author: Mikell, Judge.

text:
    A01A0990.
    GORDON v. THE STATE.
    (550 SE2d 131)
   Mikell, Judge.

A jury acquitted Roderick Raysheik Gordon of four counts of armed robbery and convicted him of one count of aggravated assault. He appeals from the denial of his motion for new trial, contending that the trial court erred in refusing to declare a mistrial after the prosecutor cross-examined him concerning his silence before and after his arrest. We agree and reverse his conviction.

Evidence adduced at trial shows that on October 8,1998, Gordon entered a vehicle in Swainsboro occupied by four men: Jamie Heggs, Kenward Tywan Jackson, Twayne Holloway, and Trawaski Fields. The men testified that Gordon had flagged them down and asked for a ride home. Gordon testified that he was standing outside the Bama Club, a known drug hangout, when the men pulled up and requested his assistance in purchasing cocaine. Holloway and Fields testified that they rode by the club twice and picked up Gordon the second time. Heggs and Jackson, however, testified that they never made it to the club. The four witnesses claimed that drugs were never mentioned.

Heggs, Holloway, and Fields testified that they gave Gordon a ride to a neighborhood known as “the projects.” Holloway testified that when they reached the projects, an unidentified person approached the car, and Gordon spoke with him briefly. Heggs, Jackson, and Fields, on the other hand, claimed that Gordon exited the car and returned several minutes later. All the witnesses, including Gordon, testified that they resumed driving toward a different neighborhood. Fields, who was driving, testified that Heggs turned to Gordon and said: “ ‘[Y]ou got something, man, cause I seen you and that dude talking, he gave you something. . . .’ Then [Gordon] said, ‘no, I ain’t got no cigarette, ain’t got nothing but this Gatt for ya’ll. Ya’ll gone give me what ya’ll got.’ ” Fields testified that after he saw the gun, he “slammed the car in park,” took his money out of his pants, left it on the seat, and ran. Then he heard gunfire. Holloway, who had been sitting in the front seat next to Fields, testified that when he and Fields looked back, Heggs and Gordon were fighting over the gun. Shots were fired, and Holloway was hit in the arm. Holloway then lay down in the front seat until the gunfire ended. However, Holloway testified, when he rose to exit the car, Gordon shot him in the face. Holloway testified that Gordon was shooting from inside the car. Heggs, on the other hand, testified that Gordon was not in the car when he fired the gun. Heggs and Jackson, who were also in the backseat, testified that Gordon held the gun to Heggs’ head. Jackson ran and called 911.

Gordon admitted shooting Holloway but claimed he did so in self-defense. Gordon testified that the four men stopped him outside the Bama Club and asked where they could purchase cocaine. Gordon proceeded with them to the home of a drug supplier. The men remained in the car; the supplier came out but failed to negotiate a deal with' them. Gordon then asked to be taken home. At that point, Gordon testified, one of the men pulled out a gun and told Gordon to “give it up.” Gordon claimed he grabbed the gun, it fired, and then the other man released it. Gordon testified that all the others except Holloway fled. He claimed that Holloway “got out of the car and began to come towards me. And me, being scared for my life ... I fired. And that’s it.”

In his first two enumerations of error, Gordon contends that the trial court erred in permitting the state to cross-examine him regard- • ing his failure to explain his innocence to the police and in denying his motion for mistrial on this basis.

During cross-examination, the prosecutor questioned Gordon concerning the events leading up to his arrest. Gordon testified that on the morning after the incident, the police came to his house with the drug supplier, but the supplier failed to identify Gordon. The following colloquy ensued:

Q. Did you tell them who you were?
A. They didn’t ask me any questions.
Q. So you’re standing there with the police, you know they’re investigating this, and you don’t tell the police the truth?
A. I don’t say nothing at the time. .
Q. The police did, in fact, ultimately arrest you, didn’t they?
A. Yes, sir.
Q. And they took you in and asked you to give your side of the story, didn’t they?
A. Yes, sir, when I told them I had nothing to say without a lawyer present.
Q. And you didn’t say anything?
A. Didn’t say anything at all.
Q. You’re telling us that you are innocent and you didn’t tell a soul?

Defense counsel objected to the prosecutor’s inquiry into the defendant’s silence. In the presence of the jury, the court acknowledged Gordon’s right to remain silent. However, rather than excusing the jury, the court also permitted the prosecutor to argue that Gordon “already had an opportunity to talk with the police and tell this story that he’s now telling for the first time but didn’t tell it. And so he’s been given yet a second opportunity ... to tell the police.” Defense counsel then moved for a mistrial. The prosecutor continued to assert his right to question Gordon and to argue to the jury that Gordon “failed to tell the police his version of the story.” The trial court then informed the jury that Gordon was not required to make a statement to the police, either with or without an attorney present. However, the court also told the jury that the prosecutor “has the right to ask [Gordon] questions about his opportunity to tell the statement and what he said. That is admissible evidence.” This ruling, in effect, overruled the defense’s objection.

The trial court erred in overruling defense counsel’s objection to the prosecutor’s cross-examination concerning Gordon’s pre-arrest and post-arrest silence. “It has been held to be fundamentally unfair to simultaneously afford a suspect a constitutional right to silence following arrest and yet allow the implications of that silence to be used against him for either substantive or impeachment purposes. Doyle v. Ohio, 426 U. S. 610, 619 (96 SC 2240, 49 LE2d 91) [(1976)].” Gibbs v. State, 217 Ga. App. 614, 615 (458 SE2d 407) (1995). In Mallory v. State, 261 Ga. 625, 629-630 (5) (409 SE2d 839) (1991), our Supreme Court extended the holding in Doyle to prohibit comment upon a defendant’s silence “even where the defendant has not received Miranda warnings and where he takes the stand in his own defense.” Mallory prohibits “any testimony touching upon the silence of an accused, because the prejudicial impact of such testimony is far greater than its minimal probative value.” (Punctuation omitted.) Wallace v. State, 272 Ga. 501, 503 (2) (530 SE2d 721) (2000).

Mallory established a hard and fast rule, although federal constitutional precedents did not require such a strict approach. See, e.g., Fletcher v. Weir, 455 U. S. 603 (102 SC 1309, 71 LE2d 490) (1982); Jenkins v. Anderson, 447 U. S. 231 (100 SC 2124, 65 LE2d 86) (1980). Contrary to the state’s contention, our Supreme Court’s decision in Chapman v. State, 263 Ga. 393 (435 SE2d 202) (1993), did not establish an exception to Mallory. The defendant in Chapman was tried eight months prior to the promulgation of the Mallory rule on December 26, 1991. Accordingly, the rule enunciated therein, prohibiting questions and comments concerning a defendant’s silence and obliging a trial court to sustain objections to them, was held inapplicable in Chapman. 263 Ga. at 394, n. 2.

Similarly, contrary to the state’s contention, this Court’s decision in James v. State, 230 Ga. App. 615 (497 SE2d 389) (1998), created no exception to the Mallory rule. James holds that a mistrial, or a reversal of a conviction, is not always required when a jury has heard improper evidence, especially when no objection was made. Finally, Mullinax v. State, 242 Ga. App. 561, 562 (1) (530 SE2d 255) (2000), and Shaheed v. State, 245 Ga. App. 754 (538 SE2d 823) (2000), are inapposite. Those decisions held that evidence of pre-arrest “silence” in the form of failure to produce documentary proof of ownership was admissible as part of the res gestae in a trial for theft by receiving stolen property. Here, therefore, the trial court erred in overruling defense counsel’s objection to the prosecutor’s questions on the issue of Gordon’s silence. Cromwell v. State, 218 Ga. App. 481, 482 (1) (462 SE2d 388) (1995).

Next, we must consider whether the trial court erred in refusing to grant a mistrial. “Whether a mistrial is necessary to protect the defendant’s right to a fair trial is a decision largely within the discretion of the trial court.” Burton v. State, 225 Ga. App. 217, 218 (2) (483 SE2d 658) (1997). “The true focus of this court’s inquiry must be whether the testimony produced a trial which was so fundamentally unfair as to deny defendant due process.” (Citation and punctuation omitted.) Gibbs, supra at 615.

In the case sub judice, as we held in Gibbs, supra, “it would be naive to suggest that the evidence concerning defendant’s silence did not weaken defendant’s position in the minds of the jurors.” Id. at 616. The prosecutor repeatedly stressed Gordon’s failure to explain the events leading up to his arrest. The court told the jury that the prosecutor had a right to ask Gordon questions about his failure to make a statement. The questions and the ruling impacted Gordon’s credibility and, consequently, affected the success or failure of his affirmative defense. Moreover, the evidence was not overwhelming, so we cannot say that the errors were harmless. Cf. Barnes v. State, 269 Ga. 345, 352 (12) (496 SE2d 674) (1998). The testimony of the witnesses was contradictory in certain aspects, contributing to the jury’s decision to acquit Gordon of the four armed robbery counts in the indictment. Under these circumstances, Gordon must be afforded a new trial.

Judgment reversed.

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

Decided June 13, 2001.

Tapley & Warnock, Charles M. Warnock, Jr., for appellant.

Steven Askew, District Attorney, for appellee.

       “Gatt” is a colloquial expression for a handgun.

       Two judges concurred specially in James, ostensibly rendering the opinion physical precedent only. See Court of Appeals Rule 33 (a).

       See also Boykin v. State, 240 Ga. App. 402, 404 (1) (523 SE2d 605) (1999), where we held that in a trial for burglary, the defendant’s failure to explain her presence in the store was admissible as part of the res gestae.

       In Gibbs, we reversed a conviction for attempted armed robbery based on a police officer’s impermissible testimony that the defendant refused to give a statement after he was arrested.

        James, supra, does not require a contrary result. Its binding effect is questionable, as it is weakened by two special concurrences and relies on precedents which predate Mallory.


source: Caselaw Access Project

license: Public Domain

text:
    A01A1030.
    MILLER v. THE STATE.
    (550 SE2d 134)
   Mikell, Judge.

After a bench trial, William Roy Miller was convicted of driving under the influence of alcohol to the extent that he was a less safe driver. Miller appeals his conviction, arguing that the trial court erroneously admitted his prior per se DUI conviction. For the reasons stated below, we affirm.

On August 4, 1999, the prosecution filed an accusation charging Miller with driving under the influence to the extent that it was less safe to drive. On January 3, 2000, the prosecution filed its motion and notice of intent to present evidence of a similar transaction against Miller to establish his bent of mind and course of conduct. Attached to the motion were the police reports, traffic citations, arrest affidavits, plea proceeding record, and sentencing documents, all of which arose from an August 22,1996 per se DUI charge against Miller. At the conclusion of the similar transaction pretrial hearing, the trial court granted the motion.

During Miller’s bench trial on November 14, 2000, the state introduced the live testimony of Officer G. B. Jones, who arrested Miller for the 1996 DUI, and the plea proceeding record and sentence sheet from that charge. On appeal, Miller argues that the similar transaction should not have been admitted because it was prejudicial, irrelevant, and introduced improperly.

1. “A trial court’s determination that similar transaction evidence is admissible will not be disturbed absent an abuse of discretion.” Since the state made the three affirmative showings required by Williams v. State to introduce the similar transaction, we find that the trial court did not abuse its discretion.

The state must first show that it seeks to introduce the evidence for an appropriate purpose, such as illustrating appellant’s identity, intent, course of conduct, and bent of mind. Here, the prosecution stated that by introducing Miller’s prior DUI offense, it sought to show his bent of mind and course of conduct, which are appropriate purposes in a DUI case.

Next, the state must affirmatively show that the accused committed the independent act. Miller’s argument that Officer Jones did not positively identify him as the perpetrator of the 1996 DUI and that the documentary evidence did not establish his identity is without merit. “Even where the defendant is not identified positively as the perpetrator of the independent crime, circumstantial proof may be used to establish his connection to it.” When Officer Jones was asked to identify the person who was driving the car he stopped in 1996, he replied, “It’s been so long, I couldn’t pick him out. But I believe it’s the gentleman in the gray suit.” In addition, “during the Williams hearing, [Miller] did not dispute that he was the perpetrator of the [prior] offense.” Accordingly, the evidence was sufficient to enable the trial judge to conclude that Miller committed the prior act.

The last affirmative showing the state must make is that there is a sufficient connection or similarity between the independent offense or act and the crime charged so that proof of the former tends to prove the latter. In Christian v. State, a prior per se DUI offense was admitted in a less safe DUI case. There, we held that “[e]vidence of a prior DUI offense, regardless of the circumstances surrounding its commission, is logically connected with a pending DUI charge as it is relevant to establish that the perpetrator has the bent of mind to get behind the wheel of a vehicle when it is less safe for him to do so.” Therefore, Miller’s argument that the similar transaction should not have been admitted because it was irrelevant fails.

2. Miller next contends that his conviction should be reversed because the prosecution improperly introduced the sentence sheet and his blood alcohol content from the prior offense. This contention also fails.

While we agree that “the better method would be not to admit the sentence in a prior offense where a similar transaction is involved,” we find that this error was harmless. Since this was a bench trial, there was no jury that would have been affected by the sentence. “[I]t is presumed that the judge, as the trier of fact, is able to distinguish between competent and incompetent evidence and consider only that evidence which is admissible.” Similarly, it is presumed that the trial judge is capable of weighing evidence without being swayed by its potentially inflammatory nature. The admission of the sentence sheet does not warrant reversal on appeal because Miller cannot show both error and harm.

Pretermitting whether the admission of evidence regarding Miller’s blood alcohol content from the prior offense was erroneous, Miller has the burden to show error affirmatively by the record, and he has not done so. The scant record includes Officer Jones’ testimony, three exhibits, and the court’s ruling. The exhibits do not contain Miller’s blood alcohol content. Additionally, the state did not elicit Miller’s blood alcohol content of 0.139 from the prior offense; Miller’s counsel did. “A party cannot reap the benefit of any error caused or aided by his own trial tactics, procedure or conduct.” Finally, even when the prosecution asked Officer Jones whether Miller’s breath test result in 1996 was greater than 0.094, Miller did not object. “A defendant must object to the alleged impropriety at the time it occurs in order to afford the trial court the opportunity to take remedial action.” Miller’s failure to do so waives the error.

3. Miller’s final argument is that the similar transaction should not have been admitted for lack of proper foundation, because the prosecution did not introduce documentary evidence, such as the breath test slip and the officer’s permit to operate the breath machine, and testimonial evidence that the machine was in proper working order. This specific information about Miller’s blood alcohol content from the prior offense was “irrelevant to demonstrate any similarity or lack thereof with regard to the present offense for which appellant was prosecuted, DUI — less safe driver, wherein a specific blood alcohol content is unnecessary to prove the offense.” Further, the information was also inapposite because the prior offense was introduced solely to show Miller’s bent of mind and course of conduct. Accordingly, this argument also lacks merit.

Decided June 13, 2001

McDonald & Cody, Douglas W. McDonald, Jr., for appellant.

Gerald N. Blaney, Jr., Solicitor-General, Stephen A. Fern, Assistant Solicitor-General, for appellee.

Judgment affirmed.

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

       OCGA § 40-6-391 (a) (1).

        Brooks v. State, 230 Ga. App. 846 (1) (498 SE2d 139) (1998).

       261 Ga. 640 (409 SE2d 649) (1991).

        Davis v. State, 244 Ga. App. 708, 711 (3) (536 SE2d 596) (2000).

       See Kirkland v. State, 206 Ga. App. 27, 28 (3) (424 SE2d 638) (1992).

        Davis, supra.

       (Citations and punctuation omitted.) Druitt v. State, 225 Ga. App. 150, 151 (1) (483 SE2d 117) (1997).

       Id.

        Davis, supra.

       244 Ga. App. 713 (536 SE2d 600) (2000).

       Id. at 714 (2).

       (Citations and punctuation omitted.) Weaver v. State, 206 Ga. App. 560, 561 (3) (426 SE2d 41) (1992).

       (Citation and punctuation omitted.) Corsini v. State, 238 Ga. App. 383, 385 (2) (519 SE2d 39) (1999).

        Evans v. State, 233 Ga. App. 879, 881 (3) (506 SE2d 169) (1998).

        Ellis v. State, 235 Ga. App. 837, 838 (4) (510 SE2d 127) (1998).

       See Marshall v. State, 239 Ga. 101 (236 SE2d 58) (1977).

       (Citations and punctuation omitted.) Roberson v. State, 228 Ga. App. 416, 420 (3) (491 SE2d 864) (1997).

       (Citation omitted.) Miller v. State, 267 Ga. 92 (2) (475 SE2d 610) (1996).

        Guild v. State, 234 Ga. App. 862, 868 (5) (508 SE2d 231) (1998).

        Druitt, supra at 152 (1).


text:
    A01A1175.
    DUVALL v. THE STATE.
    (550 SE2d 479)
   Mikell, Judge.

A Henry County jury found Sean Pierre Duvall guilty of being an habitual traffic violator, driving under the influence to the extent that it was less safe to drive, and driving with an unlawful blood alcohol content. The trial court merged the less safe DUI conviction into the per se DUI conviction for sentencing purposes. Duvall appeals, claiming that the evidence was insufficient to support his convictions and that the police lacked reasonable grounds to invoke his implied consent to chemical testing under OCGA § 40-5-55 (a). We disagree and affirm.

On appeal from a criminal conviction, the defendant no longer enjoys the presumption of innocence, and we view the evidence in the light most favorable to the jury’s verdict. So viewed, the evidence shows that on October 12, 1997, police officer Joseph Wolford was performing his duties as a part-time security guard for the Shoney’s Inn motel in Stockbridge. At approximately 4:30 a.m., Wofford saw an automobile enter the motel parking lot and pull into a parking space. Duvall exited the car from the driver’s side, and the officer saw no other persons in the car. Duvall entered the motel lobby, and Wofford smelled a strong odor of alcohol coming from Duvall’s person. He asked Duvall if he had been drinking. Duvall denied it, although he admitted he had been “partying.” At trial, Duvall admitted he was lying to Wofford when he told the officer that he had not been drinking.

Other than the strong odor of alcohol, the officer testified that there was nothing about Duvall’s demeanor that indicated that he was intoxicated. Wofford asked Duvall for his driver’s license, but Duvall was unable to comply. When Wofford called Duvall’s name and date of birth into police headquarters, he was informed that Duvall’s license had been revoked and that Duvall was subject to outstanding arrest warrants.

Wofford placed Duvall under arrest. Duvall said that his friend had been driving. The men walked to the car where an unconscious woman lay covered in vomit in the fully reclined passenger seat. Evidence was presented that the woman had been driving earlier in the evening. Police took Duvall to the Henry County Sheriff’s Department, where he was informed of his implied consent rights and was administered breath tests indicating a blood alcohol content of 0.122 and 0.113 grams.

1. The evidence must be sufficient to allow a reasonable trier of fact to find Duvall guilty of the offenses for which he was convicted beyond a reasonable doubt. Duvall claims that all of his convictions depended upon a showing that he was driving, and that Officer Wofford did not see him driving. Duvall argues that because his convictions were based on circumstantial evidence that he was driving, the evidence must also be sufficient to exclude every reasonable hypothesis other than his guilt, in this case, that his companion had been driving rather than Duvall. We find the evidence sufficient to exclude Duvall’s claim that the woman was driving. Testimony at trial indicated that at the time the car arrived at the motel, the woman was incapacitated, and that Duvall exited the car from the driver’s side after it had come to a stop in the parking lot.

2. Duvall next claims that the police had no reasonable grounds to invoke the implied consent procedure and test his blood alcohol content. Relying on State v. Burke, he argues that because he exhibited no signs of inebriation and was arrested on grounds other than suspicion of DUI, in this case outstanding warrants, no reasonable basis existed to subject him to a blood alcohol test. We disagree.

The police may begin the chemical testing procedure so long as the suspect is “under arrest for any offense arising out of the acts concerning which the officer has at least reasonable grounds to believe that a violation of OCGA § 40-6-391 occurred.” In this instance, the arresting officer knew that Duvall was driving with a revoked license. Thus, Duvall was arrested in connection with this driving-related offense as well as the outstanding warrants. Although Burke makes it clear that driving with a suspended license alone is not grounds for invoking the implied consent law, Burke is distinguishable because in that case the defendant displayed no outward sign of possible intoxication, including no odor of alcohol. Here, however, the officer identified a strong odor of alcohol on Duvall’s person.

Decided June 13, 2001.

Virgil L. Brown & Associates, Virgil L. Brown, Eric D. Hearn, Bentley C. Adams III, Larkin M. Lee, for appellant.

Tommy K. Floyd, District Attorney, James L. Wright III, Assistant District Attorney, for appellee.

We find Clay v. State, upon which Duvall also relies, to be inapposite. Clay stands for the proposition that a “less safe” DUI conviction cannot be supported solely on evidence that the defendant smelled of alcohol. Here, the strong odor of alcohol on Duvall’s person was part of the state’s justification for commencing the implied consent testing procedure. The results of the tests supported Duvall’s per se DUI conviction.

3. Finally, Duvall argues that the evidence was insufficient to convict him for driving under the influence to the extent he was a less safe driver. However, we need not address this enumeration. The trial court merged this count into the OCGA § 40-6-391 (a) (5) conviction for driving with an unlawful blood alcohol content. The only DUI sentence was entered on that count. We need not consider an enumeration of error which addresses the sufficiency of the evidence to convict on a count on which the trial court failed to enter judgment.

Judgment affirmed.

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

        Grant v. State, 195 Ga. App. 463, 464 (393 SE2d 737) (1990).

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

       OCGA § 24-4-6; see Wiley v. State, 238 Ga. App. 334 (2) (519 SE2d 10) (1999).

       230 Ga. App. 392 (496 SE2d 755) (1998).

       (Punctuation omitted.) Id. at 394.

       Id. at 393.

       193 Ga. App. 377, 378-379 (2) (387 SE2d 644) (1989).

       OCGA § 40-5-55 (a); see Davis v. State, 187 Ga. App. 517 (370 SE2d 779) (1988).

        Carter v. State, 269 Ga. 420, 422 (2) (499 SE2d 63) (1998); Sanders v. State, 212 Ga. App. 832-833 (2) (442 SE2d 923) (1994).


text:
    A01A1197.
    RAGAN v. THE STATE.
    (550 SE2d 476)
   Mikell, Judge.

Christopher Ragan was charged with aggravated child molestation and aggravated sexual battery following an incident involving his girlfriend’s one-year-old son. The jury convicted Ragan of aggravated sexual battery for intentionally penetrating the baby’s anus with a foreign object. He was found not guilty of aggravated child molestation. Ragan appeals his conviction. We affirm.

Viewed in the light most favorable to the jury’s verdict, the evidence shows that in October 1999, Ragan’s teenaged girlfriend, Michelle Felker, and her baby, J. F., moved into the home in which Ragan resided with his parents. On the afternoon of December 14, 1999, Brian Giese, a friend of Ragan, visited their home. Shortly after Giese’s arrival, Felker left with Ragan’s mother, Patty Ragan, to pay a bill. Giese testified that he departed a few minutes later to watch his girlfriend’s soccer practice. According to Giese, when he left, the baby was sleeping on Ragan’s bed, whére Felker put him before she left.

When Felker and Mrs. Ragan returned, the baby was screaming, and Ragan was changing his diaper. Mrs. Ragan entered the bedroom first and observed that “the little baby’s bottom . . . was blue around the anus, and it . . . had blood in the diaper.” Felker also testified that the baby’s rectum was torn and bleeding. When Felker and Mrs. Ragan asked what had happened, Ragan initially told them that he thought J. F. had fallen off the bed while Ragan was outside smoking a cigarette. Felker and Mrs. Ragan took the baby to the hospital.

Dr. Mark Wittmer, the first doctor who treated J. F. that day, testified that the baby had been injured by “blunt force instrumentation insertion.” Dr. Wittmer testified at length about J. F.’s injuries and concluded that they were inconsistent with falling off a bed onto the floor. Dr. Wittmer further testified that it was apparent that someone held the baby down while inserting a blunt object into his rectum, that the baby was in a great deal of pain and very frightened, and that the injuries were considered life threatening. The doctor also identified a number of photographs that depicted J. F.’s injuries.

Dr. Cullen Richardson was called to perform emergency surgery on J. F. due to the severity of the injuries. Because of the extensive tearing of the baby’s rectum, a colostomy was required. Dr. Richardson testified that it would have required multiple insertions of an object to inflict the injuries suffered by J. F., and that such internal injuries could not have been caused by falling onto the floor. Dr. Richardson also testified that the injuries were consistent with the insertion of a dildo owned by Ragan and admitted into evidence.

Officer Dwayne Higginbotham of the Albany Police Department testified that he received a call to report to Ragan’s home at approximately 4:29 that afternoon. Officer Higginbotham testified that when he arrived, Ragan told him that the baby had fallen off the bed onto a sewing machine. At trial, however, Ragan denied telling the officer that J. F. fell on the sewing machine and admitted that it was not even located in the room where the baby was sleeping. Officer Higginbotham placed Ragan under arrest.

Ragan was taken to the police station, where he agreed to provide a statement. Ragan’s written statement, which was admitted at trial, contained a third explanation for J. F.’s injuries. According to Ragan’s statement, he was changing the baby’s diaper using Vaseline, when J. F. “jerked,” and Ragan’s fingers went into the baby’s rectum. The statement continued: “Then I put a diaper on him. Then he fell off the bed and I give [sic] him a cookie. He did not quit crying and I checked his diaper. And I see dodo [sic] and blood.” Dr. Wittmer testified at trial that it was impossible for a baby to jerk so violently that a person’s fingers would accidentally penetrate the rectum. Furthermore, Dr. Richardson testified that J. F.’s injuries could not have been caused by someone simply inserting his fingers into the baby’s rectum.

At trial, Felker testified that she and Ragan practiced anal sex, that Ragan used a dildo to penetrate her, that Ragan inserted a dildo into his own rectum, and that Ragan owned and watched a pornographic video entitled “Bottom Dwellers,” which depicted “anal sex and anal pleasure.”

1. In the first two errors asserted by Ragan, he contends that the trial court erred in allowing evidence of his use of a dildo, his participation in acts of anal penetration, and his ownership of a pornographic video. We reject this argument.

We have consistently held in cases involving sex crimes against children that sexually explicit material has a tendency to demonstrate “a bent of mind toward similar sexual activity.” (Punctuation omitted.) Burris v. State, 204 Ga. App. 806, 808 (1) (420 SE2d 582) (1992). Evidence of sexual material is admissible if it shows a defendant’s “lustful disposition toward the sexual activity with which he is charged or his bent of mind to engage in that activity.” Simpson v. State, 271 Ga. 772, 774 (1) (523 SE2d 320) (1999). Clearly, the pornographic video and the behavior described in the case sub judice were sufficiently linked to the behavior with which Ragan was charged, namely, the anal penetration of J. F. Accordingly, the trial court properly allowed the evidence.

2. Next, Ragan contends that the court erred in excluding evidence of an alleged appearance by Felker on an episode of “The Ricki Lake Show” concerning teenaged children who physically abused their parents. We disagree.

It is well settled that the admission of evidence is a matter which rests largely within the sound discretion of the trial judge. Hudson v. State, 273 Ga. 124, 126 (2) (538 SE2d 751) (2000). While Georgia law normally favors the admission of any relevant evidence, regardless of how slight its probative value may be, “[q]uestions of relevance are generally matters within the trial court’s discretion, and it is not error to exclude evidence that is not related to an issue at trial.” American Assn. of Cab Cos. v. Olukoya, 233 Ga. App. 731, 733 (1) (505 SE2d 761) (1998).

At trial, Ragan argued that the evidence of Felker’s appearance on the talk show was relevant to show the type of household in which she was raising J. F. However, the record showed that Felker and J. F. were residing in the home of Ragan’s parents at the time of the incident. Thus, the trial court properly concluded that any information concerning Felker’s prior living arrangements was irrelevant. See Sleeth v. State, 197 Ga. App. 349, 350 (3) (398 SE2d 298) (1990).

Ragan also argued that Felker’s character was somehow probative of Ragan’s guilt or innocence. This argument is without merit. Ragan contended at trial that his friend Giese may have attacked the baby; however, Ragan has never alleged that Felker may have harmed J. F. in any way. Therefore, Felker’s character was not relevant to Ragan’s guilt, and the evidence was properly excluded. See Harwood v. State, 195 Ga. App. 465, 466-467 (2) (394 SE2d 109) (1990).

3. Finally, Ragan argues that his conviction was “legally unsustainable” because it was based on circumstantial evidence. Essentially, Ragan contends that the evidence did not exclude his hypothesis that Giese actually injured J. F. Again, we reject Ragan’s argument.

OCGA § 24-4-6 provides that “[t]o warrant a conviction on circumstantial evidence, the proved facts shall not only be consistent with the hypothesis of guilt, but shall exclude every other reasonable hypothesis save that of the guilt of the accused.” The Supreme Court has held that “Questions as to the reasonableness of hypotheses are generally to be decided by the jury which heard the evidence.” Foster v. State, 273 Ga. 34, 35 (1) (537 SE2d 659) (2000). Likewise, we have held that “[w]here the defendant offers an explanation of circumstantial facts or an alternative hypothesis of events, the reasonableness of that explanation is for the factfinder.” Dodson v. State, 244 Ga. App. 94, 95 (534 SE2d 815) (2000). Where a jury has found that the evidence, though circumstantial, was sufficient to exclude every reasonable hypothesis except that of guilt, its findings will not be disturbed unless the verdict is unsupportable as a matter of law. Foster, supra.

OCGA § 16-6-22.2 (b) provides that “[a] person commits the offense of aggravated sexual battery when he intentionally penetrates with a foreign object the . . . anus of another person without the consent of that person.” Viewed in the light most favorable to the verdict, the evidence adduced at trial provided ample support for the jury’s determination that Ragan was guilty of the offense charged. Specifically, the evidence showed that Ragan possessed a bent of mind toward the practice of anal penetration; that the victim had a foreign object repeatedly and forcibly inserted into his anus; that J. F. suffered the injuries while in Ragan’s care; that Ragan owned a dildo consistent in size with the injuries to the baby; and that, when asked what happened to the baby, Ragan gave three conflicting explanations. The evidence further showed that Ragan threw the baby’s bloody diaper in the trash; that he began stripping the sheets from the bed where the baby had been sleeping before Felker, Mrs. Ragan, and the baby left for the hospital; and that the police discovered the sheets in the washing machine when they arrived at Ragan’s home.

Decided June 13, 2001.

John P. Cannon, for appellant.

Kenneth B. Hodges III, District Attorney, Kathryn O. Fallin, Assistant District Attorney, for appellee.

Ragan provided explanations for some of the circumstantial evidence against him; however, the jury is not obligated to accept a defendant’s explanation of circumstantial facts. Davis v. State, 244 Ga. App. 670, 671 (536 SE2d 563) (2000). Because the jury was authorized by the evidence to find that every reasonable hypothesis except Ragan’s guilt was excluded, we affirm the conviction.

Judgment affirmed.

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

       That charge alleged that Ragan inserted his fingers into the child’s rectum.


text:
    A01A1233.
    GRIFFIN et al. v. STATE OF GEORGIA.
    (550 SE2d 138)
   Mikell, Judge.

In this civil forfeiture action, James Willis Griffin III and James Willis Griffin IV (the “claimants”) appeal the trial court’s judgment ordering that the seized property at issue, a vehicle and $14,056.30 in U. S. currency, be forfeited to the state. The claimants contend that the court erred in denying their motion to dismiss because the state failed to conduct a timely hearing and because service of process was legally deficient. We agree that the hearing was untimely and reverse the court’s judgment.

The property at issue was seized by the Atlanta Police Department on January 7, 2000, when claimant Griffin IV was arrested and charged with three controlled substance offenses. On March 6, 2000, the state filed a complaint for forfeiture of the seized property. After claimant Griffin IV could not be found, the complaint was served by publication on May 24 and 31, 2000. The claimants filed an answer on May 31, 2000.

The first hearing in this case was scheduled for July 14, 2000; however, on July 11, the court granted the state’s motion for a continuance due to the unavailability of a key witness. A second hearing was scheduled for August 30, 2000, but the court granted another continuance because the state’s witness again was unavailable to testify. The court scheduled a third hearing on November 1, 2000, 63 days after the second continuance was granted on August 30. The claimants filed a motion to dismiss the action based on the state’s failure to conduct a hearing within 60 days as required by OCGA § 16-13-49 (o) (5) and Blanks v. State of Ga., 240 Ga. App. 175, 178 (1) (522 SE2d 770) (1999). The court denied the motion, conducted a hearing on November 1, and entered a final judgment of forfeiture on November 14, 2000. This appeal followed.

1. In their first two enumerated errors, the claimants argue that the court should have dismissed the complaint based on the state’s failure to conduct a timely hearing. OCGA § 16-13-49 (o) (5) provides that in a civil forfeiture action, when a timely and sufficient answer has been filed, “a hearing must be held within 60 days after service of the complaint unless continued for good cause.” See also State of Ga. v. Carter, 244 Ga. App. 560, 561 (536 SE2d 230) (2000).

As a preliminary matter, we do not find that the court’s grants of the two continuances were abuses of discretion. In fact, we held in Blanks, supra at 177, that the unavailability of a witness provided “good cause” for a continuance. Therefore, we reject the claimants’ argument that the court continued the hearings in the absence of good cause.

However, it is undisputed that the trial court failed to conduct the subsequent hearing within 60 days of the last continuance. In State v. Henderson, 263 Ga. 508, 510-511 (436 SE2d 209) (1993), the Supreme Court held that the 60-day requirement of OCGA § 16-13-49 (o) (5) was mandatory. The Court reasoned that such a mandatory construction “is consistent with the apparent purpose of that paragraph, which is to ensure a speedy resolution of contested forfeiture cases in the courts, as well as a speedy resolution of property rights.” Id. at 511.

In Blanks, supra, we relied on Henderson to reverse a forfeiture judgment because the hearing was untimely, and we unequivocally held that “the outermost limits of a continuance would be another 60-day period before either the matter is heard or another continuance is granted.” Blanks, supra at 178 (1). Likewise, in Carter, supra, we affirmed a trial court’s dismissal of a forfeiture action because a hearing had not been conducted within 60 days of the continuance.

Similarly, in the case sub judice, a hearing was not held within 60 days of the last continuance, as required by OCGA § 16-13-49 (o) (5) and Blanks. The state argues that the claimants somehow waived their right to the speedy resolution of their property rights by not objecting when the hearing was scheduled on a date outside the mandatory 60-day period. The state relies on Turner v. State of Ga., 234 Ga. App. 878, 879 (508 SE2d 223) (1998); however, that case is distinguishable. Specifically, in Turner, the claimant requested the continuance and agreed to schedule the hearing on a date outside the 60-day period. In the present case, the state moved for a continuance on two occasions while the claimants stood ready to litigate their property rights.

Because the hearing was not conducted within the requisite 60-day period, we conclude that the trial court erred in denying the claimants’ motion to dismiss. Henderson and Blanks clearly require the state to adhere strictly to the requirements of OCGA § 16-13-49 (o) (5). Accordingly, the judgment of forfeiture must be reversed.

2. However, we reject the claimants’ argument that the court should have granted their motion to dismiss based on deficient service of process under OCGA § 16-13-49 (h) (1), (2), and (3). Essentially, they contend that the state was required to perfect service of the complaint of forfeiture within 60 days of the seizure of the property. We disagree.

OCGA § 16-13-49 (h) provides as follows:

(1) When property is seized pursuant to this article, the sheriff, drug agent, or law enforcement officer seizing the same shall report the fact of seizure, in writing, within 20 days thereof to the district attorney of the judicial circuit having jurisdiction in the county where the seizure was made. (2) Within 60 days from the date of seizure, a complaint for forfeiture shall be initiated as provided for in subsection ... (o)... of this Code section. (3) If the state fails to initiate forfeiture proceedings against property seized for forfeiture by notice of pending forfeiture within the time limits specified in paragraphs (1) and (2) of this subsection, the property must be released on the request of an owner or interest holder, pending further proceedings pursuant to this Code section, unless the property is being held as evidence.

It is undisputed that the state filed the complaint for forfeiture within 60 days of the seizure of the property, as required by OCGA § 16-13-49 (h) (2). There is no requirement under the statute that the complaint be served within that 60-day period. In fact, in Owens v. State of Ga., 241 Ga. App. 140 (525 SE2d 150) (1999), we affirmed the entry of default judgment in a forfeiture action when the claimant was served in open court 119 days after the initial seizure. “The record shows that the State commenced the forfeiture proceedings within 60 days of the seizure. Under OCGA § 16-13-49 (h) (2), the proceedings were timely.” Id. at 140 (2). Accordingly, the trial court did not err in denying the claimants’ motion to dismiss insofar as it alleged that service was deficient.

Decided June 13, 2001.

Thomas J. Ford III, for appellants.

Paul L. Howard, Jr., District Attorney, George W. K. Snyder, Jr., Gary S. Hulsey, Assistant District Attorneys, for appellee.

Judgment reversed.

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

       The claimants state in their appellate brief that the criminal action was subsequently dead docketed; however, there is no citation to the record. In fact, we note that the claimants have failed to provide record citations to support the majority of their “Statement of Facts,” as required by Court of Appeals Rule 27 (a) (1).


author: Phipps, Judge.

text:
    A01A1421.
    In the Interest of T. F., a child.
    (550 SE2d 473)
   Phipps, Judge.

Appellant, the mother of a five-year-old girl, appeals an order of the Juvenile Court of Pulaski County terminating her parental rights. She challenges the sufficiency of the evidence to support certain of the court’s findings and the court’s refusal to place the child with other family members. Because the evidence is sufficient to support the court’s termination of her parental rights, and no abuse of discretion appears in the court’s placement of the child, we affirm.

The evidence introduced at the termination hearing showed that T. F. was bom on February 24, 1996. She lived with her parents until the Pulaski County Department of Family & Children Services (DFACS) took her into protective custody on September 11, 1997, as a result of her father’s physical abuse of her mother, illegal dmg use by both parents in T. F.’s presence, and inadequate child supervision. T. F.’s mother was placed in a shelter where she was to receive counseling for domestic violence and treatment for drug abuse but was discharged in short order for violation of rules. As a result, T. F. was placed in foster care with her maternal uncle and his wife approximately one week after being taken into protective custody.

T. F.’s mother has been convicted of forgery in the first degree, theft by conversion, possession of marijuana, and making a false statement against a law enforcement officer. She was imprisoned on October 3, 1997, several weeks after T. F. was taken into protective custody. Although she was released on parole in July 1998, she was arrested for possession of cocaine about three weeks later, her parole was revoked, and she was returned to prison. She has since been transferred to a transitional center. She is eligible for parole in June 2002, but cannot be reunited with T. F. until she participates in a work release program for eight months. Due in large part to her continued incarceration, she has failed to comply with reunification case plans requiring her to submit to alcohol and drug assessments and to enter inpatient drug treatment programs. She testified that in prison, however, she has taken part in substance abuse and parenting classes and that she has undergone and passed drug tests administered to her within 18 months of the termination hearing. At the hearing, the mother insisted that she is a changed person and made a heartfelt plea to keep her child because she has had a hysterectomy and cannot have any more children.

T. F.’s father voluntarily surrendered his parental rights. The guardian ad litem recommended that the mother’s parental rights be terminated because of her history of drug abuse, her incarceration during most of T. F.’s life, and the uncertain prospects for her reunification with T. F. The juvenile court terminated the mother’s parental rights after finding that T. F. is deprived, that lack of proper parental care or control is the cause of the deprivation, and that such cause of deprivation is likely to continue and will cause or is likely to cause serious harm to her. The court also found that there is a high probability that serious harm will occur to T. F. if she is returned to the care of her mother.

Family members with whom the child might have been placed included her maternal uncle and his wife, her maternal grandfather, and her maternal aunt and her husband. The evidence, however, showed that although the grandfather loves T. F. and regularly visits her, he is 75 years old, lives alone, and has numerous health problems that render him unable to take care of her. After conducting a home evaluation, DFACS recommended that T. F. not be placed with him. The maternal aunt and her husband are not regularly employed, rely on public assistance payments, already have three small children, and have criminal backgrounds as well as a history of domestic violence requiring law enforcement intervention. As a result, two home evaluations resulted in recommendations that T. F. not be placed with them. Although T. F. received good care while in the custody of her maternal uncle and his wife, he took the child to live with another relative in April 1999 because he decided that he does not want to adopt her. The juvenile court found that there is no suitable family member with whom T. F. can be placed and ordered that she be committed to the custody of DFACS for the purpose of placing her for adoption.

1. Appellant challenges the sufficiency of the evidence to support findings that she is presently unfit and that serious harm will occur to T. F. if she is returned to her care.

OCGA § 15-11-94 (a) provides the two-step procedure for the terruination of parental rights. The first step requires a finding of parental misconduct or inability, which requires clear and convincing evidence that: (1) the child is deprived; (2) lack of proper parental care or control is the cause of the deprivation; (3) such cause of deprivation is likely to continue; and (4) the continued deprivation will cause or is likely to cause serious physical, mental, emotional, or moral harm to the child. If these four factors are satisfied, the court must then determine whether termination of parental rights is in the child’s best interest, considering physical, mental, emotional, and moral condition and needs, including the need for a secure and stable home. In determining whether the child is without proper parental care and control, the court shall consider whether the parent has a history of excessive use or chronic unrehabilitated abuse of intoxicating liquors, narcotic or dangerous drugs, or controlled substances and whether the parent has a conviction of a felony and imprisonment therefor which has a demonstrable negative effect on the quality of the parent-child relationship.

The appropriate standard of appellate review in a case where a parent’s rights to his child have been severed is whether after reviewing the evidence in the light most favorable to the appellee, any rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights to custody have been lost. The factfinding and weighing of evidence [are] to be done in the trial court under the clear and convincing test. The reviewing court is to defer to the lower court in the area of factfinding and should affirm unless the appellate standard of review is not met.

“Evidence of past unfitness, standing alone, is insufficient to terminate the rights of a parent in her natural child; clear and convincing evidence of present unfitness is required.”

(a) Appellant bases her argument that she is not presently unfit on the fact that she has been drug-free for the past 18 months and has attended all substance abuse and parenting classes that the prison has offered. Although appellant is to be commended for these actions, she has not proved her ability to remain sober and care for her child in an uncontrolled environment. She was given one opportunity to do so when admitted into the domestic violence shelter. She failed. She was given another opportunity when paroled from prison. Again, she failed. As a result, she has been incarcerated during most of T. F.’s life, and her incarceration continues with no firm parole date having been set. Although appellant testified about her participation in substance abuse and parenting programs, she presented no testimony from any of her counselors assessing her performance in these programs. Under these circumstances, the court was authorized to determine, based on a consideration of appellant’s past conduct, that the conditions giving rise to T. F.’s deprivation are likely to continue and that discontinuation of reunification efforts and termination of the mother’s parental rights are in the child’s best interest.

Decided June 13, 2001

Walter E. Baker, for appellant.

Thurbert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen S. Nelson, Laura W. Hyman, Assistant Attorneys General, Harrison & Wall, Sarah F Wall, for appellee.

(b) The juvenile court’s finding of a high probability of serious harm to T. F. if she is returned to her mother was unnecessary to the court’s decision and need not be reviewed.

2. We find no merit in appellant’s challenge to the juvenile court’s determination that there is no suitable family member with whom T. F. can be placed. Under the evidence presented, the court did not abuse its discretion in making this decision.

Judgment affirmed.

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

        In the Interest of D. S., 247 Ga. App. 569, 572 (545 SE2d 1) (2001).

       OCGA § 15-11-94 (a), (b) (4) (A) (i)-(iv).

       OCGA § 15-11-94 (a); In the Interest of D. B., 242 Ga. App. 763, 764 (531 SE2d 172) (2000).

       OCGA § 15-11-94 (b) (4) (B) (ii), (iii).

       (Citations and punctuation omitted.) In the Interest of M. M., 207 Ga. App. 722, 725 (1) (429 SE2d 132) (1993).

       (Citations and punctuation omitted.) In the Interest of R. A., 226 Ga. App. 18, 20 (486 SE2d 363) (1997).

       Compare In the Interest of K. M., 240 Ga. App. 677, 679 (523 SE2d 640) (1999).

       See In the Interest of C. N. S., 248 Ga. App. 84 (545 SE2d 633) (2001); see generally In the Interest of S. C. M. H., 238 Ga. App. 159, 162 (2) (517 SE2d 598) (1999); compare In the Interest of K. M., supra; In the Interest of D. C. N. K., 232 Ga. App. 85 (501 SE2d 268) (1998).

        In the Interest of A. M. N., 234 Ga. App. 365, 371 (2) (506 SE2d 693) (1998).


author: Pope, Presiding Judge.

text:
    A01A0811.
    GEORGIA FARM BUREAU MUTUAL INSURANCE COMPANY v. WILKERSON.
    (549 SE2d 740)
   Pope, Presiding Judge.

Georgia Farm Bureau Mutual Insurance Company (“GFB”) issued a personal automobile insurance policy covering a 1994 Ford Ranger truck. On each of three declaration pages contained in the policy, Kathy McDowell is identified as the “Named Insured.” On one of those pages, McDowell’s son Eric Wilkerson is listed as the number one driver of the car. The issue in this case is whether Eric Wilkerson should be considered a “named insured” under the policy because of this listing.

The parties stipulated to the facts of the case. The facts show that McDowell and Glenn Wilkerson, parents of Eric and Brian Wilkerson, live separately, and the young men live with their father. At all relevant times, GFB provided three automobile insurance policies to Glenn Wilkerson, and each policy provided $15,000 per person of uninsured/underinsured motorist bodily injury coverage. At all relevant times, GFB also insured McDowell, including the same uninsured/underinsured coverage. As stated previously, that policy covered a 1994 Ford Ranger truck, and Eric, age twenty-two at the time, was listed as the number one driver, and he paid all premiums due on that policy.

On November 6,1998, Brian, age 19 at the time, was involved in an accident while he was driving a 1973 Ford F-100 owned by his father and insured by GFB. The other driver caused the accident and was underinsured. GFB has already paid Brian $30,000 in underinsured motorist benefits under the three policies issued to his father. The issue in this case is whether Brian is also entitled to the uninsured benefits under the policy issued to his mother on the 1994 Ford Ranger.

Brian Wilkerson brought this action for declaratory judgment against GFB to answer that question. After a bench trial on the stipulated facts, the trial court found that Brian was covered under his mother’s policy. GFB appeals.

The parties and the trial court agree that Brian would be entitled to benefits under his mother’s policy if he is considered an “insured.” And, that in order to be considered an insured, his brother Eric would have to be considered a “named insured.” This is so under the following policy provisions:

DEFINITIONS A. Throughout this policy, “you” refer [sic] to: 1. The “named insured” shown in the Declarations; and 2. The spouse if a resident of the same household. . . . F. “Family member” means a person related to you by blood, marriage or adoption who is a resident of your household. . . . PART C — UNINSURED MOTORISTS COVERAGE A. We will pay compensatory damages in excess of any applicable deductible shown in the Declarations for this coverage which an “insured” is legally entitled to recover from the owner or operator of an “uninsured motor vehicle” because of. . . . B. “Insured” as used in this Part means: 1. You or any “family member”; 2. any other person “occupying” “your covered auto. . . .”

McDowell’s name and address are printed immediately below the words “NAMED INSURED AND ADDRESS” on each of the three form declaration pages of the policy. Just below McDowell’s address on the third of these pages is a list that identifies Eric Wilkerson as Driver “01” and McDowell as Driver “02.” This list contains no addresses. The trial court construed this declaration page to mean that, in addition to his mother, Eric was a “named insured” under the policy. And, because Brian lived in the same household as Eric, he was an insured “family member.”

When there are no issues of fact, the construction of an insurance policy is a matter of law for the court. Cincinnati Ins. Co. v. Davis, 153 Ga. App. 291, 294 (265 SE2d 102) (1980).

GFB argues that the policy is not ambiguous and that it clearly shows that McDowell is the only “named insured.” Brian Wilkerson argues that the policy must be construed against GFB because it does not define “named insured” and therefore it is ambiguous. We agree with GFB.

The policy covers any “insured,” which is defined to mean “you” and any family member living with “you.” The policy states that “you” refers to the “named insured” on the declaration page. A definition for “named insured” is not required. One simply need look at the declaration page to see who is listed as the named insured. All three declaration pages list the named insured as McDowell. One page also lists drivers, but by definition, “you” does not refer to drivers but only to the “named insured.” And, the simple fact that this list of drivers appears on a declaration page does not render ambiguous the otherwise clear reference to McDowell as the named insured. Although Eric may be insured because he is an authorized driver of the insured vehicle, he is not the named insured. There is no ambiguity. Cf. Griffen v. State Farm &c. Ins. Co., 129 Ga. App. 179, 182 (1) (199 SE2d 101) (1973) (amending a policy to add a person as a driver of the insured vehicle does not make that person a “named insured”). Our holding is consistent with cases from other jurisdictions addressing the point. See, e.g., Nationwide Mut. Ins. Co. v. Williams, 123 N.C.App. 103, 106-108 (472 SE2d 220, 222-223) (1996) (“listed driver” on auto policy was not a “named insured”); Millspaugh v. Ross, 645 NE2d 14, 16-17 (Ind. App. 1994) (although being listed as the principal driver may be relevant for other purposes, it does not transform one into a named insured); Hodges v. Pa. Nat. Ins. Co., 260 N.J. Super. 217 (615 A2d 1259) (1992) (where mother’s name was shown under the heading “named insured” on each policy page and daughter’s name shown only as “Driver No. 2,” daughter was not the “titled ‘insured’ on the policy”).

Decided May 29, 2001

Reconsideration denied June 14, 2001

Because there is no ambiguity, “the policy is not open to construction but the literal meaning must be attributed to it.” Cotton States Mut. Ins. Co. v. Bowden, 136 Ga. App. 499, 500 (221 SE2d 832) (1975).

We note that there is nothing in the policy nor any of the endorsements that specifically explains the significance of being listed as a driver on the declaration page. The term “driver” is not defined, nor does the definition of “insured” include a nonresident family member who is listed as a driver. Although the designation “driver” may be used to show permission to use the insured vehicle, this meaning is not stated in the policy. But this case does not involve the meaning of listing a driver on the policy. And just because identifying one as a “driver” may be ambiguous does not make ambiguous the otherwise plain and clear reference to McDowell as the only “ ‘named insured’ shown in the Declarations.”

Brian Wilkerson argues that Ga. Farm &c. Ins. Co. v. Schlies, 238 Ga. App. 299 (520 SE2d 468) (1999), holds that a listed driver on a policy is a named insured. But he misreads the case. In Schlies the husband was a named insured on the policy in addition to being a listed driver. Id. at 300-301.

Brian Wilkerson also argues that because “family member” is not defined in the uninsured motorist benefits part of the policy, the definition of that term found in the “Definitions” section of the policy does not apply. Therefore, he contends, because he is McDowell’s son, even though he does not live with his mother, he should be considered a covered family member. This interpretation defies one of the most well-established rules of contract interpretation, that the contract must be construed as a whole. See OCGA § 13-2-2 (4). We find no merit in this argument.

Judgment reversed.

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

Reinhardt, Whitley & Wilmot, Glenn Whitley, for appellant.

James W. Hurt, for appellee.


text:
    A01A0650.
    KING v. WAL-MART STORES, INC.
    (550 SE2d 673)
   Pope, Presiding Judge.

Carolyn S. King sued Wal-Mart Stores, Inc. for injuries she claims to have sustained when she fell in the corporation’s Savannah store on November 15, 1996. She filed her complaint on November 13,1998, within the two-year statute of limitation for personal injury claims. OCGA § 9-3-33. Although King achieved service shortly after filing suit, she failed to serve the proper registered agent and instead served Wal-Mart’s prior agent. The corporation had changed agents 11 days before King filed her lawsuit.

Almost a year later, on November 1, 1999, Wal-Mart moved to dismiss King’s complaint. A short time later King achieved service on the proper agent. The trial court found that because service was effected only after the statute of limitation had run and after the five-day grace period for service under OCGA § 9-11-4 (c) had elapsed, King bore the burden of showing that she had exércised due diligence to obtain service. The court concluded that King had failed to carry this burden and dismissed the complaint on January 4, 2000.

On June 5, 2000, King filed the instant action alleging virtually the same claims against Wal-Mart as in the original action. She asserts that this complaint was made pursuant to the renewal provisions of OCGA § 9-2-61 (a). Wal-Mart again moved to dismiss, asserting that the renewal statute did not apply because King’s original suit had been dismissed by the trial court and thus was void. The trial court agreed and dismissed King’s second complaint. King argues, however, that the trial court’s dismissal of her original action was improper because her original action was voidable, not void, and thus subject to renewal.

Georgia’s renewal statute reads:

When any case has been commenced in either a state or federal court within the applicable statute of limitations and the plaintiff discontinues or dismisses the same, it may be recommenced in a court of this state or in a federal court either within the original applicable period of limitations or within six months after the discontinuance or dismissal, whichever is later . . . ; provided, however, if the dismissal or discontinuance occurs after the expiration of the applicable period of limitation, this privilege of renewal shall be exercised only once.

OCGA § 9-2-61 (a).

In interpreting this provision, the Supreme Court of Georgia has stated that “[t]he privilege of dismissal and renewal does not apply to cases decided on their merits or to void cases, but does allow renewal if the previous action [is] merely voidable.” (Citation and punctuation omitted.) Hobbs v. Arthur, 264 Ga. 359, 360 (444 SE2d 322) (1994). The court found that an action is void and incapable of renewal if service is never perfected or if “there has been a judicial determination that dismissal is authorized.” Id.

We must determine, therefore, whether King’s action was void or merely voidable where she perfected service after the statute of limitation expired, but the trial court determined that she failed to do so with the requisite diligence. This Court recently addressed this very issue in Tate v. Coastal Utilities, 247 Ga. App. 738 (545 SE2d 124) (2001). There, a federal court had dismissed the plaintiffs’ original lawsuit when it determined that they had failed to diligently serve the defendants after the applicable limitation period had expired. The plaintiffs attempted to file a renewal action, but the trial court found that the claims were time-barred and granted the defendants’ motion for summary judgment.

On appeal, this Court agreed that the renewal statute was not applicable, even though the dismissal was purportedly without prejudice, because there had been a judicial determination that the plaintiffs failed to show diligence in serving the complaint. Tate, 247 Ga. App. at 740 (1):

If reasonable and diligent efforts are not made to ensure proper service as quickly as possible, a plaintiff is guilty of laches, and service will not relate back to the time of the filing of the complaint for the purpose of tolling the statute of limitation. [Cit.] . . . The federal court expressly decided that [the plaintiffs] failed to show “good cause” or the exercise of due diligence in attempting to effectuate service. ... Because there had been a judicial determination that dismissal was authorized, the renewal statute cannot be applied here. [Cit.]

Id. at 739-740.

Similarly in this case, the trial court’s dismissal in the original action was based upon its finding that King had not acted diligently in perfecting service on Wal-Mart. This judicial determination rendered King’s original action void. See Black v. Knight, 231 Ga. App. 820 (499 SE2d 69) (1998). Accordingly, the renewal statute did not apply, and the trial court properly dismissed King’s second complaint. j

Decided June 14, 2001

Phillips & Kitchings, Richard D. Phillips, Joseph C. Kitchings, for appellant.

McLain & Merritt, John D. Rogers, Jr., for appellee.

Judgment affirmed.

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


text:
    A01A0737.
    ARMANDROFF v. CUSHING.
    (550 SE2d 674)
   Phipps, Judge.

Judy Armandroff filed a negligence claim against Deborah Cushing for damages allegedly arising from a three-car collision. Following a trial, the jury returned a verdict in Cushing’s favor. Armandroff appeals, contending that the court erred by giving a jury charge regarding a skidding automobile. Because we find that this charge, considered in light of the charge as a whole, was not error, we affirm.

On a rainy day in November 1995, Armandroff stopped her car because the one in front of it had stopped to turn left at the intersection ahead. Cheryl Linden was driving a sport utility vehicle (SUV) behind Armandroff, and Cushing was driving a Mazda 626 behind Linden. Although the SUV obstructed Cushing’s view of the cars in front of it, Cushing could see that the traffic light at the intersection was red and was slowing her car. According to Cushing, the SUV “slammed on its brakes, at which point [she] heard a collision.” The SUV had rear-ended Armandroffs car. When Cushing applied her brakes, her car skidded and rear-ended the SUV. Armandroff testified that she felt “two almost simultaneous impacts.”

At the trial, the court charged the jury,

It is common knowledge that a skidding automobile is very difficult to accurately control. And mere skidding of a vehicle does not, in and of itself, necessarily constitute negligence. Furthermore, it is common knowledge that an automobile may skid on a slippery highway without negligence on the part of the operator. It is incumbent on the Plaintiff to show by a preponderance of the evidence that skidding was a result of the negligent operations of the automobile by the Defendant.

1. Armandroff contends the charge was not suited to the evidence. But if there is even slight evidence on a specific issue, it is not error for the court to charge the jury on the law related to that issue. Here, there was evidence that it was raining at the time of the three-car collision, that the SUV ahead of Cushing’s vehicle stopped suddenly when it collided with Armandroff’s vehicle, and that when Cushing applied her brakes, her car skidded into the SUV despite the fact that she already had begun to slow her car. Thus, there was sufficient evidence to merit the charge because the jury could infer from the evidence that the collision was not a result of negligent driving by Cushing.

Armandroff further argues that no charge on skidding was warranted because Cushing had pled guilty to the traffic offense of following too closely. But such an admission does not conclusively show liability; it is only a circumstance for the jury to consider with all the other evidence in a civil action for damages.

2. Armandroff contends the charge was “argumentative, unbalanced, and material.”

The contested charge sets out correct principles of law, closely tracking the language of Foy v. Edwards, where this court recognized that mere skidding did not amount to negligence and that it was for the jury to decide whether the defendant’s negligence caused an automobile collision. But even though an appellate court’s language embodies sound law, it may not be appropriate to use such language in a jury charge. Jury charges should set forth objective legal principles and should not include language used by an appellate court to explain the rationale of a legal principle. However, although the court’s statements about what the court perceived to be “common knowledge” regarding the difficulty of controlling skidding automobiles on slippery highways may have been unnecessary, we view the court’s charge as a whole. Here, the charge on skidding was part of an extensive charge regarding the circumstances to consider. And immediately after giving the contested charge, the court instructed, “You may take into consideration all the facts and circumstances of the evidence as you decide it to be in deciding this issue.” After reviewing the court’s charge, we find that, as a whole, it was not argumentative or imbalanced, but covered fairly all issues. It was not error.

Decided June 15, 2001.

Jeffrey S. Gilbert, for appellant.

Larry E. Stewart, for appellee.

Judgment affirmed.

Smith, P. J., concurs. Barnes, J., concurs in judgment only.

       Armandroff settled her claim against Linden, who is not a party to this case.

        Sanders v. Moore, 240 Ga. App. 730, 731 (2) (524 SE2d 780) (1999).

       OCGA § 40-6-49.

        Leonard v. Dixon, 246 Ga. App. 83, 84 (1) (538 SE2d 781) (2000).

       118 Ga. App. 665, 666-667 (1) (165 SE2d 176) (1968).

       Id. (as the defendant approached a curve she slowed her car, but when her car hit wet and slippery asphalt topping through which tar was bleeding, her car skidded into the plaintiff’s car); see also Southern Bell Tel. &c. Co. v. Franklin, 196 Ga. App. 474, 475 (1) (396 SE2d 514) (1990) (the evidence did not demand a verdict for plaintiff where defendant was attentive and had adjusted driving to rainy conditions, even though an investigator of the collision opined that defendant was driving too fast and hydroplaned into an intersection).

        Macon-Bibb County Hosp. Auth. v. Reece, 236 Ga. App. 669, 671 (1) (513 SE2d 243) (1999).

        Wadkins v. Smallwood, 243 Ga. App. 134, 141 (5) (h) (530 SE2d 498) (2000).

        J. B. Hunt Transport v. Brown, 236 Ga. App. 634, 636 (2) (512 SE2d 34) (1999).

       See Flanigan v. Reville, 107 Ga. App. 382 (2) (130 SE2d 258) (1963) (in negligence action, all circumstances and conditions at the time and place of an automobile accident, including the conduct of other drivers, must be taken into account).

       See Jackson v. Lynch, 203 Ga. App. 244, 245-246 (1) (416 SE2d 564) (1992); see also J. B. Hunt Transport, supra, 236 Ga. App. at 636-637 (“If, taken as a whole, the charge of the court covers the issues presented fairly and accurately, no error will be presumed from minute inspection of individual words or phrases”) (citation omitted).


author: Ruffin, Judge.

text:
    A01A0645.
    AUTRY v. THE STATE.
    (549 SE2d 769)
   Ruffin, Judge.

After pleading guilty to interference with the custody of a minor and statutory rape, Christopher Autry filed a motion to withdraw his guilty plea or, in the alternative, a motion in arrest of judgment or motion for new trial. The trial court denied Autry’s motions, and this appeal ensued. For reasons that follow, we affirm.

The record reveals that Autry was involved in a carnal relationship with a minor. In November 1999, the juvenile’s mother notified law enforcement authorities that her daughter “was possibly having a sexual relationship” with Autry. Shortly thereafter, Autry and the juvenile left Georgia, and the juvenile’s mother reported her daughter as a runaway. Law enforcement tracked Autry and his companion for approximately six months before apprehending them in Florida in May 2000.

After he was brought back to Georgia, Autry was indicted for (1) interference with custody of a minor; (2) statutory rape; and (3) child molestation. During the plea bargaining process, the State offered Autry a negotiated plea of ten years with one to serve. Based upon the advice of his attorney, however, Autry decided to plead guilty without a sentencing recommendation from the State.

In July 2000, Autry pled guilty to interference with the custody of a minor and statutory rape, and the State dismissed the child molestation charge. During the plea hearing, the State introduced evidence in aggravation of sentencing, including that Autry (1) had been tried for murder, but the case had been dead docketed following a mistrial; and (2) had a bond forfeiture stemming from a misdemeanor theft by shoplifting charge. According to Autry, the State never provided notice of its intent to introduce such evidence, and his attorney failed to object to its introduction. Following Autry’s guilty plea, the trial court sentenced him to serve ten years for statutory rape and five years for the interference with custody, to run concurrently.

1. On August 24, 2000, Autry filed a motion to withdraw his plea, which the trial court denied. During the motion hearing, Autry asserted that his trial counsel was ineffective for failing to object to the evidence in aggravation of sentencing. According to Autry, under the authority of the recent Supreme Court case of West v. Waters, his attorney’s failure to object to the introduction of such evidence constitutes reversible error.

In West, the defendant was found guilty of two counts of selling cocaine. During sentencing, the State tendered evidence of a prior conviction, and West was sentenced to life in prison as a recidivist. Although the State did not provide clear notice of its intent to use the prior conviction in aggravation of sentencing as required by OCGA § 17-10-2, West’s attorney failed to object. The Supreme Court concluded that such failure constituted ineffective assistance of counsel and reversed West’s sentence. Autry asserts that the same reasoning applies here.

OCGA § 17-10-2 (a) provides, in pertinent part, that “upon the return of a verdict of ‘guilty by the jury in any felony case, . . . the judge shall hear additional evidence in . . . aggravation of punishment, . . . provided that only such evidence in aggravation as the state has made known to the defendant prior to the defendant’s trial shall be admissible.” By its express, language, this Code section applies only to sentencing following a jury trial rather than sentencing following a guilty plea.

Nevertheless, a cogent argument can be made that, notwithstanding this apparent limitation on the use of OCGA § 17-10-2, the State should also be required to provide notice of its intent to use a prior conviction in aggravation of punishment following guilty pleas. Indeed, such a requirement would be consistent with the purpose of the Code section, which is “to give [a] defendant a chance to examine his record to determine if the convictions are in fact his, if he was represented by counsel, and any other defect which would render such [evidence] inadmissible.” Pretermitting whether this Code section should apply to guilty pleas, however, Autry’s claim of error lacks merit.

The gist of Autry’s claim is that, in failing to object to the introduction of evidence in aggravation of sentencing, his attorney rendered ineffective assistance of counsel. In order to prevail on such claim, Autry is required to show prejudice. In its order denying Autry’s motions, the trial court stated that, in sentencing Autry, none of its reasons “included the past record of the defendant whatever it might have been.” As the record demonstrates that the trial court did not rely upon the evidence in aggravation of sentencing, Autry is unable to establish prejudice. It follows that this claim of error presents no basis for reversal.

2. In his second enumeration of error, Autry asserts that the trial court erred in concluding that, under the totality of the circumstances, his guilty plea was freely and voluntarily entered. Although Autry acknowledges that the trial court undertook all of the technical requirements to ensure that his plea was voluntary, Autry nonetheless argues that his attorney essentially induced the guilty plea by promising that Autry would be given less jail time than the one year offered by the State during plea bargaining. We find this argument unavailing.

Even though Autry relied, in good faith, on his attorney’s advice in deciding to plead guilty, he cannot avoid the legal consequences of his plea, notwithstanding the actual outcome. “A defendant’s subjective hopes and unfulfilled desires, not induced by the court or state, are not good grounds for attacking the resulting plea and sentence.” Where, as here, the record demonstrates that the plea was freely and voluntarily entered, the trial court did not err in denying Autry’s motions to withdraw his plea, to set aside the judgment, or to grant a new trial.

Decided June 1, 2001

Reconsideration denied June 18, 2001

Smith, Price & Wright, Charles G. Price, for appellant.

Tambra P. Colston, District Attorney, C. Stephen Cox, Assistant District Attorney, for appellee.

Judgment affirmed.

Johnson, P. J., and Ellington, J., concur.

       272 Ga. 591 (533 SE2d 88) (2000).

       Id. at 592-593 (1).

       Id.

       See Moss v. State, 159 Ga. App. 317, 318 (283 SE2d 275) (1981) (applying predecessor statute to OCGA § 17-10-2 to sentencing following plea of guilty).

       (Punctuation omitted.) Howard v. State, 233 Ga. App. 724, 726 (1) (b) (505 SE2d 768) (1998).

       See West, supra at 591; see also Veal v. State, 242 Ga. App. 873, 876 (3) (531 SE2d 422) (2000) (“a conviction will not be reversed on the basis of ineffective assistance of counsel unless counsel’s conduct prejudiced the defendant”).

       See Cullers v. State, 247 Ga. App. 155, 156 (543 SE2d 763) (2000).

       (Punctuation omitted.) Id.

       See Hurley v. State, 247 Ga. App. 582, 583-584 (544 SE2d 508) (2001).


text:
    A01A0420.
    LEE v. THE STATE.
    (550 SE2d 696)
   Ruffin, Judge.

A jury found Van Burén Lee guilty of child molestation. Lee appeals, challenging the sufficiency of the evidence and the trial court’s admission of similar transaction evidence. For reasons that follow, we affirm.

1. In reviewing Lee’s challenge to the sufficiency of the evidence, we do not weigh the evidence or determine witness credibility. Instead, we review the evidence presented at trial in the light most favorable to support the jury’s verdict and determine whether this evidence is sufficient to authorize a rational trier of fact to find Lee guilty of child molestation beyond a reasonable doubt.

Viewed in this manner, the evidence shows that the victim was Lee’s 13-year-old stepdaughter. The incident occurred on the afternoon of March 28, 1997, when the victim was at home in the kitchen. The victim’s mother was away at work, and Lee went into the kitchen and “fondled” the victim’s buttocks. The victim immediately tried to call her mother to report the incident, but when she attempted to dial the number, Lee disconnected the telephone. At the next opportunity, the victim called her mother’s pager and left a message that there was an emergency. When the mother called the house, Lee answered the phone. Initially, Lee would not allow the victim to speak with her mother, but he eventually relented when the mother demanded to speak with her daughter. The victim told her mother what happened, and the mother went home.

When the mother arrived home, she immediately contacted a psychologist, Dr. Mary Chestnut, and scheduled a counseling session for the family later that day. The mother, the victim, and Lee all attended the session with Dr. Chestnut. According to Dr. Chestnut, during the session the victim appeared “quite sad” and “repeatedly stuck with her story that [Lee] had fondled her.” Although Lee denied the charge, he agreed to temporarily leave the home and to meet with Dr. Chestnut again. Dr. Chestnut testified that when she met with Lee a few days later, “he admitted that he had been very inappropriate with the girl . . . and was going to look into treatment.” Dr. Chestnut further testified that the mother informed her of a prior incident in which the mother saw Lee lying on the floor peeking under the bathroom door while the victim was in the bathroom.

Dr. Chestnut reported the incident to Michelle Garcia of the Department of Family & Children Services, who in turn notified Officer Gilbert Padilla of the Crimes Against Children Unit of the Cobb County Police Department. Garcia and Padilla arranged to jointly interview the victim at her school. During the interview, the victim repeated her story that Lee had fondled her buttocks and further informed Garcia and Padilla that Lee had previously exhibited inappropriate sexual conduct toward her. According to Garcia and Padilla, the victim told them that on other occasions, Lee inappropriately touched her and exposed his penis to her and that she had awakened to find Lee looking at her buttocks.

The victim, who was 15 years old at the time of trial, testified and recanted her accusation that Lee had fondled her buttocks, stating that she “made up [the] story.” The victim further stated that she did not remember telling Garcia and Padilla about Lee’s prior inappropriate conduct. A child abuse expert testified that such recantation is characteristic of child abuse accommodation syndrome and that victims often abandon their claims when confronted by the reality that the family is breaking up, that the accused is going to jail, or that family members do not believe their story.

Finally, the state presented evidence of a similar transaction involving Lee that occurred in Texas on February 28, 1980. The evidence showed that Lee exposed his penis to a nine-year-old girl while she was walking to school. As a consequence of the Texas conduct, Lee was convicted of indecency with a child.

On appeal, Lee presents various reasons why certain testimony is incredible and other testimony, most notably the victim’s recantation, should be believed. He concludes that the victim’s in-court testimony was the only “competent evidence” presented at trial and that his conviction should therefore be reversed. Such matters, however, were for the jury to resolve, and the jury was authorized to believe the victim’s pre-trial statements rather than her in-court disavowal. Accordingly, the evidence was sufficient to authorize a rational trier of fact to find Lee guilty of child molestation beyond a reasonable doubt.

Decided June 18, 2001.

Elaine T. McGruder, for appellant.

2. Lee also asserts that the trial court erred in admitting evidence of his 1980 conviction for indecency with a child. According to Lee, the court should have excluded the evidence because the victim of the prior act could not identify him as the perpetrator and because the similar transaction occurred 17 years before the molestation in this case. We disagree.

At trial, both the victim of the prior act and the officer investigating the act testified that, shortly after the offense, the victim positively identified Lee as the perpetrator in a photographic lineup. In addition, the prior act victim testified that she positively identified Lee at his trial for the earlier offense. Finally, the state introduced a certified copy of Lee’s conviction which clearly identifies him as the accused. In light of such overwhelming evidence identifying Lee as the perpetrator of the prior offense, the fact that the victim of that offense was no longer able to recognize Lee at the trial of this case did not render the evidence inadmissible.

Furthermore, Lee’s argument that the prior act was too remote in time goes to the weight and credibility of the evidence and not its admissibility. Although an act which occurred 31 years in the past has been deemed too remote to be admissible as a similar transaction, we have held that lapses of 19 years, 18 years, and 15 years did not render the evidence inadmissible. Because the prior act evidence in this case was otherwise admissible, we conclude that the lapse of 17 years between the offenses did not require the trial court to exclude the evidence.

Judgment affirmed.

Johnson, P. J., and Ellington, J., concur.

Patrick H. Head, District Attorney, Dana J. Norman, Assistant District Attorney, for appellee.

       See Russell v. State, 230 Ga. App. 546, 549 (4) (497 SE2d 36) (1998).

       See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

       See Usher v. State, 236 Ga. App. 663, 665 (1) (512 SE2d 380) (1999) (ruling that a jury may choose to believe a prior inconsistent statement, which is admissible as substantive evidence).

       See Shelnutt v. State, 234 Ga. App. 655, 656-657 (2) (506 SE2d 643) (1998).

       See Turner v. State, 245 Ga. App. 294 (2) (536 SE2d 814) (2000).

       See Gilstrap v. State, 261 Ga. 798, 799 (1) (b) (410 SE2d 423) (1991).

       See Cooper v. State, 173 Ga. App. 254, 255 (1) (325 SE2d 877) (1985).

       See Godbey v. State, 241 Ga. App. 529, 530 (1) (526 SE2d 415) (1999) (physical precedent only).

       See Braddock v. State, 208 Ga. App. 843, 844 (2) (432 SE2d 264) (1993).


author: Johnson, Presiding Judge.

text:
    A01A0464.
    KIRKLEY v. JONES.
    (550 SE2d 686)
   Johnson, Presiding Judge.

William H. Kirkley and Richard S. Jones entered into a loan agreement which provided that if Jones failed to repay the money loaned, he would release all his interest in certain property in Williamson, Georgia, to Kirkley. Five months later, after Jones defaulted on the note, Kirkley filed suit seeking Jones’ interest in the property, as well as other monetary damages. Kirkley also filed a notice of lis pendens setting forth a legal description of the lot in Williamson and stating that he was seeking all or a portion of Jones’ interest in the property.

Two months after the lis pendens was filed, Jones sold the property to Perry and Tammy Hallmark, who later built their home on the property. Jones executed a warranty deed to the Hallmarks which did not mention Kirkley’s possible claim to the lot, and Jones swore there were no “suits, . . . sales contracts ... or other liens of whatever nature against” Jones or the lot. A security deed was executed by the Hallmarks to United Bank of Griffin to enable them to build their house. United Bank Mortgage Company subsequently paid off the Hallmarks’ debt to United Bank of Griffin and took a senior security deed on the lot. It is undisputed that the attorney’s title certificate issued in the transaction did not list Kirkley’s claim as an encumbrance against the lot and neither the Hallmarks nor the banks had actual notice of Kirkley’s claim.

On July 2, 1996, the trial judge signed a consent judgment agreed to by Kirkley and Jones. This judgment awarded Kirkley the lot on which the Hallmarks reside. Before they submitted the order to the trial court, both Kirkley and Jones knew that the Hallmarks had purchased the lot and built their home there. Jones’ attorney alleged he did not know that Jones had sold the lot and that if he had known, he would not have entered into the consent judgment.

The Hallmarks learned of the order and moved to intervene based on the fact that they had constructed a house on the lot. United Bank Mortgage Company also moved to intervene based on the fact that it financed the construction of the house. The Hallmarks and the mortgage company alleged that the judgment awarding the lot to Kirkley should be set aside based upon fraud, accident or mistake. Jones also moved to set aside the judgment on the basis of mistake. In a single order, the trial court granted the motions to set aside and the motions to intervene.

All parties then filed motions for summary judgment. The trial court awarded Kirkley a money judgment against Jones but denied Kirkley’s request for specific performance of the contract between Kirkley and Jones, which would have required a transfer of Jones’ interest in the lot. The trial court subsequently entered a final judgment granting the interveners’ motion to cancel the lis pendens. Kirkley appeals. For reasons which follow, we affirm both the trial court’s grant of the motions to intervene and the trial court’s judgment awarding a monetary award to Kirkley. «

1. Kirkley contends the motions to set aside should not have been granted because (1) Jones was negligent in failing to disclose the sale to his attorney and the Hallmarks, and (2) the Hallmarks and the mortgage company were negligent in failing to discover the lis pendens notice. OCGA § 9-11-60 (d) (2) states that a motion to set aside may be brought to set aside a judgment based on “[f]raud, accident, or mistake or the acts of the adverse party unmixed with the negligence or fault of the movant.” However, in the present case the trial court was empowered to set aside its previous order without complying with the substantive provisions of OCGA § 9-11-60 (d).

It is well established that a judgment right for any reason must be affirmed. In this case, the trial court’s September 17, 1996 order was filed within the same term of court as the June 24, 1996 consent order it sought to set aside. The inherent power of a trial court to revise, correct, revoke, modify or vacate its own order during the same term of court is a matter of the exercise of sound discretion. And the exercise of this discretionary power will not be reversed in the absence of manifest abuse of discretion.

During the term of court at which a judgment is rendered, the trial court has the authority to vacate the judgment for irregularity or because it was improvidently or inadvertently entered. Thus, while a judgment cannot be set aside under OCGA § 9-11-60 (d) unless the grounds relied upon are unmixed with negligence or fault of the movant, a trial court in the exercise of its discretion still has the inherent power during the same term of court at which a judgment is rendered to reverse, correct, revoke, modify or vacate the judgment. Consequently, the criteria of OCGA § 9-11-60 (d), requiring in part that the movant be free from negligence or fault, do not apply to the court’s decision to vacate its earlier order. Kirkley has failed to establish a manifest abuse of discretion by the trial court in setting aside the consent judgment, especially in light of the fact that both Kirkley and Jones knew the Hallmarks had purchased and built their house on the property, but both parties failed to inform the trial court of this fact when presenting the consent order to the trial court.

Additionally, examination of the record in its totality reveals some evidence supporting the trial court’s ruling that the order should be set aside under OCGA § 9-11-60 (d) (2). The order shows that the trial court did not base its decision upon any findings of fraud, accident or mistake by the attorneys involved in the action or by the closing attorney, but instead relied upon a mistake that existed because of the trial court’s misapprehension that all the parties who had an interest in the land were represented in the action before it. This misapprehension was a mistake that permitted the trial court to set aside its previous order in the interest of promoting justice and allowing all parties with an interest in the property an opportunity to be adequately protected regarding their respective interests. In the absence of a transcript of the hearing and evidence presented in support of the motions to set aside the judgment, we must presume that there is evidence to support the trial court’s findings that the order was entered based on a misapprehension of the trial court. We must further presume that the trial court would have made a finding that the movants were negligent and that their negligence contributed to the events leading to the judgment being entered if there was evidence to support such a finding. We will not disturb the trial court’s order setting aside its June 24, 1996 order.

2. Kirkley contends the trial court erred in awarding a monetary judgment rather than granting specific performance of the parties’ contract. We disagree.

Specific performance is an extraordinary, equitable remedy, which will be granted only if the complainant does not have an adequate remedy at law. It is not a remedy that either party can demand as a matter of absolute right and will not be granted in any given case unless strictly equitable and just. In addition, OCGA § 23-2-135 authorizes a trial court to award damages in lieu of specific performance if, for any cause, the specific performance is impossible.

In the present case, the handwritten contract states as follows: “I Richard S. Jones Borrowed $4,000 from William H. Kirkley to Repay $500.00 month for 10 months. Failure to do so, Release all interest Lot 13, Blanton Mill Rd. Pike Co. Williamson GA. Note — No property will be sold without Mr. KirkleyPs] knowledge.” When Jones defaulted on his payments, Kirkley filed the present suit, seeking specific performance of the contract, and filed a notice of lis pendens against the property. The trial court awarded a monetary judgment to Kirkley but refused to grant him specific performance of the contract, finding that specific performance under the circumstances is impossible because Jones sold the lot and cannot convey the property to Kirkley. While we disagree with the trial court’s analysis in light of the properly filed lis pendens, we affirm the judgment because the property description in the contract between Kirkley and Jones is not sufficient to permit an award of specific performance. A grant of summary judgment must be affirmed if it is right for any reason.

In the present case, the handwritten contract between Kirkley and Jones did not sufficiently describe or identify the land to be conveyed in the event of a default. Specific performance of a contract for the sale of land will not be granted unless the land is clearly identified. “The contract must identify the land to be [conveyed] with reasonable definiteness by describing the particular tract or furnishing a key by which it may be located with the aid of extrinsic evidence.”

Here, the land is so vaguely described that the handwritten contract provides no key to its identification. There is no physical description of “Lot 13” nor any plat describing the lot. We do not know where Blanton Mill Road is located, where Lot 13 is located or the size, shape and boundaries of the lot. In fact, there may be another Lot 13 somewhere on Blanton Mill Road. We have previously found that an adequate description of property cannot be found within the four corners of a contract that provides nothing more than an address. The contract in the present case does not even provide a specific address. Because the handwritten contract does not sufficiently describe the land to be conveyed in the event of a default, and because Kirkley has an adequate remedy at law in the form of a monetary judgment, the trial court did not err in refusing to grant specific performance in this case.

Decided June 18, 2001

Don E. Snow, for appellant.

C. Arthur Moss, Jr., for appellee.

3. Kirkley contends the trial court erred in cancelling his notice of lis pendens because he is entitled to a lien upon the Hallmark property to secure the money judgment against Jones. However, the notice of lis pendens was viable only with respect to Kirkley’s claim to an interest in real property. Upon dismissal of that claim, the notice of lis pendens was properly cancelled.

Judgment affirmed.

Ruffin and Ellington, JJ., concur.

       See Young Constr. v. Old Hickory House, 210 Ga. App. 559, 560 (2) (b) (436 SE2d 581) (1993).

       Id.

       Spalding County’s terms of court begin on the first Monday in February, June and October. OCGA § 15-6-3 (19) (C).

       See T. J. Brooklyne, Inc. v. Sullivan 75, 239 Ga. App. 588, 589 (1) (521 SE2d 644) (1999) , overruled on other grounds, Bell v. Cohran, 244 Ga. App. 510, 511 (536 SE2d 187) (2000) .

        Young Constr., supra at 561.

        Allstate Ins. Co. v. Clark, 186 Ga. App. 58, 59 (2) (366 SE2d 394) (1988), overruled on other grounds, Stone v. Dawkins, 192 Ga. App. 126, 127 (384 SE2d 225) (1989).

       Id.

       See Carnes Bros., Inc. v. Cox, 243 Ga. App. 863, 864 (534 SE2d 547) (2000) (physical precedent only).

       The order specifically states:
      Based upon the record, briefs and the argument this Court questions whether Judge Whalen was made fully aware of all of the facts concerning the consent order he signed, which this Court notes was prepared by [Kirkley’s] attorney. Certainly, the failure of the order to note that the Hallmarks had built a house on the property in question is an error of “fraud, accident or mistake” that authorizes this Court to set aside the June 24, 1996 Order.

        Wright v. Archer, 210 Ga. App. 607, 608 (1) (436 SE2d 775) (1993).

       Id.

       See OCGA § 23-2-130; Clayton v. Deverell, 257 Ga. 653, 654 (3) (362 SE2d 364) (1987).

        Wehunt v. Pritchett, 208 Ga. 441, 444 (67 SE2d 233) (1951).

       OCGA § 23-2-135; Clayton, supra at 654 (2).

       See Vance v. Lomas Mtg. USA, 263 Ga. 33, 35 (1) (426 SE2d 873) (1993); Wilson v. Blake Perry Realty Co., 219 Ga. 57, 58 (131 SE2d 555) (1963); Panfel v. Boyd, 187 Ga. App. 639, 646 (4) (371 SE2d 222) (1988).

       See Bennett v. Cotton, 244 Ga. App. 784, 787 (2) (536 SE2d 802) (2000).

        Smith v. Ga. Indus. Realty Co., 215 Ga. 431, 432 (2) (111 SE2d 37) (1959).

       (Citation and punctuation omitted.) Scheinfeld v. Murray, 267 Ga. 622, 623 (1) (481 SE2d 194) (1997).

        Gateway Family Worship Centers v. H.O.P.E. Foundation Ministries, 244 Ga. App. 286, 288 (2) (535 SE2d 286) (2000).

       See Evans v. Fulton Nat. Mtg. Corp., 168 Ga. App. 600 (309 SE2d 884) (1983).