text:
    A12A1477.
    ASKEW v. THE STATE.
    (734 SE2d 222)
   BARNES, Presiding Judge.

On February 14, 2001, Derrick DeAngelo Askew entered a negotiated plea of guilty to one count of rape and one count of burglary and was sentenced to serve concurrent terms of life plus twenty years. Two additional counts of burglary were nol prossed. On July 11,2011, Askew filed a pro se motion for an out-of-time appeal. On October 4, 2011, the trial court appointed counsel to represent Askew. Askew, thereafter, filed a motion to withdraw his guilty plea, motion for new trial, and second motion for an out-of-time appeal. Following a hearing, the trial court denied the motions and it is from that order that Askew appeals. Upon our review, we affirm.

1. Askew contends that he is entitled to an out-of-time appeal because the trial court did not inform him of his right to appeal and because the trial court and State erroneously gave him the impression that he was eligible to have his sentence reviewed by the Sentence Review Panel. He contends that his pursuit of a sentence review precluded filing a timely appeal from his guilty plea.

It is well established that a criminal defendant has no unqualified right to file a direct appeal from a judgment of conviction and sentence entered on a guilty plea, and an appeal will lie from a judgment entered on a guilty plea only if the issue on appeal can be resolved by facts appearing in the record. The ability to decide the appeal based on the existing record thus becomes the deciding factor in determining the availability of an out-of-time appeal when the defendant has pled guilty.

(Citations and punctuation omitted.) Brown v. State, 290 Ga. 321 (1) (720 SE2d 617) (2012). If an issue raised by the defendant in a motion for out-of-time appeal “can be resolved against him based upon the existing record, there is no error in denying the motion.” Id. at 321 (2). Thus, “the denial of a request for out-of-time appeal is proper if an examination of the record reveals no merit to the claimed errors.” (Citation omitted.) Childs v. State, 311 Ga. App. 891, 891 (717 SE2d 509) (2011). “The denial of a motion for out-of-time appeal is a matter within the discretion of the trial court. A court’s decision to deny such a motion will not be overturned absent an abuse of discretion.” Brown, 290 Ga. at 321 (1).

Regarding Askew’s contention that the trial court misled him regarding his sentence review, the record reflects that the trial court incorrectly advised Askew that “[y]ou do have the right to have this sentence reviewed by the Sentence Review Panel,” and that he should do so within 30 days. Askew filed an application for sentence review on February 16, 2001, which was subsequently denied on August 27, 2001. The Panel indicated that it lacked jurisdiction because “OCGA § 17-10-6.1 prohibited the review of . . . rape.” See former OCGA § 17-10-6.1 (a).

To the extent that the trial court erred in misinforming Askew that he had a right to sentence review, the misinformation came after he pled guilty to the charges and thus could not have contributed to his decision to enter his plea. See generally Reed v. State, 251 Ga. App. 606, 607 (554 SE2d 792) (2001) (eligibility to have a sentence reviewed by the Sentence Review Panel is a collateral consequence). Moreover, although Askew contends that the misinformation precluded him from initiating an “appeal” of his guilty plea, the trial court was not required to inform him of such a right. See Lewis v. State, 266 Ga.App. 812, 813 (598 SE2d 90) (2004) (no duty to inform defendant of appellate rights following guilty plea). As such, it does not follow that the trial court’s actions would have then precluded him from undertaking the pursuit of any appellate remedies.

2. Askew also claims that he was not adequately advised at his plea hearing of his federal constitutional rights as required by Boykin v. Alabama, 395 U. S. 238 (89 SC 1709, 23 LE2d 274) (1969), rendering his guilty pleas not knowing, intelligent and voluntary and authorizing the withdrawal of his guilty plea.

The entry of a guilty plea involves the waiver of three federal constitutional rights: the privilege against compulsory self-incrimination, the right to trial by jury, and the right to confront one’s accusers. It is the duty of a trial court to establish that the defendant understands the constitutional rights being waived, and the record must reveal the defendant’s waiver of those constitutional rights. Boykin, supra, 395 U. S. at 243.

Beckworth v. State, 281 Ga. 41, 42 (635 SE2d 769) (2006).

At the plea hearing, Askew was advised:

[Yjou’re giving up certain rights by your plea. You have a right to a trial by a jury, that at the jury trial the State must prove you guilty beyond a reasonable doubt. You wouldn’t have to testify or produce any evidence against yourself; you could subpoena and call witnesses to testify in your behalf. Your lawyer could cross-examine anyone testifying against you.

Askew confirmed that it was his choice to plead guilty, that no promises, force, or threats were used to influence that decision, and that he understood the nature of the charges and the sentencing ranges they carried. Finally, Askew’s counsel acknowledged that a psychological examination determined that Askew was mentally competent. Askew was then asked if his attorney had reviewed the plea proceeding form with him, and if it was his signature on the form. Askew responded in the affirmative to both inquiries. The form stated, in relevant part, that Askew understood the nature of the charges against him and waived his rights to, among other things, a trial by jury, to confront witnesses, and to not incriminate himself.

We have held that a plea statement form like the one at issue here is sufficient to establish that a guilty plea was knowingly and voluntarily entered when the plea statement is included in the record and accompanied by a colloquy like that between the trial court and Askew. Gainer v. State, 267 Ga. App. 408, 409 (599 SE2d 359) (2004). While, as Askew argues, the colloquy at the hearing did not contain a statement by a court official explicitly telling him that he had the right to not “incriminate” himself, the State need not show that Uniform Superior Court Rule 33.8 was recited to the letter to rebut an attack on a guilty plea. See McClendon v. State, 256 Ga. 480, 481 (2) (350 SE2d 235) (1986). If the record demonstrates that “the accused has a full understanding of the concepts involved, the appellate courts will not invalidate a guilty plea for failure to use the precise language” of those rights. (Citations and punctuation omitted.) Hawes v. State, 281 Ga. 822, 824 (642 SE2d 92) (2007).

Judgment affirmed.

Adams and McFadden, JJ., concur.

Decided November 13, 2012.

Jennifer A. Trieshmann, for appellant.

Peter J. Skandalakis, District Attorney, Steven H. Lee, Assistant District Attorney, for appellee.

       As of July 1, 2007, former OCGA § 17-10-6 was repealed, and OCGA § 17-10-6.3 came into effect. Ga. L. 2007, pp. 595, 596, §§ 2, 3.


source: Caselaw Access Project

author: BARNES, Presiding Judge.

license: Public Domain

text:
    A12A1570.
    In the Interest of A. S. et al., children.
    (734 SE2d 225)
   BARNES, Presiding Judge.

The father of three minor children appeals from the juvenile court’s order finding the children to be deprived and discontinuing reunification services. He contends that the juvenile court erred in finding the children deprived, in admitting hearsay testimony, and in relieving the Department of Family and Children Services (DFCS) from providing him with reunification services. For the reasons that follow, we affirm.

“On appeal from a juvenile court’s order finding deprivation, we review the evidence in the light most favorable to the juvenile court’s judgment to determine whether any rational trier of fact could have found by clear and convincing evidence that the children were deprived.” (Citation and punctuation omitted.) In the Interest of G. G., 253 Ga. App. 565 (560 SE2d 69) (2002).

In a nonpublished opinion issued on March 31, 2010, this court affirmed a contempt order issued by the juvenile court against the father in August 2009. In the Interest of A. S., 303 Ga. App. XXII (March 31, 2010). We noted that the children were subject to the juvenile court’s jurisdiction pursuant to orders entered on November 26, 2008, and April 23, 2009, in which the juvenile court found them deprived because they had been exposed to domestic violence. The August 2009 contempt order was based on the father’s knowing violation of the court’s orders that he have no contact with the children until he legitimated them and received the court’s permission to visit them, as well as on his conspiring to conceal the children’s location and actively hindering the court’s ability to place the children in protective custody.

The father argued in the previous appeal that the juvenile court was not authorized to consider any harmful inference from his invocation of the Fifth Amendment and his refusal to answer questions about him living with the mother in Florida or about the location of his children. We disagreed, holding that, “in a juvenile court proceeding such as this, if a party invokes the 5th Amendment, the trial court may infer that a truthful answer would be harmful.” Further, in addition to any harmful Inferences the juvenile court could draw from the father’s refusal to answer questions about the location of the mother and children, the court also based its contempt order on evidence that the father had recently been living with the mother in Florida in violation of court orders and was providing her with financial assistance, which allowed her to keep the children in Florida.

The finding that the father was in contempt is res judicata. See Rich v. New, 174 Ga. App. 73, 74 (329 SE2d 176) (1985). The father is also bound by the findings that, at the time of the previous unappealed orders, the children were then deprived for the reasons given in the orders, and the trial court in this proceeding properly considered the facts judicially established during the previous deprivation proceedings. In the Interest of J. A., 286 Ga. App. 704, 706-707 (649 SE2d 882) (2007); In the Interest of B. P., 207 Ga. App. 242, 244 (427 SE2d 593) (1993). We reiterate some of those facts here because they are relevant to whether clear and convincing evidence supports the juvenile court’s October 2011 order finding the children deprived and discontinuing reunification services.

The father began having sexual relations with the mother when she was fifteen and he was in his mid-forties. She moved in with the father when she was sixteen and four months pregnant. He had never physically abused her before she moved in with him, “just verbally and stuff,” but after she moved in he began choking and hitting her.

By August 2008, the father and mother had two children, ages one and two, who entered shelter care and were temporarily placed in the custody of Cobb County DFCS. The mother had left them with the father after he became physically abusive to her in the car with the children present. She did not remember the children’s reactions then, but they were usually scared and crying when the father became angry at the mother.

After a hearing in November 2008, the juvenile court found that the mother was the children’s only legal parent and had stipulated that they were deprived by exposure to domestic violence. The court placed the children in the mother’s custody, ordered her to live with them at her aunt’s residence, and ordered that the father have no contact with them until he had legitimated them, sought visitation and received court approval. At that time the father was incarcerated on charges of child molestation, statutory rape, and aggravated sexual battery against the children’s mother when she was 15.

The juvenile court scheduled a hearing in January 2009 to review the placement and consider the father’s legitimation petition, but the parties agreed to continue it until March 2009. The court then continued the March 2009 hearing because the mother was expecting a third child with the father, a psychologist report on the father had not been completed, and the parties wanted to take each other’s depositions.

After the third child was born on March 18, 2009, DFCS was granted an expedited hearing to determine if she was also deprived, whether the mother had moved from her aunt’s house, and whether the father was violating the previous custody order by having contact with the older two children. In April 2009, the juvenile court issued its order finding the third child deprived, noting that the father chose not to appear at a hearing on March 23, 2009, to consider the deprivation petition, although his counsel had appeared at a separate hearing on his request to depose the mother. The court ordered that the father have no contact with any of the three children until he legitimated them and had sought and received the court’s permission to visit them.

In May 2009, the CASA reported that the mother had called to relay that her relative had put her and the children out, but would not reveal her current location. The mother failed to appear at a hearing on May 12, 2009, and the juvenile court issued an ex parte order immediately placing the children in temporary protective custody with DFCS because the mother and children had moved from the relative’s residence. The court ordered the sheriff to locate the children.

The mother testified that the father told her in June or July 2008 not to take the children to court again because she had lost custody of them. He took her and the children to a small motel somewhere in Georgia and left her there, then eventually took them to live in a motel in Florida. The father stayed with her “off and on” during this time, and she was working as an adult entertainer. He married the mother in Florida on June 26, 2009, because by doing so he automatically legitimated the children, and had their birth certificates amended to reflect that he was their father. He left the children with their mother in Florida and returned to Georgia “a couple of days after the marriage.”

On July 9, 2009, DFCS asked the juvenile court for an expedited hearing to review the children’s placement, having received information that the mother and children were in Florida and the father had been in contact with them. DFCS also moved the court to issue an arrest warrant for the mother based on her violations of the protective order, submitting as exhibits a Florida police report of a burglary at an Orlando hotel and copies of the mother’s and father’s driver’s licenses obtained from the hotel. The police did not locate the children, but found a note in the hotel room, apparently from the mother, in which she says she was very ill mentally, was trying to detach from her children so she could give them up, and had thoughts of killing the children “in the least painful way possible” so she could “know they are in heaven and not being abused.” The juvenile court issued an arrest warrant for the mother on July 10,2009, but the location of the mother and children remained unknown.

After the police came to the Florida hotel looking for the father, he gathered the mother and children and took them to Greenville, South Carolina, where the mother remained “in hiding with the kids.” She testified that during the four years she lived with the father, he committed ongoing ‘layers” of abuse, which always included “his main thing,” choking. She was completely dependent on the father financially.

On August 2009, the father was being held for a bond revocation related to the charges involving the mother while she was 15, and DFCS successfully petitioned the court for an expedited hearing to call the father for cross-examination to determine where the children were located. During the August 19, 2009, hearing, as described earlier, the father invoked his Fifth Amendment privilege against self-incrimination, and the court found him in wilful contempt. The juvenile court ordered the father to remain incarcerated for 20 days.

The father was released from jail in mid-September 2009, when the court dismissed the contempt charges against him. While the father filed a notice of appeal of the contempt citation on September 17,2009, he failed to appear at a juvenile court hearing on September 29, 2009. The juvenile court continued the hearing based on representations from the father’s attorney that he had miscommunicated the date to the father, but the father did not appear at the rescheduled hearing on October 5, 2009, either. His attorney had no explanation for the father’s failure to appear, and the juvenile court issued a bench warrant for the father’s arrest on November 6, 2009.

The children remained missing for 18 more months, during which time the father sent multiple letters to the juvenile court proclaiming his love and care for the children, along with pictures, medical records, and other documentation, none of which disclosed their location. The court delivered the missives unread to the detective who had been involved in the case since 2008 and who had been trying to locate the children since May..2009.

In January 2011, DFCS moved the court to review the disposition placement and consider whether to dismiss its deprivation petition without prejudice and relieve the department of custodial responsibility of the children, as their whereabouts were unknown and it was impossible for the department to provide them with foster care services. The court held a hearing and denied the motion. Shortly after that, the father sent a medical report to the court or to DFCS that included his address in North Carolina. The investigating detective instigated a process through which the father was located and arrested on March 17,2011, for interference with custody. He was released on bond shortly after he was arrested, but the children had already been placed with Youth and Family Services (YFS) in North Carolina. After a hearing on March 22,2011, the North Carolina court determined that jurisdiction of the children was properly with the Cobb County, Georgia court and ordered YFS to return them to Cobb County DFCS.

The children were returned to DFCS custody, and on March 24, 2011, DFCS filed a petition alleging the children were deprived and seeking to change the parenting plan to nonreunification. The juvenile court specially set a deprivation hearing for May 12, 2011, and a new attorney máde an entry of appearance for the father. The father requested discovery and a continuance, which the court granted in an order finding that the children remained deprived because the father was in jail and the mother had not been located and was believed to be homeless. The order also noted that the court’s previous order giving DFCS temporary custody of the children was set to expire on May 21,2011, and ordered that DFCS custody be extended to May 21, 2012.

The court heard the deprivation petition and motion to establish a case plan of nonreunification on June 28, 2011, August 9, 2011, and August 10, 2011. At the hearing, the father stipulated that the children could not live with him at that time because he was incarcerated on the interference with custody charge and was not working.

When asked if he had known where the children were located at the time of the hearing in August 2009, two weeks after his marriage, he responded, “I can’t say at this time that I knew exactly where they were at that time.” He also did not tell the court he had legitimated the children. He testified that he was released from jail on the contempt charge in mid-September 2009, and within a month he was living in a hotel in South Carolina with the mother and children. That month, he testified, the mother “said she no longer wanted to be around the children or me,” and she left them. He filed a divorce petition in January 2011, which he served on the mother at a shelter after he found her on Facebook, and the divorce became final in March 2011.

The father further testified that he did not know he was supposed to bring the children back to the court, because he thought that when he legitimated them, his “rights” to the children superseded any previous court order regarding custody. He repeatedly asserted that he was under no court order regarding the children, because the initial proceedings involving the mother and children described him as the “putative” father, and the case plans only directed him to legitimate the children, which he did. He testified that, after he sent the DFCS caseworker all the paperwork showing he had married the mother and legitimated the children, the caseworker told him he only needed to call her once a month. Despite pointed questioning from the juvenile court, the father could not explain why he sent letters to the court while the children were missing, in which he repeatedly asked the court not to take the children from him. The juvenile court noted that the father did not include any return addresses on any of the letters he sent the court after he left Georgia.

The mother, who was 23 at the time, was located in a North Carolina jail after the first day of the hearing, and was present during the last two days. She testified that she finally left the father in South Carolina in September 2009 and went to a homeless shelter after an incident in which the father became angry with her for “looking at a guy or something” at a mall. She explained that the father “just got into . . . one of his moods and looks, . . . thinking I was looking at someone and I wasn’t.” She recognized the signs of impending trouble from prior incidents of abuse, and testified, “And I just couldn’t do it anymore.... I just left and he had the kids.” She visited them once in January 2010, and the children were well-cared-for, although she herself did not feel safe in the father’s house. She testified she only saw him hit one of the children inappropriately once, when “he popped [the child] on the mouth when she kept crying” and the father would not let the mother pick her up, but that generally he was a good father.

DFCS presented evidence at the deprivation hearing that, in 1986, the father pled guilty to three separate incidents of lewd and lascivious conduct for masturbating in the presence of three different minor victims, and was sentenced to three-and-a-half years, of which he served 287 days in custody. The father was subsequently indicted in Ohio in 1988 for two counts of rape and one count of kidnapping involving an ex-girlfriend, and he pled guilty in 1989 to reduced charges of two counts of “gross sexual imposition” and one count of abduction. He pled guilty and served 17 months in prison, was released on probation, then in 1991 his probation was revoked for reasons not apparent in the record. He remained incarcerated until July 2000. Three years later, the father met and began having sex with the mother when she was fifteen.

On redirect on the last day of the deprivation hearing, the father testified that after the mother walked off in October 2009, he lived with the children in a motel room until he reestablished his business and moved into a house. He further testified that the children were enrolled in private school and were doing well, and argued that no one had ever introduced any evidence that he was an unfit parent. He testified he had never been convicted of domestic violence, and said several times over the course of the hearing that the ongoing court proceedings were a “personal vendetta” against him. He admitted during cross-examination, however, that the “gross sexual imposition” and abduction charges to which he had pled guilty in 1989 involved his ex-girlfriend.

Regarding his prior convictions for sexual offenses, the father asserted they were irrelevant to the question of whether the children were currently deprived, because he committed the offenses “a long time ago,” had undergone treatment, and had changed. The mother testified that, while she was not concerned about her children’s safety with the father, two incidents with other children seemed “weird” dr “strange.” When they lived in Cobb County the father used to take food to a nine- or ten-year-old girl’s house while her parents were at work, which she thought seemed inappropriate. Another time he directed her to take the children into their hotel room while he remained in the pool with two unescorted children, who were also about nine. The mother stipulated at the hearing that she could not care for the children because she was in custody and had not seen them since January 2010.

The foster mother testified about several incidents in which the two older children, then four and five, said odd things of a sexual nature. The first time, within two weeks of their coming to live with her, she heard them in the back seat of the car talking about “cookies and peepee.” When she asked them what that meant, the five-year-old said, “ [Y] ou know, that’s when D addy and J essica are naked under the covers making umm, umm, umm noises,” and then asked, “Am I going to do that?” “Jessica” had introduced herself at the beginning of the hearing as the father’s “nanny/girlfriend,” and the father testified that he had hired her to watch the children while he worked. In the living room on another occasion, the five-year-old defined “cookies and peepee” as “when Daddy put his peter in [Jessica’s] vagina.” In another incident, the five-year-old pointed to a Ken doll’s private parts and told her brother, “[Y]ou can eat that.” Onadifferent day, the brother described a jogger without a shirt on as “naked,” and the foster mother corrected him because the jogger was wearing shorts. The child volunteered, “Daddy sometimes walks around the house in his underwear and sometimes without the underwear.”

In a thirty-page written order, the trial court found clear and convincing evidence the children were currently deprived based on eight findings of fact: (1) neither parent could care for the children as both were incarcerated; (2) the father’s contemptuous behavior in hindering the juvenile court from exercising its jurisdiction over the children for almost two years placed them at risk; (3) the father had a history of sexually deviant behavior toward both adults and children; (4) the father repeatedly abused the mother physically in the presence of the children during the four years she lived with him, which made them cry; (5) the parents violated the court’s previous orders, by the mother allowing the father to have contact with the children and the father helping the mother hide the children from the court, which revealed a “careless disregard for the safety and well being of the children which is indicative of their inability to provide appropriate care”; (6) the mother had a history of a nomadic lifestyle, moving from relatives’ houses, hotels, shelters, and returning to the abusive father, and had no means or ability to support them; (7) the mother had expressed thoughts of harming the children to free them from the father’s abuse; and (8) the children would suffer inevitable neglect and/or injury if allowed to remain in the control of either parent.

The father filed a notice of appeal, and the court subsequently held a permanency hearing and issued an order denying the father’s request for visitation and establishing concurrent case plans of reunification, placement with a relative, guardianship by a non-related person, or adoption through termination of parental rights, depending indirectly on the outcome of this appeal. The father also challenges that order in his appeal.

1. The father argues that the juvenile court erred in finding that clear and convincing evidence showed the children were presently deprived, addressing each of the court’s findings related to him.

A “deprived child” is one who:

(A) Is without proper parental care or control, subsistence, education as required by law, or other care or control necessary for the child’s physical, mental, or emotional health or morals;
(B) Has been placed for care or adoption in violation of law;
(C) Has been abandoned by his or her parents or other legal custodian; or
(D) Is without a parent, guardian, or custodian.

OCGA § 15-11-2 (8). This court reviews the evidence in the light most favorable to the juvenile court’s judgment to determine whether any rational trier of fact could have found by clear and convincing evidence that a child was deprived, and whether, under the circumstances, the court properly awarded temporary custody of the child to someone other than the parent. In the Interest of M. K., 288 Ga. App. 71, 71 (1) (653 SE2d 354) (2007). “This Court neither weighs the evidence nor determines the credibility of witnesses. We instead defer to the trial court’s factfinding and affirm unless the appellate standard is not met.” In the Interest of D. A., 240 Ga. App. 561, 562 (524 SE2d 248) (1999).

The juvenile court issued numerous previous orders, which it took into consideration in issuing this deprivation order. The two previous unappealed orders adjudicating the children deprived bind the parents to the finding that the children were then deprived for the reasons given in the orders. In the Interest of R. C. M., 284 Ga. App. 791, 798, n. 6 (645 SE2d 363) (2007). Additionally, as discussed previously, this court affirmed the father’s criminal contempt citation for hiding the children from the court’s jurisdiction. In the Interest of A. S. The father concedes on appeal that he was unable to have contact with the children as of August 2011 due to the conditions of his bond for interference with custody, but argues that none of the court’s other findings establish current deprivation. To the contrary, he asserts, the juvenile court failed to make any connection between the children’s present status and his previous contemptuous behavior, his history of sexually deviant behavior, his abuse of the mother, his violation of prior court orders, and his lack of credibility. The court simply concluded that the children would suffer inevitable neglect or injury, he contends, which was not a finding that they were currently deprived.

That the father was unable to provide parental care and control of the children at the time of the deprivation hearing because of the conditions of his bond constitutes clear and convincing evidence that supports the juvenile court’s conclusion that the children were deprived. Aside from that fact, if the father’s arguments were valid, then a parent or putative parent could hide his deprived children from the juvenile court for an extended length of time, and then, when they were found, assert that the court could not prove that the children were deprived because the court had no information about the children’s current living conditions.

The father moved the children to three different states while he was hiding them from the juvenile court and from DFCS review. Of course DFCS could not introduce evidence about the status of the children’s parental care, control, subsistence, or education necessary for their physical, mental, or emotional health when they were with their father, because DFCS did not know where they were. The evidence did show that the children had no contact with their mother when they were found, because the father had physically and mentally abused her until she left the children to escape him. Further, the juvenile court specifically found that the father “forwarded correspondence to this court in an apparent attempt to influence the decision in regard to the children’s placement, and it is disingenuous for [the father] to assert he does not know the children remain under the jurisdiction of” the juvenile court.

The evidence, as reviewed previously, was sufficiently clear and convincing to enable the trier of fact to find that the children were presently deprived.

2. The father argues that the juvenile court erred in allowing the foster mother to give hearsay testimony about statements the children had made to her. At the end of the first day of hearing, when DFCS asked the foster mother if the children had made any statements “which are sexual in nature toward their father,” the father objected, on the ground that the statements were not admissible under the Child Hearsay Statute. DFCS responded that the evidence was admissible as statements by the children against their interest in maintaining the parental relationship with their father, and the court took the matter under advisement.

When court reconvened, DFCS argued that the foster mother’s testimony about statements the children made to her was admissible under either the hearsay exception of party admissions against interest or under the Child Hearsay Statute, OCGA § 24-3-16. The court directed DFCS to bring the children to the courthouse so they would be “available,” and once they were, DFCS again called the foster mother to the stand. The court overruled the father’s objection to the question whether the children had made statements to the foster mother “regarding sexual information,” and the foster mother testified about the children’s statements as described previously. On appeal the father argues that the trial court abused its discretion in allowing the testimony because the children were not victims of abuse and the statements did not involve any acts of abuse, and therefore the Child Hearsay Statute did not apply.

OCGA § 24-3-16 provides that a statement by a child under 14

describing any act of sexual contact... performed with or on another in the presence of the child is admissible in evidence by the testimony of the person or persons to whom made if the child is available to testify in the proceedings and the court finds that the circumstances of the statement provide sufficient indicia of reliability.

“[T]he child is ‘available to physically appear’ if the child is in the courthouse and ‘available if necessary’ to be called as a witness.” (Citation omitted.) In the Interest of A. T., 309 Ga. App. 822, 826 (711 SE2d 382) (2011).

Here, the statements described acts of sexual contact performed with another person in the child’s presence. The children were physically in the courthouse and thus available to testify. The juvenile court found them competent to testify under the provisions of OCGA § 24-9-5 (b), which provides that “in all cases involving deprivation as defined by Code Section 15-11-2 ... any such child shall be competent to testify.” We find no error.

3. Finally, the father argues that the juvenile court erred in finding “clear and convincing evidence that reasonable efforts to reunify the children with a parent would be detrimental to the children and reunification services, therefore, should not be provided.”

As with orders finding deprivation, on appeal from a juvenile court order discontinuing reunification services to a parent, we construe the evidence in the light most favorable to the juvenile court’s findings. In the Interest of J. B., 274 Ga. App. 564 (618 SE2d 187) (2005). OCGA § 15-11-58 (h) provides that when reviewing a DFCS decision to pursue a nonreunification plan, the juvenile court “shall determine by clear and convincing evidence whether reasonable efforts to reunify a child with his or her family will be detrimental to the child and that reunification services, therefore, should not be provided or should be terminated.” The statute also provides that reasonable family reunification efforts “shall not be required to be made with respect to a parent of a child if a court of competent jurisdiction has determined that. . . [t]he parent has subjected the child to aggravated circumstances which may include but need not be limited to abandonment, torture, chronic abuse, and sexual abuse.” OCGA § 15-11-58 (a) (4) (A).

The father argues that the juvenile court in this case failed to make specific findings of fact that efforts toward reunification would be detrimental, but held simply that “the evidence which supports the establishment of a case plan of nonreunification includes” the eight specific findings supporting the deprivation conclusion. The father also argues that the juvenile court never entered a reunification plan that was directly addressed to him, and that he complied with the directives in the mother’s case plans requiring that he legitimate the children, pay for their support, and provide relative placement options. Because he married the mother and legitimated and supported the children, he contends, he did everything the court wanted him to do. Further, he argues, “protective orders are not included in OCGA § 15-11-58 (h) (1), which refers specifically to case plans for reunification,” and therefore failure to comply with those orders does not create a presumption under the statute that reunification services should not be provided.

In other words, the father argues that after preventing DFCS from preparing a reunification case plan for him by hiding the children from the juvenile court from May 2009 until they were found in March 2011, the law requires that he be allowed to start over as if he had never taken the children and their mother and hid them from the court.

We disagree. Under OCGA § 15-11-58 (a) (4) (A), the juvenile court may determine that reasonable efforts at family reunification are not required due to aggravating circumstances. The juvenile court in this case made specific findings of fact that the father conspired with the mother to defy the court’s protective conditions and placed the children at risk of neglect and abuse while he concealed their whereabouts. It found that the establishment of a nonreunification case plan was supported by the fact that the parents “failed and refused to comply with prior protective conditions of this court which were designed to reunify the children with their mother.” The father exposed the children to unstable living environments, moving them and their mother from state to state while hiding from the court. The father physically abused the mother, sometimes in the children’s presence, until she finally left the children with him because “he was the one with the money” and she did not want to move them from shelter to shelter. The father thus exposed the children to repeated episodes of violence and deprived them of their relationship with their mother. Finally, the father also has a history of sexual deviancy and began sleeping with the mother when she was still a minor.

Decided November 13, 2012.

Cynthia A. Lain, Diana R. Johnson, for appellant.

Samuel S. Olens, Attorney General, Shalen S. Nelson, Senior Assistant Attorney General, Penny Hannah, Assistant Attorney General, Sanders B. Deen, for appellee.

Considering the evidence and the juvenile court’s findings of fact, the juvenile court did not err in finding “by clear and convincing evidence that reasonable efforts to reunify the children with a parent would be detrimental to the children and reunification services, therefore, should not be provided.”

Judgment affirmed.

Adams and McFadden, JJ., concur.

       The mother has not appealed from the current deprivation order.

       On June 28,2011, DFCS filed notice of its intention to petition to terminate both parents’ parental rights.

       While the father stated in his appellate brief that his bond condition had been modified to allow him contact with the children, and DFCS stated in its brief that he had been incarcerated since April 2012 for new offenses, the record itself contains no evidence with regard to either claim.

       The father did not raise a Confrontation Clause issue during the hearing, and even if he had, the children’s statements to the foster mother were nontestimonial in nature. Therefore, we need not consider whether DFCS was required to call the children to testify. See Bunn v. State, 291 Ga. 183, 189 (2) (b), n. 4 (728 SE2d 569) (2012); Hatley v. State, 290 Ga. 480, 484-485 (II) (722 SE2d 67) (2012).


author: DOYLE, Presiding Judge.

text:
    A12A0917.
    JARAYSI et al. v. SEBASTIAN et al.
    (733 SE2d 785)
   DOYLE, Presiding Judge.

This appeal concerns a dispute between a landlord and a former tenant. Lee Jaraysi, Nazareth Management, LLC, and Nazareth Plaza, LLC, the owner and operators of Nazareth Plaza shopping center in Marietta (collectively, “Jaraysi” or “Nazareth”), sued lessee Alberto Sebastian and lease guarantor, Sebastian Auto Sales, Inc., (collectively, “Sebastian”), for breach of contract and damage to real property. Following a bench trial, the court found in favor of Sebastian on these claims and in favor of Jaraysi on Sebastian’s counterclaim. On appeal, Jaraysi contends the trial court erred by refusing to enforce the lease or to award monetary damages on his claim for property damage to the leased premises. For the reasons that follow, we affirm in part, reverse in part, and remand the case for further proceedings consistent with this opinion.

Jaraysi owns the Nazareth Plaza shopping center in Marietta. In October 2005, Nazareth leased space in the shopping center to Sebastian for use as a nightclub. Jaraysi also owns an unfinished office building located across the street from the shopping center, and Sebastian understood that Jaraysi would be completing construction by May 2006. Jaraysi did not complete construction of the office building by May 2006; nonetheless, Sebastian and Nazareth signed an amendment to the lease in October 2006. As amended, the term of the lease ran from October 1, 2006, through September 30, 2010, and the monthly rent increased to $8,800 for the first year, with scheduled increases of three percent each year thereafter. In addition to some other special stipulations, the amended lease provided that “[sjpace will be leased out in ‘AS IS’ condition. Under this agreement, [n]o work, whatsoever, is required to be done b[y] the Landlord.” The parties understood and agreed that “[ejxcept as amended by this Lease Amendment, all of the terms, conditions[,] and provisions of the Lease shall remain in full force and effect.”

With respect to maintenance and repair of the premises, the parties agreed that nothing contained in the lease

shall be deemed or construed to impose upon Landlord any obligation or liability whatsoever for care, supervision, repair, improvement, addition, change, or alteration of the Premises, the building of which it is a part or the Shopping Center, other than as in this Lease expressly provided.

The Lease Agreement contained a waiver provision that provided “[o]ne or more waivers of any covenant, term or condition of this Lease by either party shall not be construed as a waiver of any subsequent breach of the same covenant, term or condition,” and an Entire Agreement clause that stated: “This Lease contains the entire agreement between the parties and no agreement, representation or inducement shall be effective to change, modify or terminate this Lease in whole or in part unless in writing and signed by the parties.” Under Exhibit “H,” Special Stipulations, Sebastian agreed to accept the premises in an “as-is condition.” The Lease Agreement also included an express covenant of quiet enjoyment:

Landlord hereby covenants and agrees that if Tenant shall perform all of the covenants and agreements herein required to be performed on the part of the Tenant, Tenant shall, subject to the terms of this Lease, at all times during the continuance of this Lease have the peaceable and quiet enjoyment and possession of the Premises against Landlord and all persons or entities claiming by, through or under Landlord. Anything herein to the contrary notwithstanding, Landlord expressly reserves the right at any time(s) to change the name and/or address of the Shopping Center and to make changes, additions, deletions, removals, replacements, alterations and improvements in and to all or any part of the Shopping Center. In no event shall Landlord be subject to any liability therefor nor shall any such actions constitute a full or partial actual or constructive eviction or a default of Landlord’s covenant of quiet enjoyment or entitle Tenant to any compensation, rent reduction, Lease amendment or termination or any other redress or remedy, and the same shall apply to any action taken by Landlord with respect to the Common Areas pursuant to Article V hereof.

After Sebastian opened the nightclub in 2006 there occurred, according to Sebastian, a “ramp up of crime” around neighboring clubs. Sebastian’s customers complained about criminal activity in the parking lot, including fights, vehicle break-ins, and the use of illegal drugs. His customers also complained that people were hiding in an unfinished building owned by Jaraysi and located across the street from the shopping center. Sebastian notified Jaraysi about the criminal activity and what he contended to be poor lighting in the parking lot. Jaraysi indicated he would “go ahead and take care of it.” Jaraysi also told Sebastian that he would finish the office building. According to Sebastian, Jaraysi was continuously promising “to finish the building, put in more lighting . . ., [fix] the street signs [,] and [get] more security in there,” although Jaraysi did not do any of these things between April 2009 and May 2010.

In April 2009, Sebastian’s attorney notified Jaraysi that Sebastian was “forced to declare the lease” void due to his failure to provide quiet enjoyment of the leased premises and that Sebastian and his nightclub would vacate the premises effective July 30, 2009. After Jaraysi received the letter, Sebastian told Jaraysi that he was not making enough money because he had lost clientele. Jaraysi told Sebastian that he was “willing to reduce the rent in order to keep Sebastian going.”

Sebastian further testified that he and Jaraysi agreed that Sebastian would pay reduced rent in the amount of $6,500 “until the business picked up again.” Jaraysi testified that he agreed to reduce the rent for the months of June, July and August 2009 and he produced an “Amendment to amendment to lease dated 10-03-06,” signed on behalf of Nazareth by Jaraysi, indicating that Nazareth agreed to reduce the rent to “give [Sebastian] the opportunity to build the business back up.” Sebastian paid $6,500 per month rent from June 2009 through April 2010. When Sebastian sent one of his managers to submit the rent check for May 2010, Jaraysi returned the check, saying that he would no longer accept $6,500, but that he would instead accept $9,300. Sebastian did not pay rent for May 2010 or thereafter, and he vacated the premises in April 2010. Jaraysi instituted dispossessory proceedings in May 2010 and obtained a writ of possession on June 8, 2010.

In June 2010, Jaraysi filed the underlying lawsuit against Sebastian seeking to recover the difference between the $9,335 monthly rental amount contemplated by the lease and the $6,500 paid by Sebastian from September 2009 through April 2010, the full amount of unpaid rent for May 2010 through September 2010, damage to real property, and attorney fees. Sebastian answered, asserting the defenses of payment, waiver, and estoppel, and he counterclaimed for breach of the covenant of quiet enjoyment, seeking lost profits and attorney fees. After a bench trial, the trial court entered a written order in favor of Sebastian on the claims asserted by Jaraysi and in favor of Jaraysi on Sebastian’s counterclaims. Jaraysi’s appeal followed.

1. While Jaraysi enumerates five errors on appeal, the first four arise out of his argument that the trial court erred by finding that he breached the parties’ contract. We agree that the Lease Agreement was a valid and binding contract and that Jaraysi did not breach the Lease Agreement or its written amendment, including the express covenant of quiet enjoyment.

(a) Breach of Lease Agreement.

Sebastian’s only breach of contract allegation is that Jaraysi breached an implied covenant of quiet enjoyment. Specifically, Sebastian argues that Jaraysi failed in this regard as a result of criminal activity in the parking area of the shopping center, the need for more lighting to deter crime, and the unfinished office building. As an initial matter, we note that nothing in the Lease Agreement, including the terms of the express covenant of quiet enjoyment, obligated Jaraysi to provide security or additional lighting or to complete construction of the office building. To imply such obligations would be inconsistent with the terms of the Lease Agreement, which indicated that the premises were leased “as-is” and that Jaraysi had no “obligation or liability whatsoever for care, supervision, repair, improvement, addition, change, or alteration of the Premises, the building of which it is a part or the Shopping Center.” Thus, none of these failures constitutes a breach of the Lease or express covenant of quiet enjoyment.

Sebastian’s defense, however, depends on the covenant for quiet enjoyment of the premises, which is necessarily implied in every lease. Such a covenant “goes to the extent of engaging that the landlord has a good title and can give a free and unencumbered lease of the premises for the term stipulated.” The covenant of quiet enjoyment is one of three separate covenants that arises out of a general warranty of title. Thus, “[t]o constitute breach of the covenant of quiet enjoyment, an eviction or equivalent disturbance by title paramount must occur.” The disturbance must be “of such grave and permanent character as would render the premises unfit for tenancy, and is such as would actually deprive and would legally import the intent to deprive the tenant of their enjoyment, it amounts in law to an eviction of the tenant....” Further, the covenant of quiet enjoyment obligates the landlord to protect the tenant only against the landlord’s own acts and not against the acts of strangers that disturb the tenant in his quiet enjoyment and possession of the rented premises.

There is no evidence in the record that any conduct of Jaraysi prevented Sebastian from using his premises for a nightclub. To the contrary, despite the increase in criminal activity, incomplete office building, and need for improved lighting, Sebastian remained on the premises and operated his nightclub until April 2010, when Jaraysi refused to accept the reduced rent. This does not amount to an actual or constructive eviction or a substantial interference with his right to use and enjoy the leased premises, which were not rendered untenantable.

Sebastian relies on Hathaway v. Gorfine to support his argument that Jaraysi’s failure to provide adequate lighting can support a breach of the covenant of quiet enjoyment. In Hathaway, the lessor and the lessee entered into a written lease as to an area of land in a shopping center where the lessee was to construct the premises. The lessor sued the lessee for rent due under the lease, and the lessee counterclaimed for breach of the covenant of quiet enjoyment. The evidence showed that at the time the leased premises were ready for occupancy, the landlord had not completed the shopping center, there was no parking lot, landscaping was unfinished, and there existed a problem in maintenance and “keeping the shopping area lighted”; this Court concluded that the lessee, who was completely unable to use the leased premises for the purposes intended, had been constructively evicted.

Topvalco, Inc. v. Garner, relied upon by Sebastian, is also inapposite. Therein, the lessee argued that the landlord failed to provide adequate security contrary to a covenant of quiet enjoyment. The issues on appeal were whether the lessee had waived the covenant of quiet enjoyment by remaining on the premises, and if not, whether she could recover lost profits for such a breach. Topvalco involved no discussion of the lease terms between the parties, nor does it stand for the proposition that implied covenants of quiet enjoyment include an obligation to provide adequate security.

(b) Pre-Lease Promise.

Sebastian claims that Jaraysi made a pre-lease promise to complete the office building adjacent to the shopping center by May 2009. Irrespective of whether Jaraysi made such a promise or not, the Lease Agreement contained a merger clause that the lease contained the entire agreement between the parties and “no agreement, representation or inducement shall be effective to change, modify or terminate this Lease in whole or in part unless in writing and signed by the parties.” A promise made by the parties prior to the execution of the Lease Agreement or its Amendment cannot be used to vary the express terms of the contract.

(c) Oral Post-Lease Promises.

Sebastian argues that J araysi breached a subsequent oral agreement to accept reduced rent in June 2009 and thereafter and to provide security and additional lighting and to finish the adjacent office building. Alease, such as this, for a period longer than one year must be in writing because it falls within the Statute of Frauds, and “a contract which is required by the Statute of Frauds to be in writing can not be modified by a subsequent agreement in parol.” As such, the parties could not enter into an oral agreement to modify the four-year lease.

However, even though the attempt at oral modification of the Lease Agreement may not satisfy the Statute of Frauds, where “a modification of the written contract has been agreed to by all parties, performed by one and accepted by the other, there [can be] a waiver of the provisions of the original contract.”

Here, the parties expressly agreed to reduce the rent for a period of time ranging from “the three months of June, July and August, 2009” to “until the business picked up again” to help Sebastian build his business back up. And there is evidence to support the trial court’s finding that even if Jaraysi only agreed to three months, Jaraysi waived his right to insist on the original Lease payment terms for the period of time between September 2009 and May 2010 when Sebastian tendered and he accepted reduced rent payments and before he gave notice of his intent to reinstate the rent payment terms of the original lease.

Where parties, in the course of the execution of a contract, depart from its terms and pay or receive money under such departure, before either can recover for failure to pursue the letter of the agreement, reasonable notice must be given to the other of intention to rely on the exact terms of the agreement. The contract will be suspended by the departure until such notice.

Thus, the trial court did not err by rejecting Jaraysi’s claim for the difference in unpaid rent from September 2009 to May 2010.

There is no evidence, however, that Jaraysi waived the “as-is” or the “maintenance and repair” clauses or engaged in a course of conduct or business practice whereby he obligated himself to provide security and additional lighting and to complete the office building. As testified to by Sebastian, Jaraysi did none of these things between April 2009 and May 2010. At best, Jaraysi’s course of conduct was consistent with the terms of the Lease Agreement and would have been to disavow any additional obligations. As such, the trial court erred by finding that Jaraysi had breached a subsequent oral agreement to provide security and additional lighting and to complete the office building, and by denying Jaraysi unpaid rent from May 2010 through the end of the Lease term on this basis.

2. Jaraysi further contends that the trial court erred by failing to award him monetary damages on his claim for damage to real property. Jaraysi testified that he inspected the property after Sebastian vacated the leased premises and found “a lot of damages to the floor, . . . the sinks, all equipment,” as well as leftover trash and debris. According to Jaraysi, he personally made some repairs to the premises, and he “fixed the ceiling, broken walls” and “some of the floors,” and “spen[t] about maybe close to eighty five, eighty six hundred dollars.” The nature of the expenditures was not documented or prorated as to the particular repair.

In response, Sebastian examined the photographs Jaraysi took after Sebastian vacated the premises, which were introduced into evidence to support Jaraysi’s claims. Sebastian maintained that they showed “just trash,” and that there was “[n]o structural damage at all.” According to Sebastian, the ceiling tiles appeared to be “just push[ed] away from the base,” and “were not like that when we left.” On cross-examination, Sebastian denied destroying the carpets or taking any sinks or countertops, but he did not deny that he scratched the floors.

In assessing the evidence, the trial court was entitled to find Sebastian more credible than Jaraysi. The trial court could have concluded that Sebastian had not damaged the ceiling or broken the walls, which Jaraysi said he spent money to fix. Although the evidence may have demanded the conclusion that Sebastian damaged the floors by scratching them, Jaraysi did not show what he expended in repairing the scratches to the floor. Thus, while the cost to repair real property maybe an appropriate measure of damages, as Jaraysi asserts, the trial court was not required to conclude that the evidence established the costs of repairing damage for which Sebastian was responsible. And damages cannot be established by “speculation, conjecture and guesswork.” Accordingly, there was at least some evidence from which the trial court could find for Sebastian on Jaraysi’s claim for damages to real property.

Decided October 30, 2012

Reconsideration denied November 14, 2012

Cauthorn & Nohr, Thomas E. Cauthorn III, Leslie D. O’Neal, for appellants.

Bailey & Davis, C. Lee Davis, Kenneth S. Waldrop, for appellees.

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

Barnes, P. J., and Dillard, J., concur.

       Neither the Lease Agreement nor the subsequent amendment thereto required the Landlord to maintain the shopping center or provide lighting or security.

       Despite this enumeration of error, there does not appear to be any dispute that the Lease Agreement and the Amendment were valid and binding contracts. Sebastian does not argue to the contrary or that J araysi breached any of its express terms. J araysi does argue that there was a mutual departure by the parties from the express contract terms, and that argument is addressed further below.

       See Myung Sung Presbyterian Church v. North American Assn. of Slavic Churches &c., 291 Ga. App. 808, 813 (3) (662 SE2d 745) (2008).
      The introduction of an implied term into the contract of the parties can only he justified when the implied term is not inconsistent with some express term of the contract and where there arises from the language of the contract itself, and the circumstances under which it was entered into, an inference that it is absolutely necessary to introduce the term to effectuate the intention of the parties.
      Id. at 811 (2) (punctuation omitted). Thus, while a covenant for quiet enjoyment of the premises is necessarily implied in every lease, when, as here, the parties expressly provided for it, there is no need to imply the covenant. Nonetheless, the law applicable to an implied covenant of quiet enjoyment may be applicable to the extent it does not contradict the language used by the parties in the Lease Agreement or impose obligations not contemplated by the parties.

       (Punctuation omitted.) Dwyer v. McCoy, 236 Ga. App. 326, 329 (5) (512 SE2d 70) (1999) (where life tenant leased premises and then died before the lease term expired, covenant of quiet enjoyment was breached because the unexpired term of the lease was void and unable to be fulfilled). See also Adair v. Allen, 18 Ga. App. 636 (2) (89 SE 1099) (1916).

        See McMurray v. Housworth, 282 Ga. App. 280, 285 (2) (638 SE2d 421) (2006). The other two covenants are (1) the covenant of a right to sell; and (2) the covenant of freedom from encumbrances. See id.

       Id. at 285-286 (2). In Myung Sung, the lessee was deprived of the use of a leased building when the City of Norcross removed it from the landlord’s premises. See Myung Sung, 291 Ga. App. at 808-809. This Court noted that it was not necessary for the lessee to actually vacate the property to establish a breach of the implied covenant of quiet enjoyment, hut could establish a breach by showing that the lessor “substantially interfered with the lessee’s right to use and enjoyment of the premises.” Id. at 813 (3). Nonetheless, to establish a constructive eviction, the lessee must show that the property “ha[s] become an unfit place for the [lessee] to carry on the business for which it was rented.” Alston v. Ga. Credit Counsel, 140 Ga. App. 784, 785 (1) (232 SE2d 134) (1976) (to establish constructive eviction, premises must be rendered untenantable, not just uncomfortable).

        Feinberg v. Sutker, 35 Ga. App. 505, 506 (1) (134 SE 173) (1926) (demolition of building adjoining rented property rendered leased premises unsafe and unusable). See also Alston, 140 Ga. App. at 785 (1).

       See Parker v. Munn Sign &c., 29 Ga. App. 420 (115 SE 926) (1923) (no breach of quiet enjoyment where third party destroyed part of the buildings of the rented premises); Eley v. L. & L. Mfg. Co., 30 Ga. App. 595 (118 SE 583) (1923) (disorderly tenants, not landlord, were liable to tenant who abandoned premises due to nightly noise).

       See Hardwick, Cook & Co. v. 3379 Peachtree, Ltd., 184 Ga. App. 822, 825 (3) (363 SE2d 31) (1987) (Despite undisputed substantial disruption at the leased premises during renovation, lessee “continued its occupancy and its business during the renovation, and nothing in the record indicates a constructive eviction.”).

       134 Ga. App. 748, 749 (216 SE2d 338) (1975).

       See id. at 748.

       See id. at 749-750 (1).

       210 Ga. App. 358 (436 SE2d 25) (1993).

       See id. at 261 (2).

       See Taylor Freezer Sales Co. v. Hydrick, 138 Ga. App. 738, 741 (4) (227 SE2d 494) (1976) (“Prior and contemporaneous statements and agreements cannot be shown to vary, contradict or change the terms of a valid written contract purporting on its face to contain all the terms of an agreement between parties.”). Further, we note that Sebastian executed the Amendment in September 2006, knowing that Jaraysi had not completed construction of the office building by May 2006. Sebastian argues that J araysi should be bound by his promises under the doctrine of promissory estoppel, but because he signed the Amendment with full knowledge that Jaraysi’s promise of completion by May 2006 had not occurred, he cannot establish that he was induced to sign the lease in reliance on the promise. See OCGA § 13-3-44 (a).

       OCGA § 13-5-30 (5).

        B-Lee’s Sales Co. v. Shelton, 141 Ga. App. 870, 870-871 (234 SE2d 702) (1977). Further, the Lease contained an “Entire Agreement” clause that prohibited oral modifications. Digby’s, Inc. v. Emory Univ., 227 Ga. App. 176, 177-178 (489 SE2d 81) (1997).

        Lester v. Trust Co. of Ga., 144 Ga. App. 526, 527 (241 SE2d 633) (1978) (where court determined that Statute of Frauds or a lack of consideration did not bar contract claim because the Bank’s acceptance of payments amounted to a waiver of the terms of the original contract during the period of the quasi-new agreement); B-Lee’s Sales, 141 Ga. App. at 872-873.

       OCGA § 13-4-4. Any departure relates only to the specific term altered by the departure and not the remaining terms of the contract. Wright Carriage Co. v. Business Dev. Corp. of Ga., 221 Ga. App. 49, 52 (1) (471 SE2d 218) (1996); State Mut. Ins. Co. v. Strickland, 218 Ga. 94 (1) (126 SE2d 683) (1962).

       On remand, it is for the trial court to determine whether Jaraysi’s rejection of the May 2010 rent payment was sufficient notice of his intent to rely on the original Lease payment terms and the impact on any rent that may he due under the lease, if any.

       We also note that, inconsistent with his enumeration of error, Jaraysi makes an alternate argument that the trial court did not “provide a ruling” on his damage-to-real-property claim. But the trial court, after hearing evidence related to the claim for property damage to the leased premises, entered a judgment on “plaintiffs’ claims.”

       See Hayes v. Alexander, 264 Ga. App. 815, 817 (592 SE2d 465) (2003) (“In a bench trial, the trial court determines the credibility of witnesses and may accept or reject any part of a witness’s testimony, even in the absence of contradictory testimony.”) (citation omitted).

       See Ga. Northeastern R. v. Lush, 277 Ga. 245, 247 (2) (587 SE2d 643) (2003).

        Song v. Brown, 255 Ga. App. 562, 564 (565 SE2d 884) (2002) (punctuation omitted).

       See Page v. Braddy, 255 Ga. App. 124, 127 (564 SE2d 538) (2002) (‘While some portion of the claimed sum may have been properly recoverable [,] such portion is not determinable from the lump sum evidence presented.” (punctuation omitted)).


author: Ray, Judge.

text:
    A12A1087.
    COLEMAN v. THE STATE.
    (735 SE2d 788)
   Ray, Judge.

Edward Coleman was tried by a DeKalb County jury and convicted on August 5,2009, of criminal attempt to commit burglary. He filed a motion for new trial on general grounds in September 2009. On April 1, 2011, Coleman filed an amended motion for new trial, in which he claimed, among other things, that the indictment was defective and that his trial counsel rendered ineffective assistance of counsel by failing to file a demurrer to the indictment. The trial court disagreed, and Coleman appeals from the denial of his motion for new trial. We find no error and affirm Coleman’s conviction.

1. Coleman contends his criminal attempt to commit burglary conviction is void because the indictment failed to allege the essential element of intent to commit a theft. Specifically, the indictment at issue alleges the offense of “ATTEMPT TO COMMIT A FELONY,” stating that Coleman

did attempt to commit the crime of Burglary ... in that [he] did knowingly and intentionally perform acts which constitute a substantial step toward the commission of said crime, to wit: entered the patio and attempted to pry the window of the dwelling house belonging to [the victim] located at 420 Creekview Place.

According to Coleman, the indictment was deficient because it did not contain all the essential elements of the crime of burglary. We disagree.

As an initial matter, we note that an accused may challenge the sufficiency of an indictment by filing a special or general demurrer. A special demurrer challenges the sufficiency of the form of the indictment, such as an allegation that a felony murder indictment is insufficient because it does not contain all the essential elements of the underlying crime of aggravated assault. This type of demurrer seeks specificity with regard to the predicate felony, and it must be filed within ten days after the arraignment, unless the trial court extends the time for filing. A general demurrer, on the other hand, challenges the sufficiency of the substance of the indictment, such as an allegation that an indictment contains a defect on its face affecting the substance and merits of the offense charged, like a failure to charge a necessary element of a crime. Because a general demurrer attacks the legality of an indictment, it may be raised any time during the trial and may even be raised after the verdict by a motion in arrest of judgment; however, a motion in arrest of judgment must be made during the term when the judgment was obtained.

The record is clear in this case that Coleman did not file a special demurrer, and even if we consider Coleman’s amended motion for new trial as a motion in arrest of judgment, this general demurrer, filed nearly a year and a half after the jury’s verdict, was untimely. The failure to file a general or special demurrer, or a timely motion in arrest of judgment, waives any claim that could have been raised in a general or special demurrer.

Even assuming, however, that Coleman could challenge the validity of the indictment on appeal, we see no fatal flaw in the indictment. An indictment shall be deemed sufficiently technical and correct to withstand a general demurrer if it “states the offense in the terms and language of this Code or so plainly that the nature of the offense charged may easily be understood by the jury.”

An indictment is not subject to dismissal unless there is a defect so extreme that the defendant can admit the charge as made and still be innocent. The issue is not whether the indictment 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 he must be prepared to meet, and, in case any other proceedings are taken against him for a similar offense, whether the record shows with accuracy to what extent he may plead a former acquittal or conviction. It is useful to remember that the purpose of the indictment is to allow [a] defendant to prepare his defense intelligently and to protect him from double jeopardy.

The indictment in this case clearly charged that Coleman attempted to commit a burglary, not that he completed the crime. And pursuant to OCGA § 16-4-1, a person commits criminal attempt “when, with intent to commit a specific crime, he performs any act which constitutes a substantial step toward the commission of that crime.” Because Coleman was charged with criminal attempt, the State “was required to allege that, with an intent to commit the underlying crime, he performed some overt act toward its commission.” This was done, and “[t]he indictment tracks the applicable [statute] in a manner that is easily understood, and it apprised [Coleman] of both the crime and the manner in which it was alleged to have been committed.” If Coleman admitted the allegations precisely as set forth in the indictment, he would be guilty of criminal attempt to commit burglary.

While it is not explicitly stated in the indictment that Coleman intended to commit a burglary when he entered the patio and attempted to pry open the window of the victim’s dwelling, such intent is necessarily inferred from the allegation that Coleman “attempted” to commit the crime of burglary by “knowingly and intentionally” performing acts which constitute a substantial step toward the commission of the crime. Considering the allegations of the indictment as a whole, “[t]here can be no reasonable doubt that [Coleman] was sufficiently informed of the charges against him and also protected from subsequent prosecution for the same crime.” Thus, the indictment is not defective, and the trial court did not err in denying Coleman’s motion for a new trial on this ground.

2. Coleman also contends that his trial counsel was ineffective for failing to file a special or general demurrer to the attempted burglary charge in the indictment. In order to prevail on a claim of ineffective assistance of counsel, Coleman must prove both that the performance of his trial lawyer was deficient and that he was prejudiced by this deficient performance. To prove that the performance of his lawyer was deficient, Coleman must show that his lawyer performed his duties at trial in an objectively unreasonable way, considering all the circumstances and in the light of prevailing professional norms. To prove that he was prejudiced by the performance of his lawyer, Coleman must show “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Areasonable probability is a probability sufficient to undermine confidence in the outcome.” This burden, although not impossible to carry, is a heavy one.

In this case, pretermitting whether Coleman is able to demonstrate deficiency in his trial counsel’s failure to file a special demurrer to the indictment, he is unable to establish prejudice.

A defendant is entitled to be tried on an indictment that is perfect in form. And, if an indictment is imperfect, a defendant may file a special demurrer challenging the form of the indictment. If no special demurrer is filed, any error in the indictment’s form is waived. If the demurrer is granted, the trial court quashes the indictment. However, the quashing of an indictment merely bars trial on the flawed indictment; it does not bar the State from reindicting the defendant. Thus, even if [Coleman’s] attorney had filed a demurrer, it would not have prevented the State from reindicting and trying [Coleman]. And [Coleman] does not argue that the imperfect indictment prejudiced his defense in any way. Under these circumstances, [Coleman] has failed to show that he was prejudiced by his attorney’s failure to file such demurrer.

Likewise, Coleman is unable to establish the prejudice necessary for us to find that his trial counsel was deficient for failing to file a general demurrer to the indictment. As we found in Division 1, the indictment in this case properly alleged the intent to commit the specific offense of burglary, as required by the defining language of the criminal attempt statute. Moreover,

when trial has been had before the appellate court reviews the merits of the motion to quash, where no prejudice to defendant has occurred though the indictment (or accusation or citation) is not perfect, reversal is a mere windfall to defendant and contributes nothing to the administration of justice. Convictions are no longer reversed because of minor and technical deficiencies which do not prejudice the accused. Upon a proceeding after verdict, no prejudice being shown, it is enough that necessary facts appear in any form, or by fair construction can be found within the terms of the indictment (or accusation or citation). Thus a defendant who was not misled to his prejudice by any imperfection in the indictment (or accusation or citation) cannot obtain reversal of his conviction on that ground.

Here, the trial court charged the jury on the allegations of the indictment and stressed that “[n]o person shall be convicted of any crime unless and until each element of the crime is proven beyond a reasonable doubt” and “[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.” The court further charged the jury on the legal definitions of criminal attempt and burglary:

Decided October 29, 2012

Reconsideration denied November 14, 2012.

Alicia Y. Jones, Jimmonique R. S. Rodgers, James C. Bonner, for appellant.

Robert D. James, Jr., District Attorney, Leonora Grant, Assistant District Attorney, for appellee.

A person commits criminal attempt to commit burglary when, with intent to commit burglary, that person performs any act that constitutes a substantial step toward the commission of the crime of burglary. A person commits the offense of burglary when, without authority, that person enters any dwelling house of another with intent to commit a theft.

The court gave the following charge regarding criminal intent:

A crime is a violation of a statute of this State in which there is a union and joint operation of an act, or omission to act, and intention. Intent is an essential element of any crime and must be proven by the State beyond a reasonable doubt. A person will not be presumed to act with criminal intent, but you, the jury, may find intention, or the absence thereof, upon a consideration of the words, conduct, demeanor, motive and other circumstances connected with the act for which the defendant is being prosecuted.

The facts of this case as demonstrated by the weight of the evidence introduced at trial were not kind to the defendant. Coleman was not prejudiced by the wording of the indictment, and his trial counsel cannot be found ineffective.

Judgment affirmed.

Miller, P. J., and Branch, J., concur.

       See OCGA §§ 16-4-1; 16-7-1 (b).

       See Stinson v. State, 279 Ga. 177, 180 (2) (611 SE2d 52) (2005).

       See id. at 178-180 (2); Palmer v. State, 282 Ga. 466, 468 (651 SE2d 86) (2007); OCGA § 17-7-110.

       See Motes v. State, 262 Ga. App. 728, 729 (586 SE2d 682) (2003).

       See id.; see also OCGA § 17-9-61 (b).

       We have previously held that a motion for new trial is not the proper method to attack the sufficiency of an indictment and does not provide a basis for this Court to review the indictment. See McKay v. State, 234 Ga. App. 556, 559 (2) (507 SE2d 484) (1998). However, we have made an exception when the motion for new trial raises the ground of ineffective assistance of counsel based on counsel’s failure to file a general demurrer. See Harris v. State, 258 Ga. App. 669, 671 (1) (574 SE2d 871) (2002).

       See Kirt v. State, 309 Ga. App. 227, 232-233 (3) (709 SE2d 840) (2011); see also OCGA §§ 17-7-110; 17-9-61 (b).

       OCGA § 17-7-54 (a).

       (Punctuation and footnotes omitted.) Davis v. State, 281 Ga. App. 855, 857 (1) (637 SE2d 431) (2006).

       (Citation omitted.) State v. Marshall, 304 Ga. App. 865, 866-867 (698 SE2d 337) (2010) (indictment language in criminal attempt to entice a child for indecent purposes charge deemed sufficient to withstand special demurrer alleging the indictment failed to charge the defendant’s criminal intent because it tracked the language of the statute).

        Davis, supra at 859 (1); see also Livery v. State, 233 Ga. App. 332, 336 (2) (503 SE2d 914) (1998) (indictment language in criminal attempt to commit child molestation charge deemed sufficient to withstand general demurrer alleging the indictment failed to charge the defendant’s criminal intent because it mirrored the language of the criminal attempt statute).

       See Marshall, supra at 868.

       See Beals v. State, 288 Ga. App. 815, 816 (1) (655 SE2d 687) (2007).

        Campbell v. State, 223 Ga. App. 484, 486 (3) (477 SE2d 905) (1996).

        Strickland v. Washington, 466 U. S. 668, 687 (III) (A) (104 SC 2052, 80 LE2d 674) (1984).

       See id. at 687-688 (III) (A); see also Kimmelman v. Morrison, 477 U. S. 365, 381 (II) (C) (106 SC 2574, 91 LE2d 305) (1986).

        Strickland, supra at 694 (III) (B); see also Williams v. Taylor, 529 U. S. 362, 391 (III) (120 SC 1495, 146 LE2d 389) (2000).

       See Kimmelman, supra at 382 (II) (C).

       (Citation and punctuation omitted.) Cuzzort v. State, 307 Ga.App. 52, 56-57 (2) (b) (703 SE2d 713) (2010). Accord Jackson v. State, 316 Ga.App. 588 (6) (a) (730 SE2d 69) (2012); White v. State, 312 Ga. App. 421, 429 (3) (a) (718 SE2d 335) (2011).

       (Punctuation and footnote omitted.) Kain v. State, 287 Ga. App. 45, 48-49 (2) (650 SE2d 749) (2007); see also State v. Eubanks, 239 Ga. 483, 488-489 (238 SE2d 38) (1977); State v. Grube, 315 Ga. App. 885, 888 (2) (729 SE2d 42) (2012) (affirmed trial court’s dismissal of indictment, but stated, “[h]ad this case proceeded to trial and verdict under the current indictments, we do not believe that reversal would be necessary... since it is apparent that [the defendant] understands the nature of the charges against him based on information gleaned from sources other than the indictment itself”) (citation and punctuation omitted).

        Kain, supra at 49 (2).