author: Beasley, Presiding Judge.

text:
    A97A0368.
    OGLETREE v. NAVISTAR INTERNATIONAL TRANSPORTATION CORPORATION.
    (511 SE2d 204)
   Beasley, Presiding Judge.

Now in its fifth appearance before this Court, this tortured and protracted litigation arising from a 1984 accident involving a cab and chassis manufactured in 1978 conjures up images of the generations-long odyssey of Jarndyce v. Jarndyce of Bleak House fame: “And thus, through years and years, and lives and lives, everything goes on, constantly beginning over and over again, and nothing ever ends. And we can’t get out of the suit on any terms, for we are made parties to it, and must be parties to it, whether we like it or not.” The law sometimes weaves its garment painstakingly slowly.

Factual Background

Dickens’ lament notwithstanding, we address the task at hand. We recap the facts from Ogletree v. Navistar Intl. Transp. Corp. “On March 10, 1984, Campbell drove his fertilizer spreader truck to Colbert Seed Company to pick up a load of ammonia nitrate. The fertilizer was located in a compartmentalized bulk-transport trailer called a ‘Killebrew’ which required off-loading from the side. The Killebrew was equipped with a hydraulic motor to transfer its contained material to the transport vehicle, which motor could be quite loud.

“The decedent, a salesman for an agricultural supply company, met Campbell at the seed company and rode on the running board of Campbell’s truck to the area where the Killebrews were located. The decedent located the correct Killebrew, told Campbell, and disappeared from Campbell’s view. Campbell pulled up and, aided by his rearview mirrors, began to back around to come up alongside a Killebrew different from the one designated by the decedent. Having turned his back to the approaching vehicle, the decedent was standing at the presenting end of the correct Killebrew; its engine was probably running. Campbell’s view of the decedent being blocked by the fertilizer spreader body, Campbell struck and killed the decedent as Campbell mistakenly backed his truck up to the adjacent Killebrew.

“Defendant Navistar International Transportation Corporation’s corporate predecessor manufactured the cab and chassis of the vehicle in 1978 and sold same to Penske Leasing. At that time, audible back-up alarms were available as optional equipment on the cab and chassis, but Penske did not request such a device, and one was not installed. Penske then had a van body installed on the vehicle, used the truck for some years, and then sold same to a Chevrolet dealership, which in turn sold the truck to Campbell. At Campbell’s request, the dealership removed the van body before delivering it to him. After having a repair facility shorten the chassis and frame rail of the vehicle, Campbell employed Newton Crouch, Inc. to mount a fertilizer spreader body on the chassis. No back-up alarm was added at any time, and the vehicle did not have an alarm when it struck Ogletree. In approximately 20 years of being in the fertilizer business, Campbell had never seen a fertilizer spreader with a back-up alarm, nor had any other witness (expert or otherwise) who testified at trial.”

Procedural Background

Mrs. Ogletree, individually and as administratrix, sued Navistar for product liability, alleging a design defect in Navistar’s failure to install an audible back-up alarm as standard equipment on the original chassis. The court granted summary judgment to Navistar, reasoning that the absence of the back-up alarm was open and obvious.

In Ogletree v. Navistar Intl. Transp. Corp. (“Ogletree I”) we reversed the grant of summary judgment to Navistar, holding the “open and obvious” rule inapplicable because Navistar did not establish that decedent subjectively knew of the immediate hazard or appreciated the danger he was in as the truck backed up. Four months later Weatherby v. Honda Motor Co. overruled Ogletree I, holding that to apply the open and obvious rule the injured party did not need to know subjectively of the danger but only objectively should have known. Weatherby specifically held summary judgment should have been granted to Navistar.

Navistar Intl. Transp. Corp. v. Ogletree (“Ogletree IF) then held that under the law of the case rule, Navistar could not again seek summary judgment based on Weatherby unless the evidentiary posture of the case had changed, which it had not.

A jury awarded Ogletree funeral and medical expenses only, with nothing for the life of the decedent or for pain and suffering. The court denied Ogletree’s motion for new trial, granted Navistar’s j.n.o.v. motion, and did not rule on Navistar’s conditional motion for new trial. Both parties appealed, and in Ogletree v. Navistar Intl. Transp. Corp. (“Ogletree III”) we remanded the matter for a ruling on Navistar’s conditional motion for new trial. The trial court denied that motion.

Ogletree v. Navistar Intl. Transp. Corp. (“Ogletree IV”) held that the evidence at trial was materially different from that submitted on the earlier motion for summary judgment, and therefore the open and obvious rule discussed in Weatherby controlled to require j.n.o.v. in Navistar’s favor.

The Supreme Court reversed in Ogletree v. Navistar Intl. Transp. Corp. (“Ogletree V”), holding that Banks v. ICI Americas had implicitly overruled Weatherby and the “open and obvious” rule followed therein. The Court held that in adopting the risk-utility analysis for determining whether a product was defectively designed, Banks enumerated numerous factors, of which the patency of the defect was but one and was not alone determinative. The matter has now been remanded to us.

1. As we stated in Ogletree IV, “[t]he j.n.o.v. motion set forth three separate and independent grounds: (1) the law of the case rule no longer applied [and thus the Weatherby ruling controlled]; (2) there was no evidence that Navistar was negligent in its design and manufacture of the cab and chassis; and (3) any possible defect in the design was not a proximate cause of the damages sustained.” Because we affirmed on the first ground, we did not reach the second or third ground. Having been reversed on the first ground, we now address the second ground and affirm on that basis.

The question of negligent or defective design need not always be decided by the jury. The burden is on the plaintiff to present evidence that the manufacturer acted negligently, by showing the risks inherent in a product design outweigh the utility or benefit derived from the product. “This risk-utility analysis incorporates the concept of ‘reasonableness,’ i.e., whether the manufacturer acted reasonably in choosing a particular product design, given the probability and seriousness of the risk posed by the design, the usefulness of the product in that condition, and the burden on the manufacturer to take the necessary steps to eliminate the risk.

“ ‘When a jury decides that the risk of harm outweighs the utility of a particular design (that the product is not as safe as it should be), it is saying that in choosing the particular design and cost trade-offs, the manufacturer exposed the consumer to greater risk of danger than he should have. Conceptually and analytically, this approach bespeaks negligence.’ ”

Thus, the general negligence principles discussed in Ogletree I apply. Ogletree I cited OCGA § 51-1-2, which provides that “ordinary diligence is that degree of care which is exercised by ordinarily prudent persons under the same or similar circumstances. . . . The absence of such diligence is termed ordinary negligence.” To obtain summary judgment, Ogletree I held that Navistar had to show “as a matter of law that an ordinarily prudent manufacturer would not install the alarm.” Relevant to the inquiry were “the trade custom and industry practice” and the foreseeability of this harm. Banks pointed out that “a manufacturer’s proof of compliance with industry-wide practices, state of the art, or federal regulations does not eliminate conclusively its liability for its design of allegedly defective products.” Nevertheless, “[t]hat is not to say that evidence of such compliance is not significant, for it is. But, instead of acting as an impenetrable shield from liability, compliance, more appropriately, is to be a piece of the evidentiary puzzle.”

With these principles in mind, we turn to the undisputed evidence. It demonstrates that (a) no fertilizer spreader vehicle has ever had a back-up alarm; (b) no government regulation, industry standard, trade custom, industry practice, nor industry study requires nor recommends a back-up alarm on this vehicle; (c) the industry practice is that original manufacturers do not install back-up alarms as standard equipment on cab and chassis units; (d) the industry practice is also that the body builder or the final stage manufacturer will install back-up alarms where needed or requested by the customer; (e) there was no evidence that a fertilizer spreader had previously injured someone while backing up; (f) the operation of a fertilizer spreader truck rarely involves backing up, for the spreader will not work unless the truck is going forward; (g) the normal operation of a fertilizer spreader is in a rural environment with no people around; (h) a wide variety of bodies could have been placed on the cab and chassis at issue, some of which would have no need for a back-up alarm and some of which require that alarms be placed on the truck body, not the chassis; (i) at the time Navistar sold the cab and chassis to Penske, Navistar offered a back-up alarm option, which Penske chose not to accept; and (j) the absence of a back-up alarm was apparent to the decedent and to the public at large. Under such undisputed evidence, Navistar was not negligent in failing to install a back-up alarm on a cab and chassis that years later were substantially modified and used for a fertilizer spreader vehicle.

2. Beyond this application of general negligence principles, the ostensibly universal factors listed in footnote six of Banks negate any possible finding of defective design. We address each applicable factor.

(a) The cab and chassis without the alarm were highly serviceable and could be used for a variety of truck vehicles that did not need the alarm.

(b) The danger was easily avoidable in that the owner could have accepted the option of installing an alarm, and the owner and the decedent, who had assisted in back-up maneuvers, were both familiar with the truck’s patent lack of an alarm and aware of the dangers.

(c) The owner had the ability to avoid the danger by choosing to have the alarm installed, and the decedent could have avoided the danger by not turning his back on the vehicle as it was about to back up.

(d) The state of the art at the time the vehicle was manufactured was that manufacturers offered the back-up alarms as an option but did not place one on the cab and chassis as standard equipment because the cab and chassis could be used for purposes where such was not indicated; the final stage manufacturer was in the best position to determine the need for and placement of the alarm.

(e) The ability to eliminate the danger without impairing the usefulness of the product was limited, for the installation of an alarm on vehicles operating in the early morning hours in residential areas caused complaints and were sometimes disconnected. In addition, if the chassis had to be shortened or modified, as was commonly done and as was done here, the alarm would have to be removed or relocated. The alarm’s price of $25 to $50 plus installation could be put in the cab and chassis’ price but would appear to be an impractical waste of resources until the final design of the vehicle was determined. Here the cab and chassis were in fact used for varying purposes depending on the successive owners’ needs.

(f) Navistar complied completely with industry-wide practices, state of the art, and federal regulations.

(g) The alternative design of requiring an alarm on all cab/chassis units was feasible but highly questionable until the customer decided the use of the cab and chassis and had them modified and a body attached. It was the nature of the body that determined the need for an alarm. The installation of an alarm by the body builder after the modifications was the sensible industry practice.

(h) The multi-purpose use of the cab and chassis dictated the later installation if needed.

(i) The length of time the cab and chassis could be used without harm was demonstrated here where they were manufactured in 1978, went through multiple uses and modifications, and the accident did not occur until 1984, which was the first time an accident of a fertilizer spreader backing into a person had been recorded.

In view of these undisputed facts, Ogletree failed to present evidence that would support a finding that the risk of the cab and chassis without the alarm outweighed the usefulness of the product in that condition.

All jurisdictions but one are consistent. The seminal case of Verge v. Ford Motor Co. held “it is considerably more practical for warning devices to be installed by [the final stage manufacturer] rather than by [the cab-chassis manufacturer]. It is essential to recognize that . . . the Ford cab and chassis was a multi-purpose vehicle. As such, the topless chassis could be modified for a number of uses that would require no backup buzzer. Thus, if a flat bed were added that allowed unobstructed rear vision, it is difficult to conceive of a legal basis for finding that the absence of a warning device would constitute a design defect. Similarly, if a body were added that was lower than the rear view window or if a body were added that otherwise allowed adequate rear vision, there would be no basis for finding that a design defect was present because of the failure to incorporate a backup buzzer. Thus, we are dealing with a vehicle that was not inherently defective when manufactured, but that became defective solely because of additions made by a company with decades of experience in accomplishing just this type of modification.” Verge held the defendant was entitled to j.n.o.v. For similar reasons, at least eight other cases involving the absence of back-up alarms have ruled in favor of cab/chassis manufacturers as a matter of law. Two of these cases also found significant that, as here, the cab manufacturer offered the back-up alarm as an option, which the buyer declined.

Cases from other jurisdictions employing the risk/utility analysis have often found that a manufacturer who offers the missing safety device as an option, which the buyer rejected, cannot be held liable for design defect, if the product alone was not inherently dangerous. The same is true for cases relying on common law principles of negligence.

Decided January 26, 1999

Winburn, Lewis & Barrow, Gene Mac Winburn, John J. Barrow, for appellant.

Nelson, Mullins, Riley & Scarborough, Richard B. North, Jr., Jeffrey S. Burton, Tara R. Simkins, for appellee.

Based on this second ground, the court did not err in granting j.n.o.v. As in Ogletree IV, this moots all other enumerations of error. Perhaps the saga, unfortunate for all parties, is at an end.

Judgment affirmed.

McMurray, P. J., and Smith, J., concur.

       Charles Dickens, Bleak House 146 (Penguin 1971).

       227 Ga. App. 11-12 (488 SE2d 97) (1997).

       194 Ga. App. 41, 44-45 (1) (390 SE2d 61) (1989).

       195 Ga. App. 169 (393 SE2d 64) (1990), overruled, Ogletree v. Navistar Intl. Transp. Corp., 269 Ga. 443 (500 SE2d 570) (1998).

       Id. at 172.

       199 Ga. App. 699 (405 SE2d 884) (1991).

       221 Ga. App. 363 (471 SE2d 287) (1996).

       227 Ga. App. 11, supra.

       269 Ga. 443, supra.

       264 Ga. 732 (450 SE2d 671) (1994).

        See Bodymasters Sports Indus. v. Wimberley, 232 Ga. App. 170 (501 SE2d 556) (1998).

       227 Ga. App. at 14.

       (Citation omitted.) Banks, supra, 264 Ga. at 734.

       194 Ga. App. at 46.

       Id. at 48.

       Id. at 48-49.

       264 Ga. at 737, fa. 6.

        Doyle v. Volkswagenwerk Aktiengesellschaft, 267 Ga. 574, 577 (481 SE2d 518) (1997).

       See Verge v. Ford Motor Co., 581 F2d 384, 388 (3) (3rd Cir. 1978).

       264 Ga. at 736-737, fn. 6.

       Supra, 581 F2d at 388-389.

        See Pietluck v. Danella Cos., 1993 WL 57194 (U.S.D.C. E.D. Pa. 1993) (summary judgment); Shaw v. Gen. Motors Corp., 727 P2d 387 (Colo. App. 1986) (summary judgment); Ford v. Intl. Harvester Co., 430 S2d 912 (Fla. Dist. Ct. App. 1983) (directed verdict); Scarangello v. Thomas Built Buses,__NYS2d__, 1998 WL 250348 (App. Div. May 11, 1998) (motion in limine); Patane v. Thompson & Johnson Equip. Co., 649 NYS2d 547 (App. Div. 1996) (summary judgment); Gray v. Navistar Intl. Corp., 630 NYS2d 596 (App. Div. 1995) (summary judgment); Paul v. Ford Motor Co., 607 NYS2d 90 (App. Div. 1994) (summary judgment); Elliott v. Century Chevrolet Co., 597 SW2d 563 (Tex. App. 1980) (summary judgment); cf. Kochin v. Eaton, 1993 WL 44816 (U.S. Ct. App. 7th Cir. 1993) (unpublished decision; jury verdict for manufacturer); Field v. Omaha Standard, 582 FSupp. 323, 326-327 (E.D. Pa. 1983) (“cab-chassis by itself was nothing more than a component of the finished product”; jury verdict for manufacturer), aff’d, 732 F2d 145 (3rd Cir. 1984); Tirrell v. Navistar Intl., 591 A2d 643 (N.J. Super. Ct. App. Div. 1991) (jury verdict in favor of cab manufacturer). See generally Restatement (Third) of Torts: Product Liability, § 5, Comment d (1997) (“The chassis of a truck can be put to a variety of different uses. A truck chassis may ultimately be used with a cement mixer or a garbage compaction unit or in a flat-bed truck.... A seller ordinarily is not liable for failing to incorporate a safety feature that is peculiar to the specific adaptation for which another utilizes the incomplete product. A safety feature important for one adaptation may be wholly unnecessary or inappropriate for a different adaptation”). But see Childers v. Joseph, 842 F2d 689, 697 (3rd Cir. 1988) (question of lack of back-up alarm should have been submitted to jury); Fernandez v. Ford Motor Co., 879 P2d 101, 113 (N.M. App. 1994) (jury question; distinguishes Verge on grounds trailer was not permanently attached to tractor chassis and thus Ford was considered final manufacturer).

        Scarangello, supra; Patane, supra.

       See Scallan v. Duriron Co., 11 F3d 1249,1254 (5th Cir. 1994) (the purchaser “was in a much better position than [the manufacturer] to evaluate the various warning devices”); Pahuta v. Massey-Ferguson, Inc., 942 FSupp. 161, 166 (W.D. N.Y. 1996) (“where an inherently safe product is subject to widely varied applications that may increase its danger, the duty to use reasonable care in selecting optional equipment appropriate to the intended use should rest with the purchaser”); Scoby v. Vulcan-Hart Corp., 569 NE2d 1147 (111. App. 1991); Cooper v. Gen. Motors Corp., 702 S2d 428, 444 (Miss. 1997) (“[p]ut simply, if the Coopers wanted a car with an air bag, they should have purchased a car with an air bag. If you want it, then pay for it”); Pigliavento v. Tyler Equip. Corp., 669 NYS2d 747 (App. Div. 1998); Jackson v. Bomag GmbH, 638 NYS2d 819, 823 (App. Div. 1996) (“Bomag fulfilled its duty of reasonable care when it designed the product with the ... safety option and thereafter made such option available to the consumer, who was in the better position to assess its need in light of the use for which it was purchased”); Fallon v. Clifford B. Hannay & Son, Inc., 550 NYS2d 135, 138 (App. Div. 1989) (because purchasers were in better position to assess need for safety device, “defendant’s proof supported the conclusion that the reel alone was reasonably safe and that defendant satisfied its duty not to market a defective product by giving purchasers the option to buy its reel with or without the [device]”). But see Cremeans v. Intl. Harvester Co., 452 NE2d 1281 (Ohio 1983) (summary judgment reversed even though manufacturer offered safety device as option); Heliciod Gage Div. &c. v. Howell,
        511 SW2d 573 (Tex. App. 1974) (jury verdict against manufacturer sustained). Compare Bilotta v. Kelley Co., 346 NW2d 616, 624 (Minn. 1984) (product was not multi-use; offering safety option did not excuse manufacturer) and Hopper v. Crown, 646 S2d 933, 945 (La. App. 1994) (summary judgment reversed where safety device not offered as option).

       See Morrison v. Kubota Tractor Corp., 891 SW2d 422, 428 (Mo. App. 1994) (manufacturer fulfilled duty when it offered device as option); Biss v. Tenneco, Inc., 409 NYS2d 874, 876 (App. Div. 1978) (“defendants had fulfilled their duty to exercise reasonable skill and care in designing the product as a matter of law when they advised the purchaser that an appropriate safety structure for the [product] was available”).


source: Caselaw Access Project

author: Johnson, Chief Judge.

license: Public Domain

text:
    A97A0469.
    DAWSON et al. v. FULTON-DeKALB HOSPITAL AUTHORITY.
    (511 SE2d 199)
   Johnson, Chief Judge.

1. The Supreme Court granted two certioraris from our single opinion in this case. In the first appeal, Fulton-DeKalb Hosp. Auth. v. Dawson, 270 Ga. 376 (509 SE2d 28) (1998), the Supreme Court reversed our decision as to Fulton-DeKalb Hospital Authority. In the second appeal, Ga. Med. Care Foundation v. Dawson, Case No. S97G1956, the Supreme Court affirmed our decision as to Georgia Medical Care Foundation. We hereby vacate Dawson v. Fulton DeKalb Hospital Auth., 227 Ga. App. 715 (490 SE2d 142) (1997), and the judgment of the Supreme Court is made the judgment of this Court.

2. In Dawson’s initial appeal to this Court, she contended the trial court erred in granting summary judgment to the Georgia Medical Care Foundation and Dr. White; in admitting evidence at trial tending to show she was negligent in caring for her son; and in denying her motion for new trial, made on the ground the verdict was inadequate. Our initial opinion addressed her first two enumerations of error, then stated, “[b]ecause the evidentiary issue is dispositive, we need not reach Dawson’s allegation the trial court erred in failing to set aside the verdict as inadequate.” Dawson, 227 Ga. App. at 722 (2). Based on the Supreme Court’s opinion, which reversed our decision regarding the evidentiary issue, we now need to address the merits of Dawson’s claim regarding her motion for new trial.

We note at the outset that although the trial court ruled on Dawson’s motion for new trial prior to our Supreme Court’s recent decision in Robinson v. Star Gas of Hawkinsville, 269 Ga. 102 (498 SE2d 524) (1998), concerning grants of new trials based on inadequacy of the verdicts in comparative negligence cases, “appellate courts must apply the law as it exists at the time of the appellate court’s judgment, even though doing so might change the judgment of the trial court which was correct at the time it was rendered. [Cit.]” Sharfuddin v. Drug Emporium, 230 Ga. App. 679 (1) (498 SE2d 748) (1998). Since we have not yet ruled on the merits of Dawson’s allegation regarding her motion for new trial, Robinson applies to the present case.

The record shows that the trial court believed the verdict was inadequate, yet denied Dawson’s motion for new trial. According to the trial judge, “I think this verdict is inadequate. I think it’s very inadequate, but when you talk about comparative negligence, that’s where my problem comes.” In her order on the motion for new trial, the trial judge stated as follows: “This case appears to be one in which the jury verdict was inadequate.” The trial judge further noted in a footnote that she personally disagreed that the jury’s verdict should represent the value of the life of the child. However, the trial judge denied Dawson’s motion for new trial, citing Kirkland v. Williams, 172 Ga. App. 595 (323 SE2d 891) (1984). Kirkland, which was effectively overruled by Robinson, held that when a case involved comparative negligence, the verdict of the jury could not be set aside on the ground that the amount of the damages awarded was inadequate. Id. at 596 (2).

Robinson makes it clear that a jury verdict in a comparative negligence case may be reviewed by the trial court and that a new trial may be awarded under OCGA § 51-12-12 (b) “[i]f the jury’s award of damages is clearly so inadequate or so excessive as to any party as to be inconsistent with the preponderance of the evidence.” The trial court did not have the opportunity to rule on Dawson’s motion for new trial under this standard, and we cannot ascertain from the trial court’s order whether its decision was colored by the old comparative negligence case rule delineated in Kirkland. Accordingly, since the trial judge attended the trial and heard all the evidence, we believe it is prudent to let the trial judge reconsider her ruling on Dawson’s motion for new trial in light of Robinson. We therefore remand this case for the trial court to reconsider whether the jury’s verdict was inadequate under the new standard announced in Robinson.

Decided January 26, 1999.

Toliver & Gainer, Alvin L. Toliver, Joseph H. King, Jr., James A. Shea, Jr., for appellants.

Alston & Bird, James C. Grant, Robert D. McCallum, Jr., Candace N. Smith, for appellee.

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

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


author: McMurray, Presiding Judge.

text:
    A98A1723.
    WYNN v. THE STATE.
    (511 SE2d 201)
   McMurray, Presiding Judge.

Defendant Wynn appeals his convictions of two counts of felony obstruction of a law enforcement officer and one count of giving a false name to a law enforcement officer. Held:

1. Defendant’s first enumeration of error maintains that the trial court erred in refusing to include a requested charge on simple battery in its instructions to the jury. This contention is based upon the hypothesis that simple battery is a lesser included offense of felony obstruction as charged by the indictment. However, this Court has previously held that simple battery is not a lesser included offense of felony obstruction and that there is no error in refusing to include the requested charge. Pearson v. State, 224 Ga. App. 467 (1) (480 SE2d 911).

2. The next enumeration of error challenges the sufficiency of the evidence to authorize defendant’s convictions under the standard provided by Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). However, we find that the evidence presented at trial was sufficient to authorize a rational trier of fact to conclude that defendant was guilty beyond a reasonable doubt of the crimes of which he was convicted.

The evidence construed in the light most favorable to sustaining the verdict of the jury shows that two plainclothes police officers were searching for a fugitive other than defendant when they came upon a car parked on a dead-end street. Defendant was seated in the car which was surrounded by six or seven teenagers. The location being a high crime area known for drug sales, the officers decided to investigate. As the officers’ car turned around in order that they might approach the parked vehicle, the parking lights on that vehicle were turned on and some of the surrounding teenagers were observed getting into the parked car. Upon approaching the parked car the officers saw an open container of alcohol, a can of beer on the console next to defendant who was seated in the driver’s seat. The officers identified themselves as police officers and asked defendant to step out of the vehicle. When asked his name, defendant replied that he was “Mark Grimes.” In response to further questions from the officers, defendant stated that he had no identification or driver’s license on his person and consented to being patted down. During the pat down a wallet was discovered in defendant’s pocket and defendant consented to the officers removing the wallet and looking in it. The wallet contained a state issued identification card containing defendant’s photograph and true name. When asked about the identification card defendant responded that the wallet was his brother’s. As one of the officers turned to walk to the radio in order to request a computer check on the identification card, defendant fled and after a short chase was caught by the officers. In the course of an ensuing struggle to gain physical custody of defendant, he struck one of the officers with his elbow and another officer in the chest area.

An element of each of the crimes of which defendant was convicted is that the police officer involved be in the lawful discharge of his official duties. “OCGA § 16-10-25 makes it unlawful for any person to give a false name, address, or date of birth ‘to a law enforcement officer in the lawful discharge of his official duties. . . .’ This prohibition against deceitful obstruction of an officer is analogous to OCGA § 16-10-24 (b)’s prohibition against violent obstruction of an officer because both OCGA §§ 16-10-24 (b) and 16-10-25 make it ‘essential that the State prove beyond a reasonable doubt that the obstruction was knowing and wilfiil, and that it occurred while the officer was “in the lawful discharge of his official duties.” OCGA § 16-10-24 (b). See Hall v. State, 201 Ga. App. 328 (411 SE2d 274); Powell v. State, 192 Ga. App. 688 (3) (385 SE2d 772); Kight v. State, 181 Ga. App. 874 (1) (354 SE2d 202); Carr v. State, 176 Ga. App. 113 (1) (335 SE2d 622). “(A) police officer is not discharging his lawful duty when he arrests an individual without reasonable or probable cause.” Brown v. State, 163 Ga. App. 209, 212 (294 SE2d 305).’ (Emphasis omitted.) Wagner v. State, 206 Ga. App. 180, 182 (424 SE2d 861). Further, an officer is not within the lawful discharge of his official duties when he approaches and questions an individual without specific, articulable facts sufficient to give rise to a reasonable suspicion of criminal conduct. Id. at 181-183. Where circumstances do not provide an officer with articulable suspicion (less than probable cause, but greater than mere caprice) that the law has been or is about to be violated, the officer’s act of detaining and questioning an individual is nothing more than a police-citizen encounter outside the scope of the officer’s ‘official’ police duties. See Brooks v. State, 144 Ga. App. 97, 98 (1) (240 SE2d 593).” Holt v. State, 227 Ga. App. 46, 48 (487 SE2d 629).

Nonetheless, the present case may be factually distinguished from Holt since, contrary to defendant’s argument, the officers in the case sub judice did not lack articulable suspicion that a violation of the law had occurred. Indeed, the facts available to the officers upon their initial approach of defendant and discovery of the open container of beer resting in plain view provided information, satisfying a probable cause standard, that defendant was in violation of Georgia’s open container law. See OCGA § 40-6-253 (b) which provides in relevant part that “(n)o person shall possess an open container of any alcoholic beverage while operating a vehicle in this state.” (Emphasis supplied.) As discussed in Miller v. State, 202 Ga. App. 414 (414 SE2d 326), the term “operating a vehicle” includes being in actual physical control of the vehicle regardless of whether the vehicle is driven. While defendant was not seen driving the vehicle, the totality of the circumstances, including the location of the car and defendant’s position in the car, indicate that defendant was in actual physical control of the vehicle and in possession of an open container of an alcoholic beverage.

It follows that there was sufficient evidence that the officers’ act of questioning defendant was more than a consensual inquiry and was within the scope of the officers’ official duties so that a jury could reasonably determine that defendant’s use of a false name was a violation of OCGA § 16-10-25. Furthermore, the jury was authorized to conclude that the lawful discharge of official duties element of felony obstruction had been proven beyond a reasonable doubt.

Defendant’s alternative argument in support of this enumeration of error, that there was not sufficient proof that he offered to do violence to the police officers, also lacks merit. This argument is predicated primarily upon the incorrect premise which we have already rejected that the officers were engaged in an unlawful seizure of defendant.

Furthermore, we note that even if the effort of defendant was to get away, and not to stand and fight, this was no defense to the felony obstruction charge. “The offense of obstruction requires the specific intent to hinder law enforcement, and if there exists any threat or act of violence against the officer, then the offense is felony obstruction, even though the threat of violence or the act of violence would be a misdemeanor against anyone else.” Pearson v. State, 224 Ga. App. 467 (1), 468, supra. The State’s evidence showing that each of the officers was struck by defendant in the course of his attempt to resist custody, the jury was authorized to conclude that there was proof beyond a reasonable doubt of the violence element of felony obstruction.

3. Defendant enumerates as error the trial court’s charge on circumstantial evidence. Defendant argues that the charge is incorrect and that in the absence of a request it would have been error to have given a correct charge on this inapplicable rule of evidence.

We find that defendant is incorrect on both points. The trial court charged that “to warrant a conviction on circumstantial evidence alone, the proven facts must not only be consistent with the theory of guilt, but must exclude every other reasonable theory other than the guilt of the accused.” Defendant’s contention that the addition of the word “alone” constitutes a significant departure from the words of OCGA § 24-4-6 appears to be inconsistent with the holding of our Supreme Court in Lowe v. State, 267 Ga. 180, 181 (3) (476 SE2d 583), where a charge containing the same addition of “alone” is held to be the functional equivalent of the rule stated in OCGA § 24-4-6 based on reasoning that the trial court need not track the exact language of a statute in order to properly instruct a jury on the principle contained therein.

Furthermore, “it is well settled in Georgia law that absent extraordinary circumstances not obtaining in the instant case, it is not harmful error to give a jury instruction on circumstantial evidence even if none is actually present in the case, inasmuch as such an instruction would ‘ “g(i)ve (the defendant) a rule more favorable than he could claim.” ’ Latimer v. State, 188 Ga. 775, 777 (4 SE2d 631) (1939), quoting Smith v. State, 140 Ga. 791 (79 SE 1127) (1913); Nestor v. State, 122 Ga. App. 290, 291 (176 SE2d 637) (1970).” Barnes v. State, 171 Ga. App. 478, 483 (4) (320 SE2d 597). This enumeration of error lacks merit.

4. Next, defendant maintains that the trial court improperly injected punishment issues into the guilt-innocence phase of the trial by using the terms “felony” and “misdemeanor” in instructions to the jury which distinguished the obstruction offense charged in two counts of the indictment, OCGA § 16-10-24 (b), from the lesser included offense contained in OCGA § 16-10-24 (a). However, the trial court made no reference to the possible sentence for either offense. And, the issue thus posed by defendant was decided adversely to him in Fletcher v. State, 197 Ga. App. 112, 113 (3) (397 SE2d 605).

5. In the final enumeration of error, defendant maintains that the trial court erred by the use of written verdict forms rather than permitting the jury to choose the form of their verdict. Nonetheless, defense counsel was asked to examine the verdict form and state any objections. Defense counsel stated that defendant had no objections, and this failure to preserve the issue now argued must be viewed as a waiver. Wilkes v. State, 210 Ga. App. 898, 899 (2) (437 SE2d 837).

Decided January 26, 1999.

Lloyd J. Matthews, for appellant.

Tommy K. Floyd, District Attorney, Mark S. Daniel, Assistant District Attorney, for appellee.

Judgment affirmed.

Eldridge, J., and Senior Appellate Judge Harold R. Banke concur.


author: Barnes, Judge.

text:
    A98A2332.
    WILLIAMS v. THE STATE.
    (511 SE2d 216)
   Barnes, Judge.

Following his indictment for possession of cocaine with intent to distribute, Antonio Williams moved to suppress evidence of the cocaine found in the trunk of his car. After his motion to suppress was denied, Williams stipulated to the remainder of the evidence and the trial court convicted him of the lesser included offense of possession of cocaine. Williams appeals the judgment of conviction and sentence, contending that the trial court erred in denying his motion to suppress because the police were not authorized to stop him and search his trunk. We affirm.

In reviewing a motion to suppress, “[t]he evidence is construed most favorably to uphold the findings and judgment, and the trial court’s findings on disputed facts and credibility are adopted unless they are clearly erroneous. Further, since the trial court sits as the trier of fact, its findings are analogous to a jury verdict and will not be disturbed if there is any evidence to support them.” (Citations omitted.) Morgan v. State, 195 Ga. App. 732, 735 (3) (394 SE2d 639) (1990).

The evidence presented at the hearing on the motion to suppress showed that while DeKalb County Police Officer Sylvester Simmons was on routine patrol, he received a radio report that a yellow Pontiac had been seen in the same dead-end cul-de-sac where an armed robbery had occurred one week earlier. At the time of that robbery, a “Be on the Lookout” (“BOLO”) had been issued for a yellow car, older model, possibly a Pontiac, occupied by two men who were armed with a semi-automatic handgun and a sawed-off shotgun.

Officer Simmons drove to the reported location of the yellow Pontiac, which was being driven by Williams, and followed it for a little over a mile. When Williams changed lanes without using a turn signal, Simmons decided to stop him because he had made an “improper lane change.”

Because the BOLO involved an armed robbery, Simmons did not signal Williams to pull over until another marked police car pulled behind him. Just before he stopped Williams, Simmons noticed that the Pontiac’s trunk was bouncing up and down. According to Simmons, “We was a little bit nervous, so I advised the other two cars the trunk was going up and down. We didn’t know if someone was in the car or if it was just broken.”

After Williams was stopped, Simmons was the first officer to approach the Pontiac. As he walked past the trunk, he “put his hand on the trunk just in case someone was in there, where the trunk don’t pop up on me.” The trunk did not lock shut after Simmons touched it.

While Simmons was asking Williams for his license and proof of insurance, Officer K. C. McCarthy walked up to the rear of the Pontiac and noticed that the trunk was moving up and down approximately one or two inches even though the car was no longer moving. McCarthy then opened the trunk “[flor safety reasons. Basically, I thought there would be somebody inside the trunk, the way it was moving but not rising completely open.” After he opened the trunk, McCarthy did not find anyone in the trunk, but he did see a sawed-off shotgun lying in plain view. He then advised Officer Simmons that a gun was in the trunk.

When he learned that a gun had been found in the trunk, Simmons asked Williams if the officers “could take a look at it” and Williams said, “Sure, go ahead.” Williams and Simmons then walked to the rear of the automobile and Simmons saw the shotgun lying in.the trunk in plain view. After Officer McCarthy removed the gun from the trunk, Simmons wrote down its serial number and asked Williams to sit in his patrol car while he checked the serial number of the gun. Simmons did not consider Williams to be under arrest at that time and told him that he was not under arrest.

While Officer Simmons checked the serial number of the gun, Officer McCarthy remained by the trunk of the Pontiac and Officer McWhorter joined him. McWhorter testified that the Pontiac’s trunk was already open when he walked up and that when he looked inside the trunk he saw a clear plastic bag containing “off-white chunks of material” lying in plain view on the left side of the trunk. This bag was removed from the trunk and the off-white chunks tested positive for cocaine.

During the motion to suppress hearing, Officers Simmons and McCarthy acknowledged that they did not see the gun in the trunk until McCarthy opened the trunk. They also testified that they never saw the plastic bag containing the off-white chunks until after it was discovered by McWhorter. The trial court denied Williams’ motion to suppress, finding that the officers had the right to open the unlocked trunk in order “to assure themselves that they are not going to be attacked or surprised from behind.”

1. In his first enumeration, Williams contends the trial court should have granted his motion to suppress because the police were not authorized to stop him based upon his failure to use a turn signal. Relying upon Bowers v. State, 221 Ga. App. 886 (473 SE2d 201) (1996) (physical precedent only), Jones v. State, 214 Ga. App. 593 (448 SE2d 496) (1994), and Clark v. State, 208 Ga. App. 896 (432 SE2d 220) (1993) (physical precedent only), Williams asserts that his failure to signal before changing lanes was not a traffic offense because the record is silent about the presence of other vehicles on the road at the time he changed lanes.

In each of the cases relied upon by Williams, this Court held that a driver was not required to signal an intent to change lanes or turn when the record affirmatively showed there were no other vehicles in the area based upon the following language in OCGA § 40-6-123: “No person shall . . . change lanes or move right or left upon a roadway unless and until such movement can be made with reasonable safety. ... A signal of intention to turn right or left or change lanes when required shall be given continuously for a time sufficient to alert the driver of a vehicle proceeding from the rear in the same direction or a driver of a vehicle approaching from the opposite direction.” (Emphasis omitted.) Bowers, 221 Ga. App. at 887-888; Jones, 214 Ga. App. at 594; Clark, 208 Ga. App. at 897-899.

In Daniels v. State, 222 Ga. App. 29 (473 SE2d 239) (1996), this Court, in a whole court decision, distinguished Clark and Jones and affirmed the trial court’s denial of a motion to suppress based on facts similar to those before us now. As in this case, the police officer who stopped the defendant testified that the defendant made an “improper” turn because he failed to signal. Since there was no evidence in the record refuting the officer’s testimony that the turn was improper, this Court found the trial court’s decision to deny the motion to suppress was supported by the record. 222 Ga. App. at 31-32.

Officer Simmons’ testimony in this case that Williams made an improper lane change is also undisputed. As a result, we find that the record supports the trial court’s conclusion that the police were authorized to stop Williams. Id.

Decided January 26, 1999.

Teddy R. Price, for appellant.

2. In his second enumeration of error, Williams contends the trial court should have granted his motion to suppress because there was no probable cause or exigent circumstances justifying Officer McCarthy’s decision to open the trunk.

Terry v. Ohio, 392 U. S. 1, 16-20 (88 SC 1868, 20 LE2d 889) (1968) and Adams v. Williams, 407 U. S. 143 (92 SC 1921, 32 LE2d 612) (1972) “together establish that in appropriate circumstances the Fourth Amendment allows a properly limited ‘search’ or ‘seizure’ on facts that do not constitute probable cause to arrest or to search for contraband or evidence of crime.” United States v. Brignoni-Ponce, 422 U. S. 873, 881 (95 SC 2574, 45 LE2d 607) (1975). For example, “a reasonable search for weapons for the protection of the police officer [is permitted] where he has reason to believe he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual for a crime. The officer need not be absolutely certain that the individual is armed; the issue is whether a reasonably prudent man in the circumstances would be warranted in the belief that his safety or that of others was in danger.” Terry, 392 U. S. at 27. Likewise, police officers who are lawfully present in a home may conduct a protective sweep of the home “to insure that no one [is] in the home who might pose a security risk to the officers” if the officers have a reasonable belief there may be other occupants in the home who might cause them harm. State v. Scott, 176 Ga. App. 887, 889 (2) (339 SE2d 276) (1985). See also Lentile v. State, 136 Ga. App. 611, 613 (1) (222 SE2d 86) (1975).

Based on this authority, we find that Officer McCarthy was authorized to open the trunk to insure that no one was in the trunk who might pose a threat to the safety of the officers. The Pontiac matched an armed robbery BOLO and its unlocked trunk was moving after the Pontiac had stopped. Since the protective measures taken by Officer McCarthy were reasonable under the circumstances, the trial court did not err when it denied Williams’ motion to suppress. See Chaney v. State, 207 Ga. App. 72, 73 (427 SE2d 63) (1993).

Judgment affirmed.

Johnson, C. J., and Smith, J., concur.

J. Tom Morgan, District Attorney, Barbara B. Conroy, Jeanne M. Canavan, Assistant District Attorneys, for appellee.

       It cannot be determined from the record whether Simmons was directly behind Williams at the time he changed lanes without signaling. Simmons testified that he maintained a distance of approximately four to five car lengths while following Williams. However, Williams made the lane change after he turned onto another street and had traveled approximately 20 to 35 yards. There was no testimony as to whether Simmons had also turned onto this street at the time Williams changed lanes.

       McCarthy did not see Simmons place his hand on the trunk.

       Williams does not dispute the officers’ right to seize the cocaine which was lying in plain view after the trunk was opened.


author: Eldridge, Judge.

text:
    A99A0264.
    THE STATE v. REDDY.
    (511 SE2d 530)
   Eldridge, Judge.

On March 22, 1998, at approximately 1:00 a.m., Officer Treese of the Emory University Police Department was on patrol on Fraternity Row on the Emory University campus. Near the intersection of Fraternity Row and Asbury Circle, Officer Treese pulled behind a Toyota Land Cruiser driven by the defendant, Suraj Reddy. The intersection is a three-way stop with signs in all three directions. From Fraternity Row, all vehicles must turn either left or right. Vehicles cannot proceed straight ahead at this intersection.

Officer Treese stopped approximately five to seven feet behind the defendant’s vehicle so that the turn signals were plainly visible. Defendant, after stopping, made a left turn without signaling, either by hand or by using the car’s turn signal. Because of the failure to signal, Officer Treese stopped the defendant three-tenths of a mile from the intersection, where it was a safe location for a traffic stop.

After stopping defendant and asking for his license, Officer Treese noticed the odor of alcohol on the defendant. The defendant was asked to step out of the vehicle so that Officer Treese could determine the origin of the odor of alcohol, either the defendant or his passenger. The odor remained strong on the defendant. Initially, defendant denied any alcohol consumption, but later admitted to one beer. Upon examining the defendant’s license, Officer Treese determined that the defendant was under the age of 21.

The defendant consented to submit to field sobriety tests. Defendant admitted that he would probably fail the tests. Defendant, in fact, performed poorly on the field sobriety tests. Officer Treese placed the defendant under arrest for driving under the influence of alcohol to the extent that he was a less safe driver. However, Officer Treese suspected that the defendant was over the legal limit of .02 blood alcohol for drivers who are under the age of 21. Officer Treese gave the defendant the appropriate implied consent warnings, and defendant submitted to a state-administered breath test, which yielded a blood alcohol concentration of .051 grams.

On May 11, 1998, defendant was charged in the State Court of DeKalb County with (1) driving under the influence of alcohol — less safe; (2) driving with an unlawful alcohol concentration for his age; (3) misrepresentation of age for the purpose of obtaining alcohol; and (4) use of false identification for purpose of obtaining alcohol. Defense counsel filed a motion to suppress all evidence gathered and alleged that the police failed to have a reasonable articulable suspicion to stop defendant’s vehicle.

On August 4, 1998, after hearing evidence and argument, the trial court granted the motion to suppress. “In this case, there was no way that anybody could pull up beside him. There was no way anybody was coming from any other directions. There was no one who was endangered in this particular circumstance, and that’s when it’s required — whenever there’s a possibility that someone will be endangered by the failure to give the signal.” The State appealed.

1. The State’s first enumeration of error is that the trial court erred in suppressing the evidence from the stop of the defendant on the grounds that it was a pretextual stop. We agree that the trial court erred.

Officer Treese stopped the defendant for violating OCGA § 40-6-123, which states that “(a) [n]o person shall turn a vehicle at an intersection unless the vehicle is in proper position upon the roadway as required in Code Section 40-6-120 . . . unless and until such movement can be made with reasonable safety. No person shall so turn any vehicle without giving an appropriate and timely signal in the manner provided in this Code section, (b) A signal of intention to turn right or left. . . when required shall be given continuously for a time sufficient to alert the driver of a vehicle proceeding from the rear in the same direction or a driver of a vehicle approaching from the opposite direction.” (Emphasis supplied.) Officer Treese was in the vehicle immediately to the rear of defendant’s vehicle for whose reasonable safety the General Assembly expressly mandated the turn signal, although there were no vehicles to defendant’s left or right. Defendant, in the immediate presence of Officer Treese, violated this traffic law, giving probable cause to stop the defendant.

(a) In Clark v. State, 208 Ga. App. 896, 897 (432 SE2d 220) (1993), defendant was observed at night changing lanes in order to use an exit ramp 300 feet ahead of the police car without signaling the lane change when there were no other vehicles nearby whose reasonable safety would be affected. This was deemed a pretextual stop by this Court and was “a constitutionally impermissible search.” Likewise, in Bowers v. State, 221 Ga. App. 886 (473 SE2d 201) (1996), the police vehicle was 100 yards behind the defendant on 1-95 when the defendant changed lanes without signaling, and there were no vehicles closer whose reasonable safety would be affected. “It is clear from this statutory language that the intention of the legislature was that no turn signal is required as long as a lane change can be made with ‘reasonable safety.’ Otherwise, the use of the phrase ‘when required’ would be rendered meaningless. The stated purpose of the statute is to alert other drivers. Clearly there is no need to alert other drivers when none are present. This purpose gives meaning to the ‘when required’ phrase contained in the statute.” (Citations omitted; emphasis in original.) Id. at 887-888.

However, in this case, the other vehicle, i.e., the police car, was only five to seven feet to the rear, well within the ambit of the Act’s “zone of reasonable safety,” when such signals are required. Bowers v. State, supra at 888. Further, while the principle of these cases may apply equally between lane changes and left or right turns, the distances would not be comparable. This is because of relative speeds of a turning vehicle and an overtaking vehicle, when compared to a following vehicle. The distance zone of “reasonable safety” must be much greater for turning vehicles, because of distances and speeds necessary to safely complete a turn in relation to approaching vehicles. Therefore, these cases have a different application in this factual situation under the applicable law. The trial court plainly erred as a matter of fact and law in relying solely on them to hold that the traffic stop was pretextual, when the officer’s car was within the “zone of reasonable safety,” thereby mandating a left turn signal. See Buffington v. State, 229 Ga. App. 450 (494 SE2d 272) (1997); Trippe v. State, 219 Ga. App. 250 (464 SE2d 655) (1995); McConnell v. State, 188 Ga. App. 653 (374 SE2d 111) (1988).

(b) In Buffington v. State, supra, the police followed the defendant on a parallel exit and observed him make a lane change without signaling. “The trial court did not err in denying the motion to suppress. The temporary detention of a motorist based upon probable cause that he violated a traffic law does not implicate the Fourth Amendment’s prohibition against unreasonable searches and seizures, even if a reasonable officer would not have made the stop absent an ulterior motive. Whren v. United States, 517 U. S. [806] (116 SC 1769, 135 LE2d 89, 101) (1996). In other words, if the arresting officer witnessed the driver breaking even a relatively minor traffic law, a motion to suppress under the Fourth Amendment arguing that the stop was pretextual must fail. See Jackson v. State, 267 Ga. 130, 131 (5) (a) (475 SE2d 637) (1996).” Id. at 451; see also Maddox v. State, 227 Ga. App. 602, 604-605 (4) (490 SE2d 174) (1997); Sanders v. State, 226 Ga. App. 565, 566 (2) (487 SE2d 115) (1997); Hobdy v. State, 222 Ga. App. 625 (475 SE2d 686) (1996); Daniels v. State, 222 Ga. App. 29, 30 (1) (473 SE2d 239) (1996).

“Defendant first argues that the initial stop was illegal because it was pretextual. The United States Supreme Court has held, however, that when an officer sees a traffic offense occur, a resulting traffic stop does not violate the Fourth Amendment even if the officer has ulterior motives in initiating the stop, and even if a reasonable officer would not have made the stop under the same circumstances. See Whren v. United States, [supra]. ... [A] stop was permissible under the Fourth Amendment if the person stopped had broken the law, regardless of the officer’s subjective intent or the objective reasonableness of the stop[.]” (Citations omitted.) Brantley v. State, 226 Ga. App. 872-873 (1) (487 SE2d 412) (1997).

Decided January 12, 1999

Reconsideration denied January 27,1999.

Ralph T. Bowden, Jr., Solicitor, Maura F. Krause, Gwendolyn R. Keyes, Assistant Solicitors, for appellant.

W. Michael Maloof, for appellee.

2. The State’s second enumeration of error is that the trial court erred in suppressing all tangible and intangible evidence acquired from the stop of the defendant’s vehicle when granting the defendant’s motion to suppress. We agree for the reasons expressed in Division 1.

Judgment reversed.

Pope, P. J., and Smith, J., concur.


author: Blackburn, Judge.

text:
    A95A1253.
    DEPARTMENT OF TRANSPORTATION v. SHARPE et al.
    (511 SE2d 244)
    Decided January 27, 1999.

      Michael J. Bowers, Attorney General, George P. Shingler, Deputy Attorney General, Sell & Morton, John A. Draughon, Michelle W. Johnson, for appellant.

      Daniel, Lawson, Tuggle & Jerles, Tom W. Daniel, William R. Jerles, Jr., for appellees.
   Blackburn, Judge.

In Dept. of Transp. v. Sharpe, 226 Ga. App. 354 (486 SE2d 619) (1997), we reversed the judgment of the trial court. The Supreme Court granted certiorari and reversed our decision in Sharpe v. Dept. of Transp., 270 Ga. 101 (505 SE2d 473) (1998). Accordingly, our judgment in this case is vacated, and the judgment of the Supreme Court is made the judgment of this Court.

Judgment affirmed.

McMurray, P. J., and Andrews, J., concur.


author: McMuRRAY, Presiding Judge.

text:
    A98A1676.
    YEAZEL et al. v. BURGER KING CORPORATION.
    (511 SE2d 237)
   McMuRRAY, Presiding Judge.

Plaintiff-appellee Burger King Corporation (“BKC”), successor to the Wheeler Organization, Inc., brought this “COMPLAINT FOR MONEY PAID BY MISTAKE” against defendant-appellants Rita D. Yeazel and Jack H. Yeazel, seeking to recover approximately $39,300, representing sums allegedly overpaid by BKC to defendants as a portion of minimum base rent pursuant to a commercial lease, as amended, of property in Cobb County, Georgia. Defendants admitted the existence of the lease and amendments but defended on the basis that any alleged overpayments were non-recoverable voluntary payments, per OCGA § 13-1-13. Defendants further counterclaimed, in part to reform the amended lease to establish a base or minimum monthly rent of $4,000, “to be increased by five per cent (5%) annually [allegedly] pursuant to the term of the Amendment.” After discovery, the trial court heard several motions and on March 6, 1998, entered an order denying defendants’ motion for summary judgment and granting plaintiff’s motion for declaratory judgment as to the non-existence of any breach of contract, directing that BKC “pay all unpaid, if any, and future rents according to the calculations provided in the amendment.” The trial court further determined that BKC was not liable (obligated?) “for any overpayment made after [this suit was commenced, and ordered that] any money [defendants] received above what the Court has determined to be owing [under the amended lease] needs to be repaid to [BKC]. [But the] Court [concluded it was] without sufficient information to determine these amounts [and ordered] counsel for the parties [to] calculate the amount, if any, to be repaid [, and to] submit the proposed calculation to the Court within sixty days of. . . the entry of this order.” From this order, defendants bring this direct appeal. Held:

“It is the duty of this Court on its own motion to inquire into its jurisdiction. [Cit.] ” Reliance Ins. Co. v. Cobb County, 235 Ga. App. 685 (1) (510 SE2d 129). Direct appeals may be taken to the Court of Appeals of Georgia from “[a] 11 final judgments, that is to say, where the case is no longer pending in the court below, except as provided in Code Section 5-6-35[.]” OCGA § 5-6-34 (a) (1). Assuming, but not deciding, that the pending controversy authorized a declaratory judgment directing that BKC would not be in breach of the lease by paying future rent according to an amendment, nevertheless, the order granting that declaration is not a final judgment because the controversy remains pending below. See Dowdy v. White, 119 Ga. App. 793 (168 SE2d 595). Consequently, that portion of the non-final order granting declaratory judgment is not directly appealable. The denial of defendants’ motion for summary judgment also is not independently directly appealable. Compare Stallings v. Chance, 239 Ga. 567 (238 SE2d 327). “The record before us failing to show that a final judgment has been entered or that a certificate of immediate review was granted . . . this appeal is premature and must be dismissed. Mathews v. Fidelcor Mtg. Corp., 144 Ga. App. 140 (240 SE2d 758).” Bowers v. Price, 168 Ga. App. 125, 126 (308 SE2d 420).

Decided January 27, 1999.

Meadows, Ichter & Trigg, Craig M. Frankel, for appellants.

Eastman, Stapleton & Apolinsky, Stephen D. Apolinsky, for appellee.

Appeal dismissed.

Blackburn and Eldridge, JJ, concur.


author: Andrews, Judge.

text:
    A98A1755.
    HOLMAN v. THE STATE.
    (511 SE2d 240)
   Andrews, Judge.

Juan Holman appeals from the judgment entered after a jury found him guilty of armed robbery. Holman argues the trial court erred in denying his motion for directed verdict of acquittal and for new trial because the evidence was insufficient to support the verdict. Holman also argues the trial court erred in denying his motion to withdraw his plea to voluntary manslaughter and in denying his motion in limine to exclude evidence he claims was prejudicial. Because we find no reversible error, we affirm the judgment of the trial court.

The evidence at trial, viewed in the light most favorable to the verdict, was that on the day in question, four young men drove up to the house where Paul Golden rented a room from William Martin. Three of the men came to the door and rang the bell, while the fourth man stayed in the car. Martin answered the door and the men asked to see Golden. The three men went back to Golden’s room and stayed about an hour and left. After the men left, Golden came out of his room and told Martin, “I’ve been ripped off.” After about an hour, the four men came back and again, three came inside and went to Golden’s room and one stayed in the car, although this time, they turned the car around in the opposite direction before coming in the house. The men were back there for a long time and Martin became suspicious when he could not hear any sounds coming from Golden’s room. Martin went back to Golden’s bedroom, knocked on the door and went inside, saying he was going to put in a phone jack. Martin had his gun tucked into the waistband of his pants so that it was visible when he went into Golden’s room. Martin testified that when he went in the room, Golden was sitting on the bed and the three men were sitting in a row against the wall, with Holman sitting next to Golden. Martin was leaning down installing the jack, when he heard a loud popping sound and saw Golden fall over. Martin felt what he thought was the barrel of a gun scraping against his head and batted it away. He then jumped up, pulled out his gun and tried to shoot, but the gun jammed. The three men ran out of the room and out of the house.

On cross-examination, Martin admitted he told police a different story when they questioned him the first time. He said he told them he was in the living room when he heard the shot because he was scared and could not think straight.

The State introduced Holman’s statements to police into evidence. In his first statement, Holman said he and three other men went to Martin’s house and walked back to Golden’s bedroom. While they were in the bedroom, Martin came in and began installing a phone jack. While Martin’s back was turned, Jason, one of Holman’s co-defendants, took a money clip with some cash in it from the night stand. After Jason took the money, Holman tried to grab Martin’s gun and they struggled. During the struggle, the gun went off and Holman ran out of the room.

In Holman’s second statement to police, Holman said that C. J., Steve and Jason stole some pot from Golden. They said they were going back to the house because they had seen some money on Golden’s dresser. Holman told them he would go with them and gave Jason a .25 caliber semiautomatic gun and also took with him his .32 caliber gun. Holman said the plan was to go back to the house, steal the money and leave. After the robbery, Holman threw the gun away in some woods. Although Holman told detectives where he hid the gun, they were unable to find it. Holman said the part of his first statement in which he said Jason stole the money and the gun went off during the struggle with Martin, was true.

There was also evidence at trial that the bullet that killed Golden did not come from Martin’s gun. The medical examiner testified that Golden was killed with a bullet from a .32 caliber gun and the gun was two to three inches from Golden’s head when it was fired.

1. Holman argues on appeal that the trial court erred in denying his motion for directed verdict of acquittal because the State failed to prove he was guilty of armed robbery beyond a reasonable doubt. Holman also argues there was no independent evidence in addition to his statement to support a conviction for armed robbery.

The standard of review of the denial of a motion for directed verdict of acquittal is that from Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). See Harvey v. State, 212 Ga. App. 632, 634 (2) (442 SE2d 478) (1994). On appeal, the defendant no longer enjoys the presumption of innocence; moreover, an appellate court does not weigh the evidence or determine the credibility of witnesses, but only determines whether the evidence is sufficient for a rational trier of fact to find the defendant guilty beyond a reasonable doubt. Grier v. State, 218 Ga. App. 637, 638 (463 SE2d 130) (1995). In addition, conflicts in the witnesses’ testimony are a matter for a jury to resolve. As long as there is some competent evidence, even though contradicted, on each element necessary to prove the State’s case, the jury’s verdict will be upheld. Grier, supra at 638.

The evidence was sufficient to support the verdict. Contrary to Holman’s argument on appeal, an incriminating statement does not need independent corroboration. An incriminating statement is made where the accused, though admitting to damaging circumstances, nonetheless attempts to deny responsibility for the crime charged by putting forward exculpatory or legally justifying facts. It is not required that admissions or incriminating statements be corroborated as must confessions to a crime. Walsh v. State, 269 Ga. 427, 429 (499 SE2d 332) (1998); Plumm v. State, 201 Ga. App. 154 (410 SE2d 352) (1991). However, since admissions or incriminating statements do not admit every element of the offense charged, the State has the burden of proving some elements of the offense by evidence other than admissions. Lowe v. State, 267 Ga. 180, 182 (476 SE2d 583) (1996). The State need not introduce additional elements which corroborate the admissions, but must present additional direct or circumstantial evidence of guilt. Walsh, supra at 429.

Here, the jury heard Holman’s statement that they planned to go back and rob Golden and that Holman took a .32 caliber gun into the house and also provided one of his co-defendants with a gun. Martin testified that the men came back to see Golden after having been there earlier, and that one of the men stayed in the car, but this time turned it around to face the other way. Martin also testified that he heard a popping sound and saw Golden fall over before the struggle with Holman began. Golden was still sitting on the bed when he was shot, and the medical examiner testified that the gun was two to three inches from Golden’s head when it was fired, consistent with the State’s theory that Holman held the gun to Golden’s head while Jason took the money and then shot him. Martin said there were no other shots fired after he heard the popping sound and saw Golden fall. He also testified that Golden was shot before the men ran out of the room. Accordingly, there was sufficient evidence from which the jury could infer that Holman held Golden at gunpoint and shot him just before or at the same time that his co-defendant Jason took the money. See Moore v. State, 233 Ga. 861, 864 (213 SE2d 829) (1975).

2. Next, Holman claims the trial court erred in denying his motion to withdraw his plea to voluntary manslaughter after the court pronounced sentence. Holman contends the plea was not voluntarily and intelligently made because he did not “understand what voluntary manslaughter was.”

“After a prisoner raises the question of the validity of his plea of guilty, the burden is on the state to show that the plea was intelligently and voluntarily entered. The state may accomplish this end by two means, (1) showing on the record of the guilty plea hearing that the defendant was cognizant of all of the rights he was waiving and the possible consequences of his plea; or (2) fill a silent record by use of extrinsic evidence that affirmatively shows that the guilty plea was knowing and voluntary.” Roberts v. Greenway, 233 Ga. 473, 475 (211 SE2d 764) (1975). Whether to allow the withdrawal of a voluntarily, intelligently entered guilty plea after the pronouncement of sentence is within the sound discretion of the trial court. State v. Germany, 246 Ga. 455, 456 (271 SE2d 851) (1980).

Here, when the court took the plea for voluntary manslaughter, the prosecutor outlined the State’s case against Holman for Golden’s murder, and the court asked Holman a series of questions, including: whether his lawyer had explained the charges against him; whether he understood the rights he was giving up by pleading guilty; and, whether he had a chance to thoroughly discuss his case with his lawyer. Holman answered yes to all these questions.

Therefore, the record shows that when Holman entered the plea he did it knowingly and voluntarily. Holman’s later contradictory statement that he did not understand the offense he was pleading guilty to presented a credibility question which the trial court was entitled to resolve against him. Manues v. State, 232 Ga. App. 454, 455 (501 SE2d 826) (1998). The trial court did not abuse its discretion in denying Holman’s motion to withdraw his guilty plea.

3. In his last enumeration of error, Holman complains the trial court erred in allowing into evidence photographs of the dead victim. Holman argues the photographs were not relevant to the charge of armed robbery.

“Any evidence is relevant which logically tends to prove or to disprove a material fact which is at issue in the case, and every act or circumstance serving to elucidate or to throw light upon a material issue or issues is relevant. The trial court has great discretion to determine relevancy and materiality of evidence, and admission is favored in doubtful cases.” (Citations and punctuation omitted.) Crozier v. State, 263 Ga. 866, 867 (440 SE2d 635) (1994).

Here, the State contends the photographs are relevant because they show a stippling pattern from which experts can tell how close the muzzle was to the victim when the shot was fired, and the angle at which the bullet entered the victim. Since Holman contended at trial that he did not point the gun at Golden while Jason stole the money, but rather, the gun went off during a struggle with Martin, the stippling pattern and the angle at which the bullet entered the victim are relevant to rebut Holman’s statement that he was not threatening the victim with a gun when the robbery occurred. Therefore, the photographs were relevant to a material issue in the case and the trial court did not abuse its discretion in admitting them.

Decided January 27, 1999.

Tony L. Axam, for appellant.

J. Tom Morgan, District Attorney, Barbara B. Conroy, Keith E. Adams, Assistant District Attorneys, for appellee.

Judgment affirmed.

Pope, P. J., and Ruffin, J., concur.


text:
    A98A1756.
    CLEGG v. THE STATE.
    (511 SE2d 544)
    Decided January 27, 1999

      Chestney Hawkins Law Firm, Robert W. Chestney, Tracy M. Delgado, for appellant.

      Ralph T. Bowden, Jr., Solicitor, Joseph N. Walden III, W. Cliff Howard, Assistant Solicitors, for appellee.
   McMurray, Presiding Judge.

Defendant appeals his conviction for driving under the influence of alcohol and failure to maintain lane. Held:

Defendant was not denied due process under State or federal law based on the arresting officer’s refusal to allow him to have an independent blood test. Defendant forfeited his right to such independent testing by refusing the arresting officer’s request to submit to a state-administered breath test after being advised under OCGA § 40-5-67.1. Allen v. State, 229 Ga. App. 435, 438 (2) (a), (b) (494 SE2d 229). The trial court did not err in denying defendant’s motions to dismiss and motions in limine to exclude evidence.

Judgment affirmed.

Blackburn and Eldridge, JJ, concur.


text:
    A98A1823.
    ATWOOD et al. v. SOUTHEAST BEDDING COMPANY, INC.
    (511 SE2d 232)
   Beasley, Presiding Judge.

We granted the application of Atwood, Pennington, and their attorney McFarland to appeal the trial court’s post-trial award of $8,749.40 attorney fees under both OCGA § 9-15-14 (a) and (b) in favor of Southeast Bedding Company in its action on account. This court earlier reversed the trial court’s grant of summary judgment in favor of Southeast on both its claim and appellants’ counterclaim. See Atwood v. Southeast Bedding Co., 226 Ga. App. 50 (485 SE2d 217) (1997) (Atwood I). The jury awarded Southeast its entire claim of $20,427.55 for accepted merchandise and awarded appellants $518 on their counterclaim for three articles of defective bedding. A net judgment was entered.

1. Appellants enumerate only one error, that the evidence does not support the fee award, but they have chosen not to include the transcript of the trial in the record. In order for the appellate court to determine whether the judgment appealed from was erroneous, it is the duty of the appellant to include in the record those items which will enable the appellate court to perform an objective review of the evidence and proceedings. “ ‘Thus, where the transcript is necessary, as in the case sub judice, and appellant omits it from the record on appeal or fails to submit a statutorily authorized substitute, the appellate court must assume the judgment below was correct and affirm. [Cits.]’ ” The facts relevant to the fee award include appellants’ presentation at trial of their counterclaim. Without knowledge of such, we are at a loss to address the issue and will not do so uninformed.

2. Although appellants enumerate only one error, they argue seven different errors in their brief. The law states that each asserted error “shall” be set out as a separate enumerated error. “When an appellant argues more than one error within a single enumeration, this court in its discretion may elect to review none of the errors so enumerated in violation of OCGA § 5-6-40 or elect to review any one or more of the several assertions of error contained within the single enumeration and treat the remaining assertions of error therein as abandoned.” Only one prompts our pursuit.

3. Appellants assert that this Court’s decision in Atwood I that Southeast was not entitled to summary judgment precludes an award of fees in Southeast’s favor. They cite the rule that “a trial court’s award to a party whose motion for summary judgment was denied must be vacated except in unusual cases where the trial judge could not, at the summary judgment stage, foresee facts authorizing the grant of attorney fees.” Appellants view as inapplicable the exception stated in Porter v. Felker because the court also denied Southeast’s motion for directed verdict after having heard all the evidence.

A party is entitled to summary judgment if it can show that one essential element of the non-movant’s case is missing. It does not follow that just because summary judgment is not warranted based on that one element of the case, the non-movant is protected from a fee award arising out of other aspects of the case. Such a situation may fall under the exception in Porter where the court has not seen or reviewed the facts related to other elements of the non-movant’s position.

That is the case here. “[Southeast] sued ... on open account. As both a defense and a counterclaim, Atwood and Pennington asserted breach of contract and breach of warranty on the ground that some of the merchandise Southeast shipped to them was defective. On Southeast’s motion for summary judgment, the court ruled that Atwood and Pennington were barred from any remedy due to their failure to give notice of defects that complies with OCGA § 11-2-607 (3) (a).” Atwood I reversed the trial court solely on this Uniform Commercial Code notice issue. Thus the only ruling by this Court was that there was an issue of fact about notice of acceptance of defective goods under the UCC.

The trial court’s fee award is based on issues unrelated to the UCC notice issue. Instead, it rests on a determination that appellants failed to show a reasonable basis for the defense that they were entitled to a reduction of the amount owed Southeast for time spent inspecting each mattress for flaws, and on their counterclaim for return of three specific mattresses. This could not have been anticipated by the court when it addressed summary judgment.

The trial court later denied a motion for directed verdict by Southeast on the issues presented in the fee award. Appellants argue that according to Gantt v. Bennett, the rule in Porter applies to denial of a motion for directed verdict as well, precluding the fee award. But the Porter exception for unusual cases also applies. The court’s order granting attorney fees shows that, although the court denied a directed verdict on the same two issues, it in effect reversed itself when it ruled on the attorney fees motion.

In the fee order, the court found that “Atwood’s testimony concerning his inspection damages for bedding received from Plaintiff did not provide a reasonable basis under OCGA § 11-2-714 for proving damages.” Upon the trial court’s reflective review of the evidence, the court found that portions of Atwood’s testimony were “arbitrary” and others were irreconcilably inconsistent with the remainder of his testimony. The court concluded that this defense and counterclaim lacked substantial justification as defined under OCGA § 9-15-14 (b), that it was void of any justiciable issue of law or fact under OCGA § 9-15-14 (a), and that it was “interposed. . . for delay or harassment and to intentionally and unnecessarily expand the proceeding.” Because appellants have elected not to include the transcript of the trial, we must conclude that the court’s findings are correct.

With regard to the three mattresses, the court found that it was undisputed that prior to the litigation Southeast would have given a credit to the appellants for these three mattresses, but that the appellants and their attorney “refused to provide Plaintiff with specific notice as to these items.” Plaintiff continued to agree to such credit at trial, and defendant’s reserving of the demand so as to manufacture a claim did not bootstrap it into a bar to attorney fees. The jury’s verdict simply acknowledged what was not questioned. Of course, a directed verdict was not appropriate in this one minor instance. The defendants were entitled to the $518 on their counterclaim; a directed verdict could not be granted. But as the trial judge found, defendants’ actions unnecessarily expanded the proceedings.

In considering an award under OCGA § 9-15-14, a trial court is not necessarily bound by the denial of a motion for directed verdict. For example; a court may properly grant a motion for judgment notwithstanding the verdict where a valid motion for directed verdict was denied erroneously. Or, a court may act expediently and deny such a motion so as to achieve a verdict and avoid a second trial in the event its grant of the motion would be reversed on appeal. A court’s consideration of such a motion in the midst of trial should not automatically govern the application of OCGA § 9-15-14 relief, as the context and issue may differ. As stated in Porter, “[w]e cannot require trial courts to be infallible. More importantly, if additional facts authorize an [attorney fees] award and the trial court is powerless to make an award, then the purposes of the [OCGA § 9-15-14] (deterrence of litigation abuses and recompensation for legal fees and costs) are thwarted.”

Decided January 27,1999

McFarland & Associates, Robert P. McFarland, for appellants.

Banks, Stubbs & Neville, John R. Neville, for appellee.

Judgment affirmed.

Pope, P. J., and Ruffin, J., concur.

       OCGA § 5-6-41 (c).

       (Punctuation omitted.) Deen v. United Dominion Realty Trust, 218 Ga. App. 443, 444 (1) (462 SE2d 384) (1995). See also North Fulton Feed v. Purina Mills, 221 Ga. App. 576 (472 SE2d 122) (1996); Little v. Rowe, 162 Ga. App. 215 (290 SE2d 556) (1982).

       OCGA § 5-6-40.

       (Citation omitted.) Robinson v. State, 200 Ga. App. 515, 518 (2) (b) (408 SE2d 820) (1991); Holt v. Leiter, 232 Ga. App. 376, 380 (1) (501 SE2d 879) (1998).

        Porter v. Felker, 261 Ga. 421, 422 (405 SE2d 31) (1991).

        Porter, supra, 261 Ga. at 421 (1).

       See, e.g., Ansa Mufflers Corp. v. Worthington, 201 Ga. App. 602, 603-604 (411 SE2d 573) (1991).

       Id.

        Atwood I, supra, 226 Ga. App. 50.

       231 Ga. App. 238, 245-246 (9) (499 SE2d 75) (1998).

        Executive Auto Leasing v. Guaranty Nat. Ins. Co., 170 Ga. App. 860 (318 SE2d 733) (1984). See also OCGA § 9-11-50 (b).

        Porter, supra, 261 Ga. at 422 (2).


author: Smith, Judge.

text:
    A98A1975.
    In the Interest of B. D. et al., children.
    (511 SE2d 229)
   Smith, Judge.

The mother of B. D., T. W., A. W., and M. W. appeals from the order of the Whitfield County juvenile court terminating her parental rights, contending that the trial court erred in terminating her rights because the State failed to meet its burden of proof in three respects. The standard of review in cases involving the termination of parental rights is whether a rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights have been lost. In the Interest of F. G., 233 Ga. App. 153 (503 SE2d 387) (1998). We find no error and affirm.

The decision to terminate parental rights is a two-step process. The court first must determine whether clear and convincing evidence exists of parental misconduct or inability, as defined in OCGA § 15-11-81 (b). Parental misconduct is found when the child is deprived, the cause of the deprivation is lack of proper parental care or control, the deprivation is likely to continue or will not be remedied, and it is likely to cause serious physical, mental, emotional or moral harm to the child. OCGA § 15-11-81 (b) (4) (A). If such a finding is made by the court, it then must consider whether the termination of the parent’s rights is in the best interest of the child, considering the child’s physical, mental, emotional, and moral condition and needs, including the need for a secure, stable home. OCGA § 15-11-81 (a). See In the Interest of A. M. V., 222 Ga. App. 528, 529 (474 SE2d 723) (1996).

1. The mother first contends that the State failed to present evidence of present parental misconduct or inability. She argues that to support termination of parental rights, the evidence must show current unfitness, not merely past problems. This is, of course, a correct statement of the law. But in this case, the State met its burden.

The record is replete with references to the mother’s problems with chronic alcohol abuse, going back at least to 1992, and to her problematic relationship with the father of three of the children, who abused both her and the children. Several witnesses testified that the mother’s relationship with the children improved each time this man left the home (usually because he was incarcerated for various crimes), but that the mother invariably allowed him to return and the abuse began again.

The Department of Family & Children Services (DFACS) first became involved with the family in 1991 because of “repeated cycles of domestic violence between” the mother and the father of the three youngest children and the mother’s alcohol problem. The order recites that DFACS made numerous referrals for the mother to obtain social services such as counseling, parenting classes, and help with establishing a stable home, but with minimal results. This finding is supported by evidence. The children were returned to their mother once and were returned with the imposition of a “safety plan,” which required her to keep the children from having any contact with the abusive father. The mother did not do so; she took the children to a motel, left them alone while she and the father went out to buy beer, then returned and had sex in the presence of the children. The mother watched pornographic films with the father and with her children. The children also testified that their mother abused them when she was drunk and that she and the abusive father showed them how to shoplift.

In addition, under OCGA § 15-11-81 (b) (4) (B) (iv), the juvenile court considered the mother’s “egregious conduct toward” the children in determining whether they lacked proper parental care and control. The evidence that the children watched pornographic movies with their mother and observed her having sex shows just such “egregious conduct,” as does the mother’s violation of the “safety plan.”

Most of this evidence involved past behavior. But in a termination case, even evidence that is a year or two old is pertinent. In the Interest of J. S., 232 Ga. App. 876, 879 (502 SE2d 788) (1998). Moreover, in this case evidence was also presented of very recent unfitness on the part of the mother. The petition was filed in November 1997. Evidence was presented that in the fall of 1997 the mother had used crack cocaine and that in October 1997 she failed a drug screening test. She entered a treatment program for cocaine abuse, but was discharged “unchanged” in November 1997. Moreover, the psychologist who evaluated the mother in December 1997 testified that he believed she had a serious alcohol problem. The mother has not complied with'the case plan goals of finding stable housing and employment; she finally became employed only after the termination petition was filed, and she had three residences between October 1997 and the date of the hearing in February 1998. This evidence authorized the juvenile court to find clear and convincing evidence of parental misconduct or inability.

2. The mother next contends that the evidence was insufficient to show that the cause of the deprivation is likely to continue or will not be remedied, as required by OCGA § 15-11-81 (b).

This contention is without merit. First, evidence of past conduct may be considered in determining whether the deprivation would be likely to continue if the children were returned to their mother. In the Interest of A. M. V., supra at 531. And the past conduct of the mother certainly justifies such a prediction.

Second, the State presented expert testimony to that effect. The evaluating psychologist testified that based upon the mother’s history, he predicted an increased likelihood of noncompliance with any treatment programs in the future. And based upon her history with her children, he was not optimistic that she would be an effective parent. Another psychologist, who both evaluated and treated the children, testified that returning them to a home where the parent has a history of noncompliance with treatment would increase the risk of problems for the children. The family’s present DFACS case manager testified he believed that notwithstanding all the intervention, he had seen nothing that led him “to believe anything had changed,” that nothing in the mother’s medical records indicated to him that she was currently committed to changing her situation, and that in his opinion, the children’s deprivation was likely to continue if they were returned to the mother. This authorized the juvenile court to find, by clear and convincing evidence, that the cause of deprivation was likely to continue or would not be remedied, as required under OCGA § 15-11-81 (b).

3. The mother asserts that the evidence was insufficient to support a finding that terminating her parental rights was in the best interest of the children. We do not agree. “Those same factors which show the existence of parental misconduct or inability can also support a finding that the termination of parental rights of the defaulting parent would be in the child’s best interest.” (Citations and punctuation omitted.) In the Interest of J. S., supra at 881 (1). Viewing the evidence presented in a light most favorable to the mother, more than sufficient clear and convincing evidence exists to support the finding that termination of the mother’s rights was in the best interest of these children. The children have been in a stable foster home, and they all clearly long for stable homes. None expressed any desire to return to their mother’s care. DFACS has arranged potential adoptive placements for the children. Termination of this parent’s rights was clearly in the best interest of the children.

Decided January 27, 1999.

Jerry W. Moncus, for appellant.

Thurbert E. Baker, Attorney General, Shalen A. Sgrosso, Stephanie B. Hope, Assistant Attorneys General, Richard K. Murray, for appellee.

Judgment affirmed.

Johnson, C. J, and Senior Appellate Judge Harold R. Banke concur.

       The fathers of the children voluntarily surrendered their parental rights.