text:
    A00A2547.
    PLESS v. THE STATE.
    (545 SE2d 340)
   Johnson, Presiding Judge.

A jury found Ellis Pless guilty of theft by taking a motor vehicle. Pless appeals, contending the evidence was insufficient to support his conviction, the trial court erred in admitting three of the state’s exhibits, and the trial court erred in denying his Batson challenge. Because each of these enumerations of error lacks merit, we affirm Pless’ conviction.

1. Viewed in a light most favorable to support the jury’s verdict, the evidence shows that a motorcycle was stolen from the victim’s residence. The victim’s neighbor testified that she saw a man driving a yellow and brown Ranchero earlier in the evening. The individual went fishing in front of the victim’s property. About two hours later, the same man went into the victim’s carport, removed the motorcycle, and put it in the back of the Ranchero.

The following morning the victim drove around town looking for a yellow and brown Ranchero. He located the car outside an apartment and called police. The motorcycle was found inside the apartment.

Pless told the police investigator the Ranchero belonged to a person he was living with, that he had borrowed it on the night of the theft, and that he had gone to the victim’s house to fish. At trial, Pless admitted going to the victim’s door that night, but claimed it was to get permission to fish. Pless also told the investigator that he bought the motorcycle from two juveniles for $100, but he was unable to provide a description of these juveniles.

On appeal, the evidence must be viewed in a light most favorable to support the jury’s verdict and the appellant no longer enjoys the presumption of innocence; moreover, this court only determines evidence sufficiency and does not weigh the evidence or determine witness credibility. Although evidence that Pless possessed the motorcycle is not automatically sufficient for us to affirm his theft conviction, the

absence of or unsatisfactory explanation of the possession of the [stolen] goods will support a conviction for theft by taking based upon recent possession of the stolen goods. Whether a defendant’s explanation of possession is satisfactory is a question for the jury; so is lack of explanation.

As the evidence from the eyewitness conflicted with Pless’ explanation, a jury question existed, and the evidence is sufficient to sustain Pless’ conviction for the offense.

2. Pless argues that the trial court erred in allowing three photographs into evidence because the state had not laid a proper foundation for the admission of the pictures. However, the record shows that the eyewitness to the theft identified two pictures as depicting the Ranchero she saw parked in the victim’s driveway when the motorcycle was taken. She further identified the third picture as depicting the victim’s motorcycle.

Before a photograph may be admitted into evidence, it must be authenticated by showing it is a fair and accurate representation of the scene depicted. Any witness who is familiar with the scene depicted can authenticate the photograph; it is not necessary that the witness be the photographer or even that the witness be present when the photograph is taken. Moreover, the quantum of evidence required to sufficiently identify the photograph is a matter within the sound discretion of the trial court, and the trial court’s decision will not be overturned absent an abuse of discretion.

Although the eyewitness did not specifically testify that the pictures were “fair and accurate representations of the scenes depicted,” an adequate foundation was established through similar testimony. We find that this testimony substantially complies with the foundation requirements and that the trial court did not abuse its discretion in admitting the photographs into evidence. Furthermore, the law favors admission of evidence.

3. Pless contends the state violated Batson v. Kentucky by using three peremptory strikes against African-American prospective jurors. To prevail on his Batson challenge, Pless was required to prove that the state engaged in purposeful discrimination in the exercise of its peremptory strikes against the prospective jurors. After argument by both parties, the trial court ruled that Pless did not meet his burden of showing that the state had acted with discriminatory intent. This ruling will be affirmed unless it is clearly erroneous. And, having reviewed the record, we conclude that the trial court properly denied Pless’ Batson motion because the state offered satisfactory race-neutral reasons for striking the jurors.

Decided February 1, 2001.

William L. Jones, for appellant.

Peter J. Skandalakis, District Attorney, Nigel R. Lush, Assistant District Attorney, for appellee.

In one instance, the state exercised a peremptory strike against a prospective juror who had previously been terminated as a bailiff in the county where the case was being tried. The state was concerned that the prospective juror might harbor ill will due to his termination. The trial court did not err by accepting the state’s reason for striking this juror because there was no discriminatory intent inherent in the state’s explanation and it was not so implausible as to render the explanation pretextual.

The state struck another prospective juror because she had the same unique last name (Satterwhite) as a defendant who was in court that day awaiting trial. Because of the unusual last name, the state was concerned that the prospective juror might be related to a defendant whom the state was presently prosecuting. Again, the trial court did not err in accepting this reason for the strike since the explanation was neither inherently discriminatory nor implausibly pretextual.

The state struck a third prospective juror because information from the sheriff, who knew the prospective juror, led the prosecutor to believe that the prospective juror had some emotional problems and had previously been arrested. Though the case against the prospective juror was dismissed, the prosecutor was concerned about the prospective juror’s ability to be objective. The state “may rely on information and advice provided by others so long as this input is not predicated upon the race of the prospective juror.” The state’s reasons for striking this juror were race-neutral reasons sufficient to justify the peremptory strike.

In none of the three instances was the trial court’s Batson ruling clearly erroneous. Accordingly, this enumeration of error is without merit.

Judgment affirmed.

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

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

        Kier v. State, 247 Ga. App. 431 (1) (543 SE2d 801) (2000).

       (Citations and punctuation omitted.) Gibson v. State, 243 Ga. App. 610, 611 (1) (a) (533 SE2d 783) (2000); see also Kier, supra at 433.

       See Gibson, supra.

       See Green v. State, 219 Ga. App. 878, 880 (2) (467 SE2d 203) (1996).

       Id.

       See Horton v. State, 194 Ga. App. 797, 799 (3) (392 SE2d 259) (1990); Turner v. State, 181 Ga. App. 531 (353 SE2d 13) (1987).

        Green, supra.

        Horton, supra.

        Alexander v. State, 273 Ga. 311, 312-313 (2) (540 SE2d 196) (2001).

        Turner v. State, 267 Ga. 149, 151 (2) (476 SE2d 252) (1996).

       See Pye v. State, 269 Ga. 779, 780 (1) (505 SE2d 4) (1998).

       See id.

       (Citations and punctuation omitted.) Id.


source: Caselaw Access Project

author: Ruffin, Judge.

license: Public Domain

text:
    A99A0389.
    GLOVER v. THE STATE.
    (545 SE2d 348)
   Ruffin, Judge.

In Glover v. State, this Court considered the effect of OCGA § 42-8-34.1 (c), which allows a trial court to revoke the remainder of a defendant’s probation for violation of a special condition of probation “imposed pursuant to this Code section.” We concluded that no special conditions of probation are in fact “imposed pursuant to” OCGA § 42-8-34.1, and overruled as wrongly decided two prior cases in which panels of this Court had suggested the contrary. We noted, however, that the Supreme Court, in Gearinger v. Lee and Manville v. Hampton had applied the statute in situations where the special condition at issue was not imposed pursuant to OCGA § 42-8-34.1. We noted that, in Gearinger, the Court had “broadly stated, without qualification, that ‘where . . . the violation of probation results solely from infraction of a special condition and not from commission of a felony offense,’ the trial court may revoke up to the balance of the defendant’s probation,” and that, in Manville, the Court had

restated its holding . . . that “where probation is revoked solely for the violation of a special condition, and not for a felony offense . . . the revocation court is authorized by section 42-8-34.1 (c) to revoke no more than the balance of a defendant’s probation.”

As an inferior court, we do not always paint on a blank canvas when interpreting statutes, but are constrained to consider prior interpretations by the Supreme Court. We are not at liberty to construe a statute in a manner contrary to a decision of the Supreme Court, regardless of whether we believe that decision to have been correctly decided. Therefore, because (1) the Supreme Court had applied OCGA § 42-8-34.1 in cases where the special condition at issue was manifestly not “imposed pursuant to” that statute, and (2) in so doing, the Court had used broad language indicating that the statute applies to any special condition, without regard to whether it was “imposed pursuant to” OCGA § 42-8-34.1, and (3) OCGA § 42-8-34.1 does not in fact authorize the imposition of any special conditions, we concluded that the Supreme Court “recognized no limitations on the special conditions subject to § 42-8-34.1 (c).”

The Supreme Court granted certiorari and reversed our decision, holding that our analysis was “unfounded” and “[ran] afoul of basic precepts of criminal jurisprudence.” The Court did not, however, indicate what it believed the correct interpretation of the statute should be, nor did it state how its prior decisions in Gearinger and Manville could be squared with the statutory language. Indeed, the Court did not express any opinion on the central issue of whether OCGA § 42-8-34.1 actually authorizes the imposition of any special conditions. Instead, the Court simply held that our interpretation was wrong, and left it to us to reinterpret the statute on remand.

In the absence of direct guidance regarding how the statute is to be construed, it is incumbent upon us to consider exactly what the Supreme Court did and did not do in reversing our prior decision. Most notably, the Court did not disagree with our ruling that OCGA § 42-8-34.1 does not authorize the imposition of any special conditions of probation. To the contrary, it simply stated that “[r]egardless of whether OCGA § 42-8-34.1 serves as a basis for imposing special conditions of probation, the Court of Appeals H analysis is incorrect.” The Court then stated that

OCGA § 42-8-34.1 (c) is quite susceptible to results that may not have been intended. But, if that is so, it is for the legislature to re-examine the language of the statute and ensure that it accurately reflects its requirements for revoking probated or suspended sentences.

Because the Supreme Court did not disturb our holding that OCGA § 42-8-34.1 does not authorize the imposition of any special conditions of probation, it appears that such holding remains the law of the case. Even if the law of the case rule were not applicable, however, we remain convinced that our earlier decision was correct on this point. Because nothing in the Supreme Court’s opinion requires us to change our analysis, we adhere to our earlier ruling for the reasons stated in our prior opinion. To the extent that Lawrence v. State and Dunlap v. State hold otherwise, we reiterate our previous overruling of such cases.

Having concluded that there are no special conditions that are “imposed pursuant to” OCGA § 42-8-34.1, we must consider the effect of the statutory language “imposed pursuant to this Code section.” In its opinion, the Supreme Court stated that such language is “plain and unequivocal,” and that it refers to special conditions imposed “pursuant to OCGA § 42-8-34.1.” Because the language is “plain and unequivocal,” the Supreme Court held that “judicial construction is not only unnecessary but forbidden.” Accordingly, we are compelled to apply the literal language of the statute, without resort to any judicial construction, even though that leads to “results that may not have been intended.” Thus, we hold that (1) the literal language of OCGA § 42-8-34.1 (c) authorizes a trial court to revoke the remainder of a defendant’s probation for violation of a special condition imposed pursuant to OCGA § 42-8-34.1, and (2) there are no such special conditions. Although that is manifestly not what was intended, the Supreme Court has stated that “it is for the legislature to re-examine the language of the statute.”

Decided February 2, 2001.

Dennis C. O’Brien, for appellant.

Patrick H. Head, District Attorney, Debra H. Bernes, Bruce D. Hornbuckle, Assistant District Attorneys, for appellee.

Because OCGA § 42-8-34.1 does not authorize the imposition of any special conditions of probation, the trial court erred in relying on OCGA § 42-8-34.1 (c) in revoking ten years of the defendant’s probation. Accordingly, the revocation sentence is hereby vacated and this case remanded to the trial court for further consideration.

Judgment vacated and case remanded.

Pope, P. J., Andrews, P. J., Johnson, P. J., Smith, P. J., Eldridge, Barnes, Miller, Ellington, Phipps and Mikell, JJ., concur. Blackburn, C. J., concurs in the judgment only.

       239 Ga. App. 155 (521 SE2d 84) (1999).

       Id. at 158-160 (1), overruling Lawrence v. State, 228 Ga. App. 745 (492 SE2d 727) (1997) and Dunlap v. State, 231 Ga. App. 82 (497 SE2d 640) (1998).

       266 Ga. 167 (465 SE2d 440) (1996).

       266 Ga. 857 (471 SE2d 872) (1996).

       (Emphasis in original.) Glover, supra at 157 (1), quoting Gearinger, supra at 170.

        Glover, supra, quoting Manville, supra at 858-859 (2).

        Glover, supra at 160 (1).

       (Punctuation omitted.) Glover v. State, 272 Ga. 639, 640-641 (533 SE2d 374) (2000).

       The dissenters on the Supreme Court recognized this, stating that “[t]he majority opinion offers neither a solution nor any guidance in this case of statutory construction.” Id. at 641 (Carley, J., dissenting).

       The Court simply dismissed its decisions in Gearinger and Manville by stating that “neither case addressed the language at issue,” thus suggesting that, if it had actually considered such language, it would have ruled differently. Id. at 640. We note, however, that the Court in both cases actually quoted the language at issue before holding that violation of the special condition authorized revocation of the balance of probation. See Gearinger, supra at 169; Manville, supra at 858. Nevertheless, in light of the Court’s ruling on certiorari, we now accept that Gearinger and Lee have no precedential value on this issue.

       (Emphasis supplied.) Glover, supra, 272 Ga. at 640.

       (Citation and footnote omitted.) Id. at 641.

       See Security Life Ins. Co. v. Clarke, 273 Ga. 44, 46-47 (1) (535 SE2d 234) (2000) (“[A]ny portions of the Court of Appeals’ decision that are not considered by the Supreme Court are unaffected by the Supreme Court’s opinion. It follows . . . that when . . . the Supreme Court reviewed the Court of Appeals’. . . decision and left [its] ruling on the RICO proximate cause issue undisturbed, that portion of [the opinion] became the law of the case.”) (footnotes omitted). See also Ford v. Uniroyal Goodrich Tire Co., 270 Ga. 730, 731 (514 SE2d 201) (1999) (“That ruling [by the Court of Appeals] was not disturbed by this Court. . . and thus remains the law of the case.”).

       Supra.

       Supra.

        Glover, supra, 272 Ga. at 640. The Court thus rejected the dissent’s argument that “pursuant to this Code section” should be read to mean “pursuant to sections of this Code.” Id. at 642 (Carley, J., dissenting).

       Id. at 640. Although the Court forbade judicial construction of the statute, it also stated that “when a statute which imposes a penalty is capable of two constructions, the statute must be found to impose the lesser penalty.” Id. at 641.

       Id. We note that the Supreme Court has previously held that, even if statutory language is plain and unequivocal, judicial construction is allowed if “the purpose of the legislature would be defeated were the words employed construed literally.” (Punctuation omitted.) Bd. of Trustees of Policemen’s Pension Fund &c. v. Christy, 246 Ga. 553, 554 (1) (272 SE2d 288) (1980). In such circumstances,
      a court may decline to give . . . such construction as will attribute to the General Assembly an intention to pass an act which is not reasonable, or as will defeat the purpose of the proposed legislation. In the exercise of this power a court may avoid a portion of the enactment and preserve the remainder.
      (Punctuation omitted.) Id. Because the Court has forbidden judicial construction of the statute in this case, however, we do not believe we are authorized to apply this rule of construction in interpreting the statutory language.


author: Mikell, Judge.

text:
    A01A0129.
    SILAS v. THE STATE.
    (545 SE2d 358)
   Mikell, Judge.

Gary Eugene Silas was convicted of aggravated assault and possession of a knife during the commission of a crime. Silas appeals, arguing that the evidence was insufficient to support his conviction. We affirm.

On appeal from a criminal conviction, the evidence is viewed in the light most favorable to the verdict. Paul v. State, 231 Ga. App. 528 (499 SE2d 914) (1998). We do not weigh the evidence or determine witness credibility but only determine whether the evidence is sufficient under Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). The verdict must be upheld if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Williams v. State, 233 Ga. App. 217 (1) (504 SE2d 53) (1998).

Viewed in the light most favorable to the verdict, the evidence shows that Silas and his wife were walking down Madison Avenue in Albany, when they encountered three teenagers, Decory Bailey, Sequan Davis, and Courtney Jenkins. An argument ensued between the couple and the teenagers. Bailey testified that Silas stabbed him in the arm. He further testified that he did not have a weapon, and that he did not strike Silas. The other two young men, Jenkins and Davis, both testified that Silas stabbed Bailey with a knife, and that all three of them were unarmed. After the incident, Silas left the scene.

On appeal, Silas contends that he acted in self-defense, and that no rational trier of fact could have concluded otherwise based on the evidence presented. We disagree.

OCGA § 16-3-21 (a) provides that: “[a] person is justified in threatening or using force against another when and to the extent that he reasonably believes that such threat or force is necessary to defend himself or a third person against such other’s imminent use of unlawful force. . . .” It is well settled that once evidence of self-defense is presented, the burden is on the state to disprove that defense beyond a reasonable doubt. Hamilton v. State, 243 Ga. App. 10, 11 (532 SE2d 118) (2000); Manning v. State, 231 Ga. App. 584, 585 (3) (499 SE2d 650) (1998).

In the case sub judice, the defendant presented evidence that he acted in self-defense; however, the state rebutted this with evidence that he acted without justification. Significantly, the defendant’s wife, Melissa Silas, testified that Bailey struck the first blow, and that her husband was merely defending himself; however, she was impeached by her prior sworn statement that: “[Gary Silas] and some guys was arguing and Gary pulled out a knife and cut the sixteen year old boy for no reason.” While Bailey opined that “I believe [Silas] kind of felt that we probably was gonna jump on em [sic] cause I had Courtney and Quan walking behind me,” there was substantial evidence that Silas attacked the teenager. All three of the young men testified that they were unarmed, that Silas was the aggressor, and that they did not strike Silas at any time during the incident.

“Witness credibility is to be determined by the jury, as is the question of self-defense when there is conflicting evidence on the issue.” Hamilton, supra, citing Russell v. State, 267 Ga. 865, 866 (1) (485 SE2d 717) (1997). See also Strange v. State, 244 Ga. App. 635, 637 (1) (535 SE2d 315) (2000). The jury was free to accept or reject witness testimony that Silas acted in self-defense. See Knight v. State, 271 Ga. 557, 559 (1) (521 SE2d 819) (1999).

Next, we consider whether the evidence was sufficient for the jury to find the essential elements of aggravated assault and possession of a knife during the commission of a crime beyond a reasonable doubt. Under OCGA § 16-5-21 (a) (2), an aggravated assault is committed when a person assaults “[w]ith a deadly weapon or with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury.” Bailey testified that Silas stabbed him in the arm, and that the knife he observed in Silas’ possession was “maybe six or eight inches long with a handle on it.” Jenkins and Davis testified that they saw Silas stab Bailey with a large knife. Accordingly, we conclude that the evidence authorized the jury to reject the self-defense claim and to find Silas guilty of the crimes charged.

Decided February 2, 2001.

John P. Cannon, for appellant.

Kenneth B. Hodges III, District Attorney, Kenneth A. Dasher, Assistant District Attorney, for appellee.

Judgment affirmed.

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


author: Eldridge, Judge.

text:
    A01A0211.
    EDWARDS v. THE STATE.
    (545 SE2d 356)
   Eldridge, Judge.

A Dougherty County jury convicted Artesian K. Edwards of voluntary manslaughter and possession of a firearm during the commission of a felony. He was sentenced to twenty years confinement to serve ten and the remainder probated. The defendant appeals from the superior court’s denial of his motion for new trial, contending (1) that the superior court erred in charging the jury as to voluntary manslaughter by improperly referring to involuntary manslaughter as voluntary manslaughter; and (2) that the evidence was insufficient to support his convictions, averring the general grounds. Finding no merit to these contentions, we affirm.

The record shows that the defendant stopped his car after nearly hitting the victim, who was crossing Gillespie Avenue in Albany. Defendant testified at trial that words were exchanged between the two after he stopped; that on seeing the victim approaching his vehicle with his hand behind his back, defendant told the passenger in the seat next to him to “[g]ive me the gun”; that he and the victim exchanged more words; and that the victim opened the car door, stepped forward, and hit him, causing the gun to go off accidentally as he fell back in the seat.

Two other passengers were in defendant’s vehicle at the time of the incident. Their testimony at trial corroborated much of the defendant’s testimony; however, both testified that the defendant reached for the weapon immediately after the victim hit him, then shot the victim instantly. Although the defendant testified that the victim threatened to kill him while using a racial epithet, the passengers in defendant’s vehicle did not corroborate this point, further testifying that the victim was unarmed. On cross-examination, the defendant admitted that he had not included any reference to a threat to kill in the custodial statement he had given police.

Decided February 2, 2001.

Christopher S. Warren, for appellant.

Kenneth B. Hodges III, District Attorney, Gregory W. Edwards, Assistant District Attorney, for appellee.

When the officer who responded to the shooting arrived on the scene, she found the victim nonresponsive and lying in the street on his back. At trial, the State’s pathologist testified that the victim died of a gunshot wound to the chest, and the murder weapon, a .22 caliber revolver, was entered in evidence without objection.

1. The superior court did not err in charging the jury as to voluntary manslaughter. The record shows that the trial court properly charged the jury on voluntary manslaughter as defined in OCGA § 16-5-2 (a). Although the trial court once mistakenly referred to voluntary manslaughter as involuntary manslaughter in giving its voluntary manslaughter charge, such slip of the tongue did not render the charge as a whole improper. Considering the charge as a whole, inclusive of a proper recharge as to voluntary manslaughter, the trial court’s inadvertent reference to voluntary manslaughter as involuntary manslaughter did not mislead or confuse the jury, and the error, if any, was harmless. See Matthews v. State, 268 Ga. 798, 805 (7) (c) (493 SE2d 136) (1997) (slip of tongue which does not mislead or confuse jury is not reversible error); Shorter v. State, 270 Ga. 280, 281 (3) (507 SE2d 757) (1998).

2. Neither was the evidence insufficient to support defendant’s convictions. Although the evidence was in conflict as to the sequence of events after the victim hit the defendant, “[w]hen reviewing the sufficiency of evidence on appeal, this Court does not weigh the evidence presented or determine the credibility of witnesses. [Cit.]” Burnett v. State, 239 Ga. App. 592, 593 (521 SE2d 629) (1999). The defendant admitted using the weapon in issue and did not object to its admission in evidence. Under the circumstances of this case, a rational trier of fact could have found the defendant guilty of the charged offenses beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); see Crumpton v. State, 213 Ga. App. 358, 361 (5) (444 SE2d 847) (1994).

Judgment affirmed.

Andrews, P. J., and Miller, J., concur.

       One of the defendant’s passengers testified that he did so by reaching for the weapon on the floorboard of the passenger’s side of the vehicle. The testimony corroborated the custodial statement the defendant gave police after his arrest. Another passenger testified that the defendant told the passenger on the passenger’s side of the vehicle to give the gun to him.


author: Blackburn, Chief Judge.

text:
    A01A0318.
    KEY v. THE STATE.
    (545 SE2d 363)
   Blackburn, Chief Judge.

Following a jury trial, John Henry Key, having been convicted of two counts of burglary, appeals his conviction, alleging that the trial court erred by (1) not striking unfairly prejudicial testimony and (2) determining that he received effective assistance of counsel even though trial counsel did not elicit certain testimony. For the reasons that follow, we affirm.

At the trial, Gerald Dunn testified that he lived on one side of a duplex and that Julia Nelson lived on the other. On January 22, 2000, Dunn heard “ransacking” noises coming from Nelson’s house. Dunn, knowing that Nelson was out of town, went toward the back door of her house. Dunn then saw Key running out of Nelson’s house with several items, including a portable stereo wrapped in a sheet. Dunn noticed that the air conditioner had been pushed in through the window panel. Nelson had not given Key permission to enter her home while she was out of town. She recalled that before she left to go out of town, she told someone else, in Key’s presence, that she was going to be out of town.

Nelson’s son, Arrington Ford, testified that, on February 7, 2000, around 8:00 or 9:00 in the evening, he heard loud noises coming from Dunn’s house. Ford went to the back of Dunn’s house and turned on the porch light. He then saw Key, whom he had known for four to five months, run out of the house.

Dunn testified that he came home that afternoon to find that his door had been kicked in. He also noticed that some drawers had been pulled out. Dunn saw Key the next day and attempted to approach him, but Key ran away. Dunn contacted the police, who later arrested Key. Dunn testified that he had never given Key, whom he knew “from around the neighborhood,” permission to enter his home.

1. Key argues that the trial court erred by not striking a statement by Dunn. During cross-examination, Dunn blurted out, “[c]an I make another statement? Since he has been incarcerated, we haven’t had any more burglaries.” Defense counsel immediately requested that the remark be stricken as not responsive, but did not request a curative instruction. The court stated, “[a]ll right. Don’t go into that, please.”

Key argues that the trial court erred by not striking Dunn’s remark as unresponsive and by not ruling on his objection to the remark. It is not entirely clear whether the remark was stricken from the record because the trial court stated “[a] 11 right” immediately after Key’s request to have the remark stricken. Nonetheless, our Supreme Court has held that a witness’s “nonresponsive answer that impacts negatively on a defendant’s character does not improperly place the defendant’s character in issue.” Hansley v. State. Moreover, to the extent that any error did occur, such error was harmless beyond a reasonable doubt in light of the eyewitness testimony, which overwhelmingly supported Key’s guilt. See Allen v. State.

Decided February 2, 2001.

Mario A. Pacella, for appellant.

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

2. Key argues that trial counsel rendered ineffective assistance by not eliciting testimony from him that at around 4:00 p.m. on February 7, 2000, he witnessed Dunn repairing his door after it had been kicked in. Key asserts that this testimony would have discredited both Ford and Dunn, who both testified that the robbery took place at around 8:00 p.m. We disagree.

To establish ineffectiveness, an appellant must show that (1) counsel’s performance was deficient and (2) the deficiency so prejudiced his defense that a reasonable possibility exists that the trial’s outcome would have been different but for that deficiency. We need not address both prongs of this test if the showing on one prong is insufficient, nor must we address them in any particular order. We review a trial court’s finding that a defendant has been afforded effective assistance of counsel under the clearly erroneous standard.

(Footnotes omitted.) Scott v. State.

We note initially that Dunn did not testify that the robbery took place at 8:00 p.m.; he testified that the robbery took place in the afternoon. Although Ford testified that the robbery took place around 8:00 or 9:00 in the evening, we cannot conclude that the outcome of the trial would have been different had counsel elicited Key’s testimony regarding the timing given that the jury already heard the discrepancy in timing between Dunn’s and Ford’s accounts.

Judgment affirmed.

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

        Hansley v. State, 267 Ga. 48, 49 (3) (472 SE2d 305) (1996).

        Allen v. State, 272 Ga. 513, 515 (5) (530 SE2d 186) (2000).

        Scott v. State, 242 Ga. App. 553, 554 (2) (530 SE2d 257) (2000).


author: MlKELL, Judge.

text:
    A01A0514.
    THOMAS v. THE STATE.
    (545 SE2d 354)
   MlKELL, Judge.

Eric Thomas was convicted of armed robbery and aggravated assault by a Dodge County jury. On appeal, he contends that the trial court erred in admitting evidence of his bad character and by denying his motion for new trial, the basis of which was insufficiency of the evidence. For the following reasons, we affirm.

“On appeal, the standard of Jackson v. Virginia is the proper test for challenges to the sufficiency of the evidence arising from the overruling of a motion for new trial.” In applying the standard, we do not weigh the evidence adduced below or assess the credibility of witnesses.

Viewed in the light most favorable to the verdict, the evidence shows that a robbery and aggravated assault occurred at the residence of Tony Smith on April 7, 1999. Tony Smith provided a general description of the perpetrator, which was consistent with that provided by the other two victims, Tommy Smith, who was shot during the robbery, and Billy Campbell. None of the victims knew the perpetrator.

Tommy Smith testified that his younger brother, Donte, told him that he had learned from Eric Anderson that Thomas was the perpetrator. Subsequently, Tommy Smith obtained a photograph of Thomas from Shetaura Lyons, who was Anderson’s sister and Thomas’ former girlfriend. Lyons testified that Tommy Smith described Thomas perfectly before she gave him the photograph. Their conversation occurred approximately a week and a half after the incident.

Tommy Smith took the photograph to his brother, Tony Smith, who recognized Thomas as the perpetrator. Tony Smith showed the picture to the other victim, Campbell. On the following day, April 19, 1999, Tommy and Tony Smith gave the photograph to Officer Todd Lowery of the Georgia Bureau of Investigation and told him that I Thomas was the perpetrator. Each victim also identified Thomas dur- I ing the trial.

1. In his first enumeration of error, Thomas argues that the trial court erred when it admitted evidence of his bad character. We disagree.

The evidence in question was contained in one of three letters that Lyons wrote to Thomas. During Lyons’ cross-examination, defense counsel introduced the letters to show that Lyons was bitter because Thomas ended their relationship after cheating on her with another woman. In one of the letters, Lyons wrote: ‘You’re just scared because the truth has come out about you stealing that car.” During the state’s redirect examination of Lyons, she testified that she saw Thomas steal the car. Defense counsel objected on the grounds that the testimony was irrelevant and should be prohibited since it discussed other crimes. The trial court overruled the objection on the grounds that defense counsel opened the door. We agree.

Under OCGA § 24-9-20 (b), “no evidence of general bad character or prior convictions shall be admissible unless and until the defendant shall have first put his character in issue.” During Lyons’ direct examination, there was no inquiry about Thomas’ prior crimes or bad character. Defense counsel, however, opened the door about the alleged theft by introducing Lyons’ letters to Thomas to show her bias. No portions of the letters were redacted. It was only after the letters were admitted that the state fully explored their content on redirect examination. “[I]t is well established that one cannot complain of a ruling that his own trial tactics or conduct procured or aided in causing.” Thus, the trial court did not err in permitting the state to explore the contents of Lyons’ letter on redirect examination.

2. Thomas contends that the trial court erred in denying his motion for new trial because the evidence was insufficient to sustain his conviction. Again, we disagree.

Thomas argues that the only evidence connecting him to this crime arises from a tainted pretrial identification procedure that was initiated by his scorned ex-girlfriend, Lyons. In his brief, Thomas acknowledges that a private citizen, Lyons, performed the identification that he contends was suggestive. Yet, he contends that case law involving suggestive identification procedures initiated by the police should be applied here and relies on Neil v. Biggers and other similar cases in support of his argument that the identification procedure was tainted. A similar argument was rejected by the Supreme Court in Lyons v. State. In Lyons, the Supreme Court stated that Neil v. Biggers involves “the suggestiveness of a confrontation procedure used by police for purposes of obtaining witness identification.”

Decided February 2, 2001.

Straughan & Straughan, Mark W. Straughan, for appellant.

Timothy G. Vaughn, District Attorney, Russell P. Spivey, Assistant District Attorney, for appellee.

Thomas cites Bradley v. State, Talley v. State, and Perkins v. State in support of his argument that the display of a single photograph for identification purposes is impermissibly suggestive. Each of these cases, however, involved state action rather than citizen action. In this case, the evidence shows that Lyons provided Thomas’ photograph after Tommy Smith described him. Furthermore, the victims showed the photograph to each other before it was given to the police. Thus, “[t]he issue here is not the possible taint of identification due to suggestive pre-trial procedures, but, rather the credibility of eyewitnesses to the incident.” When an eyewitness identifies a defendant, the eyewitness’ credibility is a matter for the jury to decide, not this court. This rule applies even in cases where the defendant relies on the defense of misidentification, as Thomas did in this case.

Thomas urges us to consider Lyons’ credibility because of the circumstances under which their relationship ended and Lyons’ threats that she would exact vengeance against him, all of which was known to the jury. If we were to do as he suggests, we would be assuming the role of the trier of fact. As an appellate court, we cannot assume that role. “Issues regarding the credibility of witnesses are to be resolved by the trier of fact.” Accordingly, since the evidence of Thomas’ guilt was sufficient under Jackson v. Virginia we find the trial court did not err in denying his motion for new trial.

Judgment affirmed.

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

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

        Allen v. State, 237 Ga. App. 744, 745 (1) (516 SE2d 788) (1999).

        Hutchinson v. State, 232 Ga. App. 368, 369 (501 SE2d 873) (1998).

       There is no evidence as to exactly when this conversation occurred.

       (Citation omitted.) Maner v. State, 221 Ga. App. 826, 830 (3) (472 SE2d 716) (1996).

       409 U. S. 188 (93 SC 375, 34 LE2d 401) (1972).

       247 Ga. 465, 466 (277 SE2d 244) (1981) (the Supreme Court rejected the defendant’s attempt to invoke the protections of the Fourteenth Amendment where the confrontation procedure was initiated by the witnesses instead of the police).

       Id. at 466.

       152 Ga. App. 902 (264 SE2d 332) (1980) (single photographic display by police, though impermissibly suggestive, was not conducive to irreparable misidentification).

       137 Ga. App. 548 (224 SE2d 455) (1976) (likelihood of misidentification was not substantial where the police showed a molestation victim a single photograph of the defendant).

       216 Ga. App. 118 (453 SE2d 135) (1995) (single photographic display by police was permitted where the totality of the circumstances did not indicate a substantial likelihood of misidentification).

       (Punctuation omitted.) Duck v. State, 250 Ga. 592, 597 (3) (300 SE2d 121) (1983).

       See Wimberly v. State, 233 Ga. 386, 387 (3) (211 SE2d 281) (1974).

        Randolph v. State, 203 Ga. App. 115 (2) (416 SE2d 117) (1992).

       See Hutchinson, supra.

       (Citation omitted.) Duck, supra at 598 (3).

       Supra.


text:
    A01A0599.
    MONTEAGUDO v. THE STATE.
    (545 SE2d 351)
   Mikell, Judge.

Alexi Monteagudo was convicted of burglary by a Lowndes County jury. On appeal, Monteagudo challenges the sufficiency of the evidence and claims error in the trial court’s denial of his motion for a directed verdict of acquittal and motion for a new trial. Because we find that the evidence was sufficient to authorize the jury’s finding of Monteagudo’s guilt beyond a reasonable doubt, we affirm.

On appeal from a criminal conviction, the evidence must be construed in the light most favorable to the verdict, and the appellant no longer enjoys a presumption of innocence. An appellate court determines only the legal sufficiency of the evidence adduced below and does not weigh the evidence or assess the credibility of the witnesses. To sustain the conviction, the evidence must be sufficient to authorize the jury’s finding of the defendant’s guilt of the crime charged beyond a reasonable doubt.

The standard of review for the denial of a motion for directed verdict of acquittal or a motion for new trial is the same as that utilized under Jackson v. Virginia when the sufficiency of the evidence is challenged.

This case involves four defendants, Monteagudo, Ernesto Romero, Caesar Fuentes, and Victor Lopez, all of whom were charged with burglary and tried simultaneously. Viewed most favorably to the verdict, the evidence shows that at approximately 10:30 p.m. on July 10,1997, Deputy Sheriff Jeff Culpepper discovered a burglary in progress and observed two suspects running away from the scene. He called for backup, and Sergeant Bruce Barnes responded to his call.

Sergeant Barnes observed a van that was backed up to a loading dock behind a store, several empty cardboard boxes on the dock, and several items of clothing in the back of the van. When he and Deputy Culpepper entered the store to search for the suspects, they noticed a door handle had been broken off and was lying on the floor, but did not find the suspects. An employee of the store testified that the clothing in the van had been taken from the store and had a retail value of approximately $77,000.

A hotel was located approximately 2,100 feet from the store where the burglary took place. Allen Fowler, the hotel desk clerk, testified that at approximately 10:40 p.m. on July 10, 1997, he observed two men, who appeared to be hot, sweaty, and out of breath, as they walked toward the hotel office. The desk clerk on duty testified that Fuentes and another man checked in at approximately 10:44 p.m. The hotel manager testified that the man who checked in was the same person depicted on Fuentes’ driver’s license, and that the rate Fuentes was charged was for two occupants. He also testified that before the men checked in, someone from the sheriff’s department informed them of the incident at the store and asked to be contacted if someone approached the hotel on foot or otherwise appeared suspicious. Because he noticed that Fuentes and his companion did not have luggage or a means of transportation upon check-in, the manager called the sheriff’s department.

On the morning of July 11, 1997, Deputy William Jones, who speaks Spanish fluently, was called to the hotel by the detectives who were investigating the burglary to speak to Fuentes and Romero. He testified that Fuentes told him that they had been stranded by friends and were waiting for his wife to travel from Miami, Florida, to get them. Fuentes could not name his friends but told Deputy Jones that they were in a van.

The officers followed Fuentes and Romero to their hotel room, which Fuentes gave them consent to search. Fuentes appeared very nervous as he tried to insert the key card into the door. On his second or third attempt, Fuentes opened the door, and the officers observed Lopez and Monteagudo lying on the bed in the room. Deputy Jones testified that there was no luggage in the room. Upon learning that the van that was found at the scene of the crime was registered to Monteagudo, the officers arrested all four of the men.

Deputy Jones testified that Monteagudo waived his Miranda rights at the jail and told him that they had all traveled from Miami to Valdosta to see a friend, but the van had been stolen during the night. Also, Monteagudo told them that when he checked into the hotel at approximately 10:45 p.m. on July 10, 1997, his van was with him. When Monteagudo was asked to explain how his van was found at the scene of the crime at the same time, he invoked his right to silence and requested an attorney. Finally, Romero’s and Fuentes’ fingerprints were recovered from a cardboard box at the scene and from Monteagudo’s van.

1. Monteagudo contends that the evidence is insufficient to sustain his conviction. He argues that there is no evidence that he was actually present at the crime scene, only that his van was used in the crime. We reject Monteagudo’s argument.

Though there was no evidence that Monteagudo was at the scene of the crime, a suspect’s “presence, companionship, and conduct before and after the offense are circumstances from which [that suspect’s] participation in the criminal intent may be inferred.” Further, “the trier of facts may find such intention upon consideration of the words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted.” In this case, Monteagudo’s presence, companionship, and conduct before and after the crime supported an inference of his criminal intent.

Monteagudo stated that all four men traveled from Miami together to visit a friend, yet they had no luggage. Monteagudo told the officers that he had his van when he checked into the hotel. The evidence showed, however, that at the time he checked in, the van was at the scene of the crime. All four of the co-defendants occupied the same hotel room. Fuentes said that Monteagudo and Lopez left him and Romero stranded at the hotel, when the evidence showed that shortly thereafter, the officers discovered Monteagudo and Lopez in the hotel room. Finally, Fuentes’ and Romero’s prints were recovered at the scene. Accordingly, the evidence was sufficient to authorize Monteagudo’s conviction.

2. Monteagudo argues that the denial of his motion for directed verdict of acquittal and motion for new trial constituted error for two reasons: (1) the evidence was insufficient to sustain his conviction for burglary; and (2) the state could only argue that he was a party to the crime, but had not indicted him of that offense. This argument is without merit.

As stated earlier, the evidence of Monteagudo’s presence, companionship, and conduct before and after the offense authorized his conviction. Furthermore, the state may prove a defendant’s culpability for a crime as a party to that crime even though the defendant is not charged with the offense of “party to a crime.” In this case, there was evidence to support the state’s argument that Monteagudo was guilty of burglary. Accordingly, the trial court’s denial of Monteagudo’s motion for directed verdict and his motion for new trial were proper.

Decided February 2, 2001.

Jody D. Peterman, for appellant.

J. David Miller, District Attorney, Robert T. Gilchrist, Assistant District Attorney, for appellee.

Judgment affirmed.

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

       Two of Monteagudo’s three co-defendants, Caesar Fuentes and Ernesto Romero, were also convicted, and filed separate appeals. We affirmed Fuentes’ conviction at Fuentes v. State, 239 Ga. App. 672 (521 SE2d 698) (1999), and Romero’s conviction at Romero v. State, 247 Ga. App. 724 (545 SE2d 103) (2001).

       (Citations and punctuation omitted.) James v. State, 227 Ga. App. 907, 908 (1) (490 SE2d 556) (1997).

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

       Lopez was acquitted.

       The check-in folio from which the hotel manager testified indicated a check-in date of July 11, 1997. Both Fuentes and Monteagudo, however, admitted that they spent the night of July 10, 1997, at the hotel.

       (Citation and punctuation omitted.) Stokes v. State, 232 Ga. App. 232, 233 (1) (501 SE2d 599) (1998).

       (Citations and punctuation omitted.) Id.

        Jackson v. Virginia, supra.

        Wright v. State, 165 Ga. App. 790 (1) (302 SE2d 706) (1983).


author: JOHNSON, Presiding Judge.

text:
    A00A2000.
    In the Interest of J. J. W., a child.
    (545 SE2d 21)
   JOHNSON, Presiding Judge.

The father of J. J. W. appeals from a juvenile court order terminating his parental rights. We affirm the trial court’s order to the extent it terminated the father’s parental rights. However, we vacate the order insofar as it places permanent custody of the child with the Georgia Department of Human Resources and remand the case with direction that the juvenile court, in conjunction with the Department of Human Resources, evaluate the possibility of placing the child with a suitable relative.

On appeal, we view the evidence in a light most favorable to the juvenile court’s order and determine whether a rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights should have been terminated; we do not weigh the evidence and must defer to the trial judge as the factfinder.

The decision to terminate parental rights involves a two-step process. First, the juvenile court must determine whether there is clear and convincing evidence of parental misconduct or inability, as defined in OCGA § 15-11-94 (b). Parental misconduct is found when the child is deprived, the cause of the deprivation is lack of proper parental care or control, the cause of the deprivation is likely to continue or will not likely be remedied, and the continued deprivation will cause or is likely to cause serious harm to the child. Second, if the juvenile court finds clear and convincing evidence of parental misconduct or inability, it must consider whether termination of parental rights is in the best interest of the child, considering the child’s physical, mental, emotional, and moral condition and needs, including the need for a secure, stable home.

Viewing the evidence in favor of the juvenile court’s findings, the record shows that the Houston County Department of Family & Children Services (the “department”) received custody of J. J. W. on August 20, 1997, when he was two days old. J. J. W. was taken directly from the hospital where he was born because his mother was incarcerated on a probation violation for drug use and his father had “demonstrated mental instability and a tendency toward violence in the past ninety days.” During an adjudicatory hearing on September 3, 1997, the mother and father admitted that the child was “in a general state of deprivation.”

On August 29, 1997, the department formulated a reunification case plan for the father. On November 25, 1997, the department reviewed the father’s progress and found that he had not met some of the case plan goals. The evidence further showed that when the mother got out of jail, she returned home to the father and he physically assaulted her, resulting in his incarceration at Central State Hospital. A May 26, 1998 review of the father’s case plan goals showed that the father was in Central State Hospital and was possibly going to jail for two years. The department requested a hearing for a nonreunification case plan to be entered for the father based on the following facts: (1) he failed to comply with his case plan; (2) he had a warrant for his arrest due to a probation violation; (3) he was asked to leave a homeless shelter due to noncompliance with shelter rules and outward aggression toward other residents; and (4) a psychological evaluation indicated that treatment was not likely to be successful.

J. J. W. lived in foster care until July 1, 1998, when he went to live with his mother at a drug rehabilitation center. However, in November 1998, the father enticed the mother to leave the facility by claiming he would give her a ride to work. Instead, the father continued past the mother’s job site, and the two stayed together and used crack cocaine for three or four days. During this time, the father allegedly physically abused the mother. In the interim, J. J. W. was abandoned at the rehabilitation center, and the department subsequently returned him to foster care. The father acknowledged that he persuaded the mother to leave the rehabilitation center and gave her crack cocaine.

A nonreunification case plan for the father was established on August 25, 1998. A nonreunification hearing for the father was once again requested on October 6, 1998, due to the father’s failure to cooperate with the department and his history of mental instability.

The judicial citizens review panel recommended termination of both parents’ parental rights, and the department filed a petition to terminate parental rights on December 22, 1998. Since the father’s whereabouts were unknown, the department sought and received an order to serve him with notice of the termination petition by publication. Service by publication was accomplished by March 10, 1999.

On April 21, 1999, the juvenile court conducted a hearing on the department’s termination petition. The father did not appear at the hearing, and his attorney advised the juvenile court that he had lost contact with the father. The mother testified that she had recently spoken with the father on several occasions, that he was aware of the hearing, but that he “didn’t think he was going to make it.” Following the hearing, the juvenile court entered an order declining to terminate the parental rights of the mother because she had demonstrated some progress in complying with her case plan goals and continuing the matter as to her parental rights for a period not to exceed six months. The juvenile court, however, entered a separate order on April 26, 1999, terminating the father’s parental rights based on (1) the father’s admission by letter that he is not in a position to be a parent; (2) the father’s failure to have any meaningful contact with J. J. W. for at least a year preceding the filing of the petition; (3) his failure to support J. J. W. in any way; (4) his history of mental illness; and (5) his failure to appear at the termination hearing despite the fact that he had legal and actual notice of the hearing.

On June 28, 1999, the father filed a motion requesting that the juvenile court set aside its order terminating his rights because he did not receive actual notice of the hearing. The court took judicial notice of its previous orders, none of which had been appealed. In addition, during the hearing on this motion, the department submitted evidence showing that since the last order had been entered, the father and mother had been charged with theft of a gun and the mother was additionally accused of offering the victim money to drop the charge. And, the father and mother were arrested on this charge following a traffic stop in a “drug-infested area.” As of the termination hearing, the criminal charges were still pending against both the father and mother.

Based on the history of the case and the additional evidence, the court terminated the parental rights of both the father and the mother. The father’s rights were terminated based on (1) his actions to destroy the relationship between the mother and child and to sabotage the mother’s attempts to remain drug free; (2) his history of being admitted to mental hospitals and his concession that he has some mental impairment; (3) his bizarre behavior and testimony during the hearing; (4) his apparent neglect for the welfare of his child (as evidenced by the fact that he lured the mother from her rehabilitation center and left the child alone); (5) his actions in taking the mother, who had $4,700 in cash in her possession, to a known drug area; (6) his failure to abide by his case plans; and (7) his failure to provide any money toward the support and maintenance of the child. The father appeals this order.

1. The father contends there was not clear and convincing evidence of his parental misconduct or inability. He further contends that the court erred in considering the issue of child support because there was never any child support order requiring him to make such payments. Pretermitting the question of whether the juvenile court erred in considering the father’s failure to provide any support or maintenance for the child, the evidence is sufficient to show that the continued deprivation of J. J. W. is likely to continue or will not likely be remedied. First, evidence of past conduct may be considered in determining whether the deprivation is likely to continue if the child is returned to the father. The past conduct of the father in this case certainly justifies such a finding. Second, the record is replete with examples of the father’s failure to cooperate with the department’s case plan and with acts of physical aggression by the father.

While the father promises to change his life, this court has repeatedly recognized that “[t]he decision as to a child’s future must rest on more than positive promises which are contrary to negative past fact.” Based on the father’s past behavior, the length of time his problems have persisted, the psychiatrist’s testimony that treatment is not likely to have any benefit, the father’s failure to comply with case plan goals, and his own admissions, the juvenile court properly terminated the father’s parental rights.

2. The father argues that the juvenile court erred in placing J. J. W. in the department’s permanent custody for purposes of adoption without considering placement of the child with a relative. We agree.

The issue of placement with relatives is one to be made by the juvenile court, together with the department, following the juvenile court’s decision to terminate parental rights. According to the statute, “[a] thorough search for a suitable family member shall be made by the court and the Department of Human Resources in attempting to effect this placement.”

In the present case, there is no evidence that the department investigated any relatives as possible suitable placement for J. J. W. While the father did not specifically identify any relatives to be considered, he did testify that he believed a suitable relative placement could be found. Moreover, according to the clear dictates of the statute, it is incumbent upon the court and the department to conduct a thorough search for a suitable family member. The record does not show that such a search was ever conducted.

Decided January 18, 2001

Reconsideration denied February 5, 2001.

Mark S. Martin, for appellant.

Thurbert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen S. Nelson, Assistant Attorney General, Walter G. Sammons, Jr., for appellee.

Thus, while we affirm the trial court’s termination of the father’s parental rights, we find that the permanent placement of the child with the Department of Human Resources was premature in the absence of an investigation by the court and the department into whether a suitable placement with relatives could be made. We, therefore, vacate that part of the juvenile court’s order which makes permanent the placement of the child with the department pending a decision that there is no suitable alternative placement for the child within the family. We remand the case to the juvenile court with direction that the juvenile court, in conjunction with the Department of Human Resources, evaluate the possibility of placing the child with a suitable family member. In so doing, we do not express any belief that the child must or should be placed with any family member.

Judgment affirmed in part and vacated in part and case remanded with direction.

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

        In the Interest of D. L. N., 234 Ga. App. 123, 125 (2) (506 SE2d 403) (1998).

       OCGA § 15-11-94 (b) (4) (A).

       OCGA § 15-11-94 (a); In the Interest of B. D., 236 Ga. App. 119 (511 SE2d 229) (1999).

       See In the Interest of B. D., supra at 121 (2).

       (Citation and punctuation omitted.) In the Interest of S. J. C., 234 Ga. App. 491, 494 (1) (507 SE2d 226) (1998).

       OCGA § 15-11-103 (a) (1); In the Interest of D. T., 221 Ga. App. 328, 330 (2) (471 SE2d 281) (1996).

       OCGA § 15-11-103 (a) (1).

       See In the Interest of N. B., 239 Ga. App. 336, 339 (2) (521 SE2d 47) (1999).


author: Phipps, Judge.

text:
    A00A1866.
    LEWIS v. THE STATE.
    (545 SE2d 381)
   Phipps, Judge.

Patricia Ann Lewis appeals her conviction of felony theft by shoplifting. She contends that the trial court erred in denying her motion for directed verdict, in admitting the State’s exhibits, and in failing to instruct the jury on the lesser included offense of misdemeanor theft by shoplifting. We disagree and affirm.

Employees of the Geoffrey Beene store at Tánger Outlet Mall testified that on March 1, 1998, Lewis, in the company of another woman, entered the store carrying a large Liz Claiborne shopping bag. A sales associate testified that moments later she saw Lewis take out an empty white plastic bag, turned inside out, with a distinctive red marking. An assistant manager testified that later she saw Lewis exit the store carrying the Liz Claiborne bag and the white bag, which was now full. She testified that inside the white bag she could see Geoffrey Beene price tags. Lewis had not purchased anything in the store.

The assistant manager called the police and monitored the movements of Lewis and her companion in the outlet mall. When the police arrived, she pointed out Lewis and her companion as they exited a hosiery store and entered a shoe store. An officer entered the shoe store and saw the white bag, turned inside out, on the floor near where Lewis stood. The bag was found to contain four polo shirts and two pairs of jeans. Each item had a price tag attached and was identified by the Geoffrey Beene assistant manager as having come from that store.

1. Lewis argues that she was entitled to a directed verdict because: (1) no State’s witness saw her conceal any merchandise inside the Geoffrey Beene store; and (2) there was no direct evidence that the items found in the white bag were the same as those she allegedly took from the Geoffrey Beene store.

The standard of review for the denial of a motion for directed verdict of acquittal is the same as that for reviewing the sufficiency of the evidence to support a conviction. Under that standard we view the evidence in the light most favorable to the jury’s verdict and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. . . . Conflicts in the testimony of the witnesses, including the State’s witnesses, are a matter of credibility for the jury to resolve.

A conviction may be based upon circumstantial evidence so long as the evidence is strong enough to exclude every reasonable hypothesis except the guilt of the accused. To the extent that the evidence of shoplifting was circumstantial, it was sufficient to allow a rational trier of fact to conclude that Lewis concealed merchandise belonging to the Geofff ey Beene store in the white bag and exited the store with it.

Moreover, a rational trier of fact could have concluded that the clothes found in the white bag were the same clothes that Lewis took from the store. Both store employees identified the white bag as the one Lewis had carried from the store. The officer took possession of the bag only a short time after Lewis left the store with it. Consistent with the store manager’s account, the bag contained merchandise bearing Geoffrey Beene price tags. And the manager testified that she was not presented with a receipt for the merchandise. Lewis was not entitled to a directed verdict of acquittal.

2. At trial, the State introduced nine exhibits — the six articles of clothing, the white bag, an empty bag which was found inside the white bag, and an empty bag which was found inside the Liz Claiborne bag. Lewis contends that the trial court erred in admitting the exhibits because the State failed to establish a chain of custody for them. Distinct physical objects such as clothing do not require custodial proof for admission into evidence. Instead, they may be admitted based upon identification by a witness who has observed them. The white bag was identified by both store employees and by the police officer who seized it. The store manager identified each article of clothing as merchandise carried by the Geoffrey Beene store at the time of the theft.

Moreover,- the record shows that the State established a chain of custody for the exhibits. The officer who seized the white bag testified that he gave it to the officer who initially responded to the shoplifting call. That officer testified that when he received the white bag, he inventoried the items inside, prepared a property evidence sheet, and placed the seized items in the evidence property room at the police department. He testified that the exhibits were the same items he had taken possession of at the scene and that their condition had not changed, although “[he] might have folded them up.” The State established with “reasonable certainty that the evidence [was] the same as that seized and that there [had] been no tampering or substitution.” The trial court did not err in admitting the exhibits.

3. The trial court did not err in denying the defense’s request to charge on misdemeanor theft by shoplifting because the evidence showed either the commission of felony shoplifting or no offense. On the date of this incident, a merchandise value of $100 was the demarcation point between felony and misdemeanor shoplifting. The uncontradicted evidence was that the four polo shirts cost $19.99 each, the two pairs of jeans cost $24.99 each, and the total value of the merchandise exceeded $100. Thus, there was no basis for a charge on misdemeanor theft by shoplifting.

Decided February 5, 2001.

Chapman & Pope, Daniel C. Chapman III, for appellant.

Tommy K. Floyd, District Attorney, Sandra A. Graves, Assistant District Attorney, for appellee.

Judgment affirmed.

Johnson, P. J., and Smith, P. J., concur.

       (Citations and punctuation omitted.) Jackson v. State, 236 Ga. App. 260-261 (511 SE2d 615) (1999).

       See generally OCGA § 24-4-6.

       See Ridley v. State, 240 Ga. App. 307, 308 (2) (523 SE2d 383) (1999); Kenney v. State, 236 Ga. App. 359, 360 (4) (511 SE2d 923) (1999); Pryor v. State, 231 Ga. App. 136, 137-138 (5) (497 SE2d 805) (1998).

       Id.

       See Ridley, supra.

       (Citation omitted.) Hall v. State, 245 Ga. App. 529, 530 (538 SE2d 166) (2000).

       See Peebles v. State, 260 Ga. 430, 433 (4) (396 SE2d 229) (1990).

       See OCGA § 16-8-14, the 1998 amendment.


author: Miller, Judge.

text:
    A00A1894.
    In re SELLERS.
    (545 SE2d 385)
    Decided February 5, 2001.

      Agrippa K. Long III, for appellant.

      Mark N. Stephen, for appellee.
   Miller, Judge.

The petitioner, Joseph Sellers, husband and guardian of Sonja Smith Sellers, filed with the probate court a “PETITION TO COMPROMISE DOUBTFUL CLAIM OF INCAPACITATED ADULT AND MOTION TO APPROVE TRUST.” Sonja Sellers suffered a closed head injury in an automobile accident and is incapacitated. The probate court, pursuant to OCGA § 29-2-16 (b), authorized the petitioner to consummate a settlement on behalf of Mrs. Sellers of all claims as a result of the accident. The court further ruled that it was without authority to allow Mr. Sellers as guardian to create a trust intended for the settlement proceeds and denied the petitioner’s motion. The petitioner appeals this denial.

OCGA § 29-2-16 (b) states that a court-approved compromise “may involve a structured settlement or creation of a trust on such terms as the court approves” (Emphasis supplied.) Therefore, the probate court had the authority to approve the creation of the trust by the guardian and erred in denying the petitioner’s motion on that ground.

Judgment reversed and case remanded for proceedings consistent with this opinion.

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


text:
    A00A1992.
    DICKERSON v. DICKERSON.
    (545 SE2d 378)
   Miller, Judge.

The question on appeal is whether a judgment specifically holding that two people were not married precludes the parties to that judgment from later litigating that particular issue in a subsequent tribunal, notwithstanding the fact that the court opined that the judgment would not have a “res judicata” effect. We affirm the second court’s grant of summary judgment based upon collateral estoppel.

Shortly after Richard Dickerson died intestate in an electrical accident, his brother Frederick applied for letters of administration from Lumpkin County Probate Court and was appointed administrator of Richard’s estate. Barbara Fuller, also known as Barbara Dickerson, petitioned the probate court to set aside the letters and the appointment on the ground that she was Richard’s common law wife and was thus entitled to the appointment. Frederick responded, denying the common law marriage.

As administrator and as guardian of Richard’s mother, Frederick then filed a wrongful death/pain and suffering action in Rockdale County Superior Court against the City of Conyers. Barbara having notified the city that she had an interest in the claims, the city moved the Rockdale court to add Barbara as an involuntary plaintiff under OCGA § 9-11-19, which motion the court granted. Barbara did not want to litigate the marriage issue in Rockdale County, so she filed a voluntary dismissal dismissing her claims with prejudice. The Rockdale court ruled this dismissal a nullity, ordering that Barbara was still a party and was thus possibly entitled to any monies awarded.

Counsel for all parties, including Barbara, were given notice of the trial date, and the Rockdale court tried the wrongful death action to a conclusion. Barbara testified at trial regarding the question of her alleged common law marriage to Richard, which was in dispute at trial. The jury verdict form specifically asked the jury to resolve the question of the existence of the marriage, and the jury found there was no marriage at the time of Richard’s death. The court entered judgment on the verdict, concluding that since the jury had found against Barbara on the marriage question, she would take nothing from the $4.7 million amount awarded by the jury.

Barbara moved for a new trial, complaining that (1) she had not received notice of the court’s ruling nullifying her dismissal and holding she was still a party, (2) she had not received notice of the trial and thus had not appeared as a party, and (3) the ruling nullifying her dismissal was in error. Based on evidence submitted at the hearing and in the trial record, the court found against her on all factual assertions and denied her motion for new trial. Nevertheless, the court as a part of its order opined that the finding of no marriage would have no “res judicata” effect on Barbara’s petition pending before Lumpkin Probate Court. No party appealed the judgment or the order denying the motion for new trial.

The Lumpkin Probate Court transferred the estate case to Lumpkin Superior Court, where Frederick moved for summary judgment, arguing that the Rockdale judgment conclusively resolved that Barbara had not been married to Richard at the time of his death and should be accorded collateral estoppel effect. The Lumpkin Superior Court agreed and entered summary judgment against Barbara on her petition to set aside the appointment of Frederick. She appeals this order, arguing that collateral estoppel does not apply.

1. “[Collateral estoppel applies where an issue of fact or law is actually litigated and determined by a valid judgment, and the determination is essential to the judgment. That determination is then conclusive in a subsequent action between the same parties.” This concept, sometimes known as estoppel by judgment or issue preclusion, precludes the readjudication of issues already litigated to a conclusion in a previous action between the parties. It differs from res judicata in that res judicata, which additionally precludes claims that might have been litigated in the prior case, applies only when the causes of action in the two cases are the same.

The elements for the application of collateral estoppel are present here. First, both Barbara and Frederick were parties to the Rockdale action. Barbara has admitted that the court nullified her voluntary dismissal, readded her as an involuntary plaintiff, and announced during the trial that she could be awarded a judgment from the city. Based on the jury’s finding that she was not married to Richard at the time of his death, the court entered judgment against her as an involuntary plaintiff. As a party, she moved for a new trial, which motion the court heard and denied, explaining she had been a party to the proceedings with proper notice. She appealed neither the judgment nor the order and thus is bound by them, including their findings that she was a party with proper notice.

The issue — whether Barbara and Richard were married at common law at the time of his death — is the same in both actions. The Rockdale action actually litigated this issue, with the jury expressly finding that Richard was not married to Barbara at the time of his death. This issue was essential to the judgment for the purpose of determining who was to receive the money awarded by the jury. Since the Rockdale judgment and denial of the motion for new trial were unappealed, they were final and binding on the parties.

The Lumpkin Superior Court correctly accorded the Rockdale judgment collateral estoppel effect.

2. Barbara nevertheless argues that because the Rockdale court opined in its order on the motion for new trial that its judgment would have no “res judicata” effect on the action pending in Lumpkin Probate Court (subsequently transferred to Lumpkin Superior Court), the Lumpkin Superior Court should have refused to apply collateral estoppel. This argument fails for two reasons.

First, the Rockdale court was literally correct; the Rockdale judgment bore no “res judicata” effect in the Lumpkin action. The Rockdale action was a wrongful death claim, whereas the Lumpkin action was a probate matter involving the administration of an estate. Because different causes of actions were at issue in each case, res judicata did not apply. The court did not address the collateral estoppel effect of its order.

Second, even assuming the court had intended instead to comment on the collateral estoppel effect of its order in the Lumpkin action, such language was superfluous dicta and outside the court’s authority to determine. “The extent of an estoppel by judgment depends on the principles of law applied to the facts of the case; it is not determined by the court rendering the judgment, which has no power to say how far its judgment shall or shall not be conclusive. . . .” Opining on the collateral estoppel effect of the order being entered is similar to making rulings that are not essential to the judgment and thus is not binding in other actions.

Decided February 5, 2001.

Kenneth L. Shigley, for appellant.

Finch, McCranie, Brown, Hendrix, Sullivan & Wisebram, Richard W. Hendrix, for appellee.

Judgment affirmed.

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

       (Citations and emphasis omitted.) Kent v. Kent, 265 Ga. 211 (1) (452 SE2d 764) (1995).

        Allen v. King Plow Co., 227 Ga. App. 795, 798 (1) (490 SE2d 457) (1997) (whole court); Sorrells Constr. Co. v. Chandler Armentrout & Roebuck, P.C., 214 Ga. App. 193-194 (447 SE2d 101) (1994).

       OCGA § 9-12-40.

        Sorrells Constr., supra, 214 Ga. App. at 193-194.

       Cf. Roberts v. Hill, 81 Ga. App. 185, 186 (3) (58 SE2d 465) (1950) (physical precedent only) (a party is one who is “ ‘directly interested in the subject-matter, had a right to make defense, to adduce testimony, to cross-examine witnesses, to control the proceedings and to appeal from the judgment’ ”), citing Smith v. Gettinger, 3 Ga. 140, 142 (1847).

        Hall v. Hall, 240 Ga. 28 (239 SE2d 356) (1977).

       Compare Brown v. Brown, 212 Ga. 202, 204 (1) (91 SE2d 495) (1956) (whether plaintiff was the common law wife of the defendant was not directly decided and thus estoppel by judgment did not apply).

        Hall, supra, 240 Ga. at 28; see In the Interest of K. D. S., 237 Ga. App. 865 (1) (a) (517 SE2d 102) (1999) (unappealed orders are binding on the parties); Hooper v. Harris, 236 Ga. App. 651, 652 (1) (512 SE2d 312) (1999) (unappealed rulings are final).

       See Waldroup v. Greene County Hosp. Auth., 265 Ga. 864, 865-866 (1) (463 SE2d 5) (1995) (for res judicata to apply, parties and causes of actions in both cases must be identical); Sorrells Constr., supra, 214 Ga. App. at 193-194.

       50 CJS 370, Judgments, § 803 (c) (1997); see Michigan Oil Co. v. Dept. of Natural Resources, 148 Mich. App. 745, 754 (384 NW2d 777, 781) (1985) (“ ‘the parties are not bound by opinions or statements of the court seeking to define the extent to which such judgment shall prejudice the rights of the parties in other actions.’ [Cit.]”); Nott v. Gundick, 216 Mich. 217, 222 (184 NW 864, 865) (1921) (same); Evans v. Schafer, 86 Ind. 135, 136-137 (1882) (striking language from judgment purporting to limit judgment’s preclusive effect).

       See, e.g., Evans v. Birge, 11 Ga. 265, 272 (2) (1852) (collateral questions that are only incidentally considered have no estoppel effect); First Nat. Bank &c. v. Williams, 62 Ga. App. 203, 205 (8 SE2d 562) (1940) (same); see generally Rent, supra, 265 Ga. at 211 (1) (determination must be essential to judgment to have collateral estoppel effect).


text:
    A00A2390.
    PATEL v. THE STATE.
    (545 SE2d 383)
   Miller, Judge.

Pulin R. Patel was tried before a jury in the City Court of Atlanta and found guilty of following too closely, leaving the scene of an accident, reckless driving, and driving under the influence of alcohol. His convictions were affirmed on direct appeal. In Case No. A00A2390, Patel appeals from the denial of his subsequent motion to modify his four misdemeanor sentences.

1. The trial court’s order denied Patel’s motion on the ground that “[a] trial court loses power to modify, suspend or vacate its judgments after the term at which they are rendered.” That is the general rule for both felony and misdemeanor convictions, but the rule is different for misdemeanor sentences imposed under OCGA § 17-10-3 (a) (l). “The sentencing courts shall retain jurisdiction to amend, modify, alter, suspend, or probate sentences under paragraph (1) of subsection (a) of [OCGA § 17-10-3] at any time. . . .” Thus, the trial court here retained the discretionary authority to grant Patel’s motion to modify any misdemeanor sentences imposed under that Code section. But such discretion does not extend to the sentence for driving under the influence. Sentences for driving under the influence are otherwise provided for by OCGA § 40-6-391 (c).

2. The Solicitor urges an affirmance under the theory that a judgment that is right for any reason must be affirmed. But the court clearly did not exercise any discretion because it erroneously believed it had no discretion to grant Patel’s motion for leniency in misdemeanor sentencing since the term of court had passed. Where a ruling committed to the discretion of the trial court shows that no such discretion was in fact exercised and that the judgment rendered was based on an erroneous theory of law or a misapprehension of the applicable law, the “right for any reason” rule cannot ratify the result. The judgment of the trial court denying Patel’s motion to modify misdemeanor sentences is vacated and the case is remanded with direction to consider the merits of this motion in the full exercise of the court’s enlightened discretion.

Decided February 5, 2001.

Morriss, Lober & Dobson, Bruce F. Morriss, Daniel Shim, for appellant.

Joseph J. Drolet, Solicitor, Shukura L. Ingram, Craig E. Miller, Assistant Solicitors, for appellee.

Judgment vacated and case remanded with direction.

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

       Citing Latham v. State, 225 Ga. App. 147 (483 SE2d 322) (1997).

       Except as otherwise provided by law, every misdemeanor shall be punished by a fine not to exceed $1,000 or by confinement in the county jail for a term not to exceed 12 months, or both. OCGA § 17-10-3 (a) (1).

       OCGA § 17-10-3 (b).

        State v. James, 211 Ga. App. 149, 150-151 (2) (438 SE2d 399) (1993).

        Watson v. Elberton-Elbert County Hosp. Auth., 229 Ga. 26, 27 (189 SE2d 66) (1972). Accord Rowe v. Akin & Flanders, Inc., 240 Ga. App. 766, 770 (3) (525 SE2d 123) (1999).


text:
    A00A2450.
    PORTER et al. v. TISSENBAUM.
    (545 SE2d 372)
   Miller, Judge.

Plaintiff Marc Tissenbaum sued New York residents Darwin Porter and Danforth Prince in the Superior Court of Wilkes County, Georgia, seeking damages for intentional infliction of emotional distress, invasion of privacy, assault, battery, and trespass arising out of alleged sexual harassment of Tissenbaum at defendants’ place of business in Washington, Georgia. Proceeding pro se, defendants answered and denied the material allegations. They also timely responded to requests for admissions sent to the return address given with the answer and propounded their own discovery.

On September 29, 1999, the case appeared as “#10” on a published trial calendar for November 1, 1999. At the sound of the case, plaintiff announced ready, but defendants did not appear. The court noted that it had received a telefacsimile communication from New York that morning, in which defendant Porter stated: “[H]aving learned there was a civil case pending against me and Mr. Prince only at 11:05 p.m. Sunday, October 31st, I cannot appear in court today.” Porter claimed he had received no official notice of trial in the mail and requested a postponement. In response to direct inquiry by the trial court, the clerk affirmed that, on September 29, she sent a copy of the trial calendar to defendants Prince and Porter at the address of record as provided by defendants and that the notice had not been returned as undeliverable.

Rather than grant a postponement, the trial court granted plaintiff’s motion for default judgment and struck defendants’ answer, whereupon the issue of damages was tried to a jury. This trial was not reported. The jury awarded Tissenbaum $1 million in compensatory damages and found that he was entitled to punitive damages. In a special interrogatory, the jury determined that defendants specifically intended to harm plaintiff and awarded $3 million in punitive damages. Judgment was entered accordingly for $4 million against defendants jointly and severally.

Defendants retained local counsel and timely moved to set aside the default judgment and for a new trial. The trial court denied the motion to set aside the judgment but granted a new trial as to damages only unless plaintiff accepted a reduced damage award of $100,000 in general damages and $300,000 in punitive damages. The court stated that plaintiff’s failure to expressly reject the reduced award by written pleading would constitute an acceptance. The record contains no written rejection of the diminished award, and so it was deemed accepted and the order final. On appeal, defendants contend the trial court erred in denying their motion for new trial because (1) the verdict is excessive; (2) the verdict is based on inadmissible evidence; (3) the verdict is not supported by any evidence that Porter committed battery; and (4) the failure of defendants to appear was for good cause. We affirm.

1. The trial court did not manifestly abuse its discretion in denying a new trial on the ground that the verdict was excessive since the court exercised its authority under OCGA § 51-12-12 (b) and reduced the damages by $3.6 million, i.e., to only ten percent of those awarded by the jury. This was a conditional grant of defendants’ motion.

2. The second and third enumerations raise evidentiary matters which cannot be considered because there is no transcript of the unrecorded trial and no statutorily authorized substitute. In the absence of a transcript, we are bound to conclude the trial court correctly ruled and so affirm as to these contentions.

Decided February 5, 2001.

Gail A. Mackinson, Cynthia L. Montgomery, for appellants.

J. Hue Henry, Christopher L. Casey, for appellee.

3. The fourth enumeration contends the trial court erred in denying a new trial because defendants’ nonappearance was due to the fact that, through no fault of their own, they received no notice of the time for trial.

The trial court may set aside a judgment based on “[f]raud, accident, or mistake or the acts of the adverse party unmixed with the negligence or fault of the movant.” Conversely, this Code section is inapplicable where there is any negligence or fault on the part of the movant.

Although defendants presented evidence that they ran a publishing business out of the address given, receiving from 250 to 500 pieces of mail per day, and deposed that they received no actual notice, the trial court was authorized to draw adverse inferences from the uncontradicted testimony of the clerk that she timely sent a copy of the trial calendar with adequate postage to the return address defendants gave with their answer. The circumstances authorized the trial court’s conclusion that these pro se defendants were at fault for failing to exercise diligence to stay abreast of the pending action against them. Consequently, the denial of defendants’ motion to set aside the judgment is supported by evidence and is not an abuse of discretion or otherwise in error.

Judgment affirmed.

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

        Jacobsen v. Haldi, 210 Ga. App. 817, 819 (1) (437 SE2d 819) (1993).

       See Spence v. Maurice H. Hilliard, Jr., P.C., 260 Ga. 107, 108 (1) (389 SE2d 753) (1990) (OCGA § 51-12-12 does not authorize trial court to reduce damages and then deny new trial).

        Reid v. Royal Creek Apts. Ltd. Partnership, 239 Ga. App. 536, 537 (521 SE2d 210) (1999).

       OCGA § 9-11-60 (d) (2).

        Mitchell v. Speering, 239 Ga. App. 472, 473 (521 SE2d 419) (1999).

        Trice v. Howard, 130 Ga. App. 895 (2) (b) (204 SE2d 808) (1974) (presumption that clerk gave notice as required by statute); Watkins Products v. England, 123 Ga. App. 179, hn. 1 (180 SE2d 265) (1971) (proof that a letter (1) was written; (2) was properly addressed; (3) contained correct postage; and (4) was duly mailed “create[s] a presumption that the letter was received”) (emphasis supplied).

        Aycock v. Hughes, 189 Ga. App. 838 (1) (377 SE2d 689) (1989). See T.A.I. Computer v. CLN Enterprises, 237 Ga. App. 646, 648 (2) (516 SE2d 340) (1999) (abuse of discretion standard).


author: Ellington, Judge.

text:
    A00A2461.
    BROUGHTON v. JOHNSON.
    (545 SE2d 370)
   Ellington, Judge.

Lenorris Johnson, as administrator of the estate of Arthur James Johnson, Sr., sued Vickie D. Broughton for costs and other damages associated with building a house. Johnson claimed that the decedent acted as general contractor during the construction of Broughton’s house and that Broughton wrongfully refused to pay for his services. Johnson moved the trial court to exclude evidence of a three-and-one-half-year affair between the decedent and Broughton, claiming that their “adulterous and/or fornicatious [sic] relationship” was immaterial to any issue presented in the case. The trial court granted the motion, excluding from evidence any reference to the relationship between the decedent and Broughton on the basis that it is “irrelevant and immaterial to any legal defense” available to Broughton. Broughton filed an interlocutory appeal from its order, which this Court granted. Because we find that the evidence of a relationship between Broughton and the decedent is relevant to certain issues presented, we reverse the trial court’s order.

In his complaint, Johnson asserted that the estate was entitled to recover for breach of contract or, in the alternative, quantum meruit. Broughton answered and denied that any contract existed between her and the decedent. Broughton also denied liability under quantum meruit.

1. Under OCGA § 13-3-1, the plaintiff in a breach of contract action has the burden of pleading and proving three elements: subject matter of the contract, consideration, and mutual assent by all parties to all contract terms. Lamb v. Decatur Fed. Sav. &c. Assn., 201 Ga. App. 583, 585 (1) (411 SE2d 527) (1991). In this case, Johnson claimed that Broughton expressly agreed to pay for the decedent’s services, then refused the decedent’s demand for payment. In his motion in limine, Johnson sought to prevent Broughton from claiming that, instead of payment, her consideration for the contract was the promise of “sexual favors,” and that she fulfilled her agreement by participating in “a continued sexual affair.”

Broughton denies that she ever claimed she traded sexual favors with the decedent in consideration for his efforts as general contractor. Instead, her defense was that no contract for payment existed because she and the decedent were “romantically involved” and he provided his services gratuitously, without expectation of compensation.

(a) Under OCGA § 13-3-45, a promise fails if the consideration given in exchange is illegal in whole or part. See also OCGA § 13-8-1. Fornication (sexual intercourse between an unmarried person and another) is illegal in Georgia, as is adultery (sexual intercourse with someone other than one’s spouse). OCGA §§ 16-6-18; 16-6-19. Therefore, the trial court did not err in precluding Broughton from claiming that the consideration for her alleged contract with the decedent was an “adulterous and/or fornicatious relationship.”

(b) Broughton should have the right, however, to present evidence of her relationship with the decedent in order to support her contention that no contract existed between them that required her to pay for his services because the services were provided gratuitously. See also Division 2, infra. In this case, the relationship between Broughton and the decedent is clearly relevant and material to the issue of whether a contract for payment existed. Southern R. Co. v. Lawson, 256 Ga. 798, 802 (4) (353 SE2d 491) (1987) (evidence is relevant if it makes the desired inference more probable than it would be without the evidence). Therefore, the trial court erred in precluding Broughton from presenting evidence of her relationship with the decedent in order to demonstrate that no contract existed.

2. Johnson also claimed that, if no express contract existed, then the estate was entitled to recover for the decedent’s services under the theory of quantum meruit. See OCGA § 9-2-7.

Quantum meruit lies ordinarily when one renders services valuable to another which the latter voluntarily accepts, raising the implication of a promise to pay the reasonable value thereof. However, the promise to pay is rebutted if from the facts and circumstances it appears that the services were rendered gratuitously. Whether services were intended to be rendered gratuitously ordinarily is a question for the finder of fact to determine. Moreover, a recovery on a quantum meruit basis may not be obtained where the services (even if beneficial) are rendered with no anticipation that compensation is to be received. The law will not imply a promise to pay for services contrary to the intention of the parties. There can be no recovery for services rendered voluntarily and with no expectation at the time of the rendition that they will be compensated. Under such circumstances no obligation is incurred. A subsequent change of intention by the parties performing the services does not alter the rule.

(Citations and punctuation omitted; emphasis in original and supplied.) Smith Dev. v. Flood, 198 Ga. App. 817, 820-821 (3) (403 SE2d 249) (1991). See also Brightwell v. Oglethorpe Tel. Co., 47 Ga. App. 521, 526 (171 SE 162) (1933) (no presumption of a promise to pay exists if services were rendered under circumstances which repel this presumption).

Decided February 5, 2001.

Alfred L. King, Jr., for appellant.

Albert B. Wallace, Stephen B. Wallace II, for appellee.

As noted in Division 1 (b), supra, the relationship between Broughton and the decedent is clearly relevant and material to the issue of whether the decedent intended, at the time he was acting as general contractor, to provide his services gratuitously. See Southern R. Co. v. Lawson, 256 Ga. at 802 (4). Accordingly, the trial court erred in precluding Broughton from defending against Johnson’s quantum meruit claim by showing the jury that, because of their relationship, the decedent intended to provide his services gratuitously.

Judgment reversed.

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

       We note that, in his motion in limine, Johnson stated that “[t]he consideration for this contract or agreement was the furtherance of and the facilitation of a sexual relationship between the decedent and [Broughton].” Having ruled that Broughton is precluded from claiming that her sexual relationship was the consideration for the contract, we also hold that Johnson cannot meet his burden of proving the alleged contract by asserting that the relationship established the element of consideration.