author: Ruffin, Judge.

text:
    A99A1548.
    GARCIA v. THE STATE.
    (527 SE2d 877)
   Ruffin, Judge.

A Chatham County jury convicted Rudolph Garcia of rape, false imprisonment and possession of tools for commission of a crime. In his sole enumeration of error on appeal, Garcia challenges the sufficiency of the evidence. As the evidence was sufficient to establish his guilt beyond a reasonable doubt, we affirm.

In reviewing Garcia’s challenge to the sufficiency of the evidence, we construe the evidence in the light most favorable to the jury’s verdict. Harris v. State, 234 Ga. App. 126 (1) (505 SE2d 49) (1998). We neither weigh the evidence nor determine witness credibility, but only determine whether the evidence is sufficient under the standard enunciated in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). Harris, supra. “As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the verdict will be upheld.” (Punctuation omitted.) Id.

The record demonstrates that on October 22, 1995, the victim visited Garcia, her husband, at Coastal Correctional Institute where he was incarcerated to inform him that she had filed for divorce. Toward the end of the visitation period, Garcia asked his wife to get him a snack from the break room where the vending machines were located. As a prisoner, Garcia was not allowed into the break room. After the victim entered the break room, however, Garcia followed her, locked the door, and barricaded the door with one of the vending machines. Garcia produced a shank that he had made using a spoon and razor blades. As he held the shank next to the victim, he told her that neither of them would leave the room alive.

Shortly thereafter, Lieutenant Burriss, the shift supervisor at the prison, realized that a prisoner was unaccounted for. He then noticed that the door to the break room was closed. As Burriss attempted to unlock the door, Garcia stated, “Don’t come in here. If you come in here, I will cut her mother-f — ing throat.” Burriss heard the victim crying, saying “he does mean it.”

Garcia kept the victim locked in the break room approximately five hours. The victim testified that during those five hours, Garcia had sexual intercourse with her three times. During two of the instances, Garcia kept the shank pressed against the victim. The victim testified that, although she told Garcia “no,” when he demanded sex, she did not fight him.

Hostage negotiators were called in to negotiate the victim’s release. At 8:00 p.m., Garcia unlocked the door and surrendered the shank to prison officials. The shank was tendered into evidence at trial.

The prison warden testified that, when the victim was released, she was emotional to the point that she could not walk and could barely communicate. The warden asked the victim if anything sexual had occurred, and the victim began crying and said she had “done it” because she was afraid. Semen was discovered in the victim’s vagina, and DNA extracted from the semen matched Garcia. The State’s DNA expert testified that the frequency of this DNA profile is one in ten billion.

A person commits the offense of rape when he penetrates a woman’s sex organ forcibly and against her will. See OCGA § 16-6-1 (a) (1). Garcia argues that the intercourse was consensual. However, in view of the victim’s testimony that she said “no” to Garcia and the evidence that Garcia threatened her with a weapon, the jury was authorized to find that Garcia forcibly raped her against her will. See Johnson v. State, 222 Ga. App. 722, 727 (7) (475 SE2d 918) (1996).

False imprisonment is committed when, in violation of the personal liberty of another, an person arrests, confines, or detains such other person without legal authority. OCGA § 16-5-41 (a). The evidence was sufficient to prove the offense of false imprisonment.

Garcia also was convicted of possession of tools for the commission of a crime. Pursuant to OCGA § 16-7-20 (a),

[a] person commits the offense of possession of tools for the commission of crime when he has in his possession any tool, explosive, or other device commonly used in the commission of burglary, theft, or other crime with the intent to make use thereof in the commission of a crime.

Decided September 14, 1999.

Willie T. Yancey, Jr., for appellant.

Spencer Lawton, Jr., District Attorney, Jerome M. Rothschild, Jr., Assistant District Attorney, for appellee.

As the evidence demonstrates that Garcia had a shank, which he held next to his wife as he had forcible intercourse with her, the jury was authorized to convict him of this crime.

Judgment affirmed.

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


source: Caselaw Access Project

author: Miller, Judge.

license: Public Domain

text:
    A99A1013.
    TIDWELL et al. v. COWETA COUNTY BOARD OF EDUCATION.
    (521 SE2d 889)
   Miller, Judge.

Bobby and Lillie Tidwell sued the Coweta County Board of Education for the wrongful death and suffering of their developmentally disabled son, who died from injuries caused when he jumped or fell from a moving school bus through the back emergency door exit. The Board moved for summary judgment on four grounds: (i) no negligence was shown; (ii) immunity barred the claims; (iii) the Board was not a corporate entity and could not be sued; and (iv) the statute of limitation had run. Ignoring the latter two grounds, the Tidwells in their brief responded only to the immunity and negligence arguments. Regarding the corporate entity argument, they simply filed an amendment to their complaint claiming that the identification of the defendant as the Board was a misnomer, and that the defendant should be identified as the Coweta County School System. The court referred to the amendment as an attempt to add or substitute a party that required leave of court (see OCGA § 9-11-21) and entered summary judgment in favor of the Board.

1. On appeal, the Tidwells once again ignore the “capacity to be sued” and statute of limitation grounds and enumerate as error only the trial court’s adverse findings on the negligence and immunity grounds. Either of the unenumerated grounds could independently serve as an alternative basis for summary judgment or dismissal. Grounds that are not attacked as erroneous will not be considered on appeal and are presumed to be binding and correct. Jones v. First Nat. Bank of Atlanta, 147 Ga. App. 441 (248 SE2d 154) (1978); see Rider v. State, 226 Ga. 14, 15 (2) (172 SE2d 318) (1970); Norman v. State, 197 Ga. App. 333, 336 (4) (398 SE2d 395) (1990). An appellant’s failure to attack alternative bases for summary judgment results in the affirmance of that judgment. Jones v. Lamon, 206 Ga. App. 842, 847 (2) (426 SE2d 657) (1992).

Decided August 30, 1999

Reconsideration denied September 15, 1999.

Hinton & Powell, Andrew J. Hinton, Jr., Debra Haan, for appellants.

Rosenzweig, Jones & MacNabb, Joseph P. MacNabb, Chambers, Mabry, McClelland & Brooks, James T. Budd, E. Wycliffe Orr, Kristine E. Orr, for appellee.

2. Even if the Tidwells had enumerated the “capacity to be sued” ground as error, the merits would be against them. “[A] county board of education, unlike the school district which it manages, is not a body corporate and does not have the capacity to sue or be sued. [Cits.]” Cook v. Colquitt County Bd. of Ed., 261 Ga. 841 (412 SE2d 828) (1992); see Hicks v. Walker County School Dist., 172 Ga. App. 428, 429 (2) (323 SE2d 231) (1984). Only if the legislature in creating the Board expressly gave it the power to sue or be sued is there an exception. Cook, supra. The enabling act here did not. See Ga. L. 1968, pp. 1452-1466, § 1.

The Tidwells’ last-minute attempt to substitute the school district as the defendant does not affect this analysis. Because they do not enumerate or argue as error the trial court’s implicit holding that this attempt to substitute or add a party required leave of court and was therefore ineffectual, they have also waived appellate review of this matter. Pascoe Steel Corp. v. Turner County Bd. of Ed., 139 Ga. App. 87, 90 (4) (227 SE2d 887) (1976).

Judgment affirmed.

Andrews, P. J., and Ruffin, J., concur.


author: McMurray, Presiding Judge.

text:
    A99A1910.
    BARBER v. THE STATE.
    (522 SE2d 238)
   McMurray, Presiding Judge.

Defendant pleaded guilty, but mentally ill, to a single count of child molestation and four counts of aggravated child molestation and was sentenced to ten years to serve running concurrently as to each count and “with any sentence now serving.” Approximately seven months later, defendant filed a petition to correct void judgment, arguing that his sentence to ten years confinement was void in that the trial court erred in accepting his pleas of guilty but mentally ill allegedly in violation of OCGA § 17-7-131 (b) (2). The trial court denied his petition, and defendant, pro se, appeals, renewing the argument he made below.

Decided August 31, 1999

Reconsideration denied September 15, 1999

William L. Barber, pro se.

John C. Pridgen, District Attorney, for appellee.

A trial court has no jurisdiction to modify a sentence after the term of court ends or 60 days pass. Heard v. Gill, 204 Ga. 261 (49 SE2d 656) (1948); OCGA § 17-10-1. Where a sentence is void, however, the court may resentence the defendant at any time. Mullins v. State, 134 Ga. App. 243 (214 SE2d 1) (1975). A sentence is void if the court imposes punishment that the law does not allow. See, e.g., Wade v. State, 231 Ga. 131, 134-135 (200 SE2d 271) (1973) (holding sentences invalid because they did not follow the jury’s verdict and sentence).

Crumbley v. State, 261 Ga. 610, 611 (1) (409 SE2d 517).

In the case sub judice, the trial court was authorized by OCGA § 17-7-131 (g) (1) to impose concurrent ten-year sentences to serve after the defendant entered his guilty pleas to child molestation and aggravated child molestation. OCGA § 16-6-4 (b) and (d) (1), respectively. Therefore, the judgment is not void, and the trial court properly denied defendant’s petition to correct void judgment.

Judgment affirmed.

Johnson, C. J., and Phipps, J., concur.


author: Pope, Presiding Judge.

text:
    A99A0898.
    RHODES v. K-MART CORPORATION et al.
    (522 SE2d 563)
   Pope, Presiding Judge.

Vivian Rhodes filed suit against K-Mart and a John Doe defendant claiming that she was injured as she was shopping at K-Mart and reached for a box containing a fan which was on a high shelf. Rhodes claimed that due to defendants’ failure to inspect and secure the fan in the box, the fan fell out of the box and struck her in the head. K-Mart filed a motion for summary judgment, which the state court granted, and Rhodes appeals.

In two enumerations of error, Rhodes claims that the state court erred in granting summary judgment because genuine issues of material fact remain in the case. We agree and reverse.

The record contains the following evidence. Rhodes and her adult daughter, Adrian Chappell, went shopping at K-Mart to purchase a fan. They found the fan they wanted to buy, which was located on a high shelf. Chappell went to the customer service area to seek assistance with getting the box down. Rhodes testified that she and her daughter waited between 15 and 20 minutes for help in getting the fan down off the shelf, which Rhodes described as “too high.” When no help arrived, Rhodes decided to get the fan down herself. She stated that she had to stand on her tiptoes to get the fan. As she tried to take the box off the shelf, the fan slipped out of the box and struck Rhodes on her head.

Chappell testified that the box had been sealed with tape that appeared to have been previously cut open. Chappell stated that the box was sitting lengthwise on the shelf and that the open part of the box was facing away from the aisle.

K-Mart operations manager Michael Day testified that store policy dictated that the box would have been placed on the shelf by a K-Mart employee after it arrived at the store. Day conceded that when he examined the box after the incident, the tape on the box appeared to have been pulled open. Day testified the box appeared to have been opened before arriving at the store. Day stated that if the box had arrived unsealed the receiving department should have sealed it before placing it on the store shelf.

With respect to inspection procedures at the store, Day testified that the store was inspected twice a day to ensure that merchandise was properly displayed. Day testified that the employees made sure that “every counter is straight before we leave,” although the individual boxes were not inspected. Day stated that he did not know how long the box from this incident remained unsealed on the shelf. Day stated that the responsibility for maintaining the aisle on which the fan was located was the department manager’s, from whom there was no testimony. There was no evidence as to how much time had passed since an inspection had been performed on the aisle on which the incident happened.

A person who maintains a place of business to sell goods or services owes a duty to a customer using ordinary care to keep the premises in a safe condition (OCGA § 51-3-1) and in the exercise of this duty the merchandise must be so placed as not to cause injury to a customer exercising ordinary care.

(Citation and punctuation omitted.) Keaton v. A.B.C. Drug Co., 266 Ga. 385, 387 (2) (467 SE2d 558) (1996). In Keaton, our Supreme Court determined that the jury was authorized to conclude that A.B.C. Drug Company was negligent in placing a bleach bottle with an unsealed cap at a level above the eyes of an average adult. The court stated that “by placing the bleach at such a level, ABC created a high risk of injury from spilling bleach by virtue of a loose cap, and created an impediment to a person’s ability to exercise caution by checking to see if the cap was loose.” Id. The court further stated:

Decided September 15, 1999.

Mullís, Marshall, Lindley & Powell, Julius A. Powell, Jr., Miguel A. Garcia, Jr., for appellant.

Chambless, Higdon & Carson, Marc T. Treadwell, John J. Makowski, for appellees.

had ABC placed the bleach at a level significantly below the eyes of an average adult, the risk of injury is different in type and scope from the risks presented when the bleach is placed at a higher level. Also, the ability of a plaintiff tti avoid injury by exercising caution for his or her own safety is substantially heightened if the bleach is placed at a lower level.

Id. In reaching its decision, the Supreme Court concluded that ABC was chargeable with superior knowledge of the defect, stating: “Constructive knowledge of a defect, i.e., that the defendant ought to have known of the defect in the exercise of ordinary care, is sufficient to charge the defendant with liability for injuries caused by the defect.” (Citations and punctuation omitted.) Id. at 387-388.

Similarly, in this case, a jury issue was created as to whether K-Mart should have anticipated that placing a previously opened box containing a fan on a high shelf would cause injury. A jury issue also exists as to whether K-Mart should have been aware of the hazardous condition. Compare Sams v. Wal-Mart Stores, 228 Ga. App. 314 (491 SE2d 517) (1997); Heffernan v. Home Depot U.S.A., 226 Ga. App. 167 (1) (486 SE2d 51) (1997). And, as in Keaton, there is a factual issue as to whether by placing the box on a high shelf, K-Mart created an impediment to Rhodes’ ability to exercise caution for herself. Accordingly, the state court’s grant of summary judgment was erroneous. See generally Colonial Stores v. Donovan, 115 Ga. App. 330 (154 SE2d 659) (1967).

Judgment reversed.

Smith and Eldridge, JJ, concur.


text:
    A99A1366.
    McSWAIN et al. v. THE STATE.
    (522 SE2d 553)
   Ruffin, Judge.

After stopping a vehicle driven by Dexter McSwain, police discovered cocaine in the trunk. McSwain and his three passengers, Antonio Stepps, Toriono Lawson, and Eric Easter, were arrested and charged with trafficking in cocaine. The defendants moved to suppress the evidence obtained in the search of the vehicle, but the trial court denied their motion. McSwain and Stepps appeal, asserting that the police lacked reasonable suspicion to initiate the traffic stop. As explained more fully below, we reverse.

The uncontroverted evidence presented at the suppression hearing follows. On the afternoon of October 10, 1995, Corporal Clay Kicklighter of the Georgia State Patrol (“GSP”) was monitoring traffic on 1-95 in McIntosh County when he heard the Brunswick GSP post announce over the radio that GSP units in Camden and McIntosh Counties should be on the lookout for a vehicle headed northbound on 1-95 from Florida to North or South Carolina. The dispatcher described the vehicle as a light green, four-door Honda Accord occupied by four black males, gave the vehicle’s license plate number, and stated that there was “possibly some contraband” in the trunk. The dispatcher also gave names for the vehicle’s occupants, but Kicklighter did not write the names down and, with the exception of Easter, did not remember them at the suppression hearing. No further details were provided.

About an hour later, Kicklighter saw a vehicle that matched the description and contained four black males traveling north on 1-95. Kicklighter followed the vehicle for approximately one mile, but saw no traffic violations or other criminal activity. He then pulled the vehicle over based solely on the radio lookout. He asked the driver — later identified as McSwain — to step out of the car and produce his driver’s license, at which point McSwain told him that his driver’s license had been suspended. Kicklighter detected the odor of burnt marijuana on McSwain’s clothing and noticed that his eyes were bloodshot and glassy. After reading McSwain his Miranda rights, Kicklighter sought McSwain’s consent to search the car, which McSwain said belonged to passenger Easter. Kicklighter then ordered the three passengers out of the car, read them their Miranda rights, and asked for consent to search the car. According to Kick-lighter, all four men consented to the search. A canine unit arrived at the scene, and the dog alerted at several places on the car, including the trunk. Subsequent searches revealed a small quantity of marijuana in the rear passenger’s seat and one and one-half pounds of cocaine in the trunk.

As the evidence at the suppression hearing was undisputed and there was no question as to the credibility of the witnesses, we conduct a de novo review of the trial court’s application of the law to the uncontroverted facts. Hughes v. State, 269 Ga. 258, 259 (1) (497 SE2d 790) (1998). It is well established that a brief, investigatory stop of a motorist by police

must be justified by specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion. Terry v. Ohio, 392 U. S. 1, 21 (88 SC 1868, 20 LE2d 889) (1968). The issue critical to a determination of the validity of the stop is whether the officer had a particularized and objective basis for suspecting the particular person stopped of criminal activity. Investigative stops of vehicles are . . . invalid if based upon only unparticularized suspicion or hunch. An investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in criminal conduct. What is demanded of the police officer, as the agent of the state, is a founded suspicion, some necessary basis from which the court can determine that the detention was not arbitrary or harassing.

(Citations and punctuation omitted.) Painter v. State, 227 Ga. App. 875, 877 (490 SE2d 544) (1997). “This demand for specificity in the information upon which police action is predicated is the central teaching of . . . Fourth Amendment jurisprudence.” (Punctuation omitted.) Shapiro v. State, 233 Ga. App. 620, 621 (2) (504 SE2d 719) (1998). The State bears the burden of presenting evidence that demonstrates a reasonable suspicion of criminal activity. State v. Holton, 205 Ga. App. 434, 436 (1) (422 SE2d 295) (1992).

We find that the State failed to meet its burden at the suppression hearing. Kicklighter stopped appellants’ vehicle solely because of the lookout he heard over the police radio, not because he observed any traffic violations or criminal activity. According to Kicklighter, the lookout provided a description of the vehicle and occupants and stated that the vehicle was headed toward North or South Carolina and possibly contained unspecified “contraband” in the trunk. The only other evidence at the suppression hearing concerning the radio lookout came from McIntosh County Deputy Sheriff Danny Deal, who brought the drug-sniffing dog to the scene. Deal testified that he heard secondhand that the lookout originated from “the [Drug Enforcement Administration] out of Jacksonville.” The State presented no other evidence of the source of the lookout. Likewise, the State presented no evidence of any specific facts on which the lookout might have been based, such as the nature of the suspected criminal activity, the reason for the belief that criminal activity was afoot, or the type of contraband at issue. In the absence of any such information, we have no basis for concluding that the stop was justified by a reasonable suspicion of criminal activity.

Our decision in Tarwid v. State, 184 Ga. App. 853 (363 SE2d 63) (1987) controls this case. In Tarwid, an officer stopped a vehicle for speeding and requested permission to search the car, but the driver refused. After giving the driver a warning ticket, the officer broadcast a lookout for the car in which he explained, without elaboration, that the occupants “had shown signs of trafficking in drugs.” (Punctuation omitted.) Id. at 853 (1). Another officer heard the broadcast, stopped the car again based solely on the broadcast, and discovered drugs inside. At the suppression hearing, the officer who executed the second stop testified as to the broadcast he heard from the first officer, but the first officer did not testify. We held that the second stop was invalid. As the first officer did not search the vehicle, he apparently lacked a legitimate basis for doing so. Thus, in the absence of any evidence establishing the factual basis for the first officer’s belief that drug trafficking was taking place, we concluded that the “signs” to which he referred appeared to be “nothing more than ‘inarticulate hunches’ and thus insufficient to justify a seizure under the Fourth Amendment.” Id. at 856. We reasoned that an officer’s decision to broadcast a lookout over the police radio does not, by itself, create reasonable suspicion for another officer to stop the vehicle.

The same result applies here. Aside from a vague reference to possible contraband in the trunk, the lookout itself contained no specific, articulable facts suggesting criminal activity on the part of the occupants of the Honda. Although the lookout very well may have been based on particularized facts supporting an inference of criminal conduct, the State failed to present evidence of such a factual basis, as was its burden, and we cannot assume the existence of reasonable suspicion for the stop in the absence of such evidence. Tarwid, supra; see also Painter, supra at 877-878 (vague, overly general information given by one officer to another that defendant may have been dealing in narcotics did not justify investigatory stop of defendant). To hold otherwise would permit police officers who themselves lack legitimate grounds for a stop to manufacture such grounds simply by broadcasting a lookout for a particular vehicle over the police radio. The State could then avoid suppression of any incriminating evidence merely by failing to disclose the source or basis of the lookout. We cannot allow the requirements of the Fourth Amendment to be circumvented in this manner.

The State correctly points out that Kicklighter was entitled to rely on information received over the police radio. Because a valid investigatory stop may be based on the collective knowledge of law enforcement, Kicklighter alone was not required to possess all of the information giving rise to a reasonable suspicion of criminal activity before acting upon the lookout. See Tarwid, supra at 855. Thus, we do not suggest that Kicklighter himself acted unreasonably in stopping the Honda. However, this does not obviate the State’s burden of coming forward with sufficient evidence that the collective knowledge of law enforcement officers gave rise to reasonable suspicion that would justify a Terry-stop. Id. at 856; see also State v. Fowler, 215 Ga. App. 524, 525 (451 SE2d 124) (1994) (“That which is insufficient in its own right cannot be made sufficient by the fact that it is broadcast over a police network.”). The State was required to come forward at the suppression hearing with evidence that some other law enforcement officer or officers upon whom Kicklighter might reasonably have relied possessed articulable and specific facts to justify the stop of the Honda. In other words, to survive a Fourth Amendment challenge, the State had to present some evidence of the factual basis for the lookout. As Kicklighter was unable to provide such evidence, it was incumbent upon the State to produce it from some other credible source.

The State asserts that this case is analogous to State v. Holton, supra, which involved the sufficiency of an anonymous tip to the police. In Holton, the tipster reported that the defendant and his wife would drive to a certain liquor store in a certain car at a certain time and sell marijuana out of their car in the parking lot. Police staked out the liquor store, saw the defendant’s car arrive as described, and watched several men approach the car and kneel beside it. Although police could not determine whether illegal activity was taking place, they detained the defendant for questioning and, upon searching the car, discovered marijuana. We concluded that the stop was justified because the anonymous tipster predicted the defendant’s future behavior in detail, and the police were able to corroborate every aspect of the tip except the transmission of marijuana. The State contends that here, as in Holton, Kicklighter was able to corroborate innocent details of the lookout, including the description and license plate of the vehicle, the race and number of occupants, and the general direction of travel. In light of this “corroboration,” the State maintains that the lookout was sufficient to establish reasonable suspicion.

This case differs substantially from Holton. Assuming the lookout was based on an anonymous tip — an assumption wholly without support in the record — the tip contained no facts that would create a suspicion of criminal activity. While an anonymous tip may give rise to reasonable suspicion if portions of the tip are sufficiently corroborated,

Decided September 15, 1999.

George A. Waters, for appellants.

[i]n order for the corroboration to be meaningful enough to show reliability, . . . the information corroborated must include a range of details relating not just to easily obtained facts and conditions existing at the time of the tip, but to future actions of third parties ordinarily not easily predicted. In short, the information corroborated will generally need to be a prediction of future behavior ... or something similar — that is, inside information not available to the general public.

(Citations and punctuation omitted.) VonLinsowe v. State, 213 Ga. App. 619, 621 (1) (445 SE2d 371) (1994). Here, the lookout merely stated that a certain car with a certain number of passengers would be traveling north on 1-95 toward one of the Carolina states and that the trunk possibly contained unspecified “contraband.” This is simply not the kind of predictive “inside information” about alleged criminal activity that can be meaningfully corroborated and that is necessary to support an investigatory stop. See id.; Moreland v. State, 204 Ga. App. 218-219 (418 SE2d 788) (1992); Johnson v. State, 197 Ga. App. 538, 539-540 (398 SE2d 826) (1990). Holton stands for the proposition that when police receive a detailed anonymous tip predicting future criminal activity, they need not corroborate every aspect of the tip before initiating a stop. Holton does not hold, however, that an anonymous tip that is bare of any details suggesting criminal behavior may justify a stop.

Because the State failed to present any evidence that the lookout in question was based on specific, articulable facts that gave rise to a reasonable suspicion of criminal activity, we conclude that the investigatory stop of the Honda violated the Fourth Amendment. The subsequent search was therefore tainted, and its results should have been suppressed. See Tarwid, supra at 856.

Judgment reversed.

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

J Thomas Durden, Jr., District Attorney, John A. Dow, Assistant District Attorney, for appellee.

       McSwain also was charged with driving under the influence of marijuana and driving with a suspended license.

       Lawson also filed a notice of appeal, but has not joined in this appeal.


author: Ellington, Judge.

text:
    A99A1409.
    PRINGLE et al. v. JAGANAUTH.
    (522 SE2d 560)
   Ellington, Judge.

This appeal arises from the trial court’s granting a motion to dismiss a personal injury claim due to the plaintiffs’ failure to properly serve defendant, Chitara Jaganauth, with process pursuant to OCGA § 40-12-2.

The trial court’s exercise of discretion in this matter will not be overturned on appeal, unless it has been abused. Abelt v. Nelson, 204 Ga. App. 501 (419 SE2d 749) (1992).

On December 30, 1994, Jaganauth was involved in an automobile collision with a vehicle driven by Tamila Pringle and occupied by Ernest Pringle. At the time of the collision Jaganauth was a nonresident motorist.

On or about September 18, 1996, Jaganauth received a certified letter dated September 16, 1996, from a South Carolina law firm. The letter included a copy of a complaint which had purportedly been filed against her in the State Court of Chatham County. However, suit was not filed in this case until October 10, 1996.

On January 8, 1997, nine days after the expiration of the statute of limitation, the summons and complaint in this case were received by the Secretary of State. The certificate of filing was filed by the Secretary of State in the State Court of Chatham County on January 21, 1997.

On September 11, 1998, Jaganauth filed a motion to dismiss on the grounds that defendant had not been lawfully served with process and that the Pringles’ complaint was barred by the statute of limitation. On December 7, 1998, Jaganauth’s motion to dismiss was granted.

1. The trial court properly granted Jaganauth’s motion to dismiss for failure to properly serve defendant with process.

On the date of the automobile collision giving rise to this lawsuit, Jaganauth was a non-resident motorist as defined by OCGA § 40-12-1. The appropriate method for serving a non-resident motorist is prescribed in OCGA § 40-12-2. The requirements of that Code section are in derogation of the common law and must be strictly construed and fully complied with before a court of this state may obtain jurisdiction over a non-resident motorist. Babb v. Cook, 203 Ga. App. 437, 439 (2) (417 SE2d 63) (1992).

Given the evidence, we find that the Pringles failed to comply with the requirements of OCGA § 40-12-2. On October 29, 1998, the trial court ordered the Pringles to provide a copy of the return receipt from the registered or certified mailing of the summons and complaint as required by OCGA § 40-12-2. On November 12, 1998, in response to the trial court’s order, the Pringles filed a receipt for the certified mailing of the complaint and summons dated September 26, 1996, prior to the October 10, 1996 date that suit was filed in this case. The fact that Jaganauth may have had actual knowledge of the complaint prior to the time of filing by virtue of her receipt of the September 16, 1996 letter, a process not in compliance with the requirements of the statute, is not adequate. Bible v. Bible, 259 Ga. 418, 419 (383 SE2d 108) (1989).

2. The trial court did not err in finding that plaintiffs failed to use due diligence in serving the defendant after the statute of limitation had expired.

When an action is filed within the period of limitation, but not served upon the defendant within the limitation period, or within five days thereafter, the plaintiff must establish that service was made in a reasonable and diligent manner as required by OCGA § 9-11-4 (c). If reasonable and diligent efforts are not made to ensure proper service as quickly as possible, the plaintiff is guilty of laches and service will not relate back to the time of filing of the complaint for the purpose of tolling the statute of limitation. Bowman v. U S. Life Ins. Co., 167 Ga. App. 673 (307 SE2d 134) (1983). The plaintiff has the burden of showing that due diligence was exercised. Starr v. Wimbush, 201 Ga. App. 280, 281 (1) (410 SE2d 776) (1991).

The Pringles offer as evidence of due diligence three canceled checks to the Secretary of State’s office dated October 9,1996, and an affidavit by plaintiffs’ counsel stating that

to the best of my recollection [I] believe that this office forwarded to the defendant, by certified mail, return receipt requested, a copy of the summons and complaint after the filing of said lawsuit; however I am currently unable to locate same.

However, the record indicates that on January 8,1997, nine days after the expiration of the statute of limitation, the summons and complaint in this case were received by the Secretary of State. A search of the records maintained by the Secretary of State revealed that the summons and complaint had not been received in that office between the period of September 1, 1996 and January 8, 1997. The Pringles offer no evidence to support the assertion that the Secretary of State played a role in causing the delay in service of process. The Pringles’ only other offer of proof of service upon the defendant is a return receipt dated almost one month before the date suit was filed. Based on this evidence, we find that the trial court did not abuse its discretion in determining that the Pringles did not show that they acted in a reasonable and diligent manner in attempting to ensure that proper service was made as quickly as possible and properly granted Jaganauth’s motion. See Walker v. Hoover, 191 Ga. App. 859, 860 (383 SE2d 208) (1989).

Decided September 15, 1999.

Joyce M. Griggs, for appellants.

Shivers & Associates, Eric A. Brewton, for appellee.

Judgment affirmed.

Blackburn, P. J., and Barnes, J., concur.


author: Eldridge, Judge.

text:
    A99A1632.
    In the Interest of K. M. et al., children.
    (522 SE2d 667)
   Eldridge, Judge.

Appellant appeals from a Spalding County Juvenile Court order which relieved the county Department of Family & Children Services (“DFCS”) from pursuing the reunification of the appellant with her four children. We affirm the trial court’s order.

In her sole enumeration of error, the appellant challenges the sufficiency of the evidence. In her brief to this Court, the appellant repeatedly refers to statutes and cases involving the termination of parental rights and, in so doing, contends that the State failed to prove that the causes of the children’s deprivation are likely to continue. See OCGA § 15-11-81 (b) (4) (A) (iii).

However, the applicable standard for determining whether the State may cease reunification efforts was codified in 1996. See Ga. L. 1996, pp. 474-480, § 1. Under OCGA § 15-11-41 (c), the State must submit a report to the trial court within 30 days after removing a child from the home. Such report must include either a reunification plan or “a statement of the factual basis or bases for determining that a plan for reunification is not appropriate.” OCGA § 15-11-41 (c); see also OCGA § 15-11-41 (g). In the latter circumstance, the trial court shall conduct a hearing within 30 days of the filing of the report to make a determination regarding reunification. OCGA § 15-11-41 (f). After hearing evidence, the trial court

shall determine by clear and convincing evidence whether reasonable efforts to reunify a child with his or her family will be detrimental to the child and that reunification services, therefore, should not be provided or should be terminated.

OCGA § 15-11-41 (i).

However, if the trial court finds clear and convincing evidence of certain criteria, there shall be a presumption that reunification efforts should not be provided. OCGA § 15-11-41 (i). Such criteria include the following:

(1) [t]he parent has unjustifiably failed to comply with a previously ordered plan designed to reunite the family; (2) [the] child has been removed from the home on at least two previous occasions and reunification services were made available on those occasions; [or] (3) [a]ny of the grounds for terminating parental rights exist, as set forth in subsection (b) of Code Section 15-11-81.

OCGA § 15-11-41 (i) (l)-(3). The grounds for termination of parental rights include, inter alia, a medically verifiable health deficiency which prevents the parent from adequately providing for the children’s needs; the excessive, unrehabilitated abuse of alcohol or drugs; the physical, mental, or emotional neglect of the children; or the failure to care or support the children as required by law or judicial decree. OCGA § 15-11-81 (b) (4) (B), (C).

In demonstrating that reunification was not appropriate in this case, the State showed that, in July 1998, the appellant was a 22-year-old unmarried woman with a tenth grade education and a negligible work history. The appellant had four children: K. M., a girl born in August 1992; twins, a girl and a boy with the same initials, B. M., bom in May 1995 (hereinafter “the twins”); and J. G. M. S., an infant boy born in August 1997. Collectively, the children suffer from a variety of health problems, including heart murmurs, asthma, chronic ear infections, anemia, and severe dental decay.

The three oldest children were placed in foster care in December 1995, due to physical abuse and medical neglect by the appellant. At that time, the children and the appellant were living in the maternal grandmother’s home. DFCS workers determined the home to be “unlivable” and unsafe for the children. The children subsequently were adjudicated deprived and placed in foster care.

DFCS developed a reunification plan for the appellant. As part of its reunification efforts, DFCS performed the following services for the family: provided cribs for the twins; arranged for extermination services; hauled debris from the yard; drained the septic tank; installed a carbon monoxide detector; replaced portions of the floor, steps, windows, and doors; and repaired the roof and heater. Food vouchers were provided, and a community service worker was assigned to assist the appellant in caring for the house and preparing for reunification.

The children were returned to the appellant’s care in May 1996; the family still resided with the grandmother. However, a month later, the grandmother complained to DFCS that the appellant was not assisting in the care of the children. The grandmother reported that the appellant stayed out all night, brought her friends home to stay overnight in the children’s bedroom, and was “disruptive,” causing a “big problem” in the household. The appellant failed to take the' children for medical care, maintain employment, comply with her case plan, or participate in the state Peach employment training program. Because she was not participating in the Peach program, the family eventually lost its state medical, financial, and nutritional program benefits. The grandmother was unable to afford medication for the children and contacted DFCS for additional assistance, including the placement of the children in foster care. On July 25, 1996, on motion by DFCS, the juvenile court ordered the appellant to move out of the grandmother’s home due to her failure to care for the children and her non-compliance with the DFCS plan, and so that the family could qualify for state benefits. The appellant was prohibited from returning without the court’s permission. The appellant formally lost custody of the children in January 1997, and custody was placed in the grandmother.

Soon thereafter, the appellant returned to the grandmother’s home because she was pregnant, unmarried, unemployed, and homeless. In August 1997, the appellant gave birth to a fourth child, J. G. M. S. DFCS sent a letter to the grandmother which notified her that the appellant’s presence was a violation of the grandmother’s DFCS case plan and again instructed the appellant to move out of the home.

A month later, in September 1997, DFCS received a call from a babysitter with whom the twins had been left for several hours. Neither the appellant nor the grandmother had returned to pick up the children, the babysitter did not know how to reach them, and she could no longer care for the children. Both children were hungry and “filthy”; had soiled diapers and severe diaper rash; had untreated, bleeding sores in their nostrils; multiple sores on their legs and feet; and bruises on their legs, arms, and noses. The female twin had a large, untreated scratch on her chest.

The older child, K. M., was located at school, where she had been enrolled that morning, two weeks after the beginning of the fall term. She also had severe, untreated head lice.

The children again were adjudicated to be deprived and were placed in foster care. DFCS arranged for visitation, but the appellant repeatedly failed to show up for the appointments. According to DFCS, between September 1997 and April 1998, the appellant missed 12 appointments with the infant boy. DFCS workers also testified that the appellant acted inappropriately during visits with the older children by criticizing DFCS and the foster parents; giving the children money, candy, and food and telling them to hide it from DFCS and the foster parents; and promising the children that they would come home soon, where there were many presents waiting for them. Dr. Yvonne Neiner, a clinical psychologist, evaluated K. M. and determined that the visitations were harmful, in that the appellant’s actions “provided an excellent opportunity to learn how to be thoroughly manipulative and cunning.” In her opinion, since it appeared that reunification was unlikely, the visits prevented the child from adjusting to her new situation. Accordingly, she recommended that visitations be halted.

In December 1997, DFCS notified the juvenile court that it would not be pursuing reunification and gave its reasons therefor. See OCGA § 15-11-41 (c), (g). The trial court issued an order halting visitation in March 1998.

Pursuant to OCGA § 15-11-41 (f), a non-reunification hearing was conducted on May 11, 1998, and continued on July 9, 1998. Several witnesses testified to the above facts. In addition, Dr. Neiner testified that K. M. suffered from an adjustment disorder, “sleeplessness, anxiety, oppositional behavior, worry, [and was] refusing to eat.”

The appellant testified and admitted making several “bad choices” regarding her children. She blamed her failure to care for the children, work, or participate in a job training program on pain and bleeding she suffered due to endometriosis. The appellant presented medical records documenting treatment for such condition. During such treatment, which began in 1995, the appellant became addicted to pain medication and unsuccessfully participated in drug rehabilitation during her pregnancy with the twins. She admitted that she was still addicted to pain medication. The appellant testified that she had tentatively arranged for a hysterectomy to stop the bleeding, but admitted that there was no proof that the surgery would alleviate the pain. She also admitted that such surgery would necessarily be followed by a period of recovery and drug rehabilitation.

The appellant also testified that she was currently unable to care for the children; she was unemployed and could not support the children, had never financially supported the children, and had never paid child support to DFCS; she lived in the home of a male friend and did not pay for rent or utilities; and she relied on church members and friends to pay for her pain medications and to provide other necessities. However, she asserted that, once she has the surgery, she would be able to go through drug rehabilitation, complete her GED, get job training, secure employment, and find and maintain a home. In fact, she hoped to do all of this while simultaneously caring for four small children, even though she had never previously provided for all four of her children at the same time and, in fact, had never cared for any of the children without substantial assistance from the grandmother and the state.

After hearing the evidence, the trial court concluded that there was clear and convincing evidence which supported a presumption that reunification services should not be provided. OCGA § 15-11-41 (i). In its order, the trial court specifically found that this was the third time that the children had been removed from appellant’s care; that DFCS had previously undertaken reasonable efforts to reunify the family; and that the appellant had unjustifiably failed to comply with these reunification plans. A finding of any one of the criteria was sufficient to support a presumption that further reunification efforts should not be provided. OCGA § 15-11-41 (i).

However, in addition to these findings, the trial court also found that the appellant had a medically verifiable physical deficiency; that the appellant was addicted to pain medication; and that these problems were likely to continue to harm the children.

On appeal, the appellant argues that her neglect of her children should be “excused” because of her health problem. She also claims that she will be able to “repair her family” after surgery, because the cause of the children’s deprivation, i.e., her endometriosis, will be remedied.

However, the appellant had been the beneficiary of extensive reunification efforts by DFCS, to no avail. The possibility that appellant’s illness may be treated in the future does not address the trial court’s clear determination that such illness was not the sole cause of and did not justify the appellant’s failure to take advantage of these reunification opportunities or otherwise explain or excuse her longstanding and pervasive neglect of the children. Judging the credibility and weight of the evidence was a task for the trial court, and this Court must defer to the trial court’s findings as long as they are supported by clear and convincing evidence. In the Interest of L. S. M., 236 Ga. App. 537, 538 (512 SE2d 397) (1999).

After reviewing the record, this Court finds that there was sufficient clear and convincing evidence to support the trial court’s finding that several criteria for non-reunification had been met, thereby creating a presumption that additional reunification services should not be provided. See OCGA § 15-11-41 (i). Therefore, we affirm the trial court’s order.

Judgment affirmed.

Blackburn, P. J., and Barnes, J., concur.

Decided September 15, 1999.

Rosamund R Braunrot, for appellant.

Thurbert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen A. Sgrosso, Assistant Attorney General, Cheeley & King, John P. Cheeley, Tammy M. Griner, for appellee.


text:
    A99A1674.
    A99A1675.
    DAVIS v. BUTLER et al. DAVIS v. McDONNELL.
    (522 SE2d 548)
   Eldridge, Judge.

This abusive litigation action arose from an underlying legal malpractice action by James R McDonnell against Dock H. Davis, his former lawyer, which former action was based upon Davis’ representation in the estate of Roy Allison Jones, McDonnell’s father and a deceased Louisiana citizen. On October 16, 1992, Larry Kent Butler, Frank R. Seigel, and John J. Lindsay, as members of the law firm of Cofer, Beauchamp & Butler, filed the legal malpractice action on behalf of McDonnell against Davis in Fulton Superior Court in Civil Action No. E-7406. As a professional malpractice action, the suit was supported by an affidavit which stated, in the expert’s opinion, that Davis had deviated from the standard of care and had violated several provisions of the Code of Professional Conduct. On March 18, 1994, Civil Action No. E-7406 was transferred to Heard Superior Court, where it was re-designated as Civil Action File No. 94V79-A.

On April 14, 1994, in Civil Action File No. 94V79-A (E-7406), Davis as defendant moved for summary judgment as to all theories of liability against him. In such motion, Davis contended that McDonnell acted with malice and without substantial justification in bringing suit against Davis. However, in a 13-page order, the trial court denied the motion for summary judgment on all theories of liability. The trial court specifically found that there was a conflict of material evidence which created a jury question as to such issues. Further, the order stated that there were disputed material issues of fact for jury determination as to Davis’ alleged acts or omissions of conversion, mismanagement of funds, failure to account, excessive fees, fraud, and usury on loans to McDonnell. Davis advanced funds to McDonnell five times, charged interest twice, and failed to advise the client that such interest-free loans could affect Davis’ independent judgment.

On March 14, 1996, McDonnell dismissed the civil action without prejudice.

On March 12, 1997, Davis sued McDonnell and Cofer, Beauchamp & Butler, the defendants herein for abusive litigation under OCGA § 51-7-81 et seq. On July 31, 1997, the lawyer defendants moved for summary judgment. On November 21, 1997, a hearing was held on the motion. On November 24, 1997, the trial court granted summary judgment to the lawyer defendants.

Case No. A99A1674

1. Davis contends that the trial court erred in granting summary judgment, because the underlying action lacked substantial justification and was brought with malice. We do not agree.

OCGA § 51-7-81 provides that a right of action for abusive litigation exists when “[ajny person who takes an active part in the initiation, continuation, or procurement of civil proceedings against another shall be liable for abusive litigation if such person acts: (1) [w]ith malice; and (2) [w]ithout substantial justification.” OCGA § 51-7-80 (5) defines “malice” to mean “acting with ill will or for a wrongful purpose.” OCGA § 51-7-80 (7) defines “without substantial justification” as “[firivolous,” “[g]roundless in fact or in law,” or “[vjexatious.” OCGA § 51-7-80 (8) defines “wrongful purpose” as “[ajttempting to unjustifiably harass or intimidate another party or witness to the proceeding” or “[ajttempting to unjustifiably accomplish some ulterior or collateral purpose other than resolving the subject controversy on its merits.”

(a) As a threshold issue, compliance with the notice requirement as a condition precedent under OCGA § 51-7-84 (a) must be satisfied, because this statute is in derogation of common law and must be strictly construed against the party asserting the right of action under such Act. Owens v. Generali U. S. Branch, 224 Ga. App. 290, 292 (480 SE2d 863) (1997); Kirsch v. Meredith, 211 Ga. App. 823, 825 (440 SE2d 702) (1994); see also Bo Fancy Productions v. Rabun County Bd. of Commrs., 267 Ga. 341, 343 (1) (478 SE2d 373) (1996); Caldwell v. Corbin, 152 Ga. App. 153, 158 (3) (262 SE2d 516) (1979). OCGA § 51-7-84 (a) mandates that

[a]s a condition precedent to any claim for abusive litigation, the person injured by such act shall give written notice by registered or certified mail or some other means evidencing receipt by the addressee to any person against whom such injured person intends to assert a claim for abusive litigation.

Davis alleged in his complaint that each defendant received such notice, but he failed to attach such ante litem notice to his complaint in order to demonstrate satisfaction of such condition precedent to the right of action for abusive litigation. None of the defendants admitted to receiving such essential notice. In his personal affidavit in opposition to defendants’ motion for summary judgment, Davis neither testified that the notice was given nor attached a copy of the notice with the mailing receipts. Thus, there was no evidence in the record that the notice requirement as a condition precedent had ever been satisfied. Therefore, summary judgment was properly granted, even if for a different reason. OCGA § 51-7-84 (a); Phillips v. MacDougald, 219 Ga. App. 152, 157 (4) (464 SE2d 390) (1995).

(b) Further, on Davis’ motion for summary judgment in the underlying action in Heard County, which was alleged by Davis to have been abusive litigation, the trial court found such action to have “substantial justification” on all theories of liability, because such suit created jury questions that could not be resolved as a matter of law by the trial court in Davis’ favor. Where the trial court finds in the alleged abusive litigation that such action withstands the attack by motion for summary judgment and is entitled to a trial by jury, although the plaintiff may lose at trial, such denial of summary judgment constitutes a legal determination that the action has substantial justification, because it is not groundless or frivolous and can proceed to jury trial. Thus, it was not groundless, frivolous, or vexatious in fact or in law. OCGA § 51-7-80 (7); Owens v. Generali U.S. Branch, supra at 294; Phillips v. MacDougald, supra at 157.

We note that although questions of fact are usually for the jury’s determination, whether or not [McDonnell’s] suit had a basis in law at the time it was filed is a question of law. It was therefore appropriate for the trial judge to pass on this issue of law in determining whether [McDonnell’s] suit was without legal foundation when it was filed.

Owens v. Generali U S. Branch, supra at 293.

Contrary to [Davis’] argument, the previous denial of summary judgment to [Davis] constitutes a binding determination that the claim against [him] did not lack substantial justification, and consequently proof of that denial established that [the defendants were] entitled to judgment in this case as a matter of law.

(Citations omitted.) Walker v. McLarty, 199 Ga. App. 460, 461 (405 SE2d 294) (1991), overruled on other grounds, Graves v. State, 269 Ga. 772 (504 SE2d 679) (1998). Although Walker v. McLarty, supra, relied upon cases construing the meaning of OCGA § 9-15-14, such cases determined the meaning and means of proof of substantial justification under such statute. Substantial justification as used in OCGA § 9-15-14 has an identical meaning as under OCGA § 51-7-80 et seq. In fact, the General Assembly sought to harmonize the two statutes in language, and OCGA § 51-7-80 et seq. makes specific reference to OCGA § 9-15-14. Ga. L. 1989, p. 408, § 2; OCGA §§ 51-7-83; 51-7-85; Hallman v. Emory Univ., 225 Ga. App. 247, 248-249 (483 SE2d 362) (1997) (physical precedent only).

While there was some evidence of a settlement conversation between Davis and the defendants prior to suit which could be construed under the statutory definition of malice to give rise to a jury issue, an action for abusive litigation requires both malice and lack of substantial justification as essential elements of the action. OCGA § 51-7-81; Owens v. Generali U S. Branch, supra at 295. The trial court found as a matter of law that the underlying action was brought with substantial justification. Therefore, summary judgment was appropriate. Id. at 294-295.

Case No. A99A1675

On April 9,1997, a sheriff’s deputy made a non est return of service as to James P. McDonnell in this action, showing that he did not live at 6850 Peachtree-Dunwoody Road, Atlanta, his mother’s house at that time. While Davis contends that McDonnell was served in this action, there is nothing in the records of Case No. A99A1674 or A99A1675 to demonstrate that he was personally served. On September 23, 1997, Richard A. Lopez gave an affidavit that he served the summons/complaint on James P. McDonnell’s mother, Juanita McDonnell, on that date at 6850 Peachtree-Dunwoody Road, Atlanta, Georgia, but the affidavit failed to state that she lived there or that at such time this was the residence of James P. McDonnell. Davis contended that McDonnell had been validly served and was in default for failure to file an answer. On September 25, 1997, the abusive litigation case, as to McDonnell, first appeared on a default/no-service calendar in the trial court.

On October 10, 1997, the calendar clerk sent to Davis a notice of a status conference with the trial court to determine what issues were left pending. On October 16, 1997, Davis filed Lopez’s affidavit. On November 17, 1997, the status conference was held. On November 21, 1997, the hearing on the motion for summary judgment was held and granted; the order was filed November 24, 1997.

Davis requested that the clerk put the default on an inactive status pending the appeal of the grant of the summary judgment to the other defendants. However, on December 18, 1997, the Fulton County Daily Report published notice of a default/no-service calendar for 1:00 p.m. on January 28,1998, by order of the trial court. The calendar contained the style of the case, i.e., names of parties, case number, defense counsel of record, and counsel for plaintiff pro se. Notably, on the complaint, Davis did not sign or state that he was counsel of record for himself but did provide his Georgia Bar number; this was how he signed most of the pleadings in this case. However, in Davis’ response to the motion for summary judgment and related pleadings, Davis signed and indicated that he was attorney for the plaintiff.

Davis admitted that he did not personally check any published calendars but instead relied upon his secretary and two reporting services to check the calendars only for the listing of his name as attorney of record. The persons relied upon by him to check published calendars did not check case names, case file numbers, or indications of pro se representation. Thus, they missed Davis’ case, because for counsel the paper only indicated pro se, which required the checker to examine the style of the case to determine to whom the pro se referred for such case. As such, the notice contained Davis’ name as a party, but not where he expected it to be. “[I]n searching the published calendar, attorneys and their calendar assistants look for the names of counsel, not the names of cases.” Brown v. C & S Nat. Bank, 245 Ga. 515, 518 (265 SE2d 791) (1980).

On January 19, 1998, the clerk of the trial court mailed written notice of the default/no-service calendar to Davis at P. O. Box 728, Franklin, Georgia 30217-0728, with postage meter marked Atlanta, January 23, 1998. However, the complaint listed Davis’ address as One Northside 75, Suite 108, 1675 Northside Drive, N.W., Atlanta, Georgia 30318 as the return for service address. Even so, Davis admitted that the Franklin address was one of Davis’ offices.

On January 30, 1998, the trial court dismissed without prejudice James McDonnell for want of prosecution with copies going to Davis and McDonnell, when Davis did not appear at the calendar call of the default/no-service calendar on January 28, 1998. On March 2, 1998, after the expiration of the January-February Term of Fulton Superior Court, Davis filed a motion to set aside the dismissal. In support of such motion, Davis attached his affidavit, which stated “[t]he notice of hearing probably arrived at my office on 27 January 1998.1 was not at the Franklin Office on that day and the envelope with the notice was opened Wednesday afternoon between 1:00 and 2:00 P. M., after Wednesday’s mail arrived.” On May 5, 1998, the trial court denied the motion.

2. On appeal, Davis contends that the notice by publication in the Fulton County Daily Report by the trial court was legally insufficient.

OCGA § 9-11-40 (a) provides that “[a]ll civil cases . . . shall be triable any time after the last day upon which defensive pleadings were required to be filed therein.” Under OCGA § 9-11-40 (c), “[t]he courts shall provide for the placing of actions upon the trial calendar: (1) [w]ithout request of the parties but upon notice to the parties.”

When timely notice of the trial calendar, with the case style, case number, counsel of record, and pro se status, is published in the legal organ of the county, such notice satisfies notice requirements and is adequate under OCGA § 9-11-40 (c). See OCGA § 9-11-60 (d) (3); Brown v. C & S Nat. Bank, supra at 517-519; Spyropoulos v. John Linard Estate, 243 Ga. 518, 519 (255 SE2d 40) (1979); McNally v. Stonehenge, Inc., 242 Ga. 258 (248 SE2d 653) (1978); East India Co. v. Marsh & McLennan, Inc., 160 Ga. App. 529, 531 (1) (287 SE2d 574) (1981); Martin v. Foxboro Co., 149 Ga. App. 719 (256 SE2d 34) (1979).

Davis’ name was listed in the published notice as part of the style of the case as plaintiff and as pro se, but not as “Attorney for plaintiff,” because on the complaint, he did not indicate that he was attorney for plaintiff of record in the signature designation but “signed his pleading and stat[ed] his address” instead as pro se, although he indicated his status as a member of the bar by inclusion of his bar number. See OCGA § 9-11-11 (a). The representation that the person signing the pleadings is doing so as attorney for such party indicates to the trial court: (1) that the pleadings are not interposed for delay; (2) that the person is a lawyer in good standing; and (3) that the person has authority to act for the designated party. In re Carter, 235 Ga. App. 551, 553 (1), n. 11 (510 SE2d 91) (1998); McCormick v. Acree, 232 Ga. App. 834 (503 SE2d 88) (1998); OCGA § 15-19-7. The signature line of the pleadings did not comply with the pleading requirements of the Civil Practice Act for Davis to be treated of record as “Attorney for plaintiff.” OCGA § 9-11-11 (a); see also Official Forms OCGA §§ 9-11-103 through 9-11-118. Any pro se litigants are on notice of their status in the case so that, when pro se appears where the name of counsel normally appears, they must take the additional step of examining the style of the case to determine if pro se refers to them, which should have been done in this case. Failure to comply with the pleading requirements of the CPA waived the pro se’s right in published calendars to be listed by name as attorney for plaintiff.

The published notice in this case was in substantial compliance with the notice requirements of OCGA § 9-11-40 (c), because it contained the name of the parties in the style of the case, the case number, counsel of record, and the designation pro se. See OCGA § 1-3-1 (c); see generally City of College Park v. Atlantic Southeastern Airlines, 194 Ga. App. 637, 639 (391 SE2d 460) (1990); Hart v. Columbus, 125 Ga. App. 625, 631 (2) (188 SE2d 422) (1972). The failure of Davis to receive notice by publication resulted from his own failure to personally read the published calendars and from his instruction to his secretary and two publication services to rely, not upon the published case names and file numbers, but only upon his designation as counsel of record for a party, ignoring his pro se status. Thus, this “party acting pro se . . . receive [d] notice of [the] hearing.” TMS Ins. Agency v. Galloway, 205 Ga. App. 896, 897 (424 SE2d 71) (1992); accord Housing Auth. of Atlanta v. Parks, 189 Ga. App. 97, 98 (374 SE2d 842) (1988). Therefore, no defect existed authorizing the setting aside of the judgment under OCGA § 9-11-60 (d) (3).

Decided September 15, 1999

Dock H. Davis, pro se.

Hawkins & Parnell, Thomas R. Mock, Jr., Matthew F. Barr, for Butler et al.

James P. McDonnell, pro se.

3. Division 2 determined that Davis had reasonable notice of the default/no-service calendar and that there was no nonamendable defect appearing upon the face of the record authorizing the judgment to be set aside under OCGA § 9-11-60 (d) (3). Therefore, the remaining enumerations of error are controlled by Division 2.

Judgment affirmed.

Blackburn, P. J., and Barnes, J., concur.


author: Johnson, Chief Judge.

text:
    A99A1813.
    TILLMAN v. THE STATE.
    (522 SE2d 557)
   Johnson, Chief Judge.

Shannon Tillman appeals from his armed robbery conviction. He claims the court erred in determining that his reasons for striking three members of the jury pool were not race-neutral and in admitting his statement to police into evidence. The claims are without merit, and we therefore affirm Tillman’s conviction.

1. A defendant may not engage in purposeful discrimination on the basis of race in the use of peremptory challenges. Wilburn v. State, 230 Ga. App. 619, 622 (2) (497 SE2d 380) (1998). When the state claims a defendant used peremptory challenges in a racially discriminatory manner, the trial court must engage in a three-step process. Id. The state must first make a prima facie showing of racial discrimination; the defendant next has the burden of giving race-neutral reasons for the strikes; and the trial court then must decide whether the state has proven discriminatory intent. Id.

In the instant case, the trial court correctly employed the three-part analysis. The state first made out a prima facie case of racial discrimination by showing that Tillman, who is African-American, struck a total of 14 jurors, all of whom are white. “[T]his overwhelming use of peremptory strikes to exclude jurors of one race establishes a prima facie showing of discrimination.” (Citation and punctuation omitted.) McKenzie v. State, 227 Ga. App. 778, 780 (2) (490 SE2d 522) (1997).

Tillman next explained the reasons for his strikes. As for the three jurors in question, Tillman said he struck two of them because they know a sheriff’s investigator who ultimately testified in the case and he struck the other juror because her son-in-law is a correctional officer and she had been a crime victim. Because no discriminatory intent is inherent in Tillman’s explanations, those explanations were facially race-neutral. See McKenzie, supra at 778-779.

The state responded that Tillman had not struck African-American jurors who also know the investigator, who have law enforcement officers in their families or who have been crime victims. The court concluded that the state had met its burden of proving Tillman’s discriminatory intent as to three jurors.

Because the trial court correctly utilized the three-part test, our only duty is to review the court’s conclusion. Joseph v. State, 231 Ga. App. 399, 402 (1) (498 SE2d 808) (1998). We are required to review the trial court’s findings with great deference, and we cannot disturb the findings unless they are clearly erroneous. Wilburn, supra.

Based on the record before us, we cannot find that the court’s conclusion is clearly erroneous. In determining whether a defendant’s facially race-neutral explanations for his use of peremptory strikes are pretexts for purposeful discrimination, the trial court may consider whether similarly situated members of another race were seated on the jury. McKenzie, supra at 779 (1). Because there is some indication in the record that Tillman did not strike African-American jurors who were situated similarly to the white jurors he struck, we must defer to the trial court’s judgment and uphold its finding of purposeful discrimination. See Blair v. State, 267 Ga. 166, 167 (2) (476 SE2d 263) (1996); Russell v. State, 230 Ga. App. 546, 548-549 (2) (497 SE2d 36) (1998).

2. Contrary to Tillman’s claim, the court did not improperly admit into evidence a statement he made to police after invoking his right to counsel. The uncontradicted evidence shows that after Tillman was arrested he was taken to a police station where a Georgia Bureau of Investigation agent wanted to interview him. Before the GBI agent spoke with him, Tillman asked a police detective if he could have a lawyer present during the questioning. The detective told Tillman that he could have a lawyer and that he did not have to talk with the agent, but that if he did want to talk at that time he could not wait for an attorney to arrive because he was about to be transferred to another county. Tillman then agreed to talk with the agent without an attorney present.

Decided September 15, 1999.

Kathy S. Palmer, for appellant.

Richard A. Malone, District Attorney, for appellee.

James C. Bonner, amicus curiae.

The detective told the GBI agent about his conversation with Tillman. So the agent, before questioning Tillman, reiterated to him that he had the right to an attorney and that he had the right not to talk with the agent. The agent fully informed Tillman of his rights under Miranda v. Arizona, 384 U. S. 436 (86 SC 1602, 16 LE2d 694) (1966). Tillman again said that he wanted to talk with the agent without an attorney and signed a form waiving all his Miranda rights, including his right to a lawyer. Tillman then made his statement to the agent.

The police may not interrogate a suspect who is in custody and who has requested an attorney unless counsel is made available to the suspect or the suspect initiates further communication with the police. Haynes v. State, 269 Ga. 181, 183 (4) (496 SE2d 721) (1998). In the instant case, even if we assume that Tillman’s question to the detective about an attorney was an unequivocal assertion of his right to have a lawyer present during any police questioning, Tillman thereafter initiated further communication with the police by indicating to both the detective and the GBI agent that he wanted to speak with the agent at that time without waiting for a lawyer. See Ottis v. State, 269 Ga. 151, 153-154 (2) (496 SE2d 264) (1998); Tatum v. State, 203 Ga. App. 892 (1) (418 SE2d 152) (1992). Because Tillman freely and knowingly waived his right to an attorney, the court’s admission of his subsequent statement into evidence was not clearly erroneous and must be affirmed. Underwood v. State, 218 Ga. App. 530, 533-534 (2) (462 SE2d 434) (1995).

Judgment affirmed.

McMurray, P. J., and Phipps, J., concur.


author: POPE, Presiding Judge.

text:
    A99A0971.
    SAFFORD v. THE STATE.
    (522 SE2d 565)
   POPE, Presiding Judge.

On July 4, 1997, Lavoy Safford arrived at Atlanta Hartsfield International Airport on an international flight. Another man, Clifton Dennis, who was traveling on the same flight was stopped by a customs officer who discovered that Dennis had 1,000 grams of cocaine tucked inside a wetsuit underneath his clothing. Later, a second customs officer stopped Safford to question him. During the questioning, the officer observed that Safford appeared nervous and was sweating profusely. After inspecting Safford’s luggage, the officer conducted a pat-down search. During the pat-down the officer noticed “there was a stiffness, and stuff, lumpy” under Safford’s pants. The officer received authorization to conduct a partial strip search and discovered that Safford was wearing a wetsuit concealing four packages containing what was later determined to be 1,018 grams of cocaine.

Safford was charged with trafficking in cocaine. He was convicted following a bench trial and given the minimum sentence of 25 years in jail and a $1 million fine. He appeals his conviction.

1. Safford first contends the trial court erred in denying his motion to suppress on the ground customs officials lacked sufficient justification to conduct a partial strip search.

Routine border searches may be conducted without a warrant and without any requirement of reasonable suspicion or probable cause. United States v. Montoya de Hernandez, 473 U. S. 531, 538 (105 SC 3304, 87 LE2d 381) (1985). Therefore, this Court has found that

examination of a person by ordinary pat-down or frisk, the requirement that outer garments such as coat or jacket, hat or shoes be removed, that pockets, wallet and purse be emptied, are part of the routine examination of a person’s effects which require no justification other than the person’s decision to cross our national boundary.

(Citations and punctuation omitted.) Segree v. State, 186 Ga. App. 489, 491 (367 SE2d 882) (1988).

However, a strip search conducted at the border is considered non-routine and requires “reasonable” or “real” suspicion on the part of the customs official to meet the requirements of the Fourth Amendment. United States v. Vance, 62 F3d 1152, 1156 (9th Cir. 1995); United States v. Adekunle, 980 F2d 985, 987-988 (5th Cir. 1992). To meet this standard, the state must “demonstrate some objective, articulable facts that justify the intrusion as to the particular person and place searched.” (Citations and punctuation omitted.) United States v. Uricoechea-Casallas, 946 F2d 162, 166 (1st Cir. 1991); United States v. Handy, 788 F2d 1419, 1420 (9th Cir. 1986). Courts have held that a strip search is justified if a person behaves in an articulably suspicious manner. United States v. Carreon, 872 F2d 1436, 1442 (10th Cir. 1989); United States v. Vega-Barvo, 729 F2d 1341, 1345 (11th Cir. 1984).

Safford arrived in this country on an international flight from a known drug source country. When questioned by a customs officer, Safford appeared nervous and was sweating profusely. In addition, when the officer conducted a routine pat-down, he noticed a lump around Safford’s thigh. We find that these facts gave the officer reasonable suspicion to justify a partial strip search, and thus the trial court correctly denied Safford’s motion to suppress. See United States v. Vance, 62 F3d at 1156; United States v. Carreon, 872 F2d at 1442.

2. Safford next contends that his conviction should be reversed because the trial court failed to properly inquire whether he voluntarily waived his right to trial by jury.

“Although a jury trial may constitutionally be waived, the defendant must personally and intelligently participate in the waiver. Patton v. United States, 281 U. S. 276 (50 SC 253, 74 LE2d 854) (1930). However, defendant’s consent need not be in a particular, ritualistic form. Since form is unimportant, the only real issue is whether appellant intelligently agreed to a trial without jury. (Cits.) Johnson v. State, 157 Ga. App. 155 (1) (276 SE2d 667) (1981). When an accused questions the purported waiver of his right to a jury trial, the State must show on the record that the defendant personally, knowingly, voluntarily, and intelligently waived his right to a jury trial. (Cit.) Jones v. State, 212 Ga. App. 676, 679 (2) (442 SE2d 908) (1994); see Sims v. State, 167 Ga. App. 479 (1) (306 SE2d 732) (1983).”

(Punctuation omitted.) Pirkle v. State, 221 Ga. App. 657 (472 SE2d 478) (1996). One of the ways the state may prove this is by demonstrating from the record transcript that the defendant understood the rights he was waiving. Smith v. State, 230 Ga. App. 151, 152-153 (3) (495 SE2d 624) (1998).

The record in this case indicates that Safford appeared before the trial court at a hearing on his motion to suppress alongside Dennis, who was also charged with trafficking in cocaine. Both defendants were represented by the same attorney. After the court heard testimony and denied the motion, counsel represented that each defendant had decided to waive a jury trial and to have the court adjudicate his case based upon the evidence from the motion hearing. The judge then asked counsel to ask some questions on the record “to make sure they understand what they are doing if we’re going forward with a bench trial.” Dennis readily indicated that he understood he was waiving his right to a jury trial, but Safford had some questions. The judge explained that the defendants’ case was on a trial calendar for the following Monday. He told them they had a choice of having a jury hear the case the following week or having him hear the case and pass judgment that day. Safford initially nodded his head affirmatively when his counsel asked if he wanted to proceed with a bench trial, but then raised some additional questions. The district attorney represented that he had told the defendants that if they opted for a jury trial, he would write the parole board and recommend that they serve their full sentence. The judge told Safford he could decide whether to proceed that day or could wait until the following Monday to make his decision.

Decided September 16, 1999.

John A. Beall TV, for appellant.

Robert E. Keller, District Attorney, Clifford A. Sticker, Assistant District Attorney, Webb, Carlock, Copeland, Semler & Stair, Brian J. Amero, for appellee.

Dennis elected to proceed with a bench trial, and he was given the minimum sentence. Safford’s counsel then represented that Safford had reconsidered and wished to proceed with the same stipulation as Dennis. The trial court then asked Safford if he agreed, and he replied, ‘Yes, sir.”

We believe that the state met its burden of proving that Safford made an intelligent and knowing waiver of his right to trial by jury. The. trial court clearly informed Safford of his option to proceed with a jury trial and that he had additional time to decide. He had the opportunity to observe Dennis’s bench trial and to consult with his attorney before making his decision. Moreover, he had a clear incentive to waive his right to a jury trial in light of the recommendation of a minimum sentence and the state’s position regarding the parole board. Accordingly, we find no error. See Hansen v. State, 222 Ga. App. 537, 539 (3) (474 SE2d 735) (1996); McCollum v. State, 201 Ga. App. 493, 494 (1) (411 SE2d 328) (1991).

Judgment affirmed.

Smith and Eldridge, JJ., concur.

       See OCGA § 16-13-31 (a) (1) (C).

       Moreover, to the extent that the officers involved were aware that another individual on the same flight had been found to be concealing cocaine in a wetsuit, they would have an additional justification to conduct a partial strip search.


text:
    A99A1370.
    CROSBY v. THE STATE.
    (522 SE2d 571)
   Pope, Presiding Judge.

William Crosby was tried and convicted of two counts of incest. He appeals, and for the following reasons, we affirm.

Viewing the evidence in the light most favorable to the verdict, it showed that Crosby engaged in repeated acts of intercourse between 1993 and May 1996, with the victim, his stepdaughter. A Child Protection Services worker for the Bryan County Department of Family & Children Services testified that Crosby had been engaging in sexual intercourse with the victim for approximately three years. The victim’s examining physician testified that her examination of the victim was consistent with the alleged crime. The victim, who suffered from muscular dystrophy and was mildly retarded, also testified that Crosby had repeatedly had sexual intercourse with her. The victim’s sister corroborated the victim’s testimony.

1. In his first enumeration, Crosby contends that the trial court erred in admitting into evidence nude photographs of the victim which were not produced to him at least ten days before trial, as required by Uniform Superior Court Rule 31. Crosby also argues that the court’s failure to hold a hearing on this evidence as required by USCR 31 mandated its exclusion. Crosby contends that the evidence served no purpose except to reflect poorly on his character.

The seven photographs introduced at trial were nude photographs which were taken of the victim and her siblings. When the State introduced the photographs, a bench conference between the attorneys was held, during which defense counsel stated that he had just been made aware of the photographs, which had been found during a police search of the house. Defense counsel argued that the evidence was irrelevant, inflammatory and that the photographs had not been properly authenticated. When Crosby testified at trial, he denied that he took the photographs. At trial, Crosby failed to object to the photographs on the basis that he was not afforded notice or a hearing as to this evidence. And, we note that in light of the Supreme Court’s decision in Wall v. State, 269 Ga. 506 (500 SE2d 904) (1998), it is unlikely that such a hearing was necessary. Nevertheless, pretermitting the issue of whether Crosby waived his arguments as to notice and a hearing, whether a hearing was required, and whether these photographs constitute “similar transaction” evidence, we conclude that any alleged error was harmless. In other words, in light of the overwhelming evidence of Crosby’s guilt, it is highly probable that the admission of the evidence in question did not contribute to the verdict. See Brooks v. State, 232 Ga. App. 115, 116 (4) (501 SE2d 286) (1998).

Decided September 16, 1999

Lloyd D. Murray, for appellant.

J. Thomas Durden, Jr., District Attorney, James S. Archer, Assistant District Attorney, for appellee.

2. In his second enumeration, Crosby claims that the evidence is insufficient to support the verdict. We disagree and find that a rational trier of fact could find from the evidence adduced at trial proof of Crosby’s guilt of incest beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Smith and Eldridge, JJ, concur.

       In Stirrat v. State, 226 Ga. App. 350, 352 (2) (a) (486 SE2d 640) (1997), this court stated that “the defendant’s failure to object to the admission of similar transaction evidence on the basis that a Rule 31.3 (B) hearing was not conducted does not constitute a waiver of the procedure dictated by Rule 31.3 (B) and does not preclude our consideration of this issue on appeal.” Nevertheless, this court recognized that the Supreme Court has “called into question the continued vitality of this rule, at least with respect to cases involving evidence of prior difficulties between the defendant and the victim.” Id. at 352. See, e.g., Hartman v.

        State, 266 Ga. 613, 614 (2) (469 SE2d 163) (1996); Williams v. State, 267 Ga. 308, 309-310 (477 SE2d 570) (1996); see also State v. Belt, 269 Ga. 763 (505 SE2d 1) (1998).

       See Johnson v. State, 222 Ga. App. 722, 724-725 (2) (475 SE2d 918) (1996); Touchton v. State, 210 Ga. App. 700 (2) (437 SE2d 370) (1993).


text:
    A99A1773.
    CASTELLON v. THE STATE.
    (522 SE2d 568)
   Eldridge, Judge.

A Fulton County jury found German Castellón guilty of burglary. He appeals, claiming error in the trial court’s admission of evidence that Castellón committed two similar burglaries in 1989. Castellón contends that the admission of such evidence was based upon the investigating officer’s hearsay testimony, and if admission of the hearsay testimony had been properly denied, the State would have failed to establish that the independent acts were sufficiently similar to the case-in-chief so as to warrant their admission. Finding no merit to Castellon’s contentions regarding the admission of the similar transaction evidence, we affirm the conviction.

1. Williams v. State, 261 Ga. 640, 641-642 (2) (409 SE2d 649) (1991), provides that, before admission of similar transaction evidence, the State must affirmatively show that (1) it is introducing evidence of an independent offense or act for an appropriate purpose, (2) there is sufficient evidence to establish that the accused committed the independent offense or act, and (3) there is sufficient connection or similarity between the independent offense or act and the crime charged so that proof of the former tends to prove the latter.

Here, a jury found Castellón guilty of the two 1989 burglaries that were introduced as similar transactions upon the trial of the instant case, thereby “obviat[ing] any further proof regarding identity.” Posey v. State, 222 Ga. App. 405, 406 (1) (474 SE2d 206) (1996). Further, there is no dispute that the State offered the evidence for an appropriate purpose. Castellon’s sole contention is that the trial court erred in permitting the detective who investigated the prior offenses to testify regarding the facts of those cases in order to demonstrate similarity; Castellón contends that his testimony was based on inadmissible hearsay. We do not agree.

The record shows that the detective who testified regarding the prior burglaries was the lead investigative officer thereof. At the time of each burglary, the detective answered the call, intérviewed the victim, and viewed the crime scene. The detective’s testimony was factual in nature and was based upon his own investigations. “Since the investigator actually investigated and had personal knowledge of [the] burglaries, his testimony as to those ... offenses was not hearsay. [Cits.]” Jackson v. State, 217 Ga. App. 485, 489 (4) (c) (458 SE2d 153) (1995). See also OCGA § 24-3-2; Smith v. State, 236 Ga. App. 122 (511 SE2d 223) (1999).

In addition, a jury found Castellón guilty of both prior burglaries based upon the facts as established by the detective’s investigation. “[A] criminal judgment is res judicata of every fact in issue which is actually or necessarily adjudicated by that judgment. [Cits.]” Lindsey v. State, 227 Ga. 48, 52 (2) (178 SE2d 848) (1970). Thus, the jury’s finding independently established the validity of the facts as ascertained by the detective’s investigation, and the detective’s testimony was not “hearsay.” OCGA § 24-3-1. Moreover, Castellón did not contest the correctness of the detective’s version of the facts. There was no error in the trial court’s admission of the detective’s testimony.

2. Castellón does not dispute that the evidence of the prior burglaries — as presented — was sufficiently similar to the instant case to warrant admission. Instead, Castellón contends that, if the trial court had refused to permit the detective’s testimony, then the evidence of the prior burglaries would not have been sufficiently similar to the instant case to warrant admission. However, since we found in Division 1, supra, that the detective’s testimony was properly admitted, this contention fails.

3. We find as barred Castellon’s additional claim of error that the State improperly put his character into evidence when the prosecutor made a reference to the similar transaction burglaries as “counts 10 and 14” of the prior indictment. To this brief comment, Castellón objected and moved for mistrial because the jury could infer that his previous indictment included additional counts. The trial court offered to give a verbal curative instruction, but the defense refused a verbal instruction. However, Castellon did agree to a curative action: a re-draft (as opposed to a redaction) of the prior indictment, so that, when the prior indictment was sent out with the jury, it would appear that such indictment had always contained only the two similar transaction counts, despite the State’s brief comment. Following this curative action and after the re-drafted, two-count indictment was sent out with the jury, Castellon never “articulated the motion or raised it again or perfected it in any way.” O’Kelley v. State, 175 Ga. App. 503, 505 (333 SE2d 838) (1985). Accordingly, this issue is barred. Pless v. State, 260 Ga. 96, 99 (390 SE2d 40) (1990); Baker v. State, 230 Ga. App. 813, 816 (498 SE2d 290) (1998); Bowman v. State, 222 Ga. App. 893, 895 (476 SE2d 608) (1996).

Decided September 16, 1999.

Sharon L. Hopkins, for appellant.

Paul L. Howard, Jr., District Attorney, Peggy R. Katz, Assistant District Attorney, for appellee.

Judgment affirmed.

Blackburn, P. J., and Barnes, J, concur.

       Under the prior, similar transaction indictment, Castellón was charged with 22 counts of burglary.


text:
    A99A1808, A99A1809.
    COSTELLO v. THE STATE (two cases).
    (522 SE2d 572)
   McMurray, Presiding Judge.

In notices of appeal filed in Case Nos. A99A1808 and A99A1809, defendant Costello, an indigent pro se, appeals his conviction in the State Court of Fayette County after a jury verdict finding him guilty of violation of the open container law, operating a motor vehicle with defective equipment, no Georgia driver’s license, no valid Georgia registration, and possession of marijuana. Defendant enumerates 19 identical enumerations of error in each case. We have consolidated the two appeals for review. Held'.

Upon review of the record of defendant’s convictions it does not appear that the trial court advised defendant of his right to have counsel appointed for any appeal he might wish to pursue. Cochran v. State, 253 Ga. 10 (315 SE2d 653) (1984).

While a defendant has a right to pursue an appeal pro se, Ga. Const. 1983, Art. I, Sec. I, Par. XII, Cochran v. State, supra, it must be preceded by an appropriate waiver of the right to appellate counsel. The failure to advise of the right to appeal [is] harmless error because defendant has in fact appealed, and in a timely fashion. But this does not cover the failure to advise of the right to counsel on appeal, Reid v. State, 235 Ga. 378 (219 SE2d 740) (1975), because [defendant] is here pro se without a showing on the record of an opportunity to choose.

Decided September 16, 1999.

Christopher L. Costello, pro se.

Steven L. Harris, Solicitor, for appellee.

Jacobs v. State, 184 Ga. App. 869 (363 SE2d 155) (1987). Consequently, we must vacate the judgments in these cases sub judice since the consolidated record does not reveal any explanation to defendant of his entitlement to appellate counsel, the dangers of proceeding without counsel and a valid waiver of appellate counsel. We remand these cases to the trial court in order for appropriate instructions by the trial court, upon the record, to be given to defendant consistent with Cochran v. State, 253 Ga. 10, supra, and Clarke v. Zant, 247 Ga. 194 (275 SE2d 49). See also Wright v. State, 198 Ga. App. 531, 532 (402 SE2d 807).

Upon remand, the trial court should give appropriate instructions to defendant consistent with Cochran v. State, 253 Ga. 10, supra, regarding defendant’s entitlement to appellate counsel and the dangers of proceeding without counsel.

Accordingly, the Clerk of this Court is directed to remove the appeals in the cases sub judice from the appellate docket and remand each to the trial court. If, after the trial court has complied with the directions herein and reconsidered its decision on the defendant’s motion for new trial, the trial court may grant a new trial or enter a new judgment of conviction and sentence. If a new judgment of conviction and sentence is entered, defendant Costello may, within 30 days of the trial court’s ruling, file a notice of appeal from that decision.

Judgments vacated and cases remanded with direction.

Johnson, C. J., and Phipps, J., concur.


text:
    A99A2224.
    ANTHONY v. THE STATE.
    (522 SE2d 677)
    Decided September 17, 1999.

      Ellis R. Garnett, for appellant.

      Daniel J. Craig, District Attorney, Charles R. Sheppard, Assistant District Attorney, for appellee.
   McMurray, Presiding Judge.

Defendant was tried before a jury and convicted of two counts of child molestation. This appeal followed the denial of his motion for new trial. Held:

1. The 13-year-old victim (15 years old at the time of trial) testified that defendant committed acts which constitute the crimes charged. This evidence is sufficient to authorize the jury’s finding that defendant is guilty, beyond a reasonable doubt, of two counts of child molestation. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560). And while aspects of the victim’s testimony may appear to vary, these matters were for the jury to consider — not this Court. Howard v. State, 227 Ga. App. 5, 8 (6) (a) (488 SE2d 489). See Berry v. State, 268 Ga. 437 (1), 438 (490 SE2d 389).

The trial court did not err in denying defendant’s motion for new trial.

2. Defendant contends the trial court erred in admitting evidence of the victim’s out-of-court statement concerning the acts which constitute the crimes charged, arguing that this statement was not admissible under the child hearsay statute, OCGA § 24-3-16, because the trial court did not consider the statement’s reliability under the test set out in Gregg v. State, 201 Ga. App. 238, 240 (3) (b) (411 SE2d 65). This argument is without merit.

Gregg v. State, supra, does not prescribe a fixed test for weighing a statement’s reliability for admission into evidence under OCGA § 24-3-16. The victim’s trial testimony in the case sub judice was sufficient under Sosebee v. State, 257 Ga. 298 (357 SE2d 562), to afford the trial court an opportunity to weigh the indicia of reliability — a finding which is implicit under the trial court’s admission of the victim’s out-of-court statement. Letlow v. State, 222 Ga. App. 339, 343 (3) (474 SE2d 211); Roberson v. State, 214 Ga. App. 208, 210 (5) (447 SE2d 640).

The trial court did not err in admitting evidence of the victim’s out-of-court statement concerning the acts which constitute the crimes charged.

Judgment affirmed.

Johnson, C. J., and Phipps, J., concur.


text:
    A99A2413.
    BOLER v. THE STATE.
    (522 SE2d 676)
    Decided September 17, 1999.
   McMurray, Presiding Judge.

Defendant was tried before a jury and convicted of aggravated battery, possession of a firearm during the commission of a felony, discharge of a pistol near a public street, and carrying a pistol without a license. The evidence which authorized these convictions reveals that defendant fired a handgun during a high school graduation party and that a bullet from this gun wounded the victim. The victim’s spinal cord was severed — she will be paralyzed for the rest of her life.

This appeal followed the entry of defendant’s judgment of convictions and sentences. Held:

1. Defendant contends the trial court erred in allowing a Georgia State Patrol Officer to testify that two unidentified partygoers identified defendant as the gunman. Because these declarations were uttered in response to the lone officer’s unfocused questioning to a disturbed crowd upon his arrival at the crime scene, within minutes after the shooting and while the officer was aiding the wounded victim and assessing the immediate risk of another shooting, the trial court did not err in admitting the statements as part of the res gestae. When the circumstances under which a statement is uttered renders the statement free from suspicion or device of afterthought, a trial court’s admission of the statement under the res gestae rule will not be disturbed absent clear error. Andrews v. State, 249 Ga. 223, 224-228 (290 SE2d 71); Stovall v. State, 216 Ga. App. 138 (1) (453 SE2d 110). We find no such error in the case sub judice.

2. The trial court did not abuse its discretion by replacing a juror with an alternate juror after the jury began deliberations when it was discovered that the replaced juror met with a relative during a lunch break and that this relative stated her opinion as to defendant’s innocence. The replaced juror’s relative explained to the trial court: “I told her I didn’t feel like he was guilty because there was no evidence. No solid evidence.”

The trial court’s discharge of the juror in question had a sound basis in that it served the legally relevant purpose of preserving the integrity of the judicial process. Miller v. State, 261 Ga. 679, 680 (6) (410 SE2d 101).

Judgment affirmed.

Johnson, C. J., and Phipps, J., concur.

John A. Rumker, for appellant.

Richard E. Currie, District Attorney, for appellee.


author: Andrews, Presiding Judge.

text:
    A00A0224.
    In the Interest of E. H., a child.
    (524 SE2d 2)
   Andrews, Presiding Judge.

This case is before us on appeal from an order of the juvenile court under the Parental Notification Act, OCGA §§ 15-11-110 through 15-11-118, denying E. H.’s petition to waive the parental notification required before an unemancipated minor may have an abortion. The court found that E. H. would have to notify her parents before having the abortion because she did not consult with her doctor before making this decision and there was no evidence that it would not be in her best interests to inform her parents. We agree and affirm.

For an unemancipated minor to waive the parental notification required by OCGA § 15-11-112 (a) before having an abortion, the juvenile court must determine either that (1) the minor is mature and well informed enough to make this decision in consultation with her doctor and independent of the wishes of her parents, or (2) that notice to the parents would not be in the best interests of the minor. OCGA § 15-11-114 (c).

Here, the juvenile court held a hearing and questioned the 16-year-old minor, the doctor who confirmed the pregnancy, and the doctor who consulted with E. H. at the court’s request. Neither of the doctors was E. H.’s physician, and E. H. told the court that she did not have a personal physician at this time. Moreover, E. H. stated that she planned to go to an abortion clinic in Columbus and had not talked to any doctor at the clinic as yet.

The doctor who confirmed the pregnancy said he did not give E. H. any counseling or medical advice because she did not ask for it. Therefore, the only time E. H. discussed her decision with a doctor was during the consultation done at the court’s request. As a result, she made the decision without talking to the physician performing the abortion or with a personal physician who had treated her and was familiar with her medical history or current physical condition.

Based on this evidence, the juvenile court correctly found that E. H. had not satisfied the first requirement. She could not show that this was a well-informed decision made after consultation with her doctor. OCGA § 15-11-114 (c) (1).

The juvenile court also correctly determined that waiver of the notification to her parents was not in E. H.’s best interests. The judge asked E. H. why she did not want to tell her parents about the abortion and she answered that she was afraid they would make her stop seeing the father, who was older than she and in the Army. She also said she felt that her parents would want her to have the baby, although she did not know whether they would be against an abortion. Her third reason was that her brother and his girlfriend went through an unplanned pregnancy about a year before and she did not want to put her parents through this again.

Decided September 17, 1999.

Bonnie R. Spears, for appellant.

M. Kirby Wood, for appellee.

After hearing E. H.’s testimony, the juvenile court found that the reason she did not want to tell her parents did not stem from any fear that they would abuse or harm her if they found out about the pregnancy, but rather that she simply did not want to tell them. Accordingly, the trial court correctly determined that E. H. had not shown that it was in her best interests to waive notification to her parents. OCGA § 15-11-114 (c) (2).

The juvenile court’s order is thorough and well reasoned and supported by the evidence in the record. The court correctly concluded that E. H. cannot waive the parental notification required by OCGA § 15-11-112 (a) (1).

Judgment affirmed.

Ruffin and Ellington, JJ, concur.