author: Johnson, Presiding Judge.

text:
    A01A0012.
    COCHRAN et al. v. THE STATE.
    (548 SE2d 417)
   Johnson, Presiding Judge.

A jury found David Cochran guilty of aggravated sexual battery and two counts of child molestation for acts committed against his daughter.* His brother, Danny Cochran, was tried with him and found guilty of three counts of child molestation for offenses committed against the same victim, his niece. Both men appeal, challenging the sufficiency of the evidence to support the convictions, challenging the trial court’s denial of their motions for new trial based on the insufficiency of the evidence, and contending the trial court erred in denying their motions to suppress statements they made to police. Each of the enumerations is without merit, and we affirm.

1. We first examine the sufficiency of the evidence to support the convictions. On appeal, we do not reweigh the evidence but view it in a light most favorable to the verdict.

A detective with the sheriff’s office testified that the fourteen-year-old victim told him that the abuse started when she was about four years old. When no one else was home, David Cochran would come into her bedroom, take off her clothes, and have sexual intercourse with her. She reported that he also placed his finger inside her vagina. Afterward, David Cochran would tell the victim to get dressed and go into the kitchen so that her mother would not suspect anything when she returned. He also warned the victim that if she told anyone about what he was doing, she would regret it. The victim told the detective that her uncle, Danny Cochran, also had sexual intercourse with her and that both men fondled her. Danny Cochran, like his brother, threatened to hurt the victim if she told. Once, when the victim’s sister walked into the room as Danny Cochran fondled the victim, he told both girls that if they told anyone, they would not live to tell anyone else. The victim told the detective that the men had been engaging in this type of behavior for as long as she could remember.

The detective testified that the victim’s 13-year-old sister told him that she saw Danny Cochran touch the victim on her breasts and genital area. They told him to stop, but he refused.

David Cochran gave the detective a verbal statement in which he initially denied the allegations, then admitted that some of the allegations were true. David Cochran also wrote a statement for the detective. In the written statement, he denied the allegations, then stated that if he did commit the offenses, he would not commit them again, because he does not want his daughter to hate him. He added that he “did it that [one] time.” David Cochran said he was tempted by the manner in which his daughter was dressed and that she was “so [filled] out.” He admitted that he felt her breasts and buttocks and that he had sex with her three times since she was eleven years old.

Danny Cochran also gave the detective a written statement. In it, Danny Cochran wrote that “it started” when the victim was ten years old. He reported that once, as he stood in the bathroom urinating, the victim came in, put her hand on his penis, and rubbed it for five minutes. About a month later, the victim approached him, “and one thing [led] to another.” Danny Cochran admitted that he rubbed his penis against the victim’s vagina. He later started feeling badly about doing this and stopped.

A caseworker testified that she interviewed the victim on the night the victim first made the allegations of abuse. The victim told the caseworker that her father started molesting her when she was about four years old and that her uncle started abusing her two years later. The victim told her that they fondled her and had sexual intercourse with her. The victim added that her uncle stopped having sex with her two years ago, but that he continued to fondle her. Her father had last had sex with her about two days before the disclosure.

A hospital nurse testified that the victim told her that her father and uncle had been molesting her since she was about four years old. The nurse conducted a physical exam of the victim. Her findings were consistent with the victim’s allegations that she had had sexual intercourse.

When called as a witness for the state, the 14-year-old victim testified that she had falsely accused her father and uncle of sexually abusing her because she was mad at them. She acknowledged having told the detective that they abused her, that her father had sex with her, put his finger inside her vagina, and touched her breasts with his hands, but added that these incidents did not actually occur and she was afraid to retract her accusations because she thought she might get in trouble. She testified that she was now telling the truth so as to keep from causing two innocent people to be sent to prison. However, the victim admitted on cross-examination that she told the prosecutor a week before trial that a letter she had written retracting her allegations was false; she had retracted her allegations in hopes of being allowed to go home. The victim also admitted telling the prosecutor the day before trial that her allegations were true and that the men did in fact abuse her.

The victim’s sister testified that the victim had told her that her father and uncle “touched her,” then asked her not to tell anyone. The sister testified that she told the detective that she saw Danny Cochran touch the victim. At trial, however, she denied having seen him touch the victim improperly, saying that she told this to the detective only because she was afraid at the time she made the statement and did not know what she was doing.

A therapist who had been treating the victim testified that the victim had described to her the sexual abuse as having really happened and that recantation is not uncommon in this type of situation.

Another psychologist, testifying as an expert witness, stated that children who have been sexually abused often recant their allegations of abuse. According to the expert:

A child says it happened and then [says] it didn’t happen. Why? Well, if you look at what happens after a child discloses, and you’ve ever known a child who has disclosed and gone through the whole process in talking with the police, dealing with the Department of Family and Children Services, their world gets turned upside down. Life is not like it was, particularly if the abuser is a family member.

The expert witness added that many times the child does not want the abuser punished and wants the person to remain in her life, or blames herself for the abuse or for the effect her disclosure has had on the family, and thinks she can remedy matters by saying she made false accusations.

Notwithstanding the victim’s and her sister’s recantations, the evidence, taken as a whole, was sufficient to find both men guilty beyond a reasonable doubt of the charged offenses.

2. David and Danny Cochran complain that their statements to the detective should have been suppressed because they were not given voluntarily due to their low intelligence levels. They note that they both were in special education classes and that they dropped out of school in the eighth and tenth grades. They add that they were not informed of the charges against them, that they were isolated from family members at the time, and that the detective told them that they were facing “thirty to forty years” in prison. After reviewing the totality of the circumstances under which the statements were made, we agree with the trial court that the statements were made voluntarily.

The question of whether a defendant waives his Miranda rights and makes a voluntary and knowing statement depends on the totality of the circumstances. On appeal, the standard of review is whether the trial court was clearly erroneous in its factual findings on the admissibility of the statement.

The evidence shows that David Cochran went to the detective’s office voluntarily, accompanied by his family, and that he was not in custody at the time he made his statement. The detective explained the allegations against David Cochran thoroughly, and David Cochran said he understood them. The detective did not read David Cochran his Miranda rights, since he was not under arrest at the time. David Cochran told the detective that he could read and write, and he wrote his own statement. David Cochran stated that he has held regular employment for the last five years and was able to follow rules. Pursuant to a court order, a psychologist evaluated David Cochran and found him to be competent to assist his attorney and to stand trial and found that he seemed to understand the psychologist’s warning that he did not have to talk.

Decided March 21, 2001.

Avrett, Ponder & Withrock, William B. Barnwell, for appellants.

Kermit N. McManus, District Attorney, Herbert M. Poston, Jr., Assistant District Attorney, for appellee.

As for Danny Cochran, the detective explained to him the allegations and explained his Miranda rights. At the detective’s request, Danny Cochran read a segment of the written warnings aloud. His reading was fine. The detective read the rest of the rights aloud. Danny Cochran then wrote part of his statement and, upon becoming emotional, asked the detective to write the rest for him. After the statement was written, Danny Cochran read it and stated that he did not want to add to, delete, or otherwise change the statement. The detective noted that Danny Cochran spoke quickly and was alert and logical when they talked initially and that it was only after the suspect learned of the extent of the allegations against him that he began speaking slowly and acting less intelligent. A psychologist found Danny Cochran competent to assist his attorney and stand trial and determined that he was able to understand instructions that he did not have to speak to the psychologist if he did not want to do so.

Following the Jackson-Denno hearing, the trial court reviewed the evidence and found that both men made their statements voluntarily. The trial court’s findings are amply supported by the evidence and, because they are not clearly erroneous, are affirmed.

Judgment affirmed.

Ruffin and Ellington, JJ, concur.

       The indictment charged David Cochran with aggravated sexual battery for penetrating the victim’s vagina with his finger and two counts of child molestation for placing his penis inside the victim’s vagina and touching her on the breasts and vaginal area.

       Danny Cochran was indicted on three counts of child molestation for placing his penis in the victim’s vagina, touching her on the breasts and vaginal area, and causing her to touch his penis.

        Sanders v. State, 245 Ga. App. 561, 562 (1) (538 SE2d 470) (2000).

       David Cochran’s handwritten statement is replete with misspelled words and is somewhat difficult to decipher. We believe, however, that his phonetic spelling has made the intended meaning at least generally ascertainable.

       See Wilson v. State, 234 Ga. App. 375 (1) (506 SE2d 882) (1998); McCormick v. State, 228 Ga. App. 467-468 (1) (491 SE2d 903) (1997).

        Henry v. State, 264 Ga. 861, 862 (2) (452 SE2d 505) (1995).

       Id.

       See id.; Attaway v. State, 244 Ga. App. 5, 7 (534 SE2d 580) (2000).


source: Caselaw Access Project

license: Public Domain

text:
    A01A0168.
    MERRITT v. THE STATE.
    (548 SE2d 427)
   Johnson, Presiding Judge.

A jury found Hope Merritt guilty of theft by taking. Merritt appeals, alleging the trial court erred by (1) failing to question each juror after the law clerk heard discussions about the case coming from the jury room before the close of evidence, (2) failing to permit him to cross-examine the victims about three lawsuits and judgments against them, and (3) denying his motion for new trial on the basis that the state withheld the case detective’s supplemental report. Because each of these enumerations of error lacks merit, we affirm.

Viewed in a light most favorable to support the jury’s verdict, the evidence shows that the victims, Reginald and Constance Johnson, employed Merritt as their accountant in 1981. In 1991, Merritt suggested the Johnsons invest in a jumbo certificate of deposit with some of his other clients. He told the Johnsons that the certificate of deposit would result in an excellent return, but that there would be no paperwork with the Johnsons’ name on it because of the nature of the investment. Over the next few years, the Johnsons gave Merritt between $200,000 and $250,000 to invest.

In 1995, the Johnsons attempted to collect their principal and interest from Merritt. By their calculations, the total amount should have exceeded $300,000. Merritt made a variety of excuses, but did not produce the money. He told the Johnsons they had to wait six months, then a year, before the money would be available. Merritt then stopped returning the Johnsons’ phone calls.

Reginald Johnson tracked down Merritt as he was moving out of his office. Merritt told Johnson that he had invested the Johnsons’ money in a brake shoe company, which the Johnsons never agreed to. Merritt then gave Johnson a copy of a stock certificate for that company, although no shares of stock were ever purchased for the John-sons. The Johnsons never got their money back, and Merritt never opened a certificate of deposit account.

The Johnsons contacted the police, who questioned Merritt. Merritt told the police that he had invested the Johnsons’ money in the brake shoe company, but could not give police an address or the name of a contact person at the brake shoe company. Merritt did not deny that he had received the money and never claimed that the money had been loaned to him by the Johnsons. At trial, Merritt testified that the Johnsons gave him the money as a loan and that he promised to repay the loan with interest, but was unable to do so.

Evidence at trial refuted Merritt’s claim. Merritt gave the John-sons receipts, documenting withdrawals as “investment[s]” and “master C.D.,” and gave the Johnsons a document entitled “Johnson Investment” which purported to record the money invested in the certificate of deposit. The state also introduced the brake shoe company stock certificate that Merritt gave to Johnson. This certificate was in Merritt’s name and was dated 1988, before the Johnsons ever gave money to Merritt.

A similar transaction witness was also introduced at trial. This witness testified that he gave $40,000 to Merritt for investment purposes, that he was told his money would be combined with that of other investors to maximize gains, that he received only two small interest payments, that Merritt never returned his phone calls, and that he lost all his money. This witness testified that the money he gave Merritt was not a loan.

Merritt claims the trial court erred in denying his motion for new trial on three different grounds. We find no basis for reversing the jury’s verdict.

1. Merritt claims the trial court erred in failing to question each individual juror after the trial court’s law clerk heard discussions apparently about the case coming from the jury room before the close of evidence. The record shows that midway through the first witness’ testimony, the jurors had been in the jury room for only two to three minutes when the law clerk heard two phrases through the door: (1) “the State did . . .” and (2) “the evidence showed. . . .” The trial judge brought the jurors into the jury box and admonished them not to deliberate before the close of evidence. The admonishment was strongly worded and promptly delivered. Merritt asked for individual questioning of each juror, which the trial court denied.

We find no error. In the present case, the partial statements overheard by the law clerk were neutral as to the parties involved and did not indicate that there had been any extrajudicial influence. They in no way indicated that the speaker was biased toward the state. More importantly, the record indicates that the jurors had been in the jury room for only two to three minutes when the comments were made and the comments occurred during a break in the testimony of the very first witness in the case. Hence, the conversation was brief in duration and could have had little effect.

Contrary to Merritt’s argument, Huff v. State does not mandate that in every instance a trial court must question each juror individually whenever there is an allegation of misconduct. Huff merely held that individual questioning of jurors is an acceptable means of rebutting a presumption of harm. In order to upset a jury verdict because of juror misconduct, the jurors’ statements must be “so prejudicial that the verdict must be deemed inherently lacking in due process.” There must be a reasonable probability that the misconduct contributed to the conviction.

We cannot conclude that any alleged juror misconduct in this case was so prejudicial as to deny due process to Merritt. While the jurors may have been prematurely discussing the case during the testimony of the first witness, there is no evidence that any juror expressed an opinion that Merritt was guilty, and there is no evidence that any juror presented extrajudicial information to other jurors or tried to persuade other jurors as to any issue or testimony. The law clerk promptly brought the misconduct to the judge’s attention, and the judge immediately admonished the jurors and gave them curative instructions. Under these circumstances, we find that the alleged juror misconduct, if it was misconduct, was not so prejudicial as to have contributed to the conviction. The trial court did not abuse its discretion.

2. Merritt contends the trial court erred in not admitting into evidence three civil judgments entered against the Johnsons. The record shows that these civil judgments arose from a failed business venture and were completely unrelated to the present case.

Clearly, when civil lawsuits are pending between parties and witnesses in a criminal case, that fact is relevant at the criminal trial to show the possibility of interest or bias between those parties. However, the lawsuits in question did not involve either Merritt or any trial witness. Merritt failed to show that the jury would have gained any relevant insight into the motives of the victims from the introduction of the disputed evidence.

Merritt argues that the Johnsons loaned him the money to keep it out of their creditors’ reach, and thus the jury needed to know about the civil judgments. Not only does the evidence contradict his contention that the money was a loan, but there is no evidence that the existence of the civil judgments against them would have made the Johnsons loan money to Merritt. In fact, the investment proposed by Merritt would serve to protect the Johnsons from their creditors just as well as a loan. The certificate of deposit was purchased in a group name, so there was no paper trail. Moreover, investing in a certificate of deposit entails considerably less risk than loaning money to an individual, and with the pending civil judgments, it is not likely that the Johnsons would have wanted to risk losing any money.

It is well established that the scope of cross-examination lies within the sound discretion of the trial court, and the trial court’s discretion will not be disturbed on appeal unless manifestly abused. The court may exercise its sound discretion in requiring counsel to make the relevancy of the questions apparent. Here, Merritt failed to make the relevancy of the civil lawsuits apparent. His unsupported allegations and assumptions do not require the trial court to find the civil lawsuits relevant. The trial court did not abuse its discretion by finding testimony concerning the civil lawsuits irrelevant and inadmissible.

3. Merritt contends the trial court erred in failing to grant his motion for a new trial because the state violated Brady v. Maryland by withholding the case detective’s supplemental report. According to Merritt, this supplemental report contradicted the victims’ testimony on the issue of venue and impeached the credibility of the victims. We disagree and find no Brady violation.

In order to establish a due process violation due to the state’s failure to provide exculpatory material, Merritt must show that the evidence withheld from him so impaired his defense that he was denied a fair trial within the meaning of the Brady rule. Specifically, he must show the following:

(1) that the State possessed evidence favorable to the defense; (2) that the defendant 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.*

Merritt has failed to carry his burden of showing a Brady violation under this standard.

The evidence at trial showed that on November 9, 1993, Merritt came to the Johnsons’ home in DeKalb County and the Johnsons gave Merritt a check for $50,000 to be invested in the certificate of deposit. Both Reginald and Constance Johnson, as well as another witness who was present at the Johnsons’ home, confirmed this transaction and specifically testified that the money was expressly given for investment purposes, not as a loan. Reginald Johnson further testified that this was the only money given to Merritt in DeKalb County. This evidence was used to establish venue in DeKalb County. Merritt denied receiving any check in DeKalb County, thus contesting venue.

The detective’s supplemental report at issue does not mention the $50,000 check and states that Johnson told the detective “around half of the funds” were given to Merritt in DeKalb County. At trial, the detective testified that the Johnsons did not mention the November 9 payment when he spoke with them. On cross-examination, he stated that the Johnsons told him how much money was stolen, but did not specifically tell him about the November 9 payment. Contrary to Merritt’s assertion, there is no contradiction in the evidence simply because the report does not mention the November 9 payment. The report was not inconsistent with the trial testimony.

Decided March 21, 2001

Finestone & Morris, Bruce H. Morris, Mark J. Kadish, for appellant.

J. Tom Morgan, District Attorney, Kristin L. Wood, Jeanne M. Canavan, Assistant District Attorneys, for appellee.

Moreover, while there may be a contradiction regarding the amount of money paid to Merritt in DeKalb County, there was evidence at trial that at least some money was paid in DeKalb County, thus establishing venue. The report is not exculpatory because it states that more money than that testified to at trial was paid to Merritt in DeKalb County. In addition, it is unclear from the trial evidence whether this statement is inconsistent with the testimony at trial. While Constance Johnson did agree on cross-examination that the November 17 payment was the only payment made in DeKalb County, she had previously testified and told the detective that she made several payments to Merritt both at his office in Fulton County and at her home in DeKalb County. Thus, the jury was authorized to infer that the Johnsons actually gave Merritt more than $50,000 in DeKalb County.

Nothing in the record indicates that the report would have been beneficial to Merritt. Any assertion that the report contained exculpatory evidence that would have affected the outcome of the trial is mere speculation which is unsupported by the record and fails to satisfy Merritt’s burden to establish a Brady violation. Furthermore, “[a] Brady violation does not exist where the information sought by the defendant becomes available at trial.” Here, the evidence about which Merritt complains came out during trial, rendering his Brady challenge meritless.

Judgment affirmed.

Ruffin and Ellington, JJ, concur.

       In 1993, Merritt returned $33,000 to the Johnsons so they could purchase a car. He also made one payment of $2,500 to the Johnsons.

       239 Ga. App. 83 (519 SE2d 263) (1999).

       Id. at 88 (3).

       (Citations and punctuation omitted.) Bobo v. State, 254 Ga. 146 (1) (327 SE2d 208) (1985).

       Id.

        See Boggs v. State, 195 Ga. App. 605 (394 SE2d 401) (1990).

       See Yarbrough v. State, 241 Ga. App. 777, 782 (5) (527 SE2d 628) (2000).

        Calloway v. State, 199 Ga. App. 272, 274 (5) (404 SE2d 811) (1991).

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

        Smith v. State, 234 Ga. App. 586, 591 (4) (506 SE2d 406) (1998).

       (Citations omitted.) Zant v. Moon, 264 Ga. 93,100 (3) (440 SE2d 657) (1994); Ramsay v. State, 220 Ga. App. 618, 624 (6) (469 SE2d 814) (1996).

       This is clearly the wrong date based on the evidence.

       See Smith, supra at 591 (4) (a).

       (Citations and punctuation omitted.) Johnson v. State, 244 Ga. App. 128, 133 (2) (534 SE2d 480) (2000).


text:
    A01A0285.
    TAYLOR v. THE STATE.
    (548 SE2d 414)
   Johnson, Presiding Judge.

Patrick Taylor was indicted for statutory rape in that he had sexual intercourse with the victim, who was under 16 years of age and was not his spouse. Taylor pled guilty to the charge, but later filed a motion to withdraw his guilty plea and another motion for a court-ordered DNA test of sperm found in the victim’s vagina. The trial court denied the plea withdrawal motion, but did not rule on the DNA test motion. Taylor appeals, challenging the court’s denial of his motion to withdraw his plea and failure to order a DNA test. Taylor’s challenges are without merit, and we therefore affirm the judgment of the trial court.

1. Taylor claims he should be allowed to withdraw his plea because the court erred in failing to record a bench conference that it held with the defense and prosecuting attorneys prior to the plea hearing. Under Uniform Superior Court Rule 33.11, there must be a verbatim recording of the proceedings at which the defendant enters his guilty plea. But there is no requirement that there be such a recording of a pre-trial conference.

The record before us complies with USCR 33.11 in that it contains a verbatim transcript of the guilty plea hearing at which the trial judge advised Taylor of his rights and inquired into the voluntariness and accuracy of the plea. The absence of a transcript of the pre-hearing bench conference is not error.

2. Taylor alleges that the court should have granted his motion to withdraw his plea because at the pre-hearing bench conference the trial judge inappropriately participated in the plea negotiations. There is no evidence in the record to support this allegation. On the contrary, statements made by the trial judge at the hearing on Taylor’s motion to withdraw his plea reveal that at the bench conference the judge did nothing more than indicate to the defense and prosecuting attorneys whether she was likely to concur in their proposed disposition of the case. This is precisely the sort of information that the judge is allowed to give to the parties who have reached a plea agreement.

3. Taylor contends that he is entitled to withdraw his plea because at the plea hearing the judge failed to satisfy herself on the record that there was a factual basis for the statutory rape charge. The contention is without merit.

At the plea hearing, the judge informed Taylor that he was charged with statutory rape under the indictment. Taylor then told the judge that he understood the nature of the charge, and he expressly waived his right to have the indictment read in open court.

The judge next asked the prosecutor for the factual basis for the charge. The prosecutor informed the court that when Taylor was 34 years old he had sexual intercourse with the 13-year-old victim, that the victim’s grandmother discovered that they had engaged in sex, and that she also found letters written by Taylor and the victim discussing the fact that they had engaged in sexual intercourse. After the prosecutor’s recitation of the facts, Taylor entered his guilty plea, which the court accepted.

Before imposing sentence, the court asked Taylor if he wanted to say anything. Taylor told the court that he had not actually put his penis inside the victim and that he was sorry. The court announced its sentence and then told Taylor that his claim that he had not inserted his penis would be a defense to the charge. The judge asked him if he still wanted to plead guilty, and he again said that he did not put his penis inside the victim.

The prosecutor then informed the court that on one occasion the grandmother walked in on Taylor and the victim together, that she took the victim to a hospital, and that at the hospital sperm was found in the victim’s vagina.

Thereafter, Taylor again told the court that he wanted to plead guilty. The judge told Taylor that at that point she would allow him to withdraw his plea. But Taylor stated that he did not want to withdraw it.

Based on the allegations in the indictment, the statements made by the prosecutor about the state’s evidence, and Taylor’s statements that he understood the charge and wanted to plead guilty and did not want to withdraw his plea, the trial court properly found a factual basis to support the plea.

4. Taylor complains that the court erred in denying his motion to withdraw the plea on the ground that he did not have a chance to discuss his plea with his attorney. This complaint is not only unsupported, but is contradicted by the record.

The transcript of the plea hearing reveals that Taylor told the court that he had discussed the case with his attorney, that his attorney had counseled him on the charges and possible defenses, that his attorney had discussed his rights with him, that he believed his attorney had acted competently, and that he was satisfied with his attorney’s guidance.

Furthermore, the attorney told the court that he had explained all of Taylor’s rights to him and that Taylor understood his rights, that after consulting with Taylor he saw no reason why Taylor should not enter his guilty plea, that Taylor understood the nature of the crime charged and the implications of a guilty plea, and that Taylor was making the plea freely and voluntarily.

Given the statements of both Taylor and his attorney, we find no evidence to support Taylor’s claim that he did not have an opportunity to discuss the case and plea with his attorney.

5. Taylor asserts that he is entitled to withdraw his plea because his trial counsel was ineffective in failing to request a DNA test of the sperm found in the victim’s vagina. Again, Taylor has failed to support his assertion with any evidence in the record.

At the hearing on his motion to withdraw his guilty plea, Taylor’s only evidence was his own testimony, which did not include any explanation of the attorney’s decision not to seek a DNA test. Moreover, Taylor failed to call his trial counsel as a witness at the hearing. Absent any testimony from the attorney explaining his decision not to seek a DNA test, we presume the decision was tactical. And because Taylor has presented no other evidence to the contrary, he has failed to carry his burden of proving ineffective assistance of counsel.

6. Taylor argues that the court erred in denying his motion for a DNA test of the sperm found in the victim’s vagina. The record before us, however, contains no such ruling by the trial court.

While there is a written motion for such a test in the record, Taylor made no argument concerning this motion at the hearing held after his motion was filed. Rather, at that hearing Taylor made arguments only in support of his plea withdrawal motion, which the court denied. And he did not invoke a ruling on the DNA test motion prior to his appeal. In fact, the record contains a letter sent from the trial judge’s chambers to Taylor’s attorney indicating that the judge would not rule on the DNA motion because it was not argued at the hearing and the notice of appeal had already been filed. Without a ruling by the trial court, there is nothing for this court to review.

Judgment affirmed.

Ruffin and Ellington, JJ, concur.

Decided March 21, 2001.

Lloyd J. Matthews, for appellant.

Robert E. Keller, District Attorney, Bonnie K. Smith, Assistant District Attorney, for appellee.

       See USCR 7.3.

       See USCR 33.5 (B).

       See Jackson v. State, 271 Ga. 705, 706-707 (2) (523 SE2d 871) (1999); Swantner v. State, 244 Ga. App. 372, 373-374 (1) (535 SE2d 343) (2000).

       See McCloud v. State, 240 Ga. App. 335, 336 (2) (525 SE2d 701) (1999) (defendant’s plea free and voluntary based in part on his statement to court that he had discussed case with his lawyer); Hammonds v. State, 218 Ga. App. 423-424 (1) (461 SE2d 589) (1995) (defendant’s claim that counsel did not adequately discuss plea with him contradicted by counsel’s testimony that they discussed plea offer several times).

        Veal v. State, 242 Ga. App. 873, 877 (5) (a) (531 SE2d 422) (2000).

        See Parkman v. State, 241 Ga. App. 756, 758 (4) (526 SE2d 640) (2000); Jones v. State, 230 Ga. App. 65, 66-67 (2) (495 SE2d 327) (1997).

        Medlock v. State, 264 Ga. 697, 698 (449 SE2d 596) (1994) (failure to invoke ruling on motion results in waiver of issue for appeal); Sales v. State, 199 Ga. App. 791, 792 (2) (406 SE2d 131) (1991) (where no ruling by trial court there is nothing for appellate review).


text:
    A01A0733.
    CARVER v. THE STATE.
    (548 SE2d 629)
   Johnson, Presiding Judge.

Jimmy Carver appeals from his conviction of possessing cocaine. He challenges the sufficiency of the evidence supporting the conviction and the trial court’s admission of evidence of a similar transaction. Because the challenges are without merit, we affirm Carver’s conviction.

1. On appeal from a criminal conviction, we review the evidence in the light most favorable to the verdict and no longer presume that the appellant is innocent; moreover, we only determine the sufficiency of the evidence and do not weigh the evidence or determine witness credibility. In reviewing the sufficiency of the evidence, we decide whether a rational trier of fact could have found beyond a reasonable doubt that the appellant is guilty of the crime charged.

In the instant case, the evidence shows that police officers executed a search warrant at the home of Carver and his wife, Rita Carver. When the officers entered the house, they found Carver and a woman named Regina Henderson near the kitchen, and Rita Carver was in the living room. The officers immediately secured the Carvers. But Henderson ran into the Carvers’ master bedroom, where an officer apprehended her.

The officers then searched the house. In the Carvers’ master bedroom, on top of a dresser, they found a spoon with white powder residue on it, along with a jewelry box containing 1.4 grams of cocaine and syringes. Also in the bedroom, the officers discovered a purse containing syringes and vials filled with liquid, digital scales, a skull-shaped pipe, a box of unopened syringes, a gun, two switchblade knives, and a container of a substance commonly mixed with cocaine to lessen its purity.

The state also introduced evidence of Carver’s prior drug conviction. That similar transaction evidence showed that about four years earlier, police officers executed a search warrant at the Carvers’ house. In the house, the officers found the Carvers and a third person. The officers searched the Carvers’ master bedroom, where they discovered methamphetamine, marijuana, scales, vials containing methamphetamine residue, a spoon, hypodermic needles, and several guns. The similar transaction evidence also included Carver’s statement to police that he had been selling methamphetamine for about a year.

Decided March 21, 2001.

Michael R. McCarthy, for appellant.

KermitN. McManus, District Attorney, Susan L. Franklin, Assistant District Attorney, for appellee.

Having reviewed the evidence in the light most favorable to the verdict, we find that a rational trier of fact could have found Carver guilty beyond a reasonable doubt of possessing the cocaine found in his and his wife’s bedroom. The similar transaction evidence was sufficient to negate Carver’s claim of equal access. Because the jury’s verdict is supported by sufficient evidence, Carver’s conviction is affirmed.

2. Carver claims that the court erred in admitting the similar transaction evidence because its prejudice outweighed its probative value. Contrary to this claim, the circumstances surrounding the prior and current drug offenses are so similar that the trial court did not abuse its discretion in admitting evidence of the prior crime to show identity, intent, motive, modus operandi, plan, scheme, and course of conduct. The court properly found that the probative value was not outweighed by the prejudice of such evidence.

Judgment affirmed.

Ruffin and Ellington, JJ, concur.

        Robinson v. State, 231 Ga. App. 368, 371 (5) (498 SE2d 579) (1998).

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

       See Carlisle v. State, 242 Ga. App. 253, 254-255 (1) (529 SE2d 385) (2000).

       See White v. State, 225 Ga. App. 74, 76 (3) (483 SE2d 329) (1997).

       See Smith v. State, 232 Ga. App. 290, 291-297 (1) (501 SE2d 523) (1998).

       Id.


text:
    A01A0753.
    BURKETT v. ESTATE OF BURKETT.
    (548 SE2d 628)
   Johnson, Presiding Judge.

Rosie Burkett, as the surviving spouse of Milton Burkett, filed a petition for year’s support. An adult child of the decedent filed a caveat to the petition. Following a bench trial, the probate court awarded Rosie Burkett a year’s support, but stated that due to her separate income, estate and benefits, the entire estate should not be set apart to her as year’s support. The trial court awarded her a life estate in the property where she lives, as well as full interest in and to the household furnishings, goods and appliances. She appeals, alleging the trial court erred in failing to set aside the entire estate on her behalf.

Decided March 21, 2001.

Melvyn J. Williams, for appellant.

J. Michael Cranford, for appellee.

Pursuant to OCGA § 53-3-7, the probate court was required to set aside a sufficient amount from the estate for Rosie Burkett’s support and maintenance for the period of 12 months from the date of Milton Burkett’s death. The statute notes that a sufficient amount is that amount necessary to maintain the standard of living that Rosie Burkett had prior to Milton Burkett’s death and mandates that, in determining that amount, the probate court shall consider (1) the support available to Rosie Burkett from sources other than year’s support, including but not limited to the principal of any separate estate and the income and earning capacity of Rosie Burkett, and (2) such other relevant criteria as the court deems equitable and proper. A probate court’s determination regarding the amount to be awarded as year’s support will be upheld by this Court absent an abuse of discretion.

In the present case, it is clear from the exhibits and the parties’ briefs that the parties presented the probate court with differing assessments of Rosie Burkett’s needs and her standard of living prior to her husband’s death. However, a transcript of the probate court’s hearing on these issues has not been included in the record on appeal. In the absence of a transcript, we must assume that the probate court’s actions would be supported by the record. We cannot conclude based on the record before us that the probate court abused its discretion in failing to set aside the entire estate in favor of Rosie Burkett.

Judgment affirmed.

Ruffin and Ellington, JJ., concur.

       Effective January 1, 1998, as provided in OCGA § 53-1-1, the year’s support criteria are set out in OCGA § 53-3-7 rather than OCGA § 53-5-2. See Richards v. Wadsworth, 230 Ga. App. 421, 422 (2) (496 SE2d 535) (1998).

       OCGA § 53-3-7 (c).

        McClure v. Mason, 228 Ga. App. 797, 799 (2) (493 SE2d 16) (1997).

        In re Estate of Gordon, 239 Ga. App. 306, 307 (3) (521 SE2d 223) (1999); Gary v. Weiner, 233 Ga. App. 284-285 (1) (503 SE2d 898) (1998).


author: Smith, Presiding Judge.

text:
    A00A2540.
    KELLEY v. THE STATE.
    (548 SE2d 357)
   Smith, Presiding Judge.

This appeal arises out of the trial court’s imposition of a sentence following a jury trial in which Kenneth Jeffrey Kelley was convicted of aggravated assault and battery. Kelley contends that he should have been sentenced only on the battery conviction. Kelley, who had previously entered a guilty plea to charges of aggravated assault and aggravated battery but had withdrawn the plea, also argues that the trial court erroneously imposed a greater sentence following the trial of the case than was imposed following his guilty plea. We find no error with respect to either of these arguments, and we affirm.

Kelley was indicted on charges of aggravated assault (OCGA § 16-5-21) and aggravated battery (OCGA § 16-5-24). The case went to trial, but following the testimony of several of the State’s witnesses, he entered into a negotiated guilty plea to both charges. The trial court sentenced Kelley to 20 years on the aggravated assault charge, with five to be served in prison and the remainder on probation. He received the same sentence on the aggravated battery conviction, to run concurrently with the sentence imposed on the aggravated assault conviction. The court allowed Kelley to serve the sentence as a first offender. Kelley subsequently filed a motion to withdraw the plea and by consent order was permitted to do so.

Kelley was then tried by a jury and convicted of aggravated assault and battery. He was sentenced to 15 years on Count 1, the aggravated assault charge, with ten to be served in prison and the balance on probation. He was sentenced to 12 months on the battery conviction, to run concurrently with the sentence imposed on Count 1. From this sentence he appeals.

1. Kelley first contends that he “was improperly sentenced for the offense of aggravated assault as the jury found him guilty of the lesser included misdemeanor offense of battery as set forth in the court’s charge to the jury.”

This case arose out of a barroom incident during which Kelley struck the victim on the head with a beer mug, fracturing the victim’s skull and requiring surgery to remove bone fragments from his brain. Count 1 of the indictment against Kelley charged him with committing aggravated assault in that he assaulted the victim with “a glass beer mug, which, when used offensively against another person is likely to result and did result in serious bodily injury.” In Count 2, he was charged with the offense of aggravated battery by maliciously causing “bodily harm to [the victim] by seriously disfiguring a member of his body.”

Kelley’s argument on appeal arises out of the trial court’s charge to the jury concerning the law related to these counts. The trial court defined “assault” as an attempt to commit a violent injury to another person or an act placing another person in reasonable apprehension of immediately receiving a violent injury. The court then explained that a person commits aggravated assault when he or she assaults another person with a deadly weapon or with a “device or instrument, which when used offensively against a person is likely or actually does result in serious bodily injury.”

In a similar manner, the court instructed the jury on the law concerning aggravated battery, tracking the applicable language of OCGA § 16-5-24. The court also correctly defined battery, stating that “[a] person commits the offense of battery when that person intentionally causes substantial physical harm or visible bodily harm to another.” See OCGA § 16-5-23.1 (a).

The court then charged the jury that if it believed Kelley to have committed aggravated assault, it would be authorized to find him guilty but that if the jury had a reasonable doubt as to his guilt, it would be the jury’s duty to acquit him. The court presented a third option to the jury, instructing the jury that “[i]f you do not believe beyond a reasonable doubt that the Defendant is guilty of aggravated assault but do believe beyond a reasonable doubt that the Defendant is guilty of battery, then you would be authorized to find the Defendant guilty of battery.”

With respect to the aggravated battery charge, the trial court similarly instructed the jury that if it believed Kelley to have committed the crime of aggravated battery, it would be authorized to convict him of that charge but that if it had a reasonable doubt concerning his guilt, it must acquit him on the charge of aggravated battery. Also, just as the court instructed the jury concerning the possibility of convicting Kelley of battery on the aggravated assault charge, the court stated that if the jury did not believe beyond a reasonable doubt that Kelley was guilty of aggravated battery but did believe beyond a reasonable doubt that he was guilty of the lesser included offense of battery, the jury would be authorized to convict him of battery. The court then explained the verdict form to the jury, stating that “three possible verdicts” existed for each count: not guilty, guilty, or guilty of battery.

Kelley argues that under this charge, “the jury was instructed that a finding of guilty on battery equated to a finding of not guilty on the felonies charged in both counts” and that because he was found guilty of battery on Count 2, he “must be determined to have been found not guilty of the offense of aggravated assault.” We do not agree. The import of the trial court’s instructions was not that a finding of guilty of battery on either count authorized a finding of not guilty on both felonies. The court clearly, specifically, and separately charged the jury concerning each count and instructed the jury that with respect to each count, it might be authorized to find Kelley guilty of battery. The charge was not unclear or ambiguous concerning the options given the jury or the effect of a finding of a guilty verdict on the lesser included offense of battery.

Furthermore, the verdict form provided clear options to the jury. The form gave the jury three choices with respect to each count. As to Count 1, the verdict form permitted the jury to find Kelley not guilty, guilty, or “not guilty of aggravated assault but guilty of battery.” Similarly, with respect to Count 2, the form provided that the jury could find Kelley not guilty, guilty, or “not guilty of aggravated battery but guilty of battery.” The form was clearly marked by the jury finding Kelley “guilty” of aggravated assault and “not guilty of aggravated battery but guilty of battery.” While a defendant is certainly “entitled to the benefit of the doubt in the construction of an ambiguous verdict [cit.],” Lindsey v. State, 262 Ga. 665, 666 (1) (424 SE2d 616) (1993), the verdict here unambiguously showed that Kelley was convicted of both aggravated assault and battery. We find no error.

We note Kelley’s “suggestion” in his appellate brief “that he could not have been sentenced on two counts of battery had he been convicted on battery as a result of the two counts as there was in actuality only one ‘battery.’ ” But he was not convicted of battery on each count. He was convicted on one count of aggravated assault and one count of battery.

The jury’s finding of aggravated assault on Count 1 was clearly supported by the evidence. The State showed that Kelley assaulted the victim with an object, here, a beer mug, which when used offensively against a person could result in serious bodily injury. This constituted evidence of aggravated assault as defined by OCGA § 16-5-21 (a) (2). Physical contact is not a required element of aggravated assault. Anderson v. State, 170 Ga. App. 634-635 (317 SE2d 877) (1984). Battery has different elements. As defined in OCGA § 16-5-23.1, it requires the State to show that a defendant intentionally caused “substantial physical harm or visible bodily harm to another.” The State presented ample evidence of Kelley’s intent to cause such harm to the victim.

Finally, we note that even if, as suggested by Kelley, the trial court were required to merge the aggravated assault conviction and the battery conviction, the court would have been authorized to merge the misdemeanor into the felony, rather than vice versa. See Helmeci v. State, 230 Ga. App. 866, 869-870 (3) (498 SE2d 326) (1998).

2. Kelley also contends that the trial court erroneously increased his sentence from that entered following his guilty plea, in violation of North Carolina v. Pearce, 395 U. S. 711 (89 SC 2072, 23 LE2d 656) (1969). In Pearce, the Supreme Court stated that when a defendant has successfully attacked a guilty verdict and has been found guilty upon retrial, if the trial judge imposes a greater sentence following retrial than that previously entered, the judge’s

reasons for . . . doing so must affirmatively appear. Those reasons must be based upon objective information concerning identifiable conduct on the part of the defendant occurring after the time of the original sentencing proceeding. And the factual data upon which the increased sentence is based must be made part of the record, so that the constitutional legitimacy of the increased sentence may be fully reviewed on appeal.

Id. at 726. Under Pearce, the failure to state on the record reasons for enhancing a sentence raises a presumption that the trial court’s motive for increasing the sentence was vindictive. As discussed above, after he pled guilty, Kelley was sentenced to 20 years, with five to be served in prison and the remainder on probation. Following his trial, he was sentenced to 15 years, with ten to serve and the remainder on probation. Kelley contends that the second sentence violates Pearce, arguing that “there is no evidence of any aggravating nature which occurred between imposition of the first and second sentences.”

We first note that in Alabama v. Smith, 490 U. S. 794 (109 SC 2201, 104 LE2d 865) (1989), the Supreme Court found Pearce to be inapplicable to the circumstance where an accused pled guilty and was sentenced, but later went to trial and received a greater sentence than that imposed after the guilty plea. The Court expressly held that “when a greater penalty is imposed afer trial than was imposed after a prior guilty plea, the increase in sentence is not more likely than not attributable to the vindictiveness on the part of the sentencing judge.” Id. at 801. Consequently, Pearce does not apply in this case. We note that neither Kelley nor the State makes any mention of Smith in their appellate briefs.

Furthermore, even if Pearce were applicable, the trial court discussed at fairly great length the reasons for its sentence. The court stated that during “the last hour or hour and a half, two hours,” it “kept looking” for a showing of remorse. The court noted that Kelley “took somebody’s skull off” and that even if Kelley’s defense was justification, he could still be remorseful that he had so injured the victim. The court also discussed a remark that Kelley had made while testifying. Kelley referred to the victim and other men with the victim as “the prosecutor’s three dudes.” The court stated that this remark by Kelley reflected “a great deal about your attitude toward those three men.” The court also noted that Kelley showed resentment toward the victim, a foreigner. The trial court sufficiently stated the reason for the sentence, and we can safely determine that the sentence was not based on any vindictive motive of punishing Kelley for proceeding to trial.

Decided March 6, 2001

Reconsideration denied March 22, 2001

Banks, Stubbs, Neville & Cunat, Rafe Banks III, for appellant.

Philip C. Smith, District Attorney, Sandra A. Partridge, Assistant District Attorney, for appellee.

We find no error with respect to the sentences imposed upon Kelley, and we therefore affirm.

Judgment affirmed.

Johnson, P. J., and Phipps, J., concur.


text:
    A01A0115.
    THOMPSON et al. v. CITY OF FITZGERALD et al.
    (548 SE2d 368)
   Johnson, Presiding Judge.

Following a period of heavy rains, seven-year-old Shonda Thompson fell into the swollen waters of a creek which runs adjacent to her home and drowned. Rosie Thompson and Clark Thompson, as parents of Shonda and as administrators of her estate, and Thomas Everett, as temporary administrator of the estate of Clark Thompson, sued the City of Fitzgerald and the Fitzgerald Water Department. The City of Fitzgerald moved for summary judgment, which the trial court granted. The plaintiffs appeal the trial court’s order. Because no genuine issue of material fact exists regarding the City of Fitzgerald’s liability, we affirm the trial court’s grant of summary judgment to the City.

On appeal of the grant of summary judgment, this Court applies a de novo review of the evidence to determine whether any question of material fact exists. Summary judgment is appropriate where the moving party can show that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. A defendant meets this burden by

showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff’s case. . . . All of the other disputes of fact are rendered immaterial.

If the moving party discharges this burden, the nonmoving party cannot rest on its pleadings, but must point to specific evidence giving rise to a triable issue.

In the present case, the evidence shows that the City of Fitzgerald did not own the creek or have legal control of the property surrounding the creek. While the City occasionally cleaned out or dredged the creek when it became clogged and caused flooding to adjacent property, this action was performed only at the request of those landowners. However, the City did not and does not otherwise maintain the creek. In addition, although some of the City’s drainage system flows into the creek, since it is the low point in that area of town, there is no evidence that the City has done anything to cause the volume of water in the creek to exceed that which would naturally occur.

1. The appellants claim that the trial court erred in granting the City of Fitzgerald’s motion for summary judgment on the issue of negligence. Since there is no evidence of causation in this case, the trial court did not err.

In this case, the direct cause of Shonda’s death was drowning resulting from a large quantity of swiftly flowing water. The question to be answered is whether any act or omission on the part of the City of Fitzgerald reasonably contributed, wholly or partly, to the situation which caused Shonda’s death. To answer this question we must look to the evidence and determine (1) the cause of the creek’s increased volume and (2) who was in control of the creek and responsible for its maintenance.

As to the cause of the creek’s increased volume, the appellants provided evidence that the City’s drainage system ultimately finds its way into the creek. However, the appellants failed to provide any evidence showing that this design is flawed or that this design causes or contributes to the creek’s increased water level beyond that which would occur naturally. There is also no evidence that the City’s action in occasionally cleaning out the creek at the request of adjacent landowners in any way contributed to Shonda’s death.

As to the question of control and maintenance, the appellants contend that the City had a duty to maintain the creek and failed to perform this duty. Although the City occasionally dredged or cleaned out the creek, there is no evidence that the City was responsible for maintaining the creek. The determination of who was responsible for the upkeep and maintenance of the creek, and thus who would have been negligent in failing to properly maintain it, rests on who owned the property that was the site of the creek and, most particularly, who had legal control over the premises. As this Court has previously stated,

Control as used by the cases equates with a right to possess or exercise dominion over another’s property, not the mere act of providing upkeep thereon. Otherwise, if one neighbor periodically but voluntarily cuts part of another neighbor’s lawn he might be found in control of that portion of the other’s yard for a period of time other than when he was actually performing upkeep. Instead, such party is not liable for a defective or dangerous condition on the land unless he was actually negligent by creating, causing or contributing to the dangerous situation.

In the present case, it is undisputed that the City neither owned nor had legal control of the creek. The appellants have failed to produce any evidence suggesting that the City had a right to possess or exercise dominion over the creek. Thus, there was no basis for the City’s liability at any time other than when it was physically present on the property. The trial court did not err in granting the City of Fitzgerald’s motion for summary judgment on this ground.

2. The appellants claim that the trial court erred in granting the City of Fitzgerald’s motion for summary judgment on the issue of public nuisance. This contention fails because the creation or maintenance of a nuisance chargeable to the City cannot exist absent action by the City or a failure to act when under a legal duty to do so.

The Supreme Court has set out three guidelines to define a nuisance for which a city may be held liable. First, the defect or degree of misfeasance must be to such a degree as would exceed the concept of mere negligence. Second, the act must be of some duration, and the maintenance of the act or defect must be continuous or regularly repetitious. Third, the city must have failed to act within a reasonable time after knowledge of the defect or dangerous condition.

The defect or misfeasance alleged by the appellants in this case is that the creek in which Shonda drowned was a public nuisance because it caused flooding to the homes, streets, and the ditch in which their daughter drowned. There is no dispute that the City did not own or maintain the creek. However, the appellants allege that (1) the City designed the city roadways to drain into drainage ditches that flowed to the lowest point in the city, which is where this creek is located, and (2) the City knew that the creek was prone to flooding yet failed to remedy the situation. While the appellants contend that the City’s actions in designing the city rights-of-way and drainage ditches to flow into this creek caused a continuous nuisance by causing flooding to surrounding homes and streets, there is no evidence that the City has done anything to contribute to the rise of water in the creek or to otherwise affect the natural drainage pattern and the volume of water in the creek and its environs.

Unlike the cases cited by the appellants, there is no evidence here that the City created any condition which contributed to or caused Shonda’s death. There is no evidence supporting the appellants’ contention that the City’s water drainage system is flawed. And, the record is devoid of any evidence suggesting that the City of Fitzgerald had a right to possess or exercise dominion over the creek. Furthermore, there is nothing to suggest that the City’s occasional removal of debris from the creek in any way contributed to Shonda’s death.

Moreover, a public nuisance is one which damages all persons who come within the sphere of its operation, though it may vary in its effects on individuals. This language does not mean that every person in the area must have been actually hurt or injured to show a public nuisance; it is sufficient if the public nuisance injures those of the public who may actually come into contact with it. The undisputed evidence shows that no other person has ever been personally injured as a result of the creek’s increased water volume. “Inasmuch as a public nuisance must injure all members of the public who come into contact with it, the evidence to the contrary effectively erased [the appellants’] public nuisance cause of action.”*

3. The appellants contend the trial court erred in entering final judgment in favor of the City of Fitzgerald because the trial court did not address their public nuisance argument. This contention lacks merit. While the trial court’s order does not specifically use the word “nuisance,” it does grant the City’s motion for summary judgment and finds that the City is entitled to summary judgment as a matter of law. The order does not limit the trial court’s finding to the appellants’ negligence claim, nor does it reserve a ruling as to the appellants’ public nuisance claim. Since the trial court is not required to make findings of fact and conclusions of law in ruling on a motion for summary judgment, and because we found in Division 2 that the appellants’ public nuisance claim was not supported by the evidence, the trial court did not abuse its discretion in issuing a final order pursuant to OCGA § 9-11-54 (b).

Decided March 7, 2001

Reconsideration denied March 22,2001.

Salter, Shook & Craig, Mitchell M. Shook, Jason A. Craig, for appellants.

Whelchel, Whelchel & Carlton, James C. Whelchel, Walters, Davis & Pujadas, J. Harvey Davis, for appellees.

Judgment affirmed.

Ruffin and Ellington, JJ, concur.

        Moore v. Food Assoc., 210 Ga. App. 780 (437 SE2d 832) (1993).

       OCGA § 9-11-56 (c).

        Lau’s Corp. v. Haskins, 261 Ga. 491 (405 SE2d 474) (1991).

        Febuary v. Averitt Properties, 242 Ga. App. 137 (528 SE2d 880) (2000).

        Housing Auth. of Atlanta v. Famble, 170 Ga. App. 509, 515 (317 SE2d 853) (1984).

       Id. at 521-522 (2) (a).

       See id. at 522.

        City of Bowman v. Gunnells, 243 Ga. 809, 811 (2) (256 SE2d 782) (1979).

       OCGA § 41-1-2.

        City of Douglasville v. Queen, 270 Ga. 770, 774 (4) (514 SE2d 195) (1999).

       (Citations and punctuation omitted.) Id.; see also Howard v. Gourmet Concepts Intl., 242 Ga. App. 521, 523 (1) (b) (529 SE2d 406) (2000).

       See Thomas v. DeKalb County, 227 Ga. App. 186, 188 (1) (489 SE2d 58) (1997).


author: Pope, Presiding Judge.

text:
    A00A2114.
    SUNTRUST BANK v. FLETCHER et al.
    (548 SE2d 630)
   Pope, Presiding Judge.

SunTrust Bank, Atlanta and the Fletcher-Fakhrzadeh partnership (“Fletcher”) each own separate parcels of property near the corner of a larger tract that includes a shopping mall. Their parcels are located on each side of a third parcel located at the corner of the larger tract; the corner property is not involved in this dispute. Fletcher also owns a small piece of property that used to be part of the mall parking lot, which adjoins both its own and the SunTrust parcel. SunTrust and Fletcher both have rights to use that small parcel but dispute exactly what those rights are. SunTrust filed suit first, and the trial court ruled on cross-motions for summary judgment upholding each party’s claim of right to use the disputed property in certain ways. SunTrust appeals, essentially claiming that the court’s order allows Fletcher to block SunTrust’s use of the property. Fletcher has not cross-appealed.

Resolution of this case requires an examination of the history of the entire large tract. The original roughly triangular-shaped property, once owned by a developer, forms almost a right angle at the corner of Powers Ferry and Terrell Mill Roads in Cobb County. But the small, roughly square parcel located at that corner did not belong to the developer.

On March 22,1973, the developer conveyed to SunTrust’s predecessor in title, also a bank, a parcel, known as Tract A, on the Powers Ferry side of the corner property, together with the following easement: “a non-exclusive easement license, right and privilege of passage for pedestrians and vehicular ingress and egress over and across all portions of the common areas of the adjacent shopping center owned by Grantor. . . .” In the same deed, the developer retained certain rights with the following words: “The adjacent property owner shall have the right to relocate buildings, walkways and parking areas in any manner whatsoever and the easement. . . shall then apply to the area so established” (Emphasis supplied.) The only “adjacent property owner” at the time was the developer that owned the remainder of the large parcel. Pursuant to the rights acquired in the deed, the predecessor bank built a drive-through lane emptying onto the mall parking lot that has been in continuous use since 1973.

On October 31, 1973, the developer conveyed to Fletcher’s predecessor in title a parcel, known as Tract B, on the Terrell Mill side of the corner property together with an almost identical easement and an almost identical restriction. Again, the only “adjacent property owner” relative to Tract B was the developer. Tract A and Tract B did not adjoin each other at that time.

On December 18, 1973, the developer conveyed most of the remainder of the original property, the shopping mall, to an insurance company. That parcel is known as Tract C, and it includes all portions of the original property that were adjacent to either Tract A or Tract B. The deed expressly noted that it was subject to the two deeds and, therefore, the two easements.

On January 31, 1975, the insurance company conveyed a small part of the shopping mall parking lot located behind Tract B, only 0.06 acres, to Fletcher’s predecessor in title, and that conveyance has led to the dispute in this case. That parcel, known as the Disputed Tract, adjoins both Tract A and Tract B. Included in the deed was the following clause:

The property herein conveyed shall be used for vehicular and pedestrian ingress and egress and parking in common with all tenants of the adjacent shopping center, their employees, licenses [sic], customers and all others and not for any other purpose unless prior written consent for any use is obtained from the Owner of the adjacent shopping center, its successors and assigns, which consent shall not be unreasonably withheld.

(Emphasis supplied.) And the deed stated that it was subject to all easements of record in Cobb County. After this transfer, the back of SunTrust’s property adjoined both the Disputed Tract and the mall parking lot. But, part of the bank’s drive-through lane empties onto the Disputed Tract.

In November 1996, Fletcher purchased Tract B and the Disputed Tract. The Disputed Tract never had marked parking on it prior to that time. After the Georgia Department of Transportation began a project to widen both Terrell Mill and Powers Ferry Roads, thereby reducing the amount of available parking on the front of Fletcher’s property, Fletcher relocated some of its parking to the Disputed Tract. Eventually Fletcher parked a car in such a way so that it blocked SunTrust’s egress onto the Disputed Tract. SunTrust’s customers could still exit onto the mall property because the Disputed Tract covers only part of the area that the bank has available for exiting onto that property.

SunTrust’s suit sought a declaration that it had an express easement over the Disputed Tract and an injunction to prevent Fletcher from interfering with SunTrust’s right to use the easement. Each party moved for summary judgment.

In its final order, the trial court ruled:

[Fletcher’s] Motion for Summary Judgment is GRANTED as to [Fletcher’s] right to locate parking on the disputed property, subject to the right of [SunTrust] and the adjacent shopping center to utilize any of these parking spaces [Fletcher] may place on the disputed property as well as [SunTrust’s] easement right to utilize the remaining portion of the disputed property for ingress and egress. Further [SunTrust’s] Cross Motion for Summary Judgment is GRANTED as to [SunTrust’s] claim to an easement for ingress and egress over those portions of the disputed property not used for parking in common with [Fletcher] and the adjacent shopping center.

The clear terms of the deed to the Disputed Tract provide that that tract may be used for parking in common with the adjacent shopping mall. And Fletcher owns that tract in fee simple. Thus, there is no question that Fletcher has the right to place parking on the Disputed Tract. And, because there is no cross-appeal, there is no dispute that SunTrust has an easement across the Disputed Tract. Therefore, the trial court correctly held that Fletcher had the right to locate parking on that tract but that it must respect SunTrust’s easement for ingress to and egress from its property. Fletcher may not situate parking in a way that would prevent SunTrust customers from exiting the bank onto the Disputed Tract and then onto an area marked for vehicular passage on the mall property.

The only issue remaining is whether Fletcher has succeeded to the reservation of rights, related to SunTrust’s easement, retained by the developer in the original transaction. The answer to that question will determine whether Fletcher has a right to place parking on the Disputed Tract in such a way that SunTrust is required to alter the exact location of its egress onto the Disputed Tract. In interpreting an express easement, “the rules of contract construction apply. The construction of a contract is a question of law for the court. The cardinal rule of construction is to ascertain the parties’ intent. Parol evidence may not be considered unless the written instrument is ambiguous.” (Footnotes omitted.) Irvin v. Laxmi, Inc., 266 Ga. 204, 205 (1) (467 SE2d 510) (1996).

In the March 22, 1973 deed to SunTrust’s predecessor, which first established the easement, the original grantor reserved a “right to relocate buildings, walkways and parking areas in any manner whatsoever and the easement . . . shall then apply to the area so established.” We find no ambiguity in this reservation of rights. It provides that the mall owner could rearrange buildings, walkways, and parking and thereby force the bank to rearrange its point of egress onto the mall lot, so long as the easement was maintained.

This type of agreement is enforceable. The Supreme Court of Georgia recently noted an exception to the general rule that a fixed easement cannot be relocated without the consent of the owners of both the servient and dominant estates. That exception provides that the owner of the servient estate has the right to relocate an easement if the instrument creating the easement so provides. Herren v. Pettengill, 273 Ga. 122, 123 (2) (538 SE2d 735) (2000). That is so because “ ‘if the language of an express grant or reservation of an easement authorizes it, the location of the easement may be changed in accordance with the agreement.’ [Cits.]” State Commr. of Transp. v. Stulman, 136 N.J. Super. 148, 161 (345 A2d 329, 336) (1975), cited by Davis v. Bruk, 411 A2d 660, 665 (Me. 1980), which was relied upon by Herren v. Pettengill, 273 Ga. at 123, n. 5.

Furthermore, because the right reserved by the original grantor relates to the easement granted to SunTrust’s predecessor in title, it is not a personal right and it runs with the land. See Goldberg v. Varner, 72 Ga. App. 673, 677 (34 SE2d 722) (1945). We note that doubtful cases should be construed “in favor of that construction which causes the right to be appurtenant rather than personal.” Feckoury v. Askew, 244 Ga. 128, 129 (259 SE2d 70) (1979).

Decided March 22, 2001.

Powell, Goldstein, Frazer & Murphy, Jennifer L. Murphy, Christopher P. Galanek, for appellant.

Temple, Strickland, Counts & Dinges, William D. Strickland, Jason B. Schwartz, for appellees.

Kilpatrick Stockton, Michael W. Tyler, Burleigh L. Singleton, amici curiae.

Accordingly, Fletcher now has the right to force a change in the location of the easement. It follows that the trial court’s decision about the parties’ respective rights to use the Disputed Tract was correct.

Judgment affirmed.

Miller and Ellington, JJ, concur. Mikell, J, disqualified.

       The parties do not contend that the term “adjacent property owner” refers to the owner of the corner property.

       The differences between the wording of the two easements and restrictions are not in dispute.


author: Ruffin, Judge.

text:
    A00A1953.
    ANDERSON v. BRUCE.
    (548 SE2d 638)
   Ruffin, Judge.

We confront the issue in this case of whether the trial court erred in dismissing Jessie Thompson Anderson’s complaint. This case also illustrates why lay persons become frustrated with lawyers. Because we find that the trial court did err, we reverse.

The facts are quite simple, but appear to be quite bizarre. On July 6, 1999, Anderson filed a complaint for damages she allegedly sustained in an August 21, 1997 automobile collision. Although the caption of the complaint identified Peter Joseph Galante as the defendant, the first paragraph of the six-paragraph complaint stated that

Defendant Peter Joseph Galante is deceased so Plaintiff brings this action against his estate. Lorraine Bruce is the Executrix of his estate. . . . Therefore the estate is subject to the jurisdiction of the Court when Lorraine Bruce in her capacity as Executrix is served.

The final paragraph of the complaint also stated that “Defendant Peter Joseph Galante is deceased. Therefore the Plaintiff brings this action against his estate. Further, Lorraine Bruce is only sued in her capacity as Executrix of his estate.”

The complaint was personally served on Bruce on August 5, 1999. The return of service form identified the party to be served as “Peter Joseph Galante c/o Lorraine Bruce as Executrix of Estate.” The deputy sheriff performing service stated on the return that “I have this day served the defendant Lorraine Bruce personally with a copy of the within action and summons.”

Bruce did not file a response to the complaint in her capacity as executrix. Instead, the late Mr. Galante purportedly answered. At one point in the answer, Mr. Galante “denied” allegations that he was deceased and that Bruce was the executrix of his estate, while at another point he claimed to be “without knowledge or sufficient information to form a belief” as to whether he was dead.

On October 6, 1999, the late Mr. Galante purportedly filed a motion to dismiss, asserting that the complaint was a nullity since “[a] deceased person cannot be a party to legal proceedings.” In support of his motion, he attached a copy of his own death certificate, which confirmed that he had died on November 13, 1998, at the age of 77.

Mr. Galante asserted that “there was no service perfected on [him] prior to his death” and argued, quite reasonably, that “no personal service thereafter is possible.” He also claimed that service on Bruce was ineffective because she was “not a party to this lawsuit.” Since he was not served during his lifetime, he maintained that the representative of his estate could not thereafter be substituted as a party defendant. He further noted that the statute of limitation had expired. Accordingly, he argued that dismissal was required.

On October 14, 1999, evidently after receiving the late Mr. Galante’s motion to dismiss, Anderson filed an amendment to her complaint. The sole purpose of the amendment was to change the case caption to the following: “Jessie Thompson Anderson, Plaintiff, vs. Lorraine Bruce, in her capacity as Executrix of the estate of Peter Joseph Galante, Deceased.”

On February 28, 2000, the trial court entered an order granting the late Mr. Galante’s motion to dismiss. The order characterized the motion to dismiss as

asserting that Defendant Peter Joseph Galante had died prior to the institution of the lawsuit, that there was insufficient service on the purported Defendant prior to the running of the statute of limitations, and that the attempted substitution of the estate thereafter was legally insufficient.

The order did not state the basis for granting the motion. At the hearing on the motion, however, the trial court found service of process insufficient because the sheriff’s deputy

served Lorraine Bruce not in her capacity as executrix of the estate of Peter Joseph Galante, deceased. He served her because he was directed if he couldn’t find Peter Joseph Galante to serve it in care of Lorraine Bruce. And so basically [an “in care of”] service is invalid, has no force and effect.

On appeal, Anderson argues that the trial court erroneously treated Galante as the defendant in this action and improperly rejected the service on Bruce. We agree.

1. Before addressing the merits of Anderson’s appeal, we note our displeasure with various attorneys in this case. In Anderson’s brief, her attorneys claim that the trial court’s fundamental error “lies in treating the deceased Peter Galante as the defendant in this action.” They recognize that Bruce, as executrix of Mr. Galante’s estate, is clearly the proper defendant. Had Anderson’s attorneys — who evidently knew the appropriate defendant — exercised a modicum of care in drafting the complaint, they could have avoided the time and expense of this appeal.

At the same time, we cannot condone the actions of the estate’s attorney, who filed an answer on behalf of a dead man and denied his death. It appears that the attorney for the estate was setting the stage to file a motion to dismiss after the statute of limitation expired. We will not permit truth to be defeated by such legal sleight of hand.

2. The fact that the late Mr. Galante was named as the defendant in the caption of the original complaint does not warrant dismissal. As we stated in Shaef Chemical Co. v. Cook,

the caption is generally not considered a part of the petition in Georgia,. . . [although a plaintiff may make] a caption or title of a petition a part thereof by an appropriate allegation to that effect in the body of the petition. . . . [T]he names of the parties to an action must appear either in the caption of the petition or in the body thereof.

Courts refrain from attaching too much importance to the merely formal parts of a complaint and construe pleadings so as to do substantial justice. Substance, rather than nomenclature, controls. Thus, “[t]he character in which a party is sued may be determined from the substance of the allegations of the petition, considered in its entirety.”

Read in its entirety, the complaint plainly asserted allegations against Bruce, as executrix of Galante’s estate, or against the estate through Bruce. The very first paragraph of the complaint notes Galante’s death and indicates that the action is brought “against his estate,” which is “subject to the jurisdiction of the Court when Lorraine Bruce in her capacity as Executrix is served.” The final paragraph essentially repeats these allegations, stating that “the Plaintiff brings this action against [Galante’s] estate. Further, Lorraine Bruce is only sued in her capacity as Executrix of his estate.” The complaint reveals — without doubt — that Anderson’s claims were not actually asserted against the deceased Mr. Galante, but focused on the estate and Bruce.

3. Moreover, Anderson amended her complaint on October 14, 1999, trying to cure any lingering ambiguity as to the proper defendant. That amendment altered the caption to read “Jessie Thompson Anderson, Plaintiff, vs. Lorraine Bruce, in her capacity as Executrix of the estate of Peter Joseph Galante, Deceased.” Given the original complaint’s clear allegations against Bruce (including that she was “being sued in her capacity as Executrix”), we view Anderson’s initial reference to Galante in the case caption as a mere misnomer, which Anderson attempted to remedy through amendment.

We have held that If service on Bruce was valid, therefore, the amendment properly corrected Anderson’s initial pleading mistake.

[w]here the real defendant has been properly served, a plaintiff has the right to amend in order to correct a misnomer in the description of the defendant contained in the complaint. Correction of a misnomer involves no substitution of parties and does not add a new and distinct party.

The record shows that the sheriff’s deputy delivered a copy of the summons and complaint to Bruce in accordance with OCGA § 9-11-4 (d) (7), noting on the return that “the defendant Lorraine Bruce” was personally served. The trial court found service on Bruce invalid because the return designated the person to be served as “Peter Joseph Galante c/o Lorraine Bruce, as Executrix of Estate.” The fact remains, however, that Bruce — the real party defendant — received personal service of a suit that made clear allegations against her, as executrix of Galante’s estate.

We generally construe the personal service requirements in OCGA § 9-11-4 (d) (7) strictly because notice is central to due process. Where actual notice of the suit has been received by the actual defendant, however, Rule 4 (d) (7) “should be liberally construed to effectuate service.” Service on Bruce was sufficient in this case. Bruce received personal service of the complaint from the sheriff’s deputy. Although the return of service named “Peter Joseph Galante” in the space for identifying the “party to be served,” it also referenced “Lorraine Bruce as Executrix of Estate.” Under these circumstances, we see no valid reason to find personal service on Bruce insufficient.

Given proper service on Bruce, Anderson’s amendment to correct the misnomer in the complaint was authorized. To hold otherwise would elevate form over substance. As we have previously noted,

Decided March 23, 2001.

Northcutt, Edwards, Gordon, Perrotta & Feingold, Claudia E. Gordon, Joseph D. Perrotta, David A. Webster, for appellant.

McLain & Merritt, Joe O’Connor, Hammond, Carter & Denapoli, A. Cullen Hammond, for appellee.

[t]he important thing to remember is that under the [Civil Practice Act] a party is to be given notice and the opportunity to amend defective pleadings where such notice will facilitate decision on the merits. The [Civil Practice Act] does not penalize a party irrevocably for one misstep in pleading.

Thus, the trial court erred in dismissing Anderson’s complaint.

Judgment reversed.

Andrews, P. J., and Ellington, J., concur.

       (Punctuation omitted.) Rowe v. C & S Nat. Bank, 129 Ga. App. 251, 253 (199 SE2d 319) (1973).

       Galante also argued that, “[o]n a purely practical level,” it would be unfair to allow the suit to continue because, being dead, he could not assist in his own defense. We note that his death apparently did not prevent him from taking an active role in the filing of his answer and motion to dismiss.

       See OCGA § 9-2-41.

       Indeed, the defense attorneys strategy seems inherently flawed. By denying his death in his answer, the late Mr. Galante is arguably estopped from asserting his death in the motion to dismiss. See OCGA § 24-3-30.

       106 Ga. App. 223 (126 SE2d 806) (1962).

       (Punctuation omitted.) Id. at 224-225 (2); see also St. Louis Lightning Rod Co. v.

        Johnson, 18 Ga. App. 190,192 (89 SE 169) (1916).

        Miller v. U. S. Shelter Corp., 179 Ga. App. 469, 472 (2) (347 SE2d 251) (1986); OCGA § 9-11-8 (f); see also Block v. Voyager Life Ins. Co., 251 Ga. 162, 163 (1) (303 SE2d 742) (1983).

        Miller, supra.

       (Punctuation omitted.) Rowland v. Rowland, 204 Ga. 603, 606 (3) (50 SE2d 343) (1948); see also Shaef Chemical, supra at 225 (viewing the complaint in its entirety to determine whether party defendant was properly named).

       See Miller, supra (noting substantive portions of complaint identified correct defendant).

       (Citations and punctuation omitted.) Abbott v. Gill, 197 Ga. App. 245, 246 (398 SE2d 225) (1990); see also Woods v. Belvedere Park Apts., 225 Ga. App. 613, 614 (484 SE2d 242) (1997) (indicating that amendment can be used to correct misnomer where named party defendant not a legal entity); Northgate Village Apts. v. Smith, 207 Ga. App. 479, 481 (2) (428 SE2d 381) (1993); U. S. Xpress v. W. Timothy Askew & Co., 194 Ga. App. 730, 731 (391 SE2d 707) (1990).

        Thurman v. Dodaro, 169 Ga. App. 531, 532-534 (1) (313 SE2d 722) (1984).

       (Punctuation omitted.) Trammel v. Nat. Bank of Ga., 159 Ga. App. 850, 852 (1) (285 SE2d 590) (1981).

       See Miller, supra at 473 (3) (indicating that “the existence of a mere misnomer [does not] authorize] ] one freely to ignore the fact that he has been served with legal process”).

       Bruce argues that Anderson needed — but failed to request — leave of court to amend the case caption, citing Stephens v. McDonald’s Corp., 245 Ga. App. 109 (536 SE2d 566) (2000). Dictum in Stephens notes that a party must obtain court permission to amend a misnomer under OCGA § 9-10-132. 245 Ga. App. at 110 (2). Section 9-10-132 similarly indicates that “[a]ll misnomers ... shall, on motion, be amended and corrected instanter without working unnecessary delay to the party making the same.” (Emphasis supplied.) We have consistently stated, however, that a plaintiff has a right to amend to correct a misnomer when the real party has been served. See, e.g., Woods, supra at 614; Miller, supra at 471 (2). Furthermore, in U. S. Xpress, supra, we construed OCGA §§ 9-10-132 and 9-11-15 together to specifically hold that “[w]here a party named in a complaint is reasonably recognizable as a misnomer for the real party in interest, the misnomer may be corrected by amendment to the pleadings [without leave of court] pursuant to § 9-11-15.” 194 Ga. App. at 731. Anderson properly amended her complaint as of right.

       (Punctuation omitted.) Wilson v. Commercial Cold Storage, 179 Ga. App. 260, 261 (346 SE2d 6) (1986).