text:
    A01A0265.
    CHEROKEE COUNTY et al. v. MARTIN.
    (559 SE2d 138)
   Miller, Judge.

At Steve Martin’s request, Cherokee County rezoned his property to a “Planned Unit Development” (PUD) classification based on his site plan showing that a portion of the property would be used for an “assisted living” facility. Cherokee County did not make the zoning conditional on compliance with the site plan. When Martin sought a development permit to build a multi-family apartment building in the designated area, Cherokee County refused the permit, explaining that only an assisted living facility could be built there. The question on appeal is whether Cherokee County’s failure to expressly condition the PUD zoning on compliance with the proposed site plan (a procedure available under its ordinance) nevertheless allowed it to insist on strict compliance with that plan. We hold it did not and therefore affirm the trial court’s judgment in favor of Martin.

Easlan Capital of Atlanta, Inc. filed a rezoning application on behalf of itself and Martin to have their adjoining properties reclassified as PUD. The mixed use development was to consist of single family residential lots on Easlan Capital’s property and assisted living units and retail and office buildings on Martin’s property. The application urged that the community needed “assisted living for the elderly.” The summary of the proposal referred to the assisted living units as “MultiFamily” units having no less than 500 square feet each. The attached site plan displayed an assisted living facility with 142 units.

In September 1998 the Cherokee County Board of Commissioners approved the rezoning request without condition, passing a resolution reclassifying the properties as PUD. Martin was unable to market the assisted living facility to any buyers but discovered interest for a multi-family apartment building. He applied for a development permit to build the retail and office space originally indicated on the site plan (with the addition of a gasoline station) as well as nine apartment buildings containing 160 units. The county denied the permit on the grounds that gasoline stations are not allowed in PUD districts and that Martin could build only assisted living units, of which there could be only 142.

Martin sued Cherokee County and its commissioners and zoning director for a declaratory judgment that the PUD classification allowed him to build the gasoline station and the proposed apartment buildings. Following a bench trial, the court ruled that a gasoline station was not a permitted use for PUD property. The court further ruled that the PUD classification allowed Martin to build the proposed multi-family apartment buildings in the place of the originally proposed assisted living facility. The court reasoned that assisted living units were simply a form of multi-family units and that absent a condition requiring Martin to build only assisted living units, the rezoning resolution entitled him to build any type of multifamily units. Regarding the allowed number of units, the court said it could not rule on such until Easlan Capital stipulated to the total number of single family units it was going to build.

Cherokee County has appealed the ruling insofar as it allows multi-family units. The county contends that the court misinterpreted the zoning ordinance when it held that Cherokee County’s approval of an application to rezone a property is not conditioned on compliance with the site plan submitted in support of the rezoning application. Martin has not appealed any portions of the order.

1. The construction of a zoning ordinance is a question of law for the courts. In construing such an ordinance, we consider the general rule that the owner of land in fee has the right to use the property for any lawful purpose. Since zoning ordinances restrict an owner’s right to freely use his property, they are in derogation of common law. Thus, they must be strictly construed in favor of the property owner and never extended beyond their plain and explicit terms. Any restrictions must be clearly established, and “ambiguities in the language of zoning ordinances should be resolved in favor of the free use of property.”

Based on these principles, a court should not infer that the zoning classification of a property is conditioned on any particular uses of that property; rather, such a condition must be expressly made within the four corners of the rezoning resolution. A rezoning resolution, unconditional upon its face and containing no reference to any stipulations or qualifications, cannot be converted into conditional zoning by discernment of the collective state of mind of the rezoning body at the time of adoption. Rezoning is conditional only if the conditions are set forth in the rezoning resolution itself or if an examiner of the resolution would be alerted to the existence of such conditions. Examples include (1) naming the zoning classification “Residential Conditional,” (2) stating the condition in the rezoning resolution, and (3) passing a rezoning resolution “pursuant with stipulations presented by [the applicant],” which stipulations are recorded in the county board’s official public minutes.

Cherokee County’s zoning ordinance comports with these principles. Section 18.3-3 requires site plans, also known as master development plans, to be submitted in support of all rezoning requests for PUD. Section 18.3-2 (d), however, provides that “[a]ny site[ ] plans, renderings, or other exhibits depicting construction or development which are submitted by the applicant may be recommended as a condition of rezoning by the Planning Commission. . . .” If the Board of Commissioners decides to act on this recommendation and to require the applicant to use the property only as portrayed in the site plan, then the Board under Section 18.3-2 (e) could “specify as part of the zone district classification the particular use or uses proposed by the applicant” by including the suffix “c” on the zone district designation found in the rezoning resolution and in the amended official zoning map. Further provisions state that the Planning Commission “may recommend approval, approval with conditions, or denial” of the rezoning proposal and shall include appropriate “recommendations for conditions or limitation on uses.” After receiving such recommendations, the Board may approve or disapprove them or approve them “with modifications or conditions.”

As the ordinance specifies the procedure for attaching conditions to a rezoning and particularly the procedure for requiring a landowner to abide strictly by his site plan, we conclude that other means are ineffective. Otherwise, these provisions of the ordinance would be mere surplusage, a result we should avoid in construing zoning ordinances.

Here the rezoning resolution contained no language referencing conditions or requiring Martin to abide by the particular uses specified in his site plan. Indeed, the county conceded at trial that “there are no conditions.” We also decline to infer any such conditions and therefore hold that Martin was not bound to strictly comply with the site plan.

2. Nor were there any ordinance provisions that prevented Martin from constructing a multi-family dwelling. Two ordinance provisions restricted Martin’s use of the land following the passage of the PUD rezoning resolution. Table 7.2 of the zoning ordinance specifies those “Permitted Uses” for which PUD property may be used. Included in those uses is “Multi-Family Dwelling,” which the ordinance defines as “[a] dwelling containing more than two dwelling units.” Such would include triplexes, quadruplexes, townhouses, apartment buildings, and, by definition, a 142-unit assisted living facility, particularly where such a facility is not listed elsewhere in Table 7.2 as a separate “Permitted Use.” Thus, an assisted living facility was merely one form of a permitted multi-family dwelling.

The second provision restricting Martin’s use was Section 8.8 (E), which required him to submit (for approval and hearing by the Board) a written request for major or substantial changes to his site plan. It defines “a major change” as “a change of density (units per acre), a change of land use category, a change of location of a roadway, a change of right-of-way of a roadway, a decrease in buffers or screening mechanisms, or an addition or reduction of acreage.” The county argues that the change from assisted living units to multifamily apartment units was a “change of land use category” and therefore had to be approved by the Board. Martin counters that a “change of land use category” refers to changing the zoning classification of the property from PUD to something else.

Neither party is correct. Table 7.2 of the zoning ordinance outlines 160 “Permitted Uses” and designates which are allowed for each type of zoning classification. Forty are designated for the PUD classification. A “change in land use category” is a change from one permitted use to another permitted use within the 40 permitted by the PUD classification. Although the county concedes this point, it argues that “multi-family dwelling” is a listed permitted use and that an “assisted living facility” is a separate nonlisted use that the county for purposes of this particular rezoning was willing to stipulate would be permitted.

The fatal flaw in the county’s analysis is its unspoken assumption that under the zoning ordinance, an assisted living facility does not fall within the definition of a multi-family dwelling and therefore must be considered as a separate permitted use. As discussed above, however, the ordinance’s definition of a multi-family dwelling as a dwelling containing more than two dwelling units necessarily includes a 142-unit assisted living facility within that definition. Just as triplexes, quadruplexes, apartment buildings, and townhouses are not separately listed as permitted uses in Table 7.2, so an assisted living facility as another type of multi-family dwelling is not separately listed as a permitted use. As all of these buildings are included in the broad definition of “multi-family dwelling,” they need not be separately listed. If they had to be separately listed, then their current absence from Table 7.2 would mean that under Section 7.8-1 of the zoning ordinance (all nonlisted uses are prohibited), none of them could be built anywhere in Cherokee County. We will not infer such an intent.

The importance of this conclusion is that when Martin sought to build multi-family apartment buildings in the place of an assisted living facility, he was not proposing a “change in the land use category,” but was merely seeking to build another type of multi-family dwelling. Accordingly, he was not proposing a “major change” under Section 8.8 (E) that required further Board approval. And since the rezoning resolution did not condition rezoning on Martin’s abiding strictly by his site plan which showed the assisted living facility, he was free to build another type of multi-family dwelling in its stead. For these reasons, the trial court did not err in declaring that the PUD zoning accorded Martin’s property allowed the multi-family units proposed by Martin in his effort to obtain a development permit.

3. In its appellate brief, the county implicitly raises an argument that such an interpretation of the zoning ordinance violates the due process provision of the Georgia Constitution. As this issue was not raised and ruled on below, we will not consider it.

Judgment affirmed.

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

Decided January 23, 2002.

Freeman, Mathis & Gary, Theodore Freeman, Dana K. Maine, John D. Thalhimer, for appellants.

Brockman & Teague, James S. Teague, Jr., Sams & Larkin, Joel L. Larkin, for appellee.

        DeKalb County v. Post Apt. Homes, 234 Ga. App. 409, 411 (1) (506 SE2d 899) (1998), citing Ervin Co. v. Brown, 228 Ga. 14, 15 (183 SE2d 743) (1971).

        Piccadilly Place Condo. Assn. v. Frantz, 210 Ga. App. 676, 678 (1) (436 SE2d 728) (1993).

        Bo Fancy Productions v. Rabun County Bd. of Commrs., 267 Ga. 341, 343 (1) (a) (478 SE2d 373) (1996).

       Id.; accord DeKalb County, supra, 234 Ga. App. at 410 (1).

        Piccadilly Place Condo. Assn., supra, 210 Ga. App. at 678 (1).

       (Punctuation omitted.) DeKalb County, supra, 234 Ga. App. at 410 (1), quoting Fayette County v. Seagraves, 245 Ga. 196, 197 (1) (264 SE2d 13) (1980); accord Trubey v. Hall, 237 Ga. App. 498, 499-500 (1) (515 SE2d 639) (1999).

       See Martin v. Hatfield, 251 Ga. 638, 639 (2) (308 SE2d 833) (1983). As in Martin, a rezoning resolution is often referred to as the zoning ordinance, in that the resolution amends the map attached to the zoning regulation to reflect that the subject property has received a new classification. For the sake of clarity in this opinion, we use the word “resolution” to refer to the county’s action in approving or denying a rezoning application, and we use the word “ordinance” to refer to the governing regulation.

       Id.

       Id.; see Trubey, supra, 237 Ga. App. at 500-501 (1).

        Michiels v. Fulton County, 261 Ga. 395 (1) (405 SE2d 40) (1991).

        Cross v. Hall County, 238 Ga. 709, 712-713 (2) (235 SE2d 379) (1977). Indeed, undisputed evidence showed that historically Cherokee County had placed any conditions at the bottom of or attached to the rezoning resolution.

       (Punctuation omitted.) Ervin Co., supra, 228 Ga. at 14, hn. 1.

       See 1992 Zoning Ordinance of Cherokee County (as amended), Section 18.3-3.

       (Emphasis supplied.)

       Evidence showed that on the Cherokee County official map properties zoned with conditions were noted with a handwritten notation “w/cond.” Notations on the official map are considered binding. See Zoning Ordinance, supra, Section 6.2.

       (Emphasis supplied.) Zoning Ordinance, supra, Section 18.3-10 (a).

       Id., Section 18.3-11.

       Cf. Morton v. Bell, 264 Ga. 832, 833 (452 SE2d 103) (1995) (the express mention of one thing in a statute implies the exclusion of another).

       See DeKalb County, supra, 234 Ga. App. at 412 (1).

       Zoning Ordinance, supra, Section 4.3

       The parties also understood that an assisted living facility was a multi-family dwelling. In Martin’s original rezoning application, the terms “assisted living facility” and “multifamily” were used interchangeably. The “Planning and Zoning” county employee commenting on the application similarly referred to the units as “MF” or “Multiple-Family Residential.”

        Angell v. Hart, 232 Ga. App. 222, 223 (2) (501 SE2d 594) (1998); see First Pentecostal Church v. City of Atlanta, 144 Ga. App. 718, 719 (4) (242 SE2d 357) (1978).


source: Caselaw Access Project

author: Miller, Judge.

license: Public Domain

text:
    A01A1742.
    WALLACE v. THE STATE.
    (559 SE2d 152)
   Miller, Judge.

Jamaine Wallace pled guilty to several charges, including burglary, aggravated assault, and false imprisonment. Eighteen months later, Wallace filed a motion for out-of-time appeal, which motion the trial court denied. On appeal Wallace challenges the denial of his motion, arguing that he was not informed of his right to appeal by either trial counsel or the court.

“A criminal defendant has no unqualified right to file a direct appeal from a judgment of conviction and sentence entered on a guilty plea. A direct appeal will lie from a judgment of conviction and sentence entered on a guilty plea ‘only if the issue on appeal can be resolved by facts appearing in the record.’

Wallace has merely claimed that he was not informed of his right to appeal, which is insufficient to meet the burden to show good and sufficient reason for entitlement to an out-of-time appeal. He must show that he had a right to file a timely direct appeal, which was frustrated by his counsel’s ineffective assistance. Wallace has failed, however, to point to the questions he would raise on appeal. Thus, we have no issues that could be resolved by facts appearing in the record, and a direct appeal cannot lie from Wallace’s guilty plea. He was therefore “not entitled to be informed of a non-existent ‘right’ to appeal.”

Even if Wallace argued that his plea was not voluntary, that issue can be developed only in the form of a post-plea hearing such as on a motion to withdraw a guilty plea. If the court had denied such motion, then Wallace could have appealed from that denial. Here, there is no such motion or-hearing and thus no appeal.

Decided January 23, 2002.

Jamaine Wallace, pro se.

Spencer Lawton, Jr., District Attorney, Melanie Higgins, Assistant District Attorney, for appellee.

As the denial of a-motion for an out-of-time appeal is a matter within the discretion of the trial court, and we find no abuse of such discretion here, the court did not err in denying Wallace’s motion.

Judgment affirmed.

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

       (Citations omitted.) Smith v. State, 266 Ga. 687 (470 SE2d 436) (1996); Gibbs v. State, 239 Ga. App. 249 (1) (a) (519 SE2d 511) (1999); see Morrow v. State, 266 Ga. 3 (463 SE2d 472) (1995).

        Smith, supra, 266 Ga. at 688.

       Id. at 687; see Manion v. State, 228 Ga. App. 270, 271 (491 SE2d 506) (1997).

        Morrow, supra, 266 Ga. at 4.

        Caine v. State, 266 Ga. 421, 422 (467 SE2d 570) (1996).

       Id.; Manion, supra, 228 Ga. App. at 271.

        Bryant v. State, 245 Ga. App. 892 (539 SE2d 523) (2000).


text:
    A01A1941.
    FREEMAN v. THE STATE.
    (559 SE2d 146)
   Miller, Judge.

The primary issue on appeal is whether the trial court clearly erred in finding that the defendant did not carry his burden in showing the prosecution’s jury strikes were racially motivated. Since there was evidence from which the trial court could reach this conclusion, we affirm. The secondary issue concerns the defendant’s claim that trial counsel was ineffective, an issue raised for the first time on appeal. Inasmuch as appellate counsel did not have an opportunity to raise this earlier, we remand the case for an evidentiary hearing on this issue.

At the conclusion of voir dire, Vashon Lakeith Freeman raised a Batson challenge regarding five of the prosecution’s juror strikes. The judge conducted an inquiry, upholding four of the strikes and reseating one of the jurors. The trial followed, and based on the testimony of several eyewitnesses identifying him as the shooter in an altercation, Freeman was convicted of aggravated battery, aggravated assault (two separate counts), and possession of a firearm during the commission of a felony.

His trial counsel moved for a new trial on the general grounds, which was denied. New counsel appeared within 30 days and immediately filed a notice of appeal as well as a motion to reconsider the order denying the new trial motion. The court held that the appeal divested it of jurisdiction to hear the motion for reconsideration. On appeal Freeman enumerates two errors, both of which were argued in the unheard motion to reconsider: (1) the trial court erred in its Batson rulings, and (2) the trial court erred in denying his motion for new trial on ineffective assistance grounds.

1. The United States Supreme Court in Purkett v. Elem established a three-step test for evaluating challenges to peremptory strikes on Batson grounds. First, the opponent of a peremptory challenge must make a prima facie showing of racial discrimination. Second, the burden of production then shifts to the proponent of the strike to give a race-neutral reason for the strike. Third, after hearing from the opponent of the strike and considering the totality of the circumstances, the trial court then decides whether the opponent of the strike carried his burden of proving discriminatory intent in fact motivated the strike.

In judging the third step, the trial court may consider, among other things, whether the opponent of the strike is able to show that similarly situated members of another race were seated on the jury and whether the race-neutral explanation proffered by the strike’s proponent is so implausible or fantastical that it renders the explanation pretextual. Only the trial court, who has the opportunity to observe the proponent’s demeanor, may assess her credibility. On appeal, “[t]he trial court’s findings concerning whether the opponent of the strike has carried the burden of persuasion are entitled to great deference and will be affirmed unless clearly erroneous.”

Freeman challenges the court’s findings on four jurors. No party disputes the validity of the court’s finding at the outset that the prosecutor’s exercise of five of her six peremptory challenges to strike members of Freeman’s minority race was a sufficient prima facie showing of racial discrimination. We will consider the other two steps with regard to each challenged juror.

(a) Juror No. 9 was a retired nurse who formerly worked at Central State Hospital. The prosecutor asserted that she struck her because the State sent many defendants to be evaluated by the hospital and she felt that the juror may be connected therewith. The court concluded that this was a race-neutral reason and invited Freeman to make a showing that the strike was in fact motivated by discriminatory intent. Freeman responded that there had been no showing that the juror indeed had any connection with any defendant sent to the hospital for evaluation. The court concluded that Freeman had not carried his burden of showing discriminatory intent.

A juror’s occupation is certainly a race-neutral reason for a strike. Freeman’s attempt to show that this reason was pretextual by pointing out the prosecutor’s failure to inquire further into the details of the juror’s possible connection or bias did not require the court to hold that he carried his burden of showing that the strike was racially motivated. Evidence supported the court’s ruling.

(b) Juror No. 11 was an elderly woman who had her eyes closed throughout the voir dire process. The prosecutor argued that she always struck people that showed no interest in the case, a reason the court found was race-neutral. When the court asked Freeman to make his showing of pretext, he responded only that if the juror was not interested, she would not be in the jury pool. The court found that Freeman had not met his burden. Georgia courts have upheld similar findings where the challenged juror was elderly and seemed to have difficulty paying attention.

(c) Juror No. 16 was a young, single woman who the prosecutor felt would sympathize with similarly aged and single Freeman and who appeared very disinterested in the case. The court held that this was a race-neutral reason and invited Freeman to show pretext. Freeman responded only that when the prosecutor questioned the jurors as a group, this juror did not say she knew any of the witnesses. The court held that Freeman had not carried his burden. We have upheld strikes of jurors based on their age and family situations.

(d) Juror No. 20 was Sylvester Butts, a man whose English the prosecutor could not understand. The prosecutor also pointed out that her office had prosecuted a man by that same name on a drug charge. The court found this was a race-neutral reason and invited Freeman to show the strike was racially motivated. Freeman responded that the prosecutor could have asked the juror to repeat his answers and that there was no showing that this was the same Sylvester Butts. The court found that Freeman had not carried his burden.

Decided January 23, 2002.

Debra G. Gomez, for appellant.

Howard Z. Simms, District Attorney, Myra H. Kline, Assistant District Attorney, for appellee.

Not being able to understand the responses of a potential juror who has the same first and last name as a man prosecuted by the local district attorney’s office on a drug charge provides sufficient reason for striking the juror. We accord deference to the trial court coming to this same conclusion.

Contrary to Freeman’s assertions, the court with each juror carefully followed the three-step procedure. As evidence supported its findings, the court did not clearly err in concluding that Freeman failed to carry his burden of showing the strikes were racially motivated.

2. Freeman’s second enumeration raises for the first time a claim of ineffective assistance of trial counsel. Where the appellant did not have the opportunity to raise this issue in the trial court, we will ordinarily remand the case to the trial court for resolution of the issue through an evidentiary hearing. Since appellate counsel appeared after Freeman’s motion for new trial was denied, appellate counsel did not have an opportunity to raise the ineffectiveness issue below. We remand the case to the trial court for an evidentiary hearing on this claim.

Judgment affirmed and case remanded.

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

       See Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986).

       514 U. S. 765, 767-769 (115 SC 1769, 131 LE2d 834) (1995).

       See Turner v. State, 267 Ga. 149, 151 (2) (476 SE2d 252) (1996); Williams v. State, 249 Ga. App. 292, 293 (548 SE2d 63) (2001).

        Turner, supra, 267 Ga. at 151 (2).

        Jones v. State, 240 Ga. App. 339, 342 (1) (523 SE2d 402) (1999).

       (Citation omitted.) Turner, supra, 267 Ga. at 151 (2).

        Trice v. State, 266 Ga. 102, 103 (2) (464 SE2d 205) (1995); see Jones, supra, 240 Ga. App. at 342 (1).

       See, e.g., Jones, supra, 240 Ga. App. at 342 (1); Williams v. State, 236 Ga. App. 190, 191 (1) (511 SE2d 561) (1999).

        Roundtree v. State, 270 Ga. 504, 506 (5) (511 SE2d 190) (1999); see Trice, supra, 266 Ga. at 103-104 (2) (unresponsive or sleepy). Freeman’s reliance on Parker v. State, 219 Ga. App. 361, 363-364 (1) (464 SE2d 910) (1995), in this regard is misplaced, as Parker is nonprecedential. See Court of Appeals Rule 33 (a); Hood v. State, 245 Ga. App. 391, 393 (4) (537 SE2d 788) (2000).

       See Jones, supra, 240 Ga. App. at 342 (1).

       See Trammel v. State, 265 Ga. 156, 157 (2) (454 SE2d 501) (1995) (substantial possibility that juror was subject of prior prosecution is valid grounds for striking); Curry v. State, 238 Ga. App. 511, 516-517 (2) (c) (519 SE2d 269) (1999) (same).

       Freeman’s reliance on Ridley v. State, 235 Ga. App. 591 (1) (510 SE2d 113) (1998), is misplaced, as Ridley is nonprecedential. See Court of Appeals Rule 33 (a); Curry, supra, 238 Ga. App. at 516 (2) (c).

       Although Freeman asserted this as grounds in his motion for reconsideration of the order denying his new trial motion, the court correctly held that it could not address the reconsideration motion, as Freeman had simultaneously filed a notice of appeal. See McCulley v. State, 273 Ga. 40, 43-44 (4) (537 SE2d 340) (2000).

        Holland v. State, 240 Ga. App. 169, 171 (4) (523 SE2d 33) (1999).

       See id.

       See Potter v. State, 272 Ga. 430, 432 (3) (530 SE2d 725) (2000); Hodges v. State, 248 Ga. App. 23, 25 (3) (545 SE2d 157) (2001).


author: POPE, Presiding Judge.

text:
    A01A2032.
    VEAL v. THE STATE.
    (559 SE2d 144)
   POPE, Presiding Judge.

Bennie Veal was convicted by a jury of driving under the influence of alcohol in violation of OCGA § 40-6-391 (a) and endangering a child contrary to OCGA § 40-6-391 (1). Here he appeals, and for the following reasons, we affirm.

Evidence at trial showed that on May 28, 2000, Floyd County Police Officer Barry Sutton saw a vehicle with a burned-out taillight make a turn. He initiated a traffic stop of the car. As Sutton approached the vehicle, he smelled a strong odor of alcohol coming from the driver, Veal. Veal, who was accompanied in the front seat by his nine-year-old daughter, told Sutton that he had consumed several drinks that afternoon.

Officer Sutton had Veal blow into an alco-sensor, and after getting a positive reading from that, Sutton administered a series of field sobriety tests. After observing Veal perform, Sutton thought that Veal was under the influence of alcohol and that his driving was impaired. Sutton testified that Veal was very uncoordinated and that his speech was slightly slurred.

Sutton placed Veal under arrest and read him the implied consent rights. Veal agreed to take a breath test; Sutton testified about his qualifications in conducting tests on the machine. Veal registered 0.14 on the Intoxilyzer 5000. Sutton testified that in his opinion Veal was less safe to operate a motor vehicle. The jury then watched a videotape of the traffic stop.

Veal testified that although he had consumed a couple of mixed drinks and several beers earlier in the day, he did not think that the alcohol affected his driving ability. Veal called Patrick Demers as an expert witness.

1. During Officer Sutton’s testimony, the State introduced into evidence a certified copy of the manufacturer’s certificate of calibration of the Intoxilyzer, dated April 4, 2000, as well as the state certificates of inspection of the machine for before and after the date of the crimes. In response to these three State exhibits, Veal raised a general hearsay objection. He did not specify the particular document to which he objected, nor did he otherwise clarify the basis for his objection.

In his first enumeration of error, Veal claims that the trial court erred in admitting over objection the certificate of calibration by the Intoxilyzer’s manufacturer. Veal claims that the State failed to lay an adequate foundation for this exhibit and that unlike the two other exhibits regarding inspection of the machine, the objectionable document was not authorized by OCGA § 40-6-392 (f).

Pretermitting whether Veal’s objection at trial properly preserved this issue for our review, we find no harmful error. In Diaz v. State, 245 Ga. App. 380, 382 (3) (537 SE2d 784) (2000), this court concluded that the trial court did not err in admitting the manufacturer’s certification of the Intoxilyzer’s calibration. We reach the same result in this case. See generally Gutierrez v. State, 228 Ga. App. 458 (1) (491 SE2d 898) (1997). Moreover, any alleged error in admitting this document would have been harmless given that the other documents certifying that the machine was in proper working order were properly admitted under OCGA § 40-6-392 (f). See Jackson v. State, 233 Ga. App. 568, 569 (2) (a) (504 SE2d 505) (1998); see also Brown v. State, 268 Ga. 76 (485 SE2d 486) (1997).

Decided January 23, 2002.

James S. Garner III, for appellant.

Tambra P. Colston, District Attorney, John F. McClellan, Jr., Fred R. Simpson, Assistant District Attorneys, for appellee.

2. In his second enumeration, Veal claims that the court erred in initially declining to recognize his proffered witness, Demers, as an expert on the Intoxilyzer. When the defense first offered Demers as an expert, the State objected on the basis that the foundation was insufficient; the court sustained the objection. The expert then testified regarding his familiarity with the machine, and based on this testimony, the court allowed him to testify.

The decision to admit or exclude expert testimony rests in the sound discretion of the trial court. Reddin v. State, 223 Ga. App. 148, 152 (5) (476 SE2d 882) (1996). We find no abuse of the court’s discretion in requiring further testimony from Demers before allowing him to testify in this regard, nor do we find any impropriety in the court’s handling of this matter.

Veal also argues that the trial court erred in refusing to allow Demers to state his opinion on the accuracy of the State’s test of Veal’s breath. The court upheld the State’s objection to Demers testifying with respect to the specific machine used to test Veal, and, again, we find no error.

We find that a rational trier of fact could find from the evidence adduced at trial proof of Veal’s guilt beyond a reasonable doubt of driving under the influence of alcohol and of endangering a child by driving under the influence of alcohol. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

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


author: Phipps, Judge.

text:
    A01A2482.
    BURNETTE v. PERRY.
    (559 SE2d 153)
    Decided January 23, 2002.
    Pattie Burnette, pro se.

    Albert Perry, pro se.

   Phipps, Judge.

Albert Perry petitioned the State Court of DeKalb County for a dispossessory warrant, alleging that Pattie Burnette had failed to pay rent due on certain leased premises. After a bench trial, the court ruled that Perry was entitled to a writ of possession and to $1,441 in unpaid rent.

Burnette appeals, arguing that the trial court erred by relying on “erroneous and untrue information.” She claims that she and Perry entered into a lease-purchase agreement for the property and that she had already paid Perry more than the amount due at the time Perry sought the dispossessory warrant. She seeks to occupy the property until the lease expires or the purchase is completed and seeks a return of all money erroneously collected by Perry.

We cannot consider Burnette’s claim because there is no transcript of the proceedings below and no attempt to recreate the record as provided for in OCGA § 5-6-41 (g) and (i). Burnette, as the appellant, has the burden of showing error by the record. When a transcript of the evidence is necessary, as it is here, and the appellant omits it from the record or fails to submit a statutorily authorized substitute, we must assume that the evidence supported the grant of a writ of possession and the award for unpaid rent.

Judgment affirmed.

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

        Deen v. United Dominion Realty Trust, 218 Ga. App. 443, 444 (1) (462 SE2d 384) (1995).

        Florence v. Green Acres Mobile Home Estates, 230 Ga. App. 91, 92 (2) (495 SE2d 346) (1998).

        McKinney v. Alexander Properties Group, 228 Ga. App. 77, 78 (491 SE2d 131) (1997).


author: Mikell, Judge.

text:
    A02A0053.
    DANDY v. THE STATE.
    (559 SE2d 150)
   Mikell, Judge.

Duran Dandy was cited for improper lane change on March 19, 2001. He appeared in court on April 19, 2001, where he entered a plea of not guilty. He did not file a pre-trial demurrer or objection to the uniform traffic citation. After a trial, Dandy was adjudicated guilty and fined $101. Approximately one month later, Dandy filed a motion for new trial and motion in arrest of judgment. The court denied the motions, and this appeal followed. We affirm the conviction.

In the sole error raised on appeal, Dandy claims that the trial court erred in denying his motion in arrest of judgment, because his prosecution was barred by the two-year statute of limitation for misdemeanor offenses, OCGA § 17-3-1 (d). The traffic citation was dated: “March (Day) 19 (Yr.) 01” and was file stamped “MAR 20 2001.” He contends that “the offense is alleged to have occurred in the year ‘01,’ which would be 2000 years ago,” and that because the citation was filed on March 20, 2001, the prosecution was barred by the two-year statute of limitation. We recognize that in criminal cases, the statute of limitation runs from the time of the crime to the time of the indictment. Cain v. State, 144 Ga. App. 249 (1) (240 SE2d 750) (1977). But we reject Dandy’s argument and conclude that the trial court did not err in denying the motion in arrest of judgment.

First, even assuming, arguendo, that the abbreviated date on the citation was a defect, it was not error to deny Dandy’s motion, because the abbreviation was clearly amendable. OCGA § 17-9-61 (a) provides that “[w]hen a judgment has been rendered, either party may move in arrest thereof for any defect not amendable which appears on the face of the record or pleadings.” (Emphasis supplied.) If Dandy had filed a demurrer or objection to the citation, the state certainly would have been able to amend the alleged defect or issue a formal accusation. Smith v. State, 239 Ga. App. 515, 517 (2) (521 SE2d 450) (1999).

Significantly, in Bowman v. State, 227 Ga. App. 598 (490 SE2d 163) (1997), we held that

[a] motion to arrest judgment due to a defective indictment should be granted only where the indictment is absolutely void. In attacking an indictment after the verdict, every presumption and inference [are] in favor of the verdict. By failing to file a demurrer before trial, [the defendant] waived his right to a perfect indictment.

(Citations and punctuation omitted.) Id. at 599 (1). Thus, in the case sub judice, Dandy waived his right to a perfect traffic citation by not filing a demurrer or objection. Additionally, because we must construe every presumption and inference in favor of the verdict, we can infer that “01” was an abbreviation for the year 2001 and, therefore, that the citation was filed one day after the crime was committed, rather than 2000 years later. See id. Thé fact that Dandy appeared for trial on April 19, 2001, when the citation ordered him to appear on “19 day of April, Yr. 01” demonstrates that he understood that “01” referred to the year 2001.

Decided January 23, 2002.

Patterson & Patterson, Jackie G. Patterson, for appellant.

Joseph J. Drolet, Solicitor-General, Katherine Diamandis, Assistant Solicitor-General, for appellee.

Further, the abbreviation contained in the date does not render the citation “absolutely void” as contemplated in Bowman. See also Thomas v. State, 233 Ga. App. 224, 225 (1) (504 SE2d 59) (1998). “[I]t has long been the law that where the date alleged in the indictment or accusation is not a material element of the offense, the state may prove the offense as of any date within the statute of limitation.” (Citations and punctuation omitted.) Melton v. State, 174 Ga. App. 461, 462 (1) (330 SE2d 398) (1985). OCGA § 17-9-63 provides that “[n]o motion in arrest of judgment shall be granted for any matter not affecting the real merits of the offense charged in the indictment or accusation.” The abbreviated date did not affect the real merits of the offense of improper lane change. Accordingly, we find no error and affirm Dandy’s conviction.

Judgment affirmed.

Andrews, P. J., and Phipps, J., concur.


author: Ellington, Judge.

text:
    A02A0107.
    In the Interest of R. S., a child.
    (559 SE2d 143)
   Ellington, Judge.

The Juvenile Court of Butts County adjudicated R. S. delinquent after finding that the teenager committed a designated felony, trafficking in cocaine, OCGA § 16-13-31 (a) (1), and that he possessed marijuana with intent to distribute, OCGA § 16-13-30 (j) (1). R. S. appeals, contending the evidence was insufficient to support the judgment. We affirm.

In juvenile proceedings, the standard of proof on charges of a criminal nature is the same as that used in criminal proceedings against adults — proof must be beyond a reasonable doubt. On review of the sufficiency of the evidence to support an adjudication of guilt, that view of the evidence most favorable to the State must be taken, for every presumption and every inference [are] in favor of the verdict or adjudication. Where there is a conflict in the evidence, the credibility of the witnesses is for the judge’s determination, where the trial judge hears the case without intervention of a jury. This applies to juvenile court proceedings on petitions alleging delinquency.

(Citations and punctuation omitted.) In the Interest of J. T. M., 200 Ga. App. 636, 637 (409 SE2d 256) (1991). See also In the Interest of J. W. L., 242 Ga. App. 749 (531 SE2d 169) (2000); OCGA §§ 15-11-56 (a) (formerly § 15-11-33 (a)); 15-11-65 (a) (formerly § 15-11-33 (c)).

The evidence presented showed that R. S. lived with his mother in Butts County. The county sheriff’s office received numerous complaints that drugs were being sold from the house. Investigators set up surveillance of the house and observed R. S. make several apparent “hand-to-hand” drug sales with individuals who drove their cars into the driveway. A confidential informant participated in a controlled buy in which he purchased $50 worth of cocaine from R. S.

Shortly thereafter, on March 22, 2001, officers executed a no-knock search warrant at the house. Upon entering the house pursuant to the warrant, an officer observed R. S. walking out of the bathroom near the bedrooms. R. S. immediately put his hands up and “went down” on the floor. R. S.’s cousin was near the front door and was ordered to lie down on the floor. During a weapons sweep of the house, officers discovered a dark sock that contained crack cocaine floating in the bathroom toilet. R. S.’s cousin had seen R. S. earlier in the day holding a similar-looking black sock that he believed contained drugs. An officer testified that it is unusual to store cocaine in a toilet and that, in his opinion, someone put it there in order “to get rid of the evidence.” Officers found marijuana on the bathroom counter. They also discovered a cigar box which contained eight individually wrapped “quarter ounce bags” of marijuana and a small package of crack cocaine on top of a freezer. During an earlier detention hearing, R. S. had admitted that the cigar box belonged to him. The total weight of the cocaine was 38.7 grams, and the marijuana weighed a total of 34.7 grams.

We find that the evidence presented was sufficient to demonstrate that R. S. was, at a minimum, in constructive, joint possession of both the marijuana and cocaine in amounts sufficient to support the charges which were the basis of the adjudication of his delinquency. See OCGA §§ 16-13-30 (j) (1); 16-13-31 (a) (1); Smith v. State, 235 Ga. App. 223, 226 (510 SE2d 295) (1998); Shropshire v. State, 201 Ga. App. 421, 422 (411 SE2d 339) (1991) (defining constructive joint possession).

Judgment affirmed.

Smith, P. J., and Eldridge, J., concur.

Decided January 23, 2002.

Juliet K. Rowell, for appellant.

Richard G. Milam, District Attorney, Mark S. Daniel, Assistant District Attorney, for appellee.

       R. S.’s cousin was in the house during the execution of the warrant.


text:
    A02A0469.
    BOYINGTON v. THE STATE.
    (559 SE2d 154)
   Ellington, Judge.

A Chatham County jury found Troy Boyington guilty of two counts of felony obstruction of a police officer, OCGA § 16-10-24 (b). In two related enumerations of error, Boyington contends the evidence was insufficient to support the convictions because he did not offer violence against the arresting officers, but only passively resisted an unlawful arrest. Finding no error, we affirm.

On appeal, the evidence must be viewed in the light most favorable to support the verdict, and the appellant no longer enjoys a presumption of innocence. Arnold v. State, 249 Ga. App. 156 (1) (545 SE2d 312) (2001). Further, we do not weigh the evidence or determine witness credibility. Id. Viewing the evidence in this light, the record reveals the following relevant facts. Two police officers told Boyington, who had been causing a disturbance at his girlfriend’s apartment, to leave. After talking with the officers, Boyington left, grumbling to one of the officers that he was going to “kick his ass.” Shortly thereafter, Boyington returned to the apartment and sat down on the front porch. When the officers approached him, Boyington fled through his girlfriend’s apartment and to the backyard. When the officers caught up with Boyington, they attempted to frisk him for weapons before they talked with him further. Boyington, however, refused to comply. When one of the officers told him they would have to report him to the housing authority, Boyington swung his body around abruptly and came toward the officer as if he were going to hit her. When the officers tried to place Boyington in handcuffs, he resisted and kicked and pushed at them both. He also tried to grab an officer’s service pistol, which resulted in that officer spraying Boyington in the face with pepper spray.

This evidence is sufficient to support Boyington’s convictions for felony obstruction of a police officer. OCGA § 16-10-24 (b); McLeod v. State, 245 Ga. App. 668, 669 (2) (538 SE2d 759) (2000). Further, given these facts, the jury was authorized to conclude that the officers were lawfully discharging their duties and that Boyington’s resistance was unjustified. Shaw v. State, 247 Ga. App. 867, 870 (2) (a) (545 SE2d 399) (2001).

Decided January 23, 2002.

Burton F Metzger, for appellant.

Spencer Lawton, Jr., District Attorney, Arvo H. Henifin, Assistant District Attorney, for appellee.

Judgment affirmed.

Smith, P. J., and Eldridge, J., concur.


text:
    A01A1651.
    THE STATE v. BOGER.
    (559 SE2d 176)
   Miller, Judge.

Ryan Bennett Boger was charged with several traffic offenses, including driving under the influence of alcohol to the extent that it was less safe for him to drive. Boger filed various motions in limine, including a motion to exclude any alleged refusal to submit to a chemical test. The trial court granted all but one of Boger’s motions. The State appeals, arguing that the court erred in granting the remaining motions in limine. We affirm in part and reverse in part.

In reviewing a motion to suppress, we must construe the evidence most favorably to uphold the findings and judgment of the trial court, and the court’s findings as to disputed facts and credibility must be adopted unless clearly erroneous.

1. The trial court concluded that the arresting officer led Boger to believe that he had a right to an attorney prior to being required to submit to the breath test, even though it is well established that there is no right to have counsel present when requested to submit to any test of the breath, blood, or urine. After several failed attempts to get Boger to properly breathe through the alco-sensor, the colloquy between the officer and Boger was as follows:

Officer: Okay. Which part of “blow steady through the tube” do you not understand? Okay? It’s real simple, my 3-year-old can do this — my 3-year-old nephew. Take a big —.
Boger: I feel like —.
Officer: — deep —.
Boger: I need to talk to a lawyer.
Officer: Okay; do you want a lawyer?
Boger: Can I have a lawyer?
Officer: Sure; after I arrest you and take you down to the jail
and all that good stuff.
Boger: Okay.
Officer: Okay. Do you want one?
Boger: Let’s do it that way.
Officer: Okay; you got one. Turn around.

The officer then placed Boger under arrest and read him his implied consent rights.

Here, the officer’s response to Boger’s request for an attorney was for the most part a correct statement of law. The officer’s explanation informed Boger that he was not entitled to an attorney when the officer repeatedly requested that he breathe into the alco-sensor, but that he could have an attorney once he was arrested and taken to jail. Therefore, Boger’s refusal to continue the alco-sensor test could not have been based on a belief that he was entitled to an attorney prior to taking the test. The court erred in excluding evidence of Boger’s failure to submit to the alco-sensor test and in granting all motions on this basis.

2. After Boger was arrested and taken to jail, the officer prepared the Intoxilyzer machine and Boger refused to submit to this test without an attorney. At this point, Boger could have believed that he was then entitled to an attorney, as previously explained by the officer: “Sure [you can have a lawyer]; after I arrest you and take you down to the jail and all that good stuff.” Thus, the statement, although substantially correct, was misleading in that after Boger was arrested and at the jail, he believed that he was then entitled to counsel prior to complying with the implied consent law and taking the Intoxilyzer test (when no such right existed). For this reason, the court did not err in excluding Boger’s refusal to submit to the Intoxilyzer test.

Simply put, any evidence involving the alco-sensor test given at the scene of the stop was improperly suppressed, but evidence as to the Intoxilyzer test provided at the police station should be suppressed as Boger, misled by the officer’s statement, believed that he was entitled to an attorney prior to submitting to such test.

Decided January 24, 2002.

Gerald N. Blaney, Jr., Solicitor-General, Stephen A. Fern, Assistant Solicitor-General, for appellant.

Chestney-Hawkins Law Firm, Robert W. Chestney, for appellee.

Therefore, we reverse the court’s grant of Boger’s motion in limine to exclude defendant’s alleged incriminatory statements and acts, all evidence gathered as a result of an unlawftd seizure, and to suppress evidence gathered in violation of defendant’s request for counsel (with the exception of any evidence as to the Intoxilyzer test). We also reverse the grant of Boger’s motion to exclude any alleged refusal to submit to the alco-sensor test, but affirm the exclusion of Boger’s failure to submit to the Intoxilyzer test.

Judgment affirmed in part and reversed in part.

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

       Boger also filed motions in limine to exclude defendant’s alleged incriminatory statements and acts, all evidence gathered as a result of an unlawful seizure, and results of the horizontal gaze nystagmus test and to suppress evidence gathered in violation of defendant’s request for counsel.

       The court denied Boger’s motion to exclude the results of the HGN test.

        Self v. State, 245 Ga. App. 270, 272-273 (2) (537 SE2d 723) (2000); State v. Kirbabas, 232 Ga. App. 474, 478-479 (1) (a) (502 SE2d 314) (1998).

       See Rawl v. State, 192 Ga. App. 57, 58 (4) (383 SE2d 903) (1989); Oyler v. State, 175 Ga. App. 486, 487 (1) (333 SE2d 690) (1985).

       See Ross v. State, 254 Ga. 22, 26 (3) (b), n. 3 (326 SE2d 194) (1985) (the Miranda right to counsel attaches if an accused is in police custody and subjected to police interrogation).

       See Rawl, supra, 192 Ga. App. at 58 (4).

       Compare Beasley v. State, 204 Ga. App. 214, 215-216 (1) (419 SE2d 92) (1992) (misstatement of law induced consent to urine test).


text:
    A01A1906.
    KIRKLAND v. THE STATE.
    (559 SE2d 161)
   Mikell, Judge.

Stephen Lee Kirkland was convicted of driving under the influence of alcohol (“DUI”) by having an alcohol concentration of 0.10 grams or more, OCGA § 40-6-391 (a) (5), and of exceeding the maximum posted speed limit, OCGA § 40-6-181. He was acquitted of DUI to the extent that he was a less safe driver, OCGA § 40-6-391 (a) (1). He was sentenced to twelve months on probation with the first thirty days to be served in work release, eighty hours of community service, and two fines in the total amount of $1,200. The trial court denied his motion for new trial, and this appeal followed. Kirkland’s sole enumerated error is that the court erred in permitting a police officer to testify as to his opinion of what the six clues of the horizontal gaze nystagmus (“HGN”) test indicate about a person’s level of intoxication. We affirm the conviction.

Viewed in the light most favorable to the jury’s verdict, the record shows that on May 14, 1999, at approximately 4:39 a.m., Officer Jack W. Moody of the Gwinnett County Police Department stopped the car Kirkland was driving for speeding. Kirkland produced his driver’s license, but he told the officer that the car was not his and that he could not find an insurance card. Officer Moody testified that Kirkland’s eyes appeared bloodshot and glazed, and that his breath smelled of alcohol. Officer Moody directed Kirkland to perform field sobriety evaluations. First, the officer asked Kirkland to recite the alphabet, and Kirkland complied. Next, Officer Moody administered the HGN test. The officer testified that Kirkland exhibited all six clues indicating that he was intoxicated. He further testified that based on his training and vast experience in DUI investigation, it was his opinion that generally when a person exhibits all six clues, that person’s blood alcohol concentration would likely be 0.10 grams or greater.

Officer Moody asked Kirkland to perform the walk and turn and the one-leg stand evaluations, but Kirkland complained of a knee problem. Consequently, Officer Moody did not require Kirkland to perform those evaluations but attempted to administer an aleosensor test. Kirkland refused to supply a breath sample. Officer Moody testified that based on his observation of Kirkland, the odor of alcohol from Kirkland’s breath, and Kirkland’s performance on the field sobriety evaluations, he believed that the defendant was a less safe driver due to his level of intoxication. The officer arrested Kirkland for DUI and immediately read him the Georgia Implied Consent Notice. Kirkland then consented to a breath test.

Officer Moody took Kirkland to the Gwinnett County jail. He administered a breath test using the Intoxilyzer 5000. The first breath sample, taken at 5:22 a.m., indicated a blood alcohol concentration of 0.124 grams, and a second sample at 5:25 a.m. showed a concentration of 0.127 grams. The jury convicted Kirkland of DUI with an alcohol concentration of 0.10 grams or more and of speeding. On appeal, Kirkland argues that the court erred in allowing Officer Moody to testify regarding his opinion of the level of intoxication the HGN test indicates. We disagree.

The trial transcript shows that the state asked Officer Moody the following question:

Now I’m asking you based on everything — your training, your on-the-job evaluations of folks who have consumed alcohol, DUI detection and what you’ve observed on people, their physical manifestations with the eyes and so forth, the horizontal gaze nystagmus — what’s your opinion as to the correlation of that and what you find out as a result of the Intox 5000 test?

Following a defense objection which was overruled, the court clarified the question as follows:

He’s asking do you have an opinion based on what you observed in the HGN and what you read on the Intoximeter[,] do you have an opinion as to how they correlate with one another. You said you had one. So now tell us what that is.

Officer Moody gave the following testimony:

In general if you do the HGN evaluation and I denote six out of the six possible clues that I’m looking for, that does in my opinion correlate to a — to the numerical value that’s placed on that person’s alcohol — blood-alcohol content. . . . That, in general, when you see six out of six clues, the blood-alcohol content will be above a point one oh [0.10 grams] or greater.

The court then instructed the jury: “And, members of the jury, that’s his opinion. You are to decide the ultimate question.”

Contrary to Kirkland’s argument, we conclude that the trial court did not err in allowing the above testimony. “[T]he HGN test is an accepted, common procedure that has reached a state of verifiable certainty in the scientific community and is admissible as a basis upon which an officer can determine that a driver was impaired by alcohol.” Hawkins v. State, 223 Ga. App. 34, 38 (1) (476 SE2d 803) (1996). Admissible evidence involving the HGN test is not limited to test results showing the mere presence of alcohol. Sieveking v. State, 220 Ga. App. 218, 219 (1) (469 SE2d 235) (1996).

Field sobriety tests are not designed to detect the mere presence of alcohol in a person’s system, but to produce information on the question whether alcohol is present at an impairing level such that the driver is less safe within the meaning of OCGA § 40-6-391 (a) (1). [Cits.] Mere presence of alcohol is not the issue; the quantity is needed because the issue is effect.

Id. See also Werner v. State, 246 Ga. App. 677, 679 (1) (538 SE2d 168) (2000).

Furthermore, we have held that police officers may give opinion testimony regarding the state of sobriety of a DUI suspect. Wrigley v. State, 248 Ga. App. 387, 392 (4) (546 SE2d 794) (2001). “And to the extent that such evidence represented expert testimony, it was within the trial court’s discretion to determine whether Officer [Moody] possessed the requisite learning and experience to testify as an expert.” Id. See also Werner, supra at 680 (3). The evidence showed that Officer Moody was specially trained in the area of DUI detection, had conducted over 1,000 field sobriety evaluations, and had conducted approximately 700 breath tests using the Intoxilyzer 5000. We find no error. See Wrigley, supra.

Additionally, the results of Kirkland’s breath tests showing a blood alcohol concentration of at least 0.124 grams were admitted into evidence and provided independent support for the jury’s determination that Kirkland was guilty of DUI by having an alcohol concentration of 0.10 grams or more, in violation of OCGA § 40-6-391 (a) (5). Accordingly, we affirm the conviction.

Decided January 24, 2002.

W. Keith Davidson, for appellant.

Gerald N. Blaney, Jr., Solicitor-General, Jeffrey P. Kwiatkowski, Emilien O. Loiselle, Jr., Assistant Solicitors-General, for appellee.

Judgment affirmed.

Blackburn, C. J., and Pope, P. J., concur.


text:
    A01A1960.
    MCCORMICK et al. v. HARRIS.
    (559 SE2d 158)
   Mikell, Judge.

Katie Hazel McCormick sued Elbert Neal Harris for injuries she sustained in an automobile accident. McCormick’s husband, Dewey McCormick, sued for loss of consortium. The jury returned a verdict awarding $1,500 in damages to Mrs. McCormick and no damages to Mr. McCormick. The McCormicks appeal from the denial of their motion for a new trial, arguing that a new trial should have been granted because the small amount of damages awarded by the jury justifies the inference of gross mistake or undue bias. We affirm the judgment of the trial court.

1. As a preliminary matter, we must address Harris’ challenge to our jurisdiction in this case. A notice of appeal was filed on behalf of both Mr. and Mrs. McCormick. Because the judgment for Mrs. McCormick was under $10,000, she normally would have been required to file an application in order to pursue this appeal, pursuant to OCGA § 5-6-35 (a) (6). However, because no application is required for the appeal of a “zero” award, the judgment with respect to Mr. McCormick is directly appealable. Smith v. Curtis, 226 Ga. App. 470 (486 SE2d 699) (1997). “As a consequence, the judgment entered in favor of [Mrs. McCormick] is also directly appealable.” Id. at 470, n. 1.

Harris emphasizes that the McCormicks have not enumerated an error regarding the judgment on the loss of consortium claim, nor have they raised any argument regarding Mr. McCormick’s claim in their appellate brief. Therefore, Harris argues that Mr. McCormick’s appeal should be dismissed and that we no longer have jurisdiction over Mrs. McCormick’s appeal. We disagree. Mr. and Mrs. McCormick properly filed a direct appeal of the judgment entered by the trial court, and we have jurisdiction to consider the merits of their appeal.

2. Viewed in the light most favorable to the jury’s verdict, the evidence shows that on March 2, 1999, Mrs. McCormick’s car was stopped on Georgia Highway 19, preparing to make a left turn, when Harris struck her vehicle from the rear. After the accident, Mrs. McCormick was taken to the hospital by ambulance. There, she complained of nausea and numbness. She testified that she did not recall feeling pain in any particular part of her body at the emergency room. She further testified that she experienced pain in her neck and back two days after the accident and that it subsequently subsided. Mrs. McCormick did not experience knee and elbow pain until approximately three weeks after the accident. She sought treatment for her knee problems for the first time on March 29, 1999, when she visited Lisa Smith, a physician’s assistant.

Mrs. McCormick was subsequently treated by Dr. John I. Waldrop, M.D., and Dr. Robert Bartosh, M.D., both of whom are certified orthopedic surgeons. Both doctors diagnosed a condition in Mrs. McCormick’s right knee known as chondromalacia, which they described as a roughening of the back surface of the kneecap. Dr. Bartosh testified that this condition can develop over a period of time through “gradual wear and tear” or can be caused by trauma. Similarly, Dr. Waldrop testified that chondromalacia “can be traumatic or it can be a degenerative process and can develop with no injury whatsoever” and that it was more common for this condition to occur through a natural process than to be caused by an accident. Both doctors testified that it would be unusual for a patient who had sustained a significant knee injury in a car accident not to have exhibited any symptoms or have experienced any pain within two weeks of the accident. Dr. Waldrop acknowledged that there was no way of knowing whether Mrs. McCormick’s knee condition was caused by the automobile accident or whether it had progressed naturally over a period of time.

Mrs. McCormick testified that she had not experienced knee problems before the accident, and she presented evidence showing that her medical bills, including treatment of her knee, totaled $3,939.86 and that the cost of future knee surgery would be $7,500. The jury awarded her $1,500.

3. On appeal, the McCormicks argue that the trial court erred in denying their motion for new trial, because the jury’s verdict awarded such a small amount of damages that an inference of gross mistake or undue bias was justified. We disagree.

The general rule on appeal of an award of damages is that a jury’s award cannot be successfully attacked so as to warrant a new trial unless it is so flagrantly excessive or inadequate, in the light of the evidence, as to create a clear implication of bias, prejudice, or gross mistake on the part of the jurors. [Cits.] Even though the evidence is such as to authorize a greater or lesser award than is actually made, the appellate court will not disturb it unless it is so flagrant as to “shock the conscience.” [Cits.] . . . [T]he trial court’s approval of the verdict creates a presumption of correctness that will not be disturbed absent compelling evidence. [Cits.]

Cullen v. Timm, 184 Ga. App. 80, 82-83 (2) (360 SE2d 745) (1987). OCGA § 51-12-12 (a) provides: “The question of damages is ordinarily one for the jury; and the court should not interfere with the jury’s verdict unless the damages awarded by the jury are clearly so inadequate or so excessive as to be inconsistent with the preponderance of the evidence in the case.” Applying these principles, we cannot conclude that the jury’s award was so flagrantly inadequate as to shock the conscience, nor do we find that it is inconsistent with the evidence.

It is well settled that a plaintiff cannot recover for injuries sustained as a result of a defendant’s negligence unless the plaintiff shows that the defendant’s negligence was the proximate cause of the injury. Blosfeld v. Hall, 236 Ga. App. 286, 288 (511 SE2d 196) (1999). In this case, there was ample medical testimony to justify the jury’s conclusion that the knee problems for which Mrs. McCormick sought damages were not proximately caused by the accident. The bill for Mrs. McCormick’s emergency room visit immediately following the accident was $729.40. Through its $1,500 verdict, it is possible that the jury awarded Mrs. McCormick the amount of the emergency room bill, as well as an additional amount of damages to compensate her for pain and suffering.

The amount of damages returned by a jury in a verdict for pain and suffering due to alleged negligence “is governed by no other standard than the enlightened conscience of impartial jurors.” (Citation and punctuation omitted.) Palmer v. Farmer, 184 Ga. App. 753, 754 (3) (362 SE2d 453) (1987). See also Gurly v. Hinson, 194 Ga. App. 673, 675 (8) (391 SE2d 483) (1990). “We decline to substitute our judgment based upon a cold record for that of enlightened jurors who heard the evidence and saw the witnesses.” (Citation and punctuation omitted.) Herr v. Withers, 237 Ga. App. 420, 423 (515 SE2d 174) (1999).

The cases relied upon by the McCormicks, Carter v. Reese, 150 Ga. App. 494 (258 SE2d 165) (1979); Brewer v. Gittings, 102 Ga. App. 367 (116 SE2d 500) (1960); and Anglin v. City of Columbus, 128 Ga. 469 (57 SE 780) (1907), are distinguishable from the case sub judice, and their reliance is misplaced. In each of those cases, the evidence that the plaintiffs’ significant injuries were proximately caused by the accidents at issue was uncontroverted. In the case sub judice, however, there was a jury issue as to whether the accident proximately caused Mrs. McCormick’s knee condition, and there is medical evidence that the condition for which she sought to recover may not have been caused by her accident with Harris.

Decided January 24, 2002.

Ellis & Easterlin, George R. Ellis, Jr., for appellants.

Perry & Walters, Robert K. Raulerson, for appellee.

4. The McCormicks also allege gross mistake or undue bias on the part of the jury based on a question asked during its deliberation. The jury submitted the following written question to the judge: “How does our finding on the defendant’s negligence or non [sic] relate to our findings of any monetary damages? Does a not guilty negate any possible monetary damages?” The McCormicks state in their appellate brief that the trial court then brought the jurors back into the courtroom and charged them on the difference between civil and criminal cases. The record does not contain a transcript of the court’s charge; however, the appellants have not assigned error to the charge given. Contrary to the McCormicks’ argument, we do not find that the jury’s question necessitates a finding of bias or gross mistake. “The presumption is that the jurors were impartial and understood their case.” (Citation and punctuation omitted.) Fabe v. Floyd, 199 Ga. App. 322, 329 (3) (405 SE2d 265) (1991).

Accordingly, in light of the evidence presented, the jury’s award did not raise a clear implication of bias, prejudice, or gross mistake. Finding no error in the trial court’s denial of the motion for new trial on the asserted grounds, we affirm.

Judgment affirmed.

Blackburn, C. J., and Pope, P. J., concur.


text:
    A01A1971.
    ANDERSON v. THE STATE.
    (559 SE2d 166)
   Phipps, Judge.

James Hoyt Anderson appeals from the trial court’s order denying his motion to withdraw his guilty plea. Finding no error, we affirm.

On February 2, 2000, the Lumpkin County Superior Court rendered a judgment of conviction on Anderson’s Alford plea to an indictment. On March 3, 2000, Anderson filed a motion to withdraw his plea. By then, however, a new term of court had commenced (on the fourth Monday in February 2000). As Anderson acknowledges, “a superior court’s jurisdiction to entertain a motion to withdraw a plea ends after the term of court in which the judgment of conviction was rendered.” It was on this basis that the trial court denied Anderson’s motion.

1. Anderson contends that his motion was “equivalent” to a motion for a new trial and that it was thus timely. The law, however, is otherwise:

A defendant may withdraw his plea as a matter of right before sentence is pronounced. Even after sentencing, the trial court would have discretion to allow withdrawal of the plea prior to the expiration of that term of court. After the term, the prescribed means to withdraw the plea would be through habeas corpus proceedings. It could not be raised through motion for new trial because a defendant who files a guilty plea cannot move for a new trial since there has been no verdict.

2. Anderson also contends that he has been denied equal protection under the state and federal constitutions because a person filing a motion to withdraw a guilty plea in a county in which the end of a court term did not intervene between February 2 and March 3, 2000, would have been entitled to consideration of his motion on the merits, as it would have been timely. He appealed to the Supreme Court of Georgia on the basis of this constitutional challenge, but that Court transferred the appeal here because “resolution of the issue raised requires only the application of plain and unambiguous constitutional provisions.”

A contention similar to Anderson’s was made — unsuccessfully — in Henry v. State. There, in a county having only two terms of court a year, the defendant filed a demand for a speedy trial. Since such a demand creates a trial deadline tied to the last day of a court term, the defendant claimed a denial of equal protection in that “he may have to wait longer for his trial than [defendants] in circuits with more terms of court per year.” Our Supreme Court noted that "[t]he equal protection clause of the Georgia Constitution is substantially equivalent to the equal protection clause of the fourteenth amendment of the U. S. Constitution” and that "[t]he right to a speedy trial is fundamental and is guaranteed under both . . . Constitutions.” It also noted, however, that, as “the Code sections merely establish the procedure for securing [the constitutional speedy trial] right,” they “do not deprive appellant of a fundamental right.”

Similarly here, even assuming arguendo that the right to withdraw, post-sentencing, a guilty plea if necessary to correct a manifest injustice has constitutional stature, the end-of-term limitation on a superior court’s jurisdiction to entertain a motion to withdraw a plea merely establishes the procedure for securing that right. That is, it merely establishes a time limit, inherently a procedural matter, on the exercise of the right. Thus, under Henry, it does not deprive Anderson of a fundamental right.

In Henry the Court went on to hold that the rational basis standard applied and that, under that standard, the legislation establishing court terms in the various counties was rationally related to a legitimate governmental interest:

Because the statutes do not deprive appellant of a fundamental right, we will examine the statutes under a rational basis standard. Under this analysis, the statutory classifications are presumed valid and will survive an equal protection challenge if the classification bears a rational relationship to a legitimate government interest. . . . The state has a legitimate interest in setting terms of court according to the needs and size of each county. Although it is possible that the classifications in the Code sections are not drawn with mathematical nicety, and may in practice result in some inequality, perfection in drawing classifications is not required. The legislature has set the minimum number of terms of court for each county according to the constitutional minimum of two per year. If the legislature determines that certain counties need more terms of court and can handle the additional demands, then it may extend such a benefit to the people in that county. The legislation is rationally related to the government’s interest in moving judicial caseloads and rationing jury pools.

Decided January 24, 2002

Glenville Haldi, for appellant.

N. Stanley Gunter, District Attorney, Lynn Akeley-Alderman, Assistant District Attorney, for appellee.

Henry, albeit addressing the impact of an end-of-the-term deadline on a speedy trial demand, rather than on a post-sentencing motion to withdraw a guilty plea, is controlling authority for our conclusion that Anderson was not denied equal protection by the combination of (1) the case law rule that jurisdiction to entertain a motion to withdraw a plea ends with the term of court and (2) the county-by-county differences in terms of court detailed in OCGA § 15-6-3.

Judgment affirmed.

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

        North Carolina v. Alford, 400 U. S. 25 (91 SC 160, 27 LE2d 162) (1970).

       OCGA § 15-6-3 (17.1) (C).

       (Citation omitted.) Eddleman v. State, 247 Ga. App. 753 (1) (545 SE2d 122) (2001).

       OCGA § 5-5-40 (a) provides that, “except in extraordinary cases,” motions for new trial shall be made within 30 days after the entry of judgment.

       (Citations and punctuation omitted; emphasis supplied.) Bennett v. State, 225 Ga. App. 284, 285 (1) (483 SE2d 612) (1997), rev’d on other grounds, 268 Ga. 849 (494 SE2d 330) (1998).

       263 Ga. 417 (434 SE2d 469) (1993).

       OCGA § 17-7-171 (b); see also OCGA § 17-7-170 (b).

        Henry, supra, 263 Ga. at 417.

       (Citations and punctuation omitted.) Id. at 417-418.

       (Citations omitted.) Id. at 418.

       Referring to OCGA § 15-6-3 (15.1) — establishing two court terms annually in the county involved — in combination with OCGA § 17-7-171 (see n. 7, supra).

        Henry, supra, 263 Ga. at 418.

       See Uniform Superior Court Rule 33.12 (A).

         See, e.g., Eddleman, supra, 247 Ga. App. at 753 (1).

       (Citations omitted.) Henry, supra, 263 Ga. at 418-419.


text:
    A01A1983.
    HAUGLAND v. THE STATE.
    (560 SE2d 50)
   Miller, Judge.

Jeremy Haugland was convicted of hijacking a car and various other offenses. The hijacking conviction was based on evidence that while in the course of stealing a vehicle, defendant jerked an elderly woman out of her car and flung her across the street, injuring her arm and head. The primary question on appeal is whether the hijacking statute’s requirement that a defendant possess a firearm or weapon as an element of the offense is met by the defendant’s use of his hands to fling someone from a car. We hold that the statutory requirement was not met and therefore reverse that conviction.

On appeal from a criminal conviction, we construe the evidence in favor of the verdict. So construed, the evidence shows that the owner of a Ford Explorer vehicle woke one morning to find her vehicle missing. Haugland, who had been staying at the same residence and who did not have authorization to use the vehicle, was also missing from his room. A police officer spotted Haugland driving the Explorer the next day. Once the officer cornered the vehicle, Haugland fled the scene on foot. The officer found Haugland’s identification in the Explorer.

Not far away, Haugland flagged down an elderly woman driving a Geo Prizm. He jerked her from the car and flung her across the road, bruising her arm and causing her to hit her head on the asphalt. He escaped in the Geo and later that day led police on a high-speed chase that ended when he crashed into a rolling police blockade. Once arrested, Haugland gave a statement confirming these facts.

A grand jury indicted Haugland for numerous traffic offenses as well as theft of the Explorer (Count 1), hijacking the Geo by use of his hands (Count 2), robbery of the Geo (Count 3), aggravated assault of the Geo’s owner (Count 4), and theft of the Geo (Count 5). At trial the judge instructed the jury that hands could constitute a weapon under the motor vehicle hijacking statute, depending on the manner in which they were used. The jury found Haugland guilty on all counts, and the court sentenced him on all counts.

Haugland moved for a new trial, which the court for the most part denied. The court, however, did merge Counts 4 and 5 into Count 3 for purposes of sentencing. On appeal Haugland challenges (1) the sufficiency of the evidence on Counts 1 and 2, (2) the giving of the jury charge on hands as weapons under the hijacking statute, and (3) the failure to merge Counts 4 and 5 into Count 3. We hold that the evidence did not suffice to sustain a hijacking conviction (Count 2) and reverse that conviction; we affirm the remainder of the jury verdict as well as the court’s post-trial ruling that merged Counts 4 and 5 into Count 3 for purposes of sentencing; and we vacate the sentences on all remaining counts and remand the case for resentencing so the court may have discretion to sentence based on the surviving mix of offenses.

1. Haugland first challenges the theft by taking conviction arising out of the theft of the Explorer (Count 1). Theft by taking is shown where a person unlawfully takes any property of another with the intention of depriving him of the property. The evidence shows that the same morning the Explorer was missing, so was Haugland. The owner had not authorized Haugland to take the vehicle. A day later an officer witnessed Haugland driving the Explorer and then fleeing when confronted. Haugland’s identification was found in the vehicle. Haugland also admitted to taking the Explorer and to fleeing from police, which was direct evidence of his guilt. Moreover, aside from the confession, the jury was authorized to find that Haugland’s driving the vehicle after the theft and his flight upon seeing police excluded reasonable hypotheses of innocence. The evidence sufficed to sustain the conviction.

2. Count 2 charged Haugland with hijacking a motor vehicle in violation of OCGA § 16-5-44.1. The indictment accused Haugland of obtaining the Geo by use of “weapons, to-wit: hands, instruments which when used offensively against a person are likely to result in serious bodily injury. . . .” It is undisputed that Haugland possessed no external weapon at the time he stole the Geo and that the woman he assaulted did not believe he had a weapon. The indictment specified that Haugland used force and violence by seizing the car’s occupant, pulling her from the car, and throwing her to the ground. Haugland contends that the hands do not constitute weapons under the hijacking statute. We agree and therefore are constrained to reverse Haugland’s conviction on Count 2.

OCGA § 16-5-44.1 (b) states that the offense of hijacking occurs when a “person while in possession of a firearm or weapon obtains a motor vehicle from the person or presence of another by force and violence or intimidation. . . .” The State does not contend that Haugland possessed a firearm, but contends that by using his hands to fling and thereby seriously harm the car’s occupant, he possessed a weapon, which under the statute is defined as “an object, device, or instrument which when used against a person is likely to or actually does result in serious bodily injury or death. . . ,”

In upholding this conviction during the motion for new trial hearing, the court below compared the hijacking statute to the aggravated assault statute, which defines aggravated assault as an assault “[w]ith a deadly weapon or with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury. . . .” In interpreting the aggravated assault statute, we have held that a jury may find hands and feet under certain circumstances to be deadly weapons or objects that are likely to result in serious bodily injury when used offensively against a person. “[A] jury may find [hands] to be deadly depending upon their use, wounds inflicted, and other surrounding circumstances.”

The State, on the other hand, argues that the hijacking statute is more like the armed robbery statute, which defines armed robbery as when a person with the intent to commit theft “takes property of another from the person or the immediate presence of another by use of an offensive weapon, or any replica, article, or device having the appearance of such weapon.” “[A] defendant’s hands and feet do not constitute offensive weapons for purposes of the armed robbery statute.” We explained in Wright v. State that a defendant who does not carry or imply that he is carrying some form of external weapon or instrument cannot in any realistic sense be said to be “armed” and thus cannot be guilty of armed robbery. We held that this was compatible with the aggravated assault cases, “because the purposes of the two statutes are different.”

The purpose of the aggravated assault statute is to treat as a felony those assaults likely to result or actually resulting in serious bodily injury, whether through the use of an external weapon or the defendant’s hands and feet. Compare OCGA § 16-5-20 (misdemeanor simple assault) with OCGA § 16-5-21 (felony aggravated assault). The purpose of the armed robbery statute, by contrast, is to punish more severely those defendants who use a weapon in the commission of a robbery, which would constitute a felony even in the absence of such a weapon. Compare OCGA § 16-8-40 (felony robbery) with OCGA § 16-8-41 (felony armed robbery). Thus, the focus in an aggravated assault case is the likelihood or actual presence of serious bodily harm, while the focus in an armed robbery case is on the presence of a weapon.

We hold for two reasons that, similar to the armed robbery statute, the hijacking statute does not authorize a conviction for hijacking a motor vehicle where no weapon or instrument was used other than the defendant’s own hands and feet. First, as with the armed robbery statute, the purpose of the hijacking statute is to punish more severely those defendants who use a weapon in the forcible theft of a vehicle taken from the person or immediate presence of another, which would constitute a felony even in the absence of a weapon. Thus, similar to the armed robbery statute, the focus in the hijacking statute is on the presence of a weapon.

Bradford v. State supports this analysis. Bradford concluded that a defendant, who in demanding the victim’s vehicle claimed to possess a gun and who gripped the victim tightly with one hand, could not be convicted of hijacking, because “no evidence was offered to establish the physical manifestation requirement necessary to sustain a reasonable inference that [defendant] had a gun, a weapon, or any object. . . .” In reaching this conclusion, the two-judge majority held that the weapon requirement of the hijacking statute is similar to that of the armed robbery statute. The special concurrence agreed on this point, stating that “[a]s indicated in the majority opinion, the two statutes require comparable proof, with respect to the weapon element.” None of the three judges on the Bradford panel mentioned the defendant’s hands as possible weapons under the hijacking statute, concluding instead that the armed robbery weapon requirement, which requires the physical manifestation of a separate gun, weapon, or object, applied to the hijacking weapon requirement.

Second, the language of the hijacking statute indicates that the weapon must be an external instrumentality. The defendant must be “in possession of a firearm or weapon.” Under common vernacular, a person is not in possession of his hands or feet; rather, hands and feet are considered to be integral parts of the person who is doing the possessing. Possession refers to “having or holding property in one’s power; the exercise of dominion over property.” “Property” is defined as “[a]ny external thing over which the rights of possession, use, and enjoyment are exercised.” Thus, this is a reference to holding some object or thing that is external to the person, not to holding one’s own bodily parts. Indeed, the body with its parts is the person, and by using his hands or other parts that person holds or possesses an external object.

This is in contrast to the aggravated assault statute, which focuses on using an object offensively against a person that is likely to cause serious bodily injury. A person can use his hands offensively without possessing an external instrument to inflict harm, but a person does not possess his own hands, for it is often his hands that are doing the possessing.

Decided January 24, 2002.

Robert L. Ferguson, for appellant.

Roger G. Queen, District Attorney, William B. Britt, Assistant District Attorney, for appellee.

For these reasons, we hold that a defendant’s hands and feet do not constitute weapons for purposes of the motor vehicle hijacking statute. Accordingly, we must reverse Haugland’s hijacking conviction (Count 2).. This renders moot Haugland’s enumeration on the jury charge regarding hijacking.

3. Haugland’s remaining two enumerations are based on the premise that the court did not merge Counts 4 and 5 into Count 3, when in fact it did so in its order on Haugland’s motion for new trial. The State may prosecute the defendant for multiple crimes established by the same conduct, but the defendant may not be convicted (i.e., sentenced) for more than one crime if one crime is included in the other or the crimes differ only in that one prohibits a designated kind of conduct generally and the other prohibits a specific instance of such conduct. When the court here ordered that Counts 4 and 5 were merged into Count 3 for sentencing, this necessarily vacated the sentences on Counts 4 and 5. Thus, Haugland has no grounds for claiming error.

Since we have reversed the hijacking conviction and have clarified that the sentences on Counts 4 and 5 were vacated, we further vacate the sentences on the surviving counts and remand the case for resentencing on them so as to allow the trial court the discretion to reformulate the complex series of sentences in light of the present status of the case.

Judgment affirmed in part and reversed in part and case remanded for resentencing.

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

       OCGA § 16-5-44.1 (b).

       See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Kelley v. State, 233 Ga. App. 244 (503 SE2d 881) (1998).

       OCGA § 16-8-2.

        Patterson v. State, 258 Ga. 592, 594 (1) (372 SE2d 809) (1988); see Stewart v. State, 163 Ga. App. 735, 737 (1) (295 SE2d 112) (1982).

       See Shaheed v. State, 245 Ga. App. 754, 755 (1) (538 SE2d 823) (2000) (“Flight is circumstantial evidence of consciousness of guilt. . . . [Cit.]”) (punctuation omitted).

       See Foster v. State, 273 Ga. 34, 35 (1) (537 SE2d 659) (2000) (jury question whether evidence excludes other reasonable hypotheses).

       OCGA § 16-5-44.1 (a) (3).

       OCGA § 16-5-21 (a) (2).

       See Johnson v. State, 245 Ga. App. 761, 762-763 (2) (538 SE2d 850) (2000).

       (Citation and punctuation omitted.) Gafford v. State, 240 Ga. App. 251, 252 (1) (523 SE2d 336) (1999).

       OCGA § 16-8-41 (a).

        Wright v. State, 228 Ga. App. 779, 780 (1) (492 SE2d 680) (1997).

       Id.

       Id.

       Id. at 780-781 (1).

       Compare OCGA § 16-8-40 (a) (felony robbery) — of which Haugland was also convicted — with OCGA § 16-5-44.1 (b) (felony hijacking a motor vehicle).

       223 Ga. App. 424 (477 SE2d 859) (1996) (physical precedent only).

       Id. at 426 (1).

       Id. at 427 (Beasley, C. J., concurring specially).

       (Emphasis supplied.) OCGA § 16-5-44.1 (b).

       Black’s Law Dictionary (7th ed.), p. 1183.

       (Emphasis supplied.) Id. at 1232.

       OCGA § 16-5-21 (a) (2).

       Cf. Luke v. State, 171 Ga. App. 201, 202-203 (2) (318 SE2d 833) (1984) (where force in aggravated assault charge is same force used in robbery charge, the aggravated assault charge merges into the robbery charge).

       OCGA § 16-1-7 (a); Williams v. State, 233 Ga. App. 217, 220 (4) (504 SE2d 53) (1998).

       See Gibson v. State, 243 Ga. App. 610, 614 (3) (533 SE2d 783) (2000).


text:
    A01A2022.
    WILLIAMS et al. v. PARK WALK APARTMENTS, L.P. et al.
    (559 SE2d 169)
   Mikell, Judge.

Marion and Jimmy Williams appeal from the grant of summary judgment to Park Walk Apartments, L.P. d/b/a Park Walk Apartments in this premises liability case. For the reasons set forth below, we affirm.

Our review of the trial court’s grant of summary judgment is de novo. To prevail at summary judgment, the moving party must demonstrate that there is no genuine issue of material fact and that the undisputed facts, viewed in the light most favorable to the non-moving party, warrant judgment as a matter of law. In premises liability cases, the routine issues, i.e., the negligence of the defendant and the plaintiff, and the plaintiff’s lack of ordinary care for her personal safety, are generally not susceptible of summary adjudication, and summary judgment is granted only when the evidence is plain, palpable, and undisputed.

Robinson v. Kroger Co. sets out the elements of a trip and fall case. In order to recover, the plaintiff must prove that (1) the premises owner had actual or constructive knowledge of the hazard; and (2) the plaintiff lacked knowledge of the hazard, despite her exercise of ordinary care, due to actions or conditions within the owner’s control. However, the plaintiff’s evidentiary burden concerning the second prong is not shouldered until the owner establishes that the plaintiff was negligent, that is, she intentionally and unreasonably exposed herself to a hazard of which she knew or, in the exercise of ordinary care, should have known existed.

Having set forth the guidelines, we turn to the salient facts. Viewed most favorably to the plaintiffs, the evidence shows that at 6:30 a.m. on December 15, 1997, Marion Williams exited her apartment and began walking on the sidewalk to the parking lot. Williams deposed that it was very dark outside, and the lighting was dim. She also testified that it had been sleeting that morning, and the ground and sidewalk were icy. As she left the sidewalk to walk across the grass toward her car, Williams stepped on a sprinkler head. Her left foot slipped into a hole adjacent to the sprinkler, and her right leg went straight up. Williams suffered severe injuries to her ankle, requiring two surgeries.

Williams described the hole in the ground as “pretty deep,” deep enough for her size ten-and-a-half shoe to fit in. Moreover, Williams testified that a maintenance worker informed her that he was aware of the hole prior to this incident. Additionally, Williams deposed that although she was aware that the lawn was peppered with sprinklers, this was the first time she had ever attempted to cut across the grass, and she did not see the sprinkler head in question because it was too dark. She also testified that she was proceeding carefully due to the weather conditions and that the landlord had not salted the sidewalk, “something that they usually do.” However, Williams also admitted that she detoured from the sidewalk in order to reach her car as quickly as possible.

Q. So the morning of the accident you didn’t use the sidewalk because you wanted to use the shortcut instead to get to your car?
A. Yeah. If I had had any idea that hole was there, I would have definitely used the sidewalk.

In her affidavit, Williams claims that she elected to step off the sidewalk because it was icy. However, the affidavit contradicts her previous deposition testimony without offering any explanation for the contradiction. Accordingly, Williams’s self-contradictory testimony must be construed against her, and we may not consider her testimony that the reason she chose an alternate route to access the parking lot was because the sidewalk was icy.

Gaydos v. Grupe Real Estate Investors similarly concerned a plaintiff who tripped and fell when she cut across the lawn of her apartment complex to get to the parking lot instead of using the concrete walkway. Because the plaintiff “voluntarily depart[ed] from the route designated and maintained by the owner/occupier for [her] safety and convenience,” we held that any increased risk associated with taking an alternate route imposed upon her a duty to exercise a heightened degree of ordinary care for her own safety. In other words, the plaintiff “assume [d] the risk of those hazards existent in the selected route.” We reached the same conclusion in Farmer v. Wheeler/Kolb Mgmt. Co., a case involving a pedestrian who tripped over a concrete bumper as she was maneuvering between a row of parked cars. Because the plaintiff chose to leave the walkway that the premises owner had provided, we held that she assumed the risk of her injuries. Similarly, in Lowery’s Tavern v. Dudukovich, we held that an invitee who fell into an elevator shaft when he walked into a dark, debris-filled alley instead of using the well-lit, public sidewalk to reach his destination assumed the risk of his injuries.

Decided January 24, 2002.

Joseph M. Todd, for appellants.

Finley & Buckley, Jerald R. Hanks, for appellees.

Williams urges us to follow Brennan v. Freight Room, in which we held that evidence of inadequate illumination raised a question of fact as to whether an alternative safe means of egress was accessible to the plaintiff. Brennan is inapposite, however, because in that case, there was evidence that both routes of access to a restaurant were hazardous, and the plaintiff chose what appeared to be the safest route. There is no such evidence in this case. Williams testified that she cut across the grass for expedience, not safety reasons. She also admitted that she would have stayed on the sidewalk had she known of the hazards awaiting her in the grass. Under the rule set forth in Gaydos, she assumed the risk of her injuries by deviating from the relatively safe path.

This is not a situation in which the plaintiff contends that she was a virtual prisoner in her own apartment. Absent evidence that the route prepared and designated by the landlord for ingress and egress was prohibitively unsafe or inaccessible, allowing liability when the plaintiff takes a shortcut over the grass would require a landlord to ensure that every possible route across his property was safe. This is not required under Georgia law.

Judgment affirmed.

Blackburn, C. J., and Pope, P. J., concur.

        Shepard v. Winn Dixie Stores, 241 Ga. App. 746, 747 (527 SE2d 36) (1999).

        Gunter v. Patterson Bank, 247 Ga. App. 555-556 (544 SE2d 735) (2001).

        Robinson v. Kroger Co., 268 Ga. 735, 748 (2) (b) (493 SE2d 403) (1997).

       Id. at 748-749 (2) (b).

        Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 30 (2) (343 SE2d 680) (1986).

       211 Ga. App. 811 (440 SE2d 545) (1994).

       Id. at 813.

       Id.

       224 Ga. App. 834, 836 (482 SE2d 475) (1997).

       234 Ga. App. 687 (507 SE2d 851) (1998).

       226 Ga. App. 531, 534 (2) (487 SE2d 109) (1997).

       Compare Shansab v. Homart Dev. Co., 205 Ga. App. 448, 451 (4) (422 SE2d 305) (1992), with Hull v. Massachusetts Mut. Life Ins. Co., 142 Ga. App. 269 (235 SE2d 601) (1977), and Phelps v. Consolidated Equities Corp., 133 Ga. App. 189 (210 SE2d 337) (1974).

       See Gaydos v. Grupe Real Estate Investors, supra.


author: MlKELL, Judge.

text:
    A01A2042.
    PETERSEN v. TYSON.
    (559 SE2d 164)
   MlKELL, Judge.

We granted a putative father’s application for interlocutory appeal to determine whether the trial court erred in refusing to hold a temporary hearing to consider awarding him visitation privileges. For the reasons set forth below, we affirm.

Troy Petersen filed a petition to legitimate Holly Tyson’s child, seeking to change the child’s surname, to obtain joint legal custody of the child, to establish visitation rights, and to have child support established according to statutory guidelines. Tyson answered and sought to dismiss Petersen’s request for name change, joint legal custody, and visitation for failure to state a claim upon which relief could be granted. However, Tyson also requested that Petersen be ordered to undergo paternity testing, and she counterclaimed for child support and other expenses, in the event Petersen proved to be the child’s father.

Petersen filed a motion for a temporary hearing on the issue of visitation, citing as authority OCGA § 19-7-46.2. Tyson objected on the ground that the statutes governing legitimation proceedings, OCGA §§ 19-7-22 and 19-7-25, do not authorize the grant of visitation to a putative father over the mother’s objection. After a hearing, the trial court denied Petersen’s motion for a temporary hearing and certified its order for immediate review.

OCGA § 19-7-25 provides that “[o]nly the mother of a child born out of wedlock is entitled to his custody, unless the father legitimates him as provided in Code Section 19-7-22.”

This Court previously has held that “custody issues may be adjudicated in a legitimation proceeding — but only with the consent of the parties. In the absence of the mother’s consent, if the father wishes to petition for a change in physical custody, he must do so in a separate proceeding after the judgment of legitimation is entered.” Palmer v. Pinkston, 228 Ga. App. 514, 515 (2) (492 SE2d 285) (1997). See also Gregg v. Barnes, 203 Ga. App. 549, 550 (1) (417 SE2d 206) (1992) (physical precedent only).

Mezquita v. Campbell, 238 Ga. App. 396, 398 (1) (519 SE2d 27) (1999).

In Flannagan v. Cantrell, 233 Ga. App. 547 (505 SE2d 53) (1998) (physical precedent only), we reversed an order granting temporary custody to the father, holding that absent the mother’s consent, the trial court was not authorized to consider the issue. In Kennedy v. Adams, 218 Ga. App. 120, 121 (1) (460 SE2d 540) (1995) (physical precedent only), we held that the grant of visitation privileged to the noncustodial father was tantamount to a modification of the mother’s custody. By modifying the visitation schedule, the trial court indirectly effected a change in custody. Id. at 123. The Supreme Court reasoned similarly in Atkins v. Zachary, 243 Ga. 453-454 (254 SE2d 837) (1979), that “when one party is granted an increase in visitation rights, the other party’s custodial rights are necessarily affected. They are, in fact, diminished.” The Supreme Court addressed this issue again in Pruitt v. Lindsey, 261 Ga. 540 (407 SE2d 750) (1991): “Under the current legislative scheme, if a father wants to gain the right to custody or visitation, he must take the steps required by OCGA § 19-7-22 to legitimate the child,’ or, more correctly, to legitimate the relationship between himself and the child.” (Emphasis supplied.) Id. at 542 (2).

Decided January 24, 2002.

Spruell, Taylor & Associates, Melinda D. Taylor, for appellant.

Richard L. Moore, for appellee.

It seems clear, therefore, that a trial court has no authority to consider any issues related to custody, including visitation, prior to a final determination of legitimation. In the case at bar, however, by asserting a counterclaim for paternity, Tyson converted the legitimation action into a paternity suit. Holcomb v. Ellis, 259 Ga. 625 (385 SE2d 670) (1989). Clear and convincing evidence of paternity is a prerequisite to the trial court’s authority to consider an award of visitation to the putative father. OCGA §§ 19-7-46.2 (a); 19-7-51. The record in this case contains no such evidence. Accordingly, the trial court did not err in refusing to hold a temporary hearing to consider an award of visitation.

Judgment affirmed.

Blackburn, C. J., and Pope, P. J., concur.