text:
    A15A1008.
    HAYNES v. THE STATE.
    (780 SE2d 397)
   Doyle, Chief Judge.

Carol Elisabeth Haynes appeals from her conviction for failure to maintain her lane, reckless driving, driving under the influence of alcohol to the extent it was less safe to drive (“DUI less safe”), and driving within the gore. She contends that the trial court erred by (1) not permitting her counsel to withdraw for the motion for new trial hearing, (2) conducting an unreported bench conference with her counsel outside her presence, (3) failing to allow her expert witnesses to testify as to certain matters, and (4) not allowing trial counsel sufficient time to prepare for her motion for new trial. For the reasons that follow, we affirm.

Construed in favor of the verdict, the record shows that at approximately 1:40 a.m. one Saturday morning, a police officer observed Haynes driving north on Interstate 75 and having trouble staying in her lane. The officer watched Haynes as her tires fully crossed each side of her lane at least twice. The officer continued to observe Haynes as she exited her lane and drove across the gore onto the exit ramp for Howell Mill Road. Due to her speed, Haynes was unable to stop before partially entering the intersection at the end of the exit ramp. The officer followed Haynes as she turned right, and based on Haynes’s poor driving, the officer initiated a traffic stop.

The officer ran a computer check on Haynes’s license plate and then approached her vehicle. As he initiated contact with Haynes through her open window, the officer immediately smelled a “very strong odor of alcoholic beverage upon her person.” The officer observed her eyes to be very bloodshot, watery, glazed, and “she appeared to be sleepy.” The officer asked Haynes where she had been coming from, and she replied “a party.” Haynes’s speech was “badly slurred,” and after being asked how much she had to drink, Haynes said she had consumed “not much . . . three beers.”

The officer then asked her to perform a preliminary breath test, which she did, registering a positive result for alcohol. The officer asked Haynes to exit her vehicle, and Haynes was unsteady on her feet, staggering as she walked with the officer back toward his patrol car. The officer then performed a horizontal gaze nystagmus (“HGN”) test on Haynes, and she exhibited six out of six clues of intoxication. The officer then had Haynes perform a walk and turn test, during which Haynes exhibited six out of eight clues of intoxication. At that point, Haynes became so emotional that the officer determined that she would not be able to perform any more field sobriety testing. Based on his observations of Haynes’s driving and roadside manner, the officer arrested Haynes for DUI.

Haynes was charged with DUI less safe, DUI per se, reckless driving, failure to maintain lane, driving within a gore, and disregarding a traffic control device. The State elected not to pursue the DUI per se count, and following a jury trial on May 1, 2014, Haynes was found guilty on all remaining counts except for disregarding a traffic control device.

On May 2, 2014, Haynes moved for a new trial, alleging without any specificity that “the trial court made numerous procedural and substantive errors ... to be enumerated in a supplement to this Motion which will be provided after receipt of the [trial] transcript.” On June 21, 2014 and September 4, 2014, Haynes’s counsel filed motions for extensions of time on the new trial motion as counsel awaited the transcript. On September 22, 2014, after the transcript was prepared, the trial court set an October 10, 2014 hearing date on the motion for new trial. Haynes filed no supplemental brief, and at the hearing, Haynes’s counsel presented no substantive argument urging errors at trial. The trial court denied the motion for new trial, giving rise to this appeal.

We note at the outset that the enumerations of error in Haynes’s appellate brief are difficult to parse. She lists at least four errors, each with subparts containing additional arguments — some separately labeled, some not. Nevertheless, in the argument section of her brief, she does not support many of her contentions with argument, citation to the record, or legal authority.

[P]ursuant to the rules of this Court, an appellant must support enumerations of error with argument and citation of authority, and mere conclusory statements are not the type of meaningful argument contemplated by our rules. Accordingly, the majority of [Haynes’s] arguments in this regard have been abandoned by [her] failure to provide citation to authority or meaningful argument and will not be addressed.

We address the remaining arguments properly made on appeal.

1. Haynes contends that the trial court erred by limiting the scope of testimony presented by Dr. Spurgeon Cole, an expert defense witness called to testify “in the field of psychology as it relates to testing and measurement in terms of how this would relate to the field of sobriety evaluations utilized in this case.” After Haynes’s counsel examined the witness on his expertise, the State conducted a voir dire examination and objected based on the lack of foundation. The trial court sustained the objection, noting that she had only heard about one study done in the early 1990s by the witness who was now working part-time for the Social Security Administration. After additional argument ensued, the trial court reaffirmed its ruling, and Haynes examined her next witness before the trial broke for lunch. After the lunch break, the trial court reconsidered its ruling and allowed Haynes to call Dr. Cole as an expert.

On appeal, Haynes recounts these events without explaining why she was prejudiced by Dr. Cole’s testimony or any limitation thereof. When the witness was offered by defense counsel as an expert in testing measurement, the trial court accepted the witness as such an expert over the State’s objection. After this, defense counsel engaged in a lengthy direct examination of the witness, outlining his expertise and challenging the methods and underlying reliability of roadside sobriety testing. Haynes identifies no point during the examination or redirect in which the trial court improperly limited the witness’s testimony based on his expertise. Accordingly, Haynes has failed to demonstrate any reversible error.

2. Haynes also argues that the trial court erred by limiting testimony by another expert witness, retired police officer Tony Corroto, but she does not support this argument with citation to the record, authority, or legal argument. Our review of the transcript reveals that after the parties initially argued about the admissibility of Corroto’s testimony, the trial court ruled in favor of Haynes. Based on voir dire, the State agreed that Corroto was qualified as an expert for the purposes of addressing standardized field sobriety training and procedures, including HGN testing. The State did object to any testimony regarding medical analysis, in the absence of a foundation for such testimony, and the trial court agreed. Thus, Corroto was prohibited from giving medical opinions outside of “medical qualifying” of sobriety test subjects. Haynes accepted this ruling and assured the court that any medical opinions would be limited to the witness’s training and background.

Decided November 19, 2015

William C. Head, for appellant.

Carmen D. Smith, Solicitor-General, R. Leon Benham, Assistant Solicitor-General, for appellee.

Haynes’s counsel proceeded with his direct examination, which included a lengthy review of the training, procedure, and foundation for various forms of roadside sobriety testing, as well as challenges to the testing procedure in this case. Toward the end of Corroto’s testimony, the trial court forbade testimony about percentages of reliability of standardized field sobriety tests on the ground that Corroto was not qualified as an expert in statistical reliability. This is consistent with the trial court’s earlier ruling — to which Haynes did not object — and Haynes’s proffer of the witness’s expertise. Haynes does not demonstrate how any of the trial court’s rulings conflicted with the expert’s qualifications as established at trial. “[A] decision as to whether a witness possesses such learning or experience to qualify as an expert witness lies within the sound discretion of the trial court and will not be disturbed unless manifestly abused.” In light of the record before us, Haynes has demonstrated no abuse of discretion.

Judgment affirmed.

Phipps, P. J., and Boggs, J., concur.

       OCGA § 40-6-48.

       OCGA § 40-6-390 (a).

       OCGA § 40-6-391 (a) (1).

       OCGA § 40-6-50 (b).

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

       The officer had planned to administer a one-leg stand test.

       OCGA § 40-6-391 (a) (5).

       Her brief also lacks adequate citation to the record, a statement of the standards of review, and jurisdictional statement, as required by Court of Appeals Rules 22 (b) and 25 (a).

       (Punctuation and footnotes omitted.) Brittain v. State, 329 Ga. App. 689, 704 (4) (a) (766 SE2d 106) (2014).

       The court was unsatisfied, in part, with Haynes’s counsel’s reliance on case law published prior to the adoption of Georgia’s new Evidence Code, which became effective in 2013. See Ga. L. 2011, p. 99, § 101.

        See Duncan v. State, 232 Ga. App. 157, 160 (3) (500 SE2d 603) (1998); Robertson v. State, 225 Ga. App. 389 (1) (484 SE2d 18) (1997) (no error to exclude testimony outside of witness’s area of expertise).

       (Punctuation omitted.) Pepe-Frazier v. State, 331 Ga. App. 263, 266-267 (2), n. 10 (770 SE2d 654) (2015) (decided under former Evidence Code but noting that “the standard under the former Evidence Code for permitting an expert to offer opinion testimony in a criminal proceeding was retained in Georgia’s new Evidence Code at OCGA § 24-7-707”).


source: Caselaw Access Project

author: Boggs, Judge.

license: Public Domain

text:
    A15A1284.
    In the Interest of N. T., a child.
    (780 SE2d 416)
   Boggs, Judge.

The father of now seven-year-old N. T. appeals from the juvenile court order terminating his parental rights to the child. We hold that termination of the father’s parental rights was premature, and therefore reverse.

In considering the [father]’s appeal, we view the evidence in the light most favorable to the juvenile court’s disposition and determine whether any rational trier of fact could have found by clear and convincing evidence that the [father]’s right to custody should have been terminated. We neither weigh the evidence nor determine the credibility of any witnesses, but instead defer to the juvenile court’s findings of fact.

(Citation and punctuation omitted.) In the Interest of A. B., 311 Ga. App. 629 (716 SE2d 755) (2011).

So viewed, the evidence showed that in June 2007, the father was released upon serving a sentence following his guilty plea to attempted robbery. The father claimed that he did not attempt to rob the victim, and that the victim only made the accusation after the father hurt him for punching his then-wife in the face. In July 2007, the father met another woman, and N. T. was conceived shortly thereafter. In September 2007, however, he was incarcerated for a parole violation for communicating with his estranged wife. N. T. was born on April 30, 2008 during the father’s incarceration.

In September 2008, when N. T. was five months old, the father was released, but was again incarcerated a day later for violation of parole after being accused of biting his estranged wife. He claimed that she made the false allegation upon discovering that he had fathered a child with another woman.

During the father’s incarceration, the mother and N. T. moved to Georgia, but later returned to New York. In September 2010, when N. T. was 30 months old, the father was released and began working for a temporary service. In October 2010, he filed for, and subsequently received, joint custody of N. T.

From October 2010 to February 2011, the father remained in New York with N. T. and his mother, and cared for the child. But in February 2011, he was again arrested for a parole violation. The mother alleged that the father “wanted [her] cell phone to look at porn,” and when she refused, he “wrestled me for the phone. He broke the back door. I called police. I had bruises on my legs.” The father claimed that he was arrested because of accusations made by the mother in retaliation for his calling child protective services upon discovering her doing drugs. The father explained that soon after his arrest, the mother again took N. T. to Georgia and remained there.

In May 2011, while the father remained incarcerated, a Georgia juvenile court entered an order for shelter care for N. T. and his half-sibling J. T., following the mother’s request that they he placed in DFCS care because she did not have housing and could not provide for them. On May 11, 2011, the juvenile court entered orders finding that the children were deprived and granting DFCS temporary custody of them. The court issued an order directing DFCS to establish a case plan that required the father to legitimate N. T., resolve his legal issues, and demonstrate his ability and willingness to parent the child.

In May 2012, DFCS agreed to set up phone visits so that the father could talk with N. T. It was at this time that the father was notified that his case plan had been updated since he had provided proof of legitimation, and that the new goals for reunification were for him to provide stable housing and income (although he was still incarcerated), and “[c]omplete psychological and assessments and follow all recommendations.” The case plan report indicates that the father was also required to complete a substance abuse assessment, a parental fitness assessment, and a domestic violence assessment, all of which he completed.

In his communication with DFCS, the father expressed concern about an injury to N. T.’s leg while in foster care, and requested that the foster parents not feed him pork. The father was also concerned that N. T. had been molested. A detective testified that he investigated the father’s claim that N. T. told him he had been molested, but that based upon N. T.’s failure to disclose sexual abuse during a forensic interview, the sheriff’s department would not conduct any further investigation. The DFCS investigator also testified that she found no evidence of abuse.

An August 2012 case plan report indicated that the father had legitimated N. T. and that the other plan goals were ongoing. The report also noted that the father had been writing to N. T. and sending him drawings, and that he “will have phone visitation with his son.” The father was released in October 2012 following the grant of his petition for writ of habeas corpus. The habeas court concluded that the father was denied his statutory and constitutional rights to confront and cross-examine the mother about the allegations leading to his arrest for violation of parole in February 2011. Uponhis release, he completed a job training program as well as a parenting class in New York.

On January 3, 2013, DFCS filed a petition for termination of parental rights. On January 24, 2013, because the father was prohibited from leaving the State of New York until March 21, 2013, the juvenile court ordered the father to complete a psychological evaluation and bonding assessment as soon after that date as possible. The father was released from parole in March 2013, and the same week of his release made a trip to Georgia to see N. T. At that time N. T. had been in the custody of DFCS for nearly two years. The father applied for housing and sought employment in Chattanooga, Tennessee, just across the Georgia state line from Walker County where N. T. resided with his foster parents. There he completed a program to aid in finding stable housing and employment. He also began supervised visits with N. T. during this time. The father testified that he submitted several job applications but was never interviewed, and that he had to cancel the only interview he was given because he had to be in court. Although he was advised to stay in Chattanooga, he claimed a lack of employment opportunities there and moved to Texas to live with his brother. The father moved into his brother’s home in April 2013 and immediately found employment.

On April 6, 2013, the juvenile court issued an order of adjudication and disposition in which it found that the causes of deprivation as to the father were unstable housing and failure to provide adequate support for the child due to unstable or irregular employment. The court ordered that custody of N. T. remain with DFCS, and that the permanency plan was reunification:

The facts supporting continued efforts toward reunification are: the Father was recently released from prison. It’s too early to specify a time certain for reunification because: parents have not completed their case plans. The Court finds that the concurrent permanency plan for the child is: Adoption following Termination of Parental Rights.

A September 2013 case plan report noted that the father had completed all assessments, and that he had given copies of check stubs from his employment in Texas to his attorney and to DFCS, that he had given “paperwork to his attorney and the department to show that he is no longer on probation or under parole,” that he had weekly phone visitation with N. T. and when he “is in town he is given an opportunity to have a supervised visitation with [N. T.].” On the same date, the juvenile court entered a supplemental order again noting that the concurrent permanency plan was for reunification and adoption. Subsequently, on October 23,2013, the mother surrendered her parental rights to N. T.

While in Texas, the father suffered a hernia injury while lifting a treadmill. After being evaluated by doctors, he was told that he needed surgery to repair the injury. After he experienced difficulty getting medical insurance in Texas, he moved to New Jersey to obtain medical insurance. The father left Texas about 30 days before the January 30-February 4, 2014 termination hearing.

At the time of the hearing, the father had lived with the cousin in New Jersey for 30 days and was employed as a pizza delivery driver. He stated that he understood that this cousin could not be approved for N. T.’s placement because she had a felony conviction. The father explained that once he received medical care he plans to move back to Texas: “That’s where basically all my family’s at. I have resources out there in Texas. I have a lot of resources. With my CDL license in Texas, I know I can get a good job.” The father testified that once he obtained his hernia surgery in New Jersey, he will complete the six to eight-week CDL tractor trailer training course he had registered for there and expected to be employed by late spring, a few months following the hearing. He testified further that each time he comes to Georgia for a proceeding in juvenile court, he visits N. T., but that it’s expensive for him to get transportation to and from the state.

The father explained that the only financial support he has provided to N. T. was in the form of “little gifts, a little clothing. I’ve been doing that. And while I was in prison, it wasn’t much, but I wrote [N. T], like, twice a month, sent him little handkerchiefs, pictures.” He stated he has provided shoes, food, and clothing for N. T. since his release. The father also purchased birthday and Christmas gifts for N. T. He claimed that in May 2012, a Georgia “judge gave [him] a court order for [him] not to pay any child support for a period of two years,” and directed him to pay medical insurance:

And when I got out,... I called Mr. Gary Cline. [] Gary Cline said, No, you do not have to get medical insurance because [N. T] already has medical insurance. Then I wanted to send [N. T] some money and I wanted to send the foster parents some money, and then Mr. Gary Cline said, No, please do not send any money. The most you could probably send is $5 and I’ll take a picture of [N. T] holding the $5. That way you’ll know that he got it.

A DFCS caseworker assigned to N. T.’s case testified that she arranged for the father to have phone calls with N. T. while he was incarcerated beginning in July 2012. She explained that “[N. T] had a little bit of trouble adjusting to the phone calls” and that he would cry and become upset and did not want to talk to his father in the beginning. But over time, N. T. began participating and the calls were longer in duration. She explained that the father would send N. T. letters and drawings during his incarceration. The executive director of a supervised visitation program testified that the father visited N. T. in person seven times beginning in June 2013, and that since that time he also had 28 phone visits with N. T. out of the 30 phone visits scheduled. Another employee of the supervised visitation program noted that while N. T. stated during phone calls that he wanted the father to come for a visit, she believed that his desire for a visit was due to his desire to play on the playground and get gifts and money from the father. But she acknowledged that over the past seven or eight months following the father’s release, he and “[N. T] are much closer than they were in the beginning.”

Another caseworker testified that in April 2013, at the request of the father, she completed an “ICPC packet” to assess the home of the father’s brother for placement of N. T. She explained that DFCS had generally approved the brother’s home in Texas for placement of N. T., but not for placement there with the father because he was currently granted only supervised visitation. The caseworker explained further that the father provided her proof of income on one occasion in 2013 when he lived in Texas, but had not provided her with any recent proof of income. She stated that DFCS would be seeking to place N. T. for adoption by the foster parents, who expressed a desire to adopt him.

During an in camera interview at the termination hearing, the following colloquy took place between N. T., then five years old, and the trial court:

THE COURT: He asked you if you wanted to go to Texas with him?
[N. T.]: (Witness moved head up and down.) I have to ask the judge. I do want to.
THE COURT: Do you want to leave who you call your daddy?
[N. T.]: Uh-huh.
THE COURT: Huh? Do you like living with your daddy or you like living with [the father]?
[N. T.]: [the father],
THE COURT: Do what?
[N. T.]: [the father],
THE COURT: Why is that?
[N. T.]: Because I love him.
THE COURT: You love him?
[N. T.]: Uh-huh.
THE COURT: Why do you love him?
[N. T]: Because I do because he’s my dad.

A social worker testified that when she asked N. T. if he wanted to go and live with his father, N. T. responded that he did. When she explained that living with the father meant he would not be with his foster family, he “became teary-eyed” and said he did not want to go. The foster mother testified that N. T. was placed in her home in June 2011 and that by March 2013 a parent/child relationship was solidly in place. She explained that she and her husband are “ready to give [N. T.] a forever home.” Her husband, the foster father, did not testify.

A clinical psychologist conducted a bonding assessment for N. T. and the father in March 2013. She concluded that N. T. got comfortable with the father “but there was never a — from my observation the level of bonding that there was with the foster parents.” She acknowledged, however that “there never really could be because of the intensity of time spent between the foster parents and [the father].” She stated further that N. T.’s needs are being met by the foster parents, not the father. While she testified that the father’s “instability is so strong . . . , I would not put a child in his care,” she confirmed that nothing indicated that the father should not have future contact with N. T., and that she did not know if future contact would be detrimental. She stated that early on there was an indication that the relationship between the father and N. T. was detrimental to N. T. because he was afraid and “very uncomfortable,” but admitted she really did not have enough information to make that assumption at the time of the hearing and that she would need an updated assessment. She also stated that even if the father obtained stable housing and employment in the future, she would not change her recommendation that he could not parent N. T. The psychologist’s opinion was based upon her belief that N. T. needed stability and not to be in limbo: “children need to know who their parents are or foster parents are to become adoptive parents and the longer instability continues the more unsettled they are.” She could not answer the question of whether breaking contact with the father would be harmful to N. T. without further evaluation of the child.

The psychologist prepared an updated bonding assessment for N. T. and the father based upon 45 minutes of observation the day before her testimony on the last day of the hearing. She explained that N. T. knows that “[h]e has two dads,” that he is comfortable with the father, but that “[N. T.] does not show bonding signals back to him very much” and does not show the father “that much affection.” She explained further that the bond between N. T. and the father is not a parental bond, and that N. T. has a strong parental bond with his foster parents. She stated further: “I don’t want to diminish the bond with [the father]. He is trying very hard to be part of this child’s life and [N. T.] knows that. Okay. But it’s more like a play date. They go and they play, and [the father] works hard at that and [N. T.] responds to that.” She concluded that removing N. T. from the custody of his foster parents would be traumatizing for the child and that he needs to remain with them for his emotional well-being. The psychologist admitted however, that the bond between N. T. and the father was stronger than it was in the beginning and that N. T. views him as his “other father.” And when asked if it would be detrimental to N. T. if the relationship with the father was cut off, she responded: “In the best interest of [N. T.] I think it would be appropriate to have some contact, but having said that, I think it needs to be at the discretion of the — whoever’s going to be his long term parents.” The guardian ad litem submitted a letter to the court listing when he had observed N. T. and what documents he had reviewed in the case, and summarily recommended that the father’s parental rights be terminated.

In a 44-page order, the juvenile court terminated the father’s parental rights to N. T. The father filed a motion for new trial asserting in part that his trial counsel was ineffective. At the hearing on the motion in November 2014, eight months after his parental rights were terminated, the father explained that he was a professional driver with TransAm trucking, had his “first operation” for his hernia, and would have a court hearing for child support in December 2014. The juvenile court denied the motion concluding that the father received effective assistance of counsel, and again focused upon the lack of a parental bond between the father and N. T. and the strong bond the child had with his foster parents. The court commended the father on his accomplishments since the termination hearing finding that “this progress was not likely under the evidence at that time,” and concluded that because the father would likely not be able to develop a meaningful, supportive parental bond with N. T., harm would come to the child if he were returned to his father.

The father appeals, challenging the sufficiency of the evidence, specifically, the sufficiency of the evidence that the cause of the deprivation is likely to continue or will cause N. T. serious physical, mental, emotional or moral harm.

The new Juvenile Code, which became effective on January 1, 2014, applies to those juvenile proceedings commenced on or after that date. See Ga. L. 2013, p. 294, § 5-1. Thus, the former Code applies here because the order for shelter care and deprivation order were entered in May 2011. See In the Interest of F. A. G. R., 328 Ga. App. 88, 89, n. 1 (761 SE2d 512) (2014).

Under the former Code, the termination of parental rights case involves a two-step analysis. First, there must be a finding of parental misconduct or inability, which requires clear and convincing evidence that: (1) the child is deprived; (2) the lack of proper parental care or control is the cause of the deprivation; (3) the cause of the deprivation is likely to continue; and (4) continued deprivation is likely to cause serious physical, mental, emotional, or moral harm to the child. See former OCGA § 15-11-94 (b) (4) (A) (i)-(iv). If these four factors are found to exist, then the juvenile court must ascertain whether termination of parental rights is in the best interest of the child, considering his or her physical, mental, emotional, and moral condition and needs, including the need for a secure, stable home. See former OCGA § 15-11-94 (a); In the Interest of A. G., 293 Ga. App. 383 (667 SE2d 176) (2008).

1. Deprivation. The father did not appeal the juvenile court orders finding N. T. to be deprived. He is therefore bound by the court’s findings with regard to deprivation. See In the Interest of I. S., 278 Ga. 859, 861, n. 6 (607 SE2d 546) (2005). The most recent deprivation order found N. T. deprived as to the father because of the father’s unstable housing and failure to provide adequate support for the child due to unstable or irregular employment.

2. Lack of proper parental care and control is the cause of the deprivation. In determining whether a child is without proper parental care and control, the juvenile court is entitled to consider the factors outlined in former OCGA § 15-11-94 (b) (4) (B):

(i) A medically verifiable deficiency of the parent’s physical, mental, or emotional health of such duration or nature as to render the parent unable to provide adequately for the physical, mental, emotional, or moral condition and needs of the child; (ii) Excessive use of or history of chronic unrehabilitated abuse of intoxicating liquors or narcotic or dangerous drugs or controlled substances with the effect of rendering the parent incapable of providing adequately for the physical, mental, emotional, or moral condition and needs of the child; (iii) Conviction of the parent of a felony and imprisonment therefor which has a demonstrable negative effect on the quality of the parent-child relationship; (iv) Egregious conduct or evidence of past egregious conduct of the parent toward the child or toward another child of a physically, emotionally, or sexually cruel or abusive nature; (v) Physical, mental, or emotional neglect of the child or evidence of past physical, mental, or emotional neglect of the child or of another child by the parent; and (vi) Injury or death of a sibling under circumstances which constitute substantial evidence that such injury or death resulted from parental neglect or abuse.

Here, the juvenile court found no clear and convincing evidence with regard to factors (i), (ii), (iv), and (vi). The court did find, however, that as outlined in OCGA § 15-11-94 (b) (4) (B) (iii) and (v), that the father’s history of incarceration, lasting about 48 months of N. T.’s life, had a demonstrable negative effect on the parent-child relationship, and his failure to parent, rear, or support his now-adult children, supported a finding that the lack of proper parental care and control is the cause of N. T.’s deprivation.

OCGA § 15-11-94 (b) (4) (C) provides that in addition to the considerations in subparagraph (B),

where the child is not in the custody of the parent who is the subject of the proceedings, in determining whether the child is without proper parental care and control, the court shall consider, without being limited to, whether the parent without justifiable cause has failed significantly for a period of one year or longer prior to the filing of the petition for termination of parental rights: (i) To develop and maintain a parental bond with the child in a meaningful, supportive manner; (ii) To provide for the care and support of the child as required by law or judicial decree; and (iii) To comply with a court ordered plan designed to reunite the child with the parent or parents [.]

In considering these additional factors, the juvenile court found that the father failed to establish a parental bond with N. T, and that the foster parents had a strong parental bond with the child, and that the father failed to demonstrate an ability to parent N. T. as required by his case plan. The court noted that although the father completed parent training and a course on strategies for obtaining and sustaining employment, he chose to leave Chattanooga, after only a few weeks, where he was close in proximity to N. T., and move to Texas exemplifying an “instability that has resulted in his inability to parent [N. T.] at this time.”

Under these circumstances, clear and convincing evidence supported the juvenile court’s conclusion that the father’s lack of proper parental care and control caused N. T.’s deprivation. See, e.g., In the Interest of A. G., supra, 293 Ga. App. at 386 (2) (mother’s failure to, among other things, take the steps necessary to develop a parental bond with children, failure to finish her GED, develop job skills, and maintain employment provided clear and convincing evidence that her lack of parental care and control was the cause of deprivation).

3. The cause of the deprivation is likely to continue. The juvenile court found that the evidence of the father’s past conduct “convinced the Court that the deprivation will likely continue.”

Although it is well settled that a juvenile court may consider the past conduct of the parent in determining whether the conditions of deprivation are likely to continue, it is equally true that evidence of past unfitness, standing alone, is insufficient to terminate the rights of a parent in her natural child; clear and convincing evidence of present unfitness is required.

(Citations, punctuation and emphasis omitted.) In the Interest of K. D. E., 288 Ga. App. 520, 523-524 (1) (654 SE2d 651) (2007).

The juvenile court found that

[the father] has made an effort to stabilize his life after being released from prison and to form a meaningful parental bond with [N. T] with minimal success. His criminal history has prevented him from obtaining and maintaining sufficient income to provide for the basic necessities of life for [N. T.], and it continues to do so. Although his parole is now completed, [the father] is still in contact with the same individuals that he associated with when his crimes were committed. He is living with [a relative] who has a felony record for distributing illegal drugs. He has resided in a shelter, a rental home that did not work out, a motel, his brother and his sister in the last 10 months. He admits to still being in regular contact with the same individuals who he contends maliciously caused his parole to be revoked at least 2 times. It is highly unlikely that he will ever be able to form a parental bond with [N. T.] of a meaningful and supportive nature beyond the relationship that they now enjoy.

But the question is whether the causes of deprivation are likely to continue. Specifically, whether there is clear and convincing evidence that the father will continue to have unstable housing and continue to fail to provide adequate support for N. T. due to unstable or irregular employment. At the time of the hearing, the father had admittedly for the past 30 days resided with a cousin who had a criminal conviction for distributing drugs as the juvenile court found. But as the father testified, he relocated to New Jersey for the purpose of getting medical care for his hernia, care he claimed he could not receive in Texas where he had lived with his brother for about eight months, and during which time he was successfully employed. The father stated that he understood that his cousin’s home would not be approved as a suitable home for N. T., but explained that he desired to have his brother’s home in Texas approved once he returned after undergoing surgery. While the father did not provide court-ordered child support or any other financial support because he claimed that he was told not to send money, he consistently provided the child with clothing, gifts and food. Even while the father was incarcerated, he sent N. T. letters, drawings and handkerchiefs.

Although a parent’s obligation to support h[is] child exists, even in the absence of an order directing support, we do not believe that this failure was sufficient to support a finding that the deprivation was likely to continue in light of the [father’s] other progress on h[is] case plan. .. . And nothing in the record indicates that [ ]he might not be able to contribute at least a de minimis monetary amount toward h[is] child’s support in the future.

In the Interest of D. J., 320 Ga. App. 247, 255-256 (739 SE2d 730) (2013) (physical precedent only). The juvenile court’s focus mostly on the father’s status at the time of the termination hearing does not establish clear and convincing evidence that the cause of deprivation is likely to continue, in light of his efforts while he was incarcerated and during the other eight months following his release. At the time of the hearing, he was employed as a pizza delivery driver, had temporary housing in order to undergo a medical procedure, and provided the child with de minimis support. And prior to his move to New Jersey, in the months following his release from incarceration, he maintained housing with his brother, was employed, and provided DFCS with proof of that employment, attempted to bond with N. T. with in-person and phone visits, and provided gifts, some food, and clothing to the child.

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

(Citations, punctuation and footnote omitted; emphasis supplied.) In the Interest of C. S., 319 Ga. App. 138, 148(1) (735 SE2d 140) (2012) (insufficient evidence that cause of deprivation was likely to continue where although father did not at all times act in an exemplary manner, case did not only consist of positive promises and father’s effort to maintain a hond with his child was consistent throughout); see also In the Interest of R. C. M., 284 Ga. App. 791, 799-800 (III) (3) (645 SE2d 363) (2007) (where father never abused or neglected children, children became deprived when he was arrested, case plan included goals father could not achieve while incarcerated, and petition to terminate was filed while father was still incarcerated before he had a real opportunity to complete case plan goals, juvenile court’s findings that cause of deprivation was likely to continue was not supported by clear and convincing evidence); In the Interest of K. J., 226 Ga. App. 303, 307-308 (2) (b) (486 SE2d 899) (1997) (father and child had positive relationship to the extent permitted by father’s incarceration and no evidence presented that child likely to suffer serious harm in absence of termination of parental rights).

4. Continued deprivation is likely to cause serious physical, mental, emotional, or moral harm to the child. Notwithstanding our holding in Division 3 above, we hold further that there is insufficient evidence that continued deprivation is likely to cause N. T. serious physical, mental, emotional or moral harm. The juvenile court found that because the father had no parental bond with N. T., the child was thriving in foster care, and the foster parents want to adopt him, N. T. would suffer emotional harm the longer his life was in limbo. But “the juvenile court has no authority to sever the natural parent-child relationship simply because it believes the child would be better off with the foster family.” In the Interest of J. V. J., 329 Ga. App. 421, 428 (765 SE2d 389) (2014). In relying on the testimony of the clinical psychologist, the trial court found:

If continued contact with the father prevented [the foster parents’] adoption of [N. T.], it would be devastating to [N. T.]. She noted that it is very important for [N. T.] to have permanency with the foster parents deciding if he should have contact with his father, otherwise the continued contact with the father would be confusing, create anxiety and could cause decomposition manifested by [N. T.] becoming unsettled, acting out and becoming very upset.

But this finding is an inaccurate summary of the psychologist’s testimony. She testified that if the bond was broken between N. T. and the foster parents, it would be “highly traumatic causing depression, upset, anxiety and all the other things that come out of breaking that.” In fact, when asked if she thought it would be detrimental for N. T. to have contact with the father, the psychologist responded, “that is a very good question and it’s an important question and it is one that I have been thinking about. In the best interest of [N. T.] I think it would be appropriate to have some contact____I think it needs to be at the discretion of the — whoever’s going to be his long-term parents.” On redirect, the psychologist explained that continued contact would be devastating to N. T. if it meant that N. T. would have to be removed from the foster parents’ home, and that if N. T. learns that there is a possibility of being removed from their care he “could begin acting out and just be very upset.” There was no evidence presented that the father’s present relationship with N. T. was detrimental to his well-being. See In the Interest of S. O. C., 332 Ga. App. 738, 746 (3) (774 SE2d 785) (2015).

As the Supreme Court of the United States so eloquently explained in the seminal decision of Santosky v. Kramer, [455 U. S. 745 (102 SCt 1388, 71 LE2d 599) (1982)], the “fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State.”

Decided November 19, 2015.

(Citations, punctuation and footnotes omitted.) Id. at 746-747 (3).

Here DFCS filed a petition to terminate the father’s parental rights in January 2013, after his release via the grant of a petition for writ of habeas corpus but before March 2013, when he was allowed to leave the State of New York. This gave the father nine months to complete his case plan, the most recent report of which (October 2013) stated that the goals were either ongoing or achieved. As the juvenile court acknowledged, the father “has been consistent and persistent in his effort to get to know [N. T.], beginning while he was incarcerated through the present date.” Although the evidence showed that the bond was not a parental bond, there was no evidence presented that continued efforts to reunify N. T. with his father would cause serious physical, mental, emotional, or moral harm to the child.

“While we are reluctant to reverse the juvenile court’s determination, no judicial determination is more drastic than the permanent severing of the parent-child relationship [,]” (citations, punctuation and footnote omitted) In the Interest of C. S., supra, 319 Ga. App. at 148 (1), and “it must be scrutinized ‘deliberately and exercised most cautiously.’ ” (Citations, punctuation and footnotes omitted.) In the Interest of J. V. J., supra, 329 Ga. App. at 429. The evidence below did not clearly and convincingly establish that the cause of N. T.’s deprivation was likely to continue or that it would cause the child serious physical, mental, emotional or moral harm. Accordingly, we reverse the judgment and remand the case for establishment of a reunification plan for the father, subject to whatever disposition is warranted by future events and those occurring since the termination hearing. See In the Interest of C. S., supra, 319 Ga. App. at 148 (l). We express no opinion about whether termination might be warranted based upon future conduct.

Judgment reversed.

Doyle, C. J., and Phipps, P. J., concur.

Emily J. Matson, Timothy J. Crouch, for appellant.

Samuel S. Olens, Attorney General, Shalen S. Nelson, Senior Assistant Attorney General, Calandra A. Harps, Steven M. Ellis, Assistant Attorneys General, for appellee.

       We granted the father’s application for discretionary appeal. Prior to the termination hearing, the mother surrendered her parental rights to N. T. and his half- brother J. T. As such, the mother is not a party to this appeal.

       This was the father’s second wife. The father testified that he was first married from 1984 to 1996 and that he had two children, twins, during this marriage, who are now adults. He explained that the twins lived with him and his first wife from the time they were born in 1985 until 1993 when their mother moved out and took the children to Georgia. He admitted that he had not seen the children very often over the years, but stated that he last saw them in December 2013.

       A New York court subsequently granted the father’s petition for writ of habeas corpus. See page 734, infra. That court found that the “dissimilarities” between the mother’s injuries observed by two police officers and her statement to police were significant. There was also evidence presented that drugs were present in the mother’s home.

       N. T. told the father that his foster father, “likes kissing my no-no box.” A DFCS investigator testified that N. T. told her “that a child at daycare had touched his no-no square and reported that that was reported to the daycare. He didn’t go anywhere as far as any adults . . . touching him or kissing him or anything in his private area.”

       Cline was N. T.’s case manager from the summer of 2013 to February 2014.

       Counsel for N. T. did not appear at the hearing hut submitted a letter to the court stating that he “would be opposed to a new . . . trial.”

       Because we hold that the evidence does not support a determination that the cause of deprivation is likely to continue and that N. T. would he seriously harmed by the deprivation, we do not reach the inquiry concerning the best interests of the child.


author: BARNES, Presiding Judge.

text:
    A15A1398.
    ROBINSON v. METROPOLITAN ATLANTA RAPID TRANSIT AUTHORITY et al.
    (780 SE2d 400)
   BARNES, Presiding Judge.

Alex Robinson appeals from the trial court’s order granting summary judgment to the Metropolitan Atlanta Rapid Transit Authority (“MARTA”), Officer Paris Swinson, Officer V. Samuel, and Officer J. Boggs (hereinafter, collectively “MARTA”). Robinson filed the underlying complaint against MARTA and the officers for personal injury caused by the officers’ alleged use of excessive force, MARTA’s failure to properly train and supervise the officers, and false arrest. In granting MARTA’s motion for summary judgment, the trial court found that the officers were entitled to qualified immunity for all claims arising under 42 USC § 1983, that MARTA was not liable for any supervisory claims under 42 USC § 1983, and that Robinson had failed to state a false arrest claim.

On appeal, Robinson contends that the trial court erred in granting summary judgment to MARTA because there were issues of material fact as to whether there existed probable cause for the officers to arrest him, the trial court erred in finding that the officers were entitled to qualified immunity because the force exhibited on Robinson was excessive and unwarranted, and summary judgment was not properly granted on the negligent supervision and training claim because MARTA had concealed evidence pertaining to Robinson’s arrest. Upon our review, we affirm.

On appeal from the grant of summary judgment, this Court conducts a de novo review of the evidence to determine whether there is a genuine issue of material fact and whether the undisputed facts, viewed in the light most favorable to the nonmoving party, warrant judgment as a matter of law.

(Citation omitted.) Donovan v. State Farm Mut. Auto. Ins. Co., 329 Ga. App. 609, 610 (765 SE2d 755) (2014). On December 31, 2011, Robinson, an Atlanta police officer, was off duty and celebrating New Year’s Eve near Underground Atlanta at the Peach Drop. Robinson became uncomfortable when he smelled burning marijuana, heard gunshots coming from nearby, and the size of the crowd increased, and decided to leave. At approximately 11:45 p.m., as he and his companion walked through the crowd toward the Five Points MARTA station located near a MARTA police precinct, a man, later identified as Christopher Williams, blocked him and told him that “no one’s getting past me if you’re not the [expletive] police.” Robinson told him that he was a police officer, but Williams refused to let the couple pass. When Williams, who appeared intoxicated, turned to argue with another person, Robinson attempted to slip past him, but Williams hit Robinson in the back. Robinson and Williams exchanged words, and as Robinson walked away, Williams followed the couple and hit Robinson harder. Robinson attempted to walk away again, but Williams grabbed his jacket and Robinson hit him, causing Williams to fall to the ground.

Robinson recalled that, with no warning and within “a couple of seconds,” he was tased by Officer Samuel. Robinson eventually fell to the ground after being tased, and continued to be tased for “three to four seconds.” When the taser was turned off, three or four officers piled on top of Robinson, which caused his face to hit the pavement. After Robinson was handcuffed, as he walked to the MARTA precinct approximately 20 yards away, one of the officers twisted Robinson’s wrist. Robinson was later released and not charged with any offense. Williams was also handcuffed, arrested and later charged with disorderly conduct. Although Robinson told officers that he was not injured and did not require medical treatment, he later alleged that he had suffered injuries to his front left rib cage, right wrist, bruising to his face, and a fractured right patella.

Officer Boggs and Officer Swinson were both on the scene and involved in Robinson’s arrest. Officer Swinson did not see the fight between Robinson and Williams, but responded to secure the scene and help out other officers after getting the call from dispatch of “a 29 fight.” He also escorted Robinson to the precinct after Robinson was arrested. From his position on a nearby wall, Officer Boggs saw Williams grab Robinson by the throat and throw him to the ground, but he “did not know who the primary aggressor was.” Officer Samuel did not witness how the altercation started, but “witnessed the fight itself.”

1. Robinson first contends that the trial court erred in granting MARTA’s motion for summary judgment because issues of material fact exist as to whether there was probable cause to arrest him. Robinson alleges that his due process rights were violated under 42 USC § 1983 because he was arrested without probable cause.

“[C]ourts must consider the issue of a government employee’s qualified immunity from liability as the threshold issue in a suit against the officer in his personal capacity.” (Citation and punctuation omitted.) Anderson v. Cobb, 258 Ga. App. 159, 160 (2) (573 SE2d 417) (2002).

Qualified immunity gives government officials performing discretionary functions complete protection from individual claims brought pursuant to 42 USC § 1983, if their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Whether qualified immunity protects an official from suit is a question of law. We review the trial court’s ruling on summary judgment de novo, viewing the facts in the light most favorable to the nonmoving party.

(Citations and punctuation omitted.) Whitten v. Wooten, 295 Ga. App. 281, 283 (671 SE2d 317) (2008). See also Thomas v. Holt, 221 Ga. App. 345, 347-348 (1) (471 SE2d 300) (1996).

Robinson does not dispute that the officers were performing a discretionary function when they arrested him the night in question. He claims that there are multiple issues of material fact as to the probable cause for the officers to arrest him.

Probable cause exists if the facts and circumstances within the officer’s knowledge, of which he or she has reasonably trustworthy information, would cause a prudent person to believe, under the circumstances shown, that the suspect has committed ... an offense. However, the appropriate inquiry for qualified immunity is not whether there was probable cause, but whether there was “arguable” probable cause to arrest. In other words, we must determine whether reasonable officers in the same circumstances and possessing the same knowledge as the Defendants could have believed that probable cause existed to arrest.

(Citations, punctuation and emphasis omitted.) Pickens v. Hollowell, 59 F3d 1203, 1206 (II) (A) (11th Cir. 1995).

Whether probable cause existed for an arrest is a jury issue to the extent that a dispute exists as to the facts known to the officer relevant to the determination of probable cause. Where the facts known to the officer are not disputed, probable cause is an issue of law for the court. . . . [T]he standard does not require that officers correctly resolve conflicting evidence or that their determinations of credibility, were, in retrospect, accurate.

(Citations and punctuation omitted.) Kline v. KDB, Inc., 295 Ga. App. 789, 792 (1) (673 SE2d 516) (2009).

Pursuant to OCGA § 17-4-20 (a) (2), a law enforcement officer is authorized to make an arrest for a criminal offense without a warrant under the following exigent circumstances:

[If t\he offense is committed in such officer’s presence or within such officer’s immediate knowledge; [if] the offender is endeavoring to escape; [if] the officer has probable cause to believe that an act of family violence, as defined in Code Section 19-13-1, has been committed;. . . [if] the officer has probable cause to believe that an offense involving physical abuse has been committed against a vulnerable adult, who shall be for the purpose of this subsection a person 18 years old or older who is unable to protect himself or herself from physical or mental abuse because of a physical or mental impairment; or [for] other cause if there is likely to be failure of justice for want of a judicial officer to issue a warrant.

In Georgia, a person commits simple battery when he either “(1) Intentionally makes physical contact of an insulting or provoking nature with the person of another; or (2) Intentionally causes physical harm to another.” OCGA § 16-5-23 (a). Given the circumstances known to the officers at the time they observed the incident — that Robinson was involved in a physical altercation in an extremely crowded venue that included families with children only minutes before midnight on New Year’s Eve — the officers had probable cause to lawfully arrest Robinson for simple battery, if not other charges. Although Robinson maintains that he acted in self-defense and was not a willing participant in the fight, but an unarmed victim,

arresting officers, in deciding whether probable cause exists, are not required to sift through conflicting evidence or resolve issues of credibility, so long as the totality of the circumstances present a sufficient basis for believing that an offense has been committed.

Dahl v. Holley, 312 F3d 1228, 1234 (11th Cir. 2002). See also Montoute v. Carr, 114 F3d 181, 184 (11th Cir. 1997).

2. Robinson also asserts that the trial court erred in granting MARTA summary judgment because the force utilized in tasing him was excessive and unwarranted. He maintains that the officers were not entitled to qualified immunity because he was not acting in a violent or hostile manner before he was tased and physically attacked by the officers.

The threshold inquiry is whether, construing the facts in favor of [Robinson], the record shows that [the officers’] actions constituted excessive force in violation of the Fourth Amendment. A claim that an officer used excessive force during an arrest is properly analyzed under the Fourth Amendment’s objective reasonableness standard.

(Citations and punctuation omitted.) Kline v. KDB, Inc., 295 Ga. App. at 794. In such a claim, “an arresting officer is entitled to qualified immunity if the officer’s actions were objectively reasonable — in other words, if a reasonable officer under the same circumstances would have believed the force used was not excessive.” Whitten v. Wooten, 295 Ga. App. at 283. See also Bell v. City of Albany, 210 Ga. App. 371, 374 (436 SE2d 87) (1993).

[T]he test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application!;] however, its proper application requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.

(Emphasis supplied.) Id. at 374-375. Moreover,

[t]he reasonableness of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight. . . . With respect to a claim of excessive force, the same standard of reasonableness at the moment applies: Not every push or shove, even if it may later seem unnecessary in the peace of a judge’s chambers, violates the Fourth Amendment. The calculus of reasonableness must embody allowance for the fact that police officers are often forced to make split-second judgments — in circumstances that are tense, uncertain, and rapidly evolving — about the amount of force that is necessary in a particular situation.

Decided November 19, 2015.

Anitra R. Price, for appellant.

Applebaum & Henefeld, Paul A. Henefeld, for appellee.

(Citations and punctuation omitted.) Id. at 375. “[T]he reasonableness inquiry in an excessive force case is an objective one” and “if a reasonable officer under the same circumstances would have acted similarly, then [the officers are] entitled to the shield of qualified immunity.” Id.

In these circumstances, it would not have been clearly evident to a reasonable police officer that the officer’s use of force was excessive or unreasonable. Given that there was no evidence that Officer Samuel knew who instigated the fight, under the extreme circumstances, including the time, place, and the need to exercise quick measures to control a violent altercation that may or may not have escalated, the officers were entitled to qualified immunity for their actions. Thus, the trial court did not err in so finding in its grant of MARTA’s motion for summary judgment.

3. Robinson’s claim that MARTA is liable under 42 USC § 1983 for its negligent training and supervision of the officers is also meritless. “In the absence of any Fourth Amendment violation by [the officers] during the arrest, there is no basis for [Robinson’s] claim against [MARTA] under 42 USC § 19&3.” Kline v. KDB, Inc., 295 Ga. App. at 795 (3). See also Bontwell v. Dept. of Corrections, 226 Ga. App. 524, 528-529 (5) (486 SE2d 917) (1997).

Accordingly, the trial court correctly granted summary judgment in favor of MARTA on this claim.

Judgment affirmed.

Ray and McMillian, JJ., concur.

       According to the MARTA Police Department’s policy, tasing is “analogous to oleoresin capsicum (OC) spray on the use of force continuum . . . and involve[s] the same basic justification.” OC is more commonly known as pepper spray. Per the department’s policy, the taser should not be used on handcuffed prisoners, absent certain overt assaultive behavior, on a suspect who does not use violence or force against an officer or another person, in potentially flammable environments, or in an environment where the suspect’s fall could result in death. None of those situations apply here.

       “There is no respondeat superior liability under § 1983; rather, a plaintiff must point to some official policy or custom which resulted in the injury. . . . [Robinson] must prove that [MARTA] deprived him of a constitutional right pursuant to an impermissible or corrupt policy which is intentional and deliberate.” Carter v. Glenn, 243 Ga. App. 544, 545 (1) (533 SE2d 109) (2000).


author: ELLINGTON, Presiding Judge.

text:
    A15A1534.
    COLE v. THE STATE.
    (780 SE2d 406)
   ELLINGTON, Presiding Judge.

Following our grant of her application for interlocutory appeal, Tushanna Cole appeals from the trial court’s order overruling her special demurrer to an indictment charging her with Medicaid fraud and theft by taking. Cole contends that the indictment’s identification of 44 individuals identified therein by their initials was improper, and that the range of dates the crimes were committed, as set forth in the indictment, is unreasonably broad. For the reasons set forth below, we conclude that, as the State could have more narrowly stated the dates on which the crimes were committed, the range of dates set forth in the indictment was overly broad, and reverse.

Cole was indicted in the Superior Court of Clayton County for the offenses of Medicaid fraud, OCGA § 49-4-146.1 (b) (1), and theft by taking, OCGA § 16-8-2. In Count 1, the indictment charged that Cole committed Medicaid fraud in that,

beginning on or about November 1, 2010[,] and continuing through on or about December 27,2013, [she] did unlawfully and intentionally obtain and keep for herself medical assistance payments in an amount greater than that to which she was entitled from the Georgia Medicaid Program by means of a fraudulent scheme [.]

Paragraphs numbered 1 through 7 of Count 1 described the fraudulent scheme. According to the indictment, Cole, who was enrolled as a provider in the Georgia Medicaid program, “submitted numerous false claims to Georgia Medicaid for reimbursement.”

In particular, paragraph 5 provided:

It was part of the fraudulent scheme for the accused to unlawfully obtain and retain medical assistance payments for services not rendered to the patients listed in Exhibit A, incorporated herein by reference, with each line of Exhibit A constituting a separate act. These patients did not receive the extent of services billed.

Paragraph 6 states that “[i]t was also a part of the fraudulent scheme for the accused to obtain reimbursement for services for which there was no documentation to substantiate billing. These services were billed for the recipients identified in Exhibit B with each line of Exhibit B constituting a separate act.” According to the indictment, Georgia Medicaid made payments to Cole in the total amount of $297,831.39 as a result of the fraudulent scheme.

Count 2 charged that Cole committed theft by taking in that, “between on or about November 1, 2010, and continuing through on or about December 27, 2013,” she unlawfully took more than $1,500 from the State of Georgia. According to the indictment, Cole took the money “with the intention of depriving the State of Georgia of said money by and through the acts” described in Count 1.

On the day of her arraignment, Cole filed a “preliminary special demurrer,” which she then amended. Following a hearing, the trial court overruled the special demurrer. The trial court granted a certificate of immediate review of its order, and this Court granted Cole’s application for an interlocutory appeal. On appeal, consistent with her arguments below, Cole contends that the trial court erred in overruling her special demurrer because (1) it was not sufficient for the indictment to identify by their initials the individuals listed in Exhibits “A” and “B” thereto, and (2) the range of dates set forth in the indictment was unreasonably broad.

The true test of the sufficiency of an indictment to withstand a special demurrer is not whether it could have been made more definite and certain, but whether it contains the elements of the offense intended to be charged, and sufficiently apprises the defendant of what [she] must be prepared to meet, and, in case any other proceedings are taken against [her] for a similar offense, whether the record shows with accuracy to what extent [she] may plead a former acquittal or conviction. It is useful to remember that the purpose of the indictment is to allow defendant to prepare [her] defense intelligently and to protect [her] from double jeopardy.

(Citations and punctuation omitted.) State v. English, 276 Ga. 343, 346 (2) (a) (578 SE2d 413) (2003). See Palatini v. State, 333 Ga. App. 523, 524 (774 SE2d 818) (2015) (“By special demurrer, an accused claims, not that the charge in an indictment... is fatally defective and incapable of supporting a conviction . . ., but rather that the charge is imperfect as to form or that the accused is entitled to more information.”) (citations and punctuation omitted).

“We conduct a de novo review of a trial court’s ruling on a special demurrer in order to determine whether the allegations in the indictment are legally sufficient.” (Citation and punctuation omitted.) State v. Godfrey, 309 Ga. App. 234, 239 (3) (709 SE2d 572) (2011). When, as here, we review an indictment before a trial, “we must apply the rule that a defendant who has timely filed a special demurrer is entitled to an indictment perfect in form and substance.” State v. Gamblin, 251 Ga. App. 283, 284 (1) (553 SE2d 866) (2001).

1. Cole contends that the trial court erred in finding that it was sufficient for the indictment to identify the individuals named therein merely by their initials. Exhibit “A” and Exhibit “B” to the indictment, incorporated therein by reference, each contains a list of patients identified by their initials, dates of birth, the last four digits of their Medicaid identification numbers, the first and last dates of service for the patients, and the amount of the alleged overpayment with respect to each patient. According to the indictment, the patients listed in Exhibit “A” are the patients who did not receive the extent of services billed, and the persons listed in Exhibit “B” are the patients for which Cole billed for services for which there was no substantiating documentation. The 44 patients thereby identified are all minors, and the State omitted their full names from the indictment out of a concern that the exhibits referenced “sensitive health information.”

Generally, “if [a charging instrument] charges the defendant with committing a crime against a person, the injured person should be identified in the [charging instrument].” State v. Kenney, 233 Ga. App. 298, 299 (1) (a) (503 SE2d 585) (1998). In this case, however, the indictment does not charge Cole with committing a crime against a person but against the State of Georgia. Indeed, Cole concedes that the patients listed in the exhibits are not the victims of the alleged crimes of Medicaid fraud and theft by taking. Thus, Sellers v. State, 263 Ga. App. 144, 145-146 (587 SE2d 276) (2003), and Driggers v. State, 295 Ga. App. 711, 717 (4) (a) (673 SE2d 95) (2009), which found that an indictment’s identification of a victim by initials was not sufficient to withstand a special demurrer, are distinguishable. The omission of individuals’ names from an indictment is not a ground for sustaining a special demurrer where, as in the case of these patients, the individuals “are only collaterally involved in the alleged offense.” State v. Kenney, 233 Ga. App. at 299 (1) (a).

Further, contrary to Cole’s contention, the indictment did not identify the patients solely by their initials; rather, the inclusion of additional information, that is, each patient’s date of birth and the last four digits of the patients’ unique Medicaid identification number, ensured that each patient was specifically identified. In contrast to Sellers, the record does not show that “the initials . .. could apply to any [person] having [the same] initials.” Sellers v. State, 263 Ga. App. at 146. Notwithstanding its identification of the patients, in part, by their initials, the indictment was sufficient to allow Cole “to prepare [her] defense intelligently and to protect [her] from double jeopardy.” (Citation and punctuation omitted.) State v. English, 276 Ga. at 346 (2) (a). Accordingly, the trial court did not err in finding that the indictment was sufficiently detailed as to the patients’ identities.

2. Cole also contends that the trial court erred in overruling her special demurrer with regard to portions of the indictment that contended that the crimes were committed over a range of 38 months because the specific dates were known to the State. We agree.

Under OCGA § 17-7-54, the form of the indictment shall “state with sufficient certainty the offense and the time and place of committing the same [.]” And as a general rule, “an indictment which fails to allege a specific date on which the crime was committed is not perfect in form and is subject to a timely special demurrer.” (Punctuation and footnote omitted.) State v. Layman, 279 Ga. 340, 340-341 (613 SE2d 639) (2005). This Court recognizes an “exception to this rule where the evidence does not permit the State to identify a single date on which the offense occurred[.]” (Citation and punctuation omitted.) State v. Meeks, 309 Ga. App. 855, 857 (1) (711 SE2d 403) (2011). But “the exception does not apply unless the State first presents evidence to the trial court showing that it cannot more specifically identify the dates of the offenses.” (Citation and punctuation omitted.) Id.

Here, the State presented the testimony of its investigator, Kevin White, in support of its contention that it could not allege a specific date for the commission of the alleged Medicaid fraud and theft by taking. White testified that he reviewed claims constituting “what Ms. Cole would have submitted to Medicaid and what she was paid by Medicaid,” and he compared patient files and patient records with the claims data. As part of the investigation, he reviewed approximately 3,000 claims. According to White, the range of dates covered by the claims was from November 2010 through the end of December 2013. Claims were submitted by Cole “continuously throughout . . . that time frame.”

On cross-examination, White testified that Cole submitted the claims electronically, with each claim submitted for a specific date and a billing amount for that specific date. White agreed that he determined that “some dates were evidence of thefts and some dates [were] not.” White also agreed that he “used those specific dates to come up with a number, $297,831.39.”

White’s testimony suggests that the State could have identified, by date, each of the electronically filed claims that White had found to be acts of Medicaid fraud and theft by taking. The State did not present evidence showing that it could not more specifically identify the date of each criminal act. See State v. Meeks, 309 Ga. App. at 858 (1) (finding that the State failed to demonstrate an inability to narrow the range of dates on which the charged crimes of electronically furnishing obscene material to a minor and contributing to a delinquency of a minor were committed, noting that “[o]rdinarily, the date on which a document is created or saved on a computer can be established, as well as the date on which an e-mail was sent or received.”) (citation omitted). Where a defendant is charged with committing a crime over a range of dates, and the State does not present evidence that it cannot identify the specific dates on which the crime was committed, we have generally found the indictment to be subject to a special demurrer. For example, in State v. Thomas, 331 Ga. App. 220 (770 SE2d 301) (2015), we rejected an argument by the State that, where the alleged theft was made by the use of a credit card, it was sufficient for the indictment to allege the range of dates in which the financial card transactions occurred. See id. at 222 (“[T]he State could easily ascertain the dates the alleged crimes occurred and could have stated the manner in which the theft occurred, and it was, therefore, appropriate for the trial court to grant the motion to quash.”) (footnote omitted). In South v. State, 268 Ga. App. 110 (601 SE2d 378) (2004), the appellant, South, was charged with committing the offense of aggravated stalking “from the 12th day of October, 2002 through the 29th day of October, 2002.” Id. at 111. We concluded that the trial court erred in failing to grant South’s special demurrer to the indictment, finding that

a review of the record indicates that the State could have had access to the actual dates on which the acts of alleged stalking occurred. The State simply chose not to list these dates due to the number of alleged acts. This is not a valid excuse for failing to provide South with the dates of the alleged offenses.

Id. at 112 (1). See also State v. Meeks, 309 Ga. App. at 858 (1). Compare Blanton v. State, 324 Ga. App. 610, 615-617 (2) (a) (751 SE2d 431) (2013) (finding that the trial court did not err in denying appellant’s special demurrer where the evidence showed that the defendant had engaged in acts of incest with the victim over 50 times during the two-year period alleged in the indictment, and the victim was unable to specifically identify the date of any specific incident).

Here, the evidence showed that the State had access to the dates of the “numerous false claims” that Cole allegedly submitted, but chose not to identify any of them. The State argues that the range of dates set forth in the indictment was nevertheless sufficient because the indictment alleged, as to both counts, a single scheme which was conducted over the time period identified in the indictment. To support its argument, the State relies on Johnson v. State, 233 Ga. App. 450 (504 SE2d 290) (1998) as “the case most similar to the present one.” There, the indictment alleged, in substance, that the defendants fraudulently obtained money from a laboratory “over a specific time period within a single calendar year, between the 1st day of March, 1996, and the 30th day of June, 1996, by the artifice of submitting four specified billings which intentionally overstated work performed.” (Punctuation omitted.) Id. at 451-452 (2). We concluded that the indictment stated the offense and the time with sufficient certainty, noting that the alleged theft by deception would have required two steps in both submitting the fraudulent bills and then accepting any tendered payments therefore. Id. at 452 (2). Our analysis suggests that it is significant that the alleged crime was necessarily committed in multiple steps over a range of time. Similarly, in this case the indictment alleges a fraudulent scheme over a period of time, and that Cole did both “obtain and keep” the funds to which she was not entitled.

We conclude that Johnson is nevertheless distinguishable. The indictment at issue in Johnson specifically identified the four billings in which the appellants had allegedly overcharged the laboratory during the designated four-month time period. Id. at 450 (The indictment alleged that appellants had overstated the number of certain procedures and audits on “Phlebotomy Inc. Invoice numbers 1001, 1002, 1003, and 1004[.]”). Thus, the defendants were aware of how the crime was alleged to have been committed and could prepare their defenses accordingly. In contrast to the appellants in Johnson, Cole is not apprised by the indictment of the claims that the State contends are fraudulent, leaving Cole uncertain of which of the thousands of claims she submitted to Medicaid over a more than three-year period are pertinent to her defense. And as White was aware of the dates of the alleged false claims, and the State was able to use the electronic information available to White to calculate the amount of the alleged overcharges down to the penny, the State did not show that it was unable to more narrowly state the dates of the crimes. Thus, we conclude, because the indictment alleges that the crimes of Medicaid fraud and theft by taking were committed over a range of dates and the State did not establish that it was unable to more narrowly identify those dates, the trial court erred in denying Cole’s special demurrer to the indictment.

Decided November 19, 2015.

Thomas M. Florio, for appellant.

Samuel S. Olens, Attorney General, James P. Mooney, Assistant Attorney General, for appellee.

Judgment reversed.

Dillard and McFadden, JJ., concur.

       The victim of both crimes was the State of Georgia. The property taken in the charge of theft by taking is identified as belonging to the State. As to the crime of Medicaid fraud, OCGA § 49-4-146.1 (b) (1) provides that it is unlawful" [f] or any person or provider to obtain... any medical assistance or other benefits or payments under this article... to which the person or provider is not entitled . . . .” “Payment” is defined in applicable part, as “a payment or approval for payment, any portion of which is paid by the Georgia Medicaid program[.]” OCGA §49-4-146.1 (a) (5).

       Two of the patients have the same date of birth and initials, and are apparently twins, but their Medicaid identification numbers are not the same.

       The State also argues that Cole should not be allowed to “hide behind the magnitude and scope other conduct,” but does not show that the extent of the alleged offenses, for which Cole has not been convicted, deprives her other right to insist on an indictment perfect in form and substance.

       The State also cites to Simmons v. State, 79 Ga. App. 390 (53 SE2d 772) (1949), as “instructive” to show that a series of conversions constitutes a single scheme that may be charged in a single count of an indictment. Cole did not, however, contest the inclusion of multiple acts within each of the counts of Medicaid fraud and theft by taking.

       The exhibits to the indictment may narrow the claims at issue to some extent, but they do not identify the claims that the State identified as fraudulent by their date, or otherwise.

       “[W] e note that, on special demurrer, the quashing of an indictment merely bars trial on the flawed instrument; it does not bar the State from reindicting and trying the defendant.” (Footnote omitted.) Sellers v. State, 263 Ga. App. at 146.


author: McMillian, Judge.

text:
    A15A0472.
    GASKIN v. THE STATE.
    (780 SE2d 426)
   McMillian, Judge.

Larry Gaskin, Jr., appeals the trial court’s denial of his motion for new trial after a jury convicted him of two counts of child molestation. Because we find that the trial court committed harmful error in admitting evidence of Gaskin’s prior arrests, we reverse.

Viewed in the light most favorable to support the verdict, the evidence at trial showed that in February 2011, the victim, K. C., who was 15 years old, lived with her mother, younger sister, and Gaskin. One night that month, K. C. was lying in the bed with her sister, whom she was babysitting while Gaskin and her mother were out of the house. That evening, K. C. texted her mother, who was still out, and asked her to make Gaskin leave the house. When K. C. and her mother subsequently spoke on the phone, K. C. told her mother that when Gaskin came to get her sister out of the bed, he touched K. C.’s breasts. K. C.’s mother then confronted Gaskin, but he denied any wrongdoing, saying that K. C.’s assertion was “crazy.” The next day, K. C., her mother, and Gaskin discussed the situation. K. C. repeated that Gaskin had been drinking and had touched her breasts, but she did not know if he had done it on purpose or not. According to K. C.’s mother, K. C. did not say that she wanted Gaskin to leave the house, and he continued to live with the family.

Approximately nine months later, in September 2011, when K. C. was visiting Charles Thigpen, the father of K. C.’s other sister, she told him that Gaskin came home drunk one night, went into her bedroom, and attempted to have sex with her by “reach [ing] down into her panties.” K. C. told Charles that afterward she was given a cell phone and $100. Charles spoke with Gaskin and K. C.’s mother and was told that it was all a misunderstanding and that they had dealt with the matter. However, Charles told his wife, Quineisha, what K. C. had said. When Quineisha spoke with K. C., K. C. told her that Gaskin tried to have sex with her, that she kicked him off of her, and that he had exposed himself to her. The next day, Quineisha called a counselor at K. C.’s school to report the incident. The counselor spoke with K. C., who admitted she had told Quineisha about the incident involving Gaskin. The school then notified the police and the Department of Family and Children Services about the matter.

Detective David Remec of the Atlanta Police Department spoke briefly with K. C. at the school that day, and she told him that Gaskin had touched her in a sexual manner sometime in or around February 2011. She also told Remec that Gaskin had given her a cell phone and some money to try to keep her quiet. Remec then arranged for a forensic interviewer to question K. C.

K. C. told the forensic interviewer that in February 2011, Gaskin had come home intoxicated, entered the room where she was in bed with her sister, and asked K. C. if anyone was home. When K. C. told Gaskin no one else was there, he went into the bathroom and then came back and started touching her breasts and the outside of her vagina. She said that, afterward, he offered her money not to tell anyone what had happened. K. C. said that Gaskin gave her $100 and bought her a cell phone two days after the incident. A recording of K. C.’s forensic interview was played for the jury.

However, during her direct examination at trial, K. C. either denied that anything happened in 2011 or stated that she did not remember. K. C. said that she did not want to talk about what had happened because she felt that she was responsible for her younger sister not getting to see Gaskin, who was her sister’s father, and that upset K. C. However, K. C. testified that she recalled having a conversation with Gaskin and her mother about Gaskin touching her. She also testified that she received money and a cell phone from Gaskin. Additionally, she recalled talking with police, the counselor at her school, and someone else, but she said that she did not remember or did not know what those conversations were about. But on cross-examination, K. C. admitted telling her mother that Gaskin had accidentally touched her breasts, telling the Thigpens that Gaskin had tried to have sex with her, and telling the forensic interviewer that Gaskin had touched her breasts and vagina.

After the State rested, Gaskin called K. C.’s mother as a witness for the defense to testify as to his reputation for truthfulness. Gaskin also testified and denied ever improperly touching K. C. Moreover, both Gaskin and K. C.’s mother testified that K. C. had received the cell phone and the $100 for her birthday.

1. Gaskin argues on appeal that the trial court erred when it allowed the State to question K. C.’s mother about his prior arrests.

During Gaskin’s trial, his counsel asked K. C.’s mother if she was aware of Gaskin’s reputation in the community for truthfulness, and she replied, “Yes.” But when defense counsel began to ask a follow-up question, the State objected to any testimony regarding specific examples of his good reputation. Gaskin’s counsel replied that he did not want to ask about specifics, and after the trial court reviewed the questions that counsel planned to ask, it allowed him to proceed. Gaskin’s counsel asked only one more follow-up question: whether knowing Gaskin’s reputation for truthfulness in the community, K. C.’s mother wouldbelieve testimony that Gaskin gave under oath. K. C.’s mother again replied in the affirmative.

On cross-examination, the prosecutor asked K. C.’s mother if her opinion of Gaskin’s reputation for truthfulness would change if she were aware that he had been arrested “on a couple of occasions.” K. C.’s mother replied that her opinion would not change and that she was aware of his prior arrests. At that point, Gaskin’s counsel objected to any questions about the specific arrests, but after a bench conference, the trial court stated that the prosecutor could ask about “the three arrests that you know about over the defendant’s objection.” The prosecution then asked K. C.’s mother if she was aware of four prior arrests: for possession, manufacturing, or distribution of marijuana; simple battery; criminal damage to property; and obstruction of a person making a 911 call.

In his motion for new trial, Gaskin asserted that the admission of this evidence was error, and the trial court agreed. However, the trial court concluded, without explanation, that “this error was harmless as the Court further finds it is highly probable that the evidence did not contribute to the jury’s verdict.” Thus, the trial court denied Gaskin’s motion for new trial.

While we agree the trial court committed error in admitting evidence of Gaskin’s prior arrests, we disagree with the trial court’s conclusion that the error was harmless.

(a) This case was tried in January 2013, the month that Georgia’s new Evidence Code became effective. See Ga. L. 2011, p. 99, § 101. Under the new Code, OCGA § 24-6-608 provides very “specific, limited methods for attacking or supporting the credibility of a witness by evidence in the form of opinion or reputation.” Williams v. State, 332 Ga. App. 546, 548 (1) (b) (774 SE2d 126) (2015). Under that statute,

[t]he credibility of a witness maybe attacked or supported by evidence in the form of opinion or reputation, subject to the following limitations:
(1) The evidence may refer only to character for truthfulness or untruthfulness; and
(2) Evidence of truthful character shall be admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.

OCGA § 24-6-608 (a). The statute also addresses the use of specific instances of conduct to attack (or support) a witness’s character for truthfulness, providing that “other than a conviction of a crime as provided in [OCGA §] 24-6-609, or conduct indicative of the witness’s bias toward a party” such specific instances “may not be proved by extrinsic evidence.” OCGA § 24-6-608 (b). However, in the trial court’s discretion, evidence of specific instances of conduct

if probative of truthfulness or untruthfulness, [may] be inquired into on cross-examination of the witness:
(1) Concerning the witness’s character for truthfulness or untruthfulness; or
(2) Concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.

(Emphasis supplied.) Id.

Because OCGA § 24-6-608 (b) places the decision whether to admit specific instances of conduct within the trial court’s discretion, we will reverse the trial court’s ruling only on a clear abuse of that discretion. See Bradshaw v. State, 296 Ga. 650, 656 (3) (769 SE2d 892) (2015) (adopting federal “clear abuse of discretion” standard for introduction of evidence under Fed. R. Evid. 403 and 404 (b)). Additionally, because the provisions of OCGA § 24-6-608 were “borrowed from the Federal Rules of Evidence,” we “look to decisions of the federal appeals courts construing and applying the Federal Rules, especially the decisions of the Eleventh Circuit.” State v. Frost, 297 Ga. 296, 299 (773 SE2d 700) (2015). See also Parker v. State, 296 Ga. 586, 592 (3) (769 SE2d 329) (2015).

In interpreting Fed. R. Evid. 608, the federal provision comparable to OCGA § 24-6-608, the federal courts have found that the evidence must involve offenses or “acts probative of untruthfulness” including “such acts as forgery, perjury, and fraud.” (Citation and punctuation omitted.) United States v. Novaton, 271 F3d 968, 1006 (II) (F) (11th Cir. 2001). See also United States v. Morgan, 505 F3d 332, 340 (II) (C) (2) (5th Cir. 2007) (“the rule authorizes inquiry only into instances of misconduct such as perjury, fraud, swindling, forgery, bribery, and embezzlement”). However, “[t]he government may not use impeachment as a guise for submitting to the jury substantive evidence that is otherwise unavailable.” (Citations and punctuation omitted.) Morgan, 505 F3d at 340 (II) (C) (2). Cf. United States v. Gossett, 877 F2d 901, 907 (D) (11th Cir. 1989) (“impeachment by prior inconsistent statement may not be permitted where it is used as a stratagem to get before the jury otherwise inadmissible evidence”) (citations omitted). Therefore, for example, the Eleventh Circuit has found that Fed. R. Evid. 608 (b) does not allow the admission of evidence of prior convictions or prior instances of drug use. United States v. Sellers, 906 F2d 597, 602 (II) (A) (1) (i) (11th Cir. 1990); United States v. Rubin, 733 F2d 837, 842 (II) (11th Cir. 1984).

Applying this authority, we agree with the trial court that it was an abuse of discretion to allow the prosecution to question K. C.’s mother regarding Gaskin’s prior arrests for marijuana possession, simple battery, criminal damage to property, and obstruction of a person making a 911 call, as none of these arrests related to offenses involving truthfulness. Moreover, K. C.’s mother had already testified that she was aware of Gaskin’s prior arrests and that they did not change her opinion of his character. Thus, we conclude that the State’s questions regarding the specific crimes involved in the arrests constituted an improper attempt to use impeachment as a guise for presenting otherwise inadmissible evidence to the jury. See Morgan, 505 F3d at 340 (II) (C) (2).

(b) However, in order to serve as a basis for reversing Gaskin’s convictions, the trial court’s evidentiary error must have affected his substantial rights, i.e., it was not harmless. See OCGA § 24-1-103 (a) (“Error shall not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected”). See Carlson, supra at 19 (OCGA § 24-1-103 closely tracks Fed. R. Evid. 103); 1 McCormick on Evidence § 52 (Kenneth S. Broun, ed., 7th ed. 2013) (“Federal Rule [of] Evidence 103 (a) codifies the harmless error concept[.]”). In Georgia,

the standard for weighing nonconstitutional error in criminal cases is known as the “highly probable test,” i.e., that it is highly probable that the error did not contribute to the judgment. Under that test, a reversal is not required if the evidence of guilt is overwhelming in that there is no reasonable probability that the verdict would have been different in the absence of this error.

(Citation and punctuation omitted.) Leverette v. State, 303 Ga. App. 849, 852 (2) (696 SE2d 62) (2010). See also Cowart v. State, 294 Ga. 333, 341 (4) (b) (751 SE2d 399) (2013).

Here, the evidence at trial presented the jury with a classic “he said, she said” scenario. K. C. told her mother, the Thigpens, the police officer, and the forensic interviewer that Gaskin had touched her breasts and/or vagina, while Gaskin consistently denied that he had ever touched K. C. inappropriately. The State presented no medical evidence to support the charges, instead relying primarily upon K. C.’s statements to others. Although K. C.’s multiple statements were consistent in some respects, e.g., regarding Gaskin’s intoxicated condition and the circumstances surrounding the incident, her description of the extent of Gaskin’s conduct varied over time. Moreover, K. C. refused to testify about the incident at trial, although she admitted her prior conversations concerning it.

Under these circumstances, we cannot say the evidence was overwhelming, and we cannot say that the fact that Gaskin had been arrested for four prior offenses did not enter into the jury’s evaluation of his testimony and his credibility. Thus we cannot say that it is highly probable that this evidence did not contribute to the jury’s verdict. See Gearin v. State, 208 Ga. App. 878, 882 (2) (432 SE2d 818) (1993) (trial court erred in denying motion for mistrial after wrongful admission of evidence of other crimes). Cf. Cowart v. State, 294 Ga. at 342 (5) (admission of improper evidence bolstering witness’s testimony harmful error when witness’s testimony was the only evidence against defendant); Beasley v. State, 204 Ga. App. 214, 218 (3) (419 SE2d 92) (1992) (admission of similar transactions without limiting instructions was harmful error where State’s case rested solely on the credibility of State’s main witness); Anderson v. State, 252 Ga. 103 (312 SE2d 113) (1984) (admission of improper character evidence required reversal).

Decided November 20, 2015.

Margaret E. Flynt, Brian M. Condon, Jr., for appellant.

Paul L. Howard, Jr., District Attorney, David Getachew-Smith, Melissa D. Redmon, Assistant District Attorneys, for appellee.

Accordingly, we reverse the trial court’s denial of Gaskin’s motion for new trial on this ground.

2. Because we have found that Gaskin is entitled to a new trial, we need not reach his assertions that he received ineffective assistance of counsel.

Judgment reversed.

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

       “[W]hen we consider the legal sufficiency of the evidence, we must view the evidence in the light most favorable to the verdict and leave questions of credibility and the resolution of conflicts in the evidence to the jury.” (Citation and punctuation omitted.) Bryant v. State, 296 Ga. 456, 457 (1) (769 SE2d 57) (2015).

       The younger sister is the child of Gaskin and K. C.’s mother.

       To avoid confusion, we will refer to the Thigpens, individually, by their first names.

       We find that the evidence at trial was sufficient to support his convictions beyond a reasonable doubt under the standard set forth in Jackson v. Virginia, 443 U.S. 307 (99 SCt 2781, 61 LE2d 560) (1979).

       Although former OCGA § 24-9-84 (4) permitted counsel to ask this question, Georgia’s new Evidence Code does not contain a similar provision, and one commentator has opined that this omission “suggests legislative rejection” of the question. See Ronald L. Carlson & Michael Scott Carlson, Carlson on Evidence 290-91 (3d ed. 2015).

       We apply OCGA § 24-6-608 in this case because the evidence at issue was introduced through cross-examination in response to testimony about Gaskin’s reputation for truthfulness and not under the procedures for admitting evidence of other acts for the purposes allowed under OCGA § 24-4-404 (b). See, e.g., United States v. Tomblin, 46 F3d 1369, 1389 (II) (D) (2) (5th Cir. 1995) (procedure under Fed. R. Evid. 404 (b) that requires prosecutor to give notice of intention to use evidence of other acts does not apply to evidence introduced through cross-examination under Fed. R. Evid. 608 (b)).

       We note that the issue of whether Gaskin’s initial character evidence was admissible under this provision is not before us in this appeal.

       For example, OCGA § 24-6-609 (a) (2) permits the admission of “[e]vidence that any witness has been convicted of a crime ... if it readily can be determined that establishing the elements of such crime required proof or admission of an act of dishonesty or making a false statement.” (emphasis supplied.)

       See Carlson, supra at 269, 294.

       The federal analysis is similar. The Eleventh Circuit has held that “[a]n erroneous evidentiary ruling will result in reversal only if the resulting error was not harmless.” United States v. Hands, 184 F3d 1322, 1329 (II) (C) (11th Cir. 1999), corrected, 194 F3d 1186 (11th Cir. 1999). “Evidentiary and other nonconstitutional errors do not constitute grounds for reversal unless there is a reasonable likelihood that they affected the defendant’s substantial rights; where an error had no substantial influence on the outcome, and sufficient evidence uninfected by error supports the verdict, reversal is not warranted.” (Citation and punctuation omitted.) United States v. Khan, 794 F3d 1288, 1299 (IV) (A) (2) (11th Cir. 2015). See also United States v. Hawkins, 905 F2d 1489, 1493 (II) (A) (11th Cir. 1990).