author: BARNES, Presiding Judge.

text:
    A13A2425.
    ANANABA v. THE STATE.
    (755 SE2d 225)
   BARNES, Presiding Judge.

A jury found Chikezie Solomon Ananaba guilty of theft by receiving stolen property and possession of a vehicle with an altered Vehicle Identification Number (VIN). He argues on appeal that the trial court erred in denying his motion for new trial because the State’s reasons for striking three African-American venire members from the jury were not racially neutral and thus in violation of Batson v. Kentucky, 476 U. S. 79 (106 SCt 1712, 90 LE2d 69) (1986). He also argues that the trial court should have granted his motion for new trial because of a discovery violation. For the reasons that follow, we affirm.

We view the evidence on appeal in the light most favorable to the verdict. Ramey v. State, 239 Ga. App. 620 (1) (521 SE2d 663) (1999). So viewed, the evidence at trial showed that a sergeant with the DeKalb County Police Department was investigating a large-scale investigation of “cloned” vehicles in 2009 and 2010. A cloned car is a stolen car that appears to be legal because its two public VINs — on the dash next to the windshield and on the driver’s door pillar •— have been covered with the VIN of a car that is not stolen. In other words, someone creates stickers copying the VIN of a car registered elsewhere and pastes them over the visible VINs of a stolen car. The stolen car is then registered with the new VIN. Areport on the history of the VIN would bring up two cars, and manufacturers never assign a VIN to more than one car. Manufacturers also place the VIN in a “confidential” location which can be ascertained by law enforcement, and newer cars embed the VIN in their computer systems.

The sergeant uncovered four cloned vehicles in 2009, and noticed that they had all been registered in Madison County, Alabama, by one clerk. In 2010 the sergeant obtained a copy of all the vehicle registrations done by that particular clerk that year, noted commonalities in some of the addresses used, and devised a list of cars he thought had been cloned. He then queried a database of DeKalb County automobile accident reports for tags that had been registered in Madison County. One of those cars was a Mercedes Benz CLS 550 registered to Ananaba, and after checking another database provided by insurance companies, the sergeant saw that the car had been in an accident and an insurance claim had been made. Through an insurance agent, the sergeant located the car at a repair shop in Douglas County, where he met a Douglas County investigator. The law enforcement officers identified the car through its confidential VIN as one that hadbeen stolen from North Carolina, and arrested Ananaba. After being read his Miranda rights, Ananaba told the officers that he made arrangements at the Lucky Lounge nightclub with someone named “Kadafi” to buy the car for $20,000 cash. He paid the first $10,000 to someone named “Bishop” and the second $10,000 to a man who brought the car to the club, whose name he did not know. He did not have contact information for any of the men involved in the sale. Ananaba told the officers that Kadafi arranged for the car to be registered in Alabama because the ad valorem taxes were cheaper. A DeKalb County police sergeant testified that Ananaba had insurance on his cousin’s Escalade, which also turned out to be a cloned vehicle.

A sales manager for a Mercedes Benz dealership in North Carolina testified that the CLS 550 had been stolen from the dealership in September 2009, where it was on sale for $45,000. Two men took the car for a test drive and returned it, and the next morning the car was gone. A senior staff appraiser for the dealership’s insurer testified that the insurer paid the dealer $35,240 for the car’s loss. After the car was recovered, the insurer sold it for its salvage value of $16,865, leaving a total loss to the insurer of $18,375.

1. Ananaba contends that, in violation of Batson, 476 U. S. 79, the manner in which the State exercised peremptory challenges against African-American venire members gave rise to an inference of racial discrimination that was not successfully rebutted by the State. “We review the trial court’s denial of the Batson motion under a clearly erroneous standard.” Johnson v. State, 266 Ga. 775, 777 (4) (470 SE2d 637) (1996).

Under Batson, the opponent of a peremptory challenge must make a prima facie showing of racial discrimination. The burden then shifts to the State to offer a race-neutral reason for the strike. Finally, the trial court must determine if the opponent of the strike has proven discriminatory intent. The trial court’s ultimate finding in this regard is entitled to great deference on appeal.

(Citations omitted.) O’Connell v. State, 294 Ga. 379, 380 (2) (754 SE2d 29) (2014). “The first step is not particularly onerous; it requires only evidence sufficient for the trial judge to draw an inference of discrimination.” Stacey v. State, 292 Ga. 838, 841 (3) (741 SE2d 881) (2013).

The trial transcript does not include the voir dire itself, but only the Batson objection, response, and ruling. Ananaba argued that of the seven strikes the State used, three of them were used to strike African-Americans, which he contended was a disproportionate number considering that there were only eight African-Americans on the venire panel. The record does not establish how many venire members were on the panel. Ananaba contended that, because he was also African-American, he had presented a prima facie case of discrimination and the burden should shift to the State to provide a race-neutral explanation for the strikes. The State noted that it had not used all of its nine peremptory strikes and that two African-Americans were seated on the jury.

The trial court found that Ananaba did not make out a prima facie case of discrimination, but allowed the State to articulate its reasons for striking the three African-Americans anyway. The State responded that one venire member said that she had had a bad experience with a law enforcement officer after she had been in a car accident, and also had child care issues that afternoon. The second venire member also had had a “very bad experience” with law enforcement officers who had pulled him over when he was 20, and also had never registered a car. Finally, the third venire member had never taken a car for emissions testing, and also commented that she felt she had been stereotyped in the past by police officers, who she believed often stereotype people based on race. The State continued, ‘Tour Honor, this is a case in which all of our officers are Caucasian, and I am extremely worried that that bias would carry over into the trial.”

Ananaba responded that other venire members who said they had never registered a car or handled the emissions testing were not struck by the State, and that the common thread among the three African-American venire members the State struck was that they perceived having had problems with law enforcement because of their race. He argued that striking them because they said they had problems with law enforcement due to their race is not a race-neutral reason. The trial court found that the State gave adequate reasons to strike the jurors.

Assuming without deciding that Ananaba made the required prima facie showing of racial discrimination, the trial court’s ruling was not clearly erroneous. Ananaba described only one of the three African-American venire members struck by the State as having articulated her belief that she had had problems with law enforcement due to her race. The other two simply said they had had bad experiences with law enforcement. “A venire member’s prior negative experience with law enforcement officers is a race-neutral reason supporting the exercise of a peremptory challenge.” Guzman v. State, 287 Ga. 759, 762 (2) (700 SE2d 340) (2010). Further, “[t]he State may reasonably base its use of a peremptory strike upon a prospective juror’s apparent belief that, in general, law enforcement officers are racially motivated.” Quillian v. State, 279 Ga. 698, 701 (3) (620 SE2d 376) (2005).

2. Ananaba contends that the trial court erred in denying his motion for a new trial because of the prosecution’s failure to disclose the existence of certain documents. When the Douglas County investigator testified that he found an Alabama registration card in the Mercedes, Ananaba objected because the State did not provide him with photocopies of the registration or VIN sticker, which were not listed among the items seized from the car. The State responded that it had noted on the front of the discovery packet it sent Ananaba that “all physical evidence can be viewed by appointment,” but Ananaba had never contacted the State to view any of it. The trial court overruled the objection and after the witness identified it, the registration card was admitted into evidence, as was the Alabama license tag, the fake VIN plate that had been placed over the VIN plate on the dashboard, the sticker from the door pillar, and an insurance card.

OCGA § 17-16-4 (a) (3) (A) generally requires the prosecuting attorney no later than ten days before trial to permit the defendant to inspect and copy any tangible objects in the possession, custody, or control of the State that it plans to use as evidence or that belong to the defendant. Trial began on February 29, 2012, and the State’s disclosure certificate, which was filed and served on Ananaba on February 13, 2012, listed numerous attached documents. It then said: “Items available for inspection by appointment: [X] Physical Evidence,” followed by this notice in bold capital letters: “PLEASE CONTACT ME IMMEDIATELY SO THAT WE MAY ARRANGE A TIME FOR YOU TO INSPECT AND COPY OR PHOTOGRAPH THESE ITEMS.”

Ananaba does not dispute having received the discovery packet with the notice quoted above. Rather, he argues that the investigator never made a report about having removed these items from the car, that he was “not aware that these items had been seized” from his car, and that therefore he had no opportunity to file a motion to suppress them. Ananaba has not shown that he might have succeeded with a motion to suppress, and we find no error in the trial court’s overruling his objection to the admission of this physical evidence. “The plain language of the statute does not require the State to take the initiative and ‘furnish’the defense with copies of [physical evidence].” McSears v. State, 226 Ga. App. 90, 91 (1) (485 SE2d 589) (1997). The State fulfilled its obligation by making the evidence available to the defense to inspect and copy. Id.

Judgment affirmed.

Miller and Ray, JJ., concur.

Decided February 26, 2014.

Miller & Hightower, Michael J. Miller, James M. Allison, Jr., for appellant.

David McDade, District Attorney, Rachel D. Ackley, Assistant District Attorney, for appellee.


source: Caselaw Access Project

author: Ray, Judge.

license: Public Domain

text:
    A13A1683.
    DALENBERG v. DALENBERG.
    (755 SE2d 228)
   Ray, Judge.

Phillip Dalenberg filed an application for discretionary review of an order awarding attorney fees pursuant to OCGA §§ 19-13-4 and 9-15-14 to his ex-wife, Jennifer Dalenberg, in his action to dismiss or modify a family violence 12-month protective order. We granted Mr. Dalenberg’s application for discretionary appeal, and this timely appeal ensued. For the reasons that follow, we reverse.

The relevant facts are as follows. Mr. Dalenberg had been a White County sheriff’s deputy until his employment was terminated on or about July 22, 2011. Following his termination, Mr. Dalenberg retained his P.O.S.T. certification pending a review by the Georgia Peace Officer Standards and Training Council.

On October 18, 2011, Mr. Dalenberg andMs. Dalenberg obtained a divorce, and approximately two weeks later, Ms. Dalenberg filed a family violence petition and obtained an ex parte protective order. On November 21, 2011, after an evidentiary hearing, the trial court entered a 12-month protective order, concluding that Mr. Dalenberg had violated the Family Violence Act. Under the terms of the protective order, Mr. Dalenberg was prohibited from possessing any firearms during this 12-month period.

Approximately six months later, on April 23, 2012, Mr. Dalenberg filed a motion to dismiss or, in the alternative, to modify the 12-month protective order on the grounds that the no-firearms provision had created a substantial hardship on his ability to obtain other employment in law enforcement and security-related fields. Ms. Dalenberg opposed the motion, arguing that a protective order is not subject to modification by a respondent under OCGA § 19-13-4(c) and that Mr. Dalenberg’s motion was barred by res judicata. She also moved to convert the 12-month protective order to a permanent protective order.

After the filing of Mr. Dalenberg’s motion, the Georgia Peace Officer Standards and Training Council notified Mr. Dalenberg, in a letter dated June 6, 2012, that his P.O.S.T. certification would be revoked. The notice further advised Mr. Dalenberg of his right to appeal the decision within 30 days. There is no evidence in the record as to when Mr. Dalenberg received this notice.

On June 7, 2012, the trial court held a brief hearing on the parties’ motions concerning the future status of the 12-month protective order. After counsel presented their preliminary arguments, the trial court stated its concerns and shared its inclinations regarding the parties’ respective positions. After a brief conference between counsel, the parties announced that they were dismissing their respective motions, and the hearing concluded without the presentation of any evidence and without any ruling by the trial court. The trial court subsequently executed a mutual consent order, wherein the parties dismissed their respective motions. The parties further agreed that Ms. Dalenberg could later file a motion for attorney fees and that any such motion would be determined on briefs without the necessity of a hearing.

On August 8, 2012, the Georgia Peace Officer Standards and Training Council executed a consent order which withheld the revocation of Mr. Dalenberg’s P.O.S.T. certification and imposed the lesser sanction of a probationary period, allowing Mr. Dalenberg the opportunity to keep his P.O.S.T. certification.

On August 31, 2012, Ms. Dalenberg filed a motion for attorney fees pursuant to OCGA §§ 19-13-4 (a) (10) and 9-15-14 (a) and (b), contending that there was a complete absence of any justiciable issue of law or fact with regard to Mr. Dalenberg’s motion, and that it lacked substantial justification and was interposed for the purposes of harassment. The trial court agreed and awarded Ms. Dalenberg attorney fees in the amount of $6,172.77.

1. Mr. Dalenberg contends that the trial court erred in awarding attorney fees under OCGA § 9-15-14 (a) and (b). We agree.

(a) Under OCGA § 9-15-14 (a), the trial court shall award attorney fees when a party asserts a claim with such a complete absence of any justiciable issue of law or fact that the party could not reasonably believe that the court would accept it. On appeal, such an award is subject to the “any evidence” standard of review. Doster v. Bates, 266 Ga. App. 194, 195-196 (1) (596 SE2d 699) (2004). In applying this standard, “we must determine whether the claim asserted below either had some factual merit or presented a justiciable issue of law.” (Punctuation and footnote omitted.) Id. at 196 (1).

Here, the record shows that Mr. Dalenberg had a factual basis for filing his motion. Although he argued, as an initial matter, that the protective order should not have been entered, the main thrust of his argument was based on a change in circumstances since the entry of the order. Specifically, Mr. Dalenberg contended that he had abided by the terms of the protective order, that the purpose of the protective order had been accomplished, that there was no longer any threat of family violence, and that the restrictions in the protective order had created an undue burden on his ability to obtain available employment as a law enforcement or security officer. No evidence was presented to the trial court to refute any of these contentions.

Mr. Dalenberg also had a legal basis for the filing of his motion. A family violence protective order is a type of continuing judgment that is subject to future modification by the restrained party based on a change in circumstances. These circumstances may include, inter alia, the present nature of the relationship between the parties, the restrained party’s history of compliance with the protective order, the history of violence between the parties before and after the issuance of the protective order, and any undue hardships suffered by the restrained party as a result of the protective order. See Mandt v. Lovell, 293 Ga. 807, 810-811 (750 SE2d 134) (2013).

We find that the trial court erred in finding that the Mr. Dalenberg’s motion lacked any justiciable issue of law or fact. Accordingly, the award of attorney fees pursuant to OCGA § 9-15-14 (a) cannot stand.

(b)UnderOCGA § 9-15- 14(b), thecourt may also award attorney fees if it finds that a party brought an action that “lacked substantial justification” or “was interposed for delay or harassment.” We review a trial court’s findings on such matters under an “abuse of discretion” standard. (Citation omitted.) Murray v. DeKalb Farmers Market, 305 Ga. App. 523, 525 (2) (699 SE2d 842) (2010).

The trial court found that Mr. Dalenberg’s motion lacked substantial justification and was interposed for the purposes of harassment, basing this finding on the following conclusions: that Mr. Dalenberg had no legal right to petition the court for a modification of a protective order under OCGA § 19-13-1 et seq.; that Mr. Dalenberg was attempting to re-litigate the protective order; that res judicata precluded Mr. Dalenberg from presenting additional evidence regarding the parties’ history of violence; and that Mr. Dalenberg misrepresented his ability to return to law enforcement because he knew that his P.O.S.T. certification would likely be revoked as a result of the prior termination of his employment as a law enforcement officer. We find that the trial court’s legal conclusions are incorrect and that its factual conclusions are not supported by the record.

As noted in Division 1 (a), Mr. Dalenberg had the legal right to petition the trial court for a modification of the protective order based on the alleged change in circumstances. See Mandt, supra. Furthermore, on a motion for modification of a protective order, one of the circumstances that the trial court may consider is the history of violence between the parties before the issuance of the order. Id. Therefore, the trial court’s conclusions that Mr. Dalenberg had no legal right to file his motion and that he was precluded from presenting evidence regarding the parties’ history of violence have no basis in law.

The trial court’s conclusion that Mr. Dalenberg pursued his motion “in a clear attempt to re-litigate” the protective order is not supported by the record. Mr. Dalenberg’s motion to dismiss or modify the protective order was predominately based on a change in circumstances which, arguably, made the terms of the protective order unjust. Moreover, there was no evidence presented to the trial court to refute those allegations.

Lastly, there is no evidentiary basis for the trial court’s conclusion that Mr. Dalenberg “knew” that his P.O.S.T. certification would likely be revoked as a result of the prior termination of his employment as a law enforcement officer or that he had misrepresented his ability to return to law enforcement. The record shows that a law enforcement officer’s termination of employment does not always result in the revocation of his or her P.O.S.T. certification, as Mr. Dalenberg was ultimately allowed to retain his P.O.S.T. certification despite the loss of his job. Moreover, we note that the trial court was aware of this fact prior to its ruling on the motion for attorney fees.

Accordingly, we find that the trial court erred in awarding attorney fees pursuant to OCGA § 9-15-14 (b).

2. Mr. Dalenberg also contends that the trial court’s award of attorney fees pursuant to OCGA § 19-13-4 (a) (10) was not warranted under the circumstances of this case. We agree.

Although the trial court did not specify the basis for its award under this Code section, it appears that the trial court found that the Code section was applicable because Mr. Dalenberg’s motion involved a prior family violence protective order. We have held that OCGA § 19-13-4 (a) (10) permits a trial court, in addressing a family violence petition, to award costs and fees to either party in furtherance of the goal of “bring[ing] about a cessation of acts of family violence.” (Punctuation omitted.) Suarez v. Halbert, 246 Ga. App. 822, 824-825 (1) (543 SE2d 733) (2000). In the instant case, we fail to see how an award of fees under this Code section would serve that goal. Therefore, we find that the trial court erred in awarding attorney fees pursuant to OCGA § 19-13-4 (a) (10).

3. Based on our holding in Divisions 1 and 2 above, we need not address Mr. Dalenberg’s challenge as to the amount of attorney fees that were awarded by the trial court.

Judgment reversed.

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

Decided February 27, 2014.

Stewart, Melvin & Frost, Amanda H. Yenerall, Nancy L. Richardson, for appellant.

Coleman, Chambers & Rogers, J. Cale Rogers, Candace M. Williams, for appellee.


author: McMillian, Judge.

text:
    A13A1857.
    SELLERS v. THE STATE.
    (755 SE2d 232)
   McMillian, Judge.

Vernon Sellers was convicted by a jury of kidnapping with bodily injury, rape, aggravated sexual battery, aggravated assault and burglary. He appeals, contending that the evidence was insufficient to establish that he was the perpetrator of the crimes and, alternatively, that the trial court should have granted his motion for new trial because the verdict was contrary to the weight of the evidence establishing his identity. See OCGA § 5-5-20. Further, he argues that the evidence was insufficient to establish the asportation element of his kidnapping conviction. As more fully set forth below, we now reverse his conviction for kidnapping with bodily injury and affirm his convictions for the remaining offenses.

1. (a) We first consider the sufficiency of the evidence to establish Sellers’s identity as the perpetrator of the crimes.

In doing so, we apply the familiar standard of Jackson v. Virginia, 443 U.S. 307 (99 SCt 2781, 61 LE2d 560) (1979), asking whether any rational trier of fact could find beyond a reasonable doubt from the evidence adduced at trial that [Sellers] is guilty of the crimes of which he was convicted. See 443 U.S. at 319 (III) (B). As to the legal sufficiency of the evidence, we view the evidence in the light most favorable to the verdict, and we put aside any questions about conflicting evidence, the credibility of witnesses, or the weight of the evidence, leaving the resolution of such things to the discretion of the trier of fact. See Hayes v. State, 292 Ga. 506, 506 (739 SE2d 313) (2013).

White v. State, 293 Ga. 523, 523 (1) (753 SE2d 115) (2013).

So viewed, the evidence showed that the victim of the crimes was a 69-year-old female who lived alone. The victim recently had been hospitalized, was in poor health, and was dependent on oxygen to help her breathe. According to her testimony at trial and her recorded interview with police, which was played for the jury, the victim was in her bedroom on the night of March 3,2005, watching a DVD when she heard dogs barking and a noise outside a window in the adjacent bedroom. She knew the window in that bedroom did not lock and walked to the bedroom to investigate. She did not see anyone outside the house or in the bedroom, but she sensed someone was there, and then realized that a man wearing a beige mask was standing in the bathroom. The victim described the intruder as a black male, around six feet in height, wearing denim blue jeans, a lightweight dark jacket, and dark colored athletic shoes with white stripes on the sides.

The man told the victim to go back into the other bedroom and asked her to tell him her name, which she did. He pushed her into her bedroom, turned off the DVD, which was the only source of light in the room, and then pushed her down onto the bed and taped her eyes and mouth with duct tape. He told the victim to turn over and crossed her wrists behind her back and taped them together. Afterward, the perpetrator pulled off the victim’s underwear, tore off her gown, put his finger into her vagina, put his mouth on her breasts, and then raped her.

Although her eyes were still taped, the victim said she was partially able to see her attacker by holding her head a certain way and looking under the tape. Thus, she testified that after he raped her, the perpetrator got up and walked to the hallway bathroom located next to the victim’s bedroom. He returned to the bedroom with a washcloth, washed the inside of the victim’s vagina and her breast area, and then turned her over and washed her buttocks. He went back into the bathroom, came back with the washcloth, and washed the victim again. He then made the victim stand, took the linens off the bed, and stuffed them into a light-colored bag. He also cleaned a portion of the carpet located beside the bed.

After he finished cleaning up, the perpetrator placed the victim, who was still bound, back on the bed and walked out of the room with the linens. He subsequently reentered the room, told the victim to shut up and placed a knife on each side of the victim’s neck. He then walked out of the room again.

When he did not return after a while, the victim called out to see if he would answer her. When she did not get an answer, she got up from the bed and went into the living room, where she turned on a light. She tried to hold the phone but dropped it and then tried to cut the tape off her hands but could not do that either. She checked the door to the carport and noticed it was unlocked and locked it back. After about an hour, the victim was able to remove some of the tape from her hands and to call her son and the police.

A Houston County emergency call dispatcher testified she received a 911 call from the victim at about 1:38 a.m. on March 3, 2005. The victim, who was upset and crying, said she had been raped. She told the dispatcher that the perpetrator had also held a knife to her throat, that he did not wear gloves, and that he had cleaned up after the attack. She described him as a tall black man and said she did not think it was someone she knew.

Jeff Herb of the Warner Robins Police Department responded to the call and went to the victim’s home. He testified that the victim had duct tape around one hand, bruising around her wrist, and blood on her hand. He said the victim was very upset and told him she had been raped, as well as other details about the attack. The victim described her attacker as being a black male, and, based on a comparison with the officer’s height, between 6' 3" and 6' 5" tall. When asked his weight, she turned to her son, who was also present by that time, and said that he was about “Vernon’s size,” referring to the defendant, who was married to her granddaughter Melissa Sellers. She also told Officer Herb her attacker was wearing a beige ski mask that concealed his entire face except for his eyes; denim colored blue jeans; a dark, lightweight jacket; and black athletic shoes with a white stripe on the side. On cross-examination, Officer Herb said that it did not seem like the victim knew her attacker.

After she talked to police, the victim was transported to the hospital where she was examined by a nurse specially trained to conduct sexual assault examinations. The nurse testified that the victim had extensive abrasions and bruising all over her body, as well as injuries to her vagina and genital area that the nurse said were consistent with what the victim told her about the assault and rape, including that the perpetrator had washed the inside of the victim’s vagina with a washcloth. Pictures of the victim’s injuries were also introduced, over objection, into evidence at trial.

The victim’s son also testified at trial. He said he went to the hospital with his mother, and, upon cross-examination by the defense, testified that his mother told him while they were at the hospital that the person who attacked her sounded like “Vernon.” However, he said that he was not sure what his mother meant by the comment and explained that she did not say that Sellers was the perpetrator.

Multiple forensic experts also testified at trial. Lieutenant John Miller Lanneau, who was qualified as an expert in latent print examination and comparison and in crime scene investigation, testified that Sellers’s fingerprint was found on a bottle of Lysol cleaner that was found sitting on the bathroom counter, which the victim said had been on the top bathroom shelf when she went to bed that night. Further, various experts testified that identifiable fingerprints were found on six pieces of the duct tape used to bind the victim, and one of those prints was a match to one of Sellers’s fingerprints. An expert in trace evidence, who examined certain shoeprints that were found in the victim’s kitchen, testified that “possibly” some of those prints had been left by two different pairs of shoes that police had obtained from Sellers; one pair of those shoes was black with a white stripe on the side. The swabs obtained during the examination of the victim were also tested but did not reveal the presence of any semen.

Also pertinent here, the evidence showed that Sellers, who, as stated above, was married to the victim’s granddaughter Melissa, would often accompany his wife on her visits to her grandmother, but he usually waited in the car instead of going inside. The victim testified that on occasion Sellers did come inside, but primarily just to use the bathroom, and that she could remember that happening only twice in the past. Further, the victim testified that Melissa and other family members knew about the window in the bedroom that did not lock, but she did not know if Sellers knew the lock was missing.

Police interviewed Sellers on several occasions, and an officer testified about one of the interviews; the other was recorded and played for the jury. Sellers told police that he left his house around 11:30 p.m. on the night of the crimes because he and Melissa had been arguing, and he wanted to ride around and listen to music to calm down. He said that he drove around east Macon, but he did not talk to anyone who could verify his whereabouts during that time. Sellers could not say precisely what time he returned home but said it was probably around 12:30 to 1:00 a.m. He told police that he sometimes accompanied his wife when she visited the victim’s house, but he did not go inside the house often, although recently he had been going inside more often because the victim had been ill. Sellers admitted that he owned a beige knit cap and told police that he was wearing a blue and gray Chaps sweater and blue jeans when he left the house that night.

Melissa Sellers testified at trial as a defense witness. Melissa said that Sellers and she had argued the night of the crimes, he left the house around 11:00 p.m., and he returned home before 2:00 a.m., although she was not certain of the exact time he returned. She testified that Sellers was wearing a white t-shirt with a blue and gray sweater, dark jeans and Jordan athletic shoes when he left that night. She also said that Sellers owned a beige knit hat, but she was not able to find the hat or the sweater when the police requested it and the police did not find it when they searched the house where Sellers and she lived.

Melissa testified that just prior to the incident she had been spending a great deal of time with her grandmother, who had been sick. On those occasions, Sellers had been coming inside the house more than was his previous custom because they had a newborn, and he was helping her bring the children and their belongings into the house. She also testified that Sellers and she had borrowed duct tape from her grandmother in the latter part of2004, but she had returned the duct tape prior to the incident. The victim also testified that Melissa and Sellers had borrowed duct tape in the past, and Melissa told her after the incident that she had returned the tape. However, the victim said that she could not remember if the tape had been returned, and she did not know if she had duct tape in her home the night of the incident.

“Circumstantial evidence of identity may be sufficient to enable a rational trier of fact to find a defendant guilty beyond a reasonable doubt.” Onumah v. State, 313 Ga. App. 269, 272 (3) (721 SE2d 115) (2011). E.g., Mays v. State, 198 Ga. App. 402, 403 (3) (401 SE2d 597) (1991). Although Sellers presented evidence discounting the State’s forensic evidence, such as the fact that he had been in the victim’s home recently and that his fingerprints could have been placed on the tape when he borrowed it, the jurors heard this and the other evidence introduced at trial and were charged with resolving the conflicts in the evidence, determining the credibility of the witnesses, and weighing the evidence presented. Having considered the evidence recited above as well as other evidence presented at trial under the standard appropriate for our review, we find it sufficient beyond a reasonable doubt to prove that Sellers was the perpetrator of the crimes charged. Jackson, 443 U.S. 307.

(b) Sellers also argues that the trial judge failed to fulfill his duty to act as a thirteenth juror and should have set aside the verdict as being contrary to the weight of the evidence. See OCGA § 5-5-20.

Sellers specifically asserted in his motion for new trial that the verdict and sentence were contrary to the evidence, decidedly and strongly against the weight of the evidence and contrary to the law and principles of justice and equity. But at the hearing on his motion for new trial, Sellers’s counsel made only a passing reference to the general grounds argument in the motion and went on to argue the sufficiency of the evidence, specifically requesting that the trial court rule on that basis. Nevertheless, in the order denying the motion for new trial, the trial court acknowledged Sellers’s “claims that the verdict was contrary to — and against the weight of — the evidence” and found that “while the case against Defendant was indeed largely circumstantial, the proven facts were so numerous and compelling that the Court finds the evidence to have justified the verdict.” This specific reference to Sellers’s general grounds argument, coupled with the trial court’s statements concerning the nature and quantum of the evidence, establish that the trial court did, in fact, consider whether the verdict was contrary to or against the weight of the evidence under the proper legal standard, and contrary to Sellers’s contentions on appeal, properly fulfilled his role to sit as the thirteenth juror. Accordingly, “this is not a case where it is necessary for us to remand to the trial court for consideration of this issue under the proper standard.” Neverson v. State, 324 Ga. App. 322, 322 (1), n. 2 (750 SE2d 397) (2013). Tolbert v. State, 313 Ga. App. 46, 54 (2) (720 SE2d 244) (2011). Cf. White, 293 Ga. at 524-525 (2); Choisnet v. State, 292 Ga. 860, 862 (742 SE2d 476) (2013); Alvelo v. State, 288 Ga. 437, 439 (1) (704 SE2d 787) (2011).

2. Sellers also argues that his conviction for kidnapping with bodily injury must be reversed because the evidence of asportation was insufficient under the test adopted by our Supreme Court in Garza v. State, 284 Ga. 696 (670 SE2d 73) (2008). We agree.

Garza sets out the following four factors that should be considered in determining whether the asportation element of kidnapping has been shown:

(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.

Garza, 284 Ga. at 702 (1), citing Government of Virgin Islands v. Berry, 604 F2d 221, 227 (IV), 16 V.I. 614 (3rd Cir. 1979).

In analyzing these factors, it is not necessary that every one be satisfied in the State’s favor in order to find asportation. [Cits.] Rather, the heart of Garza’s analysis is “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 attendant to some other crime.” [Garza, 284 Ga. at 702 (1).]

(Punctuation omitted.) Arnold v. State, 324 Ga. App. 58, 62 (2) (749 SE2d 245) (2013). See also Hammond v. State, 289 Ga. 142, 144 (2) (710 SE2d 124) (2011); Henderson v. State, 285 Ga. 240, 244-245 (5) (675 SE2d 28) (2009); Tate v. State, 287 Ga. 364, 365-366 (1) (a) (695 SE2d 591) (2010).

The evidence pertinent to this issue shows that Sellers immediately ordered the victim to go back to her bedroom and pushed her a few steps in that direction. Both bedrooms were located off a short hallway at the back of the house and were closely situated. Thus, there is no question here that the distance the victim moved was short and the duration of the movement was brief. Further, once the victim was in her bedroom, Sellers immediately pushed her down on the bed, bound her, and began to sexually assault her. Because the evidence shows that the other bedroom was for the most part unfurnished, it appears that Sellers may have moved the victim back to this bedroom so that he could place her on the bed for the purpose of binding and raping her. Accordingly, while the movement of the victim was not a necessary part of the sexual assault crimes, “it allowed [Sellers] to exercise control over [the victim] during his conduct of the rape and was, therefore, an inherent part of the rape.” Goolsby v. State, 311 Ga. App. 650, 654(1) (b) (718 SE2d 9) (2011). Also,because the victim was in the house alone and both bedrooms were located in the back of the house, the movement from one bedroom to another did not further isolate the victim or decrease the potential for rescue, thereby posing no significant danger to the victim independent of the danger posed by the sexual assault and rape. Id. Accordingly, Sellers’s conviction for kidnapping with bodily injury must be reversed under the standard set forth in Garza. E.g., Goolsby, 311 Ga. App. at 653 (1) (b); Moore v. State, 301 Ga. App. 220, 228-229 (7) (b) (687 SE2d 259) (2009), and cites; Escoffier v. State, 303 Ga. App. 317, 318 (693 SE2d 569) (2010); compare Arnold, 324 Ga. App. at 62 (2); Tolbert, 313 Ga. App. at 55 (3); Peralta v. State, 312 Ga. App. 414, 416 (1) (718 SE2d 326) (2011).

Judgment affirmed in part and reversed in part.

Andrews, P. J., and Dillard, J., concur.

Decided February 27, 2014

David G. Daniell, for appellant.

George H. Hartwig III, District Attorney, Marie R. Banks, Assistant District Attorney, for appellee.

       As both appellate courts have explained, “ ‘the sufficiency of the evidence standard and the discretionary standard given to the trial court pursuant to [OCGA § 5-5-20 and] OCGA § 5-5-21 address two distinct legal issues, illustrated by the fact that the double jeopardy clause applies when a court finds the evidence insufficient, but not when a court holds that the verdict was against the weight of the evidence.’ Walker [v. State, 292 Ga. 262, 264, n. 2 (737 SE2d 311) (2013)].” Neverson v. State, 324 Ga. App. 322, 322 (1), n. 3 (750 SE2d 397) (2013).

       The victim’s grandson, who lived with her until about two months before the incident, had removed the lock while he lived there, and it had never been replaced.

       Testimony was presented indicating that this appeared to be the “master” bedroom, although it was not the one the victim used, and that there was a bathroom inside the bedroom. There was also another bathroom in the hallway right outside this bedroom and the victim’s bedroom, and the evidence presented at trial was somewhat unclear concerning whether the victim encountered the perpetrator in the “master” bathroom or the “hallway” bathroom.

       The victim’s neighbor testified that on the night of the crimes he heard dogs harking at about 12:00 a.m. to 12:30 a.m., and when he went outside to investigate he saw a black man at the corner of his fence holding two white garbage bags. The neighbor walked around the corner of the bushes in his yard, and the man turned and walked the other way.

       Because the victim was on Coumadin, which is a blood thinning drug, the bruising from the attack showed up more quickly than would normally be the case.

       The victim found the carport door unlocked after the attack and testified that caused her to believe that the perpetrator exited that way because she was sure it had been locked when she went to bed that night. Further, the evidence showed the perpetrator would have traversed the kitchen to leave through that door.

       The shoes were shown to the jury, and although they are not in the appellate record, during closing argument, the prosecuting attorney identified the shoes as being black with a white stripe, and Sellers’s attorney referred to “those black shoes.”

       The victim told police in her recorded interview that she thought the perpetrator had on a condom.

       One of the officers testified that it took him about 11 minutes to drive from Sellers’s house to the victim’s house.

       This evidence includes Sellers’s cross-examination of the victim, including his questioning of the victim about her statement during her interview with police that she did not believe Sellers was her attacker. However, she explained that she made that statement because she did not believe he would do anything like that, and she did not want to tell her granddaughter it was him unless she was sure. Further, she testified that her opinion had changed based on the evidence which was admitted at trial and other inadmissible evidence, as explained in a stipulation the trial court read to the jury, which stated that she now believed he could be the perpetrator, although she could not be certain.

       The crimes charged in this case occurred in March 2005, Sellers was tried and convicted in 2006, his motion for new trial, as amended, was denied in April 2013, and his notice of appeal was timely filed within 30 days of the order denying the motion. Garza applies retroactively to cases such as this in which the case was in the pipeline at the time of the decision. Hammond v. State, 289 Ga. 142, 143-144 (1) (710 SE2d 124) (2011); Goolsby v. State, 311 Ga. App. 650, 653 (1) (a) (718 SE2d 9) (2011). Further, although the kidnapping statute, OCGA § 16-5-40, was amended by the legislature to clarify the asportation requirement, the amendment applies only to cases involving crimes committed on or after July 1, 2009. Holder v. State, 319 Ga. App. 239, 241 (1) (a), n. 8 (736 SE2d 449) (2012).

       We note that the law in existence at the time this case was tried required only slight movement of the victim to prove the asportation element of a kidnapping offense, and thus the evidence necessary to assess the Garza factors is not extensive or well developed.

       An officer testified at trial that this bedroom was “for the most part unoccupied by furniture or people,” and a photograph of the room shows just a few pieces of furniture. We reiterate, however, that this evidence is not clear.


text:
    A13A1896.
    JONES v. THE STATE.
    (755 SE2d 238)
   BARNES, Presiding Judge.

Mark Bay Jones pled guilty to one count of theft by deception, OCGA § 16-8-3, after he was indicted in 2011 for taking $2,611.29 from an elderly victim in a roofing scheme. He was sentenced to ten years, with five years to be served in custody. Jones now appeals from the denial of his motion to withdraw his guilty plea and contends that his five-year prison sentence was grossly disproportionate to the crime committed and that his guilty plea was not knowingly entered. Following our review, we affirm.

1. With respect to whether a sentence is “grossly disproportionate,” courts “must begin by comparing the gravity of the offense and the severity of the sentence.” (Citation omitted.) Adams v. State, 288 Ga. 695, 701 (4) (707 SE2d 359) (2011). If this threshold comparison does not create an inference of gross disproportionality, the Eighth Amendment analysis extends no further. Id. “It is the rare case in which a threshold comparison of the crime committed and the sentence imposed leads to an inference of gross disproportionality.” (Punctuation and footnote omitted.) Bragg v. State, 296 Ga. App. 422, 424 (674 SE2d 650) (2009). If the sentence falls within the statutory range of punishment set by the legislature, the presumption is that the sentence does not violate the Eighth Amendment, and the “presumption remains until a defendant sets forth a factual predicate showing that such legislatively authorized punishment was so overly severe or excessive in proportion to the offense as to shock the conscience.” (Citation omitted.) Cuvas v. State, 306 Ga. App. 679, 683 (2) (703 SE2d 116) (2010).

Here, Jones’ sentence is within the statutory limits set by OCGA § 16-8-12, and thus his sentence of ten years, with five years probated, is not so disproportionate as to shock the conscience. We therefore find no merit in this claim of error. See McLeod v. State, 251 Ga. App. 371, 373 (2) (554 SE2d 507) (2001).

2. We also find no merit to Jones’ contention that his guilty plea was not knowingly entered. He contends that, rather than a standard guilty plea, he had attempted to enter a guilty plea pursuant to North Carolina v. Alford, 400 U. S. 25, 37 (91 SCt 160, 27 LE2d 162) (1970) under which “[a]n individual accused of crime may voluntarily, knowingly, and understanding^ consent to the imposition of a prison sentence even if he is unwilling or unable to admit his participation in the acts constituting the crime.” Jones maintains that the trial court was required to “go through the Alford . . . questions” and because it did not his plea was not knowingly entered. We do not agree.

A ruling on a motion to withdraw a guilty plea lies within the sound discretion of the trial court and will not be disturbed absent a manifest abuse of such discretion. When the validity of a guilty plea is challenged, the [S]tate bears the burden of showing affirmatively from the record that the defendant offered his plea knowingly, intelligently, and voluntarily. The State must show that the defendant was cognizant of all of the rights he was waiving and the possible consequences of his plea. After a defendant’s sentence has been pronounced, his guilty plea may be withdrawn only to correct a manifest injustice. The test for manifest injustice will by necessity vary from case to case, but it has been said that withdrawal is necessary to correct a manifest injustice if, for instance, a defendant is denied effective assistance of counsel, or the guilty plea was entered involuntarily or without an understanding of the nature of the charges.

(Citations and punctuation omitted.) Williams v. State, 318 Ga. App. 744, 745 (734 SE2d 745) (2012).

Here, the record clearly demonstrates that at the guilty plea hearing, Jones was informed that he had agreed to enter a “non-negotiated or a blind plea ... [and] [w]hat that means is there are no recommendations or no agreement that the State has made with your attorney to present to the Judge today.” Jones agreed, and it was further explained that “the previous plea agreement that was given to your attorney in your case is not on the table anymore and will not be presented to the Judge.” Jones acknowledged that he understood that as well. Jones further acknowledged that he understood the charges, and that the maximum sentence he could receive was ten years incarceration, that upon his entry of a guilty plea he would be waiving the right to a trial by jury and other attendant rights, and that he had not been forced to plead guilty. Jones further acknowledged that he was pleading freely and voluntarily and stated that he was guilty of the crime charged and that he had deceived the victim.

Decided February 27, 2014.

Matthew W. Carlton, for appellant.

David McDade, District Attorney, Rachel D. Ackley, Assistant District Attorney, for appellee.

Although sentencing documents suggest an Alford plea, the transcript reflects that Jones chose to enter a guilty plea. In any event, pretermitting whether the trial court erred in failing to question Jones to establish if he wanted to enter an Alford plea, the record demonstrates that Jones was cognizant of all of the rights he was waiving and the legal consequences of his plea. See Bell v. State, 294 Ga. 5, 7-8 (1) (749 SE2d 672) (2013) (Bell claimed at the hearing to withdraw his plea that he was innocent and pled guilty because he felt that he did not have any other choice, but even “[ajssuming Bell were correct that he entered an Alford plea, the record shows that he was aware of the evidence against him, the availability of a justification defense, and the maximum and minimum sentences he could receive if convicted at a trial and that he made a decision to avoid the possibility of life without parole by pleading guilty.”). There are no additional requirements under Alford regarding the apprisal of the consequences of a guilty plea. See McKiernan v. State, 288 Ga. 140, 142-143 (2) (702 SE2d 170) (2010) (even when considered under Alford, trial court did not commit a manifest injustice in accepting the guilty plea despite defendant’s contention that the shooting of his wife was an accident). Thus, in these circumstances we discern no manifest injustice demanding the grant of Jones’ motion to withdraw his guilty plea.

Judgment affirmed.

Miller and Ray, JJ., concur.

       Under former OCGA § 16-8-12 a value in excess of $500 constituted a felony and was punishable ‘by imprisonment for not less than one nor more than ten years or, in the discretion of the trial judge.” It was amended in 2012, raising the minimum value of stolen property that would justify a felony sentence to $1,500.01, and providing for a graduated schedule of minimum and maximum sentences, depending on the value of the stolen property. Ga. L. 2012, p. 899, § 3-2.

       “[I]t has long been the law in this state that, in general, a crime is to be construed and punished according to the provisions of the law existing at the time of its commission.” Fleming v. State, 271 Ga. 587, 590 (523 SE2d 315) (1999).


author: McMlLLIAN, Judge.

text:
    A13A2002.
    IN THE INTEREST OF A. J. H., a child.
    (755 SE2d 241)
   McMlLLIAN, Judge.

The mother of A. J. H. appeals the juvenile court’s order finding the child to be deprived. As her sole enumeration of error, the mother asserts that the juvenile court lacked clear and convincing evidence of deprivation. We reverse for the reasons set forth below.

On February 22, 2013, the paternal aunt and uncle of A. J. H. (collectively hereinafter, the “Petitioners”) filed a private deprivation petition asserting that the child, then seven years old, was currently deprived. The petition sought custody of A. J. H. for a period of up to two years, the appointment of a guardian ad litem to represent the child’s interests, and child support from A. J. H.’s parents.

Following a hearing, the juvenile court entered an order on March 19, 2013, finding, inter alia, that the mother had medically neglected the child by failing to administer his prescribed medications properly; the child appeared to have some emotional problems, but the mother failed to seek treatment for the child before the deprivation petition was filed; and the mother’s home, porch and yard were often unclean and/or cluttered to the point of being unsafe for the child, despite the fact that the Department of Family and Children Services (DFACS) had worked with the mother in the past about these issues. Of these factors, the juvenile court “[was] most concerned with the medical neglect of the child’s physical needs, and the neglect of his apparent emotional problems.” Based upon these findings, the juvenile court determined that A. J. H. was deprived, that he was in need of protection, and that remaining in his mother’s home would be contrary to his welfare. The court placed custody of the child with Petitioners for a period of up to two years.

“On appeal from a deprivation order, we view the evidence in the light most favorable to the juvenile court’s judgment to determine whether any rational trier of fact could have found clear and convincing evidence of deprivation.” (Citation omitted.) In the Interest of S. D. H., 287 Ga. App. 684, 684 (652 SE2d 570) (2007). We do not weigh the evidence or determine the credibility of witnesses; instead we defer to the juvenile court’s findings of fact and affirm unless the appellate standard is not met. In the Interest of B. M. B., 241 Ga. App. 609 (527 SE2d 250) (1999).

So viewed, the evidence at the deprivation hearing indicated that the mother has two sons, with two different fathers. DFACS began working with the family in January 2012 based on a report that A. J. H. was not taking his prescribed medications and that the mother had thrown a television remote at him. DFACS initiated a safety plan for the children in March 2012, because A. J. H.’s father, who lived with the mother at the time, was reported to be drinking more, and there had been incidents of domestic violence in the past. A. J. H. went to live with the Petitioners because the paternal aunt, a school teacher, was serving as his safety resource at the time. A. J. H. was returned home to his parents a month later with the aunt’s recommendation. The other son went to live with his father as part of the safety plan, and he has not been back to his mother’s home since.

A. J. H. had been prescribed at least four different medications, including sleeping pills and prescriptions for ADHD and asthma. The aunt testified that when the child stayed with her, the mother often failed to give her any, or enough, of his afternoon and nighttime prescriptions. At the hearing, the mother produced a number of bottles containing A. J. H.’s prescriptions, some of which required daily doses and which, although filled a month or more prior to the hearing, appeared to be almost full. The mother stated, however, that some of the medications were optional and/or the dosages had been reduced.

Approximately one month prior to the hearing, A. J. H. also had been prescribed antibiotic eardrops for what the aunt described as a “severe ear infection.” The problems with A. J. H.’s ears occurred while he was visiting his aunt and uncle, and they took him to the doctor after they were unable to reach the mother. The mother met them at the doctor’s office, and the boy went home with her. At the time of the hearing, however, the bottle of eardrops was still sealed, and the mother said she could not remember whether she gave A. J. H. the eardrops as prescribed because he said that his ears had stopped hurting.

The mother lived in a single-wide mobile home, on which the father paid the mortgage and the insurance, while the mother was responsible for paying the electricity. She admitted that she got behind on her electric bill, and her power had been turned off. The mother’s friend, Sammy, helped her get the power turned back on, and she was attempting to pay off her past due balance at the rate of $300 per month, in addition to her regular $300-$400 monthly power bill.

At the time of the hearing, the mother said that she had four dogs, only one of which, the Chihuahua, lived in the house. She testified that she previously had a Boston Terrier that lived in the house, but he had recently been poisoned. And a Doberman Pinscher had recently been hit on the head and killed. The mother denied that she had dog feces in her house, but admitted that she had chicken droppings on her porch. She acknowledged that the dogs always slept with A. J. H. in the past. Additionally, the Petitioners’ attorney introduced copies of photographs the mother posted on Facebook that the mother admitted showed dogs sleeping with A. J. H. and also showed chickens inside her house.

The mother also posted pictures of A. J. H. in his underwear on Facebook, which she admitted was not “a good thing.” She further acknowledged that she took a picture with her phone of the child posing without his clothes on and showed it to relatives. The mother also took another photograph of her child’s anus and showed it to a DFACS investigator because she was concerned that something might be wrong with him.

The mother said that A. J. H. often would elect not to wear clothes while at her home, and she acknowledged that, approximately six months earlier, he climbed a tree without his clothes and defecated. On another occasion, he stripped down to his underwear and painted himself blue. She also reported to DFACS that A. J. H. had touched an adult woman in an inappropriately sexual manner and introduced into evidence a sexually explicit picture that she said the child had drawn. A. J. H., however, denied that he drew the picture. The mother also acknowledged that the boy wrote obscenities on his car seat. The mother further said that A. J. H. did not want to do his homework. She had tried to work with him herself, and the day before the hearing she had taken him for help with his ADHD and his “attitude and stuff.”

The aunt testified that when she picked up A. J. H. for court-ordered visitation, she often noticed that the mother’s speech was slurred, her eyes were bloodshot and her emotions were “like a roller coaster.” During a recent visit to the mother’s home, the aunt observed that there was trash “everywhere” and feces all over the porch, requiring that she be careful where she stepped. The mother acknowledged that during that visit, approximately two weeks before the hearing, her front porch was covered with animal feces and trash bags, but she said the mess had all been cleaned up. The day before the hearing, the DFACS investigator went to the mother’s home on a scheduled visit, and she testified that it was clean. The chickens had been moved to a pen on the side of the yard, and the porch no longer had chicken droppings, but she acknowledged that the porch had chicken droppings when she made an unannounced visit a few weeks earlier.

The investigator testified that DFACS had referred the mother to an agency for assistance with money management and with the child in March 2012 when it instituted the safety plan, and the mother had been working with the agency for approximately one year. The investigator had no major concerns about the mother’s home or about the child’s well-being in the mother’s home, with the caveat that she would be concerned if the child was not taking his medications. If that were the case, DFACS would open a case to monitor the situation. Before the deprivation hearing, the DFACS caseworker was unaware of the unopened eardrops, the nude photograph of the child the mother showed to relatives, and the incident of the child climbing the tree naked. She said that those instances would give her “definite concerns.”

At the close of the evidence at the hearing, the guardian ad litem stated that she was concerned about the situation, particularly A. J. H.’s inappropriate sexual behavior and refusal to wear clothes. She recommended that the court find the child to be deprived and that the court transfer him to DFACS’s care, and with their approval, to place him with the paternal aunt.

Under Georgia law, a “deprived child” is a child “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.” Former OCGA § 15-11-2 (8) (A). “That definition focuses upon the needs of the child regardless of parental fault. The deprivation petition is brought on behalf of the child and it is the child’s welfare and not who is responsible for the conditions which amount to deprivation that is the issue.” (Citation and punctuation omitted.) In the Interest of D. Q., 307 Ga. App. 121, 124 (704 SE2d 444) (2010). See also In the Interest of J. P., 267 Ga. 492 (480 SE2d 8) (1997). Additionally, the record must contain evidence of “present deprivation, not past or potential future deprivation.” (Citation and punctuation omitted.) In the Interest of R. S. T., 323 Ga. App. 860, 863 (748 SE2d 498) (2013).

After making a finding of deprivation, “[a] juvenile court is authorized under [former] OCGA § 15-11-34 (a) to impose alternative orders of disposition ‘best suited to the protection and physical, mental and moral welfare of the child.’ ” In the Interest of J. P., 267 Ga. at 492. But even a temporary loss of custody is not authorized unless clear and convincing evidence exists that “the deprivation resulted from unfitness on the part of the parent, that is, either intentional or unintentional misconduct resulting in the abuse or neglect of the child or by what is tantamount to physical or mental incapability to care for the child.” (Citation and punctuation omitted.) In the Interest of C. R., 292 Ga. App. 346, 351 (2) (665 SE2d 39) (2008). It follows that “only under compelling circumstances found to exist by clear and convincing proof may a court sever the parent-child custodial relationship.” (Citation and punctuation omitted.) In the Interest of H. S., 285 Ga. App. 839, 841 (648 SE2d 143) (2007).

Here, even construing the evidence in favor of the juvenile court’s factual findings, we conclude that the record lacks clear and convincing evidence to support the court’s conclusion that A. J. H. was deprived within the meaning of former OCGA § 15-11-2 (8) (A). Although the evidence showed that the mother may not have given A. J. H. all of his prescribed medication, she testified that the doctor had told her that some of the medicines were to be taken as needed or the dosages had been reduced. The Petitioners presented no evidence to counter this explanation; nor did they present any evidence that A. J. H. had suffered any ill effects from an inconsistent use of medication. No medical testimony was presented regarding the child’s diagnoses, the purpose of the prescriptions, or the potentially negative impact of failing to administer the medications as prescribed. Further, the record contains no evidence that the child’s behavior was negatively affected by any failure to administer the medication for ADHD or that his asthma had been adversely affected by a failure to properly administer his prescribed medication. Although the evidence showed that the bottle of eardrops was still sealed, the mother testified that the boy’s ears had stopped hurting, and the Petitioners produced no evidence that A. J. H.’s ear problems persisted or worsened without the medication.

Moreover, although evidence was presented showing that the child did not like to wear clothes and that he exhibited unusual behaviors, no one other than the mother testified to witnessing any of these incidents. In fact, the aunt testified that she never had to discipline A. J. H. and that he behaved very well while at her home. And the record contains no evidence that these behaviors were, or even could have been, the result of any mental or emotional problems requiring treatment. Additionally, although the evidence showed that the mother often kept a dirty home, no evidence was presented that A. J. H. ever suffered from the conditions at the mother’s home or from his contact with the dogs and other animals.

Decided February 27, 2014.

Joshua J. Smith, for appellant.

Rodney Q. Quarles, for appellee.

“While we cannot say that [the facts in this case] would never merit a finding of deprivation, under these circumstances, where [the Petitioners have] failed to demonstrate harm to [the child], clear and convincing evidence of deprivation has not been established.” (Citation omitted.) In the Interest of C. L. Z., 283 Ga. App. 247, 249 (641 SE2d 243) (2007) (reversing finding of deprivation where no evidence of harm to child from grandmother’s behavior). See also, e.g., In the Interest of S. M., 321 Ga. App. 827, 831-832 (743 SE2d 497) (2013) (reversing finding of deprivation where no evidence of harm shown to children after mother’s boyfriend drew gun and children believed he had shot her); In the Interest of J. H., 310 Ga. App. 401, 403-404 (713 SE2d 472) (2011) (reversing finding of deprivation where no evidence presented that mother’s dirty home, lack of a great variety of food, and failure to insist toddler wear anything but a diaper in the summer caused the child harm); In the Interest of T. L., 269 Ga. App. 842, 843-846 (2) (605 SE2d 432) (2004) (reversing finding of deprivation because there was no evidence showing how child was negatively affected by “filthy” conditions in home).

Even granting that the evidence was sufficient to raise concerns with regard to the mother and child, the DFACS worker testified that she had no problem with the mother’s home and that DFACS was prepared to continue its work with the family. Although the evidence showed that the mother’s conduct in keeping her home and caring for the child may not have been exemplary, it failed to show by clear and convincing evidence that her conduct has been below the requisite standard such that the courts should intervene and remove the child from her custody. Accordingly, we conclude that the Petitioners failed to establish sufficient evidence of parental unfitness to justify removing A. J. H. from his mother’s home.

Judgment reversed.

Andrews, P. J., and Dillard, J., concur.

       The last confirmed incident of domestic violence occurred in 2001, and although the mother later obtained at least three protective orders against the father, they were dismissed.

       The mother herself took a number of different medications for diabetes, blood pressure, cholesterol, and “nerves.”

       The mother originally stated that she had more eardrops at home, but later testified that she could only get one bottle of eardrops with no refills.

       The juvenile court found that the mother’s friend Sammy was often around the child, even though the mother admitted that she did not know if he had a criminal record. The mother testified that she did not care about this because Sammy was just a friend. Although the mother denied that Sammy lived with her, the aunt testified that he was the mother’s boyfriend and that he lived, with the mother. The record contains no evidence, however, that Sammy had a criminal record.

       The mother, who was on disability, stated that she received about $710 per month and received about $200 in food stamps. On the day of the hearing, on March 5, 2013, the mother had only $20 to last her until she received food stamps on March 16, and she would not receive another disability check until April. The mother said, however, that she had plenty of food and gas to provide for A. J. H.’s needs.

       The aunt testified that the boy appeared to have become upset, and these behaviors began after the father moved out of the house and the mother obtained a temporary protective order against him.


author: MCFADDEN, Judge.

text:
    A13A1982.
    GILLILAND v. THE STATE.
    (755 SE2d 249)
   MCFADDEN, Judge.

Grady Edward Gilliland was convicted of felony shoplifting for taking a cellular phone from a retail cellular phone store. He argues on appeal that the trial court erred in denying his motion for directed verdict and in giving two jury charges to which he failed to object at trial. As detailed below, we find that the evidence was sufficient to support his conviction and that Gilliland has not shown that the jury charges constituted plain error. Accordingly, we affirm.

1. Directed verdict.

Gilliland argues that the trial court erred in denying his motion for directed verdict on the shoplifting offense, because the state did not present evidence that he committed the offense of shoplifting in the manner alleged in the accusation against him. Under OCGA § 16-8-14, a person commits the offense of theft by shoplifting, among other ways,

when such person alone or in concert with another person, with the intent of appropriating merchandise to his or her own use without paying for the same or to deprive the owner of possession thereof or of the value thereof, in whole or in part, . . . [c] onceáis or takes possession of the goods or merchandise of any store or retail establishment.

OCGA § 16-8-14 (a) (1). In the accusation, however, the state accused Gilliland of committing shoplifting by taking possession of the phone, but not of concealing it.

We review the denial of a motion for directed verdict under the same standard as that for reviewing the sufficiency of the evidence to support a conviction. Haney v. State, 261 Ga. App. 136, 137 (1) (581 SE2d 626) (2003). “Under that standard we view the evidence in the light most favorable to the jury’s verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. (citations omitted). In this case, we apply that standard to determine whether the state presented sufficient evidence to show that Gilliland took possession of the phone, as alleged in the accusation.

Viewed in the light most favorable to the jury’s verdict, the evidence showed that on January 8,2011, a display model of a cellular phone disappeared from a retail cellular phone store. Although it was a display, the phone had service and could be used. According to a store sales representative, that model of phone sold at retail for between $450 and $500.

A video surveillance recording that was played to the jury showed a man standing near the phone for several minutes, “working, playing with it, [and] operating it.” Trial witnesses pointed out a place on the recording that depicted the man detaching the phone from the display stand and placing it in his pocket.

The man shown on the surveillance recording had done business with the store earlier that day, and store employees were able to identify him as Gilliland both on the day of the theft and later at trial. The store owner provided the police with Gilliland’s name and contact information, and the investigating detective arranged with Gilliland to meet on the afternoon of January 19, 2011 to discuss “an incident that occurred at the ... store.” The afternoon of January 19, Gilliland called the detective to confirm the meeting. Also that afternoon, another man went to the cellular phone store and spent some time sitting in a chair in the store’s service waiting area. His behavior caught the attention of store employees, and after he left the store, employees discovered the missing phone under the chair where he had been sitting. The store owner testified that the phone had been missing from the store between January 8 and January 19.

Gilliland argues that this evidence was insufficient because it showed only that he concealed the phone, not that he took possession of it as alleged in the accusation. We disagree. The state introduced circumstantial evidence that Gilliland took possession of the phone, namely that he removed it from its display stand and placed it in his pocket on January 8, that from that point until January 19 the phone was missing from the store, and that on January 19 the phone reemerged in the store, apparently having been left there by another person around the time that Gilliland was scheduled to meet a police detective to talk about the case. From this circumstantial evidence, “the jury could have concluded that [Gilliland] removed [the phone] from the store without paying for [it], thereby taking possession of [the phone] for [his] own use without paying for [it] within the meaning of the statute.” Sustakovitch v. State, 249 Ga. 273, 274-275 (1) (290 SE2d 77) (1982), overruled in part on other grounds by Catoosa County v. R. N. Talley Properties, 282 Ga. 373, 374 (651 SE2d 7) (2007). See former OCGA § 24-4-6 (“To warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.”); Haney, 261 Ga. App. at 138 (1) (“Whether or not in a given case circumstances are sufficient to exclude every reasonable hypothesis save the guilt of the accused is primarily a question for determination by the jury.”) (citations and punctuation omitted).

2. Jury charges.

Gilliland claims that the trial court erred in two of its charges to the jury. He argues that a charge setting forth the elements of shoplifting erroneously instructed the jury that the offense could be committed in a manner not alleged in the accusation against him, and that a supplemental charge, given in response to a question from the jury, erroneously instructed the jury that it could consider the wholesale value of the phone taken from the store. Gilliland did not object to either charge at trial, and as detailed below, we find no plain error in either charge.

(a) Application of plain error analysis.

Because Gilliland did not object at trial to either of the jury charges that he now claims were error, we analyze them only for plain error as provided for in OCGA § 17-8-58. Under that Code section, a party’s failure to object to a portion of the jury charge “shall preclude appellate review of such portion of the jury charge, unless such portion of the jury charge constitutes plain error which affects substantial rights of the parties. Such plain error may be considered on appeal even if it was not brought to the [trial] court’s attention[.]” OCGA § 17-8-58 (b). See State v. Kelly, 290 Ga. 29, 32 (1) (718 SE2d 232) (2011) (under OCGA § 17-8-58 (b), whenever a party asserts on appeal an error injury instructions, “appellate review for plain error is required”). In reviewing for plain error,

the proper inquiry is whether the instruction was erroneous, whether it was obviously so, and whether it likely affected the outcome of the proceedings. If all three of these questions are answered in the affirmative, the appellate court has the discretion to reverse if the error seriously affects the fairness, integrity, or public reputation of the proceedings below. Satisfying all four prongs of this standard is difficult, as it should be.

Id. at 33 (2) (a) (citations and punctuation omitted). Gilliland has not shown plain error because he has not shown that either allegedly erroneous charge likely affected the outcome of the proceedings.

(b) Charge on elements of shoplifting.

Gilliland argues that the trial court erred in instructing the jury that it could find him guilty of shoplifting in a manner not alleged in the accusation. See Levin v. State, 222 Ga. App. 123, 127 (6) (473 SE2d 582) (1996) (where court charges jury that offense can be committed in two manners, and reasonable probability exists that jury convicted defendant of committing offense in manner not charged in indictment, “error is sufficiently egregious to preclude a finding that it was waived even if [defendant] failed to except to the charges”) (citations omitted). The accusation specified the manner by which the crime was committed. .It alleged that Gilliland committed the offense of shoplifting “by taking possession of merchandise with a value greater than $300.00 from a retail establishment, to wit: [the cellular phone from the store], with the intent of appropriating said merchandise to his own use, and without paying for said merchandise[.]” But in defining the offense of shoplifting in its charge to the jury, the trial court quoted the statutory elements of the offense, which set out an alternative manner by which the crime can be committed. He instructed them that

[t]he [s]tate has to prove beyond a reasonable doubt that the defendant... with the intent of appropriating merchandise to his own use without paying for the same concealed or took possession of the telephone described in this accusation and that the telephone was worth more than $300.

(Emphasis supplied.) See OCGA § 16-8-14 (a) (1); see also former OCGA § 16-8-14 (b) (1) (addressing minimum value of taken merchandise required for felony conviction at time of Gilliland’s conviction).

It is true that “if a jury charge recites the entire statutory definition of a crime and the indictment [or accusation] does not, the deviation may violate due process unless a limiting instruction is given.” Dukes v. State, 265 Ga. 422, 423 (457 SE2d 556) (1995) (citation omitted). Here, however, the trial court did give instructions that limited the jury’s consideration to the manner of shoplifting alleged in the accusation. In its charge to the jury, the trial court read the language of the accusation and instructed the jury that “[t]he burden of proof rests upon the [s]tate to prove every material allegation of the indictment or accusation and every essential element of the crime charged beyond a reasonable doubt.” (Emphasis supplied.) The accusation also went out with the jury during the deliberations. Under these circumstances, “[v]iewing the charge in its entirety, it [was] not misleading.” Simmons v. State, 207 Ga. App. 171, 172 (427 SE2d 560) (1993) (citation omitted). See also Diaz v. State, 194 Ga. App. 577, 579 (2) (391 SE2d 140) (1990).

(c) Charge on value of phone.

Gilliland argues that the trial court erred in its instructions to the jury concerning how to determine the value of the phone. The value of the merchandise taken affects the classification of the offense as a felony or misdemeanor, and under the version of the statute in effect at the time of Gilliland’s conviction, a person convicted of shoplifting would be punished as for a felony if the value of the property at issue exceeded $300. See former OCGA § 16-8-14 (b) (1). See also OCGA § 16-8-14 (b).

Decided February 28, 2014.

Cynthia W. Harrison, for appellant.

David McDade, District Attorney, James A. Dooley, Assistant District Attorney, for appellee.

In its initial charge to the jury, the trial court instructed that “[i]n all cases involving theft by shoplifting, the term ‘value’ means the actual retail price of the property at the time and place of the offense.” This correctly tracked the statutory definition of “value” found in OCGA § 16-8-14 (c).Duringits deliberations, however, the jury asked if the phone would have a lower value if it were a display model that was not for sale. The trial court responded:

The fact of whether the phone was a display or not to be sold or whatever does not determine its value. It’s the value of that phone or instrument if it were to be sold because that would bean option to the owner. But it has a value, you know. You can look at the testimony as to possibly what was paid for it rather than just what it was to be sold for. But no, it doesn’t have to be sold. It’s there and it has a value.

Gilliland argues that this additional instruction erroneously allowed the jury to consider the phone’s wholesale rather than its retail value.

Assuming without deciding that the instruction was inaccurate, Gilliland has not shown that it affected the outcome of the proceedings, and consequently he has not shown plain error. The trial court instructed the jury that, in order to prove a felony, the state had to demonstrate beyond a reasonable doubt that the phone had a minimum retail value of at least $300. The state presented evidence from one of the store’s sales representatives that the type of phone at issue had a retail value greater than that minimum amount. And although the state also presented evidence of the amount the store paid for the phone (its wholesale value), that amount also exceeded $300.

Judgment affirmed.

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

       This rule is now codified as OCGA § 24-14-6.


author: DOYLE, Presiding Judge.

text:
    A13A2031.
    WILSON v. THE STATE.
    (755 SE2d 253)
   DOYLE, Presiding Judge.

Arthur Lee Wilson was convicted of possession of cocaine with intent to distribute and possession of marijuana. He appeals the subsequent denial of his motion for new trial, arguing that the trial court erred by making improper comments regarding the credibility of a witness in violation of OCGA § 17-8-57, and by denying his motion to suppress his custodial statements. We reverse for the reasons that follow.

Viewed in favor of the verdict, the record shows that on August 6, 2009, a woman flagged down Atlanta Police Department Officer Nicholas Mercado and said that a person was sleeping in a car and “[might have been] selling drugs out of the back of the vehicle.” As Officer Mercado approached a Toyota Camry parked in the lot, he observed Wilson’s hand resting motionless against the window in the back seat. When Officer Mercado, who was accompanied by Officer Canup, shined his flashlight in the car to make sure the occupant did not need assistance, he saw Wilson sleeping in the back seat and “a small bagg[ie] of marijuana in plain view sitting on the... floorboard” of the back seat near Wilson’s head.

Officers Mercado and Canup identified themselves as law enforcement and knocked on the Camry window. When Wilson awoke, Officer Mercado opened the back door and asked him “what he was doing [there].” Wilson responded that he “was just trying to make some money to feed [his] family.” Officer Mercado asked Wilson what he meant, and Wilson responded that he was selling drugs. Officer Mercado instructed Wilson to exit the vehicle, and Officer Canup placed him under arrest. While Officer Mercado searched the Camry, his flashlight reflected off of a mirror that was partially under the driver’s seat. Officer Mercado examined the mirror and observed more than five crack cocaine rocks on the mirror. Officer Mercado also found two hundred dollars in various denominations, including ones and fives, and plastic baggies in the Camry.

Wilson filed a motion to suppress his statements to the officers, and the trial court denied the motion. At the conclusion of the trial, the jury found Wilson guilty of possession of marijuana and possession of cocaine with intent to distribute. Wilson subsequently filed a motion for new trial, and the trial court denied the motion. This appeal followed.

1. Wilson argues that the trial court made an improper comment on the evidence in violation of OCGA § 17-8-57. We agree.

During closing argument, defense counsel argued, “It’s not okay for police officers to lie. It’s not okay for them to overlook things[,] and it’s not okay for them to get the details wrong. Their job is to investigate. When they don’t, it’s not okay. It’s not okay for them to cover things up. It’s not okay for them to —.” The trial court interjected, “Ma’am, I’ve cautioned you. Ladies and gentlemen, you are to disregard the comments from this attorney about any witness lying or covering up.” The trial court then instructed defense counsel that she would “be told to sit down if [she did] that again.”

OCGA § 17-8-57 provides: “It is error for any judge in any criminal case, during its progress or in his charge to the jury, to express or intimate his opinion as to what has or has not been proved or as to the guilt of the accused.” “To constitute an improper comment under OCGA § 17-8-57, the trial court’s statement must express an opinion about whether the evidence has proven a material issue in the case, whether a witness was credible, or whether the defendant was guilty.” “Even if defense counsel fails to raise an objection, if the trial court violates this statutory provision, we are required to order a new trial, and there can be no finding of harmless error.”

The purpose of this statute, at least in part, is to prevent the jury from being influenced by any disclosure of the judge’s opinion regarding a witness’s credibility. The credibility of a witness is a material fact in every case, and any questions of credibility are for the jury to decide. Therefore, anything which tends to uphold, to support, to disparage, or to lower the character and the resulting credibility of the witness is vitally connected with the facts of the case.

Here, the trial court’s admonition to defense counsel and instructions to the jury to disregard defense counsel’s challenge to Officer Mercado’s credibility “clearly intimated the court’s opinion that [Officer Mercado’s] testimony was believable. . . .”

[J]urors, like other human beings, are unconsciously too much affected by strong mental impressions for these impressions to be nicely segregated from the mass of evidence. The jury could have interpreted the trial court’s [admonitions and instructions] as expressing a favorable opinion on [Officer Mercado’s] abilities and thus bolstering that witness’s credibility.... It is impossible to say that, after hearing the trial court’s statements, the jurors were not influenced to some extent. Therefore, the trial court erred in making statements that could have been interpreted as offering an opinion on [Officer Mercado’s] credibility.

‘Moreover, the trial court’s purported curative instruction did not eradicate its inappropriate comments. The law is well-established that instructions given to the jury by the trial court cannot cure a violation of OCGA § 17-8-57.”

As the Supreme Court of Georgia has explained,

the trial court’s compliance with the statutory language of OCGA § 17-8-57 is mandatory[,] and ... a violation of its mandate requires a new trial. In light of the mandatory nature of the statute and the case law interpreting the statute, we must reverse [Wilson’s] conviction[s] and remand the case to the trial court for a new trial.

2. Wilson also contends that the trial court erred by denying his motion to suppress his statements to the officers, arguing that he was in custody when Officer Mercado questioned him without giving the warnings required by Miranda v. Arizona.

First, when a motion to suppress is heard by the trial judge, that judge sits as the trier of facts. The trial judge hears the evidence, and his findings based upon conflicting evidence are analogous to the verdict of a jury and should not be disturbed by a reviewing court if there is any evidence to support them. Second, the trial court’s decision with regard to questions of fact and credibility must be accepted unless clearly erroneous. Third, the reviewing court must construe the evidence most favorably to the upholding of the trial court’s findings and judgment.

“The Fifth Amendment requires the exclusion of any statement made by an accused during custodial interrogation, unless he has been advised of his rights and has voluntarily waived those rights.”

A person is in custody for Miranda purposes if he has been formally arrested or restrained to the degree associated with a formal arrest. The test for determining whether a detainee is in custody for Miranda purposes is whether a reasonable person in the detainee’s position would have thought the detention would not be temporary. The subjective views of the detainee and the officer are not dispositive to the determination. . . . The issue of whether one is in custody for Miranda purposes is a mixed question of law and fact, and the trial court’s determination will not be disturbed unless it is clearly erroneous.

Here, Wilson’s statements to the officers “were not subject to suppression because they were not the product of an interrogation or its functional equivalent. . . . [Officer Mercado’s] inquiry ... as to ‘what was going on’... [did not amount] to a ‘custodial interrogation’ requiring the administration of Miranda warnings.” Thus, the trial court’s determination that Wilson was not in custody until after he made his statements to the officers and was placed under arrest was not clearly erroneous, and the trial court did not err by denying his motion to suppress.

Judgment reversed.

McFadden and Boggs, JJ., concur.

Decided February 28, 2014.

Michael W. Tarleton, James C. Bonner, Jr., for appellant.

Robert D. James, Jr., District Attorney, Deborah D. Wellborn, Assistant District Attorney, for appellee.

       OCGA § 16-13-30 (b).

       OCGA § 16-13-30 (j).

       See Short v. State, 234 Ga. App. 633, 634 (1) (507 SE2d 514) (1998).

       During cross-examination of Officer Mercado, defense counsel elicited testimony from him regarding conflicts in his written report and his trial testimony regarding the amount of crack cocaine he found in the vehicle in which Wilson was sleeping. Defense counsel also elicited testimony from the officer that although he learned at the scene that the vehicle belonged to another person, he failed to verify the information or to inventory the vehicle. Officer Mercado also testified that he did not attempt to fingerprint the mirror found in the vehicle, nor did he take any video or photographs of the evidence in the vehicle. Further, Officer Mercado testified on cross-examination that he estimated the weight of the crack cocaine to be approximately 6.5 grams; the GBI subsequently determined the weight of the crack to be 1.64 grams.

       (Punctuation omitted.) Anthony v. State, 282 Ga.App. 457,458 (1) (638 SE2d 877) (2006).

       (Punctuation omitted.) Booker v. State, 322 Ga. App. 257, 259 (1) (744 SE2d 429) (2013).

       (Footnotes and punctuation omitted.) Callaham v. State, 305 Ga. App. 626, 627 (1) (700 SE2d 624) (2010).

       Id. at 628 (1).

       (Citation and punctuation omitted.) Murphy v. State, 290 Ga. 459, 461 (2) (722 SE2d 51) (2012).

        Callaham, 305 Ga. App. at 628 (1).

       (Citation and punctuation omitted.) Chumley v. State, 282 Ga. 855, 858 (2) (655 SE2d 813) (2008).

       384 U. S. 436 (86 SCt 1602, 16 LE2d 694) (1966).

       (Punctuation omitted.) Brown v. State, 293 Ga. 787, 803 (3) (b) (2) (750 SE2d 148) (2013), quoting Miller v. State, 288 Ga. 286 (702 SE2d 888) (2010).

         Jones v. State, 258 Ga. App. 229, 230 (573 SE2d 470) (2002), citing Franks v. State, 268 Ga. 238, 239 (486 SE2d 594) (1997).

       (Citations and punctuation omitted.) Waters v. State, 306 Ga. App. 114, 116 (1) (701 SE2d 550) (2010).

       (Footnote omitted.) Jones, 258 Ga. App. at 230, citing Metts v. State, 270 Ga. 481, 483-484 (3) (511 SE2d 508) (1999).