text:
    A11A1281.
    In the Interest of A. B., a child.
    (716 SE2d 755)
   MILLER, Presiding Judge.

Following a mother’s written consent to termination of her parental rights, a juvenile court terminated the mother’s parental rights with respect to her child, A. B. We granted the mother’s application for discretionary review, and she appeals the juvenile court’s order. In two enumerations of error, the mother contends that her consent to the termination was not knowing and voluntary and that the discretionary appeal procedure set forth in OCGA § 5-6-35 (a) (12) denies due process under the State and Federal Constitutions. Finding that both claims lack merit, we affirm the juvenile court’s termination of parental rights.

In considering the mother’s appeal, we view the evidence in the light most favorable to the juvenile court’s disposition and determine whether any rational trier of fact could have found by clear and convincing evidence that the mother’s right to custody should have been terminated. We neither weigh the evidence nor determine the credibility of any witnesses, but instead defer to the juvenile court’s findings of fact.

In the Interest of K. N., 272 Ga. App. 45 (611 SE2d 713) (2005).

So viewed, the evidence shows that the mother gave birth to A. B. on November 28, 2006. The mother was 17, and in the custody of the Baldwin County Department of Family and Children Services (“Baldwin DFACS”), at the time of A. B.’s birth. Accordingly, Baldwin DFACS also took custody of A. B. when she was born. On December 7, 2006, Baldwin DFACS filed a petition for deprivation. Following a hearing on the petition, the juvenile court entered a temporary custody order, finding that A. B. was a deprived child within the meaning of OCGA § 15-11-2 and placing A. B. in the custody of Baldwin DFACS for a period of 12 months. While she was in the custody of Baldwin DFACS, A. B. continued to reside with the mother. On March 12, 2009, the mother gave birth to another child, S. B. S. B. was also placed in Baldwin DFACS’s custody and resided in a foster home with the mother and A. B.

As early as January 2007, in a family and child assessment, the mother described A. B. as “odd-looking” and “different, when she’s crying she doesn’t scream.” A. B. was eventually diagnosed with expressive language disorder and received speech therapy. Upon increased observations of other behavioral problems exhibited by A. B., such as banging her head on the wall, running into things, and overall hyperactivity, A. B. was referred for further evaluation. On June 24, 2009, A. B. was evaluated by a family practice physician, who diagnosed A. B. with ADHD and “questionable autism” and recommended that she undergo further psychiatric evaluation for confirmation.

On September 10, 2009, the mother submitted a voluntary surrender of her parental rights and was removed from the foster home in which she had been residing with A. B. and S. B. Although the mother withdrew her surrender on September 14, 2009, she was not able to return to her children’s foster home because Baldwin DFACS was already in the process of filing its petition for termination of the mother’s parental rights.

Baldwin DFACS filed its petition on October 15, 2009, seeking to terminate the mother’s parental rights with respect to both A. B. and S. B. A termination hearing was scheduled for December 29, 2009, at which the mother, along with her attorney, appeared. Before a full hearing ensued, however, the mother agreed to sign and acknowledge in open court a written consent to the termination of her parental rights as to A. B. As a result, the juvenile court entered an order on January 8, 2010, which was based not only on the mother’s voluntary consent to terminate her parental rights of A. B., but also on the stipulations into evidence (to which the parties agreed at the beginning of the termination hearing) of all prior orders and motions relating to both children, case plans and family assessments, psychological evaluations of the mother, and the recommendation of the children’s guardian ad litem. With respect to the mother’s parenting abilities, the juvenile court’s order found that the mother had failed to comply with a case plan that included attending parenting classes/training, participating in her education-college program, attending therapy and substance abuse treatment, complying with the guidelines of foster placement, and meeting the basic needs of A. B. by scheduling and attending medical appointments. The juvenile court’s order thus terminated the mother’s parental rights as to A. B., but granted the mother an additional six months in which to demonstrate that she was capable of having custody of S. B. returned to her.

On February 6, 2010, the mother filed a motion for new trial, contending that her consent was not voluntary and knowing and was given under duress, and that her attorney was ineffective in advising her of her rights. Following a hearing, the juvenile court denied the mother’s motion. In its corresponding order, the juvenile court found that the mother’s consent to termination was given voluntarily and knowingly, and that the mother’s allegation regarding ineffective counsel was without merit.

1. On appeal, the mother requests that this Court reverse the trial court’s order terminating her parental rights. The mother argues that the trial court erred by failing to set aside her consent to the termination of her parental rights “upon learning that it was not knowing and voluntary,” due to the fact that “she was falsely convinced that [A. B.] had autism and special needs that she could not handle,” and “was given a choice between losing both of her children or losing just one.” However, we find no error and, therefore, affirm the trial court’s order.

OCGA § 15-11-94 (b) (1) provides that

the court by order may terminate the parental rights of a parent with respect to the parent’s child if: (1) [t]he written consent of the parent, acknowledged before the court, has been given; provided, however, that acknowledgment before the court is not necessary where the parent . . . voluntarily surrenders] the child for adoption

as provided by the adoption statutes.

Here, the mother contends that, prior to her decision to sign the written consent, her attorney presented her with essentially two options: (i) proceed with the termination of parental rights hearing, which could result in the loss of her parental rights as to both of her children, or (ii) sign a consent as to A. B., who was assumed to have special needs, and retain her parental rights as to S. B. (for at least six months) while she continued to work on her case plan. The mother chose the latter option, and proceeded to sign a sworn document entitled “Voluntary Consent to Termination of Parental Rights Pursuant to OCGA § 15-11-94 (b) (1).” In the last paragraph of this written consent, the mother certified as follows:

I have not been subjected to any force, coercion, duress or undue pressure in the execution of this surrender document, that I am not under the influence of any substance that would impair my ability to understand the terms and effect of this document, and that I am signing this document freely and voluntarily in the presence of the Court.

Immediately after she signed the consent, the mother took the stand, was placed under oath, and engaged in the following dialogue with the juvenile court:

THE COURT: . . . [Y]our attorney has presented this written consent to the termination of your parental rights of [A. B.], date of birth 11/28/2006, sex female. Is that your signature?
[MOTHER]: Yes.
THE COURT: Have you had a chance to discuss this with your attorney . . . ?
[MOTHER]: Yes.
THE COURT: And to be advised of your rights?
[MOTHER]: Uh-huh. (Affirmative)
THE COURT: Do you understand that by signing this consent, and in representing to me that you’re consenting to the termination of your rights, that you will lose all rights to this child?
[MOTHER]: Yes.
THE COURT: Do you know that means that the child could be freed up for adoption? Do you understand that?
[MOTHER]: Uh-huh. (Affirmative)
THE COURT: You may never see the child again, you might, but you may never see the child; do you understand that?
[MOTHER]: Uh-huh. (Affirmative)

Nevertheless, a little over one month after having consented to the termination, the mother filed a motion for new trial, asserting that her consent was not voluntary and knowing, and was made under duress. At the hearing on her motion, however, the mother again testified that she had consented to the termination voluntarily, and that nobody had forced her to sign anything.

In light of the fact that “[t]here is no grace period written into OCGA § 15-11-94 (b) (1) that would allow [the mother] to voluntarily consent to the termination of . . . her parental rights, and then withdraw such voluntary consent over one month later,” In the Interest of T. C. R., 281 Ga. App. 517, 518 (636 SE2d 704) (2006), the mother argues that her consent should be set aside because it was procured as a result of fraud and duress. Cf. In the Interest of B. G. D., 224 Ga. App. 124, 127 (2) (479 SE2d 439) (1996) (the ten-day grace period in the adoption statute “did not preclude a surrendering parent from challenging the validity of the surrender based on duress, fraud, incapacity or other grounds which address the voluntariness of the consent, as the statute clearly contemplates a valid, voluntary consent”). Contrary to the mother’s arguments otherwise, however, there is no evidence of either fraud or duress invalidating her voluntary consent to terminate her parental rights.

Notably, there is no evidence that fraudulent representations were made regarding A. B.’s health condition in order to induce the mother to sign the written consent. Rather, the evidence shows that the mother was informed by both her foster parent and her caseworker about A. B.’s June 24, 2009 evaluation, where A. B. had been diagnosed with “questionable autism” and recommended to undergo further psychiatric evaluation for confirmation. Further, the mother, relying upon her own observations, had in fact told her attorney that she knew A. B. had special needs. Notably, when the mother s attorney offered to review A. B.’s medical records with her (in conjunction with the mother’s decision to sign the written consent), the mother declined to do so, explaining “that she’d observed herself at visits that [A. B.] had special needs, and that [her attorney] didn’t need to show her anything for her to know that.” The mother told her attorney that she felt someone else could better provide for A. B. Thus, rather than await further psychiatric evaluation regarding A. B.’s questionable autism diagnosis, the mother proceeded with the execution of the voluntary written consent based upon her own observations of A. B.’s special needs. The fact that a further psychiatric evaluation determined that A. B. did not have autism is not sufficient evidence of fraud that would invalidate the mother’s consent to termination of her parental rights as to A. B. Cf. In the Interest of K. W., 291 Ga. App. 623, 625 (1) (a) (662 SE2d 255) (2008) (finding sufficient evidence of fraud supported trial court’s decision to set aside surrender of parental rights for adoption where the mother’s DFACS caseworker had a conflict of interest favoring the foster parents, was untruthful, and had engaged in fraud and other illegalities).

Nor is there evidence that the mother’s consent to termination was a result of duress. Generally, duress “must consist of threats of bodily or other harm, or other means amounting to coercion, or tending to coerce the will of another, and actually inducing him to do an act contrary to his free will.” Mabou v. Eller, 232 Ga. App. 635, 637 (1) (502 SE2d 760) (1998). Here, the mother admitted that at the time she decided to sign the consent as to A. B., she was aware that if she had instead chosen to proceed with a full termination hearing as to both A. B. and S. B., such hearing would not guarantee the retention of her parental rights as to either child. Although she may have felt pressure at the thought of losing both of her children, such pressure is inherent to, and certainly not unusual of, a termination of parental rights hearing, and it does not amount to legal duress. Cf. id. at 636-637 (1) (finding that the emotional and financial pressures the mother may have been under when she made decision to surrender her parental rights under adoption statute were not unusual under the circumstances and did not amount to legal duress that would permit the mother to withdraw her surrender outside the grace period written into the adoption statute).

Thus, the juvenile court was authorized to find that the mother voluntarily and knowingly consented to the termination of her parental rights. We therefore affirm the juvenile court’s order terminating the mother’s parental rights to A. B.

2. The mother also argues that the discretionary appeal procedure in OCGA § 5-6-35 (a) (12) violates the due process clauses of both the Georgia Constitution and the United States Constitution. We disagree.

Decided September 8, 2011

Good & Lee, Darice M. Good, for appellant.

Samuel S. Olens, Attorney General, Shalen S. Nelson, Senior Assistant Attorney General, Thomas J. O’Donnell, Assistant Attorney General, for appellee.

In the case of In the Interest of N. A. U.E., 287 Ga. 797 (700 SE2d 393) (2010), the Supreme Court of Georgia considered and rejected an identical challenge to OCGA § 5-6-35 (a) (12). The father in that case, like the mother here, claimed that it was a violation of “due process to make appellate review of the juvenile court’s determination discretionary and not as of right.” Id. In rejecting the father’s due process challenge, the Supreme Court found “that if a full and fair trial on the merits is provided, the Due Process Clause of the Fourteenth Amendment does not require a State to provide appellate review, even in termination of parental rights cases.” (Citation and punctuation omitted.) Id. The Supreme Court substantiated its ruling by highlighting the absence of a “right to appeal granted by either the State or Federal Constitutions to civil litigants or to the defendant or the State in criminal cases.” (Citation and punctuation omitted.) Id.

In support of her claim here, the mother nevertheless argues that this Court should overrule the Supreme Court’s ruling in N. A. U E. However, “[t]his we cannot do as we are bound by the decisions of the Supreme Court of Georgia and have no power to overrule or modify them.” Seymour v. State, 262 Ga. App. 823, 824 (1) (586 SE2d 713) (2003). In accordance with the controlling precedent of N. A. U.E., the discretionary appeal process of OCGA § 5-6-35 (a) (12) does not violate the mother’s due process rights under the State and Federal Constitutions. Therefore, her constitutional challenge to OCGA § 5-6-35 (a) (12) is without merit.

Judgment affirmed.

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

       According to the family and child assessments, the mother was working as a prostitute when she became pregnant with A. B., and the father of A. B. is unknown.

       The mother had been in the custody of Baldwin DFACS since 1991 due to neglect.

       In the context of this case, a “deprived child” means 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).

       The juvenile court found that during her pregnancy with S. B., the mother contracted a sexually transmitted disease and was using drugs.

       We note that the mother does not dispute that notwithstanding her consent, clear and convincing evidence exists to justify the termination of her parental rights, and we therefore decline to address such in this appeal. Cf. In the Interest of T. C. D., 281 Ga. App. 517, n. 1 (636 SE2d 704) (2006).

       On June 24, 2009, A. B. was diagnosed with ADHD and “questionable autism” and was recommended for further psychiatric evaluation for confirmation.

       In comparison, the adoption statute expressly allows a ten-day grace period to withdraw a voluntary surrender of parental rights in adoption proceedings. See OCGA § 19-8-9 (b). Since the instant case did not include adoption proceedings, however, this provision is inapplicable here.

       We note that the mother’s constitutional challenge to OCGA § 5-6-35 (a) (12) falls within the limited exception allowing appellate review of an issue that has not been raised and ruled on in the trial court. See In the Interest of A. C., 285 Ga. 829, 832-833 (1) (686 SE2d 635) (2009) (“[The Supreme Court of Georgia] has recognized a limited exception to such general rule in the instance of a challenge to the constitutionality of a statute governing appellate procedure that is necessarily made for the first time on appeal.”).

       We further note that “[t]he Court of Appeals has jurisdiction when the constitutionality of a state law is questioned if the law has been held to be constitutional against the same attack being made, as such case requires merely an application of unquestioned and unambiguous constitutional provisions.” (Citations and punctuation omitted.) City of Decatur v. DeKalb County, 284 Ga. 434, 436-437 (2) (668 SE2d 247) (2008).


source: Caselaw Access Project

author: MILLER, Presiding Judge.

license: Public Domain

text:
    A11A1451.
    McCAULEY v. THURMOND.
    (716 SE2d 733)
   MILLER, Presiding Judge.

When Toni McCauley (“McCauley”) was discharged from her position as a support coordinator for Professional Case Management Services of America (“PCSA”), she applied for unemployment compensation benefits. The Georgia Department of Labor found that McCauley was not qualified to receive unemployment compensation benefits, a determination that was initially reached by a claims examiner and thereafter affirmed by both an administrative hearing officer (“AHO”) and the board of review. In an administrative appeal, the superior court affirmed the Department’s findings. We granted McCauley’s application for discretionary review, and she appeals the superior court’s order. Because there was evidence to support the Department’s decision to disqualify McCauley from unemployment compensation benefits, we affirm.

In considering whether the administrative tribunal properly found that [McCauley] was not entitled to receive unemployment benefits, the trial court, as well as this court, must affirm if there is any evidence to support that ruling. And we will uphold the [D]epartment’s factual findings if there is any evidence to support them.

(Citations and punctuation omitted.) MCG Health v. Whitfield, 302 Ga. App. 408 (690 SE2d 659) (2010). “When this Court reviews a superior court’s order in an administrative proceeding, our duty is not to review whether the record supports the superior court’s decision but whether the record supports the final decision of the administrative agency.” (Citation and punctuation omitted.) Davane v. Thurmond, 300 Ga. App. 474, 475 (685 SE2d 446) (2009).

The relevant facts are that McCauley worked as a support coordinator for PCSA from May 2008 through December 10, 2009. PCSA is an agency that provides support coordination to individuals with developmental disabilities receiving Medicaid from the State of Georgia, and as a support coordinator, McCauley was responsible for managing a caseload consisting of 40 or more such individuals. McCauley’s job responsibilities required her to meet with each of these individuals on a monthly basis, as well as conduct support needs assessments and individual service plans with the individuals, their families, and community support persons. McCauley was also required to enter support notes for each of her cases. Specifically, notes for one-half of her caseload were due by the 15th day of each month and notes for the other half were due by the 25th day of each month.

On November 23, 2009, McCauley learned that she had tested positive for influenza, and that she would have to remain in quarantine for five days. On the same day, McCauley e-mailed both her direct supervisor and the regional manager, in which she informed them that she was ill, was to be quarantined, was traveling to Michigan for the Thanksgiving holiday, and would report back to work on November 29, 2009.

The regional manager responded to McCauley’s e-mail on November 23, 2009, and requested that McCauley provide medical documentation regarding her diagnosis and quarantine, as well as explain why she was going to Michigan if she had to be quarantined and why she would not be able to complete her work by the November 25, 2009 deadline. On November 27, 2009, after receiving no response from McCauley, the regional manager e-mailed McCau-ley again; based on McCauley’s previous indication that she would be returning to work on November 29, 2009, the regional manager’s e-mail requested that McCauley come in for a meeting on November 30, 2009, to discuss her condition and workload. McCauley nevertheless failed to respond to the regional manager’s request for a meeting. McCauley did, however, send an e-mail to her direct supervisor on November 28, 2009, in which McCauley stated that she would be going to the hospital and provided a schedule of her pending work assignments over the next couple of weeks. When the direct supervisor notified the regional manager of McCauley s e-mail, the regional manager e-mailed McCauley for a third time on November 28, 2009, in which she reiterated her requests for medical documentation and further explanation or detail regarding McCau-ley’s purported holiday trip to Michigan and inability to complete her work.

McCauley neither responded to the regional manager’s third e-mail, nor came into the office for the November 30, 2009 meeting. The regional manager thereafter scheduled two additional meetings that McCauley likewise failed to attend (one on December 7, 2009, and the other on December 10, 2009). According to the regional manager, she did not receive an e-mail from McCauley until December 10, 2009, at which time McCauley stated she was staying home and would not be in the office to meet with the regional manager. In the regional manager’s response to McCauley, she stated:

This is the third meeting you have cancelled with me. I don’t understand why, but I thank you for contacting me because the last two times I did not hear from you. Please understand that my request for meetings have been mandatory. Also I need you to provide the [individual service plan] info for D. H[.] His [individual service plan] has been past due.

McCauley’s reply, in relevant part, read, “Let me be clear. My health is the dictator of my actions these days. The only ‘mandatory’ meetings for me currently are meetings with my doctor. I apologize for assuming that this was automatically understood.”

McCauley was ultimately terminated on December 10, 2009, for the following reasons: failing to attend three mandatory meetings requested by regional manager, not entering her case support notes by the November 25, 2009 deadline, failing to timely submit individual service plans, not returning regional manager’s e-mails within 48 hours, and entering partially blank support notes into the PCSA computer system.

McCauley filed a claim for unemployment compensation benefits, which was initially denied by the claims examiner. McCauley appealed the claims examiner’s denial. Following a hearing, the AHO affirmed the decision of the claims examiner; the board of review subsequently adopted the AHO’s findings and conclusions. After McCauley filed a petition for judicial review, the superior court found that there was some evidence to support the AHO’s findings of fact and affirmed the board of review’s decision. On her appeal of the superior court’s order, McCauley contends that she was entitled to receive unemployment compensation benefits.

“Under OCGA § 34-8-194 (2) (A), an individual may be disqualified from receiving unemployment compensation benefits when he or she has been discharged for failure to obey orders, rules, or instructions. . . .” (Punctuation omitted.) MCG Health, supra, 302 Ga. App. at 409. “However, disqualification [under OCGA § 34-8-194 (2) (A)] is not appropriate unless the employer shows the discharge was caused by the deliberate, conscious fault of the claimant.” (Citation and punctuation omitted.) Davane, supra, 300 Ga. App. at 476. “Disqualification is an exception to the statutory scheme for unemployment benefits and the employer must show by a preponderance of the evidence that disqualification is appropriate.” (Citations and punctuation omitted.) MCG Health, supra, 302 Ga. App. at 409.

Here, both the Department and the superior court determined that McCauley was disqualified from receiving unemployment compensation benefits because her discharge was due to her own fault. Specifically, the initial claims examiner found that McCauley had been “fired for not following rules, orders, or the instructions of [her] employer when [she] failed to report for meetings to discuss [her] job performance.” The AHO agreed, finding that McCauley was “considered to be at fault in causing the discharge,” because she failed to submit requested medical documentation to the regional manager, she failed to meet her November 25, 2009 work deadline, and she missed three mandatory meetings with the regional manager to discuss her condition and workload.

The aforementioned record evidence supports the Department’s finding of fault. “A determination of a disqualifying fault must be made in the context of whether the employee would reasonably expect, under all the circumstances of employment, that sanction would result from a violation.” (Citation omitted.) Barron v. Poythress, 219 Ga. App. 775, 777 (466 SE2d 665) (1996). McCauley should have been aware that failing to meet work deadlines, entering partially blank supporting case notes, and ignoring her regional manager’s direct communications and orders subjected her to termination. See Jamal v. Thurmond, 263 Ga. App. 320, 321 (1) (587 SE2d 809) (2003) (“[Tjhere was evidence sufficient for the factfinder’s determination that [the claimant] intended not to complete the assignment and that he should have been aware that such a refusal subjected him to termination.”) (punctuation omitted).

McCauley nevertheless argues on appeal that the superior court erred by failing to apply OCGA § 34-8-194 (2) (B) (ii) and (iii) to the Department’s findings. We disagree.

Pursuant to OCGA § 34-8-194 (2) (B) (ii), an individual shall not be disqualified for benefits under OCGA § 34-8-194 (2) (A) if the Department determines that “[t]he individual did not intentionally fail or consciously neglect to perform his or her job duties. . . .” Although McCauley claims that she was not shown to have “committed any offense intentionally or as a result of conscious neglect,” the record evidence shows otherwise. Notably, the evidence shows that McCauley was well aware that her support notes for one-half of her caseload were due to be entered by November 25, 2009. Despite the fact that McCauley was able to perform her job duties up until she was diagnosed with influenza on November 23, 2009, the evidence shows that she had still failed to complete her support notes for over 50 percent of her caseload by the November 25, 2009 deadline. She likewise failed to timely submit individual service plans, which the State requires in order for individuals to continue receiving Medicaid. McCauley also entered partially blank supporting notes into the PCSA computer system, which, according to the regional manager, could have given rise to Medicaid fraud. Even assuming that McCauley’s illness interfered with her ability to complete the foregoing work assignments, her illness did not excuse her from at least responding to her regional manager’s direct requests for a mandatory meeting, or from timely returning her regional manager’s multiple e-mails that requested details and documentation regarding McCauley’s condition. Such evidence supports the finding that McCauley, at the very least, consciously neglected to perform her duties.

McCauley’s argument regarding the application of OCGA § 34-8-194 (2) (B) (iii) is equally unavailing. Under that subsection, an individual shall not be disqualified for benefits under OCGA § 34-8-194 (2) (A) if the Department pertinently determines that “[t]he discharge occurred because of absenteeism and the absences were caused by illness of the claimant or a family member, unless the claimant has without justification failed to notify the employer.” (Emphasis supplied.) OCGA § 34-8-194 (2) (B) (iii). Per its plain language, OCGA § 34-8-194 (2) (B) (iii) applies only where the claimant’s discharge occurred because of absenteeism. The fact that McCauley was absent due to her influenza diagnosis and her subsequent blood transfusion does not constitute evidence that McCauley was in fact discharged for those absences, for even McCauley herself, in completing a Department form upon discharge, indicated that she had not been discharged due to being absent or late to work. Cf. Glover v. Scott, 210 Ga. App. 25, 26 (435 SE2d 250) (1993) (“The fact that [the claimant] had other attendance infractions and had been warned does not constitute evidence in the facts of this case that she was terminated for those other infractions, for it is undisputed that she was not terminated because of those other infractions. She was terminated only after, and because, she was absent from work for two hours ... to attend juvenile court proceedings with her son.”)- As outlined above, the record evidence instead shows that McCauley was specifically discharged not only for failing to meet her work deadlines and entering partially blank supporting case notes, but also for unjustifiably ignoring her regional manager’s multiple e-mails requesting a mandatory meeting and details and documentation regarding McCauley’s condition and workload.

Decided September 8, 2011.

Mary I. Dickerson, for appellant.

Samuel S. Olens, Attorney General, Kimberly B. Lewis, Assistant Attorney General, for appellee.

In sum, because there was evidence to support the Department’s decision to disqualify McCauley from receiving unemployment compensation benefits, there was no error in the superior court’s affirmance of that decision. See Jamal, supra, 263 Ga. App. at 322 (2).

Judgment affirmed.

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

       The claims examiner, the AHO, and the board of review are hereinafter collectively referred to as the “Department.”

       Neither the Department nor PCSA filed a responsive brief in this appeal. Accordingly, they are deemed to have admitted the statement of facts as set out by McCauley in her brief, to the extent such facts are supported by the record. See Court of Appeals Rule 25 (b) (1); Payless Car Rental System v. Elkik, 306 Ga. App. 389, 390, n. 4 (702 SE2d 697) (2010).

       The regional manager was responsible for managing all supervisors and staff, including McCauley and McCauley’s direct supervisor. The regional manager was the only representative who testified on behalf of PCSA at the hearing before the AHO.

       A doctor’s note in the record indicates that McCauley could return to work on November 29, 2009.

       At the hearing before the AHO, McCauley testified that she did not in fact travel to Michigan.

       The evidence indicates that McCauley was referred to an emergency room on November 30, 2009, for menorrhagia and severe anemia. The next day, December 1, 2009, McCauley received a blood transfusion and was discharged from the hospital.

       McCauley testified that she faxed her medical documentation to the office in which she worked; she conceded, however, that it “wouldn’t be the first time that something was faxed over there and . . . didn’t get to the proper party.” The regional manager denied that she or anyone else at that office had ever received a fax from McCauley. McCauley also indicated that she had intended to personally deliver a hard copy of her medical documentation, but that she had not been able to make it to the office.

       The evidence shows that PCSA issued McCauley a disciplinary action for her noncompliance with PCSA protocol and policies by failing to timely submit individual service plans, failing to secure a replacement/make arrangements to facilitate previously scheduled individual service plan meetings, and failing to respond to the regional manager’s e-mails within 48 hours. According to the regional manager, however, McCauley was never presented with this disciplinary action since she failed to ever come in for a meeting.


author: Miller, Presiding Judge.

text:
    A11A1028.
    In the Interest of T. H., a child.
    (716 SE2d 724)
   Miller, Presiding Judge.

In this case involving the termination of parental rights, the trial court entered an order dismissing the biological mother’s appeal under OCGA § 5-6-48 (c), finding that she had caused an unreasonable, inexcusable delay in filing transcripts of the evidence and proceedings. The mother appeals the dismissal order. We discern no error and affirm.

The record shows that on April 3, 2006, a petition to terminate the mother’s parental rights to her minor son, T. H., was filed by T. H.’s paternal aunt and uncle. On July 3, 2007, the trial court granted the petition and the mother’s parental rights were terminated. Thereafter, on August 2, 2007, the mother filed a motion for new trial. On August 30, 2007, the mother requested a continuance from the motion for new trial hearing based upon her failure to receive a copy of the transcripts of the termination proceedings. Almost a year later, on July 17, 2008, the mother’s counsel obtained an order granting a request for the payment of funds for the transcripts. The mother’s counsel received copies of the transcripts on August 31, 2009. The trial court subsequently denied the mother’s motion for new trial on October 23, 2009.

On November 20, 2009, the mother filed her notice of appeal, designating that a “Ltjranscript of evidence and proceedings will be filed for inclusion in the record on appeal.” Nearly a year later, on October 26, 2010, the appellees filed a motion to dismiss the appeal, contending that the mother had failed to take any action since the filing of her notice of appeal to have the transcripts filed for transmittal of the record. Faced with the motion to dismiss, the mother then filed a motion to compel the court reporter to file the transcripts.

The trial court conducted a hearing on the motion to dismiss. The mother was not present at the hearing, but her counsel appeared on her behalf. The mother’s counsel informed the trial court that the mother’s last contact with him occurred a year prior to the hearing. The mother’s counsel conceded that he had received copies of the transcripts from the court reporter on August 31, 2009. He claimed that he first became aware that the transcripts had not been filed into the record in June 2010. The mother’s counsel stated that upon inquiring into the matter, he was informed that the transcripts had not been filed because exhibits were missing and could not be located. The mother’s counsel nevertheless acknowledged that the transcripts could have been filed without the missing exhibits.

Following the hearing, the trial court granted the appellees’ motion to dismiss the appeal. The mother then filed the instant appeal, contending that the dismissal was erroneous since the delay was neither inexcusable nor caused by her. We disagree.

When the appellant’s notice of appeal designates that there is a transcript of evidence and proceedings to be included in the record on appeal, the appellant shall cause the transcript to be prepared and filed within 30 days after filing of the notice of appeal. See OCGA § 5-6-42. If the transcript cannot be filed within 30 days, the appellant must request an extension of time for the filing. See OCGA § 5-6-39 (a) (3); Coptic Constr. Co. v. Rolle, 279 Ga. App. 454 (631 SE2d 475) (2006). A trial court is authorized to dismiss an appeal, after providing notice and opportunity for hearing, “where there has been an unreasonable delay in the filing of the transcript and it is shown that the delay was inexcusable and was caused by [the appellant].” See OCGA § 5-6-48 (c); Coptic Constr. Co., supra, 279 Ga. App. at 454. We will not disturb the trial court’s findings as to its dismissal of an appeal under OCGA § 5-6-48 (c) absent an abuse of discretion. See PJ Sucs., Inc. v. Equity Technologies Assoc., 295 Ga. App. 214, 215 (671 SE2d 264) (2008).

Based upon the aforementioned evidence, the trial court’s dismissal of the mother’s appeal was authorized. The delay in filing the transcripts extended over the course of almost one year. “A delay of more than 30 days in filing a transcript as provided by OCGA § 5-6-42 is prima facie unreasonable and inexcusable, but this presumption is subject to rebuttal if the party comes forward with evidence to show that the delay was neither unreasonable nor inexcusable.” (Punctuation and footnote omitted.) PJ Sucs., Inc., supra, 295 Ga. App. at 216. See also Lavalle v. Jarrett, 306 Ga. App. 260, 263 (1) (701 SE2d 886) (2010). The mother failed to rebut the presumption in this case. The evidence fails to show that the mother or her counsel made any inquiry to ensure the timely filing of the transcripts after she filed her notice of appeal on November 20, 2009. Significantly, the mother’s counsel had obtained copies of the transcripts from the court reporter prior to the date that he filed the mother’s notice of appeal. Yet, he did not take action to have the available transcripts filed within the requisite 30-day time frame. See Adams v. Hebert, 279 Ga. App. 158, 160 (630 SE2d 652) (2006) (concluding that there was nothing to prevent the timely filing of the transcript since the appellant’s counsel had the transcript in his possession at the time he filed the notice of appeal); Dept. of Human Resources v. Patillo, 196 Ga. App. 778, 779 (397 SE2d 47) (1990) (affirming dismissal of the appeal when the “appellant made no effort to discover when the transcript would be timely filed”).

While the mother points to the absence of exhibits as an excuse for the nearly one-year delay in filing the transcripts, her counsel otherwise acknowledged that the transcripts could have been filed without the exhibits. Even if the mother’s counsel thought that the missing exhibits might delay the filing of the transcripts, “he should have contacted the court to request an extension of time for filing” as provided by OCGA § 5-6-39 (a) and “should have called the court and the clerk on a regular basis to see if the extension should be renewed.” In the Interest of D. M. C., 232 Ga. App. 466, 469 (2) (c) (501 SE2d 305) (1998). It is undisputed that no such efforts were taken in this case. Although a failure to timely request an extension, standing alone, is not sufficient to justify dismissal of an appeal, it is one of the factors considered in determining whether a delay in filing a transcript is unreasonable and inexcusable. See Morrell v. Western Suvs., 291 Ga. App. 369, 373 (2) (662 SE2d 215) (2008); In the Interest of C. R., 255 Ga. App. 93, 94 (1) (564 SE2d 524) (2002). Under the circumstances presented here, the trial court did not abuse its discretion in finding that the mother’s failure to timely pursue the filing of the transcript or seek an extension of time for almost one year was unreasonable and inexcusable. See Lemmons v. Newton, 269 Ga. App. 880, 881 (605 SE2d 626) (2004).

The trial court also properly found that the mother’s inaction was the cause for the delay. While the mother’s arguments blame the court reporter for the delay in filing the transcripts, the trial court was authorized to find that her arguments were without merit.

The statutory duty to file timely a transcript does not rest with the court reporter; rather the duty to order the transcript is vested upon the appropriate appealing party. It would create an unacceptable and impractical burden on the court reporter’s office to require them to contact attorneys or parties and report on the status of all ordered transcripts [.]

(Citation and punctuation omitted.) In the Interest of D. M. C., supra, 232 Ga. App. at 468 (2) (b). See also Lemmons, supra, 269 Ga. App. at 882 (affirming dismissal of appeal where the appellant did not seek an extension of time for filing the transcript or make inquiries to the court reporter concerning the transcript until after the filing of the appellees’ motion to dismiss); Crown Diamond Co. v. N. Y. Diamond Corp., 242 Ga. App. 674, 678 (4) (530 SE2d 800) (2000) (affirming dismissal of appeal where the appellant’s counsel forgot to inquire as to whether the transcript could be filed within 30 days of filing the notice of appeal and did not check on the status of the transcript with the court reporter within the 30-day time frame).

In efforts to bolster her claim for appellate review on the merits, the mother further argues that the termination of parental rights is of “drastic significance” and that dismissal of her notice of appeal has deprived her of due process. Her arguments are unavailing.

Even assuming that parents have a fundamental right to continue parenting, the fact remains that litigants seeking to protect such rights are still required to observe rules of court and pleading requirements. As to appellant’s concerns for due process, the court observes that due process for all parties can only be harmed by allowing appellant to proceed despite [her] blatant disregard for Georgia’s appellate procedures.

Decided August 26, 2011

Reconsideration denied September 12, 2011.

James K. Luttrell, for appellant.

Shriver & Gordon, Mark O. Shriver IV, Lisa B. Rudolph, for appellee.

In the Interest of D. M. C., supra, 232 Ga. App. at 467 (2) (a). Indeed, the need to reach a final resolution expeditiously and without unreasonable, inexcusable delay applies in cases involving the termination of parental rights since “children should not be required to linger indefinitely in foster care” and “[i]t is well established that children need permanence of home and emotional stability or they are likely to suffer serious emotional problems.” (Citations and punctuation omitted J In the Interest of H. L. H., 297 Ga. App. 347, 351 (677 SE2d 396) (2009). See also In the Interest of J. L. C., 292 Ga. App. 763, 768 (666 SE2d 98) (2008). Here, the delay caused by the mother’s inaction prevented a just disposition of the case by delaying the docketing of the appeal and the hearing of the case in this Court.

In light of the record evidence, we find no abuse of discretion in the trial court’s dismissal of the appeal. See PJ Sucs., Inc., supra, 295 Ga. App. at 216.

Judgment affirmed.

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

       The mother argues that the trial court’s order did not contain specific findings attributing the delay in filing the transcript to any of her actions. Her argument, however, is meritless. To the contrary, the trial court’s order stated that the mother failed to take any action whatsoever to pursue her case or the filing of the transcript. The trial court’s dismissal order contained sufficient findings and was not required to further formally recite the conditions under OCGA § 5-6-48 (c) to be valid. See Winzer v. EHCA Dunwoody, 277 Ga. App. 710, 713 (3) (627 SE2d 426) (2006); Cooper v. State, 235 Ga. App. 66, 67-68 (2) (508 SE2d 447) (1998).

       In this case, the record shows that the child, T. H., was four years old when the petition to terminate the mother’s parental rights was filed on April 3, 2006. T. H. was eight years old when the trial court entered its November 22, 2010, order dismissing the notice of appeal due to the mother’s inaction. Appellees stated that the child has suffered from the failure to have a final resolution of this matter.


author: Adams, Judge.

text:
    A11A0843.
    LAUN v. AXA EQUITABLE LIFE INSURANCE COMPANY et al.
    (716 SE2d 760)
   Adams, Judge.

Dr. Frederick Laun, an orthopaedic and hand surgeon, seeks a declaratory judgment against AXA Equitable Life Insurance Company (“Equitable”) and Disability Management Services (“DMS”). Laun claims that Equitable, which provides his disability income insurance, and DMS, Equitable’s third-party administrator, improperly refused to change his disability insurance designation from sickness to injury, which would result in increased benefits. The Superior Court of Fulton County granted summary judgment in favor of the defendants, and Laun appeals. Finding no error, we affirm.

Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c). We review a grant or denial of summary judgment de novo and construe the evidence in the light most favorable to the nonmovant. Home Builders Assn. of Savannah v. Chatham County, 276 Ga. 243, 245 (1) (577 SE2d 564) (2003).

Laun secured a disability income insurance policy with Equitable on January 28, 1983, when he was 40 years old. The policy provides monthly benefits for Laun in the event of a “total disability” that leads to “the complete inability of the Insured, because of injury or sickness, to engage in the Insured’s regular occupation.” It defines two types of total disability, and they are treated differently. “Accident Total Disability,” defined as “total disability resulting from injury,” provides lifetime benefits. On the other hand, “Sickness Total Disability,” which includes “medical or surgical treatment of. . . any sickness or disease,” only provides benefits through age 65. The policy states that “[t]otal disability caused or contributed to by [a policy-defined sickness] will not be considered accident total disability.” (Emphasis supplied.)

In October 2003, Laun was diagnosed with bilateral basal osteoarthritis of the thumbs, a degenerative joint condition that caused him significant pain in the base of his thumbs during and after the performance of surgical work. He stopped performing surgery in November 2003, and on November 9, he submitted a claim for total disability. DMS approved the claim, classified the claim as “Sickness Total Disability,” and began providing benefits to Laun in February 2004. At about the same time, Laun began to undergo surgery for his condition. He had surgery on his left thumb in November 2003, surgery on his right thumb in January 2004, and two additional surgeries in August 2004.

Then, on November 5, 2004, while he was still recovering from surgery and had not resumed his surgical practice, Laun fell and sprained his right wrist. Acknowledging, even before his wrist injury, that his chances of returning to work as a surgeon in the near future were “very minimal,” and the chance of performing surgery in the years to come was “possible, but not probable,” Laun closed his office to patients on November 30, 2004.

On December 13, 2004, Laun sent a letter to Equitable and DMS informing them of his wrist injury and his prediction that, if his condition did not improve, he would never be able to return to performing surgery, and he would expect to change his disability status from sickness to injury. On March 15, 2005, Laun requested that Equitable reclassify his disability under the accident total disability clause, explaining as follows:

. . . The base of my thumbs, at this time, have not improved sufficiently that I would be able to do my normal surgical procedures as an Orthopaedic and Hand Surgeon. It has been my hope, but not my expectation, that I would be able, at some time, to have the base of my thumbs recover sufficiently to allow me to perform surgery in some setting. At this time, I believe that my right wrist is what is the most incapacitating of my problems and[,] therefore, feel that I am entitled to file under the trauma clause of my contract with you. . . .

He added that it had been “well over a year” since he had performed surgery, but he believed that the wrist injury “incapacitated [him] in ways that the [thumb condition] had not incapacitated [him].” Laun was 62 years old in 2005, and the sickness total disability benefits were to expire at age 65.

DMS wrote to Laun on April 7, 2005, asking for more information but indicating that he would probably not be eligible for reclassification to accident disability since he was already receiving total disability benefits. On May 22, 2006, DMS obtained an independent physician to review Laun’s medical records in order to evaluate his claim. That physician concluded that 35% of Laun’s total impairment is due to his right wrist injury and 65% is due to the thumb condition and subsequent surgical procedures. DMS wrote letters to Laun in June and September 2006 explaining that he was not eligible for reclassification as disabled under the accident provision because, at the time of his accident, he was already receiving total disability benefits for a sickness from which he had not recovered.

Equitable and DMS moved for summary judgment on the grounds that under the plain language of the agreement, Laun’s disability could not be reclassified because his disability was caused and contributed to by the thumb illness and because he was not engaged in his occupation when he reportedly became disabled as a result of the wrist injury. The trial court granted the motion without written findings.

1. Laun argues his disability should have been reclassified from sickness total disability to injury total disability because the policy does not state that reclassification was prohibited, because his wrist bothered him more than his thumbs, and because he had hoped to return to surgical practice until he injured his wrist.

“ ‘An issue of contract construction is at the outset a question of law for the court.’ [Cit.] The first step is to look to the four corners of the instrument to determine the intention of the parties from the language employed. [Cits.]” Livoti v. Aycock, 263 Ga. App. 897, 901-902 (2) (590 SE2d 159) (2003). If the language of the agreement is “clear, unambiguous, and capable of only one reasonable interpretation, no construction is necessary or even permissible by the court.” (Citations and punctuation omitted.) Estate of Sam Farkas, Inc. v. Clark, 238 Ga. App. 115, 119-120 (2) (517 SE2d 826) (1999).

The policy defines the relevant terms as follows:

INJURY. Injury means accidental bodily injury of the Insured occurring while this policy is in force.
SICKNESS. Sickness means sickness or disease of the Insured which first manifests itself while this policy is in force.
TOTAL DISABILITY. Total disability means the complete inability of the Insured, because of injury or sickness, to engage in the Insured’s regular occupation. . . .
ELIMINATION PERIOD. Elimination period means the number of days for which no benefits are payable at the beginning of a period of continuous total disability. The elimination periods for this policy are [30 days].
ACCIDENT TOTAL DISABILITY Accident total disability means total disability resulting from injury.
SICKNESS TOTAL DISABILITY. Sickness total disability means total disability caused or contributed to by sickness or by any of the following: . . . medical or surgical treatment of. . . any sickness or disease. Total disability caused or contributed to by [sickness or disease] will not be considered accident total disability.

These provisions are not ambiguous with regard to how to classify a disability that results from both a sickness/disease and an injury. The final quoted provision plainly states that a disability “caused or contributed to by [sickness or disease] will not be considered accident total disability.” Thus, only disability resulting solely from injury can be classified as accident total disability; whereas disability resulting in whole or in part from sickness is classified as sickness total disability.

Laun argues that the last sentence quoted above does not apply “because Dr. Laun’s wrist injury was not caused or contributed to by his osteoarthritis.” (Emphasis supplied.) But this argument confuses the policy language at issue. The test is whether his total disability was caused or contributed to by his osteoarthritis. “[T]his court may not strain the construction of the policy so as to discover an ambiguity . . . where none, in fact, exists.” (Punctuation omitted.) State Farm &c. Ins. Co. v. Staton, 286 Ga. 23, 25 (685 SE2d 263) (2009). This argument therefore fails. And Laun’s argument that the policy does not prohibit him from having his status reclassified is a red herring. His disability cannot be reclassified unless the facts comport with the policy language.

2. With regard to the facts, although Laun attempts to create an issue of fact about whether his disability results solely from the wrist injury, his own testimony shows that he is disabled partly as a result of his thumb illness and partly as a result of his wrist injury. First, Laun admits that at the time he fell and sprained his wrist, he was totally disabled, unable to engage in his occupation, and receiving total disability benefits for his thumb illness. He further admits that “the left thumb still contributes” to his disability; that independent of the wrist injury, his left thumb condition does not allow him to resume his occupation; that the percentage of impairment attributable to his wrist injury is 23% and that the percentage attributable to his thumbs is 7% per thumb; that at the time he requested reclassification of his disability, one or more of his thumbs had not improved sufficiently so as to allow him to perform as an orthopaedic and hand surgeon; that at that time, the thumb condition and the wrist injury disabled him in different ways; and that as of May 2005, his thumbs were not normal. He also characterizes his wrist injury only as “a worse problem” than his thumbs; as “more disabling than the thumbs”; as “my most disabling problem”; and as “greater than the thumb problems.” Each of these characterizations implies that the thumbs are still a problem.

Decided September 13, 2011.

Thomerson, Spears & Robl, Michael J. Thomerson, Francesca Macchiaverna, for appellant.

Ford & Harrison, Michael A. Coval, for appellees.

Despite all these comments and admissions, Laun argues strenuously that his current disability results solely from his wrist injury because he might not still be disabled if he had not suffered the wrist injury because he could have undergone additional thumb surgery and perhaps recovered sufficiently to practice his occupation in some capacity. He contends his right thumb is better than what it seems but that he cannot tell because of the injury to his wrist; “and if the wrist hadn’t been injured, I would have had the left thumb [further surgically repaired] and hopefully be back at work.” He added, “I haven’t got the revision [to the left thumb] because it doesn’t matter how good the thumb would get because I still couldn’t work because of the wrist.”

But even construing this evidence in favor of Laun, we conclude that under the plain meaning of the policy, Laun’s disability was caused or contributed to by his thumb illness and, accordingly, that his disability cannot be classified as “accident total disability.”

3. Our decision is not dependent on an interpretation of the policy’s “elimination period,” and, therefore, Laun’s claim that the trial court misinterpreted that provision is moot. Also, Laun’s claim that the trial court improperly relied on Pennsylvania law is without merit. The court’s order does not state that it relied on Pennsylvania law, a trial court may consider law from other jurisdictions, and our opinion is not based on Pennsylvania law.

Judgment affirmed.

Barnes, E J., and Blackwell, J., concur.

       The parties do not dispute that under the policy Laun’s thumb condition is a sickness or disease and that his wrist problem is an injury.


author: McFADDEN, Judge.

text:
    A11A1524.
    GOOLSBY v. THE STATE.
    (718 SE2d 9)
   McFADDEN, Judge.

A jury convicted Terry Lee Goolsby of 13 felony counts in connection with the invasions of the homes and the rapes of S. P and H. M. M. Six counts arise out of two separate invasions of S. P’s home, including one count of kidnapping with bodily injury. Seven counts arise out of an invasion of H. M. M.’s home, also including one count of kidnapping with bodily injury. Goolsby appeals only from his convictions for kidnapping with bodily injury, focusing on the aspor-tation element of the kidnapping with bodily injury charges. He challenges the sufficiency of the evidence and the trial court’s instruction to the jury as to that element.

We hold that the evidence of asportation was insufficient to sustain Goolsby’s convictions for the kidnapping with bodily injury of S. E But as to H. M. M., we find the evidence of asportation not only sufficient to sustain Goolsby’s conviction, but also sufficient to render harmless any error in the jury charge. Accordingly, we reverse Goolsby’s conviction for kidnapping with bodily injury of S. E and affirm his other convictions.

Reviewing a challenge to the sufficiency of the evidence to sustain a conviction, we view the evidence in the light most favorable to the jury verdict, and the defendant no longer has a presumption of innocence. Short v. State, 234 Ga. App. 633, 634 (1) (507 SE2d 514) (1998). We do not weigh the evidence or evaluate witness credibility; we only determine if the evidence was sufficient for a rational trier of fact to find the defendant guilty beyond a reasonable doubt of the charged offenses. Leverette v. State, 303 Ga. App. 849 (696 SE2d 62) (2010). Even though the evidence may be contradicted, if some evidence exists to support each necessary element of the State’s case, we will uphold the jury’s verdict. Id.

So viewed, the evidence established that on September 8, 2002, while S. E, a 70-year-old woman who required constant use of an oxygen tank, was sleeping on her couch, Terry Lee Goolsby broke into her home and sexually assaulted her. Goolsby fled when something startled him.

Eleven days later, S. E, after hearing suspicious noises at around 4:00 a.m., got up from her couch where she was watching television and took a few steps toward her kitchen. Goolsby stepped out of the kitchen, grabbed both of her arms near the wrists, and forcefully walked her backward a couple of steps to the couch. He pushed her down on the couch, raped her, and subsequently fled.

At 4:00 a.m. on December 21, 2002, in the same mobile home community where S. E lived, H. M. M. awoke to a loud noise. She got up to investigate and walked into her dining room where she saw Goolsby in the utility room inside her house. After seeing Goolsby, H. M. M. turned and ran for the front door, but Goolsby caught her from behind and pulled her away from the door. H. M. M. struggled to free herself. Goolsby attempted to tie H. M. M.’s hands together with a string as he was pulling her away from the door toward her bedroom. When H. M. M. clung to another door, Goolsby pulled out a knife, held it to her back, and beat her until she let go. Goolsby eventually tied H. M. M.’s hands in front of her and forced her into her bedroom. Once in the bedroom, he put her on the bed where he raped her. Following the attack, H. M. M. was able to convince Goolsby that she needed to go to the hospital, and he let her leave.

DNA evidence established that Goolsby had sexual contact with both victims. Furthermore, fingerprints lifted from a glass in H. M. M.’s home matched Goolsby’s fingerprints, and H. M. M. picked him out of a live lineup as the person who raped her.

On April 2, 2003, Goolsby was indicted on charges of criminal attempt to commit rape, burglary, and sexual battery for his attack on S. E on September 8, 2002. For his attack on S. E on September 19, 2002, Goolsby was indicted on charges of burglary, rape, and kidnapping with bodily injury (Count 6). For the incident with H. M. M. in December 2002, Goolsby was indicted on charges of kidnapping with bodily injury (Count 7), rape, aggravated assault, burglary, aggravated sodomy, possession of a knife during the commission of a felony, and sexual battery. Goolsby was convicted on all counts. In October 2004, he received an aggregate sentence of life plus 45 years, including multiple concurrent and consecutive life sentences. Goolsby filed a motion for a new trial in November 2004. He was twice appointed new counsel; his current appellate counsel was appointed in September 2010. Goolsby’s amended motion for a new trial was denied in March 2011. This timely appeal followed.

1. Goolsby contends that the evidence of asportation is insufficient to sustain his conviction of kidnapping S. E He relies on Garza v. State, 284 Ga. 696 (670 SE2d 73) (2008), which changed the law as to that element of kidnapping, noting that his appeal was in the “pipeline” when Garza was handed down. We agree and reverse Goolsby’s conviction on Count 6.

“A person commits the offense of kidnapping when such person abducts or steals away another person without lawful authority or warrant and holds such other person against his or her will.” OCGA § 16-5-40 (a). For a kidnapping conviction, the State must show that the defendant has “abducted” or “stolen away” the victim. Id. In other words, the State must prove an unlawful movement, or asportation, of the victim has occurred against his or her will. Brashier v. State, 299 Ga. App. 107, 109 (2) (681 SE2d 750) (2009).

(a) According to state law at the time of Goolsby’s crimes in 2002 and his conviction and sentencing in 2004, the State could establish the element of asportation with proof of any movement of the victim, however slight. See Norman v. State, 269 Ga. App. 219, 221 (1) (603 SE2d 737) (2004); Griggs v. State, 264 Ga. App. 636, 639 (592 SE2d 168) (2003); Jackson v. State, 255 Ga. App. 279, 281 (1) (564 SE2d 865) (2002). In 2008, however, our Supreme Court decided Garza, supra, and established a four-part test to determine whether movement of the victim constitutes asportation:

(1) the duration of the movement; (2) whether the movement occurred during the commission of a separate offense; (3) whether such movement was an inherent part of that separate offense; and (4) whether the movement itself presented a significant danger to the victim independent of the danger posed by the separate offense.

Id. at 702 (1). The purpose of the test is to determine

whether the movement in question is in the nature of the evil the kidnapping statute was originally intended to address — i.e., movement serving to substantially isolate the victim from protection or rescue — or merely a “crimi-nologically insignificant circumstance” attendant to some other crime.

(Citation omitted.) Id.

Although the Georgia legislature has since amended the kidnapping statute to re-establish the rule that slight movement is sufficient proof of kidnapping as long as the movement was not incidental to another crime, that amendment applies to crimes committed on or after the revision’s effective date of July 1, 2009. See OCGA § 16-5-40 (defining kidnapping); Ga. L. 2009, p. 331, § 1 (altering the definition of kidnapping); see also Tate v. State, 287 Ga. 364, 365-366 (1) (a) (695 SE2d 591) (2010); Dixon v. State, 300 Ga. App. 183, 184 (1), n. 3 (684 SE2d 679) (2009). Because Goolsby’s case was on direct review or not yet final when the Supreme Court of Georgia decided Garza, it was in the pipeline when Garza was handed down, and we apply the Garza test to determine whether the movement of the victim sufficiently establishes the element of asportation. See Taylor v. State, 262 Ga. 584, 586 (3) (422 SE2d 430) (1992); Grimes v. State, 297 Ga. App. 720, 722 (678 SE2d 167) (2009).

(b) Applying the four-factor Garza test to Goolsby’s attack on S. E, we find the evidence insufficient to establish asportation. The duration of the movement was minimal. When Goolsby grabbed S. E in front of her kitchen, he forced her back “just a few steps” to her couch. Even though the movement occurred before the actual rape, it was movement incidental and in furtherance of the rape. In Garza, our Supreme Court expressly rejected a previous standard under which movement “designed to better carry out the criminal activity” was sufficient to sustain a kidnapping conviction. Id. at 701. Here, the movement of the victim was not a necessary element of the crime of rape, but it allowed Goolsby to exercise control over S. E during his conduct of the rape and was, therefore, an inherent part of the rape. See Williams v. State, 304 Ga. App. 787, 790 (1) (697 SE2d 911) (2010) (asportation proven where movement of victims during a bank robbery did not isolate the victims, but rather allowed defendant to simultaneously confine and exercise control over the victims during the conduct of the armed robbery). Finally, the movement itself presented no significant danger to the victim independent of the danger posed by the rape itself because nothing changed in regard to S. E’s isolation or potential rescue as a result of the movement to the couch. So, the movement in question was not in the “nature of the evil the kidnapping statute was originally intended to address.” Garza, supra at 702. As the movement does not establish the element of asportation under the Garza test, Goolsby’s conviction under Count 6 for kidnapping with bodily injury as it pertains to S. E must be reversed. See Escoffier v. State, 303 Ga. App. 317, 318 (693 SE2d 569) (2010) (evidence of asportation insufficient where defendant used a knife to order the victim from the driver’s seat to the passenger’s seat in order to get in the car and steal it, movement of the victim occurred during the commission of the separate offense of hijacking a motor vehicle and did not significantly increase the danger to the victim independent of the underlying offense); Moore v. State, 301 Ga. App. 220, 229 (7) (b) (687 SE2d 259) (2009) (where defendant forced the victim’s car off a dark, rural road at 4:00 a.m., pulled her out of the car, dragged her into a ditch, and sexually assaulted her, movement of the victim did not significantly increase the danger to her); Rayshad v. State, 295 Ga. App. 29, 33-34 (1) (b) (670 SE2d 849) (2008) (reversing one of defendant’s two kidnapping convictions because there was no evidence that the movements significantly enhanced the danger the victim already faced during the commission of the aggravated assault or armed robbery crimes).

2. Goolsby also contends that the evidence is insufficient to sustain his conviction on Count 7, kidnapping with bodily injury of H. M. M. We disagree. After assessing the evidence of the attack on H. M. M. under the Garza standard as set forth in Division 1, supra, we conclude that the evidence was sufficient to establish the aspor-tation element of the crime of kidnapping with bodily injury. Therefore, we affirm Goolsby’s conviction on Count 7.

Applying the four factors to the evidence here, Goolsby’s movement of H. M. M. from the front door, through the house, and into her bedroom establishes the element of asportation. Although the record does not establish the duration of the movement, in cases where the Garza standard applies, not all four factors must be met to establish the element of asportation. Hammond v. State, 289 Ga. 142 (710 SE2d 124) (2011) (citing Henderson v. State, 285 Ga. 240, 245 (5) (675 SE2d 28) (2009)). In fact, asportation has been established on the basis of only two of the Garza factors shown. See Tate, supra at 366 (1) (a) (asportation found because movement was not an inherent part of the offense and created an additional danger to the victim).

Considering the second and third factors, the movement of H. M. M. from the front door to the bedroom did not occur during the commission of the rape or the aggravated assault, and it was not an inherent part of either the rape or the aggravated assault. The movement happened before and was separate from the rape. Moreover, Goolsby did not continue to assault H. M. M. after he pulled her to the back bedroom; he assaulted her to subdue her, then forced her into the bedroom and onto the bed. See Dixon v. State, 303 Ga. App. 517, 519 (1) (693 SE2d 900) (2010) (holding that movement consisting of the assailant blocking the victim’s escape from the hotel room and pulling her into the room and to the bed was not an inherent part of either the aggravated assault with a razor to the victim’s throat while on the bed or the subsequent rape); compare Hargrove v. State, 299 Ga. App. 27, 30 (1) (681 SE2d 707) (2009) (holding that movement of victim from one room into another did not constitute asportation because defendant had not completed his attack and continued to assault victim once he dragged her into the other room).

Finally, the movement created a significant danger to H. M. M. independent of the danger posed by the rape or the aggravated assault. The movement of H. M. M. enhanced Goolsby’s control over her and isolated her from protection or potential rescue. Before Goolsby managed to pull H. M. M. into her bedroom, H. M. M. was at the front door where she could have made her escape or alerted her neighbors to provide help. See Henderson, supra at 244-245 (the movement of the victims created an additional danger to the victims by enhancing the gunmen’s control over them and isolating them from protection or rescue).

Accordingly, the evidence was sufficient to sustain Goolsby’s conviction of kidnapping with bodily injury of H. M. M., and thus Goolsby’s conviction is affirmed.

3. Goolsby’s final enumeration of error is that the trial court erred in instructing the jury on asportation contrary to Garza. Goolsby’s counsel did not object to the trial court’s instruction on asportation. But “[bjecause Garza must be applied retroactively, [Goolsby] is entitled to a jury instruction consistent with that rule.” Hammond, supra at 144 (2).

The trial court instructed the jury that only the “slightest movement” was necessary to constitute asportation, which was a correct statement of law at the time of Goolsby’s trial, see Dixon, supra, 303 Ga. App. at 520 (2), but did not comport with Garza. Nevertheless, the error was harmless. We have reversed Goolsby’s conviction of Count 6, the kidnapping of S. E So, the erroneous jury charge is moot as to Count 6. See Kirt v. State, 309 Ga. App. 227 (1) (709 SE2d 840) (2011).

Decided September 13, 2011.

Sharon L. Hopkins, for appellant.

Daniel J. Porter, District Attorney, James M. McDaniel, Samantha Routh, Assistant District Attorneys, for appellee.

As to Count 7, the kidnapping of H. M. M., the evidence of asportation was overwhelming, and any erroneous charge was harmless as well. This Court applies the “highly probable test” to weigh nonconstitutional error in criminal cases, assessing whether it is “highly probable that the error did not contribute to the judgment.” Dixon, supra, 303 Ga. App. at 521 (2). Under that standard, a reversal of a conviction due to an erroneous jury charge is not required if the evidence of guilt is overwhelming and there is no reasonable probability that the jury’s verdict would have been different without the error. Id.

The evidence of Goolsby’s guilt is overwhelming. He was identified by both victims and by DNA and fingerprint evidence. H. M. M.’s testimony provided the only narrative in evidence of the assault upon her. As detailed in Division 2 of this opinion, that narrative clearly establishes asportation.

Judgment affirmed in part and reversed in part.

Andrews, J., concurs. Phipps, P. J., concurs in Division 1 and in the judgment.


author: Dillard, Judge.

text:
    A11A0792.
    ORTON v. MASQUERADE, INC. et al.
    (716 SE2d 764)
   Dillard, Judge.

In this personal-injury case, Daniel Lee Orton sued Masquerade, Inc., Christopher Wynne, and Shawn Hickum, alleging that Masquerade and Wynne were vicariously liable for the injury he suffered as a result of Hickum’s negligence during a performance at Masquerade. The trial court granted summary judgment in favor of Masquerade and Wynne, and Orton appeals, arguing that the trial court erred in finding as a matter of law that Masquerade and Wynne were not vicariously liable for Hickum’s negligence because Hickum was an independent contractor. For the reasons noted infra, we affirm.

Viewed in the light most favorable to the nonmovant, the record shows that in the early morning hours of July 22, 2007, Orton was a patron at Masquerade, which operates as a nightclub and concert venue. The entertainment that night entailed a deejay — Masquerade employee Wynne — playing dance music during a drag show, in which female impersonators lip-synced to songs played on the venue’s sound system while performing lively dance routines. Wynne hired the performers for that night’s festivities via oral agreements, paid them in cash based on door receipts, and told them the approximate time they would be going on stage. But neither he nor any other Masquerade employee otherwise exercised any supervisory control over the performers’ specific routines.

Not long before the drag show was scheduled to conclude, Hickum — who performed under the stage name “Genre” — began his routine, in which he sang and danced while dressed as a dominatrix, brandishing a whip. At some point during his performance, Hickum cracked his whip in the direction of the audience at the edge of the stage and, in doing so, struck Orton in the left eye, seriously injuring him.

Thereafter, Orton filed a personal-injury action against Masquerade, Wynne, and Hickum, in which he asserted that Masquerade and Wynne (collectively “Masquerade”) were vicariously liable for Hickum’s negligent actions. Masquerade filed a motion for summary judgment, arguing that Hickum was an independent contractor and that Masquerade was, therefore, not liable for Hickum’s negligent conduct. The trial court granted Masquerade’s motion, and this appeal follows.

Orton contends that the trial court erred in granting summary judgment for Masquerade. Specifically, he argues that the trial court erred in finding as a matter of law that Hickum was an independent contractor and, thus, likewise erred in concluding that Masquerade was not vicariously liable for Hickum’s negligence. We disagree.

In considering Orton’s argument, we begin by noting that an employer is generally not liable for the torts of an independent contractor. The historical reason for this common-law rule is that because “the employer has no right of control over the manner in which the work is to be done, it is to be regarded as the contractor’s own enterprise, and he, rather than the employer, is the proper party to be charged with the responsibility for preventing the risk.” The ultimate test of whether the person employed is a servant or an independent contractor, then, is

whether the employer, under the contract, whether oral or written, has the right to direct the time, the manner, the methods, and the means of the execution of the work, as contra-distinguished from the right to insist upon the contractor producing results according to the contract, or whether the contractor in the performance of the work contracted for is free from any control by the employer of the time, manner, and method in the performance of the work.

Put another way, ‘ ‘the test is essentially whether the contractor has a bona fide existence apart from the employer or functions instead as the employer’s alter ego.”

And here, Masquerade’s oral agreements with the drag-show performers merely established the time when they would perform their routines and the amount they would be paid, but did not otherwise dictate the manner or method of their routines. Indeed, Masquerade did not even choose or supply the music to which the performers would dance and lip-sync or the costumes they would wear. Nevertheless, Orton argues that because Masquerade had the ability to stop the show, had a general policy forbidding weapons (such as whips), and determined the approximate schedule for the female impersonators’ performances, there is a genuine issue of fact as to whether Hickum was an employee as opposed to an independent contractor. We find this argument unavailing.

The

general right to order the work stopped or resumed, to inspect its process or to receive reports, to make suggestions or recommendations and to prescribe alterations and deviations of the work performed . . . does not establish that the proprietor exercised control over the manner in which the independent contractor did its work.

In fact, “[s]uch a general right does not mean that the contractor is controlled as to his methods of work.” Instead, “[t]here must be such a retention of a right of supervision that the contractor is not entirely free to do the work in his own way.” Thus, it matters not that Masquerade determined the approximate time a performer would begin his routine, or that it had a general policy of forbidding anyone from bringing weapons inside the venue, because neither of these undisputed facts creates a genuine issue of material fact as to whether Masquerade “controlled the time, manner, and method of executing the work.” To the contrary, no such control is evidenced here.

Additionally, we find it highly relevant that Hickum did not perform his unique services on a regular basis or for a fixed period of time for Masquerade. While such a finding is not necessarily disposi-tive in this type of analysis, it is difficult to imagine a situation where a person or entity hired to perform certain services could be deemed to be an alter ego of an employer when those services are not (or are not intended to be) performed on a regular basis or for a fixed period of time.

Accordingly, for all of the foregoing reasons, the trial court did not err m granting summary judgment in favor of Masquerade based on its finding that Hickum was not functioning as the alter ego of Masquerade but was instead an independent contractor as a matter of law.

Decided September 14, 2011.

Charles B. Tanksley, James C. Tribble, for appellant.

Carlock, Copeland & Stair, Wade K. Copeland, Lee P. Gutschen-ritter, for appellees.

Judgment affirmed.

Smith, P. J., and Mikell, J., concur.

        See, e.g., Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459, 459 (1) (486 SE2d 684) (1997).

        See The Compact Oxford English Dictionary 486 (2d ed. 1991) (defining “dominatrix” as a “female dominator; mistress, lady”); see also Urban Dictionary, http://www. urbandictionary.com/define.php?term=dominatrix (retrieved on Aug. 23, 2011) (defining “dominatrix” as, inter alia, “a woman who controls her partner mentally and physically, usually in a sexual way,” and “is stereotypically pictured as wearing stiletto boots, [a] black leather outfit, and hold[ing] a whip”).

        See OCGA § 51-2-4 (“An employer generally is not responsible for torts committed by his employee when the employee exercises an independent business and in it is not subject to the immediate direction and control of the employer.”); Georgia Messenger Serv., Inc. v. Bradley, 311 Ga. App. 148, 149 (1), n. 6 (715 SE2d 699) (2011) (same).

        Georgia Messenger Serv., 311 Ga. App. at 149 (1) (punctuation omitted); see also Peachtree-Cain Co. v. McBee, 254 Ga. 91, 91 (1) (327 SE2d 188) (1985) (same).

        Bell South Telecom. v. Widner, 229 Ga. App. 634, 635 (1) (495 SE2d 52) (1997) (citations and punctuation omitted); see also McKee Foods Corp. v. Lawrence, 310 Ga. App. 122, 124 (712 SE2d 79) (2011) (“Control is the key question in determining the type of employment relationship created by a contract for services”).

        Yancey v. Watkins, 308 Ga. App. 695, 697 (708 SE2d 539) (2011) (citation and punctuation omitted); see also Georgia Messenger Serv., 311 Ga. App. at 150 (1) (same).

        See Restatement (Second) of Agency § 220 (2) (2011) (“In determining whether one acting for another is a servant or an independent contractor, the following matters of fact, among others, are considered ... (e) whether the employer or the workman supplies the instrumentalities [and] tools ... for the person doing the work”).

        Feggans v. Kroger Co., 223 Ga. App. 47, 48 (1) (476 SE2d 822) (1996) (citation and punctuation omitted; emphasis supplied); see also Englehart v. OKI America, 209 Ga. App. 151, 152 (433 SE2d 331) (1993) (same), disapproved on other grounds by Baker v. Harcon, Inc., 303 Ga. App. 749, 755 (b) n.6 (694 SE2d 673) (2010).

        Feggans, 223 Ga. App. at 48-49 (1) (citation and punctuation omitted).

        Id. (citation and punctuation omitted).

        Larmon v. CCR Enterprises, 285 Ga. App. 594, 596 (647 SE2d 306) (2007) (citation and punctuation omitted) (holding that the fact that employer required the work to be completed by a certain time did not preclude a finding that employee was an independent contractor as a matter of law); see, e.g., Ross v. Ninety-Two West, Ltd., 201 Ga. App. 887, 891-92 (3) (412 SE2d 876) (1991) (holding that there was no evidence that company controlled the time, manner, and method of real estate agent’s work despite the fact that company provided an office, telephone, secretary, and expected the agent to attend regular meetings).

        Compare Georgia Messenger Serv., 311 Ga. App. at 150 (1) (holding that genuine issues of material fact remained as to whether courier was an independent contractor when the courier (1) was required to perform his duties as they were assigned to him, (2) had no choice as to which assignments he accepted, and (3) could not work for any other companies).

        See Restatement (Second) of Agency § 220 (2) (2011) (“In determining whether one acting for another is a servant or an independent contractor, the following matters of fact, among others, are considered ...(f) the length of time for which the person is employed . . . [and] (i) whether or not the parties believe they are creating the relation of master and servant”).

        See Yancey, 308 Ga. App. at 697-98 (“Although the relationship between an alleged master and servant is generally a question of fact to be decided by a jury, there are cases presenting factual situations wherein this issue has been decided as a matter of law”) (citation and punctuation omitted).


author: Blackwell, Judge.

text:
    A11A0828.
    In the Interest of H. A., a child.
    (716 SE2d 768)
   Blackwell, Judge.

A juvenile court adjudicated H. A. delinquent for committing acts that would, if he were an adult, amount to burglary in violation of OCGA § 16-7-1. The sole evidence that H. A. committed these acts is that his fingerprint was found on a bottle of tonic water that was moved during the burglary, and H. A. contends on appeal that this evidence is insufficient to sustain his adjudication of delinquency. We disagree and affirm the judgment below.

To prove that a juvenile is delinquent for committing acts of a criminal nature, the State must prove the commission of these acts beyond a reasonable doubt, just as it would in a criminal prosecution of an adult for the same acts. See In the Interest of A. A., 293 Ga. App. 827, 828 (668 SE2d 323) (2008). So, when a juvenile challenges the sufficiency of the evidence, we apply the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), and we consider whether the evidence adduced at the hearing would permit a rational trier of fact to conclude beyond a reasonable doubt that the juvenile committed the acts with which he is charged. See A. A., 293 Ga. App. at 828; see also In the Interest of J. C., 308 Ga. App. 336, 337 (708 SE2d 1) (2011). In considering the sufficiency of the evidence, we view the evidence in the light most favorable to the adjudication below, keeping in mind that it is for the trier of fact, not this Court, to weigh this evidence, resolve any conflicts in the evidence, and assess the credibility of witnesses. See A. A., 293 Ga. App. at 828; see also In the Interest of Q. S., 310 Ga. App. 70, 72 (1) (712 SE2d 99) (2011).

So viewed, the evidence shows that a DeKalb County resident went out to run errands on the morning of June 1, 2009, and when he returned to his home about 35 minutes later, he observed that the front door had been forcibly opened. Upon entering the home, he discovered that several items of personal property — two televisions, a laptop computer, a flat-screen computer monitor, a camera, and a satellite receiver — were missing. The victim also observed that a bottle of beer and a two-liter bottle of tonic water had been moved from the kitchen to another part of the house. A police officer later lifted a latent fingerprint from the bottle of tonic water, and it matched the fingerprint of 17-year-old H. A., whom the victim never had met.

The juvenile court concluded that H. A. must have participated in the burglary because, the court found, there was no other reasonable explanation for his fingerprint appearing on the bottle of tonic water. But H. A. contends that there is another explanation and that the failure of the evidence to exclude this alternative explanation means that his adjudication cannot be sustained. More specifically, H. A. claims that the evidence is consistent with the possibility that he impressed his fingerprint on the bottle while it was in the stream of commerce and before the resident of the home purchased the bottle. At the hearing below, his lawyer pressed this alternative explanation, arguing that “[a] water bottle stays in a house a remarkably short period of time and [is] in the public for a very long time before [it is] brought into the house. It is just as reasonable that the water bottle was touched while out in public. . . .” But H. A. points to no evidence in the record — and our independent review of the record reveals none — that supports the theory that H. A. might have left his fingerprint on the bottle prior to the break-in.

When an adjudication of delinquency is based solely on circumstantial evidence, like the adjudication in this case, the circumstantial evidence must “not only be consistent with guilt but [also must] exclude every other reasonable hypothesis save that of guilt of the accused.” Rolling v. State, 275 Ga. App. 902, 905 (1) (622 SE2d 102) (2005) (citation omitted). But not every hypothesis is a reasonable one, and it is only reasonable hypotheses that must be excluded. See id. A reasonable hypothesis is one raised by the evidence, see Cornish v. State, 187 Ga. App. 140, 142 (369 SE2d 515) (1988), and whether an alternative hypothesis is “reasonable” is a question committed largely to the trier of fact. See Rolling, 275 Ga. App. at 905 (1).

In prior cases, our Supreme Court has considered and rejected claims that a conviction cannot be based solely on the presence of the defendant’s fingerprint on some consumer product in a private place in which a crime is committed. For instance, in Leonard v. State, 269 Ga. 867 (506 SE2d 853) (1998), the defendant was convicted of murder based on evidence that his fingerprints were found on a beer bottle and soft-drink bottle that, it appeared, had been moved at the time of the crime. The Supreme Court accepted that this fingerprint evidence was the sole evidence linking the defendant to the crime, id. at 868 (1), but it nevertheless affirmed the conviction. In its decision, the Supreme Court did not discuss the conjectural possibility that some person might have touched and impressed his fingerprints upon the bottles when they were in the stream of commerce, but it instead focused on the absence of any actual evidence that the defendant in that case had an opportunity to leave his fingerprint on the bottles except at the time of the crime: “The evidence suggests no occasion for [the defendant] to have left his fingerprints [on the bottles] except during the crime, and the evidence authorized the jury to conclude that every reasonable hypothesis was excluded except [his] guilt.” Id. at 868-869 (1).

Similarly, in White v. State, 253 Ga. 106 (317 SE2d 196) (1984), the defendant was convicted of murder based on evidence that his fingerprint was found on a cosmetic case in the bedroom of the victim, which had been ransacked during the crime. Id. at 107 (1). As in Leonard, the Supreme Court accepted the claim that this fingerprint evidence was the sole evidence linking the defendant to the crime, see id., and as in Leonard, it nevertheless affirmed the conviction. In White, the Supreme Court did not discuss the possibility that the cosmetic case — like the bottles in Leonard and the bottle of tonic water in this case — might have once been kept on a store shelf accessible to the public, but it concluded that nothing in the evidence supported an alternative hypothesis that explained how the fingerprint of the defendant was left on the cosmetic case. Id. at 108 (1). Consequently, the Supreme Court concluded, a rational jury could have found that the only reasonable explanation was that the defendant left his fingerprint on the cosmetic case at the time of the murder. Id.

This Court also has considered in several cases whether fingerprint evidence is enough to sustain a conviction, and we have reached the same conclusion as the Supreme Court in Leonard and White. For instance, in Massey v. State, 247 Ga. App. 827, 827 (1) (545 SE2d 66) (2001), we considered evidence of fingerprints found on empty soda cans and a bag of cheese in the apartment of a burglary victim, and we said that the fingerprint evidence directly placed the defendant at the scene of the crime, amounted to “compelling circumstantial evidence” that he stole the items on which his fingerprints were found, and constituted sufficient circumstantial evidence from which a jury could infer that the defendant also took the other items stolen from the apartment. Id. at 828; see also Lighten v. State, 259 Ga. App. 280, 282 (1) (576 SE2d 658) (2003) (upholding conviction for burglary where evidence provided no support for defendant’s alternative hypothesis about how his fingerprints were left on a drink bottle found at the crime scene); Brown v. State, 180 Ga. App. 188, 189 (348 SE2d 575) (1986) (“trier of fact could reasonably infer that the print was placed at the time of the burglary[,] and there is no evidence to draw a contrary inference that the imprinting occurred on another occasion”); Garland v. State, 160 Ga. App. 97, 98 (2) (286 SE2d 330) (1981) (upholding conviction based on fingerprint evidence where “it]here was no evidence presenting any other reasonable explanation” for presence of defendant’s prints at scene of crime). As the Supreme Court did in Leonard and White, we focused in these cases on the extent to which an alternative explanation was raised by the evidence, rather than by mere conjecture.

Here, the alternative hypothesis that H. A. offers — that perhaps he left his fingerprint on the bottle while it was in the stream of commerce — finds no support in the evidence adduced below. To be sure, the idea that the bottle on which H. A.’s fingerprint was found might have come from the shelf of some store, where a shopper might innocently have touched it and left his fingerprint upon it, is not a crazy one. But the bottle did not necessarily come from a store; perhaps the resident bought it online, directly from the manufacturer, or from a wholesaler. And in any event, there is simply no evidence that supports this alternative explanation for the fingerprint.

At trial, H. A. focused his defense not on presenting an alternative explanation for his fingerprint being found in the victim’s home, but rather on challenging the qualifications and methods of the fingerprint expert who testified at the hearing. Even when H. A. advanced his alternative hypothesis in closing argument, he made claims that are not supported by any evidence contained in the record; the record contains no evidence that a bottle of tonic water “stays in a house a remarkably short period” or that it is “in the public for a very long time before [it is] brought into the house.” And even if the record showed that the victim purchased the tonic water from a retail store, there is no evidence in the record about when or where the victim made the purchase, evidence that H. A. ever had visited that store, or even evidence that H. A. had ever drank, purchased, or handled a bottle of tonic water. Although a court can use its common sense to determine whether an alternative hypothesis is “reasonable,” we do not find that the juvenile court was required as a matter of law to accept the alternative explanation that H. A. offered in the absence of evidence to support it. Indeed, to accept H. A.’s alternative hypothesis on appeal, we would have to speculate about matters that are not part of the record before us, and that is something that this Court ought not do. See Calhoun v. State, 71 Ga. App. 623, 626 (31 SE2d 616) (1944); see also Cornish, 187 Ga. App. at 142 (alternative hypothesis must be established by the evidence).

The case on which H. A. relies — Anthony v. State, 85 Ga. App. 119 (68 SE2d 150) (1951) — is simply not much like this case. In Anthony, this Court reversed a burglary conviction based solely on evidence of the fingerprint of the defendant at the crime scene because the fingerprint there was found on a pinball machine used by the public in a public place. Here, H. A.’s fingerprint was discovered inside a private residence and not in a public place, much less on a device that is intended to be regularly used and touched by the public as in Anthony. Nor does the evidence here suggest any occasion for H. A. to have lawfully entered the victim’s residence or to have handled the bottle of water before it came into the victim’s home. See White, 253 Ga. at 108 (1); compare Vaughn v. State, 136 Ga. App. 54, 54-55 (220 SE2d 66) (1975) (fingerprint evidence insufficient to sustain burglary conviction where evidence showed that defendant was taken to the crime scene before fingerprint evidence was collected); Mooney v. State, 122 Ga. App. 650 (178 SE2d 281) (1970) (fingerprint evidence insufficient to sustain burglary conviction where evidence showed that defendant recently and lawfully handled the item on which his fingerprint was found).

Decided September 14, 2011.

Randee J. Waldman, for appellant.

Robert D. James, Jr., District Attorney, Robert H. Wilson, Assistant District Attorney, for appellee.

H. A.’s unsupported alternative hypothesis — that he left his fingerprint on the bottle of tonic water before the bottle was removed from the stream of commerce to the home that was burglarized — is not one that the court below was required as a matter of law to accept as reasonable. Neither the evidence nor the reasonable deductions therefrom provides any support for the alternative hypothesis. And where there is no evidence explaining how a defendant’s fingerprint came to be found at the crime scene, espe-daily when it was found on an item that appears to have been moved during the commission of the crime, the finder of fact properly may conclude that the only reasonable explanation for the presence of the fingerprint is that it was impressed when the crime was committed. Rivers v. State, 271 Ga. 115, 116 (1) (516 SE2d 525) (1999). While we do not doubt that the evidence in some other case might support a similar alternative hypothesis and require a different outcome, the lack of evidentiary support for the alternative hypothesis in this case leads us to conclude that the alternative explanation raised by H. A. is no more than a “mere possibility” and that its rejection by the trier of fact is not “unsupportable as a matter of law.” Rolling, 275 Ga. App. at 905; In the Interest of Q. R., 286 Ga. App. 225, 226 (648 SE2d 731) (2007). The evidence adduced below is sufficient to support the adjudication of delinquency.

Judgment affirmed.

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

       H. A. also contends that the juvenile court erred when it admitted a fingerprint card as evidence and when it limited his cross-examination of an expert witness, but neither of these contentions has any merit or warrants much discussion. The fingerprint card was properly authenticated by a police officer who was present when the fingerprint card was made and actually saw H. A.’s fingers pressed upon the card. See Thomas v. State, 166 Ga. App. 559, 560 (305 SE2d 151) (1983) (“[T]he quantum of evidence required sufficiently to identify items of evidence ... as true and accurate representations of what they purport to depict, and thus render them admissible, is a matter left within the discretion of the trial court.”). And although the juvenile court did limit H. A. in his efforts to cross-examine the fingerprint expert about the faulty fingerprint analysis in the Madrid bombing case, it permitted H. A. to cross-examine the expert about the possibility of mistakes in fingerprint analysis, and the expert acknowledged her awareness of other cases in which faulty fingerprint analysis led to misidentifications. We do not think the juvenile court was required to permit in-depth cross-examination on the Madrid bombing case. See Hudson v. State, 137 Ga. App. 439, 440 (224 SE2d 48) (1976) (trial court has discretion “to keep the questioning within reasonable bounds”).

       Moreover, even if the evidence presented at trial offered some support for H. A.’s alternative hypothesis, whether it is a reasonable hypothesis and not a “mere possibility” is for the factfinder to determine, not this Court. In the Interest of Q. P, 286 Ga. App. 225, 226 (648 SE2d 731) (2007); Baxter v. State, 211 Ga. App. 650, 650 (1) (440 SE2d 72) (1994). “This of necessity is so, for we have no legal yardstick by which we can ordinarily determine what in a given case is a reasonable hypothesis, save the opinion of the [finder of fact].” Harris v. State, 236 Ga. 242, 244 (1) (223 SE2d 643) (1976). We will only reverse the decision of the finder of fact regarding the reasonableness of an alternative hypothesis if “there appears a hypothesis . . . pointing to the innocence of the accused, and which tested by all human experience is a reasonable one, [so that we] may declare it [reasonable] as a matter of law.” Id. at 245 (1).

       We are aware that courts in some other jurisdictions require, where a fingerprint is left on a movable object, proof that the object was inaccessible to the defendant during the time it was in the stream of commerce. See Washington v. Bridge, 1998 Wash. App. LEXIS 1169 (1998); see also Mikes v. Borg, 947 F2d 353, 357-358 (9th Cir. 1991); United States v. Corso, 439 F2d 956, 957 (4th Cir. 1971); United States v. Jones, 433 F2d 1107, 1109, n. 10 (DC Cir. 1970). H. A. points to no case, and we can find none, in which this standard was applied in Georgia. Whatever the merits of this standard, we think Leonard and White compel us to affirm the adjudication in this case.