author: Doyle, Presiding Judge.

text:
    A12A0844.
    GOWDY v. SCHLEY.
    (732 SE2d 774)
   Doyle, Presiding Judge.

This appeal arises out of a lawsuit filed by Deshanda Schley against Travis Gowdy seeking damages for injuries allegedly caused by a motor vehicle collision in Russell County, Alabama. Gowdy contends that the trial court erred by denying his motion to transfer/ dismiss the case based on improper venue or in the alternative denying his motion to dismiss for forum non conveniens. For the reasons that follow, we affirm.

According to Schley’s complaint, on October 16, 2008, Gowdy forced Schley to run off the road in Phenix City, Alabama, causing her serious injury. Based on a stipulation of the parties, the trial court found that both Gowdy and Schley are residents of Russell County, Alabama. Schley filed a complaint against Gowdy in Muscogee County Superior Court. After failing to obtain service of Gowdy at his parents’ house in Muscogee County, Georgia, a Muscogee County Sheriff’s Deputy telephoned Gowdy and requested that he come to Muscogee County to accept service of legal papers. Gowdy agreed and was personally served by the deputy in Muscogee County.

Thereafter, Gowdy answered, asserting improper venue, and timely filed a “Motion to Dismiss/Motion to Transfer Venue or in the Alternative Motion for Forum Non-Conveniens.” The trial court denied the motion and issued a certificate of immediate review. This Court granted Gowdy’s application for interlocutory appeal to address the question of proper venue when an out-of-state plaintiff files suit in Georgia against an out-of-state defendant based on an out-of-state automobile collision.

1. To maintain a civil action against a defendant in Georgia, a plaintiff generally must satisfy each of the following: (1) the trial court must have subject matter jurisdiction over the cause of action; (2) the court must have personal jurisdiction over the defendant, and (3) venue where the action is pending must be proper. Here, the issue is whether venue is proper in Muscogee County Superior Court even though both Gowdy and Schley live in Alabama and the cause of action arose in Alabama.

In its general venue provision, the Georgia Constitution provides that civil cases generally “shall be tried in the county where the defendant resides.” When a defendant resides outside of Georgia, however, venue is determined by other factors. For example, if personal jurisdiction is gained over a nonresident defendant by Georgia’s Long Arm Statute, venue “lie[s] in any county wherein a substantial part of the business was transacted, the tortious act, omission, or injury occurred, or the real property is located.” Likewise, under Georgia’s Nonresident Motorist Act, if a nonresident is involved in a motor vehicle collision in Georgia, venue is proper where the accident or injury occurred or in the county where a resident plaintiff resides. But neither of these statutes apply to the facts before us.

Where, as here, neither the defendant nor the plaintiff resides in Georgia, and the cause of action arose outside of Georgia, we look to OCGA § 9-10-33 to determine where venue is proper. That Code section states that “A person who is not a citizen of this state, passing through or sojourning temporarily in the state, may be subject to an action in any county thereof in which he may be found at the time when the action is brought.” Pretermitting whether Gowdy falls within the definition of temporary sojourner, Gowdy was passing through Georgia after he voluntarily entered the state to accept service. Thus, under OCGA § 9-10-33, venue is proper in Muscogee County, the county where Gowdy was found and served.

We note that the circumstances of this case could appear patently unfair to Gowdy, an Alabama resident required to appear in Georgia to defend a case that arose out of an Alabama car crash with Schley, a fellow Alabama resident. As argued by Gowdy, allowing this case to proceed in Georgia could, by logical extension, allow an Alaskan resident involved in a car crash in Alaska with another Alaskan resident to litigate his case in Georgia, so long as the Alaskan defendant was personally served in Georgia. Gowdy is correct; this could happen. But such facts are far different from this one, where the location of the foreign venue and the local venue are a very short distance apart. Moreover, such a defendant can still seek a dismissal under the forum non conveniens doctrine. As addressed below in Gowdy’s second enumeration of error, this doctrine requires an additional analysis and accounts for the concerns raised in Gowdy’s hypothetical.

2. Gowdy contends that the trial court erred by denying his motion to dismiss for forum non conveniens under OCGA § 9-10-31.1 (a). “The determination of whether to transfer [or dismiss] a case pursuant to OCGA § 9-10-31.1 (a) is a matter within the trial court’s discretion, and, absent an abuse of that discretion, the trial court’s decision should be affirmed.”

Decided September 27, 2012.

Hall, Booth, Smith & Slover, MarkD. Maholick, PaulD. Ivey, Jr., for appellant.

Charles A. Gower, for appellee.

OCGA § 9-10-31.1 (a) provides as follows, in relevant part:

In determining whether to grant a motion to dismiss an action . . . under the doctrine of forum non conveniens, the court shall give consideration to the following factors:

(1) Relative ease of access to sources of proof;

(2) Availability and cost of compulsory process for attendance of unwilling witnesses;

(3) Possibility of viewing of the premises, if viewing would be appropriate to the action;

(4) Unnecessary expense or trouble to the defendant not necessary to the plaintiff’s own right to pursue his or her remedy;

(5) Administrative difficulties for the forum courts;

(6) Existence of local interests in deciding the case locally; and

(7) The traditional deference given to a plaintiff’s choice of forum.

Here, the trial court held a hearing and evaluated Gowdy’s claim as to the non conveniens factors. The court issued a written order denying his motion based on the location of the collision, the close proximity of the two venues, the comparative inconveniences to the parties, the location of the witnesses, and the difficulties of compulsory process in either venue. In light of these facts, we discern no abuse of the trial court’s discretion.

Judgment affirmed.

Andrews and Boggs, JJ., concur.

       This case had heen previously addressed hy this Court in an unpublished opinion which remanded the case for factual findings as to the locus of Gowdas residence.

       Subject matter jurisdiction
      refers to subject matter alone, i.e., conferring jurisdiction in specified kinds of cases. It is the power to deal with the general abstract question, to hear the particular facts in any case relating to this question. Jurisdiction of the subject matter does not mean simply jurisdiction of the particular case then occupying the attention of the court, but jurisdiction of the class of cases to which that particular case belongs.
      (Citations and punctuation omitted.) Hopkins v. Hopkins, 237 Ga. 845, 846 (1) (229 SE2d 751) (1976).

       Personal jurisdiction refers to “the power of the court to render a judgment which will be binding upon the persons of the parties, and [it] is obtained by their appearance or by use of the proper process for the type [of] action.” Id. at 847 (1) (emphasis supplied).

       Venue is the proper geographical place, i.e., county or district, for the trial to be conducted. See id.

       See, e.g., Miller v. Bryant, 266 Ga. 584, 584-585 (468 SE2d 762) (1996) (a court without venue lacked authority to issue injunction sought by plaintiff); Schuehler v. Pait, 239 Ga. 520, 522 (1) (238 SE2d 65) (1977) (“In order to enter a valid judgment, the court must first have jurisdiction over the subject matter of the suit.”); Weddington v. Kumar, 149 Ga. App. 857, 858 (256 SE2d 141) (1979) (“An action in a court which has jurisdiction of the subject matter but no jurisdiction of the person of the defendant because of the fact that the defendant is a resident of another county is an action which is . . . voidable.”) (punctuation omitted).

       Ga. Const. of 1983, Art. VI, Sec. II, Par. VI.

       OCGA § 9-10-91.

       OCGA § 9-10-93.

       OCGA § 40-12-3.

       (Emphasis supplied.)

       “Sojourn” is defined hy Black’s Law Dictionary to mean a "temporary stay by someone who is not just passing through a place hut is also not a permanent resident.” Black’s Law Dictionary (9th ed. 2009).

        Hawthorn Suites Golf Resorts, LLC v. Feneck, 282 Ga. 554, 556 (3) (651 SE2d 664) (2007).

       We note that these facts would not be present in Gowdy’s hypothetical cause of action arising in Alaska.


source: Caselaw Access Project

author: McFadden, Judge.

license: Public Domain

text:
    A12A1129.
    THOMAS v. THE STATE.
    (732 SE2d 780)
   McFadden, Judge.

Jerry Von Thomas challenges a trial court order denying his motion to correct a void sentence, claiming that he was improperly sentenced as a recidivist under OCGA § 17-10-7 (c). However, the record shows that Thomas had been convicted of three prior felonies, and therefore the trial court correctly sentenced him pursuant to OCGA § 17-10-7 (c).

In May 2006, Thomas was charged with one count of possession of methamphetamine. The state subsequently filed a notice of its intent to seek recidivist sentencing based on Thomas’ prior felony convictions. On August 28, 2006, Thomas pled guilty to the charge of possession of methamphetamine. The trial court accepted the plea and imposed a 30-year sentence, ordering Thomas to serve 12 years in confinement and the remainder of the sentence on probation. The trial court also found that this was Thomas’ fourth felony conviction and thus sentenced him pursuant to OCGA § 17-10-7 (c), which provides that any person who has been convicted of three prior felonies must, upon conviction for a fourth felony, “serve the maximum time provided in the sentence of the judge based upon such conviction and shall not be eligible for parole until the maximum sentence has been served.”

In June 2011, Thomas filed a motion to correct a void sentence, arguing that his recidivist sentence under OCGA § 17-10-7 (c) was improper because one of his three prior felony convictions was based on an uncounseled guilty plea. The trial court denied the motion. Thomas appeals.

Thomas acknowledges that he had the assistance of counsel for two prior felony convictions from 2004, one for possession of methamphetamine and another for possession of methamphetamine with intent to distribute. However, he claims that the state failed to present any evidence that he had an attorney for a 1999 felony conviction for possession of cocaine. Thus, he argues, that uncounseled conviction cannot serve as a predicate offense for recidivist sentencing under OCGA § 17-10-7 (c). The argument is without merit.

The record reveals that in 1997, with the assistance of counsel, Thomas pled guilty to possession of cocaine and was given first offender probation. In 1999, the trial court revoked that probation and imposed a four-year sentence with eight months to be served in jail. It is true that Thomas appeared at that 1999 revocation hearing without an attorney. But at that time, he was not necessarily entitled to appointed counsel at a revocation hearing. Rather, the right to have a circuit public defender provide representation “in a probation revocation hearing is a right only recently conferred upon [indigent defendants] by [OCGA § 17-12-23 (a) (2)]. Prior to the enactment of that statute, the right to counsel in such proceedings was not absolute.” (Citations omitted.) Miller v. State, 301 Ga. App. 706, 709 (1) (689 SE2d 46) (2009), vacated on other grounds, 288 Ga. 153 (702 SE2d 137) (2010). See also Banks v. State, 275 Ga. App. 326, 327, n. 3 (620 SE2d 581) (2005). OCGA § 17-12-23 (a) (2)becameeffectiveinits current form in 2005. Ga. Laws 2003, p. 191, § 1, eff. Jan. 1, 2005. At the 1999 revocation hearing, Thomas freely admitted that he had violated various terms of his probation, and such “admission to having committed [those violations] creates the very sort of situation in which counsel need not ordinarily be provided.” (Citation and punctuation omitted.) Banks, supra at 329.

Decided September 27, 2012

Abbott & Cone, David C. Abbott, for appellant.

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

Furthermore, even if Thomas had shown that he was entitled to counsel at the revocation hearing, the transcript reveals that he waived representation by counsel. At the beginning of the revocation hearing, the trial court specifically asked Thomas if he wanted to go forward without an attorney, and he stated that he did wish to proceed without one.

In recidivist sentencing, the [sjtate bears the burden of showing both the existence of the prior guilty pleas and that the defendant was represented by counsel when he entered the pleas. If the defendant was not represented by counsel, the [s]tate can meet its burden by showing that the defendant waived this right. The [sjtate can do this by introducing a transcript of the plea hearing, a docket entry or another document affirmatively showing that the right to counsel was waived.

(Citations omitted.) Beck v. State, 283 Ga. 352, 353-354 (2) (658 SE2d 577) (2008). In this case, it is undisputed that the state showed that Thomas was represented by counsel when he entered his 1997 guilty plea. The state further showed by the transcript of the 1999 revocation hearing that he waived representation by counsel at that hearing. Because the state met its burden of showing the regularity of the prior guilty plea and probation revocation for purposes of recidivist sentencing, the trial court did not err in denying Thomas’ motion to correct a void sentence.

Judgment affirmed.

Barnes, P. J., and Adams, J., concur.


text:
    A12A1631, A12A1632.
    In the Interest of S. R. C. J., a child. (two cases).
    (732 SE2d 547)
   McFadden, Judge.

The juvenile court terminated the mother’s parental rights to her child, S. R. C. J., but declined to place the child with the maternal grandmother. We granted the mother’s and grandmother’s applications for discretionary review, and they appeal the juvenile court’s order. The mother argues that insufficient admissible evidence supports the termination of her parental rights, but we find that sufficient admissible evidence supports the juvenile court’s decision. The grandmother argues that the juvenile court considered hearsay; that the juvenile court erred by failing to consider family members for placing the child; that the Department of Family and Children Services failed to comply with certain time limitations in the regulations to the Interstate Compact on the Placement of Children, OCGA §§ 39-4-1 through 39-4-10; and that certain testimony of a caseworker at the termination hearing was improperly limited because of time constraints. We hold that sufficient admissible evidence supported the juvenile court’s decision; that the juvenile court did not err in failing to consider the grandmother for placement of the child; that the grandmother has not shown that the regulations to the Interstate Compact on the Placement of Children apply; and that the grandmother cannot challenge the limitation of the caseworker’s testimony because she did not raise the issue in the juvenile court. We thus affirm.

1. Facts

On appeal of a juvenile court’s order terminating a parent’s rights, we view the evidence

in the light most favorable to the juvenile court’s ruling, and [our] review is limited to addressing the question of whether any rational trier of fact could have found by clear and convincing evidence that the parent’s rights should have been terminated. In this review, [we] must necessarily defer to the juvenile court’s fact finding, weighing of the evidence, and credibility determinations.

(Citations and punctuation omitted.) In the Interest of D. T. A., 312 Ga. App. 26, 27 (717 SE2d 536) (2011).

Viewed in a light most favorable to the juvenile court’s ruling, the - evidence shows that the mother is a Connecticut resident. S. R. C. J. is the mother’s fifth child. The state of Connecticut removed her four older children from her custody because of her drug use and a history of domestic violence; Connecticut sought termination of her parental rights to those children. The mother tested positive for cocaine while pregnant with S. R. C. J. and was told that Connecticut would seek to remove the child at birth. The mother left Connecticut, without informing her caseworker, to give birth to S. R. C. J. in Georgia. Her sister lived in Camden County, Georgia, and the mother planned on giving custody of the baby to her sister. The mother’s Connecticut caseworker testified that she notified the Camden County Department of Family and Children Services (“DFCS”) that the mother had gone into labor, illicit drugs were in her system, and Connecticut authorities had “some knowledge” that she might travel to Georgia to deliver the baby.

S. R. C. J. was removed from her mother’s custody at birth and has remained in the custody of DFCS. DFCS’s attempt to test the baby for drugs at the time of her birth was unsuccessful, but she was born with symptoms of withdrawal, including tremors and shaking. She also was born with a heart problem. She has neurological problems, sleep disturbances and eating issues. S. R. C. J. is receiving services to remedy the issues caused by her withdrawal. She receives treatment by a cardiologist.

Two months after S. R. C. J.’s birth, the mother returned to Connecticut, although DFCS had established a case plan for her. One of the goals of the case plan required the mother to complete parenting classes, but she did not do so. Another goal was for the mother to maintain a source of income to support her child and to maintain stable, suitable housing, but she provided DFCS with no verification of any income, employment or housing. The mother met the goal of obtaining a substance abuse assessment, but she failed to complete any of the assessment recommendations — that she attend substance abuse treatment, that she attend outpatient services, that she obtain mental health counseling and a psychological assessment — even though completing those recommendations was one of her case plan goals. The case plan required the mother to submit to random drug screens, and the drug screens that DFCS was able to administer came back negative. But once the mother left Georgia, DFCS was unable to administer any drug screens. The mother did not pay any of the required child support of $25 per month. During the two months the mother resided in Georgia, she visited the child thirteen times. She had not seen the child for five months before the hearing on the petition to terminate her parental rights, explaining that it was “very hard and expensive” to travel between Connecticut and Georgia. For the four to five months before the termination hearing, the mother had not kept DFCS informed of her whereabouts, and DFCS lost contact with her. She did not maintain contact with her attorney and learned of the termination hearing through published notice. The mother testified that she knew she had “messed up,” but she sought “a second chance.”

The grandmother gave the mother pain medication prescribed for the grandmother. This concerned the Connecticut authorities because of the mother’s substance abuse history. The grandmother testified that she did not know that it was wrong to give her prescription drugs to the mother until a caseworker told her so. The grandmother denied to the Connecticut social worker that her daughter had a substance abuse problem, but she admitted it at the hearing. The grandmother has never seen the child and called DFCS only once about the child. After the termination petition was filed, the grandmother intervened in the proceedings, and her attorney contacted DFCS expressing her interest in visiting the child. DFCS had not evaluated the grandmother as a placement option because, until her attorney’s involvement, after S. R. C. J. hadbeen in DFCS custody for more than a year, she had shown no interest in bonding with the child.

The grandmother has supervised visitation with the mother’s four older children in Connecticut. On her own initiative, she underwent counseling and took parenting classes to help pursue custody of these grandchildren.

S. R. C. J. has been with the same foster parents since her birth; they are the only parents she has ever known, and she has bonded with them. The foster parents have taken care of the child’s special needs. They want to adopt the child.

Case No. A12A1631. The Mother’s Appeal

2. Sufficiency of the evidence

The mother argues that the evidence fails to support the termination. OCGA § 15-11-94 sets forth the two-step procedure for terminating a parent’s rights:

First, the juvenile court must find parental misconduct or inability, which under OCGA § 15-11-94 (b) (4) (A) 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.

In the Interest of D. T. A., supra, 312 Ga. App. at 27.

(a) Hearsay

On appeal, the mother argues that the state failed to present sufficient, competent evidence to terminate her parental rights. She argues that some of the evidence upon which the juvenile court based its factual findings — the reasons for the removal of her four older children — is hearsay. We disagree.

An investigation social worker with the Connecticut Department of Children and Families testified that the four children are in the custody of her department; that the mother had substance abuse issues; and that the mother and father engaged in domestic violence. The mother never objected to this testimony as hearsay, and the record does not show that the social worker lacked personal knowledge of the facts in her testimony. “Where a witness testifies to a conclusion of fact which could be within his knowledge and such testimony is admitted without objection, it cannot be attacked on review as being incompetent or insufficient.” (Citations omitted.) Willingham v. State, 296 Ga. App. 89, 90 (673 SE2d 606) (2009). See also Floyd v. State, 100 Ga. App. 453 (1) (112 SE2d 171) (1959) (“Unless it affirmatively appears that evidence is hearsay, and where it is of such a nature that it is possible for the witness who testifies thereto to personally know thereof, it ought not to be excluded.”) (citations omitted).

Furthermore, the facts related to the removal of the four older children from the mother’s custody were memorialized in the juvenile court’s previous orders in the deprivation proceeding, which the mother never appealed. See In the Interest of G. A. M., 302 Ga. App. 177, 178 (690 SE2d 472) (2010) (factual findings in unappealed deprivation order binding for purposes of termination hearing). The juvenile court took judicial notice of those orders, and the mother affirmatively stated she had no objection. “Under these circumstances, the [s]tate’s case cannot be dismissed as hearsay.” (Citations omitted.) In the Interest of M. D. L., 285 Ga. App. 357, 359 (646 SE2d 331) (2007).

We acknowledge that the juvenile court’s order includes certain findings that may be based on hearsay. But “even if the juvenile court did consider hearsay, this will not constitute reversible error if the other evidence introduced at the termination hearing, excluding the hearsay, supports the juvenile court’s findings and conclusions.” In the Interest of E. G., 284 Ga. App. 524, 531 (3) (644 SE2d 339) (2007). And we find that the other, admissible evidence supports the termination of the mother’s parental rights.

(b) Likelihood that deprivation will continue The mother argues that no evidence showed that deprivation is likely to continue. Specifically, she argues that the juvenile court improperly relied on her past unfitness to terminate her parental rights. The mother is correct that

[ejvidence of past unfitness, standing alone, is insufficient to terminate the rights of a parent in... her natural child; clear and convincing evidence ofpresent unfitness is required. But the trial court is entitled to consider evidence of the [mother’s] past actions in determining whether the deprivation is likely to continue. It is not bound by mere promises to do better in the future.

(Citations and punctuation omitted; emphasis in original.) In the Interest of A. B., 283 Ga. App. 131, 136-137 (1) (c) (640 SE2d 702) (2006).

Clear and convincing evidence supported the finding of the mother’s present unfitness. The mother failed to meet almost all of the goals of the case plan. She failed to complete parenting classes. She failed to show that she had a source of income to support her child. She failed to provide DFCS with verification of housing. Although the mother met the goal of obtaining a substance abuse assessment, she failed to show that she completed the recommendations from the assessment. The mother did not pay any of the required child support. She had not seen the child for the five months preceding the termination hearing. She failed to keep DFCS informed of her whereabouts, and DFCS lost contact with her; she did not even maintain contact with her own attorney and learned of the termination hearing only through published notice.

We have found similar evidence in past cases sufficient to support a finding that deprivation is likely to continue.

While the trial court is entitled to consider evidence of the parents’ past actions in determining whether the deprivation is likely to continue, this case does not rest on past unfitness. The mother . . . [has] failed to show that [her] present circumstances are any different than they were when the [child was] removed from [her] and adjudicated deprived. The decision as to a child’s future must rest on more than positive promises which are contrary to negative past fact.

(Citations omitted.) In the Interest of C. A. S., 291 Ga. App. 204, 207 (661 SE2d 612) (2008). See also In the Interest of S. H., 296 Ga. App. 768, 772 (1) (675 SE2d 619) (2009) (evidence of present unfitness supported termination where mother was in process of completing drug treatment program but had not obtained stable housing or employment and had six other biological children that were not in her care); In the Interest of C. A. S., supra, 291 Ga. App. at 207 (no evidence of stable housing or income, prospects for employment or any significant efforts to comply with case plan). We find that the evidence supports the juvenile court’s finding by clear and convincing evidence of the mother’s present unfitness and that the causes of the child’s deprivation are likely to continue.

(c) Likelihood that continued deprivation will cause serious harm

The mother argues that DFCS presented no evidence that continued deprivation is likely to cause harm to the child. “[T]he same facts authorizing a finding that deprivation is likely to continue may also authorize a finding, under the circumstances of an individual case, that the continued deprivation is likely to cause serious harm.” (Emphasis in original.) In the Interest of J. E., 309 Ga. App. 51, 57 (1) (d) (711 SE2d 5) (2011). And “where evidence shows no parental bond between parent and child, the child has adapted well to foster care, and the foster parents wish to adopt, this is sufficient to support the conclusion that continued deprivation is likely to harm the child.” (Citation omitted.) In the Interest of D. D. B., 282 Ga. App. 416, 420 (1) (638 SE2d 843) (2006).

The record before us, including the mother’s failure to show an end to her drug abuse, her failure to provide for the child, the absence of a bond between the mother and the child, the child’s bond with her foster parents and the foster parents’ wish to adopt, “entitled the juvenile court to draw the conclusion that clear and convincing evidence showed that [the child’s] continued deprivation was likely to cause the child serious harm.” In the Interest of J. E., supra, 309 Ga. App. at 57 (1) (d).

Case No. A12A1632. The Grandmother’s Appeal

3. Sufficiency of the evidence

The grandmother argues that the juvenile court erred by denying her petition for custody of the child. We cannot substitute our judgment for a juvenile court’s judgment that relative placement was not in the best interest of a child. In the Interest of S. V., 281 Ga. App. 331, 333 (2) (636 SE2d 80) (2006).

The trial court had the opportunity to question and observe the parties and witnesses, and possesses a wide discretion in determining the issues before it, and if the judgment is supported by any evidence and is not clearly erroneous, an appellate court is not authorized to set it aside.

Id.

(a) Hearsay

The grandmother argues that the juvenile court considered hearsay evidence, namely unsubstantiated drug tests of the mother. As discussed above, even if the juvenile court considered this hearsay evidence, sufficient, admissible evidence supported the termination of the mother’s parental rights.

(b) Placement with family members

The grandmother argues that the juvenile court erred by failing to consider family members for placing the child. Although OCGA § 15-11-103 (a) (1) formerly required the juvenile court first to attempt to place with a relative a child whose parents’ rights have been terminated, in 2010 the General Assembly amended the statute to remove that requirement. Ga. Laws 2010, pp. 286, 291, § 11. Juvenile courts no longer have the obligation to attempt to place a child with relatives. OCGA § 15-11-103 (a) (“Upon the entering of an order terminating the parental rights of a parent, a placement may be made only if the court finds that such placement is in the best interest of the child____”). And even prior to the amendment, the juvenile court was not required to give preference to family members in making a placement of a child following termination of parental rights. In the Interest of S. V., supra, 281 Ga. App. at 333 (2).

The grandmother argues that DFCS should have considered placing the child with a maternal aunt, but that aunt withdrew her petition for custody. And the agency did not evaluate the grandmother as a placement option because she had shown no interest in bonding with the child until the child had been in DFCS custody for a year. In fact, the grandmother has never seen the child and called DFCS only once about the child.

(c) Regulations under the Interstate Compact on the Placement of Children

The grandmother argues that DFCS failed to comply with certain time limitations included in the regulations to the Interstate Compact on the Placement of Children, OCGA §§ 39-4-1 through 39-4-10. But she has not shown that Georgia has adopted the regulations, which are not part of the Georgia Code section and are not found in the rules and regulations of the state of Georgia. See generally Ga. Comp. Rules & Regs. Title 290, Chapter 2 (rules of the Georgia Department of Human Resources, Family and Children Services).

Decided September 27, 2012.

Orville B. Green, for appellant

(case no. A12A1631).

John S. Wetzler, for appellant

(case no. A12A1632).

Samuel S. Olens, Attorney General, Shalen S. Nelson, Senior Assistant Attorney General, James A. Chamberlin, Jr., for appellee.

(d) Limitation of cross-examination

The grandmother argues that the testimony of a state of Connecticut caseworker was improperly limited because of the witness’s time constraints. The witness testified by telephone and informed the court and the parties at the beginning of her testimony that she would have to leave because of childcare issues. The grandmother’s attorney cross-examined this witness and never requested additional time or indicated in any way that she had not completed her cross-examination. Her “failure to interpose a timely objection at trial precludes consideration of an objection raised for the first time on appeal.” (Citation omitted.) Sloan v. State, 172 Ga. App. 620, 622 (7) (323 SE2d 834) (1984).

Judgments affirmed.

Barnes, P. J., and Adams, J., concur.


author: Phipps, Presiding Judge. Dillard, Judge,

text:
    A12A1117.
    THE STATE v. WOLF.
    (732 SE2d 782)
   Phipps, Presiding Judge.

The state appeals from the trial court’s grant of a motion to suppress evidence obtained from a vehicle after it was stopped by the police. The trial court found that the traffic stop was illegal because it was not based on specific articulable facts sufficient to give rise to a reasonable suspicion of criminal conduct, and that the subsequent arrest was unlawful because the police lacked probable cause. Finding no error, we affirm.

When an appellate court reviews a trial court’s order concerning a motion to suppress evidence, the appellate court should be guided by three principles with regard to the interpretation of the trial court’s judgment of the facts. First, when a motion to suppress is heard by the trial judge, that judge sits as the trier of facts. The trial judge hears the evidence, and his findings based upon conflicting evidence are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support it. Second, the trial court’s decision with regard to questions of fact and credibility ... must be accepted unless clearly erroneous. Third, the reviewing court must construe the evidence most favorably to the upholding of the trial court’s findings and judgment. On numerous occasions the appellate courts of this state have invoked these three principles to affirm trial court rulings that upheld the validity of seizures. These same principles of law apply equally to trial court rulings that are in favor of the defendant. . . d

Construed in this light, the evidence showed that on February 3, 2011, a mail carrier reported to the police that he was on Vickers Circle and Coffee Road and observed at a residence a gray Nissan pickup truck and several black men who entered the truck and left the residence, apparently after they had seen the mail carrier. The mail carrier suspected that the men were about to break into the residence. The next day, around noon, a police officer on patrol in the area observed a “gray Nissan four-door pickup truck coming off of Vickers Circle onto Coffee Road.” The officer, driving an unmarked police vehicle, followed the truck, which drove away and then circled back to Vickers Circle. The officer, who testified that he was patrolling the area because of the high number of recent burglaries, thought it “strange” that the truck returned to Vickers Circle. So he continued to follow the truck, and he called dispatch for backup “in reference to possible . . . burglary suspects.”

The officer testified that the truck stopped on Vickers Circle and picked up a “black male [who had] come out of a yard.” The truck drove away, but before it reached Coffee Road again, the officer activated the blue lights on his vehicle and initiated a stop of the truck. A second officer, who arrived just as the first officer had activated his lights, positioned his vehicle in front of the truck, effectively blocking the truck. The officers exited their vehicles with their guns drawn, they “got [the men] out of the [truck],” and they handcuffed all three men. Wolf was the front seat passenger. The first officer explained to the driver that they had stopped the truck because of “numerous burglaries in the area.” The first officer asked the driver why they had picked up an individual, and the driver responded that the individual was “getting directions” to a particular location. The officer testified that he did not believe that “story,” and instead believed the men were burglars. The officer testified, however, that the men were not under arrest at that time.

A third officer who had arrived on the scene testified that as she approached the truck to take pictures of it, the doors were open, and she observed in plain view a small baggie of what appeared to be marijuana behind the driver’s side seat of the truck. That officer reported to the first officer that she had seen marijuana in the truck. The first officer testified that the men were then placed under arrest. They were later indicted for burglary.

The first officer who had followed the vehicle and had called for backup was the state’s primary witness at the hearing on the motion to suppress. When asked on cross-examination whether, prior to stopping the vehicle, he knew “any other information” about the vehicle, such as a tag number, whether it had an extended cab, tinted windows, a tool box, or “any other individualized... characteristics,” the officer replied that he did not: “Just that it was a gray Nissan pickup truck with black males in it, possibly.” When asked on cross-examination whether, prior to the stop, he had seen the occupants of the vehicle violate any traffic laws or commit any illegal act, the officer replied that he had not.

1. The state contends that the first officer had an articulable suspicion to perform a traffic stop because the following facts made the officer suspicious that a burglary had been or was about to be committed: the officer was patrolling an area in which many burglaries had occurred; he observed a vehicle matching the description of and on the same road as a vehicle which had been reported as suspicious; and he observed the vehicle circle that area and pick up an individual; and all of this occurred “in the middle of the day, during the week, when few people were likely to be home.”

“According to Terry v. Ohio,[] police-citizen encounters are generally categorized into three tiers: consensual encounters; brief investigatory stops, which require reasonable suspicion; and arrests that must be supported by probable cause.”

Although an officer may conduct a brief investigative stop of a vehicle, such a stop must be justified by specific, articulable facts sufficient to give rise to a reasonable suspicion of criminal conduct. Investigative stops of vehicles are analogous to Terry-stops, and are invalid if based upon only unparticularized suspicion or hunch. An investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal activity. This suspicion need not meet the standard of probable cause, but must be more than mere caprice or a hunch or an inclination. ... In determining whether a stop was justified by reasonable suspicion, the totality of the circumstances — the whole picture — must be taken into account.

It is clear from the evidence adduced at the suppression hearing that the officers did not have the requisite particularized basis for suspecting the occupants of this particular vehicle of criminal activity. The first officer testified that he had not seen the occupants of the truck violate any traffic laws or commit any illegal acts. But “[e]ven if there is no probable cause to arrest for a traffic or other offense, the Fourth Amendment allows police to stop a vehicle to investigate a reasonable suspicion of criminal activity.”

The officer did not have a reasonable suspicion connecting Wolf to any crime. There was no testimony that any law enforcement officers had, in response to the mail carrier’s report, investigated whether the vehicle was properly at the residence the day before. The fact that the first officer had no details about the occupants of that vehicle other than their race and gender and that their vehicle was the same make and color as the one he observed the next day in an area where prior burglaries had reportedly been committed did not provide the requisite particularized basis for suspecting Wolf or the other occupants of the vehicle of criminal activity, justifying a stop of the vehicle. And there was no evidence that there was anything unlawful about the circumstances under which an individual was picked up. Nor was there testimony about the alleged recent burglaries in the area.

The police stopped the vehicle without the reasonable suspicion necessary to justify an investigative stop, and the detention was an unreasonable intrusion under the Fourth Amendment.

2. The state contends that the ensuing arrest was lawful because it was based upon probable cause, namely, that an officer saw suspected marijuana in plain view.

“Apolice officer who observes contraband in plain view is entitled to seize it, so long as he is at a place where he is entitled to be, i.e., so long as he has not violated the defendant’s Fourth Amendment rights in the process of establishing his vantage point.” “The plain view doctrine permits a warrantless search and seizure if the agents are lawfully in position to obtain the view, the discovery is inadvertent, and the object viewed is immediately seen to be incriminating.”

Decided September 28, 2012.

J. David Miller, District Attorney, Jessica W. Clark, Assistant District Attorney, for appellant.

The officer who located the suspected marijuana testified that she observed the contraband when she approached the vehicle to take pictures. She testified that when she approached the vehicle the doors were open and she observed in plain view the suspected contraband “behind the driver’s side seat.” Had the first officer not illegally stopped the vehicle and detained the occupants, however, the doors to the vehicle would not have been open and the third officer would not have seen the suspected marijuana. Accordingly, the trial court did not err in granting the motion to suppress.

The third officer was not in a lawful position when she viewed the interior of the vehicle; thus what she saw in “plain view” did not furnish probable cause for Wolf’s arrest.

3. The state contends also that the search of the vehicle was valid because it was an inventory search incident to a lawful arrest. Because the officers arrested Wolf without probable cause, the arrest was not lawful. Therefore, any evidence discovered as a result of that unlawful arrest was properly suppressed.

Judgment affirmed.

Ellington, C. J., concurs. Dillard, J., concurs in judgment only.

Dillard, Judge,

concurring in judgment only.

I concur in judgment only because I do not agree with all that is said in the majority opinion. As such, the majority’s opinion decides only the issues presented in the case sub judice and may not be cited as binding precedent. See Court of Appeals Rule 33 (a).

Langdale & Vallotton, James R. Miller TV, for appellee.

        Tate v. State, 264 Ga. 53, 54 (1) (440 SE2d 646) (1994) (citations and punctuation omitted).

       See State v. Menezes, 286 Ga. App. 280, 281-282 (1) (648 SE2d 741) (2007) (although generally, a passenger who asserts no possessory interest in a vehicle or the items found within has no standing to directly challenge a search of the vehicle, the passenger nevertheless has standing to contest his own illegal seizure and detention in connection with a traffic stop; and because evidence or contraband discovered in a search of the vehicle during the traffic stop may be considered the fruits of the passenger’s illegal detention, the passenger may move to suppress the evidence or contraband and may thus indirectly challenge the search of the vehicle).

       392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968).

        Groves v. State, 306 Ga. App. 779, 780 (703 SE2d 371) (2010).

        Darden v. State, 293 Ga. App. 127, 130 (1) (a) (666 SE2d 559) (2008) (citations omitted).

       See Vansant v. State, 264 Ga. 319, 321 (2) (443 SE2d 474) (1994) (officer who stopped a white van simply because he had heard a report that a white van had been involved in a hit-and-run incident lacked a particularized basis for suspecting the driver of illegal activity; officer had not observed any criminal activity on the part of the person stopped; motion to suppress was properly granted).

       See Groves, supra at 781-782; compare Brandt v. State, 314 Ga. App. 343, 344-345 (723 SE2d 733) (2012) (where officers observed a truck traveling at a high rate of speed and saw the driver “momentarily lose control of the truck, weaving between lanes in the process,” officers had probable cause to stop the truck for a traffic violation).

        Young v. State, 285 Ga. App. 214, 215 (645 SE2d 690) (2007) (footnote omitted; emphasis supplied).

       See Vansant, supra; State v. Dias, 284 Ga. App. 10, 12 (2) (642 SE2d 925) (2007) (the evidence did not support a reasonable suspicion sufficient to warrant the traffic stop when it was based on an anonymous caller’s report of “a maroonish or a brownish color either a Ford Taurus or a Tempo, or something like that, leaving the scene [of a burglary] with a white male occupant”; no year or body style, information about the condition, or number of doors was provided about the suspect car and no details were provided about the driver or his dress other than his race and gender and that he was perhaps wearing a white baseball cap); Murray v. State, 282 Ga. App. 741, 741-743 (639 SE2d 631) (2006) (mere fact that defendant’s truck was located in the vicinity of the alleged crime did not give rise to articulable suspicion; detaining officer did not have a description of the driver, the model or year of the truck, the license plate number, or the direction in which the truck was heading, and did not know whether the vehicle was moving).

       See generally Young, supra at 214-216 (trial court erred in failing to suppress evidence discovered as a result of a stop where the evidence showed that the only reason the officer stopped the defendant at 1:30 a.m. was because he saw him driving with a lawn mower in the car trunk near an area where there had been thefts reported; the officer, however, could not testify about any recent theft reports and admitted that he was not on the lookout for a stolen lawn mower; moreover, there was no evidence that the defendant had violated any traffic laws prior to the stop or that there was anything unlawful about him transporting a lawn mower in the trunk of a car).

       Id.

       See Postell v. State of Ga., 264 Ga. 249, 251 (443 SE2d 628) (1994) (detaining officers did not have a particularized and objective basis for suspecting defendant of criminal activity when they stopped him; defendant’s detention was an unreasonable intrusion on his constitutionally-protected right of personal security); Young, supra.

        State v. O’Bryant, 219 Ga. App. 862, 863 (467 SE2d 342) (1996) (citation and punctuation omitted); see State v. Ealum, 283 Ga. App. 799, 804 (643 SE2d 262) (2007); Weeks v. State, 206 Ga. App. 431, 433-434 (425 SE2d 421) (1992) (warrantless search and seizure not justified by plain view exception because police were not lawfully in position to obtain the view and discovery was not inadvertent; officer spotted suspected marijuana on floorboard of appellant’s car while standing outside the vehicle during appellant’s unlawful detention and performance of field sobriety tests); Bobo v. State, 153 Ga. App. 679, 679-680 (266 SE2d 247) (1980) (officer’s testimony as to what he observed during an unlawful stop of the defendant’s vehicle should have been excluded).

        Zeeman v. State, 249 Ga. App. 625, 628 (2) (549 SE2d 442) (2001) (punctuation and. footnote omitted).

        Weeks, supra; Bobo, supra; cf. Zeeman, supra (suspected contraband was in plain view where police officer was legally in a position to see it and discovered it inadvertently after defendant had opened the door to enter his vehicle).

       Compare State v. Webb, 193 Ga. App. 2, 4-5 (2), (3) (386 SE2d 891) (1989) (the plain view doctrine supports a warrantless search, seizure, and arrest if the officers are lawfully in position to obtain the view, the discovery is inadvertent, and the object viewed is immediately seen to be incriminating).

        State v. Fisher, 293 Ga. App. 228, 232 (666 SE2d 594) (2008) (evidence supported the trial court’s findings that defendants were illegally arrested; thus, the trial court properly suppressed the evidence obtained from the vehicle as a result of the arrests).


author: Phipps, Presiding Judge.

text:
    A12A1136.
    BADIE v. THE STATE.
    (732 SE2d 553)
   Phipps, Presiding Judge.

A jury found Nathan Badie guilty of burglarizing a residence. Appealing his conviction therefor, Badie challenges the denial of his motion for a directed verdict of acquittal and the denial of his motion for new trial on the ground of ineffective assistance of counsel. We affirm.

1. Badie contends that the trial court erred by denying his motion for a directed verdict of acquittal.

The standard for reviewing a denial of a motion for a directed verdict of acquittal is the same test to be used when the sufficiency of the evidence is challenged, i.e., under the rule of Jackson v. Virginia, [¶ whether the evidence was sufficient for a rational trier of fact to find beyond a reasonable doubt that the defendant was guilty of the charged offense.

The indictment charged that Badie, “during the period of time from April 24, 2010, through April 25,2010 ... without authority, and with the intent to commit a theft therein, enter [ed] the dwelling house of another, to wit: Desse E. Davis.”

The testimony of the state’s witnesses, viewed in the light most favorable to the prosecution, showed the following. On Sunday, April 25,2010, around 9:00 a.m., Desse Davis and his wife returned to their home in Swainsboro, after having left it the previous morning. Glass alongside their front door was broken near the doorknob, and their home had been ransacked. Davis summoned the police.

Property stolen from the home included a camera, checks, pieces of Davis’s wife’s jewelry, and a large plastic container that Davis had filled with coins — mostly quarters. The container had no lid and was almost too heavy for one man to carry. Davis testified that he had been saving the coins for 20 to 25 years. Several officers responded to Davis’s police call, and he described to them the property taken from the home.

Davis recounted at trial that, during the two or three years before the burglary, someone had broken into his storage room. Also, on a few occasions, he had noticed the neighbor across the street “out in [the neighbor’s] yard” — sometimes as late as 2:00 or 3:00 a.m. Davis recalled further that Badie sometimes visited that neighbor and that “[t]hey would be out in the yard.” Because Davis perceived that he was being “watched,” Davis revealed, “I try to leave early so people couldn’t see me.”

On Saturday, April 24, which was the day before the Davises returned to find their home burglarized, they had left their residence at about 5:15 a.m. Less than two hours later, Badie was seen in the vicinity of the Davises’ residence struggling to haul a large, heavy container filled with coins, mostly quarters.

In that regard, the evidence showed that Badie was seen about 100 yards from the Davises’ residence by a man sitting in a parked pickup truck. Badie approached the man and asked to be driven to a certain store because he needed to take his mother’s coins there. When the man agreed, Badie first walked back to the area from which he had come, retrieved what the man described as a “five-gallon bucket” with some type of a bag inside, returned to the truck, placed the container on the bed of the truck, then took a seat beside the container for the ride to the store. The man was asked at trial:

Q: . . . And did [the five-gallon bucket] appear to be heavy?
A: It appeared to be.
Q:... Now do you think he could’ve made it all the way to [the store] with those coins just walking?
A: Not from the way he was when he come down there where I was.

Badie arrived at the store at about 7:30 a.m., carrying what the store manager described as a mechanic’s tool bag. Badie walked directly to the store’s coin counting machine. Badie proceeded to pour coins out of the bag and into the machine; he continued to do so for such an extended period that it attracted the attention of store personnel. When the machine tallied about $600, the store manager interrupted Badie to advise him that the machine’s hopper would soon be full, that the store did not have large amounts of cash so early in the morning, and that he therefore would not be able to put all of the remaining coins into the machine. Badie told the manager that the coins belonged to his mother and him, but soon stopped pouring coins into the machine.

The receipt for Badie’s coin transaction showed a date-time stamp of April 24, 2010 at 8:03 a.m.; it reflected that Badie had put into the machine coins totaling $919.40 — comprised of 1 dollar, 3,666 quarters, 5 dimes, 26 nickels, and 10 pennies; and that for using the machine, he had paid a processing fee of $90.10. Badie left the store without incident, taking with him $829.30 received from a cashier, as well as the coins he had been unable to exchange due to the manager’s interruption. Badie returned to the awaiting pickup truck and was driven to his mother’s house, where Badie lived and which house was about a half-mile from the Davises’ residence.

Meanwhile, because store personnel had become suspicious of what they viewed as a highly unusual transaction, they reported the matter to police. Later, a police detective, who had begun investigating the burglary at the Davises’ residence, spoke with store employees. Based on information gathered therefrom, the detective interviewed Badie at the police station. During the interview, which was recorded and played for the jury, Badie stated that the coins were his (as opposed to his mother’s, as he had told the driver of the pickup truck, and as opposed to his and his mother’s, as he had told the store manager) and that he had been saving his change for approximately a year or a year and a half. When the detective questioned him about his ability to amass that amount of money by saving change during such time frame, Badie answered that he was a “good saver” and that the time period may have been longer. The detective asked Badie also what had happened to the coins that he carried out of the store, and Badie answered, without expressing much concern, that those coins had been stolen.

At the trial, Badie neither testified nor called any witnesses.

Challenging the sufficiency of the evidence, Badie points out that the state’s case included no witness who identified him as the person who had broken into the Davises’ residence; no DNA or fingerprint evidence placing him there; no evidence of any findings of a police search of his home (because the police admittedly did not search Badie’s home); and nothing to explain the whereabouts of other property Davis testified had been taken during the burglary, including the large plastic container that had held coins. Badie thus claims that the state’s wholly circumstantial case failed to prove that the coins he took to the store belonged to Davis.

Badie is correct that the state’s case relied on circumstantial evidence. But circumstantial evidence may authorize a conviction. “To warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.”

[Q]uestions about the reasonableness of hypotheses are generally for the jury’s determination, and where the jury is authorized to find that the evidence, though circumstantial, was sufficient to exclude every reasonable hypothesis save that of the defendant’s guilt, this Court does not disturb such finding unless the verdict of guilty is insupportable as a matter of law.

In this case, the verdict of guilty is not insupportable as a matter of law.

[E]vidence of recent, unexplained possession of stolen goods may be sufficient to give rise to an inference that the defendant committed the burglary. Once it is shown that goods were stolen in a burglary, absence of or unsatisfactory explanation of the possession of the goods will support a conviction for burglary based upon recent possession of the stolen goods. Whether a defendant’s explanation of possession is satisfactory is a question for the jury; so is lack of explanation.

Badie acknowledges these legal principles, but maintains that the evidence was insufficient, relying on the principle: In “[a] burglary prosecution where the state relies upon the defendant’s recent possession of allegedly stolen or feloniously taken goods for conviction, it is absolutely essential that the identity of stolen articles be indisputably established.” According to Badie, the state’s evidence relative to the coins in his possession did not satisfy that requirement. However, as we have repeatedly instructed, “the emphasized language does not impose any additional burden of proof upon the State but is merely an application of the State’s burden to prove defendants’ guilt beyond a reasonable doubt.”

That being so, the evidence that, taken together, authorized the jury to find that Badie was in possession of Davis’s stolen plastic container filled primarily with quarters included the following: Badie knew of the location of the residence burglarized; during the burglary, a large, heavy container filled with coins, primarily quarters, was stolen; within two hours of the Davises’ departure from their home, Badie was seen approximately 100 yards away struggling to haul a large, heavy container; Badie quickly arranged for transportation to haul the container to a store, where he redeemed 3,666 quarters (along with a few other coins); and he gave varying accounts of the ownership of the coins. Whether any of Badie’s explanations for his possession of such a large quantity of coins, mainly quarters, was satisfactory was a question for the jury. “Because the factfinder has heard the witnesses and observed them testify, it is considered more capable of determining the reasonableness of the hypothesis produced by the evidence or lack thereof than is an appellate court.” Viewed most favorably to the prosecution, the evidence was sufficient to authorize the jury to find that Badie was the perpetrator of the burglary.

2. Badie contends that the trial court erred in rejecting his claim of ineffective assistance of counsel.

To prevail on an ineffectiveness claim, a defendant must establish, pursuant to Strickland v. Washington, that counsel’s performance was deficient and that the deficient performance was prejudicial to his defense. Both the performance and prejudice prongs of the ineffectiveness inquiry are mixed questions of law and fact. 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 the trial court’s legal conclusions de novo. “If an appellant fails to meet his or her burden of proving either prong of the Strickland test, it is not incumbent upon the reviewing court to examine the other prong.”

Badie argues that his trial lawyer’s performance was deficient in that the lawyer failed to present evidence that might have led the jury to conclude that the coins in his possession were not the same ones stolen from the Davises’ residence. In an effort to support this argument, Badie presented at the new trial hearing two documents that he claimed were police reports of the burglary incident. One document showed as its author the first officer who responded to Davis’s call for police. That document, which Badie’s trial lawyer admittedly had received prior to the trial, noted, in connection with the stolen property: “Change in plastic Tub (Quarters)” and a stated value of “$400.” The other document presented by Badie at the new trial hearing did not include the name of any authoring officer. However, Badie’s trial lawyer admitted that he had received that document, too, prior to trial. Like the first document, it contained a notation: “(Change) $300 to $400 in quarters, that was stored in a plastic tub.”

Badie complains that, despite having received these two documents prior to trial, his lawyer failed to pursue these leads so as to present evidence that Davis reported to responding officers at the scene an amount of stolen money (in coins) that was less than the amount of money (in coins) shown in his (Badie’s) possession. Badie claims that his lawyer should have attempted to impeach Davis by calling as witnesses the officers who wrote those reports and by cross-examining Davis concerning the loss he reported.

Even if we overlook that Badie did not call at the new trial hearing any officer who authored any such police report, we cannot conclude that Badie’s trial lawyer rendered ineffective assistance for not including in the defense the tactic Badie describes.

There is a strong presumption that counsel’s conduct falls within the range of sound trial strategy and reasonable professional judgment. In determining prejudice, the question is whether there is a reasonable probability that the result of the trial would have been different, absent the specified errors.

Davis was not asked at-trial about the dollar amount of the coins he reported to police as stolen. Badie’s trial lawyer explained at the new trial hearing that he had not found the discrepancy to present a significant issue. As Badie’s trial lawyer intimated at the new trial hearing, there was no evidence that Davis had employed any systematic method of accounting or inventory over the course of the 20 to 25 years he was accumulating the coins. Rather, Davis described how he had obtained mainly quarters, whenever opportunities presented themselves, whereupon he heaped the coins together in a big, open, plastic container.

Further elaborating, Badie’s trial lawyer testified at the new trial hearing that, “in preparing for this case with respect to the dollar value of the quarters, I thought the complete absence of the physical evidence entirely was the larger point and that’s what I — that’s what my primary trial strategy was.” Thus, Badie’s trial lawyer explained that the primary defense strategy was to attack the state’s case as lacking what he had argued was critical linking evidence, e.g., a large plastic container, other items reportedly stolen (camera, checks, jewelry), and findings of a police search of Badie’s residence. And the trial transcript shows that, in addition to pointing out the absence of that evidence, the lawyer cited the lack of any eyewitness testimony placing Badie at the Davises’ residence at the pertinent time, as well as the lack of DNA and fingerprint evidence.

Decided September 28, 2012.

West & Corvelli, David S. West, for appellant.

S. Hayward Altman, District Attorney, MaryK. McKinnon, Assistant District Attorney, for appellee.

The alleged deficiencies in Badie’s trial counsel’s performance were decisions made as matters of trial strategy. Although his trial lawyer did not pursue further the specific tactic of impeachment by the claimed discrepancy, Badie nevertheless did not overcome the strong presumption that the particular defense employed fell within a wide range of reasonable professional assistance. “That [Badie] and his present counsel disagree with his trial counsel’s strategy does not require a finding of ineffective assistance.”

Judgment affirmed.

Ellington, C. J., and Dillard, J., concur.

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

        Dorsey v. State, 279 Ga. 534, 542 (3) (615 SE2d 512) (2005) (citations omitted).

       See OCGA § 16-7-1 (a) (2010) (burglary is committed, inter alia, when a person, “without authority and with the intent to commit a felony or theft therein, . . . enters . . . the dwelling house of another”).

         Jackson, supra.

       See Veasley v. State, 312 Ga. App. 728, 730-731 (1) (719 SE2d 585) (2011).

       OCGA § 24-4-6.

        Bryant v. State, 282 Ga. 631, 634 (1) (651 SE2d 718) (2007) (citation omitted).

        High v. State, 282 Ga. 244 (1) (647 SE2d 270) (2007) (citations and punctuation omitted).

        Dunn v. State, 213 Ga. App. 165, 166 (2) (444 SE2d 812) (1994) (citations and punctuation omitted; emphasis in original).

       Id. (citations and punctuation omitted); see, e.g., Rich v. State, 191 Ga. App. 312, 314 (1) (381 SE2d 567) (1989) (same).

       See Darby v. State, 245 Ga. App. 657 (538 SE2d 538) (2000) (evidence, taken together, authorized jury to conclude that defendant was in possession of victim’s recently stolen money); Martin v. State, 228 Ga. App. 59-61 (1), (2) (a) (491 SE2d 142) (1997).

       See Bryant, supra at 633-634 (1); High, supra.

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

       See Martin v. State, 254 Ga. App. 40-41 (1) (561 SE2d 154) (2002) (evidence was sufficient to support burglary convictions, where defendant had done work at the homes where burglaries occurred, had recently possessed and subsequently pawned the stolen goods, and made conflicting statements to police and abruptly changed his demeanor when presented with a blatant inconsistency); Pope v. State, 240 Ga. App. 803, 804 (1) (522 SE2d 291) (1999); Martin, 228 Ga. App. at 59-61 (1), (2) (a) (evidence that victim’s home was broken into and large sum of cash was taken shortly after defendant accompanied victim’s boyfriend to hide cash in victim’s bedroom, and that defendant told police that he had won the big wad of money discovered in his possession at time of arrest in lottery, even though lottery records did not indicate any payment had been made to defendant, was sufficient to support burglary conviction); Barrett v. State, 166 Ga. App. 722-723 (305 SE2d 450) (1983) (evidence was sufficient to support conviction for burglary during which numerous items were taken, where some of the items stolen during the recent burglary were found lying on floorboard of car in which defendant was sitting and other items stolen in same burglary were found outside the car where the co-defendant was standing, and where jury was authorized to reject defendant’s explanations concerning the stolen items); see also McClain, supra at 846-847 (l) (although there was no testimony from anyone who saw defendant take stolen items, evidence that he was in possession of or otherwise associated with the stolen items shortly after they were taken was sufficient to authorize his conviction for theft by taking; jury was not required to believe defendant’s testimony that items were taken by someone else).

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

        Conaway v. State, 277 Ga. 422, 424 (2) (589 SE2d 108) (2003).

        Suggs v. State, 272 Ga. 85, 87 (4) (526 SE2d 347) (2000).

       Id. at 88 (4).

        Battles v. State, 290 Ga. 226, 229 (2) (719 SE2d 423) (2011) (citation omitted).

       See generally Dickens v. State, 280 Ga. 320, 321-323 (2) (627 SE2d 587) (2006) (holding that where a defendant contends that trial counsel was ineffective in failing to call a witness to testify on his behalf, he must call the witness to testify at the motion for new trial hearing or present some legally acceptable substitute in order to show that, if the witness had testified, there is a reasonable probability the outcome of the trial would have been different); Veasley, supra at 732 (2) (a) (defendant failed to show prejudice, where he failed to call officer to testify at new trial hearing or make any other proffer of evidence to show that purported evidence would have actually been exculpatory).

        Newkirk v. State, 290 Ga. 581, 582 (2) (722 SE2d 760) (2012) (citations omitted).

        See Payne v. State, 289 Ga. 691, 697 (3) (b) (715 SE2d 104) (2011) (decisions about what questions to ask on cross-examination are quintessential trial strategy); Washington v. State, 276 Ga. 655, 659 (3) (a) (581 SE2d 518) (2003) (manner in which an attorney attacks the credibility of a witness falls within ambit of trial tactics).

       See Strickland, supra at 689 (III) (A) (a court must indulge a strong presumption that counsel’s conduct falls within wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy); Farris v. State, 290 Ga. 323, 326 (3) (720 SE2d 604) (2012) (same); Upton v. Parks, 284 Ga. 254, 257-258 (2) (664 SE2d 196) (2008) (trial counsel’s decision not to pursue tactic of calling certain alibi witnesses did not constitute deficient performance, but was a fully considered and well reasoned decision under the circumstance, where trial counsel testified that he had determined that the defense of misidentification and the lack of any physical evidence linking defendant to crime was strong enough on its own and that he had concerns about the credibility of the alibi witnesses); Battise v. State, 295 Ga. App. 833, 839-840 (2) (f) (673 SE2d 262) (2009) (rejecting claims that trial counsel should have impeached witness with specific evidence).

        Williams v. State, 265 Ga. 681, 682 (1) (461 SE2d 530) (1995).


text:
    A12A1201.
    TURNBULL v. THE STATE.
    (732 SE2d 786)
   Phipps, Presiding Judge.

After a bench trial, Neville Turnbull was convicted of making harassing phone calls to his former girlfriend, N. C. He argues on appeal that the evidence was insufficient and that he was deprived of effective assistance of counsel. We affirm.

1. 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.”

The state adduced the following evidence. In late November 2009, after almost a year of dating, Turnbull and N. C. broke up, and Turnbull moved out of the residence they were sharing. He took with him most of his belongings. Thereafter, Turnbull called N. C. numerous times and appeared, without invitation and without notice, at her residence. For example, there were times when she opened her garage door at about 6:00 or 7:00 a.m. to find Turnbull standing nearby; once, she woke up at about 1:30 a.m. and was startled because Turnbull was standing over her. On these occasions, typically, Turn-bull claimed that he needed the remainder of his belongings. And N. C. replied that she had not yet compiled them; that when she had done so, she would call him to arrange a time for him to get all of them at once; and that, meanwhile, he should stop contacting her, reiterating that she no longer wanted a relationship with him, his companionship, nor his telephone calls.

The weekend of December 19,2009, Turnbull called N. C. at least 15 to 20 times. She repeatedly told him to come pick up his belongings and to stop calling her. He did neither. She testified, “I was just at my wit’s end. I wanted to take him everything so there would be no excuse for him to further contact me.” At a predawn hour on December 20, when N. C. believed that Turnbull would be at work until 7:00 a.m., she took all of his remaining belongings and dropped them off, along with his dog, at his apartment. She left the items on the apartment porch, and she secured the dog in a patio closet.

Within a few hours, early on December 20, 2009, N. C. was awakened at her residence when the doorbell rang. She saw Turn-bull’s car parked outside, ignored the bell, and readied herself for work. But when she attempted to back out of her driveway Turnbull maneuvered his vehicle to block hers from passing down her driveway. He refused to move his car, despite her protests, so she drove across her neighbor’s yard and arrived at her workplace shortly before 9:00 a.m.

By 10:30 a.m., Turnbull had made more than four or five telephone calls to N. C.’s workplace — some she accepted, others she did not. When she did not, Turnbull left messages for her with her co-workers. When she accepted his calls, he was initially apologetic, but then became threatening. He related to her that he was upset because she had brought his belongings to him the night before. But he also told her that he had called the police and insisted, “I’m going to make sure you go to jail.” By this time, N. C. had already consulted with police about the possibility of obtaining a protective order against Turnbull. She told him so, in response to his threats, revealing further that she had been advised that his conduct constituted harassment. She ended those telephone calls that she accepted by telling him to stop calling her at her workplace, to stop calling her at her home, to stop calling her cell phone, and to stop calling her friends. A few days later, she petitioned for a protective order.

Turnbull, the only defense witness, gave his account of the relationship breakup, as well as the nature and purpose of his subsequent telephone calls to her and appearances at her residence. He had determined that N. C. was cheating and sending flirtatious text messages to other men. When he confronted her, she declared: “[0]kay, it’s over.” Turnbull described, “I was shocked.”

Turnbull revealed further on direct examination:

Q: [A]t what point did you discover your property was sitting on the porch where you now reside [ ]?
A: When I pulled up in my driveway.
Q: So prior to that — Because you had been at work, correct?
A: Yes, sir.
Q: So prior to pulling into your driveway, that was the first time you knew your belongings were there?
A: Yeah, I saw them laid out — I’m on the bottom apartment, and I saw them just laid out, stacked up there as soon as I was pulling in.

According to Turnbull, it was not he who rang N. C.’s doorbell early on December 20; it was the police. Because N. C. had refuted his prior attempts to collect the remainder of his belongings, he had summoned the police to meet him there that morning. When the responding officers received no answer, they left the scene about 20 minutes later; Turnbull stayed. As soon as the police drove away, the garage door opened and N. C. cruised past him — laughing, he recalled.

Turnbull drove to his apartment and called N. C.’s workplace. He was asked on direct examination, “And when you were calling her at her j ob, after you found that your stuff was on the porch, what was the purpose of calling her?” He answered, “It was to where my dog was because ... [h]e wasn’t on the porch____[S]omeone could’ve taken.the dog away while I was, you know, at work because I didn’t even know my stuff was there.” On cross-examination, the issue was revisited with Turnbull:

Q: But your property . . . was returned on December 19; is that right?
A: It was returned. There was some stuff missing actually, which I made a report to Cobb County police station.
Q: Okay. But it was returned?
A: It was on the porch.
Q: And after that, December 20th, you kept making calls to her; isn’t that right?
A: That’s a negative.

Indeed, Turnbull denied making any calls — either that day or during that weekend — for the purpose of harassing N. C. Further, Turnbull maintained that he had neither told her he would put her in jail nor otherwise threatened her.

Turnbull’s trial lawyer asked for a directed verdict, which motions were denied. Turnbull’s trial lawyer took the position during closing argument that the evidence showed that Turnbull was calling his former girlfriend for the legitimate purpose of regaining possession of his belongings and that the state had failed to prove that he had the intent to harass her. After the state delivered its closing argument, the trial judge remarked that she had found parts of Turnbull’s testimony inconsistent with other parts and that he was not credible. Judgment was entered upon the guilty finding.

On appeal, Turnbull disputes the sufficiency of the evidence, arguing specifically: “There was adequate evidence to support his contention that his calls to [N. C.] were for the purpose of retrieving his property, not to harass [her].” This argument is “nothing more than [Turnbull’s] disagreement with the credibility determinations made by the trial judge. However, decisions regarding credibility are uniquely the province of the trier of fact.”

In a bench trial, the trial judge sits as the trier of fact. In that role, the trial judge is not required to believe a defendant’s testimony, nor to disbelieve the state’s witnesses. The trial judge “may accept or reject any part of a witness’s testimony.”

Upon a finding of guilt following a bench trial, the presumption of innocence no longer applies, and the appellate court construes the evidence in favor of the judge’s determination of the defendant’s guilt. The appellate court does not weigh the evidence or determine witness credibility, but merely determines the sufficiency of the evidence.

Although Turnbull maintains that his calls to N. C. were not intended to harass her,

intent is a question of fact to be determined upon consideration of words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted. Furthermore, where the defendant offers an explanation of circumstantial facts or an alternative hypothesis of events, the reasonableness of that explanation is for the factfinder. Because the factfinder has heard the witnesses and observed them testify, it is considered more capable of determining the reasonableness of the hypothesis produced by the evidence or lack thereof than is an appellate court.

Having construed the evidence in the light most favorable to the trial judge’s determination of Turnbull’s guilt, we conclude that there was sufficient evidence for the trial judge to have found beyond a reasonable doubt that Turnbull placed telephone calls to N. C. for the purpose of harassing her.

2. Turnbull contends that the trial court erred in rejecting his claim of ineffective assistance of counsel.

To prevail on an ineffectiveness claim, a defendant must establish, pursuant to Strickland v. Washington, that counsel’s performance was deficient and that the deficient performance was prejudicial to his defense. Both the performance and prejudice prongs of the ineffectiveness inquiry are mixed questions of law and fact. 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 the trial court’s legal conclusions de novo. “If an appellant fails to meet his or her burden of proving either prong of the Strickland test, it is not incumbent upon the reviewing court to examine the other prong.”

(a) Turnbull asserts that his trial lawyer failed to adequately prepare him for testifying. He claims that his lawyer did not meet with him a sufficient number of times and he points out that the trial transcript does not show that he was advised about his right not to testify.

At the hearing on Turnbull’s motion for new trial, Turnbull’s lawyer testified about the number of times he met with Turnbull prior to trial. The lawyer recalled that he advised Turnbull regarding his right to testify and his right not to testify. Additionally, the lawyer recollected, he had particularly discussed with Turnbull the strategy of using his testimony to support his defense — that he had made telephone calls to N. C. for the sole, legitimate purpose of regaining possession of his belongings. Further, the lawyer testified, before calling Turnbull to the stand, he had again confirmed with Turnbull that he wanted to testify.

“[T]he fact that [Turnbull’s] trial attorney met with him for an amount of time claimed to be inadequate is not dispositive, as there exists no magic amount of time which counsel must spend in actual conference with his client.” Similarly, “[Turnbull’s] intimation that the trial court was required, on the record, to advise [him] directly of [his] right to testify [or not] is without merit.” What is more, Turnbull proffered nothing regarding how additional preparation would have changed his testimony. In the absence of a proffer showing how further preparation would have changed his testimony, Turnbull cannot establish error as alleged on the part of trial counsel. Given the foregoing, the trial court was authorized to conclude that Turnbull failed to carry his burden of proving that his trial counsel performed deficiently with respect to advising him about and preparing him for testifying.

(b) Turnbull contends that his trial lawyer was not adequately prepared to try the case. He complains that the lawyer did not employ an investigator. Turnbull complains also that, although he had provided his lawyer with a list of witnesses and documents, his lawyer did not present them at trial.

As examples, Turnbull cited at the hearing on motion for new trial: his mother; Cobb County and Clayton County police officers and their police reports; logs of telephone calls between N. C. and himself; and the transcripts of text messages, 911 calls, and the hearing on N. C.’s petition for a protective order against him.

Turnbull has failed to show that any of these individuals or documents would have aided his defense. None of the individuals testified at his new trial hearing, and Turnbull presented no legally acceptable substitute for their testimony. Other than the transcript of the hearing on N. C.’s petition for a protective order and a single Cobb County police report, Turnbull did not introduce in evidence any document. The protective order hearing transcript shows that N. C. filed the petition against Turnbull on December 22, 2009, that she gave extensive testimony as to why she was seeking a protective order, and that the court stated at the end of the hearing that it would grant the petition.

Turnbull’s trial counsel explained at the new trial hearing that he had concluded that the hearing transcript was prejudicial to Turnbull’s defense. And Turnbull has made no effort to show that the transcript nonetheless should have been adduced into evidence. Nor has Turnbull made any effort to show that the Cobb County police report would have benefited his defense.

Essentially, Turnbull has made only bare allegations that his trial lawyer performed deficiently by not presenting additional evidence helpful to his defense. But Turnbull has not identified any person whom counsel unreasonably failed to call as a witness, nor has Turnbull identified any document that counsel unreasonably failed to introduce at trial. “There is a strong presumption that counsel’s conduct falls within the broad range of reasonable professional conduct, and generalized claims to the contrary not supported by affirmative evidence are insufficient to show deficient performance.”

Given the foregoing, the trial court was authorized to conclude that Turnbull failed to carry his burden of proving that his trial counsel performed deficiently with respect to presenting at trial the testimony of additional witnesses or documentary evidence.

(c) Turnbull claims that his lawyer failed to adequately explain to him the waiver of a jury trial, asserting further that the record fails to provide adequate proof that he made a knowing and intelligent waiver.

The trial transcript shows that, prior to opening statements, the trial court asked Turnbull whether he knew that having a bench trial meant that no jury would hear his case, whether he had discussed a bench trial with his lawyer, whether anyone had threatened him or promised him anything regarding waiver of his right to a jury trial, whether he was under the influence of any drug, and whether the decision to proceed with a bench trial was one he had voluntarily made. Turnbull affirmed on the record that he understood that no jury would hear his case, that he had discussed a bench trial with his lawyer, that no one had threatened him or promised him anything in connection with foregoing his right to a jury trial, that he was not under the influence of any drug, and that he was voluntarily choosing to proceed with a bench trial. And at the motion for new trial hearing, Turnbull’s trial attorney testified that he had discussed with Turn-bull whether to proceed with a bench trial versus a jury trial and that he had informed Turnbull that the final decision was his (Turnbull’s) to make. In light of the foregoing, the trial court was authorized to conclude that Turnbull failed to carry his burden of proving that his trial counsel performed deficiently with respect to Turnbull’s election to proceed with a bench trial, rather than a jury trial.

(d) Finally, Turnbull complains that, during the sentencing phase of his trial, his lawyer did not object to the admission of what the prosecutor offered as “the defendant’s GCIC.” Turnbull does not contend that the report was inaccurate, but points out that it was not certified. Further, the sentencing hearing transcript reveals that the state presented no testimony concerning the origin of the report.

But even assuming that trial counsel erred by not objecting, Turnbull was required also to meet the prejudice prong of the Strickland test. At the motion for new trial hearing, the judge noted that the report at issue showed a prior conviction of family violence, but the judge remarked further that the conviction was from the same court, that she had presided over the 2009 case, and that the law allowed for judicial notice thereof. The judge noted also that the report showed other pending or dismissed charges, but remarked that, in making her decisions, she was capable of not using evidence that should not have been introduced. The judge then pointedly asked Turnbull’s post-conviction lawyer to explain how the prejudice prong of Strickland was met. The lawyer answered, “I would submit that it’s still error for the defense to not object to a hearsay document coming in.” The trial court was authorized to determine that the prejudice prong had not been satisfied. Indeed, Turnbull has made no argument to this court that he demonstrated the requisite prejudice under Strickland.

Decided September 28, 2012.

Herbert Adams, Jr., for appellant.

Taska M. Mosley, Solicitor-General, for appellee.

Moreover, the record shows that the punishment imposed upon Turnbull was statutorily authorized, and “unless affirmative evidence shows otherwise, the trial court is presumed to have exercised its discretion in imposing sentence. This is not a case in which the trial court stated that it believed its discretion was constrained.” “Therefore, in the absence of affirmative evidence showing that the trial court believed it had no discretion, we discern no prejudice caused by trial counsel’s conduct.”

Judgment affirmed.

Ellington, C. J., and Dillard, J., concur.

       See OCGA § 16-11-39.1 (a) (offense of harassing phone calls is committed if a person, inter alia, “telephones another person repeatedly, whether or not conversation ensues, for the purpose of annoying, harassing, or molesting another person”).

        Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979) (citation omitted; emphasis in original).

       The motions argued that venue had not been proved. On motion for new trial, however, Turnbull’s post-conviction lawyer raised, but then affirmatively abandoned, this argument. Also, see Woodham v. State, 253 Ga. App. 112, 113 (1) (558 SE2d 454) (2001) (“[T]he trial court could not have directed a verdict of acquittal because there is no verdict in a bench trial. Therefore, even if a motion for a directed verdict was made, such a motion has no meaning when a case is tried without a jury. The issue is whether the evidence was sufficient at trial to support a conviction under the standards of Jackson v. Virginia, [supra].”) (citations and punctuation omitted).

        McDowell v. State, 284 Ga. 666, 669 (670 SE2d 438) (2008) (footnote omitted).

        Corsini v. State, 238 Ga. App. 383 (1) (519 SE2d 39) (1999).

        Davidson v. State, 295 Ga. App. 702, 705 (673 SE2d 91) (2009).

        Corsini, supra.

        Davidson, supra at 702-703 (footnote omitted).

       Id. at 705-706 (punctuation and footnotes omitted).

       See OCGA § 16-11-39.1; see generally Davidson, supra at 706 (history of defendant’s ongoing actions, threats, and refusal to leave his former girlfriend alone authorized a rational trier of fact to find beyond a reasonable doubt that the contact at issue was for the purpose of harassing and intimidating her).

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

        Conaway v. State, 277 Ga. 422, 424 (2) (589 SE2d 108) (2003).

        Suggs v. State, 272 Ga. 85, 87 (4) (526 SE2d 347) (2000).

       Id. at 88 (4).

        Battles v. State, 290 Ga. 226, 229 (2) (719 SE2d 423) (2011) (citation omitted).

        Morgano. State, 275 Ga. 222, 228 (10) (564 SE2d l92) (2002) (citation omitted); see Bunn v. State, 307 Ga. App. 381, 385 (3) (a) (705 SE2d 180) (2010) (there is no magic amount of time which a counsel must spend in preparing for trial in order to provide a client with adequate counsel; each case must be judged upon its own circumstances and in light of its own degree of complexity).

        Clements v. State, 299 Ga. App. 561, 564 (2) (683 SE2d 127) (2009) (citation and footnote omitted); see Gibson v. State, 290 Ga. 6, 9 (4) (717 SE2d 447) (2011) (courts have no duty to advise a defendant of the right to testify or to determine on the record whether the defendant’s decision is voluntary, knowing, and intentional; courts are under no obligation to place a defendant’s decision whether to testify on the record).

       See Strong v. State, 275 Ga. 465, 466-467 (2) (b) (569 SE2d 523) (2002) (rejecting claim that counsel failed to adequately prepare defendant for testifying in his own defense, where defendant failed to offer any specific reason why his preparation was inadequate or how it might have been improved and where defendant failed to point out anything in his trial testimony which was harmful to his case); Donald v. State, 312 Ga. App. 222, 229-230 (4) (f) (718 SE2d 81) (2011).

       See Morgan, supra; Strong, supra; Donald, supra; Howard v. State, 310 Ga. App. 659, 665-666 (3) (b) (714 SE2d 255) (2011); Bunn, supra; Clements, supra.

        See Dickens v. State, 280 Ga. 320, 321-323 (2) (627 SE2d 587) (2006) (holding that where a defendant contends that trial counsel was ineffective in failing to call a witness to testify on his behalf, he must call the witness to testify at the motion for new trial hearing or present some legally acceptable substitute in order to show that, if the witness had testified, there is a reasonable probability the outcome of the trial would have been different).

       See generally Bunn, supra at 385 (3) (c) (failure of trial counsel to employ evidence cannot be deemed to be “prejudicial” in the absence of a showing that such evidence would have been relevant and favorable to the defendant); Smith v. State, 294 Ga. App. 692,703 (10) (a) (iii) (670 SE2d 191) (2008) (because purported documents were not part of the record, it was impossible to determine whether they actually would have helped defense, and thus appellant failed to establish that his trial lawyer performed deficiently).

        Shank v. State, 290 Ga. 844, 848 (5) (a) (725 SE2d 246) (2012) (citation omitted); see Dickens, supra at 321 (2) (the decision as to which defense witnesses to call is a matter of trial strategy and tactics).

       See Morgan, supra at 227 (10) (rejecting claim that trial counsel erred by not calling certain witnesses and introducing various documents, where defendant did not show that the witnesses or the documents existed, were available, and would have been favorable to his defense); see also Shank, supra; Dickens, supra.

       See Watson v. State, 274 Ga. 689, 690-691 (2) (558 SE2d 704) (2002) (where trial court asked on the record whether defendant wished to waive his right to a jury trial and proceed with a bench trial, trial court received defendant’s oral assurance that he wished to waive trial by jury and proceed with a bench trial, and defendant’s attorney informed trial court that he had discussed with defendant whether to proceed with a bench trial versus a jury trial, the record authorized a finding that defendant personally, knowingly, voluntarily, and intelligently waived his right to a jury trial); see also Brown v. State, 277 Ga. 573, 574 (2) (592 SE2d 666) (2004) (defendant’s consent to waive jury trial “need not be in a particular, ritualistic form”; trial court need only conduct an inquiry of the accused on the record so as to ensure that the waiver is knowing, voluntary and intelligent).

       See OCGA § 24-3-17 (b) (“Any court may receive and use as evidence in any case information otherwise admissible from the records of the Department of Public Safety or the Department of Driver Services obtained from any terminal lawfully connected to the Georgia Crime Information Center without the need for additional certification of those records.”); Thomas v. State, 196 Ga. App. 88, 91 (4) (395 SE2d 615) (1990) (OCGA § 24-3-17 provides for self-authentication where the document sought to be admitted was obtained from a computer terminal lawfully connected to the Georgia Crime Information Center); see further Rogers v. State, 282 Ga. 659, 666 (7) (d) (653 SE2d 31) (2007) (acknowledging OCGA § 24-3-17 as a statutorily-recognized hearsay exception).

       See Schaff v. State, 275 Ga. App. 642, 645 (3) (621 SE2d 595) (2005) (rejecting argument that defendant’s right to due process of law was violated when the trial court took into consideration his prior conviction even though the state did not present a certified copy of that conviction, where prior conviction occurred in the same court in which the defendant was being tried and sentenced and trial court could thus take judicial notice thereof).

       See Horne v. State, 286 Ga. App. 712, 715 (3) (649 SE2d 889) (2007) (even if GCIC report admitted at sentencing hearing constituted improper evidence, “there is a presumption, in the absence of a strong showing to the contrary, that the trial judge sifts the wheat from the chaff, ignoring illegal evidence and considering only legal evidence”) (citation, footnote and emphasis omitted).

       See Perkins v. Hall, 288 Ga. 810, 811 (II) (708 SE2d 335) (2011) (where defendant claimed he received ineffective assistance during sentencing phase, defendant must show that trial counsel rendered constitutionally deficient performance and that actual prejudice of constitutional proportions resulted; to satisfy prejudice prong, defendant must show that there is a reasonable probability (i.e., a probability sufficient to undermine confidence in the outcome) that, but for counsel’s unprofessional errors, the result of the proceeding would have been different); see also Horne, supra; Schaff, supra.

       OCGA §§ 16-11-39.1 (b), 17-10-3 (a) (1); Williams v. State, 296 Ga. App. 707, 708-709 (2) (675 SE2d 596) (2009).

        Reese v. State, 313 Ga. App. 746, 750 (3) (722 SE2d 441) (2012) (punctuation and footnotes omitted).

       Id. (footnote omitted); see Taylor v. State, 282 Ga. App. 469, 472 (3) (c) (638 SE2d 869) (2006) (holding that the defendant failed to establish prejudice because the record did not show that trial court’s sentencing rationale was improper).