text:
    A11A1208.
    HARRELSON v. THE STATE.
    (719 SE2d 569)
   Phipps, Presiding Judge.

Charles Harrelson, William Poss, and Stephanie Harrelson were jointly indicted for hijacking a motor vehicle and related offenses. Poss and Stephanie Harrelson pled guilty and gave testimony implicating Charles Harrelson (the appellant, hereinafter “Harrel-son”) in the commission of the crimes. A jury found Harrelson guilty of hijacking a motor vehicle (Count 1), armed robbery (Count 2), aggravated assault (Count 3), and possession of a knife during the commission of a crime (Count 4). Harrelson appeals, contending that the trial court erred in: (1) denying a motion for a directed verdict because the evidence was insufficient to authorize the convictions; (2) failing to grant a new trial because the prosecutor improperly commented in closing argument on his right to silence after arrest; (3) denying his motion in limine to exclude alleged character evidence; and (4) recharging the jury on the law of conspiracy absent a request to do so. For the reasons that follow, we affirm.

1. Harrelson contends the trial court erred in denying his motion for a directed verdict of acquittal because the evidence was insufficient to support the convictions. He asserts that he was merely present during the crimes, did not participate in the planning of the armed robbery, did not possess the knife during the robbery, did not touch the victim or his wallet, and did not speak to the victim. We disagree because the evidence was sufficient to support Harrelson’s convictions under the theories of conspiracy and parties to a crime, on which the jury was instructed.

A motion for a directed verdict should be granted only when there is no conflict in the evidence and the evidence demands a verdict of acquittal as a matter of law. The standard of review for the denial of a motion for a directed verdict of acquittal is the same as for determining the sufficiency of the evidence to support a conviction: the evidence must be sufficient for a rational trier of fact to find beyond a reasonable doubt that the defendant was guilty of the charged offense. The evidence must be viewed in the light most favorable to support the verdict and the defendant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine the credibility of witnesses.

Viewed in the light most favorable to the verdict, the evidence shows that during the weekend of July 4, 2005, Harrelson, Poss, and Stephanie Harrelson stayed together at various motels. Stephanie Harrelson was Poss’s girlfriend and Harrelson’s sister.

Harrelson did not have steady employment or a vehicle. Neither did Poss or Stephanie Harrelson. By Harrelson’s own testimony, they all spoke that weekend about “a hundred different” ways to get money, some of which included Stephanie Harrelson picking up someone at a bar and taking him back to their motel room to be mugged, robbing liquor stores or gas stations, or snatching someone’s purse. According to Poss and Stephanie Harrelson, they also discussed stealing a car or robbing a bank. While discussing the various ways of getting money, Poss remarked that he thought Harrelson was joking. When Stephanie Harrelson remarked that she thought Harrelson was serious, Harrelson said, “[Y]ou’re damn right Pm being serious.” At some point during the weekend, Har-relson and Poss were informed that warrants were outstanding for their arrests.

The motel at which Harrelson, Poss, and Stephanie Harrelson stayed on July 5, 2005 was within a short walking distance of a grocery store. Harrelson and Poss walked from the motel to the store, and back to the motel, three to four times within a thirty-minute period.

The victim testified that he drove to the store and parked his vehicle. As he walked to the store entrance, he saw two men standing near the store, staring at him. After he made his purchases inside, he exited the store. As he walked to his vehicle, he “had a funny feeling,” turned around, and saw the men following him. When the victim got into his vehicle, one of the men asked him whether he could give them a ride, to which the victim replied, “[n]o.”

The victim testified that the two men continued to walk past his vehicle, but then the same man who had asked for a ride turned around as though “he wanted to fight or something.” The victim, who exited his vehicle, testified that “then [the man] came at me with a knife real quick and got me right in my door . . . and I couldn’t go anywhere.” The man held the knife to the victim’s stomach and ordered the victim to give him his wallet (which had money in it) and keys. The victim complied and then walked to the front of the vehicle. The man with the knife got into the driver’s seat and the other man, who had stood approximately five feet in front of the vehicle during the incident, entered the front passenger side of the vehicle, which was driven away. The victim called the police. The victim made an in-court identification of Harrelson as the man who had gotten into the passenger seat, and Harrelson’s trial counsel stipulated that Harrelson had been “present at the time all this happened.”

Harrelson testified that he stood approximately 15 feet away from the car, and that he got into the car because Poss (who was already seated in the vehicle) pointed a knife at him and told him to get in. Contrary to Harrelson’s assertions, however, Poss testified that he did not threaten Harrelson with a knife to make him get in the vehicle. Harrelson testified that the knife, which had a 3‘A to 4 inch long blade, was his, but that a few days prior to the crimes he had loaned the knife to Poss.

Harrelson and Poss drove to the motel to pick up Stephanie Harrelson; there, Harrelson told her, “come on, let’s go.” They then started driving to Florida. A police car got behind them, and a high-speed car chase and then a foot chase ensued, resulting in the apprehension of the three defendants. According to Stephanie Har-relson, during the car chase, Poss wanted to turn himself in, but Harrelson did not.

Although Harrelson denied that he ever handled the victim’s wallet, the wallet was recovered at the location where the car came to rest, on the ground to the rear of the vehicle, on the front passenger side (where Harrelson had sat); Poss testified that the last time he touched the wallet was when he had placed it on the center console of the vehicle.

On cross-examination, Harrelson testified, “I knew that what I had did when I got in the car was wrong.”

(a) Hijacking a motor vehicle. Harrelson was indicted for hijacking a motor vehicle in that he did “unlawfully conspire to obtain a motor vehicle . . . from the person and presence of [the victim] by force, violence, and intimidation, and did intentionally aid and abet... in the commission of said crime . . . .”

A person commits the offense of hijacking a motor vehicle when “such person while in possession of a . . . weapon obtains a motor vehicle from the person or presence of another by force and violence or intimidation or attempts or conspires to do so.”

The plain terms of OCGA § 16-5-44.1 (b) and the indictment specify conspiracy as a method of committing the crime of hijacking a motor vehicle. Under Georgia law, a defendant is culpable for the consequences of his co-defendant’s acts under the theory of conspiracy if he “together with one or more persons conspires to commit any crime and any one or more of such persons does any overt act to effect the object of the conspiracy.”

A conspiracy may be shown by proof of an agreement between two or more persons to commit a crime, and the existence of the conspiracy agreement may be established by direct proof, or by inference, as a deduction from acts and conduct, which discloses a common design on their part to act together for the accomplishment of the unlawful purpose.

[W]hen individuals associate themselves in an unlawful enterprise, any act done in pursuance of the conspiracy by one of the conspirators is in legal contemplation the act of all, subject to the qualification that each is responsible for the acts of the others only so far as such acts are naturally or necessarily done pursuant to or in furtherance of the conspiracy.

The trial court instructed the jury on conspiracy, which, to a certain extent, mirrors the concept of parties to a crime. Likewise, the trial court instructed the jury on parties to a crime.

A defendant is a party to a crime “if he intentionally aids or abets the commission of the crime, or advises, encourages, hires, counsels, or procures another to commit it.” Under OCGA § 16-2-20, “as parties to a crime, participants may be convicted of a crime even though they are not the actual perpetrator.” In Cargill v. State, the Court held that in a two-defendant murder case, it mattered not whether it was appellant or his accomplice who actually fired a gun during the robbery which resulted in the victim’s death. The act of one was the act of the other in the commission of the underlying offense and the ensuing death which resulted therefrom.

“Mere presence at the scene is not sufficient to convict one of being a party to a crime, but criminal intent may be inferred from conduct before, during, and after the commission of a crime.” Where a defendant, inter alia, stood “directly in front of [the vehicle that was the object of the crimes] at the time of the attempted hijacking, watching, looking around, and talking,” the defendant’s conviction for criminal attempt to hijack a motor vehicle was upheld because a rational trier of fact could infer that he was serving as a lookout and was attempting to block the vehicle from exiting the parking lot. In Lunz v. State, the defendants claimed they had no prior knowledge of a co-defendant’s plan to rob a store, and thought the co-defendant was “joking” when he spoke of robbing a store. However, when the victim was shot, all three defendants were standing together and the victim “heard no one tell [co-defendant] not to do it or protest that fit wasn’t right.’ ” Their convictions were upheld because their “presence, companionship, and conduct before and after the offense are circumstances from which one’s participation in the criminal intent may be inferred,” and were sufficient for a rational trier of fact to find them guilty as parties to each offense charged beyond a reasonable doubt. Whether Harrel-son was a party to the crime because he aided or abetted Poss in the hijacking of the motor vehicle, armed robbery, aggravated assault, and possession of a knife during the commission of a crime or intentionally advised, encouraged, or counseled Poss to commit the crimes was a question for the jury.

In this case, there was ample evidence from which a jury could have concluded that Harrelson was more than “merely present” when Poss committed the offense of hijacking a motor vehicle by his conduct before, during, and after the criminal acts. The jury was authorized to find Harrelson guilty beyond a reasonable doubt of hijacking a motor vehicle, based on his involvement as a party to the crime or as a co-conspirator.

(b) Armed robbery. Harrelson was indicted for armed robbery for allegedly taking money from the victim by use of a knife.

A person commits the offense of armed robbery “when, with intent to commit theft, he or she takes property of another from the person or the immediate presence of another by use of an offensive weapon. . . .”

The victim’s testimony that Poss held a knife to his stomach while demanding the victim’s wallet (which contained money) sufficed to prove the commission of an armed robbery. In light of our holding in Division 1 (a), we conclude that the jury was authorized to find Harrelson guilty beyond a reasonable doubt of armed robbery based on his involvement as a party to the crime or as a co-conspirator.

(c) Aggravated assault. Harrelson was indicted for aggravated assault for allegedly assaulting the victim with a knife, a deadly weapon.

A person may commit the offense of aggravated assault by assaulting another person “[w]ith a deadly weapon.”

The victim’s testimony that Poss held a knife against his stomach while he demanded the victim’s wallet and keys to the vehicle sufficed to prove the commission of an aggravated assault. In light of our holding in Division 1 (a), we conclude that the jury was authorized to find Harrelson guilty beyond a reasonable doubt of aggravated assault based on his involvement as a party to the crime or as a co-conspirator.

(d) Possession of a knife during the commission of a crime. Harrelson was indicted for possession of a knife during the commission of a crime (a felony) for allegedly having “on and within arm’s reach of his person, a knife having a blade three (3) inches and more in length . . . during the commission of Hijacking a Motor Vehicle, Armed Robbery, and Aggravated Assault. ...”

OCGA § 16-11-106 (b), in pertinent part, provides:

Any person who shall have on or within arm’s reach of his or her person a . . . knife having a blade of three or more inches in length during the commission of, or attempt to commit: (1) [a]ny crime against or involving the person of another; (2) [t]he unlawful entry into a building or vehicle; (3) [a] theft ... of a vehicle . . . and which crime is a felony, . . .

commits the felony offense of possession of a knife during the commission of a felony.

Given our disposition of Division 1 (a), the jury was authorized to find beyond a reasonable doubt that Harrelson was guilty of possession of a knife during the commission of a crime as a party to the crime or co-conspirator, for which the underlying offenses were hijacking a motor vehicle, armed robbery, and aggravated assault.

2. Harrelson contends the trial court erroneously denied his motion for a new trial because in closing argument, the prosecutor improperly commented on his post-arrest right to silence. Georgia law prohibits the state from commenting on a criminal defendant’s post-arrest silence, even when the defendant takes the stand in his own defense.

Here, the evidence shows that defense counsel repeatedly brought out at trial the fact that no statement from Harrelson existed because Harrelson had a constitutional right to not talk with the police and he exercised that right. The first time was during cross-examination of a detective, and the second time was upon recross-examination of the same detective. And at three different times during closing argument, defense counsel brought out the fact that no statement from Harrel-son existed and that Harrelson chose to not talk with the police; one time counsel commented that Harrelson was smart to exercise his right to not talk with the police. The prosecutor, in closing argument, then stated that Harrelson had a right to not talk to the police, and she asked whether talking to the police was the first thing an innocent person does when they see the police.

“Typically, questioning about and commenting upon a defendant’s silence or failure to come forward is more prejudicial than probative.” However, “because [Harrelson] raised the issue regarding his failure to come forward, the prosecutor was legitimately authorized to address it in . . . closing argument.”

3. Harrelson contends that because no arrest warrant existed, the trial court erred in denying his motion in limine to exclude evidence that he had been told that a warrant for his arrest was outstanding. The evidence, Harrelson argues, improperly placed his character in issue. We disagree.

On direct examination, Harrelson testified that he had entered the hijacked vehicle “[o]ut of pure shock and fear,” in response to Poss pointing a knife at Harrelson, and “scream[ing]” at him to get in the vehicle. Outside the presence of the jury, the prosecutor asked the court for permission to elicit evidence to rebut Harrelson’s testimony that he had entered the vehicle out of shock and fear. The prosecutor requested permission to present evidence that an additional different motive, than what Harrelson had testified to, for getting into the vehicle was that he was fearful of being arrested “whether it be on his probation warrant ... or on this new warrant that he thought was outstanding.” During the state’s case, Poss had testified that after they had picked up Stephanie Harrelson, they were “headed to Florida.” Based on the court’s ruling, the prosecutor elicited testimony from Harrelson that a day or two before the incident, Poss told him that a warrant for his arrest was outstanding; and Harrelson did not want to go to jail.

While motive is not an essential element in the proof of a crime, the State is entitled to present evidence to establish that there was a motive. Evidence which is relevant to an issue in a case is not rendered inadmissible by the fact that it incidentally puts the defendant’s character in issue.

The state is allowed to submit evidence to explain what it (the state) contends were the motives and conduct of the appellant, and such evidence is original evidence.

[Wjhere the question is, whether the party acted prudently, wisely, or in good faith, the information, on which he acted, whether true or false, is original and material evidence. . . . Conversations addressed to a person, whose criminality is the fact in question, being connected in evidence with some act done by him, are original evidence to show whether he was guilty of a crime, or not. . . . This doctrine applies to all other communications, wherever the fact that such communication was made, and not its truth or falsity, is the point in controversy.

Evidence that Harrelson, who had no vehicle of his own, was told of an outstanding warrant for his arrest, was admissible as original evidence to rebut his explanation that he entered the vehicle out of shock and fear, and to explain the state’s theory that his motives and conduct were instead based on the fact that he was told that a warrant for his arrest was outstanding and he did not want to be arrested.

4. Harrelson contends the trial court erred in recharging the jury on the law of conspiracy, absent a request to do so.

After the jury began deliberations, it submitted the following question to the court: “Judge, is the charge of hijacking separate from aiding and abetting or are the two combined?” The trial court inquired of defense counsel and the prosecutor “where did they get the aiding and abetting. Is that in the indictment?” The court reviewed the indictment and noted that the words “aid and abet” were included in the indictment to allege the offense of hijacking a motor vehicle and conspiracy. The court announced its intention to recharge the jury on hijacking and conspiracy. Defense counsel objected to recharging the jury unless the court repeated for the jury the entire charge. The court recharged the jury as originally charged but only on the elements of hijacking a motor vehicle and on the definition of conspiracy.

Later in deliberations the jury posed another question: “what constitutes intentional aiding and abetting as set forth in the indictment on Counts 4, 3, 2, and 1?” Defense counsel again suggested that the court repeat for the jury the entire instructions or charge the jury solely on the definition of intent. This time, the court recharged the jury as originally charged on the definitions of intent and conspiracy; the recharge included instructions defining intent, that the state had to prove intent beyond a reasonable doubt, and that the defendant was not presumed to have acted with criminal intent.

“In determining whether the recharge contained error, it is fundamental that we must look at not only the recharge but the original charge as well, as jury instructions must be read and considered as a whole in determining whether the charges contain error.” “Where a charge as a whole substantially presents issues in such a way as is not likely to confuse the jury ... a reviewing court will not disturb a verdict amply authorized by the evidence.”

“As a general rule, the need, breadth, and formation of additional jury instructions are left to the sound discretion of the trial court.” “When the jury requests a charge or recharge on a particular point, the trial court has discretion to also give or not give additional instructions.” Where a recharge on a particular offense is authorized by the evidence and legally accurate, there is no abuse of discretion and no error in the court recharging the jury as requested.

The original charge of the court presented the law applicable to the case and was not likely to confuse the jury. The court charged, inter alia, on the presumption of innocence, reasonable doubt, burden of proof, direct and circumstantial evidence, credibility of the witnesses, conflict in the evidence, motive, the definitions of the crimes charged, intent, mere presence, conspiracy, and parties to a crime. Each relevant count of the indictment expressly alleged commission of the offense under the theory of a party to the crime, which embodied the theory of conspiracy.

By its first question, the jury expressed confusion about the relationship between the theory of culpability (i.e., as parties to a crime or conspiracy, by designation of the words “aiding or abetting”) and the crime (of hijacking a motor vehicle) itself. The recharge the court gave was responsive, and the jury answered affirmatively when the court asked if the question had been answered. The second question showed that the jury was confused about the intent required to support the theory of culpability. A recharge on both points was authorized by the evidence.

Decided November 18, 2011.

Joseph E. East, for appellant.

Richard E. Currie, District Attorney, Michelle C. Mclntire, Assistant District Attorney, for appellee.

The record contains no indication that the jury needed any further clarification concerning the entire jury instructions, which Harrelson sought to have repeated. The record does not support any contention that the recharges, as given, would tend to mislead the jury during the course of its deliberation as to Harrelson’s guilt or innocence.

A mere repetition of a principle of law, while unnecessary, will not work a reversal unless it appears from the charge as a whole that there was such undue emphasis as to result in an unfair statement of the law in relation to the defendant’s rights. Mere repetition of a correct and applicable principle of law is not such error as requires reversal unless it takes color of an argumentative or opinionative utterance so as to tend to prejudice the minds of the jury.

The trial court recharged the jury as they were initially charged, and the instructions were authorized by the evidence, legally accurate, and addressed only the jury’s specific questions. Harrelson has offered no rationale for his assertion that the repetition of the correct statements of law served to prejudice the minds of the jury. Accordingly, we find no abuse of discretion.

Judgment affirmed.

Andrews and McFadden, JJ., concur.

       In addition to the hijacking a motor vehicle charge, Stephanie Harrelson was indicted for theft by receiving stolen property (Count 5). Stephanie Harrelson pled guilty to only the charge of theft by receiving stolen property. In addition to the hijacking a motor vehicle charge, like Harrelson, William Poss was indicted for armed robbery, aggravated assault, and possession of a knife during the commission of a crime. The record on appeal does not reflect to which charges Poss pled guilty.

        Johnson v. State, 299 Ga. App. 706, 707 (1) (a) (683 SE2d 659) (2009).

        Walker v. State, 310 Ga. App. 223 (1) (713 SE2d 413) (2011) (citation omitted).

       OCGA § 16-5-44.1 (b).

        Johnson, supra.

       Id. at 707-708 (1) (a) (citation and punctuation omitted).

        Darville v. State, 289 Ga. 698, 699 (2) (715 SE2d 110) (2011).

        Short v. State, 234 Ga. App. 633, 635 (1) (a) (507 SE2d 514) (1998) (citations omitted).

       See Grant v. State, 198 Ga. App. 357, 358-359 (1) (b) (401 SE2d 761) (1991) (parties to crime theory “embodies the theory of conspiracy insofar as it renders one not directly involved in the commission of a crime responsible as a party thereto”).

        Johnson, supra at 708 (1) (a) (citation and punctuation omitted); OCGA § 16-2-20 (b).

        Cargill v. State, 256 Ga. 252, 253 (1) (347 SE2d 559) (1986) (citation omitted) (overruled on other grounds in Manzano v. State, 282 Ga. 557 (651 SE2d 661) (2007)).

       Id.

       Id.

       Johnson, supra at 708 (1) (a) (citation and punctuation omitted); Buruca v. State, 278 Ga. App. 650, 652 (1) (629 SE2d 438) (2006) (citation and footnote omitted).

         In the Interest of C. L., 289 Ga. App. 377, 380-381 (1) (b) (657 SE2d 301) (2008) (punctuation omitted).

       174 Ga. App. 893, 895 (1) (332 SE2d 37) (1985) (citation omitted).

       Id.; see Williams v. State, 236 Ga. App. 790, 791 (513 SE2d 757) (1999) (conviction for hijacking a motor vehicle and kidnapping affirmed where defendant claimed he was unaware of any plan to hijack a particular vehicle, yet as the vehicle was being hijacked, defendant never asked to get out of the car and never offered the victim any help, and drove the vehicle during the month following the hijacking); Johnson, supra at 709 (1) (a) (defendant may be convicted of hijacking a motor vehicle even if he had no knowledge that co-defendant was planning to use a gun to perpetrate the crime because co-defendant’s use of the gun was naturally or necessarily done in furtherance of the conspiracy to steal a vehicle even though not part of the original agreement).

       Id.

        Williams, supra at 792.

        Johnson, supra; Williams, supra.

       OCGA § 16-8-41.

        Johnson, supra at 710 (1) (b).

        Johnson, supra; see Williams v. State, 276 Ga. 384, 386 (4) (578 SE2d 858) (2003).

       OCGA § 16-5-21 (a) (2).

        Johnson, supra.

        Johnson, supra; see Smith v. State, 258 Ga. 181, 183 (3) (366 SE2d 763) (1988).

        Johnson, supra at 710 (1) (d).

        Mallory v. State, 261 Ga. 625, 629-630 (5) (409 SE2d 839) (1991) (overruled on other grounds by Chapel v. State, 270 Ga. 151, 154-156 (4) (510 SE2d 802) (1998)).

        Fullwood v. State, 304 Ga. App. 341, 343 (3) (696 SE2d 367) (2010) (citing Mallory, supra at 630 (5)).

       Id.; see Gaston v. State, 257 Ga. App. 480, 484 (3) (571 SE2d 477) (2002) (rejecting claim of improper comment on silence where defense opened the door). See also Mitchell v. State, 242 Ga. App. 177, 181 (4) (a) (529 SE2d 169) (2000) (no ineffectiveness where defendant opened the door to prosecutor’s cross-examination concerning his silence and counsel failed to object to the cross-examination).

        Mills v. State, 273 Ga. App. 699, 701 (2) (615 SE2d 824) (2005) (citations and punctuation omitted).

        Brown v. State, 179 Ga. App. 280, 281 (346 SE2d 85) (1986).

       Id. (citation and punctuation omitted).

       Id.; Mills, supra (trial court did not err in admitting evidence of an outstanding probation revocation warrant for defendant’s arrest, which was relevant to show motive for fleeing from police officer, even though it may have reflected negatively on defendant’s character).

       The words “aid and abet” were used in each count of the indictment, except with regard to Count 5, which applied to only Stephanie Harrelson.

        Peebles v. State, 260 Ga. 165, 166 (5) (391 SE2d 639) (1990).

        Miller v. State, 221 Ga. App. 718, 718-719 (1) (472 SE2d 697) (1996).

       Id. at 719 (1) (citation and punctuation omitted).

       Id. at 719-720 (1) (citation and punctuation omitted).

       Id. at 719 (1) (citation and punctuation omitted).

        Patterson v. State, 264 Ga. 593, 594 (2) (449 SE2d 97) (1994).

       Id.

        Grant, supra.

        McCoy v. State, 273 Ga. 568, 573 (12) (544 SE2d 709) (2001).

        Miller, supra at 719-720 (1).

       Id.

        Hill v. State, 207 Ga. App. 65, 67 (4) (426 SE2d 915) (1993) (citation and punctuation omitted).

        Peebles, supra at 167 (5); Patterson, supra.

        Hill, supra.

        Peebles, supra.


source: Caselaw Access Project

author: Phipps, Presiding Judge.

license: Public Domain

text:
    A11A1213.
    COMPREHENSIVE PAIN MANAGEMENT et al. v. BLAKELY.
    (719 SE2d 579)
   Phipps, Presiding Judge.

Comprehensive Pain Management, Rajesh Patel, and Tamara Harris seek interlocutory review of the trial court’s order denying their motion to dismiss this medical malpractice action and allowing Barbara Blakely to amend the complaint she filed against them to add an expert affidavit omitted from the initial complaint. Because the trial court erred, we reverse.

The relevant facts show that on September 17, 2010, Blakely filed a medical malpractice action against the appellants, alleging that their negligence in prescribing medication and failing to monitor her health resulted in damage to her liver. Although the complaint indicated that the affidavit of expert witness Tanya Jones was attached to the complaint, the affidavit was omitted. On October 14, 2010, the appellants pointed out in their answer the fact that no expert affidavit had been filed and simultaneously moved to dismiss the action based upon Blakely’s failure to comply with OCGA § 9-11-9.1. In response, Blakely filed a pleading requesting that the appellants’ motion to dismiss be denied and that she be permitted to amend the complaint; she attached to her response the affidavit — which was not notarized until October 18, 2010, after the complaint and answer had been filed. The trial court then issued an order denying the appellants’ motion and permitting the complaint to be amended with the affidavit.

A motion to dismiss based upon the lack of an expert affidavit is a motion to dismiss for failure to state a claim under OCGA § 9-11-12 (b) (6). On appeal, this Court reviews the denial of a motion to dismiss de novo. However, we construe the pleadings in the light most favorable to the plaintiff with any doubts resolved in her favor.

OCGA § 9-11-9.1 (a) states that, in any action for damages alleging professional malpractice, “the plaintiff shall be required to file with the complaint an affidavit of an expert competent to testify, which affidavit shall set forth specifically at least one negligent act or omission claimed to exist and the factual basis for each such claim.” Pursuant to OCGA § 9-11-9.1 (f),

[i]f a plaintiff fails to file an affidavit as required by this Code section and the defendant raises the failure to file such an affidavit by motion to dismiss filed contemporaneously with its initial responsive pleading, such complaint shall not be subject to the renewal provisions of Code Section 9-2-61 after the expiration of the applicable period of limitation, unless a court determines that the plaintiff had the requisite affidavit within the time required by this Code section and the failure to file the affidavit was the result of a mistake.

Although under OCGA § 9-11-9.1 (f) a plaintiff may voluntarily dismiss the claim before the trial court rules and then potentially refile if the omission of the affidavit was a mistake, nothing in the relevant portions of the statute permits a party to add the requisite affidavit by amendment. “If the required affidavit is not filed with the complaint, the complaint is subject to dismissal for failure to state a claim. A dismissal for failure to state a claim is a dismissal on the merits and is with prejudice.”

It follows that since Blakely’s complaint alleged professional negligence, an expert affidavit was required to be filed with the complaint. Whether the statute of limitation expired on the date appellants contend, or on the date Blakely contends, as both dates preceded the October 18, 2010 actual notarization of the affidavit that was eventually submitted, nothing in the record supports a determination that Blakely timely had the requisite affidavit so as to be subject to the renewal provisions of OCGA § 9-2-61. Nor did Blakely’s attorney file an affidavit pursuant to OCGA § 9-11-9.1 (b), affirming that her law firm was not retained by the plaintiff more than 90 days prior to the expiration of the period of limitation on the plaintiffs claim, so as to extend the time for filing the affidavit by 45 days after the filing of the complaint.

In her brief, Blakely cites OCGA § 9-11-9.1 (e) and Peterson v. Columbus Med. Center Foundation, for the proposition that her “right to amend the complaint with the affidavit has been extended to 45 days.” But OCGA § 9-11-9.1 (e) does not reference any 45-day extension and is otherwise inapplicable because no affidavit was initially filed with the complaint to trigger application of OCGA § 9-11-9.1 (e). Moreover, Peterson is inapplicable. In that case, because the plaintiff filed an amendment to the complaint which, inter alia, stated that the cause of action was filed pro se and “within ten days of the expiration of the statute of limitations period and because of such time constraints, an affidavit of an expert could not be prepared,” we held that the plaintiff properly availed herself of the automatic 45-day extended filing period under OCGA § 9-11-9.1 (b). Here, unlike in Peterson, Blakely did not file an amendment to the complaint specifically reciting the provisions of OCGA § 9-11-9.1 (b), so as to extend the time for filing the expert affidavit.

Decided November 18, 2011.

Hall, Booth, Smith & Slover, Dean T. Cleaveland, for appellants.

Nicole Jones, for appellee.

Because Blakely failed to file the required expert affidavit contemporaneously with the original complaint, the trial court erred by denying appellants’ motion to dismiss with prejudice. And since nothing in OCGA § 9-11-9.1 permits Blakely to add the requisite affidavit by amendment, the trial court also erred by granting Blakely’s motion to amend the complaint by attaching thereto the required expert affidavit.

Judgment reversed.

Andrews and McFadden, JJ., concur.

         Estate of Shannon v. Ahmed, 304 Ga. App. 380 (696 SE2d 408) (2010) (citation omitted).

       OCGA § 9-3-71 (a) (generally, an action for medical malpractice shall be brought within two years after the date on which an injury or death arising from a negligent or wrongful act or omission occurred).

       (Emphasis supplied.)

        Bardo v. Liss, 273 Ga. App. 103, 105 (2) (614 SE2d 101) (2005).

       See Roberson v. Northrup, 302 Ga. App. 405, 406-407 (691 SE2d 547) (2010) (citations and punctuation omitted).

       OCGA § 9-11-9.1 (a), (f).

       243 Ga. App. 749, 750 (533 SE2d 749) (2000).

       Id.

         Id. at 750-752 (“OCGA § 9-11-15 allows a plaintiff to amend the complaint to comply with OCGA § 9-11-9.1 (b) within 45 days of filing and thus trigger the automatic extended filing period”).

       See Roberson, supra; Bardo, supra at 106 (2).

        Bardo, supra at 105 (2).


author: Ellington, Judge.

text:
    A11A1545.
    MASON v. THE STATE.
    (719 SE2d 581)
   Ellington, Judge.

A Banks County jury found William Mason guilty beyond a reasonable doubt of two counts of aggravated assault, OCGA § 16-5-21 (a) (2) (with a deadly weapon); two counts of possession of a destructive device with the intent to intimidate, OCGA § 16-7-88 (a); and one count of making a terroristic threat, OCGA § 16-11-37 (a). Following the denial of his motion for a new trial, Mason appeals, contending that the evidence was insufficient to sustain a conviction of possession of a destructive device with the intent to intimidate and that a merger of offenses precluded the imposition of separate sentences. Finding no error, we affirm.

Viewed in the light most favorable to the jury’s verdict, the evidence shows the following. On August 17, 2007, Mason broke into the home of the victims (a man and a woman) and threatened to kill them if they did not pay him $30 that the female victim owed Mason for drugs. A short while later, the victims went to their landlord’s house and again encountered Mason there. Mason had a homemade device that was constructed from a piece of three-quarter inch metal pipe twelve to eighteen inches in length, a cap that screwed on to one end of the pipe, and a bolt that penetrated the end cap to serve as a detonator or firing pin. Mason loaded a shotgun shell into the device. He pointed the open end of the device at the female victim’s head and threatened to kill her if she did not pay him. He then pulled the male victim around to the side of the house and pointed the weapon at his face, saying, “I should kill you.” About an hour later, Mason discharged the loaded weapon by causing the bolt to strike the shell’s primer.

1. Mason contends that the device he allegedly pointed at the victims was not a destructive device within the terms of OCGA § 16-7-88 (a) and, therefore, that his conviction under that Code section cannot stand.

Pursuant to OCGA § 16-7-88 (a), it is unlawful for any person to “possess[ ], transport[ ], or receive[ ] . . . any destructive device or explosive with the knowledge or intent that it will be used to kill, injure, or intimidate any individual or to destroy any public building!.]” For this and other offenses codified in OCGA §§ 16-7-80 through 16-7-97, OCGA § 16-7-80 (4) defines a “[destructive device” in pertinent part as:

Any type of weapon by whatever name known which will or may be readily converted to expel a projectile by the action of an explosive or other propellant, through a barrel which has a bore diameter of more than one-half inch in diameter; provided, however, that such term shall not include a pistol, rifle, or shotgun suitable for sporting or personal safety purposes or ammunition-, a device which is neither designed or redesigned for use as a weapon; a device which, although originally designed for use as a weapon, is redesigned for use as a signaling, pyrotechnic, line throwing, safety, or similar device; or surplus military ordnance sold, loaned, or given by authority of the appropriate official of the United States Department of Defensef.]

(Emphasis supplied.) OCGA § 16-7-80 (4) (B).

Mason contends that, in enacting this subpart, the General Assembly opted not to limit the exclusion of any “pistol, rifle, or shotgun suitable for sporting or personal safety purposes” to guns made by industrial manufacturers. Rather, he contends, when a defendant is charged with possessing a destructive device under OCGA § 16-7-80 (4) (B), the State must prove that the device in question “could not be used in the same manner as a common pistol, rifle, or shotgun[.]” As a result, he contends, even though his device was homemade or improvised, and not manufactured by “Smith & Wesson, Remington, or Colt Arms,” this exclusion applies to his device and, therefore, that his possession of the device with the intent to intimidate the victims did not violate OCGA § 16-7-88 (a).

When the meaning of a statute is in issue, the role of the courts is “to ascertain the intent and purpose of the General Assembly in enacting the law in question and then to give that law the construction which will effectuate the legislative intent and purpose.” (Citation omitted.) State v. Smith, 286 Ga. 409, 410-411 (688 SE2d 348) (2010).

In this regard, a court must first focus on the statute’s text. In order to discern the meaning of the words of a statute, the reader must look at the context in which the statute was written, remembering at all times that the meaning of a sentence may be more than that of the separate words, as a melody is more than the notes. If the words of a statute, however, are plain and capable of having but one meaning, and do not produce any absurd, impractical, or contradictory results, then this Court is bound to follow the meaning of those words. If, on the other hand, the words of the statute are ambiguous, then this Court must construe the statute, keeping in mind the purpose of the statute and “the old law, the evil, and the remedy.” OCGA § 1-3-1 (a).

(Punctuation and footnotes omitted.) Busch v. State, 271 Ga. 591, 592 (523 SE2d 21) (1999). Further, we “construe the statute according to its terms, to give words their plain and ordinary meaning, and to avoid a construction that makes some language mere surplusage.” (Citation, punctuation and footnote omitted.) O’Neal v. State, 288 Ga. 219, 220-221 (1) (702 SE2d 288) (2010). Finally, “because this is a criminal statute, it must be strictly construed against the State.” (Punctuation and footnote omitted.) Busch v. State, 271 Ga. at 592.

OCGA § 16-7-80 (4) (B) includes “[a]ny type of weapon . . . which will. . . expel a projectile by the action of an explosive or other propellant[ ] through a barrel,” that is, gun-like weapons. If we were to accept Mason’s position that, because he pointed his device “at the victims in the same manner a person could point a store-bought pistol, rifle, or shotgun,” his device is functionally indistinguishable from a pistol, rifle, or shotgun suitable for sporting or personal safety purposes and is thus excluded from the definition of a destructive device, then the exception would swallow the rule. Singletary v. State, 310 Ga. App. 570 (713 SE2d 698) (2011). Such a construction of the statute is illogical and untenable.

Accordingly, Mason’s sufficiency argument fails.

2. (a) Mason contends that the State used the same evidence to prove the aggravated assault of each victim as it used to prove that he possessed a destructive device with the intent to intimidate, that is, his act of pointing his homemade weapon at each victim. As a result, he contends, “under an actual evidence analysis, all the elements of the aggravated assaults are subsumed within the elements of the charges of possession of a destructive device with intent to intimidate.” Thus, he contends, as to each victim those offenses merged (Count 9 with Count 11 and Count 10 with Count 12), and the trial court erred in imposing separate punishment for each count.

Where the same act or transaction constitutes a violation of two distinct statutory provisions, however, Georgia courts apply the “required evidence” test, not the “actual evidence” test, to determine whether one crime is included in the other under OCGA § 16-1-6 (l). Drinkard v. Walker, 281 Ga. 211, 215 (636 SE2d 530) (2006). Under the required evidence test, neither offense is included in the other if “each [statutory] provision requires proof of a fact which the other does not.” (Punctuation and footnote omitted.) Id. Consequently, when each of two statutes requires proof of an additional fact which the other does not, an acquittal or conviction under one statute does not exempt the defendant from prosecution and punishment under the other, even though the charges are based on a single act. Id.

Each count of possession of a destructive device with the intent to intimidate required the State to prove that Mason possessed a weapon that will expel a projectile by the action of an explosive through a barrel which has a bore diameter of more than one-half inch in diameter and that Mason possessed such device with the intent to intimidate the victim. Each count of aggravated assault required the State to prove that Mason intentionally used a device that, when used offensively against a person, is likely to result in serious bodily injury and that such act placed the victim in reasonable apprehension of immediately receiving a violent injury. Each of these statutory provisions requires proof of a fact that the other does not require: that the weapon function in a certain way and have certain dimensions (possession of a destructive device) versus that the victim was conscious of the risk of immediately receiving a violent injury by Mason’s use of an offensive weapon (aggravated assault). Thus, there was no merger under the “required evidence” test.

Further, contrary to Mason’s position, his act of pointing his homemade weapon at each victim was not the basis both for the aggravated assault counts and for the possession of a destructive device counts. The offense of possession of a destructive device as charged was complete when Mason possessed the weapon with the intent to intimidate each victim, even before Mason actually approached the victim and used the weapon to threaten him or her. Louisyr v. State, 307 Ga. App. 724, 731 (2) (706 SE2d 114) (2011) (“[I]f the underlying facts show that one crime was completed prior to the second crime, there is no merger.”) (citation and punctuation omitted); Garrett v. State, 306 Ga. App. 420, 422 (b) (703 SE2d 666) (2010) (accord). For this reason as well, there was no merger.

(b) To the extent Mason contends that the two counts of possession of a destructive device merged, we note that the indictment charged Mason with possessing the destructive device with the intent that it would be used to intimidate one named individual victim in Count 11 and a different named individual victim in Count 12. The issue of “whether a course of conduct can result in multiple violations of the same statute . . . requires a determination of the ‘unit of prosecution,’ or the precise act or conduct that is being criminalized under the statute.” (Punctuation and footnote omitted.) State v. Marlowe, 277 Ga. 383, 384 (1) (589 SE2d 69) (2003). In analyzing OCGA § 16-11-106, the Supreme Court of Georgia held that, where, “during the course of one continuous crime spree,” the defendant commits any crime against or involving the person of another against multiple victims, “[the] defendant may be convicted once for possession of a firearm during the commission of a crime as to every individual victim of the crime spree[.]” State v. Marlowe, 277 Ga. at 386 (2) (c). Similarly, we conclude that, in a prosecution under OCGA § 16-7-88 (a), a defendant may be convicted separately for possession of a destructive device with the intent to intimidate as to each individual victim who was the specific target of such intent. Accordingly, there was no merger.

Decided November 18, 2011.

Donna A. Seagraves, for appellant.

J. Bradley Smith, District Attorney, Samuel E. Skelton, Assistant District Attorney, for appellee.

Judgment affirmed.

Miller, P. J., and Doyle, J., concur.

         Jackson v. Virginia, 443 U. S. 307, 318-319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979).

       For purposes of appeal, Mason does not contest the sufficiency of the evidence that he used his device with the intent to intimidate the victims.

       Count 9 charged Mason with the aggravated assault of the female victim; Count 10 charged Mason with the aggravated assault of the male victim; Count 11 charged Mason with possession of a destructive device with the intent to intimidate the female victim; Count 12 charged Mason with possession of a destructive device with the intent to intimidate the male victim.

       A crime is included in another crime when “[i]t is established by proof of the same or less than all the facts or a less culpable mental state than is required to establish the commission of the crime charged.” (Punctuation omitted.) OCGA § 16-1-6 (1).

       See Division 1, supra.

       OCGA §§ 16-5-20 (a) (2) (“A person commits the offense of simple assault when he or she . . . [c]ommits an act which places another in reasonable apprehension of immediately receiving a violent injury.”); 16-5-21 (a) (2) (“A person commits the offense of aggravated assault when he or she assaults: . . . [w]ith a deadly weapon or with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury).]”).

       Cf. Perez v. State, 281 Ga. 175, 177 (2) (637 SE2d 30) (2006) (A conviction for an assault under OCGA § 16-5-20 (a) (2), which requires that the defendant’s act place the victim in reasonable apprehension of immediately receiving a violent injury, cannot be sustained where the evidence establishes that the victim was dead or unconscious at the time of the defendant’s act.); Patterson v. State, 192 Ga. App. 449, 452 (4) (385 SE2d 311) (1989) (accord).

       Any person who shall have on . . . his or her person a firearm or a knife . . . during the commission of... :
      (1) Any crime against or involving the person of another;
      (2) The unlawful entry into a building or vehicle;
      (3) A theft from a building or theft of a vehicle;
      (4) Any crime involving [illegal drugs as enumerated in the final two divisions in subsection (b) of the statute]
      and which crime is a felony, commits a felony and, upon conviction thereof, shall be punished by confinement for a period of five years, such sentence to run consecutively to any other sentence. . . .


text:
    A11A1826.
    VEASLEY v. THE STATE.
    (719 SE2d 585)
   Ellington, Judge.

A Cobb County jury found Greg Veasley guilty beyond a reasonable doubt of burglary, OCGA § 16-7-1 (a); felony obstruction of a law enforcement officer, OCGA § 16-10-24 (b); misdemeanor obstruction of a law enforcement officer, OCGA § 16-10-24 (a); giving a false name, OCGA § 16-10-25; and forgery in the first degree, OCGA § 16-9-1 (a). Following the denial of his motion for new trial, Veasley appeals, challenging the sufficiency of the evidence and contending that he received ineffective assistance of counsel. Finding no error, we affirm.

Viewed in the light most favorable to the jury’s verdict, the evidence shows the following. At approximately 11:20 p.m. on March 15, 2009, when the victims were in their upstairs bedroom watching television, they heard their doorbell ring. The victims looked out the window to see who was ringing the bell, and they saw a black male wearing a stocking cap walk away from the door, look up at the house, and then come back and ring the bell again. A few minutes later, the victims saw a white pickup truck drive slowly in front of their home. Then the same black male approached their front door again, this time putting on gloves.

At this point, the victims called 911 to report the suspicious man and truck. Seconds later, the victims heard their front door being forced open, and they locked themselves in the bathroom. The police arrived within four minutes. The victims’ front door frame was completely broken and splintered, apparently by a crowbar. Their 42-inch plasma Samsung television had been taken.

As officers first approached the residence, they saw a white pickup truck that matched the description given in the dispatch speeding away from the scene of the burglary. After stopping the truck approximately 60 yards from the victims’ residence, one of the responding officers identified herself as a police officer and ordered Veasley to get out and put his hands up. Veasley got out of the truck, failed to respond to repeated commands to put his hands up, and finally threw a crowbar down and ran away. While running, Veasley dropped the truck key, his driver’s license, and a handful of money.

Officers chased Veasley and caught him nearby. Veasley resisted arrest and kicked one of the officers. After being subdued, Veasley gave his name as “Travis Williams,” which officers determined to be false. Veasley gave this same false name at the jail, and signed this false name on intake documents.

Meanwhile, the victims identified the white pickup truck that Veasley was driving when he first encountered the police as the one they had seen driving by their house. They also identified a plasma television that Veasley left behind in the pickup truck as the one that had been stolen from their home that night. In addition, Veasley’s truck also contained other pieces of electronic equipment, two black stocking caps, two gloves, a wallet, and a black notebook. The notebook contained Cobb County addresses and notes concerning the value of televisions, satellite dishes, and similar items.

At the close of the State’s evidence, the trial court determined that the evidence was sufficient to go to the jury and denied Veasley’s motion for a directed verdict.

1. Veasley contends that, because none of the State’s witnesses “could positively place [him] in the [victims’] residence,” the evidence was insufficient to prove that he was the perpetrator of the burglary. If he did not commit the burglary, he contends, then the officers were not in lawful discharge of their duties at the time of his alleged obstruction and, therefore, those convictions also cannot be sustained.

These contentions lack merit. Evidence that, taken together, authorized the jury to find that Veasley was the perpetrator of the burglary included the following: that he was of the gender and race of the person the victims saw ringing their doorbell less than a minute before someone used a crowbar to break in; that, just minutes after the break in, police officers caught Veasley speeding away from the victims’ residence while driving a truck that matched the description of the one the victims saw driving past their home just before the break-in; that, when he emerged from that truck, Veasley was holding a crowbar; that the victims’ television was in the truck he was driving, along with other items related to the burglary; and that Veasley fled from the police, while discarding his driver’s license. The evidence authorized the jury to find that the circumstantial evidence was sufficient to exclude every reasonable hypothesis other than Veasley’s guilt. See Grant v. State, 307 Ga. App. 681, 683 (705 SE2d 910) (2011) (Evidence that the defendant fled from police who were responding to a report of a burglary may show consciousness of guilt.); Chambers v. State, 288 Ga. App. 550, 551 (654 SE2d 451) (2007) (“Evidence of recent, unexplained possession of stolen goods may be sufficient to give rise to an inference that the defendant committed the burglary.”) (citation, punctuation and footnote omitted). It follows that the trial court did not err in denying Veasley’s motion for a directed verdict.

2. Veasley contends that his counsel failed to present any evidence or argument relevant to his only defense, that is, misiden-tification, and failed to provide a particularized motion for a directed verdict and that such failures constituted ineffective assistance of counsel.

In order to prevail on a claim of ineffective assistance of counsel, a criminal defendant must show that counsel’s performance was deficient and that the deficient performance so prejudiced the client that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different. Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984)[.] The criminal defendant must overcome the strong presumption that trial counsel’s conduct falls within the broad range of reasonable professional conduct.

(Citations and punctuation omitted.) Robinson v. State, 277 Ga. 75, 75-76 (586 SE2d 313) (2003). In analyzing the prejudice element, “[t]he question is whether there is a reasonable probability that, absent [counsel’s] errors, the factfinder would have had a reasonable doubt respecting guilt.” (Citation and punctuation omitted.) Miller v. State, 285 Ga. 285, 286 (676 SE2d 173) (2009). When a defendant fails to establish that his counsel’s performance prejudicially affected his defense, we need not evaluate whether counsel’s performance was deficient, because failure to satisfy either prong of the Strickland v. Washington standard is fatal to an ineffective assistance claim. Goodwin v. Cruz-Padillo, 265 Ga. 614, 615 (458 SE2d 623) (1995); Ponder v. State, 201 Ga. App. 388, 389 (1) (411 SE2d 119) (1991). As the appellate court, “[w]e accept the trial court’s factual findings and credibility determinations unless clearly erroneous, but we independently apply the legal principles to the facts.” (Citation and punctuation omitted.) Robinson v. State, 277 Ga. at 76.

Decided November 18, 2011.

Patricia G. Abbott, Gina A. Smalley, for appellant.

Patrick H. Head, District Attorney, John R. Edwards, Assistant District Attorney, for appellee.

(a) Veasley contends that his counsel should have questioned an officer more thoroughly about the call log on Veasley’s cell phone, to show that Veasley received a call at the time the burglar was carrying the victims’ television out of their home. At the hearing on his motion for a new trial, appellate counsel argued that the jury could have inferred from such evidence that Veasley could not have been talking on his cell phone and at the same time carrying a large television without another person’s help. Veasley did not call the officer to testify at the hearing on his motion for a new trial, however, or make any other proffer of evidence to show that the purported evidence would have actually been exculpatory. Absent a presentation of such evidence, Veasley failed to show that there is a reasonable probability that, if trial counsel had elicited more evidence on this issue and elaborated on it during argument, the jury would have had a reasonable doubt respecting his guilt.

(b) Veasley contends that his trial counsel’s performance was deficient in failing to make a “particularized” motion for a directed verdict. Because the evidence was sufficient, however, as we have held in Division 1, supra, there was no argument, however trenchant, that was likely to persuade the trial court to grant his motion for a directed verdict.

Because Veasley failed to carry his burden of showing that trial counsel’s allegedly deficient performance so prejudiced him that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different, the trial court did not err in denying Veasley’s motion for a new trial. Nickerson v. State, 248 Ga. App. 829, 832 (2) (b) (545 SE2d 587) (2001); Cunningham v. State, 222 Ga. App. 740, 744 (2) (a) (475 SE2d 924) (1996).

Judgment affirmed.

Miller, P. J., and Doyle, J., concur.

         Jackson v. Virginia, 443 U. S. 307, 318-319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979).

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

      (a) Except as otherwise provided in subsection (b) of this Code section, a person who knowingly and willfully obstructs or hinders any law enforcement officer in the lawful discharge of his official duties is guilty of a misdemeanor.
      (b) Whoever knowingly and willfully resists, obstructs, or opposes any law enforcement officer ... in the lawful discharge of his official duties by offering or doing violence to the person of such officer or legally authorized person is guilty of a felony!. ]
      OCGA § 16-10-24.

       See OCGA § 24-4-6 (“To warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.”); Grant v. State, 307 Ga. App. 681, 682 (705 SE2d 910) (2011) (Questions as to the reasonableness of hypotheses are generally to be decided by the jury. Where the evidence authorizes the jury to find that the evidence was sufficient to exclude every reasonable hypothesis save that of guilt, that finding will not be disturbed unless the verdict of guilty is insupportable as a matter of law.).

      On appeal, the standard of review for denial of a motion for directed verdict is the same as that for determining the sufficiency of the evidence to support a conviction. When reviewing the sufficiency of the evidence, we view the evidence in the light most favorable to the jury’s verdict, and the defendant no longer enjoys the presumption of innocence. We do not weigh the evidence or determine witness credibility, but only determine if the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offense beyond a reasonable doubt.
      (Citation, punctuation and footnotes omitted.) Chambers v. State, 288 Ga. App. at 550.


text:
    A11A1897.
    In the Interest of T. B. W., a child.
    (719 SE2d 589)
   Ellington, Judge.

The father of 14-month-old T. B. W. appeals from an order of the Juvenile Court of Upson County that found T. B. W. to be deprived and that approved a request from the Department of Family and Children Services (“the Department”) to maintain temporary custody of the child with the Department. On appeal, the father contends that the juvenile court erred in finding that the Department made reasonable efforts to “prevent the removal” of T. B. W from his custody. “Since [the Department] has not shown reasonable efforts,” the father argues, the juvenile court’s “finding of deprivation was in error.” We disagree.

The October 5, 2010 temporary custody and deprivation order from which the father appeals also addressed the issue of paternity and declared that T. B. W. is the legitimate child of the appellant. On that date, the child was already in the custody of the Department pursuant to a July 8, 2010 order finding that the child was deprived based upon the mother’s stipulation of “medical neglect.” There is no evidence showing that the child had ever lived with her father or that the mother and father had lived together. The child, who was born at her mother’s home, suffered brain damage due to a lack of oxygen and “has major medical issues that require constant medical care.” In the July 8 deprivation and temporary disposition order, the court directed the appellant, whose status was then that of a putative father, to establish paternity, to obtain psychological counseling, to submit to a drug and alcohol assessment and a criminal background check, to complete parenting classes, to obtain and maintain stable housing and income, to pay child support, and to fully cooperate with the Department. The Court stated that “substantial compliance” with its order “must be accomplished by the putative father before reunification can be achieved.” Thereafter, the juvenile court continued the matter until October 5 to address the Department’s petition as it applied to the father. Following the October 5 hearing on the Department’s deprivation petition concerning the father, the juvenile court specifically found that the Department “made reasonable efforts to preserve and reunify the family prior to the placement of the child in foster care, to prevent or eliminate the need for removal of the child from the home and to make it possible for the child to return home.”

The father does not challenge the juvenile court’s findings with respect to the child’s status as a deprived child. Rather, the father challenges the court’s decision to allow the Department to maintain custody of the child, contending that the Department failed to make reasonable efforts “to prevent the removal of” T. B. W from her father’s custody.

“A court’s order removing a child from the child’s home shall be based upon a finding by that court that continuation in the home would be contrary to the welfare of the child.” OCGA § 15-11-58 (a). That Code section further requires that,

[i]f the court places custody of the child in the Division of Family and Children Services of the Department of Human Services, the court shall also determine as a finding of fact whether reasonable efforts were made by the Division of Family and Children Services of the Department of Human Services and any other appropriate agencies to preserve and reunify families prior to the placement of a child in the custody of the Department of Human Services, to prevent or eliminate the need for removal of the child from that child’s home, and to make it possible for the child to return safely to the child’s home.

“In determining reasonable efforts to be made with respect to a child, as described in this subsection, and in making such reasonable efforts, the child’s health and safety shall be the paramount concern[.]” OCGA § 15-11-58 (a) (1).

The juvenile court’s conclusion that the Department made reasonable efforts to place T. B. W with her father is supported by evidence showing that a Department caseworker began working with the father in July, even though he had yet to establish his paternity, and that she made efforts to facilitate visitation and involved the father in family “team meetings.” The Department prepared a case plan for the father which required psychological evaluations, counseling, and parenting classes in which the father would learn about his child’s special medical needs. The Department inspected the father’s living quarters, inquired into his employment history, sought a criminal background check, and performed drug screens. The Department’s efforts, however, were thwarted by the father. He failed his drug screens, testing positive for marijuana on three occasions. He failed to get a whooping cough vaccine, which was required to safeguard the child’s fragile health. He lacked stable housing and remained unemployed, relying on his seriously-ill grandmother’s disability benefits and his mother’s retirement benefits. He failed to pay child support. He failed to submit information needed for a criminal background check. He had a suspended driver’s license and no reliable means of transporting the child to her doctors’ appointments.

Decided November 18, 2011.

Stephen D. Ott, for appellant.

Samuel S. Olens, Attorney General, Shalen S. Nelson, Senior Assistant Attorney General, Penny Hannah, Assistant Attorney General, Alonzo J. Bentley, Jr., for appellee.

Based upon the father’s failure to meet the Department’s requirements for reunification, the juvenile court concluded that it “would be contrary to the welfare of the child” to be placed with the father at that time, “and that removal of the child from the home is in the best interest of the child.” The court, however, did not terminate reunification efforts. It entered a “temporary disposition,” continuing custody in the Department and directing the Department to “prepare a case plan for reunification with the father.” Under the circumstances of this case, the record supports the juvenile court’s finding that reasonable efforts were made by the Department to place T. B. W. with her father prior to entering an order continuing the child’s temporary custody with the Department. Therefore, the father has shown no error which would require a reversal of the court’s order.

Judgment affirmed.

Miller, P. J., and Doyle, J., concur.

       Until the father obtained an order declaring that he was the legal father of T. B. W, he lacked standing to challenge the court’s previous orders concerning the child. See OCGA § 15-11-96 (i) (3); In the Interest of D. W., 264 Ga. App. 833, 834-835 (1) (592 SE2d 679) (2003); see also Hall v. Hall, 222 Ga. 820, 821 (152 SE2d 737) (1966) (“In this State the father of an illegitimate child, unless he legitimates it, has no standing with reference to the child.’’).

       OCGA § 15-11-2 (8) (A) defines a “deprived child” as, inter alia, “a child who . . . [i]s without proper parental care or control, subsistence, education as required by law, or other care or control necessary for the child’s physical, mental, or emotional health or morals[.]” “The deprivation must be shown to have resulted from unfitness on the part of the parent, that is, either intentional or unintentional misconduct resulting in the abuse or neglect of the child or by what is tantamount to physical or mental incapability to care for the child.” (Citation and punctuation omitted.) In the Interest of R. M., 276 Ga. App. 707, 715 (624 SE2d 182) (2005). See also In the Interest of A. R., 287 Ga. App. 334, 335-336 (651 SE2d 467) (2007) (accord). Thus, a child’s status as deprived is not defined by or made contingent upon the Department’s reunification efforts prior to disposition of the child. Rather the questions of deprivation and of custody or disposition are two separate inquiries. See OCGA § 15-11-55 (a) {“If the child is found to be a deprived child, the court may make any of the following orders of disposition best suited to the protection and physical, mental, and moral welfare of the child[.]”) (emphasis supplied).