author: Ruffin, Judge. Beasley, Judge,

text:
    A98A1513.
    THE STATE v. NOLEN.
    (508 SE2d 733)
   Ruffin, Judge.

The State directly appeals from the trial court’s order granting Deforest Nolen’s motion in limine to suppress the results from a chemical sobriety test on the grounds that the officer did not read verbatim the implied consent notice mandated by OCGA § 40-5-67.1. For reasons which follow, we reverse.

The record shows that Nolen was stopped by a DeKalb County police officer on October 12, 1997, for failing to maintain his vehicle in its lane of travel. After arresting Nolen for driving under the influence, the officer read the implied consent warning found in OCGA § 40-5-67.1 (b). The officer read the warning verbatim except for the omission of the word “and” in the next to the last sentence of the warning between the clause “at your own expense” and the clause “from qualified personnel of your own choosing.” The officer should have stated, “After first submitting to the required state tests, you are entitled to additional chemical tests of your blood, breath, urine, or other bodily substances at your own expense and from qualified personnel of your own choosing.” (Emphasis supplied.) OCGA § 40-5-67.1 (b) (2). Although the trial court found that the omission of the word “and” did not alter the meaning of the sentence, it granted Nolen’s motion in limine on March 12, 1998, based upon this Court’s decisions in State v. Fielding, 229 Ga. App. 675 (494 SE2d 561) (1997) and State v. Halstead, 230 Ga. App. 208 (496 SE2d 279) (1998). In Fielding, we held that a 1995 amendment to OCGA § 40-5-67.1 required police officers to read the implied consent warning “exactly as set forth” in the Code section. Fielding, supra at 677-679.

On appeal, the State contends that the amendment to OCGA § 40-5-67.1, effective March 27, 1998, requires this Court to reverse the trial court’s order suppressing the results of the chemical sobriety test. Ga. L. 1998, Act 573 (HB 1378). This amendment provides that the implied consent “notice shall be read in its entirety but need not be read exactly so long as the substance of the notice remains unchanged.” OCGA § 40-5-67.1 (b).

This Court is obligated to apply the law as it exists at the time its opinion is rendered. State v. Martin, 266 Ga. 244, 245 (1) (466 SE2d 216) (1996). Moreover, “where a statute governs only procedure of the courts, including rules of evidence, it is to be given retroactive effect absent an expressed contrary intention. [Cits.]” Polito v. Holland, 258 Ga. 54, 55 (2) (365 SE2d 273) (1988). In Martin, the Supreme Court concluded that a 1995 amendment to OCGA § 40-5-67.1 “modifies the scope of evidence which may be offered in a DUI trial. It does not affect the manner or degree of punishment and does not alter any substantive rights conferred on [the defendant] by law. [Cits.]” Martin, supra at 246 (3). Likewise, the 1998 amendment to the statute governs whether the results of a chemical test of a DUI suspect will be admissible evidence. It does not change any substantive rights of defendants. Thus, we must apply the statute as it now exists to this case.

The amended statute provides that the implied consent “notice shall be read in its entirety but need not be read exactly so long as the substance of the notice remains unchanged.” OCGA § 40-5-67.1 (b). In this case, the officer read the notice to Nolen in its entirety and the substance of the notice was not changed by the omission of the word “and” from the notice. Thus, the officer’s reading of the notice complied with OCGA § 40-5-67.1, as amended.

Nolen contends that ex post facto provisions in the federal and state constitutions prohibit this Court from applying the 1998 amendment to this case. U. S. Const., Art. I, Sec. IX, Par. Ill; Art. I, Sec. I, Par. X, Ga. Const. of 1983. Nolen also contends that the 1998 amendment is unconstitutional because the Legislature exercised “judicial powers in violation of the Georgia Constitution, Art. I, Sec. I, Par. XXIII.” [Sic] We cannot address these issues because “[t]he Supreme Court has exclusive appellate jurisdiction over all cases in which the constitutionality of a statute is called into question. Ga. Const. of 1983, Art. VI, Sec. VI, Par. II (1).” Harper v. State, 213 Ga. App. 611, 612 (1) (445 SE2d 300) (1994).

Nolen requests that we transfer this case to the Supreme Court of Georgia if we determine that constitutional issues are raised which are outside the jurisdiction of this Court. This we cannot do because the constitutionality of the 1998 amendment was neither raised by the parties below nor ruled upon by the trial court. The Supreme Court of Georgia “does not have exclusive appellate jurisdiction over a case where the constitutional issue asserted on appeal has not been raised in and ruled upon by the trial court. [Cit.]” Atlanta Independent School System v. Lane, 266 Ga. 657, 658 (1) (469 SE2d 22) (1996).

Based upon our conclusion that the 1998 amendment applies retroactively, we reverse the trial court’s decision to exclude evidence of Nolen’s chemical test. Upon the return of the case to the trial court, Nolen may, if he wishes, raise his constitutional challenges to the 1998 amendment and preserve them for any subsequent appeal.

Judgment reversed.

Pope, P. J., concurs. Beasley, J., concurs specially.

Beasley, Judge,

concurring specially.

I agree that the trial court’s order granting defendant’s motion in limine must be reversed. The motion should be denied. Omission of the word “and” in the particular instance focused on does not change the meaning of the warning one whit. The lengthy and detailed warning prescribed by OCGA § 40-5-67.1 (b) (1) was recited in its entirety.

With respect to the precise issue here, defendant was given two disparate items of information for him to consider in making his decision whether to seek another chemical test. One factor was that he would have to pay for it (“at your own expense”). The other factor for him to weigh was that he would select the tester (“from qualified personnel of your own choosing”). The grammatical bridge used to connect these two items is “and” in the statute. But it is inconsequential and makes no difference in what is conveyed to the defendant, whether it is stated or not. The information communicated is the same. To say “at your own expense from qualified personnel of your own choosing” makes not a hair’s breadth of difference from saying “at your own expense and from qualified personnel of your own choosing.”

Surely the law does not countenance exclusion of the scientific proof of defendant’s degree of intoxication as measured by a prescribed State-administered test on the thin thread of reasoning that the arresting officer did not in fact “read to the person the appropriate implied consent warning” as the statute requires because, as the trial judge heard it from the tape, the officer omitted the word “and.”

In the cases cited, there was significant substantive alteration in the warning. In both State v. Fielding , and State v. Halstead the suspect was misadvised; each arrestee was told only that he could take another test, not as many tests as he wished and would pay for. Particularly because there are a number of tests available for a variety of bodily substances, a person who is suspicious of the State’s test or simply desires confirmation of its results may want a number of tests, especially in a close case. After all, the ramifications of the results often are conviction or acquittal, imprisonment or liberty, loss or retention of license. The legislature deliberately provides a broad right, an open-ended right, to the amount and variety of proof an accused can muster.

Decided September 9, 1998.

Ralph T. Bowden, Jr., Solicitor, Stephanie Duncan-Brent, Joy A. Grayson, W. Cliff Howard, Assistant Solicitors, for appellant.

Head, Mullís, Thomas & Webb, Thomas J. Thomas, for appellee.

Richards v. State does not describe what was not “exact” in the warning by the officer as compared with the words of the statute. It may very well have deviated from the exact meaning meant to be conveyed by the statutorily prescribed wording. In Martin v. State the warning was deficient in omitting the information that additional tests could be of various types, i.e., of the arrestee’s blood, breath, urine, or other bodily substances. (Although the warning also omitted that the personnel who performed such test or tests had to be “qualified,” the court did not dwell on that deviation.)

In this case, strict compliance was honored despite the undoubtedly inadvertent slip-of-the-tongue which occurred when the officer skipped the word “and.” He gave “the correct warning” in all of its elements and in all of its words but for the implicit conjunction “and.” The officer fully, not merely substantially, advised Nolen of all of his rights. The de minimis nature of the omission did not affect the admissibility of the test results under the statute even before amended in 1998.

Thus there is no need to consider retroactivity of the legislature’s express instruction that exact reading is not crucial “so long as the substance of the notice remains unchanged.” The issue, which due to timing was not raised in the trial court, is moot. Nor is there cause for deciding either the procedural status or the merits of the constitutional challenges, whether state or federal.

       In the 1983 Constitution, Art. I, Sec. I, Par. XXIII deals with imprisonment for debt. We assume Nolen was attempting to invoke Art. I, Sec. II, Par. II regarding separation of powers which, in the 1945 Constitution, was listed as Art. I, Sec. I, Par. XXIII.

       The 1998 amendment came into effect after the State filed a notice of appeal from the trial court’s order granting the motion to suppress.

       229 Ga. App. 675 (494 SE2d 561) (1997).

       230 Ga. App. 208 (496 SE2d 279) (1998).

       225 Ga. App. 777, 779 (2) (484 SE2d 683) (1997).

       217 Ga. App. 860 (460 SE2d 92) (1995), rev’d on other grounds, State v. Martin, 266 Ga. 244 (1) (466 SE2d 216) (1996).

       See State v. O’Donnell, 225 Ga. App. 502, 505 (3) (484 SE2d 313) (1997).

       OCGA § 40-5-67.1, as amended March 27, 1998. Ga. L. 1998, Act 573 (HB 1378).


source: Caselaw Access Project

author: Ruffin, Judge.

license: Public Domain

text:
    A98A1227.
    WALKER v. THE STATE.
    (507 SE2d 15)
   Ruffin, Judge.

Derrick Walker was indicted for malice murder and concealing the death of another. The jury found Walker guilty of concealing the death of another and the lesser included offense of involuntary manslaughter. Walker appeals and, in his sole enumeration of error, asserts that the evidence at trial was insufficient to prove his guilt of both offenses beyond a reasonable doubt. For reasons which follow, we affirm.

“ ‘On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to the verdict, and the appellant (defendant here) no longer enjoys the presumption of innocence; moreover, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) [(1979)]. Conflicts in the testimony of the witnesses, including the State’s witnesses, (are) a matter of credibility for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.’ [Cit.]” Shabazz v. State, 229 Ga. App. 465-466 (1) (494 SE2d 257) (1997).

Viewed in this light, the evidence at trial showed that the manslaughter victim was Sayward Toby, a high school student who dated Walker during the year prior to her death. On the Monday before she was killed, Toby terminated her relationship with Walker after he threw her to the ground during a fight. On the following Tuesday or Wednesday evening, Toby returned home from a date with an individual named Tyrone Anfield. As Anfield approached Toby’s apartment in his car, Toby spotted Walker on the side of her house between two apartments. Apparently concerned, Toby asked Anfield to take her elsewhere.

The following Friday evening, Toby and Walker were involved in two physical altercations. At some point after a high school football game, Toby congregated with several people, including Walker, behind a local fast food restaurant. Walker told Toby that he wanted to speak with her. When Toby refused, the two began arguing. Toby walked away, Walker followed, and when he caught Toby, Walker grabbed her arms and a struggle ensued. Toby eventually broke loose after a bystander came to her assistance, and once freed she ran from the area.

Later that evening, Walker again confronted Toby at a carwash as she was attempting to call Anfield on a pay phone. Walker grabbed the phone from Toby, beat it on a pole and then grabbed Toby. Toby attempted to break loose, and when Walker would not release her, Toby’s brother hit Walker in the back with a brick. Although Walker retained his grip on Toby, he eventually released her and ran from the scene.

Toby was last seen alive several hours later by an individual named Rodney Dunnum. Dunnum testified that he was walking home at approximately 4:00 on Saturday morning when he saw Toby walking in the same direction toward her house. When Dunnum passed Toby, he asked her where she was going and she responded that she was walking home. While he was talking to Toby, Dunnum saw an individual named Eric Wright drive by. Dunnum stated that there was someone seated on the passenger side of Wright’s car “sitting real low.” When the car made a U-turn and started to come back toward Dunnum and Toby, Dunnum resumed walking toward his house. The car stopped by Toby, and its occupants started talking to her. When Dunnum reached the edge of his yard, he heard Toby say “ Tq]uit, quit, dammit.’ ” His attention drawn, Dunnum turned around and observed Walker striking Toby with his hand and Toby falling. Dunnum assumed that, they were having a “girlfriend-boyfriend fight” and went into his house.

On Saturday evening Toby’s mother informed the police that Toby was missing. The following morning Walker appeared at Dunnum’s house and told him to say nothing to the police about the altercation that Dunnum had observed because the police would get the wrong idea. On Monday morning, after speaking with several of Toby’s schoolmates in an effort to locate her, police questioned Eric Wright concerning her whereabouts. Wright told the police that he last saw Toby at approximately 2:30 on Saturday morning as she was walking across the road in the same general area where Dunnum saw Walker strike Toby. During subsequent questioning, Wright stated that if a stranger had done something to Toby, he would probably put her body on the side of the road and that he and Walker planned to search for her in a wooded area near where they last saw her.

Police searched the area Wright described. They found Toby’s dead body approximately 45 feet from the side of the road. She was seminude with her shirt pulled over her face. A police pathologist testified that Toby died from asphyxiation and that someone covered her airways or choked her.

A crime scene analyst from the Georgia Bureau of Investigation testified that a perpetrator who has a close relationship with his victim will often cover the victim’s face. The agent also stated that because the perpetrator left Toby’s jewelry and money at the scene, it was his opinion that the motive was not robbery. Finally, the analyst testified that in his opinion the perpetrator had intentionally altered the crime scene by scattering some of Toby’s personal items so that her body would be discovered.

Both Walker and Wright were charged with killing Toby and concealing her death. Upon questioning by police, Walker stated that at 4:00 on Saturday morning, when Dunnum purportedly saw him strike Toby, he was asleep in a trailer owned by a man named Earl Wright, Walker further stated that he did not leave Earl Wright’s trailer until 8:00 that morning. A witness who slept in the trailer on the evening of the killing initially corroborated Walker’s alibi. However, the witness testified at trial that she did so only because Earl Wright told her what to say. She further stated that in fact Walker was not at the trailer when she arrived at 4:30 a.m. or when she awoke shortly before daybreak. Finally, another witness testified that she saw Walker on Saturday morning and told him that she would try to get him and Toby back together again. She stated that as she was leaving, she heard Walker say “ ‘Damn, I shouldn’t have killed her.’ ”

On appeal, Walker asserts that the evidence is insufficient because it showed that Toby was intentionally killed, and a conviction for involuntary manslaughter requires a finding that there was no intention to kill. See OCGA § 16-5-3. Although Walker is correct that the evidence is consistent with a finding that Toby was intentionally killed, the jury could also have properly found that Walker unintentionally killed Toby during the commission of a battery or simple battery. See OCGA § 16-5-3 (a) (unintentional killing during the commission of a misdemeanor constitutes involuntary manslaughter); § 16-5-23 (a) (intentional infliction of physical harm to another constitutes simple battery); § 16-5-23.1 (intentionally causing substantial physical harm to another constitutes battery); Mansfield v. State, 161 Ga. App. 875 (1) (289 SE2d 814) (1982) (evidence which showed that battery caused death was sufficient to support conviction for involuntary manslaughter). Furthermore, because Walker requested the court to charge the jury on involuntary manslaughter, he cannot complain of a verdict that resulted from the charge. See Morrison v. State, 147 Ga. App. 410, 412 (4) (249 SE2d 131) (1978).

Finally, Walker asserts that because there was insufficient evidence for the jury to find that he killed Toby, there was also insufficient evidence to support his conviction for concealing the death. Inasmuch as we found sufficient evidence supporting his conviction for involuntary manslaughter, we find no merit in this latter assertion.

Judgment affirmed.

Pope, P. J., and Beasley, J., concur.

Decided August 20, 1998

Reconsideration denied September 10, 1998

Brennan & Wasden, David H. Connolly, Jr., for appellant.

R. Joseph Martin III, District Attorney, Keith A. McIntyre, Assistant District Attorney, for appellee.


text:
    A98A1011.
    BRUNSWICK FLOORS, INC. v. GUEST.
    (506 SE2d 670)
   Ruffin, Judge.

Brunswick Floors petitioned the trial court for an injunction against its former employee, Brian Guest, pursuant to a covenant not to compete. The trial court granted Brunswick Floors’ petition for a temporary restraining order as to the undisputed provisions preventing the solicitation and disclosure of Brunswick’s customers. However, the trial court denied Brunswick Floors’ request to enforce a provision which prohibited Guest from working as a floor covering installer in an eighty-mile radius of Brunswick for two years, holding that the restraint on the scope of activity unduly restricted Guest’s right to earn a living. Brunswick Floors appealed this latter ruling, and for reasons which follow, we affirm.

The review of the evidence in this case is de novo. Dept. of Human Resources v. Northeast Ga. Primary Care, 228 Ga. App. 130, 132 (1) (491 SE2d 201) (1997).

The record shows that Brunswick Floors, a retail floor covering business, employed Guest as a floor covering installer. On September 14,1995, after approximately five years of employment, Guest signed a covenant not to compete. The covenant prohibited Guest for two years from termination of employment from (1) “engaging] in the floor covering installation, or in floor covering services, directly or indirectly, as an individual, partner, adviser, stockholder, director, officer, clerk, principal, agent or employee, within an eighty (80) mile radius from Employer’s location at 3550 Darien Highway, Brunswick, Georgia, 31520”; (2) soliciting business in the floor covering business from any customer or providing floor covering services to any customers who have dealt with Brunswick Floors; and (3) disclosing customer lists, records, statistics, or other information acquired by Guest and from aiding or being a party to any acts which would tend to divert, diminish, or prejudice the good will or business of Brunswick Floors.

After Guest signed the covenant, Brunswick Floors sent him to Kansas City for training in advanced carpet installation. Brunswick Floors paid the cost of lodging, airfare, and training, and $150 spending money. They also sent Guest to Atlanta for a certification course in floor installation, again bearing the costs of lodging and registration.

Guest terminated his employment with Brunswick Floors in May 1997. That same year, he installed carpet for a company in Savannah, Georgia, for approximately one month. Thereafter, Guest installed carpet as an independent contractor for two other flooring companies in Brunswick, Georgia.

Brunswick Floors filed the underlying action to enjoin Guest based on Guest’s breach of the covenant not to compete. Guest responded that the covenant was invalid. The trial court, after conducting an evidentiary hearing, granted an injunction for the nonsolicitation and nondisclosure restrictions, but refused to enjoin Guest from “working for another employer as a carpet layer within an 80 mile radius of Brunswick.” In upholding the provision not to solicit customers and the provision forbidding the disclosure of customer names, the court held that the provisions were sufficient to protect Brunswick Floors from any competitive disadvantage.

In this appeal, Brunswick Floors asserts that the restriction forbidding Guest from installing carpets for two years in an eighty-mile radius is valid and the trial court erred in denying the injunction. “While a contract in general restraint of trade or which tends to lessen competition is against public policy and is void (1983 Ga. Const., Art. III, Sec. VI, Par. V (c); OCGA § 13-8-2), a restrictive covenant contained in an employment contract is considered to be in partial restraint of trade and will be upheld if the restraint imposed is not unreasonable, is founded on a valuable consideration, and is reasonably necessary to protect the interest of the party in whose favor it is imposed, and does not unduly prejudice the interests of the public. Whether the restraint imposed by the employment contract is reasonable is a question of law for determination by the court, which considers the nature and extent of the trade or business, the situation of the parties, and all the other circumstances. A three-element test of duration, territorial coverage, and scope of activity has evolved as a helpful tool in examining the reasonableness of the particular factual setting to which it is applied.” (Citations and punctuation omitted.) W. R. Grace & Co., Dearborn Div. v. Mouyal, 262 Ga. 464, 465 (1) (422 SE2d 529) (1992). Applying this three-element test to the agreement before us, we find the covenant is overbroad with regard to its territorial coverage and scope of activity restrictions.

In evaluating whether the territorial coverage restriction is over-broad, we acknowledge that the “goal of a non-competition covenant is to balance two competing rights: first, the employee’s right to earn a living and his ability to determine with certainty the prohibited territory; second, the employer’s interest in customer relationships created or furthered by its former employee on its behalf and its right to protect itself from the former employee’s possible unfair appropriation of contacts developed while working for the employer. [Cit.] Under this analysis, an employer is permitted to include in such a covenant the territory in which the employee has in fact performed work, thus protecting itself from the unfair appropriation of good will and information acquired in the course of that work. [Cits.]” Sysco Food Svcs. of Atlanta v. Chupp, 225 Ga. App. 584, 586 (1) (484 SE2d 323) (1997). In contrast, “[a] restriction relating to the area in which the employer does business is generally unenforceable due to over-breadth, unless the employer can show a legitimate business interest that will be protected by such an expansive geographic description. [Cits.]” W. R. Grace & Co., supra at 466.

In this case, the covenant restricts Guest from working within an 80-mile radius of Brunswick Floors’ location in Brunswick. Guest testified at the evidentiary hearing that he performed work for Brunswick Floors as a carpet installer in Jacksonville, Florida, and had performed other jobs outside Glynn County, Georgia. Robert Blake, corporate executive officer and president of Brunswick Floors, testified that the company performed work in markets from Savannah, Georgia, to Jacksonville, Florida. Further, Blake testified that Brunswick Floors maintained store locations in St. Simons Island, and Kingsland in Camden County, Georgia. There was no testimony presented that Guest worked in the entire 80-mile radius of the company’s Brunswick store location. The 80-mile radius relates to the area in which the employer, Brunswick Floors, and not the employee, Guest, did business. Consequently, unless Brunswick Floors can show a legitimate business interest for the restriction, the covenant is overbroad. W. R. Grace & Co., supra.

Blake testified that “if our employees start . . . doing business, working for our competitors, then certainly our market share would face, you know, diminishing status.” Avoidance of competition, however, is not a legitimate business interest. Osta v. Moran, 208 Ga. App. 544, 547 (2) (430 SE2d 837) (1993).

Brunswick Floors contends the training and money expended on Guest legitimizes their interest. “In determining the legitimacy of the interest the employer seeks to protect, the court will take into account the employer’s time and monetary investment in the employee’s skills and development of his craft.” Beckman v. Cox Broadcasting Corp., 250 Ga. 127, 130 (1) (296 SE2d 566) (1982). However, in the cases Brunswick Floors cites, the employers spent large sums of money, and the employees received extensive training. This factor, among others, outweighed the minimal harm imposed by the restrictions. Id. (television personality-employee prohibited from appearing “on air” for six months after television station-employer spent large sums in promoting his image); see also Barry v. Stanco Communications Products, 243 Ga. 68 (252 SE2d 491) (1979) (statewide territorial restriction upheld because employee worked statewide and employer had expended large sums of money in training). Here, Guest’s minimal training does not outweigh the substantial harm imposed by prohibiting him from installing carpet in an 80-mile radius. Thus, we find this to be an overbroad territorial limitation.

Decided September 10, 1998.

James D. Benefield III, for appellant.

Robert H. Baer, for appellee.

We also find the scope of activity prohibited in the non-compete provision is overbroad. The covenant provides that Guest may not “engage in the floor covering installation, or in floor covering services, directly or indirectly, as an individual, partner, adviser, stockholder, director, officer, clerk, principal, agent or employee. . . .” “This imposes a greater limitation on the employee than is necessary because [Guest] is prohibited from being an officer or director or owning stock in other companies, activities which are very different from [his] work as a [floor covering installer]. As a result, this restriction is broader than necessary to protect the employer. [Cits.]” Harville v. Gunter, 230 Ga. App. 198, 200 (2) (495 SE2d 862) (1998).

Accordingly, we affirm the trial court’s refusal to enjoin Guest “from working for another employer as a carpet layer within an 80 mile radius of Brunswick.”

Judgment affirmed.

Pope, P. J., and Beasley, J., concur.


text:
    A98A1274.
    FORD v. THE STATE.
    (506 SE2d 668)
   Ruffin, Judge.

A jury found Tyrone Ford guilty of burglary. The trial court sentenced Ford as a recidivist to 20 years without the possibility of parole. Ford appeals, challenging the sufficiency of the evidence and asserting that he was denied effective assistance of trial counsel. For reasons which follow, we affirm.

1. “ ‘On appeal from a criminal conviction, the evidence must be viewed in the light most favorable to the verdict, and the appellant (defendant here) no longer enjoys the presumption of innocence; moreover, an appellate court does not weigh the evidence or determine witness credibility but only determines whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) [(1979)]. Conflicts in the testimony of the witnesses, including the State’s witnesses, are a matter of credibility for the jury to resolve. As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.’ [Cit.]” Shabazz v. State, 229 Ga. App. 465-466 (1) (494 SE2d 257) (1997).

Viewed in this light, the evidence at trial showed that at approximately 9:30 on the morning of the incident, Shannon John was asleep in her apartment when her doorbell rang. John awoke, went to the door, looked through the peephole and saw a man whom she did not recognize. Because John was alone with her infant son, she did not answer the door and stood quietly by hoping the man would leave. However, the man continued ringing the doorbell and banging very loudly on the door. When John heard the door opening, she realized the man was “trying to force himself into [her] home. . . .” Afraid, John ran to her bedroom and grabbed her son. As she was climbing from a window in the back of her apartment, John heard the door break open.

Once outside, John ran toward the apartment of her neighbor, Alexis Hicks. As she was running, John saw the man who was at her front door coming in her driveway toward the back of her apartment. Hicks, who was startled by a loud noise, went to the back of his apartment where he saw the same man running through his back yard. When Hicks returned to the front of his apartment to see what was going on, John told him that “some guy had broken into her house.” Hicks ran after the man and asked him if he broke into John’s home. The man responded that he had not and that he was just going home.

The police were called, and when they arrived John and Hicks gave a description of the individual. A few minutes later, an officer spotted Ford, who matched the description. The officer brought Ford back to John’s apartment where she identified him as the man at her front door and Hicks identified him as the man he saw in his back yard. Both John and one of the arresting officers positively identified Ford as the same man at trial.

On appeal, Ford asserts there was insufficient evidence to establish that he committed a burglary. We disagree. “ A person commits the offense of burglary when, without authority and with the intent to commit a felony or theft therein, he enters or remains within the dwelling house of another. . . .’ OCGA § 16-7-1 (a). To complete the crime of burglary, it is not necessary that a defendant actually commit a completed theft; it is sufficient if he enters without authority and with the intent to commit a theft or felony. [Cits.]” Igle v. State, 223 Ga. App. 498, 500 (3) (478 SE2d 622) (1996). “ The matter of whether [Ford] intended to commit a felony [or theft] when he . . . entered [John’s] house was for determination by the jury under the facts and circumstance[s] proved. [Cit.]’ ” Id. Similarly, the issue of whether the witnesses properly identified Ford as the person who committed the offense was for the jury to decide. See Brewer v. State, 219 Ga. App. 16, 17 (1) (463 SE2d 906) (1995). Finally, although Ford contends that there was no evidence that he actually entered John’s apartment, the jury was authorized to find that such entry occurred when Ford broke down the front door of the apartment. See Hayes v. State, 193 Ga. App. 33 (1) (387 SE2d 139) (1989). Accordingly, viewing the evidence in a light most favorable to the jury’s verdict, we are satisfied that any rational trier of fact could have found Ford guilty beyond a reasonable doubt of burglary. See id.

2. Ford, who is represented by new counsel on appeal, also asserts that the trial court erred in denying his motion for new trial because he was denied effective assistance of trial counsel. Specifically, Ford contends that trial counsel was ineffective because he failed to tell him that if convicted, he faced a possible recidivist sentence of 20 years without parole. According to Ford, if trial counsel had informed him of the lengthy sentence, he would have accepted the State’s plea offer.

“ A trial court’s finding that a defendant has not been denied effective assistance of trial counsel will be affirmed unless clearly erroneous. Here, [Ford] must overcome the strong presumption that defense counsel’s conduct falls within the broad range of reasonable professional conduct. To establish ineffective assistance of counsel, a defendant must show that his counsel’s performance was deficient and that the deficient performance prejudiced his defense.’ ” Randolph v. State, 225 Ga. App. 324 (484 SE2d 1) (1997).

At the motion for new trial hearing, trial counsel testified that “on several occasions” he informed Ford that if convicted, he would have to serve a full 20-year sentence without the possibility of parole. Trial counsel also stated that Ford indicated that he understood the recidivist sentencing but “he kept maintaining his innocence and that he would not plead.”

Although Ford denied that trial counsel informed him of the sentence, “[determining the credibility of these witnesses was a matter for the trial court’s discretion. [Cit.]” Randolph, supra at 324. “Under these circumstances, the trial court did not err in finding [trial counsel] provided reasonably effective assistance. [Cits.]” Id. at 325.

Judgment affirmed.

Pope, P. J., and Beasley, J., concur.

Decided September 10, 1998.

William D. Phillips, for appellant.

Charles H. Weston, District Attorney, Robert J Lasseter, Thomas C. Woody II, Assistant District Attorneys, for appellee.


author: Judge Harold R. Banke.

text:
    A98A1323.
    McCLURE v. THE STATE.
    (506 SE2d 667)
   Judge Harold R. Banke.

Lewis McClure was convicted of first degree forgery. In his sole enumeration of error, he challenges the sufficiency of the evidence.

This case arose after the victim’s purse was snatched as she and her family left a downtown restaurant. Piefer v. State, 228 Ga. App. 385 (491 SE2d 836) (1997) (evidence is reviewed on appeal in the light most favorable to the verdict). Her checkbook was in the purse. Shortly after the snatching, the victim put a stop payment on certain numbered checks in her checking account.

Over a month later, McClure presented one of the checks stolen from the victim’s purse at the drive-through window of a local bank. The check was made payable to McClure and was endorsed by him on the back. When McClure presented his driver’s license as identification, the teller examined the picture and determined that it depicted the individual who handed it to her. She also matched the signature on the license to that on the endorsement.

After discovering the stop payment, she declined to cash the check. Instead, she wrote the driver’s license number on the back of the check, photocopied it, and returned the check to McClure. McClure was arrested after this information was given to the police. Held-.

McClure argues that the evidence was insufficient to establish that he possessed the check without the victim’s authority and uttered the check. We disagree.

The pertinent elements of forgery in the first degree are (1) knowingly making, altering, or possessing any writing (2) in such manner that the writing as made or altered purports to have been made by authority of one who did not give such authority and (3) uttering or delivering such writing (4) with the intent to defraud. OCGA § 16-9-1 (a). At trial, the teller could not specifically remember the incident at issue, which had occurred two years previously. However, the record showed that she routinely compared the faces of customers seeking to cash checks with the identification they were required to present. In fact, she received special training in following the procedure for matching faces to driver’s licenses. The teller testified that had she not matched McClure’s face to the picture on his license, she would have noted that on the back of the check. There was no such notation on the back of the check at issue. Moreover, a handwriting expert testified that the signature on the back of McClure’s license in all probability was written by the same individual who endorsed the check. In addition, the victim’s eighth grade son identified McClure in a photo lineup and at trial.

Decided September 10, 1998.

Juwayn N. Haddad, for appellant.

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

On appeal, our review is limited solely to sufficiency of the evidence, viewed in the light most favorable to the verdict. Jackson v. Virginia, 443 U. S. 307, 319-320 (99 SC 2781, 61 LE2d 560) (1979). Judgments regarding its weight or credibility of witnesses are beyond our purview. Jenkins v. State, 230 Ga. App. 166, 170 (2) (495 SE2d 647) (1998). The evidence presented, while primarily circumstantial, was sufficient to permit the jury to find all the essential elements of the crime. See Gordon v. State, 206 Ga. App. 450, 454 (3) (425 SE2d 906) (1992).

Judgment affirmed.

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


text:
    A98A1334.
    CRAFT v. THE STATE.
    (506 SE2d 663)
   Ruffin, Judge.

Glenn Craft pled guilty to the charge of battery. On appeal, he contends the trial court erred by (1) accepting his guilty plea and (2) denying his motion to withdraw the guilty plea. For reasons which follow, we affirm.

The record shows that Craft was charged with the offense of battery after he intentionally caused visible bodily harm to his wife, Nicole Craft. Although the hearing in which Craft pled guilty to this offense was not transcribed, he did sign a written form “plea statement,” which was filed with the clerk of court on the same date it was signed by Craft.

In this plea statement, Craft acknowledged the following: “I understand that I may plead not guilty to any charge against me. If I plead not guilty, the law gives me (1) the right to a speedy and public jury trial; (2) the right to see, hear and cross-examine all witnesses called against me; (3) the right to use the power of the court to subpoena witnesses and evidence to be used to defend me; (4) the right to have a lawyer to assist me at all stages of the proceedings; (5) that I do not have to testify or produce evidence against myself; (6) that I have the right to have the State prove my guilt beyond a reasonable doubt, and until that is done, I am presumed innocent. I understand that if I cannot afford to hire an attorney, that the Court may appoint an attorney to represent me without cost to me. I understand that the law provides that a sentence could be imposed that could include 12 months imprisonment and a fine of up to $5,000.00. I also understand that by entering a plea of guilty or nolo contendere, the Court may sentence me as if I had stood trial and been convicted by a jury. I understand that the Court may make my sentences run consecutively, that is, one after the other. I understand that a lawyer may be able to discover a defense to the charge(s) pending against me, or could offer evidence which may aid insofar as sentencing is concerned. Nevertheless, I have read the accusation against me, understand the nature of the charges against me and the consequences of my plea, and I freely and voluntarily waive my right to counsel.”

The form indicates that Craft was not represented by counsel at the plea hearing and further states: “My date of birth is 5/14/59 and I have 12 years of education. No one has made any promise of any kind to me, or within my knowledge, to anyone else that I will receive a lesser sentence, or probation, or any form of leniency if I enter this plea. I am not under the influence of any drugs or intoxicants of any kind. I understand that the Judge is not bound by any recommendation or negotiations. The Judge may impose a lesser sentence, greater sentence, or may accept the recommendation. I am entering this plea freely and voluntarily, of my own accord, and with full understanding of all the matters set out in the accusation and in this plea statement, and this plea is done with the advice and consent of my attorney, if any. I have read and understand the above plea statement. I am signing this plea statement in the presence of the court.” (Paragraph indentions omitted; emphasis in original.)

The trial judge signed the plea statement under the following language: “The above statement having been made by the Defendant in the presence of the Court, the foregoing rights afforded the Defendant having been personally read to the Defendant by the Court, the Court being satisfied that the Defendant understands all rights applicable to him/her, all the consequences of his plea, that the plea is entered knowingly, freely and voluntarily, and there having been a sufficient factual basis shown for the acceptance of this plea, IT IS HEREBY ORDERED that the Defendant’s plea be accepted.”

Three days after Craft pled guilty and was sentenced, his current counsel filed an entry of appearance and moved to withdraw his guilty plea. At the conclusion of the hearing on this motion, the trial judge explained that “[t]he order which is on file in this case is not merely a form. . . . It is a memorialization of the personal inquiry that I make in each and every case when a defendant pleads guilty or nolo contendere before me. The findings which are represented in that plea statement, are true findings; and not merely form findings.” The trial judge also detailed the inquiry he made during Craft’s plea statement before denying the motion to withdraw the plea.

1. Craft asserts the trial court erred in denying his motion to withdraw his plea because the State failed to carry its burden of showing that his plea was knowing and voluntary. We disagree. “ ‘An accused may withdraw a guilty plea at any time before judgment is announced and may then plead not guilty. However, once sentence is pronounced (as occurred in this case), a withdrawal of a plea is within the sound discretion of the court, and this discretion will not be disturbed unless there is a manifest abuse of discretion. (Cit.)’ [Cit.]” Collins v. State, 163 Ga. App. 403 (294 SE2d 623) (1982). “After a prisoner raises the question of the validity of his plea of guilty, the burden is on the state to show that the plea was intelligently and voluntarily entered. The state may accomplish this end by two means, (1) showing on the record of the guilty plea hearing that the defendant was cognizant of all of the rights he was waiving and the possible consequences of his plea; or (2) fill a silent record by use of extrinsic evidence that affirmatively shows that the guilty plea was knowing and voluntary.” Roberts v. Greenway, 233 Ga. 473, 475 (1) (211 SE2d 764) (1975).

We find no merit in Craft’s contention that the State failed to meet this burden. The written plea statement signed by Craft, as well as the record of the hearing on the motion to withdraw the plea, satisfies the State’s burden of proving that his plea was knowing and voluntary. See King v. State, 226 Ga. App. 576, 584 (4) (486 SE2d 904) (1997) (cert. granted); Obi v. State, 230 Ga. App. 476 (1) (496 SE2d 556) (1998).

2. Craft claims his plea was entered unintelligently because he mistakenly believed that he “could expedite the process without facing any jail time or fine or both” by pleading guilty. Craft also asserts that his “plea was entered while he was intimidated in Court.” Thus, according to Craft, the trial court erred when it denied his motion to withdraw his plea. These claims provide no basis for requiring the withdrawal of his guilty plea. Craft’s claims of mistake and intimidation contradict the plea statement signed by Craft.

The question of whether to permit withdrawal of a guilty plea rests in the sound discretion of the trial court. Neal v. State, 216 Ga. App. 223, 224 (453 SE2d 807) (1995). Any question of credibility was for the trial court to determine, and we find no abuse of discretion by the court. Id. See also Manues v. State, 232 Ga. App. 454 (501 SE2d 826) (1998).

3. Craft contends the trial court erred in accepting his guilty plea without ascertaining the factual basis for his plea on the record as required by Uniform Superior Court Rule 33.9. “USCR 33.9 requires the trial court to make ‘such inquiry on the record as may satisfy him that there is a factual basis for the plea.’ ” State v. Evans, 265 Ga. 332, 334 (2) (454 SE2d 468) (1995). In Evans, the Supreme Court of Georgia determined that the “on the record” language of USCR 33.9 is obligatory and that the record of the plea hearing must show an inquiry by the trial court into the factual basis for the plea. Id. at 333-334. A trial court can learn the factual basis for the plea “from material contained in parts of the record other than the guilty plea hearing so long as the trial court makes clear on the plea hearing record that he is relying on those parts of the record and so long as those parts of the record are made a part of the record for appeal.” Id. at 335 (2).

In this case, the State concedes and we find that the record of the plea hearing fails to show the factual basis for Craft’s guilty plea as required by USCR 33.9. However, the State correctly asserts that our analysis does not end here.

In Evans, the Supreme Court held “that not every violation of Rule 33.9 mandates the grant of a motion to withdraw a plea.” Id. at 335 (3). “Should a reviewing court ascertain that the record does not demonstrate a factual basis for the plea, the reviewing court is then required to determine whether withdrawal of the defendant’s guilty plea is necessary to correct a manifest injustice. Evans, supra, 265 Ga. at 336. In undertaking the manifest injustice analysis, the reviewing court is authorized to examine evidence that was not part of the guilty plea hearing. Id.” Wharton v. Henry, 266 Ga. 557, 558 (2) (469 SE2d 27) (1996). Thus, “review for determination of whether there was a factual basis for a guilty plea is limited to the record created at the guilty plea hearing, while the manifest injustice review may take into consideration other evidence before the reviewing court as well as the evidence placed before the trial court accepting the guilty plea.” Id.

In Evans, the Supreme Court concluded that withdrawal of the guilty plea was not necessary to correct a manifest injustice because “the detailed statements of the victim that are outlined in the affidavit of the juvenile investigator provide a more than adequate factual basis for the crime.” Evans, supra at 336. This affidavit “was contained in a part of the record outside the plea hearing.” Id. at 332. Here, the affidavit of the victim was included in the record and provides a factual basis for Craft’s guilty plea. As a result, we find “that withdrawal of [Craft’s] guilty plea is not necessary to correct a manifest injustice.” Id. at 336.

Decided September 10, 1998.

Murble A. Wright, for appellant.

Keith C. Martin, Solicitor, Rebecca G. Simpson, Assistant Solicitor, for appellee.

4. We reject Craft’s assertion that the trial court erred when it failed to immediately record the plea pursuant to OCGA § 17-7-93 (b). This statute provides that if a person pleads guilty at his arraignment, “the plea shall be immediately recorded on the minutes of the court by the clerk.” Id. The record shows compliance with this statute because Craft’s plea statement was filed with the clerk on the same date it was signed by Craft.

5. In his remaining enumeration of error, Craft asserts the “trial court erred in denying the Motion to withdraw guilty plea when the presiding judge took an active role as advocate for the State.” We reject the notion that the trial court acted as an advocate for the State during the motion to withdraw hearing. The trial judge simply recited his recollection of Craft’s plea hearing as a means of explaining his decision to deny the motion to withdraw. Accordingly, this enumeration is without merit. Cf. King, supra at 582.

Judgment affirmed.

Pope, P. J., and Beasley, J., concur.


text:
    A98A1360.
    GILMER v. THE STATE.
    (506 SE2d 452)
   Judge Harold R. Banke.

A jury convicted Clarence Gilmer of rape, statutory rape, incest and child molestation of his daughter over a period of years. The trial court sentenced him to serve 20 years concurrently on each count. Gilmer enumerates four errors. Held:

1. Gilmer contends that he was entitled to a directed verdict of acquittal based upon the State’s failure to prove venue beyond a reasonable doubt. The evidence was not in conflict on this issue. See Joiner v. State, 231 Ga. App. 61, 63 (497 SE2d 642) (1998).

The victim testified that she lived with her parents, Clarence and Janice Gilmer, on Browning Road in Rockmart, Georgia, for approximately 12 years before she moved out after turning 18 years old. She also testified that her father began molesting her at the age of seven when she was living with them at the Rockmart address. This molestation progressed to sexual intercourse when the victim was 13 years old. The victim testified that all of the alleged molestation and sexual intercourse occurred in the house located on Browning Road.

OCGA § 17-2-2 (a) provides that “[cjriminal actions shall be tried in the county where the crime was committed, except as otherwise provided by law.” This Court can take judicial notice of the fact that Rockmart, Georgia, is located wholly in Polk County, Georgia, the location in which appellant was tried. See Scott v. State, 210 Ga. 137, 139 (5) (78 SE2d 35) (1953); Landy v. State, 155 Ga. App. 763 (3) (272 SE2d 735) (1980). The evidence was sufficient to establish that fact.

2. Gilmer contends that the trial court should have allowed the victim’s mother to testify about previous false allegations of molestation the victim purportedly made. In Smith v. State, 259 Ga. 135, 137 (1) (377 SE2d 158) (1989), the Supreme Court of Georgia mandated that the trial courts of this State “must make a Threshold determination (outside the presence of the jury) that a reasonable probability of falsity exists’ ” before admitting evidence of prior false allegations of molestation. The purpose of this procedure is to “protect the prosecutrix from unfounded allegations that she has made similar allegations in the past.” Id. at 138 (1). See also Strickland v. State, 205 Ga. App. 473 (422 SE2d 312) (1992).

The record shows that the trial court heard a proffer of evidence from the victim’s mother outside the presence of the jury as required by Smith. The mother testified that the victim had sexual intercourse with an uncle, who had been charged with child molestation. She also apparently believed that the victim’s older brother had molested her. She testified that the victim claimed to have been “messed with” by two other uncles, her grandfather, a high school teacher and three other named men. At one point, the mother asserted that the victim claimed to have been molested by “about twenty, thirty” men, but the mother’s only explanation for disbelieving the allegations was that the victim had lied so much to her in the past that she could no longer believe her. The mother admitted she had never spoken to any of the men her child accused.

“The admission of evidence is a matter resting largely within the sound discretion of the trial court, and appellate courts will not interfere absent an abuse of discretion.” Lewis v. Uselton, 224 Ga. App. 428, 431 (8) (480 SE2d 856) (1997). We decline to find, based upon the testimony presented in this case, that the trial court abused its discretion when it precluded the victim’s mother from testifying about the alleged false accusations of molestation. The mother’s unsupported opinion about the victim’s veracity in general cannot be used to show the reasonable probability of falsity required by the Supreme Court of Georgia in Smith.

Our decisions in Strickland, and Hines v. State, 221 Ga. App. 193 (470 SE2d 787) (1996), relied upon by Gilmer, are distinguishable. The proffered witnesses testified to actual discrepancies in the victims’ allegations, rather than merely speculating about their veracity in general.

3. Gilmer contends that he was entitled to a directed verdict of acquittal on the rape count because the State failed to establish the required element of force. We find no merit in this enumeration. “Force, as an element of rape, need not be proven by evidence of physical violence.” Shelton v. State, 196 Ga. App. 163 (1) (395 SE2d 618) (1990). “[E]vidence of a victim’s lack of resistance induced by fear authorizes a finding of force.” Callahan v. State, 203 Ga. App. 898, 899 (3) (418 SE2d 157) (1992). Although the victim willingly had sexual intercourse with Gilmer from the age of 13 to 17 because he taught her it was normal, she also testified that she confronted him about the propriety of their conduct after watching a television program when she was 17 years old. When she told Gilmer that she intended to call child abuse services, he threw her up against a bathroom wall and threatened to kill her. He also told her that her mother would also kill them both if she found out. The victim continued to have sex with Gilmer after this incident until she moved out of the house after turning 18 years old.

We find this evidence sufficient to meet the standard of proof required by Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). The trial court did not err when it denied Gilmer’s motion for a directed verdict of acquittal on the rape charge.

4. Gilmer contends the trial court should not have admitted into evidence a photocopy of a typed statement provided by the victim’s mother to the police because doing so violated the best evidence rule. See OCGA § 24-5-4 (a). The record shows that the trial court admitted the original statement into evidence without any objection by Gilmer’s counsel. The contents of the statement were discussed at length during the testimony of the victim’s mother. At the close of trial, the statement, along with other trial exhibits, was submitted to the jury for its consideration. When the jury returned the next day to continue its deliberations, it informed the trial court that the statement was missing. The jury also advised the trial court that it had already read and determined the importance of this exhibit before it was lost. The trial court questioned court personnel and the jury in an unsuccessful effort to locate the original statement. It then substituted for the original, over the general objection of Gilmer’s counsel, a photocopy of the statement to be considered by the jury in its continued deliberations. In these circumstances, where the original statement was admitted into evidence without objection and was actually read and considered by the jury before the photocopy was substituted in its place, Gilmer failed to show how the purported error harmed him. See Stoe v. State, 187 Ga. App. 171, 172 (1) (369 SE2d 793) (1988).

Decided September 10, 1998.

Gammon & Anderson, Brad J. McFall, for appellant.

James R. Osborne, District Attorney, Todd C. Alley, Assistant District Attorney, for appellee.

Judgment affirmed.

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


author: Johnson, Presiding Judge.

text:
    A98A1374.
    MARSHALL v. SDA, INC.
    (506 SE2d 661)
   Johnson, Presiding Judge.

SDA, Inc. sued Andrew Marshall on a promissory note. SDA filed a motion for summary judgment, which was denied by the trial court because there was “some question as to the signature of [Marshall] on the notes.” The case came to trial before a judge in the State Court of Muscogee County. The trial court issued an order and judgment in favor of SDA. Marshall filed a motion to set aside the judgment or, in the alternative, for a new trial, which was denied by the trial court. He appeals the trial court’s judgment. We affirm.

1. Marshall contends the trial court erred in not considering the entire record. In his one paragraph argument, devoid of any citations to the record or to legal authority, Marshall refers to two affidavits filed in opposition to SDA’s motion for summary judgment. However, there is no indication that these affidavits or the evidence contained in the affidavits was presented during the bench trial. A trial court’s findings of fact are analogous to a jury’s verdict and will be upheld if there is any evidence to support them. Sommers v. State Compensation Ins. Fund, 229 Ga. App. 352, 355 (4) (b) (494 SE2d 82) (1997). The burden is on Marshall to establish error by the record. Marshall has not provided this Court with a trial transcript or a statutorily authorized substitute pursuant to OCGA § 5-6-41. It appears from the trial court’s findings of fact and conclusions of law that it relied on the trial evidence in making its determination. Thus, we cannot say that the trial court’s ruling is not supported by evidence. See Sommers, supra.

2. Marshall next maintains that the trial court erred in sitting as a judge and a jury. He cites Davis v. Holt, 105 Ga. App. 125, 130 (1) (c) (123 SE2d 686) (1961), for the proposition that a judge who finds issues of material fact and denies a party’s motion for summary judgment cannot thereafter hear the case in a bench trial. This is an incorrect reading of Davis. Davis merely reiterates the well-established principles that (1) a party is entitled to a trial if there are any issues of material fact which need to be resolved in the case, and (2) a judge is not permitted at the summary judgment stage of a case to resolve material issues of fact. Id. However, it is also well established that a judge is permitted to resolve material issues of fact when sitting as the factfinder in a subsequent bench trial. See McMillan v. Motor Warehouse, 221 Ga. App. 550, 551 (472 SE2d 120) (1996); Gibson v. Pierce, 176 Ga. App. 287, 288 (335 SE2d 658) (1985). Moreover, the record does not show that Marshall ever demanded a jury trial or objected to the case proceeding as a bench trial; thus he waived his right to a jury trial. See Matthews v. Matthews, 268 Ga. 863, 864 (2) (494 SE2d 325) (1998); Sommers, supra at 355 (4) (a).

3. In his final enumeration of error, Marshall contends the trial court erred in admitting into evidence copies of documents in violation of the best evidence rule. We note once again that Marshall has the burden to provide this Court with a sufficient record to enable us to determine whether the trial court’s ruling was correct. In the absence of a trial transcript or statutorily authorized substitute, it must be presumed that the trial court correctly ruled on the issue presented. See Beech Aircraft Corp. v. Jackson, 199 Ga. App. 627 (405 SE2d 518) (1991).

4. SDA requests that this Court impose a frivolous appeal penalty on Marshall in accordance with OCGA § 5-6-6 and Court of Appeals Rule 15 (b). OCGA § 5-6-6 authorizes sanctions for frivolous appeals which are taken up only for purposes of delay. This is such a case. “Delay can be assumed where an appeal lacked merit. [Cits.] If an appellant knew or should have known that an appeal was ill-founded, sanctions should issue. [Cit.]” Stringer v. Harkleroad & Hermance, 218 Ga. App. 701, 704-705 (2) (463 SE2d 152) (1995). Moreover, damages for delay are especially appropriate where the underlying action, like this one, involves a collection action. Id. at 705. It does not appear that there was any valid reason for Marshall to anticipate reversal of the trial court’s judgment. Therefore, we grant an award for damages for delay against Marshall in the amount of ten percent of the judgment ($1,394.68) and order that Marshall be required to pay interest at the legal rate on that award from the date this decision is published. See Cook v. Rowland, 221 Ga. App. 835, 837 (2) (472 SE2d 444) (1996); OCGA § 5-6-6. On remittitur, the trial court is directed to enter judgment in favor of SDA for frivolous appeal damages in accordance with this opinion.

Judgment affirmed and remanded with direction.

Smith, J, and Senior Appellate Judge Harold R. Banke concur.

Decided September 10, 1998.

William J. Wright, for appellant.

Decker & Hallman, Peter V. Hasbrouck, for appellee.


text:
    A98A1421.
    SMITH v. THE STATE.
    (506 SE2d 659)
   Judge Harold R. Banke.

A jury convicted Demarco Smith of involuntary manslaughter, reckless conduct, pointing a pistol at another, and possession of a pistol by a person under the age of 18. On appeal, Smith challenges the sufficiency of the evidence and the omission of an unrequested jury charge.

An eyewitness, Marcus Germany, testified that the shooting occurred while he, Smith, and the victim, who were friends, were walking from a store where the victim had purchased chicken wings. Germany was walking several feet behind the victim and Smith, and they were all laughing about the cold weather and who would carry the chicken wings. As Germany lagged behind, he heard a click immediately followed by the sound of a gun firing at extremely close range. Germany then saw the victim lying on the ground bleeding from a head wound with Smith standing over him. According to Germany, before the shot was fired, he did not overhear any arguing between the victim and Smith.

At the scene, Smith told the responding officer that the victim was shot by an unknown drive-by assailant, immediately after they heard someone shout from the roadway. Later, Smith disclosed to police that he had shot the victim.

The victim’s aunt testified that she spoke with Smith at the police station at his request. Smith told her that he shot the victim and was sorry. Smith explained to the aunt that he had purchased the gun the evening before and was showing it to the victim when it accidentally fired. Smith told her that the victim was holding the barrel of the gun and was looking down into it when he advised him that the gun should not be held that way. Smith claimed that when he attempted to grab the gun away from the victim, it fired. According to the aunt, Smith told her that he always kept his guns cocked and this gun was cocked when he pulled it out of his pocket to show it to the victim.

The defense rested without presenting any evidence. Over objection by the State, the trial court read verbatim the accident charge requested by defense counsel. Smith’s charge failed to instruct the jury that the State had the burden to disprove the defense of accident beyond a reasonable doubt. In its instruction, the trial court gave charges on the presumption of innocence, the burden of proof in general, criminal intent, and the burden to prove the elements of the crimes alleged in the indictment. Held:

Decided September 10, 1998.

Paul J. McCord, for appellant.

1. Smith challenges the sufficiency of evidence relating to his conviction for involuntary manslaughter. The essential elements of that offense are: (1) committing an unlawful act other than a felony (2) when causing the death of another person, (3) without intending to do so by the commission of the unlawful act. OCGA § 16-5-3 (a). The testimony showed that Smith, a minor, was unlawfully in possession of a handgun which he had cocked and recklessly pointed at another causing his death. Based on this evidence, the jury was authorized to find Smith guilty under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. Smith contends that the trial court erred when it failed to instruct the jury, sua sponte, that the State had the burden to disprove the defense of accident beyond a reasonable doubt.

This precise issue has been resolved adversely to Smith. Ross v. State, 268 Ga. 122, 125 (7) (485 SE2d 780) (1997). In Ross, the Supreme Court refused to reverse notwithstanding the fact that the trial court did not expressly instruct the jury that it was the State’s burden to disprove that defense beyond a reasonable doubt. Id. The Supreme Court determined that “[w]here, as here, the court charges the jury on the elements of the defense of accident, the presumption of innocence, the burden of proof in general, criminal intent, and the burden to prove the elements of the crimes alleged in the indictment, it is not error to fail to again instruct on the State’s burden in the context of the accident defense.” Id. In this case, since the trial court gave the same instructions found to be sufficient in Ross, there was no error. See Bruce v. State, 259 Ga. 798, 799 (3) (387 SE2d 886) (1990).

Smith’s reliance upon Griffin v. State, 267 Ga. 586 (1) (481 SE2d 223) (1997) is misplaced. Griffin held that it was reversible error for the trial court to refuse to give a requested instruction on the State’s burden to disprove an accident defense beyond a reasonable doubt. Id. at 586-587 (1). But here, there was no such request.

Judgment affirmed.

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

J. Tom Morgan, District Attorney, Thomas S. Clegg, Maria Murder-Ashley, Assistant District Attorneys, for appellee.


author: Andrews, Chief Judge.

text:
    A98A1516.
    WOFFORD v. THE STATE.
    (506 SE2d 656)
   Andrews, Chief Judge.

Kenneth Wofford appeals from the judgment entered after a jury found him guilty of DUI. For the reasons which follow, we affirm the judgment of the trial court.

The evidence at trial was that on the night in question, a Cobb County police officer saw Wofford pull out in front of two cars onto Delk Road, forcing both cars to slam on their brakes. The officer followed Wofford’s car and saw it swerving in and out of its lane.

After the officer stopped Wofford, he walked up to the car and noticed that Wofford’s eyes were bloodshot and he smelled strongly of alcohol. The officer asked Wofford if he had been drinking, and Wofford replied he had drunk six or seven beers.

The officer then asked Wofford to perform several field sobriety tests, including the horizontal gaze nystagmus, one-leg stand, walk and turn, finger to nose, ABCs, and an aleo-sensor test. The officer was not National Highway Traffic Safety Administration-certified and did not score the tests, but only made observations about Wofford’s performance.

Based on these observations, the officer arrested Wofford, charging him with DUI, failure to yield the right of way and failure to maintain lane. The officer placed Wofford in the rear of his patrol car and attempted to read him the implied consent warning. The officer testified that Wofford was uncooperative and he had a hard time getting him into the police car. The officer stated that Wofford would not calm down and continued to talk incessantly. Because Wofford was being difficult, the officer told him that he was being videotaped, even though no tape was in the machine and the equipment was not operating.

After Wofford calmed down, the officer was able to read the implied consent notice and request that Wofford take a blood test, which Wofford refused to do. At trial, the jury found Wofford guilty of DUI, and this appeal followed.

1. In his first enumeration of error, Wofford contends the trial court should have granted his motion for new trial because the arresting officer used the word “failed” in conjunction with Wofford’s field sobriety tests. At the pretrial hearing on Wofford’s motion in limine, the trial court ruled that the arresting officer “could not use the words he passed or failed a test,” referring to the field sobriety tests. During cross-examination, the officer stated, “And you got to remember he has failed every single test on my —,” at which point defense counsel objected and the jury was excused.

The court denied Wofford’s motion for mistrial, but gave the following curative instruction: “A roadside test can never be a test that is either passed or failed. The roadside test is only an indicator that, taken with other evidence and observations, can assist an officer in making a decision to arrest or not to arrest a citizen subject to violating a statute of this state. . . .”

“Where a motion for mistrial is made on the ground of inadmissible matters being presented to the jury, the corrective measure to be taken by the trial court is largely a matter of discretion, and where, as here, proper corrective measures are taken and there is no abuse of that discretion, a refusal to grant a mistrial is not error.” (Punctuation omitted.) Samples v. State, 227 Ga. App. 596, 597 (1) (490 SE2d 172) (1997). The curative instructions rendered any error harmless.

2. Next, Wofford argues the officer was not qualified to testify about the results of the horizontal gaze nystagmus test he administered to Wofford. But, the trial transcript shows the officer was not allowed to testify and did not testify as to any results of the HGN test. The officer’s only testimony on the HGN test was that Wofford moved his head while taking the test although he was instructed not to do so. An officer may testify about his observations while administering a test. Simms v. State, 223 Ga. App. 330, 333 (2) (477 SE2d 628) (1996); Sieveking v. State, 220 Ga. App. 218, 219-220 (469 SE2d 235) (1996).

3. Next, Wofford claims the officer testified improperly about the aleo-sensor test. The testimony in question was a statement by the officer that an alco-sensor “gives a reading for the blood alcohol concentration.” Wofford argues that the jury could infer from this that the officer knew Wofford’s blood alcohol concentration before the arrest.

The judge, after discussion with both sides, gave the following curative instruction: “you will disregard any and all testimony at this point that has been given in the case regarding an Alcosensor. You will give it no consideration. And as a matter of fact, you will consider this case as if that portion of the questioning never occurred.” In light of the above, refusal to grant a mistrial over this testimony was not error. Samples, supra.

4. Wofford also contends the trial court should have granted a mistrial because of the prosecutor’s improper statements during closing argument as follows: “what he will do if you find him not guilty in the case is, he’ll do it again.” Defense counsel objected, and the court advised the jury as follows: “no reference will be made speculatively as to what a person will state in the future or do in the future. Your attention has to be what has occurred in the past. And you are looking at facts in the evidence that you have observed during the trial in order to make a decision of guilt or innocence.”

“The extent of a rebuke and instruction is within the discretion of the court, and when the improper remarks are cured by timely corrective action calculated to preserve the defendant’s right to a fair trial, then we cannot say that the court abused its discretion in refusing to grant a mistrial.” (Punctuation omitted.) Horah v. State, 173 Ga. App. 306, 309 (4) (325 SE2d 917) (1985).

5. Wofford next argues that, under the totality of the circumstances, the cumulative effect of these errors denied him a fair trial. This state does not recognize the cumulative error rule. Bridges v. State, 268 Ga. 700, 708 (9) (492 SE2d 877) (1997).

6. Next, Wofford claims the court should have suppressed evidence of his refusal to submit to a blood test because the officer read him a deceptive implied consent warning. Wofford claims he refused to submit to the requested blood test because he did not believe there would be any penalties in his home state of South Carolina, i.e., that only his driving privileges in Georgia would be affected.

There is no merit to this enumeration. Wofford does not contend the implied consent warning the officer read to him was not correct, but rather, that it was misleading, citing State v. Coleman, 216 Ga. App. 598 (455 SE2d 604) (1995), which urged the legislature to change the wording of the implied consent warning to make it clear a motorist can also face penalties in his home state. The legislature did not follow the urging of this Court. The proper implied consent warning as enacted by the legislature was read to defendant without error. OCGA§ 40-5-67.1.

7. Wofford also contends the trial court should have suppressed evidence of his refusal of the blood test due to his reliance upon false statements of the officer concerning the taping of the arrest. The officer told Wofford that the stop was being videotaped; however, the camera was not running. Wofford claims that since he was relying on the videotape to show he was not drunk, he thought he was safe in refusing to submit to the blood test. Therefore, Wofford argues the evidence of his refusal should have been suppressed. We disagree.

We note at the outset that Wofford cites to no case law on point in support of this claimed error, and we find none. Moreover, there is no evidence of bad faith or evidence that the misrepresentation resulted in any constitutional violation. See, e.g., Arizona v. Youngblood, 488 U. S. 51 (109 SC 333, 102 LE2d 281) (1988) (due process violation if police failure to preserve evidence was done in bad faith); State v. Ritter, 268 Ga. 108 (485 SE2d 492) (1997) (because of officers’ misrepresentations, trial court correctly found defendant’s incriminating statement was not voluntarily made); Beasley v. State, 204 Ga. App. 214 (419 SE2d 92) (1992) (consent to search was not voluntary when officer misled appellant by saying that purpose of urine test was to determine amount of bond and never informed appellant that it could be used as evidence against him); Spaulding v. State, 195 Ga. App. 420 (394 SE2d 111) (1990) (no due process violation since defendant could not show bad faith in police destruction of videotape). The officer testified that the only reason he lied to Wofford about the camera was because Wofford was being uncooperative and would not stop talking long enough for the officer to read the implied consent warning. Under these circumstances, we find no error.

Decided September 10, 1998

William C. Head, for appellant.

Barry E. Morgan, Solicitor, Laura J. Murphree, Assistant Solicitor, for appellee.

Judgment affirmed.

Smith, J., and Senior Appellate Judge Harold R. Banke concur.


text:
    A98A1830.
    MARK THE MOVER et al. v. LANCASTER.
    (506 SE2d 673)
   Johnson, Presiding Judge.

In this workers’ compensation case, the State Board denied the claim on the ground the employee’s injury did not arise out of and in the course of his employment, but the superior court concluded otherwise and reversed. Because there was evidence supporting the State Board’s factual findings, we in turn reverse the superior court’s decision.

Roland Lancaster was employed as an office worker by Mark the Mover, which was owned and operated by his son-in-law, Richard Whitehead. Lancaster’s job duties consisted of answering the telephone, making moving arrangements, repairing furniture, and occasionally moving furniture. If he had to deliver any furniture, he usually drove a company truck or his own van. Whitehead provided him with a pager so that he could be contacted when needed.

In December 1995 Lancaster’s own van broke down, and he began walking to work each day. He eventually became tired of walking to work, and on January 18, 1996, he borrowed Whitehead’s personal vehicle until he could get his own van repaired. No restrictions were placed on his use of the borrowed vehicle. On the way to work the next day, Lancaster stopped at a restaurant for breakfast, and while he was still there, he was paged to call the office. He tried several times, but the line was always busy, and eventually he proceeded to drive on to work. He was involved in a motor vehicle collision on the way and sustained injuries that have disabled him. At the hearing, Lancaster admitted that he would have driven to work after finishing his breakfast even if he had not received the page.

Generally, injuries sustained on the way to and from work are not compensable. Corbin v. Liberty Mut. Ins. Co., 117 Ga. App. 823 (162 SE2d 226) (1968). But where the employer furnishes transportation as an incident of the employment for the mutual benefit of employer and employee in order to facilitate the progress of the work, an injury sustained on the way to and from work may be compensable. Eickhorn v. Boatright, 219 Ga. App. 895, 896 (2) (467 SE2d 214) (1996). Also, where the employee is “on call” and furnishes or is reimbursed for his transportation costs, an injury en route to or from work likewise may be compensable. Corbin v. Liberty Mut. Ins. Co., supra.

In this case, however, the State Board* found as fact that neither exception to the general rule applied. Specifically, the employer did not provide Lancaster’s transportation as an incident of the employment for their mutual benefit to facilitate the progress of the work; rather, it was a situation where the employer, who happened to be the employee’s son-in-law, loaned him a car as a favor until Lancaster could get his own vehicle repaired.

The State Board further noted that although Lancaster may have been an “on call” employee before his own vehicle broke down, that status ended when Lancaster began having to walk to work because of his lack of. transportation, and it did not resume merely upon Lancaster borrowing his son-in-law/employer’s personal car. Relying upon Lancaster’s own admission, the State Board found that Lancaster would have been driving to work at the time of the injury even if he had not received a page, and thus his injury was not work-related.

Based on those factual findings, the State Board denied Lancaster’s claim. On appeal, the superior court indicated that it “fully accepted the facts” as determined by the State Board, but found reversal necessary because the State Board “found facts which do not support the awards below as being contrary to law.” However, from our review of the record, we conclude that “[w]hile the evidence did not demand the finding made by the board, the evidence was nevertheless sufficient to support it. Consequently, even if the evidence could reasonably be interpreted as the superior court did, the any evidence rule authorized the award. [Cits.]” Winn Express Co. v. Hall, 202 Ga. App. 45, 47 (413 SE2d 505) (1991). Accordingly, the superior court erred in reversing the State Board’s decision denying Lancaster’s claim.

Decided September 10, 1998.

Donahue, Hoey, Rawls & Skesvold, Craig R. White, for appellants.

Edgar L. Crossett III, David T. Markle, for appellee.

Judgment reversed.

Smith, J, and Senior Appellate Judge Harold R. Banke concur.


text:
    A98A1009.
    McCROSKY v. THE STATE.
    (506 SE2d 400)
   Andrews, Chief Judge.

Virginia Sue McCrosky appeals from the judgment entered after a jury found her guilty of one count of criminal trespass. The court sentenced McCrosky to six months in jail and six months of probation. McCrosky argues on appeal that the trial court erred in not reducing her sentence and in not declaring a mistrial or continuing the trial because of her medical disability. She also claims the evidence was insufficient to support the verdict. Because we find no reversible error, we affirm.

1. The evidence was sufficient to support the jury’s verdict. The jury found McCrosky guilty of criminal trespass by entering on the premises of Emory University after receiving prior notice that such entry was forbidden, a violation of OCGA § 16-7-21 (b) (2). The evidence at trial, taken in the light most favorable to the jury’s verdict, showed that police officers had set up a barricade at the point where Gatewood Road intersects Emory University property in anticipation of protests over the Yerkes Primate Center. On the day in question, the protestors marched on the barricades, with some of the protestors crossing onto university property and some grabbing the barricades and shaking them back and forth. Captain Edge of the Emory University Police testified that he announced over a megaphone that anyone crossing the barricade would be arrested. Edge said he saw McCrosky cross over the line of barricades, after which officers immediately arrested her.

Another Emory police officer testified that he was at the protest and saw McCrosky cross the barricade. This officer also testified that in April 1995, he had given McCrosky a criminal trespass warning informing her that she would be subject to arrest if she did not leave university property immediately and if she ever returned to university property at any time in the future. The officer also testified that “no trespassing” and “private drive” signs were placed in front of the barricade on both sides.

McCrosky testified in her own defense. She admitted to crossing over the barricade but said she believed the road on the other side of the barricade was a public road. She said she believed it to be a public road because the Yerkes Primate Center receives millions of tax dollars every year. She admitted that she intended to cross the police barricade and that she saw the “private drive” and “no trespassing” signs. In light of the above, we hold there was sufficient evidence to convince a rational trier of fact that McCrosky was guilty of criminal trespass beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

2. The trial court did not err in not declaring a mistrial or continuing the proceedings for a medical evaluation of McCrosky. Before the beginning of trial, defense counsel stated that McCrosky wished “to state her medical condition and her inability to proceed.” McCrosky told the court she took Vasotec for hypertension and this medication made it difficult for her to concentrate, especially later in the day. Defense counsel said he had difficulty communicating with his client and she was unable to offer any help in her own defense.

The trial judge asked if McCrosky had a doctor’s certificate, and counsel replied, “I am only asking it be put on the record.” The judge refused to continue the trial and at the close of trial noted that he observed McCrosky in court prior to trial and saw no sign of any physical problem. The judge also stated that McCrosky was able to communicate adequately her medical condition and she was able to enter and leave the courtroom under her own power.

A review of the trial transcript shows McCrosky testified clearly at trial and spoke eloquently at the sentencing hearing. As there was no evidence that McCrosky was experiencing any physical or mental problems, there was no error in the court’s refusal to continue the trial.

3. In her last enumeration of error, McCrosky argues that the trial court erred in not reducing her sentence and in not conducting a hearing on her motion to modify the sentence. At the outset, we note that when an appellant asserts more than one error within a single enumeration, this Court may, in its discretion, elect to review none, one or more of the errors asserted. Toledo v. State, 216 Ga. App. 480, 482 (455 SE2d 595) (1995).

In any event, the trial judge did not err in not holding a hearing on the motion to modify sentence. Under Uniform Superior Court Rule 6.3 which is applicable to state court proceedings, the trial court is not required to hold a hearing on a motion to modify sentence.

As to McCrosky’s claim that the court erred in not reducing her sentence, she argues that in light of the nature of her crime and her physical condition, the sentence was so excessive that it constituted cruel and unusual punishment. We disagree.

The sentence was within the statutory limits. OCGA § 16-7-21 (d) provides that the offense of criminal trespass is a misdemeanor. Misdemeanors are punished by a fine not to exceed $1,000 or by a prison term not to exceed 12 months, or both. OCGA § 17-10-3 (a) (1). Here, the court sentenced McCrosky to a prison term of six months with six months probation.

“[legislative enactments constitute the clearest and most objective evidence of how contemporary society views a particular punishment.” Fleming v. Zant, 259 Ga. 687, 689 (3) (386 SE2d 339) (1989). “[L]egislative discretion must be deferred to unless, under the circumstances, the sentence shocks the conscience.” Lambeth v. State, 257 Ga. 15, 16 (354 SE2d 144) (1987). Here, the sentence does not shock the conscience. It is well under the statutory maximum sentence allowed and is not grossly out of proportion to the severity of the crime.

McCrosky also argues that the six-month prison term violates the constitutional prohibition against cruel and unusual punishment. “A punishment is cruel and unusual if it (1) makes no measurable contribution to accepted goals of punishment and hence is nothing more than the purposeless and needless imposition of pain and suffering; or (2) is grossly out of proportion to the severity of the crime.” (Citations and punctuation omitted.) Fleming, supra at 689 (3).

Here, the State introduced evidence of a prior conviction for criminal trespass at Emory and an ordinance violation for picketing at Emory. McCrosky’s previous sentence for criminal trespass was a $1,000 fine and 12 months probation. There was evidence at the sentencing hearing that McCrosky refused to fulfill the conditions of her probation sentence on the previous offense. Her subsequent conviction demonstrates that the previous sentence was insufficient punishment to deter her from committing another offense.

Haygood v. State, 225 Ga. App. 81 (483 SE2d 302) (1997), relied on by McCrosky, is distinguishable. In Haygood, the defendant was sentenced to the maximum 12 months in jail and $1,000 fine for cutting a hedge on her neighbor’s property. The hedge ran along the boundary of the property line between Haygood and her neighbor, and when Haygood trimmed the bushes on her side of the line, she sheared them off some ten to fifteen inches inside the neighbor’s property line. Haygood, supra at 82. The court initially offered Haygood a sentence of a fine of $625 and 80 hours of community service on probation and limited contact with the neighbor.

When Haygood announced her decision to appeal, the court imposed the maximum sentence. Id. at 83-84. In light of this, and because the dispute was essentially one over a property line and Haygood had no prior convictions, we held that the maximum misdemeanor penalty could be viewed as cruel and unusual under the circumstances. Id.

Decided August 25, 1998

Reconsideration denied September 11, 1998

John Matteson, for appellant.

Ralph T. Bowden, Jr., Solicitor, W. Cliff Howard, Assistant Solicitor, for appellee.

Here, the maximum sentence was not imposed, and McCrosky had prior convictions for the same type of offense. Moreover, when given the chance to address the court at sentencing, McCrosky exhibited no remorse and gave no assurance that she would modify her behavior in the future. Under the circumstances, the sentence was not so excessive as to shock the conscience or rise to the level of cruel and unusual punishment. The trial court did not err in denying McCrosky’s motion to reduce her sentence.

Judgment affirmed.

Johnson, P. J, and Senior Appellate Judge Harold R. Banke concur.


text:
    A98A0997, A98A1006.
    McADAMS v. UNITED STATES FIRE INSURANCE COMPANY (two cases).
    (506 SE2d 679)
   Judge Harold R. Banke.

Patricia McAdams, acting on her own behalf and as the executrix of the estate of her deceased husband, James Thomas McAdams, commenced these actions against United States Fire Insurance Company (“USFI”), among others. In two enumerations of error, she challenges the trial court’s order granting summary judgment to USFI in both her wrongful death and survival actions.

These cases arose after a truck owned by C. T. Harris, USFI’s insured, backed over Mr. McAdams, killing him. In her suits against Harris, the driver, USFI, and others, Mrs. McAdams alleged negligence. USFI sought summary judgment, arguing that Mrs. McAdams had no right to proceed directly against it. The trial court agreed, finding that McAdams failed to prove the essential elements establishing her right to proceed directly. Specifically, it determined that Harris’ failure to file all the appropriate insurance forms required by the Public Service Commission Rules barred McAdams’ action against USFI. Held:

OCGA § 46-7-58 (e) permits individuals to “join in the same action the motor carrier and its surety, in the event a bond . . .” or policy of indemnity insurance is given. Southern Gen. Ins. Co. v. Waymond, 221 Ga. App. 613, 614 (472 SE2d 325) (1996). Because this statute derogates the common law, it must be strictly construed. Id.

In actions joining a motor carrier’s insurer, the injured party bears the burden of proving that the policy providing liability insurance coverage was filed with and approved by the Public Service Commission. Canal Ins. Co. v. Farmer, 222 Ga. App. 539, 540 (474 SE2d 732) (1996); OCGA § 46-7-12 (c). In this case, it is undisputed that no such policy was filed.

In lieu of filing the policy, the Rules of the Georgia Public Service Commission permit carriers to submit a certificate of insurance so long as it conforms to “the forms prescribed and approved by the Commission.” Rule 1-8-1-.07 (a) of the Rules of the Georgia Public Service Commission; Ross v. Stephens, 269 Ga. 266, 267 (496 SE2d 705) (1998). The Public Service Commission Rules require that all certificates of insurance be made on Form E and all endorsements be made on Form F. Rule 1-8-1-.07 (d)-(e) of the Rules of the Georgia Public Service Commission. Form E is styled “Uniform Motor Carrier Bodily Injury and Property Damage Liability Certificate of Insurance.” Form F bears the title “Uniform Motor Carrier Bodily Injury and Property Damage Liability Insurance Endorsement.” Form E certifies that a designated insurer issued a specified motor carrier an insurance policy “which, by attachment of the Uniform Motor Carrier Bodily Injury and Property Damage Liability Insurance Endorsement, has . . . been amended to provide automobile bodily injury and property damage liability insurance covering the obligations imposed upon such motor carrier by the provisions of the motor carrier law. . . .’’Rule 1-8-1-.07 (d) of the Rules of the Georgia Public Service Commission; see Kinard v. Nat. Indem. Co., 225 Ga. App. 176, 180 (2) (483 SE2d 664) (1997). We have interpreted Rule 1-8-1-.07 to “require[ ] that a Form F endorsement be filed along with the certificate” of insurance. Kinard, 225 Ga. App. at 180 (2); see Ross, 269 Ga. at 266, affirming Kinard on other grounds.

Notwithstanding the above, the Director of Compliance & Safety in the Transportation Division of the Public Service Commission, a former secretary who worked her way up through the ranks, attested that “[njeither the Official Code of Georgia nor the Rules of the Georgia Public Service Commission have ever required a Form F Uniform Motor Carrier Bodily Injury and Property Damage Liability Insuranee Endorsement ... to be filed with the Georgia Public Service Commission.” She stated further that neither the Code nor the Rules require that Form F be attached to Form E.

Decided September 11, 1998

Jones & Smith, Bobby T. Jones, Julian B. Smith, Jr., Davis, Gregory, Christy, Forehand & Maniklal, Hardy Gregory, Jr., Lovett, Cowart & Ayerbe, Jon G. Branan, for appellant.

Miller & Towson, Wallace Miller III, James V. Towson, Joel A. Howe, for appellee.

Although a certificate of insurance complying with Form E was filed, Form F was not attached to Form E or otherwise filed with the Public Service Commission. On its face, the Public Service Commission’s own Form E requires the attachment of Form F, the endorsement, which functions to certify compliance with the applicable provisions of motor carrier law. Furthermore, Kinard indicates that the failure to include Form F with Form E invalidates the certificate of insurance.

We need not reach the question of whether the Commission’s Rules may alter the Code’s clear directive that filing the policy is a prerequisite to a direct action, an issue presumably swayed by the necessity of strictly construing the direct action statute. OCGA § 46-7-58 (e). This is so because under the Commission’s own Rules, a direct action was authorized only if the proper forms were filed in lieu of the policy. Rule 1-8-1-.07 of the Rules of the Public Service Commission; Waymond, 221 Ga. App. at 614. Because Form F’s absence precludes McAdams from showing full compliance with the Commission’s Rules, much less the requisites of OCGA § 46-7-58 (e), we must affirm the trial court’s decisions, notwithstanding the Commission’s usual practice. But see Glenn McClendon Trucking Co. v. Williams, 183 Ga. App. 508, 513 (12) (359 SE2d 351) (1987) (injured party may pursue claim against insurer as a judgment creditor of the insured).

Judgments affirmed.

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

       The decision to allow the filing of the prescribed forms rather than the policies was made to cut down on paperwork.