text:
    A01A1435.
    TURPEN et al. v. RABUN COUNTY BOARD OF COMMISSIONERS et al.
    (554 SE2d 727)
   Ruffin, Judge.

This case involves the thorniest of issues confronting local government. It is before us a second time and arises out of a citizens’ suit against the Rabun County Board of Commissioners and the Rabun County Hospital Authority (“the defendants”).

A group of Rabun County residents (“the citizens”) sued the defendants, seeking, among other things, a declaration that the defendants’ impending acquisition of a nonprofit hospital was void for failure to comply with the Hospital Acquisition Act (“the Act”). The trial court erroneously concluded that the Act did not apply, and the citizens appealed. Another panel of this Court reversed, finding that the defendants’ noncompliance with the Act’s provisions rendered the acquisition “null and void.” Although the panel remanded the case to the trial court for an appropriate remedy, it noted that “[f]rom a practical standpoint, it may be impossible to undo the [acquisition],” which had been finalized.

Following remand, the citizens moved to enjoin the defendants from selling or making payments on any revenue bonds relating to the hospital acquisition. The trial court denied their motion, and the citizens filed this appeal. For reasons that follow, we affirm.

Although confident in our result, we do not approach this case with the arrogance of certainty. Nor do we consider these issues with cat-like quickness, but with the circumspection and reflection that constantly remind us of that delicate and indelible balance between the judiciary and local government.

The principal facts underlying the citizens’ suit are outlined in this Court’s prior decision. On April 2, 1999, Rabun County contracted to purchase 7.68 acres of land, buildings, and equipment that included two hospitals (“the facility”) from The Woodlands Foundation, Inc., a nonprofit corporation. In a separate agreement, the County, through the Hospital Authority, agreed to lease and operate the facility until the sale closed. On May 8, 1999, the citizens filed this suit, claiming that the purchase/lease transaction violated the Hospital Acquisition Act and constituted a waste of county tax dollars. In June 1999, the trial court preliminarily enjoined the defendants from acquiring the facility because they had not followed Hospital Acquisition Act procedures and the purchase contract did not adequately address financing.

The defendants subsequently moved to dissolve the injunction, arguing that they had addressed all concerns raised by the trial court. In a separate civil action, the defendants also sought validation of the revenue bonds or “certificates” necessary to acquire the facility. According to the validation petition, the Hospital Authority proposed issuing $4,500,000 in revenue certificates, which would be repaid using revenue generated by the facility. As additional security for payment of the certificates, the defendants agreed that, in exchange for use of the facility, the County would “pay on behalf of the [Hospital] Authority a sum sufficient to enable the Authority to pay the principal of and interest on the . . . Certificates.” The County further agreed to levy an annual tax on all taxable property within Rabun County so that it could “make the payments required of it.”

The trial court held a joint hearing on both the bond validation and the defendants’ motion to dissolve the preliminary injunction in the citizens’ suit. Following the hearing, the trial court lifted the preliminary injunction and permitted the hospital acquisition to proceed. It also signed the validation order relating to the revenue bonds.

The citizens appealed the trial court’s order dissolving the preliminary injunction. They also filed a notice of appeal in the bond validation proceeding, in which they had intervened. The record shows, however, that the citizens dismissed the bond validation appeal, electing only to pursue appellate review in their citizens’ suit. While that appeal was pending, the defendants finalized the transaction with The Woodlands Foundation and' acquired the hospital facility.

On appeal, this Court concluded that the Hospital Acquisition Act applied to the transaction. The Court further found that, because the defendants had not complied with the Act’s provisions, the acquisition was “null and void,” and the case was remanded to the trial court for further proceedings.

Following remand, the citizens moved to enjoin the defendants from issuing or selling the previously validated revenue bonds. By the time the citizens filed their motion, however, the bonds had been sold to Regions Investment Company, Inc. (“Regions Bank”). At a subsequent hearing, the citizens asked the trial court to enjoin the defendants from repaying any debt associated with the bonds.

The trial court denied the request for injunctive relief. It found that the citizens had not appealed the bond validation order, which was entered in a separate civil action, and such order was now binding:

The issue of payment of the bonds is involved in Case Number 99-CV-243C, not in the [citizens’ suit] considered by the Court of Appeals and which is the subject of this Order. The law of the case has determined that Rabun County and the Hospital Authority are liable on a [$4,500,000] revenue bond issue which requires the Authority to repay these bonds over a stated period of time, with Rabun County to levy taxes for the repayment of the bonds in the event revenues from the operation of the hospital are not sufficient to do so.

The trial court also determined that Regions Bank, the bond owner, was an indispensable party to any effort to enjoin bond repayment and ordered the citizens “to join Regions Bank as a party [d]efendant.” The citizens appeal both rulings.

1. The citizens argue that because this Court previously declared the hospital acquisition “null and void,” “Rabun County cannot be compelled to repay” the revenue bonds, which were validated to acquire the hospital facility. The citizens’ failure to appeal the bond validation order, however, undermines their collateral attack on the bonds.

The Georgia Constitution requires the General Assembly to “provide for the validation of any revenue bonds authorized and [to] provide that such validation shall thereafter be incontestable and conclusive.” In accordance with this mandate, the General Assembly incorporated the following language into the Revenue Bond Law:

If no appeal is filed within the time prescribed by law or if an appeal is filed and the judgment is affirmed on appeal, the judgment of the superior court confirming and validating the issuance of the bonds and the security therefor shall be forever conclusive against the governmental body upon the validity of such bonds and the security therefor.

Our Supreme Court “has held consistently that this statutory provision prevents any collateral attack by the county, county residents, or taxpayers who had proper notice of the validation proceedings but chose not to intervene” or appeal. Thus, a judgment validating revenue bonds or certificates “from which no timely appeal [is] filed, [is] conclusive on the question of the validity of the bonds and the security therefor.” Even if the judgment of validation is unconstitutional or arguably void, it cannot be collaterally attacked. As the Supreme Court has noted,

[t]his preclusion is necessary to protect the ability of governmental bodies to obtain long-term financing in the bond market. Potential purchasers would be reluctant to invest in the state’s bonds without the assurance that the revenue bonds and their security are not subject to collateral attacks after a court with proper jurisdiction has entered a final validation order. Any perceived risk in the revenue bonds as an investment would impede the ability of state and local governments to finance needed public improvement projects.

The record shows that the citizens intervened in the bond proceeding, but failed to challenge the validation order on appeal. That order became final and conclusive as to the validity of the bonds and the security pledged for bond payment. The citizens cannot now challenge those bonds or enjoin repayment.

We recognize that this decision produces an anomalous result, given the prior ruling that the hospital acquisition is null and void. Any other result, however, would place local financing in a precarious state. Like the trial court, we are constrained by the Georgia Constitution, statutory provisions governing bond validation, policy concerns, and the citizens’ failure to appeal the bond validation order. Although the defendants did not follow the Hospital Acquisition Act, we cannot countenance the citizens’ effort to attack the validity of the revenue bonds at this point. In so holding, we neither trivialize nor elevate the actions of the defendants. We elect public servants, not perfect servants.

Decided August 17, 2001

Reconsideration denied September 12, 2001

Meadows, Ichter & Trigg, Michael J. Bowers, Thomas J. R. Archer, Christopher S. Anulewicz, Stockton & Stockton, Lawrence A. Stockton, Jr., for appellants.

Chilivis, Cochran, Larkins & Bever, Nickolas P. Chilivis, John K. Larkins, Jr., Adams, Ellard & Frankum, Cadman R. Kiker, Jr., Charles L. Clay, for appellees.

The citizens of Rabun County are to be commended for their remarkable vigilance. But the remarkable is not always the practicable. As the Supreme Court found in Ambac Indem. Corp., bond validation must have finality in order for governmental entities within the state to procure financing. Accordingly, the trial court properly denied the citizens’ motion to enjoin the defendants from making payments on the revenue bonds.

2. In the final paragraph of its order denying the citizens’ motion, the trial court concluded that “Regions Bank, the present owner of the bonds, is an indispensable party to the present action to enjoin repayment of the bonds.” It thus directed the citizens to join Regions Bank as a defendant “[b]efore proceeding further.” The citizens enumerate this ruling as error.

In Division 1, we determined that the citizens could not enjoin repayment of the revenue bonds. As a matter of law, they cannot collaterally attack the validity of the bonds or any payments to Regions Bank under the bonds. The trial court’s concern that Regions Bank be joined to protect its interest in bond repayment is now moot. We need not address, therefore, whether Regions Bank was an indispensable party to the citizens’ effort to “enjoin repayment of the bonds.”

Judgment affirmed.

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

       OCGA § 31-7-400 et seq. See also Turpen v. Rabun County Bd. of Commrs., 245 Ga. App. 190, 192 (1) (537 SE2d 435) (2000) (physical precedent only).

       Id. at 197 (5). See also OCGA § 31-7-412 (a).

        Turpen, supra.

       See id.

       Id. at 191.

       Id.

       Id.

       See id. at 192.

       Id.

       Id. at 190.

       The citizens dismissed the bond validation appeal after the trial court directed them to file a surety bond pursuant to OCGA § 50-15-2. According to the citizens, they “could not afford the required bond and the attendant risk should their appeal fail.” Apparently, the citizens did not appeal the trial court’s decision imposing the surety bond. See OCGA § 50-15-2 (“In the event the [surety] bond is not filed by the . . . intervenors . . . within ten days after the order is entered, the . . . intervenors shall be dismissed by operation of law. . . . [The] intervenors . . . may appeal the order under the procedure provided by law in cases of injunction.”); Haney v. Dev. Auth. of Bremen, 271 Ga. 403, 405 (1) (519 SE2d 665) (1999) (“If no bond is filed within ten days of an order, the . . . intervenor shall be dismissed by operation of law, but may appeal the order. The appellate courts have the authority to stay the lower court order, set the bond to be filed, modify the lower court order, or enter a final order”).

        Turpen, supra at 192.

       Id. at 196.

       Id. at 197 (5).

       Ga. Const. of 1983, Art. IX, Sec. VI, Par. IV.

       OCGA § 36-82-60 et seq.

       OCGA § 36-82-78. See also OCGA § 31-7-81 (a) (indicating that revenue certificates issued by a hospital authority “shall be confirmed and validated in accordance with [the Revenue Bond Law]; and, when validated, the judgment of validation shall be final and conclusive with respect to such certificates and against the authority issuing the same”).

       (Emphasis supplied.) Ambac Indem. Corp. v. Akridge, 262 Ga. 773, 774 (1) (425 SE2d 637) (1993).

       (Punctuation and emphasis omitted.) Id. See also Charlton Dev. Auth. v. Charlton County, 253 Ga. 208, 209 (317 SE2d 204) (1984) (trial court erred in declaring tax levy agreement invalid based “upon considerations which could have been — and should have been — asserted and adjudicated during the bond validation proceedings”); Cox v. Ga. Ed. Auth., 225 Ga. 542 (170 SE2d 240) (1969) (trial court properly dismissed complaint seeking to cancel sale of and enjoin payment under revenue bonds, which were validated in a separate proceeding affirmed on appeal); Gibbs v. City of Social Circle, 191 Ga. 422, 427 (2) (12 SE2d 335) (1940) (“[T]he legislature was perfectly justified in enacting the law which declares in effect that all parties who were entitled to a hearing in the validation proceeding on any question, including constitutional questions, who stood by refusing to urge the same, and permitted the court to proceed to judgment and the time for excepting thereto to expire, will not be permitted subsequently to present and have heard by the court complaints which he could have made in that proceeding”).

       See Cox, supra at 544 (“The order validating the bonds in the present case, affirmed by the Court of Appeals, was conclusive as to the validity of the bonds against the complainants herein, and the present action attacking the constitutionality of the issuance of the bonds cannot be maintained.”); Dawson v. Hosp. Auth. of City of Augusta, 212 Ga. 146 (3) (91 SE2d 12) (1956) (“A judgment validating [hospital authority] revenue certificates, unless excepted to within the time provided by law, is conclusive upon all questions made, or that might have been made, prior to the judgment of validation, including the constitutionality of the statute under which the proceedings are had.”); Gibbs v. Ty Ty Consolidated School Dist., 168 Ga. 379, 381 (147 SE 764) (1929) (“[E]ven though the judgment of validation was void . . ., petitioners, who were citizens and taxpayers and could have intervened in the validation proceedings, were not entitled to an injunction to prevent the issuance and sale of the bonds”).

        Ambac Indem. Corp., supra at 775 (1).

       OCGA § 36-82-78. As noted above, the bonds are secured by revenues from the facility, as well as payments by the County.

       See Ambac Indem. Corp., supra (“Having chosen not to intervene and appeal the validation order, [the plaintiff] is precluded from a collateral attack on the security for the bonds”).

       It should be noted that the defendants and the trial court erroneously concluded that the Hospital Acquisition Act did not apply to the subject acquisition.


source: Caselaw Access Project

author: Johnson, Presiding Judge.

license: Public Domain

text:
    A01A1678.
    SCOTT v. THE STATE.
    (554 SE2d 513)
   Johnson, Presiding Judge.

In this vehicle-to-vehicle shooting case, Mack Scott was convicted of aggravated assault and aggravated battery upon the driver of a car and aggravated assault upon the passenger in the car. He appeals, raising arguments regarding the sufficiency of the evidence, effective assistance of counsel, and the correctness of the jury instruction on aiding and abetting.

At the outset, we note that Mack Scott’s brief fails to comply with Court of Appeals Rule 27 (a) (1), requiring that an appellant’s statement of facts contain citations to the record or transcript essential to a consideration of the issues raised. The statement of facts in Mack Scott’s brief is entirely devoid of such citations, and it is not this Court’s role to cull the record on Mack Scott’s behalf. However, we will address Mack Scott’s enumerations of error given the few record citations included in the argument portion of his brief.

1. Mack Scott contends that the trial court should have granted his motion for a directed verdict because the evidence was insufficient to support his convictions. A motion for a directed verdict of acquittal should be granted only when there is no conflict in the evidence and the evidence demands a verdict of acquittal as a matter of law; a challenge to the sufficiency of the evidence in connection with the denial of a directed verdict of acquittal is evaluated based on the standard set forth in Jackson v. Virginia. We only address the sufficiency of the evidence, and we do not weigh the evidence or determine the credibility of the witnesses. As long as there is some evidence, even though contradicted, to support each necessary element of the state’s case, the jury’s verdict will be upheld.

Viewed in the light most favorable to the verdict, the record shows the following facts. On July 26, 1999, Mack Scott, indicating he wished to test-drive a BMW, borrowed one from a dealership in Athens. That car had a blue exterior and a gray interior. He agreed to return it either later that day or in the morning. The following morning he was observed at the Jackson County Courthouse in the driver’s seat of the BMW. His brother, Jerry Scott, was also in the car. Their nephews, Bob Scott and Timmy Ransom, were at the courthouse that morning being arraigned on drug charges. The record further shows that Mack Scott believed Bob Scott had taken $9,000 worth of cocaine from him.

After the arraignments, Bob Scott drove toward Athens with Connie Wakefield in her car. Tiffany Shield, who had no connection with any of the parties, was driving behind them. She saw a blue BMW with a light-colored interior and a dealer tag pass her on the left side in a no-passing zone.

The BMW and the car being driven by Bob Scott scraped together. Wakefield heard gunfire, and Bob Scott fell over into her lap. Wakefield was also shot. When she regained consciousness, she realized her car had collided with a truck. Bob Scott had been shot in the eye. Within an hour after the shooting, Bob Scott told a sheriffs investigator that he had been shot by Mack Scott and Jerry Scott. A few days later he told the investigator that a vehicle pulled up beside him, that Jerry Scott fired a gun at him, and that Mack Scott was also in the car. He also told Wakefield a month or so after the incident that Mack Scott and Jerry Scott were involved in the shooting.

Subsequently, the car dealership received a call, apparently from Mack Scott’s sister, as to the location of the BMW. When the BMW was retrieved, it was obvious that it had been damaged after it had been loaned to Mack Scott and that the damage had been poorly repaired. In addition, Wakefield’s car had bullet holes in its left side.

Mack Scott argues that the evidence was insufficient to support his convictions because it merely showed that he was present at the scene. As we recently stated in Melvin v. State, however, “[w]hile it is true that mere presence at the scene of the commission of a crime is not sufficient evidence to convict one of being a party thereto, presence, companionship, and conduct before and after the offense are circumstances from which one’s participation in the criminal intent may be inferred.” Here, there was significant inculpatory evidence of Mack Scott’s presence, companionship, and conduct before and during the offense, which allowed for reasonable inferences of Mack Scott’s “participation in the criminal intent.” Mack Scott borrowed the BMW used in the shooting the day before the shooting. He was observed the morning of the shooting in its driver’s seat, with Jerry Scott also in the car, at the same courthouse where one of the victims was being arraigned on drug charges. Within an hour after the shooting, one of the victims told a sheriff’s investigator that he had been shot by Mack Scott and Jerry Scott; and a few days later, he told the investigator that a vehicle pulled up beside him, that Jerry Scott fired a gun at him, and that Mack Scott was also in the car. A month or so after the shooting, that victim told the other victim that Mack Scott and Jerry Scott were involved in the shooting. The evidence was sufficient to convict Mack Scott of being a party to the crimes charged.

While Mack Scott contends that the trial court erred by admitting hearsay regarding his alleged motive for participating in the charged offenses, we need not reach this issue. The state was not required to establish motive, since motive is not an element of the offenses of aggravated assault or aggravated battery. Thus, even if the complained-of testimony did constitute hearsay, the admission of this evidence was not reversible error. Moreover, Ransom testified that Mack Scott told him that Mack Scott thought Bob Scott had taken his cocaine. Ransom’s testimony on this point constituted an admission by Mack Scott, so it is admissible as an exception to the hearsay rule and thus is entitled to probative value in considering the sufficiency of the evidence.* The admissible evidence presented was sufficient for a rational trier of fact to find Mack Scott guilty beyond a reasonable doubt of aggravated assault and aggravated battery.

Mack Scott further contends that the evidence against him was entirely circumstantial and that it failed to exclude every reasonable hypothesis other than guilt. In particular, Mack Scott notes that he presented evidence of an “entirely reasonable” alibi defense. He correctly concedes, however, that “the jury was authorized not to believe [his] alibi.” Moreover, although he claims that “a reasonable hypothesis of innocence emerges from the evidence at trial,” he offers no specifics beyond his alibi evidence. As we noted in Robinson v. State,

[questions as to reasonableness are generally to be decided by the jury which heard the evidence and where the jury is authorized to find that the evidence, though circumstantial, was sufficient to exclude every reasonable hypothesis save that of guilt, the appellate court will not disturb the finding, unless the verdict is unsupportable as a matter of law.

Here, the verdict is not insupportable as a matter of law, and we will not disturb the jury’s finding that the evidence was sufficient to exclude every reasonable hypothesis save that of guilt.

2. Mack Scott contends he was denied effective assistance of counsel. To prevail on this claim, he has the burden of proving not only counsel’s deficient performance, but also that the deficiency was so prejudicial to his defense that, but for the deficiency, there is a reasonable probability the outcome of the trial would have been different. The trial court’s finding that Mack Scott was afforded effective assistance of counsel must be upheld on appeal unless clearly erroneous.

(a) Mack Scott argues that his trial counsel should have objected to the questioning of two witnesses regarding a prior incident between Jerry Scott and Bob Scott. Mack Scott correctly points out that there was no evidence that he was in any way involved in the earlier incident. He further states that this evidence “served no purpose other than to prejudice the jury against [him] by bringing up irrelevant matters about his brother.” Mack Scott’s trial counsel did not object on the ground of relevance to the questioning about the prior incident either time it occurred (while Bob Scott was testifying and again while Wakefield was testifying). He did, however, bring out during cross-examination that Mack Scott was not involved in the prior incident.

Moreover, in a bench conference during Wakefield’s testimony, Mack Scott’s trial counsel assured the court that his not objecting to the questioning regarding the prior incident was a matter of trial strategy. Mack Scott’s trial counsel testified at the hearing on the motion for a new trial that he did not object to the questioning of Wakefield about the prior difficulty because “I felt it was important that the jury know that . . . there were prior difficulties between [Jerry Scott] and [Bob Scott] and not [Mack Scott] and [Bob Scott]. ... I believed [the testimony] relevant to show who the culprit in this case was or to show who wasn’t the culprit, who had motive, who did not have motive.” We regard this as a reasonable strategy for dealing with this testimony (and with Bob Scott’s earlier testimony regarding the same incident). Moreover, counsel’s decisions on matters of trial strategy, even if unwise, do not amount to ineffective assistance of counsel.

(b) Mack Scott also claims that his trial counsel should have objected to the prosecutor’s questioning of Wakefield regarding Bob Scott’s statement to her about which of the BMW’s occupants was involved in the shooting. According to the trial transcript, Bob Scott testified that he could not remember telling the investigator that Mack Scott and Jerry Scott were in the car shooting at him or that Mack Scott was in the car. Wakefield testified that Bob Scott told her that Mack Scott and Jerry Scott were involved in the shooting. Bob Scott’s inconsistent statement to Wakefield was admissible as substantive evidence. Because Mack Scott’s trial counsel had no valid objection to make, this contention lacks merit.

(c) Mack Scott contends that his trial counsel should have interposed a bolstering objection to the prosecutor’s questioning of the investigator regarding Ransom’s statements to him about the cocaine Bob Scott allegedly took from Mack Scott. We agree that such an objection could have been made successfully. We do not believe, howevér, particularly in view of the other evidence, that the deficiency was so prejudicial to Mack Scott’s defense that, but for the deficiency, there is a reasonable probability the outcome of the trial would have been different.

3. Mack Scott’s final enumeration of error is that the trial court erred in its recharge on aiding and abetting. The trial court gave the pattern charge on the definition of party to a crime. In its charge, the trial court stated that “[a] person is a party ... if that person ... intentionally helps in the commission of the crime.” During deliberations, the jury sent out a note requesting a definition of aiding and abetting. After a colloquy with counsel, the court read to the jury, with some minor variations, OCGA § 16-2-20, defining when a person is a party to a crime. Subsection (b) (3) of that Code section uses the phrase “aids or abets” instead of the word “helps” found in the pattern jury charge. It states that a person is a party if he “[i]ntentionally aids or abets in the commission of the crime.” The court then told the jury: “Now, in response to the specific question you asked, I’m going to say that you should give aid and abet the common usage definition known to you and not a legal definition.” Mack Scott contends that “the charge was error because the definition is not a ‘common’ one, but has a distinct legal definition.”

It is true that “party to a crime” has a distinct legal definition. But all definitions consist of words, some of which are neither further defined nor in need of further definition. This is the case with the phrase “aids or abets” in OCGA § 16-2-20 (b) (3).

Moreover, the record shows that Mack Scott did not object to the recharge. In fact, Mack Scott’s trial counsel responded “[y]eah” to the court’s statement that it was planning to “[g]ive aid and abet the common usage definition and not a legal definition.” Thus, Mack Scott waived any exception to the recharge.

Decided August 24, 2001

Reconsideration denied September 12, 2001

James W Smith, for appellant.

Timothy G. Madison, District Attorney, Robin R. Riggs, Assistant District Attorney, for appellee.

Judgment affirmed.

Ruffin and Ellington, JJ., concur.

       A fourth enumeration — that one of the counts should have merged into one of the other two — is moot because the trial court did merge the counts after the original sentencing.

        Powles v. State, 248 Ga. App. 4 (545 SE2d 153) (2001).

       443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); see Postell v. State, 233 Ga. App. 800, 801 (1) (505 SE2d 782) (1998).

        Kellibrew v. State, 239 Ga. App. 783 (1) (521 SE2d 921) (1999).

       Id.

       246 Ga. App. 727-728 (1) (542 SE2d 140) (2000).

       See id.

        Jackson v. Virginia, supra; Melvin, supra.

       See OCGA §§ 16-5-21; 16-5-24.

        Summerour v. State, 211 Ga. App. 65 (1) (438 SE2d 176) (1993).

        Williams v. Lawrence, 273 Ga. 295, 298 (540 SE2d 599) (2001).

       See OCGA § 24-4-6.

        Roberts v. State, 267 Ga. 669, 671 (1) (482 SE2d 245) (1997).

       203 Ga. App. 759 (417 SE2d 404) (1992).

       (Citations and punctuation omitted.) Id. at 760 (1).

        Strickland, v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984).

        Sabbs v. State, 248 Ga. App. 114, 115 (2) (545 SE2d 671) (2001).

        Scott v. State, 238 Ga. App. 258, 260-261 (2) (518 SE2d 468) (1999).

       See Holiday v. State, 272 Ga. 779, 780-781 (2) (534 SE2d 411) (2000); Kirby v. State, 187 Ga. App. 88, 89 (1) (369 SE2d 274) (1988).

        Banks v. State, 244 Ga. App. 191, 192 (1) (c) (535 SE2d 22) (2000) (“Failure to pursue a meritless motion cannot be evidence of ineffective assistance”).

       See Strickland, supra.

       The pattern definition of party to a crime does not use either the word “aids” or the word “abets.”

       During the ensuing colloquy among counsel and the court, the prosecutor speculated thát the reason the jury was asking for a definition of aiding and abetting even though those words (or their variants) had not been used in the charge was that both he and defense counsel had used those words to the jury.

       .See generally Ross v. State, 231 Ga. App. 506, 508 (2) (499 SE2d 351) (1998).

       See Brooks v. State, 190 Ga. App. 430, 432 (2) (379 SE2d 228) (1989).


author: Eldridge, Judge.

text:
    A01A2060.
    SMALLS v. THE STATE.
    (554 SE2d 273)
   Eldridge, Judge.

A Chatham County jury found Kenneth Lesean Smalls guilty of robbery by sudden snatching, which charge arose when, at an automated teller machine on the comer of Bull Street and Congress Avenue in Savannah, Smalls grabbed $50 from Kenneth Wills who had just obtained the money from the machine. Smalls appeals, and, upon review of his enumerated errors, we affirm.

1. In his first enumeration of error, Smalls challenges the sufficiency of the evidence introduced against him, claiming that the evidence “is nothing more than a sui generis hodge podge of ipse dixits” We disagree.

A jury’s verdict must be upheld if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.* Further, “ipse dixit” notwithstanding, “[t]he testimony of a single witness is generally sufficient to establish a fact.” In that regard, whether to believe a witness and the facts to which he testifies is solely within the province of the jury as finder of fact; an appellate court determines evidence sufficiency and does not determine witness credibility.

Viewed in a light most favorable to the verdict, the record contains pictures taken at the ATM at 9:55 p.m. on September 23, 1999, which show the victim obtaining money from the machine. The photographs also show Smalls approaching the victim. Smalls was wearing a white long-sleeved dress shirt that was buttoned to the first button below the neck.

A receipt from the ATM shows that the victim obtained $70 from the ATM. The victim testified that he put one $20 bill into his wallet in a regular fashion for spending, but he folded the remaining bills, two $20s and a $10, and put them in his wallet to save for bill paying purposes. These folded bills were snatched by Smalls when the victim opened his wallet to give Smalls a dollar pursuant to his request.

After taking the money, Smalls ran. The victim chased him, and Smalls never left the victim’s sight. The victim caught Smalls several blocks later on Oglethorpe Avenue. After catching him, the victim testified that Smalls gave him conflicting stories; that Smalls

said he would give me my money back, but he threw it away. He said he would get some more from a friend’s house if he — if I’d give him the opportunity to go to a friend’s house. He told me he had it in a car, in his car, which was parked down the street. He also told me that he didn’t even know me. He denied ever knowing me.

During the ensuing argument, the victim broke the first fastened button off Smalls’ shirt. While still following Smalls, the victim was able to flag down a patrol officer, and the subsequent investigation resulted in Smalls’ arrest. The two twenty dollar bills and the ten dollar bill were recovered from Smalls’ pocket, still folded. A post-arrest photograph taken at the police station shows Smalls in the same shirt as the ATM photograph,'but the shirt is opened to the second button below the neck, the first button being broken.

This evidence is sufficient for a rational trier of fact to have found Smalls guilty beyond a reasonable doubt of the indicted offense.

2. In his next two enumerations of error, Smalls claims error in the trial court’s admission of similar transaction evidence regarding Smalls’ 1993 guilty plea to robbing a man at an ATM, for which offense Smalls was sentenced to three years imprisonment. First, he contends that the prior act was too remote in time from the instant 1999 offense to be admissible. Second, he contends that the trial court erred in permitting the 1993 victim’s statement to be read into evidence under the “necessity” exception to the hearsay rule. We find both contentions meritless. “The decision to admit prior similar transaction evidence is within the discretion of the trial court and will not be disturbed absent an abuse of discretion.”

(a) Smalls concedes the similarity between the instant offense and his prior 1993 act. He claims only that the six-year span between robberies makes the prior act inadmissible.

A lapse of time is a factor to weigh in considering the admissibility of the evidence in question, but it is not the determinative factor. “When similar transaction evidence is otherwise admissible, the elapse of 11 years and 19 years has not demanded exclusion of such evidence. Here, although [six] years separated [Smalls’] earlier [ATM] robbery from the [instant ATM] robbery, part of that time [Smalls] was unavailable to participate in other robberies due to his imprisonment.” “It is, moreover, the similarity of the offenses within the meaning of Williams v. State that determines the admissibility of such evidence, not whether the span of time between offenses is brief.” And the similarity of the offenses is undisputed in this case. Thus, under the circumstances, the prior act evidence was not too remote to be admissible.

(b) Smalls contends the trial court erred in permitting the officer who investigated the prior ATM robbery to read the statement of the victim into evidence under the “necessity” exception to the hearsay rule.

Smalls pled guilty to the prior act. In doing so, he acknowledged the facts as alleged by the victim: “he admitted that he had pled guilty to these crimes and that he had in fact committed them, and he did not contradict the facts underlying his commission of them.”

Also, the victim of the prior 1993 robbery could not be located, and Smalls’ attorney stipulated “to the fact that they [prosecutors] made a reasonable effort to try to locate this witness.” The record contains written documentation of the efforts taken to find the 1993 victim, which supports defense counsel’s decision to stipulate.

Thus, both prongs of the “necessity” exception to the hearsay rule were met in this case, i.e., (1) a “particularized guarantee of trustworthiness” as to material facts pursuant to Smalls’ admission through his guilty plea; and (2) the “unavailability” of the witness as stipulated to by the parties.

Appellant, in admitting to the commission of the [robbery] of the witness as described in the indictment, waived his right to challenge the witness’ statements regarding the incident. Therefore, the admission of the evidence did not violate appellant’s right under the Confrontation Clause of the Sixth Amendment of the United States Constitution, and there was no error in admitting the statements under the necessity exception of OCGA § 24-3-1 (b).

Accordingly, we find no abuse of discretion in the trial court’s decision to allow evidence of Smalls’ 1993 robbery to be introduced as a similar transaction.

3. In his final two enumerations of error, Smalls contends he received ineffective assistance of counsel at trial because his attorney (a) failed to claim as inadequate the efforts by the State’s investigator to locate the 1993 similar transaction witness; and (b) failed to subpoena Kamal Patel to testify on behalf of the defense. We do not agree.

In order to obtain the reversal of a conviction on a claim that his counsel was ineffective, Smalls has the burden of proving not only that counsel’s performance was deficient, but also that the deficiency was so prejudicial to his defense that, but for the deficiency, there is a reasonable probability the outcome of the trial would have been different. The trial court’s finding that Smalls was afforded effective assistance of counsel must be upheld on appeal unless clearly erroneous.

(a) We find no deficiency in defense counsel’s decision to stipulate that the State’s investigator “made a reasonable effort” to locate the 1993 similar transaction victim. The stipulation is supported by documentation of those efforts, which appear imminently reasonable to us, as they did to the trial court. Smalls contends his trial attorney had a “sworn duty to ‘doubt’ ” the State’s investigator “and to contest the reasonable issue of ‘doubt’ with all the vigor at his command.” However, trial counsel knew the State’s investigator, was aware of the attempts he had made to locate the witness, and had no reason to express such “doubt.” Contentiousness for the sake of being contentious does not equate with effective assistance of counsel. “And the ‘failure to make a meritless objection cannot be evidence of ineffective assistance.’ ”

Decided August 20, 2001

Reconsideration denied September 12, 2001

Thomas J. Gustinella, for appellant.

Spencer Lawton, Jr., District Attorney, Lori E. Loncon, Assistant District Attorney, for appellee.

(b) Smalls also contends that his trial counsel was ineffective for failing to subpoena Patel as a defense witness in order to show that the $50 recovered from Smalls did not come from the victim, but from a check Smalls had cashed that night. Patel owns Mickey’s Package Shop in Savannah and also cashes checks as a part of his business. Patel could have testified that Smalls had previously cashed checks at the package shop. At the time of the December 18, 2000 hearing on Smalls’ ineffectiveness claim, the information about who specifically had cashed checks on the night in question was lost because Patel’s business computer crashed in February 2000. But Smalls contends that if his attorney had properly investigated and interviewed Patel in 1999, that information would have been available and would have been beneficial to Smalls.

Defense counsel, however, testified that Smalls never gave him Patel’s name and location in order to investigate and interview him as a potential witness. This Court must accept the trial court’s findings regarding the credibility of witnesses and disputed facts. Moreover, Smalls did not testify at the motion for new trial hearing or at trial, and there is no evidence in the record that Smalls cashed a check on the night of the incident. Without any evidence whatsoever that Patel could testify that Smalls did indeed cash a check at Mickey’s Package Shop on the incident date, Smalls cannot meet his burden to show that, but for the error he claims occurred, the outcome of the trial would have been different. Accordingly, neither deficiency nor prejudice has been shown.

As both of Smalls’ claims of ineffective assistance of counsel are without merit, the trial court’s rejection of same was not clearly erroneous.

Judgment affirmed.

Andrews, P. J., and Miller, J., concur.

        Barber v. State, 235 Ga. App. 170 (509 SE2d 93) (1998).

       OCGA § 24-4-8.

        Kovacs v. State, 227 Ga. App. 870 (1) (490 SE2d 539) (1997).

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

        Whitehead v. State, 237 Ga. App. 551, 552 (515 SE2d 866) (1999).

       (Citations and punctuation omitted.) Huff v. State, 248 Ga. App. 233, 235 (546 SE2d 24) (2001).

        Davis v. State, 226 Ga. App. 83, 87 (485 SE2d 508) (1997).

       (Citations and punctuation omitted.) Nelson v. State, 242 Ga. App. 63, 65 (4) (528 SE2d 844) (2000).

       261 Ga. 640, 642 (2) (b) (409 SE2d 649) (1991).

        Nelson v. State, supra at 65.

        Moore v. State, 207 Ga. App. 412, 417 (427 SE2d 779) (1993).

        Campos v. State, 273 Ga. 119, 120 (2) (538 SE2d 447) (2000).

        Johnson v. State, 247 Ga. App. 157, 165 (13) (e) (543 SE2d 439) (2000).

        Strickland v. Washington, 466 U. S. 668 (104 SC 2052, 80 LE2d 674) (1984); Smith v. Francis, 253 Ga. 782, 783 (325 SE2d 362) (1985).

        Parker v. State, 220 Ga. App. 303, 307 (469 SE2d 410) (1996).

        Demetrios v. State, 246 Ga. App. 506, 513-514 (7) (b) (541 SE2d 83) (2000).

        Ramsey v. State, 272 Ga. 28, 30 (3) (526 SE2d 842) (2000).


author: Ruffin, Judge.

text:
    A01A0852.
    HARPER INVESTMENTS, INC. v. DEPARTMENT OF TRANSPORTATION.
    (554 SE2d 619)
   Ruffin, Judge.

The Georgia Department of Transportation (“DOT”) petitioned to condemn 0.031 acres of land (“the property” or “subject property”) owned by Harper Investments, Inc. (“Harper”) for the purpose of widening a highway. DOT moved for partial summary judgment, arguing that it is not required to compensate Harper for interfering with Harper’s right of access to the highway or for revoking Harper’s permit to encroach on DOT’s right-of-way. The trial court granted DOT’s motion, and Harper appeals. For reasons that follow, we affirm in part and reverse in part.

Summary judgment is appropriate where the evidence of record “show[s] that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” On appeal, we review a trial court’s grant of summary judgment de novo.

The record shows that the property, which lies on the southwest comer of McManus Road and Thomaston Road in Macon, includes 110 feet of frontage along the south side of Thomaston Road. In 1946, the Bibb County Board of Education owned the property and conveyed a 65-foot-wide strip fronting Thomaston Road to the State Highway Department for a right-of-way.

In 1958, Eddie Johnson purchased the property. According to Johnson, during his ownership, the property “had access to Thomas-ton Road by a “horseshoe’ driveway.” The driveway is depicted on later plans as accessing Thomaston Road in front of neighboring property, turning east through the 65-foot right-of-way in front of the property, and continuing through the right-of-way to its access point with McManus Road.

In 1962 and 1963, Johnson constructed a building on the property to serve as a bait and tackle store and gas station. The building, which is still intact, is situated only 18.7 feet back from the state’s right-of-way.

In 1963, the State Highway Department enacted Rules & Regulations for Driveway and Encroachment Control (“1963 Regulations”) that contained the following restriction:

MINIMUM SPACE REQUIREMENT BETWEEN RIGHT-OF-WAY AND STRUCTURES. In order to prevent or discourage the hazardous practice of backing vehicles into the highway or street travel lanes and the less hazardous act of turning vehicles in driveways it is necessary to prohibit a driveway to intersect the right-of-way line at any point opposite a building or other traffic obstacle located less than forty (40) feet from the right-of-way line, such distance being required for turning the average passenger vehicle or for right-angle parking.

Inasmuch as the driveway serving the property intersected the right-of-way in front of the bait and tackle store, it violated the 1963 Regulations.

In 1978, the State Highway Department granted Curtis Ezzell, then the owner of the property, a Temporary Conditional Permit for Commercial Driveway (“1978 Permit”). The 1978 Permit authorized Ezzell to pave the existing driveway and to use a 20-foot right-of-way encroachment where the driveway continued between the property and Thomaston Road. The 1978 Permit also provided that it was binding on all successors in ownership and only granted to such owners the right “to use temporarily a portion or portions of the highway right-of-way in the manner described above in violation of the . . . Rules and Regulations.” Plans attached to the permit depict the existing driveway described above.

In 1986, the DOT enacted new Rules & Regulations for Driveway and Encroachment Control, which, like the 1963 Regulations, prohibited the placement of a driveway between the right-of-way and a building where the building is less than 40 feet from the right-of-way.

In 1988, DOT granted the owner of the property, then Garry Veber, a Temporary Conditional Permit for a Commercial Driveway and a Special Encroachment (“1988 Permit”). Plans attached to the 1988 Permit reveal that the permit authorized Veber to continue using the 20-foot right-of-way encroachment and to move the Thomaston Road driveway entrance from its location in front of the neighboring property to the front of the subject property opposite the store. Like the 1978 Permit, the 1988 Permit recognized that the encroachment depicted on the plan “failfed] to conform with the Georgia Department of Transportation Rules and Regulations for Driveway and Encroachment Control.” Also like the 1978 Permit, the 1988 Permit was “binding upon any and all successors in ownership” and only granted to such owners the right “to use temporarily a portion or portions of the highway right-of-way as shown on the attached plans.”

In 1990, Carl Harper purchased the property, and he subsequently conveyed it to Harper Investments, of which he was a majority shareholder. According to Carl Harper, he was aware of the 1988 Permit when he purchased the property and knew that DOT could revoke it at any time.

On April 20, 1993, DOT notified Harper that it was widening Thomaston Road from two to five lanes and that it was therefore revoking the 1988 Permit. The notification letter required Harper to “remove the encroachments allowed under the permit from the right-of-way before June 15, 1993.”

After filing the instant petition to condemn a narrow strip of Harper’s property that would be used to widen the road, DOT moved for partial summary judgment, asking the trial court to rule that DOT was authorized to revoke the 1988 Permit and that Harper is not entitled to any compensation as a consequence of the revocation. In response, Harper stated that it was not challenging

DOT’s right to rescind the permits allowing Harper and prior owners the right to use the 20' encroachment. But the temporary conditional use that was legitimately subject to rescission does not include the right of access to the property. Harper retained the right of access to Thomaston Road through the area covered by the permits, and that right cannot be taken or damaged . . . without just compensation.

The trial court found that “the property owners [’] use of the right-of-way and direct access to the front of its building off Thomas-ton Road was permissive.” Upon concluding that “[t]he loss of permissive use is not compensable,” the court granted DOT’s motion. The court also noted that its “Order does not deprive Harper Investments of access to Thomaston Road from a side road (McManus Road) that fronts Thomaston Road. Moreover, this Order does not prohibit Harper Investments from applying to DOT for a permit to get access directly off Thomaston Road.”

On appeal, Harper raises several arguments supporting its assertion that DOT must pay for interfering with its access right to Thomaston Road and that this included the right to use the driveway which encroached on DOT’s right-of-way. Because we conclude that Harper’s right of access and its authority to encroach on the right-of-way are distinct rights, we address them separately.

1. Right of Access. It is well established that

the right of access, or easement of access, to a public road is a property right which arises from the ownership of land contiguous to a public road, and the landowner cannot be deprived of this right without just and adequate compensation being first paid. The easement consists of the right of egress from and ingress to the abutting public road and from there to the system of public roads.

To be entitled to compensation, it is not necessary that a condemning authority totally cut off a landowner’s access to an abutting road because “interfering with access to premises, by impeding or rendering difficult ingress or egress, is such a taking and damaging as entitles the party injured to compensation.” Thus, any substantial interference with existing rights of ingress and egress will entitle a landowner to damages.

In this case, each owner of the property abutting Thomaston Road had a right of access to the road. In 1988, Harper’s predecessor, Veber, exercised this right by requesting access to Thomaston Road at a specific point. It is clear that Veber was entitled to reasonable access to Thomaston Road, and by granting Veber’s request, DOT merely recognized his easement of access. That easement constitutes a property right, and Harper, as Veber’s successor, “cannot be deprived of this right without just and adequate compensation being first paid.” Although Harper may have alternative access to its property on an abutting street or may be granted alternative access directly to Thomaston Road, such factors go to the amount of damages, if any, due Harper for the “deprivation of one means of access to [its] property.” Accordingly, because evidence shows that DOT closed Harper’s existing access when it widened Thomaston Road, the trial court erred in granting partial summary judgment to DOT concerning Harper’s right to compensation for DOT’s interference with Harper’s easement of access.

2. Use of Right-of-Way Encroachment. Although Harper, as owner of the property, has an easement of access to Thomaston Road, Harper has cited no evidence that its right to maintain a driveway encroaching on DOT’s right-of-way was anything more than a mere license. A license “is defined as authority to do a particular act or series of acts on land of another without possessing any estate or interest therein.” Although an express oral license may ripen into an easement based on equitable estoppel if the license holder incurs expense pursuant to the grant, as a general rule licenses are revocable at any time.

Decided September 12, 2001.

Reynolds & McArthur, Charles M. Cork III, for appellant.

Thurbert E. Baker, Attorney General, R. O. Lerer, Senior Assistant Attorney General, Harris & James, William C. Harris, John B. Harris III, for appellee.

In this case, it is undisputed that DOT has owned the right-of-way property since 1946, and the DOT permits issued to owners of the property clearly stated that the DOT was only giving permission “to use temporarily a portion ... of the highway right-of-way.” Carl Harper admitted in his deposition that he understood that DOT could revoke the 1988 Permit at any time, and in its response to DOT’s motion for summary judgment, Harper likewise acknowledged that it had no right to continued use of the driveway over the right-of-way encroachment. Under these circumstances, it is obvious that the owners of the property had nothing more than a revocable license for the driveway encroachment over DOT’s right-of-way, and the trial court correctly ruled that DOT is not required to compensate Harper for revoking this license.

Judgment affirmed in part and reversed in part.

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

       OCGA § 9-11-56 (c).

       See Moore v. ECI Mgmt., 246 Ga. App. 601 (542 SE2d 115) (2000).

       (Citations and punctuation omitted.) Dept. of Transp. v. Whitehead, 253 Ga. 150, 151-152 (1) (317 SE2d 542) (1984). See also OCGA § 32-3-1 (a) (granting state agency authority to condemn rights of access).

       (Punctuation omitted.) Dougherty County v. Hornsby, 213 Ga. 114, 117 (1) (97 SE2d 300) (1957).

       See BIK Assoc. v. Troup County, 236 Ga. App. 734, 735 (1) (513 SE2d 283) (1999).

       See Whitehead, supra at 151.

       (Punctuation omitted.) Id. at 151 (1).

       The record does not reveal what, if any, alternative access points DOT has granted Harper along Thomaston Road.

       Id. at 152 (1).

       See Lee v. City of Atlanta, 219 Ga. App. 264, 265-266 (3) (464 SE2d 879) (1995).

       (Citations, punctuation and footnote omitted.) Jekyll Dev. Assoc. v. Glynn County Bd. of Tax Assessors, 240 Ga. App. 273, 274 (1) (523 SE2d 370) (1999).

       See Jordan v. Coalson, 235 Ga. 326, 327 (219 SE2d 439) (1975); see also OCGA § 44-9-4; 1 Pindar’s Ga. Real Estate Law & Procedure (5th ed. 1998), §§ 8-47; 8-48.


author: Barnes, Judge.

text:
    A01A1254.
    RIDDLES v. THE STATE.
    (554 SE2d 737)
   Barnes, Judge.

Randy Riddles appeals his conviction of violating OCGA § 16-13-30 (b) by selling marijuana, asserting that (1) the 38-member panel of potential jurors contained a percentage of blacks that was disproportionately small compared with the percentage of blacks qualified to serve as jurors in the county, (2) the State failed to prove the chain of custody of the suspected controlled substance, and (3) he did not forfeit the right to open and close closing argument merely by playing a portion of a videotape during recross-examination of a State’s witness. Viewing the record in the light most favorable to the conviction, and for the reasons that follow, we affirm.

1. The record shows that, before beginning jury selection, Riddles, who is black, challenged the panel of potential jurors on the ground that only three of the thirty-eight (7.9 percent) were blacks, but the percentage of blacks in the population of the county was “probably . . . around 28 to 30 percent based on 1990 census information.” The court overruled his challenge and denied his subsequent motion for mistrial, stating that

it’s been certified within the past few weeks . . . that the whole jury box is within the five percent guideline. . . . It’s not whether or not the individual jurors that are placed here constitute a representative cross section; it’s whether or not the jury [list] as a whole is representative, and I am certain that this county jury list qualifies. . . . [T]his [panel] is the culmination of what’s left over after three juries have been stricken so I’d overrule your motion because I am convinced that the whole jury box in Emanuel County is proper and in the five percent range for male/female, blacks and white [sic], and I have not been shown how the selection process came up with an inordinate amount of people. It’s chosen by computer and random selection.

We recently held that

[w]hile traverse jury lists must consist of a representative and fair cross-section of the community to the fullest extent possible, the same is not true of an array. Provided that persons are not systematically excluded on the basis of race or other cognizable grouping, and provided that the jurors comprising a panel are randomly selected from a representative pool, the selection process is not inherently defective.

(Footnotes omitted.) Kent v. State, 245 Ga. App. 531 (1) (538 SE2d 185) (2000). See also McElroy v. State, 244 Ga. App. 500, 503 (2) (b) (536 SE2d 188) (1999) (defendant must show purposeful discrimination to successfully challenge a jury array); Prine v. State, 237 Ga. App. 679, 680 (1) (515 SE2d 425) (1999) (“[I]t is the pool of jurors from which the jury sent to be voir dired is drawn that must be representative of the community, not the individual panel sent to a courtroom for voir dire purposes.”) (emphasis in original).

Here, Riddles contends, as he did at trial, simply that “the jury array . . . contained a proportionately small percentage of blacks (7.9%) compared to the population of blacks qualified to serve as jurors in Emanuel County at large (27.8%).” Because Riddles failed to establish any flaw in the selection process, such as manipulation, misuse, or systematic exclusion of cognizable groups, the trial court properly rejected his challenge to the array.

2. Riddles next contends that the State failed to prove the marijuana’s chain of custody, arguing that there was a break in the chain between a drug enforcement officer and the Augusta Crime Laboratory. The record shows that the officer transported the marijuana to the lab in a bag bearing a case number and a bag number. It further shows that the bag was then given a lab number, placed in the evidence vault, later removed and tested by a chemist — one of three people with access to the vault — and then replaced in the vault. The officer and the chemist identified the marijuana at trial by means of the three numbers. Riddles points to the facts that the chemist did not personally receive the item from the officer and that he was not the only person with access to the vault.

Our Supreme Court has held that

[w]hen blood samples are handled in a routine manner and nothing in the record raises a suspicion that the blood sought to be admitted is not the blood tested, the blood is admissible and the circumstances of each case need only establish reasonable assurance of the identity of the sample. Absent affirmative evidence of tampering, mere speculative doubt as to the handling of evidence while in the possession of the Georgia Crime Lab is a matter for consideration by the jury.

(Citations and punctuation omitted.) Johnson v. State, 271 Ga. 375, 382 (13) (519 SE2d 221) (1999), cert. denied, 528 U. S. 1172 (120 SC 1199, 145 LE2d 1102) (2000). See also Givens v. State, 214 Ga. App. 774 (2) (449 SE2d 149) (1994) (lack of testimony by crime lab employee who originally received exhibits does not break the chain of custody). Under these standards, this enumeration must fail.

3. Finally, Riddles argues that he did not forfeit the right to open and close final arguments merely by playing a portion of a videotape while recross-examining a State’s witness. After Riddles cross-examined the witness, the State played a portion of a videotape to show the purchase of the marijuana from Riddles. During recross, Riddles obtained permission to play the tape “from the time of the alleged sale through the post-buy meeting and let the jury see if any other items were purchased or where those items might have gone,” and portions of the tape were played.

If, under the guise of cross-examination, a defendant reads from the portions of a prior written statement of a witness that are not related to impeaching the witness, the defendant has effectively introduced evidence to the jury that should have been formally offered into evidence and the defendant therefore loses the right to open and close final arguments.

Decided September 12, 2001

Lovett Bennett, Jr., for appellant.

Steven Askew, District Attorney, for appellee.

Lane v. State, 248 Ga. App. 470, 471-472 (2) (545 SE2d 665) (2001). Riddles thus forfeited the right to open and close final argument, and the trial court did not err in so holding.

Judgment affirmed.

Smith, P. J., and Phipps, J., concur.


text:
    A01A1430.
    In the Interest of M. H., a child.
    (554 SE2d 616)
   Johnson, Presiding Judge.

The mother of eight-year-old M. H., who is in the temporary legal custody of the Department of Family & Children Services, has appealed from a juvenile court order finding that a plan to reunify the child with the mother is not appropriate. We agree with the mother that there is insufficient evidence to support the court’s finding. And we therefore reverse the juvenile court order deeming reunification inappropriate.

In August 1996, the Liberty County Department of Family & Children Services received a report that three-year-old M. H. had been found wandering unsupervised near a store next to his mother’s home. In April and July 1997, the Department received reports that M. H. again had been found wandering unsupervised away from home. M. H. was then placed with his paternal grandparents, with whom he stayed until March 1998, when he returned to his mother’s home.

In July 1998, the Department discovered marks on M. H.’s legs. M. H. reported that the father of the mother’s other two children, D. H. and T. H., had hit him. In October 1998, the electricity at the mother’s home was turned off, so the Department obtained a protective order giving it emergency custody of M. H., D. H., and T. H. The juvenile court later found all three children to be deprived and gave the Department temporary legal custody of them.

The Department developed a plan to reunite the mother with her children. The mother complied with the plan, so the Department petitioned the juvenile court to return the children to her. In May

1999, the court returned physical custody of D. H. and T. H. to the mother, but ordered that M. H. remain in the Department’s custody because of behavioral problems. In August 1999, however, the court granted the Department’s petition to return physical custody of M. H. to his mother because she had cooperated with the Department and had completed her case plan goals.

In November 1999, with all three children in the mother’s physical custody, the court ordered that legal custody of D. H. and T. H. be transferred back to the mother. But pursuant to an agreement between the mother and the Department, the court continued the Department’s temporary legal custody of M. H. so he could get psychological treatment. Subsequently, M. H. was removed from his mother’s physical custody and placed with a foster care family because of reports that he had exhibited violent behavior. In May 2000, pursuant to the juvenile court’s approval, the foster care family moved with M. H. to Kentucky.

Thereafter, in June 2000, the Department and the mother entered into a six-month case plan designed to reunite the mother with M. H. The plan was supposed to last until December 2000, and it listed, among other things, the following goals for the mother: that she educate herself about M. H.’s special needs, that she provide the necessary supervision for M. H., that she provide a stable home, that she acknowledge her responsibility for damage that M. H. has endured, that she cooperate with the Department, and that she visit M. H. while he is in the Department’s custody.

In October 2000, before the end of the six-month reunification plan period, the Department notified the mother that a court hearing had been scheduled to determine whether reunification was still appropriate. The juvenile court held the hearing, after which it entered its order finding that reunification is no longer appropriate. The mother appeals from that order.

In order to determine that reunification is no longer appropriate, a juvenile court must find by clear and convincing evidence that efforts to reunify the child with his family will be detrimental to the child. There is a presumption that reunification services should not be provided if the court finds clear and convincing evidence that, among other things, the child has been removed from the home on at least two previous occasions and reunification services were made available on those occasions.

In the instant case, the juvenile court correctly found that there is a presumption that reunification services should not be provided to the mother because on at least two prior occasions M. H. was removed from her home and reunification services were made available on those occasions. Nevertheless, the court erred in failing to find that the presumption was rebutted and that there is not clear and convincing evidence that efforts to reunify the mother and M. H. will be detrimental to the child.

The presumption was rebutted by the testimony of the Department’s own clinical psychologist, Dr. Daniel Nagleburg, whom the Department had hired to evaluate both the mother and M. H. and to help develop the reunification plan in question. Dr. Nagleburg testified that he was unsure why the Department was seeking to stop reunification efforts before the end of the six-month case plan period, and that in his opinion it is still possible to reunite the mother and child. He also testified that the mother had substantially complied with the reunification plan goals by continuing her appointments with him, by taking steps to educate herself about M. H.’s special needs, by accepting responsibility for damage that M. H. has suffered, by no longer living with the father of her other two children, and by maintaining employment.

According to Dr. Nagleburg, the mother has not met some of the case plan requirements because of his and the Department’s failures in helping her find a parenting class or support group. He also contradicted the Department’s implication that the mother is the sole source of M. H.’s behavioral problems, noting that many of his behaviors have occurred while in foster care. The doctor concluded by giving his opinion that placing M. H. back in the mother’s home is the only sure way to determine if she can effectively parent him, and that to say otherwise at this point is mere guesswork and speculation.

The Department did not present another psychologist or other expert to contradict Dr. Nagleburg’s opinion that reunification is still appropriate and instead relied on the testimony of M. H.’s grandfather, one of his foster parents, and a Department caseworker. The caseworker recounted the Department’s history with the mother and testified that the mother minimizes M. H.’s condition, that there are concerns about the mother’s ability to supervise M. H., that the mother blames other people for what has happened to M. H., that the mother had called the Department about once every other week, that the mother had attended her weekly visits with M. H. but had not provided financial support, that M. H. was doing well in foster care, and that the Department was seeking to cease reunification because the mother had not improved and the Department had exhausted its resources.

The foster parent testified that M. H. requires constant supervision, that he is impulsive and on medication, that he knows sexual terms and has touched her breasts, that M. H.’s mother had visited M. H. regularly while they lived in Georgia, that when they moved to Kentucky the mother had sent him letters and called him and visited him once, that M. H. was difficult to control after the mother’s visits and would be upset after her calls, that M. H. had been violent and attacked one of her children, and that in her opinion M. H. should be in a single-child home.

The grandfather testified that M. H. resides with him now, that M. H. needs constant supervision, that he bites himself and takes medications to control his behavior, that his behavior changes for the worse after his mother visits, and that he has recently made progress in school.

Contrary to the finding of the juvenile court, the Department’s witnesses did not provide clear and convincing evidence that reasonable efforts to reunify M. H. with his mother will be detrimental to M. H. In its appellate brief, the Department claims that returning M. H. to his mother would be detrimental to him based on the testimony that M. H.’s behavior changed after visits with his mother and on the fact that M. H. has spent much of his life in foster care. The Department’s claim is unpersuasive.

The Department has failed to show any link between the evidence it cites and its conclusion that returning M. H. to his mother would be to his detriment. There is no evidence explaining why the child behaves differently after his mother visits. Perhaps he behaves as he does because, as the Department implies, the mother is a poor parent; or conversely, perhaps he misses his mother and would prefer to be with her. The problem is that we cannot be certain of the reasons for the child’s behavior because the Department has offered no evidence or explanation for it. Moreover, even if there were such evidence, there still is no clear and convincing evidence which supports the additional leap in reasoning that it would be detrimental to M. H. to reunite him with his mother. Likewise, the mere fact that M. H. has spent much time in foster care simply provides no proof from which one can logically conclude that reunification would be detrimental.

Because the Department failed to provide clear and convincing evidence that reunification would be detrimental to M. H., the juvenile court erred in ruling that reunification is no longer appropriate. Accordingly, the juvenile court’s order to that effect is hereby reversed.

Decided September 12, 2001.

Joel Osteen, for appellant.

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

Judgment reversed.

Ruffin and Ellington, JJ., concur.

       OCGA § 15-11-58 (h).

       OCGA § 15-11-58 (h) (2).

       Compare In the Interest of U. B., 246 Ga. App. 328, 331 (2) (540 SE2d 278) (2000) (father’s treating mental health counselor did not recommend return of children to father, whose mental health problems had harmed the children).

       Compare In the Interest of K. M., 240 Ga. App. 67, 71 (522 SE2d 667) (1999) (in addition to unrebutted presumption that reunification was inappropriate, the mother also had a medically verifiable physical deficiency and a drug addiction that were both likely to continue to harm children).


author: Blackburn, Chief Judge.

text:
    A01A0936.
    MARTIN v. THE STATE.
    (554 SE2d 759)
   Blackburn, Chief Judge.

Following a jury trial, Ricky Martin appeals his convictions for aggravated assault and simple battery, contending that the evidence was insufficient to support the verdict. We find, however, that the evidence adduced at trial did support the verdict, and we affirm. Martin was indicted separately in two cases, each of which involved violent acts against the same victim, and were tried jointly by consent of the parties.

On appeal the evidence must be viewed in the light most favorable to support the verdict, and [Martin] no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. The verdict must be upheld if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

(Punctuation omitted.) Barber v. State. See Jackson v. Virginia. Viewed in the light most favorable to the verdict, the record shows that Martin had a history of committing domestic violence against his girlfriend, Patricia Ann Pinkston. Martin was indicted for aggravated assault and simple battery in connection with the first incident. Pinkston stated that, on the evening of March 23, 1998, Martin entered her home and started an argument. During this altercation, Martin stuck Pinkston with a screwdriver, hit her with his fists, hit her in the head with a small glass bottle of hot saiice, and knocked her down causing her to break her wrist. After the fight ended, Martin fled.

Decided September 13, 2001.

Lucy J. Bell, for appellant.

Dennis C. Sanders, District Attorney, for appellee.

Martin was indicted for aggravated assault in connection with the second incident which occurred on August 8, 1999. Pinkston stated that, on that date, Martin entered her home and started another argument. This time, Martin struck Pinkston with his fists, with a towel rack, and a 2' x 4' piece of lumber. Again, Pinkston called the police after Martin fled, and he was indicted.

The cases were tried jointly, and Pinkston testified to the above facts. Martin was acquitted by a jury on the aggravated assault charge on March 23, 1998, and convicted on the remaining two counts. The testimony of the victim was sufficient to support the jury’s verdict, and the trial court did not err in so holding. See Jackson, supra.

Judgment affirmed.

Pope, P. J., and Mikell, J., concur.

        Barber v. State, 235 Ga. App. 170 (509 SE2d 93) (1998).

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


text:
    A01A1052.
    HOOPER v. THE STATE.
    (554 SE2d 750)
   Ruffin, Judge.

A jury found Deangelo Hooper guilty of armed robbery. He appeals, and for reasons that follow, we affirm.

The record shows that a gunman robbed Donald Wilt as Wilt and his 12-year-old son left the Omni following an Atlanta Hawks basketball game. The gunman approached Wilt and his son from behind as they walked down a flight of stairs between 10:15 and 10:30 p.m. According to Wilt, the individual placed his hand on Wilt’s shoulder and demanded money. Wilt turned, and the robber “stuck [a] gun in [his] face.” At that point, Wilt looked directly at the gunman and concentrated on his face for one to two seconds. The gunman then ordered Wilt to the ground, took his wallet, and fled. After the gunman left, Wilt located his son, who, in the meantime, had run for help, and together they searched for a police officer.

Wilt found an officer near the Omni Hotel and reported the incident. He described the gunman’s race and stated that he was “a slender . . . man between five ten, six feet tall, wearing dark clothes and a dark knit cap.” Wilt’s son added that the gunman had on black and white tennis shoes.

Between 10:30 and 11:00 p.m., Officer Warren Pichard saw Hooper carrying an “almost transparent” plastic bag about four blocks from the Omni. Noting that the bag appeared to contain a gun, Pichard got out of his car, identified himself as a police officer, and asked to speak with Hooper. According to Pichard, “[a]s soon as [he] opened [his] door and started to get out and voice that [he] was a police officer, [Hooper] immediately took flight.” Pichard chased Hooper over two fences and through a backyard before he caught him. After catching Hooper, Pichard found a gun in the bag and also saw a wallet about six inches from Hooper’s foot. Pichard picked up the wallet, determined that it did not belong to Hooper, and called his dispatcher to check on reported robberies in the area. At that point, he learned about the Wilt robbery, which had been reported ten to twenty minutes before he caught Hooper.

Pichard transported Hooper to the police station where the Wilts had been taken and turned the case over to Detective D. O. White. Detective White showed Wilt the wallet found near Hooper. Wilt identified the wallet as his and noted that nothing had been taken from it. According to Wilt, White then asked him to look at Hooper, who was sitting alone in the back of the police car. Based on Hooper’s face and clothing, Wilt identified Hooper as the robber. At trial, Wilt similarly identified Hooper as the robber and testified that the gun found in Hooper’s possession was the gun used during the robbery. Wilt’s son also identified Hooper on the night of the robbery and at trial.

Hooper testified and denied involvement in the robbery. According to Hooper, an unidentified man ran past him while he was walking down the street and threw a plastic bag at him. Hooper testified that as he picked up the bag, which contained a gun, a hat, and Wilt’s wallet, police officers arrived on the scene. Frightened, Hooper dropped the bag and ran. The jury apparently disbelieved Hooper’s version of events and found him guilty of armed robbery.

1. Hooper first argues that the trial court erroneously denied his motion to suppress evidence because Officer Pichard lacked a reasonable, articulable suspicion under Terry v. Ohio to initially stop him. As stated in Hooper’s brief, his argument focuses on “the point [at] which [Pichard first] sought to detain [him], not when [he] ran.”

At the hearing on the motion to suppress, Pichard testified that when he approached Hooper, he was in an unmarked police car without emergency lights. He opened the car door, identified himself as a police officer, and asked to speak with Hooper. Pichard explained that having conversations with citizens is a normal part of his police duties. Hooper, however, immediately ran from the scene.

Hooper did not testify at the hearing or present any other evidence about Pichard’s initial approach. The undisputed evidence, therefore, showed that Pichard’s effort to speak with Hooper was not a Terry stop, but merely a first-tier police-citizen encounter involving no coercion or detention. Pichard did not need a reasonable suspicion to speak with Hooper under these circumstances because “even when officers have no basis for suspecting a particular individual, they may generally ask questions of that individual; ask to examine the individual’s identification; and request consent to search — as long as the police do not convey a message that compliance with their requests is required.” Accordingly, the trial court did not err in refusing to suppress evidence based on Pichard’s initial contact with Hooper.

2. Hooper also asserts that his pre-trial identification in a one-on-one showup should have been excluded as impermissibly suggestive. We disagree.

We apply a two-part test to assess the admissibility of pre-trial identifications. First, we determine whether the identification procedure was impermissibly suggestive. If it was, we then “consider the totality of the circumstances to determine whether a very substantial likelihood existed of irreparable misidentification.” In making this determination, we consider the witness’ opportunity to view the suspect at the time of the offense, the witness’ degree of attention, the accuracy of the witness’ prior description, the witness’ level of certainty, and the length of time between the crime and the identification. Furthermore, we construe the evidence most favorably to uphold the judgment and factual findings of the trial court.

In making its ruling, the trial court assumed that the showup was inherently suggestive, primarily because Wilt and his son knew that Wilt’s wallet had been recovered from Hooper before they identified him as the robber. The record also shows that, before the identification, Wilt learned that a gun had been found on Hooper. In addition, Wilt’s son testified that he heard his father identify Hooper as the robber before he looked at and identified Hooper. Despite this suggestive procedure,* the trial court concluded that the Wilts’ identification was reliable. We find no error.

At the hearing, both Wilt and his son testified that the area where the robbery occurred was well lit and that Hooper was clearly visible. Although Wilt saw Hooper’s face for only one to two seconds, he testified that his attention was concentrated on that face. Wilt’s son indicated that he focused on Hooper’s face for ten seconds. Wilt and his son also expressed certainty about their identification, which took place less than two hours after the robbery, and testified that they felt no police pressure to identify Hooper. As explained by Wilt, Detective White told him to look at Hooper “and see if that’s the person that mugged [him].”

Detective White testified that he told Wilt that Hooper “may or may not be the person” who robbed him. White noted that, during the showup, Wilt expressed no hesitancy or uncertainty about his identification. Although White could not remember whether Wilt’s son participated in the identification, Wilt confirmed that his son identified Hooper as the robber. Finally, as Detective White testified, the description the Wilts gave police generally fit Hooper.

Under the totality of these circumstances, the evidence supported the trial court’s conclusion that there was no substantial likelihood of irreparable misidentification. Accordingly, the trial court did not err in denying Hooper’s motion to suppress the pre-trial showup identification.

3. Hooper also argues that the trial court erroneously denied his motion for new trial based on the State’s failure to provide him with exculpatory evidence. Again, we disagree.

The record shows that following trial, the State found a booking photograph of Hooper that it had not turned over to the defense. The prosecutor contacted Hooper’s trial counsel and informed her about the photo. Hooper claims that the photograph, which shows him wearing a light-colored shirt, supported his testimony at trial and undercut the identification evidence. According to Hooper, he was entitled to this photograph under Brady v. Maryland, and the State’s failure to disclose it requires a new trial.

To succeed in his Brady claim, Hooper must prove

(1) that the State possessed evidence favorable to the defense; (2) that [he] did not possess the evidence nor could he obtain it himself with any reasonable diligence; (3) that the prosecution suppressed the favorable evidence; and (4) that had the evidence been disclosed to the defense, a reasonable probability exists that the outcome of the proceedings would have been different.

Hooper cannot meet his burden simply by showing that the undisclosed information might have helped his defense or affected the trial’s outcome. Rather, he must prove “ ‘that the evidence withheld from him so impaired his defense that he was denied a fair trial within the meaning of the Brady rule.’ ”

Hooper has not made the requisite showing here. At trial, Hooper testified that he was wearing a white shirt and no jacket on the night of the robbery. He argues that because his defense revolved around misidentification, the photograph, which corroborated his testimony that his clothing differed from the dark clothes worn by the described assailant, was material to the trial. Four witnesses, however, testified that Hooper was, in fact, wearing dark clothing at the time of his arrest, undermining his claim that the clothing he wore that night differed from the robber’s clothing. Officer Pichard and Detective White testified that Hooper had on dark clothes when police took him into custody. Pichard further testified that Hooper’s dark clothes included a long-sleeve jacket. Wilt stated at trial that he identified Hooper during the showup based on Hooper’s face and his dark-colored clothes. Similarly, Wilt’s son testified that, at the showup, Hooper had on the same dark clothes as the robber.

Furthermore, at the hearing on his motion for new trial, Hooper presented little evidence regarding when or under what circumstances the photograph was taken. His trial counsel simply testified that “[biased on [her] experience and . . . what [the] photograph look[ed] like,” it was taken on the night of the robbery, as he was booked into jail. She further stated that police typically take a person’s photo immediately after arrest.

Other than this general testimony, Hooper offered no evidence about the circumstances surrounding this particular photo or whether it accurately depicted the clothing he was wearing at the time of the robbery. Indeed, given Officer Pichard’s testimony that Hooper was wearing a jacket, the photograph does not necessarily conflict with the State’s evidence or corroborate Hooper; Hooper may have simply taken off a dark-colored jacket to reveal a white shirt prior to the photo. In light of the significant witness testimony about Hooper’s clothing at the time of his arrest, as well as the dearth of information about the photograph, we do not find this photograph material. Hooper has not demonstrated a reasonable probability that the outcome of his trial would have been different had the State disclosed the photograph. Accordingly, the trial court did not err in denying his motion for new trial on this ground.

4. Finally, Hooper argues that the trial court erroneously denied his motion for new trial based on ineffective assistance of counsel. According to Hooper, his trial counsel was ineffective because she failed to request and obtain the photograph discussed above. To support his ineffective assistance of counsel claim, Hooper must show that his counsel’s performance was deficient and that the deficiency prejudiced his defense. Prejudice arises where “ ‘there is a reasonable probability the jury would have reached a different verdict, absent the error of counsel.’ ”

Even assuming that trial counsel was deficient, Hooper’s ineffective assistance of counsel claim cannot succeed because he has not shown prejudice. As we found in Division 3, Hooper failed to establish a reasonable probability that the outcome of his trial would have been different if the booking photograph had been available to him. Accordingly, the trial court did not err in denying his motion for new trial based on ineffective assistance of counsel.

Decided September 13, 2001.

Carl P. Greenberg, Derek M. Wright, for appellant.

Paul L. Howard, Jr., District Attorney, Anna E. Green, Assistant District Attorney, for appellee.

Judgment affirmed.

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

       392 U. S. 1 (88 SC 1868, 20 LE2d 889) (1968).

       On appeal, Hooper does not challenge his detention or arrest after he ran from Officer Pichard. We note, however, that once Hooper ran, Pichard acted reasonably in pursuing him. See State v. Burks, 240 Ga. App. 425, 427 (1) (523 SE2d 648) (1999) (“After the initial attempt to stop, flight in connection with other circumstances may be sufficient probable cause to uphold a warrantless arrest or search”) (punctuation omitted).

       See Gary v. State, 244 Ga. App. 535, 536 (1) (536 SE2d 192) (2000).

       Id.

        Salazar v. State, 245 Ga. App. 878 (1) (539 SE2d 231) (2000).

       Id.

       Id. at 879.

        Semple v. State, 271 Ga. 416, 418 (2) (519 SE2d 912) (1999); see also Salazar, supra.

        Self v. State, 245 Ga. App. 270, 272 (2) (537 SE2d 723) (2000).

       In Ms brief, Hooper claims that Wilt saw the gun before the identification. Wilt testified, however, that he identified Hooper first, then saw the gun.

       See Holbrook v. State, 209 Ga. App. 301, 302 (1) (433 SE2d 616) (1993) (“One-on-one showups have been held to be inherently suggestive, especially where, as here, the accused is a lone suspect who is obviously M custody, surrounded by uniformed police officers, and no precaution is taken to ensure the integrity of the identification process.”) (citations and punctuation omitted).

       Hooper argues that he was younger than the robber Wilt described to the police. As an rnitial matter, it is not clear from the transcript that Wilt provided an age description to police on the night of the robbery. Furthermore, even if Wilt inaccurately estimated the robber’s age, that mistake did not require the trial court to exclude the identification evidence. See Huff v. State, 239 Ga. App. 83, 85-86 (1) (519 SE2d 263) (1999) (no substantial likelihood of misidentification; although victim erroneously described female assailant as a male, the description was otherwise accurate).

       See Self, supra at 273 (2) (“[T]he trial court’s determination that there was, under the totality of the circumstances, no likelihood of irreparable misidentification is supported by the evidence, is not clearly erroneous, and is therefore affirmed.”); see also Holbrook, supra (although identification procedure was impermissibly suggestive, no substantial likelihood of misidentification found).

       373 U. S. 83 (83 SC 1194, 10 LE2d 215) (1963).

        Zant a Moon, 264 Ga. 93, 100 (3) (440 SE2d 657) (1994).

        Williams v. State, 224 Ga. App. 368, 371 (7) (481 SE2d 535) (1997).

       Id.

       See Brooks v. State, 182 Ga. App. 144, 145-146 (1) (355 SE2d 435) (1987).

        Watson v. State, 243 Ga. App. 636, 637 (534 SE2d 93) (2000).

       Id.

       Id. (“We will affirm a trial court’s finding that counsel was effective unless it is clearly erroneous.”).


author: Mikell, Judge.

text:
    A01A1075.
    GULF INSURANCE COMPANY v. GFA GROUP, INC.
    (554 SE2d 746)
   Mikell, Judge.

The issue in this appeal is whether a payroll services company, which pays the wages of the employees of a contractor of a public works project, is a qualified claimant under a payment bond furnished by the contractor under Georgia’s “Little Miller Act.”*

The record shows that in April 1996, QRC, Inc. (the “Contractor”) was engaged by the Washington County Board of Education to reroof a number of schools. Pursuant to an earlier contract, GFA Group, Inc. had agreed to provide payroll services and workers’ compensation insurance to the Contractor. Under their arrangement, GFA would issue payroll checks on its own account, remit the withheld taxes to the appropriate authorities, pay the workers’ compensation premiums, and submit its invoice to the Contractor weekly for immediate repayment. GFA and the Contractor later modified their contract on the Washington County project to provide that GFA would be compensated through a third-party disbursing agent. Evidence indicates that it was the practice of the disbursing agent to pay GFA’s invoices monthly.

The Contractor arranged for a payment bond to be issued by Gulf Insurance Company in connection with the roofing project. An eligible claimant under the bond was defined “as one having a direct contract with the [Contractor] or with a Subcontractor of the [Contractor] for labor, material, or both, used or reasonably required for use in the performance of the Contract.” The Contractor was subsequently removed from the roofing project, and GFA was not reimbursed for approximately $70,000 which the Contractor owed GFA under their payroll services arrangement. GFA sued the Contractor, its principal shareholder, and Gulf to recover the delinquent balance.

GFA and Gulf filed cross motions for summary judgment. The trial court granted GFA’s motion on the issue of Gulf’s liability to GFA under the payment bond. Gulf appeals. We reverse because GFA did not provide labor or material to the public works project and so was not an eligible claimant under Gulf’s payment bond.

To prevail on a motion for summary judgment, the moving party must demonstrate that there is no genuine issue of material fact, and that the undisputed facts, viewed in a light most favorable to the party opposing the motion, warrant judgment as a matter of law.

Gulf issued its payment bond as required by OCGA § 13-10-1, the Little Miller Act, which provides, in part:

(b) No contract with this state or any public board or body thereofi ] for the doing of any public work shall be valid for any purpose, unless the contractor shall give: ... (2) (A) A payment bond with good and sufficient surety or sureties, payable to the state or public board or body thereof for which the work is to be done, and for the use and protection of all subcontractors and all persons supplying labor, materials, machinery, and equipment in the prosecution of the work provided for in the contract. The payment bond shall be in the amount of at least the total amount payable by the terms of the contract.

The statutory bond requirement is intended to protect subcontractors and materialmen because they cannot secure a mechanic’s lien on a public building. However, a bond given under the statute may also extend protection beyond those who would have a lien if the project were private property. In interpreting Georgia’s statutory bond requirement, we may look to decisions of the federal courts construing the bond requirements under the federal Miller Act.

The trial court held that GFA was a proper claimant under Gulf’s payment bond because it provided labor to the project by paying the wages of the project laborers. Gulf claims the trial court erred in ruling that GFA was a proper claimant under the payment bond because GFA was a lender rather than a supplier of labor or materials.

It has been established that a contractor’s lender will not qualify as a claimant under a public works payment bond. For example, a statutory bond will not “have application to a debt owing by the subcontractors for money merely loaned or advanced to them by a third person to meet a pay-roll.” GFA claims that it is not a lender because it is paid a fee for services rather than interest. GFA further argues that this service is applied to the public works project because it pays the project laborers.

GFA’s relationship with the Contractor has elements of both a lender and a service provider. We find the lender analogy to he persuasive insofar as GFA advanced money on behalf of the Contractor for which it expected to be repaid. It would also be accurate to describe GFA as providing a service, although it is an administrative service the Contractor would otherwise be required to perform on its own behalf. But regardless of whether GFA is best described as performing the function of a lender or a service provider, the fundamental question for purposes of its status as a claimant under the bond is whether GFA can be said to provide labor to the project. For that purpose, the agreement between GFA and the Contractor is as meaningful for what GFA expressly will not do as what it will do. This agreement provides: “Both Parties agree and understand that agents of the [Contractor] are the responsible parties for acquiring and terminating employees while on their work sites and disciplinary measures taken against said employees. [GFA] will not retain control over the employees nor direct their behavior in any way. . . .”

The record shows that GFA was not locating the project laborers, placing them under contract, and then providing them to the Contractor. In their joint statement of undisputed material facts, GFA and Gulf stipulate that:

[Contractor] was solely responsible for hiring, setting rate of pay, supervising and firing of all personnel used by [Contractor] on the Project. [GFA’s] role was limited to providing payroll services, and issuing checks in payment of the payroll and the workers compensation insurance premiums for [Contractor] personnel used on the Project.

Although GFA argues that it is a statutory employer under OCGA § 34-8-46, there is no evidence that GFA is a temporary help contracting firm because it is not shown that “[a] separate employment contract exists between the temporary help contracting firm and each individual it hires as an employee.” What the record does show is that GFA performed an administrative function on behalf of the Contractor. To the extent that GFA is seen as providing a service, it is an administrative service provided for the benefit of the Contractor and cannot be fairly seen as providing labor to the school roofing project. We also note that while the laborers themselves were certainly protected by the bond, as the trial court states, it does not follow that GFA can stand in their shoes for purposes of asserting a claim. Accordingly, we hold that GFA was not a valid claimant under Gulf’s public works payment bond.

Gulf is unable to point to any Georgia authority which is on point or persuasive. GFA relies on Barton Malow Co. v. Metro Mfg. and Tom Barrow Co. v. St. Paul Fire &c. Ins. Co. for the proposition that “subcontractor” should be interpreted expansively for purposes of identifying proper claimants under a statutory bond. These cases are inapplicable because both concern whether a materials supplier must have privity with the prime contractor to qualify as a claimant under a payment bond. Privity is not at issue here. While we agree that “the bonds statute is liberally construed for the protection of those who do work or furnish materials for public works,”* we are facing the threshold issue of whether GFA is within the class of those persons that provided labor or materials.

Both parties reach beyond Georgia for authority to support their position, but the only applicable foreign decisions are in accord with a finding that GFA is not a claimant under the bond. A federal district court recently held, under similar factual circumstances, that a payroll services firm was not a provider of labor or material under a surety bond. The California Court of Appeals reached the same conclusion in Primo Team v. Blake Constr. Co. We acknowledge that these decisions do not involve a surety bond issued under the Little Miller Act, but they are nevertheless persuasive.

GFA’s final argument is that it is entitled to make a claim under the terms of the bond under the general rules of contract interpretation. The presumption under a statutory bond is that the parties intended to execute a bond in accordance with the aims of the statute. We decline to interpret the services provided by GFA to be “labor used ... or reasonably required for use in the performance of the Contract” on the theory that paying the laborers was required to complete the project or required by the school board.

Decided September 13, 2001.

Thompson & Slagle, Jefferson B. Slagle, Alfred A. Malena, Jr., for appellant.

J. Hatcher Graham, for appellee.

For the above-stated reasons, we hold that the trial court erred in granting summary judgment to GFA and in failing to grant summary judgment to Gulf.

Judgment reversed.

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

       OCGA § 13-10-1 et seq.

       OCGA § 9-11-56 (c); Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

       See Motor Supply Co. v. St. Paul Mercury Indem. Co., 67 Ga. App. 236, 239 (19 SE2d 737) (1942).

       See Western Cas. &c. Co. v. Fulton Supply Co., 60 Ga. App. 710, 711 (4 SE2d 690) (1939).

       40 USC § 270a; Amcon, Inc. v. Southern Pipe &c. Co., 134 Ga. App. 655, 656 (215 SE2d 712) (1975).

        United States v. Standard Surety &c. Co. of New York, 37 FSupp. 323 (S.D. N.Y. 1941); First Nat. Bank &c. v. American Surety Co. &c., 53 F2d 746 (5th Cir. 1931).

        First Nat. Bank &c. v. MacDougald Constr. Co., 45 Ga. App. 853, 854 (2) (166 SE 256) (1932).

       OCGA § 34-8-46.

       214 Ga. App. 56 (446 SE2d 785) (1994).

       205 Ga. App. 10 (421 SE2d 85) (1992).

       (Citation and punctuation omitted.) Ingalls Iron Works Co. v. Standard Accident Ins. Co., 107 Ga. App. 454, 458 (1) (130 SE2d 606) (1963).

        Tri-State Employment Svcs. v. Mount Batten Surety Co., 2001 U. S. Dist. LEXIS 6279 (S.D. N.Y.).

       3 Cal. App.4th 801 (4 Cal. Rptr.2d 701) (1992); see also Integon Indem. Corp. v. Bull, 311 Ark. 61 (842 SW2d 1) (1992) (direct payor of labor and material on behalf of contractor made payor the contractor’s lender and not a proper claimant under payment bond).

       See Home Indem. Co. v. Battey Machinery Co., 109 Ga. App. 322, 326-327 (136 SE2d 193) (1964).