author: Andrews, Judge.

text:
    A11A1647.
    CROWE v. THE STATE.
    (724 SE2d 831)
   Andrews, Judge.

After a bench trial on a multi-count indictment arising from a single-car automobile accident, Christina Renee Crowe was found guilty and sentenced for the following offenses: homicide by vehicle in the first degree in violation of OCGA § 40-6-393 (a) (count 1); homicide by vehicle in the second degree in violation of OCGA § 40-6-393 (c) (count 5); serious injury by vehicle in violation of OCGA § 40-6-394 (count 3); driving under the influence of alcohol with an alcohol concentration of 0.08 grams or more in violation of OCGA § 40-6-391 (a) (5) (count 6); driving under the influence of alcohol to the extent that it was less safe to drive in violation of OCGA § 40-6-391 (a) (1) (count 7); six counts of endangering a child under the age of 14 years in violation of OCGA § 40-6-391 (1) (counts 8, 9, 10, 11, 12, and 13); failure to maintain lane in violation of OCGA § 40-6-48 (1) (count 14); driving on the wrong side of the roadway in violation of OCGA § 40-6-40 (count 15); and possession of an open alcoholic beverage container in the passenger area of a motor vehicle, while operating the vehicle, in violation of OCGA § 40-6-253 (count 16).

On appeal, Crowe contends that the trial court erred by denying her pre-trial motion to suppress evidence of test results showing her blood-alcohol level after the accident; that trial counsel was ineffective; that the court erred by denying her post-conviction motion for independent blood sample testing; that the court should have merged certain counts; and that the court imposed an illegal sentence on count 16. For the following reasons, we affirm in part, vacate in part, and remand with directions to merge various counts and to re-sentence.

At the bench trial, the State and Crowe stipulated to the following evidence: On November 7, 2008, Crowe was driving her automobile southbound on Highway 162 in Newton County with three passengers in the back seat: her two-month-old child Sydnie Crowe, and two children of a friend, seven-year-old Bobby Couch and four-year-old James Couch. At approximately 12:40 p.m., Crowe’s automobile veered off the roadway onto the west shoulder of the road with the right side tires; then veered back onto the roadway and traveled across the southbound and northbound lanes; then left the roadway onto the east shoulder, rotated clockwise, and crashed into a tree at the rear side passenger door. As a result of the crash, Bobby Couch suffered blunt force head trauma which caused his death, and Sydnie Crowe suffered severe traumatic brain injury and skull fractures. James Couch was not severely injured. From the scene of the accident, Christina Crowe was flown by medical helicopter to Atlanta Medical Center. The helicopter flight crew told an investigating Georgia State Trooper, Jeremiah Slayton, that they smelled alcohol about Crowe’s person, and a witness, Joseph Walden, told Trooper Slayton that he smelled alcohol about Crowe’s person prior to her leaving a house with the children at approximately 12:30 p.m. Another trooper, Fred Moon, traveled to Atlanta Medical Center to evaluate Christina Crowe, arrived at about 4:17 p.m. and detected that Crowe had the odor of alcohol about her person and had glassy eyes and slurred, slow speech. After the implied consent notice for suspects over 21 was read to Crowe and a blood test requested, Crowe agreed to submit to testing, and a blood sample was taken from Crowe at 5:30 p.m. An analysis of the blood sample performed by a forensic toxicologist showed that Crowe’s blood contained 0.207 grams of alcohol per 100 milliliters. A search of Crowe’s automobile after the accident revealed a clear plastic bottle containing 77 proof alcohol in the driver’s floorboard. In her defense, Crowe presented additional evidence: Crowe’s husband testified that he saw her between 11:15 a.m. and 11:30 a.m on the day of the accident and that she did not smell of alcohol and he did not notice any sign that she was intoxicated. Two of Crowe’s relatives testified that they arrived at Atlanta Medical Center between 5:00 p.m. and 5:30 p.m. on the day of the accident; that they visited with Crowe until about 8:00 p.m.; and that they did not notice any smell of alcohol on her person nor any sign that she was intoxicated. A Newton County fireman testified that he stopped at the scene of the accident before Crowe was removed from the automobile, checked her vital signs, and did not smell alcohol or see signs of intoxication.

1. Construed in the light most favorable to the guilty verdicts, we find that the evidence was sufficient for a rational trier of fact to find Crowe guilty of the charged offenses beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Crowe contends that, because there was no probable cause to believe that she was driving under the influence of alcohol at the time of the fatal accident, the blood sample Trooper Moon obtained from her pursuant to the implied consent provisions of OCGA § 40-5-55 (a) was taken by an unreasonable search and seizure in violation of the Fourth Amendment to the United States Constitution (and comparable provisions of the Georgia Constitution), and that the trial court erred by denying her pre-trial motion to suppress the results of blood-alcohol testing done on the sample.

Under OCGA § 40-5-55 (a),

any person who operates a motor vehicle upon the highways or elsewhere throughout this state shall be deemed to have given consent, subject to Code Section 40-6-392, to a chemical test or tests of his or her blood, breath, urine, or other bodily substances for the purpose of determining the presence of alcohol or any other drug ... if such person is involved in any traffic accident resulting in serious injuries or fatalities.

“[T]o the extent that OCGA § 40-5-55 (a) requires chemical testing of the operator of a motor vehicle involved in a traffic accident resulting in serious injuries or fatalities regardless of any determination of probable cause, it authorizes unreasonable searches and seizures in violation of the State and Federal Constitutions.” Cooper v. State, 277 Ga. 282, 291 (587 SE2d 605) (2003). But

where an individual has been involved in a traffic accident resulting in serious injuries or fatalities and the investigating law enforcement officer has probable cause to believe that the individual was driving under the influence of alcohol or other drugs, the constitutional infirmities at play in Cooper are no longer present, and the ensuing search [and seizure of blood pursuant to OCGA § 40-5-55 (a)] is both warranted and constitutional.

Hough v. State, 279 Ga. 711, 713 (620 SE2d 380) (2005). Moreover, “nothing in OCGA § 40-5-55 requires a DUI suspect to be arrested in order to trigger his or her implied consent to testing following a traffic accident resulting in serious injuries or fatalities.” Id. at 714.

Testimony at the hearing on the motion to suppress shows that, while investigating the accident, Trooper Slayton gathered information from the helicopter crew who transported Crowe from the accident scene and from Walden, who observed Crowe just prior to the accident, indicating that Crowe smelled of alcohol before and after the accident; that based on this information Trooper Slayton told Trooper Moon that alcohol may have been involved in the accident and asked Trooper Moon to evaluate Crowe at the Atlanta Medical Center; and that Trooper Moon did so and observed that Crowe smelled of alcohol and had glassy eyes and slurred speech. The information gathered by both troopers, including direct observation of Crowe and reports from others who observed Crowe before and after the accident, was more than sufficient to support the trial court’s conclusion that the troopers had probable cause to believe that Crowe was driving under the influence of alcohol at the time of the accident. Hulsey v. State, 284 Ga. App. 461, 464 (643 SE2d 888) (2007) (hearsay evidence may also establish the existence of probable cause). Accordingly, Trooper Moon had a sufficient basis to obtain a blood sample from Crowe for testing pursuant to OCGA § 40-5-55 (a), and the trial court did not err by denying the motion to suppress.

3. Crowe claims that the trial court should have granted her motion for a new trial because her trial counsel was ineffective by failing to present additional evidence to support her defense that there was no probable cause to believe that she was driving under the influence of alcohol at the time of the accident.

To obtain reversal of a conviction based on a claim of ineffective assistance of counsel, a defendant has the burden of proving that counsel’s performance was deficient, and that, but for the deficiency, there was a reasonable probability the outcome of the trial would have been different. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984); Terry v. Jenkins, 280 Ga. 341, 342 (627 SE2d 7) (2006). To establish deficient performance, a defendant must show that counsel’s performance fell below an objective standard of reasonableness under the circumstances confronting counsel at the time without resorting to hindsight. Strickland, 466 U. S. at 689-690; Franks v. State, 278 Ga. 246, 250 (599 SE2d 134) (2004). In considering adequacy of performance, trial counsel “is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Strickland, 466 U. S. at 690. “A claim of ineffective assistance of counsel is a mixed question of law and fact: we accept the trial court’s factual findings unless clearly erroneous, but we independently apply the legal principles to the facts.” Franks, 278 Ga. at 250.

Connelly v. State, 295 Ga. App. 765, 768-769 (673 SE2d 274) (2009). Applying these standards, we find that the trial court correctly denied the motion for new trial because counsel was not ineffective or, if counsel was ineffective, Crowe failed to show harm.

Crowe contends that trial counsel should have produced the helicopter crew’s written report because the report failed to note that Crowe smelled of alcohol, and that counsel should have interviewed the members of the crew. Crowe produced the written report, which did not state whether or not the crew members smelled alcohol on Crowe’s person, and did not contradict Trooper Slayton’s testimony that the helicopter crew told him that they noticed alcohol on Crowe’s person. Because Crowe did not produce the helicopter crew or any other witness to contradict Trooper Slayton’s testimony, she failed to show that trial counsel was ineffective on this basis.

Crowe claims that trial counsel should have challenged as inaccurate the statement attributed to Walden — that he smelled alcohol on her prior to the accident. To support this claim, Crowe produced Walden to testify at the motion for new trial, but Walden testified that he told Trooper Slayton that he smelled alcohol coming from Crowe’s person. Crowe failed to show that counsel was ineffective on this basis.

At the motion for new trial, Crowe produced her medical records for treatment she received after the accident and contends that tried counsel should have produced the records because they showed: (1) that she suffered injuries and was given medication that explained why she exhibited the glassy eyes and slurred speech observed by Trooper Moon; and (2) that hospital personnel did not make written notes in the records that she showed signs of alcohol intoxication. Even if counsel was ineffective for not producing the records, other evidence that witnesses smelled alcohol on Crowe’s person before and after the accident provided a sufficient basis for the trial court to find that Trooper Moon had probable cause to believe that Crowe was driving under the influence of alcohol at the time of the accident. Accordingly, Crowe did not carry her burden of proving that, but for counsel’s deficient performance, there was a reasonable probability the outcome of the trial would have been different.

4. Crowe claims that the trial court erred by denying her post-conviction motion for an order compelling the State to produce the blood sample obtained pursuant to OCGA § 40-5-55 (a) so that she could have the sample tested by independent experts to establish that the State’s pre-trial testing was inaccurate and that she was not driving under the influence of alcohol.

In the motion, Crowe argued that, given her contention that she was not under the influence of alcohol at the time of the accident, it was a chemical impossibility that her blood-alcohol level would measure 0.207 grams of alcohol per 100 milliliters, as shown by the State’s testing, and that there must have been confusion or contamination of blood samples, or that her medical treatment after the accident must have invalidated the testing. The record shows that, in conjunction with the bench trial, Crowe, her attorney, and the prosecutor signed and authorized written stipulations of fact for the express purpose of dispensing with proof of the agreed facts, and which amounted to conclusively binding admissions in judicio as to such facts. Dryer v. State, 205 Ga. App. 671, 673 (423 SE2d 297) (1992). One of the statements of stipulated fact provided: “Forensic Toxicologist Carla Turner performed an analysis on the blood sample submitted and the results showed that the blood sample contained 0.207 (+/-0.007) grams of alcohol per 100 ml.” In reliance on the stipulations of fact at the bench trial, the State presented no evidence establishing the procedures by which the sample was obtained, the chain of custody of the sample, or the testing procedures. Nothing shows that the stipulation was the result of fraud or mistake. “The general rule as to stipulations is that once made in the course of judicial proceedings an estoppel results unless the complaining party can show fraud or mistake.” Id. at 672. The trial court did not err by finding that the stipulation was a binding admission and by denying the motion to compel production of the sample for post-conviction testing.

5. We agree with Crowe that some of the offenses on which she was convicted and sentenced merged with other offenses.

(a) Count 7, under which Crowe was convicted of driving under the influence of alcohol to the extent it was less safe for her to drive, in violation of OCGA § 40-6-391 (a) (1), merged into count 6, under which she was convicted of driving while her alcohol concentration (from alcohol consumed before driving) was 0.08 grams or more within three hours after such driving ended, in violation of OCGA § 40-6-391 (a) (5). Schlanger v. State, 290 Ga. App. 407, 415 (659 SE2d 823) (2008).

(b) Count 9, under which Crowe was convicted of endangering a child under the age of 14 years, Bobby Couch, in violation of OCGA § 40-6-391 (1), while driving in violation of OCGA § 40-6-391 (a) (1), merged into count 8, under which she was convicted of endangering the same child, in violation of OCGA § 40-6-391 (1), while driving in violation of OCGA § 40-6-391 (a) (5). Slayton v. State, 281 Ga. App. 650 (637 SE2d 67) (2006).

(c) Count 11, under which Crowe was convicted of endangering a child under the age of 14 years, Sydnie Crowe, in violation of OCGA § 40-6-391 (1), while driving in violation of OCGA § 40-6-391 (a) (1), merged into count 10, under which she was convicted of endangering the same child, in violation of OCGA § 40-6-391 (1), while driving in violation of OCGA § 40-6-391 (a) (5). Slayton, supra.

(d) Count 13, under which Crowe was convicted of endangering a child under the age of 14 years, James Couch, in violation of OCGA § 40-6-391 (1), while driving in violation of OCGA § 40-6-391 (a) (1), merged into count 12, under which she was convicted of endangering the same child, in violation of OCGA § 40-6-391 (1), while driving in violation of OCGA § 40-6-391 (a) (5). Slayton, supra.

(e) Count 6, under which Crowe was convicted of driving under the influence of alcohol in violation of OCGA § 40-6-391 (a) (5), merged into count 1, under which she was convicted of homicide by vehicle in the first degree, in violation of OCGA § 40-6-393 (a), through a violation of OCGA § 40-6-391 (a) (5). Daniel v. State, 298 Ga. App. 245, 248-249 (679 SE2d 811) (2009).

(f) Count 14, under which Crowe was convicted of failure to maintain lane in violation of OCGA § 40-6-48 (1), merged into count 5, under which she was convicted of homicide by vehicle in the second degree, in violation of OCGA § 40-6-393 (c), by violating OCGA § 40-6-48 (1). Brown v. State, 287 Ga. App. 755, 759 (652 SE2d 631) (2007).

Decided March 2, 2012.

Alixe E. Steinmetz, for appellant.

Layla H. Zon, District Attorney, Anne M. Kurtz, Assistant District Attorney, for appellee.

(g) Count 5, under which Crowe was convicted of homicide by vehicle in the second degree, in violation of OCGA § 40-6-393 (c), merged into count 1, under which she was convicted of homicide by vehicle in the first degree, in violation of OCGA § 40-6-393 (a). Hayles v. State, 180 Ga. App. 860, 861 (350 SE2d 793) (1986); Curtis v. State, 275 Ga. 576, 577 (571 SE2d 376) (2002), overruled in part on other grounds, Williams v. State, 287 Ga. 192, 193-194 (695 SE2d 244) (2010).

Accordingly, Crowe’s convictions and sentences on counts 5, 6, 7, 9, 11, 13, and 14 are vacated by operation of law. Hayles, supra; Curtis, supra; Bryan v. State, 271 Ga. App. 60, 64-65 (608 SE2d 648) (2004). In light of this ruling, the sentences on the surviving convictions on counts 1, 3, 8, 10, 12, 15, and 16 are also vacated, and the case is remanded for the trial court to merge the convictions in accordance with this opinion, and to re-sentence Crowe on the surviving convictions. Ratledge v. State, 253 Ga. App. 5, 7 (557 SE2d 458) (2001); Mack v. State, 283 Ga. App. 172, 175-176 (641 SE2d 194) (2007).

Judgment affirmed in part and vacated in part, sentences vacated, and case remanded for re-sentencing.

Phipps, P. J., and McFadden, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    A11A1794.
    LOPEZ v. OLSON et al.
    (724 SE2d 837)
   Andrews, Judge.

Erin Olson Lopez, the mother of two minor children, appeals from the final judgment of the Superior Court of Columbia County (the Georgia Court) entered pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) (OCGA § 19-9-40 et seq.), modifying a prior child custody determination made by the Superior Court, Fourth Judicial District, Fairbanks, Alaska (the Alaska court). In the same order, the Georgia court also granted a legitimation petition brought by the father of one of the children, but Lopez does not enumerate error with respect to this portion of the court’s order. For the following reasons, we vacate the Georgia court’s judgment as to custody and remand for further consideration. We affirm the portion of the judgment granting the legitimation petition.

1. Lopez claims that the Georgia court lacked subject-matter jurisdiction under the UCCJEA to modify the prior custody determination made by the Alaska court, which awarded legal and primary physical custody of her two children to the children’s maternal grandparents, Ricky James Olson and Lottie Grace Olson, and granted visitation rights to Lopez.

In 2005, Lopez moved from Georgia to Alaska with her two minor children Evan, born April 2, 2004, and Kyle, born March 12, 2005. Lopez moved to Alaska with the Olsons (her mother and adoptive father), who were transferred to Alaska from Georgia in 2005 pursuant to Mr. Olson’s military service. In 2007, while Lopez and the children were living with the Olsons in Alaska, Lopez entered into a written agreement with the Olsons to give custody of her two children to the Olsons. The agreement was the basis for an order entered by the Alaska court awarding legal and primary physical custody of the children to the Olsons. Lopez acknowledged in the Alaska court that Michael Diaz was the father of Kyle, and the court entered a default judgment against Diaz as to custody of Kyle. Although Lopez knew during the Alaska court proceedings that Gregory Criste was Evan’s father, this fact was not revealed to Criste or to the court; Criste was not a party to the proceedings in the Alaska court; and the Alaska court entered a default judgment as to custody of Evan against a John Doe defendant named as Evan’s father. In July 2009, the Olsons moved back to Columbia County, Georgia pursuant to another military service transfer, where they and the two children in their custody have resided since that time. Lopez also moved back to Georgia in July 2009, but in September 2009, Lopez moved to Texas to live with her biological father where she has resided since that time.

After learning that he was the father of Evan, Criste, a Georgia resident, filed a petition in February 2010 in the Georgia court seeking to legitimate Evan and to modify the Alaska court custody determination by obtaining visitation with the child. On March 29, 2010, Lopez filed a pro se appearance in the Georgia court contesting the jurisdiction of the court in the Criste petition; attaching copies of the custody orders entered by the Alaska court; and alleging that the Alaska court had jurisdiction. On March 31, 2010, the Alaska court entered another order giving Lopez specific rights to visitation with the children at her residence in Texas. On April 13, 2010, the Georgia court conducted a temporary hearing on the Criste petition attended by Criste, the Olsons, and Lopez. At the hearing, the Georgia court found that a custody order as to the children had been entered in the Alaska court in 2007; that a proceeding brought by Lopez in October 2009 seeking custody of the children was pending in the Alaska court; and that the Georgia court should confer with the Alaska court to determine which court was a more appropriate forum under the UCCJEA. OCGA § 19-9-66. On May 12, 2010, the Alaska court entered an interim order in Lopez’s pending custody proceeding granting joint legal custody of the children to Lopez and the Olsons with temporary placement of the children with the Olsons. On May 17, 2010, the Olsons filed a petition in the Georgia court referencing Lopez’s pending child custody proceeding in the Alaska court and asking the Georgia court to assume jurisdiction under the UCCJEA and modify the Alaska court’s custody determination by terminating Lopez’s visitation rights and awarding them legal and physical custody of Evan and Kyle subject to any visitation rights awarded to Criste with Evan.

On May 17, 2010, a telephone conference was conducted between the Georgia court and the Alaska court attended by the parties. Based on all the circumstances, including the fact that none of the parties resided in Alaska, the Alaska court determined pursuant to the UCCJEA that it no longer had exclusive continuing jurisdiction; that Georgia is the home state of the children; and that the Georgia court is the more appropriate forum. Based on the Alaska court’s determination, the Georgia court assumed jurisdiction pursuant to OCGA § 19-9-63 of the UCCJEA and consolidated the petitions filed by the Olsons and Criste seeking to modify the prior Alaska court custody determination. Prior to commencement of trial, the Georgia court announced, and the parties agreed, that Lopez’s claim for custody of the children made in the Alaska court would be tried as part of the trial on the consolidated petitions. The custody orders of the Alaska court were filed and made a part of the record in the Georgia court. After a trial at which Lopez appeared pro se, the Georgia court entered an order granting Criste’s petition to legitimate Evan and modifying the prior custody determination of the Alaska court. As to Kyle, the Georgia court granted the Olsons and Lopez joint legal custody; granted the Olsons primary physical custody with the right to make all final decisions affecting the health, education, and welfare of the child; and granted Lopez specified visitation rights. As to Evan, the Georgia court granted joint legal custody to the Olsons, Lopez, and Criste; granted the Olsons primary physical custody with the right to make all final decisions affecting the health, education, and welfare of the child; and granted specified visitation rights to Lopez and Criste.

Lopez claims that the Georgia court lacked subject-matter jurisdiction to modify the Alaska court custody determination because the Alaska child custody determination was not registered pursuant to the requirements of the UCCJEA. Under “Part 3” of the UCCJEA captioned “Jurisdiction and Enforcement of Foreign Decrees,” OCGA § 19-9-85 provides for registration, contesting, and confirmation of foreign custody determinations as follows:

(a) A child custody determination issued by a court of another state may be registered in this state, with or without a simultaneous request for enforcement, by sending to the superior court in the appropriate venue in this state:
(1) A letter or other document requesting registration;
(2) Two copies, including one certified copy, of the determination sought to be registered, and a statement under penalty of perjury that to the best of the knowledge and belief of the person seeking registration the order has not been modified; and
(3) Except as otherwise provided in Code Section 19-9-69, the name and address of the person seeking registration and any parent or person acting as a parent who has been awarded custody or visitation in the child custody determination sought to be registered.
(b) On receipt of the documents required by subsection (a) of this Code section, the registering court shall:
(1) Cause the determination to be filed as a foreign judgment, together with one copy of any accompanying documents and information, regardless of their form; and
(2) Serve notice upon the persons named pursuant to paragraph (3) of subsection (a) of this Code section and provide them with an opportunity to contest the registration in accordance with this Code section.
(c) The notice required by paragraph (2) of subsection (b) of this Code section must state that:
(1) A registered determination is enforceable as of the date of the registration in the same manner as a determination issued by a court of this state;
(2) A hearing to contest the validity of the registered determination must be requested within 20 days after service of notice; and
(3) Failure to contest the registration will result in confirmation of the child custody determination and preclude further contest of that determination with respect to any matter that could have been asserted.
(d) A person seeking to contest the validity of a registered order must request a hearing within 20 days after service of the notice. At that hearing, the court shall confirm the registered order unless the person contesting registration establishes that:
(1) The issuing court did not have jurisdiction under Part 2 of this article;
(2) The child custody determination sought to be registered has been vacated, stayed, or modified by a court having jurisdiction to do so under Part 2 of this article; or
(3) The person contesting registration was entitled to notice, but notice was not given in accordance with the standards of Code Section 19-9-47 in the proceedings before the court that issued the order for which registration is sought.
(e) If a timely request for a hearing to contest the validity of the registration is not made, the registration is confirmed as a matter of law, and the person requesting registration and all persons served must be notified of the confirmation.
(f) Confirmation of a registered order, whether by operation of law or after notice and hearing, precludes further contest of the order with respect to any matter that could have been asserted at the time of registration.

Also under “Part 3” of the UCCJEA, OCGA § 19-9-86 further provides for granting relief and enforcing registered custody determinations as follows:

(a) A court of this state may grant any relief normally available under the laws of this state to enforce a registered child custody determination made by a court of another state.
(b) A court of this state shall recognize and enforce, but may not modify, except in accordance with Part 2 of this article, a registered child custody determination of a court of another state.

“Jurisdiction of the subject matter does not mean simply jurisdiction of the particular case then occupying the attention of the court, but jurisdiction of the class of cases to which that particular case belongs.” (Citation and punctuation omitted.) Abushmais v. Erby, 282 Ga. 619, 620 (652 SE2d 549) (2007). By asserting that there was a failure to comply with the registration requirements of OCGA § 19-9-85, Lopez has no claim that the Georgia court lacked subject-matter jurisdiction; rather we recognize her claim as a nonjurisdictional claim that the Georgia court had no authority in this case to modify the Alaska court determination because statutory prerequisites were not satisfied. See Sanchez v. Walker County Dept. of Family &c. Svcs., 237 Ga. 406, 411 (229 SE2d 66) (1976) (considering failure to comply with mandatory statutory notice and hearing requirements). To enforce a custody determination made by another state, the other state’s determination must be registered pursuant to OCGA § 19-9-85, which provides for notice of the registration to certain interested parties and an opportunity for those parties to contest the validity and enforcement of the foreign determination. OCGA § 19-9-86. As set forth in OCGA § 19-9-86 (b), a registered custody determination of another state shall be enforced by a Georgia court, but it “may not [be modified] except in accordance with Part 2 of this article.” The consolidated petitions in this case did not seek to enforce the Alaska custody determination but to modify it pursuant to Part 2 of the UCCJEA. See OCGA § 19-9-63. Apart from her registration claim, Lopez does not claim that the Georgia court lacked authority under Part 2 to modify the Alaska court determination. We find under the plain language of OCGA §§ 19-9-85 and 19-9-86 that the UCCJEA does not require that a custody determination of another state be registered before it may be modified in accordance with Part 2. See Ex parte Davis, 82 So.3d 695, 701 (Ala. Civ. App. 2011) (construing similar provisions of the UCCJEA as adopted in Alabama).

2. We find no merit to Lopez’s claim that the trial court erroneously took jurisdiction over and tried a pending Alaska case transferred to the Georgia court. The record reflects, not that the Georgia court tried a transferred Alaska case, but that the Georgia court properly assumed jurisdiction pursuant to OCGA § 19-9-63 to try proceedings filed in the Georgia court seeking to modify the Alaska court custody determination. The record was also sufficient to show that the issues raised by Lopez’s petition filed in the Alaska court seeking custody of the children were tried in the Georgia court by express or implied agreement of the parties and the court. OCGA § 9-11-15 (b).

3. Lopez claims that the Georgia court erred by continuing custody of her children with the Olsons without finding by clear and convincing evidence that returning the children to her custody would harm them.

The Georgia court found that Lopez was financially unable to care for the children and that she failed to prove by clear and convincing evidence that returning custody of the children to her would be in the best interest of the children. The Olsons contend that the trial court correctly required Lopez to bear this burden of proof because this case is controlled by the standard set forth in Durden v. Barron, 249 Ga. 686 (290 SE2d 923) (1982), which provides:

Once a third party has been awarded permanent custody of a child in a court proceeding to which a parent was a party, the roles of the parent and the third party reverse; that is, the third party now has the prima facie right to custody as against the parent who has lost the right to custody. The parent can regain custody upon showing by clear and convincing evidence his or her present fitness as a parent and that it is in the best interest of the child that custody be changed.

The Durden standard applies where there has been a permanent award of custody to the third party made pursuant to an evidentiary hearing with specific findings by clear and convincing evidence of present parental unfitness. Parton v. Haviland, 212 Ga. App. 835, 837 (442 SE2d 806) (1994). Even assuming the Alaska court order could be construed on its face as awarding permanent custody of the children to the Olsons, there was no evidentiary hearing and no finding by the court that Lopez was an unfit parent, nor does it appear that “such a finding was waived by the parties while represented by counsel.” Villenueve v. Richbourg, 217 Ga. App. 354, 355 (457 SE2d 821) (1995). The record shows that Lopez and her parents, the Olsons, entered into a written agreement for the Olsons to take legal and primary physical custody of her children. The agreement provided that Lopez and the Olsons would “work together in rearing the children” and jointly participate in making medical decisions. It required no child support from Lopez and gave Lopez visitation with the children “any time she is off work.” According to Mr. Olson, the intent of the agreement was that he and his wife would retain custody of the children until Lopez became financially stable enough to resume her parenting duties. The Alaska court found the agreement was voluntary and adopted its provisions as the order of the court giving legal and primary physical custody of the children to the Olsons. The Alaska court subsequently entered an interim order granting joint legal custody of the children to Lopez and the Olsons with temporary placement of the children with the Olsons. Under these circumstances, we find that the standard set forth in Durden, supra, placing the burden of proof on the parent to prove present fitness and the best interest of the child does not apply. Because Lopez has not lost all parental power or been found unfit, we conclude that this case is properly considered as a custody dispute between custodial third parties and a noncustodial parent seeking reunification with her children, and is governed by the standard set forth in OCGA § 19-7-1 (b.l) relating to custody disputes between a parent and certain relatives of the child, including grandparents. Accordingly, we find that the appropriate standard of proof is the “best interest of the child” standard set forth in OCGA § 19-7-1 (b.l) as narrowly construed in Clark v. Wade, 273 Ga. 587 (544 SE2d 99) (2001) to recognize parents’ constitutionally protected interest in the care, custody, and management of their children.

We find instructive the application of this standard in Boddie v. Daniels, 288 Ga. 143, 145 (702 SE2d 172) (2010). In Boddie, the custody dispute was between a noncustodial biological parent and a third party who held a prior court-awarded temporary guardianship of the child with the consent of the biological parent. Id. at 143-146. At issue was whether a continuation or termination of the guardianship was controlled by the “best interest of the minor” standard set forth in OCGA § 29-2-8 (b). Id. at 143, 146. After recounting the similarities between custody and guardianship, and noting that “the right to custody of the child is certainly the principal attribute of guardianship of the person,” Boddie held that

[consistent with the common attributes of custody and guardianship, those courts which apply certain principles and safeguards in the context of custody disputes between a biological parent and a third party due to constitutional concerns apply those same principles and safeguards to a parent’s effort to regain custody by terminating a guardianship.

Id. at 144-145. Accordingly, Boddie found that the narrow construction placed on the “best interest” standard in Clark, supra, controlled the dispute between the guardian of the child and the noncustodial parent. Boddie, 288 Ga. at 145. As set forth in Boddie,

where, as here, a custody dispute arises between a noncustodial biological parent and a third party, a strong majority of Justices in Clark would not permit the state to interfere with the parent’s right to raise her child unless, at a minimum, the state acts to protect the child’s health or welfare and the parent’s decision would result in harm to the child.

(Citations and punctuation omitted.) Boddie, 288 Ga. at 145. Boddie held that under Clark the “best interest” standard must be narrowly interpreted to mean

that the third party must prove by clear and convincing evidence that the child will suffer physical or emotional harm if custody were awarded to the biological parent by terminating the temporary guardianship. Once this showing is made, the third party must then show that continuation of the temporary guardianship will best promote the child’s welfare and happiness.

(Citation and punctuation omitted.) Boddie, 288 Ga. at 146. Boddie reiterated the Clark holding that “[b]y harm, we mean either physical harm or significant, long-term emotional harm; we do not mean merely social or economic disadvantages.” (Citation and punctuation omitted.) Id. at 146. Moreover, Boddie held that “[i]n applying this rigorous harm standard so as to ensure that the temporary guardianship will be continued only when a real threat of harm would result from termination, the trial court must consider the factors set forth in Clark v. Wade, supra at 598-599” encompassing the child’s own needs. Id. at 146. Accordingly, Boddie concluded that the trial court erred by denying the parent’s request to terminate the guardianship “without finding by clear and convincing evidence that such termination would harm the child.” Boddie, 288 Ga. at 146.

Similarly, we find that the Olsons had the burden of proof to show by clear and convincing evidence that, if the children were returned to Lopez’s custody, they would suffer harm — defined to mean “either physical harm or significant, long-term emotional harm,” not “merely social or economic disadvantages.” Clark, 273 Ga. at 598; Boddie, 288 Ga. at 146. Moreover, in applying this harm standard to ensure that custody is continued in the Olsons only when a real threat of harm would result from returning custody to Lopez, the trial court must consider the factors set forth in Clark which “encompass the child’s own needs” and include

(1) who are the past and present caretakers of the child; (2) with whom has the child formed psychological bonds and how strong are those bonds; (3) have the competing parties evidenced interest in, and contact with, the child over time; and (4) does the child have unique medical or psychological needs that one party is better able to meet.

DeCided March 2, 2012.

Anthony M. Zezima, for appellant.

Mirshak & Smith, Timothy S. Mirshak, Lisa L. Clarke, for appellees.

Clark, 273 Ga. at 598-599; Boddie, 288 Ga. at 146. Finally, once a showing of harm is made, the Olsons must then show that continuing custody of the children in them will best promote the children’s welfare and happiness. Clark, 273 Ga. at 599; Boddie, 288 Ga. at 146.

Because the trial court did not apply the correct standard of proof to the custody dispute, we vacate the court’s judgment with respect to custody of the children and remand the case to the court for reconsideration consistent with this opinion.

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

Phipps, P J., and McFadden, J., concur.

       Although Lopez was then known as Erin Olson, she is referred to throughout this opinion by her current name.


author: Phipps, Presiding Judge.

text:
    A11A2002.
    THE STATE v. McCARTER.
    (724 SE2d 843)
   Phipps, Presiding Judge.

The state appeals the trial court’s order dismissing with prejudice the charges against James McCarter a/k/a Joey Carter. The state argues that the trial court erroneously dismissed the charges ' because the Interstate Agreement on Detainers (the “IAD”) afforded the state 180 days to try McCarter following his complete satisfaction of the IAD’s notification procedures, and that this time period had not expired when the trial court entered its dismissal order. We agree and reverse.

“When questions of law are at issue, as here, we owe no deference to the trial court’s ruling[ ] and apply the ‘plain legal error’ standard of review.” The facts are not in dispute. McCarter was indicted in Fulton County on August 11, 2006, for the crimes of aggravated assault, aggravated battery, possession of a firearm during the commission of a felony, and possession of a firearm by a convicted felon. On August 13, 2010, McCarter, then in federal custody in Florida, filed in the Superior Court of Fulton County a demand for speedy resolution of the pending charges pursuant to the IAD. On September 9, 2010, the Fulton County district attorney asked the federal correctional institute to place a detainer on McCarter. On October 19, 2010, the district attorney and the superior court clerk received, by certified mail, return receipt requested, written notification from McCarter’s custodian in Florida that McCarter was requesting under the IAD disposition of the pending Georgia charges, together with an inmate status certification. The sheriff produced McCarter in Fulton County on March 8, 2011. Noting McCarter’s August 13, 2010 filing with the clerk of the superior court, the trial court entered an order on April 12, 2011, dismissing the charges against McCarter because of the district attorney’s “fail[ure] to prosecute the defendant within 180 days.”

The IAD contemplates that if a person is imprisoned in a penal or correctional institution of a party state, and there is pending an untried indictment against him in another party state for which a detainer has been lodged,

he shall be brought to trial within one hundred eighty days after he shall have caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer’s jurisdiction written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment, information or complaint, provided that for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance.

Further,

[t]he request of the prisoner shall be accompanied by the certificate of the appropriate official having custody of the prisoner, stating the term of commitment under which the prisoner is being held, the time already served, the time remaining to be served on the sentence, the amount of good time earned, the time of parole eligibility of the prisoner, and any decisions of the state parole agency relating to the prisoner.

In addition,

[t]he written notice and request for final disposition . . . shall be given or sent by the prisoner to the warden, commissioner of corrections or other official having custody of him, who shall promptly forward it together with the certificate to the appropriate prosecuting official and court by registered or certified mail or statutory overnight delivery, return receipt requested.

The import of these provisions is that “the right of a prisoner to be tried within 180 days accrues only after the precise operational procedures set forth in the IAD are completely satisfied.” In this case, those procedures were satisfied on October 19, 2010, upon receipt by the court and the district attorney of the notification and certificate properly forwarded by McCarter’s custodian, and not upon the August 13, 2010 filing of McCarter’s demand. Thus, the 180-day period during which McCarter was required to be brought to trial expired on April 17, 2011.

Notwithstanding the foregoing, the trial court, on April 12, 2011, dismissed the charges against McCarter for failure of the state to prosecute him “within 180 days.” Since the 180-day period set out in the IAD had not yet expired, the trial court erred in dismissing the indictment.

McCarter agrees that the dismissal was premature. He argues that since the state does not present a record showing otherwise, it can be presumed that the state waived the defect of a premature dismissal by failing to object thereto. The state responds that the trial court’s order was entered without notice or a hearing and that it had no opportunity to raise the objection in advance of the issuance of the trial court’s order. The record is consistent with the state’s position, and so we have no basis for finding waiver.

Decided March 2, 2012.

Paul L. Howard, Jr., District Attorney, Paige Reese Whitaker, Assistant District Attorney, for appellant.

Jason H. Ingraham, Kenneth D. Kondritzer, Lauren B. Shubow, for appellee.

Similarly, we reject McCarter’s claim that the judgment should be affirmed under the principle of “right for any reason.” McCarter argues that the 180-day period contemplated by the IAD was reached five days after the trial court entered its order, and so the trial court’s ruling was eventually validated. He provides no authority to support this proposition. Setting aside the broader question of whether an erroneous order can ripen into correctness for purposes of the right for any reason rule, as McCarter suggests, we note that the IAD’s 180-day period is tolled “whenever and for as long as the prisoner is unable to stand trial, as determined by the court having jurisdiction of the matter.” Since the state could not bring McCarter to trial while the indictment against him stood dismissed, we conclude that the 180-day period contemplated by Article III of the IAD did not continue to run, and that the trial court’s order was never correct.

Judgment reversed.

Andrews and McFadden, JJ., concur.

       Under OCGA § 5-7-1 (a) (1), the state may appeal from orders or judgments setting aside or dismissing accusations or indictments. See State v. Henderson, 283 Ga. App. 111 (1) (640 SE2d 686) (2006).

       OCGA § 42-6-20.

        State v. Brooks, 301 Ga. App. 355 (687 SE2d 631) (2009) (citation and punctuation omitted).

       OCGA § 42-6-20 (Article III (a)).

       Id.

       Id. (Article III (b)).

        Clater v. State, 266 Ga. 511, 512 (3) (467 SE2d 537) (1996) (footnote omitted).

       See Thompson v. State, 186 Ga. App. 379, 381 (367 SE2d 247) (1988) (appellant’s actions in mailing the request directly to the prosecutor and the clerk of court did not comply with the IAD).

       “Issues and objections not raised in the trial court and ruled on by the trial court are deemed waived and cannot be raised for the first time on appeal.” West v. State, 300 Ga. App. 583, 585 (2) (685 SE2d 486) (2009) (footnote omitted).

       See, e.g., In the Interest of D. P., 284 Ga. App. 453, 456 (644 SE2d 299) (2007) (declining to presume waiver from a silent record).

       See generally Mathis v. State, 279 Ga. 100, 102 (3) (a) (610 SE2d 62) (2005) (appellate courts “will affirm a trial court’s ruling if it is right for any reason”).

       OCGA § 42-6-20 (Article VI (a)).

       We acknowledge, but do not address, the parties’ arguments regarding whether, upon remittitur, the trial court should grant a continuance for trial beyond the remainder of the 180-day period. See OCGA § 42-6-20 (Article III (a)) (“for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance”). As a general rule, “[t]his court is for the correction of errors, and where the trial court has not ruled on an issue, we will not address it.” Pyle v. City of Cedartown, 240 Ga. App. 445, 448 (3) (524 SE2d 7) (1999).


author: PHIPPS, Presiding Judge.

text:
    A11A2039.
    ROBINSON v. THE STATE.
    (724 SE2d 846)
   PHIPPS, Presiding Judge.

A jury found Sherman Robinson guilty of possession of a controlled substance with intent to distribute within 1,000 feet of a public housing project, trafficking in cocaine, possession of a firearm during the commission of a crime, and criminal use of an article with an altered identification mark. Robinson was granted an out-of-time appeal and herein appeals from the denial of his motion for new trial. He contends that the evidence was insufficient to sustain his convictions for possession of a controlled substance with intent to distribute within 1,000 feet of a public housing project, trafficking in cocaine, and possession of a firearm during the commission of a crime; and that his trial counsel rendered ineffective assistance. We find the evidence was sufficient but remand for a hearing on Robinson’s claims of ineffective assistance of counsel.

When a criminal defendant challenges the sufficiency of the evidence supporting his or her conviction, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. The jury, not this [c]ourt, resolves conflicts in the testimony, weighs the evidence, and draws reasonable inferences from basic facts to ultimate facts. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the [sjtate’s case, the jury’s verdict will be upheld.

Viewed in the appropriate light, the evidence showed that on March 10, 2006, police officers responded to a report of an assault and robbery of a man who was wandering nude in the streets. They responded to a particular location in a public housing complex that was owned and operated by the government. They encountered the nude man, who showed them to another public housing address. When they arrived, Robinson, his girlfriend and two small children were exiting an apartment, but went back inside as officers approached them; they then came back out within a minute. Robinson and his girlfriend were interviewed on the scene.

The police asked for consent to search the apartment, and the girlfriend, who resided with her children at that apartment, consented. She told one of the officers that a gun was underneath a couch and that drugs were in a bedroom closet. The girlfriend gave a written statement that Robinson had brought drugs and a gun into her apartment that morning, and described how Robinson had forced the man to strip and then kicked him out of her apartment, nude. At trial, however the girlfriend testified that the man had placed the drugs in her apartment the night before.

At the time of the incident, the girlfriend thought that Robinson, who had a key to her apartment, was the father of one of her children. The drugs were submitted to a crime lab and later tested positive for 85.02 grams of a mixture of cocaine, with 68.8 percent purity.

1. Robinson challenges the sufficiency of the evidence to sustain his conviction for possession of a controlled substance with intent to distribute within 1,000 feet of a public housing project. He contends that

[although the State produced evidence that the offense occurred in “public assistance housing, run by the city and county” and “owned and operated by the government,” the State failed to prove that the location was under the jurisdiction of a housing authority, consisted of dwelling units, and consisted of dwelling units occupied by low and moderate-income families.

The record belies these claims.

OCGA § 16-13-32.5 (b) provides:

It shall be unlawful for any person to manufacture, distribute, dispense, or possess with intent to distribute a controlled substance or marijuana or a counterfeit substance in, on, or within 1,000 feet of any real property of any publicly owned or publicly operated housing project, unless the manufacture, distribution, or dispensing is otherwise allowed by law. For the purposes of this Code section, the term “housing project” means any facilities under the jurisdiction of a housing authority which constitute single or multifamily dwelling units occupied by low and moderate-income families pursuant to Chapter 3 of Title 8.

Contrary to Robinson’s contention, evidence that the public housing complex was under the jurisdiction of a housing authority was twice presented at trial. The first instance was when Robinson’s girlfriend consented to a search of her residence. One of the officers testified that after consent was obtained, the girlfriend “appeared extremely scared,” after he told her that if she was involved with crime she would be put out of her apartment. The officer told her that if she told him the location of any drugs and guns, he would have “no problem going to the Housing Authority and speaking on her behalf....” The second instance was on cross-examination of the officer when he was asked whether he had threatened the girlfriend with being put out of her apartment if she did not cooperate with him. The officer denied that he had threatened her and testified that because that was an issue about which she was concerned, they discussed it. He testified that he told her “that if there was something in there, it would be a good time to tell me, and if we did find something I’d be more than happy to go before the Housing Authority and testify on her behalf that she did cooperate.”

Also contrary to Robinson’s contention, the evidence showed that the location consisted of dwelling units. In Collins v. State, upon which Robinson relies, we reversed a defendant’s conviction for selling cocaine within 1,000 feet of a public housing project because the only evidence concerning the location of where the sale took place was the testimony of a police officer that the sale occurred within 1,000 feet of a “Housing Authority.” We recognized that under that evidence alone, the property could have been the administrative offices of the Housing Authority: “Indeed, since Georgia’s Housing Authorities Law authorizes housing authorities to demolish or clear buildings in slum areas on property it purchases . . . the property . . . could have been unoccupied altogether with no improvements thereon.” Here, however, the evidence showed that the incident occurred in an apartment occupied by one of the trial witnesses.

Finally, contrary to Robinson’s contention, the evidence showed that the location consisted of dwelling units occupied by low and moderate income families. Under the Housing Authorities Law, “ ‘[l]ow and moderate income families’ means persons and families . . . determined by the authority to require such assistance as is made available by this article on account of insufficient personal or family income. . . ,” The assistance made available is for safe and sanitary dwelling accommodations available at rents which persons of low income can afford; the assistance is for a public use and for which public money may be spent. Accordingly, in the context of the Housing Authorities Law, public assistance housing denotes housing for low and moderate income families. Here, the girlfriend confirmed that her apartment was “public assistance housing, run by the city and county,” as compared to merely stating that her apartment was public housing.

Robinson relies on Johnson v. State, but that case does not lead us to a different result. There, to establish that the sale of cocaine took place on property located within 1,000 feet of a public housing project, the state relied on the testimony of a special agent from the Georgia Bureau of Investigation. When asked how he knew it was a public housing project, the agent replied that “we just knew ... it was city owned.” There was no evidence that the projects were dwelling units occupied by low or moderate income families, and we reversed that conviction.

Accordingly, Robinson’s challenge to the sufficiency of the evidence to sustain his conviction for possession of a controlled substance with intent to distribute within 1,000 feet of a public housing project has no merit.

2. Robinson contends that the evidence was insufficient to sustain his conviction for trafficking in cocaine. He argues that the evidence was insufficient because it consisted only of his girlfriend’s handwritten statement which was contrary to her testimony at trial. He further argues that because the evidence was insufficient as to the trafficking in cocaine count, then the conviction for possession of a firearm during the commission of a felony, with the underlying felony as trafficking in cocaine, must also be reversed. Robinson also contends the evidence was insufficient to sustain his conviction for possession of a firearm during the commission of a felony because there was no proof that he was in arms reach of the drugs and gun or possessed them at the same time.

The prior inconsistent statement of a witness who takes the stand and is subject to cross-examination is admissible both to impeach the witness and as substantive evidence of the matter asserted. At trial, the girlfriend testified that the man later found nude on the street had placed the drugs in her apartment the night before. But in her prior statement, the girlfriend stated that she had told the police that there “was a gun and some drugs that [Robinson] had brought in the house that morning.” In her prior statement, the girlfriend stated that Robinson had pulled a gun on her and hit her a couple of times, and that she was afraid for herself and her children. She stated that the only reason she had not previously reported Robinson, who at the time of the incident had a key to her apartment and was thought to have been the father of her child, was because he had a gun and she did not think he needed to go to jail. The jury was authorized to believe the girlfriend’s pre-trial statement rather than her in-court disavowal. Thus, Robinson’s contention that the evidence presented was insufficient to sustain his conviction for trafficking in cocaine and consequently, on that basis, his conviction for possession of a firearm during the commission of a felony, is without merit.

Decided March 2, 2012.

Jennifer R. Burns, for appellant.

Larry Chisolm, District Attorney, Ian R. Heap, Jr., Assistant District Attorney, for appellee.

Robinson’s reliance on Clyde v. State, to argue that there was no proof that he was in arms reach of the drugs and gun or that he possessed them at the same time, is also without merit. In Clyde, there was no witness statement that the defendant possessed drugs and a gun, and the evidence showed that the items were located in two different places, with no testimony about the distance between the locations. Here, in her prior statement, Robinson’s girlfriend stated that Robinson had, that morning, brought into her home a gun and some drugs. Thus the evidence was sufficient for a jury to have found the essential elements of the crime beyond a reasonable doubt.

3. Appellate counsel was appointed after Robinson’s motion for new trial was denied. Because Robinson raises issues of ineffective assistance of trial counsel for the first time on appeal, we remand the case for an evidentiary hearing on this claim.

Judgment affirmed and case remanded.

Andrews and McFadden, JJ., concur.

       Robinson does not challenge his conviction for criminal use of an article with an altered identification mark.

        Walker v. State, 290 Ga. App. 749 (1) (660 SE2d 844) (2008) (citations, punctuation and emphasis omitted).

       278 Ga. App. 103 (628 SE2d 148) (2006).

       Id. at 105 (1) (b).

       Id.

       OCGA § 8-3-1 et seq.

       OCGA § 8-3-3.1 (emphasis supplied).

       OCGA § 8-3-2.

       OCGA §§ 8-3-1; 8-3-2.

       See Mahone v. State, 296 Ga. App. 373, 374-376 (3) (674 SE2d 411) (2009) (recognizing that a development described by a witness only as a public housing project owned by a city may not fall within the definition of a housing project under OCGA § 16-13-32.5 (b); conviction reversed because the only evidence to establish that the cocaine sale took place on property located within 1,000 feet of a public housing project was testimony from a narcotics investigator that the cocaine buy took place less than 1,000 feet from a government housing development; there was no testimony that the government housing development was the property of a housing authority or that it was occupied by low and moderate income families).

       214 Ga. App. 77 (447 SE2d 74) (1994).

       Id. at 80-81.

       Id.

       Id. at 81.

       OCGA §§ 8-3-1; 8-3-2; Walker, supra; Barnett v. State, 276 Ga. App. 238, 240 (1) (623 SE2d 136) (2005); Haywood v. State, 248 Ga. App. 210, 212 (2) (546 SE2d 325) (2001); compare Williams v. State, 303 Ga. App. 222, 224 (1) (692 SE2d 820) (2010) (conviction reversed because no evidence was presented establishing that the housing project was publicly owned or operated; nor that the housing project was occupied by low and moderate income families).

        Ingram v. State, 277 Ga. 46, 49 (3) (586 SE2d 221) (2003); Eller v. State, 294 Ga. App. 77, 82 (4) (b) (668 SE2d 755) (2008).

        Leonard v. State, 279 Ga. App. 192, 193 (1) (630 SE2d 804) (2006).

       298 Ga. App. 283 (680 SE2d 146) (2009).

       Id. at 285 (2).

        Walker, supra.

       See Potter v. State, 272 Ga. 430, 432 (3) (530 SE2d 725) (2000).


author: Miller, Judge.

text:
    A11A2066.
    MARTINEZ v. THE STATE.
    (724 SE2d 851)
   Miller, Judge.

Following a jury trial, Santiago Ramirez Martinez was convicted of trafficking in cocaine (OCGA § 16-13-31 (a) (1)). Martinez filed a motion for new trial, which the trial court denied. On appeal, Martinez contends that the evidence is insufficient to support his conviction, and that the trial court erred in denying his motion to exclude his custodial statement to the investigating drug officers. We discern no error and affirm.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, and the defendant is no longer entitled to a presumption of innocence. We neither weigh the evidence nor judge the credibility of witnesses, but determine only the sufficiency of the evidence in accordance with the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

(Citations and punctuation omitted.) Martinez v. State, 303 Ga. App. 71 (1) (692 SE2d 737) (2010).

So viewed, the trial evidence shows that a confidential informant with Immigration Customs Enforcement (“ICE”) agreed to assist Chatham Narcotics Team (“CNT”) with a drug investigation. During the investigation, the informant successfully completed several drug deals with Martinez’s co-defendant, Albertino Garcia-Soto. An additional goal of the investigation was to identify Soto’s drug suppliers.

On March 27, 2009, the officers organized a “buy-bust” operation to purchase four ounces of cocaine from Soto for $4,000. During the investigation, the officers had placed a tracking device on Soto’s vehicle. On the day of the operation, the officers maintained surveillance on Soto and tracked him as he traveled to South Carolina and returned to his residence in Chatham County. The officers observed Martinez following Soto in a separate vehicle. Later that afternoon, the officers tracked Soto’s vehicle to the designated location of the buy-bust operation.

Prior to the operation, the informant and his vehicle were searched to confirm that no contraband was present. The informant and an undercover officer proceeded with the operation, while other officers in unmarked vehicles conducted surveillance nearby. Upon meeting the informant at the designated location, Soto entered the passenger side of the informant’s vehicle. After the informant saw the drugs, he gave a takedown signal. The officers then moved in and arrested Soto. Following the operation, the officers recovered four bags containing suspected cocaine from the back passenger seat of the informant’s vehicle, in proximity to where Soto had been seated. Subsequent testing confirmed that the drug substance in the bags was cocaine weighing 110.75 grams and having a purity of 31.8%.

Following his arrest, Soto cooperated with the officers’ investigation and agreed to take them to his drug supplier. Soto led the officers to his residence, where the officers found Martinez in a bedroom. Soto told the officers that Martinez was his drug supplier. During a search of Martinez’s person, the officers seized $1,750 from Martinez’s pants pocket.

A trained drug dog performed a free-air search outside Martinez’s vehicle that was parked at the residence. The dog alerted on the driver’s side door of Martinez’s vehicle, indicating that drugs had previously been inside the vehicle.

Martinez was arrested and transported to the ICE satellite office. Since Martinez spoke only Spanish, an officer who was fluent in both Spanish and English served as an interpreter during Martinez’s communications with the officers. The officer read Martinez his Miranda rights in Spanish, using a standard written form that set forth the rights. After being advised of his rights, Martinez agreed to a custodial interview. When the officers asked Martinez about the cocaine, he initially denied having had any knowledge of it. Upon further questioning, however, Martinez confessed that he had given the cocaine to Soto, and told the officers that they could take him to jail and deport him.

Martinez and Soto were jointly charged with the cocaine traf-ticking offense. At Martinez’s ensuing jury trial, Soto testified as a defense witness and recanted his prior statement that Martinez had given him the cocaine. Martinez also testified on his own behalf and disclaimed any involvement in the drug offense.

Following the presentation of the evidence, the jury found Martinez guilty of the trafficking in cocaine offense, as charged.

1. Martinez contends that the trial evidence was insufficient to sustain his conviction. We disagree.

OCGA § 16-13-31 (a) (1) provides that “[a]ny person who knowingly . . . delivers ... or who is knowingly in possession of 28 grams or more of cocaine or of any mixture with a purity of 10 percent or more of cocaine . . . commits the felony offense of trafficking in cocaine[.]” Evidence that a defendant had joint constructive possession of contraband with another will sustain a conviction. See Martinez, supra, 303 Ga. App. at 73 (1).

Moreover, one who intentionally aids or abets in the commission of a crime is a party to it. OCGA § 16-2-20 (b) (3). . . . [A defendant’s] presence, companionship, and conduct before and after the offense are circumstances from which [his] participation in the criminal intent may be inferred. A [defendant] will not be presumed to act with criminal intention, but the trier of facts may find such intention upon consideration of the words, conduct, demeanor, motive, and all other circumstances connected with the act for which the [defendant] is prosecuted. If the totality of circumstantial evidence is sufficient to connect the defendant with the possession of the drugs, the conviction will be sustained, even though there is evidence to authorize a contrary finding.

(Citations and punctuation omitted.) Id. at 73-74 (1).

It is axiomatic that

[a] confession alone, uncorroborated by any other evidence, does not justify a conviction. [See OCGA § 24-3-53.] However, a free and voluntary confession of guilt by the accused is direct evidence of the highest character and is sufficient to authorize a conviction when corroborated by proof of the corpus delicti.

(Punctuation and footnotes omitted.) Williams v. State, 270 Ga. App. 424, 425-426 (1) (606 SE2d 871) (2004). The evidence corroborating a confession, however, need not definitely connect the defendant to the crime; corroboration in any material particular satisfies the legal requirement. See Casanova v. State, 285 Ga. App. 554, 555 (1) (646 SE2d 754) (2007). Similarly, in felony cases, an accomplice’s statement or testimony must be corroborated by slight evidence connecting the defendant to the crime. See OCGA § 24-4-8 (“[I]n . . . felony cases where the only witness is an accomplice, the testimony of a single witness is not sufficient [to establish a fact].”) (punctuation omitted); Green v. State, 298 Ga. App. 17, 21 (1) (679 SE2d 348) (2009). “[T]he corroborating evidence can be circumstantial.” (Citation and punctuation omitted.) Green, supra, 298 Ga. App. at 21 (1).

Here, the evidence establishing Martinez’s guilt of the cocaine trafficking offense included co-defendant Soto’s prior statements to the officers, which identified Martinez as being the drug supplier and a party to the crime. Although Soto’s subsequent trial testimony recanted his identification of Martinez as being the drug supplier, his prior inconsistent statement to the officers was substantive evidence establishing the fact of Martinez’s involvement. See Green, supra, 298 Ga. App. at 21 (1) (“[A] prior inconsistent statement of a witness who takes the stand and is subject to cross-examination is admissible as substantive evidence.”) (citation and punctuation omitted). Significantly, Soto’s prior statements were corroborated by Martinez’s own confession to the officers that he had supplied co-defendant Soto with the drugs. See Laye v. State, 312 Ga. App. 862, 867 (1) (720 SE2d 233) (2011) (concluding that the defendant’s own statements to the investigating officers corroborated the accomplice’s testimony that defendant was a party to the crime). In addition, Martinez’s confession and Soto’s prior statements were both corroborated by evidence that the officers had observed Martinez following Soto in a separate vehicle during their surveillance on the day of the buy-bust operation; the trained drug dog alerted on the driver’s side door of Martinez’s vehicle, indicating that drugs had previously been inside of it; and the officers seized a large amount of currency from Martinez’s person at the time of his arrest. This combined evidence established that Martinez was an active participant and a party to the cocaine trafficking offense. See OCGA § 16-13-31 (a) (1); Casanova, supra, 285 Ga. App. at 555 (1); Henry v. State, 227 Ga. App. 733 (494 SE2d 175) (1997); Holder v. State, 194 Ga. App. 790, 791-792 (1) (391 SE2d 808) (1990).

2. Martinez also contends that the trial court erred in denying his motion to exclude his custodial statement to the drug officers. Again, we disagree.

“A post -Miranda custodial statement is admissible if, under the totality of the circumstances, the defendant’s waiver of rights was knowing and voluntary. A trial court’s decision to admit such a statement will not be disturbed unless clearly erroneous.” (Citations and punctuation omitted.) Salinas-Gomez v. State, 287 Ga. App. 384, 386 (1) (651 SE2d 501) (2007).

During the Jackson-Denno hearing and at trial, the officers testified that an officer who was fluent in both the Spanish and English languages served as an interpreter for Martinez, who only spoke Spanish, during his communications with the officers. The officer read Martinez his Miranda rights in Spanish, using a standard written form maintained at the CNT office. Although the form itself was not signed, the officers identified the standard form as demonstrative evidence of the one used during Martinez’s interview. After being advised of his rights, Martinez was asked whether he understood the rights that had been read to him, and Martinez responded affirmatively. Martinez then agreed to a custodial interview and confessed that he had given the cocaine to Soto. The officers further testified that they did not threaten Martinez to obtain his confession. The officers also stated that Martinez appeared to be sober and coherent, and understood the officer’s translations in Spanish. Based upon this evidence, the trial court was authorized to find that Martinez’s custodial statements were knowing and voluntary. See Salinas-Gomez, supra, 287 Ga. App. at 386-387 (1); Duran v. State, 274 Ga. App. 876, 878-879 (2) (619 SE2d 388) (2005).

Decided March 2, 2012.

Steven L. Sparger, for appellant.

Larry Chisolm, District Attorney, Jerome M. Rothschild, Jr., Assistant District Attorney, for appellee.

Martinez nevertheless challenges the admissibility of his statement since the standard written form used to inform him of his rights was not signed and his interrogation was not recorded. “However, the mere fact that there was no written wed ver of Miranda rights or other written record of such waiver did not render his statement inadmissible. Likewise, the officer’s failure to electronically record [Martinez’s] waiver does not render [Martinez’s] waiver involuntary.” (Citations, punctuation and footnotes omitted.) State v. Hardy, 281 Ga. App. 365, 366 (636 SE2d 36) (2006). Martinez also falsely claims that the officer omitted portions of the Miranda rights. To the contrary, the evidence revealed that the officer’s Miranda advisement adequately covered all the necessary points. See Duran, supra, 274 Ga. App. at 878 (2). While Martinez also asserts that he did not understand the officer’s translations, the trial court was authorized to reject his assertion based upon contrary evidence that he had confirmed his understanding of the rights and had coherently responded to the officer’s questions during the interview. See id.; see also Salinas-Gomez, supra, 287 Ga. App. at 386-387 (1). The trial court’s denial of Martinez’s motion to exclude his custodial statement, therefore, was proper. See Salinas-Gomez, supra, 287 Ga. App. at 386-387 (1); Duran, supra, 274 Ga. App. at 878 (2).

Judgment affirmed.

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

       See McKenzie v. State, 283 Ga. App. 555, 559 (642 SE2d 187) (2007) (a defendant’s possession of a large amount of cash is circumstantial evidence of a drug trafficking offense); Brown v. State, 244 Ga. App. 440, 442-443 (2) (535 SE2d 785) (2000) (among other evidence, a large amount of cash in defendant’s pocket supported a finding that he was involved in the drug trade).

       “In reviewing the admission of a defendant’s statement, we are not limited to evidence presented at the Jackson-Denno hearing.” (Citation omitted.) Salinas-Gomez, supra, 287 Ga. App. at 386 (1), n. 4.


author: BLACKWELL, Judge.

text:
    A11A2238.
    BRADLEY v. WINN-DIXIE STORES, INC.
    (724 SE2d 855)
   BLACKWELL, Judge.

Susan Bradley sued Winn-Dixie Stores, Inc. for injuries that she sustained when she slipped and fell in one of its grocery stores. To prove that Winn-Dixie had constructive knowledge of the hazard on which she slipped, Bradley pointed to her own testimony that a Winn-Dixie employee was in the immediate vicinity of the hazard at the time of her fall. The court below found, however, that Bradley had given contradictory testimony about this employee, and applying the rule set out in Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27 (343 SE2d 680) (1986), the court viewed this testimony in a light unfavorable to Bradley. So viewed, the court concluded that Bradley was without evidence to prove constructive knowledge, and it awarded summary judgment to Winn-Dixie. Bradley appeals, and we reverse the judgment below.

Viewed in the light most favorable to Bradley, the record shows that on the afternoon of February 17, 2008, Bradley shopped at a Winn-Dixie store in Glynn County. As she walked along the rear aisle of the store, she stepped into a puddle of liquid, which covered a large area of the floor. When she tried to step out of the puddle, she slipped and fell, injuring her lower back, and perhaps her neck and head, as a result. Bradley remained on the floor for a few moments, and when no one came to assist her, she stood up herself and approached a nearby Winn-Dixie employee.

At the time of her fall, according to Bradley, this Winn-Dixie employee was “right there,” only a few feet from the area in which Bradley fell. The employee was stocking a cooler, facing Bradley, and standing in a place from which the employee could have seen Bradley fall. The employee, however, apparently did not acknowledge Bradley or come to her aid when she fell. So, after Bradley stood up herself, she immediately went to the employee and reported that she had slipped and fallen in the puddle on the floor. In response, Bradley said, the employee began “freaking” and exclaimed: “[0]h Lordy, oh Lordy, oh Lordy!” The employee then went behind a nearby meat counter, telephoned the store manager, and reported that “a woman back here fell.” The store manager spoke with Bradley and asked if she needed medical assistance. Bradley replied that she did, but she had to go and pick up her granddaughter. Bradley then left the store, and she later sought treatment at a local medical clinic. Bradley subsequently sued Winn-Dixie, alleging that it negligently failed to keep its premises safe for shoppers.

A storekeeper owes a duty of ordinary care to keep the premises of his store safe for shoppers, Robinson v. Kroger Co., 268 Ga. 735, 736 (1) (493 SE2d 403) (1997), and if the storekeeper has constructive knowledge of a foreign substance on his floor, he may be liable to a shopper who slips upon it and falls. Alterman Foods v. Ligon, 246 Ga. 620, 622 (272 SE2d 327) (1980). Constructive knowledge can be proved by, among other things, evidence that a store employee “was in the immediate area of the dangerous condition and could have easily seen the substance and removed the hazard.” Id. Following discovery in this case, Winn-Dixie moved for summary judgment, contending that Bradley was without evidence to prove its constructive knowledge of the hazard upon which she slipped. In response, Bradley pointed to her testimony about the store employee in the vicinity of the area in which she fell. The court below found, however, that this testimony was contradictory and should be construed against her. So construed, the court concluded, no proof of constructive knowledge appeared in the record. For this reason, the court below awarded summary judgment to Winn-Dixie.

Generally speaking, in an appeal from the award of summary judgment, we view the evidence in the light most favorable to the party opposing summary judgment. Strength, 311 Ga. App. at 36. But as our Supreme Court explained in Prophecy, when a party has given contradictory testimony, and when that party relies exclusively on that testimony in opposition to summary judgment, a court must “construe the contradictory testimony against him.” 256 Ga. at 28 (1). In such a case, the court must disregard “the favorable portions of the contradictory testimony” and then decide whether the remaining evidence is sufficient to get by summary judgment. Id. For purposes of the Prophecy rule, testimony is contradictory “if one part of the testimony asserts or expresses the opposite of another part of the testimony.” Id. at 30 (2). The court below found two contradictions in Bradley’s testimony, but we conclude that neither is a proper basis for applying the Prophecy rule.

First, the court found a contradiction in Bradley’s account of the orientation of the employee, noting that Bradley first testified that the employee was “facing” her when she fell, but she later testified that the employee was “facing the side” of her. We do not understand how this amounts to a contradiction. Bradley explained that she was walking past the employee and that the employee was standing at a cooler. When one person is at a fixed location, and a second person passes by the front of the first, walking along a line perpendicular to the line of sight of the first, it is equally fair to say that the first is “facing” the second and that the first is “facing the side” of the second. The testimony about the orientation of the employee is not contradictory.

Second, the court below found a contradiction in the testimony that the employee was in a place from which she could have seen Bradley fall, did not appear to react at all to the fall, but reacted excitedly when Bradley reported it. The court explained its finding of a contradiction in this way:

The Court finds that [Bradley]’s deposition testimony must be construed as an admission [that] the employee of [Winn-Dixie] was not in a position to see the hazard on the floor. If the employee had been in such a position, she would have seen [Bradley] fall and remain on the floor for a minute or two. She therefore would not have been shocked into near hysteria when the fall was reported to her. The employee’s response to being told about the fall, a prompt report of it to a manager and the above-described emotional reaction, is so at odds with her alleged failure to react in any manner when [Bradley] allegedly fell within a couple of feet of her and remained on the floor for some period that a rational trier of fact could not conclude that the employee was in a position to see the condition of the floor where [Bradley] fell.

Although it seems unlikely that everything happened just as Bradley described, we are not convinced that it is absolutely impossible. And because it is not absolutely impossible, we cannot say that “one part of the testimony asserts or expresses the opposite of another part of the testimony.” See Prophecy, 256 Ga. at 30 (2).

People sometimes do odd things, and they sometimes react, or fail to react, in strange ways that are not easily explained or understood. Perhaps the employee in this case was so focused on her task of stocking the cooler that she just did not notice Bradley fall a few feet away. Maybe the employee saw Bradley fall, but just did not care enough to react visibly until Bradley complained about it, at which time the fall became a problem with which the employee now had to deal. Perhaps when Bradley mentioned the puddle, the employee suddenly remembered having seen it before and realized that it had been her responsibility to clean it up. Or maybe Bradley just recalled incorrectly or fabricated entirely her account of an employee in the vicinity of her fall. But whether the account is credible, and if so, why the employee might have acted so unusually, are precisely the sorts of questions that a judge ought not attempt to answer as a matter of law. Like other questions of credibility and fact, they are questions for a jury. See, e.g., Alston & Bird, LLP v. Mellon Ventures II, L.P., 307 Ga. App. 640, 643 (2) (706 SE2d 652) (2010) (intent and expectations of an individual are “uniquely among those issues of material fact which are not appropriate for summary judgment”); Peach Blossom Dev. Co. v. Lowe Elec. Supply Co., 300 Ga. App. 268, 271 (684 SE2d 398) (2009) (on a motion for summary judgment, “testimony must speak for itself” and it is inappropriate for the court to weigh that testimony or determine its credibility) (citation and punctuation omitted).

Because no contradiction appears in the deposition testimony offered by Bradley in opposition to summary judgment, it was error for the court below to apply the Prophecy rule and view that testimony in any light other than the most favorable to Bradley. When viewed in the light most favorable to Bradley, her testimony is sufficient proof of constructive knowledge to get her past summary judgment. See, e.g., Somers v. M.A.U., Inc., 289 Ga. App. 731, 733 (658 SE2d 242) (2008) (reversing summary judgment for defendant where evidence showed that several employees of restaurant were within seven feet of area in which accident occurred); Dix v. Kroger Co., 257 Ga. App. 19, 20 (570 SE2d 89) (2002) (defendant not entitled to summary judgment where evidence showed that several store employees had unobstructed view of area in which fall occurred and were about 20 or 25 feet away); Deal v. Children’s World Learning Centers, 235 Ga. App. 236, 238 (2) (b) (509 SE2d 134) (1998) (reversing summary judgment for defendant where evidence showed that employee was facing puddle in which plaintiff fell and was only three feet away). Whether Winn-Dixie had constructive knowledge of the hazard upon which Bradley slipped and fell is for a jury to decide. Accordingly, we reverse the award of summary judgment to Winn-Dixie.

Judgment reversed.

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

Decided March 2, 2012.

Farah & Farah, Leslie S. Jean-Bart, for appellant.

Hinshaw & Culbertson, Paul Buschmann, James H. Wyman, for appellee.

       On summary judgment, the evidence generally is to be viewed in the light most favorable to the nonmoving party, see Strength v. Lovett, 311 Ga. App. 35, 36 (714 SE2d 723) (2011), and as we explain later, that is exactly how the evidence in this case ought to be viewed.

       The liquid later was identified as wine, although it apparently never was determined how the wine had spilled onto the floor.

       According to Bradley, the puddle covered an area approximately three feet by six feet.

       In its order awarding summary judgment to Winn-Dixie, the court below explained that Bradley had testified at her deposition that the employee was only “a foot or two” from Bradley at the time of the fall. That is not, however, exactly what Bradley said. At her deposition, Bradley testified that the employee was “a foot or two” from “the area where [she] fell,” but she did not explain exactly what she meant by “the area where [she] fell.”

       When asked at her deposition whether the employee was in a position to see her fall, Bradley responded: “I don’t know . . . how she wouldn’t have seen me or how she couldn’t help but see me. . . . Because she was right there.”

       A storekeeper also may be liable if he has actual knowledge of the substance, Alterman Foods v. Ligon, 246 Ga. 620, 622 (272 SE2d 327) (1980), but no evidence of actual knowledge appears in this case.

       Constructive knowledge also can be shown by proof “that the foreign substance was on the floor for a length of time sufficient for knowledge of it to be imputed to the defendant.” Alterman Foods, 246 Ga. at 623.

       Contradictory testimony is not to be construed against a party if he offers a reasonable explanation for the contradiction. Prophecy, 256 Ga. at 30 (2).


text:
    A11A2271.
    JOHNSON v. THE STATE.
    (724 SE2d 859)
   Andrews, Judge.

Michael Keith Johnson appeals from the judgment of conviction entered on jury verdicts finding him guilty of burglary and felony theft by taking, and from the trial court’s order of restitution to the victim. For the following reasons, we affirm the judgment of conviction, vacate the restitution order, and remand for a new hearing on restitution.

1. Johnson claims the evidence was insufficient to support the guilty verdicts.

The State produced evidence that an unoccupied, family-owned farm house in Cobb County was entered by force and burglarized. The owner charged with maintaining and securing the property testified that, during her daily check of the house on November 29, 2009, she discovered that the house had been broken into through a door; that items of personal property — a Buck wood-burning stove, a Jenn-Air stove, a vacuum cleaner, a rug, and copper pipe — valued in excess of $500 had been stolen from the house; and that the house had been extensively damaged as a result of the copper water pipes being cut out of the walls and from under the house. As a result of the cut water pipe, the house basement was flooded, and the owner hired a company to pump out the water. An employee of the company testified that he found a wallet in the basement which was given to police investigating the burglary. The wallet contained Johnson’s driver’s license and other personal papers including a document identifying Johnson as a customer of Marietta Recycling, a business that buys scrap metal. An employee of Marietta Recycling testified that on November 30, 2009, the day after the burglary, Johnson sold them 108 pounds of copper pipe of the type used as water piping in houses. As similar transaction evidence, the State produced evidence that in 2005 Johnson pled guilty to the burglary of an unoccupied house where there was forced entry through a door and items of personal property were stolen from the house. The owner of the present house testified that she did not know Johnson and that he did not have permission to enter the house.

In his defense, Johnson produced testimony from his fiancé that in the latter part of 2009 Johnson let a man borrow his truck to get a pack of cigarettes; that Johnson always left his wallet in the truck; and that she saw the man bring the truck back the next day loaded with two stoves, including a wood-burning stove. The fiancé testified that, in the presence of Johnson, she told the man to leave and that the man went to a friend’s house to ask her if she wanted to buy the stoves. The friend testified that the man came to her house driving Johnson’s truck and offered to sell her a vacuum cleaner. The man identified by Johnson’s fiancé and friend as driving his truck testified at trial and denied that he ever borrowed or drove Johnson’s truck; denied that he tried to sell stoves or a vacuum cleaner; but admitted that he had two prior burglary convictions.

On appeal from a criminal conviction, a defendant no longer enjoys the presumption of innocence, and the evidence is viewed in the light most favorable to the guilty verdict. Parker v. State, 220 Ga. App. 303 (469 SE2d 410) (1996). So viewed, the circumstantial evidence linking Johnson to the burglary and theft by taking of property from the house was sufficient to exclude every other reasonable hypothesis save that of guilt and to support the jury verdicts finding Johnson guilty of both offenses beyond a reasonable doubt. OCGA §§ 16-7-1; 16-8-2; 16-8-12 (a) (1); 24-4-6; Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Contrary to Johnson’s contention, the theft by taking conviction did not merge into the burglary conviction. Johnson was charged with burglary under OCGA § 16-7-1 by entering the house with the intent to commit a theft therein, and with theft by taking under OCGA § 16-8-2 by unlawfully taking property from the house. Because the burglary conviction required evidence of an entry but not a taking, and the theft by taking conviction required evidence of a taking but not an entry, there was no merger under the “required evidence” test. Drinkard v. Walker, 281 Ga. 211, 212-216 (636 SE2d 530) (2006).

3. Johnson contends that the trial court erred by admitting evidence of his prior burglary conviction as a similar transaction because it was not sufficiently similar to the present burglary.

The State offered the prior burglary as similar transaction evidence on the basis that there was sufficient similarity between the prior burglary and the present burglary so that the former tended to prove the latter, and that the former was admissible to show Johnson’s bent of mind and course of conduct. Williams v. State, 261 Ga. 640 (409 SE2d 649) (1991). At a pre-trial hearing pursuant to Uniform Superior Court Rule 31.3 (B), the State showed that Johnson pled guilty to a 2005 burglary of an unoccupied house by forced entry through a door and that he stole items of personal property from the house. Both the prior burglary and the present burglary involved unoccupied homes, forced entry through a door, and theft of personal property. A trial court’s admission of similar transaction evidence will be upheld on appeal unless clearly erroneous. Garrett v. State, 253 Ga. App. 779, 781 (560 SE2d 338) (2002). We find no clear error in the trial court’s conclusion that the prior burglary was sufficiently similar to the present burglary to be admitted as similar transaction evidence.

4. Johnson contends that the trial court erred by instructing the jury that recent possession of the stolen property would be a circumstance supporting an inference of guilt, unless there was a reasonable explanation for the possession of the property. Despite evidence that Johnson sold copper pipe the day after the burglary and that his truck was seen loaded with two stoves, Johnson claims the instruction was error because there was no evidence that he was ever in possession of any property stolen from the house. When the court asked for objections after giving the jury charge, Johnson made no objection on this ground. Nevertheless, under State v. Kelly, 290 Ga. 29, 31 (718 SE2d 232) (2011) and OCGA § 17-8-58 (b), we consider whether the instruction constituted plain error by inquiring “whether the instruction was erroneous, whether it was obviously so, and whether it likely affected the outcome of the proceeding.” Guajardo v. State, 290 Ga. 172, 176 (718 SE2d 292) (2011) (citation and punctuation omitted). Under this inquiry, we find no plain error.

5. Johnson contends that the trial court should have granted his motion for a new trial because his trial counsel provided ineffective assistance.

To obtain reversal of a conviction based on a claim of ineffective assistance of counsel, a defendant has the burden of proving that counsel’s performance was deficient, and that, but for the deficiency, there was a reasonable probability the outcome of the trial would have been different. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984); Terry v. Jenkins, 280 Ga. 341, 342 (627 SE2d 7) (2006). To establish deficient performance, a defendant must show that counsel’s performance fell below an objective standard of reasonableness under the circumstances confronting counsel at the time without resorting to hindsight. Strickland, 466 U. S. at 689-690; Franks v. State, 278 Ga. 246, 250 (599 SE2d 134) (2004). In considering adequacy of performance, trial counsel “is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Strickland, 466 U. S. at 690. “A claim of ineffective assistance of counsel is a mixed question of law and fact: we accept the trial court’s factual findings unless clearly erroneous, but we independently apply the legal principles to the facts.” Franks, 278 Ga. at 250.

Connelly v. State, 295 Ga. App. 765, 768-769 (673 SE2d 274) (2009). Applying these standards, we find that the trial court correctly denied the motion for new trial because Johnson failed to show that trial counsel was ineffective.

Johnson claims trial counsel was ineffective for failing to object to testimony from the Marietta Recycling employee. The prosecutor asked the employee if 108 pounds of copper pipe — the exact amount Johnson sold the day after the burglary — would be about the amount you would expect “if copper was cut out of the basement of a home and some other select locations.” The employee responded, “Yes, sir.” But on cross-examination by trial counsel, the employee admitted that the pounds of copper pipe in a home would vary according to the size of the home, and that he had no idea where the 108 pounds of copper pipe Johnson sold came from. The record shows that, rather than objecting, trial counsel made a strategic decision to challenge the employee’s testimony by effective cross-examination. Johnson failed to show that trial counsel was ineffective on this ground.

Johnson claims that trial counsel was ineffective in his response to videotape evidence introduced by the prosecutor. The videotape from Marietta Recycling showed Johnson’s sale of the copper pipe the day after the burglary. According to Johnson, if trial counsel had stipulated to facts shown in the videotape, including the fact that Johnson drove the truck shown on the videotape, the prosecutor would not have also produced a detective who testified that the truck in the video was driven by Johnson. Aside from the fact that the prosecutor stated at the hearing on the motion for new trial that he would not have agreed to enter into any such stipulation, we find that trial counsel’s decision not to offer to stipulate to those facts was made in the exercise of reasonable professional judgment. Johnson failed to show that trial counsel was ineffective on this ground.

Johnson claims that trial counsel was ineffective because he failed to adequately investigate the case prior to trial and failed to subpoena a critical witness. The record shows that trial counsel consulted with Johnson numerous times prior to trial, obtained discovery from the State and reviewed this material with Johnson, met with witnesses, and adequately prepared the case for trial. As to the claim that trial counsel failed to produce testimony from Johnson, the record shows that Johnson was advised of his rights and chose not to testify. As to the witness claimed to be critical to the defense, the record shows that trial counsel attempted to locate the witness but could not find him, and Johnson confirmed that the witness could not be found prior to trial because he was out of state and unavailable. Johnson failed to show that trial counsel was ineffective on these grounds.

Decided March 2, 2012.

Gary W. Jones, for appellant.

Patrick H. Head, District Attorney, Jason R. Samuels, Amelia G. Pray, Assistant District Attorneys, for appellee.

Johnson claims that trial counsel was ineffective because it was a fundamentally flawed defense tactic to call as a witness the man Johnson claimed committed the burglary. Trial counsel explained that, even though he expected the man to contradict other defense witnesses by denying any connection with Johnson’s truck or the burglary, his trial strategy was to impeach the man with his two prior burglary convictions and to argue that he, not Johnson, committed the burglary. Johnson failed to show that this decision was not made in the exercise of reasonable professional judgment.

6. We agree with Johnson that the portion of the trial court’s sentence ordering him to pay restitution to the victim in the amount of $5,000 for the value of stolen personal property and damage to the house must be vacated for lack of sufficient evidence. The measure of damages is the fair market value of the stolen personal property and the cost of repairs to the house. In the Interest of E. W., 290 Ga. App. 95, 97-98 (658 SE2d 854) (2008). As to the stolen personal property, the State failed to produce evidence of fair market value at the restitution hearing; instead showing what the victim paid for the property when it was new or what the victim would have to pay for new replacement property. Hawthorne v. State, 285 Ga. App. 196, 197 (648 SE2d 387) (2007). As to the cost of repairing the house, the State produced only inadmissible hearsay — testimony from the victim as to repair estimates she received from third parties not available to be cross-examined. Id. Accordingly, the order of restitution to the victim in the amount of $5,000 is vacated and the case is remanded to the trial court for a new hearing on restitution.

Judgment affirmed, order of restitution vacated and case remanded.

Phipps, P J., and McFadden, J., concur.