text:
    A02A0156.
    In the Interest of D. F. et al., children.
    (564 SE2d 767)
   Barnes, Judge.

Following a hearing, the Bryan County Juvenile Court terminated the parental rights of the mother of D. F, a four-year-old boy, and D. F, a six-year-old girl. The mother appeals, arguing that insufficient evidence supports the termination. We disagree and affirm.

In reviewing a parent’s challenge to the sufficiency of the evidence, we determine whether, after reviewing the evidence in the light most favorable to the State, a rational trier of fact could have found by clear and convincing evidence that a natural parent’s right to custody has been lost. In the Interest of A. C, 230 Ga. App. 395, 396 (1) (496 SE2d 752) (1998). We do not weigh the evidence or determine witness credibility, but defer to the juvenile court’s factfinding. In the Interest of L. H, 236 Ga. App. 132, 133 (1) (511 SE2d 253) (1999).

Viewed in this light, the evidence shows that the two children came into Department of Family & Children Services (DFCS) custody in March 1997. D. F, the boy, was three weeks old and began having seizures after his mother picked him up from the babysitter. She took him to the hospital, where due to symptoms of retinal hemorrhages and evidence of brain injury the physicians diagnosed shaken baby syndrome. DFCS took temporary custody of D. F. when the hospital discharged him and also of his sister, D. F, due to concerns she may be exposed to the same sitter.

The department worked with the mother to develop and meet the reunification goals of getting and maintaining a stable residence and job, becoming drug-free, and visiting the children regularly. All the social workers who testified at the hearing to determine whether reunification was appropriate and the termination hearing agreed that the mother visited the children regularly. Further, she obtained drug and alcohol counseling and testified that in July 2000 she had been drug-free for two years and alcohol-free for eleven months. She had one positive drug screen in November 1997 and nine subsequent negative screens. The maternal grandmother testified in July 2000, however, that she had seen the mother high within the last year, and her case supervisor testified that on several occasions the mother told her not to bother with a drug screen because it would be positive.

The mother did not establish and maintain a stable residence or job. From March 1997 to July 2000, she lived in fifteen different places with seven different men and worked at seventeen different jobs. She had a pattern of depending on men to help pay her bills, but all of the men she chose to live with had criminal histories or were now in jail. In June 1999, after working with the mother for two years while the two children remained in foster care, DFCS changed its case plan from reunification to adoption.

In July 2000, at a hearing to determine whether reunification was still an appropriate goal, the mother testified that she had lived in the same place with the same man for about 18 months. Her boyfriend at that time testified that the two had lived together for sixteen months, that he was a cabdriver earning sufficient money to care for the mother and the two children, and that he was willing to move into a bigger place to accommodate them. He anticipated the two would stay together a long time.

After that hearing, the juvenile court judge directed DFCS to give the mother an additional 90 days, during which time the department should evaluate her home and report back. On July 10, 2000, Chatham County DFCS received the request for evaluation, and the caseworker sent the mother a letter on July 20, 2000, asking her and her boyfriend to come to the office on August 2. Neither came to the office that day, but the caseworker spoke with the boyfriend and rescheduled a visit for August 28. Neither showed up again, and the caseworker made several unscheduled home visits to try to catch up with them, to no avail. The couple came to the office in early October, but the caseworker was out sick. The caseworker then made a scheduled home visit on October 10; no one was home, and when she returned on October 12, they had moved.

The caseworker and mother finally met face to face on October 18, at which time the mother was living with another man in another residence. The caseworker advised the mother to attend further drug counseling at one of two locations that work with clients on a sliding fee scale, and the mother said she would enroll. At that time, the mother had left her previous boyfriend, who had appeared with her at the permanency hearing, after he was arrested for forging prescriptions, and she had been living with her current boyfriend for two months. When the caseworker subsequently went to meet them at their new apartment, the resident manager said they had been evicted. The caseworker made another appointment and finally evaluated their home, but did not approve it because of concerns the mother had not established any kind of stability while in Chatham County. Between July and October 2000, the mother had worked at five places, had lived with two men, had no income, had debts including probation fines and child support, and was dependent on her current boyfriend to pay her bills. When the caseworker returned three weeks later to request random drug screens, she discovered that the new boyfriend had been fired from his job and the couple had moved again.

In February 2001, the juvenile court entered an order finding that the mother had made little improvement since the July 2000 permanency hearing and had failed to meet the goals required of her. The court concluded that reunification with the mother was no longer appropriate and continued temporary custody in DFCS. At the July 2001 termination hearing, the parties stipulated that the transcript of the permanency hearing would be included for consideration. The Bryan County DFCS caseworker testified that the mother had continued to visit the children regularly and that both children were very confused about their relationship with their mother. D. F., the male child who was diagnosed with shaken baby syndrome, was a special needs child with ongoing physical and speech therapy and eye problems that had required two surgical procedures so far. The juvenile court terminated the mother’s parental rights in an order filed July 25, 2001.

Determining whether parental rights should be terminated involves a two-step analysis. In the first step, the court must find parental misconduct or inability, supported by clear and convincing evidence that: (a) the child is deprived; (b) lack of proper parental care or control caused the deprivation; (c) the cause of the deprivation is likely to continue; and (d) continued deprivation is likely to cause serious physical, mental, emotional, or moral harm to the child. OCGA § 15-11-94 (b) (4) (A) (i)-(iv); In the Interest of L. H., supra, 236 Ga. App. at 132-133 (1). Further, [e]vidence of past unfitness, standing alone, is insufficient to terminate the rights of a parent in her natural child; clear and convincing evidence of present unfitness is required.” (Citations and punctuation omitted; emphasis in original.) In the Interest of R. A., 226 Ga. App. 18, 20 (486 SE2d 363) (1997); see also In the Interest of D. C. N. K, 232 Ga. App. 85, 90 (501 SE2d 268) (1998).

If these four factors exist, then the court must take the second step and determine whether terminating parental rights is in the best interest of the child, considering the child’s physical, mental, emotional, and moral condition and needs, including the need for a secure, stable home. OCGA § 15-11-94 (a).

The mother argues on appeal that clear and convincing evidence did not support the trial court’s finding that the children’s deprivation was likely to continue or would likely not be remedied, as required by OCGA § 15-11-94 (b) (4) (A) (iii). She contends that, “considering all the circumstances, [she] had brought a degree of stability to her life which had not been present since the removal of the children in 1997.” She argues that she had been employed at the same location for more than six months, had established a stable home with her current boyfriend, and had been drug-free for two years.

We must review the evidence in the light most favorable to the State to determine whether a rational trier of fact could have found by clear and convincing evidence that the natural parent’s right to custody has been lost. In the Interest of A C., supra, 230 Ga. App. at 396. In this case, ample clear and convincing evidence of the four factors established parental misconduct or inability. First, the unappealed deprivation orders of the juvenile court are sufficient to establish that the children were deprived within the meaning of OCGA § 15-11-94 (b) (4) (A) (i). In the Interest of B. P, 207 Ga. App. 242, 244 (427 SE2d 593) (1993).

Second, the juvenile court was authorized to determine that the mother’s failure to comply with the reunification plan established her lack of proper parental care and control. In the Interest of A. B., 251 Ga. App. 827, 830 (2) (555 SE2d 159) (2001). Here, the record amply supports the juvenile court’s conclusion that the mother failed to comply with the plan.

Third, in determining whether the children’s deprivation is likely to continue, the juvenile court could consider the parent’s past conduct. In the Interest of K. L., 234 Ga. App. 719, 722 (507 SE2d 542) (1998). As discussed earlier, the juvenile court was impressed at the permanency hearing with the mother’s progress toward her goals and, before ruling on whether to change the plan from reunification to adoption, directed DFCS to evaluate the mother’s current home. Between that time, July 2000 and February 2001, the mother had moved in with a new boyfriend and the two had moved five times. This clear and convincing evidence supports the juvenile court judge’s conclusion that the children’s deprivation was likely to continue.

Fourth, clear and convincing evidence showed that continued deprivation likely would harm the children. Based on the evidence presented, we find that a rational factfinder could have found by clear and convincing evidence that the children’s deprivation was likely to continue and have a detrimental effect on them. In the Interest of L. S. F., 217 Ga. App. 478, 481 (458 SE2d 370) (1995).

Decided April 24, 2002.

Carol B. Miller, for appellant.

Thurbert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen S. Nelson, Assistant Attorney General, Gary A. Sinrich, for appellee.

As to the second prong of the termination analysis, the evidence also was sufficient to show that termination of appellant’s parental rights was in the best interests of the two children. We have held that “the court may consider the child’s need for a stable home environment and the detrimental effects of prolonged foster care. Children need permanence of home and emotional stability or they are likely to suffer serious emotional problems.” (Citations omitted.) In the Interest of J. O. L., 235 Ga. App. 856, 858 (510 SE2d 613) (1998). Here, the evidence showed that the children had been in foster care for four years and need a stable home, and the foster parents for each child were ready to adopt them. Additionally, the same factors that show the mother’s instability support a finding that termination of parental rights would be in the children’s best interests. Id.

Accordingly, we affirm the order of the juvenile court terminating appellant’s parental rights.

Judgment affirmed.

Pope, P. J., and Ruffin, J., concur.


source: Caselaw Access Project

author: Blackburn, Chief Judge.

license: Public Domain

text:
    A02A0202.
    SHELNUTT v. THE STATE.
    (564 SE2d 774)
   Blackburn, Chief Judge.

Following a jury trial, William Shelnutt, Jr. appeals his convictions for simple battery and making terroristic threats, contending that the trial court erred by (1) admitting character evidence against him and (2) prohibiting him from impeaching a witness. For the reasons set forth below, we affirm.

Viewed in the light most favorable to the verdict, the record shows that Shelnutt and his estranged spouse became involved in an argument at her home. During the argument, Shelnutt pushed his wife with his hand and threatened to kill her. On that same day, Shelnutt telephoned his wife’s former boyfriend and threatened to kill him as well.

1. Shelnutt contends that the trial court improperly allowed character evidence against him on three separate occasions. We find no error.

(a) Shelnutt argues that the trial court erred in denying his motion for mistrial after his estranged wife alluded to the fact that he had previously been imprisoned. During direct examination, Shelnutt’s wife testified that she told Shelnutt to leave the house because the Department of Family & Children Services and the police were coming. She then explained that she did not want them to find Shelnutt there, “as many times as they had been called with complaints, that my husband just got out of prison.” Shelnutt moved for a mistrial based on the witness’s impermissibly placing his character into evidence. The trial court found the response of the witness to be nonresponsive to the question, noted that the reference was not specific as to the purpose or basis for the defendant’s imprisonment, and provided curative instructions to the jurors.

“Whether to grant a mistrial is within the sound discretion of the trial court, and its ruling will not be disturbed absent an abuse of discretion.” Brinson v. State. This court will not overturn the trial court’s ruling when a passing reference is made to a defendant’s record. Johnson v. State Nor will the trial court’s discretion be disturbed, “[w]here the cause of the motion lies in the voluntary remark of a witness not invited by court or counsel, and, where the jury is properly instructed and the remark is not so flagrantly prejudicial as to violate the fair trial rights of the defendant.” (Punctuation omitted.) McKenye v. State. In these circumstances, we cannot say that the trial court abused its discretion in denying the mistrial.

(b) Shelnutt asserts that the trial court erred by failing to grant a mistrial when a witness stated that Shelnutt had beaten the victim previously. Shelnutt requested that the judge strike the witness’s testimony as unresponsive. The trial judge instructed the jury to disregard the response and directed the witness to answer only the questions asked by the defense counsel.

Following the court’s curative action, Shelnutt failed to make a timely motion for mistrial. The witness was examined further, and no motion for mistrial was made until after both cross-examination and recross-examination of the witness were completed and the judge had given recess instructions to the jurors. “[A] motion for mistrial which is not made at the time the questions objected to are answered is not timely and will be considered as waived because of the delay in making it.” (Punctuation omitted.) Peoples v. State.

Moreover, even had the motion been timely made, the trial transcript shows that the answer complained of was elicited by defense counsel. A defendant may not take chances in propounding questions which are likely to elicit damaging answers and then demand a mistrial on the basis of the answer. Martin v. State. Thus, defendant’s motion is without merit.

(c) Shelnutt contends that the court erred by failing to grant a mistrial when his wife’s boyfriend was allowed to read aloud a comment from his statement made to a detective about two months after the argument between Shelnutt and his wife. That comment was “that the night before [Shelnutt] picked [his wife] up by her head.” Shelnutt objected to this testimony as introduction of a prior incident without proper notice from the State. The trial court sustained Shelnutt’s objection, the defense was allowed to review the victim’s written statement, and the testimony of the witness continued.

No motion for a mistrial was made by Shelnutt during the following direct or cross-examination of the witness. “When an appellant could have tendered a timely motion for mistrial or requested additional relief but declined to do so, we generally will not grant more appellate relief than that actually prayed for at trial.” Demetrios v. State.

2. Shelnutt argues that impeachment evidence was improperly excluded. During direct examination, the wife’s boyfriend was asked whether he was married. Thereafter, Shelnutt sought to obtain an answer to the following question about the witness’s wife: “Where was she back around the time that you were committing adultery with [Shelnutt’s wife]?” The trial court sustained the objection of the State to this question for lack of relevancy. The testimony sought was not material to an issue at trial. “The right to a thorough and sifting cross examination is not abridged by the action of the judge in confining it to matters that are in some manner relevant to the issues of the case on trial.” (Punctuation omitted.) Childers v. State.

Secondly, Shelnutt sought to introduce evidence that his wife had made prior false accusations of abuse against the boyfriend. The wife’s testimony at trial was inconsistent with her previous written statement to the police made shortly after the incident indicating that Shelnutt had hit her, and she admitted in her oral testimony that she had lied.

Decided April 24, 2002.

James W. Bradley, for appellant.

Robert E. Keller, District Attorney, Staci L. Guest, Assistant District Attorney, for appellee.

Shelnutt relies on OCGA §§ 24-9-68, 24-9-82, 24-9-83, and 24-9-84 as authority for introduction of this separate event as impeachment evidence. OCGA §§ 24-9-82 and 24-9-83 are not controlling here since the testimony to be introduced does not disprove facts testified to by the wife and does not relate to a contradictory statement made by the victim. OCGA § 24-9-84 is not controlling because there was no testimony of general bad character. Shelnutt’s proffered testimony was evidence of a particular prior act of the victim, not evidence of the subject’s general reputation in the community. Although OCGA § 24-9-84 allows a witness to be impeached by a showing of general bad character, specific acts of bad character are not admissible. Wetta v. State; Rogers v. State.

OCGA § 24-9-68 provides that “[t]he state of a witness’s feelings toward the parties and his relationship to them may always be proved for the consideration of the jury.” The wife’s alleged lies about an unrelated incident were not probative of bias or prejudice toward Shelnutt. Here “[Shelnutt] claims admissibility on the basis of similarity, i.e., if she [the victim] fabricated that incident, she could fabricate the charges against the defendant. ... It was a collateral attack upon the victim’s credibility.” Haynes v. State. The issue here was whether Shelnutt struck and threatened his wife and her former boyfriend. The false accusation about another person on an unrelated incident is not relevant. Therefore, we hold that the trial court did not abuse its discretion in determining this testimony was inadmissible.

Judgment affirmed.

Johnson, P. J., and Miller, J., concur.

        Brinson v. State, 243 Ga. App. 50-51 (1) (530 SE2d 798) (2000).

        Johnson v. State, 256 Ga. 604, 605 (2) (351 SE2d 623) (1987).

        McKenye v. State, 247 Ga. App. 536, 538 (2) (544 SE2d 490) (2001).

        Peoples v. State, 184 Ga. App. 439, 440 (2) (361 SE2d 848) (1987).

        Martin v. State, 193 Ga. App. 581, 584 (2) (388 SE2d 420) (1989).

        Demetrios v. State, 246 Ga. App. 506, 512 (5) (541 SE2d 83) (2000).

        Childers v. State, 130 Ga. App. 555, 562 (6) (203 SE2d 874) (1974).

        Wetta v. State, 217 Ga. App. 128, 130 (3) (456 SE2d 696) (1995).

        Rogers v. State, 247 Ga. App. 219, 229 (11) (543 SE2d 81) (2000).

        Haynes v. State, 180 Ga. App. 202, 203 (3) (349 SE2d 208) (1986).


text:
    A02A0398.
    In the Interest of Q. J. A., a child.
    (564 SE2d 770)
   Blackburn, Chief Judge.

Q. J. A. was charged with criminal trespass and theft by shoplifting and was sentenced under the designated felony act by the juvenile court. He appeals, arguing, on several grounds, that his plea was not knowing and voluntary and that the trial court erred in failing to give him notice of his status as a designated felon. We affirm.

1. Three of Q. J. A.’s enumerations raise the same issue, i.e., whether his actions during the arraignment hearing were knowing and voluntary. Q. J. A. maintains in his first enumeration of error that the trial court, at his arraignment, erred in admitting a statement in which he admitted to theft by shoplifting while not represented by counsel. In his third enumeration of error, Q. J. A. contends that the trial court erred by advising him of his rights at a mass arraignment and not thereafter ascertaining that he and his mother fully understood those rights prior to the acceptance and entry of his plea admitting the shoplifting charge. In his fourth enumeration of error, Q. J. A. argues that the trial court erred in not providing him counsel at the arraignment when he admitted to the shoplifting charge. We will consider these enumerations together.

We begin by recognizing that

[a] juvenile charged with delinquency is entitled by right to have the court apply those common law jurisprudential principles which experience and reason have shown are necessary to give the accused the essence of a fair trial. Without question, these include the right to adequate notice of the charges, appointment of counsel, the constitutional privilege against self-incrimination, and the right to confront . . . witnesses.

(Citations, punctuation and emphasis omitted.) In the Interest of S. H. We also note that

[t]he arraignment hearing is an optional formal hearing which may be conducted in conjunction with the detention hearing or in a separate hearing. The purpose of the arraignment hearing is to formally advise the child of his or her rights to counsel, to remain silent and to a hearing before the judge; to advise him or her of the allegations as they are stated in the petition; and to offer the child an opportunity to enter an admission or a denial to the charges [against him].

Uniform Juvenile Court Rule 10.1.

The record shows that on July 13, 2001, Q. J. A. and his mother were present at juvenile court in Clayton County for arraignment on two separate petitions. The first petition was a single count of theft by shoplifting; the second contained three separate counts of criminal trespass.

The judge conducted a mass arraignment of those charged with offenses. During the course of that mass arraignment, the judge first called the attention of both the juveniles and their parents to the materials which had been mailed to them in advance; these included a notice to parents regarding arraignment and a copy of the Acknowl-edgement of Rights form. The judge explained that he would be going over the rights of the juvenile and was available for any questions the juveniles or their parents might have. The judge then set forth the procedure that would be followed that day and what would happen if the child admitted to or denied the charges against him or her. He also explained the circumstances in which detention would be justified, as well as the significance of the designated felony act. The judge explained: the right to counsel; the right to have an attorney appointed if one could not be afforded; the right to testify; the right to present evidence; the right to question witnesses; the right to make arguments; and the ramifications of an admission of guilt, including the rights one would be giving up by making such an admission. The judge went over what constitutes a knowing and voluntary admission of guilt. He explained the drug testing done by the juvenile court. Finally, the judge stated that those juveniles who were denying charges would be able to consult an independent attorney who was present to answer their questions about the rights he had set forth and to explain in greater detail, and have everyone sign, the Acknowledgement of Rights form.

Following these instructions, the calendar was called by the judge, and Q. J. A. indicated that he would be denying a charge. Because he was denying the criminal trespass charges, Q. J. A. had the opportunity to meet with the independent attorney and have any questions he may have had answered. The independent attorney also would have assisted in the review and signing of the Acknowledgement of Rights form.

Q. J. A., his mother, and the juvenile court judge signed the Acknowledgement of Rights form, in which Q. J. A. and his mother acknowledged, among other things, that they had had explained to them and that they understood the following: that he had been charged with theft by shoplifting and three counts of criminal trespass; that he was not obligated to speak; that he had a right to have a lawyer represent him and that the court would provide a lawyer if he could not afford one; the danger of proceeding without a lawyer; possible dispositions of his case should he admit to the charges against him; and that he had a right to trial before a judge. The form also shows that, after being advised of these rights, he had chosen to admit the shoplifting but not admit the criminal trespass allegations and had elected not to have a lawyer.

Q. J. A. and his mother also met individually with the judge. At that time, the judge asked if either of them had any questions about the rights that he had explained earlier to the group. Either Q. J. A. or his mother indicated that they had no further questions about his rights. The judge then advised Q. J. A. that he had been charged in one petition with theft by shoplifting and asked whether he was admitting or denying the charge; Q. J. A. stated that he was admitting the charge. The judge then outlined the three counts of criminal trespass, and Q. J. A. stated that he was denying those charges. The judge ordered that Q. J. A. be appointed an attorney on the criminal trespass charges. An attorney was appointed to represent Q. J. A., and this attorney did in fact represent Q. J. A. at all subsequent juvenile court proceedings, including the detentional adjudication hearing and the detentional disposition hearing.

Under these circumstances, we find that Q. J. A. understood that he had a right not to admit the charge against him and a right to counsel, that he elected not to have a lawyer present, and that he made an informed admission on the record and in writing, concurred in by his natural mother, who had been provided materials outlining the arraignment procedure and Q. J. A.’s rights, had attended the arraignment, had had access to independent counsel prior to the signing of the Acknowledgement of Rights form, and was present with Q. J. A. before the judge when he met with them. Any contention that because the judge conducted a mass arraignment, Q. J. A. did not freely and voluntarily admit to the charge of theft by shoplifting is contradicted by the facts and the Acknowledgement of Rights form. We also call attention to the fact that the situation in this case is unlike that in In the Interest ofT.D.W. In that case, the juvenile and his father appeared at the adjudicatory hearing without counsel. Here, Q. J. A. was represented by counsel at the detentional adjudication hearing and the detentional disposition hearing. We find that the judge did not err.

Q. J. A. argues that the State “would also have this Court believe that Q. J. A. specifically answered the judge when asked whether there were any questions. The record shows that unidentified voices answered the judge ‘No, Sir,’ after being asked were there any questions.” The judge asked the question when Q. J. A. and his mother met privately with him. Though the court reporter did not indicate who responded, “No, Sir,” we assume that the judge was satisfied that either Q. J. A. or his mother or both, rather than the assistant district attorney, answered the question he directed to them. We “will not presume the trial court committed error where that fact does not affirmatively appear.” Smith v. Manley .

2. In his second enumeration of error, Q. J. A. argues that “[t]he trial court erred in proceeding with the adjudication and disposition with respect to the theft by shoplifting and the criminal trespass charge in violation of OCGA § 15-11-30, which entitles appellant to representation at all stages of proceedings alleging delinquency.” Though this enumeration of error, as stated, is somewhat confusing and seems to involve issues we have addressed above, Q. J. A.’s contentions, as set forth in his brief, are that the trial court erred in not warning him of the danger of proceeding without counsel and not giving him notice of his status as a designated felon until the time of the detention hearing. These arguments have no merit.

First, the transcript of the mass arraignment makes clear that the judge enumerated Q. J. A.’s rights and the fact that he would lose certain of those rights if he chose to admit the charge against him. His rights were also set forth in the Acknowledgement of Rights form, and in signing that form, he and his mother stated that they “[understood] the danger of proceeding without a lawyer.”

As to his contention that he should have been provided notice of the designated felony, in order

[t]o satisfy due process, a delinquency petition must contain sufficient factual details to inform the juvenile of the nature of the offense and must provide data adequate to enable the accused to prepare his defense. The petition in this case alleged that [Q. J. A.] had committed the felony offense of [theft by shoplifting in violation of OCGA § 16-8-14], thereby informing him of the nature of the offense with which he was charged. The petition further alleged that on or about [April 20, 2001, Q. J. A. committed the offense of theft by shoplifting by taking possession of or concealing two compact discs which were the property of Wal-Mart]. This data was sufficient to enable [Q. J. A.] to prepare his defense to the charge that he committed the act alleged.

(Footnote omitted.) In the Interest of A. T. Further, “due process does not require that the juvenile be informed either in writing or in the delinquency petition that he is being charged with a designated felony act which may require that he be sentenced to restrictive custody. OCGA § 15-11-63 contains no notice requirement.” Id. at 31-32.

Decided April 24, 2002.

Edward R. Downs, Jr., for appellant.

Robert E. Keller, District Attorney, R. Christopher Montgomery, Jr., Assistant District Attorney, for appellee.

Judgment affirmed.

Johnson, P. J., and Miller, J., concur.

        In the Interest of S. H, 220 Ga. App. 569, 571 (469 SE2d 810) (1996).

        In the Interest of T.D.W., 229 Ga. App. 273 (493 SE2d 736) (1997).

        Smith v. Manley, 96 Ga. App. 158, 161 (99 SE2d 534) (1957).

        In the Interest of A. T, 246 Ga. App. 30, 31 (539 SE2d 540) (2000).


author: Ellington, Judge.

text:
    A02A0336.
    SHEPPARD v. JOHNSON et al.
    (564 SE2d 729)
   Ellington, Judge.

Joyce Sheppard appeals from the trial court order dismissing her complaint as a sanction for discovery abuses and entering judgment for the defendants, Glynn and Emmet Johnson, the executors of the estate of Frances R. Johnson. Finding no error, we affirm.

Trial courts have broad discretion to control discovery, including the imposition of sanctions, and will not be reversed in the absence of a clear abuse of discretion. Daniel v. Corporate Property Investors, 234 Ga. App. 148 (505 SE2d 576) (1998). Before a complaint may be dismissed as a sanction for discovery abuse under OCGA § 9-11-37, the trial court should engage in a two-step process:

First, a motion to compel must be filed and granted; second, after the party seeking sanctions notifies the court and the obstinate party of the latter’s failure to comply with the order granting the motion to compel and of the moving party’s desire for the imposition of sanctions, the trial court may apply sanctions after giving the obstinate party an opportunity to be heard and determining that the obstinate party’s failure to obey was wilful. An evidentiary hearing on the issue of wilfulness is not necessary in all cases.

(Citation omitted.) Tenet Healthcare Corp. v. Louisiana Forum Corp., 273 Ga. 206, 211-212 (3) (538 SE2d 441) (2000).

The record reveals these undisputed facts. On October 6, 1999, in response to the Johnsons’ motion to compel, the trial court entered an order finding, among other things, that Sheppard’s suit was a renewal action. In the original suit, Sheppard delayed the course of the litigation four times by failing to timely respond to interrogatories, by improperly refusing to answer deposition questions, and by failing to file and to serve the Johnsons with a pre-trial brief. Shortly after the Johnsons filed a motion to dismiss the complaint, Sheppard voluntarily dismissed her suit. In the renewed suit, Sheppard once again failed to timely and fully answer interrogatories. After the Johnsons filed a motion to compel, the trial court ordered Sheppard to pay attorney fees and to comply with discovery. The trial court also found that Sheppard’s conduct evinced “willfulness, bad faith, and a total disregard for the judicial process and this Court’s Orders.” The court warned Sheppard that failure to comply with the court’s order would result in her suit being dismissed with prejudice.

Decided March 13, 2002

Reconsideration denied April 25, 2002.

Edward H. Warnock, for appellant.

William J. Edgar, J. Alvin Leaphart, for appellees.

When Sheppard failed to supplement her interrogatory responses as directed, the Johnsons filed another motion to compel and for sanctions. A hearing on the motion was scheduled for January 26, 2000, but rescheduled twice at Sheppard’s request. After a hearing on May 9, 2000, the court verbally directed Sheppard to supplement her responses to four specific interrogatories by June 12, 2000. Although Sheppard filed a response on June 12, the court, after a hearing, found her answers incomplete, unsigned, unverified, and lacking a certificate of service upon the Johnsons. Upon finding that Sheppard wilfully and intentionally violated the court’s previous orders and the Civil Practice Act, the trial court dismissed the complaint with prejudice.

Based upon the record evidence, we find no clear abuse of discretion in the trial court’s decision to dismiss Sheppard’s complaint with prejudice. OCGA § 9-11-37 (d) (1); Green v. Snellings, 260 Ga. 751, 752 (1) (400 SE2d 2) (1991).

Judgment affirmed.

Smith, P. J., and Eldridge, J., concur.


text:
    A02A0674.
    JONES COUNTY BOARD OF EDUCATION et al. v. PATTERSON.
    (564 SE2d 777)
   Ellington, Judge.

We granted the Jones County Board of Education’s application for discretionary appeal in this workers’ compensation case to determine if the superior court exceeded the lawful scope of its review in reversing the decision of the appellate division of the State Board of Workers’ Compensation. Both the administrative law judge and appellate division concluded that employee Cecil B. Patterson experienced a change in condition for the better which authorized the suspension of his workers’ compensation benefits. Because the record reveals evidence supporting the appellate division’s decision, we must reverse the order of the superior court.

In reviewing a workers’ compensation award, both this court and the superior court must construe the evidence in the light most favorable to the party prevailing before the appellate division. It is axiomatic that the findings of the [State Board of Workers’ Compensation], when supported by any evidence, are conclusive and binding, and that neither the superior court nor this court has any authority to substitute itself as a fact finding body in lieu of the Board.

(Citation and punctuation omitted.) Olde South Custom Landscaping v. Mathis, 229 Ga. App. 316 (494 SE2d 14) (1997).

In 1992, Patterson was employed by the school board as a vice principal, earning $50,000 a year for forty hours of work per week for nine months out of the year. He supplemented his income by working an additional 14 hours per week for the school board as a maintenance man. Patterson earned roughly $90 per week for that job.

On June 3, 1992, Patterson fell off a ladder while painting the school gym and fractured his forearm and right fibular and sprained his ankle and elbow. Patterson did not lose any time from his job as an assistant principal. However, he claimed he was temporarily unable to perform his maintenance work. Patterson’s claim was treated as “concurrent dissimilar” employment, allowing him to receive temporary total disability payments for the loss of his maintenance work income even though he performed other work for the same employer. Patterson was released to medium-duty work shortly after the accident.

Since 1992, Patterson has seen the doctor about his injury only three times and only at the request of his employer. He is not taking medication for pain. In 1998, Patterson’s doctor advised him that he could resume his painting work as long as he did not lift more than 50 pounds and stayed off ladders. Patterson, however, never resumed any of his maintenance duties; instead, he continuously received workers’ compensation benefits from the date of his accident. Patterson’s doctor noted that he had achieved maximum medical improvement and had a “whole person impairment” of 13 percent.

In 1998, Patterson accepted a job as principal of an elementary school. The job pays $70,000 per year. Patterson testified that he now works 50 to 60 hours per week for all 12 months of the year. He admittedly works more and earns more now than in his previous two jobs combined. Patterson testified that he has made no effort to find part-time work. An expert testified that 21 suitable part-time jobs were currently available within Patterson’s work restrictions and that Patterson was an excellent candidate for each of the jobs. Patterson admitted that some of the jobs interested him; however, with his duties as principal, he needed his extra time for rest.

Decided April 25, 2002.

Under Georgia law, the term “change in condition” means “a change in the wage-earning capacity, physical condition, or status of an employee . . . , which change must have occurred after the date on which the wage-earning capacity, physical condition, or status of the employee or other beneficiary was last established by award or otherwise.” OCGA § 34-9-104 (a) (1); Freeman v. Continental Baking Co., 212 Ga. App. 855, 856 (1) (443 SE2d 520) (1994). To suspend Patterson’s benefits based upon a change in condition, the school board was required to show that Patterson experienced a physical change for the better, that he could return to work because of that change, and that jobs were available that would decrease or end his loss of income. See Smith v. Brown Steel &c. Trust Fund, 232 Ga. App. 698, 699 (2) (503 SE2d 592) (1998).

The record reveals that Patterson was physically able to return to medium-duty maintenance work and that many comparable part-time jobs were available within his work restrictions. Although Patterson testified he was experiencing joint pain, he was not taking pain medication and he was not in need of continued medical treatment for his injury. That Patterson was capable of returning to comparable, part-time employment was further evidenced by the fact that he was working as many hours in his current job as he had been in his previous two jobs combined. Moreover, Patterson was making considerably more money in his new job than in both of his old ones, evidencing a change in his economic condition for the better. The ALJ found that Patterson was capable of performing a second part-time job, but that he chose not to work a second job for reasons that had nothing to do with a lack of employment opportunity or his physical disability. This evidence supports the ALJ’s and appellate division’s finding that Patterson experienced a change in condition for the better, authorizing the suspension of benefits. See Smith v. Brown Steel, 232 Ga. App. at 699 (2); see also Jarallah v. Pickett Suite Hotel, 204 Ga. App. 684, 685-687 (1) (420 SE2d 366) (1992). Therefore, the superior court erred in reversing the appellate division.

Judgment reversed.

Smith, P. J., and Eldridge, J., concur.

Carlock, Copeland, Sender & Stair, Christopher A. Whitlock, Kelly M. Clark, for appellants.

Wayne B. Bradley, for appellee.


author: Eldridge, Judge.

text:
    A02A0936.
    HUTSON v. YOUNG et al.
    (564 SE2d 780)
   Eldridge, Judge.

On August 8, 2001, Morris B. Hutson sued Tracy Young, Turner Cove Development, LLC, and Beacon Group Development, LLC for breach of an option contract, fraud, specific performance of the option, and reformation of an assigned option to purchase improved realty under construction as a townhouse development in Chatham County. At the same time as the filing of this suit, Hutson filed a lis pendens against this land. On September 11, 2001, the trial court entered an order cancelling the lis pendens filed by Hutson, from which he now appeals. The option to purchase realty, which lacked certainty as to the purchase price, requiring reformation, is not an interest as will authorize the filing of a lis pendens under OCGA § 44-14-610 et seq., because specific performance of such option on the face of the pleadings is not an available remedy when the trial court cannot determine if the purchase price is fair and equitable; therefore, no interest involving the land exists to support the lis pendens. Thus, the remaining action would be for money damages only.

Hutson contends that the trial court erred in dismissing his lis pendens. We do not agree and affirm.

“To the existence of a valid and effective lis pendens, it is essential that three elements be present; that is, three material facts must concur: the [real] property must be of a character to be subject to the rule; the court must have jurisdiction both of the person and the subject-matter; and the [real] property involved must be sufficiently described in the pleadings.”

Walker v. Houston, 176 Ga. 878, 880 (169 SE 107) (1933); in accord Scroggins v. Edmondson, 250 Ga. 430, 432 (2) (297 SE2d 469) (1982). The real property must “actually and directly [be] brought into litigation by the pleadings in a pending suit and as to which some relief is sought respecting that particular property.” Kenner v. Fields, 217 Ga. 745, 747 (125 SE2d 44) (1962), overruled in part on other grounds, Scroggins v. Edmondson, supra at 431, n. 1; accord id. at 433. A grant of a motion to cancel a notice of lis pendens does not raise any issue concerning the merits of the claim. Id. Therefore, the order of cancellation is neither final nor goes to the merits, but is reviewable on interlocutory appeal without the grant of leave as a narrow exception to the statutes regarding appeals. Id. at 431. For such reason, any prior suit involving a cancellation of the lis pendens cannot be res judicata, because there was no final adjudication on the merits. See OCGA §§ 9-12-40; 9-12-42; Piedmont Cotton Mills v. Woelper, 269 Ga. 109, 110-111 (498 SE2d 255) (1998); Transamerica Ins. Co. v. Thrift-Mart, 159 Ga. App. 874, 875 (1) (285 SE2d 566) (1981).

A lis pendens may not be based upon a suit for money damages only; the purpose of a lis pendens is to notify prospective purchasers that the real property in question is directly involved in a pending suit over title or an interest, i.e., a lien, an equitable interest, fraudulent conveyance, contract right, or other similar interest, which seeks some relief respecting such alleged interest in such realty. Moore v. Bank of Fitzgerald, 266 Ga. 190 (465 SE2d 445) (1996) (action to set aside a wrongful foreclosure); Scroggins v. Edmondson, supra at 430 (trustee in bankruptcy sought a lien or trust, because the debtor as a preference paid off the security deed on the property); Watson v. Whatley, 218 Ga. 86, 88 (2) (126 SE2d 621) (1962) (suit for money judgment only, lis pendens not authorized); Quill v. Newberry, 238 Ga. App. 184, 190-191 (2) (518 SE2d 189) (1999) (action to rescind sale of residence for fraud and to obtain a money judgment only, lis pendens not authorized). The pending suit must seek relief in law or equity involving the real property in the lis pendens to protect the alleged interest in the land. Jay Jenkins Co. v. Financial Planning Dynamics, 256 Ga. 39 (343 SE2d 487) (1986) (one parcel of land subject to a money judgment only, lis pendens not authorized; two parcels as part of a joint venture were subject to imposition of a trust, lis pendens authorized); Backman v. Packwood Indus., 227 Ga. App. 416 (489 SE2d 135) (1997) (amended action sought to impose a trust or equitable lien on a leasehold interest in realty); Scroggins v. Ed-mondson, supra at 430; Quill v. Newberry, supra at 190-191; Evans v. Fulton Nat. Mtg. Corp., 168 Ga. App. 600 (309 SE2d 884) (1983) (action for damages caused by a nuisance, lis pendens not authorized). The reformation of a deed to show that the purchaser agreed to assume and to pay a home improvement loan was a case involving the improved property where the seller had a vested enforceable interest to authorize a lis pendens. Head v. Stephens, 215 Ga. 184, 186 (3) (109 SE2d 772) (1959) (action in equity for reformation of a deed). Thus, a suit to set aside a prior conveyance of land from a wrongful foreclosure is a “classic” example of involved real property within the meaning of the statute. Moore v. Bank of Fitzgerald, supra at 190; see also Wilson v. Blake Perry Realty Co., 219 Ga. 57 (131 SE2d 555) (1963) (injunction and action to declare public auction of land null and void).

Where the litigation does not assert an interest in land, filing a lis pendens is improper. South River Farms v. Bearden, 210 Ga. App. 156, 157-158 (435 SE2d 516) (1993) (action did not involve the land listed in the lis pendens). Absent an interest in real property, which can be enforced in law or equity, or a determination by the trial court that no interest is involved, the lis pendens is unauthorized and may be cancelled by the trial court; thus, when an interest is terminated, there ceases to be an involvement with land to authorize a lis pendens. Bellamy v. Fed. Deposit Ins. Corp., 236 Ga. App. 747, 753-754 (4) (d) (512 SE2d 671) (1999) (foreclosure sale terminated any ownership interest).

This action seeks to compel the specific performance of sale of personalty, i.e., two limited liability companies which own land. Such indirect suit involving land does not permit the filing of a lis pendens. Hill v. L/A Mgmt. Corp., 234 Ga. 341, 343 (1) (216 SE2d 97) (1975).

Where the alleged interest cannot be enforced in law or equity, the lis pendens is not authorized or no longer authorized when the underlying suit no longer involves the land. See Evans v. Fulton Nat. Mtg. Corp., supra at 601. Thus, if the pleadings or evidence before the trial court hearing the motion to cancel shows on its face that the plaintiff is not entitled to a remedy involving the real property, then the lis pendens is unauthorized. South River Farms v. Bearden, supra at 158; Head v. Stephens, supra at 186 (3). However, where a valid contract conveys an interest in realty, such interest can be protected by a lis pendens from subsequent purchasers, heirs, or assigns. Conner v. Yawn, 200 Ga. 500 (37 SE2d 541) (1946); Seabolt v. Christian, 82 Ga. App. 167 (60 SE2d 540) (1950).

A lis pendens and a suit for specific performance of a contract for purchase of land are appropriate, while determining the validity of the contract creating the interest involving the land by suit and whether specific performance is appropriate. Panfel v. Boyd, 187 Ga. App. 639 (371 SE2d 222) (1988). The alleged right in the purchase contract to buy the land provides the basis for specific performance and the lis pendens, as such involves an equitable remedy to compel the conveyance of the land; therefore, if specific performance is not a valid remedy or ceases to be an appropriate remedy, then the underlying authority for the lis pendens also ceases. Id. However, for specific performance to be an available remedy where an option to purchase realty is involved, the option must be certain, definite, and specific as to all essential elements: (1) subject matter; (2) purpose; (3) parties; (4) consideration; and (5) time and place of performance. Further, the contract must be fair in all parts; based upon an adequate consideration; and capable of being performed. Williams v. Manchester Bldg. Supply Co., 213 Ga. 99, 101 (1), (2) (97 SE2d 129) (1957); Redmond v. Sinclair Refining Co., 204 Ga. 699, 704 (1) (51 SE2d 409) (1949); Nowlin v. Davis, 245 Ga. App. 821, 822 (1) (538 SE2d 900) (2000). “Although the description of the tract of land which the vendee agreed to buy is specific and certain, an analysis of the other terms of the contract shows that they are too vague, uncertain, and indefinite to be specifically [performed].” Williams v. Manchester Bldg. Supply Co., supra at 101 (2). Where the written sale terms are too vague and uncertain to be enforced and require a count for reformation as to price, specific performance is not an available equitable remedy. See generally OCGA § 23-2-130; Williams v. Manchester Bldg. Supply Co., supra at 101; Cashin v. Markwalter, 208 Ga. 444, 446 (3) (67 SE2d 226) (1951), overruled on other grounds, Sikes v. Sikes, 233 Ga. 97, 99 (209 SE2d 641) (1974); Lee v. Green Land Co., 245 Ga. App. 558, 559-560 (1) (538 SE2d 189) (2000). In this case, the option to purchase this realty in the future where the purchase price must be calculated by adding various future expenses furnished by the seller yet to be incurred until the time of the exercise of the option and requiring reformation to make definite does not sufficiently involve the realty to authorize a lis pendens, because the option contract is too vague and remote to authorize specific performance and because the purchaser must prove the value of the property to enable the court to determine that the contract price was fair, just, and not against good conscience. Surman v. Blansett, 246 Ga. App. 183, 186 (2) (539 SE2d 890) (2000).

In this case, Hutson wanted the trial court to compel the defendants to furnish the information necessary to compute the sales price and to reform the option to reflect such sales price, which indicated that the option contract was too vague to authorize specific performance in the first instance. See Lee v. Green Land Co., supra at 560 (1). The purchase price was $3,600,000 plus $1,365,000 plus additional uncertain daily fluctuating development costs incurred for the project up to the time of sale, which were uncertain and did not indicate the fair market value at the time the option was to be exercised. The purchaser “must prove the value of the property so as to enable the court to determine that the contract was fair, just and not against good conscience.” (Citations omitted.) Moody v. Mendenhall, 238 Ga. 689, 693 (6) (234 SE2d 905) (1977). “[W]hether the price.was adequate and whether enforcement of the contract was equitable” were for the trial court to determine as a matter of equity. English v. Muller, 270 Ga. 876, 877 (2) (514 SE2d 194) (1999). Thus, on the face of the pleadings and the evidence before the trial court at the hearing to cancel the lis pendens, the essential elements necessary for specific performance did not appear, and it does not appear that such elements can be proven at trial, i.e., purchase price and costs or that the price was fair and adequate without reformation of the contract. Murrey v. Specialty Underwriters, 233 Ga. 804, 807-808 (213 SE2d 668) (1975) (motion to dismiss action for specific performance affirmed); Alexander v. American Legion Post No. 28 &c., 209 Ga. 285 (71 SE2d 627) (1952).

Decided April 25, 2002.

Julian H. Toporek, for appellant.

Oliver, Maner & Gray, Marvin A. Fentress, for appellees.

Further, although all of the essential elements for specific performance for the sale of realty may exist, a party is not entitled to such remedy as a matter of right, because whether or not specific performance is appropriate in a specific case is a matter in the sound discretion of the superior court judge as equitable and just. Kelly v. Vargo, 261 Ga. 422, 423 (2) (405 SE2d 36) (1991); Martin v. Bohn, 227 Ga. 660, 662 (2) (182 SE2d 428) (1971); Surman v. Blansett, supra at 186 (2). Where the trial court in a specific performance action, after hearing undisputed evidence, cancels a lis pendens, the trial court as a matter of sound discretion has implicitly determined that specific performance is not an appropriate remedy in such case. See generally Shaw v. Miller, 215 Ga. 413, 416 (3) (110 SE2d 759) (1959). Whether the price was adequate and whether enforcement of the contract was equitable so as to support a claim for specific performance are questions of fact for the superior court. Moore v. Buiso, 235 Ga. 730, 732 (2) (221 SE2d 414) (1975); Surman v. Blansett, supra at 186 (2). Where a lis pendens has been filed that is not authorized as was the case here, the trial court does not err in ordering it cancelled. Hill v. L/A Mgmt. Corp., supra at 343-344 (1).

Judgment affirmed.

Smith, P. J., and Ellington, J., concur.


author: Phipps, Judge.

text:
    A02A1010.
    TURNER v. BYNUM et al.
    (564 SE2d 784)
   Phipps, Judge.

William Waugh Turner III appeals an order of the superior court enforcing a settlement agreement. He argues that the agreement is unenforceable for various reasons. One appellee has moved to dismiss the appeal as untimely. We find that the appeal is timely, but that it lacks merit. We therefore affirm.

Turner and his sisters, appellees Elaine T. Bynum and Alethea Turner, are the surviving beneficiaries of their father’s testamentary trust. After the 1998 death of their mother, who had been the trustee, the trust was unrepresented. In February 2000, appellees petitioned the superior court to appoint themselves as successor trustees. Turner intervened and moved to dismiss the petition.

On April 27, 2000, the parties and their attorneys met at the courthouse, apparently to discuss a resolution of the issues. They then appeared in court, where the judge asked if they had reached an agreement. Appellees’ attorney responded, ‘Yes, Your Honor.” He explained that the parties had agreed to appoint outside trustees to divide the corpus of the trust if the beneficiaries could not reach a unanimous agreement on an equitable division, and he and Turner’s attorney outlined more specifically the terms of the agreement. This explanation of the settlement was transcribed by a court reporter, and the attorneys agreed in open court that the transcript would reflect their agreement until they could submit a written order to the court. Neither Turner nor his attorney objected at any point during the proceedings.

On July 6, 2000, appellees moved to enforce the settlement agreement, complaining that Turner had not cooperated with their efforts to prepare an order for the court. At a November 2 hearing on the motion, Turner testified that some terms of the agreement were vague and undefined, that the parties had not intended it to be final, and that appellees’ proposed orders differed from the compromise explained in open court. The trial court orally ruled that the transcript of the April 27 agreement indicated that the agreement was intended to be final, that it was not fatally vague or indefinite, and that it was enforceable. On November 27, the court entered an “Order of Settlement” which essentially restated the transcript of the April 27 agreement.

Turner filed a motion for new trial on December 27, 2000. The court denied the motion, and Turner filed a notice of appeal.

1. Appellee Bynum has moved to dismiss the appeal as untimely, arguing that Turner’s notice of appeal was not filed within 30 days of the court’s November 27, 2000 order enforcing the settlement agreement. A notice of appeal generally must be filed within 30 days of the judgment being appealed, but the filing of a motion for new trial extends this period until 30 days after the ruling on the motion for new trial. If the motion for new trial was not the proper means of seeking review of the trial court’s action, however, its filing will not extend the time for filing a notice of appeal.

A motion for new trial requests a retrial, in the same court, of an issue of fact after decision by a jury or the court. A motion for new trial cannot be used solely to object to the trial court’s legal conclusions. Turner’s amended motion for new trial challenged, among other things, the trial court’s finding that the parties intended the settlement agreement to be final. This was a factual determination properly addressed by a motion for new trial. Therefore, the motion for new trial extended the period for Turner to file a notice of appeal, which he timely did. We deny the motion to dismiss.

2. Turner contends that the trial court erred by ruling that the settlement agreement was enforceable, because the evidence showed that it was fatally vague and not meant to be final.

First,, Turner argues that because his testimony was the only evidence presented at the November 2 hearing on appellees’ motion to enforce the settlement agreement, the court was bound to accept his position. Whether the agreement was vague was a legal issue for the court to decide, and the court was not constrained to accept Turner’s opinion on that issue. Whether the agreement was meant to be final was a factual issue, but contrary to Turner’s assertion, his testimony was not the only evidence on that point. The trial court also had the April 27 transcript, which contained the parties’ acknowledgments in open court that they had reached an agreement, as well as the terms of that agreement. Thus, Turner’s testimony on November 2 that he believed the agreement was not final did not bind the trial court. Moreover, based on our review of the record, the trial court did not clearly err in finding that the agreement was final.

Second, Turner asserts that the trial court erred by failing to find that the agreement was fatally vague and unclear. But Turner’s brief does not specify which portions of the agreement he believes are vague or unclear. We will not “cull the record on behalf of a party in search of instances of error.” Because Turner has not made an effort to demonstrate this error from the record, we have nothing to review.

3. Next, Turner contends that the trial court’s order is void because the court lacked jurisdiction over the matter of his mother’s estate. The parties’ April 27 settlement agreement related not only to their father’s trust, but also to their mother’s estate, which was pending in probate court. The trial court’s settlement order reflected both agreements, and the probate court later issued an order transferring jurisdiction of the estate matter to the trial court. Turner filed a separate appeal of the transfer order, and that appeal apparently is still pending in the trial court. The trial court’s jurisdiction over the testamentary trust authorized entry of the provisions of the order at issue in this appeal.

4. Finally, Turner argues that the trial court erred by appointing successor trustees in a manner inconsistent with the intentions of the settlor of the trust. Turner did not raise this argument in his motion for new trial or — as far as we can tell from the record — at any other time before the trial court. Thus, he arguably has waived it. Even if it had been preserved for review, however, the argument lacks merit.

OCGA § 53-12-170 (b) provides that any vacancy in the position of trustee shall be filled as directed by the trust instrument. “In all other cases, the court, on petition of an interested person, may appoint any number of trustees consistent with the intention of the settlor and the interests of the beneficiaries.” In this case, the trust named Turner’s mother as trustee and provided for two successor co-trustees. It is undisputed that both successor trustees resigned before Mrs. Turner’s death. The trust neither specified additional successor trustees nor provided a method of appointing them. In light of the trust instrument’s silence on that question, we cannot conclude that the court’s settlement order appointing three successor trustees is inconsistent with the settlor’s intentions. Nor is the settlement order inconsistent with the interests of the beneficiaries, as the order merely formalizes a settlement agreement that the beneficiaries reached among themselves.

5. Appellee Bynum’s motion for penalties pursuant to Court of Appeals Rule 15 (b) is denied.

Judgment affirmed.

Andrews, P. J., and Mikell, J., concur.

Decided April 25, 2002.

J. Reese Franklin, for appellant.

William W. Turner III, pro se.

Langdále, Vallotton, Linahan & Wetherington, William P. Lang-dale, Jr., Robert A. Plumb, Jr., for appellees.

       Appellant will be referred to as “Turner” and Elaine T. Bynum and Alethea Turner will be referred to collectively as “appellees.”

       The court granted Turner an extension of time to file a notice of appeal, and he filed the notice within the extended time period.

       OCGA § 5-6-38 (a).

        Pillow v. Seymour, 255 Ga. 683, 684 (341 SE2d 447) (1986).

        Bank South Mtg. v. Starr, 208 Ga. App. 19 (429 SE2d 700) (1993); Sunn v. Mercury Marine, 166 Ga. App. 567, 568-569 (305 SE2d 6) (1983).

        Bank South, supra at 20; Sands v. Lamar Properties, 159 Ga. App. 718, 719 (285 SE2d 24) (1981).

       See Sunn, supra at 569 (motion for new trial was proper vehicle to challenge trial court’s determination that settlement agreement was valid and not the product of fraud, accident, or mistake).

       See Jakobsen v. Colonial Pipeline Co., 260 Ga. 565, 566 (2) (397 SE2d 435) (1990).

       See Smith v. Ga. Asset Properties, 251 Ga. App. 595 (1) (554 SE2d 561) (2001).

       (Citation and punctuation omitted.) Magnolia Court Apts. v. City of Atlanta, 249 Ga. App. 6, 8 (545 SE2d 643) (2001).

       OCGA § 53-12-170 (c).


text:
    A02A0645.
    WILLIAMS v. THE STATE.
    (564 SE2d 759)
   Ellington, Judge.

Gerald Williams appeals from the denial of his motion for new trial following his conviction for aggravated assault, OCGA § 16-5-21 (a); family violence battery, OCGA § 16-5-23.1 (f); and simple battery, OCGA § 16-5-23 (a). The charges arose out of a domestic dispute in which he assaulted his wife and shoved his brother-in-law. He appeals, contending he was denied discoverable material by the State and alleging the trial court erred in refusing to admit certain evidence. Finding no error, we affirm.

1. Williams argues that he was entitled to the Georgia Crime Information Center’s criminal histories (“GCIC reports”) of prospective jurors under the discovery statute, OCGA § 17-16-4. Immediately before trial, Williams asked the trial court either to require the State to turn over copies of the GCIC reports to him or to prevent the State from using the reports during jury selection. On appeal, Williams contends the trial court erred when it refused his request. There is no merit to this argument.

(a) Local law enforcement agencies, including county prosecutors, are allowed to obtain the GCIC reports of potential jurors and to use them to determine whether any are convicted felons. See OCGA §§ 35-3-30 (3), (6); 35-3-33 (a) (10) (Georgia Bureau of Investigation’s policies and procedures regarding prosecutors’ use of GCIC reports for official law enforcement duties only); Sears v. State, 262 Ga. 805, 808 (6) (426 SE2d 553) (1993) (finding no reason to prohibit the State from running criminal background checks on prospective jurors). Defense attorneys are not considered law enforcement agencies under OCGA § 35-3-30 (6) and, therefore, as private individuals, are not authorized to receive the GCIC reports on potential jurors without the express written consent or the fingerprints of the jurors. See OCGA § 35-3-34 (a) (1) (A). Further, the prosecution is prohibited from releasing the GCIC reports to defense counsel absent the jurors’ written consent or fingerprints. OCGA § 35-3-34 (d). As such, there is no provision which allows defense attorneys access to the GCIC reports, absent the jurors’ consent. Therefore, we find that the State was authorized to check the criminal history records of prospective jurors for use in determining the eligibility of the jurors and that the State was not authorized to provide those records to defense counsel. The trial court did not err in denying Williams’ motion to require the State to turn over the GCIC reports to the defense or to prohibit the State from using the reports during voir dire.

(b) Even if the State could have provided the GCIC reports to Williams prior to trial, however, the State is required to provide the defendant this type of information under the criminal discovery statute, OCGA § 17-16-4 (a) (3), only if it is “intended for use by the prosecuting attorney as evidence in the prosecution’s case-in-chief or rebuttal at the trial.” In this case, the record shows that the State did not use or even intend to use the GCIC reports in its case-in-chief or in rebuttal. Instead, the GCIC reports were used to determine if the prospective jurors were convicted felons, which would disqualify them from serving on a jury. There was no evidence that the GCIC reports were misused in this case. See Kinney v. State, 223 Ga. App. 418, 422 (3) (477 SE2d 843) (1996) (this issue was waived when defense presented no evidence that the GCIC reports of prospective jurors were misused during voir dire). Therefore, the records were not discoverable documents under OCGA § 17-16-4 (a) (3). See also King v. State, 273 Ga. 258, 263 (12) (c) (539 SE2d 783) (2000) (the State is not required to disclose information about prospective jurors unless it is exculpatory and, therefore, subject to Brady v. Maryland, 373 U. S. 83 (83 SC 1194, 10 LE2d 215) (1963)); Wansley v. State, 256 Ga. 624, 626 (2) (352 SE2d 368) (1987) (information about jurors’ previous service on a jury may be valuable to the defense, but it need not be produced because it is not exculpatory). There was no error.

2. Williams complains that the trial court erred in refusing his request to present the testimony of a witness as to prior acts of violence by the victim.

The victim’s previous difficulties are rarely relevant for any purpose in a criminal proceeding. This is because a crime is no less punishable if committed against a bad person than if it were perpetrated against a good person. An exception does exist when the defendant claims justification for his actions and offers evidence that the victim was the aggressor.

(Citations omitted.) Johnson v. State, 270 Ga. 234, 235 (3) (507 SE2d 737) (1998). In order to present evidence of prior violent acts by the victim, Williams “was, at a minimum, required to (1) follow the procedural requirements for introducing the evidence, (2) establish the existence of prior violent acts by competent evidence, and (3) make a prima facie showing of justification.” (Citations omitted.) Shields v. State, 272 Ga. 32, 34 (3) (526 SE2d 845) (2000). The procedural requirements of Uniform Superior Court Rules 31.1 and 31.6 require a defendant to provide the State with written notice at least ten days before trial which states the specific violent act; the date of the act; the name, address, and telephone number of the person involved; and other relevant information. “The purpose of the time requirement of USCR 31.1 is fundamental fairness. The rule recognizes the difficulty of rebutting evidence of specific acts unless timely notice of the defendant’s intention to offer evidence is given.” (Citation and punctuation omitted.) Armstrong v. State, 265 Ga. 18, 19 (2) (453 SE2d 442) (1995). The trial court has the discretion to shorten the ten-day period. Id. Further, “[t]he purpose of Rule 31.6 (A) is to provide the State with reasonable notice that [Williams] intended to rely upon that occurrence to support a justification defense.” (Citation omitted.) Johnson v. State, 270 Ga. at 236 (3).

Immediately before trial in this case, Williams contended he did not learn about the witness, Dale Oliver, until January 29, 2001, and that he notified the State as soon as he received the witness’ correct address and phone number. However, Williams did not include Oliver’s name in its amended responses to discovery, filed on January 29 and January 31, 2001. He subpoenaed Oliver on February 1, 2001. Williams instead filed his notice of intent to present evidence of the victim’s violent acts against a third party at 4:30 p.m. on Friday, February 2, 2001, just before the scheduled trial on Monday, February 5. This notice did not allege that the victim was violent toward Oliver, but instead alleged only that she falsely accused Oliver of striking her.

The State argued that it was prejudiced by the untimely notice, because it was unable to investigate the allegedly false accusation of the victim. The State also argued that the time of filing, i.e., 30 minutes before the courthouse closed for the weekend on the Friday before trial, evidenced Williams’ bad faith. After noting that the case had been on several previous trial calendars, the trial court stated that it found it “incredible that right here, right before trial,. . . [the Rule 31.1 notice to present this evidence of violent acts] suddenly] appears.” The trial court chose not to shorten the ten-day time requirement of USCR 31.1. As a result, the trial court found that Williams failed to timely file the notice and denied his request to present Oliver’s testimony of prior bad acts by the victim. Under the circumstances presented here, we find no abuse of discretion. Armstrong v. State, 265 Ga. at 19 (2).

3. Williams contends as many as three jury members committed perjury by responding that their verdict was guilty when the trial court polled the jury after the verdict was published. According to the affidavit of appellate counsel, the jurors allegedly failed to recognize the difference between the charges of aggravated assault and battery. As a result, they rendered a guilty verdict on the aggravated assault charge, even though they did not believe Williams used a weapon during the attack. Then, according to counsel, when the trial court polled the jurors following the verdict, the jurors committed “perjury” by affirming their verdict.

This issue was raised in Williams’ amended motion for new trial, but, at the motion hearing, Williams asked for a two-week continuance on this issue. The trial court granted the request and, in its April 30, 2001 order, reserved a ruling on the sole issue of jury perjury.

At the second hearing six weeks later, on June 13, 2001, none of the jurors appeared to testify. Further, Williams did not submit affidavits from the jurors. See OCGA § 17-9-41. Instead, Williams called his trial counsel to testify regarding what certain jurors allegedly told her about their “perjury” immediately after Williams was sentenced.

OCGA § 17-9-41 provides: “The affidavits of jurors may be taken to sustain but not to impeach their verdict.” Limited exceptions have been created where extrajudicial and prejudicial information has been brought to the jury’s attention improperly, or where non-jurors have interfered with the jury’s deliberations. But these exceptions do not include jurors’ provision of legal information to other jurors or jurors’ misapprehension or confusion regarding the law.

(Citations and punctuation omitted.) Lewis v. State, 249 Ga. App. 812, 814-815 (4) (549 SE2d 732) (2001). It follows that if a juror’s affidavit cannot impeach a verdict, the affidavit of a third party repeating alleged post-trial hearsay statements by jurors cannot impeach the verdict. Rylee v. State, 28 Ga. App. 230, 231 (3) (110 SE 749) (1922). Further, because a defendant may not impeach a jury’s ver-diet by showing the jury did not understand the law or that it misapplied the law to the facts, the trial court did not err in excluding evidence of the “perjury” and denying the motion for new trial on this basis.

Decided April 11, 2002

Reconsideration denied April 29,2002.

Axam, Adams & Secret, Tony L. Axam, for appellant.

Robert E. Keller, District Attorney, Lalaine A. Briones, Assistant District Attorney, for appellee.

4. Williams contends the trial court abused its discretion in refusing to hear evidence on whether alleged juror misconduct violated his constitutional rights. The record shows that, after the trial court ruled on two of the three issues in Williams’ motion for new trial, Williams moved to amend the motion for new trial to add an affidavit and to further amend the motion “as necessary.” On June 12, 2001, before the trial court ruled on this motion to amend, and the day before the hearing on the sole remaining issue of juror perjury, Williams filed an amended motion for new trial alleging juror misconduct during deliberations. At the motion hearing the next day, the trial court reminded counsel that it had reserved only the juror peijury issue for consideration. See Division 3, supra. The trial court then denied Williams’ motion to further amend; ruled that the June 12, 2001 amendment alleging juror misconduct was, therefore, not timely raised; and dismissed the proposed amendment. Having reviewed the record, we find the trial court did not abuse its discretion in dismissing the proposed amendment as untimely. See OCGA § 5-5-40 (b) (motion for new trial “may be amended any time on or before the ruling thereon”); see also Armstrong v. State, 265 Ga. at 19 (2).

Judgment affirmed.

Smith, P. J, and Eldridge, J., concur.

       The record shows that the trial court never prohibited Williams from cross-examining the victim as to her allegedly false accusations against Oliver.

       The State objected to the continuance on the basis that several weeks had passed since trial and Williams had failed to subpoena the jurors. Williams responded that he did not subpoena the jurors because it was “not right to subpoena people on a fishing expedition,” just because they “may know something.” Appellate counsel admitted that she did not even know if the three jurors who allegedly committed perjury would, in fact, admit to the allegations.

       Williams alleged that, during deliberations, one juror stated that Williams did not have to use a weapon to be convicted of aggravated assault. We note that, even if this allegation were proven by Williams, it would not impeach the verdict. Lewis v. State, 249 Ga. App. at 814-815 (4).


author: Miller, Judge.

text:
    A02A0288.
    COLBERT v. THE STATE.
    (564 SE2d 787)
   Miller, Judge.

Calvin Tyrone Colbert appeals from his conviction for attempted child molestation, contending that the evidence at trial was insufficient to sustain his conviction. We discern no error and affirm.

Viewed in the light most favorable to the verdict, the evidence reveals that T. J., a 14-year-old child, was at home alone with Colbert. Colbert took T. J. to a bedroom in the house where he undressed her and undressed himself. Colbert then got into bed with T. J., but before anything further happened between them, T. J.’s father came home. Still naked, Colbert ran out of the house while carrying his clothes, followed by T. J.’s enraged father.

The jury found Colbert guilty of attempted child molestation, and he now appeals. In his sole enumeration of error, Colbert contends that the evidence was insufficient to sustain his conviction.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the jury’s verdict, and the defendant no longer enjoys the presumption of innocence. Short v. State, 234 Ga. App. 633, 634 (1) (507 SE2d 514) (1998). We do not weigh the evidence or determine witness credibility, but only determine if the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offense beyond a reasonable doubt. Id.; see also Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

A person would be guilty of criminal attempt to commit child molestation when, with intent to commit the crime, he performs any act that constitutes a substantial step toward committing the offense. See OCGA § 16-4-1. In this case, Colbert would have to perform an act that constituted a substantial step toward doing “any immoral or indecent act to or in the presence of or with any child under the age of 16 years with the intent to arouse or satisfy the sexual desires of either the child or [himself].” OCGA § 16-6-4 (a). In the event that Colbert actually completed the offense of child molestation, the jury would still be authorized to find him guilty of criminal attempt. OCGA § 16-4-2.

The evidence revealed that Colbert undressed himself and T. J. and climbed into bed with her while naked. Nothing further transpired due to the arrival of T. J.’s father and Colbert’s hasty exit from the house. The jury was authorized to conclude that Colbert had, at the very least, taken a substantial step toward committing child molestation. See OCGA §§ 16-4-1; 16-6-4 (a). Indeed, the evidence was sufficient to sustain a conviction for the completed crime of child molestation and not only criminal attempt to commit child molestation. See Thompson v. State, 187 Ga. App. 563-564 (2) (370 SE2d 819) (1988). We discern no error here.

Decided April 29, 2002.

Frank M. Wood, for appellant.

Richard G. Milam, District Attorney, Mark S. Daniel, Assistant District Attorney, for appellee.

Judgment affirmed.

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


text:
    A02A0405.
    GIBBS v. THE STATE.
    (564 SE2d 789)
   Miller, Judge.

Charlie Gibbs appeals from his conviction for obstruction of a law enforcement officer with violence, contending that the evidence at trial was insufficient to sustain his conviction. We discern no error and affirm.

Viewed in the light most favorable to the verdict, the evidence reveals that while an officer was trying to prevent a crowd from attacking police who were arresting a violent suspect, the officer saw Gibbs pick up a bottle, throw it at him, and run away. The officer was hit by the bottle. The officer testified that Gibbs was standing only 15 feet away from him near a light at the time that he threw the bottle and that he was positive that Gibbs threw the bottle because he got a good look at him.

The jury found Gibbs guilty of obstruction of a law enforcement officer with violence, and Gibbs now appeals. In his sole enumeration of error, Gibbs contends that the evidence was insufficient to sustain his conviction. He argues that testimony from other witnesses called into question whether the officer actually could have seen Gibbs throw the bottle at him.

On appeal from a criminal conviction, we view the evidence in the light most favorable to the jury’s verdict, and the defendant no longer enjoys the presumption of innocence. Short v. State, 234 Ga. App. 633, 634 (1) (507 SE2d 514) (1998). We do not weigh the evidence or determine witness credibility, but only determine if the evidence was sufficient for a rational trier of fact to find the defendant guilty of the charged offense beyond a reasonable doubt. Id.; see also Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Under OCGA § 16-10-24 (b), a person is guilty of felony obstruction of a police officer with violence when he “knowingly and willfully resists, obstructs, or opposes any law enforcement officer ... in the lawful discharge of his official duties by offering or doing violence to the person of such officer. . . .”

Decided April 29, 2002.

Billy M. Grantham, for appellant.

J. Brown Moseley, District Attorney, Ronald R. Parker, Assistant District Attorney, for appellee.

The officer testified unequivocally that he saw Gibbs throw the bottle that hit him while he was attempting to protect officers that were arresting a suspect who was fighting with them. Gibbs’s act of violence against a police officer while the officer was lawfully discharging his duties would warrant a conviction for felony obstruction with violence. See OCGA § 16-10-24 (b). The evidence was sufficient to sustain the conviction.

Judgment affirmed.

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


author: JOHNSON, Presiding Judge.

text:
    A02A0028.
    PARKER v. HOVERS et al.
    (564 SE2d 795)
   JOHNSON, Presiding Judge.

Lou Dean Parker appeals from the grant of summary judgment to Monument Sales, Inc. and its president, James Hovers. Parker sued Monument Sales and Hovers for negligence after a cemetery monument which had been installed by Monument Sales and then removed and placed upon a wall by a third party fell on Parker’s foot as she visited her sister’s grave two years after Monument Sales’ installation. We affirm the grant of summary judgment to the defendants.

The undisputed evidence shows that Parker purchased a two-piece grave monument for her sister from Monument Sales in 1996. Hovers and a Monument Sales employee installed the monument at Parker’s sister’s grave site in March 1996. To install the monument, the men dug a shallow ditch, poured a concrete foundation, set the bottom section (base) of the monument in the concrete, placed the top piece (die) of the monument on top of the base, tilted the die to one side, squeezed joint compound between the two sections, tilted the die to the other side, set the die in place, and then trimmed off the excess compound. They cleaned off the monument and left. Monument Sales had not agreed to maintain, move, or reinstall the monument.

Parker’s sister was still alive at the time of the installation, but she died in December 1997. In June 1998, when Parker went to visit her sister’s grave site, she noticed that the monument was sitting atop a brick wall near the grave. Parker reached over and rested one hand on the monument as it sat on the wall. The monument fell on and severely injured Parker’s foot. Parker does not know who moved the monument from the grave site or when, but she believes that she first noticed it had been moved when she attended her sister’s burial in 1997. Parker assumes that the persons who dug the grave moved the monument on behalf of the funeral home.

Monument Sales and Hovers (collectively “Monument Sales”) moved for summary judgment claiming that there was no evidence that Parker’s injuries were caused by any act or omission of Monument Sales. More specifically, Monument Sales argued that the movement of the monument by a third party and then Parker’s touching of the monument as it sat on a wall amounted to intervening, independent acts and that Monument Sales cannot be held liable for the injury.

In response to the summary judgment motion, Parker urged that genuine issues of material fact remain regarding whether Monument Sales installed the monument properly and whether the moving of the monument was a foreseeable circumstance which Monument Sales should have anticipated. In support of her brief, Parker submitted an affidavit of a funeral director in which he stated that he installed cemetery monuments, that it was standard in the industry to use spacers between the base and die of a monument, that the spacers would cause a stronger bond between the two sections, that it is foreseeable that a monument installed before a person dies will later be moved when the burial occurs, and that the bond on an improperly installed monument will weaken or deteriorate. The witness stated that an attached brochure (prepared by Elberton Granite Association, Inc.) on the techniques for erecting cemetery monuments represents the standards for the industry.

Contrary to the witness’ contentions, however, the brochure states that the usual procedure utilized in installing the monuments is to use a setting compound, although the brochure does recommend the use of certain types of “space age” spacers or cushions between the two pieces of monument, along with setting compound. The brochure also notes, contrary to the witness’ position, that monument installation “is a permanent installation — once the monument is in place, more than likely it will never be set again.” Finally, the brochure states that “it is not intended to claim that the [installation] methods set forth herein are the only, or the best, methods that can be employed. It is hoped that the suggestions will cause monument dealers and cemeteries to take a special look at the appearance of the memorials to see if room for improvement exists.” The brochure notes that its purpose is to enhance the appearance of cemeteries; it does not address safety issues.

The trial court granted Monument Sales’ motion for summary-judgment, noting that Monument Sales installed the monument according to trade customs. The trial court added that there was a lack of evidence as to the condition of the monument at the time the gravediggers moved it, how they moved it, and how they secured it at the new location so that it would not fall. The court concluded that there was no evidence that Monument Sales’ method of installing the monument was the cause of the monument falling on Parker’s foot.

A party is entitled to summary judgment when he can show that any essential element of the opposing party’s case is missing and incapable of proof. To state a cause of action for negligence in Georgia, a plaintiff must show (1) a legal duty to conform to a standard of conduct raised by law for the protection of others against unreasonable risks of harm; (2) a breach of this standard; (3) a legally attributable causal connection between the conduct and the resulting injury; and (4) loss or damage to plaintiff’s legally protected interest resulting from the breach. Here, it is clear that there is an absence of evidence that Monument Sales breached a standard of conduct and that it was the proximate cause of Parker’s injury.

1. Breach of standard of conduct. No matter how innocent the plaintiff may be, she is not entitled to recover unless the defendant did something that it should not have done or failed to do something that it should have done pursuant to the duty owed the plaintiff. Parker cannot prove from the evidence that Monument Sales had a duty which it breached.

Although Parker’s witness testified that the use of spacers is standard for the industry, and that it is foreseeable that monuments will be moved after installation, these statements are directly contradicted by the brochure he endorsed as being correct. To the extent that the witness’ averments are contradicted by the brochure he endorsed, the contradictions are to be construed against him. Thus, we conclude that the industry usually uses the setting compound without spacers, that an installer should not expect the monuments to be moved after installation, and that the use of spacers is not the only or necessarily the best method of installation. There is, therefore, no evidence that Monument. Sales breached a duty in its method of installation.

2. Proximate cause. Even assuming that a genuine issue of fact exists with regard to whether Monument Sales was negligent in the manner in which it installed the monument, there is no evidence of proximate cause. The requirement of proximate cause constitutes a limit on legal liability; it is a policy decision that, for a variety of reasons, the defendants’ conduct and the plaintiff’s injury are too remote for the law to allow recovery. For this reason, before any negligence can be actionable, that negligence must be the proximate cause of the injuries sued upon. It is well settled that there can be no proximate cause where there has intervened between the acts of the defendants and the injury, an independent act of a third party which was not foreseeable to the defendants, which was not triggered by the defendants’ acts, and which was sufficient of itself to cause the injury.

Here, there was a lack of evidence that Monument Sales’ manner of installing the monument in 1996 caused the monument to fall on Parker in 1998. In addition to the lapse of time, the monument had been moved from its original site by a third party, placed on top of a wall by a third party, and then rested upon by Parker months after it was moved. Monument Sales’ acts were simply too remote for it to be held liable for Parker’s injury.

We are not convinced by Parker’s argument that Monument Sales is responsible for the intervening acts because the acts were foreseeable. First, it is not clear that a monument installer should anticipate that a monument might be moved by gravediggers; in fact, the brochure submitted by Parker and endorsed by her witness states that an installation should be permanent. Second, even if Monument Sales should have anticipated the movement of the monument, it was not reasonably foreseeable that the monument would be placed atop a brick wall and left there for a long period of time, uninstalled, or that a person would rest her hand on the uninstalled monument as it sat perched on the wall, or that a section of the monument would fall on a person visiting the cemetery. Hovers testified that in his 13 years of installing monuments he had never previously received word of any of his monuments falling or coming apart. The injury was not reasonably foreseeable, so summary judgment for the defendants was proper.

Although what amounts to proximate cause is normally a jury question, it will be determined by the court as a matter of law in plain and undisputed cases. This is one of those plain, palpable and undisputed cases in which the defendants were entitled to summary-judgment.

Decided April 30, 2002.

Coppedge & Leman, Jesse L. Vaughn, for appellant.

Goodman, McGuffey, Aust & Lindsey, Thomas J. Lehman, for appellees.

Judgment affirmed.

Blackburn, C. J., and Miller, J., concur.

        Porter v. Felker, 261 Ga. 421-422 (1) (405 SE2d 31) (1991).

        City of Douglasville v. Queen, 270 Ga. 770, 771 (1) (514 SE2d 195) (1999).

       Id.

       See Hudgens v. Broomberg, 262 Ga. 271 (1), n. 1 (416 SE2d 287) (1992).

        Atlanta Obstetrics &c. Croup v. Coleman, 260 Ga. 569 (398 SE2d 16) (1990); Bacon v. Mayor &c. of Savannah, 241 Ga. App. 211, 212 (525 SE2d 115) (1999).

        Bacon, supra.

        Levangie v. Dunn, 182 Ga. App. 439, 440 (1) (356 SE2d 88) (1987).

       See generally Stegall v. Central Ga. Elec. Membership Corp., 221 Ga. App. 187, 191 (2) (470 SE2d 782) (1996).

       See generally Mills v. Jack Eckerd Corp., 224 Ga. App. 785, 787 (482 SE2d 449) (1997).

       See Atlanta Gas Light Co. v. Gresham, 260 Ga. 391, 393 (4) (394 SE2d 345) (1990); Atlanta Obstetrics &c., supra at 570.

       See generally Tudor v. Ford, 242 Ga. App. 573, 576 (3) (530 SE2d 474) (2000).


text:
    A02A0068.
    RICKS v. THE STATE.
    (564 SE2d 793)
   Blackburn, Chief Judge.

David Jason Ricks was convicted of driving under the influence (less safe driver) and speeding and acquitted of underage possession of alcohol. He appeals, maintaining that the lower court erred in: (1) failing to grant his motion for a directed verdict when the State offered no evidence that alcohol impaired his ability to drive; (2) failing to charge the jury on the presumption of sobriety contained in OCGA § 40-6-392 (b) (1); (3) failing to amend the accusation for driving under the influence of alcohol to the extent that he was a less safe driver to strike any reference to his being under 21 years of age; and (4) instructing the jury that it could assume that equipment approved by the crime lab is considered accurate if properly operated. Because we agree that the State failed to offer sufficient evidence to convict Ricks of driving under the influence of alcohol to the extent that he was a less safe driver, we reverse.

1. Ricks argues that the State failed to present sufficient evidence to convince a rational trier of fact beyond a reasonable doubt that he was impaired by alcohol.

On appeal from a criminal conviction, the evidence is viewed in a light most favorable to the verdict. We do not weigh the evidence or determine witness credibility but only determine whether the evidence is sufficient under the standard of Jackson v. Virginia. The verdict must be upheld if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

(Footnotes omitted.) Stone v. State.

Evidence was adduced that in the early morning hours of July 1, 2000, Officers David Edwards, a member of the DUI task force, and William Ibarrondo were operating a stationary radar unit on Interstate 75 in Clayton County. At 2:22 a.m., they observed a pickup truck traveling at a high rate of speed. The officers stopped the pickup, which was driven by Ricks; with him were four teenage friends. Detecting a strong odor of an alcoholic beverage on either Ricks’s breath or person, Edwards asked Ricks if he had consumed any alcohol. Though he initially denied having had anything to drink, Ricks admitted that he had had one beer earlier in the evening. Ricks agreed to blow into a portable field alco-sensor and tested positive for the presence of ethyl alcohol. Edwards testified that he decided to arrest Ricks for DUI without conducting any field sobriety tests. Instead, he took Ricks into custody and read him the implied consent card for drivers under 21. Ricks agreed to submit to the State-administered breath test. He registered a 0.052 and 0.05 on the Intoxilyzer 5000.

Though Ricks was under 21 years of age, the State did not charge him with driving with more than 0.02 percent blood alcohol content while under the age of 21, OCGA § 40-6-391 (k) (1), but instead charged him with driving under the influence of alcohol to the extent that he was a less safe driver, OCGA § 40-6-391 (a) (1). Under OCGA § 40-6-391 (a) (1), impaired driving ability is an element of the crime that the State must prove to obtain a conviction. Peck v. State. In this case, Officer Edwards testified that Ricks was stopped for speeding and that he smelled of alcohol and had “a little bit of red, glassy eyes, and it wasn’t very much.” Edwards also testified that Ricks was not belligerent, but was polite and cooperative, doing everything Edwards asked him to do. Edwards also testified that Ricks was not unsteady on his feet and did not stumble when he exited his car, his speech was not slurred, and he had no difficulty understanding instructions which Edwards gave him. Finally, Edwards stated that one of the primary reasons he decided that Ricks was a less safe driver was the fact that he was under 21 and had consumed an alcoholic beverage, but he agreed that, except for the fact “that [Ricks] was drinking and he was under twenty-one,” there was nothing Ricks had done that would lead him to believe that he was impaired by alcohol to the extent that he was a less safe driver. Under these facts, we find that the conclusion that Ricks “was under the influence of alcohol to the extent that it was less safe for him to drive was without evidentiary foundation.” Clay v. State. See also Davis v. State; Bowen v. State.

Ricks was charged under OCGA § 40-6-391 (a) (1), not OCGA § 40-6-391 (k) (1); thus, the fact that Ricks was under 21 and had consumed alcohol does not establish that he was a less safe driver. The only test performed at the traffic stop was the alco-sensor test, which merely established that Ricks had some alcohol in his system. There was no other evidence to support the conclusion that Ricks was a less safe driver. “Mere presence of alcohol is not the issue; the quantity is needed because the issue is effect.” Sieveking v. State. More importantly, “no testimony was adduced to show that [Ricks] was a less safe driver as a result of being under the influence of alcohol.” Davis, supra at 648 (1).

The fact that Ricks had a reading of 0.05 on the Intoxilyzer 5000 test does not establish, or even raise a presumption, that Ricks was so impaired by alcohol that he was a less safe driver under the charges against him. Under OCGA § 40-6-392 (b) (1), if a chemical test shows “an alcohol concentration of 0.05 grams or less, the trier of fact in its discretion may infer therefrom that the person was not under the influence of alcohol,” to the extent that he was a less safe driver. The State argues that the jury could have determined that Ricks’s blood alcohol content was as high as 0.065 because the breath test was administered over an hour after Ricks was stopped, but under OCGA § 40-6-392 (b) (2), the fact that the alcohol concentration is between 0.05 and 0.08 does “not give rise to any inference that the person was or was not under the influence of alcohol” so as to have violated OCGA § 40-6-391 (a) (1).

“No witness expressed any opinion that defendant was a less safe driver due to alcohol consumption and in addition, there is no evidence as to defendant’s conduct or appearance which would authorize the [jury] as trier of fact to form such an opinion. The conviction of DUI was not authorized by the evidence.” Groom v. State. Compare Bell v. State; Davidson v. State. Ricks’s conviction for speeding, which he did not challenge on appeal, is unaffected by our decision.

2. Our disposition in Division 1 renders the remaining enumerations of error moot.

Judgment reversed.

Johnson, P. J., and Miller, J., concur.

Decided April 30, 2002.

Sexton & Morris, Lee Sexton, for appellant.

Keith C. Martin, Solicitor-General, Linda T Day, Assistant Solicitor-General, for appellee.

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

        Stone v. State, 248 Ga. App. 190 (546 SE2d 787) (2001).

        Peck v. State, 245 Ga. App. 599, 600 (538 SE2d 505) (2000).

         Clay v. State, 193 Ga. App. 377, 379 (2) (387 SE2d 644) (1989).

        Davis v. State, 206 Ga. App. 647, 648 (426 SE2d 267) (1992).

        Bowen v. State, 235 Ga. App. 900, 901 (510 SE2d 873) (1999).

        Sieveking v. State, 220 Ga. App. 218, 219 (1) (469 SE2d 235) (1996).

        Groom v. State, 187 Ga. App. 398, 400 (2) (370 SE2d 643) (1988).

        Bell v. State, 197 Ga. App. 175 (398 SE2d 29) (1990).

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