text:
    A16A2058.
    A16A2066.
    A17A0110.
    JONES v. THE STATE. JOHNSON v. THE STATE. LEMONS v. THE STATE.
    (796 SE2d 765)
   DILLARD, Presiding Judge.

Following a trial by jury, Travis Jones, Willie Johnson, William Lemons, and Robert Turner were convicted of burglary. Jones, Johnson, and Lemons now challenge their convictions. In Case Nos. A16A2058, A16A2066, and A17A0110, Jones, Johnson, and Lemons argue that the trial court erred in denying their motions for a mistrial after a main witness on behalf of the State used the prosecutor’s own notes to refresh his recollection. Additionally, in Case Nos. A16A2066 and A17A0110, Johnson and Lemons challenge the sufficiency of the evidence as to their convictions for burglary. For the reasons set forth infra, we affirm in each case.

Viewed in the light most favorable to the verdict, the record reflects that Jones, Johnson, Lemons, and Turner were inmates at the Jefferson County Correctional Institution who were assigned to a work detail located near the victim’s residence. The inmates were directed to clear brush from the roadside and were divided into two groups: five inmates to the north and six inmates to the south, while one guard monitored their work. The victim’s residence was beside the boundary of the north end of the work area.

During a midday break, the inmates assigned to the south end sat with the guard in the center of the work area while the north-end inmates took their break on a hill near the victim’s residence. But after some time had passed, the guard realized that he was not able to see all of the inmates on the hill. The guard then walked up the hill and, as he approached, an inmate yelled to warn others that he was coming. What then ensued resembled a deleted scene from “O Brother, Where Art Thou?”

Just prior to the guard’s arrival, an inmate who was uninvolved in the incident saw Jones and Lemons walk toward the back of the house and then heard sounds of objects breaking. Then, as the guard approached, he heard the sounds of feet moving across a hard surface. When the guard reached the top of the hill, he found Jones and Turner standing beside a tree near the house, and observed Lemons walk from the rear of the house back to his work post. The guard also watched Johnson, who was assigned to the opposite end of the work area, walk across the field, which the guard thought was suspicious. Upon the guard’s arrival at the top of the hill, it was immediately apparent that Jones was intoxicated, and that Turner and Lemons were attempting to calm him.

The guard moved all of the inmates to the bottom of the hill to further assess the situation and, once at the bottom, noticed that Lemons was wearing a gold wristwatch, which he should not have had on while participating in a work detail. The guard then called for backup to remove Jones from the detail when he continued to exhibit signs of intoxication and erratic behavior. Prior to being transported away from the work detail, Jones was searched and found to be in possession of several ink pens and an XM radio.

Thereafter, the Jefferson County Sheriff’s Office began to investigate a potential burglary of the victim’s residence. After learning that his home might have been burglarized, the victim—who was in the process of moving—went to the house and discovered that he could not open the front door because a lounge chair, lamp, and computer had been thrown against it. Law enforcement determined that the perpetrators had entered the now ransacked house through the back door, and the victim ultimately identified the watch found in Lemons’s possession and the pens and radio in Jones’s possession as his property (all having last been located inside the residence).

During the ensuing investigation, law enforcement collected five liquor bottles from inside the house. One bottle resulted in the recovery of a single usable fingerprint, and though the print was excluded as belonging to the other inmates, it could not be excluded as belonging to Johnson. The victim testified that this bottle, which was found on a freezer by the back door, had last been located in a room toward the front of the house. On a second bottle, law enforcement recovered DNA matching Johnson and Turner. The victim testified that this bottle, which was found in a room near the front door, had last been located in a room across the hall. When questioned by law enforcement, Johnson initially denied any involvement in the burglary, but when later confronted with the fingerprint evidence, he admitted to touching the bottle outside of the residence before handing it back to another inmate. Johnson also initially denied drinking from a bottle of alcohol before admitting that he had done so, but he then once again denied consuming alcohol—even after being confronted with the DNA evidence.

All four inmates were subsequently indicted for first-degree burglary and, following a trial by jury, convicted of that offense. These appeals by Jones, Johnson, and Lemons follow the denial of their motions for new trial.

1. In Case Nos. A16A2058, A16A2066, and A17A0110, Jones, Johnson, and Lemons argue that the trial court erred in denying their motions for mistrial after the work-detail guard used notes prepared by the prosecutor to refresh his recollection. While all appellants argue that the document was not the type permitted for refreshing a witness’s recollection, Jones further contends that the State’s prosecutor committed misconduct. We disagree that the trial court abused its discretion in denying the motions for a mistrial.

The record reflects that during the State’s direct examination of the work-detail guard (who had suffered three mini-strokes since the date of the incident in question), the witness attempted to reference documents he brought with him to the stand after he was asked to which side of the work detail Lemons had been assigned. Seeing this, the State asked the guard what documents he was holding, and the guard replied, “That was given [to] me by you[,] I think.” The State’s prosecutor then asked to see the documents and responded that she “didn’t realize I had left this with you.” The guard responded, “Yeah, you left that with me.” The State’s prosecutor then replied, “All right. You can have it back then,” before moving on to a new line of questioning.

Direct examination continued without objection for quite some time until the State asked the guard to indicate on a diagram the location of the tree where he saw Jones and Turner standing. At that point, Johnson’s counsel observed that the guard appeared to be “using something to refresh his memory” because he “[kept] looking down at the papers.” Thus, defense counsel requested to see the writing and to question the guard under OCGA § 24-6-612 (a). When the court asked the guard to what he was referring, the guard responded that it was “a photo that the DA gave me when she came out to my residence.” The State’s prosecutor then volunteered that it appeared she had “inadvertently left [her] notes with [the guard]” and that it “was not intentionally done.” The court allowed the State to retrieve the document from the guard and ordered that the notes be shown to the defendants for purposes of cross-examination. The document was subsequently made a court exhibit for inclusion in the record.

The defendants moved for a mistrial due to “prosecutorial misconduct by allowing [the] witness to continue to hold onto these notes, even though [the State’s prosecutor] knew that they were inappropriate for him to have.” But the trial court denied those motions after concluding that there was no prosecutorial misconduct. Then, the court permitted the State to continue questioning the guard after allowing him to refresh his recollection with an incident report that he had prepared the day after the work-detail incident. And when the defendants later cross-examined the guard and asked about the prosecutor’s notes, the guard testified that he “wasn’t actually using [the notes]” and that he was “going to look down at it to see [if he] could... refresh [his] memory of the inmates that were working at the house.”

In considering the defendants’ argument, we necessarily begin our analysis with the text of OCGA § 24-6-612, which permits a witness to “use[ ] a writing to refresh his or her memory while testifying,” but also provides that “an adverse party [is] entitled to have the writing produced at the hearing or trial, to inspect it, to cross-examine the witness on such writing, and to introduce in evidence those portions of such writing which relate to the testimony of the witness.” Here, the appellants contend that, notwithstanding their ability to cross-examine the work-detail guard as to the notes that were in his possession during some portion of his direct examination, the guard was improperly permitted to use the notes to refresh his recollection because the document was prepared by the State’s prosecutor outside of the guard’s presence. And, at least in cases decided under our prior Evidence Code, when a document was “prepared by a third person not in the presence of [the] witness, the [witness’s] memory [was] not refreshed by such memorandum and such testimony [was] inadmissible.” This was so even though “a witness [was allowed to] refresh his memory from a writing prepared by another.”

But here, at the motion-for-new-trial hearing, the trial judge— who had the benefit of observing the witness’s demeanor and judging his credibility before ruling upon the motions for mistrial—noted his prior determination that the guard did not actually use the relevant document to refresh his recollection. And indeed, the record supports this conclusion when, on direct examination, the guard testified that he “wasn’t actually using [the notes]” and that he was “going to look down at it to see [if he] could . . . refresh [his] memory of the inmates that were working at the house.” Furthermore, the record reflects that the witness’s recollection was only refreshed after he was permitted to review the incident report that he created in the immediate wake of the day in question, after review of which he provided more detailed and substantial answers to the State’s questions. As other courts have rightly determined, “[e]ven [when] a witness reviewed a writing before or while testifying, if the witness did not rely on the writing to refresh memory, Rule 612 confers no rights on the adverse party.” Thus, because the witness did not actually use the objected-to document to refresh his recollection, the trial court did not abuse its discretion in denying the appellants’ motions for mistrial.

As for Jones’s additional argument that the State engaged in prosecutorial misconduct by allowing the guard to maintain possession of the prosecution’s notes, even after learning that they were inadvertently left with the witness at a prior time, we note that “[a] charge of prosecutorial misconduct is a serious charge and is not to be lightly made[.]” And having raised it, Jones has the duty to “prove it by the record and by legal authority.”

Here, the trial court denied the motion for mistrial on the grounds of prosecutorial misconduct after deciding, based on its “observations and conclusions,” that there was no such misconduct. More specifically, the court determined that the State’s prosecutor “made a mistake and left her notes [with the witness] by accident,” and that when she saw that she had done so, she “most likely did what many of us would do, [‘W]ell what do I do[?’], and just didn’t make the right decision, which would have been to say, [‘W]ell let me take those back.[’]” Once again, given the trial court’s benefit of observing demeanor and assessing credibility when making this determination, and given the additional conclusion that the witness did not actually refresh his recollection from the prosecution’s notes, as discussed in detail supra, we simply cannot say that the trial court abused its discretion by denying the motion for mistrial on this ground.

2. Next, in Case Nos. A16A2066 and A17A0110, Johnson and Lemons challenge the sufficiency of the evidence as to their convictions for first-degree burglary. We disagree as to both defendants’ contentions.

At the outset, we note that when a criminal conviction is appealed, the appellant no longer enjoys a presumption of innocence. And the relevant question is whether, “after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” We do not weigh the evidence or determine witness credibility, and the jury’s verdict will be upheld so long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case.

A person commits the offense of burglary in the first degree when he or she, “without authority and with the intent to commit a felony or theft therein,... enters or remains within an occupied, unoccupied, or vacant dwelling house of another or any building ... or other such structure designed for use as the dwelling of another.” A conviction for burglary may be based upon circumstantial evidence if “the proved facts are not only consistent with the hypothesis of guilt, but exclude every other reasonable hypothesis but the guilt of the accused.” Thus, when the evidence meets this test, “circumstantial evidence is as probative as direct evidence, and whether this burden has been met is a question for the jury.” And when the jury is authorized to find that the evidence, though circumstantial, excluded every reasonable hypothesis except the defendant’s guilt, “the verdict will not be disturbed unless the verdict is insupportable as a matter of law.” Finally, although circumstantial evidence must “exclude every other reasonable hypothesis but the defendant’s guilt, the evidence need not exclude every inference or hypothesis.” With these guiding principles in mind, we will now consider Lemons and Johnson’s challenges to the evidence against them.

(a) As to Lemons, the State presented sufficient evidence of his guilt when it showed that he was working in the vicinity of the burglarized residence; was seen walking near the back of the house just prior to the guard’s arrival to investigate; and was in possession of a gold wristwatch later identified as belonging to the homeowner. It is well established that evidence of “recent, unexplained (or unsatisfactorily explained) possession of stolen goods may be sufficient to give rise to an inference that the defendant committed the burglary!)]” And whether a defendant’s “explanation of possession is satisfactory is a question for the jury,” as is the lack of an explanation. Here, the jury was entitled to reject, and did reject, Lemons’s explanation of having found the watch outside of the home when there was also testimony that Lemons claimed that the watch was a gift from his family Accordingly, his challenge to the sufficiency of the evidence is without merit.

(b) As to Johnson, the State presented sufficient evidence of his guilt when it showed that he was seen suspiciously walking across a field near the residence, notwithstanding his assignment to work in another area; he provided inconsistent statements to law enforcement regarding his involvement (or lack thereof); and two separate bottles of alcohol were found inside the residence and linked to him, with one containing a print that could not be excluded as belonging to him and one containing his DNA. In light of the inconsistent statements Johnson provided to law enforcement, the jury was entitled to reject as unreasonable his explanation of having touched a bottle outside of the residence before another inmate took the empty bottle back inside, and his denial of having consumed any alcohol when his DNA was found on a bottle. Accordingly, his challenge to the sufficiency of the evidence is similarly without merit.

Decided February 1, 2017.

Jacon D. Rhein, for appellant (case no. A16A2058).

Constance F. Peebles, for appellant (case no. A16A2066).

Fleming & Nelson, Kurt A. Worthington , for appellant (case no. A17A0110).

S. Hayward Altman, District Attorney, Kelly A. Jenkins, Assistant District Attorney, for appellee.

For all of the foregoing reasons, we affirm the convictions in Case Nos. A16A2058, A16A2066, and A17A0110.

Judgments affirmed.

Reese and Bethel, JJ., concur.

       We have consolidated the parties’ cases for consideration on appeal. Turner is not a party to this appeal.

        See, e.g., Muse v. State, 323 Ga. App. 779, 780 (748 SE2d 136) (2013).

        See O Brother, Where Art Thou? (Touchstone Pictures 2000).

        See Williams v. State, 248 Ga. App. 111, 113 (2) (545 SE2d 669) (2001) (“We review for manifest abuse of discretion a trial court’s denial of a motion for a mistrial, and we will reverse only if a mistrial is essential to the preservation of the defendant’s right to a fair trial.”).

        See OCGA § 24-6-612 (a) (“If a witness uses a writing to refresh his or her memory while testifying, an adverse party shall be entitled to have the writing produced at the hearing or trial, to inspect it, to cross-examine the witness on such writing, and to introduce in evidence those portions of such writing which relate to the testimony of the witness.”).

       We note that despite inclusion of the transcript on appeal, not one of the three appellants ensured that any of the trial exhibits were transmitted to this Court for consideration with the transcript. The table of contents in the transcript indicates that the exhibits are contained on a separate CD, which was not included. Although this Court took it upon itself to seek supplementation of the record from the trial court, we remind the parties that “it is the burden of the appealing party to ensure that a complete record is transmitted to this Court on appeal,” and “[t]he appellant’s failure to complete the record may also result in this Court declining to consider enumerations of error related to the missing evidence.” Court of Appeals Rule 18 (b); see Chernowski v. State, 330 Ga. App. 702, 706 (1) n.8 (769 SE2d 126) (2015) (“The transcript... definitively notes that the trial exhibits are not attached, and accordingly, no exhibits were forwarded to this Court. [The Appellants], of course, bore the responsibility of compiling a complete record of what transpired below.”). Indeed, when the record is not supplemented with the missing exhibits, we must assume that the exhibits support the judgment below. See City of Byron v. Betancourt, 242 Ga. App. 71, 73 (2) (528 SE2d 841) (2000) (“In the absence of a transcript, including the exhibits tendered into evidence, we must assume the judgment complained of was supported by competent evidence and are duty-bound to affirm.”).

       (Emphasis supplied.)

       OCGA § 24-6-612 (a); see generally Ronald L. Carlson & Michael Scott Carlson, Carlson on Evidence 326 (5th ed. 2016) (“Courts have outlined procedures for refreshing witness recollection. Upon establishing the proper foundation, counsel will typically offer the witness the writing to inspect, and will show a copy of the writing to the opposing parties: ‘The best practice is for the trial court to have the witness silently read the writing and then to state whether the writing has refreshed his or her recollection.’ With the recall of memory stimulated, the process of refreshing is complete, and the writing may be laid aside. On direct, it is generally not read to the jury.” (footnotes omitted)).

       The prior Evidence Code specified: “A witness may refresh and assist his memory by the use of any written instrument or memorandum, provided he shall finally speak from his recollection thus refreshed or shall be willing to swear positively from the paper.” Former OCGA § 24-9-69 (2012); see also Jerkins v. Jerkins, 300 Ga. App. 703, 705 (1) (686 SE2d 324) (2009) (“If the witness swears positively from the paper, the paper takes the place of present recollection and can be read to the jury by the witness at trial.”); Sweat v. State, 203 Ga. App. 290, 291 (3) (416 SE2d 845) (1992) (“[I]n order to swear positively from the paper, it is essential that the witness should at some time have had personal knowledge of the correctness of the memorandum.” (punctuation omitted)). Because this case was tried after January 1,2013, our new Evidence Code applies. See Ga. L. 2011, pp. 99, 214, § 101 (providing that Georgia’s new Evidence Code applies “to any motion made or hearing or trial commenced on or after” January 1, 2013).

        Zilinmon v. State, 234 Ga. 535, 537 (3) (216 SE2d 830) (1975); accord McEntyre v. McRae, 240 Ga. App. 148, 149 (2) (522 SE2d 731) (1999); Atlanta Fire Sys., Inc. v. Alexander Underwriters Gen. Agency, Inc., 185 Ga. App. 873, 875 (4) (366 SE2d 197) (1988); see also Kell v. State, 280 Ga. 669, 674 (2) (c) n.5 (631 SE2d 679) (2006) (noting that “it is not proper to use a report prepared by another to refresh a witness’s recollection [when] the witness has no personal knowledge of the correctness of the report”).

        Zilinmon, 234 Ga. at 537 (3); see also Miller v. State, 275 Ga. 32, 36 (3) (561 SE2d 810) (2002) (“[A]ny document may be used to refresh the recollection of a witness, and the document need not have been prepared by the witness.”); see generally United States v. Marrero, 651 F3d 453, 472 (IV) (6th Cir. 2011) (“[T]he propriety of permitting a witness to refresh his memory from a writing prepared by another largely lies within the sound discretion of the trial court.” (punctuation omitted)); United States v. Maddix, 96 F3d 311, 315 (8th Cir. 1996) (same).

        See, e.g., State v. Ellison, 271 Ga. App. 898, 904 (6) (611 SE2d 129) (2005) (“[T]he credibility of witnesses and the weight to be given their testimony is a decision-making power that lies solely with the trier of fact. The trier of fact is not obligated to believe a witness even if the testimony is uncontradicted and may accept or reject any portion of the testimony. We cannot, and will not, usurp the authority of the trial judge to consider such factors as demeanor and other credibility-related evidence in reaching its decision.” (emphasis, punctuation and footnote omitted)); Varnadoe v. State, 227 Ga. App. 663, 666 (4) (490 SE2d 517) (1997) (“This Court will not second guess the trial court which heard testimony from this witness both at trial and at the motion for new trial hearing and was in a position to evaluate the demeanor of the witness and the credibility of his testimony.”).

       (Emphasis supplied.)

        United States v. Sheffield, 55 F3d 341, 343 (8th Cir. 1995) (punctuation omitted); accord Frazier v. Ford Motor Co., Case No. 4:05CV04077 JLH, 2008 WL 4809130, at *1 (W.D. Ark. 2008); Sauer v. Burlington N. R. Co., 169 FRD 120, 123 (III) (A) n.3 (D. Minn. 1996); see also Sporck v. Peil, 759 F2d 312, 318 (III) (18) (3rd Cir. 1985) (holding that deposing counsel failed to lay proper foundation under Rule 612 to invoke right to production of documents when counsel failed to establish either that deponent relied on any documents in giving his testimony or that any documents influenced his testimony); Guarantee Abstract & Title Co., Inc. v. United States, 696 F2d 793, 796 (10th Cir. 1983) (holding that trial court did not err in refusing to order witness to produce document he glanced at while testifying; there was no showing the witness relied on the document to refresh memory because, just before he pulled slip of paper from his pocket, he answered he did not know the answer to counsel’s question and gave the same answer afterward); Suss v. MSX Intern. Eng. Servs., Inc., 212 FRD 159, 165 (II) (B) (S.D. N.Y. 2002) (“Rule 612 requires that, for an adversary to obtain production of a writing, the witness must have actually relied on the writing to refresh his or her memory. Thus, even if the witness consults a writing while testifying, the adverse party is not entitled to see it unless the writing influenced the witness’s testimony.” (punctuation omitted)).

        Meredith v. State, 211 Ga. App. 213, 215 (4) (438 SE2d 644) (1993).

        Id.

        See Smith v. State, 276 Ga. 263, 266 (3) (577 SE2d 548) (2003) (holding that trial court did not abuse its discretion in denying mistrial based upon allegation of prosecutorial misconduct when underlying circumstances were made known to the jury and were fully probed on cross-examination, such that it could not be said “that the prosecution had engaged in misconduct which would have affected the outcome of the jury’s deliberations”); Dixon v. State, 303 Ga. App. 517, 522 (3) (693 SE2d 900) (2010) (holding that trial court did not abuse its discretion in denying mistrial based upon allegation of prosecutorial misconduct when appellant failed to “point to evidence that the prosecutor intentionally solicited the improper comment from the witness” (punctuation omitted)).

       Jones does not challenge the sufficiency of the evidence as to his conviction but, nevertheless, there was sufficient evidence to sustain same.

        Arbegast v. State, 332 Ga. App. 414, 415 (1) (773 SE2d 283) (2015); Westbrooks v. State, 309 Ga. App. 398, 399 (1) (710 SE2d 594) (2011).

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

        Miller v. State, 273 Ga. 831, 832 (546 SE2d 524) (2001); Westbrooks, 309 Ga. App. at 399-400 (1).

       OCGA § 16-7-1 (b).

        Johnson v. State, 291 Ga. App. 253, 254 (661 SE2d 642) (2008) (punctuationomitted); see also OCGA § 24-14-6 (“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.”).

        Johnson, 291 Ga. App. at 254 (punctuation omitted).

        Id. (punctuation omitted).

        Id. (punctuation omitted).

        See, e.g., Martin v. State, 254 Ga. App. 40, 41 (1) (561 SE2d 154) (2002) (punctuation omitted).

        Id. (punctuation omitted).

        Id.

        See Harris v. State, 328 Ga. App. 852, 854(1) (763 SE2d 133) (2014) (“The evidence, taken together, placed [the defendant] at [the location of the burglary] and in possession of stolen property. [When] a defendant is in recent possession of stolen goods, his guilt may be inferred [when] the evidence independently establishes an unauthorized entry.”); Martin, 254 Ga. App. at 41 (1) (holdingthat, interalia, defendant’s recent, almost contemporaneous, possession ofthe stolen goods, his conflicting statements to the police, and other circumstances presented sufficient evidence to sustain conviction for burglary).

        See Rudison v. State, 322 Ga. App. 248, 249-50 (1) (744 SE2d 444) (2013) (holding that jury was entitled to reject as unreasonable the explanation that defendant was framed when his DNA was found on an item at the crime scene); Gant v. State, 291 Ga. App. 823, 824-25 (1) (662 SE2d 895) (2008) (“Even though [the defendant] attempted to provide innocent explanations for his acts, the jury was authorized to reject his version of events, particularly in view of his conflicting statements to police.”).

        See Stokes v. State, 327 Ga. App. 511, 513 (759 SE2d 585) (2014) (holding that evidence was sufficient to sustain burglary conviction when defendant was in the area of the burglary during relevant time period and when his DNA was found on a cigarette butt inside the residence with no other explanation); see also In the Interest of D. J. E., 266 Ga. App. 807, 810 (1) (598 SE2d 108) (2004) (holding that juvenile’s fingerprints at the crime scene, with the lack of an explanation for their presence, provided necessary circumstantial evidence to infer his participation in the crime); cf. Anthony v. State, 85 Ga. App. 119, 121 (68 SE2d 150) (1951) (holding that evidence consisting solely of fingerprint on a pinball machine’s money box was insufficient to sustain conviction when machine was located in a public place and was generally accessible, and it was not shown where on the machine the money box was located, such that the print could have been left on the machine at some time other than the commission of the crime, i.e., the print could have been left during innocent play).


source: Caselaw Access Project

author: Bethel, Judge.

license: Public Domain

text:
    A16A2088.
    MOORE v. THE STATE.
    (796 SE2d 754)
   Bethel, Judge.

Vincent Tyrone Moore appeals from the denial of his motion for a new trial. Moore argues that the evidence was insufficient to support his conviction for false imprisonment and that the trial court erred in sentencing him for two counts of armed robbery where both counts arose from a single transaction involving a single victim. Because the evidence is sufficient to support his conviction for false imprisonment, we affirm. But we vacate Moore’s armed robbery conviction with respect to Count 3 because Moore could be convicted of and sentenced for only one robbery.

“On appeal, the evidence must be viewed in the light most favorable to support the verdict, and the appellant no longer enjoys a presumption of innocence.” Culver v. State, 230 Ga. App. 224, 224 (496 SE2d 292) (1998) (citing Williams v. State, 228 Ga. App. 698, 699 (1) (492 SE2d 708) (1997)). So viewed, the evidence shows that Moore ambushed A. J., who was leaving a restaurant where she worked after it had closed for the evening, revealing what Moore represented to be a gun hidden under his shirt. Moore shoved A. J. back into the restaurant. Moore continued to shove A. J. toward the counter, and then ordered her to lie on the floor and not move. Another employee, T. R., who had witnessed the initial encounter between Moore and A. J., ran to alert the manager that they were being robbed. T. R. activated the silent alarm in the back of the restaurant and then hid.

Moore subsequently approached the back of the restaurant, and confronted the manager and two other employees. Moore ordered the manager and another employee to open the safe, but the manager explained he was not able to do so because it was on a time-lock. Moore began counting to ten, saying he did not believe the manager. Once it became clear the manager was unable to get into the safe, Moore took the contents of the register, after being informed by the manager that it was the only money accessible in the restaurant, as well as the manager’s wallet. Moore then ordered the manager to lie on the floor.

At approximately 10:52 p.m., a police officer received a call from dispatch in response to the silent alarm being activated at the restaurant. Upon approaching the restaurant less than a minute after receiving the call, the officer witnessed Moore run across the street. The officer chased Moore and ordered him to stop and drop his weapon, which Moore did not do, and the officer lost him. Less than an hour later, another officer found Moore hiding nearby and was able to arrest Moore after a brief struggle. The manager’s wallet was found approximately one foot from where Moore had fought the arresting officer, and the same amount of money missing from the wallet was found on Moore’s person. The precise amount of money taken from the restaurant’s register was also found near Moore’s person. After being advised of his Miranda rights, Moore spontaneously volunteered that he had robbed the restaurant because a gang that was providing housing for his family had demanded that he do so.

Moore was convicted of obstruction with violence, two counts of armed robbery, five counts of false imprisonment, and one count of simple battery. Moore filed a motion for new trial, which the trial court denied following a hearing. This appeal followed.

1. Moore first argues, and the State concedes, that the trial court erred in sentencing him on two counts of armed robbery Count 2 charged Moore with using an unknown weapon to take $15.60 from the restaurant’s cash register in the manager’s presence, and Count 3 charged Moore with using an unknown weapon to take the manager’s wallet and $20 contained inside. Moore was found guilty on both counts and was sentenced to life without parole for both convictions, with his sentence for Count 3 to run concurrent with his sentence for Count 2.

Robbery is a crime against possession, and is not affected by concepts of ownership. Similarly, one may only rob a person, and not a corporate entity, or an object such as a cash drawer. It follows that since there was only one victim, the [manager], who was by this single transaction despoiled of his possession of both his own money and his employer’s money, there was only one robbery.

Randolph v. State, 246 Ga. App. 141, 144 (1) (538 SE2d 139) (2000) (citations and punctuation omitted). We agree with Moore and the State that only one armed robbery occurred. See Jones v. State, 279 Ga. 854, 857 (3) (622 SE2d 1) (2005) (“[W]here one victim is robbed of multiple items in a single transaction, only one robbery is committed.”); Bland v. State, 264 Ga. 610, 612 (4) (449 SE2d 116) (1994); Creecy v. State, 235 Ga. 542, 544 (5) (221 SE2d 17) (1975). Consequently, the trial court erred in entering a separate judgment of conviction and sentence for armed robbery as alleged in Count 3 of the indictment. That judgment of conviction is vacated, and the trial court is directed to strike the sentence imposed on the third count. Randolph, 246 Ga. App. at 144 (1).

2. Moore next argues that there was insufficient evidence to support one of his false imprisonment convictions. We conclude that the evidence was sufficient to establish that Moore falsely imprisoned the victim in question — as to this count, the employee T. R.

When we review challenges to the sufficiency of the evidence, “[w]e neither weigh the evidence nor judge the credibility of witnesses, but determine only whether, after viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Otuwa v. State, 319 Ga. App. 339, 339-340 (734 SE2d 273) (2012) (citing Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SCt 2781, 61 LE2d 560) (1979)) (punctuation omitted). “To sustain a conviction for false imprisonment, the State must show evidence of an arrest, confinement, [] or detention, and detention for a brief amount of time is sufficient.” Pierce v. State, 301 Ga. App. 167, 169 (1) (c) (687 SE2d 185) (2009) (citation omitted); OCGA § 16-5-41 (a). “It is for the jury to decide if the detention amounted to false imprisonment.” Pierce, 301 Ga. App. at 169 (1) (c) (citation omitted). Once the confinement or detention has occurred, “the offense is complete notwithstanding that the victim may thereafter effect an escape.” Kiser v. State, 327 Ga. App. 17, 19 (2) (755 SE2d 505) (2014) (quoting Herrin v. State, 229 Ga. App. 260, 263 (3) (493 SE2d 634) (1997)) (punctuation omitted).

In his appeal, Moore argues there was no evidence showing that T. R. was ever confined or detained, as Moore was unaware of her presence. T. R. did not testify at trial. But other employees testified that T. R. observed Moore accosting A. J. as A. J. was attempting to leave the restaurant through the front door. When Moore confronted A. J., Moore revealed what appeared to be a gun hidden under his shirt and forced her back into the restaurant. Moore then ordered A. J. to lie on the floor. T. R., who was watching A. J. leave as a safety precaution, observed enough of this confrontation that she then ran to alert the manager that they were being robbed and then activated the silent alarm in the back of the restaurant and hid. The testimony from the other employees about T. R.’s actions — observing the encounter between Moore and A. J., retreating from the front door of the restaurant to warn the manager of the robbery, activating the silent alarm, and hiding in the back of the restaurant — constitutes sufficient evidence for the jury to determine that she was detained against her will. See, e.g., Kiser, 327 Ga. App. at 19-20 (2) (evidence sufficient to support false imprisonment conviction where victim jumped through a window to escape mobile home when defendant was guarding the door); Wilson v. State, 304 Ga. App. 743, 747-748 (1) (d) (698 SE2d 6) (2010) (sufficient evidence supported false imprisonment conviction even though defendant blocked only the front door and left other avenues of escape). And the presence of this evidence distinguishes this case from others in which convictions have been reversed for false imprisonment. Compare Benbow v. State, 288 Ga. 192, 194-195 (702 SE2d 180) (2010) (reversing convictions for false imprisonment where there was no evidence that defendant, despite shooting a person at the front door of a house and taking money before fleeing, took any action to confine the victims to the house); Ward v. State, 304 Ga. App. 517, 523-524 (1) (c) (696 SE2d 471) (2010) (reversing false imprisonment conviction where there was no evidence the victim experienced any attempt to confine her to the bedroom where she was hiding). That Moore now claims on appeal that he was unaware of T. R.’s presence because he “surely . . . would have gathered her up with the other four employees had he known she was there” does not negate the evidence of false imprisonment, as Moore’s actions upon accosting A. J. as she attempted to leave the restaurant and his actions toward the other employees located inside clearly demonstrated an intent to confine them.

Decided February 1, 2017.

Sean K. Scally, for appellant.

Jacquelyn L. Johnson, District Attorney, Andrew J. Ekonomou, Thomas E. Buscemi, Assistant District Attorneys, for appellee.

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

Barnes, P. J., and Rickman, J., concur.

       The evidence at trial showed that despite his representations, Moore did not possess a real gun.

       We may consider the word “confine” to have its commonly understood meaning, which is holding one within a location or keeping one within certain limits. See Alexander v. State, 279 Ga. 683, 686 (3) (620 SE2d 792) (2005).


author: BARNES, Presiding Judge.

text:
    A16A1481.
    In the Interest of J. M. A., a child.
    (796 SE2d 773)
   BARNES, Presiding Judge.

J. M. A. appeals from the juvenile court’s judgment adjudicating him delinquent for violating the conditions of his probation. J. M. A. contends that the juvenile court erred in denying his motion to dismiss the State’s delinquency petition for lack of jurisdiction, and he challenges the sufficiency of the evidence to support the court’s adjudication of delinquency. For the reasons discussed below, we affirm.

In reviewing a delinquency adjudication, we construe the record in the light most favorable to the juvenile court’s ruling. In the Interest of J. W., 309 Ga. App. 470, 470-471 (711 SE2d 48) (2011). So construed, the record shows that on July 18, 2014, 13-year-old J. M.A. was adjudicated delinquent in the Juvenile Court of DeKalb County for criminal attempt to commit burglary and was placed on probation for one year. The specific conditions of J. M. A.’s probation included that he perform 40 hours of community service during his probationary term and pay an initial probation supervision fee of $75 by September 18, 2014.

On July 16,2015, the State filed a complaint in the juvenile court, alleging that J. M. A. had committed the delinquent act of violating his probation by failing to complete his community service hours and pay the full supervision fee. The complaint cited to OCGA § 15-11-2 (19) (B) (2014), which defines a “delinquent act” to include “[t]he act of disobeying the terms of supervision contained in a court order which has been directed to a child who has been adjudicated to have committed a delinquent act.” The State subsequently filed a delinquency petition against J. M. A. that contained the same allegations as the complaint and again cited to OCGA § 15-11-2 (19) (B) as the basis for the charge.

In October 2015, J. M. A. filed a motion to dismiss the delinquency petition. According to J. M. A., the July 18, 2014 probation order upon which the delinquency petition was predicated had expired one year after he had been placed on probation, and there was no statutory or common law basis for tolling his probationary sentence. J. M. A. argued that once the probation order expired, the juvenile court lost jurisdiction to continue to hear any claims brought by the State that he had violated the conditions of his probation. Hence, J. M. A. maintained, the State’s delinquency petition ought to be dismissed for lack of jurisdiction.

The juvenile court denied J. M. A.’s motion to dismiss, concluding that J. M. A.’s jurisdictional argument was misplaced because the State had not filed a motion to revoke J. M. A.’s probation, as it could have done under OCGA § 15-11-608 (b). Rather, the juvenile court emphasized, the State had filed a new petition alleging the delinquent act of a violation of probation under OCGA § 15-11-2 (19) (B). Because the State had filed a petition alleging the commission of a new delinquent act rather than sought a revocation of probation, the juvenile court concluded that the question whether the original probationary sentence had expired or been tolled was immaterial. Consequently, the juvenile court ruled that it had jurisdiction to continue to hear the delinquency case, even though the initial term of J. M. A.’s probation had ended.

Following the denial of the motion to dismiss, the juvenile court conducted an adjudicatory hearing in January 2016 on the delinquency charge that J. M. A. had violated the specific conditions of his probation by failing to complete his community service and pay the full supervision fee. Two witnesses testified at the hearing, J. M. A.’s probation officer and his mother. J. M. A. elected not to testify in his own defense.

J. M. A.’s probation officer testified that J. M. A. had only completed 36 of his 40 hours of community service and had an outstanding balance of $55 on his supervision fee when the State initiated the present delinquency proceedings in July 2015. The officer testified that J. M. A. had completed his community service hours by the time of the adjudicatory hearing in January 2016 but still owed the remainder of the supervision fee. The officer further testified that she had sought to work with J. M. A. and his family because of their financial and transportation problems so that J. M. A. could complete the conditions of his probation. In this regard, the officer testified that she allowed J. M. A. great flexibility in choosing where to perform his community service, assisted him in finding a place to perform his community service, and set up a payment plan for the supervision fee with individual payments as low as $7.

J. M. A.’s mother also testified at the hearing. She conceded that J. M. A. had not completed his community service hours until December 2015, several months outside of the one-year probationary term, and still owed $55 of the $75 supervision fee. However, J. M. A.’s mother testified that J. M. A. had been unable to work after April 2015 because he had severely injured his foot, requiring surgery and a period of restricted activity J. M. A.’s mother further testified that before the injury occurred in April 2015, she did not have a car to transport J. M. A. and no money to provide him with bus fare because she was unemployed, and that no businesses would hire him because of his age.

Nevertheless, J. M. A.’s mother conceded that there had been no physical reason J. M. A. could not do some type of work before his foot injury in April 2015, and that there were many restaurants and other local businesses in the immediate area of the apartment where they lived. She further testified that J. M. A. had not made any efforts of which she was aware to find any type of work, and she had personally only asked one restaurant about the possibility of hiring him. J. M. A.’s mother also admitted that J. M. A. received $725 a month in supplemental security income (“SSI”) benefits from Social Security.

At the conclusion of the hearing, J. M. A.’s counsel conceded that J. M. A. had not timely performed all of his community service hours and had not paid the full supervision fee, but he argued that the State had presented insufficient evidence that the probation violations had been wilful. The juvenile court disagreed, stating at the hearing that J. M. A. could have looked for odd jobs like “washing cars” or “sweeping up hair at a barber shop” and there was no evidence that he ever made such efforts. The juvenile court thereafter entered an order adjudicating J. M. A. delinquent for violating his probation, finding “that the allegations of the petition are true, that the acts ascribed to said child were, in fact, committed by said child, and that such acts constitute acts of delinquency... within the meaning of the law.”

The juvenile court released J. M. A. to the custody of his mother. Following a dispositional hearing, the juvenile court placed J. M. A. on probation for six months and included as special conditions of his probation that he perform twenty additional hours of community service and pay a supervision fee of $55. This appeal by J. M. A. followed.

1. J. M. A. first contends that the juvenile court erred in denying his motion to dismiss the delinquency petition for lack of jurisdiction. According to J. M. A., the juvenile court no longer had jurisdiction to adjudicate his alleged violations of probation once his original one-year probationary term ended in July 2015 because there was no statutory or common law basis for tolling the probationary period. We are unpersuaded under the circumstances of this case, where the State filed a new delinquency petition under OCGA § 15-11-2 (19) (B) to address J. M. A.’s alleged probation violations rather than a motion to revoke his probation under OCGA § 15-11-608 (b).

As a general rule, once a sentence has been served, the sentencing court loses jurisdiction over the criminal defendant to modify or alter the sentence. State v. Mohamed, 203 Ga. App. 21, 21 (2) (416 SE2d 358) (1992). See Sentinel Offender Svcs. v. Glover, 296 Ga. 315, 329 (3) (b) (766 SE2d 456) (2014) (“[O]nce a sentence has been served, jurisdiction over the defendant ceases.”). Therefore, a sentencing court’s jurisdiction to revoke or modify an adult criminal defendant’s probation ceases once the term of the defendant’s probationary sentence has ended, unless the expiration of the sentence has been tolled based on statutory or common law principles. See Anderson v. Sentinel Offender Svcs., 298 Ga. 854, 857-858 (1) (784 SE2d 791) (2016); Glover, 296 Ga. at 329 (3) (b); State v. Mills, 268 Ga. 873, 874 (495 SE2d 1) (1998); Mohamed, 203 Ga. App. at 21 (2).

Here, however, the juvenile court did not revoke or modify J. M. A.’s probationary sentence, but instead adjudicated him delinquent for a new substantive offense, as sought by the State when it filed a new delinquency petition under OCGA § 15-11-2 (19) (B). Notably, revocation of probation is not the exclusive remedy available to the State under Georgia’s new Juvenile Code when a juvenile defendant has violated the conditions of his probation. Rather, as this Court recently explained in In the Interest of H. J. C., 331 Ga. App. 506, 509 (2) (771 SE2d 184) (2015),

OCGA § 15-11-2 (19) (B) defines “delinquent acts” as including “[t]he act of disobeying the terms of supervision contained in a court order which has been directed to a child who hasbeenadjudicatedtohavecommittedadelinquentact[.]”... [Thus,] the statute provides a mechanism by which a child who violates probation ordered in a previous adjudication of delinquency may become the subject of a new delinquency petition. ... As part of the same statutory scheme, . . . OCGA § 15-11-608 (b) provides that a delinquent child’s violation of probation “may be reported to the prosecuting attorney who may file a motion in the court for revocation of probation[.]”

(Emphasis supplied.) Given this unambiguous statutory framework, we held in H. J. C., id. at 509-510 (2), that the State is clearly afforded two alternative procedural avenues for addressing a violation of probation in juvenile proceedings: file a new delinquency petition alleging the probation violation as a delinquent act pursuant to OCGA § 15-11-2 (19) (B), or file a motion to revoke the juvenile’s probation under OCGA § 15-11-608 (b).

In the present case, the State chose the first procedural avenue and filed a new delinquency petition against J. M. A., alleging that his violation of the conditions of his probation constituted a delinquent act under OCGA § 15-11-2 (19) (B), and the juvenile court adjudicated J. M. A. delinquent under that petition. It follows that Georgia case law addressing the jurisdiction of a sentencing court to revoke or modify a probationary sentence, relied upon by J. M. A. to support his motion to dismiss, is simply inapposite. Instead, jurisdiction turns on the provisions of the new Juvenile Code that address a juvenile court’s jurisdiction over petitions alleging delinquent acts, and in this regard, the Code plainly and unambiguously provides that a juvenile court has exclusive original jurisdiction to hear and decide cases, like the present one, where a child under the age of 17 years is alleged to have committed a delinquent act. See OCGA §§ 15-11-2 (10) (B); 15-11-10 (1) (A). Nothing in these statutory provisions suggests that the delinquent act of a violation of probation should be treated differently from other delinquent acts for jurisdictional purposes, and we decline to impose different, jurisdictional rules by way of judicial fiat. See generally Frazier v. Southern R. Co., 200 Ga. 590, 593 (2) (37 SE2d 774) (1946) (courts “may not substitute by judicial interpretation language of their own for the clear, unambiguous language of the statute, so as to change the meaning”).

Accordingly, given the aforementioned statutory scheme, we conclude that the juvenile court had jurisdiction to hear and decide the State’s petition alleging that J. M. A. had committed the new delinquent act of violating the conditions of his probation, irrespective of whether the one-year term of J. M. A.’s probation ended after the commencement of the new delinquency proceedings. The juvenile court therefore committed no error in denying J. M. A.’s motion to dismiss for lack of jurisdiction.

2. J. M. A. next contends that there was insufficient evidence for the juvenile court to adjudicate him delinquent for violating his probation because there was no evidence that his failure to pay the full supervision fee and timely complete his community service was wilful. Again, we are unpersuaded.

To support a finding of delinquency, a child’s violation of the conditions of probation must be wilful and voluntary. Gray v. State, 313 Ga. App. 470, 473 (2) (722 SE2d 98) (2011). See Johnson v. State, 162 Ga. App. 226, 226-227 (2) (291 SE2d 94) (1982); Burson v. State, 161 Ga. App. 107, 109 (2) (289 SE2d 254) (1982); Wade v. State, 152 Ga. App. 529, 530 (2) (263 SE2d 268) (1979). If the child is alleged to have violated his probation by failing to pay a fee or fine, there must be evidence that the child “willfully refused to pay or failed to make sufficient bona fide efforts legally to acquire the resources to pay.” Bearden v. Georgia, 461 U. S. 660, 672 (II) (103 SCt 2064, 76 LE2d 221) (1983). See Odom v. State, 312 Ga. App. 403, 404-405 (718 SE2d 329) (2011). If the child is alleged to have violated his probation by failing to complete a required program or community service, there must be evidence that the failure was the result of the child’s own voluntary and wilful conduct rather than circumstances outside his control. See Gray, 313 Ga. App. at 473-474 (2); Oliver v. State, 305 Ga. App. 779, 779-780 (1) (700 SE2d 861) (2010).

In considering the sufficiency of the evidence supporting a juvenile court adjudication of delinquency, we apply the same standard of review that is used in any criminal case by construing the evidence in favor of the adjudication to determine if a rational trier of fact could have found beyond a reasonable doubt that the juvenile committed the acts charged.

In the Interest of J. T., 239 Ga. App. 756, 757 (521 SE2d 862) (1999). We neither weigh the evidence nor resolve issues of witness credibility, In the Interest of M. S., 292 Ga. App. 127, 127 (664 SE2d 240) (2008), and “[a]s long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the [S]tate’s case, the [adjudication] will be upheld.” (Citation and punctuation omitted.) In the Interest of J. L. B., 280 Ga. App. 556, 560 (5) (634 SE2d 514) (2006).

Here, there was at least some evidence, construed in favor of the juvenile court’s ruling, to support a finding beyond a reasonable doubt that J. M. A. had wilfully and voluntarily violated the conditions of his probation as alleged in the State’s delinquency petition. More specifically, there was evidence presented at the hearing that J. M. A. had not paid the full probation supervision fee of $75, even though his probation officer set up a payment plan requiring low monthly payments and J. M. A. received $725 a month in SSI benefits. Furthermore, J. M. A.’s mother conceded at the hearing that J. M. A. had been physically able to work from his adjudication of delinquency in July 2014 until his foot injury in April 2015 and that there were lots of businesses in the immediate area where they lived, but she was unaware of J. M. A. making any personal effort to find any type of work. Under these circumstances, the juvenile court was authorized to find that J. M. A. wilfully refused to pay the supervision fee or failed to make sufficient bona fide efforts legally to acquire the resources to pay the fee, and therefore to conclude that his failure to pay was wilful and voluntary. See Odom, 312 Ga. App. at 404-405 (juvenile court entitled to find that defendant failed to make sufficient bona fide efforts to find a job to pay restitution required by probation order).

Decided February 7, 2017.

Jill E. Roth, for appellant.

Robert D. James, Jr., District Attorney, Ramika R. Gourdine, Assistant District Attorney, for appellee.

Additionally, there was at least some evidence that J. M. A. had wilfully and voluntarily failed to timely perform all of his community service hours. The evidence showed that J. M. A.’s probation officer was flexible in allowing him to choose where to perform his community service and helped him make that choice, that J. M. A. found a place where he could perform his service hours despite having transportation issues, and that J. M. A. had many months in which he could have completed his hours before his foot injury in April 2015. Nevertheless, the evidence showed that J. M. A. performed only a portion of his community service hours during his probationary term and waited until many months after the term had ended before completing his service. Given this record, the juvenile court was entitled to find that J. M. A.’s failure to timely complete his community service hours was wilful and voluntary. See, e.g., Oliver, 305 Ga. App. at 779-780 (1) (defendant failed to complete treatment program as a result of his own poor decisions).

For these combined reasons, we conclude that there was sufficient evidence for the juvenile court to adjudicate J. M. A. delinquent for violating the conditions of his probation. The juvenile court’s adjudicatory order therefore is affirmed.

Judgment affirmed.

Rickman and Self, JJ., concur.

       Georgia’s Juvenile Code was significantly revised, effective January 1, 2014, and the new Code applies “to all offenses which occur and juvenile proceedings commenced on and after such date,” which includes the present case. Ga. L. 2013, p. 294, §§ 1-1, 5-1.

       Construing prior versions of the Juvenile Code, we have held that if a child is still on juvenile court probation after turning 17 and then violates his probation, the State’s only remedy in that specific context is the filing of a petition to revoke probation. See In the Interest of T. F., 314 Ga. App. 606, 607-608 (1) (724 SE2d 892) (2012); In the Interest of B. S. L., 200 Ga. App. 170, 171 (407 SE2d 123) (1991). We need not determine if the same rule applies under the new Juvenile Code, given that J. M. A. committed the alleged probation violations before turning 17.

       Because the State did not seek to revoke J. M. A.’s probation, we express no opinion regarding whether or to what extent principles of statutory or common law tolling apply in the context of a motion to revoke a juvenile’s probation brought pursuant to OCGA § 15-11-608 (b).

       Under certain circumstances, not applicable here, superior courts have concurrent or exclusive jurisdiction over offenses committed by children. See OCGA § 15-11-560.

       J. M. A. did not argue in the juvenile court that the new delinquency proceedings were barred by the applicable statute of limitation, and thus we decline to address what limitation period should apply to delinquency petitions filed pursuant to OCGA § 15-11-2 (19) (B). See In the Interest of S. M. G., 284 Ga. App. 64, 66 (643 SE2d 296) (2007) (appellate courts will not address issues that were neither raised below nor ruled upon by the juvenile court).

       Relying upon Johnson v. State, 307 Ga. App. 570, 572 (707 SE2d 373) (2011), J. M. A. argues that the juvenile court was required to make an express finding at the adjudicatory hearing or a written finding in its order that his failure to pay the supervision fee was wilful and that he failed to make sufficient bona fide efforts to acquire the resources to pay. But Johnson was a probation revocation case where the trial court imprisoned the defendant for failure to pay certain probation fees, and thus it arguably does not apply to the present case, given that J. M. A.’s probation was not revoked and he was not imprisoned for failing to pay the fee. In any event, since our decision in Johnson, we have clarified that a trial court revoking probation is not required to use “precise language,” and that we will affirm the trial court’s revocation of probation for failure to pay a fee so long as it is clear from the record that the trial court considered the wilfulness issue and rejected the probationer’s reasons for being unable to pay. See Odom , 312 Ga. App. at 404-405. And, here, it is clear from the specific arguments raised by J. M. A. at the adjudicatory hearing, and the juvenile court’s statements in response to those arguments, that the court considered the wilfulness issue and rejected J. M. A.’s reasons for being unable to pay the supervision fee. See id.


author: DILLARD, Presiding Judge.

text:
    A16A2119.
    HOOPER et al. v. HEDGEPATH.
    (796 SE2d 779)
   DILLARD, Presiding Judge.

Timothy and Teresa Hooper filed a petition to adopt S. B. H. a little more than one year after his birth and nearly nine months after they obtained physical custody of the child. In filing this petition, the Hoopers also sought to terminate the parental rights of S. B. H.’s biological father, Aaron Hedgepath. Following a hearing, the trial court denied the Hoopers’ motion to terminate Hedgepath’s parental rights and their adoption petition. The Hoopers appeal, arguing that the trial court erred by applying OCGA § 19-8-10 (b) instead of OCGA § 19-8-10 (a) in determining whether to terminate Hedge-path’s parental rights, finding that Hedgepath had not failed to provide support for S. B. H., and failing to consider the best interests of the child. Because we agree that the trial court applied the wrong subsection of OCGA § 19-8-10 in determining whether to terminate Hedgepath’s parental rights, we vacate its order and remand the case for further proceedings consistent with this opinion.

The record shows that on August 23, 2013, Hedgepath’s girlfriend at the time, Jessica Dickson, gave birth to S. B. H., the couple’s only child. Then, approximately three months later, Dickson moved out of state, leaving Hedgepath as S. B. H.’s sole guardian and caregiver. In early December 2013, Teresa Hooper, who believed herselftobethe half-sister of Hedgepath’s mother and, thus, S. B. H.’s great-aunt (and who is married), agreed to take the child into her home for a couple of weeks so that Hedgepath could seek steady employment. But shortly thereafter, Hedgepath was incarcerated for a probation violation. And because S. B. H. was now without a legal custodian, Bartow County DFCS took custody of the child and placed him in foster care for a few weeks while they conducted a home evaluation and background check on the Hoopers. Upon completion of the evaluation, DFCS approved the Hoopers as suitable custodians, and on January 23, 2014, the probate court issued the Hoopers a temporary letter of guardianship of S. B. H., to which Hedgepath consented. As a result, on January 24, 2014, S. B. H. returned to the Hoopers’ custody

While incarcerated, Hedgepath provided no financial support for S. B. H., but he did write several letters for the Hoopers to read to the child. In March 2014, Hedgepath was released from incarceration, but he still provided no financial support and, in fact, did not visit S. B. H. because the Hoopers requested that he submit to a drug-screening before doing so. Instead, on March 19, 2014, he filed a petition for the termination of the Hoopers’ temporary guardianship of S. B. H. But before his petition could be heard, in May 2014, Hedgepath was again incarcerated for yet another probation violation. Consequently, on May 14, 2014, Hedgepath dismissed his petition. He was released from incarceration for his May probation violation on November 26, 2014.

On September 18, 2014, the Hoopers filed a petition in the Superior Court of Bartow County for the adoption of S. B. H., and the consequent termination of Hedgepath and Dickson’s parental rights on the grounds that they abandoned the child. Hedgepath filed a response, in which he asserted, inter alia, that Teresa Hooper was not related to S. B. H. by blood or marriage, and thus, she could not seek to terminate his parental rights under OCGA § 19-8-10 (b), which, he argued, only applied to relatives.

On January 14,2015, the trial court held a hearing, during which it first addressed the issue, raised in Hedgepath’s response, of whether Teresa Hooper was actually related to S. B. H. and, therefore, could adopt the child under OCGA § 19-8-7 (a), or whether she was required to pursue a third-party adoption under OCGA § 19-8-5 (a). And after hearing the testimony of several witnesses, including Teresa, Hedgepath, and Hedgepath’s mother, the trial court found that there was insufficient evidence to show that Teresa was related to S. B. H., and thus, she would have to pursue the adoption under OCGA § 19-8-5 (a).

The hearing then proceeded on the issue of whether Hedgepath’s parental rights should be terminated. And at the conclusion of the hearing, the trial court found that Hedgepath had attempted to communicate with S. B. H. during the past year prior to the Hoopers filing their petition. The court, therefore, stated that it was denying the petition. Two weeks later, the trial court issued a written order, declining to terminate Hedgepath’s parental rights and denying the Hoopers’ petition for adoption. This appeal follows.

At the outset, we note that in an adoption case, the trial judge “sits as both judge and jury and is vested with a broad range of legal discretion.” And on appeal, we construe the evidence to “uphold the trial court’s findings and judgment and affirm if there is any evidence to support the findings.” Nevertheless, as to questions of law, we “apply a de novo standard of review.” With these guiding principles in mind, we turn now to the Hoopers’ specific claims of error.

1. The Hoopers first contend that the trial court erred by apply - ingOCGA§ 19-8-10 (b) instead of OCGA § 19-8-10 (a) in determining whether to terminate Hedgepath’s parental rights. We agree and, thus, vacate the trial court’s order.

Broadly speaking, OCGA § 19-8-10 “delineates the circumstances when surrender or termination of parental rights of [a] nonconsenting parent is not required as a prerequisite to the filing of an adoption petition.” Specifically, former OCGA § 19-8-10 (a) provided as follows:

Surrender or termination of rights of a parent pursuant to subsection (a) of Code Section 19-8-4, 19-8-5, 19-8-6, or 19-8-7 shall not be required as a prerequisite to the filing of a petition for adoption of a child of that parent pursuant to Code Section 19-8-13 where the court determines by clear and convincing evidence that the:
(1) Child has been abandoned by that parent;
(2) Parent cannot be found after a diligent search has been made;
(3) Parent is insane or otherwise incapacitated from surrendering such rights; or
(4) Parent has failed to exercise proper parental care or control due to misconduct or inability, as set out in paragraph (3), (4), or (5) of subsection (a) of Code Section 15-11-310[.]

Alternatively, OCGA § 19-8-10 (b) provides as follows:

Surrender of rights of a parent pursuant to subsection (a) of Code Section 19-8-6 or 19-8-7 shall not be required as a prerequisite to the filing of a petition for adoption of a child of that parent pursuant to Code Section 19-8-13, if that parent, for a period of one year or longer immediately prior to the filing of the petition for adoption, without justifiable cause, has significantly failed:
(1) To communicate or to make a bona fide attempt to communicate with that child in a meaningful, supportive, parental manner; or
(2) To provide for the care and support of that child as required by law or judicial decree[.]

Construing this statute according to its plain meaning, a petitioner pursuing an adoption and consequent termination of parental rights under OCGA § 19-8-6 or § 19-8-7 may do so by proving the requirements outlined in either OCGA § 19-8-10 (a) or (b), as both of those subsections explicitly cite to pursuits under OCGA §§ 19-8-6 and 19-8-7. However, although a petitioner pursuing an adoption under OCGA § 19-8-5 may do so by proving the requirements outlined in OCGA § 19-8-10 (a), the absence of any mention of OCGA § 19-8-5 in OCGA § 19-8-10 (b) is conspicuous. As a result, we construe OCGA § 19-8-10 (b) as inapplicable to petitioners seeking an adoption under OCGA § 19-8-5. Indeed, reading the statute in such a manner (and in this specific context) adheres to the longstanding tenets of statutory construction: “expressio unius est exclusio alterius (expression of one thing implies exclusion of another) and expressum facit cessare taciturn (if some things are expressly mentioned, the inference is stronger that those not mentioned were intended to be excluded).”

In this matter, the trial court found during the hearing that Teresa Hooper had failed to sufficiently show that she was related to S. B. H., and it therefore ruled that her petition to adopt the child would be determined under OCGA § 19-8-5. In its order denying the Hoopers’ adoption petition, the trial court reiterated this conclusion and explicitly further ruled that

[u]nder [OCGA] § 19-8-5 and [§] 19-8-10, pursuant to an adoption not a dependency action, the Court is authorized to terminate a parent’s rights if that parent, for a period of one year or longer immediately prior to the filing of the petition for adoption, without justifiable cause, has significantly failed to communicate or to make a bona fide attempt to communicate with that child or to provide for the care and support of that child as required by law or judicial decree.

And immediately after referencing the specific language of OCGA § 19-8-10 (b), the trial court applied the criteria in that subsection in concluding that termination of Hedgepath’s parental rights was not warranted. But given the fact, as previously noted, that a plain reading of OCGA § 19-8-10 (b) dictates that it does not apply to petitioners pursuing an adoption under OCGA § 19-8-5, the trial court erred in applying this statutory subsection to the Hoopers’ petition. Accordingly, we vacate the trial court’s order and remand this case with direction that the trial court render a determination on the Hoopers’ adoption petition under the applicable statutory standard (i.e., OCGA § 19-8-10 (a)).

Decided February 7, 2017.

Anna M. Johnson, for appellants.

Aaron Hedgepath, pro se.

2. In their remaining enumerations of error, the Hoopers contend that the trial court erred in finding that Hedgepath had not failed in providing support for S. B. H. and that it further erred by failing to consider the best interests of the child. But given our holding in Division 1 supra, vacating the trial court’s order and remanding the case for the trial court to apply the correct legal standard, the Hoopers’ remaining enumerations are, for the time being, moot.

Judgment vacated and case remanded with direction.

Reese and Bethel, JJ., concur.

        See OCGA § 19-8-7 (a) (“Except as otherwise authorized in this Code section, a child who has any living parent or guardian may be adopted by a relative who is related by blood or marriage to the child as a grandparent, great-grandparent, aunt, uncle, great aunt, great uncle, or sibling only if each such living parent and each such guardian has voluntarily and in writing surrendered to that relative and any spouse of such relative all of his or her rights to the child for the purpose of enabling that relative and any such spouse to adopt the child.”).

        See OCGA § 19-8-5 (a) (“Except as otherwise authorized in this chapter, a child who has any living parent or guardian may be adoptedby a third party who is neither the stepparent nor relative of that child, as described in subsection (a) of Code Sections 19-8-6 and 19-8-7, only if each such living parent and each such guardian has voluntarily and in writing surrendered all of his or her rights to such child to that third party for the purpose of enabling that third party to adopt such child. . . .”).

        Park v. Bailey, 329 Ga. App. 569, 571 (765 SE2d 721) (2014) (punctuation omitted).

        Id. (punctuation omitted).

        Id.

         Thaggard v. Willard, 285 Ga. App. 384, 384-85 (646 SE2d 479) (2007); see Alizota v. Stanfield, 329 Ga. App. 550, 556 (765 SE2d 707) (2014) (notingthat OCGA § 19-8-10 (a) and (b) outline the requirements for filing an adoption petition when a parent of the child has not surrendered his or her parental rights).

       In 2016, OCGA § 19-8-10 (a) was amended so that former subsection (4) became subsection (5), and new subsection (4) now reads: “Parent caused his child to be conceived as a result of having nonconsensual sexual intercourse with the mother of his child or when the mother is less than ten years of age ” See Ga. L. 2016, pp. 219, 221, § 3. That amendment has no bearing on this case.

        See Deal v. Coleman, 294 Ga. 170, 172 (1) (a) (751 SE2d 337) (2013) (notingthat appellate courts “must afford the statutory text its plain and ordinary meaning” (punctuation omitted)); In re Whittle, 339 Ga. App. 83, 86 (1) (793 SE2d 123) (2016) (“[W]e must afford the statutory text its plain and ordinary meaning, consider the text contextually, read the text in its most natural and reasonable way, as an ordinary speaker of the English language would, and seek to avoid a construction that makes some language mere surplusage.”) (citations and punctuation omitted).

        See Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts, 107 (1st ed. 2012) (“Virtually all the authorities who discuss the negative-implication canon emphasize that it must be applied with great caution, since its application depends so much on context. . . . Context establishes the conditions for applying the canon, but where those conditions exist, the principle that specification of the one implies the exclusion of the other validly describes how people express themselves and understand verbal expression.”).

        Turner v. Ga. River Network, 297 Ga. 306, 308 (773 SE2d 706) (2015) (punctuation omitted); see Alexander Props. Group, Inc. v. Doe, 280 Ga. 306, 309 (1) (626 SE2d 497) (2006) (holding that based on the principles of expressum facit cessare taciturn and expressio unius est exclusio alterius, the list of actions in a statute is presumed to exclude actions not specifically listed); Hammock v. State, 277 Ga. 612, 615 (3) (592 SE2d 415) (2004) (holding that because one subsection of statute expressly excluded application of defense of habitation between members of the same family, other sections that did not contain such limiting language showed the General Assembly’s intent to allow such defense); Lucas v. Beckman Coulter, Inc., 339 Ga. App. 73, 78 (1) (793 SE2d 119) (2016) (applying expressio unius est exclusio alterius in construing a statute’s subsection to only apply to the other specific subsection referenced).

        See Smallwood, v. Davis, 292 Ga. App. 173, 176-77 (2) (664 SE2d 254) (2008) (reversing trial court’s adoption decree because, in part, it relied on subsection of OCGA § 19-8-10that was not applicable in light of petitioner not basing allegations on such subsection); see also Ray v. Hann, 323 Ga. App. 45, 50 (2) (746 SE2d 600) (2013) (vacating adoption decree and remanding case with direction that trial court make specific findings that criteria of OCGA § 19-8-10 were met).


text:
    A16A1488.
    DOUGLAS v. THE STATE.
    (796 SE2d 893)
   DILLARD, Presiding Judge.

Following a jury trial, James Vernon Douglas was found guilty on one count of child molestation for viewing a pornographic video with his then four-year-old daughter. Douglas appeals from this conviction, arguing that the trial court abused its discretion by failing to (1) excuse a juror for cause and (2) allow the defense to question the victim’s mother as to her own previous false allegation of child molestation. For the reasons set forth infra, we affirm Douglas’s conviction.

Viewed in the light most favorable to the jury’s verdict, the record reflects that in the summer of 2011, Douglas’s daughter, M. D., visited with him overnight at his girlfriend’s home in St. Marys. Approximately one-and-a-half weeks after returning home to Florida, M. D.’s mother discovered the child with her pants removed, touching her genital area both inside and outside before licking her fingers. When the mother asked M. D. where she had learned to do such a thing, M. D. first responded with “nobody,” which the mother found odd. But upon further questioning, M. D. admitted that “James, daddy” taught her that behavior. M. D. then made an outcry to her mother, describing sexual acts that Douglas allegedly performed on and with her, as well as a “dirty movie” that she watched with her father in which two adults engaged in various sexual acts. In the forensic interview that followed, M. D. repeated these same or similar allegations.

During the ensuing investigation by law enforcement, Douglas’s cell phone was searched, and ten pornographic videos were discovered in which adults engaged in various sexual acts. These videos were downloaded to the phone between March and May 2011. Law enforcement also discovered two .pdf files of fictional stories downloaded from a child-sex-stories website, which graphically described raping girls five years old and younger. These stories were downloaded to the phone in May 2011.

At trial, Douglas’s then ex-girlfriend testified that during the time period in question, Douglas had admitted to her that he would watch pornographic videos on his phone while away at his job as a truck driver. And Douglas, who testified in his own defense, also admitted to downloading pornographic videos to his phone, although he denied having knowledge about the child-rape stories, engaging in sexual acts with M. D., or showing M. D. pornographic videos.

The jury convicted Douglas of child molestation for “viewing a pornographic video with [M. D.] with the intent to arouse and satisfy [his] sexual desires . . . He was acquitted of a charge of child molestation based upon an allegation that he placed his penis on M. D.’s vagina. And the jury was hung as to a count of child molestation based upon an allegation that he placed his hand on M. D.’s vagina. This appeal follows the denial of Douglas’s motion for new trial, which was filed after the trial court granted his motion for an out-of-time appeal.

1. Douglas first argues that the trial court abused its discretion by failing to excuse a prospective juror for cause after that juror expressed bias against him. We disagree.

It is well established that before a juror can be disqualified for cause, “it must be shown that an opinion held by the potential juror is so fixed and definite that the juror will be unable to set the opinion aside and decide the case based upon the evidence or the court’s charge upon the evidence.” And the decision to strike a juror for cause “lies within the sound discretion of the trial court, and that decision will not be disturbed absent an abuse of discretion.”

Here, Douglas contends that the trial court abused its discretion by failing to strike a prospective juror who volunteered that he would feel uncomfortable serving as a juror because he was the father of “two young daughters.” When pressed on the matter, the prospective juror agreed with the statement that, “whether or not [Douglas] did anything,” he would have “negative feelings for [Douglas] just because [M. D.] had to come and testify” The prospective juror further agreed that “just the fact that [M. D.] [would] have to come and testify, irrespective of whether [Douglas] did what they say he did, [his] sympathy for the child [was] going to bleed over into some negative feelings against [Douglas] justbecause [M. D.] had to come [to court].” The prospective juror then explained that because he also had a granddaughter, “it will be very hard because [they are] about the same age.”

When defense counsel continued to question the prospective juror as to whether or not he would be able to put his feelings aside, the juror responded that “it would be very hard being impartial because . . . it’s hard to hear a kid talking and — the innocence of a child is very powerful.” Defense counsel then asked if the prospective juror would “hold it against [Douglas], it doesn’t matter what the evidence is that comes out, just the fact that there’s been a charge and [M. D.] had to come here, that is going to sway you to some degree or another?” To this, the prospective juror responded as follows (with intermittent interruptions by defense counsel, as denoted by ellipses): “What I’m saying is.. . . Well, now, let me be clear. .. . You know if the proof is different, I would have to go with that, but, you know, it will be harder. ... — you know, to come to that part, especially when, you know, you have a kid here.”

When the defense moved to strike the prospective juror for cause, the trial court denied the motion because the court determined that the juror “indicated that [M. D. testifying] would cause him some discomfort, but that he could listen to the evidence, and depend[ ] on what the evidence reflected . . . As the trial court determined, the record reflects that the juror was willing to consider the evidence and knew that “if the proof [was] different” he would “have to go with that,” although he admitted that doing so would be more difficult, due to the fact that a child would testify, i.e., due to the nature of the crime as involving a child victim. And we have previously held that a juror who “expresses a willingness to try to be objective and whose bias arises from feelings about the particular crime as opposed to feelings about the accused may be eligible for service.” Thus, under these particular circumstances, we cannot say that the trial court manifestly abused its discretion in failing to strike the prospective juror for cause.

2. Finally, Douglas contends that the trial court abused its discretion by failing to allow him to question the victim’s mother as to her own previous false allegation of child molestation. Once again, we disagree.

First, we note that because this case was tried after January 1, 2013, our new Evidence Code applies. And OCGA § 24-6-608 provides “very specific, limited methods for attacking or supporting the credibility of a witness by evidence in the form of opinion or reputation.” Indeed, under that portion of the statute,

[t]he credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, subject to the following limitations:
(1) The evidence may refer only to character for truthfulness or untruthfulness; and
(2) Evidence of truthful character shall be admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.

OCGA § 24-6-608 also provides that the use of “specific instances of a witness’s conduct, for the purpose of attacking or supporting the witness’s character for truthfulness, other than a conviction of a crime or conduct indicative of the witness’s bias toward a party may not be proved by extrinsic evidence.” In the trial court’s discretion, however, evidence of specific instances of conduct,

. . . if probative of truthfulness or untruthfulness, [may] be inquired into on cross-examination of the witness:
(1) Concerning the witness’s character for truthfulness or untruthfulness; or
(2) Concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.

And because OCGA § 24-6-608 (b) “places the decision whether to admit specific instances of conduct within the trial court’s discretion, we will reverse the trial court’s ruling only on a clear abuse of that discretion.”

In this case, Douglas takes issue with the trial court’s failure to allow cross-examination of M. D.’s mother as to her own allegations of molestation by her stepfather, which Douglas’s counsel contended were false allegations because the stepfather was acquitted of same. Douglas suggests that if the mother made a false accusation against her own stepfather, she was likely to have coached M. D. to make a false accusation against him. But regardless of whether such a line of inquiry would be permissible under OCGA § 24-6-608 (b) (when Douglas sought to use the mother’s alleged prior false allegations of sexual misconduct not only to question her credibility but also to indirectly question M. D.’s credibility as well), we cannot say that the trial court abused its discretion in precluding any such cross-examination under the circumstances outlined in this opinion. Indeed, the fact that M. D.’s mother’s stepfather was acquitted on charges of molestation does not necessarily mean that the mother’s accusations against her stepfather were false, and Douglas offered no other proof of falsity during his proffer, such as a recantation by the mother. Additionally, this specific instance of conduct was temporally remote from M. D.’s allegations against Douglas, and there was no showing of any similarity between the mother’s accusations against her stepfather andM. D.’s allegations against Douglas. Thus, it was not an abuse of discretion to preclude questioning as to this specific instance of conduct.

Furthermore, even if the trial court erred in precluding Douglas’s cross-examination of M. D.’s mother, the error was harmless. The standard for weighing nonconstitutional error in criminal cases is the “highly probable test” or, in other words, that it is “highly probable that the error did not contribute to the judgment.” And under this test, “a reversal is not required if the evidence of guilt is overwhelming in that there is no reasonable probability that the verdict would have been different, in the absence of this error.”

Here, Douglas’s sole conviction for child molestation was based upon M. D.’s repeated allegation (both to her mother and the forensic interviewer, and in her trial testimony) that Douglas showed her a “dirty” or “nasty” movie on his phone, which she described as containing adults engaged in sexual activities. Additionally, Douglas’s ex-girlfriend testified that he admitted to having and watching pornography on his phone during the relevant time period, and Douglas testified to the same when he took the stand in his own defense. And, of course, law enforcement not only located ten pornographic videos on Douglas’s phone but also two .pdf documents containing stories that graphically depicted the rapes of girls five years old and younger—and M. D. was four years old when she claimed that Douglas viewed the pornographic video with her on his phone. Thus, in light of this evidence, it is highly probable that if the trial court erred in precluding the cross-examination discussed supra, the error did not contribute to the jury’s verdict.

Decided February 8, 2017.

R. Richard Parker, for appellant.

Jacquelyn L. Johnson, District Attorney, Andrew J. Ekonomou, Assistant District Attorney, for appellee.

Accordingly, for all of the foregoing reasons, we affirm Douglas’s conviction for child molestation.

Judgment affirmed.

Reese and Bethel, JJ., concur.

       The jury acquitted Douglas of a third count of child molestation and was hung as to a second count of child molestation, with the State subsequently entering a nolle prosequi as to that second count.

        See, e.g., Muse v. State, 323 Ga. App. 779, 780 (748 SE2d 136) (2013).

        Haynes v. State, 326 Ga. App. 336, 339 (2) (756 SE2d 599) (2014) (punctuation omitted); accord Foster v. State, 271 Ga. App. 426, 428 (2) (609 SE2d 751) (2005); Torres v. State, 253 Ga. App. 318, 319 (2) (558 SE2d 850) (2002).

        Haynes, 326 Ga. App. at 339-40 (2) (punctuation omitted); accord Foster, 271 Ga. App. at 428 (2); Torres, 253 Ga. App. at 319-20 (2); see also Ashmid v. State, 316 Ga. App. 550, 554 (2) (730 SE2 d 37) (2012) (“ [T] rial courts have broad discretion to evaluate and rule upon a potential juror’s impartiality, based upon the ordinary general rules of human experience. In this regard, a trial court may only be reversed upon a finding of manifest abuse of that discretion.” (punctuation and footnote omitted)).

         Weeks v. State, 270 Ga. App. 889, 896 (4) (608 SE2d 259) (2004) (punctuation omitted); accord Beaudoin v. State, 311 Ga. App. 91, 93 (2) (714 SE2d 624) (2011); Reddick v. State, 264 Ga. App. 487, 496 (5) (a) (591 SE2d 392) (2003), overruled on other grounds by State v. Springer, 297 Ga. 376 (774 SE2d 106) (2015).

        See Parrott v. State, 318 Ga. App. 545, 550-51 (2) (736 SE2d 436) (2012) (holding that trial court did not abuse its discretion in failing to excuse juror for cause when “juror indicated that her bias was against the nature of the crime rather than against [the defendant personally], and because she said she could determine the issues fairly based upon the evidence presented”); Foster, 271 Ga. App. at 428-31 (2) (holding, when juror expressed willingness to try to be objective and her bias arose from feelings about particular crime as opposed to feelings about defendant, that it was not an abuse of discretion to fail to strike juror for cause who had reservations about ability to be fair in statutory rape, child molestation, and enticing a child for indecent purposes prosecution because her daughter was molested and she was subpoenaed for her daughter’s trial the same week); Weeks, 270 Ga. App. at 896 (4) (holding that trial court did not abuse its discretion in failing to strike a prospective juror who “expressed his discomfort with hearing facts associated with a child molestation case and a tendency to accept the word of a child, [but who] said that he would nevertheless make every effort to determine the case based upon the facts and the law”).

        See Ga. L. 2011, pp. 99, 214, § 101 (providing that Georgia’s new Evidence Code applies “to any motion made or hearing or trial commenced on or after” January 1, 2013). Of course, “[m]any provisions of the new Evidence Code were borrowed from the Federal Rules of Evidence, and when we consider the meaning of these provisions, we look to decisions of the federal appellate courts construing and applying the Federal Rules, especially the decisions of the United States Supreme Court and the Eleventh Circuit.” Olds v. State, 299 Ga. 65, 69 (2) (786 SE2d 633) (2016).

        Gaskin v. State, 334 Ga. App. 758, 761 (1) (a) (780 SE2d 426) (2015) (punctuation omitted); accord Williams v. State, 332 Ga. App. 546, 548 (1) (b) (774 SE2d 126) (2015).

       OCGA § 24-6-608 (a).

        Williams, 332 Ga. App. at 548-49(1) (b) (punctuation omitted), quoting OCGA § 24-6-608 (b); accord Gaskin, 334 Ga. App. at 761-62 (1) (a).

       OCGA § 24-6-608 (b) (emphasis supplied); accord Gaskin, 334 Ga. App. at 761-62 (1) (a); see also Williams, 332 Ga. App. at 549 (1) (b) (“Such instances may however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness concerning the witness’s character for truthfulness or untruthfulness.” (punctuation omitted)).

        Gaskin, 334 Ga. App. at 762 (1) (a); see Bradshaw v. State, 296 Ga. 650, 656 (3) (769 SE2d 892) (2015) (adopting federal “clear abuse of discretion” standard for introduction of evidence under Fed. R. Evid. 403 and 404 (b)). See generally Paul S. Milich, Courtroom Handbook on Georgia Evidence, (I) Impeachment-Untruthful Acts (2016 ed.) (“Since this second form of impeachment is expressly made at the discretion of the trial court, counsel should inform the court and opposing party, outside the hearing of the jury, of intent to inquire into such matters. The trial court should permit the inquiry if the credibility of the witness is a key issue in the case, counsel has reliable facts as a basis for the inquiry, the prior incident is truly probative of the witness’s truthfulness, and usefulness of the inquiry is not otherwise outweighed by any prejudicial effects, including confusing the jury or wasting time.”).

        See Ronald L. Carlson & Michael Scott Carlson, Carlson on Evidence, p. 327 (4th ed. 2016) (“Prior false allegations of sexual misconduct are considered in federal and state courts under Rule 608 (b)); cf. Wand v. State, 230 Ga. App. 460, 463 (2) (c) (496 SE2d 771) (1998) (physical precedent only) (“Showing the victim made previous false allegations is directly relevant to the question of [the] defendant’s guilt; showing the victim’s mother reported those allegations does not affect the victim’s credibility. The relevance of the mother’s reporting is marginal.”); State v. R. E. B., 895 A2d 1224, 1229 (II) (A) (N.J. Super. 2006) (“[T]he trial judge must determine at a [Rule] 104 hearing, by a preponderance of the evidence, whether the defendant has proven that a prior accusation charging criminal conduct was made by the vict im and whether that accusation was false. If defendant meets this burden, then the trial judge must consider specific factors ... to determine admissibility of the evidence.” (citations and punctuation omitted) (emphasis supplied)). But cf. Wand, 230 Ga. App. at 466 (Smith, J., concurring specially and in judgment only) (“I cannot agree that the relevance of the mother’s credibility in this case is ‘marginal,’ as stated by the majority. She reported the alleged incident to the police, and alleged evidence of prior similar false allegations could impact on her credibility and propensity for making such allegations.”).

       Despite the fact that the trial court denied Douglas’s request to cross-examine the mother on this subject under relevance and OCGA § 24-6-608, and the fact that the State argued same below and does so again on appeal, Douglas’s appellate brief does not discuss the new Evidence Code or any federal cases that address this type of questioning under Federal Rule 608. Instead, he relies solely on cases that were decided under our prior Evidence Code. We remind Douglas’s counsel of “the importance of relying upon the new Evidence Code, as well as its accompanying case law, in addressing evidentiary issues arising after the new code’s effective date.” Patch v. State, 337 Ga. App. 233, 241 (2) n.21 (786 SE2d 882) (2016); see also Stratacos v. State, 293 Ga. 401, 408-09 (2) (b) n.10 (748 SE2d 828) (2013) (“[I]t is always risky for courts to rely on a precedent interpreting a statute or other legal text without first examining whether the legal text on which the precedent was based has been revised and then considering the effect of any such change. .. . And we add that courts relying on old precedents regarding evidentiary issues should be particularly attuned to this risk in light of Georgia’s new Evidence Code.”).

        See Beverley v. Romanouiski, Case No. 13-14470, 2016 WL 3031380, at *4 (IV) (A) (2) (b) (E.D. Mich. 2016) (noting that an acquittal alone does not necessarily mean that a prior accusation was false); Capshaw v. Commonwealth, 253 SW3d 557, 566 (III) (A) (Ky. Ct. App. 2007) (“[AJbsent a showing that [the victim’s] prior accusations are in fact false, either by her recanting them or having been proved false, such as by physical evidence, the trial court acted properly in excluding the evidence.”). See generally Carlson, supra note 13, p.229 (“Courts have held that before purportedly false prior complaints of sexual abuse can be admitted, a trial judge must determine at a Rule 104 hearing, by a preponderance of the evidence, whether the defendant has proven that a prior accusation charging criminal conduct was made by the victim and whether that accusation was false.”). But see Perry v. State, 622 NE2d 975, 980 (II) (C) (Ind. Ct. App. 1993) (noting that in a prior case, court “upheld the exclusion of an allegedly false prior accusation of sexual misconduct where the proponent of that evidence failed to show either that the victim had admitted the falsity of the accusation, or that there had been a trial and the person charged had been found not guilty”).

        See R. E. B., 895 A2d at 1229 (II) (A) (noting that if a defendant meets the burden of showing that the vict im made a prior accusation charging criminal conduct that was false, then the trial judge must determine admissibility of the evidence by considering “whether the victim’s credibility is the central issue, the similarity of the prior false accusation to the crime charged, the proximity of the prior false accusation to the current charges, the number of witnesses, the items of extrinsic evidence, the time required for presentation of the issue, and whether the false accusation’s probative value will be outweighed by undue prejudice, confusion of the issues, and waste of time” (punctuation omitted)).

        See United States v. Augustin, 661 F3d 1105, 1128 (VI) (11th Cir. 2011) (holding that district court did not abuse its discretion by precluding cross-examination of a witness regarding a failed polygraph test over a decade earlier, and acknowledging the “substantial limitations to the reliability of polygraphs”); United States v. Novaton, 271 F3d 968, 1006-07 (II) (F) (11th Cir. 2001) (holding that trial court properly precluded cross-examination questioning as to specific instance of conduct that was temporally remote from testimony given at trial, having occurred more than six years prior to trial); see also United States v. Crow Eagle, 705 F3d 325, 328 (III) (8th Cir. 2013) (“The [Sixth Amendment] right of confrontation . . . does not permit the impeachment of a victim with (alleged) prior false allegations if their probative value is weak.”).

        See OCGA § 24-1-103 (a) (“Error shall not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected.”).

        Gaskin, 334 Ga. App. at 763-64 (1) (b); accord Leverette v. State, 303 Ga. App. 849, 852 (2) (696 SE2d 62) (2010).

        Gaskin, 334 Ga. App. at 764 (1) (b); accord Leverette, 303 Ga. App. at 852 (2).

        See Goldey v. State, 289 Ga. App. 198, 198-99 (1) (656 SE2d 549) (2008) (holding that error, if any, in court’s failure to prohibit evidence, was harmless in child molestation prosecution given overwhelming evidence of defendant’s guilt, including testimony of victim and outcry witnesses, corroborative evidence such as videotape and underwear described by victim and numerous handwritten notes); In the Interest of M. G., 239 Ga. App. 787, 790 (521 SE2d 918) (1999) (holding, under prior Evidence Code, that trial court erred by failing to permit cross-examination of outcry witness about prior false allegations of molestation he had made regarding children in his care, but concluding that error was harmless when multiple outcry witnesses testified, and the victim testified and was cross-examined at length). Cf. Gaskin, 334 Ga. App. at 764-65 (1) (b) (holding that the erroneous admission of evidence of defendant’s prior arrests was not harmless in prosecution for child molestation when jury was presented with conflicting witness testimony, there was no medical evidence to support charges, victim’s description of extent of defendant’s conduct varied over time, and victim refused to testify about incident at trial); Goldstein v. State, 283 Ga. App. 1, 4-6 (3) (a) (640 SE2d 599) (2006) (holding that defendant was prejudiced by trial counsel’s ineffective assistance when counsel failed to present evidence of victim’s mother’s numerous prior false allegations of her own molestation, spanning from childhood into adulthood, and holding that mother’s false complaints were “highly relevant, both to her own credibility and also to that of the young victim, whose mother’s prior and persistent claims of molestation could surely be expected to affect the victim’s own attitude, behavior, and outlook”).