author: Blackburn, Chief Judge.

text:
    A01A1266.
    WILSON v. THE STATE.
    (554 SE2d 522)
   Blackburn, Chief Judge.

Following the trial court’s dismissal of his appeal from his conviction for obstruction of an officer, Anthony Wilson appeals to this Court, contending that his appeal below was inappropriately dismissed for failure to pay costs. For the reasons set forth below, we affirm.

In both civil and criminal trials, OCGA § 5-6-48 (c) grants a trial court the discretionary authority to dismiss an appeal if “there has been an unreasonable delay in the transmission of the record to the appellate court, and it is seen that the delay was inexcusable and was caused by the failure of a party to pay costs in the trial court or file an affidavit of indigence.” See, e.g., Cooper v. State. A delay exceeding 30 days is prima facie unreasonable and inexcusable. Crenshaw v. Ga. Underwriting Assn.

At the hearing on the State’s motion to dismiss, Wilson, through counsel, admitted that he had received notice of costs, that he had neither paid such costs nor filed an affidavit of indigence, and that the resulting delay exceeded 30 days. When asked by the trial court about the reason behind the delay, Wilson’s counsel provided no excuse from his client and affirmatively stated that the State’s facts were correct. In addition, when the trial court asked Wilson’s counsel to provide him with any legal basis for not granting the State’s motion to dismiss, Wilson’s counsel responded that he believed that dismissal of the case was within the trial court’s discretion. Therefore, Wilson not only admitted to a set of facts raising a presumption of an unreasonable and inexcusable delay, but he also admitted that dismissal of his case was within the trial court’s discretion. Under these circumstances, we find that the trial court did not abuse its discretion in dismissing Wilson’s appeal.

And, contrary to Wilson’s arguments, Ga. Dept. of Human Resources v. Patillo does not demand a different result in this case. In Patillo, we reversed the trial court’s order because the trial court made neither written nor oral findings regarding the reasonableness or excusableness of the delay, and, as a result, we also remanded that case for findings to be made. Here, in contrast, the hearing transcript contains findings regarding unreasonableness. Moreover, as discussed, Wilson admitted to a set of facts raising a presumption that his delay in paying costs was unreasonable and inexcusable, and he agreed that the trial court had the discretion to dismiss his case. Accordingly, Patillo is wholly distinguishable from the case at hand.

Decided August 27, 2001.

Gilbert J. Murrah, for appellant.

Ben Kirbo, Solicitor-General, for appellee.

Because we have found that Wilson’s case was appropriately dismissed, we need not address his remaining enumerations of error.

Judgment affirmed.

Pope, P. J., and Mikell, J., concur.

        Cooper v. State, 235 Ga. App. 66 (508 SE2d 447) (1998).

        Crenshaw v. Ga. Underwriting Assn., 202 Ga. App. 610, 611 (414 SE2d 915) (1992).

        Ga. Dept. of Human Resources v. Patillo, 194 Ga. App. 279 (390 SE2d 431) (1990).


source: Caselaw Access Project

author: Miller, Judge.

license: Public Domain

text:
    A01A1416.
    WARD et al. v. BERRY.
    (554 SE2d 532)
    Decided August 27, 2001.
    Jerry Ward, pro se.

   Miller, Judge.

Keith Berry instituted dispossessory proceedings against Jerry and Sharon Ward. After a bench trial the court granted Berry a writ of possession and judgment in the amount of $600. The Wards appeal, arguing that the court “failed to consider whether [they] had any duties to Keith Berry.” The appellate record, however, does not include a transcript of the trial.

Where an appeal is taken which draws in question the transcript of the evidence and proceedings, it shall be the duty of the appellant to have the transcript prepared at his expense. Thus, where the transcript is necessary for the review and appellant omits it from the record on appeal, the appellate court must assume the judgment below was correct and affirm.

As the Wards’ enumeration requires consideration of evidence presented at trial, in the absence of a transcript, we must assume the court’s judgment was correct and affirm.

Judgment affirmed.

Andrews, P. J., and Eldridge, J., concur.

Sharon Ward, pro se.

Keith Berry, pro se.

       (Footnote and emphasis omitted.) Oliver v. Green, 240 Ga. App. 439 (523 SE2d 68) (1999), quoting Brown v. Frachiseur, 247 Ga. 463, 464 (277 SE2d 16) (1981).


author: Phipps, Judge.

text:
    A01A1945.
    GRAHAM v. THE STATE.
    (554 SE2d 528)
   Phipps, Judge.

Following denial of his motion for new trial, Tequan Graham appeals his convictions on-two counts of felony theft by receiving stolen property. He challenges the sufficiency of the evidence to support his convictions and felony sentences, and he charges his trial counsel with ineffective assistance. We agree that the evidence is insufficient to support felony sentencing on one of the counts. Otherwise, we find no insufficiency in the evidence or ineffectiveness in trial counsel’s performance. We therefore affirm Graham’s convictions as well as his sentence on one of the felony counts, vacate the other sentence, and remand for resentencing as a misdemeanor.

Graham was accused of two counts of felony theft by receiving stolen property and one count of misdemeanor theft by receiving stolen property. Count 1 of the accusation charged Graham with felony theft by receiving stolen property by disposing of an electronic keyboard with a value exceeding $500, the property of Robin Ferguson. Count 2 charged him with misdemeanor theft by receiving stolen property by disposing of one videocassette recorder (VCR) with a value less than $500, the property of Heather Ludi. Count 3 charged him with theft by receiving stolen property by disposing of compact discs (CDs), movies, and a set of golf clubs with a value exceeding $500, the property of Dennis Yarman. The trial court granted Graham’s motion for directed verdict on the misdemeanor count, and he was convicted on both felony counts.

Through the testimony of Yarman and David Conley (the owner of a pawnshop), the State sought to show that, on the day of the burglary of Yarman’s residence, Graham pawned the CDs, movies, and golf clubs taken from Yarman. Through the testimony of Ferguson and Dariel Wilson (the manager of another pawnshop), the State sought to show that, two days after the burglary of Ferguson’s residence, Graham pawned the electronic keyboard taken from Ferguson.

1. Graham challenges the sufficiency of the evidence to show his knowledge that the property he pawned was stolen or that the property was of sufficiently high value to authorize imposition of felony sentencing. He also claims that the evidence was insufficient to show that the items taken in the burglary of the Yarman residence were those pawned by him.

“A person commits the offense of theft by receiving stolen property when he receives, disposes of, or retains stolen property which he knows or should know was stolen unless the property is received, disposed of, or retained with intent to restore it to the owner.” While value thus is not an element of this crime, it is relevant for the purpose of distinguishing between a misdemeanor and a felony for sentencing. In this regard, OCGA § 16-8-12 (a) provides that a person convicted of this offense shall be punished as for a misdemeanor but if “the property which was the subject of the theft exceeded $ 500.00 in value,” the crime may be punishable as a felony.

(a) Ferguson identified the keyboard taken from her residence. She testified that it belonged to her employer, the DeKalb County Board of Education. A sticker affixed to it identified it as property of the board. Wilson identified this same keyboard as the keyboard pawned by Graham. Although Wilson testified that she had not noticed that the keyboard had a sticker on it when it was pawned, she acknowledged that the sticker may have been present. Whether the sticker was on the keyboard when it was in Graham’s possession and whether its visibility was such that he would have or should have seen it were matters for the jury to resolve.

Construed in a light most favorable to the verdict, the evidence was sufficient to show that Graham knew or should have known that the keyboard was the property of the school board and thus had been stolen.

(b) Yarman testified that an RCA VCR, a Pioneer CD player, a Sony cordless phone, 125 CDs, around 40 videotapes, and a set of King Snake golf clubs had been taken from his residence. On the day of the burglary, Graham pawned 60 CDs, 47 videotapes, an RCA VCR, a Pioneer CD player, and a telephone. The following day, Graham pawned a set of King Snake golf clubs. Conley’s testimony authorized the jury to find that when asked to explain why he was pawning such an unusual assortment of items, Graham gave an evasive and misleading answer.

This evidence was sufficient to authorize the jury to find that the CDs, videotapes, and golf clubs pawned by Graham were those taken from Yarman. Whether Graham possessed the requisite guilty knowledge that the property was stolen was for the jury to decide.

(c) Ferguson testified that the keyboard taken from her in 1999 had been purchased by the school board in 1996 for $950, that without an educational discount it would have cost $1,200 to $1,300, and that it would cost the school $1,100 to replace the keyboard with a comparable new model. Wilson testified that she would have sold the keyboard pawned by Graham for between $299 and $399.

“The cost of the property to the owner, although relevant on the question of value, is not the ultimate determinant.” Nor is the replacement cost. “The value of property which is the subject of the theft is the fair cash market value either at the time and place of the theft or at any time during the receipt or concealment of the property.” The term “fair market value” has been defined as the amount a knowledgeable buyer would pay for the property and a willing seller would accept for the property at an arm’s length, bona fide sale.

Ferguson testified only about the cost of the keyboard to the owner and the cost to replace it with a new model. Wilson testified that she would have sold the keyboard for less than $500, i.e., $299 to $399. Although Wilson acknowledged that pawnshops generally charge less for merchandise than do other retail establishments, it would require pure guesswork and speculation on the part of the jury to conclude that an item being sold for $299 to $399 at Wilson’s pawnshop would have a fair market value exceeding $500. However, the evidence certainly supported a finding that the keyboard had some value. Therefore, we remand for misdemeanor sentencing on Count l.

(d) Evidence given by Yarman, Conley, and a golf professional employed by the Druid Hills Golf Club authorized the jury to find that Yarman’s golf clubs had a fair market value as low as $150 and as high as about $400, and that the 47 videos and 60 CDs had a fair market value of at least $3 each. This evidence was minimally sufficient to show that the combined value of the property exceeded $500.

2. Graham complains of ineffective assistance of trial counsel in numerous regards.

“To establish ineffectiveness, [Graham] must prove that his trial counsel’s performance was deficient and but for the deficiency there was a reasonable probability the result of the trial would have been different. [Cits.]” Trial strategy and tactics do not equate with ineffective assistance of counsel.

Decided August 27, 2001

Maria Murder-Ashley, for appellant.

Tequan Graham, pro se.

(a) Graham charges his trial attorney with ineffectiveness in failing to object to the admission in evidence of a letterhead stolen from the Druid Hills Golf Club. Graham previously worked at the Druid Hills Golf Club but did not have access to its letterhead stationery. He argues that admission of this document prejudiced his defense, because he otherwise would have shown that he used a Druid Hills Golf Club letterhead to advertise his services pawning property for third parties. We find no prejudice. Had the letterhead been introduced by Graham, the State could have shown that he could have obtained it only by theft.

(b) Graham claims that trial counsel was ineffective in failing to interview Yarman and Conley before trial. Because counsel testified that she was not surprised by their testimony, and because Graham has not shown how counsel’s questioning of these witnesses at trial might have been different had she talked to them beforehand, we again find no prejudice to the defense.

(c) Graham contends that trial counsel was ineffective in failing to object when a police detective testified that Graham was the main suspect in a line of cases which included the burglary of Ludi’s residence. Because Graham was being tried for the Ludi burglary under Count 2 of the accusation, the detective’s testimony was admissible.

(d) Graham complains of trial counsel’s failure to object when the prosecutor commented in closing argument that the State originally had charged Graham with burglary but had reduced the charge to theft by receiving because it could not prove his commission of the former crime. At the hearing on Graham’s motion for new trial, counsel explained that she raised no objection because she thought that proof of the State’s inability to prosecute him for burglary was beneficial to the defense. This decision amounted to one of trial tactics and strategy which did not constitute ineffective assistance.

(e) Finally, Graham claims that trial counsel was ineffective in not asking the court to instruct the jury to disregard evidence relating to Count 2 of the accusation. The trial court did, however, repeatedly instruct the jurors that Count 2 had been taken from their consideration and that they would be deliberating only on Counts 1 and 3. We find no reasonable probability that Graham would have been acquitted if the additional charge had been given.

Judgment affirmed in part and vacated in part and remanded for resentencing.

Smith, P. J., and Barnes, J., concur.

J. Tom Morgan, District Attorney, Robert M. Coker, Andrette Watson, Assistant District Attorneys, for appellee.

       (Footnotes omitted.) Baker v. State, 234 Ga. App. 846, 847-848 (507 SE2d 475) (1998).

       See Slaughter v. State, 240 Ga. App. 758, 760 (6) (525 SE2d 130) (1999).

       See id.

       (Footnote omitted.) Baker, supra at 848.

       See Fewox v. State, 243 Ga. App. 651 (534 SE2d 121) (2000).

       (Footnote omitted.) Baker, supra.

       See Macon-Bibb County Bd. of Tax Assessors v. J. C. Penney Co., 239 Ga. App. 322, 323-324 (1) (b) (521 SE2d 234) (1999).

        Denson v. State, 240 Ga. App. 207, 208 (2) (523 SE2d 62) (1999).

        Cloud v. State, 235 Ga. App. 721, 723 (6) (510 SE2d 370) (1998).

        Phillips v. State, 233 Ga. App. 557, 559 (504 SE2d 762) (1998).


author: Pope, Presiding Judge.

text:
    A01A1038.
    A01A1039.
    A01A1040.
    MEMORIAL HOSPITAL OF ADEL, INC. v. DUNN et al. STONE v. DUNN et al. TYSON v. DUNN et al.
    (554 SE2d 548)
   Pope, Presiding Judge.

On June 22, 2000, plaintiffs Alison and Randy Dunn filed medical malpractice and loss of consortium actions against defendants Memorial Hospital of Adel, Inc., A. J. Stone, CRNA, and Rodney D. Tyson, M.D. (hereinafter defendants) alleging that Alison Dunn was injured by the improper placement of equipment used in the administration of anesthesia during surgery performed at Memorial Hospital on June 22, 1998. Plaintiffs did not file an expert affidavit with their complaint as required by OCGA § 9-11-9.1, but instead invoked the provisions of subsection (b) of that Code section. Under that section, a plaintiff who files a professional negligence action within ten days of the running of the statute of limitation has an additional forty-five days to file the required affidavit.

Plaintiffs did not file the affidavit within 45 days, but instead, several days before the expiration of the 45 days on August 4, 2000, filed a request for an additional 45 days to file the affidavit. In their motion for extension, plaintiffs stated they had been unable to procure the affidavit because Alison Dunn’s treating physician had notified plaintiffs on August 2, 2000, that he was no longer willing to execute the expert affidavit. On August 28, 2000, defendants filed a response to plaintiffs’ motion for extension of time, opposing plaintiffs’ request for an additional 45 days to procure an expert’s affidavit, but agreeing to give plaintiffs an additional 30 days. Plaintiffs, however, did not file their affidavit until October 6, 2000. On October 11, 2000, defendants filed a supplemental brief contending that the time should not be extended to allow the filing of the affidavit on October 6. Following a hearing, the trial court found that good cause existed and justice required extending the time for filing the affidavit until October 6, 2000, but certified its order for immediate review. This court granted defendants’ applications for interlocutory appeal, and we have consolidated their appeals for review.

OCGA § 9-11-9.1 (b) provides that after the expiration of the original 45-day extension period, “[t]he trial court may, on motion, after hearing and for good cause extend such time as it shall determine justice requires.” Citing Dixon v. Barnes, 214 Ga. App. 7, 10 (2) (446 SE2d 774) (1994), defendants argue that in this case the trial court abused its discretion by granting plaintiffs’ motion for extension of time to file their expert affidavit because plaintiffs failed to show “good cause” as required by that Code section. But we find that Dixon is distinguishable and does not control here.

In Dixon, plaintiff’s treating physician notified plaintiff before the complaint was filed that he would not execute the affidavit, and plaintiff “failed to produce any evidence showing a reasonable effort was made to obtain the expert affidavit after the complaint was filed.” Id. at 10-11 (2). However, in this case the trial court considered that plaintiffs’ treating physician had given assurances for over a year that he would execute the affidavit, that he continued to give those assurances during the 45-day extension period until less than a week remained before the extension period expired, and that plaintiffs’ counsel had worked with the doctor’s staff to obtain the affidavit during that period. Plaintiffs filed their motion to extend within two days of learning that the treating physician would not execute the affidavit and then located another expert and procured and filed his affidavit on October 6, 2000. In reviewing a trial court’s decision concerning the grant or denial of an extension of time to file an expert’s affidavit,

[w]e will not substitute our judgment for that of the trial court when there is no obvious or apparent abuse of discretion by the court in what clearly is a matter of discretion. Where the trial court hears evidence, considers briefs and arguments and thereafter in the exercise of its discretion renders a judgment on a motion, in the absence of legal error, the sole question for determination is whether there is any evidence to authorize and support that exercise of discretion.

(Citations and punctuation omitted.) Archie v. Scott, 190 Ga. App. 145, 147 (3) (378 SE2d 182) (1989). Under the facts here, we cannot say that the trial court abused its discretion by finding good cause and determining that justice required extending the time for plaintiffs to file an expert affidavit pursuant to OCGA § 9-11-9.1.

Judgments affirmed.

Blackburn, C. J., and Mikell, J., concur.

Decided August 28, 2001.

Hall, Booth, Smith & Slover, Anthony A. Rowell, Thomas M. Burke, Jr., for appellants.

Pauline C. Council, for appellees.

       Division. 1 of Dixon was overruled by implication in Labovitz v. Hopkinson, 271 Ga. 330, 333 (2) (519 SE2d 672) (1999). Peterson v. Columbus Med. Center Foundation, 243 Ga. App. 749, 752 (1) (a) (533 SE2d 749) (2000).

       Although plaintiffs’ brief on appeal is replete with details concerning the circumstances surrounding the delay in filing the affidavit, we consider only what is in the record and transcript certified from the lower court.


text:
    A01A1076.
    URNESS v. THE STATE.
    (554 SE2d 546)
   Miller, Judge.

A jury found Rhonda Urness guilty of one count of theft by taking. She appeals her conviction and the trial court’s denial of her motion for new trial. Urness claims that the trial court erred in admitting evidence of two similar transactions and that the evidence was insufficient to support the verdict. We affirm because the similar transaction evidence was admissible under Williams v. State and because the evidence was sufficient to support her conviction under the standard of Jackson v. Virginia.

On appeal from a criminal conviction, the defendant no longer enjoys the presumption of innocence, and we view the evidence in the light most favorable to the jury’s verdict. So viewed, the evidence shows that Urness began working at Miriam’s Café & Gallery in 1996 and was promoted to general manager by January 1997. Urness was responsible for closing the cash register at night and making bank deposits, and she was given authority to pay vendors with money from the cash register or with checks. While Urness was manager, the cash register seldom had cash; she explained to the owner, Miriam Tidwell, that most customers paid with credit cards. There were also an unusually high number of voided sales.

In March 1998 the local chamber of commerce hired the restaurant to deliver lunches during its membership drive. Urness failed to make the deliveries two days in a row and was fired. Tidwell did not suspect Urness of any criminal wrongdoing at that time and gave her two months severance pay.

After Urness left, Tidwell discovered that she had made unauthorized charges for personal items on the restaurant’s trade account. When informed of this, Urness agreed to reimburse the money. Tidwell noticed that with Urness no longer acting as manager, the restaurant had significant cash deposits. A local merchant informed Tidwell that Umess had exchanged meals for products from his store. Urness had no authority to make such an exchange, but had received over $550 worth of clothing for meals.

After learning about Umess’s agreement to trade restaurant meals for personal clothing, Tidwell hired two bookkeepers to perform an audit for the period when Umess was the restaurant manager. The bookkeepers compared the daily balance sheets prepared by Urness to the cash register records (or “Z report”), and found over $40,000 in discrepancies during the period in which Urness was general manager.

After the bookkeepers’ review, Tidwell hired a professional auditor, who audited the financial records on 11 selected days during Umess’s tenure as general manager, based on the bookkeepers’ report showing unusual discrepancies on those days. The audit showed a number of inconsistencies in the financial records of the café consistent with theft, including (1) sales resulting in negative cash, (2) cash designated as paid to vendors with no supporting receipts, (3) cash designated as “back to drawer,” which the expert testified was not a legitimate designation, (4) discrepancies between cash deposits and receipts, (5) missing guest checks, (6) unusual gift certificate redemptions, and (7) an entry showing more cash money paid out to serving staff for tips left by customers paying with credit cards than was possible with the cash on hand. Another witness testified that he saw Urness taking small amounts of cash from the register with the explanation that she was reimbursing herself, but she did not provide a corresponding receipt.

1. Urness claims the trial court erred in admitting evidence of two similar transactions. Such evidence is admissible if (1) it is presented for an appropriate purpose, (2) there is sufficient evidence to show the accused committed the independent offense, and (3) there is a sufficient similarity between the independent offense and the crime charged so that the proof of the former tends to prove the latter. A trial court’s admission of similar transaction evidence will be upheld on appeal unless its ruling is clearly erroneous.

Urness claims that the State did not show she committed the similar transactions by a preponderance of the evidence. We disagree. The first similar transaction occurred during Urness’s employment at a Steak-N-Shake restaurant following her dismissal from Miriam’s. Testimony showed that Umess was last to have possession of cash from the restaurant which was supposed to be deposited in its bank account, but was not. The second transaction occurred while Urness was employed at Domino’s Pizza. Testimony showed that Urness was responsible for depositing money into Domino’s bank account that was never deposited.

Urness relies on Penson v. State to argue that the State did not successfully prove the similar transactions. In Penson the State improperly tried to present a similar transaction in an arson prosecution based solely on the defendant’s appearance at the scene of another fire without an acceptable explanation to the police. This can be contrasted to the evidence presented by the State here, because testimony that Urness was in possession of her employers’ cash and was responsible for depositing it at the bank, but never did, is evidence that she stole the money. Thus, the trial court did not clearly err in admitting the similar transactions.

2. The jury found Urness not guilty on nine counts of forgery and one count of theft by deception and deadlocked on one forgery count. She was convicted on Count 1 of the indictment, which charged her with theft by taking over $500 in cash from the restaurant. OCGA § 16-8-2 defines theft by taking as when a person “unlawfully takes or, being in lawful possession thereof, unlawfully appropriates any property of another with the intention of depriving him of the property, regardless of the manner in which the property is taken or appropriated.”

This case involves a crime of deception and abuse of trust. The evidence presented is circumstantial by necessity. The State presented extensive evidence indicating a pattern of manipulation of financial records prepared by Urness, as well as evidence of missing cash while Urness was responsible for the register.

The evidence was all circumstantial. If separated, and divided into segments, no one segment would be sufficient to convict. But when added together, as a whole it is sufficient to warrant a conviction, and it excludes every other reasonable hypothesis save that of guilt of the accused. In such cases it is not necessary that the circumstances remove every possibility of the defendant’s innocence.

We have reviewed the record and hold that, taken as a whole, the evidence is sufficient for a rational trier of fact to conclude beyond a reasonable doubt that Urness was guilty of theft by taking.

Decided August 28, 2001.

William J. Mason, for appellant.

J. Gray Conger, District Attorney, Michele C. Ivey, Assistant District Attorney, for appellee.

Judgment affirmed.

Andrews, P. J., and Eldridge, J., concur.

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

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

        Grant v. State, 195 Ga. App. 463, 464 (1) (393 SE2d 737) (1990).

       See Williams, supra, 261 Ga. at 642 (2) (b).

        Jones v. State, 239 Ga. App. 733, 734 (1) (521 SE2d 883) (1999).

       222 Ga. App. 253 (474 SE2d 104) (1996).

       Id. at 255-256 (2).

       See generally Walker v. State, 156 Ga. App. 842, 843 (1) (a) (275 SE2d 755) (1980).

       (Citations and punctuation omitted.) Crumley v. State, 185 Ga. App. 795, 797 (1) (366 SE2d 171) (1988).

       See Jackson, supra.


text:
    A01A1496.
    ALLIED INFORMATICS, INC. v. YERUVA.
    (554 SE2d 550)
   Miller, Judge.

The issue on appeal is whether the trial court erred by concluding that a nonsolicit covenant and various liquidated damages provisions in an employment contract were unenforceable. We discern no error and affirm.

Sairam Yeruva entered into an employment contract with Allied Informatics, Inc. (“Allied”) on February 20, 1998. Under the contract, Yeruva was to provide computer consulting services to Allied and its clients. The contract contained a nonsolicit covenant and several liquidated damages provisions in the event of a breach. Yeruva also signed a separate document reiterating the nonsolicit covenant. The relevant provisions of the employment contract are as follows:

2. TERMS — If EMPLOYEE voluntarily terminate [s] his/ her services during continuity of project, he/she shall owe Allied the sum of 5,000 dollars as liquidated damages for time and money spent by [A]llied to procure and start the project. If EMPLOYEE voluntarily terminates his/her services after completion of project but with [in] the period of fifteen (15) months from the starting date of employ [ment], employee shall owe Allied the sum of 10,000 dollars as liquidated damages for time and money spent for recru[i]ting, loss of use and marketing of employee services. Employee] ] agrees to give thirty day written notice for employment termination. If the employee violates this term, employee shall owe an amount of $5,000.00 (Five thousand dollars) to Allied as liquidated damages. ... 6. SOLICITATION — EMPLOYEE agrees that he/she will not directly or indirectly solicit employment or enter into a contractual agreement with any Client/Firm, where he/she was assigned to work, for a period of one year after the last working day of the assignment. If the employee violates this term, employee shall owe an amount of $10,000.00 (Ten thousand dollars) to Allied as liquidated damages for time and money spent for recru[i]ting, loss of use and marketing of employee services.

Allied sued Yeruva on April 28, 1999, alleging that Yeruva breached the employment contract and noncompete agreement by terminating his employment with Allied (1) during a project, (2) within 15 months of the starting date of his employment, and (3) without giving 30-day written notice, and then (presumably, although this is unclear) continuing to work for the same client with whom he had been working while at Allied.

Yeruva moved for summary judgment, contending that the liquidated damages provisions and the nonsolicit covenant in the contract were unenforceable. The trial court treated Yeruva’s motion as a motion for partial summary judgment and held that “the liquidated damages provisions of the contract [were] unenforceable and [that] paragraph 6 of the contract [was] unenforceable as overly broad. . . .”

1. “In reviewing a grant or denial of summary judgment, this Court conducts a de novo review of the evidence” to determine whether “there is no genuine issue of material fact and [whether] the undisputed facts, viewed in the light most favorable to the [nonmovant], warrant judgment as a matter of law.”

Furthermore, “ [determining whether the [contract] clause constitutes an enforceable liquidated damages provision or an unenforceable penalty is a question of law for the court.” To decide whether the provision is enforceable, the court must determine if (1) the injury caused by the breach is difficult or impossible to accurately estimate, (2) the parties intended to provide for damages rather than a penalty, and (3) the stipulated sum is a reasonable pre-estimate of the probable loss.

Setting aside whether the parties intended for these liquidated damages provisions to be anything other than penalties, we hold that the damages are not difficult to calculate in this case, and that the stipulated sums are not reasonable pre-estimates of the probable loss. Damages for “time and money spent by Allied to procure and start [a] project,” and for “recruiting, loss of use and marketing of employee services,” can be calculated based on discrete values. Further, any damage from Yeruva failing to give 30 days notice of termination is capable of being calculated from the circumstances surrounding the termination. The damages in this case could vary depending on the type of project involved, when the employee terminated the employment, the hourly rate for work done and remaining to be done, and several other factors. The damages could be very small or very large depending on the circumstances surrounding the breach. No evidence shows that the sums identified in the contract bear any relation to the actual damages that could be incurred from a breach. We therefore hold that the liquidated damages provisions at issue are unenforceable penalties.

2. Allied also contends that the trial court erred by holding that the nonsolicit covenant was overbroad and unenforceable as a matter of law. We disagree. Restrictive covenants ancillary to employment contracts are subject to strict scrutiny and cannot be blue-penciled.

Whether the restraint imposed by the employment contract is reasonable is a question of law for determination by the court, which considers the nature and extent of the trade or business, the situation of the parties, and all the other circumstances. A three-element test of duration, territorial coverage, and scope of activity has evolved as a helpful tool in examining the reasonableness of the particular factual setting to which it is applied.

The covenant must be “reasonably necessary to protect the interest of the party in whose favor it is imposed, and [cannot] unduly prejudice the interests of the public.”

We hold that the nonsolicit covenant here is overbroad because it does not limit the type of business that Yeruva is prohibited from doing with an Allied client. The terms “employment” and “contractual agreement” are not limited in the agreement and could encompass work that has nothing to do with the type of work that Yeruva did while he was employed with Allied. Based on the contract as written, any employment or contractual agreement, even though completely unrelated to Allied’s business, would be in violation of the nonsolicit agreement. Such a provision is not reasonably necessary to protect the interests of Allied and is therefore overbroad and unenforceable.

Decided August 28, 2001.

Udai V. Singh, for appellant.

Lackland & Associates, Theodore H. Lackland, Karen D. Fultz, for appellee.

Judgment affirmed.

Andrews, P. J., and Eldridge, J., concur.

       (Citations and punctuation omitted.) Carter v. Tokai Financial Svcs., 231 Ga. App. 755 (500 SE2d 638) (1998).

       (Punctuation and footnote omitted.) Lager’s, LLC v. Palace Laundry, 247 Ga. App. 260, 265 (3) (543 SE2d 773) (2000).

       Id.

       See Capricorn Systems v. Pednekar, 248 Ga. App. 424, 427 (2) (c) (546 SE2d 554) (2001) (liquidated damages clause unenforceable where damages set arbitrarily at $50,000 and bore no rational relationship to actual or potential damages); Thorne v. Lee Timber Products, 158 Ga. App. 226, 227-228 (279 SE2d 521) (1981) (liquidated damages clause unenforceable where actual damages can be calculated).

        Habif, Arogeti & Wynne, P.C. v. Baggett, 231 Ga. App. 289 (1) (498 SE2d 346) (1998).

       (Citations and punctuation omitted.) W. R. Grace & Co. v. Mouyal, 262 Ga. 464, 465 (1) (422 SE2d 529) (1992).

       (Footnote omitted.) Northside Hosp. v. McCord, 245 Ga. App. 245, 247 (1) (537 SE2d 697) (2000).

       See id. at 248 (2); see also Uni-Worth Enterprises v. Wilson, 244 Ga. 636, 639-640 (1) (261 SE2d 572) (1979).


text:
    A01A1594.
    MACK v. THE STATE.
    (554 SE2d 542)
   Miller, Judge.

James Mack III was convicted of hijacking a motor vehicle, kidnapping, possession of a firearm during the commission of certain crimes, possession of a firearm by a convicted felon, theft by bringing stolen property into the state, and armed robbery. Mack appeals, claiming that the trial court erred in (1) denying his motion to suppress, (2) admitting improper character evidence, and (3) allowing an in-court identification by the victim following an improper photographic lineup. He also claims ineffective assistance of counsel. For the reasons that follow, we affirm.

On appeal from a criminal conviction, the defendant no longer enjoys the presumption of innocence, and we view the evidence in the light most favorable to the jury’s verdict. So viewed, the evidence showed that Robert Webster stayed overnight at a hotel in Cordele. When he was walking to his car the next morning, someone struck him on the head from behind. Threatening him with a gun, his assailant told him to get into his car and then to move over to the passenger’s seat. The man took Webster’s keys and drove his car onto the highway. He told Webster to put his head down between his knees and then to look away from him out the passenger window. Webster turned toward the assailant and noticed that he kept a gun in his lap while driving. The driver pulled the car off the road and ordered Webster out of the car. As Webster began to exit, the man pointed his gun at Webster, so Webster grabbed it, and the two struggled for the weapon. Webster was beaten over the head, but managed to take the gun and throw it out of the car. Webster lost consciousness, and his assailant took his wallet and drove off with his car.

Later that same day, security officers at the Regency Square Mall in Jacksonville, Florida, were alerted regarding a credit card purchase by two young men. The officers went to the store, where the manager informed them that the signature on a credit card and the signature of the young man presenting the card did not match; when the manager asked for identification, the young man said he had no identification, snatched the card back, and left with the merchandise. The officers located the men, one of whom was Mack, and asked if they would accompany them back to the store to clear up the problem with the credit card. They returned to the store, where the officer asked Mack if he had a wallet and Mack denied having one, although the officer could see a wallet in Mack’s back pocket. The officer then handcuffed Mack and examined the wallet, which belonged to Webster. Shortly thereafter, the manager confirmed that the credit card had been reported stolen. At trial Webster identified Mack as the man who had assaulted him and taken his car and wallet.

1. Mack argues that he was arrested without probable cause in Jacksonville, Florida, and that the evidence flowing from the search of his person incident to that arrest was tainted. He moved to suppress the evidence on these grounds, which was denied.

The crucial evidence from this search was the wallet, containing a driver’s license, check, and credit card, all in Webster’s name. In response to the State’s tender of this wallet at trial, defense counsel stated, “Your Honor, we do want the record to reflect that [the wallet] is admitted with no objection. . . .” “[F]ailing to object at trial is not a waiver of the motion to suppress grounds, but affirmatively stating there is no objection in effect concedes the point.” Mack’s counsel waived objection to the introduction of Webster’s wallet into evidence.

The trial court properly admitted the other evidence stemming from Mack’s arrest in Jacksonville, because the arrest was made with probable cause. The officers knew the following at the time Mack was handcuffed and searched: (1) the store manager believed that Mack’s signature did not match the signature on the back of the credit card, (2) when asked for identification, Mack grabbed the credit card back from the store manager and left with the merchandise, and (3) Mack denied having a wallet, although the officer could see this was an untrue statement. The arresting officers had sufficient trustworthy information to cause a prudent person to believe Mack had committed credit card fraud.

2. The State introduced evidence showing that Mack stayed at the same hotel as the victim through testimony showing that a thumb print taken from a remote control at the hotel matched the print on Mack’s fingerprint card. Mack argues that the trial court erred in admitting the fingerprint card into evidence because it contained harmful character evidence that was not redacted. More specifically, he notes that the card, although containing a list of charges for which Mack was on trial, also listed “aggravated assault,” which was not a charge presented to the jury.

The fingerprint card was not part of Mack’s motion to suppress, and at trial the only basis for objection of its introduction into evidence was lack of foundation. No objection was made on the basis of impermissible introduction of character evidence. “If counsel desires to preserve an objection upon a specific point, the objection must be on that specific ground. Otherwise, this court will not consider it.” Mack failed to preserve an objection to the introduction of the fingerprint card on the basis of improper introduction of character evidence.

3. Mack claims that the trial court erred in allowing Webster to identify him in court as his attacker. He argues that Webster’s identification was tainted by an improperly suggestive photographic lineup. This objection was also made in his motion to suppress. The State responds that Mack objected at trial to the introduction of the photographic lineup card on the basis of foundation and cannot now argue that it was impermissibly suggestive.

The general rule is that counsel need not renew an objection at trial with respect to evidence that was the subject of a motion to suppress in order to preserve the issue for appeal. Mack’s counsel did not affirmatively waive objection to the introduction of the photographic lineup as he did with respect to the victim’s wallet. Werner v. State, which the State relies on, is not applicable because the court declined to rule on the defendant’s motion in limine and instructed the defendant to object at the appropriate time at trial. We may consider Mack’s claim that the photographic lineup was improper and fatally tainted the victim’s in-court identification of Mack as his attacker.

Nevertheless, we hold that this claim is without merit. “Convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.”

Decided August 28, 2001.

Bruce S. Harvey, David S. West, for appellant.

Mack argues that the lineup was impermissibly suggestive because his clothing and the background of the photograph distinguished him from the other choices. However, Webster testified that he had the chance to directly and closely observe his attacker. Webster also testified that he did not base his in-court identification on the photographic lineup. Even if we were to assume that the photographic lineup was impermissibly suggestive, given the evidence of an independent basis for Webster’s in-court identification, it was within the discretion of the trial court to allow the in-court identification testimony.

4. Mack claims his trial counsel was ineffective because he failed to request a directed verdict at the close of the State’s case and at the end of the evidentiary phase of the trial. He maintains that this prevented appellate review of the sufficiency of the evidence to convict him. Of course, “a challenge to the sufficiency of the evidence [ ] need not be preserved or raised by trial counsel,” for by statute such is automatically preserved as grounds for appeal.

We also note that Mack had new counsel at his motion for new trial, who stated that he had reviewed the transcript and saw no basis for a claim of ineffective assistance of counsel. Mack agreed with this conclusion. A claim of ineffective assistance of counsel must be raised before appeal if the opportunity to do so is available, and failure to seize the opportunity is a procedural bar to raising the issue at a later time. In any case, the evidence was sufficient for a rational trier of fact to find Mack guilty beyond a reasonable doubt of the crimes for which he was convicted.

Judgment affirmed.

Andrews, P. J., and Eldridge, J., concur.

Denise D. Fachini, District Attorney, Cheri L. Nichols, Assistant District Attorney, for appellee.

        Grant v. State, 195 Ga. App. 463, 464 (1) (393 SE2d 737) (1990).

       (Punctuation and emphasis omitted.) Carter v. State, 238 Ga. App. 708, 709 (1) (520 SE2d 15) (1999), quoting Dyer v. State, 233 Ga. App. 770, 771 (505 SE2d 71) (1998).

       Cf. Callaway v. State, 257 Ga. 12, 13-14 (2) (354 SE2d 118) (1987).

       (Citations and punctuation omitted.) Williams v. State, 191 Ga. App. 217, 218 (2) (381 SE2d 399) (1989).

       See Kilgore v. State, 247 Ga. 70 (274 SE2d 332) (1981).

       246 Ga. App. 677 (538 SE2d 168) (2000).

       (Footnote omitted.) Jackson v. State, 243 Ga. App. 289, 293 (3) (h) (531 SE2d 747) (2000).

        Armstrong v. State, 264 Ga. 505 (2) (448 SE2d 361) (1994); Baxter v. State, 254 Ga. 538, 545 (11) (331 SE2d 561) (1985).

        Holder v. State, 242 Ga. App. 479, 484 (8), n. 2 (529 SE2d 907) (2000).

       OCGA § 5-6-36 (a); see California Fed. Sav. &c. Assn. v. Hudson, 185 Ga. App. 384, 386-387 (2) (364 SE2d 582) (1987).

       See Wilcox v. State, 236 Ga. App. 235, 239 (4) (511 SE2d 597) (1999).

       See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).


author: Barnes, Judge.

text:
    A01A1761.
    In the Interest of C. S., a child.
    (554 SE2d 558)
   Barnes, Judge.

C. S. appeals from her adjudication of delinquency for committing aggravated assault, asserting that (1) the trial court erred by denying her motion for a directed verdict at the close of the State’s case and (2) insufficient evidence supports the conclusion that she committed aggravated assault. For the reasons that follow, we reverse.

In considering a challenge to the sufficiency of the evidence supporting an adjudication of delinquency, we construe the evidence and every inference from the evidence in favor of the juvenile court’s adjudication to determine if a reasonable finder of fact could have found, beyond a reasonable doubt, that the juvenile! ] committed the acts charged.

(Citations omitted.) In the Interest of R. L. W., 225 Ga. App. 253, 254 (2) (483 SE2d 361) (1997).

Viewed in the light most favorable to the finding that C. S. committed aggravated assault, the record shows that a police officer, the victim in the aggravated assault charged against C. S., arrived at the residence of C. S. and her family in response to a domestic violence call. When he turned the comer into the living room area, C. S. was standing near the kitchen entrance and holding a steak knife with a blade approximately four inches in length. The officer testified that the knife was neither “straight down” nor “straight up,” nor was it pointed toward him, but rather “[i]t was level, probably facing the ground” and “[k]ind of down to her side.” The distance between the officer and C. S. was three to five feet. The officer told her to put the knife down, which elicited no response. He then drew his handgun and told her twice more to drop the knife.

Throughout the encounter, C. S. remained still, continuing to hold the knife in the way just described. After the third instruction to drop the knife, C. S.’ father took the knife from her with no resistance. The officer testified that he “felt I was starting to become the victim because the family was concerned about [C. S.’] safety as well because there’s a police officer that was aiming a firearm at their daughter.” A defense witness testified that the officer was “shaking.” The officer answered “no” when asked whether C. S. was “irate” and then gave the following answer to the next question of whether she was “angered”:

It . . . was hard to understand what type of mental status she was in at that point due to the fact she wasn’t even looking at my weapon. This is what unnerved me about this situation ... is that she didn’t even look at the weapon. . . . She looked straight in my eyes, did not have any fear whatsoever that a police officer was telling her what to do and she wasn’t doing it.

C. S.’ father testified for the defense that he taught all his children that if a policeman says something to them, they should “stop right there . . . [s]o that [sic] what she had done, she had froze right there looking down the barrel of that pistol. . . .”

Because “[t]he standard of review for the denial of a motion for directed verdict of acquittal is the same as that for reviewing the sufficiency of the evidence to support [an adjudication],” we will analyze both of C. S.’ enumerations of error together. Copeland v. State, 248 Ga. App. 346, 350 (4) (546 SE2d 351) (2001).

The elements of aggravated assault relevant to this case are (1) assault (2) “[w]ith a deadly weapon or with any object . . . which, when used offensively against a person, is likely to . . . result in serious bodily injury.” OCGA § 16-5-21 (a) (2). C. S. raises no issue with respect to the second element. As to the first element, “simple assault” is defined as either attempting to commit a violent injury to the person of another or committing an act that places another in reasonable apprehension of immediately receiving a violent injury. OCGA § 16-5-20 (a).

With respect to the attempt alternative, OCGA § 16-4-1 provides that “[a] person commits the offense of criminal attempt when, with intent to commit a specific crime, he performs any act which constitutes a substantial step toward the commission of that crime.” We find no evidence in the record from which an intent to commit battery could be inferred, nor do we find evidence that C. S. performed any act constituting a substantial step toward the commission of battery. As to the former, the most that can be inferred from the evidence is an intent to defy authority. As to the latter, the only thing C. S. “did” with respect to the officer was to fail to obey his commands to drop the knife, and there is no direct evidence that she even heard or understood his commands. While this might have supported a charge of obstructing a law enforcement officer (OCGA § 16-10-24), we have found no case, nor has the State cited one, that holds that such inaction is the performance of an act that constitutes a substantial step toward the commission of battery. Compare Smith v. State, 250 Ga. App. 465 (552 SE2d 468) (2001) (directing victim to get her purse and threatening to use, though not displaying, a gun were acts constituting a substantial step toward robbery).

Decided August 28, 2001.

Sullivan & Sturdivant, Ryan M. Reid, Michele W. Ogletree, for appellant.

William T. McBroom III, District Attorney, James E. Sherrill, Assistant District Attorney, for appellee.

With respect to the reasonable apprehension alternative of simple assault, it is clear that the officer was apprehensive of immediately receiving a. violent injury, and it may well be that such apprehension was reasonable. Still lacking, however, is evidence that would satisfy the element of “[c]ommits an act.” OCGA § 16-5-20 (a) (2). As our Supreme Court stated in State v. Rooks, 266 Ga. 528, 529 (1) (468 SE2d 354) (1996), “an assault. . . requires a demonstration of violence.” We are unable to discern from the record how C. S. may be said to have committed an act or given a demonstration of violence.

Accordingly, we find that there is no evidence of an act, a necessary element of both the attempt and the reasonable apprehension alternatives of simple assault, and we therefore find insufficient evidence supports the aggravated assault portion of C. S.’ adjudication of delinquency.

Judgment reversed.

Smith, P. J., and Phipps, J., concur.

       At the outset of the delinquency hearing below, C. S. admitted committing disorderly conduct, but denied the other charge of aggravated assault.

       “[CJentral to the offense of aggravated assault is that an assault as defined in OCGA § 16-5-20 be committed on the victim.” (Emphasis supplied.) Brinson v. State, 272 Ga. 345, 347 (1) (529 SE2d 129) (2000).

       “[AJssault is an attempted battery.” (Citations and punctuation omitted.) Butler v. State, 194 Ga. App. 895, 897 (2) (392 SE2d 324) (1990).

       “Since assault is an attempted battery, there must be a substantial step toward committing a battery before there can be an assault.” (Citations and punctuation omitted.) Id.


author: Andrews, Presiding Judge.

text:
    A01A1020.
    WEBB v. THE STATE.
    (554 SE2d 563)
   Andrews, Presiding Judge.

Omar Webb was found guilty by a jury of two counts of armed robbery and three counts of aggravated assault which occurred when he and two accomplices invaded a residence and assaulted and robbed the occupants at gunpoint. Webb claims the trial court erroneously admitted identification testimony that was tainted by a suggestive pretrial photographic display, and that the properly admitted evidence was insufficient to support the guilty verdicts. We find no error and affirm the convictions.

In support of the charges, the State produced testimony from the occupants of an apartment that three men wearing black ski-type masks over their faces and tape on their fingers forced their way into the apartment and held three of the occupants at gunpoint while stealing money from two of them. One of the occupants called 911 when the men entered the apartment, and police responded to the call while the robberies and assaults were in progress. All three men attempted to escape from police by jumping out the second floor window of the apartment, but they were spotted by police as they jumped. One of the men, Gregory Miller, was captured by police at the scene, but the other two escaped on foot. Miller was indicted and convicted of the same offenses at a separate trial and called as a witness by the State at Webb’s trial.

Miller testified that he drove to the apartment complex in Webb’s car with three other men, but he denied any involvement in the robbery and refused to name the other men. At the time of the robbery, a car registered to Webb was found backed into a no-parking zone at the apartment complex with the license tag concealed, the doors unlocked, and the keys in the ignition. Inside the car, police found masking tape shaped as though it had been taped around a person’s finger and a receipt from Wal-Mart dated the day of the robbery showing the purchase of three items denoted as “face mask bl.”

The occupants gave police a description of the robbers, including information that they were African-American males wearing ski masks over their faces and tape on their fingers, and that one of them had a scar over his left eye that was visible through the eye opening of the ski mask. Webb, who is African-American and has a scar over his left eye and otherwise matched the description given by the occupants, was arrested and charged with the assaults and robberies. Although the occupants never identified Webb as one of the men who robbed them, they testified that Webb’s scar looked like the scar visible through the ski mask of one of the robbers, and that he was about the same size as the robber with the scar.

1. Webb moved to suppress all testimony from the occupants that his scar looked like the robber’s scar on the basis that the testimony was derived from an unnecessarily suggestive photographic display by police which resulted in a substantial likelihood of misidentification under the procedures set forth in Neil v. Biggers, 409 U. S. 188 (93 SC 375, 34 LE2d 401) (1972). He claims the trial court erred by denying his motion.

Webb pointed to the fact that, prior to trial, the prosecutor showed the occupants a single photograph of him without a mask, which showed the scar over his left eye, and asked the occupants if they recognized the scar. The occupants said that the scar looked like the scar they had seen on the masked robber, but none of them was able to identify Webb as the masked robber from the appearance of the scar or on any other basis.

We agree that, if the State had derived testimony identifying Webb as the robber from the display of the lone photograph, then due process would require that the procedural safeguards of Neil v. Biggers be satisfied before the identification testimony could be admitted. However, we find no basis for applying the Neil v. Biggers procedures in this case because no testimony identifying Webb as the robber was derived by the State from the photographic display. This is not a case where the scar visible on the masked robber was so unique that the occupants could identify Webb as the robber by testifying it was the same scar. Rather, the occupants could only say Webb’s scar looked like or was similar to the scar they saw on the robber. Thus, the scar in this case was not the basis for an eyewitness identification of Webb as the robber, but was simply one more piece of physical evidence circumstantially linking Webb to the crimes. Although the scar was a vital part of the State’s case against Webb when combined with other circumstantial evidence, it had little value alone.

Our Supreme Court has recently held that “[b]y the great weight of authority, the right to pretrial identification procedures is inapplicable to items of physical evidence.” (Citations and punctuation omitted.) Dee v. State, 273 Ga. 739, 740 (545 SE2d 902) (2001). The Supreme Court reasoned in Dee that the identification safeguards of Neil v. Biggers are concerned with the risks of eyewitness misidentification of unique human beings and are not implicated by the identification of fungible inanimate objects which merely provide physical evidence linking a suspect to a crime. Similarly, the scar “identification” testimony in the present case merely provided physical evidence circumstantially linking Webb to the crimes. The robber’s face was concealed in large part by the ski mask, and the scar visible above the robber’s eye was not so unique that the occupants could identify it as Webb’s scar. Under these circumstances, the scar testimony produced by the State was similar to other types of physical evidence circumstantially linking Webb to the crimes and did not carry a risk of personal misidentification. Because the procedures in Neil v. Biggers are concerned with the risks of eyewitness misidentification of persons, they do not apply to the scar testimony produced by the State in this case. Webb’s claim that the photographic display improperly suggested that his scar was similar to the masked robber’s scar went to the weight and sufficiency to be given the State’s scar evidence, not to its admissibility. Dee v. State, 273 Ga. at 740-741. The trial court did not err by denying Webb’s motion seeking to exclude the testimony pursuant to Neil v. Biggers.

2. In addition to evidence that one of the robbers had a scar similar to Webb’s scar, the State produced other circumstantial evidence linking Webb to the charged crimes. There was evidence that Webb otherwise matched the physical description of the masked robber with the scar, that Webb’s car was at the scene of the robbery backed into a no-parking zone with the license tag concealed, the doors unlocked, and the keys in the ignition, and that tape similar to that seen on the robbers’ fingers along with a Wal-Mart receipt for face masks like those worn by the robbers was found inside the car. The circumstantial evidence was sufficient to exclude every reasonable hypothesis save that of Webb’s guilt and was sufficient to allow a rational trier of fact to conclude beyond a reasonable doubt that Webb was guilty of the charged crimes. OCGA § 24-4-6; Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

3. There is no merit to Webb’s claim that the trial court erred by sentencing him to a term of life imprisonment as a recidivist under the provisions of OCGA § 17-10-7 (a).

Because Webb was convicted of armed robbery, which carries a maximum penalty of life imprisonment, the trial court was required by the recidivist provisions of OCGA § 17-10-7 (a) to sentence Webb to life imprisonment if the State showed he had previously been convicted of a felony under Georgia law and sentenced to confinement in a penal institution. State v. Temple, 189 Ga. App. 284 (375 SE2d 300) (1988). The State showed that Webb had previously entered a first offender guilty plea to felony theft by taking on January 15, 1997, and that an adjudication of guilt was subsequently entered on this offense on June 11, 1998, after Webb violated the terms of his first offender probation. Upon entering an adjudication of guilt, the trial court ordered Webb released on time served and sentenced Webb to three years probation. Contrary to Webb’s contention, the fact that he received a probated sentence instead of confinement after being adjudicated guilty on the prior felony did not nullify the recidivist sentencing required by OCGA § 17-10-7 (a). Bennett v. State, 132 Ga. App. 397, 398-399 (208 SE2d 181) (1974).

Judgment affirmed.

Eldridge and Miller, JJ., concur.

Decided August 29, 2001.

Virginia W. Tinkler, for appellant.

J. Tom Morgan, District Attorney, Robert M. Coker, Gregory K. Schwarz, Assistant District Attorneys, for appellee.


text:
    A01A1965.
    HOLMES et al. v. PEEBLES.
    (554 SE2d 566)
   Phipps, Judge.

Kenneth and Sarah Holmes appeal the trial court’s grant of summary judgment to attorney Charles Peebles in this legal malpractice action. Because we agree with the trial court that the Holmeses failed to present evidence that Peebles’s alleged negligence was the proximate cause of their damages, we affirm.

The facts underlying this lawsuit have been detailed in six related appellate opinions. For present purposes, it is sufficient to note that in 1988, in an effort to reach new members of the community, the United Baptist Church (UBC) hired Kenneth Holmes to lead a new ministry called Capitol View Mission Church (Capitol Mission). Capitol Mission held services on property that was owned by Achor Center but available to UBC for limited purposes under a use agreement. After disputes arose between Holmes and Achor Center, UBC voted to terminate Holmes as pastor, expel the Holmeses from membership, and withdraw support for Capitol Mission. But the Holmeses and other members of Capitol Mission maintained that UBC’s vote was invalid, and they continued to try to hold services on Achor’s property. A torrent of litigation followed, much of it centering on the validity of UBC severing ties with Capitol Mission.

As part of that litigation, the Holmeses hired Peebles to pursue claims for the violation of various alleged property rights. Peebles filed a complaint on behalf of the Holmeses and 28 other members of Capitol Mission against Achor and the deacons of UBC. The complaint alleged individual claims challenging the plaintiffs’ exclusion from UBC’s membership and a derivative claim on behalf of UBC for use and possession of Achor’s property.

The trial court granted summary judgment to the defendants on both claims. With respect to the individual membership claims, the trial court ruled that it lacked-jurisdiction to interfere in matters of church governance. With respect to the derivative claim, the trial court ruled that the plaintiffs had failed to satisfy OCGA § 14-3-741, which provides that a derivative action on behalf of a nonprofit corporation may be brought by “any member or members having 5 percent or more of the voting power or by 50 members, whichever is less.” The trial court reasoned that, as the plaintiffs could not prove they were members of UBC, they lacked standing to bring the derivative claim. Later, the trial court granted an interlocutory injunction prohibiting Holmes from entering Achor’s property at any time and prohibiting other members of Capitol Mission from entering the property except for designated worship services.

In Anderson v. Dowd, the Supreme Court affirmed the grant of summary judgment. The Court agreed that the trial court lacked jurisdiction to decide the individual membership claims.

It is undisputed that UBC has a congregational form of government. Membership in a congregational church is not a property right. Since membership in UBC is not a property right, the validity of the exclusion of the members of Capitol Mission from membership in UBC is conclusive upon the civil courts, whether, in the opinion of the judges of such courts, the decision appears to be right or wrong. It follows that the trial court correctly granted summary judgment against the members of Capitol Mission on their individual claims for exclusion from membership in UBC.

The Court farther ruled that the trial court did have jurisdiction “to determine whether the members of Capitol Mission had standing to bring the derivative property claim on behalf of UBC itself.” However,

[i]n support of the motion for summary judgment as to that claim, Achor and the Deacons submitted direct evidence showing that the members of Capitol Mission were not members of UBC authorized to bring a derivative claim on behalf of UBC. In opposition to this direct evidence, the members of Capitol Mission submitted only unsubstantiated assertions of their membership in UBC. Thus, the trial court properly granted summary judgment in favor of Achor and the Deacons on the derivative property claim.

The Holmeses then filed this malpractice action against Peebles, claiming that he had failed to pursue discovery of the membership lists of UBC and had failed to object properly to the trial court’s interlocutory injunction.* Peebles moved for summary judgment, arguing, among other things, that his alleged inactions were not the proximate cause of the Holmeses’ damages. The trial court granted Peebles’s motion on this and other grounds.

To prevail on a legal malpractice claim, a client must prove that (1) he employed the defendant attorney; (2) the attorney failed to exercise ordinary care, skill, and diligence; and (3) this failure was the proximate cause of damages to the client. To establish proximate cause, the client must show that “but for the attorney’s error, the outcome would have been different; any lesser requirement would invite speculation and conjecture.” The defendant attorney is entitled to summary judgment if he shows that there is “an absence of proof adduced by [the client] on the issue of proximate cause.” We agree that the Holmeses have failed to show that Peebles’s alleged negligence proximately caused the grant of summary judgment or the issuance of the injunction in the underlying case.

1. The Holmeses lost their individual membership claims because the courts lack jurisdiction to examine the validity of a church’s expulsion of its members. Peebles’s alleged failure to pursue discovery had no bearing on that ruling.

2. The Holmeses and the other Anderson plaintiffs lost their derivative claim because they did not have the requisite number of UBC church members as plaintiffs. The defendants claimed that the plaintiffs were not members of UBC; the plaintiffs asserted that they were. The defendants introduced, among other evidence, copies of UBC membership lists that did not include most of the plaintiffs. The plaintiffs failed to present evidence to support their assertion of membership in UBC, and the Supreme Court based its affirmance of the grant of summary judgment on this failure.

Decided August 29, 2001.

Kenneth R. Holmes, pro se.

Sarah E. Holmes, pro se.

Gorby, Reeves, Peters & Burns, Michael J. Gorby, Damon E. Elmore, for appellee.

The Holmeses now claim that Peebles should have tried to discover UBC’s “real” membership lists, which would have shown that they and the other Anderson plaintiffs were, in fact, UBC members. But there is no evidence that any UBC membership records exist other than those presented by the defendants in the underlying litigation. Holmes admitted in his deposition that he has sought to discover such records in related litigation, but has received only the same records that the defendants relied on in Anderson. In the absence of any showing that other membership records exist which include the plaintiffs, Peebles’s failure to discover them was not malpractice.

3. The Holmeses claim that the trial court’s interlocutory injunction order, which was prepared by opposing counsel, did not accurately reflect the judge’s oral ruling at the injunction hearing. The Holmeses complain that instead of filing a formal objection to the injunction, such as a motion for reconsideration, Peebles merely submitted a letter to opposing counsel noting his objections to the proposed order. But the record shows that opposing counsel passed along Peebles’s objections to the judge, who wrote a letter stating that he had considered and rejected those objections before signing the proposed order. There is no reason to believe that the trial court would have responded differently to a more formal objection to the proposed order.

Because there was no evidence that, but for Peebles’s alleged negligence, the result in the underlying lawsuit would have been different, Peebles was entitled to summary judgment on the malpractice claim.

Judgment affirmed.

Smith, P. J., and Barnes, J., concur.

       For the sake of clarity, references to “Holmes” are to Kenneth Holmes. References to “the Holmeses” are to both Kenneth and Sarah Holmes.

       See Achor Center v. Holmes, 219 Ga. App. 399 (465 SE2d 451) (1995); Anderson v. Dowd, 268 Ga. 146 (485 SE2d 764) (1997); United Baptist Church v. Holmes, 232 Ga. App. 253 (500 SE2d 653) (1998); Holmes v. Bd. ofCommrs., 271 Ga. 206 (517 SE2d 788) (1999); Holmes v. Achor Center, 242 Ga. App. 887 (531 SE2d 773) (2000); Holmes v. Achor Center, 249 Ga. App. 184 (547 SE2d 332) (2001).

       See Achor Center, supra, 219 Ga. App. at 399; Holmes, supra, 249 Ga. App. at 185.

        Holmes, supra, 249 Ga. App. at 185.

       Id.

        See Anderson, supra, 268 Ga. at 147.

       Supra, 268 Ga. 146.

       (Citations and punctuation omitted.) Id. at 147.

       (Citation omitted.) Id.

       Id. at 147-148.

       The Holmeses also alleged that Peebles “incorrectly framed the lawsuit.” But the Holmeses do not mention this allegation on appeal, so we do not consider it.

        Walker v. Burnett, 241 Ga. App. 105, 108 (526 SE2d 109) (1999).

       (Citation and punctuation omitted.) Szurovy v. Olderman, 243 Ga. App. 449, 452 (530 SE2d 783) (2000).

       (Citation and punctuation omitted.) Id.

        See Anderson, supra, 268 Ga. at 147; Stewart v. Jarriel, 206 Ga. 855, 856 (6) (59 SE2d 368) (1950); Masjid Al-Ihsaan, Inc. v. Ouda, 251 Ga. App. 25 (553 SE2d 331) (2001).

       See Walker, supra at 108-109.


author: Ruffin, Judge.

text:
    A01A1194.
    BANKS v. THE STATE.
    (554 SE2d 500)
   Ruffin, Judge.

Laura Ann Banks appeals the trial court’s denial of her motion for discharge and acquittal on speedy trial grounds. For reasons that follow, we affirm in part and reverse in part.

On August 11, 1999, a Dougherty County grand jury indicted Banks on three counts arising out of a July 26, 1999 traffic accident in which a bicyclist was killed. Count 1 charged Banks with homicide by vehicle, alleging that she struck the cyclist with her vehicle while driving under the influence of alcohol and drugs to the extent that she was less safe to drive, in violation of OCGA § 40-6-391. Count 2 charged her with driving under the influence of alcohol and drugs to the extent she was less safe to drive, and Count 3 alleged that she failed to stop at or return to the scene of the accident. On September 21, 1999, Banks filed a motion demanding to be tried “at the current term of court or at the next succeeding regular term of court” and requesting a dismissal with prejudice should the State fail to do so.

In October 1999, Banks moved to suppress test results from a urine sample she provided while in custody. The trial court granted Banks’ motion on November 4, 1999, and the State filed a notice of appeal that same day. Banks subsequently cross-appealed, challenging two other evidentiary rulings.

Also on November 4, 1999, the grand jury reindicted Banks. Count 1 of the second indictment again charged Banks with homicide by vehicle arising out of a violation of OCGA § 40-6-391, but alleged that she was under the influence of alcohol only. Similar to the first indictment, Counts 3 and 4 charged Banks with driving under the influence of alcohol (less safe) and failing to stop at or return to the scene of the accident. In addition, Count 2 of the second indictment contained a new homicide by vehicle charge, which asserted that Banks caused the cyclist’s death by failing to stop at or return to the scene of the accident, in violation of OCGA § 40-6-270. After the grand jury returned this indictment, Banks did not file a new speedy trial request, electing instead to adopt her original speedy trial demand for purposes of the second indictment.

On November 12, 1999, Banks filed a motion for bond. In that motion, she specifically asked the trial court to release her on the condition that she immediately present herself to a local hospital, where her prescription medications for various illnesses could be regulated. The motion further provided:

Following hospitalization, it is the defendant’s desire to enroll in an extended program of in-patient substance abuse rehabilitation, where she would remain until she has either successfully completed a program of rehabilitation or until the call of this matter for trial or hearing by the court. The specific rehabilitation facility will be chosen while defendant is hospitalized. The identity of the facility and a description of its rehabilitation program will be presented to the court for approval before the defendant is released from the hospital.

The motion also noted that Banks was and had been ready for trial under either indictment.

The trial court granted Banks’ request for bond. One week later, Banks informed the court that she would be released from the hospital the following day and moved to continue her bond so that she could enroll in “an extended residential program of substance abuse rehabilitation” in Clarkston. The motion provided that, if she finished the rehabilitation program “prior to the call of this case for trial, she [would] present herself to this court to determine whether she should remain free on bond and the conditions for continued bond.” The trial court granted Banks’ motion for continued bond.

Almost three months later, Banks reported that she would soon finish the residential rehabilitation program and moved to continue her bond so that she could take part in a nonresidential aftercare program at the rehabilitation facility. Although the record does not include an order on that motion, Banks apparently participated in the aftercare program. At Banks’ request, the trial court further modified her bond conditions on August 31, 2000, permitting her to drive under certain circumstances.

On November 3, 2000, in an unreported opinion, this Court affirmed the evidentiary rulings on appeal, and the remittitur was filed in the superior court on November 6. On December 6, 2000, the grand jury returned a third indictment against Banks. That indictment alleged the same four counts as the second indictment but, according to the State, corrected a technical flaw in the charges involving leaving the scene of an accident. At the State’s request, the trial court decided that all motions filed with respect to the first two indictments would be “adopted and incorporated as a part of the record” under the third indictment.

On January 8, 2001, the first day of the January term, Banks moved for acquittal and discharge, arguing that the State violated her speedy trial right by failing to try her within two terms after the remittitur from the Court of Appeals. The trial court denied Banks’ motion, finding that she waived her speedy trial demand in two ways. First, she filed a suppression motion, which, when granted, entitled the State to a direct appeal and delayed the trial. Second, she “petitioned the Court for the privilege of attending a long-term drug treatment facility, and was granted the right to do so ‘until further order of the Court,’ with the full understanding of all parties that participation in the program requested would require her attendance for a period of months.” Banks appeals, arguing that the trial court erroneously found waiver.

1. Banks filed her demand for speedy trial shortly after the first indictment. She did not make a new demand after the second or third indictments, choosing instead to “adopt” her prior speedy trial motion. We have held that a “speedy trial demand effective as to the first indictment, and adopted after reindictment, [is] effective as to the repeated charges in the second.” The original demand, however, does not apply to new charges first appearing in the second indictment.

The original three-count indictment charged Banks with vehicular homicide resulting from driving under the influence of alcohol and drugs (less safe) in violation of OCGA § 40-6-391; driving under the influence of alcohol and drugs (less safe); and failure to stop at or return to the scene of an accident. Counts 1, 3, and 4 of the second and third indictments repeat these charges, with slight revisions. For example, the second and third indictments omit any reference to drugs, alleging only that Banks was under the influence of alcohol to the extent she was less safe to drive. The State also made several technical changes, such as specifying in the second and third indictments that Count 1 involved first degree vehicular homicide and including additional statutory language in the failure to stop charge.

Despite these changes, a plain reading of Counts 1, 3, and 4 of the second and third indictments shows that the crimes charged are the same as those alleged in the original three-count indictment returned against Banks. The September 21, 1999 speedy trial demand, therefore, was effective as to these repeated charges in the second and third indictments.

2. Under OCGA § 17-7-170 (a), “[a]ny person against whom a true bill of indictment... is filed . . . may enter a demand for trial at the court term at which the indictment... is filed or at the next succeeding regular court term thereafter.” If the person is not tried during the term of court “when the demand is made or at the next succeeding regular court term thereafter, provided at both court terms there were juries impaneled and qualified to try him, he shall be absolutely discharged and acquitted of the offense charged in the indictment.”

Banks was initially indicted on August 11,1999, in the July 1999 term of court. She timely filed her speedy trial demand during the September 1999 term, the next succeeding regular court term, setting the stage for a trial before the end of the November 1999 term. On November 4, 1999, however, the State appealed the trial court’s order suppressing Banks’ urinalysis results.

That appeal tolled Banks’ speedy trial demand until the remittitur from the Court of Appeals was filed with the superior court. At that point, “the [S]tate had to try [Banks] during the remainder of the term in which the remittitur [was] filed or the next regular court term provided there [were] juries impaneled and qualified to try [Banks].” In other words, the two-term speedy trial period under OCGA § 17-7-170 commenced again following remittitur.

The remittitur was filed on November 6, 2000, during the final week of the September 2000 term. The record shows that jurors were present and available to serve following the remittitur. Jurors were also available for criminal trials the week of November 13, 2000, the first week of the November 2000 term. Nevertheless, Banks was not tried under the second or third indictment during the November 2000 term, the next regular court term following the term in which the remittitur was filed. The speedy trial period available after remittitur thus expired.

The State argues that Banks is not entitled to acquittal under OCGA § 17-7-170 because she waived her speedy trial demand. The trial court agreed, concluding that waiver occurred when Banks filed her motion to suppress, which led to the State’s appeal, and sought bond for long-term medical treatment. As noted above, however, the motion to suppress and subsequent appeal by the State merely tolled Banks’ speedy trial demand until resolution of the appeal. The issue thus becomes whether Banks waived her demand by obtaining bond to undergo medical treatment.

The State bears the burden of proving that Banks’ actions constituted a waiver of her speedy trial demand. Such waiver may result from “any act that shows [Banks] affirmatively consented to passing the case until a later term” or “‘affirmatively sought to avoid trial.’ ”

Nothing in Banks’ initial motion for bond reveals an effort to avoid or delay the trial. On the contrary, her motion specifically stated that she was ready and available for trial, which she continued to demand. She also explained that, although she wanted to enroll in an extended inpatient rehabilitation program, she would, “at all times, be immediately available to the Court for trial.”

Banks’ subsequent motions to continue bond similarly evidence no desire to delay the trial. Through those motions, Banks simply kept the court informed of her treatment progress and asked for changes in bond conditions as she completed various phases of her rehabilitation. Indeed, she anticipated that trial might be set during her treatment, specifically promising in her first motion to continue bond to appear before the court for further proceedings on bail if she completed her inpatient rehabilitation program before her case went to trial.

The record shows that Banks sought long-term rehabilitation treatment, but only if it did not interfere with her speedy trial demand. We further note that by the time the remittitur from the Court of Appeals was filed on November 6, 2000, Banks had completed her inpatient treatment and was living in a private residence. Under these circumstances, “[t]here [is] no evidence of a willingness to delay or an attempt to avoid trial.” Banks’ motions for bond did not waive her speedy trial demand. Accordingly, the trial court erred in denying Banks’ motion for acquittal and discharge as to Counts 1, 3, and 4 of the third indictment.

Decided August 13, 2001

Reconsideration denied August 30, 2001

Donaldson, Bell & Pickett, George P. Donaldson III, Lewis R. Lamb, for appellant.

Kenneth B. Hodges III, District Attorney, Gregory W. Edwards, Jennifer Johnson-Green, Assistant District Attorneys, for appellee.

3. The third indictment, however, includes a charge not incorporated in the original indictment. Like the second indictment, the third alleges in Count 2 that Banks committed first degree vehicular homicide through a violation of OCGA § 40-6-270, when she failed to stop at or return to the scene of the accident. A review of the various indictments shows that this charge was added when the State reindicted Banks, well after she filed her speedy trial demand.

“Since no new speedy trial demand was filed after reindictment, the demand was ineffective as to the added [vehicular homicide] count.” Thus, the trial court properly denied Banks’ request for acquittal and discharge as to Count 2 of the third indictment.

Judgment affirmed in part and reversed in part.

Johnson, P. J., and Ellington, J., concur.

       The trial court entered a nolle prosequi as to the first indictment on November 6, 2000, and as to the second indictment on December 7, 2000.

       See OCGA § 15-6-3 (15).

       Banks also filed a motion for acquittal and discharge in January 2000, alleging that she was not tried under the second indictment within two terms of her September 21,1999 speedy trial demand. We need not address the merit of that motion to reach our decision in this case.

        State v. Daniels, 206 Ga. App. 443, 445 (2) (425 SE2d 366) (1992).

       Id.

       According to the State, it deleted any reference to drugs because the trial court suppressed Banks’ urinalysis results.

        Daniels, supra. See also Hurt v. State, 62 Ga. App. 878, 880 (10 SE2d 136) (1940) (“A new indictment which changes the name of the owner of the house or the goods alleged to have been stolen does not make it a new offense if it is still the same larceny that is being charged”).

       OCGA § 17-7-170 (b).

       See OCGA § 15-6-3 (15).

       Id.

       See Ballew v. State, 211 Ga. App. 672, 673 (440 SE2d 76) (1994) (“Where the defendant files a motion to suppress, the motion is granted by the trial court, and the State elects to file a direct appeal. . . , the defendant is deemed to have consented to a delay in the trial of his case tolling the time requirements of OCGA § 17-7-170 pending final resolution of the issue [on appeal].”).

       (Punctuation omitted.) Pope v. State, 265 Ga. 473, 474 (458 SE2d 115) (1995).

       Id. See also Henry v. James, 264 Ga. 527, 531 (1) (c) (449 SE2d 79) (1994) (after the filing of the remittitur, “the [speedy trial] demand [runs] again in its entirety in non-capital cases governed by OCGA § 17-7-170”).

       See OCGA § 15-6-3 (15).

       The State could not extend the time for meeting Banks’ speedy trial demand simply by indicting her on the same charges for a third time on December 6, 2000. See Dalton v. State, 263 Ga. 138, 140 (429 SE2d 89) (1993) (“[0]ur holding in this case does not create a new procedure under which the state can render a demand for speedy trial meaningless by seeking a new indictment in an attempt to extend the time in which the defendant’s demand for speedy trial can be met.”), disapproved in part on other grounds, Rice v. State, 264 Ga. 846, 847, n. 1 (452 SE2d 492) (1995).

        Pope, supra; Ballew, supra.

        Fisher v. State, 273 Ga. 721, 722 (545 SE2d 895) (2001).

       Id.

        Sykes v. State, 236 Ga. App. 518, 520 (2) (511 SE2d 566) (1999); Williams v. State, 216 Ga. App. 109, 110 (1) (454 SE2d 142) (1995) (physical precedent only).

        McKnight v. State, 215 Ga. App. 899, 904-905 (3) (453 SE2d 38) (1994), aff'd, 265 Ga. 701 (462 SE2d 142) (1995).

       We find no merit in the State’s claim that Banks waived her speedy trial demand by filing a notice of cross-appeal under OCGA § 5-7-1 (b). Banks made clear that she would withdraw the notice “in order to permit trial” if the State decided not to pursue its appeal. Furthermore, as noted above, the speedy trial period was tolled — not forever waived — “while the appellate court [had] jurisdiction of the appeal.” Henry, supra at 530 (1) (c). Similarly, Banks did not waive her speedy trial demand by scheduling a hearing on her motion for acquittal and discharge during the third term of court following remittitur. She simply waited until the period authorized for trial after appeal had expired before asking the trial court to rule on her motion.

       (Emphasis in original.) Daniels, supra.

       Id. See also Jordan v. State, 194 Ga. App. 415, 417 (390 SE2d 614) (1990) (“ The dismissal of a criminal case pursuant to OCGA § 17-7-170 is an extreme sanction which can be invoked only if there has been strict compliance with the statute.’ ”).


text:
    A01A1378.
    FOOTE v. THE STATE.
    (553 SE2d 644)
   Ruffin, Judge.

Jeffery Foote appeals his conviction for entering an auto, arguing that he should have been granted a continuance or a new trial because he was ill during his jury trial. For reasons that follow, we affirm.

Foote’s trial began on February 15, 1999. On that day, Foote announced ready for trial, and the parties selected a jury. Following jury selection, Foote’s counsel informed the trial court that Foote was sick and needed “to be taken to a doctor.” Counsel reported that Foote was “shaking” and that his forehead “felt hot.” The trial court questioned Foote, who stated that he had caught a cold virus, felt “pretty bad,” and had been sick for about three days. Foote also indicated that his illness was getting worse, he was “throwing up blood,” his head hurt, his nose was running, he was dizzy, and he had cold chills.

The trial judge decided to commence the trial. Counsel objected, arguing that Foote was not mentally alert and could not assist in his defense. The trial court responded: “Well, he has certainly been able to respond adequately to my inquiries. And he doesn’t appear to be ill other than sniffling a little bit. If he starts to feel like he is going to be nauseated, then we will take a recess and come back.”

The court then held a preliminary hearing on similar transaction evidence, during which Foote’s counsel asserted that he was unable to communicate with Foote. The trial judge noted that Foote had been able to converse with the court, and Foote remarked, “I can talk, Your Honor, but I am just saying that I am sick.” Counsel again asked for a continuance, but the trial court denied the request: “[Counsel], I can observe your client. I know he is sniffling. He said he has a cold. He wants a penicillin shot. To me I don’t believe that that has established to me that he is too sick to go on. Now, if he becomes too sick to go on, then certainly I will take note of it.”

Later that day, counsel moved for a mistrial, asserting that Foote had been “forced to trial,” even though he was coughing, sniffling, shaking, unable to concentrate, and unable to assist counsel. The trial court summoned a nurse, who examined Foote. The nurse testified that she checked Foote’s vital signs and performed an “RN assessment.” She reported that he had a temperature of 100.8°F, a slightly elevated pulse, and a regular heart rate. She noted that he had a cough, but that his lungs were clear and he exhibited no signs of blood loss. Asked for her recommendation, the nurse stated that “[i]f he were an employee, I would give him some Tylenol and tell him to check back with me in a couple of hours and let me know how he felt. I wouldn’t send him home. If his temperature were a little higher, I would send him home.”

The trial court denied Foote’s motion for mistrial and proceeded with the trial, finding counsel’s claim that Foote could not assist him to be “unfounded.” Although not clear from the trial transcript, it appears that Foote may have been given Tylenol at that point.

The next day, defense counsel reported that Foote was still ill and moved for a continuance. Foote took the stand and testified that he was nauseated, weak, had thrown up that morning, felt worse than the previous day, and was not thinking clearly. The trial court denied the motion for continuance, concluding that Foote was able to communicate and that the evidence presented did not support a finding that he could not participate in the trial. After the close of the evidence, counsel again asked for a recess so that Foote could be examined by a physician, but the court denied that request. The jury subsequently found Foote guilty of entering an auto.

Foote moved for a new trial, arguing that the trial court improperly forced him “to go to trial when he was too ill to adequately communicate with his attorney.” At the hearing on the motion, Foote presented evidence that the day after his trial concluded, a physician determined that he had pneumonia and admitted him to a hospital, where he stayed for four days. The physician testified that, given Foote’s condition one day after the trial, Foote “would have been so miserable physically that he really couldn’t have been that clearheaded” at trial. In addition, the physician stated that Foote’s illness would have impaired his concentration and his ability to communicate with counsel during trial, but to an unknown degree.

Trial counsel also testified at the hearing. According to counsel, Foote was too ill to assist in his defense, and his ability to communicate with counsel was extremely limited. Counsel further testified that he avoided close contact with Foote during trial because of Foote’s illness.

Following the hearing, the trial court denied Foote’s motion for new trial. It concluded that it

did not abuse its discretion in denying Defendant’s Motion for Continuance, in that it appeared to be made for the sole purpose of delaying the trial. Moreover, the Court determined from its own observations and from the testimony of a nurse, that Defendant was sufficiently healthy at the time of his trial to effectively participate in his own defense.

On appeal, Foote argues that the trial court erred in refusing to continue the trial or grant him a new trial, given his illness and inability to assist counsel in his defense. We disagree.

1. Before informing the trial court of his illness and seeking a continuance, Foote announced ready for trial, and a jury was selected. At the very least, a continuance at that point would have inconvenienced the trial court, the jurors, and the State. The trial court thus inquired whether a continuance was, in fact, necessary, and we will not overturn the trial court’s determination absent an abuse of discretion.

In reviewing a trial court’s ruling on a motion for continuance, we look at the evidence presented at the time of the ruling, not at the evidence available at the motion for new trial hearing. Relying on the nurse’s assessment, as well as its own observations of Foote, the trial court concluded that Foote was able to attend trial, communicate with counsel, and assist in his own defense. Although Foote was subsequently hospitalized with pneumonia, the trial court was presented with no conclusive evidence during the trial about the severity of his illness.

Given the information available to the trial court when Foote moved for a continuance, we find no abuse of discretion. Indeed, this Court is in a particularly poor position to second-guess the trial court’s finding that Foote was capable of communicating with counsel and assisting in his own defense. Unlike the trial court, we did not observe Foote at the trial. Accordingly, the trial court did not err in refusing to grant Foote a continuance.

2. The trial court also did not abuse its discretion in denying Foote’s motion for new trial after receiving additional evidence about his illness. The physician who testified at the new trial hearing established that Foote was seriously ill the day after trial. That physician, however, did not examine Foote during the trial. Furthermore, although he stated that Foote’s sickness would have affected Foote’s concentration and ability to communicate at trial, he could not specify the degree of that effect.

Such equivocal testimony is insufficient to establish that Foote was unable to assist his attorney during trial. We recognize that both Foote and trial counsel testified at the hearing about Foote’s inability to communicate effectively. The trial court, however, was also able to observe and question Foote during the trial, permitting it to draw its own conclusion about Foote’s condition. The nurse’s assessment, based on a physical examination of Foote at trial, supported that conclusion. Under these circumstances, we cannot find that the trial court abused its discretion in denying Foote’s motion for new trial.

Decided August 7, 2001

Reconsideration denied August 30, 2001.

Timmons, Haggard & Carney, John W. Timmons, Jr., for appellant.

Kenneth W. Mauldin, District Attorney, John A. Pursley, Phillip C. Griffeth, Assistant District Attorneys, for appellee.

Judgment affirmed.

Johnson, P. J., and Ellington, J., concur.

       See Kervin v. State, 178 Ga. App. 601, 604 (2) (344 SE2d 441) (1986).

        Peebles v. State, 260 Ga. 165, 166 (1) (391 SE2d 639) (1990) (“The grant or denial of a motion for a continuance is left to the sound discretion of the trial court and it is not to be disturbed unless it clearly appears that there is an abuse of discretion.”); Dasher v. State, 157 Ga. App. 664 (1) (278 SE2d 465) (1981) (“Absent a showing of an abuse of discretion, this court will not reverse a trial court’s refusal to grant a continuance.”) (citation and punctuation omitted).

        Kervin, supra.

       See Sewell v. State, 162 Ga. App. 483, 484 (2) (291 SE2d 783) (1982); Edenfield v. State, 26 Ga. App. 206-207 (1) (105 SE 732) (1921).

       See Kervin, supra at 605 (applying abuse of discretion standard to denial of motion for new trial based upon defendant’s illness during trial).

       See Smalls v. State, 242 Ga. App. 39, 40 (1) (528 SE2d 560) (2000); Sewell, supra at 484; Edenfield, supra at 207.