author: ANDREWS, Presiding Judge.

text:
    A12A2259.
    NATIONAL HILLS EXCHANGE, LLC et al. v. THOMPSON et al.
    (736 SE2d 480)
   ANDREWS, Presiding Judge.

Donald Thompson and Windsor Jewelers, LLC (“Windsor”), filed a petition for a restraining order against National Hills, LLC, then the owner of a shopping center opposite the Augusta National Golf Club. Windsor sought to enjoin National Hills’ closure of the back entrance of the shopping center contrary to a 2004 easement which it retained upon selling its interest in the shopping center but continuing business operations upon an out-parcel thereof. Following a hearing, the trial court ordered that the current owner of the shopping center and its parent company, NHEP, LLC, and 2701 Partners, LLC, respectively, be joined in the case as defendants. Further, the trial court granted Windsor a temporary restraining order not to expire in 30 days which required that the back entrance to the shopping center be opened instanter and directed that no appeal should act as a supersedeas.

National Hills, LLC, NHEP, LLC, and 2701 Partners, LLC (“National Hills”), filed an application for discretionary appeal, which application this Court granted pursuant to OCGA § 5-6-35 (j), finding that the trial court’s order extending a temporary restraining order beyond 30 days, in effect, granted a directly appealable preliminary injunction. OCGA § 9-11-65 (b) (a temporary restraining order “shall expire by its terms within such time after entry, not to exceed 30 days, as the court fixes ...”) (emphasis supplied); see also Matrix Financial Svcs. v. Dean, 288 Ga. App. 666, n. 1 (655 SE2d 290) (2007) (trial court order indefinitely extending a temporary restraining order “is the equivalent of a judgment granting an interlocutory injunction and is directly appealable”). National Hills appeals, contending that the trial court erred in construing the easement at issue beyond its scope “in violation of established principles of Georgia law.” Finding that the plain meaning of the 2004 easement is clear and unambiguous, we affirm.

“The construction, interpretation and legal effect of a contract such as an easement is an issue of law, which is subject to de novo review.” (Citations and punctuation omitted.) Parris Properties v. Nichols, 305 Ga. App. 734, 735 (1) (700 SE2d 848) (2010). “The normal rules of contract construction apply, and absent ambiguity that cannot be resolved by applying the rules of contract construction, the contract remains a question of law.” (Citation and punctuation omitted.) Huckaby v. Cheatham, 272 Ga. App. 746, 749-750 (1) (612 SE2d 810) (2005).

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.

(Punctuation and footnote omitted.) Longstreet v. Decker, 312 Ga. App. 1, 3 (1) (717 SE2d 513) (2011). If the plain language is ambiguous, however, the contract is interpreted in accordance with the rules set forth in OCGA § 13-2-2 to resolve the ambiguity. McGuire Holdings v. TSQ Partners, 290 Ga. App. 595, 602 (2) (b) (660 SE2d 397) (2008). And “[i]f after doing so the ambiguity still remains, the jury or other factfinder must resolve the ambiguity.” (Footnote omitted.) Id.

The 2004 easement at issue provided the following: “Ingress/egress to the shopping center traffic light through all existing access points will be guaranteed for the employees and customers of 2635 Washington Rd.[, now Windsor].”

Relying heavily on the plat attached to the 2004 easement, National Hills argues that the easement retained by Windsor provided no more than a route to and from the store to the traffic light for the benefit of its employees and customers and that the trial court’s expansion of the easement to include access to its store from the back gate of the shopping center was contrary to Georgia law. We disagree.

Decided January 9, 2013

Reconsideration denied February 19, 2013

Hull Barrett, David E. Hudson, for appellants.

Initially, we point out that the plat attached to and recorded with the 2004 easement was not the plat of the shopping center on which Windsor retained its easement. Such plat showed on its face only an ingress/egress and parking easement benefitting Windsor. Rather, the record shows that Windsor retained the easement in issue on the basis of a plat of the shopping center as a whole, admitted in evidence below without objection, and showing seven access points, among them the blocked north gate access point and the one at the traffic light on the southern side of the shopping center. The record also shows that upon selling its interest in the shopping center for substantial consideration, Windsor’s intent was to ensure ready access by back roads to the shopping center for its employees and approximately 500 customers living in a residential subdivision beyond the blocked north gate — this to avoid heavy traffic on the road on which the traffic light was located. Clearly, the plain language of the 2004 easement effectuated this purpose insofar as it ensured ingress/egress for its employers and customers “through” all shopping center access points “to the traffic light” on the busy roadway.

“[W]hen addressing the express grant of easements of ingress and egress, Georgia case law provides, where there is no indication to the contrary, that ‘reasonable enjoyment of the easement’ means ‘full enjoyment’ of the ingress and egress easement.” (Citations, punctuation and emphasis omitted.) Huckaby, supra, 272 Ga. App. at 750 (1). There is no showing of record as to why Windsor is not entitled to full enjoyment of the 2004 easement from the back road north side of the shopping center to the traffic light on the busy thoroughfare to its south.

The trial court properly entered its order directing that the north entrance to the shopping center be opened instanter.

Judgment affirmed.

Doyle, P. J., and Boggs, J., concur.

Nimmons & Malchow, Kenneth M. Nimmons, for appellees.

       The trial court ordered that the additional defendants be joined in the case upon finding that a manager member of2701 Partners, LLC, had participated in the decision to close the gate at issue when serving as a manager member of the former National Hills, LLC.

       “Through” is a preposition meaning “from one end... to the other ....” Webster’s Third New International Dictionary (1981).


source: Caselaw Access Project

author: MCFADDEN, Judge.

license: Public Domain

text:
    A12A1068.
    AMICA MUTUAL INSURANCE COMPANY v. GWINNETT COUNTY POLICE DEPARTMENT et al.
    (738 SE2d 622)
   MCFADDEN, Judge.

In January 2008, a standoff occurred between officers of the Gwinnett County Police Department and an aggravated assault suspect whom they were trying to arrest pursuant to a warrant. The standoff damaged the house in which the suspect was living. That house belonged to Lynn Christopher, who had homeowner’s insurance with Arnica Mutual Insurance Company. After reimbursing Christopher, Arnica brought a subrogation action against the police department and Gwinnett County, asserting a claim of inverse condemnation. The defendants moved to dismiss under OCGA § 9-11-12 (b) (6), and the trial court granted their motion. Arnica does not contest the dismissal of its action against the police department, but it appeals from the dismissal of its action against the County. Because we find that, as a matter of law, the County was entitled to sovereign immunity against Arnica’s claim, we affirm.

Amotion to dismiss pursuant to OCGA § 9-11-12 (b) (6) will not be sustained unless (1) the allegations of the complaint disclose with certainty that the claimant would not be entitled to relief under any state of provable facts asserted in support thereof; and (2) the movant establishes that the claimant could not possibly introduce evidence within the framework of the complaint sufficient to warrant a grant of the relief sought.

(Citation omitted.) State of Ga. v. Singh, 291 Ga. 525, 528-529 (3) (731 SE2d 649) (2012). Pertinently, Arnica alleged in its complaint that the actions of the law enforcement officers during the standoff caused significant damage to Christopher’s house, that the County inflicted this damage “for the public purpose of exercising its police power over [the aggravated assault suspect],” that this amounted to a taking by the County for which it was required to pay compensation under the Georgia Constitution’s eminent domain provision, Ga. Const, of 1983, Art. I, Sec. Ill, Par. I, and that this provision waived the County’s sovereign immunity. See generally Ga. Const, of 1983, Art. I, Sec. II, Par. IX (e) (extending sovereign immunity to the state and all of its departments and agencies, except as specifically provided in this paragraph, and providing that this sovereign immunity can be waived only by an act of the General Assembly that specifically provides for such waiver); Rutherford v. DeKalb County, 287 Ga. App. 366, 367 (1) (651 SE2d 771) (2007) (sovereign immunity set forth in Ga. Const, of 1983, Art. I, Sec. II, Par. IX (e) extends to counties).

The eminent domain provision of the Georgia Constitution states that “private property shall not be taken or damaged for public purposes without just and adequate compensation being first paid.” Ga. Const. of 1983, Art. I, Sec. Ill, Par. I (a). It is true that this provision waives sovereign immunity and that, consequently, a county may be liable for a claim of inverse condemnation if its actions constitute a taking for public purposes under the provision. See Rabun County v. Mountain Creek Estates, 280 Ga. 855, 856 (1) (632 SE2d 140) (2006); Rutherford, 287 Ga. App. at 369 (2). But the Supreme Court of Georgia has held that the constitutional provision “prohibiting the taking of private property for a public purpose without compensation ha[s] no relevance to the exercise of the police power by the state or its political subdivisions.” (Citation omitted.) Lewis v. DeKalb County, 251 Ga. 100, 103 (2) (303 SE2d 112) (1983) (interpreting similar language in prior version of constitution). This Court also has recognized a distinction between a state’s ability to exercise its police power and its ability to exercise the power of eminent domain addressed in the Georgia Constitution:

The power of eminent domain is that sovereign power to take property for a public use or purpose, and this cannot even be done without just and adequate compensation. On the other hand, the police power is that power by which the Government may destroy or regulate the use of property in order to promote the health, morals and safety of the community, and the police power may be exercised without making compensation for the impairment of the use of property or any decrease in the value of property.

(Citation and punctuation omitted.) McCoy v. Sanders, 113 Ga. App. 565, 569-570 (148 SE2d 902) (1966).

The allegations in Arnica’s complaint — that the house was damaged by the actions of law enforcement officers during their attempt to arrest the aggravated assault suspect and the ensuing standoff with the suspect — disclose that Christopher’s house was damaged pursuant to an exercise of police power. See generally Pope v. City of Atlanta, 242 Ga. 331, 333 (249 SE2d 16) (1978) (describing state’s “inherent police power”). Arnica acknowledges as much in its complaint. As a matter of law, the County is entitled to sovereign immunity against a claim based on damage caused by an exercise of police power. See Bray v. Houston County, 180 Ga. App. 166, 168 (348 SE2d 709) (1986) (“The safeguarding of society by the prosecution of crimes against it is a sovereign attribute inherent in all governments, and for mistakes in exercising this sovereign right there can be no liability against the government without its consent.”) (citations and punctuation omitted). Because the exercise of police power is distinct from the exercise of the power of eminent domain and does not fall within the waiver of sovereign immunity set forth in the Georgia Constitution’s eminent domain provision, there is no evidence that Arnica could introduce within the framework of its complaint that would allow it to avoid sovereign immunity and obtain relief from the County. Consequently, the trial court did not err in dismissing Arnica’s claim against the County. See Common Cause/Ga. v. City of Atlanta, 279 Ga. 480, 483 (614 SE2d 761) (2005).

Decided February 19, 2013.

Groth & Makarenko, Paul L. Groth, Laura D. Johnson, for appellant.

Tuwanda R. Williams, Michael V. Stephens II, for appellee.

Judgment affirmed.

Barnes, P. J., and McMillian, J., concur.


author: Branch, Judge.

text:
    A12A1959.
    REID v. THE STATE.
    (738 SE2d 624)
   Branch, Judge.

On appeal from his conviction for child molestation and sexual battery, Daniel Reid argues that the evidence was insufficient and that the trial court erred when it responded to a jury question without informing counsel. We find no reversible error and affirm.

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

So viewed, the record shows that at various times in 2004-2005, when the victim was ten or eleven years old and living with her family at two different houses in Floyd County, Reid sometimes spent the night with the victim and her family. The victim testified that on the first night that she shared an air mattress with Reid in the living room of one house, he pulled her pants down, reached into her underwear, fondled her genitals, and touched them with his penis. At the other house, Reid sometimes entered the room the victim shared with her sister, climbed into the victim’s bed, and fondled and touched her in the same way. The victim testified that Reid molested her “about five” times. Weeks after the last of these incidents, the victim told her mother and her school counselor about them. The victim recalled the incidents again during an interview with the Department of Family and Children Services.

Reid was charged with four counts of child molestation and two counts of sexual battery. The State’s witnesses at trial included the victim’s mother and her school counselor, both of whom testified as to the victim’s outcry. During the course of its deliberations, the jury sent out a written question wanting to know Reid’s response to the officer who took him into custody. The trial court responded in writing: <rYou must recall the evidence as a group. We cannot answer fact questions nor reopen evidence.” The record does not show that the trial court informed either Reid or the State of either the jury’s communication or the court’s written response. The jury then found Reid guilty of two of the child molestation counts and both sexual battery counts. He was convicted and sentenced to twenty years with five to serve. After Reid’s motion for out-of-time appeal was granted, his motion for new trial was denied.

1. Reid argues that the evidence was insufficient because the victim’s testimony was not corroborated. But the testimony of a single witness is generally sufficient to prove a fact, including child molestation. See former OCGA § 24-4-8 (2012); Cantrell v. State, 231 Ga. App. 629, 630 (500 SE2d 386) (1998) (Georgia law does not require corroboration of a child molestation victim’s testimony), citing Scales v. State, 171 Ga. App. 924-925 (2) (321 SE2d 764) (1984). In any event, moreover, the victim’s mother and the school counselor corroborated her account of Reid’s attack. Thus the evidence outlined above, including the victim’s testimony, was indeed sufficient to sustain the jury’s verdict. OCGA §§ 16-6-4 (a) (1) (defining child molestation as committing “any immoral or indecent act to ... or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or the person”); 16-6-22.1 (b) (defining sexual battery as “mak[ing] physical contact with the intimate parts of the body of another person without the consent of that person”); Jackson, supra.

2. Reid argues that the trial court erred when it failed to notify him of the jury’s request to rehear testimony concerning Reid’s response to the arresting officer and thus deprived him of the opportunity to provide input on the court’s response to that request.

The Supreme Court of Georgia has held that a trial court commits error when it communicates with a jury in the absence of the defendant or his counsel because “a defendant on trial must be present when the court takes any action materially affecting his case.” (Citations omitted.) Burtts v. State, 269 Ga. 402, 403 (3) (499 SE2d 326) (1998). As the Court held:

There should be no communication which would tend in any manner to prejudice the accused (for instance, to hasten a verdict against him, or to induce jurors who might be for him to yield their convictions); and unless the character of the communication clearly shows that it could not have been prejudicial to the accused, the presumption of law would be that it was prejudicial, and the accused would be entitled to another trial.

(Citation omitted.) Id. See also Lowery v. State, 282 Ga. 68, 75 (4) (b) (ii) (646 SE2d 67) (2007) (trial court’s failure to inform counsel of the contents of a jury’s note and to seek input on the court’s response violated defendant’s right to counsel).

As our Supreme Court held in Burtts, “[i]t is clear that the trial court erred in communicating with the jury outside the presence of appellant and his counsel.” 269 Ga. at 403 (3). It is also true, however, that “it is within the discretion of the [trial] court to decide whether to allow a jury to rehear evidence,” id., and there is nothing in this record to suggest that the trial court abused its discretion in denying this jury’s request to rehear testimony. It follows that even if the trial court erred when it communicated with the jury outside the presence of Reid and his counsel, the error was harmless because Reid has not shown that the trial court’s response hastened the verdict or caused a juror to yield his or her convictions. Burtts, supra at 404 (3); Brown v. State, 237 Ga. App. 231, 234-235 (3) (517 SE2d 529) (1999) (following Burtts)] see also Lowery, supra at 75-76 (4) (b) (ii) (given that trial court’s decision to give Allen charge was within its discretion, defendant had not shown harm arising from the trial court’s failure to notify him of the jury’s communication about its deadlocked status).

Decided February 19, 2013.

Steven A. Miller, for appellant.

Leigh E. Patterson, District Attorney, Suhirjahaan S. Morehead, Assistant District Attorney, for appellee.

Judgment affirmed.

Miller, P. J., and Ray, J., concur.


author: DOYLE, Presiding Judge.

text:
    A12A2143, A13A0039.
    ODUOK v. WEDEAN PROPERTIES, INC. et al. (two cases).
    (738 SE2d 626)
   DOYLE, Presiding Judge.

Following his eviction after a dispossessory action, Inyang Peter Oduok, acting pro se, sued Wedean Properties, Inc., Dave Wedean, Kenton Wedean, Barbara Finney, Fern Finney, Alpha Evictions and Collections, Todd Scott, Wells Fargo Bank, and three John Doe defendants. The trial court granted summary judgment to Wedean Properties, Inc. and Dave and Kenton Wedean (collectively “Wedean Defendants”) and dismissed without prejudice Oduok’s claims against the remaining defendants for lack of service or failure to state a claim. Oduok filed separate notices of appeal in Case Nos. A12A2143 and A13A0039, and we have consolidated them for review because they arise from the same litigation. For the reasons that follow, we affirm Case No. A12A2143 and dismiss as moot Case No. A13A0039.

Case No. A12A2143

Oduok’s appeal challenges (1) the summary judgment ruling in favor of the Wedean Defendants and (2) the dismissal of the remaining defendants. We address each ruling in turn.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). Ade novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable conclusions and inferences drawn from it, in the light most favorable to the nonmovant.

So viewed, the record shows that in May 2004, Anthony Nzeribe executed a deed to secure debt in favor of Wells Fargo Bank, N.A., encumbering residential property in East Point, which property Nzeribe later rented to Oduok. In early 2008, Nzeribe defaulted on his loan from Wells Fargo, and Wedean Properties, Inc., acquired title in a nonjudicial foreclosure sale.

On February 7, 2008, Barbara Finney, d/b/a Alpha Evictions and Collections (“Alpha”) filed on behalf of Wedean Properties, Inc., a dispossessory action naming Nzeribe “and all others.” The petition was posted on the door of the premises and mailed to Nzeribe.

On March 4, 2008, the Fulton County Magistrate Court granted a writ of possession, and Oduok’s appeal therefrom was later dismissed as untimely. A second writ was issued on April 11, 2008, and executed on April 21, 2008. Later in the day on April 21, 2008, Oduok filed an unsuccessful appeal to the magistrate court.

On May 8, 2009, Oduok filed the present action against the defendants alleging wrongful eviction, conversion, conspiracy, trespass, negligence per se, RICO violations, negligent hiring, negligence, fraud, and intentional infliction of emotional distress. On July 17, 2009, the Wedean Defendants filed a motion to open default as a matter of right, averring facts showing improper service, and on September 15, 2009, the Wedean Defendants filed an answer, followed by a motion for summary judgment supported by documentation of the foreclosure and eviction along with affidavits. Oduok filed a cross-motion for summary judgment, and following a hearing, the trial court denied Oduok’s motion and granted the Wedean Defendants’ motion on the ground that “the record does reflect that the foreclosure was lawful and that the eviction was lawful.” Oduok filed this appeal.

1. Wedean Defendants. As to the Wedean Defendants, Oduok enumerates as error (a) the grant of summary judgment, (b) the failure to enter default judgment against them, and (c) the finding that the eviction was not wrongful. These arguments fail, for the reasons that follow.

(a) Summary judgment to Wedean Defendants was proper. Oduok’s complaint lists ten counts that essentially arise from the argument that he was wrongfully evicted. Nevertheless, the record contains authenticated documentation of the security interest of Wells Fargo (which predated Oduok’s leasehold interest), the recorded deed under power of sale, and affidavits supporting the propriety of the foreclosure sale to Wedean Properties, Inc.

[I]t is well established that where the grantor [Nzeribe], or his privy [Oduok], in a security deed remains in possession of the premises after lawful foreclosure of the deed, he is a tenant at sufferance and is subject to be summarily dispossessed by the purchaser at the foreclosure sale, or by his privy. Moreover, claimed defects in the landlord’s title to premises cannot be raised as a defense to a proceeding for possession under OCGA § 44-11-1. The purchaser at a foreclosure sale under a power of sale in a security deed is the sole owner of the property until and unless the sale is set aside.

Because the record lacks a factual dispute as to the proper foreclosure and proper writ of possession entitling Wedean Properties, Inc., to evict Oduok from the premises, Oduok’s claims against the Wedean Defendants, which are premised on a wrongful eviction, fail as a matter of law.

(b) Oduok was not entitled to default judgment against the Wedean Defendants.

On appeal, absent a showing of an abuse of discretion, a trial court’s finding of insufficient service of process must be affirmed. When the evidence is conflicting with respect to the proper receipt of service, as here, it becomes a question of fact to be resolved by the trial judge. Those findings will not be disturbed on appellate review when supported by any evidence.

Oduok’s complaint was filed on May 8, 2009, and a copy of the complaint and summons was served on June 4, 2009 upon “Barbara Hamiltonf,] the authorized agent for Wedean Properties, []” and upon “Barbara Hamilton [,] the authorized agent for Kent Wedean.”

(i) With respect to Kent Wedean, it is undisputed that he is an officer in Wedean Properties, Inc., but the record is unclear as to whether Barbara Hamilton is a misnomer for Barbara Finney, who actually operates Alpha Evictions and Collections (which was apparently misnamed as “Alpha Eviction Services”), and the record does not show how Barbara Hamilton was related to the parties or would be authorized to accept service for the individuals. It is clear from the record that Alpha Evictions and Collections was not appointed as an agent for service of Kent Wedean at the time of the eviction. Thus, the trial court treated the June 4,2009 return of service as ineffective, finding it insufficient. When Kent Wedean did acknowledge service on August 31, 2009, the trial court treated his verified answer as timely and reached the merits of his summary judgment motion. In light of the record before us, we discern no abuse of discretion by the trial court in its failure to find Kent Wedean in default.

(ii) With respect to Dave Wedean, there is no return of service, but he likewise acknowledged service on August 31, 2009, and answered on September 15, 2009, so he was not in default.

(iii) Wedean Properties, Inc., paid costs and filed its answer on July 17,2009, which was within the 15-day period for opening default as a matter of right under OCGA § 9-11-55 (a). Accordingly, a default judgment would not have been proper against Wedean Properties, Inc.

(c) The eviction was authorized by law. For the reasons stated in Division 1 (a), this enumeration fails.

2. The trial court did not err by dismissing the remaining defendants. As to the remaining defendants, the trial court dismissed the claims against them without prejudice on the grounds that the complaint was not served on them or failed to state a claim against them. The record lacks any return of service for Barbara Finney, Wells Fargo, and “Baba,” so there was no error in dismissing those defendants. As noted in Division 1 (b) (i), the remaining returns of service are somewhat ambiguous on their face. They state that Barbara Hamilton was served as authorized agent for Todd Scott and “Fern Finnly” (not Fern Finney). But the returns of service also aver that Barbara Hamilton was the registered agent of Wedean Properties, Inc., and there is no evidence of her relationship to the persons purported to be served, which calls into question their validity. It is clear from the record that the trial court, after holding a scheduling conference and hearing from those defendants, did not consider valid those questionable returns of service based on that conference. The trial court allowed Oduok additional time to perfect service, which he attempted to do by mail, but this was ineffective.* Based on the record before us, we find no abuse of discretion by the trial court in finding insufficient service of process. Therefore, the trial court did not err in dismissing the remaining defendants.

Decided February 19, 2013.

Inyang P. Oduok, pro se.

Lefkoff, Duncan, Grimes, McSwain & Hass, John R. Grimes, Fred J. Rushing, Jr., for appellees.

Case No. A13A0039

3. This case involves identical briefs on the same record. The order named in the notice of appeal was amended in Oduok’s favor following remand from this Court in an earlier appeal. Therefore, this appeal is dismissed as moot.

Judgment affirmed in Case No. A12A2143. Appeal dismissed in Case No. A13A0039.

Andrews, P. J., and Boggs, J., concur.

        Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).

       See generally OCGA § 44-14-232 (a) (allowing service by tacking a copy of the summons and petition on the door of the premises and mailing a copy to the defendant at his last known address).

       (Citations and punctuation omitted.) West v. Veterans Administration, 182 Ga. App. 767, 768 (1) (357 SE2d 121) (1987).

       (Citations and punctuation omitted.) Ballenger v. Floyd, 282 Ga. App. 574, 575 (639 SE2d 554) (2006).

       According to pleadings filed by Wedean Properties, it learned of the lawsuit after receiving a copy of the complaint via UPS mail. It also noted that its registered agent for service was not Barbara Hamilton, but “Kristin Jahn, 555 Sun Valley Drive, Suite F2, Roswell, Fulton County, Georgia 30076.”

       See Bible v. Hughes, 146 Ga. App. 769, 771 (3) (247 SE2d 584) (1978) (service on a secretary at party’s office is not service upon the party unless the secretary was appointed as an agent for service).

       See Jones v. Lopez-Herrera, 308 Ga. App. 81, 83 (706 SE2d 609) (2011).

       Any discrepancy as to the petitioning party named on the writ of possession is not a cause for reversal because the alleged misnomer was not challenged in the magistrate court. See Donald v. Luckie Strike Loans, 148 Ga. App. 318, 320 (251 SE2d 168) (1978) (“If no objection is made and no amendment filed, it is too late after final judgment to raise the issue.”).

       “Baba” was listed in the trial court’s order but apparently dropped as a party in Oduok’s amended complaint.

        See Headrick v. Fordham, 154 Ga. App. 415, 417 (1) (268 SE2d 753) (1980) (service “must be made on an actual agent,” not someone merely affiliated with the intended defendant).

        See Gormong v. Cleveland Elec. Co., 180 Ga. App. 481, 482 (349 SE2d 500) (1986) (“It long has been the law of this state interpreting this provision that the required ‘personal’ service cannot be effected upon a resident defendant by use of mail, registered or otherwise.”).


author: MILLER, Presiding Judge.

text:
    A12A2512.
    RIGGINS v. STIRGUS.
    (738 SE2d 635)
   MILLER, Presiding Judge.

Essa Riggins appeals from the trial court’s order granting Eric Stirgus’s application to change their son’s surname from “Riggins” to “Riggins Stirgus.” Riggins contends that the trial court erred in granting Stirgus’s application for a name change in the absence of evidence establishing that the name change was in the best interests of her son. For the reasons set forth below, we affirm.

It is well established that factual findings made by a trial court when sitting without a jury will not be disturbed on appeal unless they are clearly erroneous or wholly unsupported by the evidence. In a bench trial, the trial court sits as the trier of fact, and it is the sole arbiter of the credibility of witnesses.

(Citation, punctuation and footnote omitted.) Carden v. Warren, 269 Ga. App. 275, 276 (1) (a) (603 SE2d 769) (2004). Moreover, “the trial court has broad discretion in deciding whether to grant a request to change the name of a child, and the court’s decision will not be reversed unless it clearly abuses its discretion by ignoring the best interests of the child.” (Citation, punctuation and footnote omitted.) Id. at 277 (2) (a).

So viewed, the evidence showed that Riggins gave birth to her son, E. R., on December 6, 2007. E. R.’s birth certificate listed his mother’s maiden name, Riggins, as his last name. Stirgus confirmed E. R.’s paternity through DNA testing when E. R. was two months old. Stirgus subsequently began paying approximately $300-$500 per month in child support for E. R., and visited with E. R. every other weekend.

In late July 2010, Riggins and E. R. moved to Texas, where Riggins was raised. Stirgus subsequently filed his legitimation petition, and sought an order changing E. R.’s surname. Stirgus did not see E. R. for a year following E. R.’s move to Texas; however, Stirgus maintained contact with E. R. throjigh phone calls. E. R. visited Stirgus for a month in the summer of 2011, and again for a week during the 2011 Christmas holiday.

In February 2012, the trial court held a hearing on Stirgus’s name change request. At the hearing, Stirgus testified that the name change would strengthen his bond with E. R. and ensure that E. R. bonded with Stirgus’s relatives. Stirgus also argued that E. R. no longer has the same surname as Riggins, who changed her name to Charles when she married. The trial court subsequently entered a final legitimation order, in which the trial court ordered E. R.’s surname changed to “Riggins Stirgus.” This Court granted Riggins’s application for discretionary appeal.

In her sole enumeration of error, Riggins contends that the trial court erred in granting Stirgus’s petition for a name change because insufficient evidence supported a conclusion that the name change was in E. R.’s best interests. We disagree.

OCGA § 19-7-22 provides that a father of a child born out of wedlock may petition the court for legitimation of the child and may include a request to change the child’s name as part of the legitimation petition. See OCGA § 19-7-22 (b), (g) (1). The history of the legitimation statute shows that the legislature intended to provide a statutory right whereby a child could inherit from the father’s estate and enjoy the father’s name. See In re Pickett, 131 Ga. App. 159, 160, n. 1 (205 SE2d 522) (1974).

Neither OCGA § 19-7-22 nor case law sets standards for determining a child’s best interest. Nevertheless, the record shows that the trial court considered E. R.’s best interest in granting the name change request, and noted that E. R. and Riggins no longer share the same surname. See Johnson v. Coggins, 124 Ga. App. 603, 604 (184 SE2d 696) (1971) (affirming the grant of a name change request so that the children would have the same surname as their mother and father); see also Binford v. Reid, 83 Ga. App. 280, 281 (63 SE2d 345) (1951) (affirming the grant of a name change request so that the child’s surname would be the same as his mother’s and his siblings’). Additionally, the evidence showed that having Stirgus’s surname would strengthen the bond between father and son, and ensure that E. R. bonded with Stirgus’s relatives. Although Riggins may have presented valid reasons supporting her objections to a name change, her reliance on Palmer v. Pinkston, 228 Ga. App. 514, 516 (3) (492 SE2d 285) (1997), was misplaced, because Palmer involved the denial of a name change request where the child and mother had the same surname. Id. Since the evidence supports the trial court’s ruling, and the trial court did not ignore the best interests of the child, the Court of Appeals following the abuse of discretion standard must affirm.

Judgment affirmed.

Ray and Branch, JJ., concur.

Decided February 19, 2013.

Natalie R. Rowland, for appellant.

Meriwether & Tharp, Patrick L. Meriwether, Adam M. Stein, for appellee.

       Stirgus sought to change the name of his child through his legitimation petition. See OCGA § 19-7-22 (g) (1). The parties reached a partial agreement on the issues of legitimation, custody, visitation and medical insurance coverage. The parties also reached an agreement on monthly child support.


text:
    A12A2320.
    HAMMONDS v. PARKS.
    (735 SE2d 801)
   MCFADDEN, Judge.

This case originated as a contempt action: the custodial father, Lorenzo Hammonds, alleged that the child’s mother, Eden Parks, had violated a provision of the custody order. Contrary to the rule that petitions for change of custody brought against custodial parents must be brought as separate actions, as well as the rule that such petitions must be brought in the custodial parent’s county of residence, OCGA § 19-9-23, the trial court granted the mother’s oral motion for change of custody. She was without jurisdiction to do so, and we reverse. That unauthorized custody ruling led to several subsequent unauthorized rulings, and we reverse those as well — with the exception of a contempt order against the father, which is moot because the term of incarceration has already been served.

One of the orders on appeal contains another contempt ruling on an issue properly before the trial court, which has not been challenged on appeal; we affirm that portion of that order. Finally, we do not review Hammonds’s request for reimbursement of child support and certain costs connected with the improper change-in-custody proceedings, because the request does not enumerate a trial court error.

1. Facts and procedural background.

Parks failed to file an appellate brief. Consequently, we may accept as true Hammonds’s statement of facts. Court of Appeals Rule 25 (b) (1).

Hammonds and Parks are the parents of the child whose custody is at issue in this case. They never married, but Hammonds legitimated the child in 2003. In 2009, the DeKalb County Superior Court entered an order awarding Hammonds primary physical custody of the child and incorporating a parenting plan. (The record conflicts on whether Hammonds also was awarded sole legal custody of the child. The 2009 order provided that the parents share joint custody, but the terms of the parenting plan gave Hammonds sole legal custody. The trial court in this case found that Hammonds had sole legal custody of the child. We can decide this appeal, however, without resolving that conflict.)

On August 17, 2011, Hammonds filed in the DeKalb County Superior Court a petition for citation of contempt, in which he alleged that Parks had violated a term of the custody order regarding the child’s medical treatment. At a hearing on the contempt petition, Parks orally sought a change in the child’s custody to her. Hammonds objected to this request on the ground that the DeKalb County Superior Court was not authorized to hear a change-in-custody petition brought against him because he did not live in DeKalb County. Nevertheless, the trial court received evidence on the custody issue at the hearing. On December 5,2011, the court entered an order finding Parks in contempt for violating the earlier custody order but requiring Hammonds and Parks to undergo a custody evaluation by a third party, giving Parks temporary custody of the child, directing Hammonds to pay Parks child support as a result of the change in custody, and setting a final hearing on custody, visitation and child support.

Hammonds moved the trial court to set aside those portions of the December 5 order pertaining to custody, again arguing that the DeKalb County court was not authorized to rule on a request for change in custody because Hammonds did not reside in that county. The trial court denied the motion to set aside on March 15, 2012, and in that order directed Hammonds to provide it with certain financial documents that the court deemed necessary “[t]o make a proper determination on custody and support.”

On June 7, 2012, the trial court issued two orders in which it found that Hammonds had failed to provide the required financial documents. In one order, the court held Hammonds in contempt and ordered that he be incarcerated. In the other, the court imposed attorney fees upon Hammonds. Hammonds filed a timely notice of appeal from the June 7 orders.

2. Appellate jurisdiction.

This Court has a duty to inquire into its jurisdiction to entertain each appeal. Forest City Gun Club v. Chatham County, 280 Ga. App. 219, 220 (633 SE2d 623) (2006). Hammonds asserts claims of error related to the change-in-custody order, the order declining to set aside the change-in-custody order, the order holding him in contempt, and the order imposing upon him attorney fees. He is entitled to a direct appeal from the contempt order and the attorney fee order, because the trial court based its rulings in those orders on Hammonds’s failure to abide by an order in a child custody case, namely the court’s order that he provide certain documents in connection with, inter alia, the custody determination. See OCGA § 5-6-34 (a) (11). And Hammonds is entitled to appellate review of the earlier orders regarding change in custody, because those rulings were “rendered in the case... and... may affect the proceedings below.” OCGA § 5-6-34

(d).

3. Rulings pertaining to change in custody.

Whether the DeKalb County court was authorized to modify custody in this case presents a question of law, and we owe no deference to the trial court’s ruling. See Seeley v. Seeley, 282 Ga. App. 394, 395 (1) (638 SE2d 837) (2006). We agree with Hammonds that the court was not authorized to issue the rulings pertaining to change in custody, because the change-in-custody request did not comply with OCGA § 19-9-23.

OCGA § 19-9-23 requires a party seeking to obtain a change of legal custody to bring “a separate action in the county of residence of the legal custodian of the child,” OCGA § 19-9-23 (a), or, if the party seeking the change in custody is the legal custodian, to bring “a separate action in compliance with Article VI, Section II, Paragraph VI of the Constitution of this state.” OCGA § 19-9-23 (b). That Constitutional provision requires the case to be tried “in the county where the defendant [here, the respondent in the change-in-custody action] resides.” Ga. Const, of 1983, Art. VI, Sec. II, Par. VI. The party seeking a change in custody cannot make such request as a counterclaim or other response to an action seeking to enforce a child custody order. OCGA § 19-9-23 (c). See Saravia v. Mendoza, 303 Ga. App. 758, 761 (1) (695 SE2d 47) (2010). The provisions of OCGA § 19-9-23 are clear, unequivocal and mandatory. Bailey v. Bailey, 283 Ga. App. 361, 362-363 (641 SE2d 580) (2007).

Parks’s oral motion for change in custody failed to meet the requirements of OCGA § 19-9-23 in two respects. First, Parks did not seek the change in custody in a separate action, but rather in response to the contempt petition Hammonds brought against her. “Our courts have repeatedly held that [OCGA § 19-9-23] precludes a counterclaim seeking a change in custody.” (Citations omitted.) Seeley, 282 Ga. App. at 396 (1). See generally Daust v. Daust, 204 Ga. App. 29, 30 (418 SE2d 409) (1992) (“the general rule [is] that an action for contempt cannot be the vehicle used by a respondent to modify custody”) (citation omitted). Second, Parks did not seek a change in custody in the county in which Hammonds lived, as required under both OCGA § 19-9-23 (a) and (b). See Sumner v. Batchelor, 313 Ga. App. 878, 879 (722 SE2d 858) (2012).

Contrary to the trial court’s conclusion, Hammonds did not waive his right to assert the impropriety of the change-in-custody request under OCGA § 19-9-23 by bringing the contempt petition against Parks in DeKalb County. See, e.g., Kapur v. Roach, 272 Ga. 767, 768 (534 SE2d 420) (2000) (where custodial mother agreed to the transfer of her claims for contempt and custody modification to county in which father had moved, and father then filed a counterclaim also seeking custody modification, mother had not waived her defenses under OCGA § 19-9-23 that father had not filed a separate action in her county of residence; to hold otherwise would “ignore [ ] the clear mandate of the statute regarding counterclaims”); Jones v. Jones, 256 Ga. 742, 743 (352 SE2d 754) (1987) (where custodial mother brought action for visitation modification in father’s county of residence and father counterclaimed for change in custody, the change-in-custody request shouldhave been dismissed as improper under OCGA § 19-9-23 because it was neither a separate action nor brought in the mother’s county of residence). Hammonds did not consent to the inclusion of custody matters in the contempt action, but instead objected to the trial court’s consideration of Parks’s oral motion to modify custody. Compare Daust, 204 Ga. App. at 31 (trial court did not err in denying mother’s motion to dismiss change-in-custody request raised in counterclaim to her contempt motion where she had fully participated in the process leading up to the trial court’s custody orders and had consented to the first two such orders).

Under these circumstances, Parks’s motion for a change in custody was improper under OCGA § 19-9-23, and it was error for the trial court to entertain it. See Jones, 256 Ga. at 743. Accordingly, we reverse those portions of the trial court’s December 5, 2011 order pertaining to the change in custody, we reverse the trial court’s March 15, 2012 order denying Hammonds’s motion to set aside the earlier change-in-custody rulings and requiring Hammonds to produce documents, and we reverse the trial court’s June 7, 2012 order awarding attorney fees to Parks for Hammonds’s failure to produce documents relating to the change-in-custody proceedings.

4. Ruling on Hammonds’s contempt petition against Parks.

The trial court’s December 5, 2011 order also contained a ruling on the contempt petition properly brought by Hammonds in that court. No challenge on appeal has been brought as to this ruling, and accordingly it is affirmed.

5. Ruling finding Hammonds in contempt.

In one of its June 7,2012 orders, the trial court found Hammonds to be in contempt and ordered him to spend a period of time in jail for failing to produce financial information in connection with the change-in-custody proceedings. As explained above, the trial court lacked the authority to order Hammonds to produce the documents in the first instance. Nevertheless, Hammonds already has served his jail time for contempt of the production order, and he has been released. “[W]here a litigant is found to be in contempt of court and is ordered held in jail, his appeal of that order becomes moot upon his release from jail.” (Citation omitted.) Herring v. Herring, 236 Ga. 43, 44 (1) (222 SE2d 331) (1976). See Johnson v. State, 306 Ga. App. 844, 846 (2) (702 SE2d 920) (2010). Accordingly, we must dismiss as moot Hammonds’s appeal of the contempt order.

Decided December 19, 2012

Reconsideration denied February 20, 2013.

Beverly L. Cohen, for appellant.

Eden Parks, pro se.

6. Hammonds’s request for reimbursement.

Hammonds states that he is entitled under principles of equity to be reimbursed by Parks for the child support he has paid her since the entry of the December 5,2011 custody modification and for the cost he paid for a custody evaluation required under that order. But we are a court for the correction of errors of law committed in the trial court. Pfeiffer v. Ga. Dept. of Transp., 275 Ga. 827, 829 (2) (573 SE2d 389) (2002). Because Hammonds’s request for reimbursement does not enumerate a trial court error, we decline to review it. See id.

Judgment affirmed in part and reversed in part, and appeal dismissed in part.

Barnes, P. J., and Adams, J., concur.


author: McFADDEN, Judge.

text:
    A12A1206.
    In the Interest of J. B., a child.
    (738 SE2d 639)
   McFADDEN, Judge.

The grandmother and guardian of 13-year-old J. B. appeals the order finding that the child continues to be deprived and granting continued temporary custody to the DeKalb County Department of Family and Children Services (“DFCS”). The grandmother argues that the evidence does not show that the child is presently deprived. Because clear and convincing evidence supports the juvenile court’s finding of present deprivation, we affirm.

On appeal of an order finding a child to be deprived,

we review the evidence in the light most favorable to the juvenile court’s judgment to determine whether any rational trier of fact could have found by clear and convincing evidence that the child was deprived. We do not weigh the evidence or determine the credibility of witnesses; rather, we defer to the trial court’s factfinding and affirm unless the appellate standard of review is not met.

(Citations and punctuation omitted.) In the Interest of I. W., 304 Ga. App. 225, 229 (3) (695 SE2d 739) (2010).

Viewed in this light, the evidence shows that on June 2, 2009, when he was nine years old, J. B. was removed from his grandmother’s custody because she left him alone while she traveled to Florida. The juvenile court found J. B. to be deprived and placed him in the custody of DFCS. The juvenile court adopted a case plan that required the grandmother to complete certain goals in order to regain custody of J. B. One of those goals was to complete family therapy.

In May 2010, the juvenile court extended DFCS custody until May 31, 2011. In May 2011, DFCS filed a “petition for deprivation after first extension.” DFCS alleged that the grandmother had completed all of her case plan goals except for the goal that she complete family therapy. In her response, the grandmother conceded that she had not completed family therapy but argued that she would have completed the goal had DFCS timely referred her to a family therapist. She asserted that she now is attending appointments and cooperating with DFCS and the therapist to complete the goal.

The juvenile court conducted a hearing at which the psychologist who had been counseling the grandmother and J. B. testified. The juvenile court qualified him as an expert in family counseling and in determining parental fitness. The psychologist testified that he had been the family therapist for J. B. and his grandmother since September 2010. The psychologist found that the grandmother and J. B. did not communicate well; that they had not adjusted to the death of J. B.’s mother; and that the grandmother did not acknowledge that her decisions could negatively affect the child. For example, the psychologist explained that J. B.’s mother died when he was three, and he therefore did not have any memories of her. When he began asking about his mother, he was told that she “was on vacation.” Finally, when he was nine years old and asked where his mother was, the grandmother took him to his mother’s grave site and told him, “Here is your mother.” This was the same year the grandmother left the boy home alone while she went to Florida. The child’s behavior problems substantially increased from that point. The psychologist concluded that the grandmother had made substantial progress but still demonstrated a need for counseling.

The juvenile court found that J. B. continues to be deprived and granted continued temporary custody to DFCS. The grandmother appealed, arguing that there is no evidence that her grandson is presently deprived, given that she has completed all of her case plan goals.

Decided February 20, 2013.

Ella A. S. Hughes, for appellant.

Samuel S. Olens, Attorney General, Shalen S. Nelson, Senior Assistant Attorney General, Eleasah E Hammond, Andre M. Johnson, for appellee.

OCGA § 15-11-2 (8) (A) provides that a child is deprived if he or she “[i]s without proper parental care or control, subsistence, education as required by law, or other care or control necessary for the child’s physical, mental, or emotional health or morals.” (Emphasis supplied.) “That definition focuses upon the needs of the child regardless of parental fault. The deprivation petition is brought on behalf of the child and it is the child’s welfare and not who is responsible for the conditions which amount to deprivation that is the issue.” (Citation and punctuation omitted.) In the Interest of R. C. H., 307 Ga. App. 774, 777 (1) (706 SE2d 686) (2011).

The grandmother argues that because she completed her case plan goals, the child is no longer deprived. But the juvenile court found that the grandmother had not completed her case plan goals because she had not completed family counseling, and the evidence supports that finding. In the Interest of H. J., 313 Ga. App. 255, 258 (1) (721 SE2d 197) (2011). Clear and convincing evidence authorized the juvenile court to find that J. B. was currently deprived because he was without the “care... necessary for [his]... mental [ ] or emotional health.” OCGA § 15-11-2 (8) (A). See In the Interest of H. J., supra, 313 Ga. App. at 258 (1) (“Clear and convincing evidence authorized the juvenile court to find that the child was currently deprived” because the father had failed to complete family counseling); In the Interest of N. Y., 246 Ga. App. 723, 726 (542 SE2d 137) (2000) (clear and convincing evidence showed that children’s “deprivation would likely continue or would not be remedied in the absence of an extension of temporary legal custody in DFCS to permit the father to complete individual counseling and to participate in family counseling, as appropriate”).

Judgment affirmed.

Barnes, R J., and McMillian, J., concur.


text:
    A12A1747.
    WORLEY v. THE STATE.
    (738 SE2d 641)
   DOYLE, Presiding Judge.

William Clint Worley appeals from the denial of his motion for new trial following his conviction by a jury of aggravated child molestation, child molestation, and first degree cruelty to children. He contends that (1) the evidence was insufficient to support the verdict, (2) he received ineffective assistance of counsel, and (3) the trial court erred by admitting child hearsay testimony. For the reasons that follow, we affirm.

Construed in favor of the verdict, the record shows that on multiple occasions during the time when Worley’s stepdaughter was nine to eleven years old, Worley would call her into his bedroom and force her to touch his private parts and perform oral sex on him. On other occasions when she angered Worley, he struck her, at least one time sending her to the hospital with a suspected broken nose. The victim disclosed the abuse to her grandmother and another person. The victim also described the abuse in a forensic interview arranged by police.

Worley was arrested and charged with three offenses based on the abuse as well as two violations of the Georgia Controlled Substances Act based on methamphetamine and marijuana found in his residence. Worley entered a negotiated guilty plea to the drug offenses, and, following a trial, he was found guilty by a jury on the remaining three offenses. After his motion for new trial was denied, Worley filed this appeal.

1. Worley contends that the evidence was insufficient to support the verdict. Specifically, he points to his own testimony denying the abuse, “bad blood” in the family that might be a motive for fabrication, and other testimony calling into question the credibility of the victim’s accusations.

When reviewing the sufficiency of the evidence,

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

Here, the victim described the abuse both to the jury and in a recorded forensic interview that was played for the jury. She included details that the forensic interviewer found inconsistent with someone who had been coached. “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. [Further, t]he testimony of a single witness is generally sufficient to establish a fact.” Thus, in this case, the victim’s testimony and taped interview were sufficient to establish the abuse. “Resolving evidentiary conflicts and inconsistencies, and assessing witness credibility, are the province of the factfinder, not this Court.” Based on the record before us, this enumeration is without merit.

2. Worley next contends that he received ineffective assistance of counsel because his trial counsel failed to (a) object to evidence of a past conviction for theft as well as the guilty plea for the drug charges in this case, and (b) object to testimony about the existence of pornography in his bedroom. We find no reversible error.

Under Strickland v. Washington, to succeed on an ineffective assistance claim, a criminal defendant must demonstrate both that his trial counsel’s performance was deficient and that there is a reasonable probability that the trial result would have been different if not for the deficient performance. “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.” If an appellant fails to meet his burden of proving either prong of the Strickland test, the reviewing court need not examine the other prong. In reviewing the trial court’s decision, “[w]e accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.”

(a) Failure to object to prior convictions. Prior to trial, the State indicated its intent to introduce a prior conviction for theft for the purpose of impeaching Worley if he testified. Before Worley was called to the stand, outside of the presence of the jury, the State proffered a certified copy of the conviction for a ruling by the trial court, and Worley’s trial counsel did not object. The State also asked a detective, without objection, about Worley’s guilty plea to the drug offenses related to the case. Worley contends that his trial counsel’s failure to object was ineffective.

At the motion for new trial hearing, Worley’s trial counsel testified that he allowed the admission of the drug offenses arising from the search warrant executed in this case because he was pursuing a strategy of admitting those offenses and denying the molestation. “[A] tactical decision will not form the basis for an ineffective assistance of counsel claim unless it was so patently unreasonable that no competent attorney would have chosen it,” and trial counsel’s decision here was not an incompetent choice.

With respect to the theft offense, to the extent Worley’s counsel could have excluded it, Worley cannot now meet his burden to show prejudice because he admitted to the two drug offenses. In light of that admitted criminal behavior (which was closer in time to the indicted offenses), we conclude that there is not a reasonable probability that excluding evidence of the older theft offense would have changed the outcome of trial.

(b) Failure to object to testimony about the existence of pornography in his bedroom. Worley also contends that his trial counsel should have objected to evidence of pornography that was found in his bedroom. Worley was able to exclude admission of the actual print and video pornography, but he did not object when the State asked the victim if she had ever seen pornography in the house. The victim stated that she had seen the items in Worley’s bathroom and in a drawer. An investigating officer also testified without objection that he seized pornographic material described by the victim when executing a search warrant at Worley’s house.

In Simpson v. State the Supreme Court of Georgia announced the following rule:

In a prosecution for a sexual offense, evidence of sexual paraphernalia found in defendant’s possession is inadmissible unless it shows defendant’s lustful disposition toward the sexual activity with which he is charged or his bent of mind to engage in that activity. Under this rule, sexually explicit material cannot be introduced merely to show a defendant’s interest in sexual activity. It can only be admitted if it can be linked to the crime charged.

Based on this, Worley argues that his trial counsel should have challenged the admissibility of the references to pornography. Nevertheless, we note that the pornography itself was not admitted because Worley’s counsel successfully objected to its admission on the ground that it would only inflame the jury. Further, the initial reference to the pornography was a question to the victim as to whether she had seen material “with naked men and women on them,” to which she replied affirmatively. Other references to the pornography were cumulative, and in light of the nature of the crime here, in which Worley forced the minor victim to perform sex acts on him, the victim’s exposure to Worley’s pornography would be of sufficient relevance that admitting it over an objection would not have been an abuse of the trial court’s discretion. Accordingly, Worley cannot show that his trial counsel performed deficiently.

3. Finally, Worley contends that the trial court erred by finding that hearsay testimony relating to statements made by the victim showed indicia of reliability under Gregg v. State. That case provided an inexhaustive list of factors for a trial court to consider when deciding whether to admit statements made by a child victim under former OCGA § 24-3-16:

(1) the atmosphere and circumstances under which the statement was made (including the time, the place, and the people present thereat); (2) the spontaneity of the child’s statement to the persons present; (3) the child’s age; (4) the child’s general demeanor; (5) the child’s condition (physical or emotional); (6) the presence or absence of threats or promise of benefits; (7) the presence or absence of drugs or alcohol; (8) the child’s general credibility; (9) the presence or absence of any coaching by parents or other third parties before or at the time of the child’s statement, and the type of coaching and circumstances surrounding the same; and, the nature of the child’s statement and type of language used therein; and (10) the consistency between repeated out-of-court statements by the child.

Based on these factors, Worley argues that statements made by the victim to her half-sister and the forensic interviewer were inadmissible. But

[t]hese factors . . . are not to be mechanically applied but considered in a manner best calculated to facilitate the determination of the required degree of trustworthiness. Moreover, even if all factors do not indicate reliability, the trial court does not necessarily abuse its discretion in admitting the statement.

Here, the first disclosure was made to another child family member, at her grandparents’ residence, outside the presence of any adults who might coach the victim. The second disclosure was made to a trained professional forensic interviewer who practiced various techniques to avoid influence and detect coaching. The victim was 11 years old at the time of the disclosures, and she did not receive any threats or promises, nor was she under the influence of drugs or alcohol. Also, the victim’s statements were consistent at each disclosure and contained sensory details that the forensic interviewer found inconsistent with fabrication or coaching. And we note that the victim

testified as a witness at trial and was subject to cross-examination, thus allowing [Worley] every opportunity to cross-examine her before the jury regarding the circumstances surrounding the videotaped interview, and giving the jury the opportunity to judge her demeanor and credibility during that examination. As this Court has explained, “[t]his circumstance provided an additional safeguard to [Worley’s] right of fair trial and provided him full opportunity for confrontation.”

Decided February 20, 2013.

Brown & Gill, Angela B. Dillon, for appellant.

Tommy K. Floyd, District Attorney, John A. Pipkin III, James L. Wright III, Assistant District Attorneys, for appellee.

Under the facts before us, we discern no abuse of the trial court’s discretion in finding sufficient indicia of reliability to admit the hearsay statements. Accordingly, this enumeration is without merit.

Judgment affirmed.

Andrews, P. J., and Boggs, J., concur.

       OCGA § 16-6-4 (c).

       OCGA § 16-6-4 (a) (1).

       OCGA § 16-5-70 (b).

       See Short v. State, 234 Ga. App. 633, 634 (1) (507 SE2d 514) (1998).

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

       (Footnote omitted.) Phagan v. State, 243 Ga. App. 568, 569-570 (2) (533 SE2d 757) (2000).

       See Rollins v. State, 318 Ga. App. 311, 313 (733 SE2d 841) (2012), citing former OCGA § 24-4-8.

        Odett v. State, 273 Ga. 353, 353-354 (1) (541 SE2d 29) (2001).

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

       See id. at 687-688, 694 (III) (A)-(B).

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

       See Strickland, supra, 466 U. S. at 697 (IV); Fuller v. State, 277 Ga. 505, 507 (3) (591 SE2d 782) (2004).

       (Punctuation omitted.) Robinson v. State, 277 Ga. 75, 76 (586 SE2d 313) (2003).

       See OCGA § 24-9-84.1 (a) (2) (2010) (“Evidence that the defendant has been convicted of a crime shall be admitted [for purposes of impeachment] if the crime was punishable by death or imprisonment of one year or more ... if the court determines that the probative value of admitting the evidence substantially outweighs its prejudicial effect to the defendant. . . .”).

       (Punctuation omitted.) Brown v. State, 288 Ga. 902, 909 (5) (708 SE2d 294) (2011).

       We need not decide whether its admission was actual error.

       271 Ga. 772 (523 SE2d 320) (1999).

       Id. at 774 (1).

       See Heck v. State, 313 Ga. App. 571, 577 (2) (a) (722 SE2d 166) (2012) (concluding in a child molestation case “that the trial court did not err in finding that the nudist colony videotapes and the brochure were relevant to [the defendant’s] bent of mind, nor d[id] we find any abuse of discretion in admitting this evidence at trial, with its significance to be determined by the jury”). Cf. State v. Tyson, 273 Ga. 690, 694(4) (544 SE2d 444) (2001) (declining to reverse a “conviction based on the possibility that [some] evidence, a nudist camp magazine, could not be linked to the crime charged”).

       See Moore v. State, 278 Ga. 397, 401 (2) (e) (603 SE2d 228) (2004) (the failure to make a meritless objection is not evidence of ineffective assistance).

       201 Ga. App. 238 (411 SE2d 65) (1991).

       Id. at 240 (3) (b).

       (Punctuation and footnote omitted.) Anderson v. State, 315 Ga. App. 679, 683 (2) (727 SE2d 504) (2012).

       (Punctuation and footnote omitted.) Id. at 684 (2).

       See id.


author: DOYLE, Presiding Judge

text:
    A12A1823.
    EDGECOMB v. THE STATE.
    (738 SE2d 645)
   DOYLE, Presiding Judge

Following a jury trial, Benjamin Edgecomb appeals from his conviction of violating a family violence order.* He contends that the trial court erred by instructing the jury on that offense as a lesser included offense of aggravated stalking, for which he was indicted. Because the trial court incorrectly instructed the jury on the unindicted offense, we reverse.

Construed in favor of the verdict, the evidence shows that in 2000, Edgecomb married the victim, and in 2010, the couple became divorced. After some difficulties with Edgecomb, his ex-wife petitioned for and obtained a “Stalking Twelve Month Protective Order,” pursuant to OCGA § 16-5-94. The order enjoined Edgecomb from approaching within 500 yards of the ex-wife or her residence. Thereafter, Edgecomb was observed on several occasions violating the order by driving past the ex-wife’s residence, sometimes slowly. On one occasion, a police officer observed the violation, and after confirming Edgecomb’s identity and awareness of the protective order, the police officer arrested Edgecomb.

Edgecomb was indicted with one count of aggravated stalking, and a jury found him not guilty of aggravated stalking but found him guilty of a misdemeanor count of violating a family violence protective order, based on the lesser included charge requested by the State and given by the trial court. Edgecomb objected to the jury charge, and the trial court overruled the objection, which ruling Edgecomb now asserts as error.

Edgecomb’s indictment alleged as follows:

The Grand Jurors . . . charge and accuse BENJAMIN EDGECOMB with the offense of AGGRAVATED STALKING[] for that the said accused ... between the 15th day of July, 2010, and the 6th day of October, 2010, in violation of a Stalking Twelve Month Protective Order issued by the Superior Court of Cobb County in civil action number 10-1-06724-99, did contact and place [the ex-wife] under surveillance at [her address] without her consent and for the purpose of harassing and intimidating her; contrary to the laws of [Georgia], the good order, peace and dignity thereof.

Thus, the factual basis for the allegation was Edgecomb’s violation of a stalking protective order.

With respect to the lesser included offense of violation of a family violence order, the trial court instructed the jury as follows:

In this case[,] there’s an allegation of a lesser offense that is not included in the indictment. The name of this offense is violating family violence order. Violating family violence order is defined as follows: A person commits the offense of violating a family violence order when the person knowingly and in a nonviolent manner violates the terms of a temporary protective order issued against that person, which directs the person to stay away from a residence or restrains the person from approaching within a specified distance of another person.
If you do not believe beyond a reasonable doubt that the defendant is guilty of aggravated stalking, but do believe beyond a reasonable doubt that the defendant is guilty of violating [a] family violence order, then you would be authorized to find this defendant guilty of violating [a] family violence order. And the form of your verdict in that event would be we, the jury, find the defendant guilty of violating [a] family violence order.

Edgecomb correctly points out that the General Assembly has defined the offense of violating a family violence order less broadly:

A person commits the offense of violating a family violence order when the person knowingly and in a nonviolent manner violates the terms of a family violence temporary restraining order, temporary protective order, permanent restraining order, or permanent protective order issued against that person pursuant to Article 1 of Chapter 13 of Title 19, which [order restricts certain behavior of such person].

Because this is part of the criminal code, it is to be strictly construed. Accordingly, we conclude that the entire list of protective and restraining orders is modified by the language “issued against that person pursuant to Article 1 of Chapter 13 of Title 19,” which refers to the Code sections dealing with family violence orders,- i.e., OCGA §§ 19-13-3 and 19-13-4, but not stalking protective orders. Thus, the offense of violating a family violence order can only be committed by violating an order issued pursuant to that portion of the Code.

By contrast, the order violated here was issued pursuant to OCGA § 16-5-94, which authorizes protective orders when a person alleges stalking by another person. That Code section requires an allegation of additional conduct defined as stalking, i.e., that the conduct is done “for the purpose of harassing and intimidating the other person.” Reading these two Code sections together, and strictly construing them, violation of an order issued pursuant to OCGA § 16-5-94 (stalking protective order) is not equivalent to violation of an order issued pursuant to OCGA § 19-13-4 (family violence protective order).

In light of these definitions, the trial court erred by instructing the jury that it could convict Edgecomb of violating a family violence protective order, especially in light of the fact that the trial court defined such orders as essentially any protective order.

A criminal defendant’s right to due process may be endangered when, as here, an indictment charges the defendant with committing a crime in a specific manner and the trial court’s jury instruction defines the crime as an act which may be committed in a manner other than the manner alleged in the indictment.

Edgecomb was never subject to a family violence protective order, and the trial court’s overbroad definition misled the jury to believe it could find him guilty of a lesser offense unrelated to his indicted offense.

We note that the State points to language in OCGA § 16-5-95 (c) (pertaining to the violation of a family violence order), which provides as follows:

Nothing contained in this Code section shall prohibit a prosecution for the offense of stalking or aggravated stalking that arose out of the same course of conduct [i.e., violating a family violence order]; provided, however, that, for purposes of sentencing, a violation of this Code section shall be merged with a violation of any provision of Code Section 16-5-90 [stalking] or 16-5-91 [aggravated stalking] that arose out of the same course of conduct.

Decided February 20, 2013.

J. Michael Treadaway, for appellant.

Patrick H. Head, District Attorney, Allen R. Knox, John R. Edwards, D. Victor Reynolds, Assistant District Attorneys, for appellee.

Based on this language, the State argues that a family violence order violation is, as a matter of law, a lesser offense included in aggravated stalking. In a different case, with different facts involving a family violence order, this might be correct. But here, it is undisputed that there was no family violence order issued against Edgecomb, and he was not accused of violating one, so the jury was not authorized to convict Edgecomb of such a charge.

Judgment reversed.

Andrews, P. J., and Boggs, J., concur.

       OCGA § 16-5-95 (a).

       See Short v. State, 234 Ga. App. 633, 634 (1) (507 SE2d 514) (1998).

       Edgecomb was sentenced to 12 months of probation, with credit for the 150 days he served in jail.

       Under OCGA § 16-5-91 (a),
      [a] person commits the offense of aggravated stalking when such person, in violation of a bond to keep the peace posted pursuant to Code Section 17-6-110, temporary restraining order, temporary protective order, permanent restraining order, permanent protective order, preliminary injunction, good behavior bond, or permanent injunction or condition of pretrial release, condition of probation, or condition of parole in effect prohibiting the behavior described in this subsection, follows, places under surveillance, or contacts another person at or about a place or places without the consent of the other person for the purpose of harassing and intimidating the other person.

       (Emphasis supplied.) OCGA § 16-5-95 (a).

       See Frix v. State, 298 Ga. App. 538, 542 (1) (a) (680 SE2d 582) (2009) (“When a criminal statute fairly and reasonably is subject to two constructions, one which would render an act criminal, the other which would not, the statute must be construed strictly against the State and in favor of the accused.”) (punctuation omitted).

       See OCGA § 16-5-94 (a) (“A person who is not a minor who alleges stalking by another person may seek a restraining order by filing a petition alleging conduct constituting stalking as defined in Code Section 16-5-90.”).

       OCGA § 16-5-90 (a) (1). Compare OCGA § 19-13-3 (a) (“Aperson who is not a minor may seek relief under this article by filing a petition with the superior court alleging one or more acts of family violence.”).

        Harwell v. State, 270 Ga. 765, 766 (1) (512 SE2d 892) (1999). Cf. Petty v. Smith, 279 Ga. 273, 274 (612 SE2d 276) (2005) (“The law is clear that where an indictment charges a defendant with committing an offense by one specific method, the defendant cannot be convicted of that offense based on a totally different, unspecified method.”).


text:
    A12A2027.
    JULIAN v. THE STATE.
    (738 SE2d 647)
   DOYLE, Presiding Judge.

Russell E. Julian appeals the denial of his motion for discharge and acquittal, arguing that the trial court erred by granting the State’s motion for a mistrial, over his objection, based on the State’s inability to secure the testimony of a prior difficulty witness. We agree and reverse.

The appellate standard of review of a grant or denial of a double jeopardy plea in bar is whether, after reviewing the trial court’s oral and written rulings as a whole, the trial court’s factual findings support its legal conclusion. [(Questions of law are reviewed de novo. Where the basis for the mistrial was the unavailability of critical prosecution evidence, including the unavailability of prosecution witnesses, the strictest scrutiny is appropriate.

The record shows that Julian was charged with seven counts of theft by taking. The jury was seated and sworn on December 5,2011. On December 6, 2011, before the trial commenced, defense counsel stated that the prosecutor had told him the previous night that one of its witnesses, Paul Ho, was not going to appear for trial, and defense counsel moved to exclude any hearsay testimony regarding Ho’s statements. The prosecutor responded that Ho lived in California and that the State was exploring the possibility of having him testify via Skype, but that she had not yet determined whether she would be able to get Ho to agree. According to the prosecutor, defense counsel “did not have any problems” with Ho testifying via Skype, but the prosecutor stated that she “didn’t plan on using anything [Ho] said in opening or in ... any other way ... until [she was] able to make sure that [he was] going to testify.” Later that same day, during a break in the evidence, the State advised the trial court that the defense objected to Ho testifying via Skype. Then, following the close of testimony on December 6, defense counsel made an oral motion in limine to exclude Ho’s testimony via Skype on the grounds that it would violate Julian’s confrontation rights and would make it difficult to refresh the witness’s recollection with documents. Defense counsel conceded that he told the prosecutor the previous night that he “had no problem” with Ho testifying via Skype, but that Julian objected when counsel consulted him. The trial court asked the State for the basis of Ho’s testimony, and the prosecutor responded that Ho had a working relationship with Julian and that Ho was going to testify about prior difficulties. The prosecutor further explained that Ho had been served with a subpoena, but subsequently advised that “it would be a financial strain” for him to come to Georgia to testify live at trial. At the conclusion of the colloquy, the trial court stated that it was not adverse to the possibility of using Skype, but reserved final ruling pending a demonstration of the technology.

The next day, December 7, 2011, following an unreported conference in the trial court’s chambers, the State moved for a mistrial. The trial court noted on the record that the State advised that morning, presumably during the meeting in chambers, that “there is a rule regarding giving notice” before introducing testimony via live videoconferencing, and therefore it would not be possible for Ho to testify via Skype. The trial court requested specifics about when Ho was subpoenaed, and the prosecutor responded that on November 23, 2011, the State sent Ho a copy of the subpoena via e-mail and facsimile, but failed to actually serve him. After Ho received the fax, he advised the State that he needed to consult with his attorney before committing to coming to Georgia. The week before trial, Ho’s attorney told the prosecutor that Ho would not testify at trial because he was worried about possibly incriminating himself and that the State’s subsequent offer of immunity did not change Ho’s position. So, instead of “go[ing] through the whole procedure in getting him here and asking for a continuance,” the State proceeded to trial on Monday and then, that afternoon, offered to allow Ho to testify via Skype; Ho agreed on the condition that the State grant him immunity. The prosecutor argued that it relied on defense counsel’s assurances that he would not object to Ho’s testimony via Skype and that the State introduced evidence that it could not “link up” without Ho, thereby prejudicing the State.

Defense counsel objected to the mistrial, explaining that his agreement to allow Ho to testify via Skype was conditional and that he would not have agreed if the State had disclosed Ho’s refusal to testify live and concerns about self-incrimination. Counsel requested that the trial court instead instruct the jury to disregard any of the evidence related to the prior difficulty, noting that Ho’s name was not mentioned during opening statements.

The trial court granted the State’s motion for mistrial based on the State’s proffer that Ho was “a witness that [was] important to their presentation.” Thereafter, on January 4, 2012, the State filed a petition for certification of materiality of Ho as an out-of-state witness pursuant to former OCGA § 24-10-92 (a) and a motion to grant Ho testimonial immunity, and the trial court granted both requests. Julian then filed a motion for discharge and acquittal, arguing that a second prosecution would violate his constitutional right against double jeopardy. The trial court denied the motion, and this appeal followed.

Once [a defendant’s] jury [is] impaneled and sworn, jeopardy attache[s], and he [is] entitled to be acquitted or convicted by that jury. If a mistrial is declared without a defendant’s consent or over his objection, the defendant may be retried only if there was a “manifest necessity” for the mistrial. ... A manifest necessity to declare a mistrial may exist under urgent circumstances.... Because of the severe consequences of ordering a mistrial without the accused’s consent, a trial court should give careful, deliberate, and studious consideration to whether the circumstances demand a mistrial, with a keen eye toward other, less drastic, alternatives, calling for a recess if necessary and feasible to guard against hasty mistakes.

We give “great deference” to

a trial court’s judgment about whether there was manifest necessity to grant a mistrial. ... A trial judge has acted within his sound discretion in rejecting possible alternatives and in granting a mistrial, if reasonable judges could differ about the proper disposition, even though in a strict, literal sense, the mistrial is not “necessary.” This great deference means that the availability of another alternative does not without more render a mistrial order an abuse of sound discretion.

Nonetheless, the State’s failure to timely secure evidence required for a conviction “does not constitute such manifest necessity, because the Double Jeopardy Clause forbids a second trial for the purpose of affording the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding.” As we have previously held,

manifest necessity cannot be found where, as here, the mistrial results from the State’s decision to proceed to trial without taking the necessary steps to secure the availability of its witnesses. Accordingly, when a prosecutor begins a case without sufficient evidence to convict, and the court grants [a] mistrial over the defendant’s objection, a defendant’s plea of former jeopardy should be sustained... . [T]his rule applies even in the absence of bad faith by the prosecutor.

Decided February 20, 2013.

Ashleigh B. Merchant, for appellant.

Daniel J. Porter, District Attorney, Ayanna K. Sterling-Jones, Assistant District Attorney, for appellee.

Here, the prosecutor proceeded to trial and allowed the jury to be sworn and impaneled despite having failed to subpoena Ho properly and despite knowing that Ho had refused to come to Georgia to testify live. The State’s argument that it relied on defense counsel’s agreement to allow Ho to testify via video-conference is not persuasive. The prosecutor admitted that he did not even consider having Ho testify via Skype until the evening after the jury was sworn, at which time he approached defense counsel about that possibility, without first advising counsel that Ho was unwilling to testify live. Defense counsel explained to the trial court that he would not have agreed to Ho testifying via Skype if he had known that Ho was otherwise unwilling to testify. In its appellate brief, the State asserts that after the trial court expressed its willingness to allow Ho’s testimony via Skype, the prosecutor “did further research on the issue [and] . . . determined that the use of video conferencing or testimony via Skype is a direct violation of [Julian’s] right to confrontation.” Thus, the State took a calculated risk by impaneling the jury without subpoenaing Ho and by mentioning the prior difficulty evidence to the jury before researching the implications of allowing the witness to testify via video-conferencing.* “In light of the foregoing, we must conclude as a matter of law that the mistrial in this case, declared over [Julian’s] objection, did not result from manifest necessity. The trial court therefore erred [by] denying [his] motion for discharge and acquittal.”

Judgment reversed.

Andrews, P. J., and Boggs, J., concur.

       (Citations and punctuation omitted.) Jackson v. State, 305 Ga. App. 727, 727-728 (700 SE2d 714) (2010).

       OCGA § 16-8-2.

       Defense counsel stated that he previously thought that Ho would testify live at trial.

       Skype is an internet communication service that provides live, two-way audio and video communication. See Tshiani v. Tshiani, 208 Md. App. 43, 61, n. 12 (56 A3d 311) (Md. 2012).

       OCGA § 24-10-92 was repealed by Ga. L. 2011, p. 100, § 2, effective Jan. 1, 2013.

       (Citation and punctuation omitted; emphasis supplied.) Smith v. State, 263 Ga. 782, 783 (1) (439 SE2d 483) (1994).

       (Citations and punctuation omitted.) Tubbs v. State, 276 Ga. 751, 754 (3) (583 SE2d 853) (2003).

       (Citation and punctuation omitted.) Jackson, 305 Ga. App. at 729.

       (Citations and punctuation omitted.) Id. at 729-730, citing Arizona v. Washington, 434 U. S. 497, 508, n. 24 (98 SC 824, 54 LE2d 717) (1978) (retrial barred if “a prosecutor proceeds to trial aware that key witnesses are not available to give testimony and a mistrial is later granted for that reason”); Downum v. United States, 372 U. S. 734, 735 (83 SC 1033, 10 LE2d 100) (1963) (retrial barred following mistrial after the State “allowed the jury to be selected and sworn even though one of its key witnesses was absent and had not been found”).

       Compare Ogletree v. State, 300 Ga. App. 365, 368-369 (685 SE2d 351) (2009) (holding that second prosecution was not barred following the grant of the State’s motion for mistrial because the witness did not become unavailable until after the jury was sworn).

       We do not reach the issue of whether permitting Ho to testify via video-conferencing would violate Julian’s constitutional right to confront the witness.

       Jackson, 305 Ga. App. at 730.


text:
    A12A2084.
    SHEPPARD v. THE STATE.
    (738 SE2d 662)
   DOYLE, Presiding Judge.

We granted this application for discretionary appeal after the superior court revoked more than two years of Terry Sheppard’s probation. We reverse and remand for resentencing because Sheppard was not found to have committed a felony and because the sentencing form did not specify the special conditions that, if violated, would result in the revocation of Sheppard’s entire probation.

The record shows that in August 2009, Sheppard entered a negotiated guilty plea to possession of cocaine (Count 1), driving with an unlawful alcohol concentration (Count 2), and driving with a suspended license (Count 3). Sheppard was sentenced to a five-year probation term on Count 1 and sentenced to shorter, concurrent probated sentences on the remaining counts. In October 2010, the State petitioned to revoke Sheppard’s probation based on allegations that he had committed misdemeanor DUI, misdemeanor battery, and driving with a suspended license and for failing to report, pay fees, and receive drug and alcohol evaluations. Following a hearing, the trial court revoked the balance of Sheppard’s probation (three years, eight months, and eleven days) based on the technical violations and findings that Sheppard committed a DUI and drove with a suspended license.

We granted Sheppard’s application for discretionary review to determine whether the original sentencing form adequately warned Sheppard in writing of the consequences of violating a special condition. Because it did not, we reverse and remand for resentencing.

Under OCGA § 42-8-34.1, which addresses probation revocation,

[subsection] (c) provides for the revocation of up to two years of probation for the violation of any general provision; subsection (d) authorizes the revocation of the balance of probation if the defendant is shown to have committed a felony, and subsection (e) provides for revocation of the balance if the defendant is shown to have violated a special condition.

Here, the State did not present evidence that Sheppard committed a subsequent felony, so for the revocation to be lawful, the State must have established a violation of a special condition. A “special condition” is defined by OCGA § 42-8-34.1 (a) as

a condition of a probated or suspended sentence [,] which: (1) [i]s expressly imposed as part of the sentence in addition to general conditions of probation and court ordered fines and fees; and (2) [i]s identified in writing in the sentence as a condition the violation of which authorizes the court to revoke the probation or suspension and require the defendant to serve up to the balance of the sentence in confinement.

Thus “the substantive or essential requirements of OCGA § 42-8-34.1 (a) are that the trial court warn of the consequences of violating a special condition; that the warning be in writing; and that the warning be in the court’s sentence.”

Sheppard’s written sentence contains a section for “General and/or Other Conditions of Probation,” which was checked along with seven boilerplate conditions such as avoiding “injurious and vicious habits” and avoiding “persons or places of disreputable or harmful character.” Also in that section were handwritten requirements to receive drug and alcohol evaluation, submit to random screens, and avoid alcohol or drugs unless prescribed. Below that section was a section with the heading, “See Addendum A for Special Conditions of Probation,” which heading was crossed out. Finally, the sentencing form stated that

the defendant is hereby advised that the Court may, at any time, revoke any conditions of this probation and/or discharge the defendant from probation. The probationer may be subject to arrest for violation of any condition of probation herein granted. If such probation is revoked, the Court may order the execution of the sentence which was originally imposed or any portion thereof in the manner provided by law [after deducting time already served].

As we held in Bergen v. State, this sentencing form does not demonstrate substantial compliance with the essential requirements of OCGA § 42-8-34.1 (a). The form in this case

fails to distinguish between general and special conditions of probation and fails to specify that a possible consequence of violating a special condition is the revocation of a probationer’s entire probation. It follows that the trial court erred when it revoked the entirety of [Sheppard’s] probation. Revocation of more than two years of [Sheppard’s] probation was prohibited, and we must remand this case for resentencing in accord with statutory authority.

Decided February 20, 2013.

James K. Luttrell, for appellant.

Patrick H. Head, District Attorney, Christopher W. Timmons, Amelia G. Pray, D. Victor Reynolds, Assistant District Attorneys, for appellee.

That the trial court orally explained at the sentencing hearing what it believed were the special conditions does not require a different result because “an oral advisement does not amount to substantial compliance with a statute that requires something to be identified in writing in the sentence.”

Judgment reversed and case remanded for resentencing.

Andrews, P. J., and Boggs, J., concur.

       (Emphasis supplied.) Bergen v. State, 300 Ga. App. 837, 838 (686 SE2d 410) (2009).

       (Emphasis supplied.)

        Harvey v. Meadows, 280 Ga. 166, 169-170 (3) (626 SE2d 92) (2006).

       300 Ga. App. at 838.

       (Punctuation omitted.) Id. at 838-839.

        Jowers v. Washington, 284 Ga. 478, 481 (2) (668 SE2d 703) (2008), citing Harvey, 280 Ga. at 169 (3) (OCGA § 42-8-34.1 was amended to its present form because the General Assembly “recognized the significant consequences to a defendant for violating a special condition of probation, and thus required trial courts to warn defendants of those consequences in a specific manner (in writing) and place (in the sentence) so as to ensure that a defendant would be notified of those consequences”).