text:
    A12A1232.
    In the Interest of T. G., a child.
    (733 SE2d 777)
   Adams, Judge.

The father of three-yéar-old T. G. appeals the trial court’s order that terminated his parental rights. He contends that the evidence was insufficient to prove that T. G. was deprived by parental misconduct or inability and that the trial court erred in finding that terminating his parental rights was in T. G.’s best interest. For reasons that follow, we affirm.

On appeal from a juvenile court’s decision to terminate parental rights, we review the evidence in the light most favorable to the court’s decision and determine whether any rational trier of fact could have found by clear and convincing evidence that the parental rights should be terminated.

(Punctuation and footnote omitted.) In the Interest of E. S. K., 299 Ga. App. 35, 35-36 (681 SE2d 705) (2009).

The Department of Family and Children Services (“DFACS”) became involved with T. G. immediately after her birth when her mother, whose rights to three other children had been terminated, tested positive for cocaine. DFACS was granted temporary legal custody. Following a September 17, 2009 hearing, the juvenile court issued an adjudicatory order finding deprivation. The order was based on the facts that T. G. tested positive for cocaine at her birth, her mother had a lengthy history of unrehabilitated substance abuse, neither her mother nor her father had visited T. G. and her father requested a DNAtest to prove paternity. In addition, neither parent was employed, and both received disability payments. DFACS retained temporary legal custody.

After DNA tests proved the father’s paternity, he legitimated the child in January 2010. The permanency plan for T. G. was reunification concurrent with adoption. The case plan required the father to attend a substance abuse evaluation, submit to random drug screens, attend and successfully complete parenting classes, obtain and maintain a source of income/support for the child, maintain suitable housing, and attend a psychological assessment and follow the recommendations of the therapist.

In August 2011, after both parents had undergone psychological assessments, DFACS filed a petition to terminate their parental rights. The petition alleged that the mother and father suffered from medically verifiable deficiencies of their mental and emotional health that rendered them unable to provide adequately for T. G.’s needs. At the hearing on the petition, a clinical psychologist testified about her evaluation of the mother and the father. The mother had been diagnosed with schizophrenia for which she was taking medications. She self-reported a history of drug use. Based on tests she administered, the psychologist testified that the mother would be considered a higher risk for physical child abuse than the general public, was cocaine dependent, had mild mental retardation, and continued to show signs of a serious mental health condition even though she was receiving treatment for it. Her evaluation raised significant concerns about the risk of harm to the child from her mother.

Based on her evaluation of the father, the psychologist determined that he had mild mental retardation and could not read. He reported that he had never worked and was on disability status. She concluded that if he were to play a parenting role with the child, he would need significant support from others. Her concern was the potential for neglect because of his extremely low cognitive level. The parenting situation would be even more difficult if the mother were present because of potential issues of physical child abuse.

Beginning in November 2010, T. G. was transported to a DFACS office for weekly supervised visitation with her parents. The counselor who brought T. G. to the visits and supervised them testified that the mother frequently became angry and used profanity and occasionally became violent during the visits. As a result, she was excluded from visitation for several months. The counselor testified that T. G. interacted well with the father during the visits and that the father tried to calm the mother down when she became agitated, but he was not successful.

The DFACS case manager testified that T. G. had been in the same foster care home since she left the hospital after birth and that the foster parents wanted to adopt her. The case manager testified about the negative effects of long-term foster care, such as aggression, withdrawal, depression, and misbehavior at school.

At the time of the termination of parental rights hearing, T. G.’s biological parents continued to live together. Before filing the petition to terminate parental rights, DFACS discussed the possibility of the father parenting T. G. with the assistance of his niece, but the niece had never given the case manager any indication that she wanted to be involved apart from attending a few parenting classes with the father. The father indicated that he wanted to work with the mother on the case plan.

The father’s niece testified that she was willing to take T. G., but that she did not want any contact with the mother. She testified that her only income was disability payments. If she had T. G., she would want the father to be able to see her, but he would not live with her. At the conclusion of the testimony, the court continued the hearing to give DFACS an opportunity to screen the niece to determine if she would be an appropriate placement for T. G.

At the second hearing, the case manager testified about the results of DFACS’s evaluation of the father’s niece. Her home was determined to be appropriate, although she needed to obtain a bed for the child. A drug screen came back positive for marijuana. She and her brother were on the lease for her home, but her brother refused to be evaluated. Certain of her bills were being paid by other relatives, and her expenses exceeded her income, which consisted largely of social security payments. DFACS did not take a position on approving or disapproving the niece at that point. The hearing was continued again to allow the niece to be further evaluated.

At the third hearing, the case manager testified that DFACS did not consider the niece to be an appropriate placement because of inconsistent drug screens and insufficient finances to provide for T. G. T. G.’s guardian at litem recommended that the court not terminate the father’s parental rights because he had developed a bond with the child. She suggested that the court transfer custody to the father’s niece. T. G.’s attorney concurred in that recommendation. The court took the matter under advisement.

In its order terminating the mother and father’s parental rights, the court found that the father could not parent T. G. independently and that as long as he lived with the mother, the risks to the child were magnified. Although noting that the father loved T. G., the court found that his insistence on wanting to parent the child in the same household with the mother would be dangerous to T. G. The court could not place T. G. with the father’s niece because of her illegal drug use, failure to have her co-tenant evaluated, and questionable financial stability. Whether the niece might be an appropriate placement at some point in the future was an issue left to DFACS to address.

“Georgia law requires that courts follow a two-step analysis in determining whether to terminate parental rights.” In the Interest of T P., 270 Ga. App. 700, 703 (608 SE2d 43) (2004). First, the court must determine whether there is clear and convincing evidence of parental misconduct or inability. OCGA § 15-11-94 (a). Second, the court must consider whether termination of parental rights is in the best interest of the child. Id. The court determines parental misconduct or inability by finding that (1) the child is deprived; (2) the lack of parental care or control is the cause of the deprivation; (3) the cause of the deprivation is likely to continue or will not likely be remedied; and (4) the continued deprivation will cause or is likely to cause serious physical, mental, emotional or moral harm to the child. OCGA § 15-11-94 (b) (4) (A).

1. The father claims that there was no clear and convincing evidence that T. G.’s deprivation would continue or that any continued deprivation would harm the child because he could live with his niece as a family unit or have his niece assist him in his home. He does not challenge the trial court’s findings that T. G. was deprived or that lack of parental care or control was the cause of the deprivation.

The evidence shows that the father is not capable of caring foi T. G. on his own, and that his niece was not deemed an appropriate placement for T. G. The mother continued to reside with the father, making his residence an unsafe place for T. G. to live. Moreover, in these circumstances, the test must be whether the parent standing alone is capable of mastering and can effectively demonstrate the ability to utilize parenting skills. In the Interest of H. F. G., 281 Ga. App. 22, 26 (1) (635 SE2d 338) (2006).

The majority of cases in this state dealing with factual situations of this type have enunciated a rule that in termination cases the welfare of a child is of paramount importance provided there is also evidence that . . . the parent suffers from some mental disability that renders the parent unable to care for the child. . . . This case clearly fits that mold. There is no dispute that as of the time of the hearing and for the foreseeable future, the appellant [father] is unable to furnish proper parental care and control necessary for the child’s physical, mental and emotional health and that these conditions and causes of deprivation are likely to continue for the foreseeable future.

(Punctuation and footnote omitted.) Id. at 27. Given the undisputed evidence that the father cannot independently fulfill his parenting responsibilities, we reach the same conclusion. Id.; see also In the Interest of A. W., 264 Ga. App. 705, 706 (1) (592 SE2d 177) (2003) (disability that renders parent incapable of caring for child is valid legal basis for termination).

There was also sufficient evidence that the continued deprivation was likely to cause serious physical, mental, emotional or moral harm to the child. The father’s inability to care for T. G. independently and his insistence on living with the mother, despite the potential harm to T. G., meant that placement with the father was not an option. In fact, no one recommended that T. G. be placed with the father. With no suitable relative placement, the only alternative is indefinite foster care. The case manager testified about the potential harm associated with long-term foster care, which the juvenile court was authorized to consider in determining that continued deprivation would harm T. G. See In the Interest of A. K., 272 Ga. App. 429, 438 (1) (d) (612 SE2d 581) (2005).

2. The father contends that the trial court erred in finding that it was not in T. G.’s best interest to allow him to parent the child. He points to the recommendations of the guardian ad litem and the attorney for T. G. that his rights not be terminated.

Decided October 24, 2012.

Richard C. Metz, for appellant.

Samuel S. Olens, Attorney General, Shalen S. Nelson, Senior Assistant Attorney General, Elizabeth M. Williamson, Assistant Attorney General, Leo G. Beckmann, Jr., for appellee.

A juvenile court has broad discretion in determining how the interests of the children are best served. And under Georgia law, the same factors that show the existence of parental misconduct or inability may also support a finding by the juvenile court that the termination of parental rights is in the [child’s] best interests.

(Citations and punctuation omitted.) In the Interest of B. L., 278 Ga. App. 388, 394 (2) (629 SE2d 89) (2006). Thus, the trial court was authorized to consider the factors discussed above, including the potential harm of long-term foster care. In addition, T. G.’s foster family had cared for her from birth and wanted to adopt her. See OCGA § 15-11-94 (a) (court may consider children’s need for a secure, stable home). We therefore conclude that the trial court did not abuse its discretion in finding that terminating the father’s parental rights was in T. G.’s best interest. See In the Interest of H. F.G., 281 Ga. App. at 26 (1); see also In the Interest of D. F., 296 Ga. App. 625, 628 (1) (675 SE2d 531) (2009) (although father had bond with children, where relative placement that would allow father to maintain relationship did not work out, mental infirmities rendered him incapable of parenting the children without full-time assistance, and foster parents were taking good care of children and wanted to adopt them, termination of parental rights held to be in children’s best interests).

Judgment affirmed.

Barnes, P. J., and McFadden, J., concur.


source: Caselaw Access Project

author: Adams, Judge.

license: Public Domain

text:
    A12A1046.
    FIFADARA v. GOYAL.
    (733 SE2d 478)
   Adams, Judge.

Nimita Fifadara appeals the superior court’s order denying reconsideration of, or the grant of a new trial on, its order changing custody of her and Ashok Goyal’s only child, A. G., to Goyal, hei ex-husband. She contends the court erred by allowing Goyal to present irrelevant evidence at the custody hearing, by modifying custody without reasonable evidence, and by limiting her presentation at the hearing on her motion for new trial.

In reviewing a denial of a motion for new trial on the general grounds, as here, an appellate court can only set a verdict aside, on evidentiary grounds, as being contrary to law in that it lacks any evidence by which it could be supported. Cook v. Huff, 274 Ga. 186 (1) (552 SE2d 83) (2001).

“A trial court is authorized to modify an original custody award upon a showing of new and material changes in the conditions and circumstances substantially affecting the interest and welfare of the child.” (Citations and punctuation omitted.) Todd v. Casciano, 256 Ga. App. 631, 632 (1) (569 SE2d 566) (2002). Any change in custody is subject to the trial court’s discretion based on the best interests of the child. Bodne v. Bodne, 277 Ga. 445, 446 (588 SE2d 728) (2003). We view the evidence in favor of upholding the trial court’s order and will affirm if there is any reasonable evidence to support the decision. Lifsey v. Lifsey, 256 Ga. 613 (351 SE2d 637) (1987); Mitcham v. Spry, 300 Ga. App. 386 (685 SE2d 374) (2009).

So viewed, the evidence was that Fifadara and Goyal were divorced in February 2009, and the terms of the divorce agreement included joint legal and physical custody of their child, born November 8, 2005, with the parties continuing to reside together for the purpose of co-parenting. Within a few months, however, Fifadara had moved out and, on April 7, 2009, she filed a motion to modify custody in the Superior Court of Gwinnett County, the child’s county of residence. On April 21, 2009, Fifadara filed a request to dismiss her petition. Despite this dismissal, however, both Fifadara and Goyal appeared before the judge who, following a 30-minute hearing on June 5,2009, entered an order modifying child support and visitation and naming Fifadara as the primary physical custodian under the terms of a new parenting plan and custody arrangement.

Barely one month later, Goyal filed his own motion to change custody and to modify his support obligations in DeKalb County where Fifadara had moved with the child; he also sought contempt on various grounds and raised other claims. With regard to custody, Goyal alleged that a change of material circumstances occurred after the June hearing in three ways: Fifadara had proven incapable of honoring his court-ordered rights and had engaged in ploys to cut off his contact with A. G.; she had physically and psychologically abused A. G., causing DFACS to become involved; and she had stated an intent to relocate with A. G. to another state. He argued that her behavior affected A. G. because each event was an attempt to impede his bond with the child. Seventeen months later, following a two-day hearing held on September 24 and December 10, 2010, the court entered its order placing legal and physical custody of A. G. with Goyal. The court held that after the June 5, 2009 order, Fifadara repeatedly interfered with Goyal’s visitation and prevented him from exercising his court-ordered parenting time. The court denied Goyal’s assertions of contempt of court.

The evidence presented during the September and December hearings was that, following the entry of the June 5 order, Goyal and Fifadara, with a couple of her friends, met at a TGIF restaurant on June 11,2009, to discuss various matters, including Fifadara’s desire to move out of state with A. G., to which Goyal objected. Following this meeting, during which Fifadara consumed wine, she got in the car with Goyal and they spent the night at her apartment. Fifadara said she woke up the next morning in bed with Goyal and determined she had been raped. On June 16, 2009, Fifadara filed a Petition for a Protective Order in Gwinnett County, alleging that she had been raped and requesting permission to move out of state with A. G. Fifadara obtained a Temporary Protective Order pending a hearing. Following that hearing on June 25,2009, the trial court dismissed the petition, finding that “[p]laintiff got drunk with her ex-husband blacked out — I woke up naked the next day with him.”

Because of the filing of this petition, Goyal was denied his visitation for Father’s Day, 2009, and did not see A. G. for nine days. Fifadara also filed a report with the police seven days after the TGIF meeting, resulting in Goyal’s being interviewed by a constable who determined no charges were warranted. A warrant was issued for Fifadara for a false report of a crime.

Although the parenting plan provided that visitation was to be determined by the Gwinnett County school calendar, Goyal was deprived of his December 25, 2009, through January 3, 2010, Christmas holiday visitation with A. G. because Fifadara had enrolled A. G. . in a day care program which, unlike the Gwinnett County schools, did not close over the holidays.

On two occasions following entry of the June 2009 order, Fifadara came to Goyal’s home during his visitation with A. G. and insisted that, pursuant to her reading of the parenting plan, she was entitled to take A. G. with her. On both occasions, Gwinnett officers were called and, after reading the parenting plan, they asked Fifadara to leave. Goyal was not consulted regarding A. G.’s schooling, nor was he provided copies of school records regarding his son’s progress or his medical records. On the school record listing those authorized to pick up A. G., Goyal was listed fourth, following Fifadara and two of her friends. Even though A. G. had been raised Hindu prior to the divorce, Goyal was not consulted by Fifadara when she began taking A. G. to a Christian church.

During the two years prior to the 2010 hearings, Fifadara would not answer Goyal’s phone calls seeking to speak with A. G. when she had custody of him. Even when he made contact with A. G., Fifadara limited the calls to two minutes.

On March 17, 2011, the trial court entered its order modifying custody, nunc pro tunc to December 10, 2010, awarding sole legal and physical custody of A. G. to Goyal.

On April 14,2011, with a new attorney, Fifadara filed her Motion to Reconsider Final Modification Order and Motion for New Trial. Following a hearing on July 29, 2011, the motion was denied.

1. In her first enumeration, Fifadara contends that the trial court erred “in refusing to hear all relevant evidence at the Motion for New Trial hearing,” evidence which she argued was newly discovered.

In order to obtain a new trial on the ground of newly discovered evidence, Fifadara had to show that (1) the evidence came to her knowledge since trial; (2) its failure to come to light sooner was not the result of a lack of diligence on her part; (3) it was so material as to make a different verdict likely; (4) it is not merely cumulative; (5) the affidavit of the witness herself should be procured or its absence accounted for; and (6) it served some other purpose than mere impeachment. Flowers v. Union Carbide Corp., 271 Ga.App. 438, 443 (3) (b) (610 SE2d 109) (2005); see OCGA § 5-5-23.

“The grant or denial of a new trial on the ground of newly discovered evidence is not favored and is addressed to the trial court’s sound discretion.” (Footnote omitted.) Gill v. Spivey, 264 Ga. App. 723, 724 (1) (592 SE2d 132) (2003). Accordingly, “[a] trial court’s denial of a motion for new trial on the ground of new evidence will not be reversed absent an abuse of discretion.” (Citation omitted.) Flowers, 271 Ga. App. at 443 (3) (b). See also Med. Staffing Network v. Connors, 313 Ga. App. 645, 647 (1) (722 SE2d 370) (2012).

No affidavits of any witnesses purporting to have newly discovered evidence were included with the motion for new trial filed by Fifadara. Nonetheless, at the hearing on the motion, the trial court allowed Fifadara’s witness, Usha Bansal, to testify. She testified that she had first communicated with Goyal through an Indian matrimonial website in the early summer of 2010. She met him in person on July 9, 2010, and they were boyfriend/girlfriend until July 7, 2011. She visited Goyal in November 2010 and observed him with A. G. According to Bansal, Goyal bought the child a Lego set with which A. G. played for “10,12,15 hours at a time, not doing anything else.” Also, Goyal kept A. G. up until 1:00 or 2:00 a.m. while Goyal talked on the phone or Internet to different women. Bansal acknowledged that she had come to testify and paid her own way because Goyal had promised her a good life but had hurt her instead and she wanted to teach him a lesson.

Although counsel for Fifadara stated that she had other witnesses regarding newly discovered evidence, no affidavits of these witnesses were filed as required, nor did she make any proffer of what newly discovered evidence they possessed. Failure to fulfill one of the requirements for a new trial based on newly discovered evidence is sufficient to deny a motion on that ground. Timberlake v. State, 246 Ga. 488, 491 (1) (271 SE2d 792) (1980).

Despite Fifadara’s argument to the contrary, it was not incumbent upon the trial court to make inquiry regarding the identity of these witnesses or the content of their testimony. See Flowers, 271 Ga. App. at 443 (3) (b).

We find that the trial court’s conclusion that Bansal’s testimony did not meet the criteria for the grant of a motion for new trial was not an abuse of discretion nor was its conduct of the hearing in any way improper.

2. Fifadara contends, in her second enumeration, that the trial court abused its discretion in the original trial of the case “by admitting evidence of acts that were alleged to have occurred before the most recent order concerning child custody [June 5, 2009].”

First, we note that Fifadara’s trial counsel began the hearing of December 10,2010, by requesting permission to go into evidence that occurred prior to the June 5, 2009 order concerning child custody, although he had previously filed a motion in limine seeking to restrict evidence to facts after that date. “It is a well-settled appellate rule that one cannot complain about a ruling of the trial court which the party’s own trial tactics or conduct procured or aided in causing.” (Citations and punctuation omitted.) Wallace v. Swift Spinning Mills, 236 Ga. App. 613, 617 (2) (511 SE2d 904) (1999). “[A party] cannot now complain of a result he aided in causing, because induced error is not an appropriate basis for claiming prejudice.” (Citations and punctuation omitted.) Shaver v. Kawasaki Motors Corp., 273 Ga. App. 140, 141-142 (614 SE2d 240) (2005).

Further, even considering the claimed errors, the first record citation to improper evidence by Fifadara is to colloquy between the trial court and Goyal’s counsel regarding counsel’s effort to impeach Fifadara on her filing of her June 16, 2009 Petition for Protective Order, which occurred after June 5. The other evidence objected to by Fifadara went to the issues of contempt, not change of custody. Also, no objection was made below by Fifadara to introduction of Plaintiff s Exhibit 17, now cited as improper evidence.

Finally, “[i]n determining the best interests of the child, the judge may consider any relevant factor” (Emphasis supplied.) OCGA § 19-9-3 (a) (3). Price v. Wingo, 306 Ga. App. 283, 284 (701 SE2d 904) (2010).

Therefore, no abuse of discretion has been shown.

3. Fifadara also contends that the trial court erred in modifying custody because it was not based on any reasonable evidence.

In its order, the trial court found that Fifadara “repeatedly interfered with Plaintiff-Father’s visitation and prevented the exercise of Plaintiff-Father’s parenting time under the June 5, 2009 Parenting Plan” and concluded that “the most suitable way to rectify Mother’s interference with Father’s visitation is by way of a change of custody and the entry of a new Parenting Plan.”

As recently noted by our Supreme Court, the fact that a parent has interfered with the other parent’s visitation supported the trial court’s finding that it was “more likely [that the other parent] will provide visitation and abide by the Court’s Orders,” and its conclusion that it was in the best interest of the child to modify custody. Viskup v. Viskup, 291 Ga. 103, 105 (2) (727 SE2d 97) (2012). See also Shotwell v. Filip, 314 Ga. App. 93, 96-97 (1) (722 SE2d 906) (2012); Lynch v. Horton, 302 Ga. App. 597, 601 (4) (692 SE2d 34) (2010).

Here, the trial court also noted in its oral pronouncement at the close of the evidence that Fifadara had gotten a modification in Gwinnett County basically under false pretenses and that her credibility had been completely impeached. There was also evidence that she had twice used Petitions for Temporary Protective Orders to interfere with Goyal’s visitation and made a false report to police. Cf. Lynch, 302 Ga. App. at 602 (4) (use of forged court order to attempt to abscond with child was valid factor in modification of custody).

Considering the evidence here, “we are mindful that the Solomonic task of assigning the custody of children lies squarely upon the shoulders of the judge who can see and hear the parties and their witnesses, observe their demeanor and attitudes, and assess their credibility.” (Punctuation omitted.) Lynch, 302 Ga. App. at 601 (4). We will not second-guess the trial court in this regard. Id.

There was no error.

Judgment affirmed.

Barnes, P. J., and McFadden, J., concur.

Decided October 25, 2012.

Gerald A. Griggs, Regina J. Matthews, for appellant.

Douglas N. Fox, for appellee.

       Fifadara argues here that the trial court erred in limiting the hearing to 20 minutes. During the hearing, however, Fifadara did not raise any objection to this limitation and, in fact, acquiesced to the trial court’s limitation.


author: DOYLE, Presiding Judge.

text:
    A12A1080.
    WELCH v. THE STATE.
    (733 SE2d 482)
   DOYLE, Presiding Judge.

Ontarios Welch appeals the denial of his motion for new trial following his conviction of two counts of child molestation. Welch argues that the trial court erred by failing to call the non-testifying child victim as a witness and that trial counsel was ineffective for failing to call the victim. We affirm, for the reasons that follow.

Viewed in favor of the verdict, the evidence shows that in 2005, Christy Welch noticed that her 12-year-old daughter, R. F., was “walking funny,” and R. F. told her that “she was hurting in her private area.” The mother examined R. F. and observed that the child’s genital area was swollen, had “a bump,” and was “split open.” When the mother asked R. F. “who messed with [her],” R. F. and her 11-year-old sister simultaneously responded that Welch, their stepfather, had done so.

The mother took R. F. to the hospital, where she was examined and given medication to treat herpes. Investigator Todd Smith responded to the hospital and spoke with R. F., who told him that Welch had forced her to have sexual intercourse multiple times in the preceding four to five months. Smith arranged for a forensic interview, which was recorded.

The mother confronted Welch a few days after R. F.’s outcry, asking him if there was “anything [he] need[ed] to come clean with.” Welch cried and told her that “he might as well turn himself in [and] get ready to go to jail.” The mother then took Welch to speak to her brother-in-law, Jeff Freeman, and Welch told Freeman that he “slept with [R. F.]. He said he was intoxicated[,] and he thought it was Christy [, his wife].” Freeman, a fireman, then took Welch to the police station. Freeman spoke to R. F. the following day, and she told him that Welch “was messing with her.”

At the police station, Welch gave a recorded statement in which he admitted having sexual intercourse with R. F. on more than one occasion. Welch was arrested and charged with two counts of child molestation.

Prior to the June 16, 2008 trial, Welch made a motion to exclude any child hearsay, arguing that R. F.’s accounts to several witnesses lacked indicia of reliability, that she recanted her statements, and that introduction of the hearsay evidence violated his rights under the confrontation clauses of the United States and Georgia Constitutions. The trial court denied the motion.

At trial, Investigator Smith testified that R. F. told him that “she had been forced to have sex with her step-father for at least the last four to five months ... on more than one occasion.” Smith, without objection, read aloud Welch’s written statement:

[H]as a bad drinking problem; I do thing [sic] I shouldn’t do when I drink. I was hunching my daughter, thinking she was an older woman. I took her clothes off and my clothes. I did it in the living room. I have watched nasty movies on DVD. I have watched nasty [pics] on internet. I turned myself in to get some help. I need help bad. It happened when my wife was at church.

The State also played Welch’s recorded statement in which he admitted having sexual intercourse with R. F. multiple times, and Smith testified that Welch admitted having sex with the child.

Freeman also testified, relaying Welch’s admission that he had “slept with” R. F. The emergency room physician who examined R. F. at the hospital testified as well, stating that R. F.’s left labia was swollen and had a small lesion, and that he could not examine her cervix because “she was in too much pain.” The forensic interviewer also testified, and the State introduced, over Welch’s objection, R. F.’s recorded statement. According to the interviewer, R. F.’s statements to her remained consistent, “she gave a very detailed description of the incident,” and she did not display any signs indicating that she had rehearsed or had been coached.

The State elicited testimony from the mother that she took R. F. to defense counsel’s office on October 5, 2006, and R. F. signed a waiver of prosecution form, stating therein: “[M]y step-dad did not subject me to child molestation, aggravated sodomy[,] or incest. I falsely accused him of the aforementioned charges because he and my mother were going through a divorce. If this case is prosecuted[,] I do not wish to testify. . . .” R. F. also signed an affidavit the same day, stating:

I am the step-daughter of Ontarios Welch. At no time did the Defendant attempt to have sex with me ... or molest me in any way. I made the allegations up because he was always punishing me[,] and I was always getting in trouble [,] and I wanted him to go and leave me and my mother alone. I am sorry if I caused anyone any trouble.

The mother signed the waiver of prosecution form as a witness. According to the mother, the statements contained therein were not true, and when asked why she signed the form, the mother explained that R. F. was having a hard time, including suffering from low self-esteem and poor grades, and they were both frustrated and tired of reliving the incident for the preceding three years. The mother further explained that Welch’s trial counsel had offered to handle her divorce from Welch if she and R. F. signed the affidavit and waiver of prosecution forms and Welch was acquitted.

At the conclusion of the evidence, Welch moved for a directed verdict, based in part upon hearsay evidence, which trial counsel again argued was admitted in violation of Welch’s confrontation rights because R. F. did not testify. The trial court denied the motion, explaining that R. F. was present in the witness room during the trial and that neither party called her as a witness, nor did either party request that the trial court call her as its own witness.

The jury found Welch guilty of two counts of child molestation, and the trial court sentenced him to twenty years on each count, to be served consecutively. Welch filed a motion for new trial, arguing in part that the trial court erred by failing to call R. F. as a witness and that trial counsel was ineffective for failing to do so. The trial court denied Welch’s subsequent motion for new trial on July 6, 2011, and this appeal followed.

1. Welch argues that the trial court erred by failing to call R. F. as a witness. We find no reversible error.

OCGA § 24-3-16 provides:

A statement made by a child under the age of 14 years describing any act of sexual contact or physical abuse performed with or on the child by another or performed with or on another in the presence of the child is admissible in evidence by the testimony of the person or persons to whom made if the child is available to testify in the proceedings and the court finds that the circumstances of the statement provide sufficient indicia of reliability.

Sosebee v. State construed the Code section to require that to

introduce out-of-court declarations by the alleged victim, the court shall... at the request of either party, cause the alleged victim to take the stand. The court shall then inform the jury that it is the court who has called the child as a witness, and that both parties have the opportunity to examine the child. The court shall then allow both parties to examine and cross-examine the child as though the Child Hearsay Statute has not been invoked.

Sosebee and its progeny were recently overruled by Hatley v. State, in which the Supreme Court of Georgia held that “the Child Hearsay Statute, as construed by this Court in Sosebee, . . . and in other appellate cases, cannot pass constitutional muster because it fails to put the onus on the prosecution to put the child victim on the witness stand to confront the defendant,” in violation of the Confrontation Clause. The Hatley Court went on, however, to explain that the statute can survive a Confrontation Clause attack provided that

the prosecution... notifp.es] the defendant within a reasonable period of time prior to trial of its intent to use a child victim’s hearsay statements and... give[s] the defendant an opportunity to raise a Confrontation Clause objection. If the defendant objects, and the State wishes to introduce hearsay statements under OCGA § 24-3-16, the State must present the child witness at trial; if the defendant does not object, the State can introduce the child victim’s hearsay statements subject to the trial court’s determination that the circumstances of the statements provide sufficient indicia of reliability. The trial court should take reasonable steps to ascertain, and put on the record, whether the defendant waives his right to confront the child witness.

The Court also specifically noted “that when hearsay evidence is erroneously admitted in violation of the Confrontation Clause, the error can be deemed harmless beyond a reasonable doubt where the hearsay is cumulative of other admissible evidence.”

In the instant case, Welch specifically raised a Confrontation Clause objection to the State’s introduction of the child hearsay evidence. Pretermitting whether the trial court erred by admitting R. F.’s recorded interview and her statements to the police investigator, the forensic interviewer, her mother, and Freeman, any such error was harmless beyond a reasonable doubt. The evidence against Welch — the testimony of the emergency room physician, Welch’s written statement and recorded confession, and Welch’s admissions to his wife, Freeman, and the police investigator — was overwhelming and cumulative of the hearsay evidence. Moreover, R. F.’s written recantations were admitted into evidence. Under these circumstances, we find no basis for reversal.

2. Welch also argues that trial counsel was ineffective for failing to call R. F. as a witness.

[I]n order to prevail on such a claim of the ineffective assistance of counsel pursuant to Strickland v. Washington,[ ] a criminal defendant must demonstrate that his counsel’s performance was deficient and that, but for such deficiency, there is a reasonable probability that the outcome of the proceeding would have been different; on appeal, this Court is to accept the trial court’s factual findings and credibility determinations unless they are clearly erroneous, but it is to independently apply the legal principles to the facts.

Here, Welch

cannot succeed on his ineffective assistance claim because he cannot overcome the strong presumption that his trial counsel’s decision not to [call R. F. as a witness] was a matter of reasonable trial strategy, and thus cannot show that his counsel was deficient under the first prong of Strickland. Trial tactics and strategy, no matter how mistaken in hindsight, are almost never adequate grounds for finding trial counsel ineffective unless they are so patently unreasonable that no competent attorney would have chosen them.

Decided October 25, 2012.

Walker L. Chandler, for appellant.

Scott L. Ballard, District Attorney, David J. Younker, Assistant District Attorney, for appellee.

“When a court assesses the prejudicial effect of defense counsel’s failure to call a witness, the appellant is required to make an affirmative showing that specifically demonstrates how counsel’s failure would have affected the outcome of his case.”

Here, Welch’s trial counsel did not testify at the hearing on his motion for new trial, and therefore, counsel’s decision not to call R. F. as a witness “must be presumed to be a strategic one.” Making the decision not to call a child victim is a reasonable trial strategy, particularly when the child’s recantation is already in the record. Moreover, because Welch failed to establish that R. F.’s trial testimony would have been favorable to him, whether her testimony would have affected the outcome of the trial is pure speculation. Under these circumstances, Welch has failed to meet his burden under Strickland.

Judgment affirmed.

Andrews and Boggs, JJ., concur.

       OCGA § 16-6-4 (a) (1).

       The trial court permitted the State to show the original handwritten statement to the jury.

       257 Ga. 298 (357 SE2d 562) (1987).

       Id. at 299.

       290 Ga. 480 (722 SE2d 67) (2012).

       Id. at 483 (I).

       Id. at 483-484 (I).

       Id. at 484 (II), citing Gay v. State, 279 Ga. 180, 182 (611 SE2d 31) (2005) and Vaughn v. State, 248 Ga. 127, 131 (281 SE2d 594) (1981).

       Because Welch raised a Confrontation Clause objection at trial and argues the application of Hatley in his appellate brief, we address the issue of the admissibility of the hearsay, notwithstanding that Welch’s specific enumeration argued that the trial court erred by failing to call R. F. as a witness.

       See Hatley, 290 Ga. at 485 (II); Gay, 279 Ga. at 182 (2).

       466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984).

       (Citation omitted.) Johnson v. State, 290 Ga. 382, 383 (2) (721 SE2d 851) (2012).

       (Punctuation omitted.) Flemister v. State, 317 Ga. App. 749, 757 (4) (b) (732 SE2d 810) (2012).

       (Punctuation omitted.) Downer v. State, 310 Ga. App. 136, 140 (3) (a) (712 SE2d 571) (2011).

       (Punctuation omitted.) Flemister, 317 Ga. App. at 757 (4) (b).

       See Flemister, 317 Ga. App. at 757 (4) (b); Downer, 310 Ga. App. at 140 (3) (a).


text:
    A12A1267.
    TRUELOVE et al. v. BUCKLEY.
    (733 SE2d 499)
   Adams, Judge.

Richard L. Buckley, Jr., d/b/a Press-A-Dent brought suit against Jeffrey B. Truelove and his mother Peggy M. Truelove (hereinafter collectively referred to as the appellants) seeking to have the transfer of certain real property (the “property”) from Jeffrey to his mother declared void under OCGA §§ 18-2-74 and 18-2-75 of the Uniform Fraudulent Transfers Act (UFTA). OCGA § 18-2-70 et seq. The trial court found Buckley was entitled to summary judgment under OCGA § 18-2-75 (b), and appellants filed the present appeal. Upon careful consideration, we now reverse the grant of summary judgment in favor of Buckley.

In 1998, Buckley obtained a judgment against Jeffrey Truelove in the amount of approximately $100,000, and a writ of fieri facias was filed, recorded and renewed on the judgment. At the time the trial court’s order was entered in the present case, this judgment remained mostly unsatisfied.

Jeffrey subsequently obtained the right to purchase the property at issue here as part of the settlement of a dispossessory action. But Jeffrey did not have the money to buy the property, so it was arranged that the property would be purchased by his mother Peggy instead and that the property would be deeded to her. However, according to the affidavit of the closing attorney, Peggy did not want the sellers to know she was the one actually buying the property, and the transaction was structured so that at the closing the property would be deeded to Jeffrey and transferred from Jeffrey to Peggy after the closing. The funds for the purchase were deposited in the closing attorney’s trust account; those funds were dispersed at closing to the sellers and the property was deeded to Jeffrey. After the sellers left the closing, however, another deed was executed transferring the property to Peggy, and this bears the same date as the deed from the sellers to Jeffrey. Also on or about the closing date, Peggy, as Lessor, and Jeffrey, as Lessee, executed a “10 Year Buy Out Lease Purchase Agreement” pursuant to which Jeffrey was to pay Peggy $700 a month to lease the property, with those payments going toward the purchase price of the property. The term of the lease purchase was for 120 months and would have expired on August 31, 2016, but Peggy rescinded the agreement on April 23, 2010, because Jeffrey failed to make all the payments due by that date. Nevertheless, Jeffrey was allowed to continue to lease the property for $400 a month, without any purchase rights.

Buckley filed the present case against appellants in 2010, seeking to have the transfer of the property from Jeffrey to Peggy declared fraudulent and void under OCGA §§ 18-2-74 and 18-2-75, and he subsequently moved for summary judgment on his claim under OCGA § 18-2-75. The trial court determined that Buckley was entitled to summary judgment under subsection (b) of that section but found that material issues of fact precluded the grant of summary judgment under subsection (a).

1. We thus begin our analysis by considering whether the transfer was fraudulent as to Buckley under OCGA § 18-2-75 (b), which provides as follows:

A transfer made by a debtor is fraudulent as to a creditor whose claim arose before the transfer was made if the transfer was made to an insider for an antecedent debt, the debtor was insolvent at that time, and the insider had reasonable cause to believe that the debtor was insolvent.

The trial court found that the evidence was undisputed that (1) Buckley’s claim arose prior to the transfer; (2) Peggy was an insider as defined by OCGA § 18-2-71; (3) Peggy knew of her son’s insolvency; and (4) the transfer was for an antecedent debt because Peggy provided the funds to buy the property and Jeffrey transferred the property to Peggy to satisfy this antecedent debt.

Citing OCGA § 18-2-22, appellants argue that the trial court nevertheless erred in granting summary judgment because no evidence was presented that the transfer was made with actual intent to delay, hinder or defraud creditors. However, that Code section was repealed by Ga. L. 2002, p. 141, § 2, effective July 1, 2002, and replaced by the current provisions of the UFTA. The first question we must address then is whether it is necessary to show actual intent in order to establish a fraudulent transfer under OCGA § 18-2-75.

The UFTA “is modeled on the Uniform Fraudulent Transfer Act promulgated by the National Conference of Commissioners on Uniform State Laws and adopted in various forms by 43 states and the District of Columbia.” Bishop v. Patton, 288 Ga. 600, 606 (3) (b) (706 SE2d 634) (2011), disapproved on other grounds, SRB Investment Svcs. v. Branch Banking & Trust Co., 289 Ga. 1 (709 SE2d 267) (2011). For this reason, and in light of the dearth of Georgia decisions construing the provisions of the Georgia UFTA, we look to the decisions of other jurisdictions for guidance. E.g., State v. Mayze, 280 Ga. 5, 9 (622 SE2d 836) (2005) (sister state’s analysis of similar constitutional and statutory provision persuasive although not controlling).

Concerning the issue of intent, the Supreme Court of North Dakota has explained that fraudulent transfers under the UFTA “are broadly separated into two classifications: actual fraud and constructive fraud ” Farstveet v. Rudolph, 630 NW2d 24 (N.D. 2001). While actual or intentional fraud requires a showing of intent, “[cjonstructive fraudulent transfers are established conclusively, without regard to the actual intent of the parties . . . .” Id. at 31.

In Georgia, the provisions governing actual fraud appear in OCGA § 18-2-74, which is not at issue here, while OCGA § 18-2-75, the provision at issue in this case, governs constructively fraudulent transfers. In North Dakota, this identical provision is codified at N. D. Cent. Code § 13-02.1-05 (2), about which the North Dakota court further expounded:

One of the innovations of the Uniform Fraudulent Transfer Act is its adoption of the preferential transfer concept. See Prairie Lakes Health Care System v. Wookey, 1998 SD 99, P14, 583 NW2d 405 [(1998)]. It also has been described as constructive fraud or fraud in law.... [This section] “renders a preferential transfer — i.e., a transfer by an insolvent debtor for or on account of an antecedent debt—to an insider vulnerable as a fraudulent transfer when the insider had reasonable cause to believe that the debtor was insolvent.” UFTA § 5, cmt. (2). While it has been held that debtors generally may prefer one creditor over another in applying assets to discharge their obligations, [this section] curtails this privilege if the debtor is insolvent at the time and the preference is to an insider. Wookey, 1998 SD 99, P14, 583 NW2d 405. The premise behind [this section], “is that an insolvent debtor is obligated to pay debts to creditors not related to him before paying those who are insiders.” UFTA, Prefatory Note. The drafters of the revised Act intended this provision to be an attempt at diminishing the sometimes unfair advantages insiders possess when they are familiar with the debtor’s financial status. Wookey, 1998 SD 99, P14, 583 NW2d 405. Constructive fraudulent transfers are established conclusively, without regard to the actual intent of the parties ....

Farstveet, 630 NW2d at 30-31.

This finding comports with our own plain reading of OCGA § 18-2-75 (b). A showing of actual intent is not necessary under that section; rather a transfer of property will be deemed fraudulent if it falls within the circumstances enumerated therein.

Further, as one Georgia district court has noted, “[i]t is noteworthy that Georgia’s UFTA no longer contains language regarding a transferee’s intent.” United States v. Sherrill, 626 FSupp.2d 1267, 1276, n. 10 (M.D. Ga. 2009). Thus, the fact that Peggy had no knowledge that Jeffrey had an outstanding judgment against him is irrelevant under the current version of the UFTA. Based on the foregoing, we find no merit to appellants’ contention that summary judgment must be reversed because there was no evidence of actual intent to delay, hinder or defraud in this case.

But that does not end our inquiry. Appellants also opposed the grant of summary judgment to Buckley on the basis that this case did not involve an antecedent debt. With this contention we agree.

Although the term “debt” is defined broadly under Georgia’s UFTA, it is clearly limited by the term “antecedent.” “[Essentially a debt is ‘antecedent’ if it is incurred before the transfer. Antecedent debt may be described as a debt preexisting or prior to the transfer.” (Citation omitted; emphasis supplied.) In the Matter of Cavalier Homes of Ga., 102 BR 878 (Bankr. M.D. Ga. 1989).

In this case, Buckley argued and the trial court agreed that Jeffrey became indebted to Peggy when she paid for the property and it was deeded in his name, and that Jeffrey satisfied this preexisting debt by transferring the property to Peggy. However, we believe this narrow, piecemeal view ignores the essential nature of the transaction here, about which the undisputed evidence shows that (1) the property was purchased by Peggy; (2) it was briefly deeded to Jeffrey because he had the right to purchase the property; and (3) the property was transferred to Peggy on the same day and shortly after she purchased it. This evidence clearly shows that the transfer to Peggy was “at essentially the same time” that she purchased the property, and thus was not made to satisfy an “antecedent” debt. Hasbro, Inc. v. Serafino, 37 FSupp.2d 94, 97 (D.C. Mass. 1999) (mortgage was not for antecedent debt when the loan was made at essentially the same time as the mortgage was granted). See also Bear Rock Franchise Systems v. Hedlund (In Re: Hedlund), 2010 Bankr. LEXIS 1840 (Bankr. D. Neb. 2010) (question of fact existed concerning whether the transfer was “substantially contemporaneous” and thus not voidable under the constructive fraud provisions of Nebraska’s UFTA). For this reason, we do not believe this was a constructively fraudulent and preferential transfer that the UFTA was intended to capture; it follows that the trial court’s order granting summary judgment to Buckley on the basis that the transfer was fraudulent under OCGA § 18-2-75 (b) must be reversed.

2. Buckley also argues, however, that he was entitled to summary judgment under subsection (a) of OCGA § 18-2-75. But the trial court ruled adversely to Buckley on this issue, and he did not file a cross-appeal challenging that adverse ruling. See OCGA § 5-6-38; Liu v. Boyd, 294 Ga. App. 224, 226 (2) (668 SE2d 843) (2008); Chester v. Ga. Mut. Ins. Co., 165 Ga. App. 783 (302 SE2d 594) (1983). Further, we do not believe this case comes within the exception that “a ruling that becomes material to an enumeration of error urged by an appellant may be considered by the appellate court without the necessity of a cross-appeal[,]” espoused by our Supreme Court in Ga. Society of Plastic Surgeons v. Anderson, 257 Ga. 710, 711 (1) (363 SE2d 140) (1987).

Moreover, we have examined Buckley’s argument in support of this contention and find it to be without merit. A transfer will not be deemed fraudulent under OCGA § 18-2-75 (a) if reasonably equivalent value is received for the transfer, and the trial court found that a jury must decide whether Jeffrey received reasonably equivalent value for the transfer based on the evidence that he was allowed to reside on the premises. Buckley does not directly challenge this ruling in his brief on appeal, but instead argues that appellants did not point to any evidence or make any argument that Jeffrey received anything in exchange for the property. But the trial court specifically rejected this contention, and noted this issue was raised and argued at the summary judgment hearing. Further, appellants stated as a material fact to be tried that the transaction was for a reasonably equivalent value. Based on the foregoing, we will not consider whether the trial court properly denied summary judgment to Buckley under OCGA § 18-2-75 (a).

Decided October 25, 2012

Troy R. Millikan, for appellants.

Hulsey, Oliver & Mahar, Abbott S. Hayes, Jr., Jessica M. Lund, for appellee.

Judgment reversed.

Barnes, P. J., and McFadden, J., concur.

       Because the first deed from Jeffrey to Peggy was not properly witnessed, a corrected deed from' Jeffrey to Peggy was executed and filed about one month later. However, for purposes of our analysis, we will assume the validity of the first deed from Jeffrey to Peggy.

       Pursuant to OCGA § 18-2-71 (7) an “[i]nsider” includes a relative of the debtor. And a “ ‘Relative’ means an individual related by consanguinity within the third degree as determined by the common law . . ..” OCGA § 18-2-71 (11).

       Pursuant to OCGA § 18-2-71 (5) a debt is a ‘liability on a claim.” A claim is defined in OCGA § 18-2-71 (3) as “a right to payment, whether or not the right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured.” For purposes of our analysis here, we will assume the existence of a debt.

         We are mindful that
      we apply the fundamental rules of statutory construction that require us to construe a statute according to its terms, to give words their plain and ordinary meaning, and to avoid a construction that makes some language mere surplusage. [Cits.] At the same time, we must seek to effectuate the intent of the legislature. OCGA § 1-3-1 (a).

        Slakman v. Continental Cas. Co., 277 Ga. 189, 191 (587 SE2d 24) (2003).

       Again, in light of the broad definition of “debt” under the UFTA, we are assuming the existence of a debt here.

       Subsection (a) of OCGA § 18-2-75 provides:
      A transfer made or obligation incurred by a debtor is fraudulent as to a creditor whose claim arose before the transfer was made or the obligation was incurred if the debtor made the transfer or incurred the obligation without receiving a reasonable equivalent value in exchange for the transfer or obligation and the debtor was insolvent at that time or the debtor became insolvent as a result of the transfer or obligation.


author: BARNES, Presiding Judge.

text:
    A12A1458.
    BAILEY v. THE STATE.
    (733 SE2d 503)
   BARNES, Presiding Judge.

Brian Bailey and his brother Emmanuel Bailey were jointly indicted on 26 felony counts, including aggravated assault, burglary, entering an automobile with the intent to commit theft, firearms possession by a convicted felon, and other theft charges related to a burglary and a string of automobile break-ins and thefts in November and December 2009. Bailey’s brother pled guilty to the charges against him and testified as a defense witness that he committed all of the crimes by himself except one, which he committed with someone other than Bailey. A jury convicted Bailey of all charges except the aggravated assault, and after merging some offenses with others, the trial court sentenced him to an aggregate of 20 years, 12 to be served in custody. Bailey appeals, arguing that the State’s circumstantial evidence was insufficient to authorize a rational trier of fact to find him guilty of the crimes for which he was convicted because it did not eliminate the reasonable possibility that Bailey’s brother committed the offenses alone or with another man. After reviewing the briefs and the record, we affirm the trial court’s denial of Bailey’s motion for new trial.

On appeal, we view the evidence in the light most favorable to the verdict, and Bailey no longer enjoys a presumption of innocence. Campbell v. State, 278 Ga. 839, 840 (1) (607 SE2d 565) (2005). This court determines only the sufficiency of the evidence, not the credibility of the witnesses, which is determined by the trier of fact. Matthiessen v. State, 277 Ga. App. 54 (625 SE2d 422) (2005); O’Bear v. State, 156 Ga. App. 100, 101 (1) (274 SE2d 54) (1980).

Under OCGA § 24-4-6, “[t]o 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.” While mere suspicion is insufficient to support a conviction, “the proved facts need exclude only reasonable hypotheses — not bare possibilities that the crimes could have been committed by someone else.” Morris v. State, 202 Ga. App. 673, 674 (415 SE2d 485) (1992); Locklear v. State, 249 Ga. App. 104, 105 (1) (547 SE2d 764) (2001). Unless the verdict is unsupportable as a matter of law, this court will not disturb the jury’s finding that the evidence was sufficient to exclude every reasonable hypothesis save that of guilt. Morris v. State, 202 Ga. App. at 674.

The presentation of evidence during Bailey’s five-day trial was complex. The State called 46 witnesses and introduced hundreds of exhibits, many of them photographs of stolen items later found in residences connected to Bailey. That a burglary and thefts occurred and that the police found stolen items are not issues on appeal. At issue is whether the State presented sufficient evidence for the jury to conclude that Bailey, with or without his brother, committed these offenses.

We commend both parties to this appeal for their detailed, comprehensive briefs citing properly to the voluminous appellate record. The parties properly supported the factual statements in their briefs by citations to the record, and likewise supported their legal propositions by citations to applicable statutes and case law.

Considered in the light most favorable to the verdict, three victims testified that they discovered crimes involving their vehicles on November 24, 2009. Personal items had been stolen from the cars of two victims, and the third victim’s van had been stolen. Two days later, on November 26, 2009, victims from three more households awoke to find the contents of their vehicles in disarray with items missing, and one victim’s work van was gone. Two days after that, five victims who lived on the same street found that their vehicles had been entered with property missing, and a sixth victim’s van was stolen. On December 1,2009, four more victims, all living on the same street, found that their vehicles had been entered and property was missing, as did three additional victims on December 3, 2009. On December 10, 2009, four victims from two houses close to each other discovered that their vehicles had been entered and property was gone, and a fifth victim’s Buick LeSabre was gone.

On December 11, 2009, a man came home mid-morning to find the stolen LeSabre in his carport. Two men were in the car, which pulled out quickly and clipped the victim’s leg as it left the premises. Before the victim entered his house to find it ransacked and items missing, he called 911 to report the license plate number, and the police found the car abandoned a few blocks away with the engine still warm. A package in the LeSabre was addressed to Bailey’s sister at 2500 Martin Luther King Boulevard (“MLK Boulevard”), and outside of 2500 MLK Boulevard, officers found an empty package addressed to the LeSabre’s owner.

After obtaining and executing a search warrant, the police found the LeSabre license plate inside the residence, along with property stolen from 12 different victims. Bailey’s mother told police that she and her sons used the residence to store things, and Bailey subsequently admitted to having been in the residence a day or two before it was searched. Arrest warrants were issued for both Brian and Emmanuel Bailey, and Emmanuel was arrested. In a recorded telephone call from Bailey to Emmanuel in jail, Emmanuel warned Bailey that the police were looking for him. Bailey asked Emmanuel about the location of a certain bag, which led the police to obtain a backpack Emmanuel had left at his mother’s house. Inside the backpack were several stolen items that were subsequently identified by victims of the November to December 2009 crime spree.

The police attempted to locate Bailey at a house he had been renting at 2303 MLK Boulevard. Outside the residence they found a credit card belonging to one of the victims. As with the house at 2500 MLK Boulevard, the house at 2303 MLK Boulevard appeared to be a “stash house,” used to store items after they were stolen and before they were sold. Inside the residence was mail addressed to 2502 MLK Boulevard, which is the address some utility services used to identify the house otherwise known as 2500 MLK Boulevard, as well as numerous stolen items later identified by victims.

The State presented extensive fingerprint evidence. Bailey’s fingerprint was found on a Cheez-It box found in the shrubbery of a house a few doors away from the house where the LeSabre was stolen, and next to the box was a radio faceplate stolen from another car on the same street. Bailey left two fingerprints on the outside front passenger window of the stolen LeSabre, and his brother left a print on the inside of the passenger window. Finally, Bailey left fingerprints on a blue metal box stolen from that house and recovered from 2500 MLK Boulevard.

The State also introduced similar transaction evidence that Bailey pled guilty to stealing an automobile in February 2005, and again in January 2006.

Emmanuel Bailey testified for the defense that he pled guilty to the charges against him and that Bailey neither assisted nor was present at any of the thefts. Emmanuel testified he took the Cheez-It box from 2303 MLK Boulevard, where Bailey had eaten from it, and left it in the bushes near one of the crime scenes, and that the other man in the car at the burglary was a man named “Charles,” who was a “crackhead [he met] in the street.” Emmanuel further testified he had sold most of the stolen items to support his habit of smoking crack cocaine, but he left the items he did not sell at either 2303 or 2500 MLK Boulevard. He said he drove the LeSabre from the burglary to 2303, but when Bailey told him he was about to be evicted from there, he drove to 2500 and left the stolen property he had in the car. On cross-examination, the State impeached Emmanuel with evidence of three prior felony convictions, two for receiving stolen property and one for entering an automobile with the intent to commit theft.

Bailey argues that the circumstantial evidence against him was insufficient to eliminate the reasonable possibility that his brother committed the burglary with another man and all of the other offenses by himself. The existence of the evidence against him, he contends, could be explained in a manner consistent with him being not guilty. For example, his brother had access to both houses where stolen property was found, Bailey left a fingerprint on the Cheez-It box before his brother took it from their residence and dropped it at a crime scene, Bailey touched the blue box stolen during the burglary after his brother left it at 2500 MLK Boulevard, and Bailey’s fingerprints on the outside of the stolen LeSabre did not prove he stole it or was ever inside the car.

In addition to Bailey’s fingerprints on the stolen car, on a cracker box near the scene of the car theft, and on a stolen item found at 2500 MLK Boulevard, the recorded telephone call between Bailey and his brother in jail was incriminating. The State impeached Emmanuel Bailey’s testimony that Bailey had nothing to do with the crimes by introducing evidence of his three prior felony convictions. As noted previously, circumstantial evidence need not exclude every conceivable hypothesis of a defendant’s innocence, only reasonable ones, Locklear v. State, 249 Ga. App. at 105, and whether Bailey’s alternative hypothesis was reasonable was a question for the jury to decide. The evidence here was sufficient to authorize a rational jury to find that the State had excluded every reasonable hypothesis other than Bailey’s guilt and to find him guilty beyond a reasonable doubt of the crimes for which he was convicted. See OCGA § 24-4-6; Jackson v. Virginia, 443 U. S. 307, 319 (99 SC 2781, 61 LE2d 560) (1979); Crouch v. State, 279 Ga. 879, 880 (1) (622 SE2d 818) (2005).

Decided October 25, 2012.

Teresa L. Smith, for appellant.

Lee Darragh, District Attorney, Alison W. Toller, Assistant District Attorney, for appellee.

Judgment affirmed.

Adams and McFadden, JJ., concur.

       Bailey does not argue that the evidence was insufficient to sustain his convictions for felony obstruction of a law enforcement officer and interference with government property for kicking out the back window of a patrol car.

       To avoid confusion, Emmanuel Bailey will be referred to as simply “Emmanuel.”


text:
    A12A1582.
    SKINNER v. THE STATE. DOWDELL v. THE STATE.
    A12A1583.
    (733 SE2d 506)
   DOYLE, Presiding Judge.

In Case No. A12A1582, Manasseh Skinner appeals from his conviction for committing aggravated assault and violating the Georgia Street Gang Terrorism and Prevention Act (“Gang Act”). He contends that the trial court erred by (1) overruling his hearsay obj ection to certain testimony identifying gang signs and activity, and (2) improperly instructing the jury on the Gang Act violation. In Case No. A12A1583, Austin Dowdell appeals from his conviction for the same crimes as well as carrying a concealed weapon and carrying a pistol without a license. In addition to the errors enumerated by Skinner, Dowdell also argues that (3) the evidence was insufficient to support his conviction for carrying a pistol without a license, and (4) the trial court erred by overruling his objection to the State’s comment as to whether a deal had been made with a witness facing pending charges. The two cases arise from the same indictment and trial, so we have consolidated the cases for review. For the reasons that follow, we affirm in each case.

Construed in favor of the verdict, the evidence shows that one evening in July 2009, Skinner, Dowdell, and several friends were at a nightclub. Both Skinner and Dowdell were among several members of the Black Gangster Disciples street gang present at the club, and in keeping with gang practice to assert dominance over their territory, various gang members including Skinner and Dowdell were on the dance floor flashing gang hand signs and dancing roughly, purposefully bumping into other club patrons. As other patrons began to protest, a physical altercation ensued, and Carvella Moore, a friend not affiliated with a gang, was hit in the head with a bottle by Dowdell. Moore swung back, and the altercation escalated; Moore was hit with another bottle, hit with fists, kicked by Skinner, and was eventually left bleeding on the ground outside the club. During the melee, Dowdell displayed a pistol he had concealed in his clothing, which gun he eventually tossed into a nearby vehicle in the parking lot.

Moore was taken to a hospital, and Skinner and Dowdell were later arrested and charged with aggravated assault and violation of the Gang Act; Dowdell was also accused of carrying a concealed weapon and carrying a pistol without a license. Following a jury trial in which they were co-defendants, Skinner and Dowdell were convicted of all counts, and their motions for new trial were denied, giving rise to these appeals.

Case No. A12A1S82

1. Skinner contends that the trial court erred by allowing hearsay testimony when the State called an officer to lay the foundation for demonstrative exhibits displaying hand signs, clothing, and other traits identified by the officer to be associated with street gangs. Skinner objected on the ground that the officer’s knowledge of these traits was based on hearsay. The trial court overruled the objection, and Skinner asserts this as error.

The officer’s testimony was based on his personal dealings and interviews with gang members and leadership, as well as his training and field experience with gangs as a member of the Gang Task Force. Pretermitting whether the testimony was hearsay because it amounted to the officer repeating what he had been told by others, the record demonstrates that the content of the testimony •— identifying gang hand signs, dress, and behavior — was cumulative of testimony by other witnesses (including a gang member) who testified from personal knowledge of the gang and who also identified the hand signs, dress, greetings, and behavior as street gang activity.

The erroneous admission of hearsay is harmless where, as here, legally admissible evidence of the same fact is introduced. In such a case, the hearsay is cumulative and without material effect on the verdict. Because it is highly probable that the cumulative and immaterial hearsay did not contribute to the guilty verdict, a reversal of [the] conviction is not necessary.

2. Skinner also contends that the trial court committed plain error by incorrectly charging the jury on the Gang Act offense. We disagree.

The only requirement regarding jury charges is that the charges, as given, were correct statements of the law and, as a whole, would not mislead a jury of ordinary intelligence. It is a fundamental rule in Georgia that jury instructions must be read and considered as a whole in determining whether the charge contained error.

Here, the trial court gave the following instruction on the offense:

Count 2 of the indictment charges Violation of Street Gang Terrorism Prevention Act. Each defendant in this case is charged with a violation of Count 2.
Criminal street gang means any organization, association!,] or group of three or more persons associated in fact, whether formal or informal, which engages in criminal gang activity that involves violence, possession of a weapon or use of a weapon. The existence of such an organization, association!,] or a group of individuals associated in fact may be established by evidence of a common name or common identifying signs, symbols, tattoo, graffiti, or attire, or other distinguishing characteristics. Criminal street gang shall not include three or more persons associated in fact, whether formal or informal, who are not engaged in criminal gang activity.
It shall be unlawful for any person employed by or associated with a criminal street gang to conduct or participate in criminal street gang activity through the commission of any offense involving violence.

(Emphasis supplied.)

The Gang Act provides that “[i]t shall be unlawful for any person employed by or associated with a criminal street gang to conduct or participate in criminal gang activity through the commission of any offense enumerated in paragraph (1) of Code Section 16-15-3.” The enumerated offenses in OCGA § 16-15-3 (1) include “[a]ny criminal offense in the State of Georgia ... that involves violence ... whether designated as a felony or not.”

Skinner correctly points out the Supreme Court of Georgia has held that these Code sections define an offense in such a way that a necessary and required element “is that there must be some nexus between the act and an intent to further street gang activity.” Based on this, Skinner argues that the trial court committed plain error by not including some language to that effect in the jury charge. But this ignores the further explanation by the Supreme Court that this “nexus is provided by use of the preposition ‘through’ in OCGA § 16-15-4 (a).” The trial court correctly stated the law by using this statutory language in its charge to the jury, so the charge did not omit a nexus between the violence and an intent to further street gang activity, and it was not possible for the jury to convict Skinner without finding this nexus. Accordingly, this enumeration is without merit.

In the absence of reversible error enumerated by Skinner, we ■affirm the judgment in Case No. A12A1582.

Case No. A12A1583

Turning to Dowdell’s appeal, we note that two of his enumerations of error are identical to Skinner’s and fail for the same reasons.

3. In addition to those enumerations, Dowdell contends that the evidence was insufficient to sustain his conviction for carrying a pistol without a license. This Court determines whether the evidence is sufficient under the standard of Jackson v. Virginia, so “the relevant question is.whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Therefore, “[a]s long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, we must uphold the jury’s verdict.”

The applicable Code section defined the offense as follows:

A person commits the offense of carrying a pistol without a license when he has or carries on or about his person, outside of his home, motor vehicle, or place of business, any pistol or revolver without having on his person a valid license issued by the judge of the probate court of the county in which he resides . . . ,

Dowdell argues that the evidence failed to show that he was not licensed because the State did not establish the county in which he resides nor did it establish that he did not have a license from the probate court of that county.

Nevertheless, the statute required him to have “on his person a valid license,” and an officer testified that Dowdell did not have a license when he was arrested. This testimony authorized the jury to find that Dowdell did not possess a license on his person as required, so regardless of Dowdell’s county of residence, this evidence supports a finding of a violation of the Code section.

4. Dowdell also contends that the State’s counsel impermissibly “stated in his place” evidence not otherwise in the record, and this violated his right to confront a witness (the State’s counsel). Specifically, Dowdell refers to an exchange with a witness for the State during which it was revealed that the witness had criminal charges pending against her. The witness responded negatively when Skinner’s counsel asked if she was testifying as part of a deal with the State or to obtain leniency. Another co-defendant’s counsel also asked whether the witness was testifying for the State because of her pending charge, and the witness again replied “no.” The witness then volunteered that she had “caught another charge” in the case underlying this appeal, and unresponsively asked “So, y’all going to help me with that case?” The examination ended, and the witness stepped down, and the State’s counsel said, “Your Honor ... I will state in my place that the District Attorney’s office has no plea agreement or deal with [the witness] in any form or fashion pending at this time.” Dowdell’s counsel objected on the ground that he was unable to cross-examine his opposing counsel’s statement as to the existence of a deal, and the trial court overruled the objection.

Decided October 25, 2012.

Kevin C. Armstrong, for appellants.

Gregory W. Edwards, District Attorney, for appellee.

An attorney’s statements in place can be considered evidence, but as explained by the trial court when it ruled, defense counsel had already cross-examined the witness as to the existence of any incentive from the State in exchange for her testimony. The witness denied any deal, and the State’s comment was merely consistent with that denial. Further, the witness herself compromised her own credibility by voluntarily requesting “help” with her pending charges, and any cross-examination of the State’s counsel was highly unlikely to have had additional evidentiary value. “Harm as well as error must be established by an appellant in order to secure a reversal of his conviction,” and based on the record before us, we discern no error requiring a reversal on the ground urged.

Based on the foregoing, we affirm the judgment in Case No. A12A1583.

Judgments affirmed.

Andrews and Boggs, JJ., concur.

       OCGA § 16-5-21 (a) (2).'

       OCGA § 16-15-1 et seq.

       OCGA § 16-11-126 (a) (2009).

       OCGA § 16-11-128 (a) (2009).

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

       There was conflicting evidence as to whether Skinner was a member of the Black Gangster Disciples or a different gang, but the evidence was consistent that he was in a gang, and any conflict was for resolution by the jury. See Rankin v. State, 278 Ga. 704, 705 (606 SE2d 269) (2004).

       The other co-defendant, Hadji Terrell Dowdell, is not a party to this appeal.

       (Citation omitted.) Felder v. State, 270 Ga. 641, 646 (8) (514 SE2d 416) (1999).

       (Citation and punctuation omitted.) Williamson v. State, 308 Ga. App. 473, 478 (2) (708 SE2d 57) (2011).

       OCGA § 16-15-4 (a).

       OCGA § 16-15-3 (1) (J).

       (Punctuation omitted.) Rodriguez v. State, 284 Ga. 803, 807 (1) (671 SE2d 497) (2009).

       Id.

       443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

       (Citation omitted; emphasis in orignal.) Id. at 319 (III) (B).

       (Citations omitted.) Rankin, 278 Ga. at 705.

       (Emphasis supplied.) OCGA § 16-11-128 (a) (2009). This Code section was repealed in 2010. Ga. L. 2010, p. 963, § 3-1, not codified by the General Assembly, provides, in part, that the repeal of this Code section applies to offenses committed on and after June 4, 2010, and shall not affect any prosecutions for acts occurring before June 4, 2010, and shall not act as an abatement of any such prosecution. The offenses in this case occurred in July 2009.

       OCGA § 16-11-128 (a) (2009).

       See OCGA § 24-4-8 (“The testimony of a single witness is generally sufficient to establish a fact.”).

        See Rank v. Rank, 287 Ga. 147, 149 (2) (695 SE2d 13) (2010); Wright v. State, 284 Ga. App. 169, 171 (1) (643 SE2d 538) (2007) (physical precedent only).

        Rutledge v. State, 245 Ga. 768, 771 (3) (267 SE2d 199) (1980). See also In the Interest of T. S., 317 Ga. App. 683 (1) (732 SE2d 541) (2012) (harm as well as error must be shown when asserting inability to confront a witness).


text:
    A12A1652.
    LORD v. LOWE et al.
    (741 SE2d 155)
   BARNES, Presiding Judge.

Royce Lord committed suicide while imprisoned in the Madison County jail. The administrator of his estate commenced this suit on a bond against former Madison County Sheriff Clayton Lowe (the “Sheriff”), alleging that the Sheriff should have taken steps to prevent the suicide and that the estate was entitled to recover the full amount of the bond as compensation for the Sheriff’s failure to perform the duties of his office. The complaint also named as a defendant the Hartford Fire Insurance Company (“Hartford”), the surety on the bond. The defendants moved to dismiss the complaint on the ground that they were not liable under the bond as a matter of law, and the trial court granted the motion, resulting in this appeal. We agree with the trial court that dismissal was appropriate and affirm.

Under OCGA § 9-11-12 (b) (6), a motion to dismiss for failure to state a claim upon which relief can be granted should not be sustained unless (1) the allegations of the complaint disclose with certainty that the claimant would not be entitled to relief under any state of provable facts asserted in support thereof; and (2) the movant establishes that the claimant could not possibly introduce evidence within the framework of the complaint sufficient to warrant a grant of the relief sought. In deciding a motion to dismiss, all pleadings are to be construed most favorably to the party who filed them, and all doubts regarding such pleadings must be resolved in the filing party’s favor.

(Citation and punctuation omitted.) Anderson v. Daniel, 314 Ga.App. 394, 395 (724 SE2d 401) (2012). Nevertheless, where the face of the complaint demonstrates that the plaintiff can prove no set of facts to support an essential element of a claim, dismissal of that claim is appropriate. See Willis v. United Family Life Ins., 226 Ga. App. 661, 662 (1) (487 SE2d 376) (1997). Even when a complaint is liberally construed, there still “must be some legal basis for recovery.” (Citation and punctuation omitted.) Pugh v. Frank Jackson Lincoln-Mercury, 151 Ga. App. 320, 322 (2) (259 SE2d 711) (1979).

“A copy of any written instrument which is an exhibit to a pleading is a part thereoffor all purposes.” OCGA § 9-11-10 (c). Thus, in ruling on a motion to dismiss, a trial court is authorized to consider exhibits attached to and incorporated into the complaint. Gold Creek SL v. City of Dawsonville, 290 Ga. App. 807, 809 (1) (660 SE2d 858) (2008). If there is any discrepancy between the allegations in the complaint and the attached exhibits, the latter control. H&R Block v. Asher, 231 Ga. 780, 781 (204 SE2d 99) (1974).

Mindful of these principles, we turn to the complaint and the bond agreement attached as an exhibit to it. They reflect that after taking office, the Sheriff obtained a “sheriffs bond” in the sum of $25,000 from Hartford that remained in effect when Lord committed suicide. The condition of the bond was that the Sheriff

shall... faithfully perform the duties of said office or position during [his] said term, and shall pay over to the person authorized by law to receive the same all moneys that may come into his hands during the said term without fraud or delay, and at the expiration of said term, or in case of his resignation or removal from office, shall turn over to his successor all records and property which have come into his hands [.]

The complaint alleged that by not taking appropriate steps to prevent Lord’s suicide, the Sheriff had failed to “faithfully and truly perform the duties of [his] office,” and thus had breached one of the conditions of the bond, entitling the estate to compensation.

The Sheriff and Hartford answered, denying liability under the bond, and filed a motion to dismiss the complaint. The defendants argued, as discussed infra, that the complaint should be dismissed because the bond in question was a statutory bond issued under the authority of OCGA § 15-16-5, and the estate’s allegations of wrongdoing, even if accepted as true, fell outside the coverage of the bond as a matter of law under the “read in/read out” rule for construing statutory bonds. The trial court agreed with the defendants and dismissed the administrator’s complaint.

We conclude that the trial court committed no error in dismissing the complaint. OCGA § 15-16-5 requires all sheriffs to give a surety bond. The statute provides:

The sheriffs shall give a bond in the sum of $25,000.00, which amount may be increased in any county by local Act, conditioned for the faithful accounting for all public and other funds or property coming into the sheriffs’ or their deputies’ custody, control, care, or possession.

As the plain language ofthe statute reflects, OCGA § 15-16-5 requires a sheriff to give a bond conditioned on his faithful accounting for funds and property.

The bond obtained by the Sheriff from Hartford exceeded the requirement imposed by OCGA § 15-16-5 by adding another condition, namely, that the Sheriff “faithfully perform the duties of [his] office.” That additional condition, as the trial court properly concluded, is invalid and unenforceable under the “read in/read out” rule for construing statutory bonds.

Under Georgia law,

[w]here a bond is given under the authority of a statute in force when it is executed, in the absence of anything appearing to show a different intention it will be presumed that the intention of the parties was to execute such a bond as the law required, and such statute constitutes a part of the bond as if incorporated in it, and the bond must be construed in connection with the statute and the construction given to the statute by the courts. Whatever is included in the bond, and is not required by the law, must be read out of it, and whatever is not expressed, and ought to have been incorporated, must be read as if inserted into it; but such rule applies only to matters of substance and not to mere matters of form.

(Citation and punctuation omitted; emphasis supplied.) Campbell v. Benton, 217 Ga. 368, 371 (2) (122 SE2d 223) (1961). See Wooten v. G.M.H. Auto Sales, 187 Ga. App. 331, 334-335 (2) (370 SE2d 165) (1988); Home Indem. Co. v. Battey Machinery Co., 109 Ga. App. 322, 326-327 (2) (a), (b) (136 SE2d 193) (1964); St. Paul-Mercury Indem. Co. v. Koppers Co., 95 Ga. App. 687, 698 (2) (99 SE2d 275) (1957). Thus, a bond given under the authority of a statute “can provide no more protection than that which is required by [the] statute.” Accerbi v. Hartford Fire Ins. Co., No. CV-104-048, 2005 U. S. Dist. LEXIS 36032, at *12 (III) (S.D. Ga. Sept. 26, 2005).

The bond given by the Sheriff was “given under the authority of a statute in force,” i.e., OCGA § 15-16-5. Although the bond did not expressly reference OCGA § 15-16-5 or incorporate the statutory terms into the bond, that is the very provision under Georgia law that provided the Sheriff with authority to give the bond, and the bond itself was for the amount of $25,000, the sum referenced in the statute. Furthermore, the bond included a condition regarding accounting for funds and property coming into the hands of the Sheriff during his term, and in this respect was consistent with and met the coverage requirements imposed by OCGA § 15-16-5. Accordingly, we conclude that the bond was given under the authority of OCGA § 15-16-5, and that, pursuant to the “read in/read out” rule, the additional condition that the Sheriff “faithfully perform the duties of [his] office” is unenforceable and must be read out of the bond.

Relying on Mayor &c. of Brunswick v. Harvey, 114 Ga. 733 (40 SE 754) (1902), and Collins v. United States Fidelity &c. Co., 72 Ga. App. 875 (35 SE2d 474) (1945), the administrator argues that a bond cannot be said to be “given under the authority of a statute in force” where, as in the present case, the bond language does not expressly refer to the statute. We disagree.

In Mayor &c. of Brunswick, our Supreme Court concluded that the instrument in question was not a statutory bond at all, but rather an agreement, “in its nature a policy of fidelity insurance,” between an insurance company and the city under which the company agreed to insure the city against the fraud and dishonesty of its treasurer. 114 Ga. at 735-736. The agreement did not contain all of the provisions required for the type of statutory bond at issue, and the only obligation placed on the treasurer himself was to hold the insurance company harmless from any loss it sustained on the agreement. Id. In that context, our Supreme Court held that the agreement could not be construed as a statutory bond. Id.

Likewise, the instrument in question in Collins was more in the nature of a fidelity insurance policy than a statutory bond. In that case, the instrument was issued directly to the city by the insurance company and was not signed by the officer whose conduct was at issue in the case. Collins, 72 Ga. App. at 877. The instrument provided that in consideration for an annual premium, the insurance company would “reimburse” the city “for direct loss through the failure of any person named in the attached schedule to faithfully perform and discharge according to law the duties of any position to which he may be assigned.” Id. The officer in question was listed in the schedule attached to the instrument submitted to the city. Id. Under those circumstances, we concluded that the instrument could not be construed as a statutory bond given by the officer. Id. at 880-882.

Mayor &c. of Brunswick and Collins involved instruments that were worded and structured in a manner far different from the sheriffs bond at issue in the present case and that were more in the nature of fidelity insurance policies than statutory bonds. Neither case stands for the broad proposition asserted by the administrator that a bond must expressly reference or mention the underlying statute before it can be construed as a statutory bond.

Citing to Cantrell v. Thurman, 231 Ga. App. 510, 514-515 (5) (499 SE2d 416) (1998), the administrator also argues that while the “read in/read out” rule may apply to statutory bonds in general, it should not be applied to statutory sheriffs bonds in particular. We are unpersuaded. In Cantrell, we held that the requirement of the posting of a sheriffs bond under OCGA § 15-16-5 waives sovereign immunity for acts and omissions that come under the coverage of such a bond, and that “[a] sheriffs bond under OCGA § 15-16-5 is a statutorily mandated written contract with the claimant as the designated third-party beneficiary.” 231 Ga. App. at 514-515 (5). We did not mention or address the applicability of the “read in/read out” rule to statutory sheriffs bonds. “Questions which merely lurk in the record, neither brought to the attention of the court nor ruled upon, are not to he considered as having been so decided as to constitute precedents.” (Citations and punctuation omitted.) Jackson v. City of College Park, 230 Ga. App. 487, 490 (1) (496 SE2d 777) (1998). Consequently, the administrator’s reliance upon Cantrell is misplaced and provides no basis for treating statutory sheriff’s bonds different from other statutory bonds to which the “read in/read out” principle has been applied.

Lastly, the administrator, relying upon Stephens v. Crawford, 3 Ga. 499 (1847), maintains that the bond in this case should be construed as a common law bond rather than as a statutory bond. Again, we disagree. In Martin v. Hartford Accident &c. Co., 88 Ga. App. 236, 239-241 (3) (76 SE2d 564) (1953), we distinguished Stephens along with several other cases. We noted that in those cases where we held that the bond in question could be enforced as a common law obligation, “the bond under consideration was held to be insufficient as a statutory obligation.” Id. at 240 (3). We pointed out that such a situation is different from one where the bond meets the criteria for a statutory bond but also includes a condition b eyond what was required by the statute. Id. In that scenario, we concluded that it would be anomalous to enforce the additional condition in the bond under common law principles, and that, instead, the condition that is not required by statute should be treated as “invalid and must be read out of the [bond].” (Citation and punctuation omitted.) Id.

Decided October 25, 2012.

James W. Smith, for appellant.

Hall, Booth, Smith & Slover, Michael C. Pruett, for appellees.

Here, the bond in question met the statutory requirements imposed by OCGA § 15-16-5 and thus was valid as a statutory bond, but contained an additional condition that was not authorized by the statute. Thus, as in Martin, it would be anomalous to enforce the additional condition as a common law obligation; rather, contrary to the administrator’s assertion, the “read in/read out” rule should be applied to excise the offending condition. See St. Paul-Mercury Indent. Co., 95 Ga. App. at 697-698 (2) (where the bond at issue “contain[s] all of the provisions of a bond conforming to the statute,” but contains “an additional provision not authorized by the statute,” the added provision should be “declared illegal,” with the remaining provisions of the bond “complying with the statutory requirements left intact”).

For these combined reasons, we conclude that the additional condition in the bond that the Sheriff “faithfully perform the duties of [his] office” was invalid and unenforceable and could not provide a basis for imposing liability upon the Sheriff or Hartford. The trial court thus did not err in dismissing the administrator’s complaint that asserted a claim predicated solely upon the bond.

Judgment affirmed.

Adams and McFadden, JJ., concur.

       The defendants’ request that the appeal be dismissed, or that some other sanction be imposed, because of the administrator’s alleged untimely filing of his appellate brief is hereby denied.

       The administrator did not assert any tort or constitutional claims against the Sheriff for failing to prevent Lord’s suicide.

       The former version of OCGA § 15-16-5 required broader coverage for a sheriff’s bond. That version of the statute provided:
      The sheriffs shall give a bond in the sum of $25,000.00, which amount may be increased in any county by local Act, conditioned for the faithful performance of their duties as sheriffs, by themselves, their deputies, and their jailers, and upon the terms required by law.
      OCGA § 15-16-5 (a) (1993). The statute was amended in 1994 to narrow the scope of coverage. See Ga. L. 1994, p. 747, § 1. See Adams v. Carlisle, 278 Ga. App. 777, 803 (1), n. 59 (630 SE2d 529) (2006) (Phipps, J., concurring specially) (recognizing that earlier version of OCGA § 15-16-5 required broader coverage).
      The requirements for bonds given by public officers are covered more generally by OCGA § 45-4-1 et seq. Under that chapter of the Georgia Code, the bonds of all public officers required by law to give a bond must be conditioned on the officer’s faithful discharge of his duties, except in cases where a different condition is prescribed by law. OCGA § 45-4-1. Because a different condition is prescribed for sheriff’s bonds by the current version of OCGA § 15-16-5, the broader condition required for public official bonds by OCGA § 45-4-1 does not apply. See Glinton v. And R, Inc., 271 Ga. 864, 867 (524 SE2d 481) (1999) (under the rules of statutory construction, “specific statutes govern over more general statutes”).