text:
    A11A2262.
    WRIGHT v. THE STATE.
    (723 SE2d 59)
   PHIPPS, Presiding Judge.

A jury found Tred Wright guilty of possession of cocaine with intent to distribute. Wright appeals, asserting that the conviction was based upon improperly admitted similar transaction evidence rather than proof beyond a reasonable doubt that he committed the offense charged. Discerning no error, we affirm.

Viewed in the light most favorable to the jury’s verdict, the record shows that on January 8, 2009 law enforcement officers received information from a reliable confidential informant that Wright would be transporting cocaine between McRae and Milan in a vehicle being driven by Wright’s wife. A deputy with the Telfair County Sheriffs Office initiated a traffic stop of the vehicle, which was traveling without a working tag light. Wright’s wife was driving, Wright was in the front passenger seat and another passenger was in the back “passenger area.”

After speaking with Wright’s wife about the tag light, the deputy asked her if she would consent to a search of the vehicle. She consented. The deputy found in the center console area between the driver and passenger area, “laying in the top of [a] purse,” a baggie containing a substance that was later determined to be 1.96 grams of cocaine. Wright had $1,572 cash in his pocket and wallet. All three occupants of the vehicle were arrested and charged in the case.

Wright’s wife testified that the cocaine was not hers and that after the arrests Wright told her that he had placed the cocaine in her purse because the police were “not supposed” to search her purse. She testified that Wright told her that he wanted her “to take the charges for him because he was a repeat offender and [she] didn’t have any charges.”

An investigator with the Oconee Drug Task Force testified that the other passenger had told him (after being advised of Miranda rights) that Wright told him he had placed the cocaine in his wife’s purse, that the officers would charge her, and that he had “too many dope charges now.”

The sheriffs deputy testified that in his experience investigating drug cases, drugs in the quantity found would be possessed for sale or distribution rather than for personal use, as cocaine is typically purchased for personal use in an amount weighing less than a gram. The drug task force investigator similarly testified that, based on his knowledge and experience, the amount of cocaine found in the vehicle was indicative of distribution rather than personal use.

Regarding the similar transaction, at trial the sheriffs deputy testified that on August 22, 2009, he equipped a confidential informant with a hidden camera and money to purchase drugs; the informant left and returned with cocaine about 20 to 25 minutes later. The informant did not know the name of the person from whom he bought the drugs, but he described the seller and stated that he lived in McRae. The deputy viewed the videotape of the transaction and affirmed that he was “made aware of” the identity of the “individual” in the videotape, stating that two other officers identified the individual in the videotape as Wright. In connection with that incident, Wright was indicted for sale of cocaine, a charge that was pending at the time of trial.

1. Wright contends that the court erred in admitting at trial evidence of the August 2009 incident. He asserts that the court’s decision to allow the evidence was based solely upon hearsay and the testimony of unreliable witnesses; he adds that the court improperly considered testimony regarding the similar transaction without requiring admission of the videotape depicting the transaction, and allowed the deputy’s opinion regarding the meaning of the language used in the videotape. According to Wright, his conviction was the product of this improperly admitted similar transaction evidence.

(a) First, the trial court did not abuse its discretion in admitting the evidence.

The conduct of an accused in other transactions is generally irrelevant and inadmissible. Evidence of similar transactions may be admissible, however, contingent upon three affirmative showings: (1) the evidence must be admitted for a proper purpose; (2) there must be sufficient evidence to establish the accused committed the independent act; and (3) there must be a sufficient connection or similarity between the independent offense and the crime charged so that proof of the former tends to prove the latter.

Before admitting similar transaction evidence the trial court must hold a hearing where the state bears the burden of showing that the evidence of similar transactions is admissible under the three-prong test. When reviewing the trial court’s factual findings regarding whether the state satisfied the three-prong test, we apply the “clearly erroneous” standard. The decision to admit similar transaction evidence which satisfies the three-prong test is within the trial court’s discretion and will not be disturbed absent an abuse of that discretion.

In this case, the state gave notice of its intent to introduce at trial evidence that Wright had sold cocaine to the confidential informant in August 2009; the purpose was to show Wright’s course of conduct or intent. At the pre-trial hearing on the matter, the deputy and the confidential informant testified that the confidential informant had purchased cocaine from Wright in an undercover operation in August 2009. The court expressly found that the similar transaction was admissible for the purpose of showing Wright’s intent, that Wright had committed the similar transaction, and that there was sufficient connection between the similar transaction and the charged offense (so that proof of the independent offense tended to prove the charged offense). Notably, Wright does not argue that the required showings were not made. Considering the record before us, the court’s factual findings were not clearly erroneous and the court did not abuse its discretion in ruling that the evidence was admissible.

Wright’s argument that the similar transaction evidence was inadmissible because it was based upon hearsay and the testimony of an unreliable witness (or witnesses) is without merit. The similar transaction evidence included testimony that was based not upon hearsay, but upon the personal observations of the testifying witnesses; and Wright had ample opportunity to cross-examine those witnesses. Even if some of the deputy’s testimony was hearsay, hearsay testimony to establish the similarity of other transactions is allowed at the hearing required by Williams v. State when given by a law enforcement official who investigated and has personal knowledge of the other transactions; here, the deputy did investigate and had personal knowledge of the other transaction. Whether the witnesses were “completely unreliable” because one witness (the confidential informant) did not know Wright’s name and had used cocaine on the night of the similar transaction was a matter of witness credibility, and witness credibility was for the trier of fact.

Moreover, Wright’s assertion that the court erred in allowing the sheriffs deputy and the confidential informant to testify at the pre-trial hearing regarding what was said during the similar transaction, without requiring the admission of a videotape of that transaction, is without merit. And while Wright argues that the deputy was erroneously allowed to “offer opinions as to the meaning and intent of language used” in the videotape, Wright had not shown that any such testimony was given. No abuse of discretion has been shown.

(b) Contrary to Wright’s contention, the evidence, as set out above, was sufficient for a rational trier of fact to have found him guilty beyond a reasonable doubt of possession of cocaine with intent to distribute, even without the similar transaction evidence.

Further, evidence of the similar transaction was harmless as it is highly probable that the challenged evidence did not contribute to the verdict. For instance, in addition to the evidence discussed above, Wright testified on direct examination that he was on parole at the time of the January 2009 traffic stop and had previously pled guilty to “a drug charge.” And the trial court properly instructed the jury to limit its consideration of the similar transaction evidence to the appropriate purpose. Thus, Wright’s contention that his conviction resulted from the court’s allowing the similar transaction evidence is without merit.

2. Wright contends that the trial court erred in failing to make explicit findings of fact or conclusions of law regarding the state’s purpose for offering the similar transaction evidence. However, Wright failed to object on this particular basis below.

The failure of a defendant to object to the introduction of similar transaction evidence on the basis that. . . the trial court has not made the requisite findings as required by Uniform Superior Court Rule 31.3 (B) and our Supreme Court’s decision in Williams precludes appellate consideration of those issues.

Decided January 31, 2012.

Ashley W. McLaughlin, for appellant.

Timothy G. Vaughn, District Attorney, Joshua W. Powell, Assistant District Attorney, for appellee.

Nonetheless, we note that in ruling on the admissibility of the similar transaction evidence, the trial court did state on the record, among other things, that the similar act was admissible “for an appropriate purpose, and that would be the intent of the defendant.” Accordingly, there is no basis for reversal.

Judgment affirmed.

Andrews and McFadden, JJ., concur.

        Lawrence v. State, 305 Ga. App. 199, 200 (1) (699 SE2d 406) (2010).

        Watley v. State, 281 Ga. App. 244, 246-247 (3) (635 SE2d 857) (2006) (citations and punctuation omitted), citing Gardner v. State, 273 Ga. 809, 810 (2) (546 SE2d 490) (2001) and Williams v. State, 261 Ga. 640, 642 (2) (b) (409 SE2d 649) (1991).

        Watley, supra, citing Uniform Superior Court Rule (USCR) 31.3.

        Watley, supra.

       Id.

       See Barnes v. State, 287 Ga. 423, 426 (3) (696 SE2d 629) (2010) (course of conduct or intent are proper purposes for offering evidence of similar transaction).

       See generally Morrison v. State, 300 Ga. App. 405, 408 (685 SE2d 413) (2009); Ware v. State, 297 Ga. App. 400, 402-403 (2) (677 SE2d 423) (2009).

       See Inman v. State, 281 Ga. 67, 70, n. 6 (635 SE2d 125) (2006) (noting that an investigating officer’s testimony regarding what she saw during her investigation of the prior offense was not hearsay and was admissible at trial); Hinton v. State, 290 Ga. App. 479, 481 (2) (659 SE2d 841) (2008); see also Parker v. State, 244 Ga. App. 419, 421 (3) (535 SE2d 795) (2000) (officer’s hearsay testimony establishing the similarity of other transactions was admissible at USCR 31.3 hearing where the officer investigated and had personal knowledge of the other transactions).

       261 Ga. 640 (409 SE2d 649) (1991).

        Parker, supra; see Inman, supra at 70, n. 5.

       See Boynton v. State, 287 Ga. App. 778, 780 (2) (653 SE2d 110) (2007) (it is not the function of this court to determine the credibility of witnesses; any inconsistencies in the witness’s testimony were for the jury to resolve); see generally Williams v. State, 264 Ga. App. 115, 118 (2) (589 SE2d 676) (2003) (inconsistencies in the testimony of similar transaction witness go to the weight of the evidence, not to the admissibility of the evidence).

       See Traylor v. State, 217 Ga. App. 648, 649 (2) (458 SE2d 682) (1995) (because trial court had discretion as to the admission of evidence at the USCR 31.3 hearing, the court did not err in allowing the prosecutor to state in his place what he expected the similar transaction evidence to show without producing such evidence); Loyd v. State, 202 Ga. App. 1, 2(1) (b) (413 SE2d 222) (1991) (regarding USCR 31.3, there is no per se right to an evidentiary hearing, nor any mandatory obligation to produce testimonial evidence).

       See Morrison, supra.

       See OCGA § 16-13-30 (b); Ferrell v. State, 312 Ga. App. 122, 124-125 (1) (717 SE2d 705) (2011) (affirming conviction for trafficking in cocaine and possession of a controlled substance (MDMA, commonly known as “Ecstasy”) based on passenger’s joint constructive possession of drugs where there was some connection between the defendant and the contraband other than spatial proximity; namely, the MDMA was in a pill bottle belonging to her and the bottle was found in a bag with the cocaine); Boykin v. State, 264 Ga. App. 836, 839-840 (2) (592 SE2d 426) (2003) (affirming conviction for possession of cocaine with intent to distribute based on joint constructive possession where cocaine was found under driver’s side floorboard, appellant was the driver, and passenger in whose pocket some cocaine was found denied knowledge of cocaine found under appellant’s feet); Reed v. State, 244 Ga. App. 146, 147 (534 SE2d 871) (2000) (affirming conviction for possession of cocaine based on defendant/passenger’s joint constructive possession where cocaine was found on passenger’s floorboard at defendant’s feet, he made furtive movements and other passengers did not).

       See Jones v. State, 236 Ga. App. 330, 333 (1) (c) (511 SE2d 883) (1999) (error in admission of armed robbery convictions as similar transaction evidence in armed robbery trial was harmless where defendant admitted the charged robbery while denying the threat of a gun).

       See Morrison, supra.

        Cole v. State, 211 Ga. App. 236, 238 (438 SE2d 694) (1993) (citations and punctuation omitted); see Roberts v. State, 241 Ga. App. 259, 260 (2) (526 SE2d 597) (1999) (issue of whether trial court erred by admitting similar transaction evidence because it failed to make a determination on the record of the purpose for which the evidence was being introduced was waived because appellant failed to object on the same basis below).

       See generally Williams v. State, 261 Ga. at 642 (2) (b), n. 3 (after the USCR 31.3 hearing, before any evidence of a particular independent offense or act may be introduced, the trial court must make a determination that each of the three showings has been satisfactorily made by the state as to that independent act or offense, and this determination must be made a part of the record). Compare Tam v. State, 225 Ga. App. 101, 103 (2) (483 SE2d 142) (1997) (trial court’s determination that the state made the necessary showings pursuant to Williams must be made on the record; thus, similar transaction evidence was improperly admitted where hearing was not taken down or recorded and written order did not reflect a determination that the required affirmative showings were made; because the evidence was not overwhelming, the error was not harmless).


source: Caselaw Access Project

author: Blackwell, Judge.

license: Public Domain

text:
    A11A1605.
    FRENCH v. DILLESHAW
    (723 SE2d 64)
   Blackwell, Judge.

Kevin Dilleshaw, an independent truck driver, lost the use of his flatbed trailer for several weeks as a result of an accident. Dilleshaw sued Christopher French, the driver of the other vehicle involved in the accident, to recover the earnings that Dilleshaw lost while he could not use his trailer. Following a bench trial, the court below entered judgment for Dilleshaw, awarding him both lost earnings and attorney fees, and French appeals from this judgment, contending that the evidence is insufficient to sustain these awards. Upon our review of the record, we conclude that the evidence is sufficient to sustain the award of lost earnings, but it does not sustain the award of attorney fees. Accordingly, we affirm in part and reverse in part.

When an appeal is taken from a judgment entered following a bench trial, we owe no deference to the way in which the court below resolved questions of law, but we accept its factual findings unless clearly erroneous, Lifestyle Home Rentals v. Rahman, 290 Ga. App. 585 (660 SE2d 409) (2008), and we view the evidence in the light most favorable to the judgment. Forshee v. Employers Mut. Cas. Co., 309 Ga. App. 621, 621 n.l (711 SE2d 28) (2011). The evidence in this case shows that Dilleshaw, who owns his own truck and flatbed trailer, worked as an independent contractor for Landstar Ranger, Inc., a freight-hauling company. Landstar paid Dilleshaw weekly, and his gross earnings were based on the number of loads that he hauled each week and the distance that he drove. Landstar advanced certain expenses to Dilleshaw, including the costs of fuel, insurance, and certain toll charges, and when it paid him each week, Landstar reduced his gross earnings by the amount of these advances.

On June 15, 2009, Dilleshaw set out with his truck and trailer to haul a load of hazardous materials from Augusta, Georgia to Michigan. As Dilleshaw was leaving Augusta, French crashed his car into the rear of the trailer, damaging it. To complete his haul, Dilleshaw secured a temporary repair of the trailer in Georgia and then made his way to Michigan. When he arrived in Michigan, Dilleshaw secured another temporary repair of the trailer, so that he could return with his truck and trailer to South Carolina. And when he finally made his way back to South Carolina, Dilleshaw took the trailer to a repair shop for permanent repairs, where it remained for several weeks. During this time, Dilleshaw was without a trailer and unable to haul additional loads.

When an independent truck driver is not on the road, he is not earning money, and Dilleshaw sued French for his lost earnings during the time he was without the use of his trailer, as well as attorney fees. To establish the amount of his lost earnings, Dilleshaw presented the court below with his weekly earnings statements for a period of seventeen weeks — the nine weeks that preceded the accident, the four weeks that followed it and during which he was without the use of his trailer, and the four weeks that followed the permanent repair of his trailer — and each of these statements set out his weekly gross earnings, the expenses that Landstar had advanced, and his net earnings. According to Dilleshaw, during the weeks he was able to drive his truck, his average weekly net earnings were $1,594.17. Following a bench trial, the court below awarded $5,600 in lost earnings as compensatory damages, $1,800 in attorney fees, and $210 in court costs to Dilleshaw. French appeals, asserting that the evidence does not sustain the awards of lost earnings and attorney fees.

1. We first consider whether the evidence authorized the award of lost earnings. In a tort case, “the determination of damages rests peculiarly within the province of the [trier of fact],” see Atlanta Oculoplastic Surgery v. Nestlehutt, 286 Ga. 731, 734 (2) (a) (691 SE2d 218) (2010) (citation and punctuation omitted), and when the trier of fact considers consequential damages in such a case, “every particular and phase of the injury may enter into [its] consideration.” Kroger Co. v. Perpall, 105 Ga. App. 682, 685 (3) (125 SE2d 511) (1962) (citation and punctuation omitted). When someone like Dilleshaw suffers an injury to his person or property by the tort of another and is, as a result, unable for a time to practice his profession or occupation, he is entitled, we have said before, to recover his lost earnings as an element of his damages. See, e.g., Dossie v. Sherwood, 308 Ga. App. 185, 189 (707 SE2d 131) (2011) (independent truck driver unable to work as a result of personal injury); Fouts v. Builders Transp., 222 Ga. App. 568, 577 (9) (474 SE2d 746) (1996) (saleswoman unable to work as a result of personal injury); Mote v. Tomlin, 136 Ga. App. 616, 618 (2) (222 SE2d 57) (1975) (carpenter and contractor unable to work as a result of personal injury); Perpall, 105 Ga. App. at 685-687 (3) (dentists unable to practice dentistry as a result of property damage); Southwestern R. Co. v. Vellines, 14 Ga. App. 674, 688-689 (2) (82 SE 166) (1914) (traveling salesman unable to work as a result of personal injury). In the case of an injury to property that renders one unable to pursue his vocation, his lost earnings can be recovered only “for that reasonable period of time which it would take him to make other arrangements for carrying on his profession,” Perpall, 105 Ga. App. at 686-687 (3), but according to Dilleshaw, it was not feasible for him to secure another trailer while he was without the use of his own, considering the short time in which it was anticipated that the repairs would be complete. Accordingly, the trier of fact was authorized in this case to award the earnings that Dilleshaw lost while he was without the use of his trailer as damages.

Dilleshaw was required, however, to prove these lost earnings with “reasonable certainty,” Dossie, 308 Ga. App. at 188, and French argues that Dilleshaw failed to do so in two respects. First, the weekly earnings statements that Dilleshaw tendered at trial and on which he relied in his calculation of his average weekly earnings are, French says, for an arbitrary period of time and not, therefore, reasonably certain proof of what Dilleshaw might have earned during the weeks he was without use of his trailer. Second, these weekly earnings statements do not, French contends, disclose all of the expenses that, but for the accident, Dilleshaw would have incurred in the operation of his truck and trailer. We will consider these arguments in turn, but we begin with some observations about the requirement of reasonable certainty.

Reasonable certainty does not mean absolute certainty, and if absolute certainty were required, lost earnings could seldom, if ever, be proven with the requisite certainty, at least in cases in which the earnings are not invariable and fixed definitively. As this Court observed nearly a century ago, such a strict requirement of proof “might deny a sufficient remedy to one who happened to be laboring not for a fixed and definite salary, but for fees or commissions,” and for this reason, the courts permit “greater latitude ... in the matter of such proof” by requiring only that lost earnings be proven with reasonable certainty. Vellines, 14 Ga. App. at 688 (2). The requirement of reasonable certainty with respect to lost earnings is based on the usual and settled rule “against the recovery of vague, speculative, or uncertain damages,” but it reflects the equally settled understanding that this rule “relates more especially to the uncertainty as to cause, rather than uncertainty as to the measure or extent of the damages.” The Pep Boys &c. v. Yahyapour, 279 Ga. App. 674, 678 (5) (632 SE2d 385) (2006) (citation and punctuation omitted). Accordingly, this requirement permits the recovery of lost earnings, so long as they can be fixed in some amount that “comes within that authorized with reasonable certainty by the legal evidence submitted,” such that “[m]ere difficulty in fixing their exact amount” is no insuperable impediment to their recovery. Dossie, 308 Ga. App. at 188 (citation and punctuation omitted). And our Court has acknowledged that lost earnings in cases like this one can be fixed with reasonable certainty by sufficient proof of past earnings. See, e.g., Mote, 136 Ga. App. at 618 (2); Perpall, 105 Ga. App. at 686 (3); Vellines, 14 Ga. App. at 688-689 (2). With these principles in mind, we now turn to the arguments advanced by French about the proof of lost earnings in this case.

As to his reliance on his weekly earnings statements for the nine weeks preceding the accident, the four weeks he was without use of his trailer, and the four weeks that followed his return to the road after the permanent repairs were done, Dilleshaw explained that the business of hauling freight by truck slows during the winter months and picks up in the summer. Dilleshaw sought to recover his lost earnings for four weeks in late June and July 2009, and the weekly earnings statements that he tendered at trial show his earnings from late April to mid-August 2009. Given the testimony about the effects of the changing seasons upon the trucking business, the record shows, we think, a reasonable basis for the selection of the weekly earnings statements upon which Dilleshaw and the court below relied. To be sure, some reasonable people might have chosen to include statements for more weeks, fewer weeks, or different weeks in their analysis of the earnings that Dilleshaw lost, but we cannot say as a matter of law that Dilleshaw was required to do so. Some things are left to the reasonable judgment of the trier of fact, and in the circumstances of this case, the weekly earnings statements tendered at trial are, we think, representative enough to permit a trier of fact to fix the amount of the lost earnings with reasonable certainty.

About the expenses, our precedents on lost earnings suggest, as French argues, that gross earnings are not recoverable, and they suggest that the court below was required to offset the gross earnings that Dilleshaw would have earned during the time he was without use of his trailer by the amount of the expenses that he would have incurred, but did not incur because he was not making hauls during that time. See Perpall, 105 Ga. App. at 685 (3). French contends that, even if the weekly earnings statements that Dilleshaw tendered at trial are sufficient to establish the amount of his lost gross earnings, they do not show with reasonable certainty the expenses that he saved. The statements reflect some expenses that Dilleshaw undoubtedly saved during the time he was without use of his trailer, including the costs of fuel and toll charges. Dilleshaw admitted at trial, however, that he incurs certain other costs as an independent truck driver, which the statements do not show, namely the depreciation of his truck and the costs of maintenance, supplies, travel related to maintenance, and meals. Nevertheless, as to most of these expenses, the record is silent about whether Dilleshaw avoided incurring the costs while he was without use of his trailer or whether they are, instead, in the nature of fixed costs that Dilleshaw would have incurred in any event. The only expense that does not appear on the statements and that is clearly shown by the record to be incurred only when Dilleshaw is on the road is the costs of his meals, and although no evidence reflects the costs of these meals on a weekly basis, the evidence does show that they amounted to little more than $7,000 for all of 2009. The average net earnings reflected in the statements suggest that Dilleshaw might have earned several hundred dollars more during the time he was without use of his trailer than the court below awarded to him. We do not know why the court awarded him less than it otherwise might have, but perhaps it was to account for the costs of meals that Dilleshaw saved as a result of the accident. The amount that the court awarded is, we think, within the range of lost net earnings proven with reasonable certainty by the evidence, and for this reason, we affirm the award of lost earnings.

Decided February 1, 2012.

Fulcher Hagler, John A. Davison, for appellant.

Warlick, Tritt, Stebhins & Murray, James S. Murray, for appellee.

2. We cannot, however, affirm the award of attorney fees. French contends that the award of attorney fees was error because the case presented a genuine controversy with respect to the amount of damages, and we agree. Pursuant to OCGA § 13-6-11, the costs of litigation, including attorney fees, are recoverable “where the defendant has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense.” In this case, Dilleshaw alleged that, by failing to compensate him for his lost earnings, French had been stubbornly litigious and had caused him unnecessary trouble and expense, but Dilleshaw never alleged that French acted with bad faith. We have explained before that, “in a case where bad faith is not an issue, attorney fees are not authorized under OCGA § 13-6-11 if the evidence shows that a genuine dispute exists — whether of law or fact, on liability or amount of damages, or on any comparable issue.” White v. Scott, 284 Ga. App. 87, 88 (1) (643 SE2d 356) (2007) (citation and punctuation omitted).

There clearly was a genuine dispute in this case about the amount of lost earnings that Dilleshaw was entitled to recover. At trial, Dilleshaw argued that his lost earnings were shown by the evidence to be more than $6,000, but the court awarded him less. And as we explained in Division 1, there are different ways in which reasonable people might have figured the amount of lost earnings in this case, such that the amount of damages was committed to the reasonable judgment of the trier of fact. Consequently, the evidence does not support the award of attorney fees in this case, and that portion of the judgment must be reversed. See Carpet Transport v. Dixie Truck Tire Co., 185 Ga. App. 181, 183 (1) (363 SE2d 840) (1987), overruled on other grounds, Golden Peanut Co. v. Bass, 249 Ga. App. 224, 233-234 (2) (547 SE2d 637) (2001) (where there was a genuine dispute as to the amount due, defendant should not be penalized for litigating the issue).

Judgment affirmed in part and reversed in part.

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

       Dilleshaw originally sued French in magistrate court, and after the magistrate court entered judgment for French, Dilleshaw took an appeal to the superior court, where his case was retried. See OCGA § 15-10-41 (b). After the superior court entered judgment for Dilleshaw, French filed an application for discretionary appeal, which we granted. See OCGA § 5-6-35 (a).

       Under the clearly erroneous standard, we must give “due deference to the opportunity of the trial court to judge the credibility of the witnesses,” and we must accept the factual findings of the court below “if there is any evidence to sustain them.” Pȧtel v. Patel, 285 Ga. 391, 391-392 (1) (a) (677 SE2d 114) (2009) (citations and punctuation omitted).

       French admitted fault for the collision.

       Dilleshaw was reimbursed the costs of these repairs, both temporary and permanent, and those costs are not at issue in this case.

       According to Dilleshaw, he was unable to drive for about four weeks, and French does not dispute this contention on appeal.

       French cites the rule that lost profits can only be awarded to a business enterprise that has a proven record of profitability, see McMillian v. McMillian, 310 Ga. App. 735, 740 n.7 (713 SE2d 920) (2011), and he contends that the evidence here shows that Dilleshaw was losing money as an independent truck driver, so he cannot recover lost profits. That might be so, but as we understand it, the court below awarded lost earnings, not lost profits. Georgia law has long distinguished between lost earnings and lost profits. When a profitable business enterprise is rendered unable to earn profits for a time by the tort of another, it may be entitled to recover its lost profits. Although an independent truck driver is, in a sense, a business enterprise, the enterprise in this case is simply the means by which Dilleshaw carried on his vocation. Moreover, the accident did not just render Dilleshaw unable to earn profits from his trucking business, but it rendered him unable for a time to practice his vocation and earn a living as a truck driver, at least until he repaired his trailer or found another one on which to haul loads, whether as an employee of another or for himself. It is damages for the latter injury that the court in this case awarded. In cases like this one, we have said that the plaintiff is entitled to recover his “lost earnings,” as distinguished from his “lost profits,” and the rule about a proven record of profitability does not appertain to our analysis. See Dossie v. Sherwood, 308 Ga. App. 185, 187 n.8 (707 SE2d 131) (2011) (explaining distinction between lost earnings and lost profits).

       Notably, French did not even argue at trial that Dilleshaw could have continued to practice his vocation during the time he was without use of his trailer by becoming employed as a truck driver for wages, much less that he should have done so. And even if that had been an issue, the trier of fact certainly might have concluded that Dilleshaw was not required to go out and find a new job, considering the limited and short time he was without his trailer.

       French argues that Dilleshaw should have proven his lost earnings by evidence of what he would have earned on particular hauls that he would have made, but did not as a result of the accident, during the weeks he was without use of his trailer. That too might have been a proper way of proving his lost earnings, but it is not the only way. See Vellines, 14 Ga. App. at 688 (“What better evidence could be offered to establish a man’s earning capacity or his skill and ability in a particular business than a statement as to his past earnings, under like conditions, during a similar period of the year, immediately prior to the period for which he seeks to recover?”); see also Perpall, 105 Ga. App. at 686 (3) (lost earnings can be proven “by showing the amount of time lost and the average value of such loss based on operations for a reasonable period immediately prior thereto”).

       It is possible that some of these expenses, such as the costs of maintenance and supplies, are a function of the number of loads that Dilleshaw carries or the miles that he drives, but it also is possible that they are a function of the passage of time, regardless of the extent to which the truck has been driven during that time. Given our obligation to construe the record in the light most favorable to the judgment, we will not speculate in the absence of evidence to the contrary that they are expenses that Dilleshaw saved by not driving and, therefore, relevant to a proper calculation of his lost earnings.


text:
    A11A1779.
    WINDHAM & WINDHAM, INC. et al. v. SUNTRUST BANK.
    (723 SE2d 70)
   Blackwell, Judge.

SunTrust Bank sued Windham & Windham, Inc. and Jeffrey and Robyn Windham, alleging that the Windham company was indebted to the Bank, that the Windham company had defaulted on its obligation to repay the indebtedness, and that the Windhams had guarantied the repayment of the indebtedness and, therefore, were liable to the Bank upon the default. The court below awarded summary judgment to the Bank, and both the Windhams and the Windham company appeal. Upon our review of the record, we find no error and affirm the judgment below.

1. The Windhams and the Windham company contend that the court below erred when it awarded summary judgment to the Bank, both because the affidavit that the Bank submitted in support of its motion for summary judgment is inadequate and because affidavits that they submitted in response to the motion show that genuine issues of material fact exist. These contentions are without merit. Summary judgment is warranted when the material facts, as shown by the pleadings and record evidence, are undisputed and entitle the moving party to judgment as a matter of law. See Strength v. Lovett, 311 Ga. App. 35, 39 (2) (714 SE2d 723) (2011). An award of summary judgment “enjoy[s] no presumption of correctness on appeal,” and we review such an award de novo. Cowart v. Widener, 287 Ga. 622, 624 (1) (a) (697 SE2d 779) (2010) (citations omitted). In our review of the award, we view the evidence, and all reasonable inferences that might be drawn from the evidence, in the light most favorable to the nonmoving parties, here, the Windhams and the Windham company. Id.

So viewed, the record shows that the Bank extended credit to the Windham company pursuant to the terms of a line of credit agreement, and the Windhams signed this agreement in February 2007 as guarantors, personally guarantying the obligation of the Windham company to repay any indebtedness that it owed to the Bank, including any indebtedness arising after the date of the agreement. Separate and apart from this line of credit, the Windham company gave a commercial note to the Bank in September 2007 for the repayment of a term loan, and at the same time, the Windhams each executed an unconditional guaranty, in which they again personally guarantied the repayment of any indebtedness that the Windham company owed the Bank. In February 2010, the Bank sued the Windham company and the Windhams, alleging that the Windham company had failed since July 2008 to make any payments under the note and also had failed to make required payments on the line of credit. Nine months later, the Bank filed its motion for summary judgment, and in support of its motion, the Bank submitted the affidavit of a Bank officer, which attests to the authenticity of the line of credit agreement, note, and unconditional guaranties, confirms the occurrence of default, and sets out the amount of the outstanding indebtedness of the Windham company.

The Windhams contend that the affidavit of the Bank officer is insufficient to sustain the award of summary judgment because it fails to show that the officer had any involvement with the transactions between the Windham company and the Bank or that the officer had any dealings with the Windhams. Although an affidavit offered in support of a motion for summary judgment must be “made on personal knowledge,” OCGA § 9-11-56 (e), the affidavit of the Bank officer explicitly recites that it is “based on [his] personal knowledge of the facts contained [therein].” The affidavit also recites that the officer is familiar with the files maintained by the Bank with respect to the indebtedness of the Windham company and that these files are maintained in the regular course of business and were made at or near the time of the transactions and occurrences reflected therein. Nothing in the affidavit is inconsistent with the averment of personal knowledge, and in the absence of any evidence that the officer did not, in fact, have the personal knowledge he claims, his affidavit is competent enough to sustain an award of summary judgment. See Ellison v. Hill, 288 Ga. App. 415, 417 (1) (654 SE2d 158) (2007) (“The personal knowledge requirement set forth in OCGA § 9-11-56 (e) is met where the contents of the pleading indicate that material parts of it are statements within the personal knowledge of the affiant, as opposed to being made upon information and belief.”) (citation and punctuation omitted); see also Benedict v. State Farm Bank, FSB, 309 Ga. App. 133, 139 (2) n.9 (709 SE2d 314) (2011) (affidavit was competent support for motion to compel arbitration where “[t]he affidavit recites that the [affiant] has personal knowledge of [the facts set forth therein], and nothing in the affidavit is inconsistent with such knowledge”).

The Windhams also contend that two affidavits that they submitted in opposition to the motion for summary judgment show the existence of a genuine issue of material fact about whether they had been released from their guaranties of the indebtedness of the Windham company. In one of these affidavits, a former officer of the Bank averred that the Windhams “were concerned about personal liability [and] documents were executed releasing their home and them personally [from] the business loans.” In the other affidavit, Robyn Windham apparently averred that she was assured by the Bank that she would have no personal liability for the debts of the Windham company and that she entered into an agreement with the Bank to release her from any personal liability for those debts.

As to the claim that the Windhams entered into written agreements with the Bank that released them from their guaranties, no such agreements appear in the record, and we find nothing in the record to satisfactorily account for the absence of the agreements. See OCGA § 24-5-4 (a) (“The best evidence which exists of a writing sought to be proved shall be produced, unless its absence shall be satisfactorily accounted for.”). Moreover, to the extent that the Windhams required discovery to obtain the agreements to which the affidavits refer, nothing indicates that they asked for a continuance to take such discovery. See OCGA § 9-11-56 (f) (authorizing trial court to continue proceedings on motion for summary judgment “to permit affidavits to be obtained or depositions to be taken or discovery to be had”). And as to the claim of Robyn Windham that she was assured by the Bank that she would have no personal liability for the indebtedness of the Windham company, “[p]arol evidence is inadmissible to add to, take from, or vary a written contract,” except where the written contract is ambiguous or manifestly incomplete. OCGA § 13-2-2 (1). Here, the guaranty provisions of the line of credit agreement and the unconditional guaranties are unambiguous, and they appear on their face to be a complete statement of the agreement between the parties about the obligation of the Windhams to ensure the repayment of the indebtedness that the Windham company owed the Bank. Consequently, the unsupported claims in the affidavits offered by the Windhams about their obligation to ensure the repayment of the indebtedness of the Windham company are insufficient to preclude the award of summary judgment. See NationsBank, N.A. (South) v. Peavy, 227 Ga. App. 137, 138 (1) (488 SE2d 699) (1997).

2. The Windham company and the Windhams also contend that the court below should have granted their request for an evidentiary hearing on the motion for summary judgment. But the record shows, and the Windhams do not dispute, that this request appears only in one sentence of the “Introduction and Statement of Facts” in their brief in opposition to the motion. We have held before that the failure to hold a hearing on a motion for summary judgment is not error if the party requesting a hearing fails to comply with Uniform Superior Court Rule 6.3, which requires that any such request be made by a separate and distinct pleading. Condon v. Vickery, 270 Ga. App. 322, 325 (2) (606 SE2d 336) (2004) (a trial court has the discretion not to hold a hearing where a party fails to make a written request in a separate pleading). Because the Windham company and the Windhams failed to file a separate and distinct pleading to request a hearing, the court below did not err when it failed to grant the request that was buried in their brief in opposition to summary judgment.

Decided February 1, 2012.

Jonathan P. Waters, for appellants.

Jones, Cork & Miller, Blake C. Sharpton, for appellee.

Judgment affirmed.

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

       We refer in this opinion to Windham & Windham, Inc. as the “Windham company,” and we refer to Jeffrey and Robyn Windham collectively as the “Windhams.”

       In their brief, the Windhams and the Windham company fail to cite the specific pages of the record at which the Court might find the pleadings, papers, and evidence that are relevant to the issues presented on appeal. We remind their counsel that Court of Appeals Rule 25 (c) (2) requires specific references to the record.

       In their brief, the Windhams also appear to claim that they signed the line of credit agreement and the guaranties only as officers of the Windham company and not in their personal capacities. But the agreement and the guaranties explicitly identify the Windhams by name as the guarantors.

       The affidavit of Robyn Windham does not appear in the record, and we consider it only because the court below and the Bank both acknowledge its existence and because the parties seem to agree about the substance of the affidavit.


author: Dillard, Judge.

text:
    A11A1798.
    THOMPSON v. THE STATE.
    (723 SE2d 85)
   Dillard, Judge.

Following a jury trial, Jimmie Thompson was convicted of burglary and sentenced as a recidivist. Prior to trial, Thompson filed a motion to suppress statements made to law enforcement without the benefit of Miranda warnings. The trial court denied Thompson’s motion. On appeal, Thompson argues that (1) the trial court erred in denying his motion to suppress, (2) the evidence was insufficient to find him guilty beyond a reasonable doubt, and (3) he received ineffective assistance of counsel. Because the trial court erred in denying Thompson’s motion to suppress, we are constrained to reverse his conviction.

Viewed in the light most favorable to the jury’s verdict, the record shows that on August 1, 2008, Mother’s Finest Daycare and Learning Center sat vacant and unused, having closed eight months prior. Nevertheless, the daycare center’s owner checked the premises weekly and left various items stored inside, including two vacuum cleaners and a carpet shampooer. On the day in question, the owner was notified by law enforcement that the daycare center had been burglarized. Indeed, a door had been pried open and the inside was amiss with fans, a television set, and kitchen appliances running; trash strewn about; and several items missing. Among the items the owner identified as missing were a vacuum cleaner with a taped, broken handle and a carpet shampooer.

Earlier in the day, a resident of the area surrounding the daycare center observed Thompson walking down the street toward a gas station with what appeared to be two vacuum cleaners. A short while later, he watched as Thompson entered the vacant daycare center, and law enforcement was notified accordingly. Another witness encountered Thompson around this same time at the gas station down the street from the center. Thompson entered the station’s store with what appeared to be two vacuum cleaners, asking if anyone would like to purchase them. He exited the store at one point and reemerged with only one of the devices, presumably having sold the other. The witness, who was also familiar with the daycare center, recognized one of the vacuums in Thompson’s possession by its taped, broken handle. And when Thompson left the gas station, the witness noticed that he was walking back toward the center.

Law enforcement, having been informed that somebody had entered the vacant building, responded to the daycare center. One officer, Officer Findley, spoke with witnesses who described the suspect and what they had observed. The officer then proceeded to the gas station down the road to look for the suspect. Meanwhile, another officer, Officer Edelkind, responded to the scene behind the daycare center and encountered Thompson, who matched the suspect’s description. Officer Edelkind approached Thompson and asked where he was coming from and if he would empty his pockets before a pat-down. Thompson complied with this request and removed items from his pockets, including a crack pipe and push rods. The officer proceeded to ask Thompson when he had last used drugs, and Thompson replied that he had just spent his last $5 on drugs. Thompson also admitted to owning the crack pipe.

Shortly after Thompson emptied his pockets of the drug paraphernalia, Officer Findley returned to the daycare center after hearing over the radio that Officer Edelkind had stopped an individual matching the suspect’s description. Officer Findley approached Thompson and immediately asked “where did he put the vacuums[?]” Thompson responded that he had sold them for $5. Thereafter, Thompson was placed under arrest at the direction of a detective.

Prior to trial, Thompson sought to suppress the statements he made to law enforcement, claiming that he was in custody and should have been read his Miranda rights. But the trial court denied Thompson’s motion, and a jury found him guilty of burglary. He was then sentenced as a recidivist to twenty years with ten years to serve. This appeal by Thompson follows.

At the outset, we note that after a defendant has been convicted, “we view the evidence in the light most favorable to the jury’s verdict, and the defendant no longer enjoys the presumption of innocence.” And 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.” With these guiding principles in mind, we will now address Thompson’s enumerations of error.

1. Thompson contends that the trial court erred in denying his motion to suppress the statements he made to law enforcement without the benefit of Miranda warnings. We agree and, thus, reverse his conviction.

First, we note that “[ujnless clearly erroneous, a trial court’s findings as to factual determinations and credibility relating to the admissibility of the defendant’s statement at a Jackson-Denno hearing will be upheld on appeal.” And in conducting our review, “we may consider trial testimony in addition to the testimony submitted during the motion to suppress hearing.”

In the case sub judice, Thompson claims that he was in custody when Officer Findley questioned him about the vacuum cleaners and, thus, that his statements should have been suppressed because he had not been apprised of his Miranda rights. For Miranda purposes, a person is “in custody” when either formally arrested or restrained to the degree associated with formal arrest. But “[u]nless a reasonable person in the suspect’s situation would perceive that he was in custody, Miranda warnings are not necessary.” This inquiry focuses upon “the objective circumstances attending the particular interrogation at issue, and not upon the subjective views of either the person being interrogated or the interrogating officer.”

Here, testimony at both the motion-to-suppress hearing and trial revealed that after Officer Edelkind asked Thompson to empty his pockets prior to a pat-down, Thompson was found to be in possession of a crack pipe and push rods. Thompson then admitted to recently purchasing and using crack, and the contents of Thompson’s pockets were placed on top of the patrol car while he was detained. Approximately ten minutes later, Officer Findley returned to the daycare center, approached Thompson as he was being detained beside Officer Edelkind’s patrol car, and immediately questioned Thompson as to what happened to the vacuum cleaners. According to both officers, following his admission, Thompson was placed in the back of the patrol car and officially placed under arrest when a detective arrived.

Thompson argued at the motion-to-suppress hearing, and throughout and after the trial, that his statement to Officer Findley—i.e., that he sold the vacuum cleaners for $5—was made while in custody. But after considering the question, the trial court denied Thompson’s motion to suppress, finding that no reasonable person in Thompson’s position would have perceived himself to be in custody. In so holding, the trial court clearly erred.

Although Thompson was not handcuffed or told that he was under arrest, the officer confiscated the contents of his pockets by placing the items on the patrol car before continuing to detain him. Under these circumstances, after producing drug paraphernalia, admitting to owning same, and admitting to recently buying and using drugs, a reasonable person would certainly perceive himself to be in police custody. Additionally, the accusatory nature of Officer Findley’s question required the benefit of Miranda warnings, because although officers may make initial on-the-scene inquiries without Miranda warnings to ascertain the nature of the situation at hand, “[t]he questioning must not be aimed at obtaining information to establish a suspect’s guilt.” Officer Findley’s question, which came after a witness identified Thompson as the suspect, was clearly aimed at establishing his guilt. Accordingly, Thompson’s admission regarding the vacuum cleaners should have been suppressed.

Having determined that the trial court erred in admitting Thompson’s statement, we must now determine whether “there is a reasonable possibility that the improperly admitted evidence contributed to the conviction ... ,” In this regard, the record reflects that the jury deliberated for some time and requested direction on the witness testimony and a lesser-included offense of criminal trespass; there was testimony that the daycare center was located in a neighborhood subject to high crime and drug activity and that the owner had previously—and since—had trouble with burglaries; the witnesses gave inconsistent descriptions concerning the color of the vacuum cleaners and the suspect’s clothing; and one eyewitness repeatedly referred to Thompson by another person’s name. Accordingly, we conclude that there is a reasonable possibility that the improperly admitted evidence contributed to the jury’s verdict.

Decided February 1, 2012.

Roger C. Wilson, for appellant.

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

Nevertheless, while we are reversing Thompson’s conviction, we note that the State may retry Thompson without violating Double Jeopardy because with or without his incriminating statement, there was otherwise sufficient evidence at trial to support the conviction.

2. Given our holding in Division 1, we need not address Thompson’s remaining arguments.

Accordingly, for all the forgoing reasons, we reverse Thompson’s conviction.

Judgment reversed.

Mikell, P. J., and Boggs, J., concur.

        Powell v. State, 310 Ga. App. 144, 144 (712 SE2d 139) (2011).

       For those unfamiliar with street jargon, a “push rod” is defined as “[a] small, but long cylindric object used to push crack residue to [the] end of the pipe[,] enabling one last hit before the hunt for the next rock continues,” and it is “[ujsually carried by the biggest fiend, but more often than not given to the rock buyer.” Urban Dictionary, http://www.urbandictionary.com/ define.php?term=push+rod (retrieved Jan. 19, 2012).

        Powell, 310 Ga. App. at 144.

        Id.

        Sosniak v. State, 287 Ga. 279, 279-80 (1) (695 SE2d 604) (2010) (punctuation omitted).

        Campbell v. State, 313 Ga. App. 436, 436 (721 SE2d 649) (2011) (punctuation omitted).

        Sosniak, 287 Ga. at 280 (1) (A) (1); see also Timmreck v. State, 285 Ga. 39, 41 (2) (673 SE2d 198) (2009); Boone v. State, 293 Ga. App. 654, 658 (3) (b) (667 SE2d 880) (2008).

        Sosniak, 287 Ga. at 280 (1) (A) (1) (punctuation omitted); see also Timmreck, 285 Ga. at 41 (2); State v. Curles, 304 Ga. App. 235, 237 (696 SE2d 89) (2010).

        Sosniak, 287 Ga. at 280 (1) (Á) (1) (punctuation omitted); see also Curies, 304 Ga. App. at 238 (“[T]he subjective views of the interrogator and suspect are not dispositive of whether a person is in custody for the purposes of Miranda warnings.” (punctuation omitted)).

       At this point, a witness had already confirmed to her that Thompson was the individual who had been seen with the vacuum cleaners.

       The court sua sponte reconsidered its decision, but maintained its earlier ruling.

        Compare State v. Billings, 303 Ga. App. 419, 420 (693 SE2d 627) (2010) (holding that defendant was not in custody after officer discovered pills on his person and defendant admitted that he intended to sell the pills, because the contraband was not confiscated and defendant was not restrained while officer left for approximately 30 minutes to question witnesses).

        See Jackson v. State, 272 Ga. 191, 194 (3) (528 SE2d 232) (2000) (“A reasonable person in [the defendant’s] position, having just confessed to involvement in a crime in the presence of law enforcement officers would, from that time forward, perceive himself to be in custody, and expect that his future freedom of action would be significantly curtailed.”); State v. Austin, 310 Ga. App. 814, 821 (2) (714 SE2d 671) (2011) (holding that defendant was in custody after officers discovered marijuana in his home, said he could not have it in his home, and asked defendant to show them any additional drugs so they could “go ahead and grab it now”); see also State v. Thomas, No. 1242, 2011 WL 6378830, at *15 (B) (Md. App. Dec. 21, 2011) (quoting Jackson v. State and suggesting that Georgia views a defendant’s incriminating statement as a dispositive factor in determining whether an interrogation has become custodial). Compare Moses v. State, 264 Ga. 313, 314 (1) (444 SE2d 767) (1994) (holding that defendant was not in custody after officer discovered marijuana plant in his home because, after asking officer whether he was under arrest, officer responded that “the marijuana matter would be handled later”).

        State v. Lucas, 265 Ga. App. 242, 244 (593 SE2d 707) (2004) (punctuation omitted); see Barnes v. State, 163 Ga. App. 61, 62 (2) (293 SE2d 717) (1982) (“Even though the person questioned is being detained, [when] the questions are directed towards establishing the nature of the situation at hand, rather than towards establishing the guilt of the person questioned, the inquiry is not a custodial interrogation, and is reasonable.” (punctuation omitted)); see also Taylor v. State, 235 Ga. App. 323, 326 (2) (509 SE2d 388) (1998) (“[When] the defendant is not in custody . . . and responds to an officer’s initial inquiry at an on-the-scene investigation that [has] not become accusatory, Miranda warnings are not required.” (punctuation omitted)); Dasher v. State, 140 Ga. App. 517, 518 (1) (231 SE2d 510) (1976) (holding that Miranda “does not apply to an admission made at the outset of an on-the-scene investigation that had not yet become accusatory”).

        See Lucas, 265 Ga. App. at 244 (deputy’s question as to who owned marijuana located in home was aimed at establishing guilt); State v. Wintker, 223 Ga. App. 65, 68-69 (476 SE2d 835) (1996) (holding that officer’s question as to whether suspect owned suitcase containing contraband was aimed at establishing guilt when officer had already eliminated another likely owner and suspect was in custody); see also Bailey v. State, 153 Ga. App. 178, 180 (264 SE2d 710) (1980) (questioning was appropriate without Miranda warnings when individual was not suspected of a crime, officer sought general information, question was nonaccusatory, and nothing suggested that situation was the result of individual’s criminal actions). Compare Munsford v. State, 235 Ga. 38, 41 (218 SE2d 792) (1975) (officer’s question was an initial threshold inquiry and not for the purpose of gathering evidence of guilt); Casey v. State, 246 Ga. App. 786, 789-90 (2) (542 SE2d 531) (2000) (same); Dupont v. State, 204 Ga. App. 262, 263 (2) (418 SE2d 803) (1992) (same).

        Schneble v. Florida, 405 U. S. 427, 432 (92 SC 1056, 31 LE2d 340) (1972); see also Sampson v. State, 209 Ga. App. 213, 216 (3) (433 SE2d 136) (1993) (holding that even if admission of statement was error, error was “harmless beyond a reasonable doubt in light of the overwhelming evidence of [the defendant’s] guilt”).

       Additionally, the jury acquitted Thompson on a charge of simple assault based on events that allegedly transpired after he was transported to jail.

        See Vaughn v. State, 248 Ga. 127, 131-32 (2) (281 SE2d 594) (1981) (holding that improper admission of defendant’s confession was not harmless and, accordingly, reversing); Woodard v. State, 256 Ga. App. 464, 465 (1) (568 SE2d 528) (2002) (same).

        See Melton v. State, 282 Ga. App. 685, 694 (2) (d) (639 SE2d 411) (2006) (permitting retrial when sufficient evidence existed, despite reversing conviction on other ground); see also Wilcox v. State, 310 Ga. App. 382, 385 (713 SE2d 468) (2011) (sufficient evidence to sustain burglary conviction when witnesses saw defendant in possession of items identified as having been stolen and defendant’s own statement placed him at the scene of the burglary).


text:
    A11A1802.
    ROBERTS v. THE STATE.
    (723 SE2d 73)
   Blackwell, Judge.

Marc C. Roberts was tried by a Gwinnett County jury and convicted of rape, incest, and aggravated sexual battery. On appeal, he claims that the evidence is insufficient to sustain his rape conviction and that the court below erred when it admitted a recording of his interrogation because, he says, the recording in-eludes comments by a police officer that pertained to the ultimate issue and improperly bolstered the credibility of the victim. We find no merit in these claims of error and affirm the judgment of conviction.

1. We first consider whether the evidence is sufficient to sustain the rape conviction. To this end, we ask whether any rational jury could have found proof beyond a reasonable doubt of guilt in the evidence adduced at trial, viewing that evidence in the light most favorable to the verdict. Howard v. State, 310 Ga. App. 659, 659 (1) (714 SE2d 255) (2011). And as we consider this question, we must keep in mind that it is the function of the jury, not appellate judges, to assess the credibility of witnesses, weigh and draw reasonable inferences from the evidence, and resolve conflicts in the evidence. See Ferguson v. State, 307 Ga. App. 232, 233 (1) (704 SE2d 470) (2010). So, if the record contains some competent evidence to prove beyond a reasonable doubt each element of the crimes of which the defendant was convicted, we must uphold the conviction, even if the evidence is controverted. Id.

To prove that Roberts raped the victim, the State was required to show that he had carnal knowledge of the victim forcibly and against her will. OCGA § 16-6-1 (a) (1). Roberts does not dispute that the evidence shows that he had carnal knowledge of the victim, but he says that there is no evidence that he did so forcibly and against her will. We disagree. The victim testified at trial, and she said that Roberts entered her bedroom, held down her hands as she tried to push him away, and had sexual intercourse with her as she screamed, telling him “no” and to “stop.” Without anything more, this testimony is enough to permit a rational trier of fact to find beyond a reasonable doubt that Roberts committed rape. See Duran v. State, 274 Ga. App. 876, 878 (1) (619 SE2d 388) (2005) (testimony of victim about forcible intercourse was sufficient to sustain conviction for rape).

2. We turn next to the claim of evidentiary error. Before he was arrested, Roberts was interviewed by two police officers. In the course of that interview, one officer explained that he believed the account of the victim and thought that Roberts “took advantage of [the victim],” and he added that “facts are facts, you raped [the victim], you raped her.” The interview was recorded, and the court below admitted the recording, without requiring that these comments be redacted before it was played for the jury. Roberts contends on appeal that the admission of the recording without redactions was error because, he says, the comments pertained to the ultimate issue and bolstered the credibility of the victim. We find no merit in this claim of error.

Roberts relies upon the accepted principle that a sworn witness, generally speaking, should not be permitted to opine from the stand about whether another witness is truthful, see Shelton v. State, 251 Ga. App. 34, 38 (3) (553 SE2d 358) (2001) (“Georgia does not allow witnesses to opine that a party or victim is lying or telling the truth.”) (citation and punctuation omitted), or about the ultimate issue in the case. See Wright v. State, 285 Ga. 57, 63 (5) (673 SE2d 249) (2009) (“A witness generally is not permitted to express his or her opinion regarding an ultimate issue in the case because to do so would invade the fact-finding province of the jury.”) (citation and punctuation omitted). We do not doubt the correctness of this principle, but it has no application here. If the officer had taken the witness stand in this case and, in the course of his sworn testimony, offered opinions about whether the victim ought to be believed or whether Roberts had, in fact, raped the victim, the admission of those opinions might well amount to error. But that is not what happened. When the officer made the comments about which Roberts complains, the officer was not then a sworn witness. Instead, he was interviewing a suspect in the course of a law enforcement investigation, and as our Supreme Court has acknowledged, “law enforcement interrogations are, by their very nature, attempts to determine the ultimate issue and the credibility of witnesses.” Collum v. State, 281 Ga. 719, 723 (3) (642 SE2d 640) (2007). Comments made in such an interview and designed to elicit a response from a suspect do not amount to opinion testimony, even when a recording of the comments is admitted at trial. See Hames v. State, 278 Ga. 182, 184 (3) (598 SE2d 459) (2004); Rowe v. State, 276 Ga. 800, 803 (2) (582 SE2d 119) (2003); Huckeba v. State, 217 Ga. App. 472, 477 (5) (458 SE2d 131) (1995).

That comments of this kind are not opinion testimony does not mean, however, that they always can be admitted, and we have explained before that such comments ought not to be admitted if “the probative value of the [comments] is outweighed by [their] tendency to unduly arouse the jury’s emotions of prejudice, hostility or sympathy.” Holland v. State, 221 Ga. App. 821, 825 (3) (472 SE2d 711) (1996) (citation omitted). See also Axelburg v. State, 294 Ga. App. 612, 617-618 (2) (669 SE2d 439) (2008). The comments about which Roberts complains, however, had some probative value. One of the interviewing officers explained at trial that, when they interviewed Roberts, they deliberately chose to use a confrontational interview technique, one that was warranted, they thought, in light of what they knew about Roberts. This confrontational technique included the confrontational comments about which Roberts now complains, and by the conclusion of the interview, this technique yielded an admission that Roberts might have had intercourse with the victim against her will. Generally speaking, “every act or circumstance serving to elucidate or throw light upon a material issue or issues is relevant,” Ward v. State, 274 Ga. App. 511, 513 (3) (618 SE2d 154) (2005) (punctuation and footnotes omitted), and for this reason, evidence of the circumstances in which the officers elicited an important admission from Roberts had some probative value. The prejudicial effect of admitting these comments, however, seems minimal. The officer who made the comments about which Roberts complains later arrested Roberts, so it hardly would have been news to anyone that the officer believed the account of the victim and thought that Roberts had, in fact, raped the victim. The jury almost certainly would have surmised as much, even if the comments of the officer had not been admitted, and these comments upon the obvious are not, we think, comparable to the specific and detailed commentary that we found inadmissible in Axelburg, 294 Ga. App. at 618 (2), and Holland, 221 Ga. App. at 825 (3). For these reasons, we cannot say that the court below abused its discretion when it admitted a recording of the interview of Roberts without requiring the redaction of the comments about which Roberts complains.

Decided February 1, 2012.

Brown & Gill, Angela B. Dillon, for appellant.

Daniel J. Porter, District Attorney, Jennifer G. Hendee, Assistant District Attorney, for appellee.

Consequently, we affirm the judgment below.

Judgment affirmed.

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

       OCGA § 16-6-1.

       OCGA § 16-6-22.

       OCGA § 16-6-22.2.

       Roberts said that “there might have been times . . . [the victim] told [him] to stop, and [he] kept going,” and that sometimes the victim would say “Stop. No.”

       In Axelburg, we held that the trial court ought not have admitted interrogation comments in which an officer claimed that he had expertise concerning sleepwalking, held himself out as an expert in forensic interview techniques, said that he knew whenever a suspect was lying, and accused the defendant of lying about his sleepwalking. 294 Ga. App. at 618 (2). In Holland, we held that the trial court should not have admitted interrogation comments in which a detective explained at length that the interactions between the defendant and his daughter were “inappropriate,” “abnormal,” “wrong,” and “extreme.” 221 Ga. App. at 825 (3).


author: Miller, Judge.

text:
    A11A1841, A11A1962.
    TABB v. THE STATE (two cases).
    (723 SE2d 295)
   Miller, Judge.

Melvin Charles Tabb, and his wife, Leilani Tabb, were indicted on charges stemming from the abuse of their minor son, D. W Melvin was charged individually with one count of cruelty to children in the first degree (OCGA § 16-5-70 (b)), and jointly with Leilani in a second count of cruelty to children in the first degree. The Tabbs were tried jointly before a jury At the close of the State’s case, Leilani moved for a directed verdict of acquittal on the basis that the State did not introduce any evidence that Leilani aided, abetted, or encouraged Melvin’s abuse of D. W. The trial court denied Leilani’s motion, and she was convicted as a party to the crime of cruelty to children in the first degree. Melvin was convicted on both charged counts of cruelty to children in the first degree. Melvin and Leilani filed separate motions for new trial, which the trial court denied. In Case No. A11A1841, Leilani argues that the trial court erred by denying her motion for a directed verdict. In Case No. A11A1962, Melvin argues that the trial court erred in finding that he failed to demonstrate ineffective assistance of counsel. Discerning no error, we affirm in both cases.

Viewed in the light most favorable to the jury’s verdict, see Jackson v. Virginia, 443 U. S. 307, 319 (III) (B) (99 SC 2781, 61 LE2d 560) (1979), the evidence shows that in early November 2008, when D. W was seven years old, Melvin used an extension cord to repeatedly strike D. W across his bare buttocks. Melvin ceased striking D. W. only upon noticing that D. W. had begun to bleed. A pediatric physician who later examined D. W observed “pattern loop marks” on D. W’s buttocks and legs, which were consistent with previously being struck by an extension cord.

Approximately two weeks later, on the morning of November 13, 2008, D. W went to his parents’ bedroom in order to apply his daily eczema treatment. Melvin and Leilani were lying in their bed talking. Leilani told D. W to apply his eczema treatment in the bathroom, which was connected to the bedroom. Melvin followed D. W into the bathroom, closed the door, told D. W. to hold his arms straight out, and used a belt to strike D. W multiple times across his arms and back. D. W. cried loudly during the beating. D. W. left his parents’ bedroom after the incident, at which time Leilani was still lying awake in her bed.

Once D. W arrived at school, he refused to take off his book bag and coat, and complained to his teacher that his arms hurt. D. W was sent to the school nurse, who observed bruises and redness on D. W’s right arm. The nurse notified school officials. Upon further examination, the nurse and the other school officials observed additional bruising on D. W’s other arm, as well as his abdomen, shoulders, and back. During the examination at his school, D. W. was still experiencing pain in his arms and was having difficulty moving them. Later that same day, D. W. was examined by an emergency room physician, who testified that D. W. was having significant tenderness of his upper right arm, and was uncomfortable when the wounds on his back were palpitated. The pediatric physician who examined D. W the next day described that D. W.’s bruising was consistent with being repeatedly struck with a belt on November 13, 2008.

Case No. A11A1841

1. Leilani argues on appeal that she was entitled to a directed verdict of acquittal because the evidence presented at trial did not support her conviction for cruelty to children in the first degree. We disagree.

We review the denial of a motion for directed verdict of acquittal under the same standard we apply to a challenge to the sufficiency of the evidence. Under that standard, we view the evidence in the light most favorable to the 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.

(Punctuation and footnotes omitted.) Martin v. State, 299 Ga. App. 845, 846-847 (1) (683 SE2d 896) (2009).

Leilani was charged jointly with her husband on one count of cruelty to children in the first degree by maliciously causing D. W cruel and excessive physical pain by repeatedly striking D. W with a belt on November 13, 2008. Under OCGA § 16-5-70 (b), “[a]ny person commits the offense of cruelty to children in the first degree when such person maliciously causes a child under the age of 18 cruel or excessive physical or mental pain.” To prove the offense of cruelty to children in the first degree, “[t]he State must present evidence establishing the age of the child, that the child suffered physical or mental pain, that the pain was cruel or excessive, that the defendant caused the pain, and that the defendant acted maliciously in so doing.” (Citation and punctuation omitted.) Alexander v. State, 274 Ga. 787, 789 (1) (b) (561 SE2d 64) (2002).

Although Leilani argues that she was not the one who actually struck D. W. on November 13, 2008, Leilani could still be convicted as a party to the child cruelty crime. See OCGA §§ 16-2-20, 16-2-21; Johnson v. State, 269 Ga. 632, 634 (501 SE2d 815) (1998) (“A participant to a crime may be convicted for the crime although he or she is not the person who directly commits the crime.”) (citations omitted). “Although mere presence at the scene of the crime is insufficient grounds for a conviction, a person can be guilty as a party to the crime if they intentionally aid, abet, encourage, facilitate, assist, or are otherwise concerned in the commission of the acts that constitute the crime.” (Footnote omitted.) Glenn v. State, 278 Ga. 291, 294 (1) (b) (602 SE2d 577) (2004). Leilani nevertheless argues that the State failed to prove beyond a reasonable doubt that she intentionally assisted, aided, abetted, encouraged, or otherwise concerned herself in Melvin’s abuse of D. W Leilani specifically points to the lack of evidence showing that she ever discussed the November 13, 2008, incident with either D. W. or Melvin, that she directly witnessed the abuse or D. W’s resulting injuries, or that she knew the severity of the abuse inflicted upon D. W that day.

Notwithstanding Leilani’s arguments, “[w]ith regard to the crime of cruelty to children, criminal intent may be inferred from conduct before, during and after the commission of the crime.” (Citation and punctuation omitted.) Delacruz v. State, 280 Ga. 392, 396 (3) (627 SE2d 579) (2006); see, e.g., Porter v. State, 243 Ga. App. 498, 499-500 (1) (a) (532 SE2d 407) (2000) (concluding that the evidence supported wife’s conviction as a party to her husband’s offense of cruelty to children in the first degree where evidence showed that (i) husband’s abuse continued for several days; (ii) the wife was aware of such abuse; (iii) the wife was in close contact with the child every evening; (iv) the child’s suffering would have been obvious due to the nature of his injuries; and (v) even though the wife knew her husband might abuse the child, she did not leave work and go home). Here, D. W’s testimony shows that Leilani was present during Melvin’s November 13, 2008, beating of D. W with a belt, yet did nothing to stop Melvin or otherwise help D. W. There was also evidence authorizing the jury to find that Leilani knew D. W. sustained injuries as a result of Melvin’s November 13, 2008, beating. D. W. testified that his arms and back hurt when he left his parents’ bedroom, and that it hurt to put on his book bag that morning. The evidence shows that D. W. saw Leilani before he left for school that morning, and in fact told Leilani that his arm hurt. According to the school officials and physician who examined D. W. later that day, D. W was experiencing pain in his arms and having difficulty moving them. Yet, the only assistance Leiláni ever offered to D. W. was to instruct him not to move his arm a lot.

There was also evidence that Leilani was not only aware of prior abuse that D. W sustained via a belt, but had also participated in such prior abuse. The examining physicians testified that D. W’s body was covered with severe bruising that was in various stages of healing and consistent with being repeatedly struck with a belt. According to D. W, Leilani would see him every morning without his clothing on while he applied his daily eczema treatment. Furthermore, D. W. stated in his recorded interview that, on other occasions, Leilani whipped him with a belt, striking him about ten to fifteen times in a row. Leilani admitted in her recorded interview that both she and her husband regularly “whooped” D. W with a belt across his bare skin.

Based upon the foregoing evidence, the jury was authorized to find that Leilani was a party to her husband’s crime of cruelty to children in the first degree. Cf. Smith v. State, 288 Ga. 348, 348, n. 1, 354-355 (9) (703 SE2d 629) (2010) (concluding evidence was sufficient to enable jury to find husband guilty as a party to the crime of cruelty to children in the first degree where, even if husband was not present when his wife administered the specific abusive conduct charged in the indictment, the evidence showed that such conduct was a routine part of the family’s discipline and that the child was already in distress from beatings he had received from the husband earlier that day); Delacruz, supra, 280 Ga. at 396 (3) (holding that there was sufficient evidence for the jury to find husband guilty as a party to the crime of cruelty to children in the first degree where the evidence demonstrated that the husband participated in a pattern of child cruelty over the course of several months). Therefore, the trial court did not err by denying Leilani’s motion for a directed verdict.

Case No. A11A1962

2. Melvin argues on appeal that his trial counsel provided ineffective assistance by failing to object to the trial court’s jury charge on justifiable parental discipline. We disagree.

To prevail on his claim of ineffective assistance of counsel, [Melvin] must show that counsel’s performance was deficient and that the 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. There is a strong presumption that trial counsel’s conduct falls within the broad range of reasonable professional conduct, and a criminal defendant must overcome this presumption. And unless clearly erroneous, we will uphold a trial court’s factual determinations with respect to claims of ineffective assistance of counsel. A trial court’s legal conclusions in this regard, however, are reviewed de novo.

(Punctuation and footnotes omitted.) Roberts v. State, 309 Ga. App. 681, 684-685 (3) (710 SE2d 878) (2011).

Melvin was charged with cruelty to children in the first degree by maliciously causing D. W cruel and excessive physical pain by repeatedly striking D. W. with an electric extension cord between the dates of November 1, 2008, and November 11, 2008. Melvin was also charged jointly with Leilani on a second count of cruelty to children in the first degree by maliciously causing D. W cruel and excessive physical pain by repeatedly striking D. W. with a belt on November 13, 2008. At trial, Melvin admitted to the conduct charged in both counts of the indictment, but testified that he intended only to impose disciplinary punishment upon D. W

Under OCGA § 16-3-20 (3), parental discipline of a child is included within the affirmative defense of justification. However, “applied force is legally justified only when a parent’s conduct in disciplining a minor is reasonable.” (Citation omitted.) LaPann v. State, 191 Ga. App. 499, 500-501 (382 SE2d 200) (1989). Here, as requested by both Melvin and Leilani, the trial court issued the jury an instruction on justifiable parental discipline that essentially tracked the pattern jury charge language. See Suggested Pattern Jury Instructions, Vol. II: Criminal Cases, § 2.28.24 (4th ed. 2007). Melvin nevertheless argues that his trial counsel was ineffective by failing to object to the following emphasized language of the trial court’s jury charge on justifiable parental discipline —

If you find from the evidence that the defendant did inflict corporal punishment upon the child in this case, and you further find that it was reasonable and did not cause the child to suffer cruel or excessive physical pain, then the defendant would be justified, and it would be your duty to acquit the defendant.

Melvin asserts that the jury charge was fatally flawed because including such language rendered his affirmative defense of justification “an impermissible impossibility,” claiming that he “had already admitted to the doing of the act charged, causing the child cruel or excessive physical pain.”

Contrary to Melvin’s assertion, however, the defense of justification was not “an impermissible impossibility” in this case, and the trial court was authorized to give a justifiable parental discipline jury charge that was adequately adjusted to the evidence in the case. See Woodson v. State, 242 Ga. App. 67, 69 (2) (530 SE2d 2) (2000) (“A trial judge does not err in refusing to give a requested charge that, among other things, is not adequately adjusted to the case or authorized by the evidence.”) (footnote omitted). Notably, notwithstanding Melvin’s characterization of his admissions on appeal, the record evidence shows that the only acts charged to which Melvin admitted were striking D. W with an extension cord and then later striking D. W with a belt. Melvin in fact denied that D. W was in any extreme or excessive pain as a result of either beating. Thus, it was for the jury to decide whether or not Melvin’s conduct caused D. W to suffer cruel or excessive physical pain. See McClellan v. State, 274 Ga. 819, 822 (2) (561 SE2d 82) (2002) (“What constitutes cruel or excessive physical pain is for the jury to determine.”) (citation omitted). Accordingly, any objection to the trial court’s jury charge on justifiable parental discipline would have lacked merit. “Failure to make a meritless objection cannot be evidence of ineffective assistance.” (Citation and punctuation omitted.) Butler v. State, 277 Ga. App. 57, 61 (2) (625 SE2d 458) (2005).

Decided February 1, 2012.

Frank T. Smith, for appellant (case no. A11A1841). I

William C. Mewborn III, for appellant (case no. A11A1962).

Richard R. Read, District Attorney, Roberta A. Earnhardt, Debra i M. Sullivan, Assistant District Attorneys, for appellee.

Judgments affirmed.

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

       “The State is not required to indicate in the indictment that it is charging a person as a party to the crime.” (Citation omitted.) Glenn v. State, 278 Ga. 291, 294 (1) (b), n. 4 (602 SE2d 577) (2004).


author: PHIPPS, Presiding Judge.

text:
    A11A1851.
    In the Interest of A. L., a child.
    (723 SE2d 76)
   PHIPPS, Presiding Judge.

The father of 12-year-old A. L. appeals a juvenile court order finding A. L. deprived. He contends that the lower court erred by finding the evidence sufficient to show deprivation. For the reasons set forth below, we affirm.

On appeal from a finding that a child is deprived, we review the evidence in the light most favorable to the juvenile court’s judgment to determine whether any rational trier of fact could have found by clear and convincing evidence that the child was deprived. This Court neither weighs evidence nor determines the credibility of witnesses; rather, we defer to the trial court’s fact-finding and affirm unless the appellate standard is not met.

OCGA § 15-11-1 (1) mandates that the juvenile court’s primary responsibility is to consider and protect the welfare of children whose well-being is threatened.

A deprived child is one who is 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. Deprivation is established by proof of parental unfitness arising from 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. The deprivation petition is brought on behalf of the child and it is the child’s welfare and not who is responsible for the conditions which amount to deprivation that is the issue.

Moreover, a juvenile court is authorized to find a lack of proper parental care or control based on a parent’s failure to protect the welfare of the child whose well-being is threatened.

The father contends that “[n]o evidence has been presented that he has exhibited improper care or control of the child, deprived her of subsistence or education or other care or control necessary for the child’s physical, mental or emotional health or morals.” He argues that the Whitfield County Georgia Department of Human Resources Division of Family and Children Services (DFCS) should have been required to prove “that he directly did something to harm the child, deprive her or somehow tangibly show himself to be an unfit father,” and that it failed to meet that burden of proof.

Construed in the light most favorable to upholding the juvenile court’s finding that A. L. was deprived, the evidence showed that DFCS had an ongoing case with the family since May 2010. The parents, both of whom lived in the home with A. L., failed to comply with a case plan goal to cooperate with DFCS and with other professionals working with the family. On cross-examination, the father agreed that the mother had always been A. L.’s primary caretaker. The father testified that because he worked overtime, the mother ordinarily took A. L. to the child’s doctor appointments. As the primary caretaker, the mother imposed various restrictions on the educational and social services provided to A. L., but consistently failed to provide school officials and DFCS with the child’s medical records, which those professionals deemed necessary to substantiate the restrictions, to make educational decisions regarding A. L., and to complete a psychological evaluation of A. L.

For instance, the mother claimed that A. L. had thirty-four types of seizure disorders as well as ten to eleven deadly allergies. A counselor from A. L.’s middle school testified that the mother had requested that A. L. not be permitted to take home books, and “a lot of the things that were required in the classroom she wasn’t able, according to mom, to do.” The mother wrote a letter to notify the school that A. L. was “neurologically disabled” and unable to focus, could not be around computers, and could not read more than ten books in a school year (and if she did, she would have seizures). On a progress report sent home, the mother wrote, “Fail her, please.” The counselor testified however, that A. L. did not exhibit behavior problems that necessitated the school referring A. L. for medical treatment, or that otherwise indicated that A. L. needed to be in a special education program. According to the counselor, A. L. was “able to do the work” and participated in science and poster projects.

A. L. had eight unexcused absences from school within the three-to four-month period immediately before the adjudicatory hearing, and because of incomplete assignments, A. L.’s grades were “borderline,” with failing averages in reading and science. A. L.’s literacy teacher was particularly concerned about the limitations on the number of books the mother reported A. L. could read because “she would not be able to pass with those kind[s] of regulation [s] . . . that she can’t take her books home and that she can’t read over 10 books.” The mother missed a scheduled truancy meeting with the school.

A psychologist who, at the behest of DFCS, had examined the mother and A. L., testified that she needed A. L.’s medical and school records to complete her report and make an informed diagnosis of A. L. The need for the medical records thus was two-fold: (1) so that, based on credible medical evidence, the school could address A. L.’s reported limitations; and (2) so that the psychologist employed by DFCS could complete an evaluation of A. L. and properly diagnose her.

However, as the trial court found, the mother interfered and refused to cooperate with efforts to verify the medical conditions she reported. Indeed, at the time DFCS took custody of A. L., it was discovered that A. L. was being administered medication which her doctor had discontinued six to seven months earlier. In its order, the trial court took judicial notice of its own record and of all previous unappealed findings of fact, and noted that based on various inconsistencies in the mother’s testimony and the evidence presented, the mother had little credibility with the court. And in the event he was awarded custody of A. L., the father affirmed that he would continue to work, which supported the trial court’s conclusion that he would allow the mother to continue as A. L.’s primary caretaker. Under those circumstances, any rational trier of fact could have found by clear and convincing evidence that A. L. was deprived.

Decided February 1, 2012.

Avrett, Ponder & Withrock, William B. Barnwell, for appellant.

Samuel S. Olens, Attorney General, Shalen S. Nelson, Senior Assistant Attorney General, Calandra A. Harps, Assistant Attorney General, Bruce A. Kling, for appellee.

Judgment affirmed.

Andrews and McFadden, JJ., concur.

        In the Interest of W. W., 308 Ga. App. 407 (707 SE2d 611) (2011) (citation omitted).

        In the Interest of D. Q., 307 Ga. App. 121, 125 (704 SE2d 444) (2010).

        In the Interest of W. W., supra at 410 (citations and punctuation omitted; emphasis supplied); In the Interest of J. C„ 264 Ga. App. 598, 599 (591 SE2d 475) (2003); OCGA § 15-11-2 (8) (A).

        In the Interest of B. H., 295 Ga. App. 297, 298 (2) (671 SE2d 303) (2008).

       See In the Interest of J. C., supra at 600 (1) (because of children’s high number of unexcused absences from school, the extended period during which the children continued to miss school, and the parents’ unwillingness to talk with the school representative about their children’s truancy, a rational trier of fact could have found by clear and convincing evidence that the children were not receiving the education required by law and were deprived for that reason).

        In the Interest of J. P. V., 261 Ga. App. 194, 196 (2) (582 SE2d 170) (2003) (a court may take judicial notice of records in the same court, where the court indicated on the record that it was taking judicial notice of its prior orders, which were unappealed, and the mother failed to object); In the Interest of J. A., 298 Ga. App. 11, 14 (1) (679 SE2d 52) (2009) (court took judicial notice of its prior findings in determining whether the children continued to be deprived and informed the parties during the hearing that it was doing so).

       See In the Interest of B. H., supra (where both parents lived in the same household as child, deprivation was found as to the mother for failing to protect the child from sexually abusive father as to whom deprivation was also found); Brown v. Fulton County Dept. of Family &c., 136 Ga. App. 308, 309-310 (2) (220 SE2d 790) (1975) (unexplained injuries to child supported finding of deprivation where parents argued that there was no showing that the child was physically abused by them); In the Interest of J. A., supra at 15 (1) (court was entitled to consider the fact that the case plan had not been completed as evidence that the children’s deprivation was likely to continue if they were returned to father); In the Interest of B. B., 267 Ga. App. 360, 362 (1) (599 SE2d 304) (2004) (a mother’s failure to cooperate with DFCS and adhere to reunification plan supported the juvenile court’s decision extending its previous deprivation order); In the Interest of J. C., supra (deprivation found due to educational neglect).