author: MCMILLIAN, Judge. BARNES, Presiding Judge,

text:
    A12A2176.
    In the Interest of D. J., a child.
    (739 SE2d 730)
   MCMILLIAN, Judge.

Following the grant of her application for discretionary appeal, the mother ofD. J. appeals the juvenile court’s order terminating her parental rights. The mother asserts that the evidence was insufficient to support the court’s order. We agree.

“While we are reluctant to reverse the juvenile court’s determination, no judicial determination is more drastic than the permanent severing of the parent-child relationship.” (Punctuation and footnote omitted.) In the Interest of D. L. T. C., 299 Ga. App. 765, 771 (684 SE2d 29) (2009). And “[t]he right to raise one’s children is a fiercely guarded right in our society and law, and a right that should be infringed upon only under the most compelling circumstances.” (Punctuation and footnote omitted.) In the Interest of M. A., 280 Ga. App. 854, 856 (635 SE2d 223) (2006). “As a result, trial courts apply a heightened standard of proof, the clear and convincing evidence standard” in termination proceedings. (Citations omitted.) In the Interest of A. R. A. S., 278 Ga. App. 608, 609 (1) (629 SE2d 822) (2006). And on appeal, our “standard of review is whether any rational trier of fact could have, found by clear and convincing evidence that the natural parent’s right to custody should be terminated. This Court neither weighs evidence nor determines the credibility of witnesses.” (Punctuation and footnotes omitted.) In the Interest of D. L. T. C., 299 Ga. App. at 765.

D. J. was born prematurely on September 11, 2009, and shelter care was authorized for him on September 29, 2009. On October 1, 2009, the Department of Family and Children Services (“DFCS”) filed a deprivation complaint, asserting that the mother was homeless and refused to provide information regarding relatives. The complaint also noted that the mother previously had three other children in DFCS care. DFCS filed a deprivation petition on October 6, 2009, citing the issues raised in the prior filings. The mother stipulated to the allegations of the petition, and the juvenile court issued an order of deprivation and provisional disposition.

DFCS then established a case plan for the mother with the concurrent goals of reunification and placement with a fit and willing relative, with the following goals: (1) the mother must attend and successfully complete a psychological evaluation; (2) the mother must follow the recommendations of that evaluation; (3) the mother must obtain and maintain safe and affordable housing with room enough for D. J.; and (4) the mother must attend and successfully complete all parenting classes. The plan was updated in April 2011 to add a specific requirement that the mother be “assessed by AADD and participate with their recommendations.” AADD is identified in the record both as the “Atlanta Alliance on Development Disabilities” and as “All About Developmental Disabilities.”

Because the mother’s parental rights were terminated based upon a finding that she had failed to comply with these goals, we address the juvenile court’s pre-termination findings on this issue in some detail. Following a hearing, the juvenile court signed a final disposition order on January 11,2010, keeping D. J. in DFCS custody. A review order entered May 19, 2010, continued custody in DFCS because the mother had not completed her case plan goals, but the court found that she had completed parenting classes. Following a permanency hearing, the juvenile court issued an order on August 19, 2010, finding that the mother still lived in transitional housing, visited with D. J. every Monday, participated with her parent aide, and had submitted to a literacy test, which indicated that she reads • above a fifth grade level. The order further noted that DFCS was seeking assistance with AADD due to a concern about whether the mother will be able to read D. J.’s prescriptions and provide for the child’s special needs. The order also noted that the mother had not completed her case plan goals, but showed “favorable case plan progression.” A second permanency order, entered in October 2010, also noted the mother’s “favorable progress” on her case plan goals.

A disposition order signed December 8, 2010, found that the mother had substantially complied with her case plan, and the “only hurdle” concerned the referral to AADD, which had not yet contacted the mother, although DFCS had made the referral two months earlier. In addition, the order notes that the mother and the biological father had obtained a one-bedroom apartment, that the mother was continuing her Monday visits, and that D. J. recognized her. By the December 10, 2010 review hearing, the mother had a scheduled meeting with AADD and was working with an independent counselor to improve her “coping skills and rational thinking.” But at the April 27, 2011 review hearing, an AADD representative testified that the mother had been reluctant to allow AADD to visit her home, and thus AADD had only been able to work with the mother on one occasion. Moreover, the mother was reluctant to take suggestions from AADD, which had a number of resources to help her with her reading skills and with caring for D. J.

DFCS filed a petition to terminate the mother’s parental rights on June 9, 2011, based upon an allegation that she had failed to comply with her case plan for a period in excess of one year prior to the filing of the petition. At the June 14, 2011 review, however, the juvenile court found that the mother had been more receptive to suggestions from her AADD providers and was more interactive in playing with D. J. The court also found that the mother could read a prescription bottle and administer the correct dosage, although the AADD worker had not had the opportunity to observe the mother giving medication to D. J. because his caregivers did not bring any medication to the visits. The juvenile court also found that the mother had completed most of her case plan goals, including the parental assessment and psychological evaluation, and she was working on obtaining suitable housing. Moreover, the review order notes that “considering the mother’s progress, the Department will reconsider its plan to terminate parental rights.” In a subsequent order, in addition to noting the mother’s previous case plan progress, the juvenile court found that the mother had completed general parenting classes with AADD. Following a review hearing in September 2011, the juvenile court found that the mother’s one-bedroom apartment was not sufficient for the child but noted that the mother would be moving into a two-bedroom apartment. The juvenile court also found that the mother would not allow AADD into her home for monthly visits and that DFCS had concerns as to whether the mother could administer D. J.’s breathing treatments for his asthma, which was D. J.’s only special need other than a requirement for physical therapy.

The termination hearing was held in January 2012, when D. J. was two years old. The evidence showed that Grady Hospital first contacted DFCS about D. J. because the mother was having trouble understanding why he needed a certain formula and because she had no home to which to take him. DFCS had previous contact with the mother in 2005 concerning her other three children, who were removed from the mother’s custody and lived with a legal guardian at the time of the hearing. In compliance with the case plan goals, the mother underwent a psychological evaluation for parental fitness and literacy testing. She was diagnosed with mild mental retardation, depressive disorder and a learning disability. A second psychological evaluation confirmed the diagnosis of mild mental retardation and depressive disorder and recommended family therapy if the mother and all her children were to be reunited. These diagnoses ultimately resulted in her referral to AADD.

The mother completed general parenting classes, but DFCS and AADD also required her to attend specialized classes for parents with developmental disabilities. But the mother was not consistent in attending these classes; she participated in only two classes with AADD between March and November, and thus had not completed the specialized classes by the time of the hearing. The mother also began classes for a GED but dropped out with no explanation. The mother additionally received individual counseling for a time, but she was unable to complete the program due to funding issues.

One caseworker testified the mother was not cooperative with the first parent aide DFCS provided, despite the fact that the juvenile court’s August 2010 order found that she was participating with the aide. Beginning in 2011, however, AADD began providing parental counseling and sometimes had trouble getting the mother to cooperate. Marie Peters, the AADD outreach specialist, began making home visits with the mother in April 2011. By the time of the hearing, however, she had visited the mother’s home only four to five times, which was fewer than usual because the mother was reluctant to allow Peters into her home.

The mother recently, however, allowed Peters to visit her new home. Although the mother lived in a series of homes that were not acceptable to DFCS, at the time of the hearing, she lived with the putative father in a two-bedroom townhouse, with two full bathrooms. The mother had a room set aside for D. J., with a toddler bed. The home was clean and had a fire extinguisher and two smoke alarms. During the visits Peters had in the mother’s homes, they always appeared clean. Moreover, on one occasion, the mother demonstrated an ability to administer different forms of medicine, including using a syringe. She also demonstrated that she knows how to use a breathing machine for her own asthma, but Peters never had the occasion to observe her administer breathing treatments to D. J.

The mother’s sole independent source of income was a social security payment, but it was sufficient to meet the stable income requirement of her case plan. The putative father was employed with Labor Ready, after working as a cook at Waffle House for 15 years. He is the payee on the mother’s SSI income of $720 per month, and their rent is $550. In addition, he earns approximately $800 to $900 per month in income from his job, and they also receive approximately $320 per month in food stamps. Although the mother had failed to contribute to D. J.’s support, she brought him toys at her visits and gifts for holidays and his birthday.

Even though the mother had complied in substantial part with the case plan, the caseworkers had concerns about the mother’s ability to parent D. J., to read his medication, to get him to appointments and to make sure he is safe and his needs are met. They also had concerns as to whether the mother understood the severity of D. J.’s medical issues. D. J. has asthma, and at the time of the hearing, he was undergoing physical therapy to address issues he had with walking and wearing a cranial helmet at night to re-shape his head. Sometimes the mother gave D. J. food and liquids at her visits that would aggravate his asthma symptoms or cause him to throw up.

All the witnesses conceded, however, that D. J. and his mother had a bond. The mother consistently maintained her weekly visits with D. J. Some observers testified that during these visits, the mother and D. J. were like two children playing with each other, which raised some concerns about the mother’s ability to play a mother-child role, but the caseworkers testified that the mother’s ability to nurture D. J. improved over time and she has basic parenting skills such as the ability to change a diaper. Peters testified, however, that although the mother loves D. J., she has not seen that “mother child bond, that nurturing.” She said the mother and child had no more of a bond on the last visit than they did on the first. Peters conceded, however, that the mother had the ability to perform daily living skills and could administer medications by reading the label. She also handles her own medical appointments.

At the time of the hearing, D. J. was still in foster care and had an adoptive resource with the guardians for his older siblings.

Based upon this evidence, the juvenile court granted the petition to terminate the mother’s and the putative father’s parental rights. In addition to identifying the portions of the case plan completed by the mother and those still in progress, the juvenile court found that the mother scores in the extreme low range of intellectual functioning and had no scores over the fifth grade, according to the second psychological evaluation; “[t]he Department has concerns regarding the mother’s inability to comprehend information with limited insight and her inability to make rational decisions when it comes to raising a child with medical concerns”; “[t]he mother’s cognitive function may impair her ability to properly care for the child’s special medical needs”; her other three children are in the care of former foster parents via guardianship; and according to Peters, although the mother and child had a bond, the mother lacked the “nurturing component” of bonding or parenting needed for the child. (Emphasis supplied.) From this, the juvenile court concluded that the mother had failed to comply with a court-ordered plan designed to reunite her with her child for a period in excess of one year prior to filing the petition for termination of parental rights. The court also found that the mother failed to provide court-ordered child support or other financial support for D. J. in excess of one year prior to filing the petition. We conclude that these findings, and the evidence upon which they are based, are insufficient to support the termination of the mother’s parental rights.

The statutory framework for the termination of parental rights sets out a two-pronged test:

Before terminating a parent’s rights, a juvenile court must employ a two-prong test. In the first prong, the court must decide whether there is present clear and convincing evidence of parental misconduct or inability. OCGA § 15-11-94 (a). Parental misconduct or inability, in turn, is proven by evidence showing: (1) that the child is deprived; (2) that lack of proper parental care or control is the cause of deprivation; (3) that the cause of deprivation is likely to continue or will not likely be remedied; and (4) that continued deprivation is likely to cause serious physical, mental, emotional, or moral harm to the child. OCGA § 15-11-94 (b) (4) (A). In the second prong of the termination test, the juvenile court must consider whether termination of parental rights would be in the best interest of the child.

(Citation omitted.) In the Interest of R. N. H., 286 Ga. App. 737, 739-740 (650 SE2d 397) (2007). In determining whether a child is without proper parental care or control when the child is not in the parent’s custody, the court may consider

whether the parent without justifiable cause has failed significantly for a period of one year or longer prior to the filing of the petition for termination of parental rights: (i) [t]o develop and maintain a parental bond with the child in a meaningful, supportive manner; (ii) [t]o provide for the care and support of the child as required by law or judicial decree; and (iii) [t]o comply with a court ordered plan designed to reunite the child with the parent or parents.

(Emphasis supplied.) OCGA § 15-11-94 (b) (4) (C).

Accepting the prior findings that D. J. was a deprived child, the juvenile court found that the deprivation was caused by the mother’s failure to comply with the case plan for a period of one year or longer prior to the filing of the termination petition. But even construing the evidence in the light most favorable to the judgment below, the record does not support this finding by clear and convincing evidence, and the termination order appears to ignore the juvenile court’s prior findings regarding the mother’s case plan progress.

It is undisputed that the mother had completed most of her case plan goals by the time the petition was filed in June 2011. The case plan required that the mother submit to a psychological evaluation. She, in fact, submitted to two such evaluations, one in January 2010 and the other in January 2011. By February 25,2010, the mother had also completed the requirement that she attend a parenting class, and the trial court found she had completed a separate general parenting class with AADD in its September 20, 2011 order. The mother also worked steadily toward achieving the requirement of stable housing, first in transitional housing, then in two separate one-bedroom apartments, and by the hearing in January 2012, she had a two-bedroom townhouse with a bedroom set up for D. J., which met DFCS’ requirements. Thus, in August 2010, the juvenile court found that the mother was making “favorable case plan progression,” and by December 2010, her “only hurdle” was the referral to AADD. By June 14, 2011, five days after the petition was filed, the court found that she had met most of her case plan goals, and DFCS was reconsidering its plan to terminate her parental rights.

The only requirement that remained ongoing at the time of the hearing was the requirement that the mother follow the recommendations arising from the psychological evaluations. The record indicates that she had completed some of these requirements, such as the parenting classes, and that circumstances beyond her control prevented her from completing others. For example, the mother participated in individual counseling until the funding ran out, and DFCS never referred her to a psychiatrist as the second psychological examination recommended. The mother also submitted to literacy testing, as recommended by the examinations, but Floyd testified that she was not required to take literacy classes and a notation from a citizen’s review panel indicates that she did not qualify for the literacy program. And although the mother never completed the GED class, the psychological examination only recommended that she be referred to the class. We could find nothing in the record to indicate that completion of the class was added as a requirement to her case plan.

The specific requirement that the mother participate with AADD’s recommendations was not added to her case plan until April 2011, only two months before the petition was filed, and AADD first contacted her in December 2010, only six months before the petition. Accordingly, the record does not, and indeed cannot, contain evidence of a failure to comply with AADD’s recommendations for one year or more prior to the filing of the petition as required by the statute. Moreover, the record shows that the mother was participating to some extent, albeit somewhat reluctantly, with AADD: For example, the order from June 14,2011, indicates that the mother was becoming more receptive to suggestions from AADD, and she allowed Peters to inspect her new townhouse just prior to the hearing. Therefore, the juvenile court’s conclusion that the mother failed to comply with the case plan for more than a year prior to the filing of the termination petition is not supported by clear and convincing evidence.

Similarly, the record lacks clear and convincing evidence, at least at this time, to support the trial court’s finding that the cause of the deprivation is likely to continue, or will not likely be remedied because the mother continued to work on her case plan goals. Shortly before the hearing, she was able to obtain suitable housing and she had allowed AADD to visit the home. And although DFCS’ witnesses all expressed concern that the mother might not be able to administer medicine to D. J., the evidence belied these concerns. She demonstrated to Peters that she was perfectly capable of reading labels and administering medicine in various ways, including through a syringe. Moreover, she could use a breathing machine to treat her own asthma. Although she had not demonstrated the ability to do the same for D. J., she was never given the opportunity to do so.

Moreover, the witnesses’ anecdotal evidence about the mother — i.e., feeding the child too many snacks and playing with him in a childlike fashion — does not amount to clear and convincing evidence that she will never be able to parent her child. “[T]he clear and convincing standard ‘safeguards the high value society places on the integrity of the family unit and helps eliminate the risk that a factfinder might base his determination on a few isolated instances of unusual conduct or idiosyncratic behavior.’ ” (Footnote omitted.) In the Interest of S. L. E., 280 Ga.App. 145, 151 (1) (633 SE2d 454) (2006). Although the juvenile court found that her cognitive functions may hamper her ability to make rational decisions regarding D. J.’s medical care, these findings were based solely on concerns voiced by lay witnesses, with no expert testimony on the issue. We cannot say, therefore, that these findings are supported by clear and convincing evidence. Cf. In the Interest of C. A., 316 Ga. App. 185, 189-190 (728 SE2d 816) (2012) (reversing termination order where no evidence presented of medically verifiable mental deficiency).

Further, although the evidence supported the juvenile court’s finding that the mother had failed to provide court-ordered or other financial support for D. J., the record indicates that such payments were never made a part of her case plan, and no testimony was presented that she was ever told that she was required to contribute financially. Although a parent’s obligation to support her child exists, even in the absence of an order directing support, we do not believe that this failure was sufficient to support a finding that the deprivation was likely to continue in light of the mother’s other progress on her case plan. See In the Interest of C. S., 319 Ga. App. 138, 147 (1) (735 SE2d 140) (2012). The testimony demonstrated that the mother brought presents and food when she had her weekly visits with D. J., and nothing in the record indicates that she might not be able to contribute at least a de minimis monetary amount toward her child’s support in the future.

In sum, although the mother has not acted in perfect compliance with all the recommendations given to her and has shown some reluctance to allow AADD workers into her home, the evidence shows that she has made substantial steps toward complying with DFCS’ requirements, that she has maintained a bond with D. J., and that she continues to work on her case plan goals.

As we have stated, termination of parental rights is a remedy of last resort and can be sustained only when there is clear and convincing evidence that the cause of the deprivation is likely to continue. In the instant case, the evidence is not clear and convincing, at least at this time, that the deprivation is likely to continue----Accordingly, we reverse the judgment and remand the case for establishment of a reunification plan for [the mother], subject to whatever disposition is warranted by future events and those occurring since the last termination hearing.

(Citations and punctuation omitted.) In the Interest of C. S., 319 Ga. App. at 148 (1). See also In the Interest of M. A., 280 Ga. App. at 857.

Judgment reversed.

McFadden, J., concurs. Barnes, P. J., concurs specially.

BARNES, Presiding Judge,

concurring specially.

While I agree with the outcome reached in this case, I do not agree with all that is said by the majority. Therefore, this opinion decides only the issues in this case and may not be cited as binding precedent. See Court of Appeals Rule 33 (a). I write separately to emphasize that even if a parent has completed most of his or her case plan and wishes to be part of the child’s life, termination of parental rights still may be appropriate where there is evidence that the parent has a medically verifiable mental disability that renders the parent unable to care for the essential needs of the child at the time of the hearing or for the foreseeable future. See OCGA § 15-11-94 (b) (4) (B) (i); In the Interest of H. F. G., 281 Ga. App. 22, 26-27 (1) (635 SE2d 338) (2006). The problem in the present termination case is that DFCS failed to present any competent expert testimony to support and elaborate upon its allegations of the mother’s cognitive impairment and its adverse impact on her ability to attend to the special medical needs of her child. See In the Interest of C. A., 316 Ga. App. 185, 189-190 (728 SE2d 816) (2012). However, nothing prevents DFCS from presenting such expert testimony in a future hearing if a new petition to terminate the mother’s parental rights ultimately is filed in this case.

Decided March 11, 2013.

Brandi S. Reeves, for appellant.

Samuel S. Olens, Attorney General, Shalen S. Nelson, Senior Assistant Attorney General, Penny Hannah, Assistant Attorney General, Lytia G. Brown, for appellee.

       The order also listed the case plan goal solely as reunification. DFCS confirmed the shift in case plan goal in a motion for extension, filed a few months later. But in the juvenile court’s order granting the motion, the court lists the plan goal as concurrent: reunification and adoption.

       DFCS introduced a copy of the second psychological evaluation performed on the mother at the hearing in lieu of the psychologist’s testimony. In termination proceedings, “all information helpful in determining the questions presented, including oral and written reports, may be received by the court and relied upon to the extent of its probative value even though not otherwise competent in the hearing on the petition. ...” OCGA § 15-11-56 (a). See also In the Interest of A. T. H., 248 Ga. App. 570, 574 (2), n. 15 (547 SE2d 299) (2001) (applying rule to termination proceedings).

       The rights of putative father are not the subject of this appeal.

       The 2010 psychological evaluation recommended working in a home environment with a counselor and a paraprofessional; that she ñnd suitable housing; that she “may benefit” from participating in an adult reading program; and that visitation be supervised. The 2011 evaluation recommended family therapy if she were reunited with all her children; parenting classes; individual therapy; a psychiatric referral; a referral to the Georgia Department of Labor for job training; and a referral to an adult literacy class to help obtain her GED.

       See, e.g., In the Interest of T. B., 267 Ga. App. 484, 486-487 (1) (600 SE2d 432) (2004).

       Additionally, the record lacks clear and convincing evidence that continued deprivation is likely to cause serious physical, mental, emotional or moral harm to the child, at least at this time. Although the trial court made findings regarding the potential harm of continued foster care, the only evidence presented on this point was a question to Sullivan as to whether she knew “what foster-care drift is.” She replied that it is when a child lingers in foster care, he may have bonding or trust issues and may start acting out, but she stated that D. J. was not displaying any of these symptoms because he is just two years old.

       Because we find that the evidence does not support the juvenile court’s findings under OCGA § 15-11-94 (b) (4) (A), we need not reach the court’s analysis regarding the child’s best interest under OCGA § 15-11-94 (a).


source: Caselaw Access Project

author: BARNES, Presiding Judge.

license: Public Domain

text:
    A12A2260.
    DIXON v. THE STATE.
    (739 SE2d 737)
   BARNES, Presiding Judge.

Following a bench trial, the trial court found Eric Lamont Dixon guilty of the armed robbery of a Cherokee County convenience store and the aggravated assault of one of its employees. The trial court denied Dixon’s motion for new trial, resulting in this appeal. Dixon contends that the trial court erred in admitting similar transaction evidence of five armed robberies committed in neighboring Bartow County in which Dixon was one of the alleged perpetrators. He further contends that his trial counsel rendered ineffective assistance. For the reasons discussed below, we affirm.

The Cherokee County Robbery. Construed in favor of the trial court’s finding of guilt, the evidence introduced at the bench trial showed that at approximately 6:30 a.m. on January 10, 2009, a male carrying a dark backpack with a distinctive white design on the front and wielding a long kitchen knife entered a BP convenience store located near Interstate 75 in Cherokee County. He wore a blue jacket, a dark hood, a dark mask, dark gloves, jeans, and white tennis shoes.

Two employees, but no customers, were in the store at the time. The perpetrator approached one of the employees in the bakery section of the store and, using his left hand, touched her neck with the knife and demanded “all the money” The second employee intervened and told the perpetrator that he would give him the money, and the perpetrator followed him to the cash register in the front of the store. When the second employee opened the cash register, the perpetrator pulled the drawer out of the register and dumped the money from it into his backpack. The perpetrator then fled from the store.

A detective with the Cobb County Police Department who was on his way home drove up to the convenience store as the perpetrator fled from inside. The detective drew his weapon and yelled for him to stop. The perpetrator ignored the detective and ran behind a large mound of dirt where his getaway vehicle was concealed. The detective then saw the perpetrator pull away in what appeared to be “either a Honda or a Nissan” silver-colored, compact vehicle that was “nearly new” and had horizontally aligned LED brake lights integrated into the trunk lid. While the detective did not attempt to pursue the perpetrator, he could see from his vantage point that the vehicle headed onto Interstate 75. The detective went back to the convenience store and checked on the two employees, who were “emotionally shaken by what had just occurred.”

After one of the employees called 911, law enforcement officers from Cherokee County responded to the scene. The two store employees and the Cobb County detective were unable to identify the masked perpetrator. Nevertheless, the employees and detective could describe aspects of the clothing that the perpetrator had been wearing. Additionally video surveillance equipment from the store recorded the robbery and the perpetrator left behind footwear impressions in the mud near the store.

The March 2, 2009 Arrest. The perpetrator of the Cherokee County robbery was not caught immediately However, on March 2, 2009, law enforcement officers in neighboring Cobb County responded to a call of suspicious activity by two individuals wearing dark clothing outside a Shell station located near Interstate 75. The officers approached the two individuals, whom they identified as Defendant Dixon and Cedric Boone. Apat-down revealed pellet guns, which looked like handguns, on both men. Dixon told the officers that he and Boone were in the vicinity because they were going to meet “some girl” at an apartment complex behind the station. The officers then drove Dixon and Boone behind the station so that they could show the officers where they planned to meet the woman, but no apartment complex could be found there. Dixon at that point changed his story, claiming that “a girl named Jessica” was supposed to meet them near the station, and that “a guy named Bill” had dropped them off to meet her there. But Dixon did not know Jessica’s telephone number.

Although Dixon claimed that he and Boone had been dropped off near the Shell station, officers quickly discovered a vehicle registered to Boone located near the store with the keys on the hood. The vehicle appeared to be positioned for quick access to Interstate 75. After admitting that the vehicle belonged to Boone, Dixon and Boone were arrested on charges of loitering and prowling outside the Shell station.

At the time of his arrest, Dixon had black gloves in his coat pocket and a black ski mask rolled up on his head. He was wearing jeans and white tennis shoes, had a blue fleece jacket, and possessed an empty, dark backpack with a distinctive white design on the front of it.

In response to a be-on-the-lookout that had been issued, Cherokee County law enforcement officers learned of the arrests and began investigating Dixon as a person of interest in the Cherokee County robbery. In addition to discovering that the various clothing items and distinctive backpack possessed by Dixon matched those of the perpetrator seen on the video recording in the Cherokee County robbery and described by the witnesses, investigators learned that Dixon (unlike Boone) was left-handed, consistent with the perpetrator’s use of his left hand to wield the knife. Investigators also discovered that Dixon’s girlfriend often allowed him to borrow her Nissan Altima, which had horizontally aligned LED brake lights integrated into the trunk lid, consistent with the vehicle seen by the Cobb County detective when the perpetrator fled from the scene of the Cherokee County robbery. Moreover, the tennis shoes worn by Dixon at the time of his arrest had treads on the bottom of them consistent with the footwear impressions that had been taken from the mud near the convenience store in Cherokee County. Based on this combined circumstantial evidence, Dixon was indicted for the Cherokee County robbery and for aggravated assault for threatening one of the store employees with the knife.

The Bartow County Robberies. In response to a separate be-on-the-lookout that had been issued, Bartow County law enforcement officers also learned of Dixon and Boone’s arrests and began to investigate them for a series of armed robberies that had occurred there during the same time period. Specifically, two perpetrators had robbed a Kangaroo convenience store on December 21, 2008; a Bojangles restaurant on January 27, 2009; a Texaco convenience store on February 12, 2009; a second Texaco convenience store on February 17, 2009; and a second Kangaroo convenience store on February 18, 2009. All of the convenience stores were located near Interstate 75, and all of them were robbed late at night or early in the morning when no customers were in the stores. The Bojangles restaurant also was located near a major highway, and it was robbed after closing for the night. Because the perpetrators had been masked, none of the victims could specifically identify them, but many were able to describe aspects of their clothing.

Additionally, the armed robberies of the four Bartow County convenience stores (in contrast to the robbery of the Bojangles restaurant) were all captured on video surveillance equipment. One of the perpetrators seen in the video recording of those robberies carried a backpack into which he would place the stolen money. The videos and photographs printed from those videos reflected that the backpack had the same unique design as the one worn by the perpetrator in the Cherokee County robbery and by Dixon at the time of his arrest — a dark backpack with a distinctive white design on the front. As in Cherokee County, the perpetrator seen carrying the backpack in the Bartow County convenience stores also wore a mask, gloves, jacket, hood, jeans, and white shoes, and he used his left hand when he brandished a weapon.

In addition to the clothing items and backpack seized from Dixon at the time of his arrest that pointed to him as the perpetrator seen wearing the backpack in the Bartow County convenience store robberies, investigators learned that Dixon had been an employee of the Kangaroo store robbed on December 21, 2008. Furthermore, Dixon’s DNA was found in saliva from a ski mask that had been discarded outside the Bojangles restaurant that had been robbed, and investigators learned that Dixon had been an employee of that restaurant as well. Additionally, deposit slips from the Bojangles restaurant that were dated January 27, 2009 were found in Dixon’s closet when a search warrant was executed at his residence.

Boone ultimately admitted to being one of the perpetrators involved in the Bartow County armed robberies of the Texaco convenience store on February 12, 2009, the second Texaco convenience store on February 17, 2009, and the Kangaroo convenience store on February 18, 2009, and he pled guilty to several offenses relating to those robberies in Bartow County. Dixon was indicted, tried, and convicted in Bartow County of the armed robberies of the Kangaroo convenience store on December 21,2008, the Bojangles restaurant on January 27,2009, the Texaco convenience store on February 12,2009, and the second Kangaroo convenience store on February 18, 2009.

The Bench Trial for the Cherokee County Robbery. After he was convicted of the armed robberies in Bartow County, Dixon was tried for the Cherokee County robbery and for the aggravated assault of one of the store employees there whom he threatened with the knife. He elected to be tried in a bench trial, where the trial court permitted the State to introduce similar transaction evidence of the five Bartow County robberies for the sole purpose of proving Dixon’s identity as the perpetrator of the Cherokee County robbery. After receiving all of the evidence, the trial court found Dixon guilty of the charged offenses, but noted that the “similar transactions [were] almost a distraction” in light of the evidence of the “armed robbery itself... and the circumstances of the arrest.” The trial court subsequently conducted an evidentiary hearing and denied Dixon’s motion for new trial. This appeal ultimately followed.

1. As an initial matter, Dixon’s appellate brief purports to incorporate by reference arguments made by counsel in briefs and hearings before the trial court.

This practice is not approved by this Court and we decline to look in the record for matters which should have been set forth in the brief. Moreover, if we were to permit this practice a party could evade entirely the page limitations on briefs established in our Rules. See Court of Appeals Rule 24 (f). Accordingly, we have limited our review of [Dixon’s] arguments to those actually made in [his] appellate brief.

(Punctuation andfootnote omitted.) Ellison v. Burger King Corp., 294 Ga. App. 814, 815 (1) (670 SE2d 469) (2008).

2. Dixon maintains that the trial court committed reversible error by admitting similar transaction evidence of the five Bartow County robberies. We disagree.

To obtain admission of similar transaction evidence, the State must show [by a preponderance of the evidence] (1) that it seeks to introduce the evidence for a proper purpose; (2) that there is sufficient evidence that the accused committed the independent offense or act; and (3) that sufficient similarity exists between the independent offense or act and the crime charged so that proof of the former tends to prove the latter.

Alvarez v. State, 309 Ga. App. 462, 464 (2) (710 SE2d 583) (2011), citing Williams v. State, 261 Ga. 640, 642 (2) (b) (409 SE2d 649) (1991). See Kinder v. State, 284 Ga. 148, 151 (3) (663 SE2d 711) (2008). We apply the clearly erroneous standard when reviewing a trial court’s factual findings on the issue of similarity or connection of the similar transaction evidence, and we review the trial court’s decision whether to admit the similar transaction evidence for an abuse of discretion. See Reed v. State, 291 Ga. 10, 13-14 (3) (727 SE2d 112) (2012). Moreover, “the court in a bench trial has broader discretion in admitting similar transaction evidence than in jury trials.” Bazin v. State, 299 Ga. App. 875, 880 (6) (683 SE2d 917) (2009), quoting Lloyd v. State, 259 Ga. App. 636, 640-641 (2) (577 SE2d 854) (2003).

On appeal, Dixon specifically challenges the admission of the five Bartow County robberies on the ground that they were not unusual and distinctive enough and were not sufficiently similar to the charged offense to be admissible to prove his identity as the perpetrator of the charged offense.

A much greater degree of similarity between the charged crime and the uncharged crime is required when the evidence of the other crime is introduced to prove identity than when it is introduced to prove a state of mind. Much more is demanded than the mere repeated commission of crimes of the same class, such as repeated murders, robberies, or rapes. The pattern and characteristics of the crimes must be so unusual and distinctive as to be like a signature.

(Citations and punctuation omitted.) Cole v. State, 216 Ga. App. 68, 70 (1) (453 SE2d 495) (1994). See Jones v. State, 236 Ga. App. 330, 333 (1) (c) (511 SE2d 883) (1999). Nevertheless, even if the independent crime and the charged crime are “essentially dissimilar” in their factual details, the independent crime is properly admitted to prove the identity of the perpetrator if there is a “logical connection” linking it to the charged crime such that proof of the former tends to prove the latter. Williams v. State, 295 Ga. App. 249, 251 (1) (671 SE2d 268) (2008). See Lampkin v. State, 277 Ga. App. 237, 239 (626 SE2d 199) (2006) (emphasizing that “the State must demonstrate a sufficient connection or similarity between the independent offense or act and the crime charged so that proof of the former tends to prove the latter” before the independent offense or act can be introduced to prove identity) (punctuation and footnote omitted; emphasis in original).

(a) The Convenience Store Robberies. The trial court acted within its discretion in admitting evidence of the armed robberies of the four Bartow County convenience stores. There was evidence that these four armed robberies, like the Cherokee County robbery, occurred late at night or early in the morning when no customers were in the stores; involved stores that were located near Interstate 75; involved a perpetrator wearing a mask, hoodie, gloves, jeans, and white shoes; and, most significantly, involved the same perpetrator also wearing a dark backpack with a distinctive white design on it that he used for collecting cash from the registers. In light of these similarities, the trial court, sitting as the trier of fact in a bench trial, did not err in concluding that the four armed robberies of the Bartow County convenience stores were sufficiently similar to the armed robbery of the Cherokee County convenience store to be admitted to prove Dixon’s identity as the perpetrator of the latter robbery. See Griggs v. State, 251 Ga. App. 430, 431-432 (1) (554 SE2d 569) (2001); King v. State, 214 Ga. App. 311, 315-316 (5) (447 SE2d 645) (1994). Cf. Ellerbee v. State, 247 Ga. App. 46, 50-51 (2) (a) (542 SE2d 146) (2000) (defendant’s prior conviction of selling cocaine was relevant and admissible to prove that the defendant was the seller of the cocaine in the current trial, where the defendant sold the drugs in the same distinctive “green plastic wrapping”).

Additionally, evidence that the robber used the same distinctive backpack in the Bartow County and Cherokee County robberies logically connected them to one another. Given this logical connection, the trial court did not err in admitting evidence of the four armed robberies of the Bartow County convenience stores to prove that Dixon was the perpetrator of the Cherokee County robbery. See Williams, 295 Ga. App. at 251 (1); Lampkin, 277 Ga. App. at 239.

(b) The Bojangles Restaurant Robbery. The admissibility of the armed robbery of the Bojangles restaurant in Bartow County presents a closer question. As to that crime, the manager of the restaurant testified that two unidentified masked perpetrators entered the restaurant through a back entrance after it closed and forced him at gunpoint to open the store safe and hand over the cash inside. There was no evidence that either one of the perpetrators used a backpack, distinctive in design or otherwise, for collecting the stolen cash. Nevertheless, the trial court did find some similarities, supported by the evidence, between the Bojangles restaurant robbery and the Cherokee County robbery, including the timing of the robberies and evidence indicating that the perpetrators were familiar with the area and the businesses robbed.

We need not resolve whether the trial court erred in admitting evidence of the Bojangles armed robbery as a similar transaction. It is axiomatic that harm, as well as error, must be shown for the improper admission of similar transaction evidence to justify reversal of a conviction. Bright v. State, 314 Ga. App. 589, 594 (1) (b) (725 SE2d 327) (2012). If it is highly unlikely that admission of the similar transaction evidence contributed to the verdict, then admission of the evidence is harmless. Id. Pretermitting whether the Bojangles armed robbery was admissible as a similar transaction, we find it highly unlikely that its admission contributed to the verdict in this bench trial, in light of the four armed robberies that were properly admitted as similar transactions. Wright v. State, 304 Ga. App. 651, 654 (3) (697 SE2d 296) (2010). Thus, any potential error in its admission was harmless. Id.

3. Dixon contends that the trial court erred in denying his motion for new trial because his trial counsel rendered ineffective assistance in several respects. But although Dixon called his trial counsel to testify at the hearing on his motion for new trial, Dixon failed to raise any specific instances of ineffective assistance in his motion or at the hearing. Indeed, at the end of the hearing, the trial court said, “Well, there doesn’t appear to be any real suggestion of ineffective counsel as far as I can see.” Accordingly, Dixon’s ineffective assistance claims are waived on appeal. See Soloman v. State, 294 Ga. App. 520, 524 (2) (b), n. 16 (669 SE2d 430) (2008).

Decided March 11, 2013.

Patrick G. Longhi, for appellant.

Garry T. Moss, District Attorney, Cliff Head, Shannon G. Wallace, Patricia G. Hull, Assistant District Attorneys, for appellee.

Judgment affirmed.

McFadden and McMillian, JJ., concur.

       We dismissed Dixon’s previous appeal, Case No. A12A1836, because his original motion for new trial had been untimely filed. The trial court thereafter granted Dixon leave to file an out-of-time appeal, and Dixon timely filed a second motion for new trial. It is from the denial of his second motion for new trial that Dixon now appeals.

       See Hickman v. State, 311 Ga. App. 544, 545 (716 SE2d 597) (2011).

       The ski mask also contained the DNA of another individual whom the state crime lab was unable to identify.

       Dixon was indicted and tried for the armed robbery of the Texaco on February 17, 2009, but the trial court entered a directed verdict of acquittal on that count because the State had misnamed the store in the indictment, causing a fatal variance between the allegata and the probata. Dixon also was indicted, tried, and acquitted of the attempted armed robbery of an adult novelty store in Bartow County.

       Dixon’s appellate brief also contains no pagination, virtually no citations to the record, and is cast in an improper font size. See Court of Appeals Rules 1 (c), 24 (b), (e), and 25 (a) (1). Given the numerous shortcomings of his brief, we would be authorized to dismiss it. See Court of Appeals Rule 7. However, the State has provided sufficient citations to the record in its brief, and we therefore will address the merits of Dixon’s appeal to the extent possible.

       Because the present case was tried in July 2011, the new Georgia Evidence Code does not apply to the admission of the similar transaction evidence. See Ga. L. 2011, pp. 99, 214, § 101 (“This Act shall become effective on January 1, 2013, and shall apply to any motion made or hearing or trial commenced on or after such date.” See also OCGA § 24-4-404 (b) (2013).

       That the Bartow County convenience store robberies involved use of a handgun (or what looked like a handgun) rather than a knife, and involved two rather than one perpetrator, did not preclude the trial court from finding that the robberies were nevertheless sufficiently similar to the Cherokee County robbery in other critical respects to warrant their admission. See Phillips v. State, 287 Ga. 560, 564 (4) (697 SE2d 818) (2010); Cornell v. State, 289 Ga. App. 52, 54 (656 SE2d 191) (2007). In reviewing whether sufficient similarities exist, courts “must focus on the similarities between the two acts rather than the dissimilarities,” and the “crimes need not be carbon copies of one another to be admissible.” Gardner v. State, 273 Ga. 809, 811 (2) (546 SE2d 490) (2001).


author: Ray, Judge.

text:
    A12A2286.
    JORDAN v. THE STATE.
    (739 SE2d 743)
   Ray, Judge.

Following a jury trial, Anthony Moses Jordan was found guilty of one count of burglary, two counts of armed robbery, and two counts of aggravated assault. He was sentenced as a recidivist to twenty years to serve on the burglary count; to life without parole on the two armed robbery counts; and to twenty years to serve on the two aggravated assault counts. Jordan appeals from the denial of his motion for a new trial, contending that the evidence was insufficient to support his convictions, that his trial counsel was ineffective, and that the trial court erred in admitting certain evidence. For the reasons that follow, we affirm.

“On appeal from a criminal conviction, the defendant no longer enjoys the presumption of innocence.” Further, “[w]e neither resolve conflicts in the evidence nor assess witness credibility, but merely determine the legal sufficiency of the evidence.” When an appellant challenges the sufficiency of the evidence to uphold his conviction, “the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”

So viewed, the evidence shows that on June 26, 2008, Patrick Johnson and Cynthia Lewis were asleep at Johnson’s home when Lewis was awakened by a loud boom. Lewis saw three or four men wearing masks and pointing guns enter the house. Johnson awoke and grabbed one of the men by the arm, and the man’s gun fired into the ceiling. The men commanded the couple to “give it up, money, jewelry, anything of value” as they began to ransack the house. Johnson and Lewis identified the intruders’ race as black and testified that at least two of them had Caribbean or Jamaican accents, while a third spoke with a south Georgia accent. The men threatened to kill Johnson and Lewis. One man fired a bullet into the mattress next to Lewis’ head and ordered her to go into the kitchen, telling her that she would be shot if she ran. She escaped and called 911. The intruders stole cash, clothing, and a cell phone, among other items.

The next day, Johnson found some of his clothing and a cell phone (which was not his) outside his back fence. No readable fingerprints were found on the phone. An officer prepared a search warrant so that he could download data from the phone. While doing so, he removed the back of the phone in an attempt to find the serial number. He found a piece of paper inside on which there was written an address, a Social Security number, a date of birth, and what appeared to be a credit card number. The Social Security number belonged to Demetris Drayton, who, when contacted by police, asked if the call had “anything to do with that robbery ... in Moultrie.” Drayton met with two police officers and told them that she and her boyfriend, Jordan, had argued over money and that he left the house about 1:00 a.m. on the date of the robbery. When he returned, he threw a wad of money in her face and told her that he had invaded a home in Moultrie. She gave the police boots and pants that she said Jordan wore on the night of the robbery. Drayton also said that she had given the phone to Jordan and that the cell number was his, but that he had told her he lost the phone the previous night. She confirmed that the birth date and credit card number found on the paper inside the phone were hers. She showed police her car and said that Jordan had taken it on the night in question, without permission, and returned it with “fresh damage.” She also told police that Jordan worked in the watermelon fields with some Haitians. Despite being so forthcoming with information, when police attempted to record her responses, she refused to answer their questions.

At trial, Drayton testified that she was pregnant with Jordan’s child at the time in question, but only learned that he had a child with his wife when she called the wife to tell her that Jordan had been arrested. She denied asking the police if they were contacting her about a crime in Moultrie and disclaimed all knowledge of a crime. She also denied telling the police anything about Jordan’s involvement in a robbery. She testified that she told police that Jordan had taken her car the day after the robbery occurred and that on the night of the robbery that her mother had driven the car to work. Her mother also testified that she drove the car to work the night of the robbery. Drayton further testified that Jordan told her he lost the phone she had given him, and she denied telling police that Jordan had any contact with anyone with a Caribbean or Haitian accent.

At trial, Jordan, who testified in his own defense, admitted to writing Drayton’s information on the paper that was in the cell phone. However, he testified that he had sold the phone to another person and had lied to Drayton about losing it. He also testified that he worked in the watermelon fields with Jamaicans, to whom he often sold cheap cell phones like the one at issue here, at marked-up prices.

The police arrested J ordan at Drayton’s home three months after the crimes occurred. Drayton testified that when the police came to her home, she lied and told them he was not there, because “I didn’t want him to go to jail.” Jordan admitted that when police arrested him, he was hiding in Drayton’s attic.

1. Jordan contends that the evidence presented by the State was insufficient to authorize his convictions, because the only direct evidence, Drayton’s testimony, was impeached, and because the other evidence was circumstantial and did not exclude every reasonable hypothesis other than guilt. We disagree and affirm.

Questions about reasonableness are generally for the jury, and “where the jury is authorized to find that the evidence, although circumstantial, was sufficient to exclude every reasonable hypothesis other than guilt, an appellate court will not disturb the finding unless the verdict of guilty is [insupportable] as a matter of law.”

While the determination of whether the circumstances are sufficient to exclude every reasonable hypothesis except that of defendant’s guilt is usually made by the jury and while we must review the evidence in the light most favorable to the jury verdict, we must not be blinded by that verdict when a reasonable hypothesis of innocence appears from the evidence or lack thereof, and may declare such as a matter of law.

(a) Burglary. Pursuant to former OCGA § 16-7-1 (a), “[a] person commits the offense of burglary when, without authority and with the intent to commit a felony or theft therein, he enters or remains within the dwelling house of another.”

Here, although Drayton later changed her testimony, she told police that Jordan was absent from her home during the approximate •hours of the robbery, that he returned home, threw money at her, and told her he had been part of a home invasion in Moultrie. She also told police that she had given Jordan the cell phone, and he admitted to placing the piece of paper with Drayton’s personal information on it in the phone. The phone was then found, with items stolen from the victims’ home, near the site of the crime.

While there was conflicting testimony about what Drayton told police and whether Jordan had sold the phone to someone else, on appeal, “[w]e 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.”

In Poole v. State, a case analogous to the case at bar, our Supreme Court upheld a guilty verdict where a witness, who initially testified that the defendant offered to pay her to destroy evidence, later was impeached. In another case, this Court affirmed the defendant’s conviction where the victim told police that her son hit her, then at trial testified that she fell and remembered nothing incriminating as to the defendant’s behavior. Further, where, as here, evidence regarding a defendant’s identity is entirely circumstantial, “it need not exclude every conceivable inference or hypothesis — only those that are reasonable.” “To set aside the conviction it is not sufficient that the circumstantial evidence show that the act might by bare possibility have been done by somebody else.”

The evidence is sufficient to sustain Jordan’s conviction for burglary.

(b) Armed robbery and aggravated assault counts. OCGA § 16-8-41 (a) provides: “A person commits the offense of armed robbery when, with intent to commit theft, he or she takes property of another from the person or the immediate presence of another by use of an offensive weapon.” OCGA § 16-5-21 (a) (2) provides, in pertinent part: “A person commits the offense of aggravated assault when he or she assaults ... [w]ith a deadly weapon ... which, when used offensively against a person, is likely to or actually does result in serious bodily injury.”

Here, it is clear from the victims’ testimony that guns were used in the commission of these serious crimes. The physical evidence, including a bullet found by police and bullet holes in the ceiling and mattress, also show that the intruders used guns. As we found in Division 1 (a), the presence of the cell phone, coupled with Drayton’s testimony, was sufficient to place Jordan at the scene of the crime, and to establish him as a participant. Given Lewis’ testimony that one of the intruders with a gun was a black male with a south Georgia accent, the jury was authorized to infer that Jordan was an armed participant in the crimes.

2. Jordan argues that his trial counsel was ineffective in failing to challenge the legality of his arrest warrants. Jordan argues that trial counsel should have challenged the warrants because the affidavits on which they were based did not provide the magistrate with sufficient information to support the existence of probable cause. He does not indicate what, specifically, was lacking in the affidavits. Jordan argues only that if the arrest warrants had been suppressed, the circumstances of his arrest — namely, that he was found hiding in his girlfriend’s attic — would have been suppressed.

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. “The likelihood of a different result must be substantial, not just conceivable.” 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.”

Pretermitting whether trial counsel was deficient in failing to object to the arrest warrants, we find that even if the warrants had been excluded, Jordan’s claim fails because he cannot show prejudice. No physical evidence, such as fruits of the crime, was admitted, nor did Jordan confess. The only specific allegation Jordan makes is that, since the warrants were not suppressed, one of the last things the jury heard was his testimony that police arrested him while he was hiding in his girlfriend’s attic. This testimony, he argues, was “highly prejudicial... since there was no direct evidence linking Mr. Jordan to the scene of the crime.” However, before testifying about hiding in the attic, Jordan already had testified that upon learning that he was a person of interest that he spoke to police on the telephone but did not turn himself in; instead, he immediately left town and went to Atlanta for three months. Given this testimony and the circumstantial evidence linking Jordan to the crimes, he has failed to show that but for counsel’s failure to challenge the warrants that there is a substantial likelihood that the outcome of his trial would have been different; even if the jury had not heard testimony that he was hiding from the police in an attic, they still would know that he did so for a while in a different city.

3. Jordan asserts that the trial court erred in permitting the prosecutor to ask Jordan’s girlfriend, Drayton, whether Jordan sent her a letter telling her how to testify, where the prosecutor did not tender the letter into evidence. Jordan argues that these questions allowed the prosecutor to undermine his character. At trial, Drayton testified that Jordan did not send her a letter and only told her to testify truthfully. There is no indication in the record that a letter existed. However, given Jordan’s failure to object below, the issue has not been preserved for appeal, and the trial court did not err in allowing the testimony.

Decided March 11, 2013.

Joseph C. T. Lewis, for appellant.

J. David Miller, District Attorney, Brian A. McDaniel, Assistant District Attorney, for appellee.

Judgment affirmed.

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

       OCGA§ 16-7-1 (a). This statute was amended by Ga. L. 2012, p. 899, § 3-1, which did not go into effect until July 1, 2012, after the offense occurred in this case. Thus, this case is considered under the prior version of the statute. See Ga. L. 2012, p. 899, § 9-1 (a).

       OCGA § 16-8-41 (a).

       OCGA § 16-5-21 (a) (2). This statute was amended most recently by Ga. L. 2011, p. 752, § 16, effective May 31,2011, and earlier by Ga. L. 2010, p. 999, § 1, effective July 1,2010. Thus, this case is considered under the appropriate prior version of the statute. See Ga. L. 2006, p. 379, § 4, effective July 1, 2006.

       The sentence on one of the aggravated assault counts is consecutive to the armed robbery sentences; the sentence on the other aggravated assault count is consecutive to the first aggravated assault count.

       This is Jordan’s second appeal before this Court, as his first appeal was dismissed as untimely. The trial court granted his motion for out-of-time appeal, resulting in the instant action.

       (Footnote omitted.) Cothran v. State, 269 Ga. App. 256, 256 (603 SE2d 762) (2004).

       (Footnote omitted.) Id.

       (Emphasis in original.) Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979).

       (Citation omitted.) Poole v. State, 291 Ga. 848, 850 (1) (734 SE2d 1) (2012).

       (Footnote omitted.) Gresham v. State, 298 Ga. App. 136, 139-140 (1) (679 SE2d 344) (2009).

       (Footnote omitted.) Id. at 137.

       Supra at 849-850 (1).

        Meeks v. State, 281 Ga. App. 334, 335 (636 SE2d 77) (2006).

       (Footnote omitted; emphasis supplied.) Hart v. State, 305 Ga. App. 259, 262 (1) (a) (699 SE2d 445) (2010) (evidence sufficient where crime was perpetrated by masked man and witness testified that he had loaned defendant a mask somewhat similar to the mask at issue).

       (Citation and punctuation omitted.) Parker v. State, 140 Ga. App. 92, 93 (230 SE2d 99) (1976).

       See Hart, supra. See also Worley v. State, 201 Ga. App. 704, 706-707 (2) (b) (411 SE2d 760) (1991) (witness’ suspicion that he recognized defendant’s accent, when coupled with other evidence, was sufficient to identify defendant as perpetrator of crime). Further, to the extent that Jordan contests his participation in the crimes as opposed to his mere presence, the evidence is sufficient to support his conviction under a party to the crime theory given, inter alia, Drayton’s statement that Jordan told her he was involved in a home invasion in Moultrie and threw money at her. See generally Emerson v. State, 315 Ga. App. 105, 113 (3) (726 SE2d 600) (2012) (evidence of defendant’s conduct before and after the crime may give rise to inference that he participated in the crime). See also OCGA §§ 16-2-20, 16-2-21.

        Strickland, v. Washington, 466 U. S. 668, 694 (III) (B) (104 SC 2052, 80 LE2d 674) (1984).

       (Citation omitted.) Hill v. State, 291 Ga. 160, 164 (4) (728 SE2d 225) (2012).

        Strickland, supra at 697 (IV).

       See Bradley v. State, 283 Ga. 45, 46-47 (2) (656 SE2d 842) (2008).

        Hill, supra.

       See Durham v. State, 292 Ga. 239, 240 (2) (734 SE2d 377) (2012) (allegations not raised below regarding the improper admission of evidence are waived in cases tried prior to January 1, 2013, after which time the new Evidence Code applies); Williams v. State, 267 Ga. 308, 310 (4) (477 SE2d 570) (1996) (failure to object to questions waives challenge on appeal).


author: Andrews, Presiding Judge.

text:
    A12A2295.
    CARTER v. PROGRESSIVE MOUNTAIN INSURANCE.
    (739 SE2d 750)
   Andrews, Presiding Judge.

Velicia Carter, the injured tort claimant in an automobile accident, settled with the alleged tortfeasor’s insurance carrier for payment of the $30,000 limit of liability coverage and provided a limited release pursuant to the provisions of OCGA § 33-24-41.1. Carter provided the limited release and accepted the $30,000 payment exhausting liability coverage on the condition stated in the release that $29,000 of the coverage limit be allocated toward payment of punitive damages and $1,000 toward payment of compensatory damages. At issue is whether under the provisions of OCGA § 33-24-41.1 Carter was entitled to condition the limited release on the requirement that punitive damages be allocated to liability coverage for the purpose of substantially exhausting the coverage limit before recovery of underinsured motorist benefits in Carter’s insurance policy with Progressive Mountain Insurance. We find that the limited release provisions of OCGA § 33-24-41.1 do not permit the claimant to accept payment of the tortfeasor’s liability coverage limit on this condition and still preserve the right to pursue underinsured motorist benefits. Accordingly, we affirm the trial court’s grant of summary judgment in favor of Progressive on Carter’s claim for underinsured motorist benefits.

In December 2011, Carter sued Jeova Claudino Oliveira for injuries she suffered in a February 2010 automobile accident alleging that, while under the influence of alcohol, Oliveira negligently drove his vehicle into Carter’s vehicle. In the same suit, Carter served Progressive, her underinsured motorist carrier, pursuant to the provisions of OCGA § 33-7-11 (d). Prior to the suit, Carter entered into a settlement in which Oliveira’s liability insurance carrier, GEICO General Insurance Company, paid Carter the liability coverage limit of $30,000 in Oliveira’s policy. In return, Carter gave GEICO and Oliveira a limited release pursuant to the provisions of OCGA § 33-24-41.1 with the added condition that the $30,000 payment she accepted as the liability coverage limit be allocated $29,000 toward punitive damages and $1,000 toward compensatory damages. After being served in the suit as Carter’s underinsured motorist carrier, Progressive answered and cross-claimed against Oliveira for any amounts required to be paid to Carter on its underinsured motorist coverage. The trial court subsequently granted Progressive’s motion for summary judgment on Carter’s claim for underinsured motorist benefits. The Court ruled that, by imposing the condition that $29,000 of the liability coverage limit be allocated to the payment of punitive damages, Carter failed to comply with provisions of OCGA § 33-24-41.1 necessary for recovery of those benefits.

The Georgia uninsured (and underinsured) motorist statute (OCGA § 33-7-11) is designed to protect injured insureds only as to “actual loss” within the policy limits. State Farm Mut. Automobile Ins. Co. v. Adams, 288 Ga. 315, 316 (702 SE2d 898) (2010). Thus, uninsured motorist coverage under the statute applies only to compensatory damages and excludes coverage for punitive damages. Roman v. Terrell, 195 Ga. App. 219, 220-222 (393 SE2d 83) (1990); State Farm Mut. Automobile Ins. Co. v. Weathers, 260 Ga. 123 (392 SE2d 1) (1990). Where an offending driver is uninsured or underinsured, and lacks sufficient liability insurance to cover an injured insured’s actual losses, uninsured motorist coverage applies to those actual losses to “place the injured insured in the same position as if the offending uninsured motorist were covered with liability insurance.” (Citation and punctuation omitted.) Adams, 288 Ga. at 316.

Before an injured claimant is entitled to recover underinsured motorist benefits against the claimant’s own insurance policy, the claimant must, as a condition precedent, exhaust available liability coverage in the tortfeasor’s insurance policy. Daniels v. Johnson, 270 Ga. 289, 290 (509 SE2d 41) (1998); Holland v. Cotton States Mut. Ins. Co., 285 Ga. App. 365, 366 (646 SE2d 477) (2007). Prior to the 1992 enactment of OCGA § 33-24-41.1, an uninsured motorist carrier could require that an injured claimant (the carrier’s insured) obtain a judgment against the tortfeasor in excess of the liability coverage limit as a condition for recovery of underinsured motorist benefits. Daniels, 270 Ga. at 290. To facilitate settlements, the limited release provisions of OCGA § 33-24-41.1 were enacted to provide a statutory framework for a claimant injured in an automobile accident to settle with the tortfeasor’s liability insurance carrier for the liability coverage limit while preserving the claimant’s pending claim for under-insured motorist benefits against the claimant’s own insurance carrier. Id.; Mullinax v. State Farm Mut. Automobile Ins. Co., 303 Ga. App. 76, 78 (692 SE2d 734) (2010). The statute authorizes the injured claimant to settle with the tortfeasor’s insurance carrier by accepting payment of the carrier’s limits of liability coverage in return for the claimant’s execution of “a limited release applicable to the settling carrier and its insured based on injuries to such claimants. . . .” OCGA § 33-24-41.1 (a), (b). The limited release provided for in the statute releases the settling insurance carrier from any liability to the claimant, and releases the tortfeasor from personal liability while preserving the claimant’s right to pursue claims to judgment against the tortfeasor for the purpose of collecting against other available insurance coverage including underinsured motorist coverage. OCGA § 33-24-41.1 (b); Kent v. State Farm Mut. Automobile Ins. Co., 233 Ga. App. 564, 565 (504 SE2d 710) (1998); Rodgers v. St. Paul Fire & Marine Ins. Co., 228 Ga. App. 499, 500-501 (492 SE2d 268) (1997). Carter provided a limited release in accordance with the above provisions of OCGA § 33-24-41.1, but added a condition requiring that the $30,000 payment she accepted to exhaust the liability coverage limit be allocated $29,000 toward punitive damages and $1,000 toward compensatory damages.

We find that this condition was inconsistent with the language and purpose of OCGA § 33-24-41.1. The statute provides that, when an injured claimant accepts the limits of the tortfeasor’s liability insurance coverage, the claimant “may execute a limited release applicable to the settling carrier and its insured based on injuries to such claimants. . . .” OCGA § 33-24-41.1 (a). As set forth above, the limited release is part of a statutory framework to facilitate settlement of underinsured motorist claims by (1) allowing the injured claimant to settle by accepting payment exhausting liability insurance coverage for “injuries to such claimants,” and (2) preserving the injured claimant’s right to recover against available uninsured motorist coverage — coverage which applies only to the claimant’s actual injuries or losses and not to punitive damages. The statute’s reference to a limited release based on “injuries to such claimants,” is consistent with the purpose of underinsured motorist coverage to more fully compensate the injured insured for actual injuries or losses which the tortfeasor’s inadequate liability insurance failed to cover. Given the plain language of the statute and the purpose of underinsured motorist coverage, we find that the limited release under OCGA § 33-24-41.1 was intended by the legislature to apply only to the claimant’s actual injuries or losses. See Ga. Automobile Ins. Law § 39:16 (2012 ed.). The condition added by Carter to the limited release — that $29,000 of the $30,000 liability coverage limit be allocated to payment of punitive damages — frustrates this intention by allocating punitive damages to substantially exhaust available liability coverage for actual injuries or losses. The allocation of punitive damages to force exhaustion of liability coverage does not advance the purpose of underinsured motorist coverage to increase available compensation for actual injuries and losses; indirectly shifts payment of punitive damages from the liability carrier to the underinsured motorist carrier, contrary to the purpose of underinsured motorist coverage; and would ultimately increase underinsured motorist coverage premiums as a result of tortfeasors’ wrongs. Id.

Decided March 11, 2013

Toliver & Gainer, William G. Gainer, Samuel J. Crowe, for appellant.

Worsham, Corsi, Scott & Edwards, Mark A. Molina, Carlock, Copeland & Stair, Jason W. Hammer, Megan E. Boyd, for appellee.

With the above-stated condition added to the limited release, Carter failed to accept the limits of Oliveira’s liability coverage and provide the limited release in a manner consistent with the provisions of OCGA § 33-24-41.1. Accordingly, Carter was precluded from pursuing a claim for underinsured motorist benefits, and the trial court correctly granted summary judgment in favor of Progressive. Holland, 285 Ga. App. at 366-367; Thompson v. Allstate Ins. Co., 285 Ga. 24, 26 (673 SE2d 227) (2009).

Judgment affirmed.

Doyle, P. J., and Boggs, J., concur.

       Progressive’s pleadings show that it elected to participate in the suit directly in its own name and become a party to the action. Langford v. Royal Indem. Co., 208 Ga. App. 128, 129 (430 SE2d 98) (1993). This gave Progressive the right to assert coverage defenses as to uninsured/ underinsured benefits, including an alleged failure to comply with a condition precedent to recovery of those benefits. Thompson v. Allstate Ins. Co., 285 Ga. 24, 25 (673 SE2d 227) (2009); Fire & Cas. Ins. Co. v. Spell, 183 Ga. App. 675, 677 (359 SE2d 705) (1987).

       An “uninsured motor vehicle” under OCGA § 33-7-11 (b) (1) (D) includes a tortfeasor’s motor vehicle that is underinsured. Under the “added on” or “excess” underinsured motorist coverage option for policies issued, delivered, renewed on or after January 1, 2009 (OCGA § 33-7-11 (b) (1) (D) (ii) (I)), benefits are provided up to the limits of the injured claimant’s coverage for the amount that the claimant’s actual losses exceed the liability coverage on the tortfeasor’s motor vehicle. Ga. Automobile Ins. Law § 32:3 (2012 ed.). Under this coverage option, “[i]t matters not that the available liability coverage on the [tortfeasor’s] motor vehicle is equal to or greater than the [claimant’s] uninsured motorist coverage.” Id. at § 32:3 (i) (3). By contrast, traditional or “reduced” underinsured motorist coverage provides benefits to the injured claimant only when the claimant’s underinsured coverage limit is greater than the liability coverage limit on the tortfeasor’s motor vehicle. Id. at (a); see OCGA § 33-7-11 (b) (1) (D) (ii) (II). The record shows that the $30,000 liability limit in Oliveira’s GEICO policy exceeded the $25,000 limit of underinsured motorist coverage in Carter’s Progressive policy. Although the policies at issue were not included in the record, there was no dispute between the parties in the trial court that Progressive had potential exposure under its policy for payment of underinsured motorist benefits, and that the tortfeasor’s liability coverage did not exclude payment for punitive damages.