later that afternoon, the witness told the property owner’s son about the man he had seen. The witness identified Reidling at trial as the man he saw leaving the generator shed.

The owner’s son testified that when he went into the generator shed on May 28, 2008, he noticed that the fuel tank that hooked to the generator was missing, the radiator was half off, and electric and ground wires had been cut and were missing or damaged. When he was last in the generator shed a day or two before, nothing was missing.

On May 29, 2008, another witness testified that he went to the victim’s property to talk about renting the mobile home, which he had rented in the past. When he arrived, he saw a small green Kia parked on the property and Reidling walking out of the generator building with an electric drill and a pair of pliers, one in each hand. The witness walked up to Reidling, who asked him if he owned the property. The witness responded that he did not own the property and that he was “fixing to rent the property” because there had been problems with wire theft on the property. Reidling replied, “I’m not stealing any wire or nothing. I’m just here to talk to the people that own the property.” When Reidling walked away and left in the Kia, the witness wrote down his tag number and contacted the police.

The police investigated and located the green Kia, as well as a black Dodge van, and knocked on the door of the residence where they were parked. When they talked with Reidling, he admitted that he had been on the victim’s property, but claimed that he went there to speak with someone about renting the property. The owner’s son testified that he did not know Reidling, had never talked with him, and did not plan for him to be on the property at any time.

Decided June 1, 2011.

Jana M. Whaley, for appellant.

1. We find this evidence sufficient to support Reidling’s burglary convictions under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). “A person commits the offense of burglary when, without authority and with the intent to commit a felony or theft therein, he enters or remains within . . . any other building, railroad car, aircraft, or any room or any part thereof.” OCGA § 16-7-1 (a). “The crime is completed upon entry, and does not require that any property actually be taken.” Clark v. State, 289 Ga. App. 612, 614 (1) (658 SE2d 190) (2008).

In this case, the jury was authorized to reject Reidling’s explanation for his presence on the property, particularly when common sense dictates that entry of the generator shed located 100 feet away from the mobile home with an electric drill and a pair of pliers is not typical behavior for a person seeking to rent the home. See Price v. State, 303 Ga. App. 589, 591 (2) (693 SE2d 826) (2010) (concluding reasonableness of defendant’s explanation that he was inside the home because he thought it was for sale was for jury).

2. We find no merit in Reidling’s claim that he was entitled to a charge on the lesser included offense of criminal trespass. First, although Reidling’s oral request for a charge on criminal trespass was considered by the trial court, its failure to so charge is not error in the absence of a written request from Reidling. Young v. State, 280 Ga. 65, 68 (10) (623 SE2d 491) (2005); Shinholster v. State, 262 Ga. App. 802 (586 SE2d 708) (2003). Second, we find no “substantial error in the charge which was harmful as a matter of law.” OCGA § 5-5-24 (c). Because Reidling denied being on the property for an unlawful purpose and there was no evidence presented about the dollar amount of the damages, the requested charge on the lesser included offense of criminal trespass was not warranted. See OCGA § 16-7-21 (a) and (b) (1); Moore v. State, 280 Ga. App. 894, 898 (6) (c) (635 SE2d 253) (2006) (defendant not entitled to charge on criminal trespass under OCGA § 16-7-21 (b) (1) when he testified that he entered property for a lawful purpose); Snipes v. State, 257 Ga. App. 713, 714-715 (572 SE2d 62) (2002) (defendant not entitled to charge on criminal trespass under OCGA § 16-7-21 (a) when no evidence was presented as to the amount of damage done and whether it was more or less than $500).

Judgment affirmed.

Mikell and Dillard, JJ., concur.

Robert W. Lavender,; District Attorney, James W. Webb, Assistant District Attorney, for appellee.


author: MILLER, Presiding Judge.

text:
    A11A0177.
    JAMES v. THE STATE.
    (710 SE2d 905)
   MILLER, Presiding Judge.

Malcolm James was charged with rape, kidnapping, false imprisonment, and aggravated assault. The State filed notice of its intent to seek recidivist sentencing based upon James’s prior misdemeanor and felony convictions. Following jury selection at trial, James entered a negotiated guilty plea to false imprisonment and simple assault, as a lesser included offense to the aggravated assault charge. An order of nolle prosequi was entered as to the remaining charges. The trial court sentenced James to serve ten years under the false imprisonment charge and twelve months concurrently under the simple assault charge, with credit for time served following his arrest.

A few days later, James moved to withdraw his guilty plea. After a hearing, the trial court denied the motion. On appeal, James contends that the trial court abused its discretion in denying his motion since (i) the State failed to present a sufficient factual basis to support the false imprisonment conviction and (ii) his trial counsel was ineffective in that he misinformed him as to his eligibility for parole. For the reasons that follow, we affirm.

1. James contends that he should be allowed to withdraw his guilty plea because the factual basis set forth by the State was insufficient to support the false imprisonment charge. We disagree.

“After sentence is pronounced, withdrawal of a guilty plea is allowed only to correct a manifest injustice, and the trial court’s refusal to allow withdrawal will not be disturbed on appeal absent a manifest abuse of discretion.” (Citation, punctuation and footnote omitted.) Foster v. State, 281 Ga. App. 584 (1) (636 SE2d 759) (2006). Uniform Superior Court Rule (“USCR”) 33.9 mandates that a judgment of conviction should not be entered upon a plea of guilty without an inquiry on the record to satisfy the judge that there is a factual basis for the plea. See State v. Evans, 265 Ga. 332, 333-334 (1) (454 SE2d 468) (1995) (compliance with USCR 33.9 is mandatory).

At the plea hearing, the prosecutor stated on the record that he expected the evidence to show that on the date of the incident, officers received a 911 call from an individual reporting that a man was beating a woman and that the woman was crying “rape.” When the officers arrived at James’s residence, they heard James yelling and demanding the female victim to lie down on the bed. The officers repeatedly beat on the door and announced their presence. Eventually, James opened the door and the officers observed the victim on the edge of the bed, with her pants down. She was visibly upset, was crying, and had a busted lip. The officers spoke with the victim outside of James’s presence, at which time she stated that James had beaten her up and had raped her.

The State’s recitation of facts reflecting that James had detained the victim on the bed and inside his residence presented a sufficient factual basis for the false imprisonment charge. See OCGA § 16-5-41 (a) (“A person commits the offense of false imprisonment when, in violation of the personal liberty of another, he arrests, confines, or detains such person without legal authority.”); Pitts v. State, 272 Ga. App. 182, 187 (3) (612 SE2d 1) (2005) (evidence that the defendant had held the victim down on the bed against her will was sufficient to prove false imprisonment); Brabham v. State, 240 Ga. App. 506, 506-507 (1) (b) (524 SE2d 1) (1999) (evidence that the defendant forced the victim to sit on the floor was sufficient to show false imprisonment). The trial court therefore did not abuse its discretion in refusing to allow withdrawal of the guilty plea on the basis alleged.

2. James also argues that the trial court erred in denying his motion to withdraw his guilty plea since his trial counsel misinformed him about his eligibility for parole. James contends that in light of the alleged misinformation, his plea was not knowingly and voluntarily entered and his trial counsel provided ineffective assistance. Again, we discern no reversible error.

Although there is no constitutional requirement that a defendant be informed of collateral consequences of a plea, such as parole eligibility, counsel’s affirmative misrepresentations about those consequences in response to his client’s specific inquiries may form the basis of an ineffective assistance of counsel claim. See Smith v. Williams, 277 Ga. 778, 778-779 (1) (596 SE2d 112) (2004). To prevail on such claim, James has the burden to show that “counsel was deficient, and that absent the deficiency, there is a reasonable probability that he would have proceeded to trial rather than pleading guilty.” (Footnotes omitted.) Smith, supra, 277 Ga. at 779 (1). Upon review of the trial court’s ruling on the effectiveness of trial counsel, “we accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.” (Footnote omitted.) Suggs v. State, 272 Ga. 85, 88 (4) (526 SE2d 347) (2000).

At the plea hearing, James requested a “second opinion” as to where he graded out on the parole grid, i.e., his parole eligibility. Trial counsel stated on the record that he had contacted the parole board and was informed that James’s instant charges fell within “a Level 3” under the crime severity guideline, requiring that he serve 14 to 24 months before being eligible for parole. The trial court inquired further as to how James’s probation revocations related to prior felony convictions would affect his parole eligibility. In response, trial counsel responded, “I don’t know.” James did not seek additional clarification or inquire further regarding the matter. Nevertheless, James relies upon this colloquy at the plea hearing to support his contention that the information that he received regarding parole eligibility was flawed since it failed to reflect consideration of his prior felony convictions.

It is true that in considering the issue of parole, the parole board has set forth guidelines that consider the severity of the inmate’s crime, as well as other factors, including prior felony convictions, that are used to compute an inmate’s likelihood of success on parole. See Ga. Comp. R. & Regs. r. 475-3-.05 (5), (8). To the extent that trial counsel advised James that he was required to serve an estimated 14 to 24 months before becoming eligible for parole, but failed to assess how James’s probation revocations and prior felony convictions would affect that estimate under the guidelines, his information could be deemed as misleading. But at the hearing conducted on James’s motion to withdraw his guilty plea, trial counsel testified that he had explained to James that it was within the parole board’s discretion to decide the parole issue and that no promises or guarantees could be made as to the length of his incarceration. Moreover, because trial counsel openly acknowledged and advised James that he did not know how his prior felony convictions factored into the parole eligibility, it is questionable whether he can be deemed as having made an affirmative misrepresentation in this regard.

Notwithstanding the alleged deficiency, however, the trial court was authorized to conclude that James failed to establish the element of prejudice, which required a showing that he would not have pled guilty absent the alleged misrepresentation. Significantly, at the motion hearing, James testified that he did not like the composition of the potential jurors and wanted to put off the trial. In addition to the false imprisonment charge, James was facing more serious charges of rape, kidnapping, and aggravated assault. Based upon the negotiated plea agreement, James was allowed to enter a guilty plea to false imprisonment and simple assault; he avoided the more serious charges, which were nolle prossed. Moreover, when trial counsel expressed uncertainty regarding how James’s probation revocations would affect his parole eligibility, James did not inquire further. Under these circumstances, the trial court was authorized to find that James was not primarily concerned about parole eligibility, but rather was concerned about proceeding to trial on the more serious charges before a jury that he did not deem as being favorable. Consequently, the trial court was authorized to find that the alleged deficiency was not prejudicial and did not present a manifest injustice requiring withdrawal of the guilty plea. See Brower v. State, 230 Ga. App. 125, 127 (3) (495 SE2d 600) (1998) (finding that “[t]he trial court could properly conclude that any misunderstanding [defendant] had regarding the use of his prior criminal record did not alter his decision to plead guilty rather than risk a guilty verdict and harsh sentence.”); Beck v. State, 222 Ga. App. 168, 169 (473 SE2d 263) (1996) (concluding that the defendant’s desire to plead guilty to avoid prosecution for additional crimes or to avoid receiving a longer sentence does not prevent a plea from being free and voluntary). The trial court’s decision denying the motion to withdraw the guilty plea was not erroneous.

Decided June 1, 2011.

Roger C. Montgomery, William A. Adams, Jr., for appellant.

Peter J. Skandalakis, District Attorney, William D. Hocutt, Lee F. Tittsworth, Assistant District Attorneys, for appellee.

Judgment affirmed.

Ellington, C. J., and Doyle, J., concur.

       James wrote the trial court a letter, seeking to withdraw his guilty plea. The trial court treated James’s letter as a proper motion and scheduled a hearing on the matter. See McKiernan v. State, 286 Ga. 756, 757 (692 SE2d 340) (2010) (a defendant’s letter requesting to withdraw a guilty plea may serve as a timely motion when it is filed with the trial court within the same term of court as the entry of his conviction and sentence).

       James does not challenge the factual basis for the simple assault charge.

       In response to the trial court’s questions at the plea hearing, James stated that he was satisfied with his trial counsel’s representation; was aware of the rights that he was giving up upon entering the guilty plea; had not been promised anything, threatened, or forced to plead guilty; understood the charged offenses; and desired to enter the guilty plea.


author: Smith, Presiding Judge.

text:
    A11A0638.
    LEEKS v. THE STATE.
    (710 SE2d 908)
   Smith, Presiding Judge.

A jury found Etroma Leeks guilty of aggravated assault. Following the denial of his motion for new trial, Leeks appeals, alleging that the trial court erred in denying his motion to suppress and in instructing the jury that it could consider the level of certainty of the witness’s identification. Leeks also asserts that the evidence was insufficient to sustain his conviction. Having reviewed these claims, we find no error and affirm.

Construed in favor of the verdict, the evidence revealed that the 19-year-old victim was selling hats in her neighborhood when Leeks approached her and asked her “how much.” The victim told Leeks that she was selling the hats for five dollars, and Leeks told her that he had the money to purchase one upstairs in his apartment. The victim followed Leeks into his apartment and into a bedroom where she sat on the edge of the bed. Leeks offered the victim two dollars, but the victim refused telling Leeks that the hat cost five dollars. Leeks then offered the victim a “sack of crack” in exchange for “some sex.” The victim refused Leeks’s offer and threatened to leave if Leeks did not pay her for the hat. In response, Leeks told the victim “you’re not fitting [sic] to go nowhere. I’m fitting [sic] to shoot you in the head.” Leeks retrieved a gun from the living room, held it to the victim’s head, and put his hand around her neck. Leeks fired the gun once, but it misfired. The victim struggled with Leeks, and after a few moments was able to break free. Leeks then told the victim, “b***h, get out of my house.” The victim walked backward out of the apartment for fear that Leeks would shoot her.

Frantic and screaming, the victim ran out of the apartment and down the road where she collapsed. Her mother came to the scene and called police. The victim told police that she knew her assailant as “Charles.” She was taken to a hospital where a detective presented her with a picture of Leeks. Upon looking at the picture, the victim identified Leeks as her assailant.

The police apprehended Leeks based on information from the victim and other individuals in the neighborhood who also knew Leeks as “Charles.” After securing a search warrant for Leeks’s apartment, officers searched the apartment and found an air pistol. The victim identified the air pistol as the one Leeks pointed at her.

1. Leeks argues that the evidence was insufficient because the State failed to produce sufficient evidence identifying Leeks as the assailant. But under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), the evidence outlined above was sufficient for a rational trier of fact to find beyond a reasonable doubt that Leeks was guilty of aggravated assault for pointing an air pistol at the victim and threatening to kill her. See OCGA § 16-5-21 (a) (2); see also Bartlett v. State, 244 Ga. App. 49, 51 (537 SE2d 362) (2000).

2. Leeks contends that the trial court erred in denying his motion to suppress the victim’s pre-trial identification of him as the perpetrator because the display of a single photograph of him following the attack was impermissibly suggestive. Leeks argues that there was a substantial likelihood of irreparable misidentification given the victim’s lack of maturity and because the victim was in a state of panic. He alleges the victim did not provide police with a description of her assailant prior to being shown his picture. When reviewing a trial court’s ruling on a motion to suppress, we construe the evidence favorably to uphold the findings and judgment, and the trial court’s findings on disputed facts and credibility must be accepted unless clearly erroneous. Miller v. State, 288 Ga. 286 (1) (702 SE2d 888) (2010).

At a hearing on the motion to suppress, the victim testified that she had seen Leeks in the neighborhood, that she had a good look at him, and that she was in the apartment with Leeks for about 30 minutes. She stated further that she gave the officer on the scene a description of her attacker prior to the officer showing her a picture of Leeks. She described Leeks as a “tall, kind of chubby, little bit older guy, had a bald spot right here . . . black.” The victim explained that she was taken to the hospital about an hour after she was in the apartment with Leeks and that a detective showed her a picture of Leeks while she was there. She testified that she was “certain, real quick” that the man in the picture was the man who attacked her.

A detective testified that after the officer on the scene detained Leeks based on information from individuals in the neighborhood, he took a picture of Leeks. He stated further that the victim did not hesitate in identifying Leeks when he showed her the picture of him while she was in the hospital.

In denying the motion to suppress, the trial court ruled that the “identification procedure that was used is akin to a show-up because, in fact, that’s what happened. They just took a photograph of Mr. Leeks and took that to the victim and asked her whether she was able to identify it after asking her if she could provide a description, which she did.” The court found further that (1) when shown the picture, the victim was 100% sure it was Leeks, (2) the victim identified Leeks at the hearing and testified that she had seen him in the neighborhood, and (3) the length of time between the crime and the identification was not long.

“[A] conviction which relies on eyewitness identification at trial following a pre-trial photographic identification will be reversed only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” (Citations and punctuation omitted.) Wright v. State, 302 Ga. App. 101, 105 (4) (690 SE2d 220) (2010). And we have held that displaying a single photograph to a witness is impermissibly suggestive. See id. But such evidence “should be suppressed only if a substantial likelihood of irreparable misidenti-fication exists.” (Citations and punctuation omitted.) McBride v. State, 297 Ga. App. 421, 422 (677 SE2d 438) (2009). The factors to be considered in evaluating the likelihood of misidentification include “(1) the witness’ opportunity to view the criminal during the crime; (2) the witness’ degree of attention; (3) the accuracy of any prior description given by the witness; and (4) the length of time between the crime and the showup confrontation.” (Citation, punctuation and footnote omitted.) Crawford v. State, 297 Ga. App. 187, 191 (2) (676 SE2d 843) (2009).

Here, the trial court’s ruling was supported by evidence that the victim (1) knew Leeks from the neighborhood; (2) described him to an officer on the scene; (3) spent 30 minutes or more with Leeks in an apartment talking with him then defending herself against his attack; (4) quickly and confidently identified Leeks as her assailant upon seeing his picture; and (5) identified Leeks at the hearing on the motion to suppress and at trial. See Crawford, supra at 191 (2); see also Jennings v. State, 277 Ga. App. 159, 163 (3) (626 SE2d 155) (2006) (identification reliable under the circumstances). In this case, the trial court did not clearly err in denying Leeks’s motion to suppress on this ground.

3. Finally, Leeks argues that the trial court erred in instructing the jury that it could consider a witness’s level of certainty in evaluating the reliability of his or her identification in violation of Brodes v. State, 279 Ga. 435 (614 SE2d 766) (2005). But Leeks failed to object following the court’s instruction and failed to reserve the right to challenge this portion of the charge at a later time, reserving objections only to other issues discussed in the charge conference. “The failure to reserve objections to the content of the jury instructions waives the right to assert the purported error on motion for new trial or on appeal.” (Citation and punctuation omitted.) Sampson v. State, 282 Ga. 82, 85 (5) (646 SE2d 60) (2007) (claim that court erred in charging jury on level of certainty waived where counsel did not object or reserve objections).

Judgment affirmed.

Mikell and Dillard, JJ., concur.

Decided June 1, 2011.

Carl P Greenberg, for appellant.

Paul L. Howard, Jr., District Attorney, Marc A. Mallon, Assistant District Attorney, for appellee.

       Leeks also argues that the evidence was insufficient because the indictment alleges that he pointed an air rifle at the victim, but at trial the State claimed that he pointed an air pistol at the victim. But “ [tlhere is a longstanding rule in Georgia ‘that no fatal variance between the pleading and the proof exists where one weapon is charged in the indictment and a weapon of a similar nature capable of inflicting the same character of injury is shown by the evidence.’ ” (Citations, punctuation and footnote omitted.) Wilson v. State, 291 Ga. App. 69, 72 (1) (b) (661 SE2d 221) (2008).

       We note that Leeks was tried before the effective date of OCGA § 17-8-58 (appellate review of failure to object to jury charge is precluded unless charge constitutes plain error).


text:
    A11A0675.
    POPE v. THE STATE.
    (710 SE2d 911)
   SMITH, Presiding Judge.

Chauncey Pope appeals from the trial court’s denial of his plea in bar based upon double jeopardy. For the following reasons, we affirm.

The record reveals that Pope was charged in a Fulton County indictment with attempt to commit burglary, theft by receiving a stolen automobile, obstruction (Counts 1-3), and two counts of theft by receiving stolen laptop computers (Counts 4 and 5). On September 23, 2009, the trial court held a hearing on Pope’s nonnegotiated plea. During the plea colloquy, the State informed the court that it was dead docketing Counts 4 and 5 because “Gwinnett County is going to be moving forward with the laptops.” Defense counsel objected that “double jeopardy attached with respect to those [counts],” but the trial court stated that it was allowing the State to dead docket the counts, and that “Gwinnett County can proceed however they want to proceed.” Pope then pled guilty to only Counts 1-3. The trial court accepted the plea finding that it was freely and voluntarily entered, and then sentenced Pope.

Less than a year later, Pope was charged with two counts of burglary in Gwinnett County with respect to the laptops originally identified in Counts 4 and 5 of the Fulton County indictment. Pope filed a plea in bar on double jeopardy grounds, which the trial court denied. It is from this order that Pope appeals.

1. Pope argues that the court erred in finding that he did not enter a guilty plea to Counts 4 and 5 of the Fulton County indictment. He contends that he pled guilty to all five counts based upon his colloquy with the court before the State announced it was dead docketing Counts 4 and 5. The colloquy, however, did not include a plea or acceptance but just the standard inquiry concerning whether Pope was satisfied with counsel, along with an explanation of first offender treatment and the consequences of a plea.

The State dead docketed Counts 4 and 5, and the Fulton County trial court asked Pope how he wished to plead to the remaining three counts. After Pope announced that he wished to plead guilty to those counts, the court accepted his guilty plea and sentenced him. Indeed,

Decided June 1, 2011.

Jacquelyn F. Luther, for appellant.

[b]efore accepting a plea of guilty, a trial court must determine that the plea is voluntarily made and that the defendant intelligently and understanding^ waives his constitutional rights, which requires a showing on the record that the defendant has freely and voluntarily entered the plea with an understanding of the nature of the charges against him and the consequences of his plea.

(Citation and punctuation omitted.) Harland v. State, 262 Ga. App. 803, 804 (586 SE2d 705) (2003). And a conviction arising from a guilty plea requires entry of a final judgment. OCGA § 16-1-3 (4). Because the record reveals that the Fulton County court accepted Pope’s plea to only Counts 1-3 of the Fulton County indictment and a judgment was entered as to only those counts, the trial court correctly concluded that he did not enter a guilty plea to Counts 4 and 5 of that indictment.

2. Pope argues that he was placed in jeopardy by the Gwinnett County indictment charging him with the same crimes that were the subject of the dead-docketed Counts 4 and 5 of the Fulton County indictment. But OCGA § 16-1-8 (a) (2) provides:

A prosecution is barred if the accused was formerly prosecuted for the same crime based upon the same material facts, if such former prosecution: . . . [w]as terminated improperly after the jury was impaneled and sworn or, in a trial before a court without a jury, after the first witness was sworn but before findings were rendered by the trier of facts or after a plea of guilty was accepted by the court.

(Emphasis supplied.) See Thorpe v. State, 251 Ga. App. 334, 335 (553 SE2d 171) (2001). Because the trial court did not accept a guilty plea to the dead-docketed Counts 4 and 5 of the Fulton County indictment which alleged the same crimes as the Gwinnett County indictment here, jeopardy did not attach.

3. Because jeopardy did not attach, the trial court did not err in denying Pope’s plea in bar. See, e.g., Copeland v. State, 248 Ga. App. 346, 348 (2) (a) (546 SE2d 351) (2001).

Judgment affirmed.

Mikell and Dillard, JJ., concur.

Daniel J. Porter, District Attorney, William C. Akins, Assistant District Attorney, for appellee.


author: Phipps, Presiding Judge.

text:
    A11A0759.
    GILDAR v. GILDAR.
    (710 SE2d 913)
   Phipps, Presiding Judge.

David Gildar (the father) appeals from an order that, inter alia, lifted certain restrictions on the visitation rights of his former wife, Catherine Gildar (the mother), with their children. Finding no error, we affirm.

The record shows that on June 8, 2005, pursuant to a consent agreement between the parents, the trial court entered a Final Judgment on Child Custody (the Final Judgment), awarding the father sole legal and physical custody of the children and awarding the mother visitation rights. Pertinently, the Final Judgment provided that, for a period of one year, the mother’s visitation rights would be conditioned upon her satisfaction of certain enumerated “safeguards” due to her past drug and alcohol use. The Final Judgment provided that, “once the Safeguards described herein are no longer required,” the father could require the mother to take drug and alcohol tests in a manner specified by the Final Judgment, and that “[i]n the event that the Mother fails to take such test or fails such test, then the Safeguards outlined herein shall be reinstated.” And the Final Judgment provided:

In the event the Mother fails either of the above safeguards to ensure that she is not consuming alcohol or abusing prescription drugs while caring for her children, all her time with the children shall be supervised at her expense. Such supervision shall continue until the Mother obtains a clearance from Dr. Michael Fishman, the Court appointed addic-tionologist, or from another medically licensed physician specializing in addiction medicine who has either been recommended by Dr. Fishman or who has been approved by the Father.

On May 26, 2010, in response to an emergency petition for contempt, the trial court found that the mother had failed to comply with the terms of the Final Judgment because she had not demonstrated that she had taken a March 2010 test in the specified manner. Consequently, the court held that the safeguards outlined in the Final Judgment were reinstated, thereby restricting the mother’s unsupervised visitation rights, and that, pursuant to the Final Judgment, “[t]he [mother] must now take the necessary action to lift the [sjafeguard provisions.”

On June 3, 2010, the mother filed an emergency petition for citation for contempt against the father for interfering with her visitation rights. Therein, she argued that she had met the Final Judgment’s requirements for lifting the restrictions on her visitation rights and had received the necessary “clearance” from a doctor approved by Dr. Fishman (Dr. Gordon) to fulfill the responsibilities set forth in the Final Judgment. The trial court denied the mother’s petition, declining to find the father in contempt, but also held that the safeguard provisions triggered by the March 2010 test “have run their course, the purpose of same has been met and [the mother’s] supervised visitation requirement is hereby suspended, effective immediately.”

The father contends that the court erred in suspending the restrictions on the mother’s visitation rights, because that change contravened the plain and unambiguous terms of the Final Judgment. But

[although it has long been the rule in this state that a trial court cannot modify the terms of a divorce decree in a contempt proceeding, an exception is made with regard to visitation rights. Under. . . OCGA § 19-9-3 (b), the trial court is expressly authorized to modify visitation rights, even on its own motion, during a contempt proceeding.

Thus, even assuming arguendo that the mother did not meet the Final Judgment’s requirements for unsupervised visitation, the court nevertheless had the authority to modify the terms of visitation to allow the mother to resume unsupervised visitation.

Moreover, “[modification of child visitation rights is a matter of discretion with the trial court.” “If reasonable evidence exists in the record to support the trial court’s decision to change . . . visitation rights, then the decision of that court will stand. The trial court’s decision will not be overturned absent abuse of discretion.” Here, the court noted that the purpose of the terms of the Final Judgment, including the safeguard provisions, was “to encourage both parents to conduct themselves in a manner that provides the Gildar children with as normal a life as possible.” In determining that allowing the mother to resume unsupervised visitation served this purpose, the court found that there “simply is no evidence that the [mother] is a present danger to the minor child” and that “[wjhatever emergency existed during the week of March 15, 2010 has long since been resolved through [the mother’s] introspection, counseling with Dr. Gordon and [the mother’s] presumed abstinence from consuming alcohol and/or abuse of prescribed medications.”

Decided June 1, 2011.

McGinnis & Chambers, Eugene P. Chambers III, for appellant.

Weinstock & Scavo, Lindsay B. Dodson, for appellee.

The father argues that there was no competent evidence to support the court’s findings. The record shows, however, that the reason the court, in its May 2010 order, reimposed the safeguard provisions restricting the mother’s visitation rights was due to her inability to demonstrate that someone had directly witnessed her give a urine sample for a test taken in March 2010. The mother testified that since that time she had been seeing Dr. Gordon regularly and had provided him with urine samples for testing. And there is no evidence that the mother actually tested positive for drugs or alcohol in March 2010, or that she failed any subsequent drug or alcohol test.

Under these circumstances, we find that the trial court did not abuse its discretion in modifying the terms of the Final Judgment to allow the mother to resume unsupervised visitation.

Judgment affirmed.

Andrews and McFadden, JJ., concur.

       When the order on appeal was entered, only one of the parents’ three children was under the age of eighteen; that child was a teenager.

        Carlson v. Carlson, 284 Ga. 143-144 (663 SE2d 673) (2008) (citations, punctuation and footnote omitted).

       See generally id.

        Hardin v. Hardin, 303 Ga. App. 416, 417 (1) (693 SE2d 605) (2010) (punctuation and footnotes omitted).

        Curtis v. Klimowicz, 279 Ga. App. 425, 427 (2) (631 SE2d 464) (2006) (citation, punctuation and footnote omitted).

       See Hardin, supra at 418 (1). See generally Dept. of Human Resources v. Allison, 276 Ga. 175, 178 (575 SE2d 876) (2003) (burden is on appellant to show error by the record).