author: McMlLLIAN, Judge.

text:
    A17A1170.
    GARNER v. THE STATE.
    (805 SE2d 464)
   McMlLLIAN, Judge.

Ronta Gamer appeals the denial of his motion for new trial, as amended, after a jury convicted him of aggravated assault and possession of a firearm during the commission of a crime. We affirm for the reasons set forth below.

Viewed in the light most favorable to the verdict, the evidence at trial showed that on the evening of October 30, 2013, Garner and Shamarcus Grimes were at an apartment complex in Hall County when they encountered Quavis Carruth, Trevor Martin, and Darius Wilkins. Both Garner and Grimes drew their guns, with Garner pointing his gun at Martin and Grimes pointing his gun at Carruth. Carruth said that during this encounter, he crossed his arms and looked Grimes in the eye to hide the fact that he was afraid. Garner and Grimes let the men leave after Garner, who appeared angry, spoke with Martin. Later, Garner and Grimes began following the other men through the apartment complex. At one point, Garner called Carruth over and asked him about the way he had been looking at Grimes. During this second conversation, Grimes told Garner, “If you don’t shoot [Carruth], I’ll shoot you.” Garner then shot Carruth.

Based on this incident, Garner and Grimes were indicted jointly on a charge of aggravated assault, and Garner was indicted individually on one count of possession of a firearm during the commission of a crime. Garner later filed a motion to sever his trial from Grimes’s, and the trial court granted the motion. The jury convicted Garner on both counts.

1. Garner argues that the trial court denied his Sixth and Fourteenth Amendment rights by requiring him to wear a shock belt during the course of trial. Although the shock belt was attached to Garner’s ankle underneath his pants and not visible to the jury, he asserts that the stress of wearing the belt inhibited his ability to assist in his own defense.

Before the jury entered the courtroom, Garner’s counsel objected to the use of the shock belt, noting that he had first learned of this security measure on the morning of trial and that he had been given no reason for its use. The attorney said he thought the device made his client “extremely nervous” and argued that it interfered with the administration of a fair jury trial. Although the trial judge stated that he did not usually interfere with the sheriff’s chosen security measures, the judge nevertheless questioned the officer assigned to oversee security in his courtroom about the use of the device and its effect on Garner, and he allowed Garner’s counsel to do the same. Based on this exchange, the trial judge overruled Garner’s objection, stating that he did not find any evidence that the device would prevent Garner from being able to fully and actively participate in the trial.

Although it is well settled that a defendant is entitled to a trial free of partiality which the presence of excessive security measures may create, it is also as well established that the use of extraordinary security measures to prevent dangerous or disruptive behavior which threatens the conduct of a fair and safe trial is within the discretion of the trial court.

Young v. State, 269 Ga. 478, 479 (2) (499 SE2d 60) (1998), overruled on other grounds by Whitehead v. State, 287 Ga. 242 (695 SE2d 255) (2010). See also Weldon v. State, 297 Ga. 537, 540-41 (775 SE2d 522) (2015); Nance v. State, 280 Ga. 125, 127 (3) (623 SE2d 470) (2005); Campbell v. State, 333 Ga. App. 829, 831 (2) (777 SE2d 507) (2015). Moreover,

[wjhile the use of a properly concealed shock device will never be so inherently prejudicial as to pose an unacceptable threat to the defendant’s right to a fair trial, the analysis should not end there if the defendant claims that the shock device also violated his Sixth Amendment right to counsel or his due-process-based right to be present at trial.

(Citation and punctuation omitted.) Campbell, 333 Ga. App. at 832 (2). In that situation, the defendant must show that the use of the shock device prejudiced his due process rights or interfered with his right to counsel. Weldon, 297 Ga. at 541; Campbell, 333 Ga. App. at 833 (2).

Pretermitting whether the trial court erred in failing to articulate the reasons supporting the use of the shock belt, neither Garner nor his counsel raised any complaints during the course of the trial that the shock belt was interfering with Garner’s ability to assist in his own defense, other than counsel’s initial objection that he thought the shock belt made Garner nervous. “Failure to raise the issue [at trial] deprives the trial court of the opportunity to take appropriate remedial action and waives appellate review of any alleged impropriety.” (Citations and punctuation omitted.) Weldon, 297 Ga. at 541. We also note that Garner did not testify at the hearing on his motion for new trial, and there was no other evidence presented at that hearing as to how the shock belt affected him. Accordingly, because the record is devoid of any evidence of harm or prejudice to Garner from the use of the shock belt, he cannot establish that he was deprived of a fair trial on this ground. Id. In addition, based on the facts and circumstances of this case, including evidence that Garner had threatened the victim and his children, we find no abuse of discretion in the trial court’s overruling of Garner’s objection to the use of the shock device.

2. Garner similarly asserts that the trial court violated his Sixth Amendment right to a fair trial and Fourteenth Amendment right to due process by allowing an extra metal detector to be placed outside the entrance to Garner’s courtroom in view of the jury As with the shock belt, the use of this security measure was within the trial court’s discretion. Young, 269 Ga. at 479 (2). However, Garner asserts that the trial court failed to exercise discretion, and instead, he argues, the court merely deferred to the sheriff’s office, which in turn deferred to the prosecution, in placing the extra metal detector outside the courtroom.

On the first day of trial, before the jury panel entered the courtroom, Garner’s attorney raised the issue of the additional metal detector placed outside the courtroom for Garner’s trial and noted none of the other three courtrooms had such security. He objected to the presence of these devices in sight of the jury. The trial judge overruled the objection but offered to instruct the jurors prior to the jury selection process that his courtroom was the only one in operation that week, which would have suggested a neutral explanation for the absence of metal detectors outside the other courtrooms. Garner’s attorney declined the offer.

Subsequently, the jury panel was escorted around the metal detector when they entered the courtroom for the first time. Once the jury was selected, however, they entered and left the courtroom through a separate, private entrance out of sight of the metal detector, and the doors to the courtroom were closed during trial, blocking the jurors’ view of the device, unless someone entered or exited the courtroom.

As with the use of the shock belt, Garner has failed to demonstrate that the use of the extra metal detector resulted in any prejudice. Although Garner contends that the use of a visible metal detector outside the courtroom was inherently prejudicial to him, and thus he does not need to show actual harm, we disagree. The United States Supreme Court has held that additional security measures, other than visible personal restraints, are not inherently prejudicial due to “the wider range of inferences that a juror might reasonably draw” from their use. Holbrook v. Flynn, 475 U.S. 560, 569 (106 SCt 1340, 89 LE2d 525) (1986). That case involved the presence of additional police officers in the courtroom, and the Court explained,

While shackling and prison clothes are unmistakable indications of the need to separate a defendant from the community at large, the presence of guards at a defendant’s trial need not be interpreted as a sign that he is particularly dangerous or culpable. Jurors may just as easily believe that the officers are there to guard against disruptions emanating from outside the courtroom or to ensure that tense courtroom exchanges do not erupt into violence. Indeed, it is entirely possible that jurors will not infer anything at all from the presence of the guards.

Holbrook, 475 U.S. at 569.

Although we could find no case in Georgia specifically addressing the use of extra metal detectors, other jurisdictions have found that the reasoning in Holbrook applies equally to such devices because, unlike personal restraints, they do not indicate that the defendant himself presents any particular danger. See, e.g., Smith v. State, 7 So3d 473, 493 (Fla. 2009) (“This type of security measure is a part of our daily experience and cannot be deemed prejudicial.”); People v. Jenkins, 22 Cal4th 900, 996 (13) (997 P2d 1044) (2000) (“[T]he use of a metal detector outside a courtroom, like the use of additional security forces within the courtroom, is not a measure that is inherently prejudicial.”); Bruce v. State, 318 Md. 706, 718 (I) (569 A2d 1254) (1990) (“Security measures outside the courtroom not in close proximity to the accused [including metal detectors outside courtroom door] are far less likely to have a prejudicial effect than security measures within the courtroom and/or surrounding the person on trial[.]”); State v. Aguilar, 352 NW2d 395, 396 (Minn. 1984) (use of metal detectors and searches of people entering the courtroom not prejudicial, even where defense counsel not consulted regarding these measures, because the fact that everyone was searched minimized the risk that jurors would draw adverse inferences against the defendant). We find the reasoning in these cases persuasive and conclude that when asserting that a security measure outside the courtroom violates his constitutional right to a fair trial, the defendant must show prejudice or harm resulting from the security measure. See Weldon, 297 Ga. at 541.

Therefore, because Garner has failed to show that the use of the extra metal detector prejudiced his right to a fair trial, we find no basis for reversal on this ground. Likewise, we find no abuse of discretion by the trial court in overruling Garner’s objection to the extra metal detector.

3. Garner also asserts that the trial court abused its discretion in allowing Carruth to give hearsay testimony when he stated that Grimes told Garner, “If you don’t shoot him, I’ll shoot you.” Garner contends that a previously granted motion in limine and the statutory hearsay exclusions should have kept the jury from hearing this statement. We review the trial court’s ruling on the admission of evidence for an abuse of discretion. Hafeez v. State, 339 Ga. App. 467 (793 SE2d 632) (2016).

Garner filed a pretrial motion in limine to exclude any statements made by Grimes to investigators, and his counsel explained at the subsequent motion hearing that he filed the motion “in reference to [Grimes’s] custodial interrogation.” Although the trial court granted that motion, Carruth’s alleged hearsay testimony did not address a custodial statement by Grimes but instead concerned a statement Grimes made during the course of the crime. Accordingly, Carruth’s testimony was not subject to the trial court’s ruling on the motion in limine.

At trial, Garner objected to this testimony on hearsay grounds. Under OCGA § 24-8-801 (c), “ ‘[h]earsay’ means a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Here, Grimes’s statement was not offered for the truth of the matter asserted, as it was not offered to show that Grimes intended to shoot Garner if Garner did not shoot Carruth. Rather, the testimony was relevant to show the effect of Grimes’s statement on Garner and his possible motive for shooting Carruth. See Gates v. State, 298 Ga. 324, 326 (2) (781 SE2d 772) (2016). Thus, it cannot be considered hearsay, and we find no abuse of discretion.

4. Garner next asserts that the trial court erred in failing to merge his sentences for aggravated assault and possession of a firearm during the commission of that crime. However, it is well settled that the crime of unlawful possession of a firearm during the commission of a crime “is a crime distinct from the predicate felony.” Scudder v. State, 298 Ga. 438, 441 (6) (782 SE2d 638) (2016). See also, Clark v. State, 279 Ga. 243, 248 (8) (611 SE2d 38) (2005); OCGA § 16-11-106 (b). “The two crimes do not merge because, as we have noted in other cases, the legislature intended to impose additional punishment against a person who uses a firearm during the commission of certain crimes, including aggravated assault.” Turner v. State, 289 Ga. App. 103, 104 (1) (656 SE2d 235) (2008). Thus, the two convictions in this case were not subject to merger. Scudder, 298 Ga. at 441 (6); Turner, 289 Ga. App. at 104 (1).

Decided September 15, 2017

H. Bradford Morris, Jr., Matthew G. Leipold, for appellant.

Lee Darragh, District Attorney, Jennifer C. Bagwell, Assistant District Attorney, for appellee.

Judgment affirmed.

Barnes, P. J., and Mercier, J., concur.

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

       The jury also acquitted Garner of attempted armed robbery, aggravated assault, false imprisonment (two counts), and cruelty to children in the third degree, arising out of an incident that occurred earlier on the evening of October 30, 2013.

       The only witness at the motion hearing was a lieutenant from the sheriff’s office who was in charge of courtroom security for Garner’s trial. He testified the sheriff’s office decided to use the shock belt and an extra metal detector after the State asked for increased security because the case involved a gang-related matter and threats had been made against witnesses and their family members.

       We note that the trial court had heard proffers of this evidence prior to trial, and thus prior to ruling on Garner’s objection, during a hearing on a motion in limine.


source: Caselaw Access Project

author: Mercier, Judge.

license: Public Domain

text:
    A17A0761.
    HARRIS v. THE STATE.
    (805 SE2d 281)
   Mercier, Judge.

In a bifurcated jury trial, Donald Harris, Jr. was found guilty of aggravated assault and possession of a firearm by a convicted felon. Following the trial court’s denial of his motion for a new trial, and having been granted an out-of-time appeal by the trial court, Harris appeals the judgment of conviction entered against him. He contends on appeal that the evidence was insufficient to support the jury’s verdicts, that the trial court erred in failing to charge the jury on the lesser included offense of reckless conduct, and that the trial court erred in sentencing him as a recidivist pursuant to OCGA § 17-10-7 (a). For the reasons that follow, we reverse Harris’s conviction for aggravated assault and affirm his conviction for possession of a firearm by a convicted felon.

1. When examining the sufficiency of the evidence to support a criminal conviction, we view the evidence in the light most favorable to the jury’s verdict, and do not weigh the evidence or determine witness credibility; we determine whether a rational trier of fact could have found beyond a reasonable doubt that the defendant was guilty of the charged offense. Short v. State, 234 Ga. App. 633, 634 (1) (507 SE2d 514) (1998). So viewed, the evidence at trial demonstrated the following.

The criminal charges against Harris in this case arose from an incident that occurred on May 19, 2015. Harris’s cousin, Keyellow Johnson, testified that prior to that day, Harris was dating Johnson’s friend April Kitchens. Kitchens accused Harris of molesting her daughter. Kitchens requested that Johnson meet her in a nearby town, where Kitchens was going to visit her child’s father to tell him about the alleged molestation. Johnson did so, and when Johnson arrived home that day, several of Johnson’s family members were standing in Johnson’s mother’s yard (which was adjacent to her own home). This group included, among others, Harris, Johnson’s ten-year-old son, Johnson’s seven-year-old nephew, and Harris’s brother and sister, Edward Harris and Carrie Fann. As Johnson approached her house, Edward Harris rushed to her car and prevented her from exiting, telling her not to get out of the car. Harris was behind Edward Harris. Johnson testified that Harris was “fussing,” angry, and using profanity. Harris tried to unlock the doors and enter Johnson’s car, and Edward Harris remained at the driver side window preventing Johnson from getting out of the car.

Shortly thereafter, Johnson heard someone screaming. Edward Harris then turned around, and when he did so, Johnson could see Harris “pointing a rifle” at Johnson’s window and Fann (Harris’s sister) “screaming because [she was] trying to get it from him.” When Edward Harris turned around, “they all rush[ed] [Harris].” Johnson was afraid because Harris was angry and she thought that he might use the gun against her. She phoned the police, and Harris ran away

Johnson’s son testified at trial that Harris was at the driver’s side door of Johnson’s car, behind Edward Harris, and Edward Harris was “trying to block.” Harris had a gun and pointed the gun at Johnson in her car, and Edward Harris was trying to take the gun away from Harris. Johnson’s son was frightened and ran to the porch when this happened.

Fann, Harris’s sister and Johnson’s cousin, testified at trial that on the day in question, Fann met her brother Edward Harris at Johnson’s mother’s house, and Fann and Edward Harris were planning to fire a rifle and were “just hanging out.” Harris was upset about the accusation that he had molested Kitchens’s daughter. When Johnson pulled into her driveway, Harris approached Johnson’s car, and Edward Harris gave the rifle to Fann and went to Johnson’s car “to calm [Harris].”

When asked if someone took the rifle from her, Fann testified that Harris approached her and the two “had a scuffle.” When asked, she confirmed that Harris was fighting with her for the gun. Although Fann wasn’t “sure if he actually took it, . . . when [she] felt that [she] was losing,” she called for Edward Harris. When asked why she felt that she had to prevent Harris from getting the gun, Fann said, “[h]e was upset. Never know what may happen.” The prosecutor asked, “why were you upset he was going to do something with the gun with regard to . . . Johnson? What was the problem? What led you to believe that if he got that gun he might do some harm to somebody?” Fann responded, “[h]e went over there into [an] altercation with [Johnson].”

Edward Harris testified as follows. On May 19, 2015, Harris was angry with Johnson and Kitchens regarding the molestation accusation. When Johnson came home, Edward Harris went out to her car because Harris was approaching it, and Edward Harris wanted to prevent an altercation between Harris and Johnson. Edward Harris gave Fann his gun and ran over to Johnson’s vehicle, where Harris was yelling at Johnson. Edward Harris then heard Fann call for help, saw that she was struggling with Harris, and went to help her.

We disagree with Harris that “[t]here was no competent evidence introduced at trial that [he] intentionally pointed the gun at [Johnson], or that [he] was ever completely in possession of the gun.” The evidence at trial included Johnson’s testimony and that of her son describing Harris pointing the gun at Johnson’s car window, Johnson’s testimony describing Harris’s angry behavior, the testimony from other witnesses describing Harris’s anger, and testimony from Fann describing her fear about what Harris would do with the rifle. Thus, the evidence was sufficient for a reasonable jury to conclude that Harris took possession of the rifle and intentionally pointed it at Johnson, thereby assaulting her with the rifle. See Short, supra at 634 (1); OCGA § 16-5-21 (a) (2).

Harris’s argument relies on conflicting evidence presented at trial regarding the details of the incident. He argues that, among other things, testimony from Edward Harris and from Fann demonstrates that Harris did not point the gun at Johnson. However, this Court is not tasked with weighing evidence or determining witness credibility Short, supra; Westbrooks v. State, 309 Ga. App. 398, 399 (1) (710 SE2d 594) (2011). The evidence at trial was sufficient to support Harris’s convictions.

2. Harris contends that the trial court erred in failing to charge the jury on the lesser included offense of reckless conduct as an alternative to aggravated assault, as he requested. We are constrained to agree.

OCGA § 16-5-21 pertinently provides that “(a) A per son commits the offense of aggravated assault when he or she assaults ... (2) [w]ith a deadly weapon. . . .” The trial court instructed the jury as to both types of assault that could support an aggravated assault charge (attempting to commit a violent injury to another or committing an act that places another in reasonable apprehension of immediately receiving a violent injury). See OCGA § 16-5-20 (a). The indictment alleged in one count that Harris made an assault upon the person of Johnson with a rifle by pointing it at her, without specifying which of the two types of assault he committed. Harris contends that “the jury could have been allowed to consider the possibility that in fighting over the gun, [he] negligently pointed the gun at [Johnson].” At trial he requested that the jury be instructed on the lesser included offense of reckless conduct pursuant to OCGA § 16-5-60 (b), defined as

caus[ing] bodily harm to or endangering] the bodily safety of another person by consciously disregarding a substantial and unjustifiable risk that [one’s] act or omission will cause harm or endanger the safety of the other person and the disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation. . . .

“[A]ny evidence that the defendant is guilty of the lesser included offense . . . mandates giving [a] requested written charge” on the lesser included offense. Edwards v. State, 264 Ga. 131, 132 (442 SE2d 444) (1994) (punctuation omitted); Shaw v. State, 238 Ga. App. 757, 758 (1) (519 SE2d 486) (1999) (physical precedent only) (“Slight evidence is sufficient to justify charging on a lesser included offense.”).

It was undisputed at trial that Harris angrily confronted Johnson, that Edward Harris tried to block Harris’s access to Johnson, that Harris tried to wrestle the rifle away from Fann during the confrontation, and that Johnson was afraid that Harris would use the gun against her. “If the victim reasonably fears an immediate violent injury from a firearm, the aggravated assault has occurred.” Shaw, supra at 759 (1); see Patterson v. State, 332 Ga. App. 221, 228-229 (2) (b) (770 SE2d 62) (2015), aff'd, 299 Ga. 491 (789 SE2d 175) (2016) (“[I]f [the victim] reasonably feared an immediate violent injury the crime of aggravated assault occurred, not reckless conduct.”). Therefore, Harris was not entitled to a reckless conduct charge as a lesser included offense of aggravated assault with a deadly weapon based on OCGA § 16-5-20 (a) (2) for committing an act which placed another in reasonable apprehension of immediately receiving a violent injury See Patterson, supra; Shaw, supra at 758-759 (1).

However, we find that Harris was entitled to a reckless conduct charge as a lesser included offense of aggravated assault with a deadly weapon based on OCGA § 16-5-20 (a) (1) for attempting to commit a violent injury to the person of another. Based on the testimony regarding the struggle between Harris, Edward Harris and Fann, the jury could have found that Harris pointed the gun at Johnson accidentally, and therefore endangered her by consciously disregarding a substantial and unjustifiable risk that his act or omission would cause harm to or endanger the safety of J ohnson, and the disregard constituted a gross deviation from the standard of care which a reasonable person would have exercised in the situation. See OCGA § 16-5-60 (b). Though this evidence of reckless conduct was slight, it was sufficient to mandate the charge on the lesser included offense. See Edwards, supra; Shaw, supra at 758 (1).

A charging error is presumed to be prejudicial and harmful unless the record shows that it was harmless. Foskey v. Foskey, 257 Ga. 736, 737 (2) (363 SE2d 547) (1988); Shaw, supra at 759 (1). Because the indictment in this case did not specify the type of assault underlying the aggravated assault charge, the jury received instructions on both types of assault, and there was some evidence in the record to support a conviction for aggravated assault based on either type of underlying assault (attempting to commit a violent injury to the person of another pursuant to OCGA § 16-5-20 (a) (1) or committing an act that places another in reasonable apprehension of immediately receiving a violent injury pursuant to OCGA § 16-5-20 (a) (2)), nothing in the record demonstrates that the jury convicted Harris of aggravated assault for putting Johnson in reasonable apprehension of immediately receiving a violent injury, rather than for attempting to commit a violent injury to her, with the rifle. Therefore, we cannot say that the trial court’s failure to charge the jury on the lesser included offense of reckless conduct was harmless where the charge was warranted with regard to the offense of aggravated assault insofar as it was based on an underlying assault as defined in OCGA § 16-5-20 (a) (1). See Foskey, supra; Shaw, supra. Therefore, we must reverse for a new trial Harris’s conviction for aggravated assault.

3. Finally, Harris contends that the trial court erred in sentencing him as a recidivist pursuant to OCGA § 17-10-7 (a). He argues that “[his] one conviction led to his probation being revoked, being given the maximum sentence to be served consecutively on the current case, and being given an additional five years of probation on the possession of a firearm by a convicted felon charge.”

Decided September 18, 2017.

Tobe C. Karrh, for appellant.

S. Hayward Altman, District Attorney, Tony A. May, Assistant District Attorney, for appellee.

Harris’s arguments relate mostly to his sentence on the aggravated assault conviction. First, he essentially asks this Court to ignore the ruling in Hillman v. Johnson, 297 Ga. 609 (774 SE2d 615) (2015) and find that the evidence of his prior felony conviction was “used up” in proving that he committed the offense of possession of a firearm by a convicted felon and could not be used in aggravation of his punishment on his aggravated assault conviction. Further, he argues that “there was no evidence in this case that the Court even considered” that the aggravated assault sentence could be probated. These arguments are rendered moot by our holding in Division 2. However, we note that even if this Court were inclined to do so, we are not permitted to ignore precedent set by the Supreme Court of Georgia (see Ga. Const, of 1983, Art. VI, Sec. VI, Par. VI), and the transcript contradicts Harris’s argument regarding the trial court’s consideration of the permissible sentencing options.

Harris also argues that his sentence “should violate the Court’s sense of due process and fundamental fairness.” He does not contend that any portion of his sentence exceeds the statutorily prescribed parameters, and “[t]his [C]ourt is without authority to review sentences within the statutory range.” Trammell v. State, 196 Ga. App. 540, 542 (3) (396 SE2d 286) (1990) (citation and punctuation omitted). Thus, even insofar as this argument pertains to Harris’s sentence on the charge of possession of a firearm by a convicted felon, it presents nothing for our review.

Judgment affirmed in part and reversed in part.

Barnes, P. J., concurs. McMillian, J., concurs fully in Division 1 and concurs in judgment only in Divisions 2 and 3.

       For clarity, Edward Harris will be referred to by his full name so as to distinguish him from Appellant Donald Harris, referred to herein as “Harris.”


author: Self, Judge.

text:
    A17A1004.
    TURNER et al. v. NATIONAL COLLEGIATE STUDENT LOAN TRUST 2007-4.
    (803 SE2d 797)
   Self, Judge.

This appeal arises from a suit on a promissory note and the trial court’s grant of summary judgment in favor of the lender. On appeal, the appellants, Bianca and Wilbur Turner, assert that the trial court erred because (1) the record failed to establish a valid assignment of the note to the appellee, National Collegiate Student Loan Trust 2007-4, and (2) an affidavit from Bianca Turner shows that she was not properly served with the summons and complaint. We cannot reach the merits of these claims, however, because the record before us does not include documents critical to the appeal.

The notice of appeal in this case states that only certain listed items will be included in the record, and that all other documents, which are not identified, should be excluded. This is exactly opposite the manner prescribed for a notice of appeal by OCGA § 5-6-37 (notices of appeal shall include “a designation of those portions of the record to be omitted from the record on appeal”). Consequently, the record before us is missing documents critical to appellate review of the trial court’s grant of summary judgment: the affidavit of Bianca Turner stating where she resided at the time of the allegedly defective service; the return of service for the complaint; and an affidavit from a records custodian regarding the assignment of the loan.

Georgia’s appellate courts have made clear that where the record is incomplete as the result of an appellant’s failure to comply with the requirements of OCGA § 5-6-37, the order of the trial court will be affirmed. An affirmance is required under such circumstances because on appeal the burden is on the appellant, as the party alleging error, to show affirmatively from the record that such error occurred. When the appellant fails to meet that burden, we have no choice but to assume that the judgment complained of is correct and to therefore affirm the same.

(Citations omitted.) Curry v. Miller, 328 Ga. App. 564, 565 (763 SE2d 489) (2014). In accordance with this well established law, we too must assume that the record supports the trial court’s grant of summary judgment in favor of the lender and affirm.

Judgment affirmed.

Dillard, C. J., and Ray, R J., concur.

Decided August 10, 2017

Reconsideration denied September 20, 2017.

Kunle Ogundele, for appellants.

Roosen Varchetti & Olivier, Brannon W. Carson, for appellee.


author: Branch, Judge.

text:
    A17A0760.
    SOLOMON v. THE STATE.
    (805 SE2d 293)
   Branch, Judge.

On appeal from his conviction for burglary, J. D. Solomon, Jr., asserts that the evidence was insufficient to support his conviction and that counsel was therefore ineffective when he failed to move for a directed verdict. We find that the evidence was sufficient to sustain his conviction, but that the trial court erred when it sentenced him under the current rather than the former version of the burglary statute, OCGA § 16-7-1. Although we therefore affirm the jury’s verdict, we vacate Solomon’s conviction and remand for entry of conviction and resentencing under former OCGA § 16-7-1.

“On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, with the defendant no longer enjoying a presumption of innocence.” Reese v. State, 270 Ga. App. 522, 523 (607 SE2d 165) (2004). We neither weigh the evidence nor judge the credibility of witnesses, but determine only whether, after viewing the evidence in the light most favorable to the prosecution, “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979).

So viewed, the record shows that at 11:36 p.m. on September 4, 2011, an officer with the Warner Robins police department received a call that an alarm had been activated at a local church. Dispatch advised that the tripped alarm was located on the door of a storage shed, which the responding officer knew to be located on the western edge of the property The officer and a trainee arrived at the scene two minutes later, parked their patrol car on the street west of the church, cut off the car’s lights, and approached the property from the south on foot. During a check of the space between two classroom trailers on the property, the officer saw Solomon folding up a metal ladder as he stood directly under a window of one of the trailers. The officer also saw a damaged window screen on the ground beside Solomon.

The officer and the trainee drew their weapons and commanded Solomon to get on the ground, where he was apprehended. A search incident to Solomon’s arrest found that he was wearing a single black glove and carrying two wrenches in his back pocket. The back wall of the shed had also been pried away from the building’s frame, and mud and grass were found inside. Fresh boot marks matching the boots Solomon was wearing were also found between the shed and the classroom trailers.

Solomon was charged with two counts of burglary in that he “intentionally, unlawfully and without authority” entered “a building,” the trailer, and another “building,” the shed, “with the intent to commit a theft or felony therein[.]” On the second day of trial, the State nolle prossed the count as to the trailer. The jury charge, closing arguments, and recharge all repeated the question posed by the indictment: that is, whether Solomon had unlawfully entered a “building,” the shed, with the intent to commit theft. A jury found Solomon guilty of one count of burglary as to the shed. The trial court convicted Solomon of “first degree” burglary, however, and sentenced him as a recidivist to 20 years with 15 to serve. Solomon’s motion for new trial was denied.

1. In contesting the sufficiency of the evidence, Solomon concedes that he entered the shed without authority, but asserts that his intent in doing so was only to obtain the ladder in order to enter the classroom trailer, with the result that he cannot be found guilty of burglary as to the shed. We disagree.

Former OCGA § 16-7-1 provided that a person committed burglary when, with “the intent to commit a felony or theft therein,” that person “enters or remains within [1] the dwelling house of another or [2] any building . . . designed for use as the dwelling of another or enters or remains within [3] any other building ... or any part thereof.” (Emphasis supplied.) See, e.g., Floyd v. State, 207 Ga. App. 275, 278 (1) (427 SE2d 605) (1993) (evidence showing entry into garden center was sufficient to sustain conviction for burglary under former version of OCGA § 16-7-1, which defined burglary as including an unlawful entry with intent to commit a theft into not only “the dwelling of another” but also “any other building”) (emphasis omitted).

As our Supreme Court has noted, “OCGA § 16-7-1 [has been] amended to create the gradations of first and second degree burglary The amendment became effective July 1, 2012 [,] and applies only to offenses that occurred on or after that date.” State v. Newton, 294 Ga. 767, 770 n. 3 (755 SE2d 786) (2014), citing Ga. L. 2012, pp. 899, 907, 949, §§ 3-1, 9-1. The events at issue here occurred on September 4, 2011, with the result that the former statute applies. Newton, 294 Ga. at 770, n. 3 (applying the former statute to events occurring in 2007).

On appeal, as at trial, Solomon concedes that he broke into the shed for the purpose of taking the ladder he was folding up when he was apprehended under the classroom trailer’s window. A damaged window screen was also found below that window. This jury was entitled to infer from the evidence before it that Solomon entered the shed with the intent to steal the ladder for the purpose of breaking into the classroom building such that he was guilty of the burglary of the shed under the former burglary statute. Floyd, 207 Ga. App. at 279-280 (1).

2. In what may well have been a scrivener’s error, however, the trial court entered Solomon’s conviction as that of burglary in the first degree even though the former law encompassed no such crime. Because this error of law appears on the face of the trial court’s judgment, and because we cannot determine how the trial court would have sentenced Solomon under the former law, we vacate his conviction and remand for the entry of a new conviction and resen-tencing under that law. See Hoglen v. State, 336 Ga. App. 471, 477 (3) (784 SE2d 832) (2016) (where appellate court reversed a portion of a defendant’s conviction, but could not determine how the trial court would have sentenced him on the remaining counts, the court vacated the sentence and remanded for resentencing); Hickson v. State, 308 Ga. App. 50, 56(6) (706 SE2d 670) (2011) (remanding for resentencing when written sentences did not “conform to the trial court’s intentions as expressed at the sentencing hearing and appeared] to be misnumbered as the result of scrivener’s errors”).

Decided September 20, 2017

Daniell Law Firm, David G. Daniell, for appellant.

George H. Hartwig III, District Attorney, Marie R. Banks, Assistant District Attorney, for appellee.

3. In light of Division 1 above, in which we conclude that the evidence sufficed to sustain the jury’s verdict under former OCGA § 16-7-1, Solomon’s contention that trial counsel was ineffective in failing to move for a directed verdict has no merit. See Hayes v. State, 262 Ga. 881, 884-885 (3) (c) (426 SE2d 886) (1993) (failure to make a meritless objection cannot be evidence of ineffective assistance).

Judgment vacated and case remanded with direction.

McFadden, P. J., and Bethel, J., concur.

       After the jury asked a question about the difference between burglary and the lesser included offense of criminal trespass, the trial court recharged on both of these definitions.

       The current version of OCGA § 16-7-1 provides in relevant part:
      (b) Aperson commits the offense of burglary in the first degree when, without authority and with the intent to commit a felony or theft therein, he or she enters or remains within [1] an occupied, unoccupied, or vacant dwelling house of another or [2] any building, vehicle, railroad car, watercraft, aircraft, or other such, struct ure designed for use as the dwelling of another. . . .

      (c) A person commits the offense of burglary in the second degree when, without authority and with the intent to commit a felony or theft therein, he or she enters or remains within [3] an occupied, unoccupied, or vacant bu ilding, structure, railroad car, watercraft, or aircraft. . . .
      (Emphasis supplied.) The current law’s distinction thus turns on whether, with “the intent to commit a felony or theft therein,” a defendant is found to have broken into a “dwelling house of another” or other “structure designed for use as [a] dwelling,” in which case he has committed first-degree burglary, or merely any other “building [or] structure,” in which case he has committed second-degree burglary. Id.

       This indictment did not allege that either the trailer or the shed was a dwelling or that either structure was “designed for use” as such.


author: Dillard, Chief Judge.

text:
    A17A0881.
    In the Interest of E. G. L. B. et al., children.
    (805 SE2d 285)
   Dillard, Chief Judge.

The father of E. G. L. B. and I. N. R. B., two minor children, appeals from the juvenile court’s order terminating his parental rights. In doing so, he contends that (1) there is insufficient evidence that the children’s dependent status is likely to continue, that the children’s continued dependency is likely to cause serious physical, mental, or emotional harm, or that termination of his parental rights was in the children’s best interest; (2) he was deprived of due process throughout the juvenile-court proceedings; and (3) the juvenile court erred in denying his motion to dismiss under OCGA § 15-11-301. For the reasons set forth infra, we vacate the judgment and remand the case for additional proceedings consistent with this opinion.

On appeal, we view the evidence in the light most favorable to the juvenile court’s disposition to determine whether any rational trier of fact could have found by clear and convincing evidence that the father’s parental rights should have been terminated. Nonetheless, as we have repeatedly emphasized,

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

So viewed, the record reflects that the children, E. G. L. B. (born October 15, 2009) and I. N. R. B. (born May 24,2011), first came to the attention of the Department of Family and Children Services (“DFCS”) in February 2012, when it was reported that the mother and father were using methamphetamine and had drug paraphernalia in the home, the children had severe diaper rash, and the mother was engaging in prostitution. At an announced home visit, DFCS found no signs of drug use but was thereafter unable to contact the mother again. And in May 2014, after the mother admitted to a police officer that she had used methamphetamine, her drug use was then reported to DFCS. But DFCS was once again unable to locate the family for further investigation.

The father has been incarcerated since April 2013, and in October 2014, the children were placed in the care of their mother’s aunt and uncle after the mother was also incarcerated. Almost a year later, in August 2015, the mother attempted to regain custody of the children, but they were placed in foster care because the mother’s aunt and uncle had failed to obtain counseling for E. G. L. B., who had been repeatedly acting out sexually By this time, the mother was no longer incarcerated, but DFCS alleged that foster care was in the children’s best interest given the mother’s admitted history of drug use and domestic violence with the children’s father, her absconding from DFCS, and her lack of income.

On September 1, 2015, following a hearing on August 25, 2015, at which neither parent appeared, the juvenile court found by clear and convincing evidence that the children were dependent and placed them in the temporary custody of DFCS. Specifically, the juvenile court determined the children were dependent due to the father’s incarceration, the mother’s history of substance abuse and absconding from DFCS, and the mother’s instability, lack of housing, and lack of income. An August 2015 report, prepared by the children’s guardian ad litem, indicated that the children had last seen the father in 2013, and they had talked to him on the phone “a few times” since then. A subsequent report, also prepared by the guardian ad litem, noted that the father had a 2012 conviction for possession of methamphetamine, as well as 2013 convictions for aggravated assault, possession of a knife during a crime, and possession of counterfeit drugs.

A second hearing was set for October 20, 2015. In response to notice of the hearing sent to him by mail, the father wrote to the court, inquiring as to whether the court would issue a bench warrant since he would not be able to appear at the hearing and whether a conference call might be possible. He also stated, “I [am] interested in the well[-]being of my children and want to be involved in their lives. However, if I [cannot] be of any assistance [,] I do not wish to transfer for court.” The court responded to the father’s letter, informed him that no bench warrant would issue and a conference call was not possible, and gave instructions on how to request an attorney. Although a handwritten note attached to this letter indicates that a copy of the case plan was also sent to the father, it is not clear from the record what documents were sent.

The record contains a “Case Plan Report” for the children, including a non-reunification plan for the father. Steps for “[a]ll [p]arents” include signing a release of information; attending “all hearings, appointments with DFCS, [c]ase [p]lan reviews, and scheduled visits”; notifying DFCS of any change in address; providing DFCS with the names and location of any “relatives or other resources”; and contacting DFCS to schedule an appointment to review the parent’s progress on the case plan. The plan also notes that “[targeted case management services will be received to assist individuals in gaining access to and managing needed services.”

Neither parent appeared at the October 20, 2015 hearing. On November 3, 2015, nunc pro tunc to October 20, 2015, the juvenile court adopted its September 1 order as a final order. The court also found that the children continued to be dependent. Furthermore, the juvenile court determined that the father’s maximum release date was in February 2023, although the basis for this finding is not clear from the record, and noted that the father had a non-reunification case plan. But in the same order, the juvenile court found that, to be considered for a return of custody, the father would need to have stable, adequate income and housing for six months, complete a drug-and-alcohol assessment and treatment, undergo a psychological evaluation and comply with any resulting recommendations, complete domestic-violence counseling, complete a parenting class, pay child support, and “establish and maintain a bond with the children through visitation or otherwise.” The court also noted that the father had “provided no proof to [DFCS] of the completion of any goals.”

In February 2016, DFCS filed a petition to terminate both parents’ parental rights, and a hearing was initially set for May 17, 2016. Despite an attempt at personal service of the petition and accompanying summons, the father could not be served because he was no longer at Coastal State Prison, where he had previously been incarcerated. The father was ultimately personally served at Floyd County Correctional Institute on May 6, 2016. Upon receipt of his summons, the father requested appointment of counsel and an extension of time for the hearing. The court appointed counsel for the father, and based on a request from the mother, the hearing was continued to September 6, 2016.

In the meantime, the court issued an order on April 26, 2016, following a permanency hearing earlier that month. In that order, the juvenile court found that with regards to the father’s compliance with the case plan for reunification, such compliance was “[n]ot applicable as there is no permanency plan of reunification.” The court further found that the father had not been in contact with DFCS or the children.

At the hearing on the petition to terminate, the father did not appear but was represented by counsel. Witnesses testified that E. G. L. B. had reported observing his mother have sex. He also reported that his “dad” had touched him when he was four years old, but the father had gone to prison before E. G. L. B. turned four. Furthermore, E. G. L. B. referred to different people as “dad,” and he never clarified which “dad” touched him. There was also extensive testimony regarding the mother’s house, which she was renting from a relative who lived on the same property and is a registered sex offender. Among other issues, the house was infested with roaches and wasps, lacked air conditioning and smoke detectors, and harbored several dangerous conditions, including broken glass on the porch and medications and construction supplies in locations accessible to children. The children’s DFCS caseworker testified to her concerns about the possibility of the children being returned to the mother’s custody, including that the mother’s home was dangerous and unsuitable and the children were not bonded with the mother. The caseworker also testified that the children were doing well in their placement and were bonded with their foster parents, who wished to adopt them.

At the hearing, the mother testified that she had previously been addicted to pain medication, which she claimed resulted from the father’s influence. The father also used methamphetamine. The mother and father’s drug abuse occurred in 2010, and they eventually ended their relationship in 2012. Following their split, the father provided no support for the children, but he had regular contact with them, although he did not contact them “a lot.” The father’s brother, who is also the mother’s current boyfriend, testified that after the father was incarcerated, he asked his brother “numerous times” to check on the children. Prior to the September 2016 hearing, the mother had last spoken to the father almost a year ago.

The DFCS caseworker testified that the father was going to be incarcerated for a “long time[.]” DFCS initiated no contact with the father, aside from providing him with a copy of his case plan in September 2015. After DFCS did not receive a response, it made no attempt to contact the father again. The father did write to DFCS in August 2016, to find out how the children were doing, but DFCS had not responded to his letter at the time of the hearing.

The father presented evidence of certifications from classes that he completed in prison, including “Active Parenting Now,” “Thinking for Change,” “Re-entry Skills Building Program,” and “Motivation for Change.” No testimony was presented regarding the father’s criminal convictions or his anticipated release date.

Following the hearing, the juvenile court terminated the father’s parental rights on September 14,2016. This Court thereafter granted the father’s application for discretionary appeal.

At the outset, we note that the new Juvenile Code applies in this case because the State’s petition to terminate parental rights was filed in February 2016. And like the former Juvenile Code, Georgia’s new Juvenile Code provides for a two-step process to determine whether terminating parental rights is warranted in a particular case.

First, as outlined in OCGA § 15-11-310 (a), the juvenile court must find that one of five statutory grounds for termination has been satisfied. And here, the statutory ground at issue is OCGA § 15-11-310 (a) (5), which provides:

A child is a dependent child due to lack of proper parental care or control by his or her parent, reasonable efforts to remedy the circumstances have been unsuccessful or were not required, such cause of dependency is likely to continue or will not likely be remedied, and the continued dependency will cause or is likely to cause serious physical, mental, emotional, or moral harm to such child.

Then, if the foregoing statutory grounds for termination have been met, the juvenile court must determine whether termination is in the child’s best interest after considering several specified factors. Of course, in all such proceedings, “the standard of proof to be adduced to terminate parental rights shall be by clear and convincing evidence.”

Necessarily, our analysis is “guided by an overarching constitutionally based principle that the termination of parental rights is a remedy of last resort which can be sustained only when there is clear and convincing evidence that the cause of the deprivation is likely to continue.” Indeed, as our Supreme Court has emphasized, “[o]ne who is subject to the termination of parental rights cannot be equated to an individual who faces an interruption of custody; termination is a much more severe measure.” Stated another way, “it is one thing to remove a child from a parent’s custody for reasons of neglect, but quite another to permanently and irrevocably sever the natural parent-child relationship.” And there is a reason for this crucial distinction: “Terminating a parent’s rights, and thus forever foreclosing the possibility of restoring the natural parent-child relationship, is governmental extinguishment of the parent and child’s constitutional right to familial relations.” There is, then, “no judicial determination which has more drastic significance than that of permanently severing a natural parent-child relationship.” Accordingly, “compelling facts” are required to terminate parental rights.

And while the juvenile court is certainly permitted to consider past conduct in deciding whether the cause of dependency is likely to continue, evidence of past unfitness, standing alone, is insufficient to terminate the rights of a parent in regard to his child. Rather, clear and convincing evidence of “present unfitness is required.” And the record must also contain clear and convincing evidence that the cause of the dependency is likely to continue. With these guiding principles in mind, we turn now to the father’s claims of error.

1. As an initial matter, the father does not contest that his children are dependent because he is currently incarcerated and incapable of assuming custody of them. But the father asserts that the evidence was insufficient to establish that the children’s dependent state was likely to continue or unlikely to be remedied in the foreseeable future. We agree.

Specifically, the father contends that “DFCS offered no competent proof” of his crimes “or how long he will actually be incarcerated.” As set forth above, there was no testimony presented at the hearing regarding the exact nature of the father’s conviction, his sentence, or release date. And although the guardian ad litem’s report noted that the father had been convicted of aggravated assault and that his maximum possible release date was in 2023, the basis of this information is not clear from the report. Accordingly, the juvenile court found that the father’s “conviction history and sentence are unknown, as no evidence was put forth in this or any other hearing about those issues.”

And as the father notes, “[ijmprisonment alone does not automatically authorize a termination of parental rights premised upon parental unfitness; there must be circumstances in aggravation.” One such circumstance that may be considered is “whether the incarcerated parent has made an effort to communicate with the child and, despite imprisonment, maintain a parental bond in a meaningful, supportive and parental manner.” Here, the juvenile court found that the father had been unable, due to his incarceration, to maintain any sort of bond with his children. And in determining that the cause of the children’s dependency was likely to continue and not likely to be remedied and that the continued dependency will cause or is likely to cause serious physical, mental, emotional, or moral harm to the children, the only specific factual finding the juvenile court noted was “the lack of bonding and attachment testified to[.j” But while there was testimony that the children were not bonded with their mother, there was no testimony presented at the hearing as to the father’s parental bond or lack thereof with the children. To the contrary, the record contains evidence that the father has made attempts—sporadic and meager though they may have been—to contact the mother, his brother, the court, and DFCS regarding the children’s well-being. Thus, even viewing the evidence in the light most favorable to the trial court’s disposition, as we must, the trial court’s finding in this regard is not supported by clear and convincing evidence.

Another circumstance to be considered is “a history of incarcerations for repeated criminal offenses and a determination that it is likely such criminal activity will continue upon release.” For example, “repeated incarceration preventing one from caring for a child indicates a likelihood of continued deprivation.” But here, the record does not contain any evidence—much less clear and convincing evidence—indicating that the father has a history of repeated incarcerations.

The father also challenges the “sufficiency and reasonableness of the efforts exerted by DFCS to reunify him with his children[.]” Indeed, another aggravating factor that may be considered in determining whether to terminate the parental rights of an incarcerated parent is the parent’s “failure to comply with goals in a reun ification plan.” And here, the juvenile court found that the father had failed to comply with the court-ordered reunification plan. But there was no court-ordered reunification plan, as the father has always been subject to a non-reunification plan. This finding, then, is also contrary to the evidence.

We are, of course, extremely troubled by the fact that the father has been incarcerated for most of the children’s lives and by the seemingly limited role he has played in their upbringing. And it may well be that his parental rights should ultimately be terminated. But we are equally troubled by the lack of evidence presented in this case specific to the father and, on this scant record, we are unable to conclude there was clear and convincing evidence that, as to him, the children’s dependency was likely to continue. We remind our juvenile courts, yet again, of the importance of ensuring that clear and convincing evidence has been presented by the State before taking the drastic measure of permanently and irrevocably severing the natural parent-child relationship. To paraphrase Justice Don Wil-lett ofthe Supreme Court ofTexas: The constitutional right offamilial relations is not provided by government; it preexists government. This cherished and sacrosanct right “is not a gift from the sovereign; it is our natural birthright. Fixed. Innate. Unalienable.” Accordingly, we vacate the juvenile court’s order terminating the father’s parental rights and remand for further proceedings consistent with this opinion.

As set forth above, the father also challenges the sufficiency of the evidence to support the juvenile court’s findings that continued dependency would cause or likely cause harm to the children and that termination of his parental rights was in the children’s best interest. Because DFCS failed to carry its burden of proving by clear and convincing evidence that the children’s dependency was likely to continue, we do not reach the issue of whether continued dependency is likely to harm the children. Similarly, it would be premature to consider whether termination of the father’s rights was in the children’s best interest.

Decided September 20, 2017.

Rodney Q. Quarles, for appellant.

Christopher M. Carr, Attorney General, Annette M. Cowart, Denn is R. Dunn, Deputy Attorneys General, Shalen S. Nelson, Penny L. Hannah, Senior Assistant Attorneys Gen eral, Cynthia N. Johnson, Assistant Attorney General, for appellee.

2. Based on our ruling in Division 1 supra, we need not address the father’s remaining arguments.

Judgment vacated and case remanded.

Ray, P J., and Self, J., concur.

        See In the Interest of T. Z. L., 325 Ga. App. at 99 (1) (b). See supra note 31.

        See, e.g., In the Interest of J. D. F., 277 Ga. App. at 429 (2).

       The juvenile court also terminated the mother’s parental rights, but her appeal was dismissed because she failed to file a timely notice of appeal. See Case No. Al 7A0882 (January 18, 2017).

        In the Interest of D. M., 339 Ga. App. 46, 46 (793 SE2d 422) (2016); accord In the Interest of J. A. B., 336 Ga.App. 367, 368 (785 SE2d 43) (2016).

        In the Interest of D. M., 339 Ga. App. at 46; see, e.g., In the Interest of E. M. D., 339 Ga. App. 189, 204 (2) (b) (793 SE2d 489) (2016); In the Interest of J. A. B., 336 Ga. App. at 368; In the Interest of S. O. C., 332 Ga. App. 738, 743 (774 SE2d 785) (2015); In the Interest of C. J. V., 323 Ga. App. 283, 283 (746 SE2d 783) (2013); see also Clark v. Wade, 273 Ga. 587, 596-97 (IV) (544 SE2d 99) (2001) (“Parents have a constitutional right under the United States and Georgia Constitutions to the care and custody of their children. This right to the custody and control of one’s child is a fiercely guarded right that should be infringed upon only under the most compelling circumstances.” (punctuation omitted)).

       A September 2016 report of the guardian ad litem also notes that the father’s maximum possible release date is in 2023.

         See Ga. L. 2013, p. 294, § 5-1 (“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.”).

        Compare OCGA § 15-11-310 with OCGA § 15-11-94 (2013).

        See OCGA § 15-11-310 (b) (l)-(4).

       OCGA § 15-11-303.

        In the Interest of D. M., 339 Ga. App. at 51 (punctuation omitted); accord In the Interest of E. M. D., 339 Ga.App. at 204 (2) (b); In the Interest of J. V. J., 329 Ga. App. 421, 424 (765 SE2d 389) (2014); In the Interest of T. Z. L., 325 Ga. App. 84, 94 (1) (a) (751 SE2d 854) (2013); In the Interest of C. J. V., 323 Ga. App. at 287.

        In the Interest of A. C., 285 Ga. 829, 833 (2) (686 SE2d 635) (2009); accord In the Interest of D. M., 339 Ga. App. at 51; In the Interest of S. O. C., 332 Ga. App. at 742.

        In the Interest of S. O. C., 332 Ga. App. at 742; accord In the Interest of D. M., 339 Ga. App. at 51.

        In the Interest of S. O. C., 332 Ga. App. at 743.

        In the Interest of D. M., 339 Ga. App. at 51 (punctuation omitted); accord In the Interest of S. O. C., 332 Ga. App. at 743; In the Interest of L. J. L., 247 Ga. App. 477, 479 (543 SE2d 818) (2001). Indeed, the termination of a natural parent’s right to familial relations with his or her child “leaves the parent with no right to visit or communicate with the child, to participate in, or even to know about, any important decision affecting the child’s religious, educational, emotional, or physical development.” Lassiter v. Dep’t of Soc. Servs. of Durham Cty., N.C., 452 U. S. 18, 39 (I) (A) (101 SCt 2153, 68 LE2d 640) (1981) (Blackmun, J., dissenting).

        In the Interest of D. M., 339 Ga. App. at 51-52; accord Carvalho v. Lewis, 247 Ga. 94, 95 (274 SE2d 471) (1981); In the Interest of S. O. C., 332 Ga. App. at 743.

         In the Interest of D. M., 339 Ga. App. at 52; accord In the Interest of C. J. K., 323 Ga. App. at 285; In the Interest of C. S., 319 Ga. App. 138, 145 (1) (735 SE2d 140) (2012).

        In the Interest of J. D. F., 277 Ga. App. 424, 427 (1) (626 SE2d 616) (2006); accord In the Interest of C. J. V., 323 Ga. App. at 285; In the Interest of D. L. T. C., 299 Ga. App. 765, 769 (1) (684 SE2d 29) (2009).

        In the Interest of C. J. V., 323 Ga. App. at 285; accord In the Interest of J. V. J., 329 Ga. App. at 424-25; In the Interest of D. L. T. C., 299 Ga. App. at 769 (1).

        In the Interest of C. J. V., 323 Ga. App. at 286; accord In the Interest of D. L. T. C., 299 Ga. App. at 769 (1); In the Interest of K. M., 240 Ga. App. 677, 680 (523 SE2d 640) (1999).

        See OCGA § 15-11-311. We also note that because the father did not appeal from the juvenile court’s prior determinations that the children were dependent, we assume the evidence was sufficient to support those determinations. See, e.g., In the Interest of D. M., 339 Ga. App. at 53 (1) (a).

       The State, in its brief, asserts the father’s maximum release date is in February 2023 and, in support of its assertion, points this Court to the website of the Georgia Department of Corrections. But of course, “[a] brief cannot be used in lieu of the record for adding evidence.” In the Interest of T. L. H., 240 Ga. App. 201, 202 (523 SE2d 50) (1999) (punctuation omitted).

        In the Interest of R. A., 226 Ga. App. 18, 20 (486 SE2d 363) (1997); see In the Interest of T. Z. L., 325 Ga. App. at 94 (1) (a) (“[A] parent’s incarceration does not always compel the termination of parental rights[.]”).

        In the Interest of T. Z. L., 325 Ga. App. at 94 (1) (a) (punctuation omitted); accord In the Interest of D. M. W., 266 Ga. App. 456, 459 (2) (597 SE2d 531) (2004).

        See, e.g., In the Interest of J. A. B., 336 Ga. App. at 368.

        In the Interest of T. Z. L., 325 Ga. App. at 95 (1) (a) (punctuation omitted); accord In the Interest of J. D. F., 277 Ga. App. at 428 (1); In the Interest of M. C. L., 251 Ga. App. 132, 134 (1) (a) (553 SE2d 647) (2001).

        In the Interest of T. Z. L., 325 Ga. App. at 95 (1) (a) (punctuation omitted); accord In the Interest of M. C. L., 251 Ga. App. at 134 (1) (a).

        In the Interest of T. Z. L., 325 Ga. App. at 94 (1) (a) (punctuation omitted); accord In the Interest of J. D. F., 277 Ga. App. at 428 (1); In the Interest of D. M. W., 266 Ga. App. at 459 (2). See generally OCGA § 15-11-202 (providing that, except in certain circumstances, “reasonable efforts shall be made to preserve or reunify families”); OCGA § 15-11-203 (a) (setting forth the circumstances under which reunification efforts are not required); OCGA § 15-11-204 (establishing the procedure for non-reunification hearings).

        See In the Interest of T. Z. L., 325 Ga. App. at 89, 94-99 (1) (a) (concluding that there was not clear and convincing evidence that the deprivation by the father was likely to continue given his upcoming release date, the many letters he sent to the child, and his non-reunification case plan, which was not achievable, given his incarceration); In the Interest of R. C. M., 284 Ga. App. 791, 799 (III) (3) (645 SE2d 363) (2007) (concluding that there was not clear and convincing evidence that the deprivation caused by the father was likely to continue where DFCS “adopted a reunification case plan for the father which included goals it knew he could not achieve while incarcerated!,]” the juvenile court repeatedly told the father to contact a caseworker after his release from incarceration to begin work on the case plan, yet DFCS petitioned to terminate his parental rights while he was still incarcerated, and the juvenile court terminated the father’s parental rights based on his previous incarceration and his failure to achieve his reunification case plan goals within 45 days of his release); In the Interest of J. D. F., 277 Ga. App. at 428-29 (1) (concluding that there was not clear and convincing evidence that the deprivation by the father was likely to continue given the short length of his incarceration, his “extensive” efforts to communicate with the children, and his efforts while incarcerated to complete a case plan “clearly not designed for him”); In the Interest of B. N. A., 248 Ga. App. 406, 410-11 (1) (546 SE2d 819) (2001) (concluding that there was no clear and convincing evidence that the father was causing, or would continue to cause, the child to be deprived; although the father was not “without fault,” in that he was previously convicted of a drug charge, currently faced other charges, and “could have taken greater initiative!,]” DFCS failed to establish a court-ordered reunification plan). But see In the Interest of D. M. W., 266 Ga. App. at 460 (3) (finding clear and convincing evidence that the child’s deprivation would continue where the mother had been incarcerated since the child was six months old, would not be released until the child was twelve years old, and did not comply with the portion of the case plan with which she was able to comply).

        See In the Interest of S. O. C., 332 Ga. App. at 742; accord In the Interest of D. M., 339 Ga. App. at 51.

        See Patel v. Texas Dep’t of Licensing & Regulation, 469 SW3d 69, 92-93 (Tex. 2015) (Willett, J., concurring).

        Id.

        In the Interest of T. Z. L., 325 Ga. App. at 99 (1) (b); accord In the Interest of R. C. M., 284 Ga. App. at 800 (III) (3); see In the Interest of C. S., 319 Ga. App. at 148 (1) (“Because we have found the evidence does not support a determination that the deprivation is likely to continue, we need not consider whether the children were being harmed by the deprivation and do not reach the second stage of the inquiry concerning the best interests of the children.”).


author: Bethel, Judge. McFADDEN, Presiding Judge,

text:
    A17A1486.
    ATKINS v. THE STATE.
    (805 SE2d 612)
   Bethel, Judge.

Monica Atkins was convicted on charges of aggravated child molestation and child molestation. She appeals from the denial of her motion for a new trial, arguing that the evidence was insufficient to support her convictions and that the trial court applied the wrong standard of review to her motion. While we find that the evidence in this case was sufficient to support Atkins’ convictions, we otherwise agree with Atkins that the trial court failed to apply the correct standard of review in considering her motion for a new trial. We therefore vacate the trial court’s denial of Atkins’ motion and remand the case to the trial court for proper consideration of that motion.

In resolving [Atkins’] challenge to the sufficiency of the evidence, we view the evidence in a light favorable to the jury’s verdict. Weighing the evidence and determining witness credibility are beyond the purview of this court. We simply assess whether the evidence was sufficient to find [Atkins] guilty beyond a reasonable doubt.

Smith v. State, 320 Ga. App. 408, 409 (1) (740 SE2d 174) (2013) (citation and punctuation omitted).

The evidence shows that after learning she was pregnant, A. O., who was 13 years old at the time, called Atkins and told her she was pregnant by Atkins’ husband. Atkins’ husband denied both paternity and sexual contact with A. O. A. O.’s mother reported the incident to police.

During her initial interview with law enforcement, A. O. claimed that in August 2010 while sleeping on the floor of Atkins’ apartment, she awoke to find Atkins’ husband on top of her having sex with her. Nine days later during her forensic interview, A. O. alleged for the first time that a prior incident occurred in June or July 2010 in which she engaged in sexual acts with Atkins and her husband at their previous residence. Atkins was indicted on charges of aggravated child molestation and child molestation.

At the time of trial, A. O. was 16 years old. She testified that Atkins only used her hands to touch her thighs and breasts during the alleged incident. However, the recording of A. O.’s forensic interview was played for the jury, and in it, A. O. specifically claimed that Atkins touched A. O.’s breasts, undressed her, and that Atkins placed her mouth on A. O.’s vagina.

Atkins maintained her innocence and testified that she never performed oral sex on A. O. or touched A. O.’s breasts or thighs. Ajury found Atkins guilty on both counts. Following the verdict, Atkins moved for a new trial, and the trial court denied her motion. This appeal followed.

1. While Atkins acknowledges that A. O.’s testimony did not require corroboration and was generally sufficient to establish a fact, Atkins contends that A. O.’s in-court testimony was legally insufficient to convict her. We disagree.

Under Georgia law, a person commits the offense of child molestation when she “[d]oes any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person[.]” OCGA § 16-6-4 (a) (1). “A person commits the offense of aggravated child molestation when such person commits an offense of child molestation which act physically injures the child or involves an act of sodomy” OCGA § 16-6-4 (c). Count 3 of the indictment charged that Atkins did “an immoral and indecent act to, in the presence of and with A. O., a child under the age of sixteen . . . years, by placing [Atkins’] mouth on [A. O.’s] female sex organ, with the intent to arouse and satisfy [Atkins’] sexual desires; said act involving an act of sodomy [.] ” In its charge to the jury, the trial court defined an act of sodomy as “performing or submitting to a sexual act involving the sex organs of one and the mouth or anus of another.”

Although A. O. testified at trial that Atkins only used her hands to touch A. O.’s thighs and breasts during the alleged incident, the State presented A. O.’s prior statement from her forensic interview in which A. O. described with specificity that Atkins performed oral sex, an act of sodomy, on her. Atkins’ assertion of inconsistencies between A. O.’s trial testimony and the statements A. O. made during her forensic interview goes to the weight of A. O.’s testimony and her credibility as a witness, not to the sufficiency of the evidence presented. It is for a jury, not this Court, to resolve conflicts in the testimony, weigh the evidence, and draw reasonable inferences from the evidence. Rudisail v. State, 265 Ga. App. 293, 294 (2) (593 SE2d 747) (2004). “As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.” Id. (citation and punctuation omitted). Thus, the evidence adduced was legally sufficient to support Atkins’ convictions.

2. Notwithstanding our holding in Division 1, we agree with Atkins that the trial court applied the wrong standard when reviewing her motion for new trial based on general grounds.

OCGA § 5-5-20 authorizes the trial court to grant a new trial in any case when the verdict of a jury is found contrary to evidence and the principles of justice and equity, and OCGA § 5-5-21 empowers the trial court to grant a new trial where the verdict may be decidedly and strongly against the weight of the evidence even though there may appear to be some slight evidence in favor of the finding. Read together, the statutes provide the trial court broad discretion to sit as a thirteenth juror and weigh the evidence on a motion for new trial alleging the foregoing general grounds. Our sovereign, the law, has in effect said to the trial judge: We charge you to let no verdict stand unless your conscience approves it, although there may be some slight evidence to support it.

Copeland v. State, 327 Ga. App. 520, 524-525 (2) (759 SE2d 593) (2014) (citation and punctuation omitted).

In this case, Atkins moved the trial court to grant her a new trial based on general grounds contending in part that the only evidence against her —A. O.’s testimony regarding the sexual encounter for which she was convicted — was not credible. The trial court denied the motion and in reaching its conclusion, acknowledged that Atkins sought a new trial based on general grounds. However, the trial court applied the sufficiency of the evidence standard outlined in Jackson v. Virginia, to deny her motion. This was in error because the standard of review for motions brought under OCGA §§ 5-5-20 and 5-5-21 goes to the weight, not the sufficiency, of the evidence presented.

Nothing in the order suggests that the trial court performed its “duty to exercise its discretion and weigh the evidence” in its consideration of the general grounds for the motion. White v. State, 293 Ga. 523, 525 (2) (753 SE2d 115) (2013) (citation and punctuation omitted) (judgment vacated and case remanded due to trial court’s repeated statement that it viewed evidence in the light most favorable to the verdict); see also Walker v. State, 292 Ga. 262, 264 (2) (737 SE2d 311) (2013) (trial court did not properly exercise its discretion where it evaluated general grounds of motion for new trial by applying Jackson v. Virginia standard); Rutland v. State, 296 Ga. App. 471, 475-476 (3) (675 SE2d 506) (2009) (same). Thus, we are compelled to vacate the denial of Atkins’ motion for new trial and remand this case to the trial court for consideration of Atkins’ motion under the proper legal standard embodied in OCGA §§ 5-5-20 and 5-5-21.

Decided September 20, 2017.

Ruth R. McMullin, for appellant.

Paul L. Howard, Jr., District Attorney, Lyndsey H. Rudder, Arthur C. Walton, Assistant District Attorneys, for appellee.

Judgment vacated and case remanded.

Branch, J., concurs. McFadden, P. J., concurs fully and specially.

McFADDEN, Presiding Judge,

concurring fully and specially.

I concur fully in the majority opinion. I write separately to note that our decision in the case of appellant’s husband, Atkins v. State, 342 Ga. App. 422 (803 SE2d 122) (2017), is pending before our Supreme Court on petition for certiorari, Case No. S17C1996, and that, on remand, appellant will be entitled to amend her motion for new trial. OCGA § 5-5-40 (b); see also Lee v. State, 316 Ga. App. 227, 229 (728 SE2d 847) (2012).

       The evidence in this case is largely the same as that recounted in this Court’s opinion in Atkins v. State, 342 Ga. App. 422 (803 SE2d 122) (2017), for Atkins’ co-defendant.

       Atkins’ husband was indicted and tried jointly as a co-defendant on charges of aggravated child molestation and statutory rape. He was convicted on both counts and appealed. His case came before us on appeal as Atkins, 342 Ga. App. 422.

       Atkins did not challenge the admissibility of A. O.’s forensic interview which was admitted under the Child Hearsay Statute, former OCGA § 24-3-16. The statute
      creates an exception to the hearsay rule for statements made by a child under the age of 14 describing any act of sexual abuse if the child is available to testify in the proceedings and the court finds that the circumstances of the statement provide sufficient indicia of reliability. The law requires only that the child be available to testify; it does not require the child to corroborate the hearsay testimony.

        Braddy v. State, 205 Ga. App. 424, 425 (2) (422 SE2d 260) (1992) (citations and punctuation omitted).

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

       See also Choisnet v. State, 292 Ga. 860, 861-862 (742 SE2d 476) (2013) (judgment vacated and case remanded where trial court reviewed evidence in light most favorable to verdict and failed to consider witness credibility); Manuel v. State, 289 Ga. 383, 386 (2) (711 SE2d 676) (2011) (judgment vacated and case remanded where trial court “personally disagreed with the jury’s verdict” yet found the evidence was sufficient to support the jury’s verdict); Alvelo v. State, 288 Ga. 437, 438-439 (1) (704 SE2d 787) (2011) (vacating order denying motion for new trial and remanding case for consideration of accused’s motion under the proper legal standard); Moore v. Stewart, 315 Ga. App. 388, 391 (3) (727 SE2d 159) (2012) (vacating and remanding order denying motion for new trial where trial court failed to exercise discretion under applicable standard).