text:
    A13A0723.
    HOWARD et al. v. STATE OF GEORGIA.
    (743 SE2d 540)
   BARNES, Presiding Judge.

Steven Jerome Howard and Monica Shanta Mosley appeal the trial court’s order striking their answers to the complaint in the underlying forfeiture proceeding. Howard and Mosley contend that the trial court erred in failing to afford them an opportunity to amend their answers so as to provide the verification required by law. Discerning no error by the trial court, we affirm.

The State of Georgia filed an in rem forfeiture complaint against (i) $4,269 in United States Currency and (ii) a motor vehicle identified as a 2006 Ford Econoline Wagon 3500 (collectively, the “Property’). According to the complaint, the Property, which was seized in Crisp County along with approximately nine ounces of marijuana, was subject to forfeiture because it was directly or indirectly used to facilitate a violation of OCGA § 16-13-30, or constituted proceeds derived or realized from a violation of OCGA § 16-13-30. The State identified Howard, Mosley, and Chealsia N. Dickerson as the owners or interest holders of the Property.

Mosley was served with the complaint on May 25, 2012, and she filed an answer on June 8, 2012. In her answer, Mosley asserted, among other things, that she owned the Econoline Wagon and that she was an innocent property owner. Service was returned “non est” on Howard, but he filed an answer on June 20, 2012. Howard contended in his answer that, among other things, he was the lawful owner of $966 of the Property, and that the $966 was exempt from forfeiture. Howard and Mosley filed their answers pro se. Neither answer was verified.

Howard and Mosley subsequently moved for summary judgment. The State filed a cross-motion for summary judgment and, contemporaneously therewith, moved to dismiss Howard’s and Mosley’s pleadings on the ground that, among other things, their answers were not verified as required by law. Following a hearing, the trial court found that neither Howard’s nor Mosley’s pleadings conformed to the strict pleading requirements of OCGA § 16-13-49 (o) (3) and ordered that their answers be dismissed. Accordingly, the Property was forfeited to the State.

On appeal, Howard and Mosley contend that the trial court erred in failing to allow them an opportunity to amend their answers to the forfeiture complaint. We have found that failure to comply with the strict pleading requirements of OCGA § 16-13-49 in answering an in rem forfeiture complaint “is equivalent to filing no answer at all.” (Citations and punctuation omitted.) Tuggle v. State of Ga., 224 Ga. App. 353, 355 (1) (480 SE2d 353) (1997). OCGA § 16-13-49 (o) (3) provides, among other things, that “[a]n answer must be verified by the owner or interest holder under penalty of perjury.” This requirement may be met by having the verification signed under oath and before a notary public. See Dearing v. State of Ga., 243 Ga. App. 198, 201 (1) (532 SE2d 751) (2000).

Howard and Mosley concede that their answers were not properly verified. They argue that the trial court nevertheless should have allowed them an opportunity to amend their answers as contemplated under OCGA § 9-11-15. In pertinent part, OCGA § 9-11-15 (a) provides that “[a] party may amend his pleading as a matter of course and without leave of court at any time before the entry of a pretrial order.” The applicable rule is that

[ajmendments to answers in forfeiture proceedings are permitted, and they relate back to the initial answer, thus meaning that any amendment to an answer under [OCGA] § 16-13-49 must be considered to have been filed within the 30-day limitation of [OCGA] § 16-13-49 (o) (3), and must be considered in determining the legal sufficiency of a property owner’s answer under [OCGA] § 16-13-49 (o) (3). If, however, the answer and the amendment are legally insufficient under [OCGA] § 16-13-49 (o) (3), then the rules established by [the Supreme] Court and the Court of Appeals governing the impact of a legally insufficient answer on the forfeiture proceedings come into play.

Rojas v. State of Ga., 269 Ga. 121, 123-124 (2) (498 SE2d 735) (1998) (finding that the Civil Practice Act applies to forfeiture actions unless in direct conflict with the forfeiture statute).

Here, although Howard and Mosley were permitted by law to amend their answers to correct the lack of verification, they never did so, notwithstanding that the deficiency had been pointed out by the State almost two months before the hearing on the motion to dismiss. Compare Hutto v. Plagens, 254 Ga. 512, 513-514 (2) (330 SE2d 341) (1985) (there is no prohibition against verifying a pleading previously filed). And although they claim now that the trial court failed to afford them an opportunity to amend their pleadings, they fail to show that the trial court refused to consider such an amendment or did anything to preclude or bar the filing thereof. “If the claimant fails to properly verify his answer in the first instance or later amend it to correct the deficiency, the trial court is entitled to strike the answer and enter a judgment of forfeiture in favor of the State.” Portee v. State of Ga., 277 Ga. App. 536, 537 (1) (627 SE2d 63) (2006). See Jones v. State of Ga., 241 Ga. App. 768, 769 (2) (527 SE2d 611) (2000) (trial court did not err in dismissing answer that was not verified and did not include information required by OCGA § 16-13-49); Waters v. State of Ga., 239 Ga. App. 897 (522 SE2d 493) (1999) (finding that appellant “clearly was permitted by law to amend his answer but failed to do so”). That Howard and Mosley were pro se did not relieve them from complying with the requirements of OCGA § 16-13-49, nor impose on the State or the trial court a requirement to provide them with legal advice. See Portee, 277 Ga. at 538 (1) (b). Accordingly, Howard and Mosley have not shown that the trial court abused its discretion in striking their answers.

Decided May 22, 2013.

Steven J. Howard, pro se.

Monica S. Mosley, pro se.

Denise D. Fachini, District Attorney, Cheri L. Nichols, Assistant District Attorney, for appellee.

Judgment affirmed.

Miller and Ray, JJ., concur.

       Dickerson did not answer the complaint and has not appealed from the trial court’s order forfeiting the Property to the State.

       The parties agree that the trial court held a hearing on the State’s motion to dismiss. The State asserts that the hearing was not transcribed, and no transcript thereof is included as part of the appellate record.

        See McMeans v. Dept. of Transp., 319 Ga. App. 230, 234 (734 SE2d 412) (2012) (reviewing ruling on motion to strike answer for abuse of discretion); Edenfield & Cox, P.C. v. Mack, 282 Ga. App. 816, 819 (640 SE2d 343) (2006) (same).


source: Caselaw Access Project

author: DOYLE, Presiding Judge.

license: Public Domain

text:
    A13A0766.
    RIVAS v. THE STATE.
    (743 SE2d 543)
   DOYLE, Presiding Judge.

Ford Paul Rivas appeals from the trial court’s denial of his motion to withdraw his negotiated guilty plea to aggravated assault and cruelty to children in the third degree. Rivas contends that the trial court erred by denying his motion because his plea counsel failed to inform him that one of the witnesses against him would not have testified to the facts necessary to convict him of the crimes, and therefore, his plea was not knowing or voluntary. For the reasons that follow, we affirm.

Rivas was indicted on two counts of aggravated assault, two counts of terroristic threats, one count of cruelty to children in the third degree, and one count of obstruction of an officer based on a May 6, 2010 incident, during which Rivas, after arguing with his mother, Charlotte Rivas, inside of her home, exited the house and pointed a firearm at Charlotte’s neighbor, Wanda Simpson, who had earlier called police after hearing what she believed to be gunshots and screaming. Simpson stated that Rivas threatened to shoot her, and Charlotte told officers that Rivas had likewise threatened her inside the house, which incident took place in front of Rivas’s minor child.

Rivas’s plea counsel entered into negotiations with the State, which agreed to file a motion for nolle prosequi on one charge of aggravated assault, the two terroristic threats charges, and the charge of obstructing an officer if Rivas pleaded guilty to the remaining two charges. Based on this agreement, Rivas pleaded guilty.

Thereafter, Rivas filed a motion to withdraw his guilty plea, which the trial court denied after two hearings at which Rivas, Charlotte, and Rivas’s plea counsel testified.

Rivas argues that the trial court erred by denying his motion to withdraw his guilty plea.

A ruling on a motion to withdraw a guilty plea lies within the sound discretion of the trial court and will not be disturbed absent a manifest abuse of such discretion. When the validity of a guilty plea is challenged, the [S]tate bears the burden of showing affirmatively from the record that the defendant offered his plea knowingly, intelligently, and voluntarily. The State must show that the defendant was cognizant of all of the rights he was waiving and the possible consequences of his plea. After a defendant’s sentence has been pronounced, his guilty plea may be withdrawn only to correct a manifest injustice. The test for manifest injustice will by necessity vary from case to case, but it has been said that withdrawal is necessary to correct a manifest injustice if, for instance, a defendant is denied effective assistance of counsel, or the guilty plea was entered involuntarily or without'an understanding of the nature of the charges.

As an initial matter, our review of the plea hearing establishes that Rivas was appropriately apprised of his rights prior to entering the guilty plea, Rivas was satisfied with his plea counsel’s advice, and Rivas had discussed the case with counsel. Additionally, the court informed Rivas of the potential range of punishment for each charge, and Rivas indicated that pleading guilty was in his best interest because he believed there was a likelihood he would be convicted if he went to trial. The State provided a factual basis for the plea, at which point the prosecutor stated the facts as summarized above. Prior to Rivas actually entering his plea with the court, the prosecutor explained that Rivas’s mother and father had spoken to him previously and wanted the charges against Rivas dropped, and the two had indicated at Rivas’s bond hearing that the incident had not occurred, but that Simpson appeared at the plea hearing and testified in support of the prosecutor’s factual basis.

1. To the extent that Rivas contends that his plea was not knowing and voluntary because he was not aware that his mother, Charlotte, would have testified that he did not commit aggravated assault against her in front of his daughter and that he did not point a firearm at Simpson, his argument is without merit. As stated above, the plea hearing indicates that Rivas had consulted with his attorney and was advised that he was giving up his right to call witnesses in his own defense at trial. Moreover, the prosecutor explained prior to Rivas’s entry of his guilty plea that Charlotte and Rivas’s father had attempted to persuade the State to drop the charges against Rivas and had stated at Rivas’s bond hearing that the incident did not occur. Accordingly, “the trial court was authorized to reject [Rivas’s] self-serving testimony during the hearing on his motion to withdraw the plea and find that he entered [the plea] knowingly and voluntarily.”

2. To the extent that Rivas has articulated a claim of ineffective assistance of plea counsel based on his claim that counsel failed to explain that Charlotte would testify on his behalf at the time he entered the plea, we find no error in the trial court’s denial of his motion to withdraw his guilty plea.

All criminal defendants, including those who waive their right to trial and enter a guilty plea, are entitled to effective legal assistance. In order to show a constitutional violation of this Sixth Amendment right, a defendant must (1) establish that his counsel’s performance fell outside the range of competence for attorneys in criminal cases and (2) establish the reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.

Decided May 22, 2013.

Benjamin A. Davis, Jr., for appellant.

Peter J. Skandalakis, District Attorney, Vincent J. Faucette, Assistant District Attorney, for appellee.

Even assuming that plea counsel failed to confirm that Rivas was aware that Charlotte would testify on his behalf at trial, Rivas has failed to establish that any such failure was ineffective. Simpson testified at the plea hearing to the events in question, the State would have been able to cross-examine Charlotte with her prior inconsistent statements to police, and Rivas was able to avoid four of the original six charges by so pleading. Accordingly, we discern no error.

Judgment affirmed.

McFadden and Boggs, JJ., concur.

       OCGA § 16-5-21 (a) (2).

       OCGA § 16-5-70 (d) (2).

       (Citations and punctuation omitted.) Williams v. State, 318 Ga. App. 744, 745 (734 SE2d 745) (2012).

        See Boykin v. Alabama, 395 U. S. 238, 243 (89 SCt 1709, 23 LE2d 274) (1969) (holding that a defendant entering a guilty plea must he advised that he is waiving his right against compulsory self-incrimination, right to trial by jury, and right to confront his accusers). See also Childs v. State, 311 Ga. App. 891, 891-892 (1) (717 SE2d 509) (2011).

       (Punctuation omitted.) Wells v. State, 276 Ga. App. 844, 845-846 (625 SE2d 90) (2005).

       (Punctuation omitted.) Hollman v. State, 280 Ga. App. 53, 58 (2) (633 SE2d 395) (2006).

       We note that the transcript of the plea hearing contradicts Rivas’s contention that he was unaware of Charlotte’s attempt to have the charges dropped and her statements at the bond hearing that the subject incident did not occur.

       See id. at 58-59 (2).


author: BARNES, Presiding Judge.

text:
    A13A0791.
    GALIMORE v. THE STATE.
    (743 SE2d 545)
   BARNES, Presiding Judge.

Roderick Galimore pled guilty to burglary, and following a later hearing the trial court ordered him to pay the victim restitution in the amount of $3,100. On appeal from the restitution award, Galimore claims that (1) the amount of restitution ordered by the trial court was not supported by the evidence and (2) the trial court erred in failing to make findings of fact relating to each of the statutory factors that must be considered in determining the nature and amount of restitution. For the reasons set forth below, we disagree with Galimore and affirm.

Restitution “is not synonymous with civil damages.” (Citation and punctuation omitted.) In the Interest of E. W., 290 Ga. App. 95, 97 (3) (658 SE2d 854) (2008). The amount of damages is one of the factors to be considered by the trial court in ordering restitution. See OCGA § 17-14-10 (a) (4). The trial court must also consider, among other things, “the offender’s present financial condition and future earning capacity, as well as the goal of rehabilitation to the offender.” (Citation and punctuation omitted.) In the Interest of E. W., 290 Ga. App. at 97 (3). The burden of showing the offender’s financial resources, and the needs of his or her dependents, is placed on the offender. Id. However, the amount of restitution awarded cannot exceed the amount of the victim’s damages, and the State has the burden of demonstrating the amount of the victim’s loss. See OCGA §§ 17-14-7 (b); 17-14-9. In this context, damages means “all special damages which a victim could recover against an offender in a civil action . .. based on the same act or acts for which the offender is sentenced, except punitive damages and damages for pain and suffering, mental anguish, or loss of consortium.” OCGA § 17-14-2 (2). The appellate court’s duty is to review “the transcript to determine whether each party has met his or her specified burden and determining whether a restitution award was supported by the preponderance of the evidence.” (Punctuation and footnote omitted.) McClure v. State, 295 Ga. App. 465, 466 (673 SE2d 856) (2009).

The transcript shows that Galimore stole the victim’s laptop computer, four Dell desktop computers, an “all in one” desktop computer, a server (collectively, the “computer-related items”), a 27-inch television, a DVD player, a game console, hand and power tools, and a jar of coins. The victim testified to the value of the stolen items individually and that the total value of the property stolen was approximately $3,500. Galimore’s attorney cross-examined the victim as to how he arrived at his valuations and then argued during closing that the evidence was insufficient to establish the fair market value of the stolen property. After closing arguments, the trial court informed the victim that he was not entitled to recover the “value new” of the stolen property and then re-opened the evidence. In response to the trial court’s questioning, the victim testified that if he were to sell the laptop now at fair market value, he would “ask at least $750 for it,” although he had earlier testified that the value of the laptop was $1,100. Consistent with the written order entered the same day, the trial court indicated that it would award restitution of $3,100.

1. When restitution is ordered for property that the defendant stole or destroyed, the amount of damages is based on the fair market value of the property. See Austin v. State, 315 Ga. App. 713, 715 (727 SE2d 535) (2012). Galimore contends that the trial court’s award was improper because the victim’s testimony showed that he valued much of the stolen property based on replacement cost and not fair market value. See id. (in determining fair market value, it is not sufficient for victim merely to provide either the original cost or replacement cost of stolen property). In reviewing the trial court’s ruling, “we consider whether the evidence shows the fair market value of [the] items, the condition of the items, or an appropriate method of discounting the items from their replacement value to their fair market value.” (Citation and punctuation omitted.) Gray v. State, 273 Ga. App. 747, 749 (2) (615 SE2d 834) (2005). Further,

[o]pinion evidence as to the value of an item, in order to have probative value, must be based upon a foundation that the witness has some knowledge, experience or familiarity with the value of the property or similar property and he must give reasons for the value assessed and also must have had an opportunity for forming a correct opinion.

(Citation and punctuation omitted.) Id. at 750 (2).

(a) Here, the evidence of value as to the computer-related items was strong. The victim was an IT professional who frequently dealt in buying and selling computer equipment, and confirmed to the trial court that he thereby was able to assess reasonable values of such equipment. He described the various computers and the server with particularity and explained that he had researched market values on eBay. Although during cross-examination the victim sometimes referred to replacement costs in explaining how he arrived at his valuations, the trial court could conclude that, other than the laptop, the victim testified to the fair market value of the computer-related equipment and not simply the cost of purchasing a new replacement. For example, the victim valued the server at $250 based on “the replacement cost on eBay,” which his testimony also showed to be “a used price,” thus reflecting the market value of the stolen server. The trial court made it clear to the victim that he was not entitled to ask for the “value new,” after which the victim clarified that he had been speaking to “fair market. . . value on a used computer” as to the four Dell desktop computers. The trial court also indicated its intent to reduce the victim’s initial valuation of his laptop to the $750 amount the victim testified he would accept “if [he] sold it at fair market value.”

(b) The victim’s basis for testifying to the valuation of the non-computer-related items is less clear. However, on cross-examination defense counsel asked the victim if he was “basing everything off receipts.” The victim acknowledged that he based the value of the laptop off of its receipt, but that as for “everything else,” he “found the current market value based off the [sic] eBay prices.” Thus, apart from his initial testimony as to the value of the laptop, and except as noted below with respect to the hand tools and the jar of coins, there is evidence from which the trial court could conclude that the victim’s itemized valuation testimony constituted his opinion of the fair market value of such property, including his Wii gaming system, power tools, television, and DVD player, and that such testimony was based on his knowledge and familiarity with the market for that property as used. “The witness gave the basis for [his] opinion which would leave the weight and credibility for the [trial court].” Burch v. Lawrence, 150 Ga. App. 351, 352 (1) (258 SE2d 35) (1979). See OCGA § 24-9-66 (2012) (“Direct testimony as to market value is in the nature of opinion evidence. One need not be an expert or dealer in the article in question but may testify as to its value if he has had an opportunity for forming a correct opinion.”); Mayfield v. State, 307 Ga. App. 630, 633 (2) (c) (705 SE2d 717) (2011) (“[t]he owner of property is considered to be qualified to state his opinion as to value”) (citation, punctuation and emphasis omitted); Barnes v. State, 239 Ga. App. 495, 498 (1) (521 SE2d 425) (1999) (it is “not objectionable that [the owner’s] opinion as to value might, in some cases, be based on hearsay”) (citation, punctuation and emphasis omitted).

(c) We agree with Galimore, however, that the evidence was insufficient to support an award for the value of the victim’s hand tools and a jar of coins. The victim valued his “total kit” of stolen hand and power tools at $300. As to the power tools, the victim testified the value of his “DeWALT drill” and “DeWALT jigsaw” was $150 and $90, respectively, but he also admitted that he had “difficulty” placing value as to his “hand tools,” which he identified as “screwdrivers, nut drivers, pliers, wire cutters, that sort of thing.” The victim then acknowledged on cross-examination that his valuation of the hand tools was a “shot-in-the-dark guess” and that he did not actually know what hand tools were stolen. As the victim’s testimony was shown to be speculation and without foundation, the evidence does not support an award for the fair market value of the victim’s “total kit” of tools to the extent it included his hand tools. See Gray, 273 Ga. App. at 750 (2) (opinion testimony without proper foundation is inadmissible as speculation).

The victim also valued a gallon jar of coins, filled approximately a third of the way full with “everything from half dollars down to pennies and dimes,” at $200. The victim also testified, however, that he was “guessing” as to that amount, and that, in fact, he “[did not] know.” Given these qualifications, the victim’s opinion of the value of the coins in the jar was speculative and without probative value. And although a jar of coins must have some value, the trier of fact was not given any pertinent information from which to determine the number or relative distribution of the various denominations of coins therein, and so the State did not present any evidence from which the trier of fact could determine the fair market value of the coins beyond resorting to conjecture. See generally Jaraysi v. Sebastian, 318 Ga. App. 469, 477 (2) (733 SE2d 785) (2012) (“damages cannot be established by speculation, conjecture and guesswork”) (punctuation and footnote omitted).

(d) Notwithstanding the foregoing, even taking into consideration that the trial court failed to accept the victim’s initial valuation of the laptop, a trier of fact could conclude that the fair market value of the computer-related items was $2,250, and that the fair market value of the other property, excluding any allocation of value for the hand tools and excluding the jar of coins, was $840. This corresponds almost exactly to the $3,100 awarded by the trial court, an amount which would have been recoverable by the victim in a civil action as damages. See, e.g., OCGA § 17-14-2 (2) (damages for purposes of restitution means, with certain exceptions, “all special damages which a victim could recover against an offender in a civil action”); Esprit Log & Timber Frame Homes v. Wilcox, 302 Ga. App. 550, 553 (1) (691 SE2d 344) (2010) (even assuming some costs claimed as damages by the plaintiff were not supported by the evidence, the damage award was within range of the evidence and affirmed). We conclude, therefore, that the State met its burden of presenting sufficient evidence to support the amount of restitution.

2. Galimore also contends that the trial court erred by not making findings of fact relating to each of the statutory factors that must be considered in determining the nature and amount of restitution. We disagree. When a trial court orders restitution it “shall” consider the factors set forth in OCGA § 17-14-10 (a) (1)-(8). See Turner v. State, 312 Ga. App. 799, 801 (1) (720 SE2d 264) (2011). Here, the trial court heard evidence on damages, which were required to be proven by the State. Galimore chose not to come forward with any evidence, notwithstanding that “[t]he burden of demonstrating the financial resources of the offender or person being ordered to pay restitution and the financial needs of his or her dependents shall be on the offender or person being ordered to pay restitution.” OCGA § 17-14-7 (b). Galimore points to nothing in the transcript that would show that the trial court did not consider the appropriate factors in determining the restitution award. Further, “based on an amendment to the restitution statutes in 2005, a trial court is no longer required to make written findings of fact concerning the factors to be considered in determining the restitution amount.” Futch v. State, 314 Ga. App. 294, 298 (3) (a) (723 SE2d 714) (2012). See McCart v. State, 289 Ga. App. 830, 832 (1) (658 SE2d 465) (2008) (“Given that the defendant has the burden of showing some of the factors, that he or she might forego presenting such evidence, and that the decision is based on the preponderance of the evidence, it is unnecessary to require the ordering authority to make a finding on each factor.”). Accordingly, Galimore fails to show error.

Decided May 22, 2013.

Earle J. Duncan III, for appellant.

Tom Durden, District Attorney, Sandra Dutton, Assistant District Attorney, for appellee.

Judgment affirmed.

Miller and Ray, JJ., concur.

       As to the television and the DVD player, the victim also testified that he researched the replacement cost on Walmart.com, but the evidence did not necessarily show that victim valued those items at something other than fair market value. For example, he indicated that the television’s replacement cost was $150 but that he valued it at $100.

       Excluding the receipt-based valuation of the laptop, the victim’s testimony as to the value of the computer-related items was as follows: one laptop, $750; four Dell laptop computers, $250 each, for a total of $1,000; one “all-in-one” computer, $250; and a server, $250.

       Excluding the jar of coins and the “total kit” of tools, the victim’s valuation of his noncomputer-related items was as follows: Wii gaming system, with multiple controllers and a dozen games, $400; television and DVD player, $200; and power tools, $240.


author: Ray, Judge.

text:
    A13A0069.
    ESASKY et al. v. FORD.
    (743 SE2d 550)
   Ray, Judge.

Nicholas and Jimita Esasky appeal from a final decree of adoption awarding them parental rights to Nicholas Esasky’s biological granddaughter, S. S., and also awarding visitation to the child’s biological grandmother, Vicki Ford. The Esaskys contend, inter alia, that the trial court failed to rely upon clear and convincing evidence in determining its grant of visitation. Ford did not file an appellate brief in this action. Because the trial court erred by failing to make specific written findings of fact pursuant to OCGA § 19-7-3, we vacate the portion of the trial court’s order related to visitation and other contact rights, and remand this case with direction.

In a single order on January 6, 2012, the trial court terminated the parental rights of S. S.’s biological mother and father and granted the Esaskys’ petition to adopt S. S. Also, over the Esaskys’ objections, the trial court granted visitation rights to Ford, who had intervened in the adoption action to seek visitation.

On appeal from an order granting grandparent visitation, we view the evidence in the light most favorable to the trial court’s judgment to determine whether any rational trier of fact could have found by clear and convincing evidence that the mandated visitation was authorized. We do not weigh the evidence or determine witness credibility, but defer to the trial court’s factfinding and affirm unless the evidence fails to satisfy the appellate standard of review.

(Footnotes omitted). Luke v. Luke, 280 Ga. App. 607, 609-610 (1) (634 SE2d 439) (2006).

“Generally, the adoption of a minor child extinguishes any visitation rights of the child’s former grandparents — OCGA § 19-8-19 (a) (1) provides that a decree of adoption has the effect of severing all former relationships of the adopted child.” Hudgins v. Harding, 313 Ga. App. 613, 614 (722 SE2d 355) (2012). However, OCGA § 19-7-3 (b) (1) provides a limited exception to this rule where, as here, the child has been adopted by a blood relative. OCGA § 19-7-3 (c) (1) provides:

. . . [T]he court may grant any grandparent of the child reasonable visitation rights if the court finds the health or welfare of the child would be harmed unless such visitation is granted and if the best interests of the child would be served by such visitation. In considering whether the health or welfare of the child would be harmed without such visitation, the court shall consider and may find that harm to the child is reasonably likely to result where, prior to the original action or intervention:
(A) The minor child resided with the grandparent for six months or more;
(B) The grandparent provided financial support for the basic needs of the child for at least one year;
(C) There was an established pattern of regular visitation or child care by the grandparent with the child; or
(D) Any other circumstance exists indicating that emotional or physical harm would be reasonably likely to result if such visitation is not granted.
The court shall make specific written findings of fact in support of its rulings.

(Emphasis supplied.)

“Due process requires that evidence supporting grandparent visitation meet the clear and convincing standard of proof.” (Citation omitted.) Sheppard v. McCraney, 317 Ga. App. 91, 92 (730 SE2d 721) (2012).

Here, no evidence was presented related to OCGA § 19-7-3 (c) (1) (A), (B), or (D) as to whether S. S. had resided with Ford for six months or more, whether Ford had provided financial support for S. S. for a year or more, or as to any other circumstance indicating physical or emotional harm to S. S. would be reasonably likely if visitation were not granted. The testimony presented as to OCGA § 19-7-3 (c) (1) (C) regarding whether Ford had an “established pattern of regular visitation or child care” of S. S. showed steadily diminishing visitation periods between 2009 and 2011 as a result of court orders modifying Ford’s visitation for a variety of reasons, and ultimately instituting supervised visitation after S. S.’s therapist filed a report with the Cobb County Crimes Against Children Unit related to allegations that Ford bruised S. S. and pulled out one of her teeth, causing her to bleed. No evidence was adduced as to the outcome of this investigation.

To resolve the issue of visitation, the trial court was required to apply OCGA § 19-7-3 (c) in its determination of whether Ford had presented clear and convincing evidence that the child’s health or welfare would be harmed unless visitation was granted, and whether such visitation was in the child’s best interests. “[T]he inclusion of specific written findings of fact supported by clear and convincing record evidence is mandatory to justify a grant of visitation.” (Citation omitted.) Cates v. Jamison, 301 Ga. App. 441, 442 (687 SE2d 675) (2009).

Decided May 23, 2013.

Steven J. Strelzik, Mary Trachian-Bradley, for appellants.

Charles G. Harbin, Jr., for appellee.

Because the trial court did not make specific written findings of fact on these issues as required by OCGA § 19-7-3 (c) (1), we vacate the portion of the trial court’s order related to Ford’s grandparent visitation and other rights of contact with the child, and remand the case to the trial court for entry of an order consistent with the requirements of OCGA § 19-7-3 (c) (1). Sheppard, supra at 92.

Judgment affirmed in part and vacated in part, and case remanded.

Barnes, P. J., and Miller, J., concur.

       OCGA § 19-7-3 was amended effective May 1, 2012, after the date of the trial court’s order. Ga. L. 2012, p. 860, § 1. Because we have held that amendments to the grandparent visitation statute apply retroactively, we analyze the instant case under this current version of the law. Ryback v. Cobb County Dept. of Family & Children Svcs., 163 Ga. App. 165, 165 (293 SE2d 563) (1982) (“The provisions of this statute granting visitation rights to grandparents are retroactive”) (citation omitted); Houston v. Houston, 156 Ga. App. 47, 48 (274 SE2d 91) (1980) (giving retroactive application to OCGA § 19-7-3 and holding that no person has a vested right in the custody of a minor child, therefore “[a] reviewing court should apply the law as it exists at the time of its judgment rather than the law prevailing at the rendition of the judgment under review”) (citations and punctuation omitted).


author: Phipps, Presiding Judge.

text:
    A13A0080.
    RILES v. THE STATE.
    (743 SE2d 552)
   Phipps, Presiding Judge.

Kim Leroy Riles appeals his conviction for burglary. He contends that the evidence was insufficient and that the trial court erred in denying his motion for new trial because he received ineffective assistance of trial counsel. We affirm.

1. When an appellant challenges the sufficiency of the evidence to support a conviction, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” The defendant no longer enjoys a presumption of innocence, and this court neither weighs the evidence nor determines witness credibility.

Viewed in the light most favorable to the prosecution, the evidence at trial showed that on December 4, 2008, around 7:00 p.m., a woman arrived home to discover personal items strewn about the floor of her home. She looked through the home and discovered that many items were missing. She called her husband, who then called the police.

Around 7:30 p.m., an investigator with the sheriff’s office was told to report to the residence in connection with the report of a burglary. When the investigator arrived around 8:10 p.m., he spoke with the family and looked for evidence. The yard of the residence was enclosed by a fence; on the other side of the fence, some items taken from the residence were found on a roadway and in nearby woods. A neighbor testified that the police had summoned him to the scene after they discovered tracks leading from the burglarized home to his home.

On December 6, 2008, the daughter and the neighbor of the burglary victims observed a woman selling items that had been taken from the burglarized home. The neighbor confronted the woman; he told her that the items she had with her were not all of the items that had been taken from the residence, and he ordered her to tell him the location of the rest of the items. The woman opened the trunk of a vehicle; the neighbor replied that that was still not “all the stuff that was stole [n].” He demanded again that the woman tell him the location of the rest of the items. The woman led the neighbor and a sheriff’s deputy to a motel room, where they found Riles and more items taken from the burglarized home. Riles and the woman were arrested.

The woman testified at trial (on July 14,2009) that she and Riles were in a relationship and had been for two years; that for about four or five months they had lived together in the motel room; and that on December 6, 2008, she “had some stuff that [she] had got [ten] from [Riles]” that she was trying to sell. She affirmed that she had told the neighbor and a sheriff’s deputy that she had acquired the items from Riles, and that she had led the neighbor and deputy to the motel room where Riles and some of the items were found.

The woman further testified that on December 4, 2008, around 10:00 p.m., (which time was after the burglary had been reported) Riles had ordered her into his vehicle. According to the woman, she and Riles had “started out” toward the road on which the burglarized residence was located and she did not know where they were going, but after her protestations about visiting someone, Riles turned the vehicle around and they went back to their motel room. An investigating officer testified, however, that the woman had told him that Riles had driven her to the road on which the burglarized residence was located to look for items that he had dropped, not to visit anyone.

Riles did not testify at trial, nor did he present any witnesses to testify on his behalf. He nevertheless contends on appeal that he “presented a reasonable hypothesis of his innocence, which was consistent with the evidence, and that the State failed to exclude that hypothesis.” Riles’s hypothesis was based on the investigator’s testimony that when he interviewed Riles, Riles had told him that he had purchased the items from a man in a green truck who had been staying at the motel. Riles also points out the woman’s testimony that she had seen Riles purchase from “this same guy” a tool box that was in their motel room and that had not come from the burglarized residence. Thus, he argues, “the only evidence the State presented to connect [him] with the burglary was the fact that [he] was in the hotel room where some of the items belonging to the [victims] were found,” and “[t]he State presented no evidence explaining why the tool box was purchased, but the items belonging to the [victims] were stolen, even though everything was discovered in the same room, at the same time.”

Riles was indicted for committing the offense of burglary in that he did without authority, and with the intent to commit a theft therein, “enter the dwelling house of another.” “To warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt but shall exclude every other reasonable hypothesis save that of the guilt of the accused.”

[(Questions about the reasonableness of hypotheses are generally for the jury’s determination, and where the jury is authorized to find that the evidence, though circumstantial, was sufficient to exclude every reasonable hypothesis save that of the defendant’s guilt, this Court does not disturb such finding unless the verdict of guilty is insupportable as a matter of law.
[E]vidence of recent, unexplained possession of stolen goods may be sufficient to give rise to an inference that the defendant committed the burglary. Once it is shown that goods were stolen in a burglary, absence of or unsatisfactory explanation of the possession of the goods will support a conviction for burglary based upon recent possession of the stolen goods. Whether a defendant’s explanation of possession is satisfactory is a question for the jury.

“ ‘Recent possession’ in this context refers to the amount of time that has elapsed between the theft of the property and the defendant’s possession of the same.... That which constitutes recent possession presents a jury question.”

The verdict was not insupportable as a matter of law. The evidence showed that two days after the report of a burglary, Riles was found in a motel room that he shared with the woman who was attempting to sell goods stolen from the burglarized residence; that the woman obtained the goods from Riles; that stolen goods were found in the motel room; that stolen goods were found outside the fenced area of the property of the burglarized residence; and that after the burglary was reported, later that night, Riles went to the road on which the burglarized residence was located to retrieve items he claimed he had dropped. Therefore, the jury was authorized to find unsatisfactory Riles’s explanation of his possession of the stolen goods. “[A] guilty verdict reflects the jury’s dissatisfaction with defendant’s explanation.” The evidence was sufficient for a rational trier of fact to find Riles guilty beyond a reasonable doubt of burglary.

2. Riles contends that he received ineffective assistance of counsel.

Generally, the burden is on the defendant claiming ineffective assistance 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. The trial court’s determination that an accused has not been denied effective assistance of counsel will be affirmed on appeal unless that determination is clearly erroneous.

(a) Riles complains that his trial attorney rendered ineffective assistance by failing to investigate a potential alibi. He claims that he had always maintained that he had purchased the items from a man with a green truck, and that at the time of the burglary, he was on the motel phone with his father and later at a store. At the hearing on the motion for new trial, Riles testified that he had asked his trial attorney to obtain phone records from the motel and video surveillance footage from the store in order to prove his alibi, but that his attorney apparently failed to do so.

At the motion for new trial hearing, trial counsel testified that she had investigated Riles’s claim that he had purchased the stolen items from an individual who drove a truck, but with no success. As to the phone records, Riles’s attorney testified, “I don’t remember... a discussion about any phone recordings.” The attorney further testified that she and Riles had “never discussed getting any records or I don’t remember his saying anything about a time,” and she affirmed that if Riles had given her enough information, she would have followed up on it. The trial court was authorized to believe trial counsel’s testimony over that of Riles’s. When asked whether she and Riles had discussed a store video, Riles’s trial attorney testified: “Not that I remember. I don’t remember even hearing about a store.” At the motion for new trial hearing, Riles did not tender in evidence the phone records or store video. Under these circumstances, Riles has not shown that his attorney performed deficiently, or a reasonable probability that, but for counsel’s alleged unprofessional errors, the result of the proceeding would have been different.

(b) Riles complains that his trial attorney rendered ineffective assistance by failing to present character witnesses on his behalf at trial.

“When considering the prejudicial effect of counsel’s failure to call a witness, the court must consider whether the testimony proffered would have had an effect on the trial’s outcome.”

To be admissible at trial, character testimony must rely on the defendant’s general reputation in the community. . . . Without a proffer of evidence that would have been admissible and favorable to his case, [Riles] has failed to demonstrate a reasonable probability that the testimony of these witnesses would have affected the outcome at trial.

And here, “[Riles] did not proffer the testimony of any of these character witnesses. Where, as here, the defendant fails to proffer the testimony of an uncalled witness, he cannot prove that there is a reasonable probability that the trial would have ended differently.” Moreover, at the hearing on the motion for new trial, Riles’s trial attorney testified that she did not believe that she and Riles had discussed presenting character witnesses, and that in any event, had they discussed it, she “would not have presented character witnesses, due to Mr. Riles [’s] past,” which, she stated, included “a substantial history of prior burglaries.” The attorney opined that presenting character witnesses would not have been helpful to Riles and that Riles would have been harmed had evidence of his criminal history been introduced. Here, the attorney’s decision regarding “[w]hether to introduce character evidence and potentially open the door for impeachment [wa] s clearly one of tactics and strategy.”

Decided May 23, 2013.

Amanda S. Morris, for appellant.

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

(c) Riles complains that his trial attorney rendered ineffective assistance by failing to “object to the court’s incorrect jury charge.” In his appellate brief, however, Riles failed to indicate which part of the charge was incorrect; moreover, he failed to support this claim of error with any citation of authority or argument. Thus, Riles has waived this alleged error.

(d) Riles complains that his trial attorney rendered ineffective assistance by failing to “file necessary pre-trial motions.” In his appellate brief Riles failed to state which pre-trial motions his trial attorney should have filed but did not file; and he failed to support this claim of error with any citation of authority or argument. Thus, Riles has waived this alleged error.

Accordingly, we conclude that the trial court’s determination that Riles was not denied effective assistance of counsel was not clearly erroneous.

Judgment affirmed.

Ellington, C. J., and Branch, J., concur.

        Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979).

        See Rivera v. State, 293 Ga. App. 215, 216 (666 SE2d 739) (2008).

       OCGA § 24-4-6 (2012). Leslie v. State, 292 Ga. 368, 369 (2) (a), n. 3 (738 SE2d 42) (2013) (“Georgia adopted a new Evidence Code effective January 1, 2013.”). See Ga. L. 2011, pp. 99, 214, § 101 (providing that the new Evidence Code “shall apply to any motion made or hearing or trial commenced on or after [January 1, 2013].”). Riles’s trial was held in 2009.

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

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

        Rivera, supra at 217 (citations and punctuation omitted).

       See generally Collins v. State, 304 Ga. App. 11, 13 (1) (695 SE2d 343) (2010) (defendant unsuccessfully argued that evidence was insufficient to support his conviction for burglary where there was no direct evidence he entered a shed and no one saw him in or near shed, and no evidence contradicted his explanation that he found item taken from inside shed in a ditch; but the evidence showed that neighbors saw defendant hide item under bushes, and later, defendant tried to sell item to a neighbor; rightful owner of the item saw defendant breaking into his truck, and defendant ran from the owner and discarded item as he ran from the police); Bankston v. State, 159 Ga. App. 342, 343 (4) (283 SE2d 319) (1981) (whether the defendant’s explanation of the possession of a stolen item was satisfactory was a question for the jury; in view of the guilty verdict in the case, it was clear that the jury determined that appellant’s explanation was not adequate).

        Collins, supra at 13 (1).

       See generally Collins, supra; Rivera, supra (evidence was sufficient for a rational juror to find defendant guilty beyond a reasonable doubt of burglary where, among other things, defendant was found in possession of stolen property a day after it had been discovered missing); Blair v. State, 246 Ga. App. 533, 534 (541 SE2d 120) (2000) (evidence sufficient where accomplice’s inculpatory testimony was corroborated by defendant’s unexplained recent possession of stolen items and theft tools); Bankston, supra; Brown v. State, 133 Ga. App. 56, 58-59 (5) (209 SE2d 721) (1974) (where stolen goods were found in defendant’s possession two days after burglary, evidence, though circumstantial, was sufficient to connect defendant with the crime of burglary).

        Lovelace v. State, 262 Ga. App. 690, 694 (6) (586 SE2d 386) (2003) (footnote and emphasis omitted).

       See generally Pattillo v. State, 304 Ga. App. 344, 345 (696 SE2d 370) (2010); Copeland v. State, 276 Ga. App. 834, 838 (2) (a) (625 SE2d 100) (2005) (defendant’s claim of error that his trial counsel was ineffective because he failed to obtain a tape of a telephone conversation failed where at hearing on the motion for new trial, trial counsel testified that defendant’s testimony about a taped phone call at the new trial hearing was the first he had ever heard of a tape; the trial court was authorized to believe trial counsel’s testimony as opposed to the defendant’s).

       See generally McDaniel v. State, 279 Ga. 801, 803 (2) (d) (621 SE2d 424) (2005); Woods v. State, 275 Ga. 844, 849-850 (3) (d) (573 SE2d 394) (2002) (“[t]he failure of trial counsel to employ evidence cannot be deemed to be ‘prejudicial’ in the absence of a showing that such evidence would have been relevant and favorable to the defendant”; because appellant never introduced tape into evidence, it was not possible to determine what the tape showed and that it would have been relevant and favorable to the defendant; thus, “it is impossible for appellant to show there is a reasonable probability the results of the proceedings would have been different.”); Goodwin v. Cruz-Padillo, 265 Ga. 614, 615-616 (458 SE2d 623) (1995); Smith v. State, 294 Ga. App. 692, 703 (10) (a) (iii) (670 SE2d 191) (2008) (defendant failed to present allegedly exculpatory documentary evidence at the motion for new trial hearing, the purported documents were not part of the record, and so it was impossible for appellate court to determine if they actually would have helped his defense; thus, defendant failed to establish that his trial lawyer performed deficiently); Navarro v. State, 279 Ga. App. 311, 317 (4) (a) (630 SE2d 893) (2006) (defendant claimed that his trial attorney was ineffective for failing to obtain a surveillance video, which he suggested would have been exculpatory; but defendant did not tender the tape at the hearing on his motion for new trial, and thus, defendant failed to show that he was prejudiced by his attorney’s failure to view the surveillance tape or tender it in evidence); Spear v. State, 271 Ga. App. 845, 846-847 (2) (610 SE2d 642) (2005).

        Thomas v. State, 282 Ga. 894, 895 (2) (a) (655 SE2d 599) (2008), citing Goodwin, supra.

        Thomas, supra at 896 (2) (a) (citations and punctuation omitted).

        Collins v. State, 300 Ga. App. 657, 660 (3) (686 SE2d 305) (2009) (citation, punctuation and footnote omitted).

        Washington v. State, 276 Ga. 655, 659 (3) (c) (581 SE2d 518) (2003) (citation omitted); see Howard v. State, 310 Ga. App. 659, 664-665 (3) (a) (714 SE2d 255) (2011).

       See Court of Appeals Rule 25 (c) (2) (“Any enumeration of error which is not supported in the brief by citation of authority or argument may be deemed abandoned.”); Turner v. State, 277 Ga. App. 205, 207 (2) (626 SE2d 176) (2006).

       See Metoyer v. State, 282 Ga. App. 810, 815 (2) (b) (640 SE2d 345) (2006).

       See Court of Appeals Rule 25 (c) (2); Turner, supra.

       See Metoyer, supra.

       See Lovelace, supra.


text:
    A13A0472.
    JONES v. THE STATE.
    (743 SE2d 557)
   DOYLE, Presiding Judge.

Changa Jones was charged with murder, felony murder, and aggravated assault. A Henry County jury found him guilty of aggravated assault, but was unable to reach a verdict as to murder and felony murder. Jones appeals his aggravated assault conviction, challenging the sufficiency of the evidence and arguing that the trial court abused its discretion by admitting hearsay testimony regarding prior difficulties between the victim and Jones. We affirm, for the reasons that follow.

When reviewing the sufficiency of the evidence on appeal,

the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. Once a defendant has been found guilty of the crime charged, the factfinder’s role as weigher of the evidence is preserved through a legal conclusion that upon judicial review all of the evidence is to be considered in the light most favorable to the prosecution.

So viewed, the record shows that on September 1, 2005, Jones’s wife, Natasha Jones, called 911 from a subdivision park, crying and stating that she needed help because “he ... busted my window,” and she had glass “all over [her].” Natasha indicated that the incident occurred at home. An off-duty police officer stopped to help Natasha, and he told the 911 operator that there was “glass all over [Natasha].” Officer Pamela Pressly responded to the scene, she observed a landscaping brick on the windshield of Natasha’s vehicle, which had damage to the hood and the windshield. According to Officer Pressly, Natasha was “very scared” and “did not want to go back home.” Natasha gave a written statement, indicating therein that after Jones slapped her with his open hand during an altercation, Natasha ran to her vehicle and drove away, but Jones followed her and threw bricks at her vehicle as she drove down the street. Pressly escorted Natasha to her home, looking for Jones, but he was not there.

Natasha also called her sister, Rolanda Brown. When Brown arrived at the park, she observed that the windshield to Natasha’s vehicle “was smashed in,” and Natasha had “specks of glass on her, little speckle spots of blood, where her windshield was busted.” Natasha was frightened, and Brown took her home, retrieved Natasha’s son, and took them to a hotel so that Jones would not know where they were.

Jones called Brown later that night and asked her to talk to Natasha about dropping the charges, stating that he “wasn’t trying to kill her. He was just trying to stop her from leaving, and ... if he wanted to kill somebody, he [knew] how to do it.” Jones also advised Officer Pressly that he and Natasha “were working on their marriage [and] wanted to try to work things out,” and he requested that the charges be dropped; Natasha also attempted to drop the charges against Jones after his arrest.

The following month, on October 24, 2005, Natasha was killed in her home. Jones was indicted and charged with murder and felony murder. Following two trials, which resulted in hung juries, the State re-indicted Jones, charging him with felony murder, murder, and aggravated assault against Natasha. The jury was unable to reach a verdict as to the murder counts, but found Jones guilty of aggravated assault. This appeal followed.

1. The indictment alleged that Jones committed aggravated assault “with a concrete landscaping block, an object which when used offensively against another person is likely to result in serious bodily injury, by throwing said block toward a vehicle occupied by... Natasha. . . .” Jones challenges the sufficiency of the evidence, arguing that there was no “properly admitted evidence” that Natasha was in her vehicle when he threw the brick at it.

Natasha’s statement to the police that Jones threw the brick at her vehicle while she was driving down the street was admitted without objection. Jones argues, however, that notwithstanding his failure to object, the statement was hearsay, which was without probative value and cannot be considered when evaluating the sufficiency of the evidence. Pretermitting whether Natasha’s statement to the police officer was properly admitted under an exception to the hearsay rule, the evidence that the off-duty officer observed glass “all over” Natasha and that Natasha’s sister observed glass and speckles of blood on Natasha immediately after the incident support the jury’s conclusion that Jones threw the brick at Natasha’s vehicle while she was in it. Therefore, this enumeration of error fails.

2. Jones also contends that the trial court erred by admitting the testimony of Natasha’s other sister, Nicole Watson, that Natasha told her that “basically her marriage had come to an end” and that she was considering filing for divorce. This argument is without merit.

The trial court admitted Watson’s testimony under the necessity exception to the hearsay rule.

There are three basic requirements for non-testimonial hearsay evidence to be admissible under the necessity exception: (1) the declarant is unavailable; (2) the declarant’s statement is relevant to a material fact and is more probative as to that fact than other evidence that may be procured and offered; and (3) the statement exhibits particularized guarantees of trustworthiness.

Jones does not challenge the first two prongs, but argues that the trial court erred by admitting the statement because it did not exhibit particularized guarantees of trustworthiness. We disagree.

Watson testified that she moved into her sister’s subdivision so that they could be close to each other, and they confided in each other. According to Watson, she and Natasha discussed personal matters with each other “[a]ll the time,” and they sought guidance from one another. “A trial court does not abuse its discretion by finding guarantees of trustworthiness where the declarant made statements to a close family member, placed confidence in the witness, and turned to the witness for help with personal problems.” Accordingly, the trial court did not abuse its discretion by admitting Watson’s testimony concerning Natasha’s out-of-court statements.

In addition, Watson’s testimony regarding the state of Natasha’s marriage was cumulative of other evidence, including Natasha’s journal, in which she wrote that Jones “beat [her],” that he threatened to kill her, and that he did not want to “be with [her].” Thus, this enumeration is without merit.

Decided May 23, 2013.

August F. Siemon III, for appellant.

Tommy K. Floyd, District Attorney, Sandra G. Rivers, Alicia C. Gant, James L. Wright III, Assistant District Attorneys, for appellee.

Judgment affirmed.

McFadden and Boggs, JJ., concur.

       OCGA § 16-5-1 (a).

       OCGA § 16-5-1 (c).

       OCGA § 16-5-21 (a) (2).

       The jury could not reach a decision with regard to murder and felony murder, so the trial court entered a mistrial as to those counts.

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

       The medical examiner concluded that the cause of death was strangulation and that Natasha also sustained blunt force trauma and a puncture wound to her neck.

       We note that Jones does not argue that there was insufficient evidence that he threw a brick at Natasha’s vehicle.

       See, e.g., Feagin v. State, 317 Ga. App. 543, 548 (3) (731 SE2d 778) (2012) (“victim’s prior statement to the responding officer was inadmissible hearsay, which is wholly without probative value and cannot be considered in determining the sufficiency of the evidence, even if introduced without objection”).

       See Bell v. State, 284 Ga. 790, 791 (1) (671 SE2d 815) (2009) (“the State may use direct and circumstantial evidence to prove guilt, and an appellate court reviewing a trial court’s denial of a motion for directed verdict of acquittal applies the ‘sufficiency of the evidence test of Jackson v. Virginia’ ”) (citations omitted); Collier v. State, 157 Ga. App. 109, 110 (2) (276 SE2d 262) (1981).

        McNaughton v. State, 290 Ga. 894, 898-899 (3) (b) (725 SE2d 590) (2012).

       Id. at 898 (3) (b), citing Tuff v. State, 278 Ga. 91, 92-93 (2) (597 SE2d 328) (2004). See also Heidt v. State, 292 Ga. 343, 350 (6) (736 SE2d 384) (2013).

       See McNaughton, 290 Ga. at 899 (3) (b).


text:
    A13A0490.
    HATFIELD v. THE STATE.
    (743 SE2d 560)
   Ray, Judge.

After a jury trial, Wesley Randall Hatfield was convicted of rape (OCGA § 16-6-1) and reckless conduct (OCGA § 16-5-60). In an earlier appeal from that conviction before this Court, Hatfield challenged the trial court’s denial of his motion for new trial, claiming that his lawyer failed to perform an adequate investigation into whether Hatfield was suffering a delusional compulsion at the time of the rape, and that, as a result, he was deprived of the effective assistance of counsel. Finding that Hatfield’s counsel was deficient, this Court, in an unreported opinion, vacated Hatfield’s conviction and remanded the case to the trial court for consideration of whether Hatfield was prejudiced by his counsel’s deficient performance. Hatfield v. State, 316 Ga. App. XXVI (Case No. A12A0597, decided July 13, 2012) (unpublished). On remand, the trial court determined, after a hearing, that trial counsel’s deficient performance had not prejudiced Hatfield, and entered an order reinstating the original conviction and sentence. Hatfield appeals from that order.

Hatfield’s sole enumeration on appeal is that the trial court erred by concluding, upon remand, that he was not prejudiced by trial counsel’s failure to investigate adequately the possibility that Hatfield was suffering from a delusional compulsion at the time of his offense.

In order to succeed on his ineffective assistance claim, Hatfield bears the burden of showing that his trial counsel’s “deficient performance prejudiced him to the point that a reasonable probability exists that, but for counsel’s error, the outcome of the trial would have been different.” (Citation omitted.) Smith v. State, 292 Ga. 316, 319 (4) (737 SE2d 677) (2013). See Strickland v. Washington, 466 U. S. 668, 687 (III) (104 SCt 2052, 80 LE2d 674) (1984). This burden is a heavy one. See Kimmelman v. Morrison, 477 U. S. 365, 382 (II) (C) (106 SCt 2574, 91 LE2d 305) (1986).

In reviewing the trial court’s determination that a defendant did not receive effective assistance of counsel, we uphold the court’s factual findings unless they are clearly erroneous, and we review the court’s legal conclusions de novo. Suggs v. State, 272 Ga. 85, 88 (4) (526 SE2d 347) (2000).

So viewed, the record shows that on remand Hatfield filed a motion for funds for a post-conviction psychiatric evaluation, which the trial court granted. Hatfield then retained the services of Dr. Todd Antin, a board-certified forensic psychiatrist, to evaluate Hatfield’s criminal responsibility at the time of the offenses. After examining Hatfield and reviewing previous evaluations, medical reports, and police reports, Dr. Antin concluded that Hatfield currently was competent and that he did “not meet the legal determination of insanity as defined by Georgia law.” Antin stated in his report that, at the time of the alleged crimes, Hatfield had “the mental capacity to distinguish between right and wrong in relation to such act and also lacked a delusional compulsion as to such act which could have overmastered his will to resist committing the crime.” Dr. Antin stressed that Hatfield had always acknowledged that he had engaged in sexual intercourse with the victim, but argued that it was consensual, and that “he knew at that time it was wrong for him to engage in sex if she did not want to be a participant and was clear that he was not driven to do this act by any distortion of his thinking or from reality.”

Hatfield points to certain statements by Dr. Antin as evidence that had he been evaluated closer in time to the offenses that Dr. Antin might have had a different opinion as to whether he was suffering from delusional compulsion when he committed the offense. Those statements are that Hatfield “appeared somewhat overmedicated and acknowledged that he was taking Depakote, Benadryl, and injections of Haldol decanoate,” that Hatfield “continues to manifest serious and significant psychiatric problems that have been present for most of his lifetime . . . [and he] requires a significant amount of psychiatric medication to maintain appropriate social skills, behavior and boundaries.”

Hatfield argues that, based on the above statements,

[gjiven the severity and duration of [Hatfield’s] mental health diagnoses and symptoms, coupled with the level and number of medications required to “stabilize” his functioning, there is a possibility that the failure to assess [Hatfield’s] criminal responsibility at a time closer to the alleged offenses did, in fact, prejudice his defense.

(Emphasis omitted.) However, these statements are speculative at best as to whether Dr. Antin would have reached a different result if he had evaluated Hatfield closer in time to the offense.

Hatfield, as a defendant claiming the insanity defense, bore the burden of proving the defense by a preponderance of the evidence. (Citation omitted.) Durrence, supra at 215 (1) (a). This he has not done.

Georgia law is clear that there is a distinction between insanity and mental illness. See id. at 216 (1) (a); Salter v. State, 257 Ga. 88, 89 (1) (356 SE2d 196) (1987) (mental illness does not meet the test of legal insanity); Nelms v. State, 255 Ga. 473, 475 (2) (340 SE2d 1) (1986) (showing that defendant suffers from schizophrenia and other psychosis does not establish legal insanity); Brown v. State, 250 Ga. 66, 71 (2) (b) (295 SE2d 727) (1982) (admission to mental institution will not give rise to presumption of insanity absent adjudication of insanity). In the present case, Hatfield has presented no evidence that he was legally insane or suffering from delusional compulsion at the time of his offense or at any other time. Dr. Antin, as the only witness testifying to his mental ability, noted that although Hatfield

was significantly psychiatrically impaired at the time of the alleged offenses, he is clear in his statements to me, and corroborated by the medical record, that he knew right from wrong and was not suffering from any delusional compulsion that would have forced him to commit an act that he otherwise would not have engaged in.

Hatfield presented no other testimony regarding his mental capacity.

Accordingly, Hatfield has failed to show that his trial counsel’s deficient performance in failing to investigate whether he was suffering from delusional compulsion at the time of his offense had a reasonable probability of altering the outcome of his trial. “The failure of trial counsel to employ evidence cannot be deemed to be ‘prejudicial’ in the absence of a showing that such evidence would have been relevant and favorable to the defendant.” (Citation and punctuation omitted.) Goodwin v. Cruz-Padillo, 265 Ga. 614, 615 (458 SE2d 623) (1995).

Decided May 23, 2013.

Maryann F. Blend, for appellant.

Daniel J. Porter, District Attorney, Teresa B. Klein, Assistant District Attorney, for appellee.

Judgment affirmed.

Barnes, P. J., and Miller, J., concur.

       Under OCGA § 16-3-3,
      [a] person shall notbe found guilty of a crime, when, at the time of the act, omission, or negligence constituting the crime, the person, because of mental disease, injury, or congenital deficiency, acted as he did because of a delusional compulsion as to such act which overmastered his will to resist committing the crime.
      Accord Durrence v. State, 287 Ga. 213, 215 (1) (a) (695 SE2d 227) (2010).


author: Miller, Judge.

text:
    A13A0504.
    ADKINSON v. THE STATE.
    (743 SE2d 563)
   Miller, Judge.

After Andrew Jackson Adkinson was charged with possession of cocaine (OCGA § 16-13-30 (a)), possession of marijuana less than an ounce (OCGA § 16-13-2 (b)), giving false information to a police officer (OCGA § 16-10-25), and driving with a suspended license (OCGA § 40-5-121 (a)), he moved to suppress evidence obtained as a result of a police traffic stop of his vehicle. The trial court denied Adkinson’s motion, and this Court granted Adkinson’s application for interlocutory appeal. On appeal, Adkinson contends that the officer lacked a reasonable articulable suspicion to conduct the traffic stop. We reverse because the officer did not have a particularized and objective basis to suspect Adkinson of wrongdoing.

In reviewing the grant or denial of a motion to suppress, we construe the evidence in a light most favorable to upholding the trial court’s findings and judgment. When the trial court’s findings are based upon conflicting evidence, we will not disturb the lower court’s ruling if there is any evidence to support its findings, and we accept that court’s credibility assessments unless clearly erroneous. The trial court’s application of law to undisputed facts, however, is subject to de novo review.

Sommese v. State, 299 Ga. App. 664, 665 (683 SE2d 642) (2009).

So viewed, the evidence shows that on May 11, 2012, a Fulton County police officer was conducting a business check at a motel located off Fulton Industrial Boulevard. The motel was located in an area known for heavy drug activity. While the officer was at the motel, the officer observed Adkinson park his vehicle in the motel parking lot, get out, and look around as he walked to the motel’s stairwell. After Adkinson climbed the stairs, the officer lost sight of Adkinson. About two to three minutes later, the officer saw Adkinson descending the stairwell and return to his vehicle. As Adkinson drove away, the officer stopped Adkinson’s vehicle. According to the officer, he stopped Adkinson because the motel was located in a high drug area and Adkinson’s actions — visiting the motel for a few minutes — were consistent with someone buying drugs. The officer admitted that he did not see Adkinson purchase any drugs, enter a room where a transaction could have occurred, or commit any traffic violation.

During the stop, the officer asked for Adkinson’s identification. Adkinson stated that he did not have any identification and gave the name of “Derek” Adkinson. The officer learned that Derek Adkinson’s license had been suspended, and asked Adkinson to step out of the vehicle. As Adkinson complied, the officer observed a small bag of crack cocaine on the driver’s seat. During a subsequent search, the officer found that Adkinson did have his license, his real name was Andrew Adkinson, his license had been suspended, and there was a warrant for his arrest. During a subsequent search of the vehicle, the officers also discovered a small amount of marijuana.

After Adkinson was charged with drug and traffic offenses, he filed a motion to suppress. Following a hearing, the trial court denied Adkinson’s motion, concluding that the officer was justified in stopping Adkinson’s vehicle because the officer had a reasonable articulable suspicion that Adkinson was engaged in criminal activity.

On appeal, Adkinson contends that the trial court erred in denying his motion to suppress because the officer did not have a reasonable articulable suspicion for conducting the traffic stop. We agree.

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

(Punctuation and footnote omitted.) Blakely v. State, 316 Ga. App. 213, 215 (729 SE2d 434) (2012).

Here, the officer did not have specific articulable facts sufficient to give rise to a reasonable suspicion of criminal activity. Although the officer believed that Adkinson was involved in a criminal activity because he briefly visited a motel located in a high drug area, and his brief visit was consistent with drug activity,

a person’s mere presence in a high crime area does not give rise to reasonable suspicion of criminal activity, even if police observe conduct which they believe consistent with a general pattern of such activity.

(Citation and punctuation omitted.) State v. Hopper, 293 Ga. App. 220, 223 (666 SE2d 735) (2008) (briefly visiting a suspected drug house, by itself, was insufficient to establish a particularized suspicion of wrongdoing); see also Hughes v. State, 269 Ga. 258, 261 (1) (497 SE2d 790) (1998) (white male driving slowly around high crime area at night, picking up a black male, and returning the black male to his street-side location was insufficient to support stop). The officer testified that Adkinson was suspicious because he was looking around while he walked towards the motel stairwell and was unfazed when he noticed the officer’s patrol car. However, the officer did not observe Adkinson attempt to avoid police detection or act in any erratic manner. Additionally, the officer did not see Adkinson engage in any drug transaction at the motel, talk to anyone who was a known drug dealer, or commit a traffic violation as he left the motel. Furthermore, there is no evidence that Adkinson was known to police officers, or that the officers were looking for someone who matched Adkinson’s description. The officer inferred that because Adkinson fit a “pattern” of behavior by briefly stopping at a motel in a high drug area, Adkinson likely bought drugs inside. In other words, the stop was not based upon a particularized suspicion; rather, it was based upon Adkinson’s conformity to a general pattern of behavior. See Hopper, supra, 293 Ga. App. at 222. Although Adkinson’s behavior might have justified closer observation, the officer lacked sufficient information to believe that Adkinson, in particular, was engaged in illegal activity so as to provide a reasonable, articulable suspicion to justify the stop. See Hopper, supra, 293 Ga. App. at 222; Duke v. State, 247 Ga. App. 512, 514 (544 SE2d 201) (2001) (no objective basis for suspecting defendant of criminal activity where the defendant parked his van in an apartment complex parking lot, the officer lost sight of the defendant for about two minutes when the defendant went down the stairs, and the defendant left in his van). Consequently, the trial court erred in denying Adkinson’s motion to suppress.

Decided May 23, 2013.

Debbie-Ann R. Harris, for appellant.

Paul L. Howard, Jr., District Attorney, Peggy R. Katz, Assistant District Attorney, for appellee.

Judgment reversed.

Barnes, P. J., and Ray, J., concur.

        Terry v. Ohio, 392 U. S. 1 (88 SCt 1868, 20 LE2d 889) (1968).


text:
    A13A0762.
    In the Interest of J. T., a child.
    (743 SE2d 571)
   Ray, Judge.

The mother of J. T, a minor female child, appeals from the Juvenile Court of Walton County’s order granting the Walton County Department of Family and Children Services’ (“DFCS”) motion for the cessation of the State’s efforts to reunify her with J. T. Finding no error, we affirm.

On a mother’s appeal from an order approving plans for nonreunification, we construe the evidence in favor of the judgment and determine whether a rational trier of fact could have found clear and convincing evidence that reunification services should not be provided. See In the Interest of J. P., 253 Ga. App. 732, 735 (560 SE2d 318) (2002). “[W]e neither weigh the evidence nor determine the credibility of witnesses; we defer to the juvenile court’s factfinding and affirm unless the appellate standard is not met.” (Citation and punctuation omitted.) Id.

So construed, the evidence shows that appellant has had a long history of substance abuse involving alcohol and prescription medication. Appellant has had an alcohol problem since she was 17 years old and had at least three convictions for driving under the influence (“DUI”) in her lifetime. Over the last ten years, appellant’s children, including J. T., have been removed from her custody on two occasions because of her inability to care for her children due to her substance abuse.

Appellant lost custody of J. T., then three years old, for the first time in 2002 when she was incarcerated for a DUI conviction. The juvenile court awarded temporary custody of her children to appellant’s parents during her incarceration. When appellant was released on probation, the juvenile court returned custody of the children to her by an order noting that appellant had entered into a voluntary treatment program and was residing with her mother.

In March of 2010, appellant again lost custody of J. T. after she was charged with assault and cruelty to children because of an incident involving her 16-year-old niece; she was arrested for driving under the influence during the same week. The juvenile court then entered an order for shelter care of the children on March 31, 2010, finding that appellant had “violent tendencies and . . . substance abuse issues,” and that she would not agree to allow the children to enter the care of a safety resource. On April 12, 2010, the juvenile court, after a hearing, entered an order finding probable cause that J. T. and her stepsibling were deprived based upon allegations of violence and substance abuse against appellant, and it transferred temporary custody of them to DFCS pending a hearing. On February 18, 2011, J. T. returned to appellant’s custody after the satisfactory completion of DFCS’ reunification case plan.

On July 9, 2012, the juvenile court entered another order for the shelter care of J. T. The juvenile court’s order noted that DFCS became involved in the case again because J. T. had run away from home.

In August 2012, DFCS filed a motion for nonreunification. At the hearing on these motions, J. T. testified that she had run away from home after an argument with her mother. When J. T. was located, she informed an officer with the Walton County Sheriff’s Department that she did not want to return to her mother’s home because her mother had been abusing alcohol and prescription medication, that her mother was verbally abusive and used profanity, and that J. T. did not feel safe around her mother.

Deputy Bill Prater with the Walton County Sheriff’s Office testified that about a month after J. T. ran away, he was called to appellant’s home after an altercation between appellant and J. T.’s stepbrother, J. H. Deputy Prater noticed that appellant was obviously intoxicated and smelled of alcohol. Appellant became agitated and violent during the police investigation, and she was arrested for disorderly conduct.

Eva Smith testified that she was the coordinator for a Mothers Against Drunk Driving (‘MADD”) course that appellant previously had been court-ordered to attend as part of her probation. Smith testified that appellant had phoned her several times to ask her to take custody of J. T. and had offered to give her Xanax in exchange for serving as a safety resource for J. T. Smith testified that appellant’s speech during these conversations was slurred and that she had been asked not to return to the class.

Henri Reid, a licensed professional counselor, testified at the hearing as an expert witness on behalf of DFCS. Reid performed the Comprehensive Child and Family Assessment (“CCFA”) on the family, which is designed to identify the strengths and weaknesses of the family and determine the future stability of the family. Reid testified that she interviewed both J. T. and appellant about the reasons why J. T. had been removed from the home. Reid stated that J. T. told her that she had run away from home because her mother had relapsed, and that her mother would become verbally abusive when using alcohol and pills. J. T. further told Reid that she did not “have any confidence that her mom would ever live a substance-free life.” J. T. also noted that because of her mother’s substance abuse, her grandparents assumed the traditional parental tasks of ensuring that she had adequate clothing, food, and academic support. Reid also testified that appellant had admitted that she had relapsed as to alcohol, but refused to assume any responsibility for why her children had been taken away. Reid concluded that appellant’s home was not a safe place for J. T.

Other family members testified that appellant would drink and take pills at family events, and that they had observed beer cans and pill bottles in appellant’s home. Appellant testified at the hearing that she had completed two alcohol treatment programs since 2002 and has been instructed by her doctor not to consume alcohol because of liver problems, but that she still continues to use alcohol.

Based upon the evidence presented at the hearing, the juvenile court granted DFCS’ motion for nonreunification. In its order, the juvenile court noted that appellant’s “long history of substance abuse involving alcohol and prescription medication . . . had the effect of rendering [appellant] incapable of providing adequately for the physical, mental, emotional, or moral condition of her child.” The juvenile court noted that the evidence indicated that “because of the [appellant’s] substance abuse, the deprivation will likely continue, and harm will come to the child if the deprivation continues.”

“In order to approve [DFCS’s] recommendation that a reunification plan is not appropriate, a juvenile court must determine by clear and convincing evidence that reasonable efforts to reunify a child with his or her family will be detrimental to the child.” (Citation and footnote omitted.) In the Interest of R. N. R., 257 Ga. App. 93 (1) (570 SE2d 388) (2002). OCGA § 15-11-58 provides that there shall be a presumption that reunification services should not be provided if the juvenile court finds the existence of any of the four factors outlined in OCGA § 15-11-58 (h) (l)-(4) by clear and convincing evidence. The trial court articulated that it was granting DFCS’ motion for nonreunification under subsection (3) of OCGA § 15-11-58 (h), which states that there is a presumption that reunification services should not be provided if “[a] ny of the grounds for terminating parental rights exist, as set forth in subsection ^o) of Code Section 15-11-94.” OCGA § 15-11-94 (b) (4) provides that the juvenile court may terminate parental rights if

Decided May 23, 2013.

Charles E. Day, for appellant.

[t]he court determines parental misconduct or inability by finding that: (i) the child is a deprived child...; (ii) [t]he lack of proper parental care or control by the parent in question is the cause of the child’s status as deprived; (iii) [s]uch cause of deprivation is likely to continue . . . ; and (iv) [t]he continued deprivation will cause or is likely to cause serious physical, mental, emotional, or moral harm to the child.

Applying the appropriate standard of review, we find that clear and convincing evidence supports the juvenile court’s conclusion that J. T. was deprived because of her mother’s substance abuse, that such deprivation was likely to continue and cause harm to J. T., raising a presumption that reunification services should not be provided. The mother has pointed to no evidence rebutting that presumption. Accordingly, the juvenile court did not err in terminating the reunification services and approving the nonreunification plan. See In the Interest of J. P., supra; In the Interest of D. L. W., 264 Ga. App. 168, 170 (2) (590 SE2d 183) (2003).

Judgment affirmed.

Barnes, P. J., and Miller, J., concur.

Samuel S. Olens, Attorney General, Shalen S. Nelson, Senior Assistant Attorney General, Calandra A. Harps, Assistant Attorney General, Prior, Daniel & Wiltshire, Lee R. Moss, for appellee.

       The existence of any one of these criteria “is sufficient to support a presumption that further reunification efforts should not be provided.” (Citation omitted.) In the Interest of U. B., 246 Ga. App. 328, 331 (2) (540 SE2d 278) (2000).

       Compare In the Interest of M. H., 251 Ga. App. 528, 530 (554 SE2d 616) (2001) (presumption rebutted where psychologist hired by DFCS to evaluate the mother testified that, in his opinion, it was still possible to reunify mother and child).