text:
    A01A0113.
    JEREMIAH v. THE STATE.
    (551 SE2d 819)
   Pope, Presiding Judge.

Layon Dean Jeremiah was charged with kidnapping, rape, aggravated sodomy, battery, fleeing or attempting to elude a police officer, two counts of possession of a firearm during the commission of a felony, and three counts of aggravated assault. He was tried and acquitted of rape, aggravated sodomy, and one count of aggravated assault, but convicted of the remaining counts. Here, he appeals. For the following reasons, we reverse the battery conviction, but affirm the remaining counts.

Viewing the evidence in the light most favorable to the verdict, it showed that Jeremiah and the victim, L. D., were married at the time of the crimes. L. D. lived with her mother, Myrna Daniel. On March 28, 1998, L. D. left Daniel’s home with Jeremiah. When she returned home, her lip and eye were bruised, and her lip was bleeding. L. D. told her mother that Jeremiah had inflicted her injuries. The next day, L. D. went to the hospital where she told the nurse that she had been beaten. The nurse observed that L. D.’s lip was split and swollen, that she had bruises on her chest, neck, and arms, and that she had a large, swollen area over her eye. The nurse called the police, and Officer McGrath met with L. D. and Daniel. During this meeting L. D. told McGrath that she had also been sexually assaulted by her husband.

After reporting this assault, L. D. was taken to the Gwinnett Rape Crisis Center, where she was examined. Gwinnett County police officer Jack Burnette then met with L. D. and Daniel and took their statements. Based on these interviews, Officer Burnette obtained warrants against Jeremiah, charging him with rape, battery, and aggravated assault. Jeremiah, who was in the Marine Corps and stationed at Camp Lejeune, was not taken into custody that day.

The next day, March 29, 1998, at about 6:40 p.m. the 911 operator received a call from a female at Daniel’s residence regarding her “abusive boyfriend.” The female then laid the phone down; that call disconnected at 6:43 p.m. Two minutes later, the 911 center received a call from the same residence, and the caller identified herself as Myma Daniel. The caller said that Jeremiah had come into her home carrying a long box like those used to deliver roses, which contained a shotgun. The caller reported that Jeremiah held the shotgun to Daniel’s head and then had taken her daughter from the residence. The radio dispatcher testified at trial that the caller, who identified herself as Daniel, sounded terrified and that her voice was trembling.

In response to the 911 call, Officer McGrath was dispatched to Daniel’s residence. The officer met with Daniel, who told him that Jeremiah had forcefully taken L. D. from her home. McGrath took a written statement from Daniel and called investigators.

After notification of the abduction, several Gwinnett County investigators and officers met to devise a plan for arresting Jeremiah. Two investigators waited in Daniel’s residence, hoping that Jeremiah would return with L. D., while other investigators were stationed throughout the neighborhood. At 8:52 p.m. one of the investigators saw Jeremiah approaching the residence in a car. The officers watched as Jeremiah’s car pulled up to the residence. L. D. got out of the car, and the officers secured her and ran her into the house. Jeremiah’s car sped off, driving through yards and over curbs in an effort to avoid the police cars that were chasing him. Eventually Jeremiah wrecked his car, and he then fled on foot. The officers ran after Jeremiah and caught him.

After Jeremiah was taken into custody, his car was impounded and searched. Inside the trunk, the investigators found a long box containing a shotgun and a box of shotgun shells. The following day, Officer Burnette again obtained statements from L. D. and Daniel.

After Jeremiah was arrested, L. D. and Daniel recanted their earlier statements. Daniel did not want to testify at trial, claiming Fifth Amendment privilege. Nevertheless, the State obtained an order granting Daniel immunity, and she was called as a State’s witness. L. D. claimed Fifth Amendment and marital privilege and did not testify at trial. The court also entered an order granting Jeremiah’s motion in limine as to L. D.’s prior statements, ruling that the State could not use them at trial.

At trial, the State produced evidence that Jeremiah bought the shotgun on the morning of the kidnapping and aggravated assault from a Wal-Mart in Jacksonville, North Carolina. The receipt documeriting the transaction was discovered in the glove compartment of his car after his arrest.

Daniel testified that her various statements about Jeremiah had not been true and that she had been trying to break up his relationship with her daughter. She stated that everything she told the police was “100% made up.” Neither L. D. nor Jeremiah testified at trial.

1. Jeremiah claims that the trial court erred in denying his challenge based on Batson v. Kentucky, 476 U. S. 79 (106 SC 1712, 90 LE2d 69) (1986), with respect to the State’s striking of an African-American female from the initial panel. The record shows that after jury selection was completed, the trial court asked if the State or Jeremiah had a challenge based on Batson. Jeremiah challenged the State’s striking of venire person Lovey Stephens, a 71-year-old African-American female retiree. The trial court found that there was a prima facie case and requested a showing from the State that the strike was racially neutral.

The State informed the court that it struck Stephens out of concern that she would empathize too much with Daniel, who at trial was a sympathetic witness for Jeremiah. The State noted that Stephens was the oldest venire person and that she appeared physically frail. The State pointed out that Daniel was also physically frail and suffered from Parkinson’s disease. Additionally, the State expressed concern that Stephens’ sympathy for Daniel would be strengthened because Daniel did not want to testify and was being forced to by the State. The State then noted that two of twelve jurors selected from the panel of thirty-four were African-Americans.

When a . . . Batson objection is raised, the trial court must engage in a three-step process to determine if peremptory challenges were used in a racially discriminatory manner. First, the opponent of the strike must make a prima facie showing of racial discrimination. Then, the proponent of the strike is required to set forth a race-neutral, case-related, clear and reasonably specific explanation for the exercise of its strikes. An explanation is not race-neutral if it is based on a characteristic that is peculiar to any race or on a stereotypical belief. At this point, the proponent of the strike need not offer an explanation that is persuasive or even plausible — all that is required is an explanation that is facially race-neutral. In the final step, the trial court must determine, considering the totality of the circumstances, whether the opponent of the strikes has shown that the proponent was motivated by discriminatory intent in the exercise of his strikes. The opponent of the strikes may carry his burden of persuasion by showing that similarly situated jurors of another race were not struck or that the proponent’s race-neutral reason for the strike is so implausible or fantastic that it renders the explanation pretextual. A trial court’s findings on whether the opponent of the strike has met his burden of persuasion are entitled to great deference and will be affirmed unless clearly erroneous.

(Citations and punctuation omitted.) Curry v. State, 238 Ga. App. 511, 513 (1) (519 SE2d 269) (1999).

After hearing the State’s explanation and allowing defense counsel a response, the trial court found that the State’s explanation for the strike was race-neutral. The court then found that the State had not left on the panel any similarly situated person. Accordingly, the court overruled Jeremiah’s objection.

We conclude that the trial court did not abuse its discretion by finding that the reasons were race-neutral and sufficient. See Palmer v. State, 271 Ga. 234, 237 (2) (517 SE2d 502) (1999). See also Barnes v. State, 269 Ga. 345, 349 (6) (496 SE2d 674) (1998) (a trial court’s finding on whether the opponent of the strikes has met his burden of persuasion is affirmed unless clearly erroneous).

2. Jeremiah claims that his trial counsel was ineffective in two ways. First he claims that his trial counsel, Herbert Adams, was ineffective because of a conflict of interest with Jeremiah’s previous trial counsel, Brian Whiteside. Jeremiah claims that Whiteside consulted the victim and Daniel and that Adams’ “conflict of interest” arose from his close association with Whiteside. Jeremiah further argues that without this conflict Adams might have constructed a better defense at trial.

At the motion for new trial hearing, Jeremiah presented evidence that he was represented in this case first by Drew Powell, who was appointed to represent him at magistrate court. Jeremiah then retained Whiteside, in the summer of 1998. At some point, Jeremiah filed a grievance against Whiteside with the State Bar, which was either withdrawn or dismissed. On March 9, 1999, Whiteside filed a motion to be allowed to withdraw as counsel in the case. The trial court granted the motion on March 12, 1999, and on the same date appointed Adams as counsel for Jeremiah. Adams filed an entry of appearance in the case on March 19, 1999. The trial began on April 19, 1999.

At the hearing on the motion for new trial, Adams testified regarding his extensive experience and about his specific preparation for the trial in this case. Adams denied that he worked with White-side on the case, although he admitted that he had conferred with Whiteside and with Powell to discuss information that might be helpful to Jeremiah’s defense. Adams also admitted that he met with various witnesses in the case, including L. D. and Daniel to discuss the evidence they had.

In order to prevail on a claim of ineffective assistance of counsel, a criminal defendant must show that counsel’s performance was deficient and that the deficient performance so prejudiced the client that there is a reasonable likelihood that, but for counsel’s errors, the outcome of the trial would have been different. The criminal defendant must overcome the strong presumption that trial counsel’s conduct falls within the broad range of reasonable professional conduct. The trial court’s determination with respect to effective assistance of counsel will be affirmed unless the trial court’s findings are clearly erroneous. Included within the constitutional right to counsel is the right to representation that is free from conflicts of interest. In order for appellant to prevail on his claim that his attorney was operating under a conflict of interest that violated his right to counsel, he must show an actual conflict of interest that adversely affected his attorney’s performance.

(Citations omitted.) Turner v. State, 273 Ga. 340, 342 (2) (a) (541 SE2d 641) (2001).

Jeremiah does not articulate a specific way in which Adams’ representation was deficient because of any contact with Whiteside. And, having reviewed the trial transcript, we are unable to find any deficiency in Adams’ performance, as Jeremiah alleges. Accordingly, since Jeremiah has not shown that trial counsel operated under an actual conflict of interest that adversely affected his performance, his contention of ineffective assistance of counsel due to a conflict of interest must fail. Turner, 273 Ga. at 343. See also Henry v. State, 269 Ga. 851, 854 (3) (507 SE2d 419) (1998).

Secondly, Jeremiah claims that his trial counsel was ineffective because he failed to call some favorable witnesses for the accused. Specifically, Jeremiah argues that after the court directed the verdict of acquittal on Counts 1, 5, and 6, L. D. could have given up her marital privilege as to the remaining counts and that his counsel was deficient in failing to call her as a witness. He further contends that counsel should have called as a witness Joan Hall to corroborate the falsity of L. D. and Daniel’s early statements.

To establish ineffectiveness of trial counsel, [Jeremiah] must show that his counsel’s performance was deficient and that the deficient performance prejudiced his defense. The standard for attorney performance is reasonably effective assistance considering all the circumstances, with a strong presumption that, under the circumstances, the challenged action might be considered sound trial strategy. The test for reasonable attorney performance is whether some reasonable lawyer at the trial could have acted, in the circumstances, as defense counsel acted at trial. We review a trial court’s finding that a defendant has been afforded effective assistance of counsel under the clearly erroneous standard. Matters such as calling a particular witness, questioning on direct and cross-examination, maldng trial motions, and objecting to testimony are strategic and tactical decisions within the exclusive province of the attorney after consultation with the client.

(Punctuation and footnotes omitted.) Himmel v. State, 246 Ga. App. 845, 848 (2) (542 SE2d 557) (2000). Defense counsel’s explanations for not calling L. D. and Hall as witnesses established that these decisions were legitimate strategic and tactical trial decisions. There was no deficiency in trial counsel’s performance in this regard.

3. Jeremiah claims that the State failed to prove venue beyond a reasonable doubt as to the battery charge in Count 7 of the indictment. This count arose from the incidents on March 29; the count charged that Jeremiah bruised and cut L. D. by striking her with his fists. The State concedes that venue was not established as to the battery count only.

[W]hen a criminal defendant pleads not guilty, he or she has challenged venue, and the State will not be permitted to invoke the exception permitting it to establish venue with mere slight evidence. Quite to the contrary, whenever a criminal defendant pleads not guilty and is put on trial, the State is placed on notice that at trial, it will be required to establish venue beyond a reasonable doubt. Therefore, by its own definition, the slight evidence exception can never be invoked after a criminal defendant pleads not guilty and is placed on trial. . . . The State may establish venue by whatever means of proof are available to it, and it may use both direct and circumstantial evidence. It must, however, come forth in all criminal prosecutions with evidence to show beyond a reasonable doubt that venue is properly laid.

Jones v. State, 272 Ga. 900, 902-903 (2) (537 SE2d 80) (2000).

Decided July 5, 2001

Layon D. Jeremiah, pro se.

Daniel J. Porter, District Attorney, R. Keith Miles, Assistant District Attorney, for appellee.

In this case, the record contains no evidence regarding where the battery occurred. Thus, venue as to the battery count was not proven beyond a reasonable doubt. Accordingly, the judgment is reversed with respect to the count of the battery of L. D. The remainder of the judgment is affirmed.

4. Jeremiah claims that the evidence was insufficient to convict. Apart from the venue issue addressed above, this argument lacks merit. We find that a rational trier of fact could find from the evidence adduced at trial proof of Jeremiah’s guilt of the remaining counts beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

5. After appellate counsel filed the appellate brief for Jeremiah in this case, Jeremiah’s appellate counsel filed a motion to withdraw as counsel, which this court granted. Jeremiah has now filed briefs, and we have reviewed the additional arguments that Jeremiah raises in those briefs. Contrary to Jeremiah’s arguments, we find no harmful error in the trial court’s handling of the case, except as noted above.

Judgment affirmed in part and reversed in part.

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

       Jeremiah’s argument that one of these two jurors was actually an alternate does not affect our analysis.

       Nevertheless, “if a criminal conviction is reversed because of an evidentiary insufficiency concerning the procedural propriety of laying venue within a particular forum, and not because of an evidentiary insufficiency concerning the accused’s guilt, retrial is not barred by the Double Jeopardy Clause.” Jones, 272 Ga. at 905 (4).


source: Caselaw Access Project

author: Phipps, Judge.

license: Public Domain

text:
    A01A0132.
    HOANG v. THE STATE.
    (551 SE2d 813)
   Phipps, Judge.

In connection with the death of 16-month-old B. D., a grand jury indicted Myhoa Thi Hoang on two counts of felony murder, two counts of cruelty to children, and one count of contributing to the deprivation of a minor. A jury found her guilty of one count of cruelty to children by unlawfully and maliciously causing B. D. excessive pain by failing to seek medical treatment after the child had sustained a serious head injury, guilty of contributing to the deprivation of a minor, and not guilty of all other counts. Hoang appeals on the grounds of insufficient evidence and an inadequate jury charge. Because the evidence was sufficient and the charge was adequate, we affirm.

On appeal from a criminal conviction, this court views the evidence in the light most favorable to the verdict, and the defendant no longer enjoys the presumption of innocence. We do not weigh the evidence or determine witness credibility but only determine whether under the standard of Jackson v. Virginia the evidence is sufficient to support a verdict of guilt.

Viewed in this light, the evidence showed that on the evening of March 16, 1999, B. D. had a fever and his father made plans to take him to his pediatrician the next morning. At 8:30 a.m., B. D. and his father arrived at the pediatrician’s office. B. D.’s temperature was 103 degrees. At the doctor’s office, he was given Advil, Tylenol, and a lukewarm bath to bring down his fever. His temperature came down “a couple of degrees.” A pediatric nurse practitioner’s examination revealed that his eardrums were infected. B. D. was given an antibiotic injection, and he and his father left the doctor’s office at about 10:15 a.m.

Fifteen minutes later they arrived at Hoang’s residence. Hoang had been B. D.’s babysitter for the previous six months. At the time of the trial, she was 31 years old, married, and the mother of three sons, ages nine, four, and two.

B. D. was crying when he arrived at Hoang’s residence, and his father told Hoang that he had an ear infection and a fever, that the doctor had already given him some medicine, and that he did not need any more. His father then left B. D. in Hoang’s care. Hoang tried to console B. D., but he could not be comforted. He would not play or sit on the floor as he normally did, but instead wanted to lie down. Hoang fed him warm cereal; afterward, he began to cry again. Hoang put B. D. in an automatic swing, where he stared at the ceiling, and moments later, he vomited. Hoang testified that B. D. looked pale and “very, very, very sleepy.” She put him down for a nap, and he slept until 1:30 p.m., when he wakened, crying and with a high fever. Hoang testified that she wanted to give him some medicine for his high temperature but decided that he needed to eat something before taking it. When she offered him food, B. D. would not eat.

Hoang testified that at about 1:40 p.m. B. D.’s body shook for two or three minutes. She put lemon juice in his mouth. Hoang, a native of Vietnam, testified that in her native country, lemon juice is given to babies to relieve high temperatures and seizures. When the seizure passed, B. D.’s temperature was 104.8 degrees. A few minutes later she noticed that B. D.’s fever had “come down” and thought the child was “okay.” But he began to cry again. Around 1:45 or 1:50 p.m., B. D.’s hands and feet started turning cold.

Hoang testified that B. D.’s parents had instructed her to call them first if anything ever happened to their son. She searched for his father’s telephone number, but could not locate it. At approximately 2:00 or 2:10 p.m., she attempted to call B. D.’s mother, but she was at lunch. Hoang called her husband to get the telephone number of B. D.’s father, but her husband told her that he did not have the number and advised her to continue trying to reach B. D.’s mother. She called B. D.’s mother again ten minutes later and left a message with a co-worker asking that the mother return her call because her child was “very sick.” Ten minutes later, when Hoang tried calling B. D.’s mother again, the same co-worker told her that he could not find her. She testified that she asked him to search for her again, stating she was “very scared” and did not know what to do. B. D.’s body was “very cold, and he had stopped crying.” After a third call, the mother returned Hoang’s call. It was close to 2:45 or 2:50 p.m.

Hoang told B. D.’s mother that her child had been vomiting and “shaking,” that he had a high temperature, that he was then “cold,” and that she or his father should come to her house immediately. B. D.’s father arrived there between 3:15 and 3:30 p.m. B. D. was unconscious; his lips were purple; his arms and legs were cold. Hoang told B. D.’s father that he needed to take B. D. to the hospital or doctor. The father drove B. D. to a children’s emergency center, 15 minutes away. The attending emergency room physician found B. D. not breathing and without a heart beat; his pupils were fixed and dilated.

B. D. was resuscitated and then given a CAT scan. The attending physician testified that the scan showed that B. D. had extensive skull fractures involving both sides and the back of his skull as well as a large amount of subdural hematoma. He opined that B. D.’s skull fracture had occurred as a result of an impact similar in force to a motor vehicle accident. B. D. also had retinal hemorrhaging consistent with shaking coupled with striking. The physician testified that given the extent of the injuries, he would not have expected B. D. to live more than two to three hours after sustaining the impact.

B. D. was rushed by helicopter to another children’s hospital, where a pediatric neurosurgeon operated on him at approximately 5:00 p.m. The surgeon testified that B. D. had extensive skull fractures and that his brain was bruised and swollen. He opined that B. D.’s severe head injuries were caused by “forceful blunt trauma to his head,” stating that the severity of the injury was inconsistent with a household fall or a fall from a bed and that the impact would have rendered the child unconscious immediately and precluded regaining consciousness.

B. D. died the next day. A county medical examiner performed an autopsy and found an eleven and one-half inch skull fracture extending from the left side, around the back, then to the right side of B. D.’s head. Branching from that fracture were seven additional skull fractures ranging in length from a quarter of an inch to five and one-half inches. The examiner testified that the fracture pattern was not typically associated with accidental injuries that occur around the house, but that these injuries were inflicted upon B. D. with some type of blunt object. He opined that the injury was not caused by B. D.’s bumping his head on a car door frame.

1. Hoang contends that the evidence was insufficient to authorize a conviction for cruelty to children because there was no evidence of malice. OCGA § 16-5-70 (b) provides that a person is guilty of cruelty to children when that person maliciously causes a child under the age of 18 cruel or excessive physical or mental pain.

For purposes of this Code section, malice in the legal sense [ ] imports the absence of all elements of justification or excuse and the presence of an actual intent to cause the particular harm produced, or the wanton and wilful doing of an act with an awareness of a plain and strong likelihood that such harm may result. Intention may be manifest by the circumstances connected with the perpetration of the offense. Intent is a question of fact to be determined upon consideration of words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted.

In support of her argument that there was no evidence of malice, Hoang points out that the jury found her not guilty of other counts which also require malice. But consistency in the verdict is not necessary, and every count of an indictment is regarded separately. Thus, even if the verdicts are inconsistent, reversal is not required.

Hoang argues that there was no showing that she inflicted B. D.’s head injury. The jury found her not guilty of cruelty to children “by fracturing his skull.” She was convicted of cruelty to children for “failing to seek medical treatment after [B. D.] had sustained a serious head injury.” And although she also argues that there is no showing that she knew about the injury and, with such knowledge, wilfully failed to seek medical treatment, actual knowledge of the specific type of iniury is not required to show malice for the purpose of OCGA § 16-5-70.

Hoang also maintains that she believed an ear infection was causing B. D.’s sickness and that she treated his fever and seizure with lemon juice, “according to her knowledge and culture.” She argues that while such “remedy” may have been a mistake in judgment, such mistake is not evidence of malice. But the evidence presented in this case does support a finding of malice.

Hoang admitted that she saw B. D. suffer from discomfort, vomiting, a seizure, a temperature of 104.8 degrees, a “cold” body, and unconsciousness. The jury, assessing the weight of the evidence and the credibility of the witnesses, was authorized to find as no justification or excuse Hoang’s explanations that she was unaware that B. D.’s illness was more severe than an ear infection, that she administered a cultural remedy of lemon juice, and that she was adhering to the instructions of B. D.’s parents to call them first. The evidence showed that despite the fact that she had been told only that B. D. had an ear infection and that she had given him lemon juice for the fever and seizure, Hoang realized almost immediately after giving it that the child required medical attention. Yet nothing in the record shows that Hoang sought any medical care for him. Hoang testified that she understood that she was responsible for B. D.’s care and safety. She also testified that had she witnessed her two-year-old son suffer like B. D., “[she] would [have] drive[n] him to the hospital.” In explaining why she did not seek medical treatment for B. D., she stated that the child’s parents had instructed her to call them first if something happened to their son. She stated, “If the mother had told me to call 9111 would have called 911.” In addition, she accounted for her failure to call 911 by stating that had she done so and then gone to the hospital with B. D., her oldest child would have been unable to get inside the home when he arrived. Hoang continually attempted to reach B. D.’s father for at least 90 minutes, and upon his arrival she told him that B. D. needed medical attention immediately, thus demonstrating that she had assessed B. D.’s symptoms of pain and was aware that B. D.’s condition was severe and that he was in urgent need of medical care. The jury was authorized to find that Hoang wantonly and wilfully failed to obtain medical care for B. D. and was aware of the likely harm to him as a result of her failure to act. We conclude that the evidence was sufficient to find malice and to find Hoang guilty beyond a reasonable doubt of cruelty to children.

2. Hoang contends that the evidence was insufficient to sustain a conviction for contributing to the deprivation of a minor. A person commits the offense of contributing to the deprivation of a minor when that person “willfully fails to act when such act or omission would cause a minor to be found to be a deprived child as such is defined in Code Section 15-11-2. . . .” A “deprived child,” for the purpose of this case, is one who “ [i] s without proper parental care or control, subsistence, education as required by law, or other care or control necessary for the child’s physical, mental, or emotional health or morals.”

The indictment charged that Hoang wilfully failed to seek medical treatment for B. D. after he sustained a serious head injury while in her care. Hoang argues that there is no evidence that B. D. sustained the head injury while in her care. In support of this argument, she asserts that the jury’s rejection of such a finding was shown by its not guilty verdicts on Counts 1, 2, and 3. This argument is without merit. As stated in Division 1, consistency in the verdict is not necessary, and evéry count of an indictment is regarded as if it is a separate indictment. Hoang next argues that there is no evidence that she knew about B. D.’s injuries and that, with such knowledge, wilfully failed to seek medical treatment for him. But the State presented evidence that B. D. would have exhibited signs of severe injury immediately upon receiving it and that the signs would have been apparent to a layperson. There is also evidence that the injury would have rendered B. D. immediately unconscious and that he would not have regained consciousness. The jury was authorized to conclude that the injury occurred while B. D. was in Hoang’s care and with her knowledge.

Finally, Hoang points to what she claims are weaknesses or inconsistencies in the circumstantial evidence that B. D. sustained a serious head injury while in her care and argues that the evidence did not exclude every other reasonable hypothesis that someone else inflicted the child’s injuries. To warrant a conviction on circumstantial evidence, such circumstantial evidence need not exclude every possible hypothesis other than the defendant’s guilt, but only reasonable hypotheses. Whether a hypothesis is reasonable is a question for the jury, and we will not disturb that finding unless the guilty verdict is insupportable as a matter of law. Viewed in the light most favorable to the verdict, the jury was authorized to find, after weighing the different theories presented, that every reasonable hypothesis except Hoang’s guilt was excluded. This finding is not insupportable. Consequently, the circumstantial evidence was sufficient under the standard of Jackson v. Virginia to authorize the jury’s verdict that Hoang was guilty beyond a reasonable doubt of contributing to the deprivation of a minor.

3. Hoang contends that the jury charge inadequately instructed the jury on malice as required for a conviction of cruelty to children. She claims that the evidence authorized the jury to find that her failure to seek medical treatment was not malicious but rather a negligent mistake in judgment. Relying on Brewton v. State, she urges that the trial court erred in refusing to give her requested instruction that the “crime of cruelty to children by the failure to provide medical care may not be based on the guardian’s negligent mistake in judgment as to when medical care is required, but must be based on the malicious failure to provide that care.”

In Brewton, our Supreme Court considered whether evidence of unsanitary living conditions, by itself, could satisfy the malice requirement of OCGA § 16-5-70 (b). In answering that inquiry, the Court posed a hypothetical where the parent is ignorant of the fimdamentals of both housekeeping and parenting. The Court stated that malice under those circumstances is not shown because the parent is not aware of the likelihood of the ill effects from maintaining unsanitary conditions. The Court then quoted from a concurring opinion in another case, in which Justice Sears wrote that “to constitute the crime of cruelty to children the failure to provide medical care may not be based on a parent’s or guardian’s negligent mistake in judgment as to when medical care is required, but must be based on the malicious failure to provide that care.”

But Hoang’s reliance on Brewton is misplaced. Contrary to Hoang’s contention, the evidence did not show that she mistakenly judged whether or when B. D. needed medical care. As we determined in Division 1, the evidence showed that, if not before, almost immediately after giving B. D. the lemon juice, she realized that he required medical care and also realized the ill effects of his not receiving it. Considering the parents’ request to be notified first and that her son would be unable to enter the home had she left with B. D., she made a deliberate decision not to seek medical care. There was no evidence of a mistake in judgment that medical care was required. “If any portion of a requested charge is inapt, incorrect, misleading, confusing, not adequately adjusted or tailored, or not reasonably raised or authorized by the evidence, denial of the charge request is proper.”

Moreover, “[a] requested charge needs to be given only where it embraces a correct and complete principle of law adjusted to the facts and which is not otherwise included in the general instructions given.” Here, the trial court properly charged on the crime of cruelty to children, tracking the statutory definition. And the court properly charged on the malice element for the offense of cruelty to children: “Malice imports the absence of all elements of justification or excuse and the presence of an actual intent to cause the particular harm produced, or the wanton and willful doing of an act with an awareness of a plain and strong likelihood that such harm may result.” We find that this charge accurately conveyed to the jury the concept of malice and did not relieve the State of its burden of proving all elements of the crime of cruelty to children. Considering the evidence in this case and the jury charge given as a whole, it was not error to refuse to further instruct the jury as Hoang requested.

Judgment affirmed.

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

Decided July 5, 2001

Novy, James & Vaughan, Eugene Novy, Deborah M. Vaughan, for appellant.

Daniel J. Porter, District Attorney, Nancy J. Dupree, Assistant District Attorney, for appellee.

       The grand jury charged Hoang with felony murder by causing B. D.’s death by fracturing his skull (Count 1), and by failing to seek medical treatment after B. D. had sustained a serious head injury while in her care (Count 3).

       The grand jury charged Hoang with two counts of cruelty to children for unlawfully and maliciously causing B. D. excessive physical pain by fracturing his skull (Count 2), and by failing to seek medical treatment after the child had sustained a serious head injury (Count 4).

       The grand jury charged Hoang with contributing to the deprivation of a minor for wilfully failing to seek medical treatment for B. D. after the child had sustained a serious head injury while in her care, leaving the child without proper parental care necessary for his physical health and resulting in the death of the child (Count 5).

        Wolf v. State, 246 Ga. App. 616, 617 (1) (540 SE2d 707) (2000).

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

        Wolf, supra, 246 Ga. App. at 617.

       According to B. D.’s father, on the morning of March 17,1999, B. D. fell 17 inches from his bed to the carpeted floor.

       B. D.’s father testified that as he was hurriedly putting B. D. into the car to go to the doctor’s office, he “banged” B. D.’s head on the door’s frame, but “not very hard.”

       (Citations and punctuation omitted.) Brewton v. State, 266 Ga. 160, 161 (2) (465 SE2d 668) (1996); Wolf, supra, 246 Ga. App. at 618 (2).

        Sanders v. State, 245 Ga. App. 561, 564 (2) (538 SE2d 470) (2000).

       Id.

        Barry v. State, 214 Ga. App. 418, 420-421 (3) (448 SE2d 243) (1994).

       See Wolf, supra, 246 Ga. App. at 618 (1); see also Hill v. State, 243 Ga. App. 614, 616 (533 SE2d 779) (2000).

       See Wolf, supra, 246 Ga. App. at 618 (2); see also Hill, 243 Ga. App. at 616.

        Jackson, supra, 443 U. S. 307; see Wolf, supra, 246 Ga. App. at 618 (2).

       OCGA § 16-12-1 (b) (3).

       OCGA § 15-11-2 (8) (A).

       See footnotes 1 and 2, supra.

        Sanders, supra, 245 Ga. App. at 564 (2).

       See OCGA § 24-4-6.

       OCGA § 24-4-6; Robbins v. State, 269 Ga. 500, 501 (1) (499 SE2d 323) (1998).

        Robbins, supra, 269 Ga. at 501 (1).

        Jackson, supra, 443 U. S. 307.

       Supra, 266 Ga. at 161 (2).

       Id.

       Id.

       (Emphasis in original.) Woodbury v. State, 264 Ga. 31, 33 (440 SE2d 461) (1994) (Sears-Collins, J., concurring).

       (Citations and punctuation omitted.) Diaz v. State, 239 Ga. App. 795, 796 (2) (522 SE2d 242) (1999).

       (Citation and punctuation omitted.) Holmes v. State, 210 Ga. App. 118, 119 (2) (435 SE2d 492) (1993).

       See OCGA § 16-5-70 (b); see also Suggested Pattern Jury Instructions, Vol. II: Criminal Cases (2nd ed. 1991), p. 97.


author: Pope, Presiding Judge.

text:
    A01A0245.
    SKY SHOTS AERIAL PHOTOGRAPHY, INC. v. FRANKS.
    (551 SE2d 805)
   Pope, Presiding Judge.

Sky Shots Aerial Photography, Inc. brought suit against Michael Walls, Eastman Kodak Company and Jack Franks, a resident of Florida. Franks obtained a dismissal on the grounds that Georgia lacked personal jurisdiction over him. Sky Shots appeals, and we affirm.

“On a motion to dismiss for lack of personal jurisdiction, a defendant bears the onus of proving lack of personal jurisdiction.” (Citation and punctuation omitted.) ETS Payphone.v. TK Indus., 236 Ga. App. 713 (513 SE2d 257) (1999). But, as in this case, where the defendant controverts the allegations of the complaint at an evidentiary hearing, the plaintiff may not rely on mere allegations, but must also submit testimony, supporting affidavits or documentary evidence in rebuttal. See Beasley v. Beasley, 260 Ga. 419, 420 (396 SE2d 222) (1990).

The unrebutted facts show that in October 1995, Franks, Inc., a Florida corporation controlled by Franks, leased a Kodak Photo Print System from Eastman Kodak Credit Corporation under terms by which it would own the machine after 36 monthly payments. Franks obtained the system for Walls to use to start a new glamour photography business in Florida with the understanding that if Walls made enough money, he would pay Franks, Inc. for the system. But there was no agreement that Franks or his corporation would share in any of Walls’ profit.

In March 1996, Franks permitted Walls to take the system to Atlanta where, he understood, Walls was entering into a joint venture with various persons and entities whereby they planned to use the system and others like it, during the Olympics. Unbeknownst to Franks, Walls entered into an agreement to sell the equipment to Sky Shots, a Georgia corporation. Later, Sky Shots became suspicious that Walls did not own the system, and it demanded that Walls convey clear title, which, for a while, he could not do. That dispute turned into this lawsuit because, even though Sky Shots had the systern, it claims that it could not use it because, without proof of ownership, it was unable to obtain insurance on the equipment. The only evidence in the record shows that Franks did not know of the alleged sale until the dispute arose between Walls and Sky Shots; he was told during a conference call in June 1996.

Franks has never received any money for the purported sale of the system, and he has never received the equipment back. There is no evidence that Walls and Franks were business partners. Nor is there any evidence that Franks visited Georgia at any time relevant to the issues in this case or that he had any dealing with Sky Shots whatsoever. Because Franks was still under the term of the lease when the allegations arose, he did not own the system at that time.

In addition to the claims against Walls and Eastman Kodak, Sky Shots asserted claims of fraud and breach of contract against Franks alleging that he played a role in the sale of the machine to them.

The Georgia long-arm statute confers personal jurisdiction over nonresidents to the maximum extent permitted by due process. First United Bank of Miss. v. First Nat. Bank of Atlanta, 255 Ga. 505, 506 (340 SE2d 597) (1986). But a forum state may not exercise jurisdiction over a nonresident “solely as a result of ‘random,’ ‘fortuitous,’ or ‘attenuated’ contacts.” Burger King Corp. v. Rudzewicz, 471 U. S. 462, 475 (105 SC 2174, 85 LE2d 528) (1985). The contacts must result from actions of the defendant that create a “substantial connection” with the forum state. Asahi Metal Indus. Co. v. Superior Court of Cal., 480 U. S. 102, 109 (107 SC 1026, 94 LE2d 92) (1987). “The ‘substantial connection’ between the defendant and the forum State necessary for a finding of minimum contacts must come about by an action of the defendant purposefully directed toward the forum State.” (Citations and emphasis omitted.) Id. at 112. The defendant’s conduct and connection with the forum state must be such that he should reasonably anticipate being haled into court there. WorldWide Volkswagen Corp. v. Woodson, 444 U. S. 286, 297 (100 SC 559, 62 LE2d 490) (1980).

The trial court held “that Franks did not purposefully avail himself of the jurisdiction of the court or otherwise satisfy the due process requirements for minimum contacts.” We agree and find no evidence of a substantial connection between Franks and Georgia. Franks did not transact any business here. The only business that Franks engaged in was to allow Walls to use the leased equipment. Sky Shots has not rebutted the evidence that Franks was not a partner of Walls, did not share in the profits of Walls’ business and did not earn any revenue from use of the equipment. Under the circumstances in this case, the mere fact that Franks knew that Walls was taking the system to Georgia to do business is not enough. Further, the claim of breach of contract does not arise out of the arrangement between Walls and Franks. It is based on the unrelated agreement by Walls to sell the system to Sky Shots. Thus, Franks never took any action purposely directed toward Georgia nor availed himself of the protection of Georgia law. Cf. McDonnell v. Roy E. Beatty & Assoc., 203 Ga. App. 807 (418 SE2d 95) (1992) (ownership of equipment and knowledge that it might be taken to Georgia, standing alone, are insufficient to confer jurisdiction). The fact that Franks may have paid, on account, for photography paper used on the system while it was in Atlanta is not related to Sky Shots’ claims against Franks and is too insignificant on which to base jurisdiction.

Decided July 5, 2001.

Hassett, Cohen, Goldstein, Port & Gottlieb, Lee S. Goldstein, for appellant.

With regard to the fraud claim, there is nothing to link Franks with the allegation of fraud regarding the alleged sale, nor any allegation of contact between Franks and Sky Shots or Georgia in connection with any alleged fraudulent actions by Walls. It is undisputed that Franks was never in Georgia at the time any alleged fraud was committed. Also, jurisdiction cannot be based on an allegation of a conspiracy with Walls arising out of his actions in Georgia:

[A]n allegation that a nonresident who personally has conducted no activity in or with Georgia is a co-conspirator with one who committed tortious acts in Georgia and through the conspiracy is chargeable with the acts of co-conspirator within the state does not establish a “contact” with this forum in the absence of evidence of purposeful activity within Georgia by the nonresident.

Metzler v. Love, 207 Ga. App. 447, 449 (428 SE2d 384) (1993), citing Coopers & Lybrand v. Cocklereece, 157 Ga. App. 240, 246 (276 SE2d 845) (1981). Compare Rudo v. Stubbs, 221 Ga. App. 702 (472 SE2d 515) (1996) (conspiracy to commit an intentional tort against a Georgian is imputable to nonresident for purposes of long-arm jurisdiction). There is no evidence in this case that Franks targeted a Georgian in a conspiracy to defraud. More than mere allegations of conspiracy are required. Rudo, 221 Ga. App. at 704.

We find no error by the trial court in granting the motion to dismiss for lack of personal jurisdiction.

Judgment affirmed.

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

Freed, & Berman, Gary S. Freed, Charles H. Van Horn, Christopher W. Timmons, for appellee.


text:
    A01A0336.
    R. W. HOLDCO, INC. et al. v. SCI/RW HOLDCO, INC. et al.
    (551 SE2d 825)
   Phipps, Judge.

Rudolf Walther, a resident of Germany, owned Rudolf Walther Holding, GmbH, a German company that owned R. W. Holdco, Inc., a Georgia company (collectively appellants). On October 14,1998, Alan Johnson, an officer of R. W. Holdco, directed Bradley Carr, an attorney at the law firm that represented Walther and R. W. Holdco, to incorporate SCI/RW Holdco, Inc., with Johnson as the sole initial officer and director. According to Carr, SCI/RW was formed to purchase real estate and other assets owned by R. W. Holdco.

On October 26, 1998, R. W. Holdco sold five parcels of unencumbered real estate to SCI/RW for $4,500,000, providing seller financing of $3,300,000. That same day, Palmetto Capital Corporation lent SCI/RW $2,200,000, a portion of which it used to pay the balance of the $4,500,000 purchase price. Palmetto received deeds to secure debt on two of the acquired properties: (1) 9.68 acres of land which has improvements known as the Gwinnett Market and Atrium Mall (“Atrium Mall”), and (2) 44.65 acres of undeveloped land known as the Springfield (“Springfield”).

Walther later claimed that the sale of R. W. Holdco’s assets was unauthorized. Appellants sued SCI/RW, alleging fraud in the sales transaction and seeking rescission and damages. SCI/RW quit-claimed to R. W. Holdco its interest in the five parcels. Palmetto then intervened as a defendant, contending that it was a bona fide purchaser and therefore could not be divested of its security interest in the Atrium Mall and Springfield. Appellants amended their complaint, adding a count for declaratory judgment that Palmetto had no valid interest in the two properties because it was not a bona fide purchaser. After a bench trial, the court found in favor of Palmetto and denied appellants’ demand for rescission. On appeal, appellants contend that the trial court erroneously determined that Palmetto was a bona fide purchaser and that the conveyances from R. W. Holdco to SCI/RW were “presumptively valid under Georgia law.” They also contend that the trial court erred in determining that equity supported its ruling. We afiirm.

1. Appellants contend that the trial court erred in finding that Palmetto was a bona fide purchaser. They assert that Palmetto had actual knowledge of certain “facts” that put it on inquiry notice, and that had the lender inquired further, Palmetto would have discovered appellants’ interest in the real estate and the alleged fraud. They argue that Palmetto was negligent in not investigating further and therefore is not entitled to be protected as a bona fide purchaser.

A bona fide purchaser for value is protected against outstanding equitable interests in land of which the purchaser has no notice. “Notice sufficient to excite attention and put a party on inquiry shall be notice of everything to which it is afterwards found that such inquiry might have led. Ignorance of a fact due to negligence shall be equivalent to knowledge in fixing the rights of parties.” Whether the circumstances were sufficient to put Palmetto on notice of the alleged fraud and appellants’ interests in the real estate was a question of fact to be determined by the trier of fact.

[T]he findings of the trial court will not be set aside unless clearly erroneous and regard must be given to the trial court’s opportunity to assess the credibility of the witnesses. OCGA § 9-11-52 (a). Moreover, the “clearly erroneous” test is in essence the same as the “any evidence” rule and appellate courts cannot disturb the findings of fact by the trial court if there is any evidence to support them. .

Appellants assert that the following “facts” collectively were sufficient to excite attention and put Palmetto on inquiry notice: (a) before closing, R. W. Holdco owned the real property pledged to secure SCI/RW’s loan and a condition precedent to the loan closing was a transfer of the property to SCI/RW; (b) the actual borrower changed from R. W. Holdco to SCI/RW a few days before the closing with no reason given; (c) SCI/RW was organized just two weeks before closing; (d) Johnson was a principal officer of both R. W. Holdco and SCI/RW; (e) Walther was the CEO of R. W. Holdco, according to the Georgia Secretary of State; (f) Carr’s firm was representing R. W. Holdco in the sales transaction, prepared the title insurance binder as agent for the title company, and gave an opinion letter in the capacity of counsel to SCI/RW, making therein no representations on R. W. Holdco’s behalf; (g) Palmetto did not know the purpose of the loan; (h) SCI/RW was willing to pay interest of 16 percent per annum; (i) Palmetto had no prior relationship with Johnson, R. W. Holdco, SCI/RW, or Carr; and (j) the Atrium Mall and Springfield were unencumbered.

Appellants claim that had Palmetto inquired further, it would have discovered the following “facts”: (a) the purpose of the loan was to provide SCI/RW with the cash portion of the purchase price of five pieces of real property; (b) SCI/RW was purchasing the Atrium Mall and Springfield for a combined cost of $3,307,602.83, half of the value of $6,200,000 assigned by Palmetto to the two parcels; (c) for tax purposes, the accounting firm had allocated $200 as the sales price for a restaurant/entertainment center located inside the Atrium Mall; (d) the agreement to purchase/sale assets between R. W. Holdco and SCI/RW was signed on October 26, 1998; (e) the Atrium Mall and Springfield were being sold at a loss to R. W. Holdco; (f) R. W. Holdco received only $1,200,000 from the sale and provided seller financing for the balance of the sales price; (g) R. W. Holdco took deeds to secure debt from SCI/RW on the same parcels encumbered by Palmetto; (h) an accountant with the accounting firm for R. W. Holdco served as SCI/RW’s “president for the day” merely to sign the closing documents on behalf of SCI/RW; (i) SCI/RW was owned by a company based in the Channel Islands; and (j) SCI/RW was using $273,856.11 of the loan proceeds for purposes other than the sale.

Appellants further claim that had Palmetto asked to inspect written evidence of Johnson’s authority to sell R. W. Holdco’s assets, it would have discovered that R. W. Holdco’s consent minutes and corporate resolution were over three months old at the time of closing, that the documents did not address the sales transaction specifically, and that the signature pages of the consent minutes were separate from the main text, contained no substantive language, and were typed in a different font than the pages containing the substantive language. They further point out that the consent minutes purport to make Johnson’s status as agent irrevocable, although the minutes give no interest to Johnson. Appellants urge that had Palmetto inquired further, it ultimately would have discovered R. W. Holdco’s interest in Atrium Mall and Springfield, Johnson’s lack of authority to transfer the real estate, and the lack of proper attestation on the warranty deeds conveying the parcels to SCI/RW.

The trial court’s findings regarding Palmetto’s practices and operations are not disputed. Palmetto is a “non-traditional, collateral lender,” lending solely against real estate collateral rather than considering the borrower’s creditworthiness or ability to repay. It does not require personal guarantees; it does require a deed to secure debt on property. Palmetto determines the value of the property to serve as collateral through its own analysis of what the property would bring if it had to be liquidated quickly; thus, its valuations are generally lower than fair market value estimates. Typically, it lends no more than 55 percent of the unencumbered value of the real estate and charges 16 percent interest on a loan with a duration not to exceed 35 months. Consistent with that lending criteria, Palmetto loaned SCI/RW $2,200,000 and required title insurance policies and valid first mortgages on real estate it had valued at $6,200,000.

In determining that Palmetto was a bona fide purchaser of the security interests, the trial court found that Palmetto did not have notice of Johnson’s lack of authority to effect the sale, that further investigation by Palmetto would not have revealed any alleged lack of authority, and that Palmetto was not negligent by not investigating further. Carr’s law firm provided to Palmetto’s attorney a marked title insurance binder which represented that title on the Atrium Mall and Springfield had passed from R. W. Holdco to SCI/RW. Carr’s law firm also provided to Palmetto’s attorney a legal opinion stating that SCI/RW had duly authorized and executed the loan documents and that the documents were enforceable against the borrower. At trial, Carr confirmed that Palmetto was entitled to rely on the binder and the opinion.

As to any “irregularities” in the consent minutes or other corporate documents that appellants claim that Palmetto would have noticed, the trial court found that had Palmetto inquired further, it would have been presented with Carr’s assurance that authority existed. According to Carr, lenders do not generally ask for corporate resolutions and consent minutes, although he has provided such verification when asked. Further, Carr confirmed that he had inspected the consent minutes and a corporate resolution provided to him by Johnson, and after inspecting the documents, he concluded that Johnson had authority to sell R. W. Holdco’s assets.

Appellants also argue that under the “equal dignities” rule, because the transfer of R. W. Holdco’s property to SCI/RW required a writing, Palmetto should have realized that Johnson also needed written authority to sign the deeds on R. W. Holdco’s behalf and should have asked to see such authority. But the record shows that Palmetto did require a showing of valid conveyances as a condition of the loan and relied on the opinion and the binder as proof of valid conveyances. Moreover, Johnson was granted authority by the consent minutes and the corporate resolution, although appellants contend that the documents were forged.

Citing Greenpoint Sav. Bank v. Guiliano, appellants argue that because Walther did not authorize the underlying sales transaction, valid title did not pass to SCI/RW and therefore the deeds to secure debt are void. But that argument, based on authority from a foreign jurisdiction and addressing different facts, is contradicted by controlling precedent from our Supreme Court: a bona fide purchaser for value is protected against outstanding equitable interests in land of which the purchaser has no notice.

We conclude that the trial court’s factual findings were not clearly erroneous. Therefore, we will not disturb its determination that Palmetto was a bona fide purchaser.

2. Appellants contend that the trial court erred in holding that the conveyances from R. W. Holdco to SCI/RW were “presumptively” valid under OCGA § 14-5-7 (a), which provides:

Instruments executed by a corporation conveying an interest in real property, when signed by the president or vice-president and attested or countersigned by the secretary or assistant secretary . . . shall be conclusive evidence that the president or vice-president of the corporation executing the document does in fact occupy the official position indicated; that the signature of such officer subscribed thereto is genuine; and that the execution of the document on behalf of the corporation has been duly authorized. . . .

Appellants point out that while Johnson, as R. W. Holdco’s vice president, signed the warranty deeds, his signatures were not attested or countersigned by another officer of the company. They argue the warranty deeds therefore are not “conclusive” evidence of Johnson’s authority and Palmetto should have inquired further into his authority.

While we agree that the warranty deeds are not conclusive evidence of Johnson’s authority under OCGA § 14-5-7 (a), we do not find reversible error. First, Palmetto did not rely on the warranty deeds, but instead relied on the opinion of counsel and the marked insurance binder, both representing that title had passed from R. W. Holdco to SCI/RW. Second, we determined in Division 1 that Palmetto was a bona fide purchaser in this case, and therefore the alleged fraud, which appellants contend includes improperly attested warranty deeds, will not divest Palmetto of its interest in the properties.

Decided July 5, 2001.

Smith, Gambrell & Russell, Rex M. Lamb III, Elizabeth L. Branch, for appellants.

Nelson, Mullins, Riley & Scarborough, Kenneth L. Millwood, Richard K. Hines V, for appellees.

3. Appellants contend that the trial court erred in holding that equity supported its ruling. They urge that the trial court failed to take into account the damages they suffered by Palmetto’s taking a deed to secure debt on the real estate. They maintain that Palmetto took a risk without sufficient investigation and point out that Palmetto obtained title insurance. We find these arguments unpersuasive.

First, we have determined that Palmetto is entitled to the protections of a bona fide purchaser, and “[a] bona fide purchaser for value without notice of an equity will not be interfered with by equity.”

Second, we note that the trial court ruled that appellants are estopped from seeking rescission of the deed to secure debt because they had received approximately 85 percent of the net loan proceeds, a finding not disputed by appellants. Further, the trial court relied on OCGA § 23-1-14, which provides that when one of two innocent persons must suffer by the acts of a third person, the one who put it in the power of the third party to inflict the injury should bear the loss. Determining that Palmetto was a stranger to the individuals involved — Johnson, Carr, and the accountant — who were appellants’ agents, the trial court concluded that equity required that as between Palmetto and appellants, appellants must bear the loss for any alleged fraud by their agents.

Appellants’ contention is without merit.

Judgment affirmed.

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

       In a separate lawsuit, R. W. Holdco sued Johnson, Carr, Carr’s law firm, an accountant, and an accounting firm, alleging fraud, breach of fiduciary duty, and professional malpractice.

       See Roop Grocery Co. v. Gentry, 195 Ga. 736, 745 (1) (25 SE2d 705) (1943) (grantee in a security deed who acts in good faith stands in the attitude of a bona fide purchaser and is entitled to the same protection).

       SCI/RW did not participate in the trial and is not a party to this appeal, which was granted pursuant to OCGA § 9-11-54 (b).

       Appellants’ brief does not support their contention of these facts or that Palmetto had knowledge of them. See Court of Appeals Rule 27 (c) (3). It is not the function of this court to cull the record on behalf of a party. Bergmann v. McCullough, 218 Ga. App. 353, 355-356 (3) (461 SE2d 544) (1995). “Our requirements as to the form of appellate briefs were created not to provide an obstacle, but to aid parties in presenting their arguments in a manner most likely to be fully and efficiently comprehended by this Court;... a party will not be granted relief should we err in deciphering a brief which fails to adhere to the required form.” Campbell v. Breedlove, 244 Ga. App. 819, 821 (535 SE2d 308) (2000).

        Dime Sav. Bank &c. v. Sandy Springs Assoc., 261 Ga. 485, 487 (4) (405 SE2d 491) (1991).

       OCGA § 23-1-17.

        Dollar v. Dollar, 214 Ga. 499, 503 (1) (105 SE2d 736) (1958); Rivers v. BMW of North America, 214 Ga. App. 880, 883 (1) (449 SE2d 337) (1994).

       (Citation and punctuation omitted.) Gerald S. Mullis, P.C. v. Sikes, 244 Ga. App. 368, 369 (2) (535 SE2d 533) (2000).

       238 AD2d 472 (656 NYS2d 646) (App. Div. 1997).

        Dime Sav. Bank, supra, 261 Ga. at 487.

       See OCGA § 23-1-20; Tower Financial Svcs. v. Smith, 204 Ga. App. 910, 917 (2) (423 SE2d 257) (1992).

       OCGA § 23-1-20; see Tower Financial, supra.


text:
    A01A0352.
    ARA HEALTH SERVICES et al. v. STITT.
    (551 SE2d 793)
   Pope, Presiding Judge.

Former inmate Stephanie Stitt brought this medical malpractice action against 13 defendants, including the Department of Corrections of the State of Georgia; ARA Health Services, Inc. d/b/a Correctional Medical Services and Correctional Medical Services, Inc. (“CMS”), and Dr. A. G. Enaw. She alleged that CMS had a contract with the Department of Corrections to provide certain medical treatment and care for inmates while incarcerated at various institutions, including Baldwin and Washington Correctional Institutions. Stitt claimed that as a result of the wrongful medical treatment she received while she was incarcerated at Baldwin Correctional Institute and at Washington Correctional Institute, she suffered permanent and severe injuries. Specifically, she claimed that she fell while she was a prisoner, and that because of defendants’ negligent treatment of her, she suffered nerve damage which has caused her permanent bladder and bowel damage. In addition to claims of professional negligence, Stitt claimed that the defendants had acted recklessly and that she was entitled to punitive damages.

At trial Stitt introduced the following evidence: she had a fall while incarcerated on April 5, 1994, after which her legs burned and she requested medical attention. Stitt continued to report pain and continued to seek medical attention for the pain and was admitted to the infirmary on June 6, 1994, when she reported that her hip and her private parts were numb.

On June 14, 1994, Stitt was experiencing loss of control over her bladder. She reported numbness, loss of bladder control, and the start of loss of bowel control to the medical personnel at the institution. There was expert medical testimony that Stitt’s symptoms should have indicated that immediate corrective action was necessary. This medical testimony showed that Stitt suffered from cauda equina syndrome, which if not treated, can lead to irreversible nerve damage in the bladder and bowel regions.

There was evidence that Dr. Enaw examined Stitt, that she urinated on his examining table, and that he did not require an immediate diagnostic test, nor did he promptly treat her. There was evidence that Dr. Enaw examined Stitt repeatedly during June 1994, but did not perform the necessary neurological exams to detect her condition. Stitt also continued having problems with bowel incontinence, but this problem was not treated properly. There was testimony that Stitt wrote frequent letters to the prison officials begging for medical help. There was medical evidence that the necessary tests were not administered to Stitt until August 10, 1994, by which time her condition had deteriorated and she had suffered permanent damage.

There was medical testimony that defendants violated the standard of care in repeatedly failing to perform the necessary exams to diagnose or treat Stitt. This testimony showed that Stitt suffered permanent nerve damage because of defendants’ failure to promptly and properly treat her. At trial Stitt testified that presently she must catheterize her bladder at least four times per day and wear adult diapers due to the loss of bowel control.

Before trial Stitt settled with the Department of Corrections for $280,000. In January 1999, the case went to trial. The defendants at trial were CMS, Linda Blizzard, who was the medical administrator at Baldwin Correctional Institute, and Dr. Enaw. The testimony regarding Stitt’s injuries was extensive and conflicting, including testimony from several medical experts. The trial lasted for more than two weeks, during which time the jury heard testimony from more than twenty-five witnesses. The jury did not hear the evidence regarding the settlement. At the conclusion of the trial, the jury was instructed that if it found the defendants liable, it should allow Stitt to recover the total amount that would compensate her for her injuries.

After trial, the jury returned a verdict of $600,000 against CMS, but in favor of the other two defendants. The jury did not award any punitive damages. In entering judgment, the trial court reduced the $600,000 award by the amount of the previous $280,000 settlement. Citing Allison v. Patel, 211 Ga. App. 376 (438 SE2d 920) (1993), the court changed the verdict amount to $320,000, and entered judgment for that amount along with interest from the date of judgment. The court then entered judgment in favor of defendants Blizzard and Enaw.

Stitt filed a motion for new trial, or in the alternative for additur, under OCGA § 51-12-12 (b), arguing that the judgment was inadequate. In an order entered on June 5, 2000, the court conditionally granted Stitt’s motion on both Stitt’s compensatory and punitive damages claims. In its order, the court stated that it was increasing the judgment to $600,000, but that i/the corporate defendants (CMS) “filed a statement with the Court within 30 days of the order stating that they rejected the court’s additur, the Plaintiff’s motion for new trial would be granted against these defendants.” If CMS did not file an objection, the court’s order stated, the additur, increasing the amount of the judgment to $600,000, would stand. In explaining its decision to increase the amount of the verdict, the court stated: “the treatment Stitt received from [CMS] was egregious and that treatment directly and proximately caused serious permanent injuries to the plaintiff.” Furthermore, the court stated that based on the evidence at trial, “any amount less than $600,000.00 would be clearly inadequate in light of the overwhelming evidence of the serious, permanent and debilitating injuries defendants caused the plaintiff to suffer.”

With respect to defendant Enaw, the court stated that it had carefully reviewed the evidence and was “unable to discern a rational basis on which the jury could have returned a verdict” in his favor. Accordingly, the court granted a new trial as to the doctor because it found that the verdict was contrary to “the great weight of the evidence of his liability.” The court also stated that interest on the original judgment would run until the date of the order, and that thereafter the interest would run on the modified judgment.

From that order CMS and Enaw appealed to this court on June 23, 2000. The appeal was dismissed on July 25, 2000. On August 28, 2000, for the first time, CMS filed an objection to the additur award. On August 30, 2000, the trial court entered an order concluding that because CMS had not filed a timely objection rejecting the additur, the increased judgment prescribed earlier would stand. CMS and Enaw again appeal.

1. CMS first argues that the trial court erred in awarding additur because it filed a timely objection rejecting the increased award. To reiterate the facts regarding the timing of CMS’ objection: the trial court’s order increasing the amount of the judgment was entered on June 5, 2000. The order stated that either party should file its objection to the additur within 30 days. Instead of filing an objection, CMS filed its notice of appeal to this court on June 23, 2000. CMS did not file an objection to the award until August 28, 2000.

CMS argues that the notice of appeal had a supersedeas effect and that the trial court could take no action on the case before the remittitur was returned. Under this argument, CMS contends that once the remittitur was returned to the trial court on August 14, 2000, it had 12 days remaining within which to file its objection. Under this construction, the objection CMS filed on Monday, August 28, 2000, was timely.

In response, Stitt argues that CMS waived the right to complain about the additur when it failed to reject the award in a timely fashion. Stitt contends that despite the filing of the notice of appeal, CMS should have filed its rejection of the additur within 30 days of June 5, 2000. Stitt contends that CMS should not be allowed to unilaterally expand the time in which it is allowed to reject an additur.

We agree with Stitt that CMS did not file a timely objection to the additur. OCGA § 5-6-46 (a) provides: “In civil cases, the notice of appeal filed as provided in Code Sections 5-6-37 and 5-6-38 shall serve as supersedeas upon payment of all costs in the trial court by the appellant and it shall not be necessary that a supersedeas bond be filed. . . .” See also Court of Appeals Rule 40 (a). Nevertheless, the filing of a notice of appeal in a civil action does not serve as a supersedeas until all costs in the trial court have been paid. When all costs are paid, the trial court loses jurisdiction over the case while the appeal is pending. Rockdale Awning &c. Co. v. Kerbow, 210 Ga. App. 119, 120 (1) (435 SE2d 619) (1993); Duncan v. Ball, 172 Ga. App. 750, 751-752 (1) (324 SE2d 477) (1984).

In this case, the record shows that the costs were paid in the trial court on Friday, July 7, 2000, and that was the date on which this court acquired jurisdiction over the case. This date was more than 30 days after the trial court’s June 5 order. Accordingly, the period within which CMS should have filed its objection to the additur expired before this court acquired jurisdiction; thus, CMS failed to file a timely objection. Leventhal v. Seiter, 208 Ga. App. 158, 165-166 (11) (430 SE2d 378) (1993); see also Nest Investments v. Tzavaras, 221 Ga. App. 282 (471 SE2d 223) (1996). Without an objection, the trial court’s order of June 5, 2000, increasing the amount of the judgment to $600,000 became the judgment as to CMS. In this respect, the court’s order of August 30, 2000, entering final judgment as to CMS was proper.

CMS relies on MTW Investment Co. v. Alcovy Properties, 223 Ga. App. 230 (477 SE2d 395) (1996), and Williams v. Natalie Townhouses &c., 182 Ga. App. 815 (1) (357 SE2d 156) (1987), to support its argument here. Those cases do not alter our analysis. In Williams, the costs of the case had been paid and the Williams court explicitly stated: “[t]he payment of costs and filing of a notice of appeal are sufficient to confer upon this court the jurisdiction. . . .” Id. at 817 (1). There is no discussion in MTW Investment Co. regarding the payment of costs, because the court concluded that the trial court had been divested of jurisdiction during the pendency of the appeal. Thus, it appears that the costs had been paid.

2. CMS argues that even if there was no timely objection, the trial court abused its discretion in awarding the conditional additur. CMS argues that Stitt did not introduce evidence of special damages, and that the entire award was for pain and suffering. CMS argues that certain expert testimony casts doubt on the issues of causation and damages and that there was expert testimony which contradicted Stitt’s claims of bowel and bladder dysfunction.

Citing Jacobsen v. Haldi, 210 Ga. App. 817 (437 SE2d 819) (1993), and Spence v. Hilliard, 260 Ga. 107 (389 SE2d 753) (1990), Stitt argues that by failing to timely object, CMS waived its arguments here. She also contends that the court’s conditional award was substantively appropriate.

We first note that the question presented here is not one of set-off and the parties do not directly address this issue. With respect to set-off, the trial court appropriately exercised the option not to reveal the settlement and then to reduce the verdict before judgment by the amount of settlement. See generally Ga. Dept. of Transp. v. Cannady, 230 Ga. App. 585, 590-591 (3) (497 SE2d 72) (1998); Brown v. Southern Aggregates Co., 207 Ga. App. 886 (1) (429 SE2d 294) (1993). The court then conditionally increased the amount of the verdict under OCGA § 51-12-12 (b) — in raising the amount of the verdict, the court did not ignore the provisions for set-off; it simply added on to the reduced verdict. Thus, the parties appropriately address only the additur issue because the court complied with the set-off provisions, but then increased the amount of the verdict subject to CMS’ objection.

Although we do not agree with Stitt that CMS waived its right to object to the judgment in this appeal by its failure to file a timely objection below, we note that by failing to object to the increased award CMS must now have that award reviewed under the appellate standard of review employed for motions for new trials. See, e.g., Moody v. Dykes, 269 Ga. 217, 221 (6) (496 SE2d 907) (1998). And, “[t]he trial court’s decision on a motion for a new trial will be upheld on appeal unless it was an abuse of discretion.” Lisle v. Willis, 265 Ga. 861, 864 (3) (463 SE2d 108) (1995).

OCGA § 51-12-12 (a) states: “The question of damages is ordinarily one for the jury; and the court should not interfere with the jury’s verdict unless the damages awarded by the jury are clearly so inadequate or so excessive as to be inconsistent with the preponderance of the evidence in the case.”

OCGA § 51-12-12 (b) farther provides:

If the jury’s award of damages is clearly so inadequate or so excessive as to any party as to be inconsistent with the preponderance of the evidence, the trial court may order a new trial as to damages only, as to any or all parties, or may condition the grant of such a new trial upon any party’s refusal to accept an amount determined by the trial court.

In Moody v. Dykes, our Supreme Court clarified the provisions of OCGA § 51-12-12 (b), stating:

an excessive or inadequate verdict is a mistake of fact rather than of law and addresses itself to the discretion of the trial judge who, like the jury, saw the witnesses and heard the testimony. In fact, the trial court’s approval of the verdict creates a presumption of correctness which is not to be disturbed absent compelling evidence. ... Of course, the appellate court may set aside a jury verdict under OCGA § 51-12-12 (a), but the threshold is extremely high. Our role is not to enter the jury box.

(Citations and punctuation omitted.) 269 Ga. at 221-222 (6).

And in Smith v. Crump, 223 Ga. App. 52, 56-57 (2) (476 SE2d 817) (1996), this court further analyzed the trial judge’s role in implementing OCGA § 51-12-12, stating:

OCGA § 51-12-12 does not empower the trial judge to [increase] an award, but empowers the trial judge to seek the parties to accept an additur or remittitur upon the threat of a new trial and allows the judge to order a new trial on the issue of damages only; refusal by either party to accept leaves the judge with the power only to grant or to deny a new trial and to decide what issues will be retried. [Cits.] Therefore, the criteria under either a motion for [additur] or new trial rest[ ] upon the sound exercise of discretion in granting or denying either or both such motions, as the case law applicable to the denial of a new trial would govern both motions.

Id.

In this case, the trial court made the factual determination that the overwhelming evidence established that the reduced award of $320,000 was so inadequate as to be inconsistent with the preponderance of the evidence. The court noted that the defendants’ treatment of Stitt was “egregious” and had resulted in her serious, permanent, and debilitating injuries.

After reviewing the record, we conclude that the trial court did not abuse its discretion in conditioning the grant of Stitt’s motion for new trial upon the defendants’ objection to the increased award. And, in the absence of an objection by CMS, the court’s entry of the increased award was not an abuse of discretion. Jacobsen v. Haldi, 210 Ga. App. at 818. In reaching this decision, we are mindful that the trial court’s determination that the damages were “clearly so inadequate or so excessive as to any party as to be inconsistent with the preponderance of the evidence” is a factual one, and that our review of that factual determination is whether the court abused its discretion. See Smith v. Crump, 223 Ga. App. at 57. We further emphasize that had CMS filed a timely objection, the case would have proceeded with the court’s grant of a new trial and the increased award would have been rejected.

Decided July 5, 2001

William P. Tinkler, Jr., Wayne E. Brooks, Jr., Sheri L. Smith, for appellants.

3. The judgment against CMS was entered in this case on August 30, 2000. It awarded interest on the original judgment of $320,000, from the original date of judgment, February 19, 1999, until August 30. Citing Three Crowns Antiques v. Jerrell, 244 Ga. App. 456 (535 SE2d 827) (2000), CMS argues that this interest award was erroneous because as of the court’s conditional grant of a new trial, there was no “judgment” on which interest could accrue.

This argument lacks merit. Although there was no “judgment” for purposes of appeal under Three Crowns when the trial court’s conditional grant of a new trial was issued, there was an existing judgment for purposes of interest at the time the court entered the conditional grant of the new trial. The $320,000 remained the judgment of the court for purposes of interest accrual until the higher judgment was entered, and we find no error.

4. Finally, CMS and Dr. Enaw argue that the trial court abused its discretion in granting a motion for new trial as to Enaw.

The appeal in this case is from the August 30, 2000 final order of the trial court in which it entered judgment against CMS. That order simply references the June 5 order in which the court granted Stitt’s motion for new trial against Dr. Enaw. The trial court then stated that judgment was entered against CMS in the amount of $600,000. The court certified the judgment as to CMS as a final order under OCGA § 9-11-54 (b). “This court has previously held that the grant of a motion for new trial is not a final judgment within the meaning of OCGA § 5-6-34 (a) (1), and that, therefore, an application for interlocutory review is required to be filed in order to give this court jurisdiction to entertain an appeal under these circumstances. [Cit.]” Rockdale Awning v. Kerbow, 210 Ga. App. at 121 (2). Because the case against Enaw was still pending, he may not here appeal the nonfinal grant of the motion for new trial. See generally Lawson v. Athens Auto Supply &c., 200 Ga. App. 609, 610-611 (1) (409 SE2d 60) (1991).

Judgment affirmed.

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

Parks, Chesin, Walbert & Miller, David F. Walbert, William J. Atkins, Charles A. Mathis, Jr., for appellee.

       Correctional Medical Services, Inc. and Correctional Medical Services are two separate corporate entities. Because for purposes of this appeal any differences between the companies are irrelevant, we will treat them as one, using the name “CMS.”

       Although the court initially entered an order dated May 30, 2000, it reentered the order on June 5, 2000, and the time difference is not dispositive of this appeal.

       We note that the entry of this order helps prevent confusion regarding the date and finality of orders in these situations. See generally Three Crowns Antiques v. Jerrell, 244 Ga. App. 456, 459 (535 SE2d 827) (2000).


text:
    A01A0458.
    RILEY v. THE STATE.
    (551 SE2d 833)
   Pope, Presiding Judge.

Michelle Riley stabbed Gerald Smith, her estranged boyfriend, in the chest causing his death. She appeals her conviction and sentence for voluntary manslaughter and possession of a knife during the commission of a crime, and the denial of her motion for new trial. She enumerates six errors including that the evidence was not sufficient to support the verdict because the evidence showed that she acted in self-defense.

Construed in favor of the verdict, the evidence shows that on April 12, 1998, Riley and Smith had a series of arguments and altercations that culminated in Smith’s death. The first occurred after Riley asked Smith to drive her and their two children to her home, but Smith wanted her to wait for twenty minutes. Shortly thereafter, after Riley got in Smith’s car and Smith began driving toward Riley’s home, the two resumed bickering, and Riley changed her mind and said she wanted to go to her mother’s house. The argument continued in the car and escalated to a fist fight when they reached their destination. Part of the fight involved who was going to watch the children for the afternoon, each arguing the other should. Smith was the aggressor at this point, but Riley, who is five feet ten inches tall and weighs 156 pounds, was returning the blows. When one of Smith’s friends restrained Riley, Smith hit her with a “sucker punch.” Riley then went into her mother’s house and came out with a knife, which she held “up.” A witness testified that she held the knife in a “drawn back” position. Riley wanted to scare Smith away, and she said, that if he hit her again, she was going to “F” him up. After Smith left, she put the knife in her pocket.

Shortly thereafter, Smith drove with the children to the home of Chinika Williams, a friend of both Smith and Riley. He was looking for Riley, and he was “mad and mean and angry.” Williams offered to keep the children, as she had done in the past, and otherwise, she tried to keep herself and the children out of Smith’s way. Riley and her sister Tammy arrived a couple of minutes later while Williams was taking control of the children on the front porch. Riley came to get a spare key to her own house, and when she arrived, she saw that Smith was still mad. Smith continued to argue as Riley moved past Smith and up onto the porch. Smith then rushed up on the porch and confronted Riley, and the two argued. Even though Riley never saw Smith holding any weapons, she took the knife out of her pocket “to scare him off’ and told Smith to go. Smith taunted her saying either “oh, you’re going use [sic] the knife?” or “I’ll make you eat the knife.” Tammy then tried to intervene to stop the fight. But when Riley turned to go inside, Smith picked up a plastic outdoor chair and hit Riley hard in the head and shoulder area. Riley then stabbed Smith one time, hitting him in the heart.

Riley was charged with felony murder for killing Smith during an aggravated assault with a deadly weapon and possession of a knife during the commission of a crime. She was convicted on the count of knife possession, and, on the felony murder count, she was convicted of the lesser included offense of voluntary manslaughter.

1. 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. . . Once evidence of self-defense is presented, the burden is on the state to disprove that defense beyond a reasonable doubt. Diaz v. State, 270 Ga. 421-422 (510 SE2d 529) (1999). Whether the evidence shows that a person had a reasonable belief that it was necessary to use deadly force to prevent death or great bodily injury to himself is a question for the jury. Anderson v. State, 245 Ga. 619, 623 (1) (266 SE2d 221) (1980). When voluntary manslaughter is raised, the issue is whether, based on the evidence, the jury could have found beyond a reasonable doubt that the defendant “was so influenced and excited that [she] reacted passionately rather than simply to defend [her]self.” (Citation and punctuation omitted.) Mitchell v. State, 199 Ga. App. 159, 160 (404 SE2d 329) (1991). See also OCGA § 16-5-2 (a).

Here competent evidence from Riley’s own videotaped statement to the police supported a finding that she did not act in self-defense but out of anger. Immediately before the stabbing she told Smith, “I’m tired of you, I’m tired of you threatening me. . . .” So, in her own words, “I took my knife out my pocket. I said, you better go on, boy. I said, you better go.” Riley told the police what happened next: “He hit me in my head with the chair, so I — I just stabbed him. I didn’t know I stabbed him that hard.” She explained, “I didn’t meant [sic] for it to happen. I was just so mad at the time and that’s all I had in my hand, you know, that I could have hit him. . . . That I could get back at him with it. . . .”

Thus, although there was evidence that she acted in self-defense, there was also evidence to support that she acted because she was mad and wanted to get back at Smith, thereby committing voluntary manslaughter. OCGA § 16-5-2 (a). “Circumstances which are sufficient to show voluntary manslaughter, as opposed to justifiable homicide, include a situation in which sudden passion, or fear, is aroused in the actor, without malice aforethought, and the actor willfully kills his attacker, when it was not necessary for him to do so in order to protect himself.” (Citation omitted.) Thomas v. State, 184 Ga. App. 131, 132 (2) (361 SE2d 21) (1987). See also Williams v. State, 245 Ga. App. 670, 671-672 (1) (538 SE2d 544) (2000) (acting out of rage, heated arguments, physical beatings, and fear of some danger support voluntary manslaughter convictions).

2. In four enumerations, Riley contends the court erred by refusing to give jury charges on involuntary manslaughter, criminal negligence, reckless conduct and accident.

Riley argues that the court should have charged involuntary manslaughter because the evidence supported the theory that the death occurred during the misdemeanor of simple battery (i.e., unlawful act involuntary manslaughter), not during a felony. But there was no evidence to support simple battery because Riley admits that she fought Smith with a knife in her hand by “stabbing at him.” See Van Doran v. State, 244 Ga. App. 496, 497 (536 SE2d 163) (2000) (in aggravated assault conviction, where defendant could not remember using the knife and claimed that he had simply tried to defend himself with a knife in his hand, charge on simple battery not required). Riley either committed aggravated assault with a knife, a felony, or did not commit the crime because her use of the knife was justified. Id. And, “no death caused by a felony can possibly fall within either branch of involuntary manslaughter. . . .” Baker v. State, 236 Ga. 754, 757 (1) (225 SE2d 269) (1976). Riley was not entitled to a. charge on involuntary manslaughter. See also Dye v. State, 202 Ga. App. 31 (413 SE2d 500) (1991).

Because Riley’s actions in using the knife, either in self-defense or as an aggravated assault, were intentional, charges for criminal negligence, reckless conduct and accident were not warranted either.

With regard to criminal negligence, see OCGA § 16-2-1, and reckless conduct, OCGA § 16-5-60 (b), “the crime of reckless conduct is, in essence, an instance of criminal negligence, rather than an intentional act, which causes bodily harm to or endangers the bodily safety of another.” (Emphasis omitted.) Bowers v. State, 177 Ga. App. 36, 38 (1) (338 SE2d 457) (1985). As stated above, Riley either committed the intentional act of aggravated assault or her actions were justified. She was not entitled to a charge on these points of law.

In support of her request for a charge on accident under OCGA § 16-2-2, Riley points to her testimony at trial where she stated that she did not know at the time that she had stabbed Smith, but rather, that she had just been trying to fight him off with the knife in her hand. However, she also agreed that she was “stabbing at him.” An instruction on accident is not warranted when a knife is used intentionally against another. Davis v. State, 269 Ga. 276, 280 (3) (496 SE2d 699) (1998). Compare Turner v. State, 262 Ga. 359, 360-361 (2) (418 SE2d 52) (1992) (a gun could accidentally go off during a struggle). The court did not err in refusing to charge on accident.

Decided July 5, 2001.

Orin L. Alexis, for appellant.

Spencer Lawton, Jr., District Attorney, Christine S. Barker, Assistant District Attorney, for appellee.

3. Riley also contends that the court erred by failing to grant her mistrial request due to the absence of a subpoenaed defense witness. But Riley has not given any proffer of the witness’ testimony, and therefore we cannot gauge any possible harm. Brandon v. State, 236 Ga. App. 203, 205 (511 SE2d 573) (1999).

Judgment affirmed.

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


text:
    A01A0601.
    JIBRI v. COOK.
    (551 SE2d 808)
   Pope, Presiding Judge.

Plaintiff Rashid Abudullah Jibri sued James Timothy Cook for injuries and damages he claimed to have sustained in a vehicular accident. After a trial in Carroll County State Court, the jury returned a defense verdict. Jibri appeals, arguing that two of the court’s jury instructions were improper. For the following reasons, we reject Jibri’s arguments and affirm.

The accident underlying this lawsuit occurred at the intersection of Parenting and Newnan Roads. Cook, who had been traveling on Parenting Road, stopped at the stop sign at the intersection with Newnan Road. At trial, Cook testified that after stopping he looked to his left and saw a truck traveling on Newnan Road with the right turn signal operating. This truck was driven by plaintiff Jibri. Cook testified that Jibri looked like he was “going slow for conditions” and Cook had “no doubt that he was turning.” Based on this belief, Cook pulled out onto Newnan Road. Jibri did not turn right, and the accident occurred.

An independent witness, Shelia Turner, who was traveling behind Jibri’s car before the accident, testified at trial. She corroborated Cook’s testimony that Jibri was signaling as if he were going to turn right onto Parenting Road. She also testified that Jibri slowed down before the turn and that his brake lights came on. Turner stated that Jibri even started to turn, but then swerved back onto Newnan Road and accelerated.

1. Jibri claims that the court’s jury charges conflicted and were confusing. Part of Jibri’s argument seems to be that the court erred in giving a charge both on a vehicle’s duty to stop at a stop sign and a charge regarding the turning vehicle. Yet, at trial Jibri requested that the trial court charge on OCGA § 40-6-72, which delineates a driver’s responsibility at a stop sign, and he requested a charge about the turning vehicle. Although the charge Jibri requested regarding the turning vehicle varied slightly from that which the court gave, as discussed in the Division below, because Jibri himself requested similar charges on both of these topics, he may not now complain that the overlay of instructions on these two areas was confusing or improper. See generally Moody v. Dykes, 269 Ga. 217, 219-220 (3) (496 SE2d 907) (1998).

2. Jibri also contends that the court’s charge regarding turning vehicles was incorrect. Defendant Cook submitted a request to charge based on Greenlee v. Chastain, 112 Ga. App. 813, 815 (6) (146 SE2d 378) (1965), which the court read to the jury. The charge stated:

if you find by a preponderance of the evidence that the plaintiff did have a turn signal on, that is operating, and also an additional element of indicating to the defendant that the plaintiff was going to make a turn, then the defendant would have been authorized to assume that the plaintiff would make the turn and would have had the right to have entered the intersection.

(Emphasis supplied.)

Jibri objected to the charge, arguing that it was improper because it did not specify the “additional element of indicating to the defendant that the plaintiff was going to make a turn.” Jibri argued that the court should have given his requested charge which included language that defined the “additional element” as “slowing speed, extreme right-hand side of the road, etc.” See generally OCGA § 40-6-123.

Greenlee v. Chastain, 112 Ga. App. at 815 (6), involved a very similar vehicular accident which occurred after a car signaling a right turn did not actually turn right. The accident happened when a car which had been stopped at the intersection pulled into the intersection, expecting the signaling car to turn. In this context, this court addressed the question of whether the court properly instructed the jury, stating:

The charge did not authorize the jury to find that the plaintiff had yielded her superior right of way merely by the giving of the turn signal, for the charge included the requirement that the jury must find that the plaintiff approached the intersection with the “right turn signal on; that is operating, and indicated to the defendant that she was going to make a right turn.” Such charge requires an additional element, e.g. slowing speed, extreme right hand side of the road, etc. Had the plaintiff desired or felt that additional instructions defining how the plaintiff might have “indicated” to the defendant her intention to yield the right of way the assignment of error should be on such ground and not on the correct charge given.

Decided July 5, 2001.

Donald L. Jones, for appellant.

Downey & Cleveland, William C. Anderson, Kevin M. Salisbury, for appellee.

(Emphasis in original.) Id.

In this case, the trial court correctly instructed the jury that in addition to the turn signal, it was necessary that the jurors find that there was another indication of the plaintiff’s intention to turn. While the better practice would have been for the court to define for the jury the “additional element” which indicated that the plaintiff was going to make a right turn, there is no reversible error in the court’s failure to do so in this case. Significantly, Jibri has not carried his burden of showing how the court’s failure to delineate the “additional element” harmed him. And “[h]arm as well as error must be shown to warrant reversal. . . .” (Citation and punctuation omitted.) Wozniuk v. Kitchin, 229 Ga. App. 359, 361 (2) (494 SE2d 247) (1997). In this case, the court charged the jury properly with respect to the various applicable principles of law, and reversal on this basis is unwarranted.

3. To the extent that Jibri raises any other arguments, we also reject these contentions.

Judgment affirmed.

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