text:
    A00A0256.
    STATE OF GEORGIA v. TUCKER.
    (528 SE2d 523)
   Eldridge, Judge.

In this forfeiture action, the State appeals from the trial court’s order entering judgment in favor of Clyde Douglas Tucker, Jr. Because the trial court’s entry of judgment was error as a matter of fact and law, we reverse.

Based on information from a confidential informant (“Cl”), Tucker’s blue 1997 Chevrolet pickup truck, bearing Aultman BuiekPontiac (“Aultman Pontiac”) drive-out tags, was stopped by the Albany-Dougherty County Drug Unit. Patricia Aultman was driving, and Tucker was the passenger. The vehicle was searched. Approximately 59 grams of cocaine, as well as controlled substances in pill form, were found in a bait box in the back of the truck. A briefcase containing $4,010 in cash was located in the backseat of the truck’s extended cab. Tucker was arrested.

The State filed a complaint seeking forfeiture of the $4,010 and the blue 1997 Chevrolet pickup truck. Answers were filed by both Tucker and Plantation Trace Chevrolet, Inc. (“Plantation Trace”), which claimed “innocent ownership” of the vehicle. An in rem forfeiture hearing was held. At that time, Tucker claimed that the search of his pickup truck was without probable cause and that the contraband found in it should be suppressed, in which case the State could not prove that the items sought to be forfeited were “in close proximity” to contraband or used “to facilitate” a violation of the Georgia Controlled Substances Act. OCGA § 16-13-49 (d) (2), (6); see Pitts v. State of Ga., 207 Ga. App. 606 (428 SE2d 650) (1993). A lengthy evidentiary hearing was held on this issue, after which Tucker claimed that the search of his vehicle was without probable cause because “[t]he complete lack of information about the informant and the basis of his knowledge relegated the information he supplied to the status of rumor.”

After consideration of evidence and argument, the trial court entered an order suppressing the contraband based upon the following findings of fact and conclusions of law:

Testimony of the witnesses at the hearing established that the justification for the stop was based solely upon the fact that the vehicle was displaying a temporary tag and that law enforcement had previously réceived information that an individual by the name of “Bo Tucker” was in route either to or from Panama City, Florida and would have drugs in his vehicle, that the vehicle was a blue Chevrolet Pickup Extended Cab bearing “Aultman” tags on the front and back, that there would be a female passenger in the vehicle and that there would be several different types of drugs including pills, and possibly marijuana. No testimony or other evidence was presented at the hearing relevant to the issue of the informant’s basis for knowledge of the information relat[ed] to law enforcement. . . . [Thus,] the reliability of the information obtained by law enforcement and the specificity thereof were insufficient to provide . . . probable cause for a search and seizure of the vehicle.

Held:

1. In holding that the search of Tucker’s vehicle was invalid, the trial court determined that “no other evidence” was presented at the hearing to establish the basis for the Cl’s information, except for the Cl’s description of the vehicle and its occupants. We find this determination to be error as a matter of fact.

(a) At the hearing, Investigator Fred Wood with the AlbanyDougherty County Drug Unit testified that the Cl had been providing reliable information for at least four years. Wood testified that the Cl had provided reliable information to other law enforcement agencies, as well: “This particular informant has given information in the past to myself as well as other law enforcement agencies in and around Albany, Dougherty County that have proved reliable based on arrest and confiscation of drugs, weapons, cash, and other items.”

Wood testified that he had personally received information about controlled substances from the Cl on at least four other occasions; that each time the information had proved correct; and that each time the information led to both arrest and conviction. Investigator Enfinger with the drug unit also testified at the hearing and stated that the Cl had provided reliable information to him regarding a large quantity of marijuana and a cache of automatic weapons. The Cl’s information led to arrest and conviction in that instance, as well.

Further evidence at the hearing showed that the Cl “knew” Tucker. The Cl had been in Tucker’s house and had seen contraband there. The Cl had provided information which aided in the previous arrest of Tucker in another county. Tucker’s prior 1997 conviction in neighboring Colquitt County for possession of marijuana with intent to distribute was introduced and was before the trial court. Notably, defense counsel attempted to question Wood regarding other counties in which the Cl provided information regarding Tucker; the trial court held an in camera meeting with Wood and Enfinger, after which the court refused to allow defense counsel to pursue the subject:

[A]s a result of that discussion, I will not allow further questioning concerning the county in which the confidential informant, the county or counties in which the confidential informant has previously provided information that may have had a connection with this particular party, Mr. Tucker. As that information has a high probability of compromising the confidentiality and identity of the informant in this case.

The information acquired from the in camera meeting with the investigators was also before the trial court.

As to the incident in question, the evidence showed that the Cl told Woods that Bo Tucker, a/k/a Clyde Douglas Tucker, Jr., had gone to Panama City, Florida, and that Tucker would be carrying several different types of drugs, including pills, when he reentered Dougherty County. The Cl knew drugs by sight. And “there were pills seen.” The Cl told Woods that on the evening of November 8, 1998: “Bo Tucker would be in a blue Chevrolet pickup extended cab with Aultman Tags on the front and back and that there would be a female passenger, or a female with him, and that he would have drugs when he came back into Dougherty County.” The arresting officer testified at the hearing that on the evening of November 8, 1998, drug unit officers saw a blue Chevrolet extended cab pickup truck with Aultman Pontiac tags on the front and back and occupied by a white male and a white female traveling north on Highway 91.

All of this “other evidence” was presented at the hearing and established the Cl’s reliability and basis of knowledge. The trial court’s finding that, except for the Cl’s description of the vehicle and occupants, “no other evidence was presented” was error as a matter of fact.

(b) The trial court concluded that “the reliability of the information obtained by law enforcement and the specificity thereof were insufficient to provide . . . probable cause for a search and seizure of the vehicle.” Under the facts of this case, we find this conclusion to be error as a matter of law.

Probable cause to search may be provided by information from a reliable confidential informant. Martin v. State, 214 Ga. App. 388, 389 (448 SE2d 57) (1994).

The sufficiency of information obtained from an informant is not to be judged by any rigid test. Generally, probable cause is determined by the totality of the circumstances surrounding (1) the basis of the informant’s knowledge and (2) the informant’s veracity or reliability. A deficiency in one may be compensated for, in determining the overall reliability of a tip, by a strong showing as to the other, or by some other indicia of reliability.

(Citations and punctuation omitted; emphasis supplied.) Wells v. State, 212 Ga. App. 60, 63 (2) (441 SE2d 460) (1994). When the details of a tip are corroborated “by the personal observation of the investigating officers, a reliable informant’s tip is sufficient to establish probable cause for a warrantless search.” (Citation and punctuation omitted.) DuPree v. State, 232 Ga. App. 573, 574 (502 SE2d 511) (1998).

Here, the basis for the Cl’s knowledge was sufficiently established by the evidence presented at the hearing. The Cl knew Tucker, had prior dealings with Tucker, had been in Tucker’s home, and had “seen pills” in Tucker’s possession just before providing the information to law enforcement. Deficiency, if any at all, in the basis for the Cl’s knowledge found more than adequate compensation in: (1) the informant’s “previous record of reliability,” which was well established by testimony from both Woods and Enfinger; (2) the specificity of the Cl’s information, which included everything from Tucker’s identity, to the direction Tucker’s vehicle would be traveling, to the fact that the vehicle was an “extended cab” pickup with “Aultman” tags; and (3) the personal observations of the arresting officer which — prior to the stop — corroborated all of the details given by the Cl as to the vehicle’s location, make, description, tags, and occupants.

This evidence was sufficient to establish probable cause for a search of Tucker’s vehicle and the seizure of contraband found therein. Wells v. State, supra. The trial court’s findings to the contrary were error as a matter of law.

(c) In rendering judgment on a complaint for forfeiture, the trial court is required to make mixed findings of fact and law, which this Court must accept unless they are clearly erroneous. See, e.g., Mitchell v. State of Ga., 236 Ga. App. 335, 336 (511 SE2d 880) (1999). We find that the trial court’s suppression of contraband in this case was clearly erroneous. Since the trial court entered judgment for Tucker based on the erroneous suppression of contraband, that judgment is reversed.

2. The State claims error in the trial court’s finding that the $4,010 “was not in sufficient proximity to any contraband substances so as to support a forfeiture of said property.” We must agree with the State, because the trial court’s legal conclusion is without evidentiary support.

Under our forfeiture law, no person shall have a property right in: “moneys, negotiable instruments, securities, or other things of value which are found in close proximity to any controlled substance or marijuana or other property which is subject to forfeiture under this subsection.” OCGA § 16-13-49 (d) (6). Further, a showing by the State that money is in close proximity to drugs is sufficient to establish a prima facie case in an action for condemnation of the money. Moore v. State ofGa., 209 Ga. App. 89, 91 (432 SE2d 597) (1993); see OCGA § 16-13-49 (d) (6), (s) (2).

Here, the $4,010 was located in the cab of the pickup truck, and contraband was located in the bed of the same pickup truck. Tucker claimed ownership of both and stated that he had just “purchased the drugs from Kim Miller,” thereby creating an additional nexus between the money and the contraband. This evidence factually established proximity close enough to warrant forfeiture of the money. OCGA § 16-13-49 (d) (6), (s) (2); Morris v. State of Ga., 234 Ga. App. 683 (507 SE2d 532) (1998); Manley v. State ofGa., 217 Ga. App. 556, 558 (458 SE2d 179) (1995). Accordingly, the trial court’s legal conclusion, unsupported by any evidence of record, was error.

3. The State also claims error in the trial court’s determination that the blue 1997 Chevrolet pickup truck was not subject to forfeiture, since the owner of the pickup truck, Plantation Trace, was an “innocent owner” of the vehicle. The trial court found that “there is no evidence of any knowledge on the part of that claimant [(Plantation Trace)] that said property was in proximity to any contraband substances so as to support a forfeiture of the vehicle.”

On appeal, the trial court’s findings of fact will not be reversed unless clearly erroneous, and due regard must be given to the trial court’s opportunity to judge the credibility of the witnesses who appeared before it. This means that we will not disturb a trial court’s findings if any evidence exists to support them.

(Citation omitted.) Mitchell v. State of Ga., supra at 337.

Here, however, the trial court did not make any findings of fact in support of its legal conclusion that Plantation Trace had “no knowledge” of Tucker’s conduct. Further, the court’s legal conclusion is error as a matter of law, because lack of actual knowledge is not one of the criteria for “innocent ownership.” Thus, the court did not apply (a) the facts of this case to (b) the applicable statutory criteria.

(a) The evidence showed that Plantation Trace is owned by appellee Tucker’s father, Clyde Douglas Tucker, Sr. (“Tucker, Sr.”). Tucker, Sr. signed the pleadings in this case as President of Plantation Trace. Appellee Tucker’s mother is Linda Aultman Tucker, and her father — appellee Tucker’s grandfather — owned and operated Aultman Pontiac. Tucker, Sr. originally went to work at Aultman Pontiac, and appellee Tucker started work there when he was “old enough to push a broom.”

Tucker, Sr. is President of Plantation Trace, but he is also Vice President and General Manager of Aultman Pontiac. The two companies pass cars between them. Plantation Trace purchased the 1997 blue Chevrolet pickup in question and immediately sent it to Aultman Pontiac. Aultman Pontiac does all the detailing on Plantation Trace’s cars. The two companies share dealer’s tags and drive-out tags.

Plantation Trace did not seek the return of the pickup truck from Aultman Pontiac.' Neither Aultman Pontiac nor Plantation Trace “missed” the pickup truck because it is common to loan out their vehicles. Appellee Tucker obtains loaner vehicles because he is “related to the principals.” At the time of the incident, appellee Tucker had been driving the 1997 blue Chevrolet pickup truck with Aultman Pontiac drive-out tags for “a few months.” In the court below, neither Aultman Pontiac nor Plantation Trace put forward any assertion or affirmative evidence that appellee Tucker did not have permission to drive the pickup truck.

The evidence further showed that appellee Tucker has been involved with drugs in and around Dougherty County since 1984. In December 1997, less than a year before the instant case, appellee Tucker was apprehended attempting to purchase 29 pounds of marijuana in Colquitt County. He was driving a 1997 Chevrolet Blazer loaned to him by Aultman Pontiac with an Aultman Pontiac dealer tag on it. The Blazer had just been sold to Aultman Pontiac by Plantation Trace. To facilitate the purchase of the marijuana, Tucker was carrying $24,000 in cash in the Blazer. After the purchase had been completed, but before the marijuana could be put in the Blazer, the police moved in: “When Mr. Tucker purchased Marijuana, we didn’t allow him to put it in his vehicle yet because we didn’t want him to leave with, you know, that Marijuana and us, and us lose it.”

The State filed a complaint for forfeiture against the $24,000 and the Blazer. In the prior Colquitt County action, Tucker, Sr. answered as Vice President and General Manager of Aultman Pontiac claiming “innocent ownership” of the vehicle under OCGA § 16-13-49 (e), just as he does in the instant case as President of Plantation Trace.

(b) A property interest will not be subject to forfeiture under OCGA § 16-13-49 if:

the owner of such interest or interest holder establishes that the owner or interest holder: (1) Is not legally accountable for the conduct giving rise to its forfeiture, did not consent to it, and did not know and could not reasonably have known of the conduct or that it was likely to occur.

(Emphasis supplied.) OCGA § 16-13-49 (e) (1).

Thus, Plantation Trace had the burden to show by a preponderance of the evidence that, with the exercise of ordinary care, it “could not reasonably have known of [Tucker’s] conduct or that it was likely to occur.” OCGA § 16-13-49 (e) (1). See Mitchell v. State of Ga., supra at 336. This burden was not met. In fact, other than evidence of ownership of the vehicle, Plantation Trace offered no evidence to demonstrate that it could not reasonably have known of Tucker’s conduct or that it was likely to occur. The evidence is that Plantation Trace through Tucker, Sr. — as President of Plantation Trace and Vice President-General Manager of Aultman Pontiac — had knowledge of appellee Tucker’s use of loaner vehicles from Aultman Pontiac and/or Plantation Trace and that Tucker had used such loaner vehicles to transport contraband. Accordingly, Plantation Trace failed to show that it could not reasonably have known of Tucker’s conduct or that it was likely to occur. “Innocent ownership” was claimed by Tucker, Sr. in the Colquitt County forfeiture action. While the results of that action are irrelevant here, the repeated claim of “innocent ownership” for the same type of offense, committed by the same defendant, with another loaner vehicle, from the same interrelated companies now rings hollow.

Decided January 20, 2000

Kenneth B. Hodges III, District Attorney, Anthony L. Hing, for • appellant.

Donaldson, Bell & Pickett, Reginald J. R. Bell, Jr., Mark L. Pickett, for appellee.

The State’s evidence showed that the blue 1997 Chevrolet pickup truck was used to transport contraband and thus established a prima facie case for forfeiture. Jackson v. State of Ga., 218 Ga. App. 437 (461 SE2d 594) (1995). The onus was then on Plantation Trace to establish its entitlement to a statutory exception under OCGA § 16-13-49 (e). Since that burden was not met, the vehicle is subject to forfeiture.

Judgment reversed.

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

       See also Illinois v. Gates, 462 U. S. 213 (103 SC 2317, 76 LE2d 527) (1983).

       See Britt v. State, 208 Ga. App. 157, 158 (430 SE2d 28) (1993).

       See Thomas v. State, 208 Ga. App. 476, 477 (430 SE2d 849) (1993).

       See McKinney v. State, 184 Ga. App. 607 (1) (362 SE2d 65) (1987); Britt v. State, supra at 157-158; Wells v. State, supra.

       Further, such evidence also supported a finding under OCGA § 16-13-49 (d) (2) that the $4,010 “was used or intended for use to facilitate a transaction in or a purchase of or sale of [contraband].” (Citation and punctuation omitted.) Morris v. State of Ga., supra at 683. Apparently, the trial court did not consider forfeiture of the $4,010 pursuant to a violation of OCGA § 16-13-49 (d) (2), although such was pled by the State.

       In response to a question by the trial court, Tucker’s uncle, James Golden, an employee at Plantation Trace, testified that “as far as I know he didn’t have permission to drive the truck.” But Tucker’s uncle also stated that he did not know what happened to the pickup truck when it got to Aultman Pontiac; that he lost track of it; and that it did not concern him. Tucker’s uncle was not a principal in either company and testified that “I don’t go to the meetings. I don’t know who is who and what’s what.” Accordingly, his qualified statement that “as far as he knew” Tucker did not have permission to drive the pickup is not affirmative evidence of that fact. Tucker, Sr., who signed the pleadings as a principal in both car companies, did not testify at the hearing and never asserted that appellee Tucker did not have permission to drive the vehicle.

       A corporation is chargeable with the composite knowledge acquired by its officers acting within the scope of their duties. See Gem City Motors v. Minton, 109 Ga. App. 842 (137 SE2d 522) (1964).


source: Caselaw Access Project

author: Eldridge, Judge.

license: Public Domain

text:
    A00A0319.
    PARKER v. THE STATE.
    (528 SE2d 530)
   Eldridge, Judge.

A Washington County jury found Gerald Lee Parker guilty of armed robbery, aggravated battery, and kidnapping with bodily injuries for offenses he perpetrated at Movie Gallery in Sandersville; three additional counts of the indictment involving a separate armed robbery, aggravated assault, and kidnapping allegedly committed at Handi Corner in Sandersville ended in mistrial. Without challenging the sufficiency of the evidence introduced against him, he appeals. Finding no error, we affirm his convictions.

1. First, we find no error in the trial court’s denial of Parker’s motion to sever the offenses that occurred at Handi Corner from the offenses that occurred at Movie Gallery. Both incidents demonstrated a common motive, plan, scheme or bent of mind, as evidenced by the facts outlined below:

Movie Gallery

On February 19,1996, Parker entered Movie Gallery in Sanders-ville and browsed through the movies. The manager, who was alone in the store, was not aware that anything was wrong until she felt Parker’s arm around her neck and saw a serrated knife at her throat. Parker demanded money from the cash register. He removed the money himself, taking only larger bills. He forced the manager to the back of the store and through a rear storage door. He began to stab her repeatedly. The manager pleaded successfully for her life, but not before Parker had lacerated her liver, extensively damaged her arms and hands, and caused severe internal bleeding.

Handi Corner

Five days earlier, on February 14, 1996, the clerk at Handi Corner in Sandersville testified that Parker entered the store and waited while she finished cleaning tables. She walked back to the register. The clerk, who was alone in the store, was unaware that anything was wrong until Parker grabbed her around the neck and held a serrated knife to her throat. He demanded money from the cash register. He removed the money himself, taking only larger bills. He forced the clerk to the back of the store and through a rear exit door. He forced her into his car. The car had mechanical problems as it left the parking lot, and the clerk was able to escape as the vehicle slowed down. “When charges have been joined solely on the ground that they are of the same or similar character, severance is mandatory; if they are joined for other permissible reasons, however, the trial court has discretion on the issue of severance.” (Citations and punctuation omitted.) Pickstock v. State, 235 Ga. App. 451, 454 (509 SE2d 717) (1998). “Offenses are not joined solely because they are of the same or similar character where the similarity reaches the level of a pattern evincing a common motive, plan, scheme or bent of mind.” (Citations and punctuation omitted; emphasis in original.) Whitfield v. State, 217 Ga. App. 402, 403 (1) (457 SE2d 682) (1995). Because both the Movie Gallery and the Handi Corner incidents show a common motive, plan, scheme or bent of mind, the trial court did not abuse its discretion in denying severance in this case. Reynolds v. State, 234 Ga. App. 599, 601-602 (507 SE2d 814) (1998).

In addition, it is clear that, had the offenses been severed, evidence regarding the Handi Corner armed robbery would have been admissible as similar transaction evidence in the trial of the Movie Gallery armed robbery, and vice versa. Both incidents were close in time and involved a situation in which a perpetrator identified as Parker held a serrated knife to the throat of an unsuspecting, lone female employee, took larger bills from the respective cash registers, and forced the woman to the back of the respective stores. That one incident then resulted in violent injury and the other did not appears more likely due to the fortunate escape by the Handi Corner employee than any real difference in the relevant portions of the crimes. “Where the evidence of one crime would be admissible in the trial of the other crime, it cannot be said that the trial court abused its discretion in denying the motion for severance.” (Citation and punctuation omitted.) Gibson v. State, 233 Ga. App. 838, 839 (1) (505 SE2d 63) (1998).

2. Relying on our decision in Rivers v. State, 236 Ga. App. 709 (513 SE2d 263) (1999), Parker contends that the trial court failed to adequately instruct the jury regarding similar transaction evidence, because the instruction failed to charge the jury in the exact language of the pattern jury instruction on similar transaction evidence, i.e., that the jury must determine “whether the act was similar enough to the crime charged in the indictment so that proof of the other, in light of the limited purpose for which it has been presented to you, needs to prove the crime charged in the indictment.” (Emphasis omitted.) Id. at 710-711. However, this claim of error has nothing to do with our holding in Rivers.

It should be recognized that the error which required reversal in Rivers was the trial court’s impermissible expansion of the uses for similar transaction evidence. In Rivers, the trial court specifically charged the jury that they could consider similar transaction evidence for the broad purpose “of showing ‘the crimes charged in the case.’” Rivers v. State, supra at 712. Our holding in Rivers did not intend to do away with the longstanding principle that a jury charge — such as the one in the instant case — which substantially covers applicable principles of law is sufficient: (Citations and punctuation omitted.) Walls v. State, 233 Ga. App. 601, 604 (2) (504 SE2d 471) (1998); Molaro v. State, 236 Ga. App. 35, 38 (510 SE2d 886) (1999); Callaway v. State, 230 Ga. App. 369, 370-371 (496 SE2d 349) (1998).

It is a fundamental rule in Georgia that jury instructions must be read and considered as a whole in determining whether the charge contained error. The failure to give requested instructions in the exact language requested, where the charge given substantially covers the same principle, is not grounds for reversal.

Decided January 20, 2000.

E. Allen Smith, for appellant.

Richard A. Malone, District Attorney, Samuel H. Altman, Assistant District Attorney, for appellee.

That said, we will not reach the specific merits of Parker’s claim. Parker fails to cite to any place in the record where he requested a similar transaction instruction. In addition, our review of Parker’s “Requests to Charge” shows that he did not request a written jury instruction on similar transaction evidence. Accordingly, Parker cannot now complain because the instruction as given did not include the exact language he desires. Belt v. State, 269 Ga. 763 (505 SE2d 1) (1998) ; Johnson v. State, 236 Ga. App. 252, 254 (511 SE2d 603) (1999) .

Judgment affirmed.

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


text:
    A00A0424.
    KIGHT v. THE STATE.
    (528 SE2d 542)
   Eldridge, Judge.

Johnny Eight appeals from the denial of his motion for new trial, which followed his jury conviction on rape, statutory rape, and numerous counts of aggravated child molestation and child molestation involving four children. Without challenging the sufficiency of the evidence, Eight instead asserts that some of the trial court’s evidentiary rulings constituted reversible error. Finding no such errors, we affirm.

On appeal [,] the evidence must be viewed in a light most favorable to the verdict, and appellant no longer enjoys a presumption of innocence; moreover, on appeal this court determines evidence sufficiency, and does not weigh the evidence or determine witness credibility.

(Citations omitted.) Grant v. State, 195 Ga. App. 463, 464 (1) (393 SE2d 737) (1990). See also Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

The allegations in this case arose following a June 17, 1993 “sleep-over” at the home of M. H., who was 11 years old at that time. Two other eleven-year-old girls, S. P. and C. C., spent the night. All three girls testified at trial that Kight, who was M. H.’s stepfather, convinced them to play a math game in the style of “strip poker,” i.e., the children had to take off an item of clothing when they missed a math problem. After the girls were naked, Kight pulled down his pants and underwear, started “playing with” his penis, and shook his buttocks at them. He also told them “dirty jokes,” showed them “nasty” pictures, and gave them cigarettes. Later that night, after the girls went to bed, Kight came back into the room, climbed into bed with C. C., rubbed his penis against her genital area, and asked her to perform oral sex. He left when she refused. After S. P. and C. C. went home the next day, C. C. told her mother and stepfather about the molestation. C. C.’s stepfather is also M. H.’s father, having divorced M. H.’s mother in 1988 or 1989. After hearing C. C.’s report about what transpired at the sleep-over, M. H.’s father summoned M. H. to his home, where he questioned her the next morning. During his trial testimony, M. H.’s father stated that he expected M. H. to repeat C. C.’s description of the sleep-over but, instead, M. H. told him that Kight had repeatedly performed various sexual acts with her over the past several months, including oral and anal sodomy. Enraged, M. H.’s father contacted State child protection authorities and took the children to an emergency room.

Police officers conducted individual videotaped interviews with the girls. After the trial court made an initial reliability determination under the Child Hearsay Statute, OCGA § 24-3-16, the officers testified at trial regarding the girls’ statements.

The officers also testified that, during the investigation of the sleep-over case, molestation accusations arose concerning a fourth girl. The girl, 11-year-old J. G., testified at trial that she had spent a few nights at M. H.’s home while her mother was in the hospital. One night, Kight attempted to force her to perform oral sodomy on him, but she successfully resisted by hitting him in the stomach. The next night, Kight forced M. H. to hold J. G. down while he performed anal sodomy on J. G. A few days later, she woke up to find that Kight had climbed into her bed. Kight raped J. G.

In addition to the testimony of the officers and the four victims, the State presented the testimony of the girls’ parents, emergency room physicians who examined the girls, and a counselor who specializes in abused and battered children and interviewed two of the girls. With minor exceptions, all of the testimony was consistent with the facts as stated above. The State also presented the similar transaction testimony of Eight’s half-sister and her daughter (his niece), who both testified that, when they were between six and twelve years old, Eight had molested them, attempted to sodomize them, and threatened them if they told anyone.

The jury convicted Eight on all counts. Eight appeals from the denial of his motion for new trial. Held:

1. In his first enumeration of error, Eight challenges the trial court’s determination that the parents’ testimony regarding statements made to them by the girls was admissible under the Child Hearsay Statute, OCGA § 24-3-16. Under the statute, a witness may testify about a statement made by a child under the age of 14 which describes sexual contact with a third party “if the child is available to testify in the proceedings and the court finds that the circumstances of the statement^] provide sufficient indicia of reliability.” OCGA § 24-3-16. See also Allen v. State, 263 Ga. 60, 61 (2) (428 SE2d 73) (1993) (reaffirming the constitutionality of the statute). In determining whether the statements are inherently reliable,

[t]he factors which the court may consider, when applicable, include but are not limited to the following: (1) the atmosphere and circumstances under which the statement was made (including the time, the place, and the people present thereat); (2) the spontaneity of the child’s statement to the persons present; (3) the child’s age; (4) the child’s general demeanor; (5) the child’s condition (physical or emotional); (6) the presence or absence of threats or promise of benefits; (7) the presence or absence of drugs or alcohol; (8) the child’s general credibility; (9) the presence or absence of any coaching by parents or other third parties before or at the time of the child’s statement, and the type of coaching and circumstances surrounding the same; and, the nature of the child’s statement and type of language used therein; and (10) the consistency between repeated out-of-court statements by the child. These factors are to be applied neither in mechanical nor mathematical fashion, but in that manner best calculated to facilitate determination of the existence or absence of the requisite degree of trustworthiness. Nor does the fact that the statement is made days, weeks, or even several months after the alleged incident, in and of itself make the statement unreliable.

(Citations and emphasis omitted.) Gregg v. State, 201 Ga. App. 238, 240-241 (411 SE2d 65) (1991). See also Dumas v. State, 239 Ga. App. 210, 219 (521 SE2d 108) (1999) (Eldridge, J., concurring specially). Further, “the trial court has broad discretion in determining the admissibility of [child hearsay] evidence.” (Citation and punctuation omitted.) Wallace v. State, 228 Ga. App. 686, 688 (492 SE2d 595) (1997).

In making its determination of the reliability of the girls’ statements to their parents in this case, the trial court heard evidence regarding the circumstances of such statements. This evidence included all of the facts upon which Eight now relies in asserting that the statements were inherently unreliable. After hearing the evidence, however, the trial court rejected Eight’s arguments and specifically found that the State demonstrated the statements’ reliability under Gregg v. State, supra.

Having reviewed the entire record, this Court finds that the trial court correctly determined that the statements were sufficiently reliable to justify admission into evidence. At the time the statements were made, the girls were 11 years old. There was no evidence of coaching by the parents or others. The parents denied threatening the children in any way. None of the girls were under the influence of alcohol or mind-altering drugs. The testimony of all of the witnesses was detailed and extremely consistent. Although the testimony of one parent displayed some minor inconsistencies, this was an issue of the weight and credibility of the evidence, not its admissibility. Gregg v. State, supra at 241 (3) (c); Ware v. State, 191 Ga. App. 896, 897 (2) (383 SE2d 368) (1989).

In addition, the record shows the victim [s] testified at trial and [were] subject to examination and cross-examination. Thus, [Eight] had every conceivable opportunity to examine and cross-examine the [children] in the presence of the jury, regarding the [children’s] memory of and the circumstances surrounding [their] making of each of the out-of-court statements in question, and had the opportunity to allow the jury to judge the [children’s] demeanor in response to any examination or cross-examination about the alleged making and veracity of these previous statements. This procedure provided an additional safeguard to [Eight’s] right of fair trial, and provided [Eight] full opportunity for confrontation.

(Punctuation omitted.) Wallace v. State, supra at 688-689 (2), citing Gregg v. State, supra. Accordingly, the trial court did not abuse its discretion in admitting the parents’ testimony under the Child Hearsay Statute.

2. Right claims that the trial court erred in allowing the State to present the similar transaction testimony of Right’s half-sister and niece, because the State did not notify him of its intent to introduce such evidence ten days before trial, pursuant to Uniform Superior Court Rule 31.1. As a result, Right asserts that he was unable to investigate and challenge the testimony presented and was denied his right to effective confrontation of the witnesses.

Under USCR 31.1, however, the trial court has the discretion to shorten or lengthen the ten-day notice period, depending on the circumstances of the case. Robinson v. State, 257 Ga. 194, 195 (1) (357 SE2d 74) (1987); Hall v. State, 181 Ga. App. 92, 93 (1) (b) (351 SE2d 236) (1986). In deciding whether to admit the similar transaction evidence, the trial court considered the following, undisputed facts: the State found out about the similar transactions while interviewing family members approximately five days before trial. The State immediately notified Right’s attorney, picked him up, and transported him to the witnesses’ home. The witnesses were not there, but the State supplied the attorney with the names, phone numbers, and other information about the witnesses. Right’s attorney admitted to the trial court that “I have no doubt that he notified me as soon as he knew about it.” The similar transaction hearing was conducted during the trial, 12 days after the State discovered the allegations and gave notice thereof to Right’s attorney. During the hearing, the State showed that, upon discovery of the allegations, it investigated whether criminal charges had been brought against Right based upon these allegations, but no criminal records of any sexual misconduct were found. The State also showed that the similar transactions all occurred in the same neighborhood as those at issue in this case and involved family members who still lived in the area and were accessible to both the State and Right’s attorney.

After considering all of the circumstances, the trial court ruled that the State had substantially complied with the notice requirements; that the notice given was reasonable; and that the defendant would not be prejudiced to the extent that it would amount to a denial of his rights. We find no abuse of discretion in the trial court’s ruling.

3. In his final enumeration of error, Right claims that the trial court erred in denying him the opportunity to effectively cross-examine Right’s half-sister, a similar transaction witness. This enumeration lacks merit.

The witness testified, consistently and in detail, about the sexual abuse inflicted upon her as a child by Right. Right thoroughly cross-examined the witness about the details of these allegations. Then Right attempted to question the witness as to whether, in addition to accusing Right of molestation, she had ever accused her father of molesting her. After the State objected on the basis of relevancy, Right told the trial court that he was attempting to demonstrate the witness’ “state of mind” regarding her allegations of childhood sexual abuse and thereby raise an issue of the witness’ credibility. The trial court sustained the State’s objection.

Decided January 20, 2000

King, King & Jones, David H. Jones, William R. Wansker, for appellant.

Paul L. Howard, Jr., District Attorney, Bettieanne C. Hart, Elizabeth A. Baker, Assistant District Attorneys, for appellee.

This Court will not interfere with a trial court’s determination regarding relevancy absent an abuse of discretion. Karvonen v. State, 205 Ga. App. 852, 854 (424 SE2d 47) (1992). In this case, however, it is unnecessary to determine whether the trial court abused its discretion in limiting Right’s cross-examination because, on appeal, Right asserts an entirely different purpose for his cross-examination regarding the witness’ other allegations of abuse. Right now claims that the evidence was necessary to show that it was the witness’ father, not Eight, who molested her as a child. In other words, Right seems to be launching a new attack on appeal regarding the “identity” requirement for admission of similar transaction testimony. See Williams v. State, 261 Ga. 640, 642 (2) (b) (409 SE2d 649) (1991). “It is well settled that a reason urged by enumeration of error on appeal which is different from that urged below will not be considered for the first time on appeal.” (Citations and punctuation omitted.) Reinhardt v. State, 197 Ga. App. 825, 828 (4) (399 SE2d 729) (1990). As such, Right’s enumeration of error has been waived.

4. This Court has reviewed Right’s remaining allegations and finds that they lack merit, are not supported by the record, or both.

Judgment affirmed.

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

       See Division 1, infra.

       Eight attempts to create an issue out of the fact that, at the time she told her mother of the abuse, S. P. was “in the hospital under the influence of medication.” The hospitalization, however, was for an unrelated, infected dog bite, and the medication was an antibiotic. The trial court expressly considered these circumstances when determining that S. P.’s statements to her mother were reliable.

       The trial court, however, granted Eight the opportunity to perfect the record regarding any such credibility evidence, which Eight failed to do.


author: Phipps, Judge.

text:
    A99A1653.
    GARLAND v. THE STATE.
    (528 SE2d 550)
   Phipps, Judge.

Richard Garland was convicted of three counts of burglary, two counts of rape, one count of robbery, one count of armed robbery, and one count of aggravated assault. He appeals, challenging the sufficiency of the evidence to support the jury’s verdict and the trial court’s denial of his motions for continuance and mistrial. We find that there was sufficient evidence to support the verdict and that the trial court did not err in denying Garland’s motions. Therefore, we affirm his convictions.

Garland’s charges arose from three incidents where a man concealing his face and hair broke into the home of 72-year-old Barbara Williams. On November 7,1995, Williams fell asleep in a chair in her living room and was awakened by the man’s presence in her home. He demanded money, led her through the house looking for her purse, pushed her down on the floor, had intercourse with her forcibly and against her will, and took four or five of her rings. On January 22, 1996, the man broke into Williams’s home again as-she slept in a living room chair, brandished a knife to her, and said, “I want your money and I’ll kill you if you don’t give it to me.” He then took money from Williams’s purse. Then, on February 19, 1996, the man awakened Williams around midnight as she slept in her bed. He again demanded money, but she had none. Before leaving, the man took Williams from her bed, pushed her to the floor, and had intercourse with her forcibly and against her will.

1. In considering Garland’s insufficient evidence argument, “ ‘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 [s] beyond a reasonable doubt.’ [Cit.]” The evidence establishes without contradiction that an intruder committed the crimes of which Garland was convicted. The only issue is whether Garland was the intruder.

We find the evidence was sufficient to allow a rational trier of fact to conclude beyond a reasonable doubt that Garland was the perpetrator. Garland lived within one and a half blocks of Williams’s home. His palm print was found on the inside of a window there, although Williams testified that Garland had never been inside her home with her permission. DNA testing did not exclude Garland as a potential donor of semen found inside Williams after she was raped. And similar transaction evidence established that late one night in 1989, Garland broke into the home of another woman and raped her while wearing a scarf around his head and mouth.

2. Before trial, Garland moved for a continuance on the ground that he wished to call two absent witnesses — Roger Lamar Hatcher, Jr. and Allen Sidney Bryant, Jr. Eight days before trial, Garland filed with the clerk of the trial court a request for Hatcher and Bryant to be subpoenaed. During the oral presentation of the motion for continuance, Garland’s attorney stated that the subpoenas had been issued and given to the Grady County Sheriff’s Department but had not been served. Garland’s attorney asserted that Hatcher and Bryant were Grady County residents but “[had] reportedly been seen over in the edge of Florida, one in Tallahassee and one in the Quincy/Havana area.”

OCGA § 17-8-25 sets forth eight showings that must be made in applications for continuance on the ground that a witness is absent. At a minimum, Garland failed to make the required showing that the evidence to be presented through the witnesses was material. Garland wanted to present Hatcher and Bryant before the jury as possible perpetrators of the crimes against Williams. Before the police focused their investigation on Garland, they considered Hatcher and Bryant suspects. Garland wanted to show the jury that he, Hatcher, and Bryant resemble one another and ostensibly that he could have been mistaken for one of them.

Garland was never identified as the perpetrator based on his appearance, however. He was identified circumstantially through his palm print, DNA testing of the semen, and the similar transaction testimony. When, as here, the requirements of OCGA § 17-8-25 have not been met, we are unable to review the trial court’s exercise of discretion on a motion for continuance.

3. Immediately before trial, Garland moved to relieve his appointed counsel and represent himself. After being advised by the court of the perils of proceeding pro se, Garland elected to do so. The court required the appointed attorney to remain at counsel table during the trial and give advice to Garland if Garland requested it. Garland represented himself during the entire first day of trial. But before trial resumed on the second day, Garland asked the court to allow his appointed counsel to resume representation. The court permitted the change.

Appointed counsel immediately moved for a mistrial, stating “I feel that Mr. Garland’s rights were seriously jeopardized, admittedly some by his own actions, and I would ask the Court to take all this into consideration.” On appeal, Garland’s attorney asserts that Garland made the following blunders: (1) he declined to have the members of the prospective jury panel identify themselves; (2) he asked no voir dire questions of the jury venire; (3) he gave no real opening statement; and (4) he cost himself the right to open and close during closing argument by tendering evidence which had little probative value.

Decided January 21, 2000.

Billy M. Grantham, for appellant.

J. Brown Moseley, District Attorney, Anthony E. Paulsen III, Assistant District Attorney, for appellee.

Garland’s argument is essentially an ineffective assistance of counsel claim against himself. The record shows that Garland knowingly, understandingly, and voluntarily waived his right to counsel. He was advised on two separate occasions about the pitfalls of proceeding pro se and the prudence of proceeding with counsel. He stated on the record that he wanted to represent himself despite an understanding of the danger of doing so. He also stated that he understood that he could seek the advice and guidance of appointed counsel who would remain at the defense table.

When a criminal defendant [knowingly, understandingly, and voluntarily waives his right to counsel] and appears pro se, he will not thereafter be heard to assert a claim of ineffective assistance of counsel when he was the acting counsel at the time of the alleged error. [Cit.]

The trial court did not err in denying Garland’s motion for mistrial.

Judgment affirmed.

Johnson, C. J., and McMurray, P. J., concur.

        Jackson v. State, 236 Ga. App. 260 (511 SE2d 615) (1999).

       See OCGA § 17-8-25.

       See Edwards v. State, 224 Ga. App. 332, 333 (1) (480 SE2d 246) (1997).

        Tucker v. State, 173 Ga. App. 742, 743 (2) (327 SE2d 852) (1985).


author: Andrews, Presiding Judge.

text:
    A99A1826.
    PEACHTREE PLASTICS, INC. v. VERHINE.
    (528 SE2d 837)
   Andrews, Presiding Judge.

Lester Verhine d/b/a Plastic Grinders of Georgia, Inc. (Verhine) sued Peachtree Plastics, Inc. (Peachtree) to collect an unpaid account. Verhine filed a motion to strike Peachtree’s answer and for a default judgment alleging that the answer was a nullity because it was filed by Peachtree’s president, a nonattorney who was not authorized to represent the corporation in a court of record. Peachtree responded to the motion by filing an amended answer filed by an attorney who entered an appearance as Peachtree’s attorney of record. The trial court struck Peachtree’s answer and granted a default judgment in favor of Verhine. Peachtree appeals claiming that its amended answer filed by an attorney was a valid answer which related back to the date of the original answer under the provisions of OCGA § 9-11-15.

Decided January 21, 2000.

Carlisle & Carlisle, William R. Carlisle, for appellant.

John B. Begonia, Jr., for appellee.

We agree. Since Peachtree is a corporation and can be represented in a court of record only by an attorney, the answer filed by its nonattorney president was defective. Eckles v. Atlanta Technology Group, 267 Ga. 801, 803-806 (485 SE2d 22) (1997). This was an amendable defect, however, which was cured pursuant to OCGA § 9-11-15 when, prior to entry of a pretrial order, an attorney representing Peachtree filed an amended answer, which related back to the date of the original answer. Bandy v. Hosp. Auth. of Walker County, 174 Ga. App. 556 (332 SE2d 46) (1985); McCormick v. Acree, 232 Ga. App. 834 (503 SE2d 88) (1998) (physical precedent); North Ga. Med. Center v. Food Lion, 238 Ga. App. 78 (517 SE2d 799) (1999). The trial court erred by striking the amended answer and granting a default judgment in favor of Verhine.

Judgment reversed.

Ruffin and Ellington, JJ., concur.


author: Ruffin, Judge.

text:
    A99A1939.
    SIMMONS et al. v. HILL et al.
    (528 SE2d 557)
   Ruffin, Judge.

Eileen and Robert Simmons, wife and husband, sued Robert and Jeremy Hill, father and son, for injuries Mrs. Simmons allegedly sustained when a pickup truck driven by Jeremy collided with their car. The Simmonses alleged that Jeremy negligently caused the collision and that Hill, who owned the truck, was liable for his son’s negligence under the family purpose doctrine. The trial court granted Hill’s motion for summary judgment, ruling that the family purpose doctrine did not apply because Jeremy was not a member of Hill’s immediate household when the collision occurred. The Simmonses appeal, and we affirm.

A defendant is entitled to summary judgment if he demonstrates that there is no genuine issue of material fact as to at least one of the essential elements of the plaintiff’s case. We review the trial court’s grant of summary judgment de novo, viewing the evidence and all reasonable inferences therefrom in the light most favorable to the plaintiff.

The relevant facts are undisputed. The collision occurred on May 7, 1995. At that time, Jeremy was 18 years old and a full-time student at Dalton High School. He had moved from his parents’ house sometime before Christmas of 1994 because “he felt like he was adult enough to live on his own,” “want[ed] to have his own freedom,” and did not get along with his parents. Jeremy initially moved in with his girlfriend. Several months later, he moved into a small apartment by himself, and one month after that, he moved into a one-bedroom rental house where he was living alone at the time of the collision. When he left his parents’ house, Jeremy took his personal belongings with him, and he no longer spent nights in his parents’ house. His mother testified that she no longer considered the bedroom in which Jeremy had slept to be “his room.” Although Jeremy was welcome to return to his parents’ home if he wished, he visited less than once a week and ate dinner there only twice between the time he moved and the date of the collision.

In addition to being a full-time student, Jeremy worked part-time as the manager of a car wash. He testified without dispute that, after he left his parents’ home, he paid his own rent and provided his own food and clothing. His father, however, paid for his medical care. In addition, Jeremy continued to drive a pickup truck — the one involved in the collision — that his father had provided for him before he moved from his parents’ home. Hill owned the truck, paid for the insurance, procured the tags, and provided for the truck’s service and maintenance. Hill testified that Jeremy drove the truck with his permission for whatever purpose Jeremy wanted but acknowledged that he could have taken the truck away from Jeremy if he so decided.

Under Georgia law, when the owner of a vehicle maintains the vehicle for the use and convenience of his family, the owner is liable for the negligence of a family member who was using the vehicle for a family purpose and who had the authority to do so. Four prerequisites are required before the family purpose doctrine may be applied to impose vicarious liability on the owner of the vehicle: (1) the defendant must own or have an interest in or control over the automobile; (2) the defendant must have made the automobile available for family use; (3) the driver must be a member of the defendant’s immediate household; and (4) the vehicle must have been driven with the permission or acquiescence of the defendant. If these preconditions are satisfied, then the plaintiff must show that the defendant had sufficient authority or control over the use of the automobile to justify the imposition of vicarious liability. Here, we focus on the third precondition for liability — i.e., whether Jeremy was a member of Hill’s immediate household at the time of the collision — as that was Hill’s basis for seeking summary judgment.

The Georgia courts have never explicitly defined what is required under the family purpose doctrine to show that the driver was a member of the defendant’s “immediate household.” It is clear from the case law that a child’s age is not determinative. In Hubert v. Harpe, the Supreme Court held that a father could be held liable under the family purpose doctrine for the negligence of his adult son who was “non-dependent” and “self-supporting,” but lived at home with his parents without paying board. The fact that the son was an adult was irrelevant to the family purpose analysis. Likewise, in Kennedy v. Manis, this Court held that an “adult daughter, single and living at the home of her father and a member of his family,” could fall within the scope of the family purpose doctrine. In reaching that conclusion, we quoted with approval the following passage from the opinion of a Nebraska court:

“Where a son living at home with his parents is supported there, and is subject to parental control as a member of the family, the fact that he is over twenty-one years of age does not alter the rule that a father furnishing an automobile for the pleasure of his family is liable for the negligence of the son while driving it for his own pleasure.”

Nor does a child’s marital status determine whether that child is a member of his parent’s “immediate household.” In Whitlock v. Michael, we held that a mother could be liable under the family purpose doctrine for the negligence of her daughter, a married adult who lived, along with her husband, in her mother’s house and drove her mother’s car.

What does appear necessary to establish that a child was a member of his parents’ immediate household, however, is evidence that the child lived at the same residence with his parents at the time of the incident in question. We have refused to apply the family purpose doctrine to make parents vicariously liable for the negligence of their children who do not live with them. In Calhoun v. Eaves, for example, we held that the doctrine did not apply to a “fully emancipated” 19-year-old who was away at college in another city when the collision occurred. Similarly, in Greene v. Jenkins, we held that an adult son who lived away from home before the accident in question and had no personal belongings at his mother’s house was not a member of her immediate household under the family purpose doctrine. Thus, at a minimum, the driver and the owner of the vehicle must live together before we will apply the family purpose doctrine.

The Simmonses contend that Jeremy may be considered a member of his father’s immediate household, even though he did not live with his father, because physical proximity is not determinative. But the cases they rely on — Smith v. Sherman and Finnocchio v. Lunsford — do not support this proposition. In Smith, the driver was using his father’s car when the collision occurred. The family — including the driver and the father’s wife — lived in Georgia, but the father had established a separate residence in Louisiana due to a job transfer. He retained his Georgia driver’s license, did not obtain a Louisiana driver’s license, and did not register to vote in Louisiana. More importantly, the father returned to the family home in Georgia on the weekends. In light of this evidence of dual residence, we held that whether the father and son were members of the same household was a question for the jury. We did not hold that two people may be members of the same household under the family purpose doctrine even if they do not live together.

In Finnocchio, the allegedly negligent driver was a married minor college student who had lived with his wife in an apartment in Tennessee during the academic year. The collision occurred over the summer while the student was driving his father’s car. At that time, the student and his wife had allowed their apartment lease to lapse and were living in the home of the student’s father. We held that these facts authorized a jury verdict against the father. Once again, however, we did not extend family purpose liability to children living away from their parents’ home at the time of the incident.

Decided January 21, 2000

Mitchell & Mitchell, Terry L. Miller, G. Gargandi Vaughn, for appellants.

Kinney, Kemp, Sponcler, Joiner & Tharpe, Robert A. Cowan, for appellees.

Applying these principles here, we must affirm the ruling of the trial court. The evidence showed without dispute that Jeremy moved out of his parents’ home at least six months before the collision, that at the time of the collision he lived in a separate house for which he paid the rent, and that he rarely visited his parents’ house and never slept there. Jeremy did not live with his father and therefore was not a member of his father’s immediate household. Accordingly, the trial court properly granted summary judgment in favor of Hill.

Judgment affirmed.

Andrews, P. J., and Ellington, J., concur.

       For convenience, we will refer to Robert Hill as “Hill” and to Jeremy Hill as “Jeremy.”

       OCGA § 9-11-56; Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

        Rolleston v. Cherry, 237 Ga. App. 733, 734-735 (1) (521 SE2d 1) (1999).

        Jackson v. Reed, 229 Ga. App. 433, 434 (494 SE2d 52) (1997).

       Id.

       Id. at 434-435.

       181 Ga. 168,172-173 (182 SE 167) (1935). See also Murch v. Brown, 166 Ga. App. 538, 539-540 (304 SE2d 750) (1983) (18-year-old daughter living at home and “subject to her parents’ general supervision” could fall within family purpose doctrine).

       46 Ga. App. 808, 809-810 (169 SE 319) (1933).

       (Emphasis omitted.) Id. at 809.

       Id. at 810, quoting Linch v. Dobson, 108 Neb. 632 (188 NW 227) (1922).

       79 Ga. App. 316, 320 (1) (53 SE2d 587) (1949). See also Finnocchio v. Lunsford, 129 Ga. App. 694 (201 SE2d 1) (1973) (married, minor son who was living with his parents over the summer could fall within scope of family purpose doctrine).

       114 Ga. App. 756, 761 (152 SE2d 805) (1966).

       224 Ga. App. 640, 641-643 (2) (481 SE2d 617) (1997). See also Jackson, supra (stepfather was not liable for actions of adult stepdaughter who maintained her own residence but was housesitting for her mother and stepfather and driving stepfather’s truck at time of accident)

       197 Ga. App. 183 (397 SE2d 617) (1990).

       129 Ga. App. 694.


text:
    A99A1979.
    In the Interest of A. W., a child.
    (528 SE2d 819)
   Ruffin, Judge.

Anthony Hunter raped his 11-year-old stepdaughter, J. A. W, who became pregnant and gave birth to A. W. in January 1997. Hunter subsequently pled guilty to statutory rape, child molestation, incest, and cruelty to children charges and was sentenced to 20 years in prison followed by 20 years probation. Hunter has never contacted or contributed in any way to the support of the child. The Department of Human Resources filed a petition to terminate Hunter’s parental rights on August 27, 1998. After being served with the petition and summons, together with the notice required by OCGA § 15-11-83, Hunter took no action to legitimate the child. Hunter appeared at the termination hearing and announced that he would not take the oath or cooperate in any way with the State. He said that he only appeared to speak on behalf of the mother, whose rights had previously been terminated:

I was made aware for the first time that the biological mother’s rights have been terminated. Had I been aware of this before my transportation, my presence here would not be required or necessary. I only came here to speak as an advocate for her. In any other form, way, or shape I am not going to cooperate with the State whatsoever.

Under questioning, Hunter made it clear that he wanted nothing to do with the child. He stated that he did not acknowledge that he was the father of A. W., did not make any claim to her as his daughter, and had no desire whatsoever to be involved in her life. He said that he had read and understood the termination petition and discussed it with his attorney and that he did not contest the termination. He repeatedly indicated that he understood the court would terminate his parental rights and made a point of observing that termination would free him from “any legal obligation” to the child. The juvenile court duly entered an order terminating Hunter’s parental rights pursuant to OCGA § 15-11-81.

In what must surely rank as one of the most frivolous appeals in the history of this Court, Hunter now claims that the juvenile court erred in terminating his parental rights because there was no evidence of parental misconduct or inability. Pursuant to OCGA § 15-11-83 (i), however, a biological father who receives proper notice under the statute and fails to seek to legitimate his child “loses all rights to the child and the court shall enter an order terminating all such father’s rights to the child and such father may not thereafter object to the termination of his rights to the child.” Although the juvenile court did not indicate that it was relying upon OCGA § 15-11-83 (i) in terminating Hunter’s rights, the statute is clear that a biological father who fails to seek to legitimate his child following receipt of proper notice “may not thereafter object” to the termination of his parental rights. The reason for such a prohibition is obvious — someone who refuses to take steps to acknowledge his paternity should not be able to contest the termination of his parental rights. There is no reason why such a rule should not apply where the juvenile court bases the termination on a finding of parental misconduct or inability pursuant to OCGA § 15-11-81. It is undisputed that Hunter received proper notice and did not ever seek to legitimate A. W. To the contrary, he expressly refused to acknowledge his paternity at the termination hearing and stated that he made no claim to A. W. as his daughter. Accordingly, he may not now object to the termination of his parental rights.

Moreover, apart from reliance on OCGA § 15-11-83 (i), Hunter’s affirmative statements at the hearing that he did not contest the termination preclude him from challenging the termination on appeal. It is well settled that “[a] litigant cannot acquiesce in a ruling and then complain of [that] ruling on appeal.” “Acquiescence completely deprives him of the right to complain further; he has agreed that the trial court’s ruling was correct by submitting to it.” Hunter testified that he had read and understood the termination petition, which alleged parental misconduct and inability, that he had discussed it with his attorney, and that he did not contest the petition. Accordingly, he cannot now complain that the trial court granted the relief sought in the petition.

Finally, even if Hunter had not waived the right to contest the termination, the evidence was more than sufficient to support a finding of parental misconduct or inability. Hunter does not deny that A. W. is deprived but contends that there was no evidence that such deprivation is caused by a lack of proper parental care or control on his part. He also contends that there was no evidence of his present unfitness apart from the simple fact of his incarceration. These contentions are patently without merit.

In determining whether a child is without proper parental care or control, the court is authorized to consider

(iii) Conviction of the parent of a felony and imprisonment therefor which has a demonstrable negative effect on the quality of the parent-child relationship; [and] (iv) Egregious conduct or evidence of past egregious conduct of the parent toward the child or toward another child of a physically, emotionally, or sexually cruel or abusive nature.

“Although imprisonment alone does not always compel a termination of parental rights, it will support such a ruling when adequate aggravating circumstances are shown to exist.” A parent’s sexual abuse of his children is such an aggravating circumstance which will justify termination of parental rights. In this case, Hunter was convicted of sexually molesting his 11-year-old stepdaughter, A. W.’s mother. The court was clearly authorized to conclude that Hunter’s conviction and imprisonment for such crime would have a demonstrable negative effect upon his relationship with A. W. Furthermore, given Hunter’s repeated declarations in open court that he did not claim A. W. as his child and had “no desire whatsoever to be involved in her life from this day forward,” his assertion that there was no evidence of present unfitness is the height of folly.

Court of Appeals Rule 15 (b) authorizes this Court to impose a penalty of up to $1,000 for the filing of á frivolous appeal in a civil case. Under the facts of this case, neither Hunter nor his attorney could have had any reasonable basis to anticipate reversal of the juvenile court’s order. Moreover, Hunter’s appellate brief contains several statements which are either not supported by or flatly contradicted by the record. For example, the brief states that “the father in this case is committed to taking responsibility for his actions, his responsibility for this child, and has sought counseling for the molestation of his step-daughter”; “[t]he father has . . . taken responsibility for the fathering of this child with his step-daughter”; and “[a]s part of taking responsibility for his actions, he believes very strongly in taking responsibility as the father of this child.” None of these statements is supported by any reference to the record, and we do not see how such statements can be squared with Hunter’s testimony at the termination hearing. With respect to taking responsibility for his actions and for the fathering of A. W, the transcript shows as follows:

Q. And do you acknowledge that you are the father of [A. WJ? . . .
A. No, I do not acknowledge that.
Q. Do you believe she is your daughter?
A. I think you have DNA evidence to support that fact.
Q. I am asking you what you believe.
A. I do not wish to give my opinion.
Q. Okay. Do you wish to make any claim to [A. W], as your daughter?
A. No.
Q. You do not?
A. Do not.
Q. So, you have no desire whatsoever to be involved in her life from this day forward, is that correct?
A. That is correct. . . .
Q. Did you have sexual relations with the child’s mother, [J. A. W], sometime nine months before this child was born? Is that correct?
A. I refuse to answer that question. . . .

Decided January 21, 2000.

Clark & Towne, Monica M. Wingler, for appellant.

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

THE COURT: Answer the question, Mr. Hunter.
A. You have DNA evidence to support the likelihood that I did have such a relationship. I have already been convicted for this crime. No further testimony is necessary.
The question is quite revocationable [sic].

Testimony at the termination hearing showed that A. W. has been placed with foster parents who intend to seek adoption following termination of parental rights. The filing of this patently frivolous appeal, after Hunter’s unambiguous renunciation at the termination hearing of any desire or intent to have any relationship with the child can only operate to delay the final resolution of this sad story. Where a party and his attorney compound the filing of such a frivolous appeal by making outrageous, unsupported factual assertions that fly in the face of the record, we would be remiss if we did not enforce Rule 15. Accordingly, pursuant to Rule 15 (b), we hereby impose a $1,000 penalty against Hunter and his appellate attorney, jointly. Such penalty shall constitute a money judgment in favor of appellee Department of Human Resources against Hunter and his attorney, as set forth in Rule 15 (c).

Judgment affirmed.

Andrews, P. J., and Ellington, J., concur.

       In response to a question from his attorney, Hunter later stated that he was not actually consenting to termination, although he understood that his rights would be terminated.

       See In the Interest of E. D. T., 233 Ga. App. 774, 775 (505 SE2d 516) (1998).

       See In the Interest of D. B. G., 226 Ga. App. 29, 30 (2) (485 SE2d 575) (1997).

        Kellogg v. State, 233 Ga. App. 817, 818 (505 SE2d 794) (1998).

       (Punctuation omitted.)Robinson v. Moonraker Assoc., Ltd,., 205 Ga. App. 597, 598 (423 SE2d 44) (1992).

       OCGA. § 15-11-81 (b) (4) (B) (iii)-(iv).

       (Punctuation omitted.) In the Interest of E. N. H., 216 Ga. App. 209, 210 (453 SE2d 778) (1995).

       See In the Interest of J. E. L., 223 Ga. App. 269-270 (1) (477 SE2d 412) (1996); In the Interest of L. M., 219 Ga. App. 746, 748 (2) (466 SE2d 887) (1996).

       Parental rights termination cases are civil matters. In the Interest of A. M. R., 230 Ga. App. 133, 136 (2) (495 SE2d 615) (1998).


text:
    A99A2001.
    KELLY v. THE STATE.
    (528 SE2d 812)
   Ruffin, Judge.

A jury found Jacqueline Kelly guilty of driving under the influence of alcohol to the extent that it was less safe for her to drive. On appeal, Kelly challenges the sufficiency of the evidence. Additionally, she contends that the trial court erred in: (1) refusing to excuse a juror for cause; (2) denying her motion for a mistrial; (3) admitting evidence of her character; and (4) allowing improper closing argument by the State. As the evidence was sufficient and Kelly’s other arguments present no basis for reversal, we affirm.

1. In reviewing Kelly’s challenge to the sufficiency of the evidence, we view the evidence in the light most favorable to the jury’s verdict. “As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.”

The record shows that at approximately 7:30 p.m. on March 25, 1998, Georgia State Patrol Trooper Moses Little saw Kelly drive her car through a stop sign without stopping. Although the posted speed limit was 50 mph, Little estimated that Kelly was driving between 65 and 70 mph. Little pulled Kelly over.

Upon approaching the car, Little smelled alcohol. He asked Kelly to exit the car to perform field sobriety tests. Little had Kelly perform the horizontal gaze nystagmus test, which, according to Little, indicated that Kelly was impaired. Little next asked Kelly to do the onelég stand test. After beginning the test, Kelly stopped and told Little that she was unable to complete the test because of problems with her legs. Finally, Little asked Kelly to submit to an alco-sensor test. When the results of the test indicated that Kelly had alcohol in her system, Little placed Kelly under arrest for driving under the influence. Little informed Kelly of her implied consent rights and asked her to submit to chemical testing to determine whether she' was under the influence of alcohol, but Kelly refused.

At trial, Kelly testified that she had three beers on March 25, but that she stopped drinking no later than 2:30 p.m. According to Kelly, she was not under the influence of alcohol when she was stopped by Little. Linda Wise, a friend of Kelly’s, also testified and said that she was with Kelly the afternoon of March 25 and that Kelly did not appear to be intoxicated. The jury evidently disbelieved this testimony, as it found Kelly guilty of driving under the influence.

In Georgia, it is unlawful for a person to drive a car while under the influence of alcohol to the degree that it is less safe for that person to drive. The evidence showed that Kelly not only smelled of alcohol and failed field sobriety tests, but that she sped through a stop sign. Accordingly, the jury was authorized to find beyond a reasonable doubt that she was guilty of driving under the influence of alcohol to the extent that it was less safe for her to drive.

2. Kelly also contends that the trial court erred in refusing to strike a juror for cause after that juror expressed doubt regarding her ability to be impartial. According to Kelly, the trial court’s refusal to strike this juror for cause forced her' to use a peremptory strike. The potential juror initially stated that she “would try” to be fair and follow the law regarding driving under the influence, but that she had “very strong feelings about alcohol and driving.” After additional questioning by the trial court, however, she concluded that she would be able to render a fair and impartial opinion based upon the evidence. Accordingly, the trial court refused to dismiss her for cause, and Kelly used a peremptory strike to remove the juror.

A trial court has broad discretion in determining whether to discharge a prospective juror for cause. Because a juror expresses doubt about her impartiality, it does not automatically follow that she must be excused for cause as a matter of law. Before a juror must be disqualified for cause, it must be shown that her opinion “is so fixed and definite that [she] will be unable to set the opinion aside and decide the case based upon the evidence.”

Although the juror was quite candid regarding her antipathy toward people who drink and drive, she ultimately believed that she could be fair and impartial. Under these circumstances, the trial court did not abuse its discretion in refusing to strike the juror for cause.

3. Kelly asserts that the trial court erred in refusing to grant a mistrial after the State asked Trooper Little to comment on her post-arrest silence. This assertion lacks merit.

During its case-in-chief, the State asked Little whether, after being arrested, Kelly said that she was not driving under the influence. Kelly immediately objected, claiming that the answer to the question would raise the issue of her post-arrest silence. Although the trial court sustained the objection, Kelly moved for a mistrial. The trial court denied the motion and asked Kelly to suggest a curative instruction. After some discussion, the parties agreed that the trial court would inform the jury the objection had been sustained and that the jury would be instructed on the defendant’s right to remain silent. The trial court did so, and Kelly did not renew her motion for mistrial.

Pretermitting whether an unanswered question can constitute an improper comment on a defendant’s post-arrest silence, Kelly presents no basis for reversal. The trial court sustained Kelly’s objection, and she then agreed to a curative instruction that the trial court gave. After the trial court issued its curative instruction, Kelly never renewed her motion for mistrial. Accordingly, she has waived this issue on appeal.

4. Kelly argues that the trial court erred by allowing the State to introduce evidence of her character. On direct examination, Kelly asked her friend Wise if she had ever had the opportunity to observe intoxicated people and, if so, whether Kelly appeared intoxicated on March 25, 1998. On cross-examination, the State asked Wise if, prior to March 25, she had ever seen Kelly intoxicated. The trial court overruled Kelly’s objection to the question, and Wise responded that she had seen Kelly intoxicated. On appeal, Kelly claims that her question to Wise on direct did not open the door to the State’s inquiry and that the trial court erred in permitting the State to place her character into evidence.

“Generally, unless a defendant opens the door with evidence of [her] good character, bad character evidence is inadmissible.” As this Court recognized in Wood v. State,* however, once a witness for the defendant testifies that the defendant did not appear impaired, the State is entitled to cross-examine that witness to determine the facts upon which the witness’ observation was based, “including [her] observations of [Kelly’s] consumption of alcohol on previous occasions.”

Kelly contends that this case is distinguishable from Wood v. State because Wise based her response on direct examination “only on her general experience of observing others in an intoxicated state, and not on her past observations of the defendant.” This is a distinction without a difference. Because Wise testified on direct that Kelly did not appear intoxicated, the State was entitled to cross-examine Wise to ascertain the basis for her opinion. Accordingly, this claim of error lacks merit.

5. Finally, Kelly asserts that the State committed reversible error by making an improper closing argument. The State argued that, by refusing to submit to a State-administered test to determine her blood alcohol content, Kelly showed that she was conscious of her impairment and guilt. Kelly concedes that the evidence of her refusal to submit to the test is admissible but contends that it only creates an inference that the substance would be present in her blood — not that she is conscious of her impairment or guilt. Thus, Kelly maintains that the State exceeded the scope of permissible argument. We disagree.

Decided January 21, 2000.

Paul J. Oeland TV, for appellant.

Richard R. Read, District Attorney, Mirza A. Baig, Robert G. Mikell, Assistant District Attorneys, for appellee.

Attorneys are allowed considerable latitude in making closing argument, and they may draw any inference from the evidence so long as that inference is both reasonable and legitimate. Here, Kelly refused to submit to a State-administered test. It is not unreasonable to infer that her refusal stemmed from a fear that the results would be unfavorable — i.e., that she was conscious of her impairment or guilt. Accordingly, this enumeration of error lacks merit.

Judgment affirmed.

Andrews, P. J, and Ellington, J., concur.

        Harris v. State, 234 Ga. App. 126 (1) (505 SE2d 49) (1998).

       (Punctuation omitted.) Id.

       See Self v. State, 232 Ga. App. 735, 736 (2) (503 SE2d 625) (1998) (“Issues of witness credibility and the resolution of inconsistencies or conflicts in the evidence are strictly matters for the jury to weigh and consider.”).

       OCGA § 40-6-391 (a) (1).

       See Davidson v. State, 237 Ga. App. 580, 581 (1) (516 SE2d 90) (1999).

        Rower v. State, 219 Ga. App. 865, 868 (1) (466 SE2d 897) (1996).

        Patterson v. State, 233 Ga. App. 776, 777 (3) (505 SE2d 518) (1998).

       (Punctuation omitted.) Whatley v. State, 270 Ga. 296, 298 (2) (509 SE2d 45) (1998).

       See Binns v. State, 237 Ga. App. 719 (1) (516 SE2d 583) (1999).

        Woods v. State, 235 Ga. App. 894, 896 (510 SE2d 848) (1999).

       218 Ga. App. 563, 564 (462 SE2d 625) (1995).

       Id.

       See id.

        Brooks v. State, 232 Ga. App. 115, 118 (11) (501 SE2d 286) (1998).

       See McClain v. State, 267 Ga. 378, 383-384 (3) (b) (1) (477 SE2d 814) (1996).


text:
    A99A2133.
    THE STATE v. WILLIAMS.
    (528 SE2d 554)
   Phipps, Judge.

Malik Williams was indicted for trafficking in cocaine and possession of less than an ounce of marijuana. The State appeals the trial court’s order granting Williams’s motion to suppress drugs seized from his person. The issue before this court is whether the arrest and search of Williams were supported by probable cause to believe he was engaged in illicit drug activity. We find there was not probable cause and affirm the ruling of the trial court.

On December 7, 1998, Williams purchased a one-way ticket from Miami to Atlanta 51 minutes before the flight was to depart. He paid cash for his ticket and checked no bags. Instead, he carried a backpack over his shoulder.

Officer William Shelton of the Drug Enforcement Administration (DEA) Task Force in Atlanta learned of Williams’s ticket purchase from the airline. He and his partner Agent Brinkley had been seeking information on persons who flew on short notice, paid for their tickets in cash and checked no baggage, as they believed those travel characteristics were consistent with a profile of a drug courier.

After receiving the information of Williams’s travel, Shelton called a phone number Williams had given to the airline in Miami. According to Shelton, the number was supposed to be a Miami number, but it was instead the number for Peachtree Tub Repair in Atlanta.

Shelton and Brinkley then went to the gate at Hartsfield International Airport where Williams’s flight was to arrive. As Williams exited the gate area, Shelton approached Williams, displayed his badge and asked if Williams would speak to him. Williams said, ‘Yes,” and stopped when Shelton stopped walking.

Shelton asked Williams for his ticket, and he provided it. Shelton then questioned Williams, and Williams responded that he was unemployed, that he had spent two days in Miami and that he had gone there to visit his brother. When Shelton asked where his brother lived, Williams said his brother lived in Atlanta and not Miami. Williams then said he had gone to Miami to visit friends.

Shelton asked Williams for picture identification. According to Shelton, Williams’s hands began to shake', his jaw muscle started clenching repeatedly and his heart started beating so hard Shelton could see movement through Williams’s two shirts. Williams provided a Rhode Island driver’s license.

Shelton then asked Williams if he could search his backpack and person. Williams consented initially, and inside the backpack, Shelton found a cellular phone, sunglasses, a sweater, a belt, a parking ticket from New York and a roll of plastic wrap which was being carried inside a plastic bag and not a box.

Shelton asked Williams about the plastic wrap, and Williams stated that he had picked it up in the room where he had been in Miami. He elaborated that some of his friends had been packaging cards and gifts with it.

At this time, Shelton told Williams that he and his partner wanted to pat Williams down. Williams stepped back, shifted from side to side and said he did not want them to search him. While Williams was shifting back and forth, Shelton thought he noticed that Williams’s left pants leg did not lie flat against his leg. He was not sure, however, and asked Williams if he had anything taped to his leg. Williams said, “No.” Shelton continued to seek permission to search Williams, but Williams refused.

Despite Williams’s indication that he wanted to terminate the encounter, Shelton and Brinkley detained him and transported him away from the airport, which is in Clayton County, to the office of the DEA in Fulton County. There, a drug dog alerted on Williams’s backpack.

Shelton then procured a warrant to search Williams’s person from a magistrate in Clayton County. He returned to the DEA office in Fulton County, where, approximately an hour and a half after initially stopping Williams, he served him with a copy of the warrant and searched him. He found 407 grams of cocaine taped to Williams’s leg with plastic wrap, less than an ounce of marijuana in his shoe, and $1,112 in his pocket.

The trial court granted Williams’s motion to suppress for two reasons. First, it found that the search warrant, which was issued by a Clayton County magistrate, could not authorize a search in Fulton County. Second, it found the DEA agents had improperly arrested Williams after the search of his backpack revealed no drugs and he withdrew consent for any further search. On appeal, the State asserts only that the trial court erred in finding there was no probable cause to arrest Williams at the airport.

Subject to strict boundaries regarding duration, purpose and scope, law enforcement officers may conduct brief investigative stops of persons with respect to whom they have reasonable articulable suspicion of criminal activity. However:

[detentions may be “investigative” yet violative of the Fourth Amendment absent probable cause. In the name of investigating a person who is no more than suspected of criminal activity, the police may not carry out a full search of the person or of his automobile or other effects. Nor may the police seek to verify their suspicions by means that approach the conditions of arrest.

Here, the agents detained Williams for an hour and a half and transported him against his will away from the airport to the DEA’s office. Shelton conceded in his testimony that Williams was not free to leave though he had indicated a wish to terminate the encounter. Williams’s detention and transport certainly constituted an arrest, and probable cause was needed.

At the suppression hearing, Shelton testified that based on the following factors, he believed he had probable cause to transport Williams to the DEA office and procure a warrant to search him: (1) travel characteristics consistent with drug trafficking; (2) incorrect phone number given to Miami ticket agent; (3) manifestations of nervousness; (4) inconsistent answers regarding whom he was visiting in Miami; and (5) the roll of plastic wrap in his backpack. While these factors may give rise to a reasonable suspicion of illicit drug activity, they are insufficient even when combined to constitute probable cause to believe a suspect is transporting drugs.

Decided January 21, 2000.

Robert E. Keller, District Attorney, Erman J. Tanjuatco, Assistant District Attorney, for appellant.

Suelten Fleming, for appellee.

In support of its argument that there was probable cause, the State cites Clark v. State 6and Miller v. State Both cases are distinguishable. Like the present case, Clark and Miller concerned instances where DEA agents stopped individuals in Hartsfield Airport after the individuals deplaned flights from South Florida. In both cases, however, probable cause arose chiefly from the individuals having patent, unusual bulges on their persons and the agents having extensive experience that those sorts of bulges signified the presence of drugs.

Neither of those elements is present here. Though he looked for unusual bulges on Williams, Shelton was not sure he saw one. And, in fact, he did not consider the existence of a bulge in determining whether to detain Williams further after Williams withdrew his consent to search. There also was no testimony establishing a high correlation between any bulge Shelton might have noticed and the presence of illegal drugs.

Having found that there was no probable cause to support the continued detention of Williams after he withdrew his consent, we affirm the judgment of the trial court granting his motion to suppress.

Judgment affirmed.

Johnson, C. J, and McMurray, P. J., concur.

        Smith v. State, 216 Ga. App. 453, 454 (2) (454 SE2d 635) (1995).

        Florida v. Royer, 460 U. S. 491, 499 (103 SC 1319, 75 LE2d 229) (1983) (plurality opinion).

       See id. at 499-508 (probable cause was needed to justify seizure of a nervous-acting young man who, under an assumed name, had purchased with cash a ticket to a drug “ ‘target city1 ” and had checked two heavy pieces of luggage).

       See Murphy v. State, 230 Ga. App. 365, 368 (496 SE2d 512) (1998).

       183 Ga. App. 838 (360 SE2d 447) (1987).

       183 Ga. App. 702 (359 SE2d 683) (1987).

       183 Ga. App. at 840; 183 Ga. App. at 703.


text:
    A99A2141.
    BOWEN v. THE STATE.
    (528 SE2d 553)
   Andrews, Presiding Judge.

Christopher Clarence Bowen was found guilty of abandonment of a dependent child and appeals from the judgment of conviction entered on the guilty verdict. Bowen’s sole assertion of error is that the trial court erred by overruling his special demurrer by which he contended that the accusation, which alleged that he “abandon [ed] Richard Smith, his child, leaving it in a [dependent] condition, . . .” failed to plainly show whether the State was alleging that the child he abandoned was his legitimate child or his child born out of wedlock.

Decided January 21, 2000.

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

Louis J. Kirby, Solicitor, for appellee.

We agree that the accusation should have plainly alleged whether the child at issue was Bowen’s legitimate child or his child born out of wedlock. Pasley v. State, 215 Ga. 768, 770 (113 SE2d 454) (1960). The accusation against Bowen alleged that he abandoned “his child,” which implied that the child was legitimate, but it also identified the child as having a different surname from Bowen, which implied that the child was born out of wedlock. Id. at 769-771. The evidence necessary to sustain an abandonment conviction differs depending on whether the abandoned child is alleged to be legitimate or born out of wedlock, since in the latter case the evidence must show not only abandonment but also that the accused is the biological father of the child. Id. at 770-771.

Because the present accusation failed to clearly allege whether the child was legitimate or born out of wedlock, so as to enable Bowen to make his defense to this specific allegation, the special demurrer should have been sustained prior to trial. Pasley, supra at 771. This does not mean, however, that Bowen is entitled to post-trial reversal of his conviction on this ground.

By special demurrer an accused claims, not that the charge in an indictment or accusation is fatally defective and incapable of supporting a conviction (as would be asserted by general demurrer), but rather that the charge is imperfect as to form or that the accused is entitled to more information. State v. Eubanks, 239 Ga. 483, 485-486 (238 SE2d 38) (1977). Even if a special demurrer making these claims is erroneously overruled prior to trial, on review of the conviction on appeal, the error will be found harmless if the accused was not misled to his prejudice by the claimed imperfection in the indictment or accusation. Id. at 486-489.

In the present case, Bowen alleges no prejudice to himself, and none is apparent from the record. The error was harmless, since the record shows that Bowen was aware the child was born out of wedlock — the very information that he sought by way of the special demurrer.

Judgment affirmed.

Ruffin and Ellington, JJ, concur.