author: MCFADDEN, Judge. ANDREWS, Presiding Judge,

text:
    A14A1365.
    IN RE ESTATE OF DAVIS.
    (766 SE2d 550)
   MCFADDEN, Judge.

This appeal is from a probate court order dismissing, for lack of probable cause, a petition for appointment of a guardian and/or conservator for an allegedly incapacitated adult. The appellants correctly assert that the probate court, having previously found sufficient probable cause to warrant filing of the petition, erred in dismissing it without requiring an evaluation of the proposed ward. Such an evaluation was mandated by OCGA §§ 29-4-11 and 29-5-11 as a prerequisite to the court’s finding that there is not probable cause to believe the proposed ward is in need of a guardian and/or conservator. Accordingly, the probate court’s erroneous dismissal order must be reversed and the case remanded with direction that the required evaluation be completed.

On October 1, 2013, Vicky Davis and Tabitha Davis filed a verified petition for appointment of a guardian and/or conservator for Radric Davis a/k/a Radric Dudley. According to the petition, the proposed ward “has a history of psychological problems,” has been institutionalized on at least three occasions, and has been diagnosed with bipolar disorder and schizophrenia. The petitioners also alleged that, as a result of his psychological problems and abuse of a variety of drugs, the proposed ward has engaged in violent behavior, including assaulting a patron in a bar and almost coming to blows with another shopper at a mall, and that he sent out messages via Twitter describing in “graphic and profane terms” alleged sexual escapades with various women. The petition also stated that court records indicate the proposed ward has been in jail in Fulton County at least five times since 2005 on charges involving drugs, aggravated assault, and aggravated assault with a deadly weapon, although the court records are not attached to the petition. The petitioners further alleged that although the proposed ward has made millions of dollars over the course of a successful music career, he has no savings, no insurance, and has failed to pay income taxes, resulting in significant liability to the Internal Revenue Service. The petitioners sought to have the proposed ward’s mother, Vicky Davis, appointed guardian of his person and conservator of his property.

Upon review of the petition, the probate court initially determined that sufficient evidence existed to believe that the proposed ward was in need of a guardian and/or conservator. The court ordered a licensed clinical social worker to evaluate the proposed ward, ordered the proposed ward to submit to the evaluation, and ordered that notice be given to the proposed ward and all interested persons listed in the petition. The notice to the proposed ward explained that he was required to attend the evaluation, but did not have to respond to questions. The evaluation as initially scheduled did not take place because the proposed ward had been transferred from the Fulton County jail to the DeKalb County jail and the probate court was not aware of the transfer prior to the evaluation date. The evaluation was rescheduled, and notice of the new date was provided to the parties and all interested individuals.

On November 22, 2013, the date of the rescheduled evaluation, the social worker went to the DeKalb County jail to evaluate the proposed ward, but he refused to meet with the evaluator without his attorney present. The social worker waited for an hour, but the attorney did not appear, so no evaluation was conducted. The social worker filed a report with the probate court, indicating that no evaluation had taken place due to the proposed ward’s refusal to meet without his attorney present and stating that “[t]his evaluator does not have enough information ... to make a finding.” The evaluator further provided that she was unable to make findings concerning mental illness of the proposed ward “without proper evaluation.”

Despite the lack of an evaluation or any findings by the social worker, the probate court issued an order dismissing the petition. The court determined that there was no probable cause to support a finding that the proposed ward was in need of a guardian and/or conservator, noting that the only documentation provided by the petitioners to support their claims of ongoing psychological problems, drug abuse, and criminal charges were news reports. The order was signed by a judicial hearing officer exercising the jurisdiction of the probate court.

The petitioners filed a motion for reconsideration of the order dismissing their petition, requesting that the court either schedule another evaluation of the proposed ward and require his attorneys to appear or schedule a hearing on their petition. They also filed a transcript of a probation revocation hearing held on September 26, 2013, in which a psychiatrist who had examined the proposed ward and his medical records testified about the proposed ward’s need for inpatient psychiatric treatment. According to the psychiatrist, the medical records show that the proposed ward has been off of his prescribed anti-psychotic and mood stabilizing medications and has a history of bipolar disorder and schizophrenia and substance abuse. In his meeting with the proposed ward, the psychiatrist learned that he has a co-morbid substance use disorder, specifically the use of marijuana and a prescription cough syrup containing codeine, which can be extremely addictive, and promethazine, which can cause psychosis. The psychiatrist was unable to state whether the proposed ward’s behavior was based more on the primary psychiatric issue or on the substance abuse issue. He did note that the proposed ward’s behavior had improved in the 13 days since his arrest, but could not conclude definitively that the problem was only substance abuse.

After reviewing the motion for reconsideration and the attached exhibits, the probate court denied the motion. The petitioners appeal.

1. Evaluation of proposed ward.

The appellants assert that the probate court abused its discretion by not ordering that an evaluation of the proposed ward be rescheduled and conducted after he had refused to participate in the previously-scheduled evaluation without his attorney present. We agree.

OCGA §§ 29-4-11, 29-4-12, 29-5-11 and 29-5-12 set forth frameworks for consideration of petitions for guardianship and for conser-vatorship of proposed wards. Upon the filing of such a petition, the court must review it and make an initial determination of whether there is probable cause to believe that the proposed ward is in need of a guardian or conservator. OCGA §§ 29-4-11 (a) and 29-5-11 (a). If the court makes an initial determination that probable cause does not exist, it is to dismiss the petition. OCGA §§ 29-4-11 (b) and 29-5-11 (b). But, if the court makes an initial finding of probable cause, the court “shall” order an evaluation of the proposed ward. OCGA §§ 29-4-11 (c) (1) (C), (d) (1) and 29-5-11 (c) (1) (C), (d) (1). And upon that initial review of the petition and determination that there is probable cause to believe that the proposed ward is in need of a guardian or conservator, the court must appoint a licensed physician, psychologist, or clinical social worker to evaluate the proposed ward. OCGA §§ 29-4-11 (a), (d) (1) and 29-5-11 (a), (d) (1).

Once appointed, the physician, psychologist or social worker is to conduct the evaluation, which may include a self-report of the proposed ward, questions and observations of the proposed ward, and a review of medical records. OCGA §§ 29-4-11 (d) (3) and29-5-ll (d) (3). During the evaluation, the proposed ward may remain silent and may have legal counsel present, although counsel may not participate in the evaluation. OCGA §§ 29-4-11 (d) (2) and 29-5-11 (d) (2). The physician, psychologist or social worker must then file a written report with the court no later than seven days after the evaluation. OCGA §§ 29-4-11 (d) (4) and 29-5-11 (d) (4). The report is to state, among other things, the circumstances and elements of the evaluation, list all persons and sources of information consulted, describe the proposed ward’s mental and physical condition, and describe the needs of the proposed ward. OCGA §§ 29-4-11 (d) (5) and 29-5-11 (d) (5).

After the evaluation report has been filed, the court is to review the report and the pleadings in order to make another probable cause determination. OCGA §§ 29-4-12 (a) and 29-5-12 (a). If, after the review, the court finds no probable cause to support a finding that the proposed ward is in need of a guardian or conservator, then the court is to dismiss the petition. OCGA §§ 29-4-12 (b) and 29-5-12 (b). But, if the court finds probable cause, it is to schedule a hearing on the petition. OCGA §§ 29-4-12 (c) and 29-5-12 (c).

Here, it is undisputed that the probate court initially complied with the statutory mandates by determining that probable cause existed to believe that the proposed ward was in need of a guardian or conservator, and by ordering that the proposed ward be evaluated by a licensed clinical social worker. But, the required evaluation never took place. Rather, as explained above, the initially scheduled evaluation at the Fulton County jail did not occur because, unbeknownst to the court, the proposed ward had been transferred to another jail. And as also recounted above, the rescheduled evaluation at the new jail also did not take place because the proposed ward refused to be evaluated without his attorney present. The evaluator then filed a report with the probate court indicating that no evaluation had taken place because the proposed ward had refused to meet without his attorney present. So, the evaluator made none of the required findings as to the proposed ward’s capacity or whether he meets the standards for a guardian or conservator; she expressly informed the court that she did “not have enough information ... to make a finding.”

Indeed, in its order dismissing the petition, the probate court actually acknowledged that the proposed ward had refused to meet with the evaluator and that the evaluator had concluded that she did not have enough information to make a finding as to capacity and the need for a guardian or conservator. Nevertheless, the court went on to make its own finding that there was no probable cause to support a finding that the proposed ward was in need of a guardian or conservator. Based on that finding of no probable cause, the probate court dismissed the petition pursuant to OCGA §§ 29-4-12 (b) and 29-5-12 (b).

But, under those Code sections, such a finding and order of dismissal can be made only after the court has reviewed the required evaluation report. So, the undisputed facts in the record establish that the trial court erred in failing to require that the statutorily-mandated evaluation take place and that the evaluation report be filed before making a probable cause determination and dismissing the petition.

In arguing otherwise, the dissent mistakenly claims that our decision somehow “wrest[s] discretion from the probate courts of Georgia.” It does no such thing. This decision does nothing more than apply the plain language of the applicable Code sections to the undisputed facts.

The dissent misstates what in fact occurred by writing that “the proposed ward exercised his right not to speak to the evaluator and to insist that his counsel be present. .. . [The court] had no power to compel him to cooperate and speak to the evaluator.” Certainly, the dissent is correct that, as provided in OCGA §§ 29-4-11 (d) (3) and 29-5-11 (d) (3), the proposed ward may remain silent during the evaluation, when it eventually occurs, and have counsel present. But contrary to the dissent’s misstatement of the facts, the proposed ward did not exercise his right to remain silent during an evaluation. No evaluation ever took place. The proposed ward refused to meet with the social worker or be evaluated because his attorney was not present.

Under such circumstances, the probate court should have rescheduled the evaluation. Because the court failed to do so and improperly dismissed the petition without an evaluation having been conducted and without the requisite evaluation report having been submitted for the court’s consideration, the dismissal order must be reversed and the case remanded with direction that the evaluation be conducted and the report submitted.

2. Remaining enumerations.

Because of our holding above, we need not address the appellants’ remaining enumerations of error, concerning the delegation of duties to a judicial hearing officer, the finding of no probable cause, and the denial of the motion for reconsideration.

Judgment reversed and case remanded with direction.

Doyle, P. J., Boggs, Ray and Branch, JJ., concur. Andrews, P. J., and Barnes, P. J., dissent.

ANDREWS, Presiding Judge,

dissenting.

Because the majority’s interpretation of OCGA§§ 29-4-11 and 29-5-11 will lead to unreasonable results and impermissibly wrest discretion from the probate courts of Georgia, I respectfully dissent.

As a threshold matter, while the majority notes that an evaluation did not occur as scheduled on November 22, 2013 due to the proposed ward’s refusal to participate without counsel present, the report filed by the evaluator nonetheless included information upon which the probate court could base its ruling. Specifically, the evaluator found:

This evaluator does not have enough information based on what’s in the findings to make a finding. It is reported that the proposed ward has psychiatric co-morbidities of Schizophrenia and Bipolar Disorder as well as a substance abuse history. This evaluator is unable to infer the level of any severe and persistent mental illness that proposed ward may have without proper evaluation. Drug abuse can produce schizophrenic like psychosis as well. It appears that when the proposed ward gets in trouble with the legal system he may experience possible manic episodes related to bipolar disorder and/or the fact that he may be abusing substances at the same time. Substance abuse can impact the course of mental illness and cognitive functioning. There must be caution in diagnosing bipolar disorder in the presence of substance abuse. Also, proposed ward would need to be evaluated during a sustained period of abstinence from illicit drug or alcohol use to rule out Substance Abuse Mood Disorder and Substance Abuse Induced Psychotic Disorder.

1. As noted by the majority, the petitioners claim that the probate court abused its discretion by not re-ordering another evaluation of the proposed ward. They argue that the case should be remanded to allow the evaluation to take place. For the reasons that follow, I find no abuse of discretion.

Generally, this Court reviews issues concerning the appointment of a guardian or a conservator for an abuse of discretion. See Cruver v. Mitchell, 289 Ga. App. 145 (656 SE2d 269) (2008); In re Estate of Taylor, 270 Ga. App. 807 (608 SE2d 299) (2004). Upon initial review of the petition for guardianship or conservatorship, if the probate court determines that there is probable cause to believe that the proposed ward is in need of a guardian or conservator, the court must appoint a licensed physician, psychologist, or clinical social worker to evaluate the proposed ward. OCGA §§ 29-4-11 (a), (d) (1); 29-5-11 (a), (d) (1). The proposed ward has the right to remain silent during the evaluation, and the proposed ward’s legal counsel has the right to be present, but cannot participate in the evaluation. OCGA §§ 29-4-11 (d) (2), 29-5-11 (d) (2). To the extent that the proposed ward’s refusal to participate can be considered a failure to appear, the probate court has the authority to order that he be taken directly to a medical facility for purposes of conducting the evaluation. OCGA §§ 29-4-11 (d) (3), 29-5-11 (d) (3).

Here, the proposed ward exercised his right not to speak to the evaluator and to insist that his counsel be present. The evaluator filed the report required by OCGA §§ 29-4-11 (d) (4) and29-5-ll (d) (4), and the probate court was not required to consider this a failure to appear and order that the proposed ward be taken directly to a medical facility for evaluation. And even if the court had taken this approach, it had no power to compel him to cooperate and speak to the evaluator. Under the circumstances, I conclude that the trial court did not abuse its discretion in failing to re-schedule another evaluation of the proposed ward.

This analysis not only comports with OCGA §§ 29-4-11 and 29-5-11, but with common sense. Under the majority’s reasoning, proposed wards could fend off evaluations ad infinitum by merely refusing to participate without counsel being present (counsel who, pursuant to OCGA §§ 29-4-11 (d) (2) and 29-5-11 (d) (2), may not participate in the evaluation). The majority does not suggest any safeguard to prevent such an occurrence. As a result, the majority impermissibly restricts the probate court’s discretion by essentially requiring repeated fruitless attempts to force evaluations. In this instance, the probate court was well within its discretion to conclude that no probable cause had been shown and, as a result, dismiss the petition. See OCGA §§ 29-4-12 (b), 29-5-12 (b).

Because I would affirm the trial court’s decision to dismiss the petition, I review the remainder of the petitioners’ enumerated errors.

2. Next, the petitioners claim that the judicial hearing officer lacked jurisdiction to conduct the post-evaluation review of their petition. They argue that the order dismissing their petition is therefore void.

After the evaluation report is filed, the probate court must review the pleadings and the evaluation report and determine if there is probable cause to believe that the proposed ward is in need of a guardian or conservator. OCGA §§ 29-4-12 (a), (b); 29-5-12 (a), (b). If the court finds no probable cause, the court shall dismiss the petition. OCGA §§ 29-4-12 (b), 29-5-12 (b). If the court does find probable cause, the court shall schedule a hearing on the petition. OCGA §§ 29-4-12 (c), 29-5-12 (c). The petitioners take the position that the mandatory language in the statutes did not allow the probate court to delegate its duties to a judicial hearing officer.

Pursuant to OCGA § 29-4-12 (d) (7),

[in] any procedure under this chapter in which the judge of the court is unable to hear a case within the time required for such hearing, the judge shall appoint an individual to hear the case and exercise all the jurisdiction of the court in the case. Any individual appointed shall be a member of the State Bar of Georgia who is qualified to serve as the probate judge in that county and who is, in the opinion of the appointing judge, qualified for the duties by training and experience.

OCGA § 29-5-12 (d) (7) is essentially the same provision, applied to petitions for conservatorships. The orders signed by the judicial hearing officer referred to these statutes as the basis for the hearing officer’s authority to exercise the probate court’s jurisdiction. The petitioners do not take issue with the hearing officer’s qualifications to serve, but argue that these statutory provisions only apply to the hearing required if the court finds probable cause to support the petition.

“When we consider the meaning of a statute, we look first to the text of the statute, and if the text is clear and unambiguous, we look no further, attributing to the statute its plain meaning.” Hendry v. Hendry, 292 Ga. 1, 2 (734 SE2d 46) (2012) (citations and punctuation omitted). Both statutes plainly state that in any procedure under the relevant chapter (Chapter 4, Guardians of Adults, or Chapter 5, Conservators of Adults), if the judge is unable to hear a case within a designated time frame, the judge may appoint an individual to hear the case, and that individual may exercise all of the court’s jurisdiction in the case. The appointed individual’s authority would thus include conducting a hearing on the petition for appointment of guardian or conservator as well as any other procedures under the relevant chapter. I therefore find no merit in the petitioners’ claim.

3. The petitioners next contend that the probate court erred in finding no probable cause to support the need for a guardian or conservator. They argue that their verified petition provided sufficient evidence that the proposed ward needed a guardian and conservator such that the probate court should have ordered a hearing, which would have allowed them the opportunity to present the proposed ward’s medical and criminal records.

A petition for the appointment of a guardian or conservator may be filed by any interested person and “shall be sworn to by two or more petitioners” or supported by an affidavit from a licensed physician, psychologist, or clinical social worker who has examined the proposed ward within 15 days prior to the filing of the petition. OCGA §§ 29-4-10 (a), (c) (1), (c) (2); 29-5-10 (a), (c) (1), (c) (2). The basic finding that the probate court must make when considering a petition for guardianship is that “the adult lacks sufficient capacity to make or communicate significant responsible decisions concerning his or her health or safety.” OCGA § 29-4-1 (a). The necessary finding for a conservator-ship is that “the adult lacks sufficient capacity to make or communicate significant responsible decisions concerning the management of his or her property.” OCGA § 29-5-1 (a). “The focus here is not on the adult’s overall mental or physical state or on any diagnosis that has been made of the adult but rather solely on the adult’s decision-making capacity.” Mary F. Radford, Georgia Guardianship and Con-servatorship § 4:1, p. 210 (2014).

The petitioners note that the probate court found probable cause after its initial review of the petition, prior to ordering an evaluation, and argue that the court lacked any basis to overturn that prior determination. When the probate court makes an initial determination on the basis of the petition that there is sufficient evidence to justify an evaluation, however, “the incapacity of the ward remains an unproven proposition, not a proven fact.” Chesser v. Chesser, 284 Ga. App. 381, 384 (643 SE2d 764) (2007). Thus, the probate court was not bound by its initial probable cause determination.

At the post-evaluation stage, the probate court must review the pleadings and the evaluation report and make a second probable cause determination. To support the need for a guardian, the petition states that the proposed ward has been diagnosed with bipolar disorder and schizophrenia and details a few incidents of violence and inappropriate behavior stemming from his psychological problems and abuse of a variety of drugs. To support the need for a conservator, the petition states that the proposed ward has not spent the money he has made over the course of his career wisely, resulting in a lack of savings, no insurance, and a significant liability to the Internal Revenue Service. The evaluator reviewed this information and was unable to determine “any severe and persistent mental illness” the proposed ward may have without further evaluation, but cautioned that “substance abuse can impact the course of mental illness and cognitive functioning.” She noted that drug abuse could cause schizophrenic-like psychosis and that one must be cautious in diagnosing bipolar disorder in the presence of substance abuse.

An adult will not be presumed to be in need of a guardian or conservator solely because the adult has been found to be in need of treatment or services for drug or substance abuse, addiction or dependency or mental illness. OCGA §§ 29-4-1 (e) (2), 29-5-1 (e) (2); Mary F. Radford, Georgia Guardianship and Conservatorship §§ 4:1, pp. 215-216; 5:1, p. 313. And “[a] person does not lack decision-making capacity merely because he or she does things that others either do not understand or find disagreeable.” Mary F. Radford, Georgia Guardianship and Conservatorship, § 4:1, p. 212 (citation and punctuation omitted).

The petitioners rely on Epperson v. Epperson, 212 Ga. App. 420 (442 SE2d 12) (1994), to support their claim that the proposed ward is in need of a guardian. In Epperson, however, the proposed ward was elderly, had suffered two strokes, was unable to care for himself, and had abused sleeping pills in the past. Id. at 420-421. The only similarity between the two cases is the abuse of drugs and there is no indication in Epperson that the prior abuse of sleeping pills alone would have been sufficient to support a guardianship petition.

With respect to the need for a conservator, the petitioners rely upon In re Cash, 298 Ga. App. 110 (679 SE2d 124) (2009) and Cummings v. Stanford, 193 Ga. App. 695 (388 SE2d 729) (1989). In Cash, the 94-year-old proposed ward was living in an assisted living facility, could not care for herself yet refused to move to a floor that would have provided the services she needed, and refused to pay her bills, including bills for private nursing services. Cash, supra, 298 Ga. App. at 110-111. In Cummings, the trial court found that the proposed ward, due to advanced age and perhaps mental disability, was incapable of managing her financial resources. Cummings, supra, 193 Ga. App. at 696 (1). Evidence showed that since her husband’s death, the proposed ward had bought another house, while continuing to maintain two other houses, was unable to account for thousands of dollars she had spent, and was apparently being exploited financially by her sons. Id. at 695-696. The evidence offered by the petitioners here, a statement that the proposed ward was not paying taxes and did not have savings, does not rise to the same level as the situations in Cash or Cummings. The fact that an adult chooses to “waste” his or her assets by investing them in a losing or frivolous venture or to gamble instead of paying a bill does not in and of itself indicate the need for a conservatorship. Mary F. Radford, Georgia Guardianship and Conservatorship § 5:1, p. 308.

Accordingly, I find no error in the probate court’s determination that the petitioners have not adequately shown probable cause to support a finding that the proposed ward is in need of a guardian or conservator within the meaning of OCGA §§ 29-4-1 and 29-5-1. See generally Yetman v. Walsh, 282 Ga. App. 499, 501 (2) (639 SE2d 491) (2006) (“Similar to a ruling on a motion for summary judgment in a civil action, a ruling on whether probable cause exists to proceed in a conservatorship proceeding is a pre-trial procedure that is designed to ferret out meritless claims without the expense and trouble of a trial.”).

4. Finally, the petitioners assert that the trial court abused its discretion by denying their motion for reconsideration. They argue that the testimony of a psychiatrist who had examined the proposed ward was sufficient to show that there is probable cause to believe the proposed ward needs a guardian and conservator.

As noted above, an adult will not be presumed to be in need of a guardian or conservator solely because the adult has been found to be in need of treatment or services for drug or substance abuse, addiction or dependency or mental illness. Further,

[p]atients with dementia, delirium, schizophrenia, bipolar affective disorder, and other psychiatric conditions may be capable of making responsible decisions. Establishing that a patient lacks decisional capacity requires more than making a psychiatric diagnosis; it also requires demonstrating that the specific symptoms of that disorder interfere with making or communicating responsible decisions about the matter at hand.

Robert R Roca, Determining Decisional Capacity: AMedical Perspective, 62 Fordham L. Rev. 1177, 1187 (1994).

Although the testimony of the psychiatrist who examined the proposed ward did support the petitioners’ statements regarding a prior history of bipolar disorder and schizophrenia and substance abuse as well as a need for treatment, there was no testimony regarding the proposed ward’s current decision-making capacity. Thus, the probate court did not abuse its discretion in denying petitioner’s motion for reconsideration. See generally Stephens v. Alan V. Mock Constr. Co., 302 Ga. App. 280, 281 (1) (690 SE2d 225) (2010) (trial court’s decision granting or denying motion for reconsideration will be upheld absent an abuse of discretion).

Decided November 21, 2014.

Ichter Thomas, Cary Ichter, Reid D. Shannon, for appellants.

Findling Law Firm, Drew Findling, Marissa Goldberg, for appellee.

For the foregoing reasons, I would affirm the order of the probate court dismissing the petition for a conservator and for guardianship. Therefore, I respectfully dissent.

I am authorized to state that Presiding Judge Barnes joins in this dissent.


source: Caselaw Access Project

author: Boggs, Judge.

license: Public Domain

text:
    A14A1374.
    JACKSON v. THE STATE.
    (766 SE2d 558)
   Boggs, Judge.

A jury found Gregory Leon Jackson, Jr., guilty on one count of aggravated child molestation, three counts of child molestation, and one count of sexual battery (as a lesser included offense of child molestation). Following the denial of his second amended motion for new trial, Jackson appeals, citing multiple claims of error, including several grounds of ineffective assistance of trial counsel. For the following reasons, we affirm.

1. Jackson argues that the State used its peremptory strikes to remove prospective African-American jurors in a racially discriminatory manner. Jackson complains specifically about the State’s striking of Juror #8 and Juror #20.

The United States Supreme Court in Batson v. Kentucky, 476 U. S. 79 (106 SCt 1712, 90 LE2d 69) (1986),

established a three-step process for evaluating claims of racial discrimination in the use of peremptory strikes: (1) the opponent of a peremptory challenge must make a prima facie showing of racial discrimination; (2) the proponent of the strike must then provide a race-neutral explanation for the strike; and (3) the court must decide whether the opponent of the strike has proven [the proponent’s] discriminatory intent. ... At Batson step two, the proponent of the strike need only articulate a facially race-neutral reason for the strike. Step two does not demand an explanation that is persuasive, or even plausible. At this [second] step of the inquiry, the issue is the facial validity of the prosecutor’s explanation. Unless a discriminatory intent is inherent in the prosecutor’s explanation, the reason offered will be deemed race neutral.

(Citation and punctuation omitted.) Heard v. State, 295 Ga. 559, 566 (3) (761 SE2d 314) (2014). “We review the trial court’s denial of the Batson motion under a clearly erroneous standard.” (Citation omitted.) Johnson v. State, 266 Ga. 775, 777 (4) (470 SE2d 637) (1996).

Jackson established a prima facie showing of discrimination by demonstrating that the State used its strikes to remove five African-American members of the jury panel. He presents argument with regard to two of those removed. The State explained that it struck Juror #8 because “[h] e was single. He doesn’t have any children. He’s young. We didn’t have a lot of information about him.... And pretty much watching him, most of the time he was disinterested in what was going on and not paying attention. So we struck him for that.” Jackson argues that because the State struck this juror based upon the prosecutor’s observation, and the trial court made no findings regarding the juror’s demeanor, there is nothing in the record to support the State’s proffered reason for the strike. But the record reveals that the State also struck this juror because he had no children, and explained in striking another juror for the same reason that “since we’re dealing with children here, we wanted somebody that had at least some kind of dealing with children.” The Supreme Court of Georgia has held that this explanation is race-neutral, Smith v. State, 264 Ga. 449, 452 (3) (448 SE2d 179) (1994), and we must defer to the trial court’s conclusion that the State overcame the prima facie case of discrimination. See Floyd v. State, 281 Ga. App. 72, 73-74 (635 SE2d 366) (2006).

Jackson also complains about the State’s explanation for striking Juror #20:

[H]is wife was an OB/GYN, and since we don’t have any specific evidence of any injury in this case, I don’t know what knowledge he would have with his wife, OB/GYN, so we struck him... [w] e don’t have any knowledge what he knows about OB/GYN from his wife and injuries from rape cases or child molestation cases, so we wanted to strike him because there’s no injuries that we’d show in this one.

Jackson asserts that this explanation is vague and could be used to strike anyone. But the “basis for a peremptory strike need not make sense or be persuasive; it must only be race [-] neutral and free from discriminatory intent.” (Citation and footnote omitted.) Hodge v. State, 287 Ga. App. 750, 751 (1) (652 SE2d 634) (2007) (trial court authorized to find prosecutor’s explanation regarding juror’s spouse’s unemployment met race-neutral requirement). Because this explanation was not based upon the race of the juror, the trial court did not clearly err in concluding that the State’s proffered reason was race-neutral. See id.

2. Jackson contends that the evidence is insufficient to sustain his convictions. We disagree.

On appeal of a criminal conviction, this Court’s duty is to determine whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979). The appellant no longer enjoys the presumption of innocence. Moreover, the Court does not re-weigh the evidence or resolve conflicts in testimony, but rather defers to the jury’s assessment of the weight and credibility of the evidence.

(Citation and punctuation omitted.) Maurer v. State, 320 Ga. App. 585, 587-588 (1) (740 SE2d 318) (2013).

Construed in favor of the verdict, the evidence showed that the first victim S. C., and her younger sister T. C., lived with their adoptive mother and other siblings. Jackson, the mother’s adult biological son, had lived with the family, moved out of the home when S. C. was 14 years old, but would often stay overnight on Sundays and Fridays. S. C. testified that Jackson began touching her breasts when she was 13 years old, that he later began touching her “below [her] - pants,” and then progressed to putting his penis in her mouth and putting “his penis inside of [her]” on more than one occasion. S. C. explained that this activity took place during the day while everyone else in the house was downstairs. She stated further that Jackson told her not to tell anyone.

S. C. eventually wrote a letter to her mother. She testified that she wrote the letter because she “didn’t want [Jackson] to come back over there.” The letter, admitted into evidence and read by the victim, stated:

Every time [Jackson] come over here to spend the night it started when we first started going to [H]oward Johnson. [H]e started touching me in a bad way then he started forcing me to do things after I said no. Then he ... me not to tell you[____] He do [sic] it every time he come [sic] over here. That’s why I don’t want he [sic] over here. That’s y [sic] he won’t [sic] to spend the night all the time. [Y] [sic] I didn’t tell you because I think you will fuse [sic] at me.

After reading S. C.’s letter, the mother questioned her other daughters. After first denying that Jackson touched her inappropriately, T. C. admitted to her mother that Jackson touched her breasts. She testified that this occurred only once when she was about ten years old, and that Jackson told her not to tell anyone. T. C. explained further that on one occasion she saw Jackson go into S. C.’s room with S. C. and shut the door.

The mother testified that around the time S. C. gave her the letter, S. C. had “seemed very angry a lot of the times, very angry. And she started getting in trouble at school. She wouldn’t do her work at school like the teachers would tell her.” The mother explained further that S. C. “would just lie about different things. Just a whole lot of stuff was going on, and she got in fights — well, almost fights . . . arguments with children, so much so that I had to go to the school several times.”

S. C. was interviewed by a counselor at a children’s advocacy center. The counselor did not provide details of her conversation with S. C., testifying only that S. C. told her “exactly what Mr. Jackson had done to her.”

Jackson denied any wrongdoing and agreed to take a polygraph examination. The examiner testified that he concluded that Jackson was being deceptive when denying that he molested S. C.

Jackson presented his own witnesses at trial, including his girlfriend with whom he had lived, and who had six children of her own. The girlfriend testified that no one had ever alleged that Jackson touched her children inappropriately, and that she had never witnessed Jackson do so. This witness’ adult daughter testified that when Jackson lived with her family, he never tried to touch her inappropriately. A third witness testified that Jackson and her mother “used to talk” when she was a teenager, and that Jackson lived in their home for some time. This witness testified that Jackson never tried to touch her inappropriately, and that she never witnessed him touch her younger sister inappropriately.

The evidence presented here was sufficient to sustain Jackson’s convictions for aggravated child molestation for placing his penis in S. C.’s mouth, child molestation for touching S. C.’s breast and vagina and for placing his penis on her vagina, and sexual battery as a lesser included offense to child molestation for touching the breasts of T. C. See OCGA § 16-6-4 (a) (1) (child molestation); OCGA § 16-6-4 (c) (aggravated child molestation involves physical injury or act of sodomy); OCGA § 16-6-22.1 (a), (b) (sexual battery); see also Wofford v. State, 329 Ga. App. 195, 201 (1) (764 SE2d 437) (2014) (evidence sufficient to sustain aggravated child molestation conviction when defendant placed his penis in victim’s mouth; sufficient for child molestation for touching victim’s vagina); Redd v. State, 232 Ga. App. 666, 666-667 (1) (502 SE2d 467) (1998) (evidence of touching child victim’s breast sufficient for child molestation conviction); Ellis v. State, 324 Ga. App. 497, 501 (4) (751 SE2d 129) (2013) (touching breast of victim sufficient to sustain sexual battery conviction). While Jackson argues that S. C. gave contradictory testimony, any inconsistencies were for the jury to resolve. Id. The girls’ testimony alone was sufficient to authorize Jackson’s convictions, but was also supported here by the testimony of the outcry witness, the girls’ mother. See Newton v. State, 296 Ga. App. 332, 335 (1) (a) (674 SE2d 379) (2009).

3. Jackson asserts that the trial court erred in overruling his objection to the admission of testimony regarding the change in demeanor of the victim during the time the evidence showed the molestation occurred. He argues that this resulted in the jury improperly considering “its own ‘mental heath diagnosis,’ ” and that the State was required to offer an expert to testify concerning the meaning of the victim’s conduct. We disagree.

“[A]s a general rule, [the] admission of evidence is a matter resting within the sound discretion of the trial court, and appellate courts will not disturb the exercise of that discretion absent evidence of its abuse.” (Citation, punctuation and footnote omitted.) Wheeler v. State, 327 Ga.App. 313, 317 (2) (758 SE2d 840) (2014). While we have held that an expert may testify that a child’s behavioral characteristics are consistent with those of a child who has been sexually abused, Holsey v. State, 199 Ga. App. 782, 784 (7) (406 SE2d 127) (1991), we find no authority, and Jackson has pointed to none, that prohibits testimony from other witnesses about a victim’s demeanor during the time of the alleged acts of molestation. See, e.g., Ochoa v. State, 252 Ga.App. 209, 210 (1) (555 SE2d 857) (2001) (evidence that showed victim had negative changes in mood and behavior during time of molestation part of sufficient evidence of molestation). Cf. Woods v. State, 304 Ga. App. 403, 404-405 (1) (696 SE2d 411) (2010) (citing testimony that victim’s grades dropped and she became angry around the time of molestation as support for conviction). Whether this testimony was permissible was within the discretion of the trial court, and we cannot say that the court abused its discretion here.

4. Jackson contends that trial counsel rendered ineffective assistance on several grounds. Pursuant to the two-prong test set forth in Strickland v. Washington, 466 U. S. 668 (104 SCt 2052, 80 LE2d 674) (1984),

[i]n order to prevail on his claim of ineffective assistance, [Jackson] must show deficient performance on the part of counsel and prejudice to his defense resulting from that deficient performance. Moreover, he must overcome the strong presumption that trial counsel’s conduct falls within the broad range of reasonable professional conduct. On appeal, this Court accepts the trial court’s findings of fact, unless they are clearly erroneous. The trial court’s legal conclusions are reviewed de novo.

(Citations and punctuation omitted.) Griffin v. State, 292 Ga. 321, 324 (6) (737 SE2d 682) (2013). “[A]n insufficient showing on either of [the Strickland] prongs relieves the reviewing court of the need to address the other prong.” (Citation and punctuation omitted.) Fuller v. State, 277 Ga. 505, 507 (3) (591 SE2d 782) (2004).

(a) Jackson asserts that counsel was ineffective in failing to object to the admission of the letter S. C. gave to her mother in which she made her initial outcry, because it was self-serving and bolstered the victim’s testimony. In the same enumeration, he complains that counsel was also ineffective in allowing the letter to go out with the jury in violation of the continuing witness rule. But “the letter was not the reduction to writing of an oral statement, nor was it a written statement provided in lieu of testimony”; it was original documentary evidence of the victim’s outcry, Young v. State, 292 Ga. 443, 446 (3) (b) (738 SE2d 575) (2013), and was therefore admissible. See Brown v. State, 291 Ga. 892, 897 (3) (734 SE2d 23) (2012) (admission of note allegedly written by victim admissible as original documentary evidence); see also Foster v. State, 294 Ga. 383, 385 (5) (754 SE2d 33) (2014) (incriminating letter written by defendant to co-defendant admissible as original documentary evidence); Vinyard v. State, 177 Ga. App. 188, 190 (1) (338 SE2d 766) (1985) (private communication between witness and defendant was independent and original evidence; letter did not substitute for testimony). For this reason, it was not error for the document to go out with the jury. See Young, supra (no continuing witness violation for letter of jailhouse informant to witness to go out with jury); Foster, supra. Therefore, trial counsel “was not deficient when he failed to object to the letter going out with the jury.” Young, supra.

Moreover, even if the letter went out with the jury in violation of the continuing witness rule, Jackson has failed to show a reasonable probability that the outcome of the trial would have been different had counsel objected on that ground. With regard to Jackson’s actions, the victim’s letter to her mother stated only that Jackson “started touching [her] in a bad way then he started forcing [m]e to do things,” and was not nearly as specific and detailed as her trial testimony concerning the specific sex acts, the progression from touching her breasts to placing his penis in her mouth and in her vagina, and the testimony that these incidents occurred more than once and when they occurred. And, in light of T. C.’s testimony, the mother’s testimony concerning the circumstances of the outcry, and the polygraph examiner’s testimony that Jackson was being deceptive when denying that he molested the girls, we cannot say that, had the jury not been allowed to reconsider the letter during deliberations, that the outcome of the trial would have been different. See Zellars v. State, 278 Ga. 481, 484 (6) (a) (604 SE2d 147) (2004) (no harm from continuing witness violation in allowing photographic array to go back with jury where same witnesses who identified defendant in array were his friends, and they testified at trial and identified him as the perpetrator).

(b) Jackson contends that trial counsel was ineffective in failing to object to the presence of S. C.’s counselor in the courtroom. The record reveals and the parties agree that when S. C. entered the courtroom to take the stand, a woman walked in with her and then sat in the courtroom audience. Trial counsel then asked to approach the bench, and the following colloquy took place:

[TRIAL COUNSEL]: Your Honor, somebody walked in with [S. C.] I’m not sure who she is, but I want to —
THE STATE: She’s not — She’s not a witness.
[TRIAL COUNSEL]: I just wanted to insert — make sure that we invoke the rule at this time.
THE STATE: That’s fine. She’s not — She’s just her counselor.
THE COURT: Okay.
(Bench Conference Concluded)

Counsel testified at the motion for new trial hearing that after he was told that the counselor was not a witness, he felt it was her right to be present in the courtroom. Jackson has failed to show that this decision was made in error. As noted by the trial court, “[t]he child testified completely on her own with no coaching or prompting by this person.” Moreover, the counselor’s presence or the fact that she was S. C.’s counselor was not brought to the attention of the jury. In the absence of such evidence, Jackson cannot establish the prejudice prong of the Strickland test. Cf. Jones v. State, 312 Ga. App. 15, 17 (1) (a) (717 SE2d 526) (2011) (cannot presume jury was unfairly tainted by defendant’s appearance in handcuffs).

(c) Jackson argues that counsel was ineffective in failing to adequately challenge the testimony regarding the polygraph examination. He contends counsel performed deficiently by failing to object to the examiner’s qualifications and failing to restrict his testimony regarding the evidence to its limited lawful purpose. Trial counsel testified that he did not recall particularly asking questions regarding the examiner’s foundation as an expert, but that if he did not ask, it was for the purpose of “not further bolstering his credentials.” Counsel explained further that his strategy was to challenge the manner in which the examiner conducted the examination because the video recording of the exam showed the examiner “fondling with the equipment... placing ... the leads on ... Jackson’s body ... put them on, take them back off, and ... he kind of went behind the machine and unplugged something and plugged it back up.” Counsel testified that because it appeared either that the machine was not working properly or the examiner was not conducting himself properly, he chose to challenge the administration of the test.

Trial counsel’s decision here was a matter of reasonable trial strategy. Cf. Johnson v. State, 280 Ga.App. 341, 344 (3) (c) (634 SE2d 134) (2006) (counsel’s decision to attack State’s polygraph expert through cross-examination and not call polygraph expert in rebuttal to save closing argument, reasonable trial strategy). And such matters do not amount to ineffective assistance. “[T]his Court does not evaluate trial counsel’s tactics and strategic decisions in hindsight.” (Citation and punctuation omitted.) Upton v. Parks, 284 Ga. 254, 257 (2) (664 SE2d 196) (2008).

(d) Jackson asserts that counsel was ineffective in failing to object to the written summary and oral testimony of the counselor’s background and education and then allowing those qualifications to go out with the jury. Trial counsel testified that he did not recall any particular reason he did not object. But Jackson has nevertheless failed to show that had counsel objected to the expert’s background and qualifications and objected to those qualifications going back with the jury, there is a reasonable likelihood that the outcome would have been different. See Young, supra, 292 Ga. at 446 (3) (b). This claim of ineffectiveness therefore fails.

(e) Jackson asserts that trial counsel was ineffective in failing to object to the testimony of the counselor that “bolstered the truthfulness of the victim.” He argues that the counselor improperly bolstered the victim’s testimony when the State asked the counselor, “And by the end, did she tell you exactly what Mr. Jackson had done to her?,” to which the counselor responded, “She ... did.” “What is forbidden is expert opinion testimony that directly addresses the credibility of the victim, i.e., T believe the victim; I think the victim is telling the truth[ ].’ ” (Citations and punctuation omitted.) Odom v. State, 243 Ga.App. 227, 228 (1) (531 SE2d 207) (2000). But the counselor did not give an opinion about whether S. C. was telling the truth, but rather stated simply that S. C. told her what Jackson had done. This testimony did not “directly address [ ] the credibility of the victim.” (Emphasis supplied.) Wright v. State, 327 Ga. App. 658, 661 (2) (a) (760 SE2d 661) (2014) (after victim told her aunt defendant put his hand down her pants, aunt stated, “When I asked her what — he really done that, she said yeah . . . And I knew”; testimony was not improper bolstering as it was vague and ambiguous and aunt never elaborated what she knew). Because the counselor’s testimony was not bolstering here, counsel’s failure to object was not deficient. Id. “Failure to make a meritless objection cannot be evidence of ineffective assistance.” Hayes v. State, 262 Ga. 881, 884-885 (3) (c) (426 SE2d 886) (1993).

(f) Jackson argues that counsel failed to adequately interview and prepare two defense witnesses for trial. Specifically, he contends that counsel’s failure resulted in one witness testifying that she met Jackson through “Narcotics Anonymous,” and another witness offering nothing relevant at trial because she stated that she had never been alone with Jackson. Trial counsel testified that he interviewed the first witness, but did not recall cautioning her “not to say certain things and even if I did, I’m sure those things would’ve came out on cross-examination either way.” Counsel did not recall the second witness’ testimony that she had never been alone with Jackson, but the record shows this witness testified that her mother left her brothers and sisters alone in the home with him. Counsel explained that he called these two witnesses to put Jackson’s good “character up.” Jackson has failed to show that had these witnesses been better interviewed or prepared, they would not have testified as they did. Additionally, an attorney’s instructions to a nonclient witness can be explored during cross-examination, resulting in more potential harm from an allegation of coaching.

[Jackson] has offered no evidence to show a reasonable probability that more preparation would have changed the outcome at trial. To show prejudice, a defendant is required to offer more than mere speculation that, absent the counsel’s alleged errors, a different result probably would have occurred at trial.

(Citation and punctuation omitted.) Porter v. State, 292 Ga. 292, 295 (3) (c) (736 SE2d 409) (2013). Moreover, we find no reasonable probability that the complained-of testimony affected the outcome of Jackson’s trial.

(g) Jackson claims that trial counsel was ineffective in failing to present testimony regarding the results of S. C.’s physical exam, which he alleges would have shown that S. C.’s hymen was found to be intact. Jackson submitted this report at the second hearing on the motion for new trial. The report stated, “Estrogenized crescentic hymen [with] scalloped edges and normal vascularization .... Normal exam. Does not rule out sexual abuse.”

Decided November 21, 2014.

Steven M. Harrison, for appellant.

K. David Cooke, Jr., District Attorney, Jason M. Wilbanks, Assistant District Attorney, for appellee.

Although Jackson did not produce the physician’s testimony on motion for new trial, counsel testified at the hearing that “there was a note on exam the doctor did not rule out sexual abuse, but I don’t believe they exclusively say that they did find signs of any abuse.” Counsel was not asked during the hearing whether his failure to produce the physical exam results was part of his trial strategy. We must therefore presume that counsel’s failure to do so was trial strategy and tactics that do not amount to ineffectiveness. See Jones v. State, 304 Ga. App. 109, 114 (2) (b) (695 SE2d 665) (2010). This conclusion is supported by the record. In closing argument, counsel pointed to the failure of the State to produce any physical evidence of abuse.

Because each ground of ineffectiveness asserted by Jackson fails either one or both prongs of the Strickland test, the trial court did not err in denying his motion for new trial on his claim that he received ineffective assistance of trial counsel. See, e.g., Brock v. State, 270 Ga. App. 250, 254 (8) (605 SE2d 907) (2004).

Judgment affirmed.

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

       We note that voir dire is not a part of the trial transcript here on appeal. The transcript contains only the colloquy following Jackson’s Batson motion.

       The trial court instructed the jury:
      Polygraph evidence is considered opinion evidence and is governed by the law concerning opinion evidence.... A polygraph examiner’s opinion can only be used to indicate whether at the time of the polygraph examination the defendant believed that he was telling the whole truth. You are not bound by the polygraph examiner’s conclusions, and the examiner’s testimony is not controlling on the issues and may he entirely disregarded by you. It is for you to decide what weight, if any, should be given to the evidence concerning the polygraph test, its results, and the examiner’s opinions and conclusions.

       We note that former OCGA § 24-3-16, Georgia’s Child Hearsay Statute, does not apply to the facts of this case because S. C. was 14 at the time of the outcry.

       Trial counsel only objected that the letter should be redacted before being published to the jury. At the hearing on the motion for new trial, counsel testified that he did not recall objecting to the admission of the letter or it going out with the jury, and that he did not “believe that there would have been any reason not to object to that if I did not.”

       In Georgia the “continuing witness” objection is based on the notion that written testimony is heard by the jury when read from the witness stand just as oral testimony is heard when given from the witness stand. But, it is unfair and places undue emphasis on written testimony for the writing to go out with the jury to be read again during deliberations, while oral testimony is received but once.
      (Citation omitted.) Dunagan v. State, 255 Ga. App. 309, 310-311 (3) (565 SE2d 526) (2002).


author: Phipps, Chief Judge.

text:
    A14A1463.
    DAVIS v. THE STATE.
    (766 SE2d 566)
   Phipps, Chief Judge.

Wayne Anthony Davis appeals his convictions for kidnapping (with bodily injury), aggravated assault (family violence), and failure to register as a sex offender. He contends that the evidence was insufficient to support his convictions. The evidence was sufficient to support the convictions for kidnapping and aggravated assault, so we affirm those convictions. However, because the evidence was not sufficient to support the conviction for failure to register as a sex offender, we reverse that conviction.

In assessing whether the evidence was sufficient to support [Davis’s] convictions, we neither weigh the evidence nor judge the credibility of witnesses, but determine only whether, after viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

So viewed, the evidence showed the following. Davis and L. A. had been dating for several years and, from January 2011 to about May 2011, Davis resided with L. A. in her home on Corps Airport Road in Decatur County, Georgia “the majority of the time.” Although Davis operated a business in Bristol, Florida, he kept clothing and other personal items at L. A.’s home, usually going to her home when he left work; he “stayed” in L. A.’s home more than 30 days in 2011.

On about May 2, 2011, about two days after L. A. ended the relationship, Davis entered L. A.’s home and struck L. A. with a baseball bat several times on the head and on the arm. He bound her hands, placed her in the trunk of a vehicle, and poured gasoline over her head. With L. A. in the trunk, Davis drove the vehicle for about 30 to 45 minutes, then let L. A. out of the trunk in a wooded area in Bristol, Florida and threatened to kill her. L. A., who was then bleeding, dizzy, and unable to stand or walk, persuaded Davis to summon help for her. Davis phoned 911, and L. A. was taken by ambulance to a Tallahassee, Florida hospital. There, L. A. received, along with other treatment, stitches to repair 20 centimeters of lacerations to her head. When asked at trial whether L. A.’s injuries were significant, the emergency room physician who had treated her characterized them as “horrible.”

1. Without stating any specific basis therefor, Davis contends that the evidence was insufficient to support the convictions for kidnapping (with bodily injury) and aggravated assault. Based on the evidence presented, the contention is without merit.

2. Davis contends that the evidence was insufficient to prove that he failed to adhere to the requirements of OCGA § 42-1-12 (e) (7) because: (a) he was not required to register the Corps Airport Road address, which was only his temporary address; and (b) testimony from the state’s witness regarding Davis’s alleged failure to register was insufficient to prove that he had failed to register as required by the statute.

The indictment charged that Davis committed the offense of failure to register as a sex offender in that on or about May 2, 2011, in Decatur County, Georgia, he was

required to register pursuant to OCGA § 42-1-12 (e) by virtue of having previously been convicted of the offense of Lewd Assault, Sexual Battery on Minor... on June 14, 1999, in Gadsden County, Florida, . . . and having been released from prison and having moved to the State of Georgia, did fail to comply with the requirements of OCGA § 42-1-12 (f) by failing to notify the Decatur County Sheriff’s Office, within 72 hours prior to establishing his new residence, in violation of OCGA § 42-1-12 (n).

OCGA § 42-1-12 (e) pertinently provides:

Registration pursuant to this Code section shall be required by any individual who: (1) Is convicted on or after July 1, 1996, of a criminal offense against a victim who is a minor; (2) Is convicted on or after July 1, 1996, ofadangerous sexual offense; (3) Has previously been convicted of a criminal offense against a victim who is a minor and may be released from prison or placed on parole, supervised release, or probation on or after July 1, 1996; (4) Has previously been convicted of a sexually violent offense or dangerous sexual offense and may be released from prison or placed on parole, supervised release, or probation on or after July 1,1996;... (7) Is a nonresident sexual offender who enters this state for the purpose of employment or any other reason for a period exceeding 14 consecutive days or for an aggregate period of time exceeding 30 days during any calendar year regardless of whether such sexual offender is required to register under federal law, military law, tribal law, or the laws of another state or territory [.]

OCGA § 42-1-12 (f) pertinently provides:

Any sexual offender required to register under this Code section shall:... (2) Register in person with the sheriff of the county in which the sexual offender resides within 72 hours after the sexual offender’s release from prison or placement on parole, supervised release, probation, or entry into this state; ... (3) Maintain the required registration information with the sheriff of each county in which the sexual offender resides or sleeps [.]

Any sex offender who fails to register as required under OCGA § 42-1-12 and who fails to comply with the requirements of said Code section shall be guilty of a felony.

Assuming, without deciding, that Davis was required to notify the Decatur County Sheriff’s Office that he was establishing the Corps Airport Road address as his residence, the state did not prove that he had failed to give such notice.

At trial, to prove the charge that Davis had failed to register as a sex offender as alleged in the indictment, the state called only one witness. After the witness stated her name and affirmed that she had been sworn, the following examination occurred:

Q: [L. C.], what do you do for the sheriff’s office?
A: I register sex offenders.
Q: What does that mean?
A: If you’re a convicted sex offender, you have to register in the state where you live or where you’re employed, if you are in the state vacationing or volunteering, you have to register with that county where you are at.

Decided November 21, 2014.

Kevin C. Armstrong, for appellant.

Q: And how many days do they have to be living there in the calendar year in order for them to register with you?
A: If they’re there for 14 days or 30 days in calendar year, they have to register with the sheriff’s office.
Q: And has a Wayne Anthony Davis ever registered and [sic] address on Corps Airport Road with youl[ ]
A: No, sir, he has not.
Q: Have you ever seen him before?
A: No.
Q: And he has to register within 72 hours of changing the residence; is that correct?
A: Seventy-two hours prior to moving, they have to register.

The witness gave no further testimony. We note that the witness did not testify, for example, that she was working at the sheriff’s office at the time Davis was required to register, or that she was the only person in that office with whom Davis could have registered; nor did the witness testify that if Davis had registered with the sheriff’s office, his registration would be included in certain records and that she had reviewed such records, but that no such registration was included therein.

“[T]he burden of proof rests upon the State to prove every material allegation of the indictment and every essential element of the crime charged beyond a reasonable doubt.” A rational trier of fact could not have found beyond a reasonable doubt from the evidence presented that Davis violated the sex offender registration requirements of OCGA § 42-1-12. Therefore, the conviction for failure to register as a sex offender must be reversed.

Judgment affirmed in part and reversed in part.

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

Joseph K. Mulholland, District Attorney, Moruf O. Oseni, Assistant District Attorney, for appellee.

       OCGA § 16-5-40 (a) (“A person commits the offense of kidnapping when such person abducts or steals away another person without lawful authority or warrant and holds such other person against his or her will.”); OCGA § 16-5-40 (d) (4) (regarding punishment where the person kidnapped received bodily injury).

       OCGA § 16-5-21 (b) (“Aperson commits the offense of aggravated assault when he or she assaults: ... (2) With a deadly weapon or with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury.”); OCGA § 16-5-21 (k) (regarding punishment where the offense is committed between, pertinently, persons living or formerly living in the same household).

       OCGA § 42-1-12.

         Dorsey v. State, 327 Ga. App. 226, 227-228 (757 SE2d 880) (2014) (punctuation and footnote omitted).

       The indictment charged Davis with kidnapping, pertinently alleging that he abducted L. A. without lawful authority and held her against her will, with said act resulting in bodily injury to L. A.

       The indictment charged Davis with aggravated assault (family violence), pertinently alleging that he assaulted L. A. with a baseball bat, an object which when used offensively is likely to and actually did cause serious bodily injury by striking her arm and head, and that Davis and L. A. formerly had lived in the same household.

       See generally Kinsey v. State, 326 Ga. App. 616, 626 (7) (a) (757 SE2d 217) (2014); Lewis v. State, 317 Ga. App. 218, 220 (1) (735 SE2d 1) (2012).

       OCGA § 42-1-12 (n) (1).

       This was the second part of the bifurcated jury trial.

       (Emphasis supplied.)

        Sharpe v. State, 291 Ga. 148, 151 (4) (728 SE2d 217) (2012) (citation omitted); see OCGA § 16-1-5 (“Every person is presumed innocent until proved guilty. No person shall be convicted of a crime unless each element of such crime is proved beyond a reasonable doubt.”).

       See generally Eilers v. State, 304 Ga. App. 607-608 (697 SE2d 295) (2010).