text:
    A97A1641.
    KAPUA v. THE STATE.
    (491 SE2d 387)
   Blackburn, Judge.

Ronald Cleto Kapua appeals his convictions on two counts of child molestation and one count of cruelty to children, asserting that the evidence was insufficient to support the verdict. He also raises issues of prosecutorial misconduct and ineffective assistance of counsel.

1. Kapua contends that the trial court erred in denying his motion for new trial on the grounds that the verdict was contrary to the evidence and principles of justice and equity and was strongly against the weight of the evidence. See OCGA §§ 5-5-20; 5-5-21. However, “[t]he denial of a new trial on these grounds addresses itself to the discretion of the trial judge. On appeal, this Court only reviews the evidence to determine if there is sufficient evidence to support the verdict, which is a matter of law, not discretion.” (Citation omitted.) Jones v. State, 219 Ga. App. 780 (1) (466 SE2d 667) (1996). “On appeal from a criminal conviction, the evidence must be construed in the light most favorable to the verdict, and the appellant no longer enjoys a presumption of innocence. ... To sustain the conviction, the evidence must be sufficient to authorize the jury’s finding of the defendant’s guilt of the crime charged beyond a reasonable doubt. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).” (Punctuation omitted.) West v. State, 224 Ga. App. 190 (1) (480 SE2d 238) (1997).

Kapua contends that the evidence was insufficient to support his conviction because the victim, his stepdaughter, denied at trial that the acts of molestation occurred. For the reasons discussed below, however, this contention is without merit.

Pursuant to OCGA § 24-3-16, which allows admission of hearsay statements of a child relating to acts of sexual contact or physical abuse, the State introduced evidence of out-of-court statements made by the child relating to acts of molestation by Kapua. Elizabeth White, the child’s school counselor, testified that the child told her Kapua had touched her on her breasts, buttocks, and “private parts.” She testified that the child told her Kapua had also exposed himself to her and asked her to touch his private parts. The child said this had occurred oii several occasions. White testified that the child later repeated these statements in more detail in a meeting with White and two other individuals, Kathy Kolberg of the Fannin County Department of Family fc Children Services (DFACS) and Diane Davis of the Fannin County Sheriff’s Department.

Dr. David Jones, a psychologist who counseled the child, testified that the child told him Kapua touched her on the breasts, anus, and vagina. She told him this had happened nine or ten times, and that many times Kapua had asked her to touch his penis. Jones testified that he counseled the child on a regular basis, and that she confirmed these accounts on at least two subsequent occasions.

Kathy Kolberg, the DFACS caseworker, testified that she and Diane Davis interviewed the child on February 25, 1995, at the DFACS office. This interview was videotaped, and the tape was introduced into evidence and played before the jury. In the tape, the child repeated her accusations that Kapua touched her on the breasts, buttocks, and vagina.

At trial, however, the child, who was then ten years old, denied that Kapua had touched her anywhere except the chest and denied telling Davis and White that Kapua had touched her anywhere else. She testified that she never touched Kapua’s private parts and denied ever telling anyone that she had. She testified that she had not talked with Dr. Jones about Kapua touching her.

Although the child’s trial testimony contradicted her statements in the videotape and the testimony that she had told others of Kapha’s actions, this does not render the evidence insufficient to support the verdict. OCGA § 24-3-16 “requires only that the child be available to testify; it does not require the child to corroborate the hearsay testimony.” Jones v. State, 200 Ga. App. 103 (407 SE2d 85) (1991). See also Braddy v. State, 205 Ga. App. 424, 425 (2) (422 SE2d 260) (1992). “[Conflicts between the videotaped statement and the testimony of the child at trial would not necessarily render the former inadmissible, but would rather present a question of credibility of the witness to be resolved by the trier of fact, here the jury.” Ware v. State, 191 Ga. App. 896, 897 (2) (383 SE2d 368) (1989). “The thrust of the child witness statute is to allow the jury, which must be convinced of guilt beyond a reasonable doubt, to judge the credibility of a child’s accusations. If a child, who has reported child molestation to an adult permitted to testify to the out-of-court statement at trial, is incapable of reiterating the accusation at trial or is unresponsive or evasive during cross-examination, the jury must decide the child’s credibility.” (Citation and punctuation omitted.) Jones, 200 Ga. App. at 103.

There was evidence from which the jury could have concluded that the child was pressured by her family to change her testimony at trial. After DFACS raised allegations of child abuse, the child’s mother and natural father went to see the child, who was staying with her great-grandmother. After the mother left, the police were called to the house. Officer Harrison testified that the great-grandmother told him the mother had brought a tape recorder and attempted to get the child to deny that anything had happened. According to the great-grandmother, the mother would ask a question, then tell the child how to respond. If the child did not give the proper answer, the mother would spank her and the child would cry. Officer Harrison also testified that the child confirmed these facts to him.

At trial, the great-grandmother denied that she had made such a statement to Harrison and denied that the mother had tape-recorded the child. However, “a prior inconsistent statement of a witness who takes the stand and is subject to cross-examination is admissible as substantive evidence, and is not limited in value only to impeachment purposes. . . . [T]he jury can determine whether to believe the present testimony, the prior testimony — or neither.” Gibbons v. State, 248 Ga. 858, 862-863 (286 SE2d 717) (1982). Accordingly, the great-grandmother’s statement to Harrison regarding the mother’s actions was admissible as substantive evidence and not merely for impeachment of the great-grandmother’s trial testimony. The jury could have believed Harrison’s account of the great-grandmother’s prior statement and could have concluded that the mother did seek to coerce the child into changing her story.

Although the evidence in this case was conflicting, it is the function of the jury, and not this Court, to resolve conflicts in the evidence. This Court “determines only the legal sufficiency of the evidence adduced below and does not weigh the evidence or assess the credibility of the witnesses.” (Citation and punctuation omitted.) West, supra at 190 (1). Viewed in the light most favorable to the prosecution, the evidence was sufficient to enable the jury to conclude beyond a reasonable doubt that Kapua was guilty of the offenses charged. See generally Frazier v. State, 195 Ga. App. 109 (2) (393 SE2d 262) (1990).

2. In several enumerations, Kapua asserts error with respect to a sequence of questions asked by the prosecutor to a witness. Elizabeth White testified that the child described Kapua’s actions in a meeting with White, Kolberg, and Davis. The prosecutor then asked, “were you able to evaluate based upon your training and experience what this child told you?” Kapua’s attorney objected to the question “as being the ultimate conclusion for this jury to decide” and because White had not been tendered as an expert. The judge stated that, “The question as asked, I sustain the objection at this time.” The prosecutor then asked, “What evaluation did you make of what she told you? I’ll ask it that way.” Kapua’s attorney did not object to this phrasing of the question, and the witness responded, “I felt like — if you mean whether or not she was being truthful, I didn’t have any doubt that the child was being truthful.” Kapua’s attorney did not object to White’s response, request that her testimony be stricken, or request any other relief.

Kapua contends that the court erred in allowing White to testify as to the truthfulness of the child, arguing that such testimony amounted to improper bolstering of the child’s credibility. See Roberson v. State, 214 Ga. App. 208, 210 (4) (447 SE2d 640) (1994). However, “[i]t is well-settled in this state that it is too late to urge objections to the admission of evidence after it has been admitted without objection. In this state it is necessary to object to evidence at the time it is actually offered, and failure to do so amounts to a waiver of any objection which might have been raised.” (Citation and punctuation omitted.) Jackson v. State, 217 Ga. App. 485, 488 (4) (a) (458 SE2d 153) (1995). Accordingly, this contention is without merit.

Kapua also contends that the asking of the second question, after the sustaining of his objection to the earlier question, constituted prosecutorial misconduct entitling him to a mistrial. However, our Supreme Court has held that “[t]he contemporaneous objection rule cannot be avoided by characterizing trial occurrences as examples of prosecutorial misconduct. . . . [Pjrosecutorial conduct not objected to at trial will not warrant reversal on appeal.” Spencer v. State, 260 Ga. 640, 646 (9) (398 SE2d 179) (1990). Contrary to Kapua’s contention, the trial court did not err in failing sua sponte to grant a mistrial or rebuke the prosecutor. “Since no motion for mistrial or request for corrective instructions was made in [this instance, it provides] no ground for reversal. [Cit.]” (Punctuation omitted.) Davis v. State, 167 Ga. App. 764, 765 (2) (307 SE2d 546) (1983); see also Phillips v. State, 162 Ga. App. 199, 200 (4) (290 SE2d 142) (1982).

Kapua also contends that he received ineffective assistance of counsel because his trial attorney did not renew his objection to White’s testimony or move for a mistrial. “However, defendant’s trial counsel was not heard on this issue at the motion for new trial hearing, and for this reason, there is nothing for us to address on appeal. Williams v. State, 251 Ga. 749, 809 (20) (312 SE2d 40) [(1983)].” Sterling v. State, 223 Ga. App. 490, 491 (478 SE2d 145) (1996).

Decided August 5, 1997

Reconsideration dismissed August 20, 1997.

J. Richardson Brannon, for appellant.

Roger G. Queen, District Attorney, for appellee.

Judgment affirmed.

Pope, P. J., and Johnson, J., concur.


source: Caselaw Access Project

author: Johnson, Judge.

license: Public Domain

text:
    A97A1358.
    In the Interest of S. A. W., a child.
    (491 SE2d 441)
   Johnson, Judge.

In this deprivation case, we must decide whether an order of the juvenile court authorizing the Gwinnett County Department of Family & Children Services (“DFACS”) to discontinue efforts to reunite S. A. W. and her mother is a final judgment subject to direct appeal and, if so, whether the juvenile court erred in determining that reunification services need no longer be provided. For the reasons that follow, we hold that the order is appealable as a final judgment and that the juvenile court’s decision is supported by clear and convincing evidence.

The relevant facts are as follows: S. A. W. was temporarily removed from her mother’s custody and placed in the custody of DFACS a few days after she was born, when both mother and infant tested positive for cocaine use. A month later, on November 22,1994, the juvenile court entered a final order in which it found, among other things, that the child, who was going through cocaine withdrawal, was deprived within the meaning of OCGA § 15-11-2 (8) and in need of the court’s protection; that remaining in the mother’s home would be contrary to the child’s welfare; that reasonable efforts have been made to prevent removal from the home and to allow the child to return to the home; and that the best interests of the child would be served by placing temporary custody with DFACS. See OCGA §§ 15-11-41 (b); 15-11-34 (a) (2). The court ordered the mother to participate in a drug treatment program, attend parenting classes, visit the child, and participate in random drug screens as ordered by DFACS.

In September 1995, a citizen’s review panel reviewed the case and issued a report recommending that DFACS seek termination of the mother’s parental rights. See OCGA §§ 15-11-41 (c); 15-11-81. In October 1995, the juvenile court conducted a hearing to review the panel’s report. See OCGA § 15-11-41 (f). The juvenile court disagreed with the panel’s recommendation, opting instead to give the mother another opportunity for reunification. In its order, the court required the mother to pay child support every two weeks, submit to at least one random drug test each month, and attend three Narcotics Anonymous meetings each week; the mother was required to provide DFACS with written verification of her attendance. The order also required the mother to cooperate fully with DFACS. It specified that non-compliance with any of these conditions constituted grounds for DFACS to reinstate the goal of termination of parental rights in the case plan.

In April 1996, the juvenile court again reviewed the case. Finding that the mother was making progress, the court extended the October 1995 order until April 1998 so that the objectives of that order could be accomplished. The court added a requirement that the mother obtain and maintain stable employment and living arrangements.

DFACS filed a motion in October 1996 seeking review of the case plan, claiming the child was exhibiting behavioral problems after visiting with the mother and alleging that the mother was not complying with the court-ordered case plan. DFACS sought a determination from the juvenile court that reunification was no longer an appropriate goal in this case.

• After conducting the review hearing, the juvenile court entered an order in which it found, pursuant to OCGA § 15-11-41 (b), that reunification of the child with her mother would be contrary to her welfare, reasonable efforts to prevent removal had been made, the mother had not complied with previous orders with sufficient excuse, and any further attempts at reunification would be futile. The court noted that DFACS would be filing a petition to terminate the mother’s parental rights and ordered that no further panel review hearings be conducted in the matter. There is no indication in the record that a petition to terminate the mother’s parental rights has been filed.

The mother filed this direct appeal and also an application for discretionary appeal from the latest order. In a prior order, we dismissed her application for discretionary appeal because the judgment appealed from is not subject to the discretionary appeal procedure. See OCGA § 5-6-35 (a) (2). Neither party challenges our dismissal of the application for discretionary review. Accordingly, only the direct appeal is now before us.

1. DFACS contends that this appeal must also be dismissed because the order appealed from is not a final judgment and the interlocutory appeal procedures have not been complied with. See OCGA § 5-6-34 (b). DFACS argues that the case is still pending in juvenile court, pointing out that there has been no final decision regarding the mother’s parental rights.

The fact that the juvenile court’s order does not resolve all issues regarding the mother’s parental rights does not mean that the order is not subject to appellate review unless the interlocutory appeal procedure is followed. In Dawley v. Butts County DFACS, 148 Ga. App. 815 (1) (253 SE2d 235) (1979), we held that an order of a juvenile court judge finding a child to be deprived and placing him or her in the temporary custody of DFACS is a final order from which a direct appeal will lie. Similarly, in Sanchez v. Walker County DFACS, 235 Ga. 817 (221 SE2d 589) (1976), the Supreme Court held that interlocutory appeal procedures are not required for an appeal from a juvenile court order vesting temporary custody of a deprived child with the state. No final decision as to the parent’s rights had been made in either of these cases. We find no significant distinction between the types of dispositional orders appealed from in Dawley and Sanchez and that appealed from in this case. The same statute which authorizes the juvenile court to enter a dispositional order temporarily transferring custody of a deprived child also allows the juvenile court to review that order and order DFACS to devise a new placement plan. OCGA § 15-11-34 (a) (2), (c). A subsequent order of the court finding that reunification is not possible and any further attempts at returning the child to the mother will be futile and disallowing any further panel review hearings in the case should be regarded with the same degree of finality as the placement order it modifies. Therefore, this Court has jurisdiction to consider this direct appeal.

2. The mother argues that reunification efforts should have been continued because, contrary to the juvenile court’s findings, she substantially complied with the reunification plan. See OCGA § 15-11-41 (i).

However, at a review hearing held in December 1996, the DFACS caseworker assigned to the case testified that the mother did not obtain drug screens within twenty-four hours of DFACS’ requests, did not attend Narcotics Anonymous meetings as scheduled, at times missing meetings for entire months, had not paid child support for nearly three months prior to the hearing, and changed jobs frequently. And though the mother completed a drug and alcohol treatment program, she had not complied with program requirements that she regularly attend meetings afterward.

Decided August 21, 1997.

Julie B. Prokopovich, for appellant.

Michael J. Bowers, Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen A. Sgrosso, Assistant Attorney General, Rich, Smith & McCoy, Michael T. Smith, John L. Welsh II, for appellee.

The mother admitted that she had not paid all court-ordered child support and had not submitted to drug tests within 24 hours as required. She explained that she was unable to comply with either requirement because she did not have enough money to do so. On cross-examination, the mother acknowledged that her counselor told her to set aside $26 for the drug tests so she would have the fee when she needed it and, even though she worked fairly regularly, she was unable to have the $26 fee handy because “[i]t seems like I have to use it.” She explained missing some Narcotics Anonymous meetings because of transportation problems, but added that she attended more meetings than her documentation showed, stating she simply lost some of the paperwork. The finding of the juvenile court that the mother unjustifiably failed to comply with plans designed to reunite the family is supported by clear and convincing evidence. See generally In the Interest of L. S. F., 217 Ga. App. 478, 480 (458 SE2d 370) (1995). We note that the juvenile court’s finding that reunification efforts would be detrimental to the child was supported by, in addition to the foregoing, evidence that each time the child returned from an unsupervised visit with the mother, she appeared traumatized and for several days thereafter had nightmares, and awoke at night with “blood curdling screams.” Accordingly, the criteria of both OCGA § 15-11-41 (i) (1) and (3) were satisfied. See OCGA §§ 15-11-81 (b) (4) (A) (ii); 15-11-81 (b) (4) (C). We find no error in the juvenile court’s determination that reunification services should no longer be provided.

Judgment affirmed.

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

       See also In the Interest of J. P., 267 Ga. 492 (480 SE2d 8) (1997) and In the Interest of A. L. L., 211 Ga. App. 767 (1) (440 SE2d 517) (1994), permitting direct appeals from deprivation orders; note that those cases involve discretionary, rather than interlocutory, appeals.


author: Ruffin, Judge.

text:
    A97A1632.
    GRIFFIN v. THE STATE.
    (491 SE2d 437)
   Ruffin, Judge.

A jury found Avery Griffin guilty of arson. Griffin appeals, asserting as error the trial court’s failure to give his requested charges concerning evidence of motive and suspicion and the court’s denial of his motion for directed verdict. For reasons which follow, we affirm.

We note initially that Griffin, who is represented by counsel on appeal, has violated this Court’s rules and OCGA § 5-6-40 in preparing his brief. First, and potentially fatal to his appeal, Griffin has failed to cite to the record or transcript in support of his factual assertions. Court of Appeals Rule 27 (c) (3) (i) plainly requires that “[e]ach enumerated error shall be supported in the brief by specific reference to the record or transcript. In the absence of such reference, the Court will not search for or consider such enumeration.” To Griffin’s good fortune, the record in this appeal is relatively short, and the State has cited the record in responding to Griffin’s assertions of error. While the State’s citations allow us to review Griffin’s assertions without culling the record on his behalf, they in no way excuse his disregard for the rules of this Court. Griffin’s failure to cite the record not only jeopardizes consideration of his appeal on the merits, but may also subject counsel to contempt proceedings. Court of Appeals Rule 7.

Second, and also potentially fatal to at least one of Griffin’s assertions of error, he has asserted two separate errors in his first enumeration of error. OCGA § 5-6-40 requires that the enumerations of error “set out separately each error relied upon.” “When an appellant argues more than one error within a single enumeration, this court in its discretion may elect to review none of the errors so enumerated in violation of OCGA § 5-6-40 or elect to review any one or more of the several assertions of error contained within the single enumeration and treat the remaining assertions of error therein as abandoned.” (Citations and punctuation oimitted.) White v. State, 221 Ga. App. 860, 861 (1) (473 SE2d 539) (1996).

Despite both violations, we exercise our discretion in this case to review Griffin’s appeal on the merits for the reason of judicial economy and because Griffin should not, in this case, suffer for what his counsel neglected to do.

1. Viewed in a light most favorable to support the jury’s verdict, the evidence at trial showed as follows. Griffin and his estranged wife, Jackie Griffin, separated in October 1994. When Jackie Griffin moved out of their home, she took most of the furniture with her and rented a house. Jackie testified at trial that she did not tell Avery she was moving, “[bjecause he told [her that she] could never take anything from [the home].”

At approximately 9:00 a.m. on February 8, 1995, Jackie Griffin left her rented home and went shopping with three friends. When Jackie and her friends returned to her home at approximately 7:30 that evening, she noticed all the lights in the house were on. Jackie testified that she entered the residence accompanied by one of her friends, and “[i]t looked as if someone had ransacked [the] house. . . . [T]hings were scattered all over the floor[,]. . . [p]apers, clothes; just things pulled out of the drawers.” Jackie stated that nothing was missing, that all the doors were closed, and that she looked in all the rooms and did not see anyone inside the house.

A few minutes after Jackie and her friend entered the house, the doorbell rang. It was Avery Griffin. Jackie testified that “[h]e had a most unusual look about him. ... He was very pale.” In 29 years of marriage, she could not recall having “seen this look on Avery’s face before.” Jackie was scared and felt as though she needed to leave the house. She told Avery that someone had ransacked her house, walked past him, and pushed her friend out the door. When Jackie last saw Avery, he was standing in the doorway between the kitchen and the den.

Jackie and her friend joined their two companions in the car. Jackie told them that she “felt that [they all] needed to leave and give [Avery] a chance to leave.” Accordingly, the four women drove a short distance down the road, pulled into a neighbor’s driveway, sat there with the car lights off, watched the house, and waited until they thought it was safe to go back. When they saw Avery’s truck leave Jackie’s driveway eight to ten minutes later, they returned to the house. As they approached the residence, Jackie observed “that the lights were off, but [she also] noticed a flickering in the front windows.” When she opened the carport door, she realized the house was on fire and went to a neighbor’s house to call the fire department.

A. W. Durham, an expert arson investigator, testified for the State at trial. According to Durham, the fire originated in the den, and there was no evidence of any electrical or other accidental causes. Durham testified that he found newspapers scattered around the area of the fire’s origin, and that he found evidence of flammable or combustible liquid pour patterns. Based on his investigation, Durham concluded that the fire was intentionally set.

Other testimony also showed that Avery Griffin was at the house shortly before Jackie and her friends arrived. Avery Griffin admitted he was at the house at “four or five o’clock that afternoon, to see if they was (sic) back. . . .” Jackie Griffin’s neighbor testified, however, that she saw Avery Griffin’s truck in the driveway at approximately 7:00 p.m., only 30 minutes before Jackie and her friends arrived at the house. The neighbor further stated that she knew it was Avery’s truck because she had “seen it over there numerous times.”

The trial court did not err in denying Avery Griffin’s motion for a directed verdict. “The denial of a motion for directed verdict of acquittal should be affirmed if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Mere presence at the scene of a crime is insufficient to convict one of being a party to the crime, but presence, companionship, and conduct before and after the offense are circumstances from which one’s participation in the criminal intent may be inferred. Criminal intent may be found by the jury upon consideration of the words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted.” (Citations and punctuation omitted.) Owens v. State, 204 Ga. App. 579, 581 (3) (420 SE2d 79) (1992).

In the instant case although the evidence was circumstantial, it was sufficient for a rational trier of fact to find Griffin guilty of arson beyond a reasonable doubt. In addition to his presence at the scene of the crime, the evidence showed that Griffin may have been motivated to start the fire because of animosity toward Jackie for taking furniture from the marital home. Furthermore, Griffin’s unexplained presence at the house approximately 30 minutes before the fire, his unusual and frightening demeanor which caused Jackie to leave the house immediately before the fire, and his instantaneous exit after the fire was started are all circumstances which the jury could have relied on in finding Griffin guilty beyond a reasonable doubt. See id.

2. Griffin asserts the trial court erred in failing to charge the jury that “while the defendant in this case obviously had the opportunity to start the fire, he had no apparent motive for doing so, and without more, the fact that he had exclusive access to the property, raises no inference of incendiarism on his part.”

“A request to charge the jury must be correct and even perfect; otherwise refusal to give it is not error. It must be legal, apt, and precisely adjusted to some principle involved in the case, and be authorized by the evidence.” (Citation and punctuation omitted.) Sumlin v. State, 207 Ga. App. 408, 410 (2) (427 SE2d 868) (1993). In this case, the requested charge was not authorized by the evidence inasmuch as there was circumstantial evidence of motive — Griffin’s animosity toward his estranged wife for taking furniture from the marital home. Furthermore, “[t]he imperfection inherent in the argumentative character of [Griffin’s] request, which is more adjusted to the exhortation of counsel than to the impartial clarity which should characterize the instructions of the court, is sufficient reason for its refusal. It follows that there was no error in the trial court’s refusal to give the requested instruction.” (Citation and punctuation omitted.) Id.

3. In the same enumeration of error, Griffin asserts that the court also refused to charge the jury that although “the fact that the evidence in this case raises a suspicion against the defendant, suspicion alone is not sufficient to authorize a conviction against the defendant.” However, the transcript shows that the trial court instructed the jury concerning the presumption of innocence, the State’s burden of proving Griffin committed the offenses beyond a reasonable doubt and the law on circumstantial evidence. Because the trial court’s instructions covered the same relevant principles of law as the requested charge, we find no error. See Casas v. State, 193 Ga. App. 53, 54 (387 SE2d 20) (1989).

Decided August 21, 1997.

John R. Thigpen, Sr., for appellant.

Richard E. Currie, District Attorney, James D. Lamb, Assistant District Attorney, for appellee.

Judgment affirmed.

Birdsong, P. J., and Eldridge, J., concur.

       We hasten to hold, however, that we reach the merits of this case only because Griffin himself should not be deemed to embrace a procedural error which should amount to contempt of this Court.


author: Pope, Presiding Judge.

text:
    A97A1361.
    THE STATE v. STANG.
    (491 SE2d 382)
   Pope, Presiding Judge.

The trial court granted defendant Steven Stang’s motion for discharge and acquittal after the State failed to comply with defendant’s speedy trial demand. See OCGA § 17-7-170. Concluding that defendant’s speedy trial demand was premature and therefore a nullity, we reverse.

On September 5, 1996, defendant was issued Uniform Traffic Citations (UTCs) for driving under the influence of alcohol and failing to maintain his lane. At about that time, defendant was required to post bond and notified that he should appear in court on December 5,1996. But the State did not file the UTCs or an accusation with the court until November 22, 1996. In the meantime, defendant had filed his speedy trial demand on September 24, 1996. When the clerk received this demand, the case did not have a number assigned; but the clerk accepted the demand, assigned a case number, and notified the prosecutor.

We have repeatedly held that a speedy trial demand is premature and a nullity if it is filed before the UTC or accusation is filed with the clerk of the court. See, e.g., Shire v. State, 225 Ga. App. 306 (483 SE2d 694) (1997); Ghai v. State, 219 Ga. App. 479 (465 SE2d 498) (1995); State v. Lipsky, 191 Ga. App. 842 (383 SE2d 204) (1989). Nonetheless, the trial court ruled that since defendant had to post bond and was notified of his court date, it was clear that the State intended to prosecute him. Thus, the court reasoned, the purpose of an accusation was accomplished, and the early filing of the demand should be deemed timely.

Decided July 28, 1997

Reconsideration denied August 22, 1997

Ralph T. Bowden, Jr., Solicitor, W. Cliff Howard, Joseph N. Walden III, Assistant Solicitors, for appellant.

Jamie S. Wingler, for appellee.

This is not the law, however. We need a bright-line rule in this area, see State v. Gerbert, 267 Ga. 169 (475 SE2d 621) (1996), and this need will not be met if we have to ascertain in each case whether and when it was clear that the State intended to prosecute the defendant.

The trial court also erred in relying on Klinetob v. State, 194 Ga. App. 52 (389 SE2d 551) (1989) and Tyler v. State, 224 Ga. App. 550 (481 SE2d 228) (1997), both of which are distinguishable. In Klinetob we recognized that the accusation must be filed before the speedy trial demand, but nevertheless determined that the defendant’s motion for discharge and acquittal should have been granted because the State’s 11-month delay in filing the UTC/accusation was unreasonably long. 194 Ga. App. at 53. Here, on the other hand, the delay was less than three months, which is less than the four-month periods of delay involved in Shire, Ghai, and Lipsky, and thus not unreasonable per se. And in Tyler we reiterated the rule that the UTC/ accusation must be filed before the speedy trial demand, but held that if the UTC in the record does not have a date stamp showing when it was filed, we will presume the UTC had already been filed when the defendant’s demand was filed if the clerk already had a case number assigned to it. Unlike the UTC involved in Tyler, the UTCs in the record in this case have date stamps affirmatively showing they had not been filed when the demand was filed, and the clerk did not already have case numbers assigned to them.

Accordingly, the trial court erred in granting defendant’s motion for discharge and acquittal based on the State’s failure to comply with his speedy trial demand.

Judgment reversed.

Johnson and Blackburn, JJ, concur.


author: Judge Harold R. Banke.

text:
    A96A1238.
    SMITH v. THE STATE.
    (492 SE2d 353)
    Decided August 22, 1997.

      Lettie E. Lane, for appellant.

      Fredric D. Bright, District Attorney, Stephen A. Bradley, Assistant District Attorney, for appellee.
   Judge Harold R. Banke.

The decision of the Court of Appeals in this case having been reversed by the Supreme Court, Smith v. State, 268 Ga. 196 (486 SE2d 819) (1997), our decision in Smith v. State, 222 Ga. App. 412, 413 (2) (474 SE2d 291) (1996), is hereby vacated, and the judgment of the Supreme Court is made the judgment of this Court.

Judgment reversed.

Birdsong, P. J., and Blackburn, J., concur.


author: Blackburn, Judge.

text:
    A97A1104, A97A1105.
    MTW INVESTMENT COMPANY et al. v. ALCOVY PROPERTIES, INC.; and vice versa.
    (491 SE2d 460)
   Blackburn, Judge.

Following our decision in Alcovy Properties v. MTW Investment Co., 212 Ga. App. 102 (441 SE2d 288) (1994), the trial court allowed Alcovy Properties, Inc. to assert a claim for abusive litigation against MTW Investment Company and its partners, Victor Maslia, Lee N. Terry, and Larry D. Wolfe (collectively MTW). The jury awarded Alcovy $405,045, but the trial judge reduced the award by $214,500 as a condition of its denial of MTW’s motion for a new trial. Alcovy accepted the reduction, subject to its right to appeal the reduction if MTW appealed the verdict. MTW filed this appeal, claiming the trial court committed numerous errors in allowing evidence and in denying MTW’s motions for new trial and for judgment n.o.v. Alcovy cross-appealed, claiming the trial court erred in reducing the amount of the jury’s award.

1. (a) MTW contends that the court erred in allowing evidence of Alcovy’s alleged lost profits, as such profits were too speculative and conjectural to allow recovery. For the reasons discussed below, we agree.

The relevant facts are as follows. MTW was a limited partner of Regency Forest Association, which owned a tract of land in Newton County, Georgia. In 1983, Regency sold the land to Alcovy, which immediately resold a portion of the land to another party. Alcovy retained approximately 275 acres. On September 28, 1983, Alcovy granted a 40-day option to Newton County to purchase this property as a landfill site, although this option was not exercised.

Upon learning of the sale of the property, MTW filed suit against Alcovy and others, claiming that Regency did not have authority to sell the land without its permission. MTW also filed a lis pendens against the property in Newton County. Alcovy was served with the lawsuit and lis pendens on September 30, 1983, two days after it had granted the option to Newton County. The defendants filed .several counterclaims.

In May 1985, Newton County petitioned to condemn the property. A special master awarded the condemnees $214,500, and this award was confirmed and the property condemned by the superior court on August 5, 1985.

The trial court ultimately granted summary judgment to the defendants on MTW’s claims and was affirmed by the Supreme Court without opinion on October 27, 1986. On April 25, 1988, Alcovy requested permission to file a counterclaim against MTW for abusive litigation under Yost v. Torok, 256 Ga. 92 (344 SE2d 414) (1986). On May 1, 1989, the trial court dismissed all of the defendants’ pending counterclaims, without ruling on Alcovy’s request for permission to file a Yost claim. Alcovy’s Yost motion was not ruled on until August 25, 1994, at which time the trial court granted the motion. The court’s ruling followed this Court’s decision on February 16, 1994, reversing the trial court’s dismissal of another defendant’s Yost counterclaim. See Alcovy, supra at 103-104 (3). In that opinion, we noted that the trial court had not ruled on Alcovy’s motion to add a Yost counterclaim, and that we thus could not review the court’s failure to grant such motion. Id. at 103 (2).

At the trial of the Yost claim, Alcovy argued that, if MTW had not filed a lis pendens, it would have subdivided the property and sold it for a substantial profit prior to condemnation by the county. MTW contends that evidence of such profits was too speculative to allow recovery.

In order to recover lost profits in a tort action, such profits must “be shown with reasonable certainty. The profits recoverable in such cases are limited to probable, as distinguished from possible benefits. . . . Profits which are remote, or speculative, contingent or uncertain are not recoverable.” (Punctuation omitted.) Ga. Grain Growers Assn. v. Craven, 95 Ga. App. 741, 747 (98 SE2d 633) (1957). “Loss of prospective profits is ordinarily too remote for recovery. The profits of a commercial business are dependent on so many hazards and chances, that unless the anticipated profits are capable of ascertainment, and the loss of them traceable directly to the defendant’s wrongful act, they are too speculative to afford a basis for the computation of damages. The general rule is that the expected profits of a commercial business are too uncertain, speculative, and remote to permit a recovery for their loss.” (Citation and punctuation omitted.) Id.

Alcovy’s president, John Roberts, testified that, at the time he purchased the property, he intended to subdivide it into smaller lots, ranging from two to eighteen acres, and sell such tracts to individual purchasers. He did not testify that he had developed any specific plans for subdividing the property. Other than contracting with a heavy equipment company to clean up portions of the property along the road frontage, he did not demonstrate that he had taken any other concrete steps toward realization of his subdivision plans, such as developing a subdivision plat. He testified that, in his opinion, it would have taken approximately one year to sell off all the tracts, so the sales would have been completed before the county condemned the property. However, he also admitted that, prior to service of MTW’s lawsuit and the lis pendens, he granted Newton County a 40-day option to purchase the property for use as a landfill. The county did not exercise its option but petitioned to condemn the property in May 1985.

Alcovy also presented expert testimony from an appraiser regarding the market value of the property. The appraiser testified that he was retained by Alcovy in October 1994, and that Alcovy provided him with a subdivision plan and requested that he provide a market value for the proposed subdivision. He did not know when the subdivision plan had been prepared or whether Alcovy had taken any action to actually create a subdivision. The appraiser testified that, in his opinion, the gross sales price of the tracts in the proposed subdivision in 1983 would have been $793,000. He also testified that, in his opinion, it would have taken one year to sell the tracts.

Under these circumstances, the evidence regarding lost profits was too speculative to allow recovery. Although Roberts stated that he intended to subdivide the property and sell it in tracts, he took no concrete steps to effectuate this design during the two years between the time he purchased the property and the time it was condemned by the county. Indeed, he was aware of the county’s desire to purchase or condemn the property for a landfill and granted the county an option to purchase the property. Alcovy presented no evidence that there were prospective purchasers who would have purchased the tracts prior to condemnation by the county. Accordingly, the trial court erred in allowing evidence regarding the alleged lost profits from the suggested subdivision. As it is apparent that the jury’s award of damages included amounts for lost profits, we cannot say that such error was harmless. Accordingly, the judgment below is vacated, and this action is remanded for a new trial on Alcovy’s abusive litigation claim.

(b) MTW contends that Alcovy could have sought to recover its alleged lost profits in the condemnation proceeding, and that it was therefore collaterally estopped from seeking to recover such profits in the Yost action. Although we have already ruled that the judgment must be vacated because the evidence of lost profits was speculative, we have considered MTW’s collateral estoppel argument and find it to be without merit.

“For collateral estoppel to apply, a party must have had full opportunity to litigate the issue in question during the prior action. Collateral estoppel will not bar consideration of an issue that has not actually been decided.” (Citation and punctuation omitted.) Toporek v. Zepp, 224 Ga. App. 26, 28 (1) (479 SE2d 759) (1996).

As a preliminary matter, we note that MTW failed to assert the collateral estoppel defense at trial, or even in its original motion for new trial or for judgment n.o.v. It first raised the issue in a supplemental post-trial brief, in response to a letter from the trial court directing the parties to submit briefs on the issue. Pretermitting the issue of whether MTW waived the defense by failing to raise it at trial, collateral estoppel does not apply in this case because the lost profits sought by Alcovy were not recoverable in the condemnation action. In condemnation cases, “the only question for decision is the value of property taken or consequential damages at the time of taking. . . . The land’s present enhanced value based on its potential as residential development property [is] admissible, not its future retail ‘net’ price as if it were already developed and were being sold on the market.” (Punctuation omitted; emphasis in original.) Dept. of Transp. v. Benton, supra at 222. “Consequential damages are recoverable in condemnation to compensate the property owner for loss incurred to the remainder of the property as a direct result of the taking.” Colonial Pipeline Co. v. Williams, 206 Ga. App. 303, 304 (425 SE2d 380) (1992).

In the condemnation case, therefore, Alcovy was entitled to recover the value of the condemned land in its then-undeveloped state. Although the potential for development could have been considered as a factor affecting the land’s value on the date of taking, Alcovy could not have recovered damages based on the value of the land as if it had already been developed. Thus, it could not have recovered in the condemnation case the profits it would have received if it had been able to develop and sell the property prior to condemnation, which is what it was seeking in the Yost action.

Since the issue in the condemnation case was not the same as that in the present case, MTW’s collateral estoppel argument is without merit. As we have discussed above, however, the evidence of lost profits was too speculative to allow recovery.

(c) MTW also contends that, because evidence of lost profits was too speculative to be admissible, the court erred in denying its motion for judgment n.o.v.

“The standard of appellate review for the denial of a motion for judgment n.o.v. is the ‘any evidence test.’ Under this test, the determinative question is not whether the verdict and the judgment of the trial court were merely authorized, but is whether a contrary judgment was demanded. If any evidence, viewed in the light most favorable to the victor, supported the jury’s verdict, denial of the motion is not error.” (Citations and punctuation omitted.) Signsation, Inc. v. Harper, 218 Ga. App. 141, 142-143 (2) (460 SE2d 854) (1995).

MTW does not contest the jury’s finding that it committed abusive litigation, but argues that it was entitled to a judgment n.o.v. because Alcovy did not present evidence of any recoverable special damages. However, “even if there was insufficient evidence of special damages, the defendants would not have been entitled to judgment.” Miller & Meier & Assoc. v. Diedrich, 174 Ga. App. 249, 257 (6) (329 SE2d 918) (1985), rev’d in part on other grounds, Diedrich v. Miller & Meier & Assoc., 254 Ga. 734 (334 SE2d 308) (1985). In addition to special damages, Yost expressly authorizes a jury to award “nominal damages pursuant to OCGA § 51-12-4.” Yost, supra at 95 (10). The court charged the jury, without objection, that it could award such nominal damages.

“Nominal damages constitute a species of general damages. General damages are those which the law presumes to flow from a tortious act and may be awarded without proof of any specific amount to compensate the claimant for the injury done him. The law infers some damage from the invasion of a property right and if no evidence is given of any particular amount of loss, declares the right by awarding what it terms nominal damages. Thus, a plaintiff’s right to recover nominal damages depends only upon whether the defendant’s liability has been established.” (Citations and punctuation omitted; emphasis in original.) Ackley v. Strickland, 173 Ga. App. 784, 786 (328 SE2d 549) (1985) (physical precedent only); see also Avery v. K.I., Ltd., 158 Ga. App. 640, 641 (281 SE2d 366) (1981).

In this case, although it is apparent that the jury awarded amounts for lost profits, the verdict form does not reflect precisely how the jury calculated the damages. While the jury would have been authorized to award at least nominal damages, we must remand for a new trial as the verdict form does not specify the claims on which an award was made. Under these circumstances, MTW was not entitled to a directed verdict or judgment n.o.v. See Avery, supra; Cole v. Klassic Kuts & Kurls, 169 Ga. App. 54 (311 SE2d 847) (1983) (physical precedent only) (error to grant directed verdict against plaintiff due to speculative nature of lost income, where plaintiff entitled to at least nominal damages); Daughtrey v. C & D Sportswear Corp., 239 Ga. 482 (238 SE2d 37) (1977) (error to direct verdict on damages where plaintiff entitled to nominal damages); see also Miner v. Harrison, 205 Ga. App. 523, 526 (3) (422 SE2d 899) (1992).

2. MTW contends that the court erred in submitting the issue of attorney fees to the jury. For the reasons discussed below, we agree.

Attorney fees are not directly recoverable as an element of damages in a Yost counterclaim. See Yost, supra at 95. Rather, Yost contemplated that attorney fees would be awarded by the trial judge pursuant to OCGA § 9-15-14. Id.; see also Porter v. Buckeye Cellulose Corp., 189 Ga. App. 818, 823 (5) (377 SE2d 901) (1989) (physical precedent only) (attorney fees not awardable under Yost).

Yost did recognize, however, that in addition to OCGA § 9-15-14, attorney fees could also be awarded under other “existing principles of law.” Yost, supra at 96 (17). Alcovy contends that it is entitled to recover attorney fees under OCGA § 13-6-11, which allows a jury to award litigation expenses to a plaintiff “where the defendant has acted in bad faith, has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense.” Alcovy relies on Vogtle v. Coleman, 259 Ga. 115, 119 (3) (376 SE2d 861) (1989), where the Supreme Court held that “the Yost plaintiff may seek OCGA § 13-6-11 damages for bringing his independent Yost counterclaim. Once other damages are shown, attorney fees and expenses of litigation may be awarded under ‘existing principles of law’ under OCGA § 13-6-11.” (Footnote omitted.)

However, the issue of whether Alcovy was entitled to attorney fees under OCGA § 13-6-11 was never presented to the jury in this case. Alcovy did not request, and the court did not give, a charge on such statute or on the elements of recovery set forth therein. Accordingly, the jury was not authorized to award attorney fees under such statute, and the court erred in submitting the issue of attorney fees to the jury.

3. MTW contends the trial court erred in failing to grant its motion for judgment n.o.v., because Alcovy was judicially estopped from bringing this action due to its failure to disclose this claim in its pending bankruptcy proceeding. See, e.g., Southmark Corp. v. Trotter, Smith &c., 212 Ga. App. 454 (442 SE2d 265) (1994).

This contention is without merit, as the record discloses that Alcovy was not in fact involved in a pending bankruptcy action. Rather, it appears that Alcovy’s president, John Roberts, was the debtor in the bankruptcy proceeding. Although MTW claims that Alcovy is merely Roberts’ alter ego, the only support for this contention is an uncertified copy of an order of the United States Tax Court attached as an exhibit to MTW’s brief in support of its motion for judgment n.o.v., finding that Roberts used Alcovy funds for his personal benefit. The trial court did not err in denying MTW’s motion on the basis of such evidence. See Drummond v. Fulton County DFACS, 237 Ga. 449, 454 (1) (228 SE2d 839) (1976) (collateral estoppel “must be properly proved by placing the entire certified record of the previous case in evidence”).

4. In light of our above holdings, it is not necessary to address MTW’s remaining contentions or Alcovy’s contention that the court erred in reducing the amount of the jury’s verdict.

5. As we have reversed the trial court, we deny Alcovy’s motion for frivolous appeal damages under OCGA § 5-6-6 and its motion to remand this case to the trial court for an award of additional attorney fees.

Decided August 22, 1997.

Glass, McCullough, Sherrill & Harrold, Geoffrey H. Cederholm, Alston & Bird, G. Conley Ingram, for appellants.

Kerry S. Doolittle, for appellee.

Judgments reversed and remanded.

Pope, P. J., and Johnson, J., concur.

       Maslia is now deceased and is represented in this appeal by the executrix of his estate.

       Although not directly on point, the analysis applied in condemnation cases supports the decision in this case. For example, in Dept. of Transp. v. Benton, 214 Ga. App. 221 (447 SE2d 159) (1994), the condemnee offered testimony as to the value of unimproved property if it were subdivided. However, because the issue in a condemnation case is the value of the property at the time of the taking, we held that it was error to allow expert testimony as to value “based upon [the expert’s] assumption of the value as if the property had already been subdivided.” Id. at 222 (1). In the present case, Alcovy is not seeking damages based upon a hypothetical future development of the property; rather, it is arguing that, hut for the lis pendens, it would have reaped its profits before the land was condemned. Nevertheless, although not directly applicable, Benton and other condemnation cases illustrate the difficulty in proving damages based upon speculative development of unimproved property.

       This does not mean, however, that the condemnation award has no effect whatsoever in this case. The fact that Alcovy has already received $214,500 for the property in the condemnation case must be considered in determining the amount of Alcovy’s damages, since Alcovy would not have received such award if it had sold the property as it contends it would have. We cannot tell from the verdict form whether the jury took the award into consideration in rendering its verdict.

       We note that while punitive damages may ordinarily be recovered on a claim for slander of title, Alcovy’s slander of title claim was dismissed by the trial court, which dismissal was affirmed by this Court in our previous opinion. Alcovy, supra at 103 (1). Therefore, the sole issue remaining in the present case was Alcovy’s Yost claim. In a Yost claim, “punitive damages are excluded, as the tort itself is designed as a deterrent.” (Punctuation omitted.) Alcovy, supra at 104 (4).

       We note that, in our earlier opinion in this case, we affirmed the trial court’s dismissal of Alcovy’s previous counterclaim for attorney fees under OCGA § 13-6-11 because, at that time, Alcovy did not have a viable independent counterclaim. Alcovy, supra at 104 (5). However, Alcovy was subsequently allowed to file its Yost counterclaim and request for OCGA § 13-6-11 expenses. As noted by the Supreme Court in Vogtle, a “Yost plaintiff may seek OCGA § 13-6-11 damages for bringing his independent Yost counterclaim.” Vogtle, supra at 119 (3).


text:
    A97A1203.
    FINLON v. THE STATE.
    (491 SE2d 458)
   Judge Harold R. Banke.

Kenneth Carl Finlon was convicted of driving under the influence (“DUI”) (less safe to drive), attempting to elude, and speeding. On appeal he enumerates three errors, each challenging the sufficiency of the evidence.

This case arose after the arresting officer observed Finlon’s motorcycle speeding up the highway at 78 mph in a 55 mph zone. Price v. State, 222 Ga. App. 655, 657 (2) (475 SE2d 692) (1996) (evidence on appeal must be viewed in a light most favorable to the verdict). The officer activated his lights and siren and gave chase. Finlon continued for over three miles before stopping. The officer testified that when Finlon finally stopped, he appeared so intoxicated that he needed assistance to dismount the bike. After reading Finlon the implied consent warning, the officer transported him to the local jail for testing. There he failed to blow into the intoximeter with sufficient force to garner a result. Held:

1. We reject Finlon’s contention that the speeding charge must be reversed because the State failed to establish that (1) he received notice of his right to have the radar device’s accuracy tested; (2) signs warning of the use of speed detection devices were posted, OCGA § 40-14-6; and (3) the highway grade was less than seven percent where the radar was used, OCGA § 40-14-9. Having read and considered the trial transcript, we fail to see that an admissibility ruling was invoked on any of these issues. Nairon v. State, 215 Ga. App. 76, 77 (2) (449 SE2d 634) (1994). Accordingly, Finlon failed to preserve them for review. Id.; see Holtapp v. City of Fayetteville, 208 Ga. App. 606, 607 (1) (431 SE2d 403) (1993).

2. The evidence was sufficient to support the attempting to elude charge. Jackson v. Virginia, 443 U. S. 307, 319-320 (99 SC 2781, 61 LE2d 560) (1979) (The evidence is sufficient if, when viewed in the light most favorable to the verdict, a rational juror could find all the essential elements of the crime). The record shows that the officer was on patrol in a marked squad car. He followed Finlon for over three miles with the siren and blue lights flashing before the chase concluded. At one point, Finlon looked back at the officer. The officer testified that Finlon’s was the only vehicle in sight when the chase began and the motorcycle could have stopped safely anywhere along the way. This evidence was sufficient to permit the trier of fact to conclude that the State proved the elements of OCGA § 40-6-395 (a) beyond a reasonable doubt. See Cook v. State, 180 Ga. App. 877, 878 (1) (350 SE2d 847) (1986). The fact that the element of wilfiilness was established circumstantially does not alter that conclusion. See Kinney v. State, 155 Ga. App. 95 (1) (270 SE2d 209) (1980). No evidence supports Finlon’s theory that he failed to stop due to concerns for his safety.

Decided August 22, 1997.

Frank W. Hamilton, for appellant.

Leslie C. Abernathy, Solicitor, Alice B. Kamerschen, Assistant Solicitor, for appellee.

3. Finlon also challenges the sufficiency of the evidence supporting the DUI charge. The arresting officer testified that he had made 400 or 500 alcohol-related arrests and, in his experience, Finlon was intoxicated. Lewis v. State, 214 Ga. App. 830, 832 (1) (449 SE2d 535) (1994) (officers may give opinion testimony on less safe to drive issue). The officer observed Finlon speeding and weaving within his lane during the chase. Once stopped, the officer reported that Finlon was too drunk to dismount and strongly smelled as though he had been drinking. At the jail, Finlon appeared disoriented, leaned against the wall to avoid falling, slurred his speech, and had urinated on himself. Finlon admitted he had been drinking that day. This evidence is sufficient to support the conviction. Notwithstanding Finlon’s inference to the contrary, proof of an unsafe act is not required for his conviction to stand. See Ayers v. City of Atlanta, 221 Ga. App. 381 (1) (471 SE2d 240) (1996).

Judgment affirmed.

McMurray, P. J, and Smith, J., concur.


author: ELDRIDGE, Judge.

text:
    A97A1837.
    CHILDERS v. THE STATE.
    (491 SE2d 456)
   ELDRIDGE, Judge.

A Cherokee County jury found appellant Timothy Joel Childers guilty of aggravated battery, which offense arose from an incident of domestic violence in which appellant beat his girl friend about the head and face, thereby breaking her jaw in two places and causing her to lose two teeth; appellant was found not guilty of a simple battery count arising out of a separate incident on a different date. He appeals. We affirm.

1. Appellant first challenges the trial court’s instructions to the jury, alleging as error the court’s failure to charge on the law regarding “mere presence” contained in defense Request to Charge No. 10. This contention is wholly without merit as the appellant was acquitted of the count for which the charge was submitted, simple battery, and appellant specifically acknowledged that the charge would not apply to any other count. “Harm as well as error must be shown to warrant a reversal.” (Citations and punctuation omitted.) Whitt v. State, 215 Ga. App. 704, 710 (8) (452 SE2d 125) (1994).

2. Next, appellant contends that the trial court erred in permitting the State to ask the jury on voir dire five questions dealing with personal beliefs concerning domestic violence issues.

“Limitation placed on counsel in questioning during voir dire under OCGA § 15-12-133 lies largely within the sound discretion of the trial court, and appellate courts should not interfere with the court’s exercise of that discretion unless it has been manifestly abused. [Cits.]” Harper v. State, 222 Ga. App. 393 (474 SE2d 288) (1996).

We have reviewed the questions about which appellant complains and find that each of them properly explored “any fact or circumstance indicating any inclination, leaning, or bias which the juror might have respecting the subject matter of the action,” domestic violence, including “any opinion as to which party ought to prevail.” OCGA § 15-12-133; Chancey v. State, 256 Ga. 415, 424 (349 SE2d 717) (1986). The challenged questions did not ask the jury to prejudge either the evidence or the factual issues in the case sub judice. There was no abuse of discretion.

3. In his final enumeration of error, appellant challenges the sufficiency of the evidence. In light of the appellant’s trial testimony that he hit the victim with his fist “four or five times,” knocking her unconscious, and the testimony of the victim’s treating physician, with accompanying photographs, detailing the nature and extent of her injuries, which evidence included a permanent scar disfiguring the victim’s face and the loss of two teeth, we find that sufficient evidence was presented for a rational trier of fact to have found appellant guilty beyond a reasonable doubt of aggravated battery. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); see also In the Interest of H. S., 199 Ga. App. 481 (405 SE2d 323) (1991).

Decided August 22, 1997.

Louis M. Turchiarelli, for appellant.

Garry T. Moss, District Attorney, Cecelia Harris, Assistant District Attorney, for appellee.

Judgment affirmed.

Birdsong, P. J, and Ruffin, J., concur.

       In the same indictment, appellant was also charged with one count of aggravated assault occurring on the same date as the aggravated battery; the jury found appellant guilty of the lesser included offense of reckless conduct; the reckless conduct conviction was merged into the aggravated battery at sentencing.

       State’s inquiry: if anyone agrees with the following please raise your hand: (1) some women want to be hit; (2) some women ask to be hit; (3) the only way to get the attention of some women is to hit them; (4) hitting, punching, or kicking someone is an acceptable way to vent anger or frustration; and (5) the State should not get involved in domestic and/or family violence situations.


author: Eldridge, Judge.

text:
    A97A1857.
    BRADLEY v. GEORGIA INSTITUTE OF TECHNOLOGY et al.
    (491 SE2d 453)
   Eldridge, Judge.

Plaintiff/appellant Shirley W. Bradley filed this pro se appeal from the trial court’s grant of summary judgment in her race discrimination suit against her former employer, Georgia Institute of Technology (“Georgia Tech”), and supervisor, W. Denney Freeston. We affirm.

Bradley was employed by Georgia Tech as a senior coordinator in the Department of Continuing Education (“Department”) for four years. In October 1991, the Department underwent a reduction in force, during which Bradley’s employment was terminated. Bradley’s supervisor claims that he dismissed her because she had two negative citations in her employment record. However, Bradley asserts that she was dismissed because she is an African-American female, in violation of 42 USC § 2000 (e) et seq. (“Title VII”).

In December 1992, Bradley filed a race discrimination suit in the United States District Court, Northern District of Georgia. Bradley v. Ga. Institute of Technology &c., Civil Action No. 1:92-CV-3137-GET, U. S. Dist. Ct. (N.D. Ga.). The federal magistrate court issued a report finding that Bradley did not present evidence raising a jury question on the issue of race discrimination and recommending that summary judgment be granted to Georgia Tech and Freeston. The magistrate’s report was adopted by the federal district court, which granted summary judgment in March 1994; the Eleventh Circuit Court of Appeals affirmed the decision per curiam in September 1995.

Bradley then filed suit against the same defendants in Fulton County State Court, asserting race discrimination and denial of due process, based upon Georgia Tech’s alleged failure to provide an opportunity for Bradley to challenge the negative citations in her Georgia Tech employment record. The trial court granted summary judgment to the defendants, finding that Bradley’s claim was previously decided by the federal courts and was, therefore, barred by res judicata and collateral estoppel. This appeal follows. Held:

1. Georgia’s principle of res judicata has been codified as OCGA § 9-12-40, which states that “[a] judgment of a court of competent jurisdiction shall be conclusive between the same parties and their privies as to all matters put in issue or which under the rules of law might have been put in issue in the cause wherein the judgment was rendered until the judgment is reversed or set aside.” See Fowler v. Vineyard, 261 Ga. 454, 455 (405 SE2d 678) (1991). “Three prerequisites must be satisfied before res judicata applies — (1) identity of the cause of action, (2) identity of the parties or their privies, and (3) previous adjudication on the merits by a court of competent jurisdiction.” (Footnote omitted.) Waldroup v. Greene County Hosp. Auth., 265 Ga. 864, 866 (1) (463 SE2d 5) (1995); see also OCGA § 9-12-42; Fowler v. Vineyard, supra at 455-456.

In this case, Bradley sued both Georgia Tech and her supervisor, Freeston, in the federal courts for race discrimination following her October 1991 dismissal. The federal district court subsequently issued a judgment on that claim. Since the parties, the underlying facts, and the race discrimination claim are identical in both cases, the trial court in this case correctly determined that Bradley’s state court suit raising the issue of race discrimination under Title VII was barred by the principle of res judicata.

However, in this case, Bradley also claimed that her due process rights were violated, alleging that Georgia Tech failed to provide an opportunity for her to challenge the negative citations in her personnel file. Unfortunately, perhaps because Bradley is acting pro se, it is unclear to this Court as to what legal basis she is asserting for this claim: 42 USC § 1983; federal or state constitutional law; state contract law; or the Georgia Tort Claims Act. Even so, the outcome is the same, i.e., Bradley’s due process claim is barred as a matter of law, and the trial court did not err in granting summary judgment in favor of Georgia Tech.

(a) “[0]ne must assert all claims for relief concerning the same subject matter in one lawsuit and any claims for relief concerning that same subject matter which are not raised will be res judicata pursuant to OCGA § 9-12-40.” (Emphasis omitted.) Fowler v. Vineyard, supra at 458, quoting Lawson v. Watkins, 261 Ga. 147, 149 (401 SE2d 719) (1991); see also Franklin v. Gwinnett County Pub. Schools, 200 Ga. App. 20, 25 (407 SE2d 78) (1991). “ “Where a judgment has been rendered on the merits, the doctrine of res judicata may not be avoided merely by requesting different relief in a subsequent suit.’ Caswell v. Caswell, 162 Ga. App. 72, 73 (290 SE2d 171) (1982).” (Emphasis supplied.) Waggaman v. Franklin Life Ins. Co., 265 Ga. 565, 566 (3) (458 SE2d 826) (1995). Further, the doctrine of collateral estoppel precludes issues that were previously decided or which “had to be decided in order for the previous judgment to have been rendered.” (Footnote omitted.) Waldroup v. Greene County Hosp. Auth., supra at 867.

Bradley’s due process claim should have been pursued in her federal complaint. The federal court had jurisdiction over due process claims based on the federal constitution, U. S. Const., Amends. V, XTV, or 42 USC § 1983. Further, under its pendent jurisdiction, the federal court could have addressed a violation of due process claim under Ga. Const, of 1983, Art. I, Sec. I, Par. I, the Georgia Tort Claims Act, OCGA § 50-21-20 et seq., or state contract law. See 28 USC § 1367 (a); McNeal v. Paine, Webber, Jackson &c., 249 Ga. 662, 663 (293 SE2d 331) (1982) (when a substantial federal claim and a related state claim derive from a “common nucleus of operative fact,” a federal court has pendent jurisdiction over the state claim); Danzell v. Cannon, 224 Ga. App. 602 (481 SE2d 588) (1997); Smith v. Maytag Corp., 216 Ga. App. 676 (455 SE2d 379) (1995); Franklin v. Gwinnett County Pub. Schools, supra at 21-22, 27.

In this case, the due process issue arose from the same circumstances and involved the same subject matter as that presented in Bradley’s federal case, i.e., her dismissal and the question of whether it was based on race or the negative citations in her employment records. In the federal case, the court granted summary judgment to Georgia Tech after determining that it had presented a race-neutral reason, the negative citations, for the termination of Bradley’s employment. Any asserted failure by Georgia Tech to provide due process could have and should have been raised at that time, so the federal court could have addressed the merits of Georgia Tech’s asserted justification of Bradley’s termination. See OCGA § 9-12-40. Under the principles of res judicata and collateral estoppel, Bradley’s failure to bring these claims in her federal case bars them from the state court’s consideration.

Decided August 22, 1997.

Shirley W. Bradley, pro se.

Michael J. Bowers, Attorney General, Jeffrey L. Milsteen, Deputy Attorney General, Susan L. Rutherford, Senior Assistant Attorney General, K. Prabhaker Reddy, Assistant Attorney General, for appellees.

(b) Further, we note that the Fulton County State Court lacks subject matter jurisdiction over state constitutional claims. OCGA § 15-7-4. Therefore, a due process claim under the Georgia Constitution was barred for this reason, also.

(c) Finally, under the Georgia Tort Claims Act, OCGA § 50-21-20 et seq., a plaintiff must give the State specific notice prior to filing a claim against a state agency. OCGA § 50-21-26 (a). Such notice requirements are specific legislative limitations on the trial court’s subject matter jurisdiction. Bradley failed to give the required statutory notice in this case. Therefore, any claim under the Georgia Tort Claims Act is barred.

2. In her remaining enumerations, Bradley asserts that errors were made by the federal magistrate court. This Court has no jurisdiction to consider such alleged errors.

Judgment affirmed.

Birdsong, P. J., and Ruffin, J., concur.

       A 42 USC § 1983 claim arises when the State refuses to provide procedural due process. McKinney v. Pate, 20 F3d 1550, 1557 (11th Cir. 1994), cert. denied, 513 U. S. 1110 (115 SC 898, 130 LE2d 783) (1995). However, had Bradley pursued a due process claim in either a federal or state court with the power to provide an adequate remedy, she would no longer have a due process claim under § 1983. Atlanta City School Dist. v. Dowling, 266 Ga. 217, 218 (466 SE2d 588) (1996); Turner v. Giles, 264 Ga. 812, 815 (450 SE2d 421) (1994); see also Narey v. Dean, 32 F3d 1521 (11th Cir. 1994); McKinney v. Pate, supra.


text:
    A97A2004.
    CLARKE v. THE STATE.
    (491 SE2d 450)
   Eldridge, Judge.

This is a case of first impression for this Court. Max Clarke challenges the trial court’s authority to place conditions on his bail bond and the trial court’s authority to revoke bail when he violated those conditions.

. Clarke was arrested for committing battery and simple battery on November 18, 1996, on a woman acquaintance. Bail was set on November 22, 1996, in the amount of $2,500; bail was conditioned upon the following provision: that Clarke “not intimidate, threaten, harass, verbally or physically abuse or harm [the victim]. [Clarke] is to have no contact with [the victim], either . . . personal contact or at her place of residence or her place of employment. Do not telephone or write letters to [the victim]. Do not engage in any type of following or surveillance behavior as described in OCGA § 16-5-90.”

On December 23, 1996, the State filed a motion to revoke the bail bond, asserting that Clarke violated the conditions. Clarke made an oral motion to dismiss the State’s motion, asserting that defendants charged with a misdemeanor cannot be denied bail. Following a motion hearing, the trial court denied Clarke’s motion to dismiss. Recognizing that this was a case of first impression in Georgia, the trial court granted a Certificate of Immediate Review. This appeal follows. Held:

1. Clarke first challenges the trial court’s power to place conditions on bail in misdemeanor cases absent statutory authority. In support of this enumeration, Clarke asserts that placing such conditions on bail is the same thing as refusing to set bail, and that the Code forbids the trial court from denying bail in a misdemeanor case. OCGA § 17-6-1 (b) (1). We find.no merit in Clarke’s analysis. OCGA § 17-6-1 (b) (1) does not require the court to set unconditional bail, nor does it invade the judge’s discretion as to how much bail may be set. See Goodine v. Griffin, 309 FSupp. 590, 591 (S.D. Ga. 1970). In this case, Clarke was not denied bail; he was, in fact, released on a bail bond prior to his violation of the conditions thereon.

Further, we find that the trial court had inherent authority to place such conditions, which will be upheld by this Court absent an abuse of discretion. See OCGA § 15-1-3 (3); Goodine, supra at 591. The trial court has inherent discretion to release a misdemeanor defendant on his own recognizance pending trial or to require payment of a bail bond. OCGA § 17-6-1 (b) (1); Goodine, supra at 591; see also Jones v. Grimes, 219 Ga. 585 (134 SE2d 790) (1964). However, in lieu of setting a higher bail, which may preclude a defendant from being released at all prior to trial, a trial court may choose to impose reasonable restrictions on a defendant’s behavior. When a defendant is charged with a violent crime against a specific victim, it is within the trial court’s inherent powers to require that the defendant avoid any contact with the victim as a condition of remaining free pending trial. Such condition is not arbitrary or capricious; it is a reasonable response to the trial court’s function of balancing the defendant’s rights with the public’s safety interests, while avoiding the intimidation of prosecuting witnesses. Birge v. State, 238 Ga. 88, 90. (230 SE2d 895) (1976). This rule bridges the gap between two seemingly inconsistent statutory provisions: (1) the absolute requirement of bail for committing misdemeanor offenses under OCGA § 17-6-1 (b) (1), and (2) the trial court’s limited authorization “to release a person on bail if the court finds that the person . . . [pjoses no significant threat or danger to any person, to the community, or to any property in the community,” under OCGA § 17-6-1 (e) (2). See also Birge v. State, supra at 90; Knapp v. State, 223 Ga. App. 267, 268-269 (477 SE2d 621) (1996). Birge v. State, supra at 89-90, held that “[r]elease should not be granted unless the court finds that there is no substantial risk the [accused] will not appear to answer the judgment following conclusion of the [criminal] proceedings and that the [accused] is not likely to commit a serious crime, intimidate witnesses or otherwise interfere with the administration of justice. In making this determination, the court should take into account the nature of the crime and length of sentence imposed as well as the factors relevant to pretrial release.” (Punctuation omitted.) Such factors and considerations also apply to the inherent power of the trial court to impose conditions of bail in order to safeguard against the factors that otherwise would prevent release on bail bond.

In actual practice, the monetary bond ensures the defendant’s presence at trial, while the conditions protect the victim/witness’ safety. Although the Georgia legislature specifically has allowed bond conditions in cases of family violence, stalking, or driving while intoxicated, OCGA § 17-6-1 (b) (2) (A), (B); (b) (3); (f) (2), the absence of such statutory authority does not preclude such conditions when the trial court, in its discretion, believes the conditions are appropriate and necessary under the facts of the case.

In this case, Clarke was charged with battery against a specific female victim. It was not unreasonable to forbid him from threatening, harassing, stalking, or abusing her as conditions of his release pending trial. There was no abuse of discretion in setting such conditions of bail.

2. Clarke also asserts that the trial court has no authority to revoke his bond following his violation of the bail conditions. However, the trial court has express authority under OCGA § 15-1-3 (3) to “compel obedience to its judgments, orders, and process and to the orders of a judge out of court in an action or proceeding therein.” Inherent in such provision is the power to address wilful violations of court mandates; without such authority, bail bond conditions would be rendered meaningless.

In Hood v. Carsten, 267 Ga. 579, 580-581 (481 SE2d 525) (1997), the Supreme Court of Georgia stated that they were “unaware of and the parties have not presented any specific guidelines under Georgia law pertaining to a trial court’s power to revoke a bond. It is clear that trial courts have such power . . .,” as long as the trial courts provide at least minimal due process protection prior to the revocation. (Footnote omitted.) “[C]ourts must be vested with authority to act promptly to protect the victim and enforce the bond conditions imposed.” Id. at 582. Notably, Hood involved a defendant who was charged with stalking, and there is a specific statutory provision allowing the trial court to impose bond conditions or, if necessary, to deny bail in order to protect the victim. OCGA § 17-6-1 (b) (3). However, in Division 1, supra, we found that the trial court has the inherent authority to place reasonable conditions on a defendant’s bond. Therefore, under Hood, it is clear that the trial court also has the authority to revoke the bond if, following a hearing, the trial court determines that the defendant violated those conditions. See also Fernandez v. United States, _ U. S. _ (81 SC 642, 5 LE2d 683, 686) (1961) (holding that, even in the presence of an absolute right to bail, “on principle, [trial courts] have authority, as an incident of their inherent powers to manage the conduct of proceedings before them, to revoke bail during the course of a criminal trial, when such action is appropriate to the orderly progress of the trial and the fair administration of justice”).

Decided August 22, 1997

James W. Smith, for appellant.

Kenneth W. Mauldin, Solicitor, Elizabeth M. Grant, Donna M. Dunn, Assistant Solicitors, for appellee.

Further, even absent specific bail bond conditions prohibiting contact with a victim, a trial court’s authority to revoke a defendant’s bond may be found under OCGA § 17-17-7, which states that the State may move a trial court to revoke a defendant’s bond upon a victim’s assertion of “acts or threats of physical violence or intimidation by the accused. . . ,” Such language clearly indicates a legislative intent to allow bond revocation when necessary to protect the victim from further violence.

In this case, Clarke was charged with battery, and bail was issued with the condition that he stay away from the victim. However, the State asserts that Clarke went to the victim’s place of employment and made threatening statements toward third persons regarding the victim; Clarke was arrested after he refused to leave the premises.

On remand, the trial court must conduct a hearing to determine if Clarke’s actions constituted a violation of the conditions of his bail bond. If such violation is found, the trial court is authorized to decide whether to revoke Clarke’s bail bond, raise the amount of bail, set more restrictive conditions on the bail, or hold Clarke in criminal contempt of court.

Remanded for a hearing in conformance with this opinion.

Birdsong, P. J., and Ruffin, J., concur.

       OCGA § 17-17-7 was enacted as part of the “Crime Victims’ Bill of Rights,” Ga. L. 1995, p. 385, § 2. See OCGA § 17-17-2.


text:
    A97A2033.
    WRIGHT v. THE STATE.
    (491 SE2d 466)
    Decided August 22, 1997.

      Lloyd J. Matthews, for appellant.

      Tommy K. Floyd, District Attorney, Thomas R. McBerry, Assistant District Attorney, for appellee. 4
   Johnson, Judge.

A jury found Horace Wright, Jr. guilty of selling cocaine. He appeals from the judgment entered on that conviction.

Wright asserts, in his single enumeration of error, that the trial court erred in admitting similar transaction evidence. In his brief, however, Wright does not argue that the trial court erred in admitting the similar transactions evidence. In fact, he appears to concede that the similar transactions were properly admitted, but argues that the limited purpose charge given to the jury when the evidence was introduced was insufficient. “On appeal an enumeration of error cannot be enlarged by brief to give appellate viability to an issue not contained in the original enumeration. [Cit.]” Chezem v. State, 199 Ga. App. 869, 870 (2) (406 SE2d 522) (1991). Therefore, Wright’s argument regarding the sufficiency of the limiting instruction is not properly before us for consideration.

Although we do not reach the merits of his argument, we note that Wright’s argument raises an issue recently addressed by this Court in Belt v. State, 227 Ga. App. 425 (489 SE2d 157) (1997). There, a sharply divided court held that the total failure of a trial court to give a limiting instruction contemporaneously with the admission of similar transaction evidence may constitute reversible error even in the absence of an objection during trial. Here, in the colloquy between the trial court and counsel at the time the evidence was admitted, the judge specifically delineated the limited purposes for which the evidence was being admitted. This colloquy took place in the jury’s presence. The limited purpose for which the evidence was admitted was not presented to the jury in the form of a jury instruction, however. No objection was made. While the procedure followed by the trial court in this case raises several interesting questions in light of Belt, supra, they are not properly before us for review.

Judgment affirmed.

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


text:
    A97A2077.
    BLAINE et al. v. SAVANNAH COUNTRY DAY SCHOOL.
    (491 SE2d 446)
   Eldridge, Judge.

Appellant Audrea E. Blaine was a high school senior who was within days of taking her final exams prior to graduation from appellee Savannah Country Day School (“Savannah Country Day”), when she was permanently expelled for cheating in violation of the school’s honor code. Since kindergarten, appellant had attended Savannah Country Day for 13 years.

On April 26, 1994, Blaine was taking a make-up math test in a study hall; the test was the identical test given to the other students on April 25, 1994. Another student, who had previously taken the same test, looked at her test paper, told her that she had done a problem incorrectly, and showed her how to do the problem correctly. Even knowing that such assistance was prohibited under the honor code and was cheating, Blaine listened to the information relevant to the test results and voluntarily accepted the unauthorized assistance in order to get the correct answer to the test question. While appellant was receiving the correct answer to the test question, a staff member and Blaine’s math teacher caught the students in the act of cheating. After Honor Council proceedings regarding such cheating, Blaine was permanently expelled from school; the other student received a two-day in-school suspension. Relevant to the school’s determination for permanent expulsion was that in October 1993, Blaine had been found guilty of an honor code violation regarding the “intent to cheat.”

Blaine’s parents, Chris and Sally Blaine, also appellants, along with their daughter, brought an action for intentional infliction of emotional distress, breach of fundamental fairness and due process, and breach of contract. On March 28, 1997, the trial court granted appellee’s motion for summary judgment. Appellants timely appealed on April 25, 1997. The Blaines did not pursue the claim on appeal for intentional infliction of emotional distress.

The Supreme Court of Georgia, in a similar case, Woodruff v. Ga. State Univ., 251 Ga. 232, 234 (304 SE2d 697) (1983), held, “We now decline to review a teacher’s academic assessment of a student’s work. This is clearly consistent with the authorities we have mentioned^ It is restraint which stems from confidence that school authorities are able to discharge their academic duties in fairness and with competence. It is born alike of the necessity for shielding the courts from an incalculable new potential for lawsuits, testing every Latin grade and every selection for the Safety Patrol. It protects every teacher from the cost and agony of litigation initiated by pupils and their parents who would rely upon the legal process rather than the learning process. It protects every school system — all of them laboring under pressures of financing, personnel problems and student discipline, academic performance, taxpayer revolt and patron unrest, and a rising tide of recalls — from an added and unbearable burden of continuous legal turmoil. . . . Absent plain necessity impelled by a deprivation of major proportion, the hand of the judicial branch alike must be withheld.” See McDaniel v. Thomas, 248 Ga. 632 (285 SE2d 156) (1981); Ga. High School Assn. v. Waddell, 248 Ga. 542 (285 SE2d 7) (1981); Deriso v. Cooper, 246 Ga. 540 (272 SE2d 274) (1980).

What the late Chief Justice Weltner held in such opinion in 1983 regarding denial of admission into a university’s doctoral program is even more apt when applied to the violation of an honor code in a private preparatory school by a student caught cheating. First, the student is there voluntarily, by mutual agreement, governed by the standards for grades, for deportment, and for conduct, which standards are established and enforced by the scholastic institution in order to foster scholastic achievement and preparation for further advanced education; thus, cheating is a fundamental breach of trust by the student. Second, cheating is both fraud and deceit, because the act of cheating represents that the scholastic work is the intellectual work product of the student and no other, when such is not the case. Third, in a community of scholars, cheating gives a false academic standing which debases the value of the degree conferred, because the recipient did not earn the degree, and such person’s lack of moral and intellectual fitness and preparedness reflects negatively on the value of the degrees and diplomas awarded to others, undermining the achievement earned through difficult and sustained study by other students, and cheating deprives another student wrongfully of the class scholastic ranking held by the cheater. Fourth, in an academic community, truth and intellectual honesty are fundamental to foster learning, communication of ideas, and formation of values, as well as develop a community of experience through a shared learning effort. Fifth, self-discipline, self-reliance, and development of character are essential to the education of a person seeking higher education; cheating demonstrates a lack of self-discipline and an antisocial philosophy whereby the “ends justify the means” and demonstrates that such individual is not bound by the laws and restrictions which govern the lives of fellow students and where the student refuses to take responsibility for his or her acts or omissions in not being prepared. Sixth, in an academic community, each individual will be judged upon his or her individual merit, which merit is determined by individual effort and achievement, measured by how well innate intelligence is applied and life experiences are advantageously utilized; cheating, therefore, is a total rejection of such value system of earned merit.

Appellants’ two enumerations of error raise but one assertion: the trial court erred in granting summary judgment. We do not agree.

The first enumerated error logically to be dealt with is breach of contract. In consideration of the educational opportunities provided by appellee, this student and her parents contracted with Savannah Country Day to impliedly do four things essential to the school-student relationship: (1) to diligently seek to learn and perform as a good student and to earn grades as a result of personal academic merit; (2) to be honest and responsible, i.e., not lie or cheat in the educational endeavor of learning together with the school staff and other students; (3) to maintain reasonable discipline and self-discipline in the academic setting; and (4) to pay fees, tuition, and expenses. All four conditions of continued acceptance in the school are fundamental to the consideration mandated from appellants. Failure to render any one at any time was such fundamental breach of the contract as to constitute a total failure of consideration, resulting in termination of the student’s relationship with the school. Breach of any condition by a student has an adverse effect upon the other students and the continued function of the school as a self-governing and self-supporting scholastic community. Cheating fundamentally breaches the student’s duty to diligently study and learn through her own work as a good student and the duty to exercise discipline, as well as self-discipline; it is a violation of the honor code in order to avoid the discovery of lack of work or of the failure to learn; this is a fundamental denial of accountability for one’s actions. Cheating is the “unpardonable sin” of academia, because it is intellectual dishonesty, failure to share the academic value system of scholastic merit, a lie as to represented truth, and implication that the academic communications of such person must always be suspect. This lack of trust destroys the relationship between student and staff, as well as between students, so that the student should be removed from the academic community for the good of the school and the other students.

In this case, Blaine had been found by the Honor Council to have attempted to cheat previously that school year, and Blaine’s success in cheating had been prevented only by the fortuitous absence of any material on the test covered by the discovered “cheat sheet.” At the time of such Honor Council action and subsequently, Blaine never denied the attempt to cheat nor sought to contest the Honor Council finding but accepted the punishment, until after her subsequent permanent expulsion. Now Blaine seeks to say that she was found by the Honor Council to “intend to cheat” not “attempt to cheat.” The trial court found correctly the intent to cheat and attempt to cheat were the same; when a person has the intent to commit a prohibited act and undertakes through any overt act to carry out a prohibited act, such overt act of taking into the test the calculator with the prohibited information usable for cheating, such overt act and intent constitutes an attempt to cheat. This second infraction was even more blatant. The Honor Council and appellee acted on the reasonable belief that Blaine was in fact guilty of two Honor Code violations.

We agree that there was a total failure of consideration and breach of contract; however, the breach of contract was on the part of appellants. See Life Chiropractic College v. Fuchs, 176 Ga. App. 606, 607-608 (1) (337 SE2d 45) (1985); see also Burke v. Emory Univ., 177 Ga. App. 30 (338 SE2d 500) (1985).

Appellants also contend that the trial court erred in granting summary judgment as to their assertion of appellee’s violation of “fundamental fairness.”

In their complaint and before this Court the Blaines admit that there had been cheating in April 1994 and that Blaine had been found guilty by the Honor Council of an honor code violation in October 1993. In fact, with regard to the 1994 incident, the Blaines do not contend that the Honor Council procedures and findings were a violation of fairness. They challenge the sanction. The Blaines contend in regard to the first honor code violation that the notes were left in the calculator in October by mistake and that she had no “intent to cheat,” so that the prior finding by the Honor Council of “intent to cheat” created a factual dispute as to the first Honor Council violation and that the punishment for the clear second violation was arbitrary and capricious, because there really was not a proper first violation upon which to impose the aggravated sanction of expulsion on the second violation. This ignores the discretion to expel for a single act of cheating, the April 26 act of cheating.

The Blaines ignore the point that Blaine had her second chance when she was allowed to remain in school after being found guilty on the first offense, whether it was a factually correct determination or not; Blaine was on notice that appellee legitimately believed her guilty of an October 1993 honor code violation and she had to act accordingly. Blaine accepted the first punishment, either because it was correct or because it was to her advantage to do so, and did not seek any timely appeal or review within the school of such finding. In short, her inaction, silence, and conduct waived or estopped her subsequent contest of her first finding of guilty on the first honor code violation. In other words, regardless of whether Blaine was innocent or guilty of the first offense, once she was found guilty, she had a heightened duty to avoid even the appearance of an honor code violation, and rightly so, because all her subsequent conduct had to be closely scrutinized by staff or students. Blaine earned a reputation for not being as trustworthy or reliable as one who earns, by her own work, academic merit; adheres voluntarily to the value system of the honor code; and possesses self-discipline to do her own work. Thus, a blatant act of cheating, involving another student, demonstrates appellant’s total inability to adhere to the standards of the academic community and demonstrates the danger that she might have a negative effect on other students.

Decided August 22, 1997

Savage & Turner, Brent J. Savage, for appellants.

Hunter, Maclean, Exley & Dunn, John M. Tatum, Michael D. Robl, for appellee.

The action of expulsion, under the facts and circumstances of this case, was not arbitrary or capricious, but a reasonable exercise of administrative and academic discretion, based upon the reasonable belief at the time of the second offense and the silence of Blaine as to the first offense that she had committed two honor code violations; where the exercise of discretion is to be judged, it is judged not by hindsight but the knowledge of the moment of decision. There was no violation of fundamental fairness in the treatment of Blaine. See Woodruff v. Ga. State Univ., supra at 234; Life Chiropractic College v. Fuchs, supra at 607-608; Widen v. Atlanta Hosp. &c., 194 Ga. App. 890, 891 (392 SE2d 60) (1990); see also Jansen v. Emory Univ., 440 FSupp. 1060, 1062 (N.D. Ga. 1977). Therefore, the trial court did not err in granting summary judgment.

Judgment affirmed.

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

       Blaine missed the original math test on April 25, 1994, due to a school-sponsored golf tournament; April 26 was the make-up test date for her.