author: Dillard, Judge.

text:
    A13A1592.
    McDOUGLER v. THE STATE.
    (748 SE2d 475)
   Dillard, Judge.

Following a jury trial, Ronald McDougler was convicted on two counts of sale of cocaine and two counts of possession of cocaine. McDougler appeals his convictions and the denial of his motion for new trial, arguing that (1) the evidence was insufficient to support his convictions, (2) the trial court erred in failing to adequately instruct the jury regarding similar-transaction evidence, (3) the trial court erred in admitting his custodial statements into evidence, (4) the trial court erred in denying his claim of ineffective assistance of counsel, and (5) the trial court erred in denying his claim that his Sixth Amendment right to a speedy trial was violated. We find that the evidence was sufficient to support McDougler’s convictions. However, because we also find that the trial court’s order denying McDougler’s speedy-trial claim is insufficient to allow us to determine whether the trial court abused its discretion, we vacate the judgment and remand the case for entry of an order expressly including proper findings in accordance with Barker v. Wingo.

Viewed in the light most favorable to the jury’s verdict, the record shows that on January 30, 2008, the Camden County Sheriff’s Department set up an undercover operation, in which a confidential informant went to McDougler’s residence and purchased $20 worth of crack cocaine. On March 6, 2008, the same informant, once again working undercover, returned to McDougler’s residence and purchased another $20 worth of crack cocaine. A few days after this second purchase, a sheriff’s deputy obtained a warrant and arrested McDougler.

Subsequently, McDougler was charged, via accusation, with counts of sale of cocaine and possession of cocaine for the January 30 transaction and counts of sale of cocaine and possession of cocaine for the March 6 transaction. On July 2, 2009, approximately two weeks before his scheduled trial date, McDougler filed a motion to dismiss the accusation on the ground that his constitutional right to a speedy trial was violated. On July 9, 2009, the trial court issued an order denying McDougler’s speedy-trial claim. And one week later, McDougler was tried and convicted on all four counts in the accusation. Thereafter, McDougler retained new counsel and filed a motion for new trial, which the trial court denied. This appeal follows.

1. McDougler contends that the evidence was insufficient to support his convictions of sale and possession of cocaine. We disagree.

On appeal from a criminal conviction, “we view the evidence in the light most favorable to the jury’s verdict, and the defendant no longer enjoys the presumption of innocence.” Furthermore, we do not weigh the evidence or determine witness credibility, but “only determine if the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offense beyond a reasonable doubt.” With these guiding principles in mind, we turn now to McDougler’s contention that the evidence was insufficient to support his convictions.

OCGA § 16-13-30 (b) provides that “it is unlawful for any person to manufacture, deliver, distribute, dispense, administer, sell, or possess with intent to distribute any controlled substance.” And OCGA § 16-13-30 (a) provides that “it is unlawful for any person to purchase, possess, or have under his or her control any controlled substance.” Here, a confidential informant working for law enforcement in an undercover operation purchased crack cocaine from McDougler on two separate occasions. As such, the evidence was clearly sufficient to allow the jury to convict McDougler of selling and possessing cocaine.

2. McDougler also contends that the trial court erred in denying his claim that his right to a speedy trial was violated. However, we are unable to meaningfully review the trial court’s order on this issue and, therefore, must vacate that judgment.

It is well established that constitutional speedy-trial claims under the Sixth Amendment and the Georgia Constitution are analyzed pursuant to the four-part test mandated by Barker v. Wingo, which requires the trial court to consider:

(1) the length of the delay, (2) the reason for the delay, (3) the defendant’s assertion of the right to speedy trial, and (4) the prejudice to the defendant. The fourth factor requires the court to consider three interests: (i) preventing oppressive pretrial incarceration, (ii) minimizing anxiety and concern of the defendant, and (iii) limiting the possibility that the defense will be impaired.

And none of these factors are “either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial,” hut are instead “related factors [that] must be considered together with such other circumstances as maybe relevant.” In sum, these factors have “no talismanic qualities; courts must still engage in a difficult and sensitive balancing process.”

Importantly, it is not the role of the appellate court to “weigh the Barker factors in the first instance.” Rather, our charge is to “review the denial of a defendant’s constitutional speedy trial claim for an abuse of discretion.” As such, it is imperative that “in cases implicating a defendant’s constitutional right to speedy trial, the trial court enter findings of fact and conclusions of law consistent with Barker.” Indeed, in the absence of such findings, “there is no exercise of discretion for this Court to review.”

Decided September 10, 2013.

J. Dean Blevins, Amanda S. Jones, for appellant.

Jacquelyn L. Johnson, District Attorney, Rocky L. Bridges, Assistant District Attorney, for appellee.

And here, while the trial court’s order noted that the “14-month delay” between the time of McDougler’s arrest and his trial was “presumptively prejudicial,” there were no findings as to any of the other Barker factors. Furthermore, there is nothing in the record to indicate whether a hearing was even held on McDougler’s speedy-trial claim, much less a transcript containing verbal findings of fact and conclusions of law that would allow us to review the trial court’s ruling despite the absence of such findings in the court’s order. Given these circumstances, we conclude that the trial court’s order is insufficient to provide for proper appellate review. Accordingly, the trial court’s order denying McDougler’s constitutional speedy-trial claim is vacated, and the case is remanded for the entry of a proper order pursuant to Barker v. Wingo.

3. In light of our holding in Division 2, we need not address McDougler’s remaining enumerations of error at this time. Upon the trial court’s entry of its new order on McDougler’s motion to dismiss the accusation, the losing party may appeal. And in the event the court again denies McDougler’s motion, he may reassert his remaining claims of error should he choose to appeal the court’s decision.

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

Andrews, P. J., and McMillian, J., concur.

       407 U. S. 514 (92 SCt 2182, 33 LE2d 101) (1972).

        See, e.g., Powell v. State, 310 Ga. App. 144, 144 (712 SE2d 139) (2011).

        See OCGA § 16-13-30 (b).

        See OCGA § 16-13-30 (a).

        See U. S. Const, amend VI.

       Although we ultimately must vacate the trial court’s judgment for the reasons discussed in Division 2, infra, because McDougler specifically contends that the evidence was insufficient to support his convictions, we must address that enumeration of error. See Lewis v. State, 248 Ga. 566, 566 (1) (285 SE2d 179) (1981) (holding that the Court of Appeals cannot properly ignore an enumeration of error regarding insufficiency of evidence to support a conviction when the contention was made that the evidence was insufficient even prior to exclusion of any improperly admitted evidence).

        Powell, 310 Ga. App. at 144 (punctuation omitted).

        Id. (punctuation omitted).

        See Duffie v. State, 301 Ga. App. 607, 609 (1) (688 SE2d 389) (2009) (holding that testimony of confidential informants regarding their purchase of cocaine from defendant was sufficient to support defendant’s conviction for sale of cocaine).

        See Higgenbottom v. State, 288 Ga. 429, 430 (704 SE2d 786) (2011); Johnson v. State, 268 Ga. 416, 417 (2) (490 SE2d 91) (1997).

        Higgenbottom, 288 Ga. at 430 (punctuation omitted).

        Barker, 407 U. S. at 533 (IV).

        Barker, 407 U. S. at 533 (IV); see Higgenbottom, 288 Ga. at 430.

        Jackson v. State, 311 Ga. App. 342, 343 (715 SE2d 761) (2011) (punctuation omitted); see State v. Pickett, 288 Ga. 674, 679-80 (2) (d) (706 SE2d 561) (2011).

        Higgenbottom, 288 Ga. at 430.

        Id. at 430-31.

        Id. at 431.

        Compare Brown v. State, 287 Ga. 892, 894 n.3 (700 SE2d 407) (2010) (noting that although the trial court entered a summary order denying the motions to dismiss, the order referenced the court’s findings entered on the record at a hearing, and a transcript of that hearing showed that the court engaged in the balancing test under Barker), with Richardson v. State, 311 Ga. App. 369, 370 (715 SE2d 774) (2011) (holding that trial court’s order denying defendant’s speedy-trial claim was insufficient for review given that it included no findings of fact and given that trial court did not incorporate in its order a transcript containing verbal findings of fact).

        See Higgenbottom, 288 Ga. at 431 (holding that trial court’s order denying defendant’s speedy-trial claim, which only determined that defendant was not prejudiced by delay, was insufficient to provide for review); Jackson, 311 Ga. App. at 343 (same); see also Richardson, 311 Ga. App. at 370 (holding that trial court’s order denying defendant’s speedy-trial claim, which did not include any findings of fact or conclusions of law, was insufficient to provide for appellate review).

        See Colton v. State, 292 Ga. 509, 513 (3) (739 SE2d 380) (2013) (remanding case for trial court to determine if defendant’s custodial statement was voluntary and noting that defendant could appeal in the event of a judgment against him on that issue and reassert remaining issues as well).


source: Caselaw Access Project

author: Miller, Judge.

license: Public Domain

text:
    A13A1260.
    GREEN v. THE STATE.
    (748 SE2d 479)
   Miller, Judge.

Following a bench trial, Robert Anthony Green was convicted of DUI-per se (OCGA § 40-6-391 (a) (5)) and impeding the flow of traffic (OCGA § 40-6-184 (a) (1)). Green appeals from the denial of his motion for new trial, contending that the evidence was insufficient to sustain his convictions; the State failed to prove that he knowingly, voluntarily, and intelligently waived his right to a jury trial; and his trial counsel was ineffective. For the following reasons, we reverse.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the verdict, and the defendant no longer enjoys a presumption of innocence. Fuller v. State, 313 Ga. App. 759 (722 SE2d 453) (2012). So viewed, the evidence shows that at approximately 3:00 a.m. on March 9, 2011, police officers noticed a vehicle with its flashers on and stopped in the lane of travel. The officers pulled in behind the vehicle and exited the patrol car to determine if anyone was inside the vehicle. As the officers approached the vehicle, they noticed that the vehicle was running, the vehicle had two flat tires, and Green was slumped over and asleep behind the wheel. The officers knocked on the driver’s side window repeatedly, and they were only able to wake up Green after opening his door. In response to the officers’ questions, Green explained that he was at a restaurant the night before and had called for a tow truck once he noticed his tires were flat. Green admitted to drinking alcohol several hours earlier, and officers observed that his speech was slurred, he was unsteady on his feet, his eyes were red, and there was an odor of alcohol coming from Green. After failing a few of the field sobriety tests administered to him, Green was arrested for DUI and was read the required implied consent notice. Green gave a State-administered breath sample on the Intoxilyzer 5000 device, and the test results indicated that Green’s blood-alcohol concentration levels were 0.158 and 0.164.

1. Green argues that the evidence is insufficient to support his convictions because there was insufficient evidence demonstrating his actual physical control of the vehicle or that he was impeding the flow of traffic. After a thorough review, we conclude that the evidence was sufficient to support the DUI conviction, but insufficient to sustain the conviction for impeding the flow of traffic.

(a) A person is guilty of DUI-per se if he drives a car while his blood-alcohol concentration is 0.08 grams or more at any time within three hours after such driving. OCGA § 40-6-391 (a) (5).

It is well settled that the driving of an automobile while intoxicated may be shown by circumstantial evidence. It is likewise settled that to sustain a judgment of conviction, the evidence need not exclude every inference or hypothesis except the guilt of the accused, but only reasonable inferences and hypotheses, so as to justify the inference, beyond a reasonable doubt, of guilt.

(Citations, punctuation and emphasis omitted.) Stephens v. State, 271 Ga. App. 634, 635 (610 SE2d 613) (2005); see also Dorris v. State, 291 Ga. App. 716, 718 (662 SE2d 804) (2008).

Here, the evidence established that Green was found in the driver’s seat of his vehicle that had its flashers on and was stopped in the lane of travel. Green was the sole occupant of the vehicle, he failed field sobriety tests, and he had a blood-alcohol concentration that was double the legal limit of 0.08 grams.

Although the officer did not see the car moving, he observed circumstances from which [the trial court sitting as the trier of fact] could infer that [Green] was in actual physical control of the car when it was moved to the location where the officer found it, and that [Green] was intoxicated while moving it there.

(Citations and punctuation omitted.) Stephens, supra, 271 Ga. App. at 635.

Although Green argues that there was evidence in the record indicating that he did not drive the vehicle, the trial court considered the evidence presented by Green and obviously rejected it when it found that Green was guilty of DUI-per se. See Jaffray v. State, 306 Ga. App. 469, 471-472 (1) (702 SE2d 742) (2010). “As long as there is some evidence, even though contradicted, to support each necessary element of the State’s case, the verdict will be upheld.” (Punctuation and footnote omitted.) Id. Based upon the evidence presented, the trial court was authorized to find that Green was guilty beyond a reasonable doubt of the DUI-per se offense. See OCGA § 40-6-391 (a) (5); Dorris, supra, 291 Ga. App. at 718-719 (affirming the defendant’s DUI-per se conviction based upon evidence as to the irregular manner in which defendant’s truck was parked in the parking lot, defendant’s presence in the driver’s seat, the signs of intoxication, and the intoxilyzer test results showing a blood-alcohol concentration of 0.198 grams).

(b) The evidence presented was insufficient to convict Green for impeding the flow of traffic, in violation of OCGA § 40-6-184 (a) (1).

Under that statute, “[n]o person shall drive a motor vehicle at such a slow speed as to impede the normal and reasonable movement of traffic, except when reduced speed is necessary for safe operation.” OCGA § 40-6-184 (a) (1). The plain language of the statute establishes that one cannot impede the flow of traffic when there is no traffic to impede. See Raulerson v. State, 223 Ga. App. 556, 557 (2) (479 SE2d 386) (1996) (defendant could not have impeded the flow of traffic because there was no traffic on the road at the time in question); see also Darwicki v. State, 291 Ga. App. 239, 241 (3) (661 SE2d 859) (2008) (physical precedent only). In this case, there was no evidence that any vehicles attempted to pass Green while he was stopped. Moreover, OCGA § 40-6-184 (a) (1) provides an exception when driving at a reduced speed is necessary “for safe operation.” Given that it is undisputed that Green’s vehicle had two flat tires, and that it was 3:00 a.m., we cannot say that it was unreasonable for him to be stopped in his lane of travel. Consequently, we must reverse this conviction.

2. Green also contends that the State failed to prove that he voluntarily, knowingly, and intelligently waived his right to a jury trial. We agree.

A defendant’s right to trial by a jury is a fundamental constitutional right that the defendant must personally, knowingly, voluntarily, and intelligently choose to waive. Watson v. State, 274 Ga. 689, 691 (2) (558 SE2d 704) (2002); Balbosa v. State, 275 Ga. 574, 575 (1) (571 SE2d 368) (2002). “A defendant’s consent to a trial without a jury need not be in any particular, ritualistic form; the trial court need only conduct an inquiry of the accused on the record so as to ensure that the waiver is knowing, voluntary and intelligent [.]” (Punctuation and footnote omitted.) Ealey v. State, 310 Ga. App. 893, 894 (714 SE2d 424) (2011); see also Watson, supra, 274 Ga. at 691 (2) (providing that the trial court should ask the defendant sufficient questions on the record to ensure that the defendant’s waiver is knowing, voluntary, and intelligent).

When a defendant challenges his purported waiver of the right to a jury trial, the State bears the burden of showing that the waiver was made both knowingly and intelligently, either

(1) by showing on the record that the defendant was cognizant of the right being waived; or (2) by filling a silent or incomplete record through the use of extrinsic evidence which affirmatively shows that the waiver was knowingly and voluntarily made.

(Citations and punctuation omitted.) Allison v. State, 288 Ga. App. 482, 485-486 (2) (654 SE2d 628) (2007). Such extrinsic evidence may include testimony by or an affidavit from trial counsel about his specific recollections; routine or standard practices; and evidence regarding the defendant’s intelligence and cognitive ability. See id. at 486 (2); Jones v. State, 294 Ga. App. 169, 170 (1) (670 SE2d 104) (2008).

Here, the record does not contain a colloquy showing that the trial court asked Green sufficient questions on the record to ensure that his waiver of his right to a jury trial was knowing, voluntary, and intelligent. The record also contains no writing signed by Green demonstrating his waiver of his right. As a result, the State attempts to satisfy its burden of showing a valid waiver through the use of extrinsic evidence. Notably, the State refers to the fact that Green was represented by a very capable attorney and that Green made no objection to the bench trial. Green’s failure to object to the bench trial shows, at most, only that such waiver was voluntary, but it does not establish that the waiver was knowing and intelligent. See Jones, supra, 294 Ga. App. at 170 (1); cf. Balbosa, supra, 275 Ga. at 575 (1) (trial counsel’s waiver of right to a jury trial showed only that waiver was voluntary). Moreover, notwithstanding trial counsel’s competence, the decision to waive the right to a jury trial rested with Green, not trial counsel. See Allison, supra, 288 Ga. App. at 489 (2) (b). The record is devoid of any testimony from trial counsel indicating that Green understood that he had a right to a jury trial and made a conscious choice to waive that right. Cf. Jones, supra, 294 Ga. App. at 170 (1) (having discussions with trial counsel is, alone, insufficient to establish that defendant knowingly and intelligently waived right to jury trial).

The State also relies on the trial court’s statement that at arraignments, it had a habit of ensuring that defendants understood they had a right to a jury trial. The trial court conceded, however, that it was unclear whether a formal arraignment took place in this case, and the record does not reveal that one occurred. Even if an arraignment took place, the trial court’s statement was insufficient to establish a valid waiver because it offered no details of the colloquy habitually conducted at arraignments “to make certain that the defendant is proceeding with a bench trial freely, voluntarily, and intelligently.” (Punctuation omitted.) Allison, supra, 288 Ga. App. at 490 (2) (b) (trial court’s affidavit that in all criminal cases it ensured a defendant freely, voluntarily, and intelligently waived his right to a jury trial was insufficient because affidavit lacked specific details about the steps taken by trial court).

Decided September 11, 2013.

A. James Rockefeller, for appellant.

AmyE. Smith, Solicitor-General, GinaM. Stout, Assistant Solicitor-General, for appellee.

In sum, the State failed to meet its burden of proving that Green knowingly and intelligently waived his right to a jury trial. Accordingly, we must reverse his conviction for DUI-per se. Since our review of the evidence shows that it was sufficient to sustain Green’s conviction for DUI-per se, he may legally be re-tried on that count. Ealey, supra, 310 Ga. App. at 899; Allison, supra, 288 Ga. App. at 490 (2) (b).

3. In light of our holdings in Divisions 1 and 2, we need not address Green’s remaining enumeration of error.

Judgment reversed.

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

       A video recording of the stop reveals one vehicle passing Green’s vehicle, but this occurred after the officers pulled in behind Green’s vehicle. There was no evidence that vehicles were impeded by Green’s vehicle prior to the officers’ arrival.


author: ELLINGTON, Presiding Judge.

text:
    A13A1169.
    JOHNSON v. JOHNSON et al.
    (747 SE2d 518)
   ELLINGTON, Presiding Judge.

In this medical fraud action, the defendants, Joseph Johnson, M.D. and Athens Orthopedic Clinic, P.A. (collectively “Dr. Johnson”), filed a motion for summary judgment on the fraud, punitive damages, and expenses of litigation claims brought by the plaintiff, Cedric Johnson. The State Court of Athens-Clarke County granted the motion, and Mr. Johnson appeals, arguing that a material question of fact remains regarding whether Dr. Johnson knew or should have known that Mr. Johnson had a particular medical condition and tortiously concealed that fact from him during the course of his medical treatment. For the following reasons, we affirm.

. Summary judgment is proper where the movant shows that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law. Jackson v. K-Mart Corp., 242 Ga. App. 274, 275 (529 SE2d 404) (2000). “To win summary judgment, a defendant need not produce any evidence but must only point to an absence of evidence supporting at least one essential element of the plaintiff’s claim.” (Punctuation and footnote omitted.) Hoffman v. AC&S, Inc., 248 Ga. App. 608, 610 (2) (548 SE2d 379) (2001). “[Speculation which raises merely a conjecture or possibility is not sufficient to create even an inference of fact for consideration on summary judgment.” (Punctuation and footnote omitted.) Patterson v. Lopez, 279 Ga. App. 840, 844 (4) (632 SE2d 736) (2006). “We review the trial court’s grant of summary judgment de novo ... [and view the evidence] in the light most favorable to the nonmoving party[.]” (Punctuation and footnote omitted.) Rahmaan v. DeKalb County, 300 Ga. App. 572, 572-573 (685 SE2d 472) (2009).

Viewed in the light most favorable to the nonmovant, Mr. Johnson, the record shows the following facts.

On December 16, 2008, Mr. Johnson was injured while playing flag football and had x-rays taken of his left Achilles tendon and foot in the emergency department at St. Mary’s Hospital. The emergency room physician diagnosed Mr. Johnson with a partial Achilles injury and referred him to Athens Orthopedic Clinic for treatment. A physician assistant examined Mr. Johnson at the clinic on December 1 and noted, inter alia, “an obvious soft tissue swelling and palpable defect about 3 to 4 cm proximal to the insertion aspect of the Achilles” in his left foot. The physician assistant’s impression was of a “left acute Achilles tendon rupture.” Dr. Johnson examined Mr. Johnson on December 22 and reviewed the x-rays taken at St. Mary’s Hospital. Based on his examination and review of the x-rays, Dr. Johnson confirmed the diagnosis of an acute rupture of the left Achilles tendon, noting a “palpable gap to his Achilles tendon there about 4 to 5 cm above the insertion.” He performed a surgical repair of the tendon on December 23.

From January to August 2009, Mr. Johnson saw Dr. Johnson once per month to track his recovery and to work on physical therapy strategies. At three of these visits, Mr. Johnson complained that he was experiencing pain in his left heel area and around the surgical site, which Dr. Johnson told him was normal in patients recovering from this type of surgery. At the July 31, 2009 visit, Dr. Johnson told Mr. Johnson for the first time that he had a “Haglund deformity” on his left heel. Dr. Johnson later deposed that his medical opinion at the time was “that the Haglund deformity was not significant enough to prevent Mr. Johnson from achieving a full recovery. I was more concerned about possible failure at the site of the surgical repair.” To address these concerns, Dr. Johnson ordered an MRI, which was performed the same day. According to the physician who interpreted Mr. Johnson’s MRI, the images revealed “likely underlying chronic Achilles tendinosis” and a “marked bulbous appearance to the distal one-third of the Achilles tendon located at 0.5 cm proximal to the distal calcaneal insertion.” On August 10, Dr. Johnson offered Mr. Johnson recommendations for future treatment and recommended a second surgery to correct the Haglund deformity. Mr. Johnson terminated his relationship with Dr. Johnson, and sought treatment with another physician.

In this action, Mr. Johnson alleges that, in addition to the acute rupture of his left Achilles tendon, he also had the Haglund deformity on his left heel, that the Achilles tendon was likely defective at one or more places other than the location of the rupture, and that Dr. Johnson knew or should have known of the Haglund deformity during his treatment of Mr. Johnson before the December 23, 2008 surgery or, at least, before the surgery was complete. In addition, Mr. Johnson alleges that Dr. Johnson failed to disclose this information to him in order to cause him to undergo, and pay for, further medical treatment when the Haglund deformity could have been resolved during the initial surgery.

The elements of a medical fraud claim are: (1) a false representation made by the defendant to the plaintiff; (2) scienter, that is, the defendant’s moral guilt in making the misrepresentation, which requires knowledge that the representation was false when it was made; (3) an intention of the defendant to induce the plaintiff to act or refrain from acting in reliance on the representation; (4) a justifiable reliance on the representation by the plaintiff; and (5) damage to the plaintiff as a result of the representation. Roberts v. Nessim, 297 Ga. App. 278, 284 (1) (b) (676 SE2d 734) (2009). “In all cases of deceit, knowledge of the falsehood constitutes an essential element of the tort.” OCGA § 51-6-2 (b). A false representation may simply be the omission or concealment of a material fact. ReMax North Atlanta v. Clark, 244 Ga. App. 890, 893 (537 SE2d 138) (2000). “[Wjhere one person sustains towards another a relation of trust and confidence, his silence when he should speak or his failure to disclose what he ought to disclose constitutes fraud in law just as actual affirmative false representations.” (Punctuation and footnote omitted.) Douglas v. Bigley, 278 Ga. App. 117, 122 (1) (b) (628 SE2d 199) (2006). “For [a fraud action] to survive a motion for summary judgment, there must be some evidence from which a jury could find each element of the tort.” (Punctuation and footnote omitted.) Roberts v. Nessim, 297 Ga. App. at 284 (1) (b). It follows that “[w]here there is no evidence of scienter, that is, that the false statement was knowingly made with false design, there can be no recovery.” (Citation and punctuation omitted.) Farmers State Bank v. Huguenin, 220 Ga. App. 657, 660 (2) (469 SE2d 34) (1996).

As Mr. Johnson contends, in contrast to a professional negligence claim, expert testimony is not necessarily required to support an intentional tort, such as fraud, even if committed by a professional. See Labovitz v. Hophinson, 271 Ga. 330, 336-337 (3) (519 SE2d 672) (1999) (OCGA § 9-11-9.1 does not apply to claims grounded on a professional’s intentional acts, and, therefore, such complaints are not required to be accompanied by an expert affidavit.); Smith v. Morris, Manning & Martin, 264 Ga. App. 24, 26 (589 SE2d 840) (2003) (Because OCGA § 9-11-9.1 does not apply to claims based on a professional’s alleged intentional conduct, an expert affidavit is not required for a fraud claim, even if it is “strikingly similar” to a professional negligence claim.). Although OCGA § 9-11-9.1 does not apply and, as a result, Mr. Johnson was not required to attach an expert affidavit to his medical fraud complaint, this does not mean that expert testimony will not be necessary for a jury to find in his favor. Under Georgia law, “expert evidence is required where a ‘medical question’ involving truly specialized medical knowledge (rather than the sort of medical knowledge that is within common understanding and experience)” is needed to establish a causal link between the defendant’s conduct and the plaintiff’s injury. (Citation omitted; emphasis in original.) Cowart v. Widener, 287 Ga. 622, 622 (697 SE2d 779) (2010). See Gilbert v. R. J. Taylor Mem. Hosp., 265 Ga. 580, 581, n. 4 (458 SE2d 341) (1995) (Although the plaintiff’s cause of action against a hospital was for simple negligence, medical questions were raised, which required expert evidence.).

In seeking summary judgment, Dr. Johnson argued that there is no evidence that Mr. Johnson had the Haglund deformity on or before the day of his surgery, December 23, and that, even assuming Mr. Johnson had the deformity at that time, there is no evidence that Dr. Johnson knew or should have known of the deformity before or on that date. He contends that he cannot be held liable for concealing the alleged material fact when there is no evidence he had actual or constructive knowledge of the fact, that is, the existence of the deformity. He argues that there is, therefore, no evidence from which a jury could find the essential element of scienter. Mr. Johnson contends, on the other hand, that the following evidence in the record supports a finding that Dr. Johnson had actual or constructive knowledge of the deformity prior to the surgery: (1) Mr. Johnson’s pre-surgical x-rays; (2) the examination note from the physician assistant; (3) Dr. Johnson’s examination notes; (4) a note by the physician who interpreted Mr. Johnson’s MRI; (5) a note by Mr. Johnson’s subsequent treating physician; and (6) evidence that Dr. Johnson’s treatment plan for Mr. Johnson was allegedly “significantly different” from that of the subsequent treating physician’s plan.

With regard to Mr. Johnson’s pre-surgical x-rays, he contends that the x-rays show “bumps” on the back of his heel and provide evidence that Dr. Johnson knew or should have known of the Haglund deformity. Mr. Johnson argues that he does not need expert analysis of the x-rays to guide the jury because

it is presented for what it is —■ either the finder of fact can see bumps on the heel on the images taken December 16, 2008 or they cannot. If at least one bump is there, either it’s the Haglund deformity referenced in [Mr. Johnson’s] treatment records or it is not, depending on whose presentation of the facts one believes.

For a jury to find, based on the pre-surgical x-rays, that Dr. Johnson knew about the Haglund deformity, either the jury must be able to recognize the condition through a layperson’s common understanding and experience or the x-rays must be coupled with expert testimony explaining what they show. We have reviewed the x-rays and have determined that whether they should have put a doctor on notice of a Haglund deformity is not within a layperson’s common understanding and experience. Instead, this issue requires expert testimony, which Mr. Johnson did not present. See Jones v. Finley, 170 Ga.App. 182, 183-184(1) (316 SE2d 533) (1984) (Where there was no expert opinion evidence that the defendant doctors’ failure to recognize the plaintiff’s ankle fracture in x-rays fell below the standard of care, the trial court correctly granted the doctors’ motion for summary judgment.).

With regard to the examination notes of the physician assistant and Dr. Johnson, Mr. Johnson argues that the fact that the physician assistant noted a “palpable defect about 3 to 4 cm proximal to the insertion aspect of the Achilles,” while Dr. Johnson observed a “palpable gap” at a different location, that is, “about 4 to 5 cm above the insertion” of the tendon, shows that Dr. Johnson knew or should have known that there were defects in his tendon and heel, in addition to the acute rupture. However, without expert testimony to support Mr. Johnson’s theory that the “defect” mentioned by the physician assistant should have put a doctor on notice of a deformity in addition to the ruptured Achilles tendon, or that it was different than the “palpable gap” mentioned by Dr. Johnson, these notes would not authorize a jury to find that Dr. Johnson knew or should have known of the Haglund deformity before the conclusion of the December 23, 2008 surgery.

With regard to the note by Mr. Johnson’s subsequent treating physician, the record shows that that doctor diagnosed Mr. Johnson with a “chronic [A] chilles condition and severe degeneration.” This Court has reviewed the note by the physician who interpreted Mr. Johnson’s MRI regarding chronic Achilles tendinosis and the note by Mr. Johnson’s subsequent treating physician regarding a chronic Achilles condition. We conclude that whether they provide evidence that Dr. Johnson knew or should have known of the Haglund deformity before the conclusion of the December 23, 2008 surgery is a medical question that is not within common understanding of laypeople, and, therefore requires expert opinion evidence. Further, neither of these doctors’ notes fulfills Mr. Johnson’s need for expert testimony, because neither expresses an opinion regarding what conclusions Dr. Johnson should have drawn about the Haglund deformity at the relevant time.

Finally, with regard to evidence that Dr. Johnson’s recommended course of treatment for Mr. Johnson was significantly different from that of his subsequent treating physician, the record shows that Dr. Johnson suggested an “arthroscopic Haglund excision with retrocalcaneal debridement and then Topaz treatment of his tendon posteriorly,” while Mr. Johnson’s subsequent treating physician’s recommendation included a “left Achilles debridement, left calcaneal exostosectomy, flexor hallucis longus tendon transfer, and reattachment of the [A] chilles using suture anchors.” Without expert testimony to explain how different these two recommendations actually are, merely showing that two physicians recommended different sounding courses of treatment outside the scope of common understanding is insufficient evidence to support an allegation of fraud.

This case is similar to the claim for medical fraud in Roberts v. Nessim. In that case, the record contained no direct evidence that the defendant doctor made false representations to the patient, and the plaintiff pointed the court to 11 depositions, the defendant’s affidavit, and the patient’s medical records, but failed to specify how any of the evidence supported the elements of her fraud claim. 297 Ga. App. at 283-284 (1) (b). In the case at bar, Mr. Johnson failed to identify a triable issue where the record contains no evidence that Dr. Johnson concealed a material fact from Mr. Johnson when he had actual or constructive knowledge of that fact. Although Mr. Johnson directed this Court’s attention to x-rays and physicians’ notes, he failed to accompany this evidence with expert medical testimony to explain that evidence and, thus, failed to support his theory that the elements of fraud, including scienter and intent, are present. Id. Though “scienter in actions based on fraud is [usually] an issue of fact for jury determination,” an exception exists in “plain and indisputable cases.” (Citation omitted.) Lloyd v. Kramer, 233 Ga. App. 372, 373 (1) (503 SE2d 632) (1998). This is such a case. Accordingly, we find no error in the trial court’s grant of summary judgment to Dr. Johnson on the medical fraud claim.

Decided August 28, 2013

Reconsideration denied September 12, 2013.

Shelley Welch Cox, for appellant.

Carlock, Copeland & Stair, Wade K. Copeland, Ashley E. Sexton, for appellees.

Furthermore, “[u]nder Georgia law, a plaintiff cannot recover punitive damages when the underlying tort claim fails.” (Citation omitted.) Lewis v. Meredith Corp., 293 Ga. App. 747, 750 (5) (667 SE2d 716) (2008). Because Mr. Johnson’s fraud claim fails for lack of evidence, Dr. Johnson is also entitled to judgment as a matter of law on the claim for punitive damages. Id. Similarly, because Mr. Johnson has not alleged any bad faith in the underlying transaction, apart from Dr. Johnson’s alleged fraud, his claim for attorney fees pursuant to OCGA § 13-6-11 fails for the reasons explained above. See Wright v. Apartment Investment and Mgmt. Co., 315 Ga. App. 587, 590 (1) (a), n. 6 (726 SE2d 779) (2012) (Because the plaintiff’s tort claim for fraud failed, its derivative claim for attorney fees also failed.). For the foregoing reasons, summary judgment is affirmed.

Judgment affirmed.

Phipps, C. J., and Branch, J., concur.

       A Haglund deformity is a bony, enlarged abnormality on the back of the heel.

       See also OCGA § 23-2-53 (“Suppression of a material fact which a party is under an obligation to communicate constitutes fraud. The obligation to communicate may arise from the confidential relations of the parties or from the particular circumstances of the case.”).

       See OCGA § 9-11-9.1 (a) (“In any action for damages alleging professional malpractice against... [a] professional licensed by the State of Georgia . . . [or] [a]ny licensed health care facility alleged to be liable based upon the action or inaction of a health care professional licensed by the State of Georgia[,] . . . the plaintiff shall be required to file with the complaint an affidavit of an expert competent to testify, which affidavit shall set forth specifically at least one negligent act or omission claimed to exist and the factual basis for each such claim.”).

       Punitive damages may be awarded only in such tort actions in which it is proven by clear and convincing evidence that the defendant’s actions showed willful misconduct, malice, fraud, wantonness, oppression, or that entire want of care which would raise the presumption of conscious indifference to consequences.
      OCGA § 51-12-5.1 (b).

       The expenses of litigation generally shall not be allowed as a part of the damages; but where the plaintiff has specially pleaded and has made prayer therefor and where the defendant has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense, the jury may allow them.
      OCGA § 13-6-11.


author: Ray, Judge.

text:
    A13A1015.
    OSORIO v. THE STATE.
    (748 SE2d 483)
   Ray, Judge.

After a jury trial, Eduardo Osorio was convicted of trafficking in methamphetamine (OCGA § 16-13-31 (e)). He appeals his conviction and the denial of his motion for a new trial, contending that the trial court erred in denying his motion for directed verdict of acquittal. Osorio also contends that he had ineffective assistance of counsel. For the reasons that follow, we affirm.

1. Osorio contends that the trial court erred in denying his motion for a directed verdict because the State failed to prove Osorio’s involvement in the crime beyond his mere presence in the vehicle where the drugs were found.

The standard for reviewing a denial of a motion for a directed verdict of acquittal is the same test to be used when the sufficiency of the evidence is challenged, i.e.,... whether the evidence was sufficient for a rational trier of fact to find beyond a reasonable doubt that the defendant was guilty of the charged offense.

(Footnotes omitted.) Palencia-Barron v. State, 318 Ga. App. 301, 302 (1) (733 SE2d 824) (2012). Further,

[w]e view the evidence in the light most favorable to the verdict, and the defendant no longer enjoys the presumption of innocence. Moreover, an appellate court does not weigh the evidence or determine the credibility of witnesses. As long as there is some competent evidence, even though contradicted, on each element necessary to prove the [SJtate’s case, the jury’s verdict will be upheld.

(Punctuation and footnotes omitted.) Id.

So viewed, the evidence shows that on May 12, 2010, Officer Adam Belcher, a Bartow County sheriff’s deputy assigned to the Bartow-Cartersville Drug Task Force, received information from a confidential informant about a drug supplier who could sell multiple ounces of methamphetamine. At Belcher’s direction, the informant made three phone calls to the supplier, a man later identified as Jason Smith, to negotiate the purchase of methamphetamine. The phone calls were all recorded. The informant arranged for the drug transaction to take place in the parking lot of a McDonald’s restaurant in Bartow County.

Approximately two hours after the informant’s initial phone call to Smith, an undercover officer drove the informant to the location where the drug transaction was to occur. A digital recording device was placed on the informant to record and simultaneously relay to the take-down team all verbal communications between the participants during the drug transaction, and the informant was instructed to provide a specific take-down signal once he observed the drugs.

When Smith and Osorio pulled into the parking lot, the informant got out of the undercover officer’s car and got into the vehicle with Smith and Osorio. At that time, Smith was in the driver’s seat, Osorio was in the front passenger seat, and the informant was in the rear passenger seat behind Osorio. Smith then got out of the vehicle, retrieved a bag from the trunk, and got back into the driver’s seat. Approximately one minute later, the confidential informant gave the take-down signal, and law enforcement officers converged on the vehicle and placed Smith and Osorio under arrest. During the subsequent search of the vehicle, the police found plastic baggies containing approximately three ounces of methamphetamine behind the front passenger seat.

To establish that Osorio committed the offense of trafficking in methamphetamine as charged in this case, the State was required to prove that Osorio was a party to possessing the methamphetamine that was found in the vehicle. See OCGA § 16-13-31 (e) (“Any person who ... has possession of 28 grams or more of methamphetamine ... commits the felony offense of trafficking in methamphetamine.”). It is not necessary that a defendant have actual and exclusive possession of the contraband; possession may be joint and constructive. Sherrer v. State, 289 Ga. App. 156, 159 (2) (656 SE2d 258) (2008).

Osorio argues that his mere presence in the vehicle and his spatial proximity to the drugs found therein were insufficient to support his conviction. However, the State’s case was not limited to Osorio’s presence and spatial proximity. At trial, an audio disc containing the recordings of the three phone calls setting up the drug transaction, as well as the recording of the actual transaction and subsequent takedown, was played for the jury. In the recording of one of the phone calls, a voice with a Hispanic accent (identified at trial as Osorio’s) was heard in the background stating “all I got is three [ounces of methamphetamine].”

Furthermore, Smith testified at Osorio’s trial. Although Smith testified that he had merely asked Osorio to ride along with him, that Osorio did not know anything about the methamphetamine, and that Osorio was not the person who was heard on the phone call stating “all I got is three,” Smith acknowledged that he had told law enforcement (Belcher) immediately after the incident that he had gotten the drugs from Osorio and that Osorio was the one who had been heard on the phone call stating that he had three ounces of methamphetamine. A jury is not obligated to believe a witness’s trial testimony and may accept or reject any portion of it. Bryson v. State, 293 Ga. App. 392, 394 (1) (667 SE2d 170) (2008). Inasmuch as Smith’s trial testimony directly contradicted his previous statements to law enforcement, the jury was authorized to consider Smith’s prior inconsistent statements as substantive evidence of Osorio’s guilt. Gober v. State, 300 Ga. App. 202, 203 (1) (a) (684 SE2d 675) (2009). Accord Sherrer, supra at 160 (2) (Where a co-indictee who had previously pled guilty to trafficking in methamphetamine testified at defendant’s trial that defendant was not involved, the jury was entitled to believe the co-indictee’s prior inconsistent statements showing that defendant was jointly engaged in the crime.).

The evidence that Osorio had stated that he had three ounces of methamphetamine approximately two hours before the drug transaction, combined with the evidence that approximately three ounces of methamphetamine were found in the vehicle and that Osorio had provided the methamphetamine to Smith, shows that Osorio was more than merely present in the vehicle in close proximity to where the drugs were found. At a minimum, this evidence was sufficient to show that Osorio was a party to the offense of trafficking in methamphetamine. Accordingly, the trial court did not err in denying Osorio’s motion for a directed verdict.

2. Osorio also contends that he received ineffective assistance of counsel at trial. To prevail on an ineffective assistance of counsel claim, a criminal defendant must show that his counsel’s performance was deficient and that the deficient performance so prejudiced him that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different. Strickland v. Washington, 466 U. S. 668, 694 (III) (B) (104 SCt 2052, 80 LE2d 674) (1984). We are not required to address both the deficient performance and prejudice prongs of the test if the defendant has made an insufficient showing on either one of them, and “a court need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies.” Id. at 697 (IV).

In considering the trial court’s ruling on a claim of ineffective assistance of counsel, “we accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.” (Citation and punctuation omitted.) Hill v. State, 291 Ga. 160, 164 (4) (728 SE2d 225) (2012).

(a) Osorio argues that trial counsel was ineffective because he failed to request the identity of the confidential informant who participated in the drug transaction for the purposes of examining Osorio’s role or involvement in the drug transaction. Osorio’s argument fails, however, because his trial counsel did file a motion to reveal the identity of the confidential informant. Furthermore, the record shows that both Osorio and his trial counsel knew the identity of the confidential informant prior to trial, and that trial counsel investigated the informant’s criminal history and elicited testimony from a prosecution witness at trial regarding the informant’s prior drug convictions. Thus, Osorio has failed to show that he was prejudiced by counsel’s performance. See Daniel v. State, 306 Ga. App. 48, 54 (4) (701 SE2d 499) (2010) (Trial counsel’s failure to demand a hearing on defendant’s motion to reveal the identity of the confidential informant did not prejudice defendant and, therefore, did not constitute ineffective assistance of counsel, where defendant knew the identity of the confidential informant prior to trial.).

Furthermore, the State’s evidence against Osorio was largely based on the presence of Osorio’s voice on the audio recordings of the drug transaction. Contrary to Osorio’s argument, the confidential informant was not the only available witness who could amplify or contradict the State’s evidence against Osorio. Smith, who was a party to the recorded conversations and a participant in the drug transaction, testified that the voice on the recordings was not Osorio’s and that Osorio was not involved in the drug transaction at all. At the motion for new trial, Osorio’s trial counsel testified that even if he had located the informant he may not have used him because Smith had testified favorably for the defense. In this case, trial counsel’s decision to rely on the testimony of Smith was a matter of trial tactics and strategy which did not equate to ineffective assistance. Trial counsel’s decisions about “what evidence to present or to forego in defending a client charged with a crime is a matter of strategy and tactics.” (Citation and punctuation omitted.) Smith v. State, 316 Ga. App. 175, 179 (2) (728 SE2d 808) (2012). “As a general rule, matters of reasonable tactics and strategy, whether wise or unwise, do not amount to ineffective assistance of counsel.” (Citation and punctuation omitted.) Id.

(b) Osorio also argues that his trial counsel was ineffective in selecting the jury because he failed to request the full 15 minutes authorized by Uniform Superior Court Rule 11 to prepare for jury selection. Osorio has failed to cite any authority to show where a defendant’s trial counsel has been deemed ineffective for failing to utilize the full 15 minutes before selecting the jury, and we find none. Further, we recognize that

[tjhere is a strong presumption that the performance of trial counsel falls within the wide range of reasonable professional assistance. The reasonableness of the conduct is viewed at the time of trial and under the circumstances of the case.

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

The record shows that Osorio’s trial counsel is a criminal defense attorney with 34 years of experience, having tried more than 300 criminal jury trials in his career. At the motion for new trial, trial counsel testified that he takes notes and uses a “scoring system” during voir dire to identify favorable and unfavorable jurors, and that his strategy is to identify the “nine worst jurors” on the panel. He testified that in some cases, depending on his notes, he asks for ten or fifteen minutes to prepare for jury selection. He further testified that, after questioning and rating the jurors in this case, he only needed five minutes to prepare for jury selection because he felt comfortable that he could make his decisions within that amount of time.

Although Osorio argues that “trial counsel’s failure to fully, properly and effectively review his notes from voir dire” allowed two jurors with negative life experiences with drugs to be placed on the jury, Osorio has failed to show that trial counsel did not adequately prepare for jury selection. Further, Osorio has failed to show that trial counsel’s decision regarding which prospective jurors to strike would have been different had he used the full 15 minutes to prepare for jury selection.

Lastly, Osorio has failed to show that there is a reasonable likelihood that the outcome of the trial would have been different had trial counsel struck those particular jurors instead of two others. “The likelihood of a different result must be substantial, not just conceivable.” (Citation omitted.) Hill, supra.

For the above reasons, Osorio’s claims of ineffective assistance of counsel must fail.

Judgment affirmed.

Barnes, P. J., and Miller, J., concur.

Decided September 12, 2013.

Steven A. Miller, for appellant.

Rosemary M. Greene, District Attorney, Elizabeth M. York, Assistant District Attorney, for appellee.

       At trial, the parties stipulated to the admission of a Georgia Bureau of Investigation crime lab report as evidence to establish that the substance tested positive for methamphetamine and had a net weight of 85.61 grams.

       Prior to Osorio’s trial, Smith pled guilty to trafficking in methamphetamine for his involvement in the incident.

       Uniform Superior Court Rule 11 provides, in part: “After completion of the examination of jurors upon their voir dire, the parties and their counsel shall be entitled, upon request, to 15 minutes to prepare for jury selection))


author: Boggs, Judge.

text:
    A13A1054.
    LATIMORE v. THE STATE.
    (748 SE2d 487)
   Boggs, Judge.

A jury found Maynard Latimore guilty of theft by shoplifting. Following the denial of his motion for new trial, Latimore appeals, asserting the general grounds. He also contends that the trial court erred in allowing prior difficulty and similar transaction evidence. For the following reasons, we affirm.

Construed in favor of the verdict, the evidence showed that on October 12, 2011, a woman entered a Gwinnett County Home Depot store, and purchased three five-gallon buckets of waterproofing and stain at around 2:14 p.m. Minutes later, at around 2:22 p.m., Latimore entered the store, put three five-gallon buckets of weatherproofing and stain in his shopping cart, walked past several checkout registers, showed a cashier a receipt, and walked out of the store via the tool rental department without paying for the items. He then re-entered the store at around 2:28 p.m., put the same items in his shopping cart and again passed several checkout registers before exiting the store through the garden department without paying for the items. When Latimore was stopped after exiting the store the second time, he had in his possession a receipt for three buckets of waterproofing and stain totaling $463 that showed the time of purchase as 2:13 p.m.

A store manager explained that Latimore participated in what is termed a “double shop,” where one person purchases items from the store and then passes the receipt along to a second person who then enters the store and selects the same items listed on the receipt. The second person walks out of the store without paying for the items, but if confronted produces the receipt of the earlier purchase as evidence of the current purchase. He explained: “And the transactions are so close that it looks —■ with time it looks like that it was the original transaction.”

The State introduced similar transaction evidence of Latimore’s prior act of shoplifting in Clayton County in May 2005, and a subsequent act in Henry County in November 2011. An asset protection specialist at a Clayton County Home Depot testified that on May 26, 2005, he began observing Latimore after Latimore entered the store and began “[ljooking up at the cameras, looking side to side, acting a little nervous.” He explained further that he observed Latimore put a sprinkler pump and three cases of tile into a shopping cart, pass several checkout registers, and exit the store without paying for the merchandise, which was valued at $480.10. Latimore was arrested and subsequently pled guilty to shoplifting.

The manager who observed Latimore at the Gwinnett County Home Depot store in October 2011, was assigned to a Henry County Home Depot location on November 9, 2011, when he received a call from another employee stating that Latimore had selected “a couple of Dremel kits from our hardware department and a couple of buckets of nails.” The employee had observed the woman from the Gwinnett County store purchase the same items before she spotted Latimore. Latimore passed several other checkout registers and exited through the tool rental department after he “flashed” a receipt at a cashier. When an employee attempted to stop Latimore, he pushed the shopping cart at the employee and fled, but was soon apprehended.

The store videotape revealed that minutes before Latimore entered the store and selected the items, the woman from the Gwinnett County incident had entered the store and purchased the exact same items. When Latimore was apprehended, he had in his possession a receipt for a different purchase from another Home Depot location.

The trial court also allowed the admission of Latimore’s acts at a DeKalb County Home Depot as prior difficulties between Latimore and Home Depot “as those difficulties relate to [Latimore’s] course of conduct and bent of mind.” Latimore was observed at a DeKalb County Home Depot on March 23,2011, “pushing merchandise under the garden fence, and then he came around to pick it up,” before being stopped by police. He was given a criminal trespass warning that prohibited him from returning to any Home Depot store for one year. On February 22, 2012, Latimore and another man attempted to return a “high dollar” faucet at the same DeKalb County location. Latimore was arrested for criminal trespass.

Latimore testified that he pled guilty to shoplifting at the Clayton County Home Depot in 2005, that he was arrested on March 23, 2011 for shoplifting at the DeKalb County Home Depot and was arrested again at that location in February 2012 for criminal trespass. He stated that he did not remember receiving the criminal trespass warning in March 2011, but explained: “[t]hey might have told me, but I never heard, I didn’t hear it.” Latimore identified himself in the videotape of the November 9, 2011 incident at the Henry County Home Depot.

1. Latimore contends that the prior and subsequent acts admitted were not sufficiently similar to the current crime. The trial court ruled that the acts were sufficiently similar and allowed the admission of the acts to “show a course of conduct or bent of mind.”

Evidence of a similar transaction may be admitted if the State demonstrates that (1) evidence of the independent offense or act is being offered not to raise an improper inference as to the accused’s character but for an appropriate purpose; (2) the evidence is sufficient to establish that the defendant committed the independent offense or act; and (3) there is a sufficient connection or similarity between the independent offense or act and the crime charged such that proof of the former tends to prove the latter.

(Citation and punctuation omitted.) Harvey v. State, 292 Ga. 792, 793-794 (2) (741 SE2d 625) (2013). Moreover, “[w]e will uphold the trial court’s decision to admit a similar transaction unless it is an abuse of discretion.” (Citation and punctuation omitted.) Muhammad v. State, 290 Ga. 880, 882-883 (2) (725 SE2d 302) (2012).

Latimore argues that the acts here were not similar because different items were taken and because the prior act in Clayton County in 2005 did not involve a “double shop.” But “[w]hen considering the admissibility of similar transaction evidence, the proper focus is on the similarities, not the differences, between the separate crime and the crime in question.” (Citation and punctuation omitted.) Muhammad, supra, 290 Ga. at 882-883. Here, the acts both involved the theft of items from a Home Depot store in which Latimore put items in a shopping cart, passed several checkout counters, and exited through either the garden area or tool rental area of the store without paying for the items. Under these circumstances, the trial court was within its discretion to admit the acts as similar transaction evidence to show Latimore’s course of conduct or bent of mind. See Smarr v. State, 317 Ga. App. 584, 588 (1) (732 SE2d 110) (2012); see also Willett v. State, 240 Ga. App. 108, 109-110 (522 SE2d 698) (1999) (shoplifting in large retail establishments; defendant selected small items, concealed them in purse, and exited store without paying).

2. Latimore complains that the evidence of prior difficulty did not show bent of mind as the trial court concluded. “Prior difficulty evidence is admissible to demonstrate the relationship between the victim and the defendant and such evidence may show the defendant’s motive, intent, and bent of mind in committing the act against the victim which results in the current charges.” (Citation, punctuation and footnote omitted.) Westbrooks v. State, 263 Ga. App. 566, 568-569 (2) (588 SE2d 335) (2003). And while “prior difficulties” has been described as evidence of the “defendant’s prior acts toward the victim, be it a prior assault, a quarrel, or a threat,” (citation, punctuation and footnote omitted.) id. at 568 (2), we have held that nothing in our case law limits prior difficulty evidence to only those circumstances, and that “evidence of prior difficulties between a defendant and a corporation may be admitted under proper circumstances.” (Citation and punctuation omitted.) Stallworth v. State, 303 Ga. App. 767, 769 (695 SE2d 276) (2010) (presenting inauthentic money orders to same check cashing business on several prior occasions).

The evidence showed Latimore shoplifted at a Home Depot in DeKalb County, was given a criminal trespass warning not to return to any Home Depot location for one year following this act, and yet still returned to the DeKalb County location within one year and attempted to return “a high dollar faucet” with another person. This evidence was admissible as evidence of a prior difficulty and was relevant to prove Latimore’s bent of mind to victimize Home Depot. See Westbrooks, supra, 263 Ga. App. at 569.

3. Latimore argues that the evidence was insufficient to sustain his conviction because he “had a receipt on his person that was for the items taken. The State did not show that the receipt was fake or altered.” But the evidence showed that Latimore presented a receipt showing a time of purchase that was several minutes before he even entered the store. The evidence presented, that Latimore walked out of the Gwinnett County Home Depot with items he did not pay for, was sufficient to sustain his conviction for shoplifting. See Parham v. State, 320 Ga. App. 676, 676-677 (1), (2) (739 SE2d 135) (2013) (evidence sufficient to support shoplifting conviction where defendant selected items from store shelves that were on receipt defendant admitted he found outside store); see also former OCGA § 16-8-14 (a) and (b) (2) (offense of theft by shoplifting is designated felony when subject of theft exceeds $300).

Decided September 12, 2013.

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

Daniel J. Porter, District Attorney, Jon W. Setzer, Assistant District Attorney, for appellee.

Judgment affirmed.

Doyle, P. J., and McFadden, J., concur.

       We note that for trials conducted after January 1, 2013, the new Evidence Code permits the admission of similar-transaction evidence for the purpose of proving “motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident,” but no longer for the purpose of proving “course of conduct” or “bent of mind.” OCGA § 24-4-404 (b).
      (Punctuation omitted.) Betancourt v. State, 322 Ga. App. 201 (3), n.15 (744 SE2d 419) (2013), citing generally Harvey, supra. This case was tried in 2012.


text:
    A13A1238.
    MORGAN et al. v. STATE OF GEORGIA.
    (748 SE2d 491)
   Dillard, Judge.

In this in rem forfeiture action, the Superior Court of Ben Hill County struck the respective answers of Eulene Morgan, Vickey Daniels, Robbie Craddock, and Ashley Spikes (collectively “appellants”), which were filed in response to the State’s complaint for forfeiture, and entered a judgment and order of forfeiture. On appeal, the appellants contend, inter alia, that the trial court erred in striking their answers. For the reasons set forth infra, we affirm in part, reverse in part, and remand the case for further proceedings consistent with this opinion.

The record shows that on June 7, 2012, Gerald Morgan was arrested and charged with the sale of methamphetamine, possession of methamphetamine with intent to distribute, use of communications facilities to violate the Georgia Controlled Substances Act, possession of tools for the commission of a crime, and possession of a firearm by a convicted felon. That same day, law-enforcement officers obtained a warrant to search Morgan’s residence, and while executing that search, seized $4,450 in United States currency, several motor vehicles, and numerous other items of personal property.

On June 21, 2012, the State filed a verified in rem complaint for forfeiture of the currency and other items of property, including, inter alia, a 2005 Dodge Ram 1500 pickup truck, a 2001 Jaguar 4S, a 2003 BMW 328, two utility trailers, a Husqvarna zero-turn riding lawn mower, one Panasonic and one Mitsubishi flat-screen television, a credit-card reader, a security monitor with two cameras, a pistol, and two air rifles. Service of the complaint upon Gerald Morgan and Vickey Daniels was perfected on June 27, 2012, and August 16, 2012, respectively, but, thereafter, the sheriff’s department could not locate any other prospective interested persons. Consequently, the State obtained a court order allowing for service by publication, and a notice regarding the forfeiture complaint was printed in the local newspaper on September 5 and 12, 2012.

On September 26,2012, Eulene Morgan (GeraldMorgan’s mother), Vickey Daniels, Robbie Craddock, and Ashley Spikes filed separate claims, contending that they were owners of some of the property items listed in the State’s forfeiture complaint. But nearly one month later, the State filed a motion to dismiss appellants’ pleadings, arguing that none of their claims sufficiently complied with the statutory requirements for filing an answer to a forfeiture complaint. Shortly thereafter, the trial court scheduled a hearing for October 30, 2012, on the State’s motion.

Prior to the October 30 hearing, the appellants did not file a response to the State’s motion but, rather, filed a collective amendment to their pleadings. And during the hearing, appellants’ counsel moved for additional time for the appellants to amend their answers, which the court granted.

On November 5, 2012, all of the appellants, except for Spikes, filed amended answers, in which they again asserted claims to some of the property listed in the forfeiture complaint. However, on November 27, 2012, the court granted the State’s motion to dismiss, finding that all of the appellants’ answers failed to comply with the requirements of OCGA § 16-13-49 (o) (3). And although the court did not specify which requirements the appellants failed to fulfill, it nevertheless ruled that the matter was, therefore, in default. Accordingly, the court further ruled that all of the property was subject to forfeiture. This appeal follows.

At the outset, we note that on appeal from a civil-forfeiture proceeding, “we construe the evidence in a manner that supports the judgment below.” However, we conduct a de novo review of the trial court’s application of the law to undisputed facts, owe no deference whatsoever to the trial court’s conclusions of law, and are free to apply anew the legal principles to the facts. With these guiding principles in mind, we will now address appellants’ overarching claim of error.

Appellants contend, inter alia, that the trial court erred in dismissing their respective answers to the State’s forfeiture complaint. For the reasons noted infra, we agree that the court erred in dismissing Eulene Morgan, Vickey Daniels, and Robbie Craddock’s answers, but we disagree that it erred in dismissing Ashley Spikes’s answer.

Under Georgia law, the sufficiency of an answer to a forfeiture petition “must be judged in light of the specific statutory requirements.” And OCGA § 16-13-49 (o) (3) provides that an answer by an owner or interest holder asserting a claim to the property at issue in an in rem forfeiture proceeding must satisfy the general pleading rules applicable to all civil actions, as well as the foregoing requirements:

(A) The caption of the proceedings as set forth in the complaint and the name of the claimant; (B) The address at which the claimant will accept mail; (C) The nature and extent of the claimant’s interest in the property; (D) The date, identity of transferor, and circumstances of the claimant’s acquisition of the interest in the property; (E) The specific provision of this Code section relied on in asserting that the property is not subject to forfeiture; (F) All essential facts supporting each assertion; and (G) The precise relief sought.

And as we have previously noted, “[t]he intent of the General Assembly when it enacted OCGA § 16-13-49 was twofold: to protect the interest of innocent property owners and to provide for prompt disposition of contraband property.” Furthermore, “while compliance with the strict pleading requirements is necessary, these requirements must be interpreted reasonably.” Put another way, while a claimant must satisfy each of the pleading requirements contained in OCGA § 16-13-49 (o) (3), the trial court must consider the claimant’s compliance with these requirements in a reasonable manner. It is against this statutory backdrop that we now analyze the sufficiency of each appellant’s answer.

1. EuleneMorgan. Applying the requirements of OCGA§ 16-13-49 (o) (3), we conclude that the answer filed by Eulene Morgan was sufficient. Specifically, her answer claimed that she was the owner of the 2005 Dodge Ram 1500 pickup truck and the Husqvarna zero-turn riding lawn mower. Morgan’s answer also provided the caption of the proceedings as set forth in the complaint and her name; the address at which she accepts mail; the nature and extent of her interest in the property; the date, identity of transferors, and circumstances of her acquisition of the property; that she was an innocent owner under OCGA § 16-13-49 (e) (1) (B) and, thus, both items were not subject to forfeiture; the essential facts supporting her assertions; and the relief she sought. In fact, Morgan asserted specific facts regarding her purchase of both the pickup truck and the lawnmower and not mere conclusory allegations. Accordingly, Morgan’s answer was sufficient, and the trial court erred in dismissing it.

2. Vickey Daniels. We also conclude that the answer filed by Vickey Daniels, in which she claims ownership of one of the homemade utility trailers and the Mitsubishi flat-screen television, is likewise sufficient. Her answer provided the caption of the proceedings as set forth in the complaint and her name; the address at which she accepts mail; the nature and extent of her interest in the property; the date, identity of transferor, and circumstances of her acquisition of the property; the essential facts supporting her assertions; and the relief she sought. And although she improperly relies on OCGA § 16-13-49 (o) in asserting that the claimed property was not subject to forfeiture, her answer, nevertheless, states “facts required to establish herself as an innocent owner under subsection (e).” Thus, her answer “sufficiently met the mandate of the statute so as to assure some degree of legitimacy to the claim and to provide supportive factual information so as to expedite the proceeding.” Accordingly, the trial court erred in dismissing Daniels’s answer.

3. Robbie Craddock. Similarly, we find that Robbie Craddock’s answer, which claims ownership of the 2003 BMW 328, is sufficient. His answer provided the caption of the proceedings as set forth in the complaint and his name; the address at which he accepts mail; the nature and extent of his interest in the vehicle; the date, identity of transferor, and circumstances of his acquisition of the vehicle; the essential facts supporting his assertions; and the relief sought. And while Craddock also improperly relies on an irrelevant section of the statute — OCGA § 16-13-49 (m) — in asserting that the vehicle was not subject to forfeiture, similar to Daniels’s, his answer clearly asserts facts indicating that he is claiming to be an innocent owner. Thus, Craddock’s answer was sufficient, and the trial court erred in dismissing it.

4. Ashley Spikes. Finally, we conclude that the trial court did not err in finding that Ashley Spikes’s answer was insufficient. In her answer, Spikes claimed ownership of one of the utility trailers, the Panasonic flat-screen television, the credit-card reader, the security monitor with two cameras, the pistol, and the two air rifles. She also provided her address and approximate dates of her acquisition of the property items and generally asserted innocent ownership. However, Spikes’s answer does not identify the transferor or specify the circumstances of her acquisition for any of the items of property. Furthermore, she asserts almost no specific facts of ownership and, instead, asserts merely conclusory allegations. Given these circumstances, Spikes’s answer was insufficient, and the trial court did not err in dismissing it.

In summary, we hold that the trial court erred in dismissing the answers of Eulene Morgan, Vickey Daniels, and Robbie Craddock but that it did not err in dismissing the answer of Ashley Spikes. And having reached these conclusions, we pause to remind our trial courts of the serious constitutional rights and liberties at stake in civil-forfeiture proceedings. Property ownership in the United States is a fundamental constitutional right, and Georgians are entitled to the procedural safeguards enshrined by our state and federal constitutions before the government may lawfully deprive them of their property rights. Atrial court, then, has a solemn duty to ensure that before any citizen is deprived of real or personal property that he or she has been afforded due process of law. And when this process has not been provided to a claimant, we will not hesitate in remanding that case for further and proper consideration.

Decided September 12, 2013.

Mills & Larkey, Ben B. Mills, Jr., for appellants.

Denise D. Fachini, District Attorney, Cheri L. Nichols, Assistant District Attorney, for appellee.

Accordingly, for all of the foregoing reasons, we affirm the dismissal of Ashley Spikes’s answer, reverse the dismissal of Eulene Morgan, Vickey Daniels, and Robbie Craddock’s answers, and remand the case to the trial court for further proceedings consistent with this opinion.

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

Andrews, P. J., and McMillian, J., concur.

       Morgan ultimately pleaded guilty to several of these charges.

       Morgan did not contest the forfeiture and is not a party to this appeal.

       The hearing was not transcribed.

        Padgett v. State of Ga., 289 Ga. App. 95, 95 (656 SE2d 233) (2008).

        See Buchanan v. State of Ga., 319 Ga. App. 525, 527 (737 SE2d 321) (2013).

       We acknowledge that this construction of appellants’ claim of error is somewhat forgiving, given that appellants’ argument only generally discusses the statutory pleading requirements and instead focuses on the fact that the court entered a forfeiture judgment without holding an evidentiary hearing. Nevertheless, this Court is required to consider an appeal “[wjhere it is apparent from the notice of appeal, the record, the enumeration of errors, or any combination of the foregoing, . . . what errors are sought to be asserted upon appeal. . . .” OCGA § 5-6-48 (f); Felix v. State, 271 Ga. 534, 538 (523 SE2d 1) (1999).

        Dennis v. State of Ga., 224 Ga. App. 11, 11 (1) (479 SE2d 380) (1996) (punctuation omitted); see State of Ga. v. Alford, 264 Ga. 243, 245 (2) (a) (444 SE2d 76) (1994).

        See OCGA § 16-13-49 (o) (3).

        Dearing v. State of Ga., 243 Ga. App. 198, 202 (2) (532 SE2d 751) (2000) (punctuation omitted).

        Id.

        See OCGA § 16-13-49 (e) (1) (B) (“A property interest shall not be subject to forfeiture under this Code section if the owner of such interest or interest holder establishes that the owner or interest holder... [h] ad not acquired and did not stand to acquire substantial proceeds from the conduct giving rise to its forfeiture other than as an interest holder in an arm’s length commercial transaction .. . .”).

        See Dearing, 243 Ga. App. at 202 (2) (reversing trial court’s dismissal and holding that information and statements in first claimant’s answer to forfeiture complaint were sufficient to satisfy requirement that claimant assert specific facts of ownership and not mere conclusory allegations).

        Williams v. State of Ga., 222 Ga. App. 270, 272 (474 SE2d 98) (1996).

        Id. (punctuation omitted).

        See id.

        See id.

        See Dearing, 243 Ga. App. at 202-03 (2) (affirming trial court’s dismissal of second claimant’s answer because it failed to provide specific information regarding the circumstances under which she acquired the seized property); State of Ga. v. Miller, 234 Ga. App. 650, 651 (507 SE2d 521) (1998) (holding that claimant’s answer was insufficient because, inter alia, it failed to specify transferors of property or how claimant acquired property), disapproved of on other grounds by Dearing, 243 Ga. App. at 201 (1).

        See United States v. James Daniel Good Real Property, 510 U. S. 43, 48 (II) (114 SCt 492, 126 LE2d 490) (1993) (holding that the Due Process Clause of the Fifth Amendment guarantees that “[n]o person... shall be deprived of life, liberty, or property without due process of law” and that Supreme Court “precedents establish the general rule that individuals must receive notice and an opportunity to be heard before the Government deprives them of property.” (punctuation omitted)).

        See id.; U. S. Const, amend. V & XIV; Ga. Const, art. 1, para. 1 & 2; Thurston Greene, The Language of the Constitution 614 (Greenwood Press 1991) (“[C]ivil liberty is sufficiently guarded when personal security, personal liberty, and private property, are made the peculiar care of government....” (quoting William Pierce’s letter to St. George Tucker, September 28, 1787, published in Gazette of the State of Georgia, March 20, 1788)); Walter McElreath, A Treatise on the Constitution of Georgia § 1103 (Harrison Company 1912) (“The right of private property is sacred in the eyes of the law and stands upon the same foundation as the coordinate rights of personal liberty and personal security . . . .”).

        See James Daniel Good Real Property, 510 U. S. at 48 (II).

        See Dearing, 243 Ga. App. at 203 (3) (remanding case to trial court for hearing after finding that claimant’s answer to forfeiture complaint was sufficient); Williams, 222 Ga. App. at 272 (same).


author: DOYLE, Presiding Judge.

text:
    A13A1255.
    WALKER v. THE STATE.
    (748 SE2d 496)
   DOYLE, Presiding Judge.

Jerry R. Walker entered a negotiated guilty plea to one count of possession of methamphetamine and was sentenced to ten years to serve three years in confinement. Walker thereafter filed a timely motion to withdraw the guilty plea, which the trial court denied. He appeals, contending that the trial court erred by denying his motion because plea counsel performed ineffectively. We affirm for the reasons that follow.

A defendant’s right to a trial by jury is a fundamental constitutional right that the defendant must personally, knowingly, voluntarily, and intelligently choose to waive. A defendant has the right to withdraw a guilty plea up until the time the trial judge pronounces a sentence. After sentencing, the decision on a motion to withdraw a guilty plea is within the sound discretion of the trial court and will not be disturbed absent manifest abuse.

Moreover,

[a] defendant who pleads guilty and seeks to overturn his conviction because of counsel’s errors must show both that counsel’s performance was deficient and that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.

At the plea hearing, Walker agreed that the State could prove the following facts had the case proceeded to trial. On February 4, 2011, members of a drug task force unit executed a warrant for Walker’s arrest on unrelated charges at his home where Walker was sleeping at the time. The officers observed a digital scale and multiple quantities of methamphetamine in tennis shoes on the floor beside Walker, and neither Walker nor his girlfriend who was also present claimed ownership of the drugs at that time. Although Walker’s girlfriend (who was also charged as a co-defendant) later claimed that the drugs were hers, the State had evidence of Walker’s admission that he was supplying friends with methamphetamine and that he was addicted to the drug, which addiction he again claimed to have after the State’s factual proffer.

In this case, the negotiated plea agreement, waiver of rights form, and testimony from the guilty plea hearing and hearing on the motion to withdraw establish that Walker was advised of his constitutional rights and freely entered his guilty plea.

1. Walker first claims that his plea was involuntary because plea counsel informed Walker that unless he pleaded guilty, his pregnant girlfriend would likely give birth to his child in prison, and the two likely would lose custody of the child permanently. We discern no error.

At the hearing on the motion to withdraw the guilty plea, Walker’s plea counsel testified that she explained to Walker that he would likely receive a prison sentence regardless of whether he was acquitted of the instant charge because his probation likely would have been revoked. Moreover, when approached by Walker concerning the care of his unborn child should both he and his girlfriend go to prison if both were convicted of the possession charge, counsel explained that one of the possibilities was that the child would go into the custody of the Department of Family and Children Services. “Entering a guilty plea as a result of advice received does not amount to coercion.” Simply because this ancillary consequence of going to trial may have influenced him, Walker “cannot now claim that his decision was not voluntary simply because he regrets the choice that he made.”

Moreover, while Walker implies that his plea counsel was somehow deficient for failing to represent his best interests by advising him about the custody of the unborn baby should his girlfriend go to prison, he has failed to establish that he would have gone to trial otherwise. The record establishes that although Walker was aware of all the possible outcomes of trial, including acquittal if the jury believed his girlfriend’s testimony that the drugs were hers, he chose to negotiate a plea instead. Moreover, the first offer from the State would have resulted in a plea of ten years with eight to serve, rather than the three years to serve as a result of this negotiated plea.

2. Walker also contends that the trial court erred by denying his motion because his plea counsel failed to prepare adequately for trial and secure the attendance of two witnesses on his behalf — Patricia Huggins and a Department of Family and Children Services worker.

Decided September 12, 2013.

Lazanea M. Holley-Lucas, Jimmonique R. S. Rodgers, for appellant.

Peter J. Skandalakis, District Attorney, Vincent J. Faucette, Assistant District Attorney, for appellee.

Walker’s plea counsel testified that she met with him more than almost any client she had represented, and she filed numerous pre-trial motions, including a motion to suppress, a speedy trial demand, and a motion to sever the case from that of his co-defendant girlfriend. Counsel also testified that her investigator attempted to contact these two witnesses prior to trial, but she was unable to locate them. Finally, Walker has completely failed to provide any sort of proffer as to the expected testimony of the two witnesses or how that testimony would have resulted in him proceeding to trial rather than taking the negotiated plea with substantially less time in custody than the previous State offer.

Accordingly, Walker’s enumerations are without merit.

Judgment affirmed.

McFadden and Boggs, JJ., concur.

       OCGA § 16-13-30(a). Walker was originally indicted for possession of methamphetamine with intent to distribute pursuant to OCGA § 16-13-30 (b).

       (Citations and punctuation omitted.) Walden v. State, 291 Ga. 260, 260-261 (1) (728 SE2d 186) (2012).

       (Punctuation omitted.) Jackson v. State, 285 Ga. 840, 841 (2) (684 SE2d 594) (2009), quoting Rios v. State, 281 Ga. 181 (2) (637 SE2d 20) (2006).

        Walden, 291 Ga. at 261 (1), citing Ivey v. State, 230 Ga. 407 (1) (197 SE2d 366) (1973) (claims of coercion by prosecutor and plea attorney were belied by record, which established that defendant knowingly and voluntarily entered his plea, and were therefore insufficient to establish that trial court erred by denying motion to withdraw guilty plea).

        Walden, 291 Ga. at 261 (1).

       We note that, as presented in the factual proffer at the plea hearing, the jury would have heard evidence contradicting the girlfriend’s statements and suggesting by'the location of the drugs at the home that the drugs belonged to Walker.

       See Heard v. State, 291 Ga. App. 550, 556 (4) (a) (662 SE2d 310) (2008); Ross v. State, 231 Ga. App. 793, 796 (1) (499 SE2d 642) (1998).


text:
    A13A1587.
    In the Interest of R. S. T., a child.
    (748 SE2d 498)
   Boggs, Judge.

The mother of R. S. T. appeals from the juvenile court’s order finding the child deprived. Because the Department has failed to present clear and convincing evidence of the present deprivation of R. S. T., we reverse.

A deprived child is defined as a child who “[i]s without proper parental care or control, subsistence, education as required by law, or other care or control necessary for the child’s physical, mental, or emotional health or morals.” OCGA § 15-11-2 (8) (A).

In determining whether a child is deprived, the court focuses on the needs of the child rather than parental fault. And a temporary loss of custody is not authorized unless the deprivation resulted from unfitness on the part of the parent, that is, either intentional or unintentional misconduct resulting in the abuse or neglect of the child or by what is tantamount to physical or mental incapability to care for the child. On appeal from a finding of deprivation, we review the evidence in the light most favorable to the juvenile court’s judgment and determine whether any rational trier of fact could have found by clear and convincing evidence that the child was deprived and whether, under the circumstances, the court properly awarded temporary custody of the child.

(Citations, punctuation and footnote omitted.) In the Interest of J. H., 310 Ga. App. 401-402 (713 SE2d 472) (2011).

The only witness at the August 13,2012 deprivation hearing was the child’s case manager, who testified that R. S. T. was taken into custody because the mother’s seven other children were previously adjudicated deprived, and because there was concern on the part of DFACS with regard to her “having the prior children in care, mental health issues, not having adequate housing, and not cooperating with the case plan that was set in place for those seven children.” But the caseworker also testified inconsistently both that the mother had completed mental health treatment and that her treatment was “ongoing.”

On cross-examination, the caseworker testified that she had inspected the mother’s residence, that the home had adequate accommodations and food, and that there were no safety concerns. Asked “what’s wrong with the home,” the caseworker responded that it was “the Department’s policy” that a home evaluation be completed before a child is allowed to return home. Her only concern was “in reference to the other children”; she agreed that the mother had an adequate home for R. S. T. and that the father and paternal grandmother lived with her and were “willing [to] assist the mother in any way, shape or form,” although the mother was “working on getting her own place.” She acknowledged that DFACS took the child from the hospital the day after birth, and that the mother has never had an opportunity to care for the child. She also acknowledged that DFACS received no reports from the hospital that the mother was unable to care for the child or acting inappropriately. Finally, the caseworker acknowledged that the mother was cooperating with DFACS and attending the required meetings, and that she had “no evidence” that the mother was unable to supervise or control R. S. T.

It appears from the transcript that DFACS offered in evidence three exhibits, including a document identified as “PI” and described as “a certified copy of a sibling .. . deprivation order by the Court, on April 19th, 2012.” Counsel for the mother objected, and the trial court deferred a ruling. At the end of the hearing, the trial court admitted the exhibit over the mother’s objection, and found “clear and convincing evidence that the child is deprived” and placed custody with DFACS. In a colloquy after the ruling, counsel for the mother inquired:

Q. Even though the case manager testified to the contrary, Judge?
A. Yes.
Q. Okay.
A. Taking into account the prior order.
Q. So on the record, Judge, I’m assuming that based on the prior order you have sustained the petition that’s before the Court?
A. Yes.
Q. And that alone?
A. Yes.

In its order finding deprivation in this case, the trial court recited that the order of April 19,2012 was submitted as Exhibit 1 during the hearing, that it accepted the order into evidence, and that it took judicial notice of the order over objection. But no exhibits are attached to the transcript. In May, appellant requested, and the trial court ordered, supplementation of the record. But no supplementation was made until this court directed it in August. The supplemental record forwarded to this court consists of photocopies of what appear to be irrelevant exhibits in another deprivation proceeding, and a continuation order for all eight children, entered on August 13,2012. But it includes no copy of the April 19, 2012 order requested by appellant and by this court, and upon which the trial court expressly relied in making its decision.

The facts of this case are remarkably similar to our recent decision in In the Interest of S. D., 316 Ga. App. 86 (728 SE2d 749) (2012). There, we reversed a finding of deprivation because DFACS presented no evidence of present deprivation of the child. The only evidence relied upon by the trial court was a psychological evaluation and citizen review panel report in the mother’s DFACS case, made before the child’s birth. While the trial court took judicial notice of those documents, they were not tendered into evidence. We found that, even assuming judicial notice was proper, in the absence of the documents and any testimony as to their contents, the juvenile court could not consider them in determining deprivation.

Here, the supplemental record does not include the crucial document tendered in evidence and admitted by the trial court. The trial court expressly and exclusively based its ruling on the prior deprivation order. And even if that order had been properly admitted, it showed only a finding of deprivation in the past, as to other children. As the mother’s counsel observed, if this is all that is required, “all the Department has to do is bring in every past order of . . . every child in the past that’s ever been in the family used as current evidence or current deprivation as to any and all future children . . . .” “The [Sjtate must present evidence of present deprivation, not past or potential future deprivation. [Cit.]” In the Interest of J. J., 317 Ga. App. 462, 463 (1) (731 SE2d 766) (2012). And here, it failed to do so. In the Interest of S. D., supra, 316 Ga. App. at 89 (2).

We express absolutely no opinion as to whether deprivation could be shown with respect to this child upon adequate proof made part of the record. Nor do we express an opinion as to the fitness or conduct of the mother. We hold merely that DFACS must meet the requirements of the law with respect to proof, and that the evidence relied upon by the trial court must be part of the record on appeal.

While this court is mindful of the fact that the DF[A]CS caseworkers are charged with the safety and security of the most vulnerable among us, and in this laudable yet unenviable position are required to make at times alacritous decisions, as this court has noted previously, the right to the custody and control of one’s child is a fiercely guarded right in our society and in our law. It is a right that should be infringed upon only under the most compelling circumstances. That standard has not been met in this circumstance.

(Citations and punctuation omitted.) In the Interest of K. S., 271 Ga. App. 891, 894 (611 SE2d 150) (2005).

In the absence of evidentiary support for the juvenile court’s findings of fact, we must reverse the judgment below and remand for further proceedings consistent with this opinion.

Judgment reversed and case remanded.

Doyle, P. J., and McFadden, J., concur.

Decided September 12, 2013.

Mark R. Jeffrey, Yolanda C. Parker-Smith, for appellant.

Samuel S. Olens, Attorney General, Shalen S. Nelson, Senior Assistant Attorney General, Penny Hannah, Assistant Attorney General, Collins, Gordon & Henry, Wiliam F. Collins, for appellee.

       The child advocate attorney for R. S. T. also filed a brief enumerating essentially the same errors as the mother’s brief and urging reversal.

       The supplemental record transmitted to this court contains a “case plan report” and seven “diligent search reports” with “P-1” through “P-8” marked in handwritten ink in the upper right corners.