author: Boggs, Judge.

text:
    A14A2133.
    HUGHLEY v. THE STATE.
    (769 SE2d 537)
   Boggs, Judge.

Kleo Kelronte Hughley was convicted of voluntary manslaughter as a lesser included offense of malice murder, aggravated assault with a deadly weapon, possession of a firearm during the commission of a crime, and possession of a weapon during the commission of a crime. Hughley’s amended motion for new trial was denied, and he appeals. He contends the evidence was insufficient to disprove his defense of justification, that he was wrongly convicted for possession of a firearm during commission of the crime of voluntary manslaughter, that the trial court erred in giving a jury instruction, and that he received ineffective assistance of counsel. Finding no error, we affirm.

Construed to support the jury’s verdict, the evidence shows that Hughley and three companions were riding around in a car, smoking marijuana and in the case of one passenger “doing ecstasy.” When Hughley, who was driving, stopped at a gas station to buy gas and cigarillos, the victim approached Hughley and asked for marijuana. When Hughley refused, believing that the victim was trying to rob him, the victim left and drove to a nearby apartment complex, where he told an acquaintance that he had had words at the gas station with someone who thought he was trying to rob him.

Some time later, Hughley and his companions entered the same apartment complex and parked. Hughley left the vehicle and returned; shortly afterward, the victim approached the car, “smiling” and “looking like he wanted something.” One of Hughley’s companions testified that she did not believe the victim was trying to rob them, but that he appeared to be “on something, like he was too happy”; that is, under the influence of narcotics. The victim tried to open the passenger door but could not because it was missing its exterior handle. He then began knocking on the window and exclaimed, “Let me holler at you. Come here.” When everyone told him to “get away from the car” he walked toward the rear of the car.

Hughley then got out of the car and pointed a gun at the victim. The victim began to back away to the rear of the car, and Hughley “just shot him.” Hughley returned to the car and exclaimed that it was an attempted robbery. Hughley testified at trial that the victim pulled a gun on him, and that he saw another individual with whom he had had a previous “altercation” nearby, pulling a bandana over his face. But this individual testified and said that he was some distance away speaking with a friend when he heard the gunshot. Two witnesses testified that they did not see a gun on the victim, the victim’s girlfriend testified that he did not have a gun immediately before the incident, and the police found no firearm on or near the victim.

1. Hughley asserts that because the State failed to disprove his defense of justification or self-defense, the evidence was insufficient to support his conviction.

When an appellate court reviews the sufficiency of the evidence, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Once a defendant has been found guilty of the crime charged, the factfinder’s role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution.
With respect to the justification defense under Georgia law, a person is justified in using force which is intended or likely to cause death or great bodily harm only if he or she reasonably believes that such force is necessary to prevent death or great bodily injury to himself or herself or a third person or to prevent the commission of a forcible felony. Whether the evidence shows that a person had a reasonable belief that deadly force was necessary in self-defense is a question for the jury. The jury’s resolution of this question will not be reversed on appeal when the defendant’s challenge merely points to conflicts in the evidence and questions witness credibility, matters which are to be determined exclusively by the jury.

(Citations, punctuation and footnotes omitted.) Robinson v. State, 326 Ga. App. 59, 60 (1) (755 SE2d 865) (2014). Here, the State presented evidence of an earlier, hostile encounter between Hughley and the victim, which “authorized the jury to conclude that [Hughley] shot the victim as a result of sudden passion or anger, rather than out of necessity to protect himself. [Cits.]” Thomas v. State, 296 Ga. App. 231, 234 (1) (674 SE2d 96) (2009). “The evidence showing that the victim was unarmed at the time of the incident authorized the jury to conclude beyond a reasonable doubt that [Hughley] was not justified in using deadly force. [Cits.]” Id. at 233 (1); see also Robinson, supra, 326 Ga. App. at 61 (1). Additionally, the victim was apparently intoxicated, behaving in a way that one witness described as “too happy” and “smiling.” And evidence was presented that rather than simply driving away, Hughley got out of the driver’s seat and confronted the victim, who then backed away to the rear of the car before Hughley shot him. This evidence authorized the jury to conclude that Hughley shot the victim as a result of sudden passion or anger rather than self-defense. See Windham v. State, 278 Ga. App. 663, 666 (629 SE2d 837) (2006) (conviction of voluntary manslaughter authorized on evidence that appellant pursued victim and that victim was unarmed, although appellant testified that victim “pulled a gun”).

2. Hughley complains that the trial court erred in its charge on justification, because it failed to instruct the jury that the defense applied to all counts and not solely to the homicide charges. Because he made no objection at the time of the charge, we review this enumeration of error under the “plain error” standard of review. Harris v. State, 324 Ga. App. 411, 416 (5) (750 SE2d 721) (2013). Hughley has the heavy burden of demonstrating the following four elements:

First, there must be 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. Second, the legal error must be clear or obvious, rather than subject to reasonable dispute. Third, the error must have affected the appellant’s substantial rights, which in the ordinary case means he must demonstrate that it affected the outcome of the trial court proceedings. Fourth and finally, if the above three prongs are satisfied, the appellate court has the discretion to remedy the error — discretion which ought to be exercised only if the error seriously affects the fairness, integrity or public reputation of judicial proceedings.

(Citation, punctuation and footnote omitted.) Id.

As the trial court observed, the instruction on justification “was not given in connection with any specific offense.” The trial court explicitly and repeatedly instructed the jury that the defense of justification was applicable when a defendant “reasonably believes that such force is necessary to prevent death or great bodily injury to himself or a third person, or to prevent the commission of a forcible felony.” The trial court instructed the jury that murder and aggravated assault are felonies, adding that a felony is “any crime against or involving the person of another.” A reasonable juror would understand the general charge on justification as applying to all the offenses charged. See Ross v. State, 278 Ga. 429, 431 (3) (603 SE2d 268) (2004). Hughley has failed to show a “clear or obvious” error in the trial court’s charge or that the charge affected the outcome of the proceedings. He therefore has failed to demonstrate plain error.

3. Hughley also contends that his conviction for possession of a firearm during the commission of a crime in Count V should be vacated, as the indictment references the crime of murder and he was convicted of the lesser offense of voluntary manslaughter. In Prather v. State, 259 Ga. App. 441, 442-443 (1) (576 SE2d 904) (2003), as here, the indictment charged the appellant with murder and with possession of a firearm during the commission of murder, but he was convicted of the lesser included offense of voluntary manslaughter. Id. at 442 (1). We observed that

[t]he trial court charged the jury that the elements of possessing a firearm during the commission of a crime required proof of a felony, and then noted that murder is a crime defined as a felony. Voluntary manslaughter, although discussed earlier in the charge, was not mentioned in the context of the possession charge and was never defined for the jury as a felony.

Id. at 442-443 (1). Under these circumstances, we held that the jury was authorized to convict of possession of a firearm only during the commission of murder, and reversed the conviction on this count. Id at 443 (1).

But here, as the State points out, the trial court twice gave an additional instruction in connection with the two counts of possession of a firearm or weapon during the commission of a crime: “A person commits the offense of possession of a firearm during the commission of a crime when the person has on or within arm’s reach of his person a firearm during the commission of or any attempt to commit a felony, which is any crime against or involving the person of another.” It then went on to state that murder and aggravated assault respectively were felonies “under the laws of this state” and “defined as previously stated.” See Division 2, supra. While explicitly identifying every lesser included offense charged as an element of the possession charge might be the better practice, this instruction did implicitly identify voluntary manslaughter as both an offense against the person and a felony, and instructed the jury that possession could be based upon “any attempt to commit a felony, which is any crime against or involving the person of another.” (Emphasis supplied.) The jury therefore was informed that the possession charge here, unlike that in Prather, could be based upon “any crime against or involving the person of another” or “any attempt to commit a felony,” thus including voluntary manslaughter. Considering the charge as a whole, we cannot conclude that the omission of an explicit reference to voluntary manslaughter in the charge on possession was error.

In Prather, we expressly did not consider “whether a defendant charged with possession of a firearm during the commission of a specific felony could be found guilty of possession of a firearm when he was convicted of a lesser included felony.” Id. at 442 (1); see also Crowder v. State, 241 Ga. App. 818, 820-821 (3) (b) (527 SE2d 901) (2000). But Hughley does not argue this point in his brief on appeal, relying instead upon the alleged inadequacy of the jury charge, and we therefore do not address it. Court of Appeals Rule 25 (c) (2).

4. Hughley complains of ineffective assistance of counsel in three respects. In ruling on a claim of ineffective assistance,

[u]nder the two-part test established in Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984), [Hughley] must prove both that his trial counsel’s performance was deficient and that there is a reasonable probability that the trial result would have been different if not for the deficient performance. If an appellant fails to meet his burden of proving either prong of the Strickland test, the reviewing court does not have to examine the other prong.

(Citations and punctuation omitted.) Harrison v. State, 313 Ga. App. 861, 865 (3) (722 SE2d 774) (2012).

As a general rule, reasonable trial tactics and strategies do not amount to ineffective assistance of counsel. The decisions on which witnesses to call and all other strategies and tactical decisions are the exclusive province of the lawyer after consultation with his or her client. Whether an attorney’s trial tactics were reasonable is a question of law, not fact. When assessing the reasonableness of counsel’s actions, a court must evaluate counsel’s performance from his or her perspective at the time of trial. This Court reviews a trial court’s ruling on an ineffective assistance claim on appeal by accepting the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.

(Citations and punctuation omitted.) McNair v. State, 330 Ga. App. 478, 486 (3) (767 SE2d 290) (2014). Moreover, as our Supreme Court has observed,

we are not limited in our assessment of the objective reasonableness of lawyer performance to the subjective reasons offered by trial counsel for his conduct. If a reasonable lawyer might have done what the actual lawyer did — whether for the same reasons given by the actual lawyer or different reasons entirely — the actual lawyer cannot be said to have performed in an objectively unreasonable way. [Cit.]

Shaw v. State, 292 Ga. 871, 875 (3) (a), n. 7 (742 SE2d 707) (2013).

(a) Hughley first asserts that his counsel was ineffective in failing to object to what amounted to testimony of the victim’s good character from his girlfriend, that he was “laid back,” “stayed to himself” and was “lovable” and “goofy” and that he “don’t play with nothing like that.” But at the hearing on Hughley’s motion for new trial, his trial counsel explained that he based his argument that the victim was armed upon the girlfriend’s testimony that she saw a black male “messing with [the victim’s] body” before he got into Hughley’s car and they “took off,” and that when she approached the victim she saw “his pants pockets inside out.” Trial counsel testified that he had “other information” that this individual had taken a firearm off the victim’s body. This testimony was the basis of his argument to the jury that a witness lied at trial about never leaving Hughley’s vehicle because he took the victim’s firearm before anyone else came on the scene.

Trial counsel further testified that, because he relied heavily upon the girlfriend’s credibility to support his theory of the case, he argued to the jury that she was a credible witness, speaking from emotion, who had no reason to lie. Additionally, he “gave her a lot of leeway in the things that she testified to” because she was “crying, was very distraught and upset.” He believed on balance, considering the way that the testimony was delivered and the jury’s acquittal of Hughley on the murder charge, that this witness’ statements did not hurt his case. Given trial counsel’s stated reasons for not attacking this witness — that he did not want to attack her credibility because he needed the jury to believe her testimony to bolster his theory that the victim was armed, and because he did not wish to attack the witness while she was upset — the trial court was authorized to find that counsel applied a valid trial strategy and was not ineffective in his tactical decision not to object. See Kilpatrick v. State, 276 Ga. 151, 152-153 (2) (575 SE2d 478) (2003) (trial counsel not ineffective in choosing not to object to testimony from victim’s mother to avoid appearing insensitive before jury).

(b) (i) Next, Hughley contends that his counsel was ineffective in failing to impeach two of the State’s witnesses — the two female occupants of Hughley’s vehicle — with a prior inconsistent statement conflicting with their trial testimony that they did not see the victim with a firearm. The two witnesses were videotaped while they were alone together in a police interview room. Hughley asserts that the witnesses “agreed that [the victim] had a gun, and concluded that it must have been removed from his body before the police arrived,” and that trial counsel should have cross-examined these witnesses on this statement. But this is by no means as clear as Hughley contends.

The audio of the recording is noisy and only intermittently audible. There is no discernible context, other than that the witnesses, unaware that they are being recorded, are discussing in hushed voices “get[ting] your s-t straight” and “mak[ing] it beneficial to him,” presumably Hughley. Shortly before the exchange pointed out by Hughley, there are audible remarks referring to what an unnamed individual “did — and I did too — even though we were both unarmed — I didn’t see him,” and a reference to someone being “beat up” and “somebody did it after we broke.” Both witnesses then exclaim, “I don’t know” and throw their hands out in a gesture of uncertainty or confusion. Immediately afterward, talking over each other, they say, “They took it — they took it from him.”

Even assuming that this cryptic reference to “they,” “it,” and “him” refers to persons unknown taking a firearm from the victim, it appears to be nothing more than speculation in the midst of the witnesses’ attempt “to get [their stories] straight” for the police, particularly in light of the other statements made at the time. Moreover, as counsel pointed out at the hearing, Hughley’s contention that his own testimony was the only evidence the victim had a gun was incorrect. Trial counsel already had adduced testimony from the victim’s girlfriend that she saw an individual leaning over the victim and “messing with him,” and that she found his pockets turned out. Finally, trial counsel testified at the hearing on the motion for new trial that he believed “that we were able to tie all of the issues up together” and that “the jury did believe our theory of the case in general.”* * He could not remember specific quotes or how he used them, but he testified that he argued from the police videotapes during closing, which was not recorded except for counsel’s objections.

Decided February 27, 2015.

Kevin A. Anderson, Jimmonique R. S. Rodgers, for appellant.

Tracy Graham-Lawson, District Attorney, Sheryl D. Freeman, Elizabeth A. Baker, Assistant District Attorneys, for appellee.

“An ambiguous or silent record is not sufficient to disprove the strong and continuing presumption of competent performance. Therefore, where the record is incomplete or unclear about counsel’s actions, we will presume that he did what he should have done.” (Citations and punctuation omitted.) Shaw, supra, 292 Ga. at 874 (3) (a), n. 5. Under these circumstances, Hughley cannot demonstrate either that counsel’s performance was deficient in this regard or that, if so, it affected the outcome of the trial.

(ii) Hughley also contends in this enumeration of error that trial counsel was ineffective in failing to request a charge on prior inconsistent statements, but the jury was charged on prior inconsistent statements. This contention is therefore without merit. Jarrett v. State, 299 Ga. App. 525, 531 (7) (a) (683 SE2d 116) (2009).

(c) Finally, Hughley contends that his counsel was ineffective in presenting a defense of voluntary manslaughter and then failing to seek an appropriate charge on justification as to the lesser included offense. Hughley having failed to show plain error in the charge on justification, see Division 2, supra, he cannot show prejudice sufficient to satisfy the second prong of the Strickland standard in the circumstances of this case. Shaw, supra, 292 Ga. at 877 (3) (c), n. 11.

Reviewing the record as a whole in light of the applicable standard, the evidence is sufficient to support the trial court’s determination that Hughley’s trial counsel did not provide ineffective assistance.

Judgment affirmed.

Barnes, P. J., and Branch, J., concur.

       The jury found Hughley not guilty of felony murder and one count of aggravated assault with intent to murder. The trial court merged the two possession charges and merged the aggravated assault conviction into the voluntary manslaughter conviction.

       We have found it “doubtful” that the “confused babbling of a man obviously under the influence of intoxicants . . . would arouse the fears of a reasonable man,” at least when communicated via tape recording. McDonald v. State, 182 Ga.App. 509, 511 (1) (356 SE2d 264) (1987).

       Because Hughley’s trial took place in 2011, we review for plain error under the old Evidence Code. See Durham v. State, 292 Ga. 239, 240 (2) (734 SE2d 377) (2012).

       In Prather, we noted the Supreme Court’s holding “[i]n the analogous situation of a felony-murder” that “a felony which is an included offense of another felony which is charged in an indictment may constitute the underlying felony upon which conviction of felony murder may be grounded, given adequate proof and correct jury instructions.” (Citation, punctuation and emphasis omitted.) 259 Ga. App. at 443 (1).

       Trial counsel testified at the hearing on the motion for new trial that he interpreted the “don’t play” remark not to mean that the victim “didn’t play with guns” but that “he would have been the first one in the house” if he heard gunshots.

       Hughley failed to question trial counsel regarding his contention that counsel was ineffective in not asking for a continuing objection to such testimony. “Absent testimony to the contrary, counsel’s actions are presumed strategic. [Cit.]” Hendrix v. State, 328 Ga. App. 819, 821-822 (2) (b) (762 SE2d 820) (2014); see also Shaw, supra, 292 Ga. at 876 (3) (b).

       Hughley’s conviction on a lesser included offense on the count of malice murder and acquittal on counts of felony murder and aggravated assault with intent to murder “strongly supports the conclusion that the assistance actually rendered by defendant’s trial counsel fell within that broad range of reasonably effective assistance which members of the bar in good standing are presumed to render.” (Citations omitted.) Green v. State, 218 Ga.App. 648, 651 (3) (a) (463 SE2d 133) (1995).


source: Caselaw Access Project

author: Miller, Judge.

license: Public Domain

text:
    A14A1453.
    GORDON v. ABRAHAMS.
    (769 SE2d 544)
   Miller, Judge.

Randall Gordon petitioned for modification of the child custody and support terms that had been established by settlement agreement with his child’s mother, Arlene Abrahams. The trial court denied Gordon’s petition and ordered Gordon to pay attorney fees and guardian ad litem (“GAL”) fees. Gordon appeals, contending that the trial court erred in (1) refusing to modify custody based on changed circumstances; (2) denying his request for additional closing argument; and (3) awarding fees. For the reasons that follow, we affirm.

We will affirm a trial court’s decision on a petition to change custody if there is any reasonable evidence in the record to support it. When reviewing a child custody decision, this Court views the evidence presented in the light most favorable to upholding the trial court’s order.

(Citations and punctuation omitted.) Lynch v. Horton, 302 Ga. App. 597 (692 SE2d 34) (2010).

So viewed, the record shows that Gordon and Abrahams are the parents of a ten-year-old son. Gordon and Abrahams never married, and after they separated, Gordon legitimated the child. Following mediation, the parties entered into a settlement agreement in June 2011 regarding custody and support. Pursuant to the settlement agreement, Gordon and Abrahams shared joint legal custody of their son, and Abrahams had primary physical custody, with Gordon enjoying liberal visitation. In August 2011, Gordon petitioned for a change of child custody and support, seeking primary physical custody of the child and a morality clause to prevent Abrahams from having overnight guests.

Much of the evidence at the hearing on Gordon’s petition focused on Abrahams’s boyfriend. A few days after Gordon filed his petition, the child reported to Gordon that Abrahams’s boyfriend had tickled him and he did not like it. Gordon suspected child abuse and took the child to the doctor for a physical exam; he also reported his suspicions to the police and to the Division of Family and Children Services (“DFCS”). Ultimately, the authorities found no evidence of abuse; no charges were ever brought against Abrahams’s boyfriend; and DFCS never opened a case.

Abrahams’s boyfriend had been convicted in California in 1998 of unlawful sexual intercourse with a minor more than three years younger than him. However, aside from the tickling incident, there were no allegations that Abrahams’s boyfriend had sexually abused or acted improperly toward Abrahams’s and Gordon’s son, or toward Abrahams’s teenaged daughter.

Abrahams’s boyfriend does not live with her, but he stays at her home approximately two weekends a month and spends the night during those visits. At the time of the hearing, Abrahams’s boyfriend was married to a different woman but had filed for divorce.

Abrahams is a member of the National Guard, for which she receives income, but she is also financially reliant on her boyfriend. Abrahams was sometimes late on her rent and had twice been threatened with eviction from her apartment. After they separated, Gordon co-signed Abrahams’s lease, but he subsequently removed himself from the lease. Abrahams’s boyfriend was then substituted as co-signor, and he obtained rental insurance for her apartment.

Although the GAL expressed concern that Abrahams was involved with a married man and somewhat financially unstable, he recommended that Abrahams retain primary physical custody of the child. The GAL also found that both Abrahams and Gordon enjoyed great relationships with the child.

Following the hearing, the trial court found no material change in circumstances. This appeal ensued.

1. Gordon contends that the trial court erred in finding no changed circumstances. We disagree.

A petition to change child custody should be granted only if the trial court finds that there has been a material change of condition affecting the welfare of the child since the last custody award. If there has been such a change, then the court should base its new custody decision on the best interest of the child. The evidence sufficient to warrant a modification of custody can consist of a change in material conditions which have a positive effect on the child’s welfare as well as changes which adversely affect the child.

(Citation and punctuation omitted.) Viskup v. Viskup, 291 Ga. 103, 105 (2) (727 SE2d 97) (2012).

Gordon argues that the trial court erroneously considered only the change in circumstances that occurred during the two-month period between the entry of the settlement agreement and the filing of his petition. However, it is clear from the trial court’s final order that it considered all of the evidence before it, including the facts that existed before the first custody order as well as events that occurred before and after Gordon filed his petition. Specifically, the trial court found that Gordon knew about Abrahams’s relationship with her boyfriend by March 2011, well before the parties entered into the settlement agreement in June of that year. The trial court determined that, although Gordon’s home was more peaceful and pleasant, and Gordon was more financially stable, he had not shown a material change in circumstances.

Gordon also argues that Abrahams was living with her boyfriend, which constituted a change in circumstances. However, a parent’s cohabitation is not a basis for a change in custody absent some evidence of harm to the child. See Moses v. King, 281 Ga. App. 687, 691-692 (1) (637 SE2d 97) (2006) (trial court erred in modifying custody where mother’s cohabitation was not new or having an adverse effect on the child); Livesay v. Hilley, 190 Ga. App. 655, 656-657 (2) (379 SE2d 557) (1989) (where mother’s cohabitation had no adverse effect on the child, it did not justify a change in custody). Here, the evidence showed that Abrahams’s boyfriend did not live with her. Even if Abrahams and her boyfriend were cohabitating, there was no evidence that this relationship was a material change of condition having an adverse effect on the child. Thus, there was reasonable evidence to support the trial court’s decision to deny Gordon’s petition.

2. Gordon contends that the trial court erred by denying him an opportunity to present additional closing argument. We discern no error.

OCGA § 9-10-186 pertinently provides:

In civil actions, where the burden of proof rests with the plaintiff, the plaintiff is entitled to the opening and concluding arguments except that if the defendant introduces no evidence or admits a prima-facie case, the defendant shall be entitled to open and conclude. . . .

It is reversible error for a trial court to refuse completely the plaintiff’s request to make a closing argument. See Wilson v. Wilson, 277 Ga. 801, 804 (1) (596 SE2d 392) (2004). “Although a party has a right to closing argument when requested, it is within the trial court’s discretion to limit closing argument with respect to time and content.” Alexandrov v. Alexandrov, 289 Ga. 126, 127 (2) (709 SE2d 778) (2011).

At the hearing on Gordon’s petition, after the close of evidence, Gordon’s trial counsel made his closing argument. Then, after Abra-hams’s trial counsel gave his closing statement, Gordon’s trial counsel requested “a brief rebuttal,” which the trial court denied.

From the transcript of the hearing, it is not clear whether the trial court interpreted Gordon’s trial counsel’s request for a “rebuttal” as a request for a final closing argument or a request to reopen the case and present other evidence. Pretermitting the question of whether Gordon waived this claim of error by failing to clarify his request to the trial court, we find that the trial court did not abuse its discretion in refusing Gordon’s request for more argument. See Alexandrov, supra, 289 Ga. at 127 (2). Although Gordon argues that reversal is required because he was completely denied his right to closing argument, his contention is belied by the record. Compare Wilson, supra, 277 Ga. at 804 (1) (party not permitted to make any closing argument); Stewart v. Cardella, 269 Ga. App. 32, 33-34 (2) (602 SE2d 915) (2004) (same).

3. Gordon contends that the trial court erred in awarding Abra-hams attorney fees and in awarding fees to the GAL.

(a) Gordon contends that the trial court did not have the authority to enter an award for attorney fees or GAL fees because the trial court did not expressly reserve the issues in its final order. We disagree.

Gordon requested the appointment of the GAL in August 2011. In October 2011, the trial court appointed the GAL and indicated that it would decide the issue of fees later.

Both Gordon and Abrahams requested attorney fees prior to the hearing on Gordon’s petition for modification of custody and, at the start of the hearing, Gordon requested that the trial court reserve the issue of attorney fees until the conclusion of the matter. At the close of the hearing, the trial court indicated that it would do so. After the trial court issued its order denying modification in February 2013, which made no mention of fees, Abrahams’s counsel submitted a letter brief in support of his claim for $6,700 in attorney fees. At the hearing on Gordon’s new trial motion, Abrahams’s trial counsel presented evidence as to his rate and bills. In August 2013, the trial court awarded Abrahams $4,500 in attorney fees pursuant to OCGA § 19-9-3 (g) and ordered Gordon to pay two-thirds of the GAL fees.

Gordon argues that the trial court did not have the authority to enter an order for attorney fees or GAL fees outside the term of court in which it entered the order denying modification. See OCGA § 15-6-3 (3) (setting forth terms of court for Fulton County Superior Court). The trial court’s order denying Gordon’s petition for modification, however, did not address the issue of attorney fees, which was pending, and an order adjudicating fewer than all the claims is not final. See OCGA § 9-11-54 (b). Here, the fact that the term during which the trial court denied the modification had expired was of no consequence because there was no final judgment until the reserved issues of attorney fees and GAL fees were resolved. See Miller v. Miller, 288 Ga. 274, 282 (4) (705 SE2d 839) (2010).

(b) Gordon contends that the trial court erred in awarding attorney fees because there was no showing that the fees were necessary. Again, we disagree.

“Generally, an award of attorney fees is not available in Georgia unless authorized by statute or contract.” (Citation omitted.) Moon v. Moon, 277 Ga. 375, 379 (6) (589 SE2d 76) (2003). Here, the trial court specified that it was awarding attorney fees pursuant to OCGA § 19-9-3 (g), which authorizes the trial court to “order reasonable attorney’s fees and expenses of litigation, experts, and the child’s guardian ad litem and other costs of the child custody action and pretrial proceedings to be paid by the parties in proportions and at times determined by the judge.” The trial court has wide discretion to award attorney fees under OCGA § 19-9-3 (g). See Moore v. Moore-McKinney, 297 Ga. App. 703, 712 (4) (678 SE2d 152) (2009).

In support of the request for fees, Abrahams’s counsel submitted a letter brief requesting $6,700 in attorney fees to date, noting that he had prepared discovery and entered into settlement negotiations. At the hearing on fees, Abrahams’s trial counsel requested $9,700 in fees to date. Abrahams’s counsel testified that his rate was $150 per hour; that he was in his fourth year of practice; that his work was overseen by a partner who billed $250 per hour; that he had worked on the case for 55.4 hours prior to the hearing; and that the fees were reasonable. Abrahams’s counsel offered his billing statements to the trial court for in camera inspection, and Gordon cross-examined Abrahams’s counsel as to the billing records.

Given trial counsel’s testimony and cross-examination, we cannot say that the trial court abused its discretion in determining the amount of attorney fees to award. See Fulton County Bd. of Assessors v. Greenfield Investment Group, 314 Ga. App. 523, 526 (2) (724 SE2d 828) (2012).

Decided March 2, 2015.

Celeste F. Brewer, for appellant.

Miller & Brown, John B. Miller, P. Justin Thrailkill, Kessler & Solomiany, Dennis G. Collard, for appellee.

(c) Gordon contends that the trial court erred in awarding fees to the GAL absent an application. We discern no error.

As set forth above, OCGA § 19-9-3 (g) authorizes the trial court to order reasonable fees for the GAL. Uniform Superior Court Rule 24.9 8.g. provides:

It shall be within the [trial court’s] discretion to determine the amount of fees awarded to the GAL, and how payment of the fees shall be apportioned between the parties. The GAL’s requests for fees shall be considered, upon application properly served upon the parties and after an opportunity to be heard, unless waived. . . .

At the modification hearing, the GAL testified that his fees were $6,200. Following the fees hearing, in which Abrahams asked the trial court to order Gordon to pay the GAL fees since Gordon had requested the appointment, the trial court ordered Gordon to pay two-thirds of the GAL fees and ordered Abrahams to pay the remaining one-third of the fees.

At the time of the modification hearing, Gordon raised no objection to the GAL fees and requested no hearing on the matter. Accordingly, he waived any objection to the GAL fees. As to the apportionment of the fees, Gordon has not shown that the trial court abused its discretion. See Salmon-Davis v. Davis, 286 Ga. 456, 458-459 (3) (689 SE2d 303) (2010).

Judgment affirmed.

Doyle, P. J., concurs. Dillard, J., concurs fully in Divisions 2 and 3 and concurs in judgment only in Division 1.

       Gordon testified that he first learned of Abrahams’s relationship in July 2011, hut he later admitted that he had learned from his son that Abrahams was romantically involved with her boyfriend in March 2011, prior to the first custody order.

       “It is generally not error to refuse a reopening of the case after both parties have closed, and the trial court’s decision to deny a party permission will not be reversed absent a manifest abuse of discretion.” (Citation omitted.) Driver v. Driver, 292 Ga. 800, 805 (5) (741 SE2d 631) (2013).

       “A party cannot claim error where he himself committed or invited the error.” (Citation and punctuation omitted.) Adamson v. Gen. Elec. Co., 303 Ga. App. 741, 743 (2) (694 SE2d 363) (2010).

       The billing records were not admitted into evidence.


author: Phipps, Chief Judge.

text:
    A14A1715.
    PARROTT v. THE STATE.
    (769 SE2d 549)
   Phipps, Chief Judge.

For the shooting death of Cody Ward, a jury found Joseph Parrott guilty of voluntary manslaughter (as a lesser included offense to the charge of murder), aggravated assault, and possession of a firearm during the commission of a crime. Ward was initially sentenced on all three counts. But in post-conviction proceedings, the trial court vacated the aggravated assault sentence, merging the aggravated assault into the voluntary manslaughter for sentencing purposes.

In this appeal, Parrott contends that the trial court erred by failing to take corrective action when the prosecutor made an improper remark during closing argument, by not including certain instructions in its final charge to the jury, and by rejecting his claim of ineffective assistance of trial counsel. For reasons that follow, we affirm.

The trial evidence showed the following. Parrott was 16 years old with an eighth-grade education when he fatally shot 19-year-old Ward. Parrott and Ward were neighbors, and part of the same circle of friends. During a temporary break-up between Ward and his girlfriend, Parrott had sex with her. Ward found out; he was upset and wanted to meet with Parrott.

On the day in question, November 21, 2008, Parrott agreed to meet Ward at Ward’s home to discuss the situation. A mutual friend had left Ward’s home and walked to Parrott’s residence to accompany Parrott back to Ward’s house. As the mutual friend recounted at trial, in several calls he had with Parrott earlier that day, Parrott had expressed concern that “we were going to jump him [Parrott].” So as they walked together toward Ward’s house, Parrott carried with him a rifle. It was about 6:00 p.m.

Rather than walking directly to Ward’s residence, Parrott and the friend headed first to the residence of the friend’s girlfriend. She lived across the street from Ward. When Parrott and his friend had walked about 50 yards up the gravel driveway of the girlfriend’s residence, they heard footsteps behind them and looked back. It was Ward.

Parrott’s friend gave this account of the shooting that ensued. Ward — who “wasn’t running, he was just steadily walking up the driveway” — was about ten feet away. Parrott told Ward to stop; Ward stopped and put his hands up in the air. Parrott “started shooting I think he shot about four times.” Ward collapsed. As Ward lay on the ground, Parrott shot him several times in the back, then ran into nearby woods.

Ward was unarmed when he was fatally shot. As was later determined, one bullet entered Ward’s front abdomen and passed through his aorta; a second bullet entered Ward’s back and passed through his kidney, liver, and diaphragm; a third bullet entered his upper buttock and lodged in his sacrum. The pathologist who conducted the autopsy opined that, while the third bullet was a “minor gunshot wound,” either of the other two bullets could have inflicted fatal injury.

A police investigator assigned to the case testified that Parrott was located the morning after the shooting and brought into the sheriff’s office. Parrott agreed to give a statement. Therein, Parrott admitted that he had discharged the rifle about four times before Ward hit the ground. The investigator described that, as Parrott recounted the incident, “[Parrott] was very cold. It was almost like he didn’t care. . . . There was no emotion at all.”

Parrott, who was the sole defense witness, admitted shooting Ward and further gave this account. When his friend arrived at his house, the friend told him that they were headed to Ward’s house. The friend had told Parrott that Ward had been showing his guns to friends who were at his house, so Parrott carried a gun with him. As Parrott explained, “I really didn’t intend — I just figured if I had it maybe he wouldn’t mess with me.” When they reached Ward’s driveway, however, the friend told Parrott that he wanted to first stop by his girlfriend’s residence. As they walked up the driveway of her residence, Parrott recalled, “I heard someone come up behind me.” Parrott testified that he was already afraid, and so, “[b]efore I even turned around I pulled the gun down.” Parrott described that “[Ward] was running,” and, “I said stop. And — But I was already nervous — my hands were shaking • — ■ and I just pulled the trigger.” In a matter of two seconds, Parrott estimated, he had pulled the trigger three or four times. He added, “I was shooting towards [Ward], but I really wasn’t trying to shoot him.”

1. Citing OCGA § 17-8-75, Parrott contends that the trial court erred by failing to take curative action when the prosecutor in-eluded what he claims was a “future dangerousness” remark during closing argument.

It is well settled that the burden is on the appellant “who asserts error to show it affirmatively by the record”; further, “an appellant, in order to secure a reversal, must demonstrate not only error but harm.” But as Parrott conceded in his appellate brief, closing arguments were not transcribed. “[W]here the transcript does not fully disclose what transpired in the trial court, the burden is on the complaining party to have the record completed pursuant to OCGA § 5-6-41 ” Because Parrott did not supplement the transcript in accordance with that statute, this contention provides “nothing for the appellate court to review.”

Although Parrott asserts that, through his testimony at the hearing on the motion for new trial, he established that the prosecutor made an impermissible future dangerousness remark, “[t]esti-mony at the hearing on the motion for new trial in this case is not a sufficient substitute for a transcript” setting forth closing arguments.

2. Parrott contends that the trial court erred by failing to instruct the jury on the principle that “threats and menaces of what proved to be the unarmed victim could be a sufficient basis for a reasonable man to respond with deadly force.”

Parrott acknowledges that he did not request such an instruction, but relies on the rule enunciated in Tarvestad v. State: “The trial court must charge the jury on the defendant’s sole defense, even without a written request, if there is some evidence to support the charge.”*

Assuming, but not deciding, that such an instruction was authorized by the evidence, we find no reversible error. Parrott states in his brief that “[his] sole defense in the instant case was self-defense”; further, he acknowledges that the trial court charged the jury on self-defense and on justification.

The record illustrates that Parrott’s defense was that the state failed to carry its burden of proving that the homicide was not justified. Further, the record confirms that the trial court fully and adequately instructed the jury on justification; self-defense, including the statutory language “reasonably believes” found in OCGA § 16-3-21 (a); and on the state’s burden to prove beyond a reasonable doubt that Parrott’s actions had not been justified. Although Par-rott maintains that the trial court should have given an additional explanatory charge on the “threats and menaces” principle, “ft]he giving of an otherwise correct charge is not rendered erroneous for lack of an additional explanatory charge, in the absence of an appropriate request.” Given these circumstances, Parrott has demonstrated no violation of the rule that requires that a defendant’s sole defense must be charged even when not requested.

3. Parrott contends that the trial court erred by rejecting his claim of ineffective assistance of trial counsel. Pursuant to Strickland v. Washington,

[t]o prevail on a claim of ineffective assistance of counsel, a defendant must show that counsel’s performance was deficient and that the deficient performance so prejudiced the defendant that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different. If an appellant fails to meet his or her burden of proving either prong of the Strickland test, the reviewing court does not have to examine the other prong.

“In reviewing the trial court’s decision, we accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.”

(a) Parrott complains that his trial lawyer did not request a curative instruction after the prosecutor’s alleged future dangerousness remark.

Parrott’s trial lawyer did not testify at the hearing on motion for new trial. “It is extremely difficult to overcome the presumption of reasonable professional assistance where counsel does not testify.” Moreover, as noted in Division l, the closing arguments were not transcribed. “[Speculation that error may have occurred is insufficient to show any deficiency on the part of counsel, or prejudice therefrom, and is insufficient to show reversible error.”

(b) Parrott posits that his self-defense claim came down to whether the jury “reasonably believed” that he needed to use deadly force. He asserts that his trial lawyer failed to present evidence of what he claims showed “threats and menaces made by the deceased towards [him]” and evidence of what he claims showed “goading and taunting endured by [him] right before the shooting.” Further, Parrott complains that his trial lawyer did not request a jury instruction on the principle concerning threats and menaces.

At the hearing on motion for new trial, Parrott adduced evidence of two encounters he had with Ward prior to the day of the shooting, and evidence of contentious phone calls he (Parrott) received on the day of the shooting. Regarding the first such encounter, Parrott showed at the new trial hearing that, about six to eight weeks before the shooting, Ward appeared at his (Parrott’s) home at about 3:00 a.m. looking for his (Ward’s) girlfriend. Finding her there, Ward became angry and an ensuing verbal altercation drew the attention of Parrott’s grandfather with whom Parrott was then living. The grandfather demanded that Ward and his girlfriend leave. As the two complied, Ward said to Parrott something to the effect: “I’m going to get you.” As Parrott recollected at the new trial hearing, “[Ward] was mad when my granddaddy told him he had to leave.”

Regarding a second encounter, Parrott testified at the new trial hearing that, about a week before the shooting:

[Ward] was driving a truck. And he was coming out the driveway. He said something but he was driving fast, but I didn’t say anything to him. I just got out of the way. The way he was driving, I figured I would just move out of his way. But I don’t know what he said. He hollered to somebody, but I don’t know what he said. ... I was scared but I don’t know what his intentions were. I don’t know if he was just trying to scare me or I don’t think he was trying to kill me.

To evince at the new trial hearing that multiple phone calls he received on the day of the shooting were relevant to his defense, Parrott testified to the following. Starting at about 4:30 p.m., Parrott began receiving calls from several individuals, including: (i) Ward; (ii) their mutual friend, who would ultimately be with Parrott at the time of the shooting; and (iii) that (mutual) friend’s girlfriend, whose driveway would be the site of the shooting. Parrott recounted that, when the telephone calls began, even the mutual friend was cursing him and saying, “I am going to come down there and beat you up”; that during each call, he had told the caller to leave him alone; that although he would hang up, he would immediately get another call; and that in the final phone call, the mutual friend had proposed something to the effect, “[Y]ou all are friends, we need to work this out.... I’m gonna come there and we will talk about it... and try to work it out.”

Parrott maintains on appeal that his trial lawyer’s performance was deficient in presenting a defense. Without evidence of those two cited encounters with Ward, without evidence of the multiple phone calls, and without a specific jury instruction on “threats and menaces,” Parrott claims that the jury was not able to “fully understand” what was on his mind when he left his residence with a gun and, further, was left without any legal mechanism to assess his claim of self-defense.

There is no merit in Parrott’s assertion that his trial counsel’s performance was deficient as alleged. The jury was apprised that Parrott had become fearful of Ward. In addition to the trial evidence recited above, the jury was presented the following. Concerning the night Ward discovered his girlfriend at Parrott’s residence, Parrott’s trial lawyer elicited testimony from Ward’s former girlfriend that, when Ward confronted her about being there, Parrott “just ran, he flew out.” And as she argued with Ward, Parrott’s grandfather interjected remarks to Ward, who then began “cussing the grandfather.”

Further, defense counsel highlighted on cross-examination of the mutual friend that, on the day of the shooting, the mutual friend repeatedly told Parrott that Ward wanted to talk to him; that Parrott had refused to go to Ward’s house because he feared being attacked by Ward; and that only after the friend agreed to accompany Parrott to Ward’s house, did Parrott agree to meet with Ward.

Moreover, the investigator who conducted Parrott’s police interview elaborated at trial that Parrott had begun his police statement by recounting that, prior to the shooting, he (Parrott) had received numerous telephone calls from his and Ward’s friends wanting him to meet with Ward to resolve the discord created by his sexual encounter with Ward’s girlfriend; that in one such call, Parrott had been told that Ward wanted to “beat his ass”; that Parrott had told the callers that he was afraid Ward would hurt him; that although he had initially refused their repeated requests to meet with Ward, Parrott was ultimately persuaded to go when a friend agreed to accompany him to Ward’s house; and that, when he left his residence to meet Ward, he took his rifle with him.

Additionally, Parrott’s trial lawyer elicited testimony from another state’s witness that, prior to the shooting, Parrott had become aware that Ward owned several firearms. And when he took the stand, Parrott testified that he had brought the rifle with him because he had been told that Ward had been showing off his guns earlier that day.

Hence, contrary to Parrott’s claim on appeal, the jury was presented evidence from which it could have concluded that he was fearful of being harmed by Ward; the jury was presented evidence that such fearfulness had prompted him to have the gun with him when he met with Ward; and the jury was aptly instructed on Parrott’s claim of self-defense.

(c) Parrott complains that his trial lawyer failed to introduce during the guilt-innocence phase of his trial certain evidence of his family, education, and psychological background.

On motion for new trial, Parrott presented the testimony of a psychologist with whom he had met for a half-day session in 2012 at the prison where Parrott was incarcerated. The psychologist was qualified at the hearing to give his opinions in the areas of childhood/ adolescent forensic psychology and trauma. The psychologist recounted that, during their half-day session, he interviewed Parrott about his family history and administered several tests relating to Parrott’s academic function, intelligence, and personality. The psychologist described Parrott’s family history as “[v] ery checkered” and “extremely disruptive” — noting that Parrott had lived with several different relatives; that he had not known his father’s identity for a number of years; that he had experienced “difficulties” with various “stepfather figures”; that he had lived in foster care; and that when he found his father, he lived with him for a few years until his father died of cancer. The psychologist determined from Parrott’s school records that he had been “seen as very difficult to handle”; that he had a “hard time getting along with other people”; that he had demonstrated “inattentive” and “disruptive” behavior; and that he was ultimately removed from general classes and placed in special education classes — not because of intellectual disability, but because of behavioral issues. The psychologist ascertained, based upon his own testing, that “[Parrott] has, at least, average IQ.” During their session, Parrott told the psychologist that he had been to psychiatric hospitals for depression and cutting his wrists. The psychologist testified that Parrott’s medical record showed that he had been prescribed an antidepressant. The psychologist described Parrott as “jumpy” and “very suspicious of other people and scared of other people.” The psychologist testified, “I certainly see [Parrott] as paranoid. I don’t know that he is psychotic, but I think he has a paranoid personality.” The psychologist elaborated, “[Parrott] was premature as a baby. So he was always, perhaps, shorter than many others.” According to the psychologist, Parrott was “very sensitive about his [stature]. He feels very insecure around other people. That kind of person usually wants to have a weapon somewhere close to them to put them more on an equal scale with others around them. So he is very much on the defensive.”

Although Parrott argues that his trial lawyer should have defended him based on that evidence of his family, education, and psychological background, “[s]uch after the fact disagreements about trial counsel’s approach to the case ... do not amount to a showing of ineffective assistance of trial counsel.”

While other counsel, had they represented appellant, may have exercised different judgment, the fact that trial counsel chose to try the case in the manner in which it was tried, and made certain difficult decisions regarding the defense tactics to be employed with which appellant and his present counsel now disagree, does not require a finding that the representation below was so inadequate as to amount to a denial of effective assistance of counsel.

Parrott has failed to demonstrate that his trial counsel performed deficiently by not introducing such evidence.

(d) Parrott complains that his trial lawyer did not introduce at the sentencing phase of his trial the cited evidence concerning his family, education, and psychological background.

At the sentencing hearing, when the court asked the respective parties for evidence in aggravation/mitigation of punishment, the prosecutor responded that the state had none. Parrott’s lawyer called to the stand Parrott’s grandfather, who testified that Parrott’s father had died, and that he had taken care of Parrott since 2003. Parrott’s grandfather summarized that “[Parrott] never had a shake or nothing” and asked the court for leniency in sentencing. Parrott’s lawyer then reminded the court that Parrott “was 16 years old at the time of the crime and only an eighth grade education”; further, Parrott’s lawyer asked the court to “show some mercy on [Parrott] based on his age and the facts and circumstances of the case as you heard them.”

The appropriate test for whether [Parrott’s] counsel was deficient is whether some reasonable lawyer at the trial could have acted, in the circumstances, as defense counsel acted .... We understand that post-conviction counsel will almost always be able to identify some potential mitigating evidence not presented . . . and that this alone does not render trial counsel’s performance deficient.

Decisions about which witnesses to call, if any, and when to call them are matters of strategy and thus “do not amount to deficient performance unless they are so unreasonable that no competent attorney would have made them under similar circumstances.” Moreover, “a fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.”

Decided March 2, 2015

Benjamin D. Goldberg, for appellant.

Scott L. Ballard, District Attorney, Robert W. Smith, Jr., Assistant District Attorney, for appellee.

Here, at the post-conviction hearing, the trial court heard the evidence that Parrott claims should have been introduced in mitigation, yet summarily ruled that it presented no basis for concluding that trial counsel was ineffective. Parrott has failed to demonstrate that, in so ruling, the trial court committed reversible error.

Judgment affirmed.

Ellington, P. J., and McMillian, J., concur.

       (“Where counsel in the hearing of the jury make statements of prejudicial matters which are not in evidence, it is the duty of the court to interpose and prevent the same. On objection made, the court shall also rebuke the counsel and by all needful and proper instructions to the jury endeavor to remove the improper impression from their minds; or, in his discretion, he may order a mistrial if the prosecuting attorney is the offender”)

       See Jones v. State, 288 Ga. 431, 433-434 (704 SE2d 776) (2011) (reiterating that “it is improper for a prosecutor to argue to the jury during the guilt-innocence phase of a trial that if the defendant is found not guilty, the defendant will pose a threat of future dangerousness”).

        Griffin v. State, 265 Ga. 552, 555 (10) (458 SE2d 813) (1995), quoting Roach v. State, 221 Ga. 783, 786 (4) (147 SE2d 299) (1966).

        Griffin, supra at 554 (6) (citation omitted).

       See, however, Scott v. State, 290 Ga. 883, 885 (2) (725 SE2d 305) (2012) (“A closing argument is to be judged in the context in which it is made.”) (citation omitted); Arrington v. State, 286 Ga. 335, 345-346 (16) (a) (687 SE2d 438) (2009) (holding that an alleged error under OCGA § 17-8-75 “is subject to harmless error analysis”); Walker v. State, 281 Ga. 521, 524 (5) (640 SE2d 274) (2007) (concluding that the trial court did not commit reversible error by failing to perform its duty under OCGA § 17-8-75, where the improper statement involved speculation about a potential defense appellant clearly did not assert at trial, where it consisted of only one sentence spoken simultaneously with defense counsel’s prompt objection, and where the trial court in preliminary instructions before closing told the jury that the argument of counsel was not evidence); Wright v. State, 319 Ga. App. 723, 730-731 (3) (a) (738 SE2d 310) (2013) (concluding that based upon the totality of the circumstances, no reversible error was committed by the trial court’s failing to satisfy OCGA § 17-8-75 when the prosecutor made the single comment, “the next time [the defendant] does this, he might shoot somebody”).

        Glass v. State, 289 Ga. 542, 545 (2) (712 SE2d 851) (2011) (citations omitted).

       Id. (citations and punctuation omitted).

       Id. (citations and punctuation omitted). See generally Sears v. State, 290 Ga. 1, 3 (3), n. 2 (717 SE2d 453) (2011) (“[T]he absence of a potentially relevant part of the record is properly construed against the appellant.”) (citation omitted); State v. Nejad, 286 Ga. 695, 698 (690 SE2d 846) (2010) (holding that “the burden is on the party which contends the transcript does not fully disclose what transpired at trial to have the record completed at the trial court pursuant to OCGA § 5-6-41 (f)” and “[w]here the transcript is not supplemented, the complaining party does not carry its burden of showing by the record the facts necessary to establish its point”); Campbell v. State, 269 Ga. 186, 188 (11) (496 SE2d 724) (1998) (“Because closing arguments were not transcribed, [appellant] cannot show that any impermissible argument was made or that, if it was, he objected thereto.”). See further cases cited in footnote 5, supra.

        Facison v. State, 152 Ga. App. 645, 647 (1) (263 SE2d 523) (1979); see Sawyer v. State, 161 Ga. App. 479, 482 (1) (288 SE2d 108) (1982) (“[W]hen the killing is claimed to have been done on account of a reasonable fear in the mind of the slayer, threats accompanied by menaces, though the latter do not amount to an actual assault, may in some instances be sufficient to arouse the fears of a reasonable man that his life is in danger or that a felony is about to be perpetrated upon him.”) (citations omitted); Suggested Pattern Jury Instructions, Vol. II: Criminal Cases, § 3.16.10 (4th ed.).

       261 Ga. 605 (409 SE2d 513) (1991).

       Id. at 606 (citations omitted).

       The state counters, inter alia, that such a charge was not authorized by the evidence, asserting a lack of any “menace” committed by Ward.

       Pursuant to OCGA § 16-3-21 (a), “a person is justified in using force which is intended or likely to cause death or great bodily harm only if he or she reasonably believes that such force is necessary to prevent death or great bodily injury to himself or herself or a third person or to prevent the commission of a forcible felony.”

       See generally Hill v. State, 290 Ga. 493, 497-498 (5) (722 SE2d 708) (2012).

        Smith v. State, 279 Ga. 172, 174 (2) (611 SE2d 1) (2005) (citation and punctuation omitted).

       See id. at 174-175 (2) (holding that the lack of “an additional explanatory charge” does not amount to a violation of the rule that the trial court must charge sua sponte on a defendant’s sole defense if supported by evidence, where jurors were given complete and correct instructions on the defendant’s sole defense); accord Hoffler v. State, 292 Ga. 537, 542-543 (4) (739 SE2d 362) (2013) (“[Ejven assuming arguendo that there was evidence that [the defendant] was not the original aggressor and that retreat was indeed in issue, the failure to charge on the lack of duty to retreat does not mandate reversal because [defendant’s] defense of self-defense was fairly presented to the jury, and the jury was fully instructed on the law of justification and self-defense.”) (citation omitted); Edmonds v. State, 275 Ga. 450, 454 (4) (569 SE2d 530) (2002) (“[E] ven assuming that retreat was in issue and [the defendant’s] sole defense was self-defense, the failure to charge on the lack of duty to retreat would not require reversal because [the defendant’s] defense of self-defense was fairly presented to the jury.”) (citation omitted).

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

        Bridges v. State, 286 Ga. 535, 537 (1) (690 SE2d 136) (2010) (citations and punctuation omitted.)

       Id. (citations and punctuation omitted).

        Maxwell v. State, 290 Ga. 574, 575 (2) (722 SE2d 763) (2012) (citation and punctuation omitted).

       Supra.

        Norton v. State, 293 Ga. 332, 339 (7) (d) (745 SE2d 630) (2013) (citation and punctuation omitted).

       See Division 2, supra.

       See Roper v. State, 281 Ga. 878, 881 (2) (644 SE2d 120) (2007) (“Because the [justification/ self-defense] charge that was given was adjusted to the evidence and was not erroneously incomplete, [appellant’s] defense counsel was not ineffective in her failure either to object or to request a more expansive instruction.”) (citation omitted); McDaniel v. State, 279 Ga. 801, 803 (2) (c) (621 SE2d 424) (2005) (“The decisions on which witnesses to call, whether and how to conduct cross examinations,... and all other strategies and tactical decisions are the exclusive province of the lawyer after consultation with his client.”) (citation and punctuation omitted); accord Render v. State, 288 Ga. 420, 424 (2) (b) (704 SE2d 767) (2011).

        Reed v. State, 285 Ga. 64, 66 (6) (673 SE2d 246) (2009).

        Baugh v. State, 293 Ga. 52, 54 (2) (743 SE2d 407) (2013) (citations omitted).

       See further Division 3 (b), supra.

       See generally Gaither v. Cannida, 258 Ga. 557, 558-559 (2) (372 SE2d 429) (1988) (analyzing, within the context of an appeal from the grant of habeas corpus, that “the standards set forth in Strickland, supra, . . . technically may not apply” to the sentencing phase on a non-death-penalty case, then reasoning that the standards can “be employed in a case such as the present one, in which there is a range in the possible sentences to be imposed, hence a corresponding duty on counsel to seek whatever mitigation in sentencing may be reasonably available and appropriate”).

        Head v. Carr, 273 Ga. 613, 625 (4) (C) (3) (544 SE2d 409) (2001) (citations and punctuation omitted); see Zant v. Moon, 264 Ga. 93, 97-98 (2) (440 SE2d 657) (1994) (reiterating that, “in considering ineffective assistance of counsel claims, ‘[reviewing courts] address not what is prudent or appropriate, but only what is constitutionally compelled’ ”), quoting Burger v. Kemp, 483 U. S. 776, 794 (IV) (107 SCt 3114, 97 LE2d 638) (1987).

        Miller v. State, 296 Ga. 9, 12 (4) (a) (764 SE2d 823) (2014) (citations and punctuation omitted).

        Wright v. State, 285 Ga. 428, 435 (6) (a) (677 SE2d 82) (2009) (citation omitted).

       As noted above, during post-conviction proceedings, the trial court vacated an initial sentence on the aggravated assault charge, merging that offense into the voluntary manslaughter for purposes of sentencing. Parrott makes no contention that the sentences thus imposed (for voluntary manslaughter and possession of a firearm during the commission of a crime) fell outside their respective statutory limits.

       See Baines v. State, 201 Ga. App. 354, 355 (411 SE2d 95) (1991); see also Zant, supra at 97-98 (2) (determining that petitioner failed to show a reasonable probability that, if adduced at the sentencing phase of the trial, psychiatric and background evidence presented in the habeas hearing would have resulted in a lighter sentence, where such evidence did “not paint an entirely sympathetic picture of [petitioner],” but showed he had been “in trouble as a juvenile,” and where evidence allowed for finding that “he was even more dangerous than the ordinary criminal”); Hance v. Kemp, 258 Ga. 649, 658 (2) (d) (373 SE2d 184) (1988) (determining that petitioner failed to establish requisite prejudice for failing to adduce as mitigation evidence the testimony of a psychologist, whose testimony “may have offered a plausible contributing factor (mental and physical abuse inflicted upon him and his sister by his stepfather) for [petitioner’s] personality disorder, but [the psychologist’s] descriptions of [petitioner’s] ‘marked paranoia,’ “homicidal ideation,’ aggressiveness and ‘hostility’ would have given the prosecutor further grounds to argue [petitioner’s] dangerousness”); Mallon v. State, 266 Ga. App. 394, 397-398 (3) (597 SE2d 497) (2004); Conklin v. Schofield, 366 F3d 1191, 1204 (III) (B) (11th Cir. 2004) (“[C]ounsel need not present all available mitigating circumstance evidence in order for counsel’s conduct to be deemed effective at the sentencing stage. Indeed, the [United States] Supreme Court and this Court in a number of cases have held counsel’s performance to be constitutionally sufficient when no mitigating circumstance evidence at all was introduced, even though such evidence... was available.”) (citation and punctuation omitted; emphasis in original).


author: Ray, Judge.

text:
    A14A1806.
    NGUYEN v. THE STATE.
    (769 SE2d 558)
   Ray, Judge.

After a trial in which he represented himself pro se, Trung Nguyen was convicted of one count of driving under the influence (less safe) (OCGA § 40-6-391 (a) (1)). Nguyen appeals from his conviction, arguing that the trial court erred in admitting a similar transaction into evidence and that the State erred in discussing such evidence during its opening statement. Nguyen also argues that the trial court erred in ruling that he knowingly and intelligently waived his right to counsel. For the following reasons, we affirm.

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. 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, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

(Citations and punctuation omitted.) Owens v. State, 326 Ga. App. 692, 692 (757 SE2d 288) (2014).

The evidence at trial showed that Officer Matt Reeves of the Flowery Branch Police Department initiated a traffic stop on Nguyen’s vehicle after noticing he was exhibiting a “pattern of erratic and less-safe driving” that included weaving in and out of his lane, accelerating and decelerating his speed, and failing to use his brake lights. As the officer approached the vehicle, he smelled an odor of alcohol emanating from the vehicle’s open window and noticed that Nguyen’s eyes had a glazed, watery, and bloodshot appearance. Nguyen told the officer that he had been drinking beer that evening. The officer then gave Nguyen field sobriety tests, and from the tests’ results, the officer concluded that Nguyen was “impaired. He shouldn’t have been on the road. He was too drunk to have been on the road.” The officer also testified that he overheard Nguyen state, in a phone call to his wife, that “I don’t know how I got so drunk, but I’m under arrest for DUI.” A blood test taken approximately an hour and a half after the initial traffic stop revealed a blood alcohol level of0.078. The State provided expert testimony that Nguyen’s blood alcohol content at the time of the stop was likely between 0.088 and 0.103.

1. Nguyen asserts that the trial court erred in failing to adequately ascertain that the waiver of his right to counsel was knowing and voluntary. We disagree.

As an accused in a prosecution that could end up in imprisonment, Nguyen had a constitutional right to counsel. The determination of whether an accused has intelligently waived this constitutional right depends upon the particular facts and circumstances of each case. Dellinger v. State, 269 Ga. App. 878, 878 (2) (a) (605 SE2d 632) (2004). Although an accused may waive this right, the waiver is only valid 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.

(Footnote omitted.) Middleton v. State, 254 Ga. App. 648, 648 (1) (563 SE2d 543) (2002). Nevertheless, “it is not incumbent upon the trial court to make each of these inquiries.” (Citation, punctuation and footnote omitted.) Bush v. State, 268 Ga. App. 200, 202 (2) (601 SE2d 511) (2004). See Hightower v. State, 252 Ga. App. 811, 811 (557 SE2d 434) (2001) (“[c]ontrary to the implication in some appellate decisions, the warnings required to meet constitutional muster need not take any rigid form, and specific questions need not be asked on the record”). Rather, the record need only reflect “that the defendant was made aware of the dangers of self-representation and nevertheless made a knowing and intelligent waiver.” (Citation and punctuation omitted.) Cook v. State, 297 Ga. App. 701, 702 (678 SE2d 160) (2009). The determination of “whether a defendant has been sufficiently warned about the dangers of self-representation will turn on the peculiar facts and circumstances of each case.” Simpson v. State, 238 Ga. App. 109, 112 (1) (517 SE2d 830) (1999) (finding that where, inter alia, trial court told him it would be “extraordinarily unwise” to represent himself and defendant had an “ongoing dialogue” with appointed counsel about the dangers of such, defendant knowingly and intelligently waived his right to counsel despite fact that the trial court did not make certain specific inquiries).

In the present case, Nguyen appeared pro se when the case was called to trial, and he stated that he did so because he was not eligible for court-appointed counsel and decided to represent himself at trial. The trial court indicated to Nguyen that it would “go over a few things with you” prior to trial. The trial court asked Nguyen if he was under the influence of any alcohol or drug, or whether he was suffering from any mental or physical disabilities. Nguyen responded negatively. The trial court then informed Nguyen of the nature of the charges against him and the maximum penalty that could be imposed for each charge. When asked if he understood, Nguyen responded affirmatively. The trial court then went over the dangers of proceeding to trial without the assistance of counsel, including the fact that a lawyer could possibly aid in the discovery or presentation of defenses to the charges, discover weaknesses in the case or offer beneficial advice. The trial court further advised Nguyen of his right to remain silent, right not to testify or offer any evidence, and that it is the State’s burden of proof and not for him to disprove. The trial court also advised Nguyen that he was bound by the rules of trial procedure. Nguyen responded that he understood these terms and that he still wished to proceed pro se. Nguyen also signed a pre-trial waiver form. The form stated that he had been advised of the nature of the charges against him, had been advised of the maximum sentence allowed on each charge and of the dangers of proceeding to trial without the assistance of counsel, namely, that he would be bound by the rules of trial procedure despite not having been trained as a lawyer, and that a lawyer would be able to assist him by discovering and raising defenses to the charges or discover weaknesses in the State’s case.

Nguyen contends that the trial court erred by failing to discuss potential defenses, the possibility of lesser included offenses, mitigating circumstances or the range of allowable punishments with him. By failing to mention these issues, Nguyen argues, the trial court failed to properly ascertain that he knowingly and voluntarily waived his right to counsel. “This argument ignores the repeated emphasis that ‘no magic language must be used by a trial judge in making the defendant aware of his right to counsel and of the dangers of proceeding without counsel.’ ” (Citation and punctuation omitted.) Bush, supra at 204 (waiver of counsel was knowingly and voluntarily made despite trial court’s failure to inform defendant of lesser included offenses and the need to preserve issues for appeal). As stated earlier, the trial court does not have to ask any particular questions, but rather the record need only to reflect that, “aware of the dangers of self-representation, the accused nevertheless made a knowing and intelligent waiver.” (Citation omitted.) Bush, supra.

2. Prior to trial, the State moved to admit evidence that Nguyen was convicted of DUI per se in 2003 as a similar transaction tending to prove Nguyen’s “knowledge, intent, [and] absence of mistake.” The State introduced evidence that Nguyen’s vehicle was pulled over for failing to maintain his lane and fluctuating his rate of speed in 2003. After roadside sobriety tests indicated that he was intoxicated, Nguyen was arrested, and subsequent blood tests indicated that he had a blood alcohol content of 0.093. Nguyen did not object to the admission of this evidence either before or during trial.

Nguyen cites to this Court’s recent decision in Jones v. State, 326 Ga. App. 658 (757 SE2d 261) (2014) for the proposition that the trial court committed plain error in admitting his 2003 DUI conviction as similar transaction evidence in violation of OCGA § 24-4-404 because the prior conviction evidence was neither relevant to nor probative of any issue at trial aside from his character.

This Court in Jones held, in a case of first impression, that under OCGA § 24-4-404 (b) of Georgia’s new Evidence Code evidence of a prior DUI conviction is not admissible for the purposes of showing intent and knowledge of the accused in a DUI trial. Without deciding whether the holding in Jones would apply in the present case, we note that the trial court did not commit plain error by failing to exclude the 2003 similar transaction evidence. Jones was decided on March 28, 2014, more than two months after the trial in this case.

Our Supreme Court has adopted the following standard regarding a plain error analysis:

First, there must be 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. Second, the legal error must be clear or obvious, rather than subject to reasonable dispute. Third, the error must have affected the appellant’s substantial rights, which in the ordinary case means he must demonstrate that it affected the outcome of the trial court proceedings. Fourth and finally, if the above three prongs are satisfied, the appellate court has the discretion to remedy the error — discretion which ought to be exercised only if the error seriously affects the fairness, integrity or public reputation of judicial proceedings.

Decided March 2, 2015.

Troy R. Millikan, for appellant.

Stephanie D. Woodard, Solicitor-General, Amber R. Sowers, Assistant Solicitor-General, for appellee.

(Citation and punctuation omitted; emphasis supplied.) State v. Kelly, 290 Ga. 29, 33 (2) (a) (718 SE2d 232) (2011). See also Puckett v. United States, 556 U. S. 129, 135 (II) (129 SCt 1423, 173 LE2d 266) (2009). Although Nguyen may have been entitled to a ruling that the 2003 similar transaction evidence be excluded had he made the appropriate motion, we cannot say that the trial court committed plain error by admitting the 2003 similar evidence. Such error, if any, would not have met the second prong of the plain error analysis — that the “legal error be clear and obvious.” This is so because the relevant issue was not decided by this Court until two months after the trial in the present case.

3. Finally, without citing to any relevant case law, Nguyen contends that the State committed error by referencing the 2003 similar transaction evidence in her opening statement. Nguyen failed to object to this reference at trial. Even if he had properly preserved his objection for appellate review, he has not provided any authority for his contention that a prosecutor may not refer in opening statement to similar transaction evidence which has already been ruled admissible. A prosecuting attorney in an opening statement may state what he expects in good faith the evidence will show during trial of the case. Burroughs v. State, 186 Ga. App. 40, 43 (6) (366 SE2d 378) (1988). See also Flournoy v. State, 221 Ga. App. 96, 97 (1) (470 SE2d 488) (1996) (physical precedent only)

Accordingly, we find no error and affirm.

Judgment affirmed.

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

       OCGA § 24-4-404 (b) provides:
      Evidence of other crimes, wrongs, or acts shall not be admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, including, but not limited to, proof of motive, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. .. .

       We note that this holding in Jones is currently on appeal before the Supreme Court of Georgia, Case No. S14G1061.

       “Georgia has long followed the contemporaneous objection rule, which provides that counsel [or a pro se defendant] must make a proper objection on the record at the earliest possible time to preserve for review the point of error.” (Citation and punctuation omitted.) Fraser v. State, 329 Ga. App. 1, 1 (763 SE2d 359) (2014). However, because this trial occurred after January 1, 2013, we may review the admission of the improper similar transaction evidence for plain error. See Rembert v. State, 324 Ga. App. 146, 152 (2), n. 8 (749 SE2d 744) (2013) (“Georgia’s new Evidence Code, which applies to cases tried after January 1, 2013, allows a court to consider ‘plain errors affecting substantial rights although such errors were not brought to the attention of the court.’ OCGA § 24-1-103 (d).”).

       This assumes that the holding in Jones is upheld by our Supreme Court.


text:
    A14A1809.
    In the Interest of S. R. R.
    (769 SE2d 562)
   Miller, Judge.

Following a hearing, the juvenile court terminated the mother’s parental rights with respect to her son, S. R. R. We granted the mother’s application for discretionary review, and she appeals the juvenile court’s order. The mother contends that the evidence was insufficient to support the termination of her parental rights. After a thorough review, this Court finds that the evidence does not clearly and convincingly show that the mother is presently unfit or that the cause of S. R. R.’s deprivation is likely to continue and cause serious harm. Accordingly, we reverse the juvenile court’s decision.

In considering the mother’s appeal, we view the evidence in the light most favorable to the juvenile court’s disposition and determine whether any rational trier of fact could have found by clear and convincing evidence that the mother’s right to custody should have been terminated.

(Citation omitted.) In the Interest of A. B., 311 Ga. App. 629 (716 SE2d 755) (2011). Nevertheless, in conducting our review, we must proceed

with the knowledge 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.

(Citations omitted.) In the Interest of C. J. V., 323 Ga. App. 283 (746 SE2d 783) (2013). Moreover, clear and convincing evidence of present or current parental unfitness, as opposed to past unfitness, is required to terminate a mother’s rights to her natural child. See In the Interest of T. F., 250 Ga. App. 96, 98 (1) (550 SE2d 473) (2001).

So viewed, the evidence shows that the mother suffers from several disabling health problems, including multiple sclerosis, diabetes, fibromyalgia and lupus. The mother is under continuous medical care for her health issues, and she takes several prescription medications to control her symptoms. When S. R. R. was born on October 1, 2010, he was hospitalized for two weeks for an enlarged heart. Within weeks of his birth, the mother placed S. R. R. in the care of a friend. S. R. R. lived in the friend’s home until June 21, 2012 when he was removed by the Division of Family and Children Services (“DFCS”). The juvenile court subsequently found S. R. R. to be deprived and extended the temporary grant of custody to DFCS until June 21, 2013.

Pursuant to the deprivation order, DFCS initiated a case plan which provided for nonreunification and adoption. The case plan required the mother to maintain consistent contact with S. R. R. through scheduled bi-weekly visitation and pay child support. The juvenile court subsequently granted the mother’s motion to modify the temporary custody order so that she could have weekly visitation with S. R. R.

The mother completed most of her case plan goals, including completing her parenting and anger management classes, obtaining a psychological evaluation, successfully completing her probation supervision, and paying some child support. Importantly, the mother has consistently visited with S. R. R., who has bonded with her and calls her “Mommy.” The mother also buys clothes, toys and books for S. R. R. and brings him his favorite foods and books to read during visitation.

The mother has lived in the same home since August 2012, and the home includes a separate bedroom for S. R. R., which contains a child’s bed, and numerous toys and decorations. The mother receives approximately $740 per month in SSI disability income, which covers her rent, utilities and car insurance, and she owns her van outright. The mother also testified that she intended to apply for food stamps or obtain employment to supplement her disability income if she can find a position that will accommodate her disability.

Despite the mother’s efforts to complete her case plan goals and bond with her son through regular visitation, DFCS filed its petition to terminate the mother’s parental rights on July 17, 2013. The petition alleged that the mother’s home was not suitable housing; the mother and the putative father were living together despite a history of domestic violence; and the mother was living with and supporting members of the putative father’s family with her disability income.

The evidence presented at the termination hearing, however, showed that the putative father had moved out of the mother’s home in March 2013, and the putative father’s family members had moved out in August of that year.

The evidence also showed that, beginning in August 2013, the mother worked as a driver, earning approximately $80 per week from one employer and a total of $800 in income from another employer. At the time of the termination hearing, the mother had a j ob offer to work as a driver for her second employer at a salary of $500 per week.

With regard to the condition of the mother’s home, the DFCS placement manager in charge of S. R. R.’s case attempted to visit the mother’s home on several occasions when the mother was not home, and was only able to complete one visit. During one attempted visit, the placement manager found beer cans strewn around the yard. The evidence also showed that the mother smokes cigarettes; however, she testified at the hearing that she no longer smokes inside the home.

Photographs of the outside of the mother’s residence, which were taken during the placement manager’s visits, showed accumulated trash. The mother testified at the termination hearing that her landlord was supposed to remove the trash and, when he failed to do so, she personally paid to have the trash hauled away. The mother introduced photographs at the continued termination hearing showing that the trash had been removed and the inside of her home was clean.

The mother contends that the evidence was insufficient to support the termination of her parental rights. We agree.

A juvenile court’s termination of parental rights is a two-step process:

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

(Footnotes omitted.) In the Interest of T. F., supra, 250 Ga. App. at 98 (1); see also former OCGA § 15-11-94 (a), (b) (4) (A) (i)-(iv). Moreover, where as here, the child is not in the parent’s custody the juvenile court shall consider

whether the parent without justifiable cause has failed significantly for a period of one year or longer prior to the filing of the petition for termination of parental rights: (i) To develop and maintain a parental bond with the child in a meaningful, supportive manner; (ii) To provide for the care and support of the child as required by law or judicial decree; and (iii) To comply with a court ordered plan designed to reunite the child with the parent[.]

(Citation omitted.) In the Interest of C. J. V., supra, 323 Ga. App. at 284; see also former OCGA § 15-11-94 (b) (4) (C). DFCS had the burden ofproofin this case. In the Interest of M. J. T., 255 Ga.App. 553 (565 SE2d 877) (2002).

The mother did not appeal the juvenile court’s deprivation orders. Accordingly, for purposes of our review, we assume that the evidence was sufficient to show that S. R. R. was deprived due to the mother’s past lack of proper parental care or control. In the Interest of C. J. V., supra, 323 Ga. App. at 284. Nevertheless, we emphasize that

termination of parental rights is a remedy of last resort and can be sustained only when there is clear and convincing evidence that the cause of the deprivation is likely to continue. In the instant case, the evidence is not clear and convincing, at least at this time, that the deprivation is likely to continue.

(Citations and punctuation omitted.) In the Interest of C. S., 319 Ga. App. 138, 148 (1) (735 SE2d 140) (2012).

This Court will not sustain the termination of a mother’s right to raise her child, based on either her poverty or her physical disabilities, when neither renders her incapable of caring for her child. See In the Interest of C. J. V., supra, 323 Ga. App. at 286-287. Moreover, neither the mother’s past unfitness nor her lack of future employment prospects, whether related to her disability or not, is sufficient to terminate her parental rights. See In the Interest of T. F., supra, 250 Ga. App. at 98 (1) (evidence of past unfitness standing alone is insufficient to terminate parental rights); In the Interest of M. M., 263 Ga. App. 353, 359 (1) (587 SE2d 825) (2003) (mother’s lack of employment and lack of prospects for future employment is insufficient to terminate her rights).

Here, with regard to whether S. R. R.’s deprivation is likely to continue, the juvenile court found that S. R. R. had essentially never resided with the mother, the mother had very limited income, the mother and putative father resided in the same home and they had a contentious relationship, the mother was taking multiple medications which impacted her ability to provide for S. R. R.’s day-to-day care, and the mother’s home was in a continuous state of filth. The juvenile court also focused on the mother’s lack of credibility. Even construing the evidence in the light most favorable to the juvenile court’s order, the evidence presented at the termination hearing does not clearly and convincingly show that the mother is presently unfit and that S. R. R.’s deprivation is likely to continue and cause serious harm.

The evidence showed that the mother completed most of her case plan goals, including parenting and anger management classes; she paid some child support; she consistently visited with S. R. R.; she presented evidence that she is capable of caring for her son despite her physical disabilities; and she has bonded with him. Although the mother takes several medications, those medications are prescribed by her doctor. Moreover, no evidence showed that the mother’s health issues render her incapable of caring for S. R. R. See In the Interest of J. S. B., 277 Ga. App. 660, 663 (2) (d) (627 SE2d 402) (2006) (reversing termination of mother’s parental rights where no expert witness testified that mother’s antisocial personality disorder or learning disability would be detrimental to her children).

Decided March 2, 2015.

Avrett, Ponder & Withrock, W. Bartlett Barnwell, for appellant.

Samuel S. Olens, Attorney General, Shalen S. Nelson, Senior Assistant Attorney General, Bruce A. Kling, Assistant Attorney General, for appellee.

The evidence also showed that the mother presently has a clean and stable home with a separate bedroom and child’s bed which she decorated for S. R. R. Moreover, contrary to the juvenile court’s finding, the evidence presented at the termination hearing showed that the putative father had not been living with the mother for several months. Finally, the evidence showed that the mother has supplemented her disability income with work as a driver, and she presented testimony from her second employer that she has the prospect of regular employment.

Accordingly, while the evidence shows that the mother is disabled and lives on limited means, the evidence does not clearly and convincingly show that she is presently unfit or that S. R. R.’s deprivation is likely to continue and cause serious harm. Consequently, we must reverse the juvenile court’s order terminating the mother’s parental rights.

Judgment reversed.

Doyle, P. J., and Dillard, J., concur.

       The juvenile court terminated the putative father’s parental rights, and he is not a party to this appeal.

       The mother’s prescribed medications include morphine, hydrocodone, and Xanax.

       The mother also has three older children who live with their father.

       The mother’s disability income leaves her with very little money after she pays her expenses.

       In 2013, the General Assembly adopted a new Juvenile Code to replace Chapter 11 of Title 15 of the Georgia Code. Ga. L. 2013, p. 294, § 1-1. The new Juvenile Code became effective on January 1, 2014, and applies to all juvenile proceedings commenced on and after such date. Ga. L. 2013, p. 294, § 1-1.
      Although the termination order in this case was not entered until January 15, 2014 and the trial court specifically referenced the new code in its termination order, the petition to terminate the mother’s parental rights was filed on July 17, 2013, and the termination hearing commenced on December 13, 2013 prior to the new code’s effective date. Accordingly, we apply the former statute, OCGA § 15-11-94, in this case.

       Although the mother and the putative father do not live together, the evidence shows that they do not get along. On one occasion an argument between them resulted in the mother’s arrest for allowing the unlicensed putative father to drive her van and the putative father’s arrest for possession of marijuana. On another occasion, the putative father showed up at the mother’s house and got into an argument with her. When police responded to the mother’s home, the putative father left.

       Specifically, the juvenile court found that the mother’s testimony that she no longer smoked in the house and did not drink alcohol was not credible.