author: RAY, Judge.

text:
    A14A2206.
    ROBINSON v. THE STATE.
    (771 SE2d 751)
   RAY, Judge.

A Fulton County jury convicted Jonathan Robinson of two counts of rape, two counts of kidnapping and one count of armed robbery. He was acquitted of one count of rape, one count of aggravated sodomy and one count of impersonating a police officer. He appeals from the denial of his motion for new trial, contending that the trial court erred in denying his motion for recusal, in permitting evidence of his prior arrests and convictions into evidence for the purposes of impeachment, in failing to excuse a prospective juror for cause, and in issuing improper jury charges. He also contends that he received ineffective assistance from his trial counsel. For the following reasons, we vacate Robinson’s conviction and remand the case to the trial court for further proceedings consistent with this opinion.

The evidence, construed in favor of the jury’s verdict, showed that on May 13, 2000, K. C. was standing at a telephone booth near a gas station when Robinson approached her and offered her a ride. K. C. got into his vehicle, and he drove to a secluded street. Robinson “propositioned [her] with money,” and she declined. He then got a police clipboard out of the back of his car and used a radio ostensibly to call for backup. Robinson then became aggressive, came around to K. C.’s side of the car, and raped her. K. C. had just had a baby and was still recovering from the birth. Robinson then drove K. C. home, where she told her mother that she had been sexually assaulted and that she needed to call 911. K. C. testified that she had never before met Robinson.

That same day, a sexual assault exam was conducted on K. C. A rape kit was collected as evidence after the exam. K. C. was crying and upset while at the hospital. The Georgia Bureau of Investigation (“GBI”) developed a male DNA profile from the rape kit and uploaded it into the CODIS database. On December 12, 2002, a CODIS match indicated Robinson as being connected with K. C.’s case.

On May 30, 1999, Robinson approached R. A. and offered her a ride in his truck. At first R. A. was going to get in the truck, but ultimately decided not to because something did not feel right to her. However, Robinson swung open the truck door and dragged R. A. into the truck by her hair. R. A. begged Robinson not to hurt her and gave him all the money she had. Robinson parked the truck, informing her that he had a weapon under the seat of his truck and that he would kill her if she did not comply with his demands. He then raped her. Robinson then told R. A. to put her money, cell phone and jewelry in her purse, and he took it and threw it in the back of the truck. Robinson also took R. A.’s panties. He told her to get out of the truck or that he would run over her, so she got out of the truck.

That same day, R. A. went to the hospital to have a sexual assault exam. R. A. was described as crying uncontrollably while at the hospital. The GBI developed a male DNA profile from the rape kit collected and uploaded it into the CODIS database. In February 2002, a CODIS match indicated Robinson as being connected with R. A.’s case. R. A. testified that she had never met Robinson before.

Robinson testified in his own defense at trial, alleging that the victims consented to having sex with him.

1. Robinson contends that the trial judge erred in denying his untimely motion to recuse and in failing to recuse herself sua sponte. He also claims that his trial counsel rendered ineffective assistance for failing to properly pursue this claim. We disagree.

(a) At the time of Robinson’s indictment, the trial judge was a chief senior assistant district attorney in the Fulton County District Attorney’s Office in the Crimes Against Women and Children (“CWAC”) Unit. The trial judge stated that she never touched any of the case files related to Robinson during her time with the District Attorney’s Office.

“[W]hen a motion to recuse is filed, the trial judge shall immediately determine: (1) the timeliness of the motion; (2) the legal sufficiency of the affidavit; and (3) the legal sufficiency of the grounds, and has no power to do anything else in the case.” (Citations omitted.) Baptiste v. State, 229 Ga. App. 691, 698 (2) (494 SE2d 530) (1997). See Uniform Superior Court Rule 25.1 (“All motions to recuse ... shall be timely filed in writing and all evidence thereon shall be presented by accompanying affidavit(s) which shall fully assert the facts upon which the motion is founded. . . .”).

Here, Robinson’s motion to recuse was both untimely and failed to attach the required affidavit in support of the grounds he asserted in support of his motion. Robinson’s trial counsel, who had been an assistant district attorney in the Fulton County District Attorney’s Office at the same time as the trial judge, did not file a motion to recuse until more than three months after filing a notice of appearance in the case. See Uniform Superior Court Rule 25.1 (“Filing and presentation to the judge shall be not later than five (5) days after the affiant first learned of the alleged grounds for disqualification....”). Further, the motion alleged only the conclusory statement that the trial judge had a “conflict of interest... with [another judge] and the Fulton County District Attorney’s Office Crimes Against Women and Children Unit.” The motion was not accompanied by a supporting affidavit “clearly stat[ing] the facts and reasons for the belief that bias or prejudice exists, being definite and specific as to time, place, persons and circumstances of extra-judicial conduct or statements . . .” as required by Uniform Superior Court Rules 25.1 and 25.2. Accordingly, the trial court did not abuse its discretion in denying his motion to recuse. See Daker v. State, 243 Ga. App. 848, 855 (21) (533 SE2d 393) (2000) (Atrial judge is authorized to deny a motion for recusal on its face when the motion is untimely and not supported by a sufficient affidavit).

Further, Robinson’s motion itself failed to specifically allege facts that, if assumed true, would demonstrate that the trial judge, while still a prosecutor, ever had any personal or supervisory involvement in the present criminal matter. Rather, it simply asserted that the trial judge might have a “conflict of interest” because of her prior employment with the District Attorney’s Office. See Gude v. State, 289 Ga. 46, 49 (2) (a) (709 SE2d 206) (2011) (finding that a trial judge presiding over a criminal matter who previously worked in the district attorney’s office while the office was involved in some aspect of the same criminal matter need not recuse herself unless the trial judge, while still a prosecutor, was personally involved in some aspect of the criminal matter or served in a supervisory role over another lawyer while that lawyer was personally involved in the case). Compare Birt v. State, 256 Ga. 483, 484-485 (3), (4) (350 SE2d 241) (1986) (defendant, who had made timely and verified motion to recuse setting forth sufficient factual allegations, was entitled to evidentiary hearing on motion, where verified motion set forth some factual allegations, which, if proved, could support finding of partiality sufficient to require recusal). We find no abuse of discretion in the trial court’s denial of his motion to recuse.

(b) We further find that Robinson’s ineffective assistance claim arising from his trial counsel’s failure to file the affidavit is without merit. In order to prove that he received ineffective assistance of counsel, Robinson must show both “that his trial counsel’s performance was deficient and that the deficiency was so prejudicial that a reasonable likelihood exists that the outcome of the trial would have been different but for counsel’s error.” (Footnote omitted.) Paul v. State, 296 Ga. App. 6, 10 (3) (673 SE2d 551) (2009). Robinson has not shown how a timely filed affidavit would have affected the ruling on his motion to recuse, and we find that he has not supported his burden of proving that he was prejudiced by his trial counsel’s error. See Gude, supra.

2. Robinson argues that the trial court erred in permitting the State to impeach him with evidence of prior arrests. We find no error.

Robinson filed a motion in limine seeking the exclusion of any evidence regarding his arrests that did not result in convictions. This motion was granted. However, Robinson’s strategy at trial was to establish that the prosecution against him had been pushed by a particular investigator in the Atlanta Police Department in retaliation for Robinson’s successful internal complaint against her. His arrest for the charges against R. A. and K. C. occurred the day after he received notice that the investigator was sanctioned for her improper processing of his vehicle and mobile phone after his earlier arrest for his alleged acts against the third victim in this case. Robinson also indicated that he had made as many as seven or eight complaints against the Atlanta Police Department in the past. The trial court found that the testimony elicited by defense counsel that Robinson had made many complaints against the police in the past “opened the door” to the State’s admission of his prior arrests for stealing cars from the Atlanta Police Department, reasoning that his testimony gave “the impression that all of those complaints were related [to the instant case] when that’s not necessarily the case.” Accordingly, the trial court allowed the State to ask if Robinson had been arrested and charged with stealing cars from the Atlanta Police Department, to which Robinson said, “Yes.”

“The trial court has broad discretion in determining the scope and extent of cross-examination; absent a clear abuse of discretion, the action of the trial court will not be disturbed.” (Citations and punctuation omitted.) Williams v. State, 303 Ga. App. 222, 229 (4) (692 SE2d 820) (2010). “Evidence that is relevant and material to an issue in the case is not made inadmissible because it incidentally places the defendant’s character in issue.” (Citation and punctuation omitted.) Mayberry v. State, 301 Ga. App. 503, 506 (2) (687 SE2d 893) (2009).

Here, however, the State does not argue and the trial court did not hold that Robinson placed his character into issue, but rather that the evidence is admissible to fully explain that not all of Robinson’s “seven or eight” prior complaints against the Atlanta Police Department stemmed from his arrest for the crimes in the instant case. The trial court noted that Robinson’s prior complaints against the Police Department were first raised by the defense. We agree that Robinson opened the door to this issue by the defense’s questioning of Robinson with regard to his history of filing complaints against the department when his defense involved a theory that a particular officer encouraged his indictment as a retaliatory mechanism. Robinson cannot seek to exclude further details concerning the same area of inquiry that he introduced. “[0]ne cannot complain of a result he procured or aided in causing, and induced error is not an appropriate basis for claiming prejudice.” (Citations and punctuation omitted.) Mayberry, supra at 507 (2) (trial court did not abuse its discretion in finding that defendant opened the door to the admission of evidence that he had previously killed a man, but not been convicted for the act, when defense counsel asked a witness whether the witness had a conversation about defendant shooting someone who broke into his house).

Because the evidence of Robinson’s prior arrests for stealing cars belonging to the Atlanta Police Department was relevant and material to his prior complaints filed with the Department and to his theory of defense, we cannot say that the trial court abused its discretion in overruling the objection.

To the extent that Robinson contends that the State did not lay a proper foundation for the evidence by providing a certified copy of his arrest records, he has waived his right to raise that issue on appeal because it was not asserted in the trial court. See Green v. State, 298 Ga. App. 17, 26 (7), n. 6 (679 SE2d 348) (2009).

3. Robinson asserts that the trial court erroneously permitted the State to impeach him with evidence of his prior convictions under former OCGA § 24-9-84.1 without conducting the proper balancing tests. We agree.

(a) Robinson challenges the admission of his 2001 conviction for theft by receiving motor vehicle, arguing that the trial court failed to conduct the required balancing test prior to admitting the evidence.

“[Ejvidence of a defendant’s felony conviction that was less than ten years old was admissible if the probative value of the evidence substantially outweighed its prejudicial effect to the defendant.” (Footnote omitted; emphasis in original.) Waye v. State, 326 Ga. App. 202, 205 (3) (756 SE2d 287) (2014). See former OCGA § 24-9-84.1 (a) (2). In Clay v. State, 290 Ga. 822 (725 SE2d 260) (2012), the Supreme Court of Georgia identified five factors that a trial court should consider when conducting the balancing analysis:

(1) the nature, i.e., impeachment value of the crime; (2) the time of the conviction and the defendant’s subsequent history; (3) the similarity between the past crime and the charged crime, so that admitting the prior conviction does not create an unacceptable risk that the jury will consider it as evidence that the defendant committed the crime for which he is on trial; (4) the importance of the defendant’s testimony; and (5) the centrality of the credibility issue.

(Citations omitted.) Id. at 835 (3) (B). Further,

[t] he trial court’s finding that the probative value of the prior conviction outweighed its prejudicial effect must be made on the record, but there is no requirement in the language of (former) OCGA § 24-9-84.1 (a) (2) that the trial court must list the specific factors it considered in ruling on the probity of convictions that are not more than ten years old.

(Footnote and emphasis omitted.) Johnson v. State, 328 Ga. App. 702, 707 (3) (760 SE2d 682) (2014).

Here, the trial court initially ruled the conviction inadmissible at the pre-trial motion in limine hearing, but then it later ruled that the State could introduce it at trial. After the evidence was introduced, the trial court found that “based on a question asked by the defense concerning any previous complaints ... that might have been filed by the defendant against the Atlanta Police Department, that the door was opened” for an explanation, and thus, that the probative value of the conviction subsequently outweighed any prejudicial effects it might have upon the defendant. However, it appears from the trial court’s ruling that it believed that Robinson’s 2001 conviction for theft by receiving motor vehicle was related to the Atlanta Police Department. An examination of the record reveals that Robinson pled guilty to that offense in the DeKalb County Superior Court and there is no indication from the exhibits or testimony at trial that the conviction was related to the Atlanta Police Department. As the lower court appears to be mistaken in its assumption that the 2001 conviction was related to Robinson’s history with the Atlanta Police Department, it erred in its finding regarding its probative value. Accordingly, we vacate the judgment and remand the case for the trial court to make an on-the-record finding of whether the probative value of admitting the 2001 conviction substantially outweighed its prejudicial effect. See Waye, supra at 206 (3).

(b) Robinson next challenges the admission for impeachment purposes of his 1985 conviction for impersonating a police officer.

Robinson filed a motion in limine to exclude his 1985 conviction for impersonating a police officer. The trial court ruled that the 1985 conviction would be admissible for the purpose of impeachment if Robinson decided to testify. The State was then allowed to question Robinson about the conviction. After testimony was elicited from Robinson regarding these convictions, the trial court emphasized that the probative value of these convictions outweighed any prejudicial effects because it was a “crime of moral turpitude.”

We have held that former OCGA § 24-9-84.1 (b) “established a presumption against the admission of evidence of a conviction if more than ten years had elapsed since the date of the conviction or the release of the defendant. . . from the confinement imposed for that conviction, whichever was later.” Peak v. State, 330 Ga. App. 528 (768 SE2d 275) (2015). Former OCGA § 24-9-84.1 (b) provided:

... Evidence of a conviction under subsection (a) of this Code section is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of.. . the defendant from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interest of justice, that the probative value of the conviction supported by the specific facts and circumstances substantially outweighs its prejudicial effect. . . .

Our Supreme Court has held that a consideration of the factors identified above is mandatory when a trial court evaluates whether to admit a conviction for impeachment purposes that is more than ten years old. Clay, supra at 838 (3) (B) (“[A] trial court must make an on-the-record finding of the specific facts and circumstances upon which it relies in determining that the probative value of a prior conviction that is more than ten years old substantially outweighs its prejudicial effect before admitting evidence ... for impeachment purposes under OCGA § 24-9-84.1 (b).”).

A thorough review of the record shows that the trial court failed to make express findings in determining whether the 1985 conviction for impersonating a police officer was admissible. The trial court failed to do so again in its order denying Robinson’s motion for new trial. Accordingly, we must vacate Robinson’s convictions and remand the case to the trial court to reconsider defendant’s motion for a new trial after making on-the-record findings regarding the facts and circumstances on which it relied in determining the probative value and prejudicial effect of the defendant’s 1985 conviction for impersonating a police officer. See Peak, supra (vacating conviction and remanding case to the trial court to reconsider defendant’s motion for new trial after making on-the-record findings, based upon the factors set forth in Clay and other factors it may deem relevant, of the facts and circumstances on which it relied in determining the probative value and prejudicial effect of the admission of defendant’s convictions older than ten years old).

4. Robinson argues that the trial court abused its discretion in denying his motion to excuse Prospective Juror Number 30 for cause. We disagree.

“The decision [whether] to strike a potential juror for cause lies within the sound discretion of the trial court and will not be set aside absent some manifest abuse of that discretion.” (Citation omitted.) Abdullah v. State, 284 Ga. 399, 400 (2) (667 SE2d 584) (2008).

Unless the juror holds an opinion regarding the guilt or innocence of the defendant that is so fixed and definite that the juror will be unable to set the opinion aside and decide the case based on the evidence and court instructions, a court need not excuse the juror for cause. A potential juror’s doubts as to his or her own impartiality or reservations about his or her ability to set aside personal experiences do not necessarily require the court to strike the juror, as the judge is uniquely positioned to observe the juror’s demeanor and thereby to evaluate his or her capacity to render an impartial verdict.

(Citation and punctuation omitted.) Beaudoin v. State, 311 Ga. App. 91, 92-93 (2) (714 SE2d 624) (2011).

During general voir dire, Juror No. 30 raised her hand to answer, in the affirmative, the Court’s question that she had already formed any “opinion in regard to the guilt or innocence of the defendant [.]” She also raised her hand to answer defense counsel’s questions, in the affirmative, that she held a belief that “if a person is charged with three separate cases, he must be guilty of something[,]” and that she “could not keep an open mind in a rape case[.]”

During individual voir dire, Juror No. 30 stated that she had raised her number card in response to these questions because she “naturally form [ed] an opinion upon” hearing the indictment. Despite this, however, she agreed that, if selected as a juror, she would be able to follow the law, as instructed by the trial judge, and base her decision solely upon evidence presented in the courtroom. She further agreed that she could operate under the assumption that a defendant is innocent until proven guilty beyond a reasonable doubt. Defense counsel then asked her to clarify her earlier response that she had formed an opinion about the case and to explain what that opinion was. Juror No. 30 responded that she formed an opinion, after hearing the indictment, that Robinson had “dressed up as a police officer and attacked and raped three women who were prostitutes, probably[.]” Juror No. 30 then again agreed that her opinion was not so firmly held that she could not listen to the evidence presented in the case.

Robinson moved to strike Juror No. 30 for cause, and the trial court denied the motion. When denying the motion, the trial court explained that it interpreted Juror No. 30’s statement as merely an attempt to clarify her earlier response in an effort to answer the defense counsel’s question. It further noted that it was persuaded by the juror’s statement that she believed she could listen to the evidence. This Court has held that in order to strike a juror for bias, there must be evidence that the juror is so inured in his or her position that such juror will be unable to set his or her bias aside. See Moorer v. State, 286 Ga. App. 395, 398 (2) (649 SE2d 537) (2007). In light of the juror’s consistent statements that she believed she could listen to the evidence and base her decision upon that evidence and the law as provided by the trial court, we find that the trial court did not abuse its discretion in denying Robinson’s motion to strike.

Robinson’s citation to Maxwell v. State, 282 Ga. 22, 25-26 (2) (a) (644 SE2d 822) (2007) does not warrant a different result. In Maxwell, our Supreme Court found that a trial court’s refusal to strike a prospective juror for cause was in error when the prospective juror stated that he was influenced by media coverage and stated that he had “pretty much formed an opinion already,” that it would be the defense’s job to “prove that [defendant] was not involved,” and the prospective juror was not questioned as to whether he could set aside his personal bias and fairly and impartially decide the case based upon evidence presented at trial. Unlike the juror in Maxwell, Juror No. 30 in the present case stated that she understood that the defendant was innocent until proven guilty beyond a reasonable doubt, and she stated that she could decide the case upon the evidence presented at trial.

We find no abuse of discretion.

5. Robinson next asserts that the trial court erred in charging the jury that a witness can be impeached both by proof of general bad character and proof of a conviction of a crime of moral turpitude. He further asserts that his trial counsel rendered ineffective assistance for failing to object to the erroneous jury charge.

(a) The trial court charged the jury that “[t]o impeach a witness is to prove that a witness is unworthy of belief. A witness may be impeached by disproving the facts to which the witness testified; proof of general bad character; [and] proof that the witness has been convicted of a crime of moral turpitude.” The trial court then defined “moral turpitude.” At the conclusion of the jury instructions, the State brought the trial court’s attention to the fact that the law, and the applicable jury instruction on impeachment by prior conviction, had changed to replace the phrase “moral turpitude” with the phrase “dishonesty or making a false statement.” The trial court then called the jury back into the courtroom and supplemented its charge by instructing them that a witness may be impeached by proof of the conviction of a crime involving dishonesty or false statements. The trial court did not withdraw its previous impeachment charge, but rather stated that the additional charge was to be considered “[i]n addition to the [charge] I’ve already read to you.” Defense counsel did not object to either the charge or to the amended charge on impeachment.

On appellate review, this Court considers the charge as a whole to determine if it clearly and correctly instructed the jury. Conn v. State, 300 Ga. App. 193, 197 (3) (685 SE2d 745) (2009). However, because Robinson’s trial attorney made no objection to the trial court’s charge on impeachment or its corrected charge, Robinson has “failed to preserve this objection for appellate review, and [he] is entitled to reversal only if the jury instruction constituted ‘plain error.’ ” (Citation omitted.) Hines v. State, 320 Ga. App. 854, 864 (5) (b) (740 SE2d 786) (2013).

In conducting a plain error review, we

consider first whether the record establishes an error or defect — some sort of deviation from a legal rule — that has not been intentionally relinquished or abandoned, i.e., affirmatively waived, by the appellant. If so, we then consider whether the error was clear or obvious, whether it likely affected the outcome of the trial, and whether we should exercise our discretion to remedy the error.

(Citation omitted.) Hines, supra at 864-865 (5) (b). When considering the first step in the plain error analysis, “we are mindful that it is a fundamental rule in Georgia that jury instructions must be read and considered as a whole in determining whether the charge contained error.” (Citation and punctuation omitted.) Id.

Prior to 2005, Georgia law held that a witness could be impeached by proof that the witness had been convicted of a crime involving moral turpitude. Conn, supra. However, OCGA § 24-9-84.1 superseded this impeachment rule in trials, such as the present one, commencing on or after July 1, 2005. OCGA § 24-9-84.1 replaced the phrase “moral turpitude” in the statute with the phrase “dishonesty or making a false statement.” Former OCGA § 24-9-84.1 (a) (3).

In a nearly identical case, this Court held that a trial court’s erroneous jury charge under the prior statute that a witness could be impeached ‘by proof that the witness has been convicted of a crime of moral turpitude [,]” rather than the applicable standard that a witness could be impeached by proof that the witness had been convicted of a crime of “dishonesty or making a false statement,” was not reversible error. (Punctuation omitted.) Smallwood v. State, 296 Ga. App. 16, 19-20 (2) (673 SE2d 537) (2009), overruled on other grounds by Stephens v. State, 289 Ga. 758, 759 (1) (a), n. 2 (716 SE2d 154) (2011). This Court held that there was no reversible error when “the court made clear that a felony conviction can be offered to impeach a witness.” (Footnote omitted.) Smallwood, supra. See Smith v. State, 291 Ga. App. 389, 391 (2) (662 SE2d 201) (2008) (“Where [a] charge... considered as a whole, substantially presents issues in such a way as is not likely to confuse the jury even though a portion of the charge may not be as clear and precise as could be desired, a reviewing court will not disturb a verdict amply authorized by the evidence.”) (footnote omitted).

Here, a review of the charges as a whole shows that, in addition to the reference to impeachment by a crime of moral turpitude, the jury was given extensive instructions which elaborated upon principles applicable to impeachment by other methods, including by proof of contradictory statements or by a conviction of a crime involving dishonesty or bad character. See Francis v. State, 266 Ga. 69, 72 (3) (463 SE2d 859) (1995) (finding no reversible error when the jury was instructed with an unauthorized charge on impeachment by conviction of a crime of moral turpitude when the charge at question “appears to be no more than a passing general reference,” and was “one of a number of stated methods of impeachment”).

Further, we cannot say that the trial court’s erroneous charge altered Robinson’s verdict. The fact that the jury acquitted Robinson of the rape and aggravated sodomy charges involving the third victim and of impersonating a police officer indicates that the jury did not disregard or discredit the entirety of Robinson’s testimony. We find no plain error.

Decided April 14, 2015

Benjamin D. Goldberg, for appellant.

Paul L. Howard, Jr., District Attorney, Lenny I. Krick, Assistant District Attorney, for appellee.

(b) We further find no basis for Robinson’s claim that his trial counsel rendered ineffective assistance for failing to object to the jury instruction on impeachment by a criminal conviction involving moral turpitude.

To prevail on an ineffective assistance of counsel claim, Robinson must prove both prongs of the test set out in Strickland v. Washington, 466 U. S. 668, 695-696 (III) (B) (104 SCt 2052, 80 LE2d 674) (1984). They are: (1) that his trial counsel’s performance was deficient and (2) that counsel’s inadequate performance so prejudiced his defense that a reasonable probability exists that the result of the trial would have been different but for that deficiency. Failure to satisfy either prong of this two-part test is fatal to an ineffective assistance claim. Thomas v. State, 291 Ga. App. 795, 804 (6) (662 SE2d 849) (2008). Atrial court’s finding that a defendant did not receive ineffective assistance of counsel will not be disturbed absent an abuse of discretion. Id.

Here, we find that Robinson has not met his burden of proving that, but for the erroneous jury charge, the result of his trial would have been different. “The inapplicable portion of the impeachment charge was contained in a lengthy instruction detailing other permissible methods of impeachment and appears to be no more than a passing general reference.” (Citations and punctuation omitted.) Miller v. State, 281 Ga. App. 354, 355 (1) (636 SE2d 60) (2006). See Hardy v. State, 240 Ga. App. 115, 120 (6) (522 SE2d 704) (1999) (harmful effect of erroneous portion of impeachment charge was mitigated by the remainder of the charge). When viewing the trial court’s instruction as a whole, even if Robinson’s trial counsel was deficient in failing to object to the inapplicable instruction, Robinson has not shown a reasonable probability that his trial counsel’s performance changed the outcome of his trial. See Miller, supra.

Judgment vacated and case remanded with direction.

Andrews, P. J., and McFadden, J., concur.

       Robinson was acquitted of rape and aggravated sodomy arising from an incident with a third victim.

       Because this case was tried before 2013, the new Evidence Code does not apply. See Ga. L. 2011, pp. 99,214, § 101. For impeachment hy prior convictions under the new Evidence Code, see OCGA § 24-6-609 (a) (1).


source: Caselaw Access Project

author: Ellington, Presiding Judge.

license: Public Domain

text:
    A15A0224.
    EL-FATIN v. THE STATE.
    (771 SE2d 902)
   Ellington, Presiding Judge.

A DeKalb County jury found Mosi El-Fatin guilty beyond a reasonable doubt of carrying a concealed weapon in violation of OCGA § 16-11-126 (b); and loitering or prowling, OCGA § 16-11-36 (a). Following the denial of his motion for a new trial, El-Fatin appeals, contending that the evidence was insufficient to authorize his conviction for loitering or prowling. For the following reasons, we affirm.

The record shows that the State charged El-Fatin under OCGA § 16-11-36 with committing the offense of loitering or prowling on October 14,2008, based on his presence “in a manner not usual for law-abiding individuals under circumstances that warrant a justifiable and reasonable alarm and immediate concern for the safety of persons or property in the vicinity” in that he “was standing behind a condominium complex holding a sword.” El-Fatin contends that the evidence established that he freely identified himself and otherwise cooperated with the officer who found him standing with a sword at that time and place, and that the explanation he gave to explain his presence and conduct was true and dispelled any alarm or immediate concern for the safety of persons or property in the vicinity. He contends that the statute prohibits conviction under such circumstances, citing OCGA § 16-11-36 (b). That Code section provides:

Among the circumstances which may be considered in determining whether alarm is warranted [as provided in OCGA § 16-11-36 (a)] is the fact that the person takes flight upon the appearance of a law enforcement officer, refuses to identify himself, or manifestly endeavors to conceal himself or any object. Unless flight by the person or other circumstances make it impracticable, a law enforcement officer shall, prior to any arrest for an offense under this Code section, afford the person an opportunity to dispel any alarm or immediate concern which would otherwise be warranted by requesting the person to identify himself and explain his presence and conduct. No person shall be convicted of an offense under this Code section if the law enforcement officer failed to comply with the foregoing procedure or if it appears at trial that the explanation given by the person was true and would have dispelled the alarm or immediate concern.

(Emphasis supplied.) El-Fatin contends that the statute prohibits conviction under the circumstances established by the evidence.

Viewed in the light most favorable to the verdict, the evidence showed the following. At approximately 5:30 a.m. on October 14, 2008, an officer responded to a dispatch that a suspicious male was in the rear of the Fairington Village condominium complex and was possibly armed. When the officer arrived, she found El-Fatin standing in the dark near a breezeway at the rear of the complex, holding a long sword in front of himself and waving it. The officer drew her service weapon and commanded El-Fatin to drop his weapon. After another officer arrived to assist, El-Fatin dropped the sword. The second officer patted El-Fatin for weapons; he had a second long sword in a sheath, a handgun in a holster, and a large knife, all concealed beneath his long, heavy wool coat. According to the first officer, the morning was not cold enough to require a coat or jacket. El-Fatin was also wearing a bulletproof vest and a hat, underneath which he had a ski mask.

The first officer asked El-Fatin what he was doing behind the apartment building. He told her that he was playing with his sword and that he had just left his girlfriend “Happy,” who lived in Building II on the third floor. When the officers went there to confirm this statement, the residents of that unit and other nearby units denied that anyone called “Happy” lived in the building. El-Fatin then offered a different explanation for his presence, saying that he had been living in the complex, but had recently moved out and was living in his truck, which he had parked in the complex parking lot.

El-Fatin volunteered the information that he did not have a permit for the handgun, and the officers arrested him for carrying a concealed weapon. El-Fatin asked them to check on his dog, which he said was in his truck. When the officers checked the vehicle he indicated, the officers found no dog, although two people were sleeping in the vehicle. The officers also saw in plain view another sword and ammunition of various calibers. Some people gathered around to see what was happening, but, according to the first officer, none talked to her about El-Fatin. According to the second officer, a man identified himself as a relative of El-Fatin and offered to move his vehicle. Another man told that officer that he had previously seen El-Fatin around the complex.

At trial, El-Fatin testified that he had been living at the complex with his aunt and other relatives until a week or two before his arrest, but then had to resort to sleeping in his truck because the apartment was overcrowded. He testified that, on the morning he was arrested, he was using his swords to prevent anyone from stealing his dog and his furniture from his truck. He testified that, when he encountered the police officers, he had been waiting for his friend Happy to return home so he could go inside. He testified that, when the officer asked him what he was doing, he answered, “nothing,” that he was just “observing” his sword, and he immediately informed her that he had a handgun. He told her that he was an officer of the Moorish Science Temple of America, which he said is based on love, truth, peace, freedom, and justice, and that he was committing no wrong. He described how he cooperated with the officers in removing his coat and bulletproof vest and disarming himself. According to El-Fatin, several people spoke up for him and told the officers that he was not doing anything wrong.

Under OCGA § 16-11-3 6, it was for the finder of fact to determine whether El-Fatin’s presence at the condominium complex was at a time or in a manner not usual for law-abiding individuals under circumstances that warranted a justifiable and reasonable alarm or immediate concern for the safety of persons or property in the vicinity. Given the evidence that El-Fatin was standing outside a residential building before dawn, wearing a bulletproof vest and armed with a handgun, a large knife, and two long swords, one of which was drawn, the jury was authorized to find that his manner and the circumstances justified an objectively reasonable immediate concern for the safety of persons or property in the vicinity. St. Louis v. State, 328 Ga. App. 837, 841 (763 SE2d 126) (2014) (Conviction of loitering or prowling was authorized where there was evidence that the defendant was outside of the victim’s apartment in the dark with items that could be used for a burglary; he had unlatched and opened a screen door; he fled into woods after he encountered the victim and her dog and the victim screamed; and at first he falsely told a law enforcement officer that he had not encountered anyone.); Hubbard v. State, 311 Ga. App. 671, 672-673 (1) (716 SE2d 777) (2011) (Conviction of loitering or prowling was authorized where there was evidence that the defendant was present for many hours on the steps of an apartment complex where he did not live; he was behaving in an intoxicated manner; and he harassed two women returning to the complex at 4:00 a.m.). The fact that El-Fatin did not refuse to identify himself and did not attempt to flee from the officers, standing alone, does not mean that the evidence was insufficient to support conviction. St. Louis v. State, 328 Ga. App. at 841; In the Interest of I. M. W., 313 Ga. App. 624, 627 (1) (b) (722 SE2d 586) (2012).

Decided April 14, 2015.

Dell Jackson, for appellant.

It was also for the jury to decide whether the explanation that El-Fatin gave the officers for his presence and conduct was true and, if true, whether it dispelled the immediate public safety concern. Given the evidence that El-Fatin claimed he was waiting for a friend called “Happy,” who was a resident, and that he had recently lived in a unit there, and that, when the officers tried to confirm that information, they received no confirmation, the jury was authorized to find that his explanation for his presence and conduct was not true or, if true, that it was not sufficient, in light of all of the circumstances, to dispel the officers’ concern that he was a threat to persons or property in the area. St. Louis v. State, 328 Ga. App. at 841 (Conviction of loitering or prowling was authorized where the suspect’s explanation to a law enforcement officer failed to account for his possession of a flashlight and thick wool gloves on a warm day.); In the Interest of I. M. W., 313 Ga. App. at 627 (1) (b) (Conviction of loitering or prowling was authorized where the suspect’s explanation to a law enforcement officer could be read as an admission that he intended to frighten the victims.); McFarren v. State, 210 Ga. App. 889, 890-891 (1) (437 SE2d 869) (1993) (Conviction of loitering or prowling was authorized where the suspect’s explanation to a law enforcement officer conflicted with the facts determined by the officer.). The trial court did not err in denying El-Fatin’s motion for a new trial.

Judgment affirmed.

Dillard and McFadden, JJ., concur.

Robert D. James, Jr., District Attorney, Deborah D. Wellborn, Assistant District Attorney, for appellee.

       OCGA § 16-11-126 (b) (“Any person who is not prohibited by law from possessing a handgun or long gun may have or carry on his or her person a long gun without a valid weapons carry license, provided that if the long gun is loaded, it shall only be carried in an open and fully exposed manner.”).

       Aperson commits the offense of loitering or prowling when he is in a place at a time or in a manner not usual for law-abiding individuals under circumstances that warrant a justifiable and reasonable alarm or immediate concern for the safety of persons or property in the vicinity.
      OCGA § 16-11-36 (a).

       On appeal from a criminal conviction, the appellate court view[s] the evidence in the light most favorable to the verdict[,] and an appellant no longer enjoys the presumption of innocence. [The appellate court] determines whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979), and does not weigh the evidence or determine witness credibility. Any conflicts or inconsistencies in the evidence are for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, [the appellate court] must uphold the jury’s verdict.
      (Citations omitted.) Rankin v. State, 278 Ga. 704, 705 (606 SE2d 269) (2004).


author: DOYLE, Presiding Judge.

text:
    A13A0740.
    THOMPSON v. LaFARGE BUILDING MATERIALS, INC.
    (771 SE2d 905)
    Decided April 16, 2015.

      Dupree & Kimbrough, Hylton B. Dupree, Jr., Blake R. Carl, for appellant.

      Cohen, Cooper, Estep & Allen, Scott A. Schweber, for appellee.
   DOYLE, Presiding Judge.

In Thompson v. LaFarge Bldg. Materials, we reversed the trial court’s grant of summary judgment to LaFarge Building Materials (“LaFarge”) on the basis that a personal guaranty signed by Larry Thompson did not meet the requirements of the Statute of Frauds. Thereafter, LaFarge petitioned for certiorari to the Supreme Court of Georgia, which the Court granted. In Lafarge Bldg. Materials v. Thompson, the Supreme Court reversed our decision, ruling that the personal guaranty met the requirements of the Statute of Frauds. Consequently, we vacate our previous opinion and adopt the Supreme Court’s opinion as our own.

Judgment affirmed.

Phipps, C. J., Barnes, P. J., Ellington, P. J., McFadden, Boggs and Branch, JJ., concur.

       323 Ga. App. 276 (746 SE2d 908) (2013).

       295 Ga. 637, 641 (2) (763 SE2d 444) (2014).


author: McFadden, Judge.

text:
    A15A0776, A15A0777.
    WALKER v. THE STATE (two cases).
    (771 SE2d 905)
   McFadden, Judge.

Marcus Walker pleaded guilty to trafficking in cocaine and sale of cocaine. Within the same term of court, and acting pro se, he moved to withdraw his guilty plea, arguing, among other things, that his plea was involuntary and requesting legal representation and a hearing on his motion. See Rubiani v. State, 279 Ga. 299 (612 SE2d 798) (2005); OCGA § 15-6-3 (14) (B). In the next term of court, Walker, still acting pro se, filed a “motion to overturn” his convictions.

After conducting a hearing, the trial court denied the motions, and Walker filed these appeals.

1. Motion to withdraw.

Walker moves to remand Case No. A15A0777, the appeal of the denial of his motion to withdraw his guilty pleas. To its credit, the state concedes that the trial court’s order should be reversed and the case remanded for a hearing.

In Fortson v. State, 272 Ga. 457 (532 SE2d 102) (2000), our Supreme Court held that a proceeding to withdraw a guilty plea is a critical stage of a criminal prosecution, id. at 459 (1), and that “the right to counsel attaches when a defendant seeks to withdraw a guilty plea, thus entitling that defendant to assistance of counsel.” Id. at 460 (1). The court further held that the trial court has an obligation to provide counsel or to obtain a constitutionally valid waiver of counsel from a defendant who seeks to withdraw his guilty plea. Id. at 459.

The transcript of the hearing on Walker’s motion shows that the trial court conducted the hearing without appointing Walker counsel, without informing him of his right to counsel, and without obtaining a valid waiver of Walker’s right to counsel. Consequently,

[b]ecause [Walker] was not appointed counsel for his motion to withdraw his plea, the record does not reveal that the court informed him of his right to counsel, and no waiver of counsel appears in the record, we reverse and remand this case to the trial court for a re-hearing on [Walker’s] motion to withdraw his guilty plea to be conducted in conformity with this opinion.

Douglas v. State, 317 Ga. App. 425, 426 (1) (731 SE2d 109) (2012) (citations and punctuation omitted).

2. Motion to overturn.

In Case No. A15A0776, Walker appeals from the denial of his “motion to overturn conviction,” which the trial court treated as a motion to withdraw guilty plea. Given our holding in Division 1, we dismiss this appeal as redundant. Waugh v. State, 263 Ga. 692 (1) (437 SE2d 297) (1993).

Judgment reversed and case remanded in Case No. A15A0777. Appeal dismissed in Case No. Al 5A0776.

Ellington, P. J., and Dillard, J., concur.

Decided April 17, 2015.

Marcus J. Walker, pro se (case no. A15A0776).

Jimmonique R. S. Rodgers, Tyler R. Conklin, for appellant (case no. A15A0777).

Peter J. Skandalakis, District Attorney, Kevin T McMurry, Assistant District Attorney, for appellee.


author: ANDREWS, Presiding Judge.

text:
    A15A0084.
    BANKS v. THE STATE.
    (772 SE2d 57)
   ANDREWS, Presiding Judge.

Following a bench trial at which Nakayla Banks proceeded pro se, the Probate Court of Newton County found Banks guilty of one count of possession of marijuana of less than an ounce (OCGA § 16-13-2 (b)) and not guilty of one count of possession of alcohol by a minor (OCGA § 3-3-23 (a)). Banks appealed to the Superior Court of Newton County, which affirmed the probate court’s judgment. In Banks’ appeal to this Court, she argues that the evidence was insufficient to support her conviction and that she did not knowingly and intelligently waive her rights to counsel and to a trial by jury. Because we conclude that the record is devoid of a knowing and intelligent waiver of Banks’ right to counsel, we reverse and remand.

1. Under Georgia law, “whether a charge is a felony or a misdemeanor, an accused facing a term of imprisonment is constitutionally guaranteed the right to counsel and must waive that right.” Cook v. State, 297 Ga. App. 701 (678 SE2d 160) (2009) (citing Jones v. Wharton, 253 Ga. 82, 83 (316 SE2d 749) (1984)). See also Barnes v. State, 261 Ga. App. 112, 113 (581 SE2d 727) (2003). Such a waiver of counsel

is valid only if it is made with an understanding of (1) the nature of the charges, (2) any statutory lesser included offenses, (3) the range of allowable punishments for the charges, (4) possible defenses to the charges, (5) circumstances in mitigation thereof, and (6) all other facts essential to a broad understanding of the matter.

Cook, 297 Ga. App. at 701 (citing Manning v. State, 260 Ga. App. 171 (581 SE2d 290) (2003)). “When the record is silent, waiver is never presumed, and the burden is on the State to present evidence of a valid waiver.” Id. (citing Helmer v. State, 256 Ga. App. 717, 718 (569 SE2d 606) (2002)). The State may carry its burden “by showing a valid waiver through either a trial transcript or other extrinsic evidence [,]” including an appropriate pretrial waiver form. Id. at 702 (citing Godlewski v. State, 256 Ga. App. 35, 36 (567 SE2d 704) (2002)). See also Tucci v. State, 255 Ga. App. 474, 476 (1) (565 SE2d 831) (2002). However,

n order for the State to use a pretrial waiver form to show that a defendant has intelligently elected to represent himself [at trial] after being advised of his right to counsel and the “dangers” of waiver, the form should outline those pertinent dangers: such as (1) the possibility of a jail sentence; (2) the rules of evidence will be enforced; (3) strategic decisions with regard to voir dire and the striking of jurors must be made by defendant; (4) strategic decisions as to the calling of witnesses and/or the right to testify must be made by defendant; and (5) issues must be properly preserved and transcribed in order to raise them on appeal. In other words, a proper waiver form should contain the warnings, themselves, not just conclusions.

Tucci, 255 Ga. App. at 476-477. See also Barnes, 261 Ga. App. at 114.

In this case, as now conceded by the State, the record before us does not support a knowing and intelligent waiver of Banks’ right to counsel. First, the form Banks executed contained only conclusory statements concerning her rights rather than an explanation of the dangers of proceeding to trial pro se. See Barnes, 261 Ga. App. at 114; Tucci, 255 Ga. App. at 476-477. Likewise, the State elicited no testimony during Banks’ hearing on her appeal from probate court to demonstrate a knowing and intelligent waiver, relying instead upon Banks’ waiver form. Finally, although the parties included a purported audio recording of Banks’ trial proceeding in probate court, no transcript has been supplied. As a result, there is no evidence, extrinsic or otherwise, that Banks was “adequately informed of the nature of the charges against her, the possible punishments she faced, the dangers of proceeding pro se, and other circumstances that might affect her ability to adequately represent herself.” (Citation and punctuation omitted.) Cook, 297 Ga. App. at 702.

Decided April 21, 2015.

Angela B. Dillon, for appellant.

Layla H. Zon, District Attorney, Charles R. McMenomy, Miguel A. Trujillo, Assistant District Attorneys, for appellee.

Accordingly, we reverse and remand Banks’ case for a new trial. Banks “may choose to be represented by counsel or to waive her right to counsel and defend herself — after being made aware of the dangers of proceeding without counsel.” Cook, 297 Ga. App. at 703. See also Barnes, 261 Ga. App. at 114.

2. In view of our holding in Division 1, supra, we need not address the remainder of Banks’ enumerations of error.

Judgment reversed and case remanded with direction.

Miller and Branch, JJ., concur.

       In fact, the compact disc submitted by the parties contained no file which could be opened or examined by the Court.

       Similarly, Banks’ arraignment was not recorded.


author: Miller, Judge.

text:
    A15A0206.
    FISHER & PHILLIPS, LLP v. AMEREX ENVIRONMENTAL TECHNOLOGIES, INC. et al.
    (772 SE2d 59)
   Miller, Judge.

Fisher & Phillips, LLP (hereinafter “F&P”) sued Amerex Environmental Technologies, Inc., its president, Joseph Pircon, and its registered agent, Brian McMahon (collectively “the Defendants”) seeking to recover more than $129,000 in unpaid invoices for legal services that F&P allegedly provided to the defendants. The case went into default when the Defendants failed to file a response. F&P moved for a default judgment. The trial court denied F&P’s motion and dismissed the case sua sponte, without a hearing, for failure to state a claim on an open account. F&P appeals, contending that the trial court erred in dismissing its complaint. For the reasons that follow, we reverse.

When, as here, a question of law is at issue we owe no deference to the trial court’s ruling and apply a de novo standard of review. See Artson, LLC v. Hudson, 322 Ga. App. 859, 860 (747 SE2d 68) (2013).

So viewed, the complaint shows that, in January 2011, F&P began providing legal services to the Defendants. F&P regularly invoiced Defendants for the legal services provided, as well as other charges incurred by F&P in connection with the provisions of those legal services. As of July 2013, the Defendants had an outstanding principal balance of $129,725.65 for the invoiced services. Accordingly, on March 3, 2014, F&P filed its unverified complaint seeking to recover the principal and interest due on the outstanding invoices, and seeking attorney fees. In its claim on an open account, F&P set out the invoice number, date and outstanding balance of each open invoice.

In its sole enumeration of error, F&P contends that the trial court lacked authority to involuntarily dismiss the case, without a hearing or trial, merely because F&P failed to make a prima facie showing on its open account claim. We agree.

In dismissing F&P’s complaint, the trial court specifically found that F&P failed to verify the complaint as required by law. Contrary to the trial court’s finding, “[t]here is no law requiring the verification of an action on an open account.” (Citation omitted.) Braswell v. Hodges, 95 Ga. App. 231, 233 (3) (97 SE2d 588) (1957). Rather, a defendant is statutorily required to file a verified answer if the plaintiff brings a verified action on an open account. See OCGA § 9-10-112. Where, as here, the plaintiff files an unverified action on an open account, the defendant is merely relieved of the verification requirement set forth in OCGA § 9-10-112. See Braswell, supra, 95 Ga. App. at 233 (3). Accordingly, F&P’s complaint was not subject to dismissal for lack of verification.

In dismissing the complaint, the trial court also specifically found that F&P failed to tender an authenticated invoice or testimony that the outstanding invoices remained unpaid. In so holding, the trial court relied on this Court’s decision in American Arbitration Assn. v. Bowen, 322 Ga. App. 51, 52-53 (1) (743 SE2d 612) (2013), which held that

[a] suit on open account is available as a simplified procedure to the provider of goods and services where the price of such goods or services has been agreed upon and where it appears that the plaintiff has fully performed its part of the agreement and nothing remains to be done except for the other party to make payment. To establish a prima facie case for a complaint on account, the plaintiff must tender an authenticated invoice, along with testimony that the invoice remains unpaid.

(Citations omitted.) Contrary to the trial court’s ruling, Bowen does not require the dismissal of a complaint on open account merely because the plaintiff failed to establish a prima facie case in its complaint. Rather, in Bowen, this Court reversed the dismissal of the plaintiff’s suit on account on the ground that the plaintiff established a prima facie case for recovery on an open account at trial. See id.

As F&P correctly argues, there is no question in this case that the Defendants are in default, and none of them filed any documents or motions with the trial court after they were served with the complaint. Moreover, F&P’s complaint clearly set forth sufficient allegations to state a claim on an open account, even if F&P failed to set forth a prima facie case, since the complaint specifically set out the invoice number, date and outstanding balance of each open invoice. Clearly, in this case, as in Bowen, supra, F&P established that services per the invoices were provided, and nothing remained except for the Defendants, who were in default, to make payment. Under these circumstances, F&P’s complaint was not subject to dismissal for failure to state a claim. See Superior Roofing Co. of Ga. v. American Professional Risk Svcs., 323 Ga. App. 416, 417 (744 SE2d 400) (2013) (complaint not subject to dismissal for failure to state a claim unless allegations disclose with certainty that claim is not entitled to relief under any state of provable facts asserted therein). Accordingly, we reverse the trial court’s order dismissing the complaint.

F&P did not enumerate as error the denial of its motion for a default judgment. Nevertheless, we note that where, as here, a case is in default and the damages are liquidated,

the plaintiff at any time [after expiration of the 15-day period] shall be entitled to verdict and judgment by default, in open court or in chambers, as if every item and paragraph of the complaint or other original pleading were supported by proper evidence, without the intervention of a jury[.]

OCGA § 9-11-55 (a). “By statutory definition, an action on an open account is considered an action for liquidated damages.” (Citation omitted.) Sellers v. Nodvin, 207 Ga. App. 742, 746 (3) (429 SE2d 138) (1993); see also Hazlett & Hancock Constr. Co. v. Virgil Womack Constr. Co., 181 Ga. App. 25, 26 (2) (351 SE2d 218) (1986) (a suit on account is one type of liquidated claim which becomes established and fixed without the necessity of proof by the plaintiff when the case goes into default). Accordingly, it appears that F&P is entitled to a default judgment on its open account claim.

Decided April 21, 2015.

Van Sant Law, Christopher L. Moore, for appellant.

Joseph Pircon, pro se.

Brian McMahon, pro se.

Judgment reversed.

Andrews, P. J., and Branch, J., concur.

       After the case went into default, the trial court ordered F&P to file a motion for default judgment or formally notify the trial court of its intent to pursue its claims.

       See also Allen Tile & Marble Co. v. Vinyl Plastics, 99 Ga. App. 186, 188 (2) (107 SE2d 881) (1959) (where petition based on open account was not verified, defendant could file answer by general denial).


text:
    A15A0331.
    THE STATE v. ANDERSON.
    (772 SE2d 61)
   Miller, Judge.

The trial court granted James Wilson Anderson’s motion to suppress evidence seized from his vehicle. The State appeals, contending that the trial court erred because Anderson voluntarily consented to a search of his vehicle during a first-tier encounter. For the reasons that follow, we agree and reverse the grant of Anderson’s motion to suppress.

[I]n reviewing the trial court’s suppression of evidence, we must construe the evidence most favorably to upholding the trial court’s findings and judgment. Moreover, because we accept the trial court’s findings on disputed facts and witness credibility, a determination of voluntariness must be upheld unless it is clearly erroneous. Nevertheless, when controlling facts are not in dispute, such as those facts discernible from a videotape, our review is de novo. Finally, we apply the legal principles to the facts independently.

(Punctuation and footnotes omitted; emphasis supplied.) State v. Brown, 308 Ga. App. 480, 482-483 (708 SE2d 63) (2011); see also Green v. State, 275 Ga. 569, 573 (2), n. 11 (570 SE2d 207) (2002) (in reviewing a videotape, we owe no deference to the trial court’s findings of fact).

So viewed, the evidence shows that in December 2013, a Cherokee County deputy sheriff stopped Anderson’s truck for a taillight violation. Upon approaching Anderson’s truck, the police officer asked Anderson for his driver’s license and discussed the reason for the stop. The police officer briefly questioned Anderson and allowed Anderson to exit his vehicle to observe the violation. The police officer returned to his patrol car to run Anderson’s driver’s license through dispatch, and no issues were noted. The police officer then returned to the front of his patrol car, where Anderson had been standing, and they discussed the fact that they had similar trucks. The police officer then gave Anderson a verbal warning to have the taillight fixed and returned Anderson’s driver’s license to him.

After receiving his driver’s license, Anderson walked back to his truck, and as he was about to enter it, the police officer asked for a few more moments of his time. Anderson agreed and walked back toward the officer, who was waiting behind the truck. The police officer asked Anderson if he had anything illegal in his truck, and Anderson answered in the negative. The police officer also asked for and received Anderson’s consent to search his vehicle. During a search of the truck, the police officer found a methamphetamine pipe with burnt residue inside of it. The police officer then asked Anderson about the pipe, and Anderson admitted that he had smoked methamphetamine the day before. Anderson also admitted that he had a marijuana pipe inside his truck. The police officer then arrested Anderson, and Anderson was charged with possession of methamphetamine, possession of drug related objects, and the taillight violation.

Anderson moved to suppress the drug evidence seized from the traffic stop, arguing that after issuing a warning, the police officer initiated a second detention that was not supported by an articulable suspicion of illegal activity. Following a hearing, the trial court granted Anderson’s motion, concluding that after Anderson started to enter his vehicle, the police officer initiated a second detention that was not supported by additional articulable suspicion.

On appeal, the State contends that the search was lawful because the stop had de-escalated into a first-tier encounter when the police officer advised Anderson that he would receive only a warning and allowed Anderson to return to his vehicle, and Anderson gave consent to the search during this first-tier encounter. We agree.

Anderson does not dispute that the police officer was authorized to conduct the traffic stop, and in his motion to suppress, he argued only that the police officer illegally detained him after the conclusion of the stop.

A law enforcement officer who questions and detains a vehicle’s driver and passengers outside the scope of a valid traffic stop exceeds the scope of permissible investigation unless he has reasonable suspicion of other criminal activity or unless the valid traffic stop has de-escalated into a consensual [first-tier] encounter.

(Footnote omitted.) Cuaresma v. State, 292 Ga. App. 43, 46 (2) (663 SE2d 396) (2008). “A consensual encounter requires the voluntary cooperation of a private citizen with noncoercive questioning by a law enforcement official. Because the individual is free to leave at any time during such an encounter, he is not ‘seized’ within the meaning of the Fourth Amendment.” (Citation omitted.) State v. Felton, 297 Ga. App. 35, 37 (676 SE2d 434) (2009). In determining whether a stop has de-escalated into a first-tier encounter, such that a reasonable person would have felt free to leave, “three important factors have been given particular scrutiny: (a) whether the driver’s documents have been returned to him; (b) whether the officer informed the driver that he was free to leave; and (c) whether the driver appreciated that the traffic stop had reached an endpoint.” (Citation omitted.) Id.

In this case, after receiving confirmation from dispatch that Anderson’s driver’s license was clear, the videotape recording clearly shows that the police officer engaged in a brief conversation with Anderson and then gave Anderson a verbal warning to fix his taillight. At this point, the police officer returned Anderson’s driver’s license. Although the police officer did not expressly tell Anderson that he was free to go, the videotape recording clearly shows that Anderson believed the stop had ended because he walked back to his vehicle and proceeded to get inside it. See Rowe v. State, 314 Ga. App. 747, 750 (2) (a) (725 SE2d 861) (2012) (“Upon receiving his license and warning ticket, a reasonable person would have concluded that the traffic stop had ended.”) (citation and punctuation omitted).

The fact that Anderson agreed to continue talking to the police officer did not render the post-stop encounter a second detention.

Decided April 21, 2015

Shannon G. Wallace, District Attorney, Sarah M. Santander, Cliff Head, Assistant District Attorneys, for appellant.

Kesler Law Firm, Jonathan A. Kesler, for appellee.

Notably,

[djuring this subsequent exchange, there was no evidence that [Anderson] was mandated to wait, that the officer had drawn his weapon, or that [Anderson] was otherwise impeded from leaving. Under these circumstances, merely asking [Anderson] if he minded speaking further with the officer did not extend the initial traffic stop detention, because mere police questioning does not constitute seizure. As the traffic stop had ceased and [Anderson] was no longer detained, the encounter had de-escalated to a consensual first-tier encounter.

(Citation and punctuation omitted.) Rowe, supra, 314 Ga. App. at 751 (2) (b) (i). Therefore, the trial court erred in concluding that the police officer initiated a second detention that needed to be supported by articulable suspicion of illegal activity. Accordingly, we reverse the trial court’s grant of Anderson’s motion to suppress.

Judgment reversed.

Andrews, P. J., and Branch, J., concur.

       While Anderson argues on appeal that the police officer unreasonably prolonged the stop because he continued to talk to Anderson for several minutes after receiving confirmation from dispatch, Anderson did not raise this issue in his motion to suppress. Consequently, this issue was not preserved for review. See, e.g., State v. Allen, 256 Ga. App. 798, 799-800 (570 SE2d 34) (2002) (refusing to consider alternate reasons defendant urged to affirm grant of motion to suppress because these alternate grounds were not made in defendant’s written motion to suppress).


text:
    A15A0466.
    ONYEKWE v. THE STATE.
    (772 SE2d 64)
   Miller, Judge.

Following a bench trial, Christopher Onyekwe was convicted of two counts of family violence simple battery (OCGA § 16-5-23 (f)). In his out-of-time appeal, Onyekwe contends that (1) the evidence was insufficient to support his convictions and (2) the trial court erred in excluding evidence that could have exonerated him. Discerning no error, we affirm.

Viewed in the light most favorable to Onyekwe’s conviction, the evidence shows that Onyekwe and his ex-wife have two children together and they have been divorced since August 2003. Around noon on March 26, 2011, the ex-wife drove the children to the Fayetteville police station to meet Onyekwe for his agreed-upon overnight visitation. Onyekwe, who has a history of family violence, became angry when his 11-year-old daughter refused to go with him.

Onyekwe’s ex-wife told him to calm down so that they could talk about the situation. Onyekwe responded by yelling that he was going to take his ex-wife and daughter back to court. Onyekwe then walked over to his ex-wife’s van, threw the door open, started hitting his daughter and tried to pull her out of the van. When his ex-wife told him to stop, Onyekwe turned around and hit his ex-wife on her shoulder. Onyekwe’s teenage son then ran to the police station for help.

The son approached an officer, who had just pulled into the police station parking lot, and told the officer that his father had hit his mother. The officer separated the parties and interviewed each of them individually. When the officer spoke to the daughter, he saw visible red marks on her arm in the pattern of fingers or palms, and he noticed that her left sleeve was visibly stretched, which led him to conclude that Onyekwe had attempted to pull her out of the van.

1. Onyekwe contends that the evidence was insufficient to support his convictions for family violence simple battery. We disagree.

A person commits the offense of simple battery when he or she either: (1) Intentionally makes physical contact of an insulting or provoking nature with the person of another; or (2) Intentionally causes physical harm to another.

OCGA § 16-5-23 (a). When a person commits the offense of simple battery against a spouse, child or other family member, the offense constitutes family violence simple battery. See OCGA § 16-5-23 (f); see also Howe v. State, 322 Ga. App. 294, 296 (744 SE2d 818) (2013). Contrary to Onyekwe’s contention, the testimony of his ex-wife and daughter, as well as the corroborating testimony of the investigating officer, was more than sufficient to show that he committed the two charged crimes by striking his ex-wife and grabbing and hitting his daughter. See Howe, supra, 322 Ga. App. at 297-298 (evidence that defendant struck his wife in the head and face supported his conviction for family violence simple battery).

Decided April 21, 2015.

Derrick L. Johnson, for appellant.

JamieK. Inagawa, Solicitor-General, Audrey D. Holliday Cruzan, Assistant Solicitor-General, for appellee.

2. Onyekwe contends that the trial court erred in excluding evidence that his ex-wife made accusations against him and continually denied him his right to visit with his children. We discern no error.

The admission or exclusion of evidence over a relevancy objection is a matter committed to the sound discretion of the trial court, and this Court will not disturb the trial court’s evidentiary decisions absent an abuse of discretion. See Askew v. State, 310 Ga. App. 746, 747 (1) (713 SE2d 925) (2011). Moreover, this Court has repeatedly held that “[e]vidence which does not in any reasonable degree tend to establish the probability of the issues of fact in controversy is irrelevant and inadmissible.” (Footnote omitted.) Davis v. State, 301 Ga. App. 484, 488 (3) (687 SE2d 854) (2009). Rather, evidence must relate to the questions being tried by the trier of fact, which in this case was the trial court. See former OCGA § 24-2-1.

During the trial, Onyekwe repeatedly attempted to introduce evidence related to his divorce and child custody arrangements with his ex-wife. Each time, the State objected on relevance grounds, and the trial court sustained the State’s objection. The evidence that Onyekwe attempted to introduce did not relate to the question being tried, i.e., whether Onyekwe committed the charged acts of striking his ex-wife and grabbing his daughter. See Davis, supra, 301 Ga. App. at 488 (3) (evidence unrelated to defendant’s case was irrelevant and inadmissible). Accordingly, the trial court did not abuse its discretion in excluding the evidence.

Judgment affirmed.

Andrews, P. J., and Branch, J., concur.

       This Court dismissed Onyekwe’s untimely first appeal from the denial of his motion to set aside judgment. The trial court subsequently granted Onyekwe’s request for permission to file an out-of-time appeal.

        Jackson v. Virginia, 443 U. S. 307 (99 SCt 2781, 61 LE2d 560) (1979).


author: ELLINGTON, Presiding Judge.

text:
    A15A0613.
    IN THE INTEREST OF B. H.-W., a child.
    (772 SE2d 66)
   ELLINGTON, Presiding Judge.

D. W, the biological father of B. H.-W., filed in the Juvenile Court of DeKalb County a petition to legitimate the child, then ten months old, and a motion for placement. After a hearing, the juvenile court granted the petition for legitimation and ordered that B. H.-W. be placed with the father. In the same proceedings, the juvenile court dismissed a petition for permanent guardianship previously filed by the Georgia Department of Human Resources by and through the DeKalb County Department of Family and Children Services (“the Department”). B. H.-A., the child’s mother, appeals, contending that the juvenile court erred in failing to include necessary jurisdictional facts in its orders, in excluding certain testimony regarding the father’s pursuit of his opportunity interest and his fitness to parent, in finding that the father had not abandoned his opportunity interest in B. H.-W., in failing to determine whether the father was a fit parent before granting his petition to legitimate, and in failing to apply the best interest standard when it dismissed the guardianship petition and awarded custody to the father. For the reasons explained below, we affirm.

1. The mother contends the trial court erred in failing to include necessary jurisdictional facts in its judgment.

As a general rule, a juvenile court is a court of special and limited jurisdiction, and [a juvenile court’s] judgment[ ] must show on [its] face such facts as are necessary to give [the court] jurisdiction of the person and subject matter. If the order of a juvenile court fails to recite the jurisdictional facts, the judgment is void.

(Citation and punctuation omitted.) In the Interest of S. K. L., 199 Ga. App. 731, 734-735 (2) (c) (405 SE2d 903) (1991).

In this case, the juvenile court’s final custody order referenced and incorporated the legitimation order entered days earlier. The custody order reflected on its face that all parties were served with a copy of the pleadings and were present, along with their counsel, for the August 11, 2014 hearing. The mother did not contest the juvenile court’s personal jurisdiction, a matter which can be waived. See In the Interest of S. K. L., 199 Ga. App. at 734 (2) (b). The custody order also reflected on its face that the proceedings concerned a child then in the Department’s custody and that the orders disposed of the father’s petition for legitimation and motion for placement as well as the Department’s pending petition that permanent guardianship be awarded to B. H.-W.’s current foster parent. Accordingly, the custody order showed on its face such facts as were necessary to give the juvenile court jurisdiction of the person and subject matter. See id. at 734-735 (2) (c); OCGA §§ 15-11-2 (22) (“ ‘Dependent child’ means a child who . . . [i]s without his or her parent, guardian, or legal custodian.”); 15-11-10 (1) (C) (Except as otherwise provided, “the juvenile court shall have exclusive original jurisdiction over juvenile matters and shall be the sole court for initiating action ... [concerning any child who... [i]s alleged to be a dependent child[.]”); 15-11-11 (1) (“The juvenile court shall have concurrent jurisdiction to hear ... [a]ny legitimation petition filed pursuant to Code Section 19-7-22 concerning a child alleged to be dependent[.]”).

2. The mother contends the trial court erred in excluding certain testimony regarding the father’s pursuit of his opportunity interest and his fitness to parent. “Evidentiary rulings are reviewed under an abuse of discretion standard[.]” (Citation omitted.) Reeves v. State, 294 Ga. 673, 676 (2) (755 SE2d 695) (2014).

The mother cites to the following proceedings. After the father’s counsel questioned him in support of his legitimation petition, the mother’s counsel asked him on cross-examination whether he had signed B. H.-W.’s birth certificate, and he responded that he had not. Counsel then asked, “But when [the child] was born [on] October 4 you were aware that he was born[?]” The father’s counsel objected on the basis of relevance, in light of the mother’s written consent to legitimation that she filed on the day of the hearing. The mother’s counsel acquiesced, saying, “[M]y questions go [also] towards the [issue of] placement. So I can save them for that [portion of the hearing] as well.” Only then did the juvenile court sustain the objection.

The record shows that, later in the hearing, the mother’s counsel recalled the father to revisit the issue of his pursuit of his opportunity interest and questioned him about when he knew about B. H.-W.’s birth, his visitation with the child, and his financial and material support of the child. The trial court expressly found on the evidence presented that the father had not abandoned his opportunity interest. Because the record shows that, before the trial court ruled on the father’s legitimation petition, the mother had the opportunity to question the father on the issue of his pursuit of his opportunity interest, or lack thereof, the trial court’s error, if any, was corrected; we find no reversible error. Williams v. State, 328 Ga. App. 876, 880 (1) (763 SE2d 261) (2014) (“[I]t is a fundamental principle that harm as well as error must be shown for reversal” based on an evidentiary ruling.) (punctuation and footnote omitted).

3. The mother contends the trial court erred in finding that the father had not abandoned his opportunity interest in B. H.-W.

Before granting a petition to legitimate, the court must initially determine whether the father has abandoned his opportunity interest to develop a relationship with the child. Then, depending on the nature of the putative father’s relationship with the child and other surrounding circumstances, the standard for evaluating whether legitimation is appropriate is either a test of his fitness as a parent or the best interest of the child.

(Punctuation and footnote omitted.) Morris v. Morris, 309 Ga. App. 387, 388-389 (2) (710 SE2d 601) (2011). “We review a trial court’s ruling on a legitimation petition for abuse of discretion. We review the court’s factual findings, however, for clear error and will only sustain such findings if there is competent evidence to support them.” (Citations and punctuation omitted.) Neill v. Brannon, 320 Ga. App. 820, 822 (1) (738 SE2d 724) (2013).

The father and his mother (the paternal grandmother) testified at the evidentiary hearing in this case; B. H.-A. did not adduce any conflicting evidence. They testified that the father’s parents visited the mother and the baby in the hospital just after B. H.-W. was born and took her a car seat, stroller, and baby clothes that the father had purchased. A week or two after he was born, B. H.-W. was readmitted to the hospital for a hernia repair, and the father stayed with B. H.-W. the entire time while he was in the hospital, approximately one week. The paternal grandmother hosted the mother and B. H.-W. at her home for a week at Thanksgiving, the month after the baby was born. During that week, the father fed B. H.-W. and changed his diaper, including during the night.

A few weeks later, the Department removed B. H.-W. from his mother’s care because the mother, who was a minor in the Department’s custody, had disrupted her placement and was unable to care for the baby independently. The father visited frequently with B. H.-W. while he was in foster care. The father and the paternal grandmother also contacted the Department many times at various stages during the case and attended court dates. Based on this evidence, the juvenile court found that the father did not abandon his opportunity interest to develop a relationship with B. H.-W. We conclude that the evidence was sufficient to support this finding, and the mother has not shown that the trial court abused its discretion in its ruling. Morris v. Morris, 309 Ga. App. at 389-390 (2).

4. The mother contends the trial court erred in failing to determine whether the father was a fit parent before granting his petition to legitimate. In the hearing, the juvenile court stated that it was granting the father’s petition to legitimate “using the parental fitness test.” Thus, to the extent the mother contends that the trial court failed to make this determination, such argument is not supported by the record. See also Curtice v. Harwell, 313 Ga. App. 263, 264 (1) (721 SE2d 200) (2011) (Even though the trial court made no express determination that either parent was a fit parent, such determination was implicit in the court’s custody award.). Moreover, as the mother concedes, parental fitness is a low threshold, and a parent is not unfit simply because his or her child might have better financial, educational, or moral advantages elsewhere. See Harris v. Snelgrove, 290 Ga. 181, 182 (2) (718 SE2d 300) (2011) (The focus of a determination of fitness “must be the parent’s ability to provide for the child in a manner sufficient to preclude the need for an entity of the government to intervene and separate the child from the parent[.]”) (citation omitted); Russell J. Davis, 8 Ga. Jur. Family Law § 8:28 (updated December 2014) (“The fact that a child might have better financial, educational, or moral advantages elsewhere is ... insufficient for a finding that a parent is unfit.”) (footnote omitted). We discern no error.

5. The mother contends the trial court erred in failing to apply the best interest standard when it dismissed the guardianship petition and awarded custody to the father. This is incorrect. Under Georgia law, because the interest of a father to enjoy the benefits of custody is protected by due process of law, provided that he has not abandoned his opportunity interest, once the juvenile court determined that the father had not abandoned his opportunity interest, the court was not required to apply the best interest of the child standard in disposing of the third-party petition for guardianship of his child. See In re Baby Girl Eason, 257 Ga. 292, 296-297 (1) (358 SE2d 459) (1987) (“[A] fit biological father who pursues his interest in order to obtain full custody of his child must be allowed to prevail over strangers to the child who seek to adopt.”); Doe v. Chambers, 188 Ga. App. 879, 880 (1) (374 SE2d 758) (1988) (In circumstances where the father “has not abandoned his opportunity interest, the standard which must be used to determine his right to legitimate the child is his fitness to have custody of the child[,]” and the trial court does not apply the best interests of the child standard.) (citation and punctuation omitted). This claim of error lacks merit.

Decided April 23, 2015.

Karimah Boston, for appellant.

Fenwick Thompson & Associates, Melanie D. Fenwick Thompson, for appellee.

Judgment affirmed.

Dillard and McFadden, JJ., concur.

       In this claim of error, the mother also contends that the juvenile court erred in omitting findings of fact and conclusions of law on which the decision was based. The mother failed to support this argument with any citation to relevant legal authority, however, and therefore this argument is deemed abandoned. See Court of Appeals Rule 25 (c) (“Any enumeration of error which is not supported in the brief by citation of authority or argument may be deemed abandoned.”); Dixon v. MARTA, 242 Ga. App. 262, 266 (4) (529 SE2d 398) (2000) (legal argument requires the application of the appropriate law to the relevant facts).

        In re Baby Girl Eason remains binding precedent despite the adoption in 1996 of OCGA § 19-7-1 (b.l), which concerns custody disputes between legal parents and certain third parties, including prospective adoptive parents. See Ga. L. 1996, p. 412; Clark v. Wade, 273 Ga. 587, 589-593 (II) (544 SE2d 99) (2001).


text:
    A15A0749.
    IN THE INTEREST OF D. H., a child.
    (772 SE2d 70)
   ELLINGTON, Presiding Judge.

In 2012, the Juvenile Court of Lamar County adjudicated 13-year-old D. H. delinquent after finding that he committed acts which, if committed by an adult, would have constituted aggravated child molestation, OCGA § 16-6-4, a Class A designated felony act. The juvenile court ordered that D. H. be placed on probation for twenty-four months, with the first six months to be served on house arrest. In 2013, the juvenile court again adjudicated D. H. delinquent, after finding that he violated the terms of his probation. On July 9, 2013, the juvenile court ordered that D. H. be “committed to the custody of the Department of Juvenile Justice for an initial... period of 5 years,” that he “initially be confined in Youth Development Center for a period of 60 months, after which period [he] shall be placed under the intensive supervision for a period of 60 months.”

Over a year later, on July 29,2014, D. H. filed a motion for various kinds of relief from the commitment order. The State filed a motion to dismiss the motion, and the juvenile court granted the motion to dismiss D. H.’s motion. D. H. appeals, and, for the reasons explained below, we affirm.

1. InD. H.’s motion, he moved for modification of the July 9,2013 commitment order, averring that, while he was in restrictive custody, he had been repeatedly bullied and seriously injured and that he feared further maltreatment by other juveniles at the facility. He argued that these repeated injuries “do not seem to constitute the kind of rehabilitation set forth in the Commitment Order dated July 9th, 2013[,]” and warranted a modification of the commitment order.

In addition, D. H. argued that newly discovered evidence cast doubt on the underlying delinquency adjudication which was based on allegations that D. H. committed an alleged act of aggravated child molestation on June 7, 2012. D. H. averred that the fourteen-year-old victim had made very similar complaints against two other alleged perpetrators within the space of three years of her outcry concerning D. H. Based on this “newly discovered evidence,” he argued that the adjudications of delinquency be set aside pursuant to OCGA § 15-11-32 (2014).

In its motion to dismiss D. H.’s motion, the State argued that D. H., who has been transferred to Department of Juvenile Justice custody, was not authorized to file a motion for modification pursuant to OCGA § 15-11-32 (2014). Furthermore, the State argues, OCGA § 15-11-602 (2014) “precisely addresses defendant’s issue of release, modification, or termination and is the controlling statute that applies.” The order granting the State’s motion to dismiss did not explain the basis for the ruling.

OCGA §§ 15-11-32 (2014) and 15-11-602 (2014) are part of Georgia’s new Juvenile Code, OCGA § 15-11-1 et seq. (2014). This comprehensive reform legislation provides:

This Act shall become effective on January 1, 2014, and shall apply to all offenses which occur and juvenile proceedings commenced on and after such date. Any offense occurring before January 1,2014, shall be governed by the statute in effect at the time of such offense____The enactment of this Act shall not affect any prosecutions for acts occurring before January 1, 2014, and shall not act as an abatement of any such prosecutions.

Ga. L. 2013, pp. 294, 514, § 5-1 (Act 127). Because these juvenile proceedings were commenced before the effective date of the new Juvenile Code, the provisions of the new Code are generally not applicable to these proceedings. Regardless of the date of the commencement of the proceedings, however, the provisions of the new Juvenile Code are applicable to a motion to modify an order committing a child to DJJ and to a motion to set aside an order of the court on the basis of newly discovered evidence. See OCGA § 15-11-32 (g) (2014) (“This Code section is intended to be retroactive and shall apply to any child who is under the jurisdiction of the court at the time of a hearing, regardless of the date of the original delinquency order.”).

(a) As noted above, D. H. moved to modify the July 9, 2013 order that he be confined in Youth Development Center for a period of 60 months, on the basis that the purpose of rehabilitation was not being served by such confinement. OCGA § 15-11-32 (2014) provides generally that “[a]n order of the court may ... be changed, modified, or vacated on the ground that changed circumstances so require in the best interests of a child,” except that, after a child has been transferred to DJJ custody, “an order committing [the] child to DJJ may only be modified . . . upon motion of DJJ[,]” except as otherwise providedin OCGA § 15-11-602 (2014). OCGA § 15-11-32 (b), (c) (2014). Because the record shows that the juvenile court had transferred custody of D. H. to DJJ and that DJJ did not move to modify the commitment order, the juvenile court was authorized to modify that order only pursuant to OCGA § 15-11-602 (2014).

Where a child is committed for a class A designated felony act or a class B designated felony act, as in this case, OCGA § 15-11-602 (f) (2) (A) (2014) provides, in pertinent part, that such a child shall be discharged from placement in a residential facility prior to the period of time provided in the court’s order only “when a motion to be discharged from placement in a secure residential facility or non-secure residential facility is granted by the court.” Notwithstanding OCGA § 15-11-32 (2014), “any party may file a motion with the court seeking a child’s release from placement in a . . . residential facility, an order modifying the court’s order requiring placement in a . . . residential facility, or termination of an order of disposition for a child committed for a class A designated felony act or class B designated felony act.” (Emphasis supplied.) OCGA § 15-11-602 (f) (2) (A) (2014). All such motions, however, must “be accompanied by a written recommendation for release, modification, or termination from a child’s DJJ counselor or placement supervisor, filed in the court that committed such child to D JJ, and served on the prosecuting attorney for such jurisdiction.” OCGA § 15-11-602 (f) (2) (B) (2014). Because the record shows that D. H.’s motion was not accompanied by a written recommendation from his DJJ counselor or placement supervisor, OCGA §§ 15-11-32 (2014) and 15-11-602 (2014) barred the juvenile court from modifying the commitment order as D. H. requested. The juvenile court did not err in dismissing his motion to modify the commitment order on the basis that the purpose of rehabilitation was not being served.

(b) As noted above, D. H. argued that newly discovered evidence requires that the underlying adjudication of delinquency be set aside. See OCGA § 15-11-32 (a) (3) (2014) (“An order of the court shall be set aside if... [n]ewly discovered evidence so requires.”). Contrary to the State’s assertion, because such a motion is not a motion to modify a commitment order, OCGA § 15-11-32 (c) (2014) does not apply and the motion was not subject to dismissal on the basis that it was not filed by DJJ. D. H. has not identified any authority, however, that evidence that is discovered after a juvenile court has adjudicated a child delinquent will require that the adjudication be set aside where the evidence would serve only to attack the credibility of a witness, in this case, the victim. See Mills v. State, 251 Ga. App. 39, 43-44 (5) (553 SE2d 353) (2001) (In seeking a new trial based on newly discovered evidence, the movant must show, inter alia, “that the new evidence does not operate solely to impeach the credibility of a witness.” Evidence that contradicted the victim’s testimony that she had not had sexual intercourse with a man other than the defendant did not go to the issue of whether the defendant was guilty of child molestation and aggravated child molestation as charged in the indictment.) (punctuation and footnote omitted). Moreover, the record shows that at the adjudicatory hearing on August 14, 2012, D. H. admitted the allegations of aggravated child molestation in the State’s petition and that the juvenile court adjudicated him delinquent on that basis. Based on the foregoing, we conclude that the trial court did not err in dismissing D. H.’s motion to set aside the adjudications.

(c) D. H. contends that he is entitled to a new adjudicatory hearing because there is no transcript from hearings held on August 1, August 14, and November 7, 2012. He failed to include any statement of the method by which this claim of error was preserved for appellate review, as required. See Court of Appeals Rule 25 (a). It appears from the record that he did not request a new hearing on this basis from the juvenile court and obtain a ruling on such request. Moreover, as noted above, the adjudication of delinquency on August 14,2012, was based onD. H.’s admission of the State’s allegations. On November 7, 2012, the juvenile court entered its disposition order. D. H. did not seek to withdraw his admissions between adjudication and entry of disposition and did not file a timely notice of appeal from the disposition, which is a final judgment from which a direct appeal lies if taken within 30 days. See OCGA § 5-6-38 (a) (Anotice of appeal must be filed “within 30 days after entry of the appealable decision or judgment complained of.”); former OCGA § 15-11-3 (2012) (“In all cases of final judgments of a juvenile court judge, appeals shall be taken to the Court of Appeals or the Supreme Court in the same manner as appeals from the superior court.”); M. K. H. v. State, 132 Ga. App. 143, 144 (207 SE2d 645) (1974) (Entry of a finding of delinquency together with an order of disposition in juvenile court is a final order for purposes of appeal, from which a direct appeal lies.). D. H. waived his right to appeal from the underlying adjudication of delinquency, and he has shown no other prejudice from the absence of the missing transcripts. This claim of error presents no basis for reversing the judgment and ordering a new hearing.

2. D. H. contends that he received ineffective assistance of counsel at the time he admitted the allegations of the act of aggravated child molestation, following the adjudication of delinquency, in connection with the July 9, 2013 commitment order, and in connection with an April 16, 2014 order that revoked an earlier order permitting conditional release. D. H. failed to present these claims to the juvenile court in his July 29, 2014 motion for relief, although he has been represented by his current counsel since at least May 1, 2013. “To preserve the issue of ineffective assistance of previous counsel, new counsel must raise the issue at the earliest practicable opportunity of post-conviction review or the issue is waived.” (Citations omitted.) Ruiz v. State, 286 Ga. 146, 148 (2) (b) (686 SE2d 253) (2009). Because D. H. raised these claims of ineffective assistance of counsel for the first time on appeal and failed to present them to the juvenile court for consideration of relevant evidence and a ruling, we will not consider them on the merits. Jones v. State, 294 Ga. 501, 503 (2) (755 SE2d 131) (2014); Boykins v. State, 298 Ga. App. 654, 656 (3) (680 SE2d 665) (2009).

Decided April 28, 2015.

Clare L. Nolan, for appellant.

Richard G. Milam, District Attorney, Anita R. Reynolds, Assistant District Attorney, for appellee.

Judgment affirmed.

Dillard and McFadden, JJ., concur.

       See former OCGA § 15-11-28 (b) (2) (A) (v) (2012) (The superior court shall have exclusive original jurisdiction over the trial of any child 13 to 17 years of age who is alleged to have committed aggravated child molestation.); (b) (2) (C) (The district attorney may decline to prosecute aggravated child molestation in the superior court, in which case the district attorney shall transfer the case to the juvenile court for adjudication and the case shall be subject to the designated felony act provisions of former OCGA § 15-11-63 (2012).); former OCGA § 15-11-63 (a) (2) (D) (2012) (“ ‘Designated felony act’ means an act which... [c] onstitutes an offense within the exclusive jurisdiction of the superior court... which is transferred by the superior court to the juvenile court for adjudication ... or which is transferred by the district attorney to the juvenile court for adjudication^]”). See also OCGA §§ 15-11-560 (b) (6) (2014) (The superior court shall have exclusive original jurisdiction over the trial of any child 13 to 17 years of age who is alleged to have committed aggravated child molestation.); (d) (The district attorney may decline to prosecute aggravated child molestation in the superior court, in which case the district attorney shall transfer the case to the juvenile court for adjudication and the case shall be subject to the class A designated felony act provisions of OCGA § 15-11-602 (2014).); 15-11-602 (a) (When a child is adjudicated to have committed a class A designated felony act, the court may order any authorized disposition, including placement in restrictive custody, subject to specified restrictions, as is best suited to provide for the rehabilitation of such child and the protection of the community.); (b) (considerations for placement in restrictive custody); (c) (requirements for orders for placement in restrictive custody for a child adjudicated for a class A designated felony act).

       Despite the terms of the order of confinement, the record shows that D. H. spent much of the following year on conditional release.

       See OCGA § 15-11-16 (a) (2014) (juvenile proceedings commence, inter alia, by transfer of a case from another court or by the filing of a delinquency petition or complaint); former OCGA § 15-11-35 (a) (2012) (accord); former OCGA § 15-11-11 (1) (1999) (accord); State v. Whetstone, 264 Ga. 135, 136 (441 SE2d 842) (1994) (filing of juvenile complaint form is sufficient to commence informal proceedings against juvenile, although it is not sufficient to vest exclusive jurisdiction over juvenile in juvenile court where the juvenile court would have concurrent jurisdiction with the superior court).