author: MCFADDEN, Judge.

text:
    A11A1549.
    In the Interest of J. C. W. et al., children.
    (717 SE2d 512)
   MCFADDEN, Judge.

Through their child advocate attorney, two-year-old twins Ja. C. W and Ju. C. W. appeal the juvenile court’s order that, pursuant to OCGA § 15-11-58 (i), placed them in the custody of their uncle and aunt until their 18th birthdays. Because the juvenile court failed to set forth in its order a finding required by that Code section, we vacate the order and remand the case for proceedings not inconsistent with this opinion.

OCGA § 15-11-58 (i) authorizes the juvenile court to enter a long-term custody order for a child in the temporary custody of the Division of Family and Children Services of the Department of Human Services (DFCS). It provides, in pertinent part:

If the court has entered an order finding that reasonable efforts to reunify a child with his or her family would be detrimental to the child in accordance with subsection (h) of this Code section and if the court finds that referral for termination of parental rights and adoption is not in the best interest of the child, the court may, upon proper petition, enter a custody order which shall remain in effect until the child’s eighteenth birthday[.]

Decided October 7, 2011.

(Emphasis supplied.) OCGA § 15-11-58 (i) (1). The requirement that the court make a finding regarding referral for termination of parental rights and adoption, in addition to a finding regarding reunification, was added to this Code section when it was amended and rewritten in 2003. See Ga. L. 2003, pp. 16, 17-23, § 3.

The juvenile court entered an order granting DFCS’s petition for nonreunification, pursuant to OCGA § 15-11-58 (h), and it referred to this nonreunification order in its order awarding long-term custody of the twins to their uncle and aunt. But nowhere in either the nonreunification order or the custody order did the juvenile court make any finding that referral for termination of parental rights and adoption was not in the twins’ best interest, as required for an award of long-term custody under OCGA § 15-11-58 (i). We are not persuaded by the argument of DFCS and the twins’ mother that such a finding should be implied in the juvenile court’s order, given that the legislature added the requirement that such a finding be made, in addition to a finding on reunification, when it amended OCGA § 15-11-58 (i) in 2003. See generally Inland Paperboard &c. v. Ga. Dept. of Revenue, 274 Ga. App. 101, 104 (616 SE2d 873) (2005) (when a statute is amended, it may be presumed from the addition of words that the legislature intended some change in the existing law).

Because we cannot discern from the juvenile court’s order whether the court made the prerequisite finding for its custody ruling under OCGA § 15-11-58 (i), we vacate the custody order and remand this case to the juvenile court for proceedings not inconsistent with this opinion. See generally In the Interest of T. S., 310 Ga. App. 100, 103 (2) (712 SE2d 121) (2011) (vacating nonreunification order and remanding case to juvenile court because order did not contain sufficient findings to allow appellate court to determine that order was supported by clear and convincing evidence); In the Interest of A. W., 264 Ga. App. 705, 708 (3) (592 SE2d 177) (2003) (vacating order and remanding case to juvenile court when it was unclear whether order was based on mistake of fact).

Judgment vacated and case remanded.

Phipps, P. J., and Andrews, J., concur.

Brian M. Condon, for appellant.

Samuel S. Olens, Attorney General, Shalen S. Nelson, Senior Assistant Attorney General, Elizabeth M. Williamson, Assistant Attorney General, Robert E. Hall, Wenona C. Belton, Janine M. Carson, for appellee.


source: Caselaw Access Project

author: Phipps, Presiding Judge.

license: Public Domain

text:
    A11A1382.
    LONGSTREET v. DECKER.
    (717 SE2d 513)
   Phipps, Presiding Judge.

Joseph Decker, as executor of the estate of Marjean Smith, filed an action against Kathy Longstreet after Longstreet removed from a bank safe deposit box cash that Decker claimed belonged to the estate. Longstreet appeals from the trial court’s denial of her motion for summary judgment and the grant of partial summary judgment to Decker (hereafter, the estate). For the reasons that follow, we affirm.

Longstreet (formerly Kathy Downs) was Smith’s niece. In 1991, Smith and Longstreet entered into a contract to lease a safe deposit box from The Brand Banking Company (the Bank). The contract bore the heading “THE BRAND BANKING COMPANY!,] Lawrenceville, Georgia!,] JOINT CONTRACT!,] EITHER/ANY TO HAVE ACCESS ALONE,” and set forth the terms of leasing the safe deposit box from the Bank. The lease contract named Smith and Longstreet as joint tenants of a particular safe deposit box and provided in part:

It is agreed that any one of us alone shall be entitled to access to said box and control over its contents and shall have the right to surrender said box and cancel this contract on behalf of all. . . .
In the event of the death of any of us, the Bank . . . shall afford access to such box to the survivor or survivors of us, or any one of them.

The contract, which was signed by Smith, Longstreet, and a witness, also included provisions governing the parties’ obligations in renting the box, an acknowledgment that the lessees received two keys to the box, and various other terms, conditions, and rules of the Bank.

Smith placed cash in the safe deposit box. Longstreet did not know what was in the box, just that the contents were “valuable.” Longstreet acknowledged that the contents of the box were Smith’s property, though she understood that they were to be given to her upon Smith’s death. Smith had told Longstreet to “hold on to [the key],” and that “if anything ever happened to her, that I should remove the contents of the safe deposit box.” Longstreet understood the “if [anything] were to happen to her” language to mean upon Smith’s death. And she understood Smith’s words to mean that “whatever was in that safe deposit box belonged to me.” Smith died on November 11, 2005. Before Smith’s death, Longstreet never accessed the box.

On November 17, 2005, Longstreet went to the Bank and, unable to locate her key, had the safe deposit box drilled open. Longstreet removed the contents, which consisted of several bundles of cash; the evidence is in conflict as to the amount. Longstreet refused the estate’s demands to return the cash.

Alleging that the cash removed from the box belonged to the estate, the estate sued Longstreet based on theories of conversion and money had and received. Longstreet moved for summary judgment, contending that the language of the lease contract authorized her to have “access to said box and control over its contents.” She argued further that she had survivorship rights in the contents of the safe deposit box because the contract provided that “[i]n the event of the death of any of us, the Bank . . . shall afford access to such box to the survivor or survivors of us, or any one of them.” The estate filed a cross-motion for partial summary judgment, contending that Longstreet did not own the contents of the box inasmuch as the contract did not show that she owned them, and there had been no inter vivos gift of the contents.

Holding that the contract governed the rental of the safe deposit box and not the ownership of the contents of the box, the court denied Longstreet’s summary judgment motion. The court granted the estate’s motion for partial summary judgment as to liability, noting that it was undisputed that any purported gift of the contents was not to be completed until Smith’s death. The court reserved for trial the issue of damages, finding that genuine issues of material fact remained regarding the amount of money removed from the safe deposit box.

“Summary judgment is proper if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. ’ ’ In our de novo review of the grant or denial of a motion for summary judgment, we view the evidence, and all reasonable inferences drawn therefrom, in the light most favorable to the nonmovant.

1. Longstreet argues that she was entitled to summary judgment because the unambiguous language of the lease contract “provide[d] [her] with the ownership of the contents of the box.” She cites the contract language that authorized her to have “access to said box and control over its contents” and provided that “[i]n the event of the death of any of us, the Bank . . . shall afford access to such box to the survivor or survivors of us, or any one of them.”

[CJonstruction of a contract is a question of law for the court. Thus, the construction of the provisions of this lease, as with other contracts, is generally one for the court to determine as a matter of law, and when a question of law is at issue, we owe no deference to the trial court’s ruling and apply the “plain legal error” standard of review.
The first rule of contract construction is to determine the parties’ intent, and if the language is clear the contract shall be enforced [according to its clear terms]. In fact, no construction is even permitted when the language employed by the parties in the contract is plain, unambiguous, and capable of only one reasonable interpretation.

“When the language employed by the parties in their contract is plain, unambiguous, and capable of only one reasonable interpretation . . . the language used must be afforded its literal meaning and plain ordinary words given their usual significance.”

We agree with Longstreet and the estate that the language of the contract was unambiguous. The contract, which governed the leasing of the safe deposit box from the Bank, contained no terms purporting to establish ownership of the contents of the box. It gave, in pertinent part, Smith and Longstreet the right to access and control the contents of the box. The literal meaning of the verb “control” is “to exercise restraining or directing influence over: regulate, curb: dominate, rule: have power over.” In contrast, the literal meaning of the word “ownership” is “the state, relation, or fact of being an owner: lawful claim or title;” an “owner” is “one that owns: one that has the legal or rightful title whether the possessor or not.” There is no evidence that “control,” as used in this contract, was a technical word, word of art, or word with a particular trade or business meaning that was understood to exclude the usual and common meaning. Further, the contract’s survivor-ship language cited by Longstreet concerned the Bank’s obligation to provide access to the safe deposit box upon either lessee’s death; it did not address ownership of the contents.

Longstreet’s reliance on cases from other states as instructive is misplaced because, inter alia, the cited cases involved contract language that specifically governed ownership of the contents of the safe deposit boxes. The contract in this case contained no such language.

Notably, in her brief Longstreet questions why cash in a safe deposit box passes to a decedent’s estate for distribution, while cash in a bank account does not. Longstreet cites no authority for the premise of her query, but we presume it is based on OCGA § 7-1-813 (a), which provides that sums remaining on deposit at the death of a party to a joint account belong to the surviving party as against the estate of the decedent (unless there is clear and convincing evidence of a different intent at the time the account was created). The leasing of a safe deposit box does not come within the definition of a joint account for purposes of OCGA § 7-1-813.

Accordingly, the court did not err in denying Longstreet’s motion for summary judgment based on her claim that the contract governing the leasing of the safe deposit box granted her ownership rights in the contents of the box.

2. Longstreet contends the court erred in granting partial summary judgment to the estate based on its determinations that (a) the contract language did not establish that Longstreet owned the contents of the box and (b) there was no evidence that an inter vivos gift was made. As discussed in Division 1, the contract language did not support Longstreet’s ownership claim; thus, the court did not err in granting partial summary judgment to the estate based on the absence of contract language establishing ownership.

As to whether an inter vivos gift was made, Longstreet, who acknowledged that the contents of the box were Smith’s, argues that summary judgment was improper because genuine issues of material fact remained as to Smith’s intentions. We disagree.

“A gift inter vivos operates, if at all, in the donor’s lifetime, immediately and irrevocably; it is a gift executed; no further act of parties, no contingency of death or otherwise, is needed to give it effect.” To constitute a valid inter vivos gift, the following criteria must be met: (1) the donor must intend to give the gift; (2) the donee must accept the gift; and (3) the gift must be delivered or some act which under law is accepted as a substitute for delivery must be done. To be effective, delivery must be made during the donor’s lifetime. To be sufficient to support a gift, a delivery also “must be absolute and unqualified; it must transfer possession to the donee, and vest in him a present and irrevocable title; it must vest the donee with, and divest the donor of, control and dominion over the property.” Delivery is required because, inter alia, until delivery, the gift is inchoate and revocable, and title does not pass. The burden is on the person claiming the gift to prove all essential elements of a gift.

[T]o prevail on a motion for summary judgment, the moving party must demonstrate that there is no genuine issue of material fact, so that the party is entitled to judgment as a matter of law. ... [A] defendant who will not bear the burden of proof at trial need not affirmatively disprove the nonmoving party’s case, but may point out by reference to the evidence in the record that there is an absence of evidence to support any essential element of the nonmoving party’s case.

To support its position that no inter vivos gift of the contents of the safe deposit box was made because there was no delivery, the estate points to the following: Smith retained access to and control over the contents of the box and could have removed the contents at any time before her death; and Smith had instructed Longstreet to remove the contents of the box upon her death.

Longstreet contends that delivery was shown by the following: Smith told her to remove the contents upon her death and that “whatever was in that safe deposit box belonged to [Longstreet]”; Longstreet was provided with a key to the box; and she and Smith had a close relationship.

Viewing the record evidence in the light most favorable to Longstreet as nonmovant, and drawing all reasonable inferences in her favor, the estate is nonetheless entitled to summary judgment. The evidence was undisputed that Smith retained access to the box (albeit shared), and the contents of the box were subject to being reclaimed by Smith at any time prior to her death. There was no evidence that full control or power over the property vested in Longstreet before Smith’s death, or that Smith renunciated dominion and transferred it to Longstreet. Assuming that Smith’s statements to Longstreet regarding the purported gift were admissible as evidence, and neither party contends that the statements were not admissible, those statements did not show delivery during Smith’s life. And while Longstreet states that she had a close relationship with Smith, such evidence did not lessen her burden of proving delivery because there is no evidence that she lived with Smith. The evidence did not present any questions of material fact to be resolved by a jury.

Decided October 11, 2011.

McFarland & McFarland, Robert P. McFarland, for appellant.

Longstreet’s reliance on Fotiatis v. Clemmons is misplaced. In that case, there was evidence to support the theory that the donor had delivered the contents of a safe deposit box to the donee before his death; namely, the donee had both keys to the box and was with the donor every time he opened the box, the box contained not only cash but a savings certificate made payable to the donor or the donee, and the donee had lived with the donor for a number of years and taken care of him in the latter years of his life. In the instant case, however, there was no evidence that the purported donor made delivery of the contents of the box prior to her death. The trial court properly granted the estate’s motion for partial summary judgment.

Judgment affirmed.

Lindsay M. Haigh, for appellee.

       See footnote 26, infra, regarding the admissibility of Smith’s statements concerning the property.

       See Cowart v. Widener, 287 Ga. 622, 623 (1) (a) (697 SE2d 779) (2010) (citation and punctuation omitted).

       See id. at 624 (1) (a); Werner Enterprises v. Lambdin, 307 Ga. App. 813, 814 (706 SE2d 185) (2011).

         (Emphasis supplied by Longstreet in her appellate brief.)

        Record Town v. Sugarloaf Mills, 301 Ga. App. 367 (1) (687 SE2d 640) (2009) (citations and punctuation omitted).

       Id. at 368 (2) (citations and punctuation omitted).

        Municipal Elec. Auth. of Ga. v. Gold-Arrow Farms, 276 Ga. App. 862, 866 (1) (625 SE2d 57) (2005) (citation and punctuation omitted).

       Webster’s Third International Dictionary (1981).

       Id.

       Id.

        See Municipal Elec. Auth. of Ga., supra at 868 (1).

       See Miller v. Buck, 271 FSupp. 822, 825-826 (WD. Va. 1967) (finding valid inter vivos gift where lease agreement expressly provided that the lessees were joint owners of the present and future contents of a safe deposit box and that in the event of the death of either lessee, the survivor had the right to withdraw said contents); Brown v. Navarre, 64 Ariz. 262, 264 (169 P2d 85) (1946) (enforcing terms of lease agreement for a safe deposit box which expressly provided that all property placed in the box was the joint property of both lessees and upon death of either passed to the survivor); In re Estate of Koester, 286 Ill. App. 113, 114 (3 NE2d 102) (1936) (finding lessee had right of survivorship in contents of a safe deposit box where lease agreement expressly warned lessees not to execute agreement unless they were joint owners of the contents of the box and desired the survivor to become sole owner thereof in case of the death of one of them); Young v. Young, 126 Cal. App. 306, 313 (14 P2d 580) (1932) (enforcing terms of written contract between spouses which expressly provided that the contents of a safe deposit box were joint property and that the title and right of ownership thereto rested in the survivor).

       OCGA § 7-1-813 (a); Daniell v. Clein, 206 Ga. App. 377, 382 (1) (425 SE2d 344) (1992).

       OCGA § 7-1-810 (4) defines “joint account” as an account payable on request to one or more of two or more parties, whether or not mention is made of any right of survivorship. OCGA § 7-1-810 (1) defines “account” as a contract of deposit of funds between a depositor and a financial institution and includes a checking account, savings account, certificate of deposit, share account, and other like arrangements.

       Supra.

        NeSmith v. Ellerbee, 203 Ga. App. 65, 66-67 (1) (416 SE2d 364) (1992) (citation and punctuation omitted).

       OCGA § 44-5-80.

        Ansley v. Sunbelt Investments Realty, 176 Ga. App. 693, 696 (2) (337 SE2d 448) (1985).

       Id. (citations and punctuation omitted); Felder v. Felder, 71 Ga. App. 860, 866 (32 SE2d 550) (1944) (gift requires such a delivery as would put it beyond the power of the donor to revoke the gift; donor must relinquish all dominion and control over it as owner, and part absolutely with the title).

        Ansley, supra.

        Brock v. Brock, 279 Ga. 119, 120 (2) (610 SE2d 29) (2005).

        Cowart, supra at 623 (1) (a) (citations and punctuation omitted).

       See id.

       See Daniell, supra at 383 (2).

       Id.; compare Bates v. Bates, 163 Ga. App. 268, 271 (3) (293 SE2d 515) (1982).

       See OCGA § 24-3-8 (“ [declarations and entries made by a person since deceased against his interest and not made with a view to pending litigation shall be admissible in evidence in any case”); Mashburn v. Wright, 204 Ga. App. 718, 719-720 (420 SE2d 379) (1992) (statements of donor/decedent to donee were admissible as an exception to the hearsay rule in that donor’s death created the necessity for the admission of the statements, and a circumstantial guaranty for the trustworthiness of the donor’s statements was provided by the fact that the statements were against his own interest, i.e., donor was consciously divesting himself of ownership of the property).

       See Fotiatis v. Clemmons, 134 Ga. App. 487, 488 (1) (214 SE2d 736) (1975).

       Compare Gray v. Benton, 280 Ga. App. 339 (634 SE2d 86) (2006) (reversing grant of summary judgment where the evidence of a valid inter vivos gift conflicted); see Mashburn, supra at 719 (affirming judgment for donee where evidence authorized a jury to find the elements of a valid inter vivos gift).

         Supra.

       Id. at 487-488.

        See Ansley, supra at 696 (2); see generally Tucker v. Addison, 265 Ga. 642, 643 (1) (458 SE2d 653) (1995) (summary judgment affirmed where the undisputed evidence showed that the purported donor merely made a proposal for future action - property would belong to the donee if he moved onto it and fenced it - and did not intend to make a present gift; a valid inter vivos gift must operate in the donor’s lifetime, immediately and irrevocably).


author: Mikell, Judge.

text:
    A11A1337.
    ROUEN v. THE STATE.
    (717 SE2d 519)
   Mikell, Judge.

Following a jury trial, Howard Rouen was found guilty of homicide by vehicle in the first degree (based on the predicate offense of felony hit-and-run) and of felony hit-and-run. The trial court merged the felony hit-and-run count into the vehicular homicide count and sentenced Rouen to ten years in prison on the vehicular homicide count. Rouen appeals the denial of his amended motion for new trial, asserting that the trial court erred in failing to charge the jury on the law of accident, in failing to resentence him for felony hit-and-run under the rule of lenity, and in admitting a photograph of the victim’s skull. We affirm.

Viewing the evidence in the light most favorable to the verdict, the record reflects that on November 14, 2008, shortly after midnight, as Rouen was driving along Cherokee Street at the intersection with McCollum Parkway in Cobb County, he struck and killed a bicyclist, John Wigren. Thomas Ross IV who had stopped his vehicle on McCollum in order to allow Wigren to pass in front of him, witnessed the collision. Ross testified that a red pickup truck, traveling in the same direction as Wigren’s bicycle, struck the bicycle from behind. Wigren’s body hit the truck’s hood and windshield and then “flew through the air,” coming to rest on the side of the road, 82 feet from the point of impact. The impact shattered the windshield and damaged the body of the truck, causing a piece of the truck to fall off in the road. Ross further testified that the night was “partially” foggy, but that he had no trouble seeing the bicyclist or the truck.

Ross called 911 to report the accident and ran to assist the victim, who was still alive at that point. Ross left his car running, with the headlights shining across Cherokee Street, which was also lit by street lights. As he stood on the road next to the victim, he watched as the red pickup turned into a strip mall on the left, then “peeled out” and came back along Cherokee, past the intersection with McCollum Parkway. Ross testified that the driver of the truck “sped up” and continued on without stopping, passing Ross standing in the road, the prone victim, and the bicycle lying next to the victim. Wigren sustained multiple serious injuries in the collision and died of trauma including skull fractures and broken vertebrae.

Based on Ross’s statement and on debris found at the scene, police were able to describe the vehicle involved in the collision, and the next day they issued a request for information through local media. Later that day, almost 48 hours after the collision occurred, Rouen called police to report he may have been involved in the accident. Sergeant Chris Bishop of the Kennesaw Police Department, the officer who had originally responded to the scene, interviewed Rouen at his home, located less than a mile from the scene of the collision.

Bishop testified that in the interview Rouen stated that he thought he might have hit “something,” possibly a road sign or an animal, as he drove along Cherokee Street just after midnight, but that he did not see what he hit due to darkness and foggy weather conditions. He made a U-turn a short distance further on and then drove back, looking to see what he hit, but he told Bishop that he did not see anything — not the victim, the bicycle, or Ross — because of heavy fog. He did not stop but continued on to his home. He admitted that his truck had been damaged and that he did not report the accident. Instead, he drove his truck to a friend’s home in Smyrna for repairs.

Rouen did not testify at trial. His defense was premised on the theory that because of the dark and foggy conditions of that night, and because the victim was wearing dark nonreflective clothing, Rouen could not have avoided the collision with the victim, nor could he determine what he hit.

1. While Rouen has not challenged the sufficiency of the evidence against him, the evidence as outlined above was sufficient for a rational trier of fact to find him guilty beyond a reasonable doubt of the charges against him, under the standard set forth in Jackson v. Virginia,

2. Rouen asserts error in the trial court’s failure to charge the jury on the law of accident. However, Rouen has waived this enumeration, and no plain error appears here.

The state contends that Rouen waived this error by failing to request the charge at issue in writing as required by Uniform Superior Court Rule (USCR) 10.3. At the charge conference, however, the trial court did not reject the charge based on Rouen’s noncompliance with USCR 10.3. Instead, the requested charge was rejected on the ground that it would confuse the jury because both the requested charge and OCGA § 40-6-393 (b), the statute defining vehicular homicide (hit-and-run), use the term “accident.” Because the trial court addressed the merits of Rouen’s proposed charge, his alleged noncompliance with USCR 10.3 did not result in waiver. However, the record nowhere reveals the language of the requested charge. Rouen states in his brief, without citing to the record, that the requested charge was based on the pattern jury instruction on the law of accident. The record nowhere indicates that it was the pattern jury charge that was ruled on by the trial judge. Thus, this enumeration presents nothing for appellate review.

Moreover, after the judge concluded its jury instructions, Rouen specifically stated that he had no objection to them. Rouen thus failed to comply with OCGA § 17-8-58 (a), which requires that “[a]ny party who objects to any portion of the charge to the jury or the failure to charge the jury shall inform the court of the specific objection and the grounds for such objection before the jury retires to deliberate.” Rouen’s failure to object in the time and manner specified in OCGA § 17-8-58 (a) precludes appellate review of his contention that the trial court erred in failing to instruct the jury on the defense of accident, absent plain error.

We find no plain error in this case. In light of the overwhelming evidence adduced against Rouen, it is highly probable that the absence of an instruction on accident did not contribute to the verdict. Moreover, the trial court’s instructions to the jury, as given, and considered as a whole, correctly set forth the elements of the crimes with which Rouen was charged and provided the jury with the “proper guidelines for determining guilt or innocence,” including the state’s burden of proof and the state’s burden to show intent.

3. Rouen argues that the trial court erred in failing to apply the rule of lenity, which he contends would have allowed him to be sentenced for the lesser offense of felony hit-and-run under OCGA § 40-6-270 (b), rather than for homicide by vehicle in the first degree (hit-and-run) under OCGA § 40-6-393 (b). “When questions of law are at issue, as here, we owe no deference to the trial court’s ruling and apply the ‘plain legal error’ standard of review.” This enumeration fails, for two reasons.

First, the rule of lenity does not apply to convictions for two felony offenses. Because the offenses at issue here are both classified as felonies, the rule of lenity is inapplicable in this case.

Second, “the essential requirement of the rule of lenity is that both crimes could be proved with the same evidence.” As the state points out, “that a single act may, as a factual matter, violate more than one penal statute does not implicate the rule of lenity.” In the case before us, the two statutes of which Rouen stands convicted do not define the same offense. Under the felony hit-and-run statute, the state is required only to prove that the defendant was “involved in an accident” and failed to render aid as described in the statute; but under the statute setting forth vehicular homicide in the first degree (hit-and-run), the state must prove that the motorist caused the accident. The element of causation is essential to prove first degree vehicular homicide (hit-and-run), but is not necessary to prove felony hit-and-run. Therefore, the trial court correctly merged the lesser offense, felony hit-and-run, into the offense of first degree vehicular homicide (hit-and-run) and properly sentenced Rouen on the latter offense.

Decided October 12, 2011.

Jones, Morrison & Womack, Wallace C. Clayton II, for appellant.

Patrick H. Head, District Attorney, Henry R. Thompson, Anna G. Cross, Assistant District Attorneys, for appellee.

4. Rouen contends that the trial court erred in admitting, over objection by defense counsel, a post-incision autopsy photo of the victim’s skull, rather than the diagram of the skull attached to the medical examiner’s report. However, “post-incision autopsy photographs are admissible if necessary to show some material fact that becomes apparent only due to the autopsy.” Here, the state’s medical examiner testified that the skull fracture incurred by the victim upon impact was not apparent until the scalp was removed during the autopsy; that this skull injury was the most significant injury that the victim sustained; and that the injury was the result of “significant force.” The photo was relevant, therefore, to demonstrate material facts concerning the cause and manner of the victim’s death. The medical examiner also explained that the photograph at issue would assist him in explaining and describing the victim’s head injuries to the jury; and that the photograph would be clearer than the diagram of the victim’s skull proffered by Rouen. The trial court therefore did not abuse its discretion in admitting the autopsy photograph at issue into evidence.

Judgment affirmed.

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

       OCGA § 40-6-393 (b) (“[a]ny driver of a motor vehicle who, without malice aforethought, causes an accident which causes the death of another person and leaves the scene of the accident in violation of [OCGA § 40-6-270 (b), felony hit-and-run] commits the offense of homicide by vehicle in the first degree”).

       OCGA § 40-6-270 (a) requires the driver of a vehicle involved in an accident resulting in injury or death to stop immediately at the scene of the accident or as close thereto as possible and render aid. Under OCGA § 40-6-270 (b), “[i]f such accident is the proximate cause of death or a serious injury, any person knowingly failing to stop and comply with the requirements of subsection (a) of this Code section shall be guilty of a felony”

        Rankin v. State, 278 Ga. 704, 705 (606 SE2d 269) (2004).

       443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Accord Rankin, supra.

       OCGA § 16-2-2 provides that “[a] person shall not be found guilty of any crime committed by misfortune or accident where it satisfactorily appears there was no criminal scheme or undertaking, intention, or criminal negligence.”

       Rouen submitted 13 written requests to charge to the trial court, but the requested charges did not include a charge based on the law of accident or on OCGA § 16-2-2.

       See Davis v. State, 285 Ga. 176, 179 (2) (674 SE2d 879) (2009).

       The state does not address this claim in its brief.

       Cf. Davis, supra (defendant’s request to charge, though not in form required by USCR 10.3, nonetheless referred to specific pattern jury charge which trial court addressed in its ruling). Accord Kendrick v. State, 287 Ga. 676, 678 (3) (699 SE2d 302) (2010) (same).

       OCGA § 17-8-58, effective as to trials occurring on or after July 1, 2007, controls in this case, because Rouen’s trial took place in September 2009. See Blankenship v. State, 301 Ga. App. 602, 606 (4), n. 19 (688 SE2d 395) (2009).

       OCGA § 17-8-58 (b). See Lacey v. State, 288 Ga. 341, 343 (2) (703 SE2d 617) (2010).

       See Hicks v. State, 287 Ga. 260, 264 (4) (695 SE2d 195) (2010) (no plain error where highly probable that challenged jury charge did not contribute to verdict). See also Crawford v. State, 288 Ga. 425, 428 (3) (a) (704 SE2d 772) (2011) (failure of trial court to give instruction on accident was waived under OCGA § 17-8-58 and was not plain error).

       See Duprel v. State, 301 Ga. App. 469, 473 (2) (a) (687 SE2d 863) (2009) (“It is a fundamental rule in Georgia that jury instructions must be read and considered as a whole in determining whether the charge contained error”) (punctuation and footnote omitted).

       (Citation omitted.) Kennedy v. State, 277 Ga. 588, 591 (3) (592 SE2d 830) (2004).

       (Citation and punctuation omitted.) Manning v. State, 296 Ga. App. 376, 377 (674 SE2d 408) (2009).

        Poole v. State, 302 Ga. App. 464, 467 (2) (691 SE2d 317) (2010); Falagian v. State, 300 Ga. App. 187, 191 (2) (684 SE2d 340) (2009).

       OCGA § 40-6-270 (b) (offense punishable by imprisonment for one to five years); OCGA § 40-6-393 (b) (punishable by imprisonment for three to fifteen years).

       See Falagian, supra. Accord McClellan v. State, 274 Ga. 819, 820 (1) (b) (561 SE2d 82) (2002).

       (Citation omitted; emphasis supplied.) Staib v. State, 309 Ga. App. 785, 793 (3) (711 SE2d 362) (2011), citing Dixon v. State, 278 Ga. 4, 7 (1) (d) (596 SE2d 147) (2004) (rule of lenity requires that “where any uncertainty develops as to which penal clause is applicable, the accused is entitled to have the lesser of two penalties administered”) (punctuation and footnote omitted).

        Banta v. State, 281 Ga. 615, 618 (2) (642 SE2d 51) (2007).

       (Emphasis supplied.) OCGA § 40-6-270 (a).

       OCGA § 40-6-393 (b).

       See Manning, supra at 378-379 (3).

       (Punctuation omitted.) Smith v. State, 283 Ga. 237, 241 (4) (657 SE2d 523) (2008), citing Banks v. State, 281 Ga. 678, 680 (2) (642 SE2d 679) (2007).

       See McAllister v. State, 270 Ga. 224, 228 (2) (507 SE2d 448) (1998).

       See id.

       See Smith, supra.


author: McFadden, Judge.

text:
    A11A1880.
    HILL v. THE STATE.
    (717 SE2d 523)
   McFadden, Judge.

On August 3, 2010, Elliott Hill was indicted for distribution of methamphetamine, an offense that the indictment alleged had occurred nearly four years earlier, on October 3, 2006. Subsequently, Hill was arrested for that offense. He moved to dismiss his indictment for “pre-indictment and prosecution delay,” citing the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and citing Ga. Const, of 1983, Art. I, Sec. I, Par. XI. The trial court denied Hill’s motion on March 28, 2011, and Hill appeals.

Two types of pre-trial delay have been recognized as possible violations of an accused’s constitutional rights: delay that precedes the arrest or the indictment, which may violate due process guarantees under the Fifth and Fourteenth Amendments of the United States Constitution, Jones v. State, 284 Ga. 320 (1) (667 SE2d 49) (2008); and delay that occurs after an arrest or indictment, which may violate the right to a speedy trial guaranteed by the Sixth Amendment of the United States Constitution, id. at 322 (2), and by the Georgia Constitution. See generally Ruffin v. State, 284 Ga. 52, 54 (2) (663 SE2d 189) (2008) (the Georgia Constitution’s speedy trial right is coextensive with the guarantee set forth in the Sixth Amendment of the United States Constitution). As detailed below, Hill has not shown that either type of delay violated his constitutional rights in this case because he has not demonstrated actual prejudice from the pre-indictment delay and because he has not shown that the seven-month delay following his indictment was presumptively prejudicial. Accordingly, we affirm the trial court’s denial of his motion to dismiss.

1. To prevail on his claim that the delay between the time of the alleged offense and the time of his indictment violated his due process rights, Hill must prove “(1) that the delay caused actual prejudice to his defense, and (2) that the delay was the result of deliberate prosecutorial action to give the State a tactical advantage.” (Citation omitted.) Bunn v. State, 284 Ga. 410, 411 (1) (667 SE2d 605) (2008). Dismissal is unauthorized unless Hill shows both of these elements. Jones, 284 Ga. at 322 (1).

Hill contends that he was prejudiced by the pre-indictment delay because his father, who was a potential defense witness, passed away during that period. The Supreme Court of Georgia has rejected the argument that the death of a witness automatically satisfies the actual prejudice requirement. See, e.g., Manley v. State, 281 Ga. 466, 467-468 (640 SE2d 9) (2007); Holton v. State, 280 Ga. 843, 845 (2) (632 SE2d 90) (2006); Jackson v. State, 279 Ga. 449, 451 (2) (614 SE2d 781) (2005). The possibility of prejudice, including prejudice due to an inaccessible witness, is inherent in any delay, and the applicable statute of limitation is the primary guarantee against bringing overly stale criminal charges. See United States v. Marion, 404 U. S. 307, 321-322 (III) (92 SC 455, 30 LE2d 468) (1971); Billingslea v. State, 311 Ga. App. 490, 493 (2) (716 SE2d 555) (2011).

Furthermore, Hill did not demonstrate actual prejudice under the circumstances. At the hearing on his motion to dismiss, Hill proffered that his father could have given testimony on two topics that would have contradicted state’s witnesses. First, he proffered that his father had been the president of a bank and could have testified about payments made in accounts held at that bank that were connected with the alleged offense. Second, Hill proffered that his father attended a meeting with one of Hill’s co-defendants and could have testified about what had occurred. But Hill did not provide any further detail about the anticipated testimony of his father, did not provide any information about the anticipated testimony of the state’s witnesses on these two topics, or explain how the testimony would have conflicted. His proffer did not establish that the absence of his father as a witness substantially prejudiced his defense. See Billingslea, 311 Ga. App. at 493 (2) (mere existence of possibility that evidence would have assisted defense does not establish actual prejudice).

Because Hill failed to show that the pre-indictment delay caused actual prejudice to his defense, we need not consider whether the delay was the result of deliberate prosecutorial action to give the state a tactical advantage. See Jackson, 279 Ga. at 451 (2). The trial court did not err in denying Hill’s motion to dismiss based on the pre-indictment delay. See Billingslea, 311 Ga. App. at 493 (2).

2. “Only the pretrial delay which occurs subsequent to arrest or indictment is examined for a violation of the right to a speedy trial guaranteed by the Sixth Amendment.” (Citation omitted; emphasis in original.) Moore v. State, 278 Ga. 473, 473-474 (1) (604 SE2d 139) (2004). Accord Marion, 404 U. S. at 325 (IV) (where defendants were not arrested, charged, or otherwise subjected to formal restraint prior to indictment, it was the event of indictment that triggered their Sixth Amendment speedy trial protections). Hill’s counsel conceded this point at oral argument, agreeing that events that occurred prior to Hill’s indictment did not trigger his right to a speedy trial.

Hill’s right to a speedy trial attached on August 3, 2010, the date of his indictment for the offense in this case. His trial was specially set to commence five months from that date, and the trial court ruled on his motion to dismiss less than eight months from that date. Hill has not shown any evidence to support a finding of presumptive prejudicial delay, as required for a speedy trial violation under the analysis set forth in Barker v. Wingo, 407 U. S. 514, 530-531 (IV) (92 SC 2182, 33 LE2d 101) (1972). See Moore, 278 Ga. at 474 (1). The trial court did not err in denying his motion to dismiss on speedy trial grounds.

Judgment affirmed.

Phipps, P. J., and Andrews, J., concur.

Decided October 12, 2011.

Kimberly H. Cornwell, Bruce S. Harvey, for appellant.

Joseph F. Burford, Gary D. Bergman, for appellee.


author: Barnes, Presiding Judge.

text:
    A10A0607.
    MUSSMAN v. THE STATE.
    Decided October 13, 2011.

      Peters, Rubin & Sheffield, Douglas N. Peters, M. Paul Reynolds, for appellant.

      Daniel J. Porter, District Attorney, William C. Akins, Assistant District Attorney, for appellee.
    (717 SE2d 654)
   Barnes, Presiding Judge.

In State v. Mussman, 289 Ga. 586 (713 SE2d 822) (2011), our Supreme Court reversed this court’s decision in Mussman v. State, 304 Ga. App. 808 (697 SE2d 902) (2010), and held that the trial court did not err in denying the defendant’s motion to suppress evidence or dismiss the indictment against him.

Accordingly, our judgment in this case is vacated, the judgment of the Supreme Court is made the judgment of this court, and this case is remanded for further proceedings consistent with this opinion.

Judgment affirmed.

Blackwell and Dillard, JJ., concur.


author: Doyle, Judge.

text:
    A11A0800.
    JONES v. THE STATE.
    (717 SE2d 526)
   Doyle, Judge.

A Camden County jury found George Jones guilty of armed robbery in 2001. Following his conviction, Jones filed a direct appeal. In an unpublished opinion, this Court affirmed Jones’s conviction and remanded the case to allow the trial court an opportunity to address his claim of ineffective assistance of counsel. Jones now appeals from the trial court’s denial of his motion for new trial based on his claim of ineffective assistance of counsel. For the reasons that follow, we affirm.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict. So viewed, the evidence presented at trial showed that on March 29, 2001, a man, identified as Jones, was shopping at a Belk’s store. Jones brought some merchandise to the counter and asked the salesperson to remove the security tags while he picked up an additional item. When Jones returned with a shirt, he told the salesperson not to ring up the items, but simply to put them in a bag. As Jones made his request, he lifted up his shirt revealing a gun, which he had in the waistband of his pants. Jones then demanded all of the money from the cash register, which totaled $269.

As Jones left the store, another employee followed him and witnessed him driving away in a maroon pickup truck with chrome tail light covers. Police dispatched a lookout bulletin for the truck. Shortly thereafter, a Georgia State Patrol Trooper saw the truck, and he followed Jones to a gas station in Florida. The trooper approached the truck and ordered Jones to keep his hands on the steering wheel. Jones then threw a gun out the window and sped off. The trooper retrieved the weapon, and eventually, Jones’s truck was forced off the road in Florida. The arresting officers discovered two shopping bags from Belk’s containing the stolen merchandise, and a search of Jones yielded approximately $270 in cash.

1. Jones contends that he received ineffective assistance due to trial counsel’s and first appellate counsel’s failure to raise or develop evidence of bias stemming from two jurors’ view of him in handcuffs and shackles during his trial. We disagree.

To succeed on an ineffective assistance of counsel claim, a criminal defendant must demonstrate both that counsel’s performance was deficient and that the deficient performance prejudiced him. To sufficiently demonstrate prejudice, a defendant must show that “there is a reasonable probability (i.e., a probability sufficient to undermine confidence in the outcome) that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” If either prong of the test is not met, the other prong need not be examined by the reviewing court. “In particular, a court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.” “There is a strong presumption that the performance of trial counsel falls within the wide range of reasonable professional assistance. The reasonableness of the conduct is viewed at the time of trial and under the circumstances of the case.”

The testimony presented at Jones’s motion-for-new-trial hearing shows that after the jury was dismissed for lunch, the defendant was transported back to the jail. The two jurors saw Jones “in handcuffs and shackles” as they were exiting their vehicles. Jones identified one of the jurors as Ms. Fountain and the other as a man “driving a red and black GMC pickup.” When asked how he knew that the jurors saw him in shackles, Jones testified that they looked directly at him, and that “they’d had to be pretty much blind not to see [him].” After returning to the defense table for trial, Jones informed trial counsel that the two jurors had seen him in handcuffs and shackles, but trial counsel did not pursue the matter further, as he did not “feel that it was worth . . . possibly tainting the jury.”

(a) Jones first asserts that trial counsel rendered ineffective assistance by failing to develop or present evidence regarding the jurors seeing him in handcuffs and shackles. Nevertheless, the trial court correctly denied Jones’s motion for new trial on this issue. Even assuming that the two jurors saw him in handcuffs and shackles, “[w]e cannot presume the jury was unfairly tainted by [Jones’s] appearance.” The evidence, as stated above, was overwhelming, and thus, “we cannot say that there is a reasonable chance that the outcome of the trial would have been different. . . .”

(b) Jones further contends that his first appellate counsel’s failure to raise or develop evidence at the motion-for-new-trial hearing regarding jurors seeing him in handcuffs and shackles constituted ineffective assistance of counsel. Jones’s argument is without merit.

Jones argues that his first appellate counsel “could have put up actual juror witnesses in support of the magnitude of [the] impression on the jurors” seeing him in shackles. Jones, however, fails in his brief on appeal to present any evidence as to what the testimony of these juror witnesses would have been. Without this evidence, Jones “has not shown that the sightings tainted the jury or prejudiced him.” “Accordingly, we cannot say that it was clear error for the trial court to deny the motion on [these] ground[s].”

2. Next, Jones argues that both trial counsel and first appellate counsel rendered ineffective assistance by failing to raise the defense that a fatal variance existed between the indictment and the evidence. Specifically, Jones asserts that there was a fatal variance between armed robbery with the use of a “pellet pistol” as alleged in the indictment and the evidence presented at trial that the perpetrator actually wielded a “BB gun.” We disagree.

(a) With regard to his contention that trial counsel was deficient for failing to raise the issue of fatal variance at trial, Jones failed to raise this issue before the trial court in his motion for new trial and has therefore waived it.

(b) Jones further asserts that he received ineffective assistance because his first appellate counsel failed to raise this issue. We find this argument without merit. The distinction between a pellet gun and a BB gun “does not constitute a fatal variance between the allegata and the probata.”

If the indictment sets out the offense as done in a particular way, the proof must show it so, or there will be a variance . . . [n]ot every variance in proof from that alleged in the indictment is fatal. The crucial requirements are (1) that the accused be definitely informed as to the charges against him, so that he is able to present his defense, and (2) that he may be protected against another prosecution for the same offense. Unless the variance subjects defendant to one of these dangers it is not fatal.

In this case, Jones was informed of the charge against him and there was no risk that he would be placed in jeopardy twice for the same offense. Specifically, Jones was informed that he was charged with armed robbery of certain items on a certain date by use of an offensive weapon. The variance in the specific type of offensive weapon did not affect his defense. In other cases, we have determined that no fatal variance existed when addressing such discrepancies in nomenclature. For example, in Johnson v. State, we held that evidence of a “BB gun” did not fatally vary from an indictment listing a “handgun” as the weapon. Similarly, there is no fatal variance here between the indictment that alleged that Jones committed armed robbery by use of a “pellet pistol” and evidence that showed that the weapon used was a “BB gun.”

Decided October 13, 2011.

Grayson P. Lane, for appellant.

Jacquelyn L. Johnson, District Attorney, Rocky L. Bridges, Assistant District Attorney, for appellee.

Because we have determined that no fatal variance existed, Jones’s assertion that first appellate counsel rendered ineffective assistance for failure to raise the issue on appeal also fails.

Judgment affirmed.

Ellington, C. J., and Miller, P. J., concur.

       OCGA § 16-8-41 (a).

       See Vaughn v. State, 301 Ga. App. 391 (687 SE2d 651) (2009).

        Mobley v. State, 271 Ga. 577 (523 SE2d 9) (1999), citing Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984).

       (Punctuation omitted.) Whatley v. Terry, 284 Ga. 555, 564 (V) (668 SE2d 651) (2008).

       See Strickland, 466 U. S. at 697 (IV).

       Id.

       (Punctuation omitted.) Williams v. State, 277 Ga. 853, 857 (6) (596 SE2d 597) (2004).

       (Punctuation omitted.) Stevenson v. State, 272 Ga. App. 335, 342 (3) (d) (612 SE2d 521) (2005). See also Casey v. State, 237 Ga. App. 461, 462 (1) (515 SE2d 429) (1999) (no evidence was in the record that any of the jurors actually saw defendant in handcuffs and defendant’s burden of establishing prejudice was not met); Whatley, 284 Ga. at 572 (V) (D) (holding that based on evidence presented at trial, no reasonable probability existed that shackling during the sentencing phase affected the jury’s sentence selection).

       (Punctuation omitted.) Stevenson, 272 Ga. App. at 342 (3) (d).

       See Stott v. State, 304 Ga. App. 560, 563 (2) (a) (697 SE2d 257) (2010). See also
        Stevenson, 272 Ga. App. at 342 (3) (d).

        Stott, 304 Ga. App. at 562 (2) (a).

        Stevenson, 272 Ga. App. at 341 (3). See Smallwood v. State, 296 Ga. App. 16, 21 (4) (673 SE2d 537) (2009) (“[A] trial court’s finding that a defendant has been afforded effective assistance of counsel will be affirmed on appeal unless clearly erroneous.”) (punctuation and footnote omitted).

       See Gregory v. State, 277 Ga. App. 664, 669 (5) (627 SE2d 79) (2006) (failure to raise a claim of ineffective assistance of counsel at “the earliest practicable moment... is a bar to raising the issue at a later time.”) (punctuation and footnote omitted).

        Lawson v. State, 278 Ga. App. 852, 853 (2) (630 SE2d 131) (2006).

       (Citations and punctuation omitted.) Glass v. State, 199 Ga. App. 530, 531 (1) (405 SE2d 522) (1991).

       The indictment specified the use of a “pellet pistol.” We have previously concluded that a pellet pistol can be considered an offensive weapon. Fleming v. State, 233 Ga. App. 483, 484 (1) (504 SE2d 542) (1998), rev’d on other grounds, 271 Ga. 587 (523 SE2d 315) (1999).

       266 Ga. App. 898, 900 (2) (598 SE2d 551) (2004). See also Mathis v. State, 299 Ga. App. 831, 833 (1) (a) (684 SE2d 6) (2009) (evidence of a “pellet gun” and the indictment listed a “handgun”); Palmer v. State, 286 Ga. App. 751, 754 (2) (650 SE2d 255) (2007) (evidence of a “BB gun” and the indictment listed a “pistol”).

        Gibson v. State, 291 Ga. App. 183, 188 (3) (661 SE2d 850) (2008) (“Failure to make a meritless or futile objection or motion cannot be evidence of ineffective assistance.”) (punctuation and footnote omitted).


author: MILLER, Presiding Judge.

text:
    A11A0948.
    CITY OF ATLANTA v. LOCKETT.
    (717 SE2d 529)
   MILLER, Presiding Judge.

Wendy Lockett brought a lawsuit against the City of Atlanta (the “City”), alleging that she was injured as a result of the reckless conduct of two Atlanta Police Department (“APD”) officers during their pursuit of a fleeing suspect. The City filed a motion for summary judgment, which the trial court denied. The City appeals, contending that the trial court erroneously denied the motion for summary judgment because the City was entitled to sovereign immunity under OCGA § 36-92-2 (a). Discerning no error, we affirm.

“Summary judgment is warranted when any material fact is undisputed, as shown by the pleadings and record evidence, and this fact entitles the moving party to judgment as a matter of law. . . . We review the denial of summary judgment de novo.” (Citations and punctuation omitted.) Strength v. Lovett, 311 Ga. App. 35, 39-40 (2) (714 SE2d 723) (2011).

So viewed, the record shows that at approximately 5:00 p.m. on July 22, 2008, two APD officers identified a white Chevrolet Monte Carlo that appeared to be exceeding the speed limit, and which they believed matched the description of a vehicle that had been reported stolen earlier in the day. Upon learning that the vehicle’s registration had been suspended, the officers attempted to initiate a traffic stop by activating the emergency lights and siren of their marked City of Atlanta law enforcement police vehicle. The officers began pursuing the white Monte Carlo when its driver refused to stop or slow down and instead accelerated to the next intersection. One of the officers admitted that the pursuit of the white Monte Carlo violated the APD’s written policy identifying the circumstances in which its officers were permitted to initiate and continue emergency vehicle pursuits.

While the police pursuit was underway, the white Monte Carlo struck Lockett, a pedestrian who had been walking along the side of the road. Lockett sustained injuries as a result of the collision. She filed a complaint against the City, seeking to recover compensatory damages for her injuries. The City moved for summary judgment on the ground that it was entitled to sovereign immunity. The trial court found that sovereign immunity had been waived and denied the City’s motion. The City filed this appeal.

1. The City asserts that the trial court erred in failing to grant its motion for summary judgment, because OCGA § 36-92-2 does not support the conclusion that the City’s sovereign immunity was waived. We disagree.

Under OCGA § 36-92-2 (a), the sovereign immunity of a city is waived “for a loss arising out of claims for the negligent use of a covered motor vehicle. ...” The City’s argument relies upon Lock-ett’s claim in this case — specifically, that APD law enforcement officers failed to drive with due regard for the safety of the public in the initiation and continuation of a high speed pursuit, failed to follow the written policies and procedures adopted by the APD regarding high speed pursuits, and acted with reckless disregard for law enforcement procedures. The City contends that Lockett’s claim is “distinctly different from,” and not premised upon, “the negligent use of a covered motor vehicle” as is required by OCGA § 36-92-2 (a). This Court recently considered and rejected this argument, however, in Strength v. Lovett, supra, 311 Ga. App. at 38 (1), and in McCobb v. Clayton County, 309 Ga. App. 217, 219-220 (1) (a) (710 SE2d 207) (2011). In those cases, we held that “a claim that an officer acted with reckless disregard for proper law enforcement procedures in pursuing a fleeing suspect comes within the ambit of claims for negligent use of a city- or county-owned motor vehicle.” Strength, supra, 311 Ga. App. at 38-39 (1); McCobb, supra, 309 Ga. App. at 221 (1) (c).

The City also asserts that there was no waiver of sovereign immunity, because the accident giving rise to Lockett’s injuries was not one involving a “covered motor vehicle” as Lockett was struck by a privately-owned vehicle, rather than the APD officers’ patrol car. However, the City’s argument fails under Strength, where, similar to the instant case, it was the fleeing suspect’s vehicle, rather than the officer’s pursuing police car, that collided with the decedent. Strength, supra, 311 Ga. App. at 38 (1).

Thus, under Strength and McCobb, the City waived its sovereign immunity pursuant to OCGA § 36-92-2 (a), and the trial court properly denied the City’s motion for summary judgment on this basis.

2. The City also claims that the trial court’s ruling was in error because liability for claims related to police pursuits has never been sustainable in negligence. The City argues that “[i]f the trial court’s order stands as is, Georgia law for self-insured municipalities (the City of Atlanta) when it comes to liability for injury claims stemming from police pursuits would permit recovery via negligence, i.e., through OCGA § 36-92-2.” In light of this Court’s decisions in Strength and McCobb, however, we find no basis for construing OCGA § 36-92-2 in this fashion.

“Under Georgia law, sovereign immunity is an immunity from suit, rather than a mere defense to liability, and, therefore, whether a governmental defendant has waived its sovereign immunity is a threshold issue.” (Citations omitted.) McCobb, supra, 309 Ga. App. at 217-218 (1) (a). Contrary to the City’s arguments otherwise, the negligence language in OCGA § 36-92-2 (a) goes to the threshold determination of whether a plaintiff can show that sovereign immunity has been waived — not the subsequent determination of whether the plaintiff is in fact entitled to recovery. Where the plaintiff establishes that sovereign immunity has been waived pursuant to OCGA § 36-92-2 (a), she must still prove the more culpable conduct that is required to sustain a claim for damages under OCGA § 40-6-6 (d) (2). Specifically, a police pursuit will not constitute the proximate cause of the plaintiff s damages unless the plaintiff can establish that “the law enforcement officer acted with reckless disregard for proper law enforcement procedures in the officer’s decision to initiate or continue the pursuit.” OCGA § 40-6-6 (d) (2); see also OCGA § 40-6-6 (d) (3) (“The provisions of this subsection shall apply only to issues of causation and duty and shall not affect the existence or absence of immunity which shall be determined as otherwise provided by law.”). Accordingly, this enumeration of error fails.

Decided October 13, 2011

Laura Sauriol-Gibris, for appellant.

Turkheimer & Hadden, John D. Hadden, Morgan & Morgan, Christopher J. Craddock, Keenan R. Nix, for appellee.

Judgment affirmed.

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

       The City stipulated that a police pursuit was underway when Lockett was struck for purposes of resolution of the City’s motion for summary judgment.


author: Miller, Presiding Judge.

text:
    A11A1108.
    WILLIAMS v. THE STATE.
    (717 SE2d 532)
   Miller, Presiding Judge.

Following a jury trial, Larry Zigmond Williams was convicted of terroristic threats (OCGA § 16-11-37 (a)), use of a hoax device (OCGA § 16-7-85 (a)), and four counts of armed robbery (OCGA § 16-8-41 (a)). Williams claims on appeal that the evidence was insufficient to support his convictions, that the trial court erred in giving a jury charge on party to a crime, and that he received ineffective assistance of trial counsel. We affirm because any rational trier of fact could have found beyond a reasonable doubt that Williams was guilty of the offenses for which he was convicted, because slight evidence supported the charge on party to a crime, and because defense counsel’s performance was not deficient.

On appeal, we construe the evidence favorably to the jury’s verdict. Graves v. State, 280 Ga. App. 420 (634 SE2d 186) (2006). “We do not weigh the evidence or resolve issues of witness credibility, but merely determine whether the jury was authorized to find [Williams] guilty beyond a reasonable doubt.” (Citation omitted.) Hughes v. State, 290 Ga. App. 475 (1) (659 SE2d 844) (2008). “As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.” (Citation and punctuation omitted.) Miller v. State, 273 Ga. 831, 832 (546 SE2d 524) (2001). If, as here, evidence of identity is entirely circumstantial, “such evidence must be so strong as to exclude every other reasonable hypothesis save that of the guilt of the accused.” (Punctuation and footnote omitted.) Hart v. State, 305 Ga. App. 259, 262 (1) (a) (699 SE2d 445) (2010).

So viewed, the evidence shows that shortly before noon, Williams, described as a man wearing a mask, black gloves, safety goggles, overalls, a jacket, and a blue fisherman’s hat, walked into a Cobb County bank. The bank manager was standing at a kiosk greeting customers. Williams handed the manager a beer box, informed her that it was a bomb, and demanded, “Give me the Goddamn money. You’ve got a minute and twenty to get out of here.” Investigators later determined that the purported bomb, which contained a butane cylinder and a clock, had no power unit and could not have caused an explosion.

Williams went to the teller line and demanded money. He threw pillowcases to three tellers and told them to “fill it up.” A fourth teller, who was working the drive-through window, also took money from her drawer and put it into a pillowcase. One of the tellers was so scared that she initially put a pillowcase over her head. As the tellers filled the pillowcases with cash, Williams waved around another pillowcase with one hand as if there was a gun inside.

After retrieving the filled pillowcases, Williams tried to leave through the front door, which the manager had locked to prevent customers from entering the bank. According to the testimony of the manager, as corroborated by one of the tellers, Williams demanded that the manager “[o]pen the door before I shoot your ass.” She opened the door, and Williams exited the bank.

Shortly after the robbery, police received a description of Williams, who was reported to have been last seen driving a dark-green or dark-colored Cadillac. An officer spotted a vehicle matching that description and gave chase. The Cadillac crashed, and the driver, Williams, ran away on foot but was apprehended by the officer. Officers at the site of the crash discovered a pillowcase containing approximately $3,100 in loose cash. In a later search of the Cadillac, they discovered Williams’s driver’s license, a dark glove, two pillowcases containing approximately $28,000 in United States currency, and a handgun.

Williams was charged with committing four counts of armed robbery by taking money from each of the four tellers by use of an article having the appearance of an offensive weapon. He was also charged with committing terroristic threats by threatening to commit the violent crime of aggravated assault on the manager, with the purpose of terrorizing another in reckless disregard of the risk of causing such terror. He was also charged with the offense of hoax device by possessing a hoax destructive device with the intent to cause the bank manager to believe that the hoax device was a destructive device.

1. Williams argues that no rational trier of fact could have found him guilty beyond a reasonable doubt of the offenses for which he was convicted. We disagree.

Williams correctly shows that none of the victims were able to identify him as the masked man who robbed the bank, and he points to alleged inconsistencies in the evidence tending to show that he was not the perpetrator, particularly testimony that he was not apprehended wearing clothes that matched the description given by the victims and that several witnesses saw the suspect get into a yellow Cobalt vehicle. According to an interviewing officer, however, other witnesses saw the suspect get into a green Cadillac. Williams subsequently fled from the police in his green Cadillac while in possession of the proceeds of the robbery, which included the pillowcases full of cash. Although Williams was apprehended while wearing clothing that did not match that described by the victims, an officer familiar with the habits of bank robbers testified that they like to wear multi-layer clothing and then shed clothes after the crime. “[Rjesolving evidentiary conflicts and inconsistencies, and assessing witness credibility, are the province of the factfinder, not this Court.” (Citation omitted.) Hampton v. State, 272 Ga. 284, 285 (1) (527 SE2d 872) (2000). Although circumstantial, the evidence authorized the jury to exclude every reasonable hypothesis other than that Williams was the masked individual who entered the bank and engaged in the acts that constituted terroristic threats, armed robbery, and use of a hoax device. See Hart, supra, 305 Ga. App. at 262 (1) (a) (circumstantial evidence “need not exclude every conceivable inference or hypothesis — only those that are reasonable”) (punctuation, footnote and emphasis omitted); Jackson v. State, 217 Ga. App. 485, 487 (1) (458 SE2d 153) (1995) (circumstantial evidence including unexplained possession and concealment of recently stolen goods was sufficient to exclude any reasonable hypothesis save that of guilt). Accordingly, we find that any rational trier of fact could find Williams guilty beyond a reasonable doubt of terroristic threats, use of a hoax device, and four counts of armed robbery.

2. The trial court charged the jury on the law of party to a crime over Williams’ objection. Williams argues on appeal, consistent with the grounds of his objection below, that the evidence did not support the charge. We disagree.

“To authorize a jury instruction on a subject, there need only be produced at trial slight evidence supporting the theory of the charge. Whether the evidence presented is sufficient to authorize the giving of a charge is a question of law.” (Citation and punctuation omitted.) Robison v. State, 277 Ga. App. 133, 135 (2) (625 SE2d 533) (2006). “[E]ven slight evidence will justify a charge although the great preponderance of evidence tends to show the nonexistence of such fact.” (Citation omitted.) Heard v. State, 149 Ga. App. 92, 93 (2) (253 SE2d 454) (1979). In this case, several witnesses claimed to have seen the robber leave in a yellow Cobalt. Other witnesses said the perpetrator got into a green Cadillac. Given the evidence, it is possible that Williams acted with an accomplice who fled the scene in a yellow Cobalt, while Williams took possession of the pillowcases and fled the scene in the green Cadillac. “Thus, there was slight evidence to justify the charge as to parties to the crime ... as two or more persons could have been involved.” (Citations omitted.) Barnes v. State, 164 Ga. App. 631 (1) (298 SE2d 311) (1982).

3. Lastly, Williams claims that he received ineffective assistance of counsel when his defense counsel failed to object to the authentication of the bank video that depicted the robbery. Again, we disagree.

[T]he burden is on the defendant claiming ineffectiveness of counsel to establish (1) his attorney’s representation in specified instances fell below an objective standard of reasonableness and (2) there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.

(Citation omitted.) Grimes v. State, 291 Ga. App. 585, 589 (2) (662 SE2d 346) (2008). “As a general rule, matters of reasonable tactics and strategy, whether wise or unwise, do not amount to ineffective assistance of counsel.” (Citation and punctuation omitted.) Grier v. State, 273 Ga. 363, 365 (4) (541 SE2d 369) (2001).

In a pre-trial discussion, the trial court asked defense counsel whether the unavailability of the “IT guy” who compiled the videotape would be an issue at trial. Immediately before this discussion, defense counsel had been with one of the tellers as she viewed the surveillance video. Defense counsel indicated to the trial court that there would be no issue with the absence of the “IT guy,” inasmuch as the teller had authenticated the video as a true and accurate description of what had occurred. The State subsequently laid a foundation for admission of the video at trial, eliciting testimony from the bank manager that the video was an accurate reflection of what she had seen as an eyewitness, and that there were no changes, deletions, additions, or modifications. The video was then admitted without objection.

Decided October 13, 2011.

Angela Moore-Brown, for appellant.

Patrick H. Head, District Attorney, Marion T. Woodward, Anna G. Cross, Assistant District Attorneys, for appellee.

Williams does not show that an objection to the authentication of the surveillance tape would have been sustained. See Ross v. State, 262 Ga. App. 323, 326-327 (4) (585 SE2d 666) (2003) (“A videotape is admissible where the operator of the machine which produced it or one who personally witnessed the events recorded testifies that the videotape accurately portrayed what the witness saw take place at the time the events occurred.”) (Citation and punctuation omitted.) Defense counsel was not deficient in failing to raise a meritless objection. See Wesley v. State, 286 Ga. 355, 356 (3) (a) (689 SE2d 280) (2010) (failure to make a meritless objection cannot be evidence of ineffective assistance). Moreover, Williams has not shown a reasonable possibility that allowing the tape to be viewed by the jury changed the outcome of the trial. Defense counsel testified in the hearing on motion for new trial that “[t]he person was completely covered. ... So the video would show what it showed but it didn’t help in any way in pointing towards Mr. Williams.” We find no error in the trial court’s failure to find ineffective assistance.

Judgment affirmed.

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

       The jury found Williams not guilty of four counts of possession of a firearm during commission of a crime (OCGA § 16-11-106 (b)).

       The trial court charged the jury, among other things, that “[ejvery party to a crime may he charged with and convicted of commission of the crime. A . . . person is a party to the crime only if that person directly commits the crime or intentionally helps in the commission of the crime.” See OCGA §§ 16-2-20, 16-2-21.


text:
    A11A1112.
    In the Interest of D. T. A. et al., children.
    (717 SE2d 536)
   McFadden, Judge.

Mariano and Guadalupe Azua, the paternal grandparents of D. T. A. and K. F. A., petitioned for the termination of the parental rights of the children’s mother and father. The juvenile court granted the termination petition, and we granted the mother’s petition for discretionary review of that decision. Only the termination of the mother’s parental rights is at issue in this appeal. The mother contends that the evidence was insufficient to support the juvenile court’s decision. We find that the evidence was sufficient as to three of the four requirements set forth in OCGA § 15-11-94 (b) (4) (A) for finding the parental inability or misconduct necessary to terminate parental rights, but that as to the fourth requirement the juvenile court failed to enter the requisite findings of fact. Accordingly, we vacate the judgment and remand this case for appropriate findings.

OCGA § 15-11-94 sets forth the procedure for termination of parental rights, which involves two steps. First, the juvenile court must find

parental misconduct or inability, which [under OCGA § 15-11-94 (b) (4) (A)] requires clear and convincing evidence that: (1) the child is deprived; (2) the lack of proper parental care or control is the cause of the deprivation; (3) the cause of the deprivation is likely to continue; and (4) continued deprivation is likely to cause serious physical, mental, emotional, or moral harm to the child. If these four factors exist, then the court must determine whether termination of parental rights is in the best interest of the child, considering the child’s physical, mental, emotional, and moral condition and needs, including the need for a secure, stable home.

(Footnote omitted.) In the Interest of J. R. N., 291 Ga. App. 521, 525 (2) (662 SE2d 300) (2008). The appellate court views the evidence in the light most favorable to the juvenile court’s ruling, see In the Interest of T. J. J., 258 Ga. App. 312, 314 (574 SE2d 387) (2002), and its review is

limited to addressing the question of whether any rational trier of fact could have found by clear and convincing evidence that the parent’s rights should have been terminated. In this review, the appellate court must necessarily defer to the juvenile court’s fact finding, weighing of the evidence, and credibility determinations.

(Citations omitted.) In the Interest of A. C., 285 Ga. 829, 836 (3) (686 SE2d 635) (2009).

Viewed in this manner, the evidence showed that on March 19, 2009, the mother’s grandmother (hereinafter, the great-grandmother) left the children and a box of clothing at the Azuas’ house. At that time, D. T. A. was two years old and K. F. A. was three months old. Upon learning that the children were at the Azuas’ house, the mother physically attacked the great-grandmother, and a warrant was issued for the mother’s arrest. In the meantime, the Azuas, who feared that the mother would accuse them of kidnapping the children, contacted the police. Later on March 19, the juvenile court entered an immediate shelter care order removing the children from the mother’s custody and placing them in the Azuas’ custody. In support thereof, the court found that the mother was unemployed and without a stable residence, that she had recently been released from jail after being charged with making terroristic threats against the Azuas, that she was currently on probation, that she had allegedly attacked the great-grandmother, and that she was the subject of an arrest warrant.

The Azuas filed a deprivation petition, alleging that the children were deprived because the mother was incarcerated on aggravated battery charges related to the incident with the great-grandmother; that at the time of her arrest the mother had been on bond in connection with charges of making terroristic threats against the Azuas; that the mother was unemployed and had an inconsistent work history; and that the mother could not provide a suitable home for the children. The Azuas stated in the petition that they believed the father would consent to their temporary legal and physical custody of the children.

The juvenile court held a deprivation hearing, and in April 2009 it adjudicated the children deprived “[biased upon the allegations of the petition, the recommendations of [a court-appointed] Guardian ad Litem, the consent of the father, the mother’s current incarceration, and the evidence presented.” The record on appeal does not include a transcript of the deprivation hearing. The mother stated in her notice of appeal that she would file for inclusion in the record “a transcript of evidence and proceedings,” and a transcript of the termination hearing was filed for inclusion in the record, but we have determined through inquiry with the juvenile court that, although the deprivation hearing was recorded, see OCGA § 15-11-41 (b), the recording was not transcribed.

In the deprivation order, the juvenile court awarded temporary legal and physical custody to the Azuas, noting that the Department of Family and Children Services had approved the Azuas’ home. The court further ordered that the mother satisfy several requirements before a return of custody would be considered. Specifically, the court ordered that the mother obtain and maintain stable, suitable housing of sufficient size for the family; obtain and maintain employment with income sufficient to meet the family’s needs; attend a parenting class; complete a drug and alcohol assessment that included six random drug screenings; maintain meaningful contact with the children by visiting them at least once every two weeks; and pay child support. The mother did not appeal the deprivation order.

In June 2009, the mother pled guilty to the terroristic threats charges and was sentenced as a first offender to five years confinement, the majority of which was to be served on probation. The mother also pled guilty to battery in connection with the incident involving the great-grandmother. The mother was released from jail in June 2009. In December 2009, however, the mother was again incarcerated after being arrested for attempting to run over her boyfriend with a car, for striking her boyfriend with her fists, for DUI, and for underage drinking. She pled guilty to various charges related to that incident, and her probation on the terroristic threats conviction was revoked. She could remain in prison until 2014.

On June 28, 2010, the Azuas petitioned for the mother’s parental rights to be terminated. A hearing on the petition was held on November 1, 2010. The only witnesses at that hearing whose testimony pertained to the termination of the mother’s parental rights were the Azuas, the great-grandmother, and the children’s maternal grandmother (hereinafter, the grandmother). The mother was not present at the hearing, the juvenile court having denied her motion to be produced from prison. See generally In the Interest of S. R. B., 270 Ga. App. 466, 467 (1) (606 SE2d 655) (2004) (juvenile court was authorized to deny parent’s request to be produced from prison for termination hearing where parent received notice of hearing and had adequate opportunity to be heard at hearing through counsel).

Evidence was presented at the termination hearing concerning the mother’s efforts to comply with the reunification terms set forth by the court in the deprivation order. During the period between her incarcerations (June 2009 to December 2009), the mother visited with the children weekly for 45 minutes per visit. She completed a parenting class and scheduled a drug and alcohol assessment but had not yet attended the assessment or had any random drug screenings. She applied for jobs, but was not able to obtain employment other than some work she performed for the grandmother and great-grandmother, for which she was paid $2,000. She briefly shared an apartment with a boyfriend (the rent for which was paid by the great-grandmother); otherwise, she lived with the grandmother and great-grandmother. From the time of her December 2009 incarceration forward, the mother saw the children only once but telephoned them weekly. She also sent them cards. At no time did the mother make any child support payments to the Azuas or assist them in providing clothes, gifts, or food for the children, aside from some Christmas presents.

Evidence was presented that D. T. A. had a bond with and loved his mother, but that he never asked or cried for her. K. F. A., due to her young age, had “[v]ery little” bond with her mother. Photographs taken during some of the mother’s visits with the children depict them smiling and appearing happy. Mrs. Azua testified, however, that D. T. A. developed a stutter for a few months after his mother’s June 2009 release from jail, and he often refused to talk with the mother when she called from prison. K. F. A. would talk to the mother on the telephone but was too young to realize that the person calling was her mother. The grandmother testified that the mother’s incarceration negatively impacted the mother’s ability to create a bond with K. F. A. and also negatively affected the mother’s relationship with D. T. A., because the children did not see her.

Evidence was presented that the children had a bond with the Azuas, who were able to provide them a stable home and who desired to adopt them. Evidence also was presented that the children had a bond with the grandmother and great-grandmother, whom the Azuas allowed the children to visit. Mrs. Azua testified that, if the mother’s parental rights were terminated and the Azuas were granted custody of the children, she would continue to allow the children to visit the grandmother and great-grandmother, and she would also allow the children’s mother to have supervised visitation upon her release from prison.

No allegation was made or evidence presented that the mother had abused or acted violently toward the children. Evidence was presented, however, as to several instances during which the mother had acted violently toward or physically threatened a boyfriend, the grandmother, the great-grandmother, and the Azuas. The grandmother, when asked if she believed the mother had a “problem with violence,” responded affirmatively. The great-grandmother testified that she believed the mother needed anger management counseling. The grandmother and great-grandmother also testified that the mother’s prior boyfriends had criminal histories; her current boyfriend was incarcerated, and the great-grandmother intended for him to move into their house when he was released from prison.

In its order terminating the mother’s parental rights, the juvenile court took judicial notice of its earlier proceedings. The court determined that clear and convincing evidence had been presented that the children were presently deprived, that the cause of their deprivation was lack of proper parental care and control, that the deprivation was likely to continue and was likely to cause serious physical, mental, emotional, or moral harm to the children, and that termination of the mother’s parental rights was in the children’s best interest. In support of its determination, the juvenile court found that the mother failed for a period of more than 12 months to complete her court-ordered reunification goals, including the payment of child support; that her relationship with the children had been negatively affected by her felony conviction and imprisonment and the children were not bonded with her as a parent figure; that D. T. A. had exhibited negative physical behavior in response to some of the mother’s visits; that the mother had a history of choosing as partners men with histories of criminal convictions or activity; that she had untreated anger management problems reflected by her use of physical violence against others; that the children had been doing well in the custody of the Azuas, who had made efforts to support the children’s continued relationship with the grandmother and great-grandmother; and that the guardian ad litem had recommended termination of the mother’s parental rights as being in the children’s best interest.

1. As explained below, the juvenile court did not err in finding that there was clear and convincing evidence of three of the four requirements for a finding of parental misconduct or inability under OCGA § 15-11-94 (b) (4) (A) — deprivation, caused by the lack of parental care or control, which cause was likely to continue — but it failed to make sufficiently explicit findings regarding the fourth requirement — the likelihood of serious harm caused by continued deprivation — so as to allow for appellate review.

(a) Deprivation. The mother’s continued incarceration at the time of the termination hearing authorized the court to find that the children were presently deprived. See OCGA § 15-11-2 (8) (defining “deprived child” to mean, inter alia, child who is without proper parental care or control); In the Interest of R. C. M., 284 Ga. App. 791, 798 (III) (1) (645 SE2d 363) (2007) (children became deprived when their father, who was their sole legal guardian and provider, became incarcerated); In the Interest of J. L. M., 204 Ga. App. 46, 48 (1) (418 SE2d 415) (1992) (children whose parent was incarcerated were deprived under OCGA § 15-11-2 (8), despite being in the temporary custody of loving guardians).

(b) Lack of parental care or control as the cause of the deprivation. In determining whether a parent’s lack of care or control is the cause of the deprivation, the court is required to consider the “[c]on-viction of the parent of a felony and imprisonment therefor which has a demonstrable negative effect on the quality of the parent-child relationship.” OCGA § 15-11-94 (b) (4) (B) (iii). Here, evidence was presented that the mother’s conviction of the felony of terroristic threats, see OCGA § 16-11-37 (a), and her incarceration therefor had negatively affected her ability to form a bond with K. F. A. and to maintain a relationship with D. T. A. See In the Interest of L. F., 203 Ga. App. 522 (417 SE2d 344) (1992) (“demonstrable negative effect” of parent’s incarceration for felony conviction may be shown by circumstantial as well as direct evidence).

Furthermore, in determining whether a noncustodial parent’s lack of care or control is the cause of the deprivation, the juvenile court is required to 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) [t]o develop and maintain a parental bond with the child in a meaningful, supportive manner; (ii) [t]o provide for the care and support of the child as required by law or judicial decree; and (iii) [t]o comply with a court ordered plan designed to reunite the child with the parent or parents.

OCGA § 15-11-94 (b) (4) (C). Evidence was presented to support the juvenile court’s findings that the children were “not bonded with [the mother] as their parent figure,” that she had not paid child support for more than twelve months, and that she had failed to complete some of the court-ordered reunification goals. Although the mother emphasized her attempts to maintain a relationship with the children and to meet some of the reunification goals, it was for the juvenile court to weigh her explanations in these regards. See In the Interest of A. C., 285 Ga. at 836 (3).

(c) The cause of the deprivation is likely to continue. “[T]he court can consider a parent’s past conduct in determining whether. . . conditions of deprivation are likely to continue.” (Citation and punctuation omitted.) In the Interest of B. T., 291 Ga. App. 604, 608 (c) (662 SE2d 656) (2008); see also In the Interest of M. C. L., 251 Ga. App. 132, 135 (1) (a) (553 SE2d 647) (2001). “A parent’s incarceration does not always compel the termination of parental rights, but it can support a termination when there are sufficient aggravating circumstances present.” (Footnote omitted.) In the Interest of M. C. L., supra at 134 (1) (a); see also In the Interest of L. F., 203 Ga. App. at 522. Such aggravating circumstances may include a history of incarcerations for repeated criminal offenses, a determination that it is likely such criminal history will continue upon release, and a failure by the incarcerated parent to comply with reunification goals. In the Interest of M. C. L., supra at 134-135 (1) (a).

Here, evidence showed that the mother had a history of violent interactions with others that had led to her convictions and incarceration, and there was no indication that the mother had taken any action toward resolving what was described at the hearing as her “anger management” problem. Evidence also showed that the mother had a history of choosing boyfriends with criminal backgrounds, including the mother’s current boyfriend, who was incarcerated. And, as discussed above, the mother failed to complete all of her court-ordered reunification goals, including the payment of any child support, even during the time period when she was not incarcerated. This evidence supported the finding that the cause of the deprivation was likely to continue. See In the Interest of R. D. B., 289 Ga. App. 76, 79 (1) (656 SE2d 203) (2007).

(d) Likelihood of serious harm from continued deprivation. “The juvenile court is required to make explicit findings as to the existence of parental misconduct or inability as defined in OCGA § 15-11-94 (b).” (Citations and punctuation omitted.) In the Interest of D. W., 293 Ga. App. 468 (1) (667 SE2d 631) (2008). Accordingly, an order terminating parental rights must contain explicit findings supporting the conclusion that the continued deprivation will cause or is likely to cause serious physical, mental, emotional, or moral harm to the child. See In the Interest of K. J., 226 Ga. App. 303, 307 (2) (b) (486 SE2d 899) (1997). A mere recitation that this legal requirement was met will not suffice. See id. “The trial judge is to ascertain the facts and to state not only the end result of that inquiry but the process by which it was reached.” (Citation and punctuation omitted.) In the Interest of J. M., 251 Ga. App. 380, 383 (4) (554 SE2d 533) (2001).

Here, the juvenile court stated in its order that the children

have suffered, are suffering, and will continue to suffer in the future as a result of the profoundly detrimental and egregious conduct of [the mother], who [is] hereby found to be unfit, and the children are currently suffering and are in danger of suffering in the future, serious physical, mental, emotional and moral harm due to the mere continuance of the relationship with the [mother] on a visitation basis. . . .

This order did not state any specific facts that led the juvenile court to conclude that there was a likelihood of serious harm from continued deprivation, but cited only its general findings regarding the mother’s unfitness and conduct. Moreover, in support of its conclusions, the juvenile court referenced earlier, apparently untran-scribed proceedings. See generally OCGA § 5-6-41 (f) (permitting trial court, on proper suggestion or of its own initiative, to direct that omission in record be corrected). Without more specific factual findings on the issue of the likelihood of serious harm from continued deprivation, we have no basis to evaluate whether the juvenile court properly determined that clear and convincing evidence supported the court’s conclusion on that issue. See In the Interest of J. E., 309 Ga. App. 51, 57 (1) (d) (711 SE2d 5) (2011) (a finding that deprivation is likely to continue does not automatically support a finding that continued deprivation will harm the child; whether the facts authorizing the former finding also authorize the latter finding depends on the circumstances of the case); In the Interest of A. T, 271 Ga. App. 470, 473 (610 SE2d 121) (2005) (evidence that a mother is unable to care for her children does not necessarily demonstrate that her current relationship with them is harmful).

Decided October 13, 2011.

McDonald, Thames & Ray, Todd L. Ray, Joshua J. Smith, for appellant.

McCamy, Phillips, Tuggle & Fordham, Curtis A. Kleem, for appellee.

Accordingly, we vacate the judgment of the juvenile court and remand the case with the direction to make appropriate findings of fact and conclusions of law, and to enter a new judgment based thereon. See In the Interest of T. S., 310 Ga. App. 100, 104 (2) (712 SE2d 121) (2011); In the Interest of S. W. J. P. D., 275 Ga. App. 272, 273 (620 SE2d 497) (2005). After this judgment is entered, the losing party shall be free to file another appeal. See id.

2. Having found it necessary to remand this case for further proceedings as to issues that are prerequisites for consideration of the question whether the court erred in finding that the termination of parental rights was in the children’s best interest, we cannot reach that question. See generally OCGA § 15-11-94 (a), (b) (question of whether termination of parental rights is in child’s best interest arises only after juvenile court has determined that there is clear and convincing evidence of parental misconduct or inability, which in turn requires determination that continued deprivation will cause or is likely to cause serious harm to child).

Judgment vacated and case remanded with direction.

Mikell and Dillard, JJ., concur.