author: Pope, Presiding Judge.

text:
    A99A1787.
    HALL v. COLEMAN et al.
    (530 SE2d 485)
   Pope, Presiding Judge.

We granted Steven Hall’s application for discretionary appeal in the adoption proceedings of his biological child. Hall appeals the superior court’s order denying his motion for new trial, which effectively denied his petition to legitimate the child and terminated his parental rights. For the following reasons, we conclude that the superior court erred, and we reverse.

The record establishes the following facts. Steven Hall and Nancy Hobby were married on February 27, 1997, after Hobby told Hall that she was pregnant with his child. Hall and Hobby ended their relationship at some point in the summer of 1997. On October 1, 1997, the child of Hall and Hobby, whose adoption is at issue in this case, was bom. Although the date is not clear from the record, at some point, Hall learned that his marriage to Hobby was void because she had not been divorced from a prior marriage when she and Hall wed.

On January 12, 1998, Ricky and Laura Coleman filed a petition to adopt the child. The petition stated that the child’s biological father was “unknown.” Simultaneously, the Colemans filed a Surrender of Rights and Consent to Adoption, which was signed by Hobby. In her accompanying affidavit, Hobby stated again that the child’s biological father was unknown. Hobby further stated that on the child’s birth certificate she listed the child’s father as “Cecil James Sherman,” because she wanted the “name of someone” to appear as father. She gave the child the last name “Sherman.” She also stated that the child’s father was not married to her when the child was conceived or born.

The record contains two notices to “Unknown Fathers,” notifying the putative fathers of the upcoming adoption proceedings on March 18, 1998; Hall received one of these notices. He filed a motion to intervene in the adoption action. Hall claimed that the child was legitimate because Hall was married to Hobby when the child was bom. Hall also claimed that he was the biological father of the child. In responsive pleadings, the Colemans claimed that Hobby was party to a prior, undissolved marriage and that her marriage to Hall was a legal nullity.

The court held an untranscribed hearing on the matter. Furthermore, the court ordered a blood test and gave Hall 30 days to file a petition to legitimate. On April 24, 1998, Hall filed the petition.

The court held the hearing on Hall’s petition on November 20, 1998. At the hearing, Hall claimed that despite the fact that the marriage was bigamous, the child was legitimate and he was entitled to legal custody. The court reserved ruling on the legitimacy issue and received evidence on whether Hall had lost his opportunity interest in the child so as to allow a denial of the petition to legitimate.

During the hearing, Hall claimed that Hobby repeatedly misled him as to the identity of the child’s father. Hall testified that both Hobby’s father and Hobby told Hall that the child was not his and that Hall believed the child was not his until he received notice of the adoption.

After hearing the evidence, the court denied Hall’s petition to legitimate. Based on the results of the DNA parentage testing, the court determined that Hall is the child’s biological father. Nevertheless, the court found that under OCGA § 19-8-1, Hall was not the “legal father” of the child because his marriage was bigamous and void. Finally, the court concluded that Hall had lost his opportunity interest in the child and also denied the petition for legitimation on that ground. After the court entered this order, the court granted Hall’s motion to stay the adoption proceedings pending the resolution of the appellate process on the legitimation issue.

1. In his first enumeration of error, Hall argues that the court erred in failing to find that his child, as the child of a bigamous marriage, was legitimate. Hall asserts that under OCGA § 19-3-5 (a) a child is legitimate if a bigamous marriage has not been declared void when the child is born. Based on this statute, Hall argues that his child was legitimate and the adoption statute (OCGA § 19-8-1 et seq.) was inapplicable.

In response, the Colemans argue that the court’s reliance on the definition of legal father under OCGA § 19-8-1 was proper. They claim that because none of the statutory definitions under that statute were applicable, the trial court properly determined that Hall was not the legal father.

For the following reasons, we agree with Hall’s arguments and reverse. OCGA § 19-3-5 (a) provides: “Marriages of persons unable to contract, unwilling to contract, or fraudulently induced to contract shall be void. However, the issue of such a marriage born before the marriage is annulled and declared void by a competent court shall be legitimate.” (Emphasis supplied.)

In Brazziel v. Spivey, 219 Ga. 445 (133 SE2d 885) (1963), our Supreme Court determined that the children born of a marriage that subsequently was declared void were legitimate. In so deciding, the court relied upon the predecessor of OCGA § 19-3-5 (a) and concluded that in enacting the statute the legislature intended to remove the stigma of illegitimacy from innocent children. Thus, the court determined, if the parents participated in a marriage ceremony, even though the marriage might ultimately be void, children born before the marriage was annulled or declared void were legitimate. The legislature’s intent in rendering children of void marriages legitimate has been recognized repeatedly by Georgia courts. See, e.g., Thompson v Brown, 254 Ga. 191, 193 (1) (326 SE2d 733) (1985); Campbell v. Allen, 208 Ga. 274, 279 (2) (66 SE2d 226) (1951); Andrews v. Willis, 133 Ga. App. 697, 699 (212 SE2d 24) (1975).

In this case, Hall and Hobby “married” in February 1997; the court concluded that the “marriage” was motivated in part by the parents’ concern that Hobby was pregnant. Hall and Hobby did not live together after the summer of 1997; the child was born in October 1997. There is no evidence in the record that Hall was aware that the marriage was void before the child was born; certainly there was no evidence that the marriage had been annulled or declared void by a competent court before that time.

Accordingly, under OCGA § 19-3-5 Hall and Hobby’s child was legitimate because the child was the issue of the marriage, born before the marriage was declared void. We now turn to the next issue: whether Hall was the “legal father” of the child, as that term is defined for purposes of the adoption provisions, OCGA § 19-8-1 et seq.

OCGA § 19-8-1 (6) (B) provides that the term “legal father” for purposes of adoption includes a male who: “[w]as married to the biological mother of that child at the time the child was conceived or was born, unless such paternity was disproved by a final order pursuant to Article 3 of Chapter 7 of this title.” OCGA § 19-8-1 (6) (E) states that a “legal father” is also a male who has “legitimated the child by a final order pursuant to Code Section 19-7-22.”

Given these provisions, it would be nonsensical to conclude that Hall was not the “legal father” of his legitimate child. Although Hall’s marriage to Hobby was void, only an overly narrow construction of OCGA § 19-8-1 would result in the determination that Hall was not the “legal father” of the child. If, as stated in subsection (6) (E), the definition of “legal father” includes those males who have legitimated children, then certainly the father of a child who is already legitimate should fall within the “legal father” definition. Moreover, although Hall’s marriage was ultimately deemed void, for purposes of qualifying as a “legal father” under subsection (6) (B), Hall was “married” to Hobby at the time of the child’s birth.

In making this determination, we emphasize that this is not a case in which another male has presented himself as the “legal father” of the child. Compare In re White, 254 Ga. 678 (333 SE2d 588) (1985) (necessary that biological father serve “legal” father in legitimation proceeding). Despite Hobby’s misrepresentation of the child’s father in the birth certificate, Hall was the only person who asserted that he was the father. Furthermore, this case did not involve the provisions of OCGA § 19-7-20 (b), because there was no evidence regarding the possibility of access. See generally Ghrist v. Fricks, 219 Ga. App. 415 (465 SE2d 501) (1995); Miller v. Miller, 258 Ga. 168 (366 SE2d 682) (1988).

Decided March 2, 2000

Shaffer, Raymond & Dalton, Philip T. Raymond III, Kevin P. Bradley, for appellant.

McLendon & Smith, Verna L. Smith, for appellees.

Where a child is legitimate, the father has a claim to parental and custodial rights with respect to the child. See Mitchell v. Ward, 231 Ga. 671, 672 (203 SE2d 484) (1974). In this case, because the child was legitimate and the court did not comply with the correct provisions of the adoption statute, it was error for the court to overrule Hall’s objections to the adoption proceedings. See generally OCGA § 19-8-7 (c), (d), (e); see Ellis v. Woods, 214 Ga. 105, 108-109 (4) (103 SE2d 297) (1958). Upon remand, the court is directed to determine whether adoption is proper in this case based on the appropriate provisions of the adoption statute. See, e.g., OCGA §§ 19-8-3 through 19-8-6; 19-8-10.

2. Based on our conclusion in Division 1, we need not address Hall’s second enumeration based on In re Baby Girl Eason, 257 Ga. 292 (358 SE2d 459) (1987), which addresses the interests of unwed fathers.

Judgment reversed and case remanded.

Smith and Miller, JJ, concur.

       Hall also filed a direct appeal, which this Court dismissed.

       The Brazziel court discussed whether the legislature intended to create a distinction between the issue of marriages in which the parties were innocent of the void nature of the marriage and sham marriages. We need not address that distinction in this case because there was no evidence that Hall knew of Hobby’s prior undissolved marriage.

       Hall subsequently remarried in June or July 1998. Hall indicated that he remarried when he learned that his marriage to Hobby had been void. Hobby was in jail during part of her pregnancy and apparently during the legitimacy hearing.

       See OCGA § 19-7-20 (a).

       Article 3 of Chapter 7, which addresses the determination of paternity, is not applicable here because based on the DNA tests, the court concluded that Hall is the child’s biological father. See OCGA § 19-7-46 (b).


source: Caselaw Access Project

author: Phipps, Judge.

license: Public Domain

text:
    A99A2168.
    GEORGE v. THE STATE.
    (530 SE2d 479)
   Phipps, Judge.

A jury found Gabriel George guilty of driving under the influence. George appeals, challenging evidentiary rulings and asserting that the trial court damaged his credibility with the jury. We have examined George’s claims and determined that no reversible error occurred. Therefore, we affirm.

On July 11, 1998, at approximately 2:00 p.m., Officer Anthony Dubois of the Forest Park Police Department went to George’s residence in response to George’s report that someone had stolen his van. Officer Dubois testified that George’s clothes were disheveled, his eyes were glassy, he smelled of alcohol, his speech was slurred, and he was having difficulty maintaining his balance. He testified that George told him that he had been drinking alcoholic beverages earlier at a neighbor’s apartment and that one of his neighbors had taken his van. Officer Dubois went to the neighbor’s apartment, where the door was answered by a man who “could barely walk” and where he saw evidence of recent consumption of alcoholic beverages. Someone there told the officer that two men had taken George’s van to visit a family member.

Moments later, two men drove up in George’s van. Because the two men spoke limited English, Officer Dubois summoned a police officer who could translate. After talking with the two men, the translating officer reported to Officer Dubois that George had charged them $20 to use the van to take family members shopping. Officer Dubois testified that George then admitted that he had charged the two men for using his van and said that he no longer wanted to pursue the matter. As Officer Dubois completed his police report at approximately 3:00 p.m., he observed George drinking beer.

Two hours later, Officer Dubois saw George driving his van. After observing him cross the yellow centerline, Officer Dubois stopped George because he knew that he had been drinking earlier that day. Officer Dubois noticed George’s red eyes, difficulty in maintaining balance, slurred speech, and strong odor of alcohol.

Officer Buchtenic, who was present at the arrest scene and who had special DUI training, including certification to use the Intoxilyzer 5000, testified that George had a strong odor of alcohol, that his eyes were bloodshot, that his speech was slurred, that his walk was unsteady, and that George’s alco-sensor test results indicated the presence of alcohol. Officer Buchtenic determined that George was under the influence and a less safe driver, arrested him, and transported him to a police station where he conducted a breath test using the Intoxilyzer 5000.

At trial, both officers stated that George did not blow enough breath into the Intoxilyzer for them to obtain a valid sample. They testified that although George appeared to fill his lung cavity with air, he then sucked on the tester, exhaled to the side of the tester, or stopped exhaling before the required five to eight seconds. After two insufficient samples, George’s results were considered to be a refusal, and he was charged with DUI to the extent that it was less safe for him to drive.

1. George asserts that the trial court erroneously overruled his objection to Officer Dubois’s testimony that someone at a neighbor’s apartment told him that two men had taken the van to visit a family member.

(a) George argues that because the testimony was hearsay, it should not have been admitted. But George testified to the same fact,

i.e., that Officer Dubois had been told that George’s van had been taken. Therefore, even if the admission of the complained-of testimony was error, the error was harmless.

(b) George also urges that the trial court damaged his credibility by overruling his objection. But George did not raise an objection on this ground at trial.

Appellate courts review enumerations for correction of errors of law committed by the trial court — where motions or objections are properly presented for a ruling by the trial court. Enumerated errors which raise issues for the first time ... on appeal present nothing for review.

2. George contends that the court erroneously overruled his relevance objection to evidence that other individuals in a neighbor’s apartment were drinking alcohol. The trial court has great discretion to determine relevancy and materiality of evidence, and admission is favored in doubtful cases. The admission of evidence which is objected to on the.ground of relevance lies within the sound discretion of the trial court, whose decision will not be disturbed on appeal absent an abuse of discretion. Here, there was evidence that George participated in drinking at the neighbor’s apartment. The trial court did not abuse its discretion by admitting the complained-of evidence.

3. At trial, George denied granting anyone permission to use his van. He contends that the trial court erroneously overruled his double-hearsay objection to Officer Dubois’s testimony of the translating police officer’s statement that the two men gave George $20 to use his van. The court ruled that the testimony was part of the “res gestae of the investigation” and that it explained the officer’s contact with George.

In his defense, George asserted that Officer Dubois pretextually stopped him and fabricated the DUI charge to retaliate against George for not pursuing automobile theft charges and thereby depriving the officer of a felony arrest. This assertion cast suspicion on the officer’s conduct. Under these circumstances, the complained-of testimony was admissible under the “explanation of conduct” exception to the hearsay rule.

Decided March 2, 2000.

Lloyd J. Matthews, for appellant.

Moreover, George concedes that the issue here is collateral. Given the totality of other incriminating evidence, we find it highly probable that admission of this evidence did not contribute to the verdict and therefore was harmless.

4. George contends that the court erroneously overruled his objection to the replay of a portion of his testimony taped at a Jackson-Denno hearing. He concedes that the evidence was properly used for impeachment, but he complains that replaying the tape gave it undue emphasis.

After the first play of the tape, the prosecuting attorney requested that the tape be played again, stating that “[a]t the very beginning [her] question was kind of cut in half and it was kind of garbled.” The court reporter played that portion of the tape again, then only afterward did George’s attorney object. The objection was untimely, waiving this issue for appeal.

5. After the tape was replayed, the trial court gave a cautionary instruction to the jury. George’s attorney “renew [ed] his objection to preserve it.” The court overruled his objection, stating,

I suppose under your theory that we’re required to stand here in perpetuity with me overruling your objections and you renewing them, is that correct? ... As I have previously indicated, your objections in this case are continuing. They need not be reasserted and will not be deemed to have been waived by the failure to assert them at any additional time.

George contends that the court erred by speaking sarcastically to his trial counsel in the jury’s presence and by incorrectly stating that his objections were continuing. But the absence of a trial objection on this ground waived this issue for appeal.

Judgment affirmed.

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

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

        Cherry v. State, 230 Ga. App. 443, 446 (4) (496 SE2d 764) (1998) (where the same fact has been admitted in evidence before the jury, without objection, such admitted evidence renders harmless the admission of the same evidence over objection).

       (Citations omitted.) Fowler v. State, 155 Ga. App. 76 (2) (270 SE2d 297) (1980).

        Holman v. State, 236 Ga. App. 111, 114 (3) (511 SE2d 240) (1999).

         O’Neal v. State, 254 Ga. 1, 3 (3) (325 SE2d 759) (1985).

       OCGA § 24-3-2; see Holmes v. State, 266 Ga. 530, 531 (2) (468 SE2d 357) (1996).

       378 U. S. 368 (84 SC 1774, 12 LE2d 908) (1964).

        Fowler, supra, 155 Ga. App. at 76 (2).


author: Miller, Judge.

text:
    A99A2240.
    CAPITOL MATERIALS, INC. v. KELLOGG & KIMSEY, INC.
    (530 SE2d 488)
   Miller, Judge.

The following undisputed chronology is relevant to the disposition of this appeal from the grant of summary judgment refusing to enforce an alleged settlement agreement resolving a claim of lien.

On January 16, 1997, Capitol Materials, Inc. filed a lien against Lot 948 of the 17th District, Second Section of Cobb County, Georgia, for materials provided as of October 18, 1996, to a subcontractor in the construction of a Barnes & Noble bookstore. This lien was ostensibly against the real property of Nazemian Properties Associates. On January 23, Capitol filed a purported amendment to its lien against Lot 948, changing the name of the owner of the real property against which the lien was asserted to BN Development Company LLC (“Owner”), and also giving a different description of the boundaries to Lot 948. A month later, Capitol filed a cancellation of the original January 16 lien. On February 25, Ira L. Rachelson, counsel for Capitol, submitted a written proposal to the Owner, offering to settle the combined claims of Capitol and the subcontractor “for the amount owed Capitol.” In return, Capitol would “deliver the appropriate lien waivers, releases and satisfactions.”

In subsequent negotiations with the general contractor, Kellogg & Kimsey, Inc., its counsel, Anthony S. Cabrera, offered to pay $36,000 to release the lien, and Rachelson countered with an offer to accept $38,000. After further discussion, Rachelson believed he reached an oral agreement to settle Capitol’s claim for $37,250 in exchange for a release of all claims of lien. Cabrera relayed that amount to Kellogg & Kimsey, and on March 17, Harry Rodriguez, Kellogg & Kimsey’s controller, authorized a check in that amount payable to Capitol. On March 19, Rachelson sent Cabrera a letter purporting to confirm the agreement and its terms. But the time for performance of this settlement agreement came and went without payment. Responding to Rachelson’s inquiries, Cabrera wrote back on March 24, denying the existence of a complete settlement agreement, and giving the following reasons:

While an amount for which our clients would be willing to compromise the claim of lien was discussed, various items including the forms of the release documents, the release of [Capitol’s] claim of lien, etc., related to a resolution of this matter remained open. Of particular significance is that throughout our various discussions, it was our understanding that [Capitol] had otherwise recorded a valid claim of lien on the project. . . . Further investigation has concluded that the [January 16] claim of lien may have been recorded on the wrong real property.

Cabrera first became aware that Capitol might not have a valid lien against the Owner’s property sometime after his last conversation with Rachelson, and this March 24 letter was the only time he communicated to Rachelson any doubts about the validity of the lien. Kellogg & Kimsey’s continued failure to pay resulted in the instant action for breach of contract and for enforcement of the settlement agreement in the principal sum of $37,250. After discovery, Capitol moved for partial summary judgment to enforce the settlement agreement. Kellogg & Kimsey also moved for summary judgment, contending that no enforceable contract was reached because of: (1) a lack of consideration; (2) no meeting of the minds; (3) misrepresentations of fact; and (4) the statute of frauds. The trial court denied Capitol’s motion while granting that of Kellogg & Kimsey, and Capitol appeals that ruling.

1. Lack of consideration. Capitol’s attempted amendment of its lien after the three-month period allowed by OCGA § 44-14-361.1 (a) (2) is ineffectual under the authority of Shirah Contracting Co. v. Waite. But the ultimate invalidity of Capitol’s materialman’s lien would not be a valid basis for reneging on an existing settlement agreement compromising Capitol’s $42,320 claim for payment of the lesser sum of $37,250. Forbearance to prosecute a legal claim and the compromise of a doubtful right are both sufficient consideration to support a contract. “If the requirement of consideration is met, there is no additional requirement of a gain, advantage, or benefit to the promisor or of a loss, disadvantage, or detriment to the promisee.” Thus, where parties have conflicting claims, depending upon a law point, and they compromise them, each is bound by the settlement, whether the law point turns out to have been for it or against it. The grant of summary judgment on behalf of Kellogg & Kimsey cannot be sustained on the ground there was no valid consideration.

2. Misrepresentation. As the factual basis for the alleged misrepreservation, Cabrera testified he “never questioned whether the lien was valid or not; [he] assumed it was,” based upon the assertions of Rachelson. But upon inspection of the original documents (after his negotiations with Rachelson), Cabrera concluded that the underlying claim of lien might be invalid because the untimely amendment was, in his professional judgment, a nullity, while the original timely claim was filed against the wrong property and, in any event, had been canceled by Rachelson.

Under OCGA § 13-4-60, a contract may be rescinded at the instance of the party defrauded. But a claim of fraud cannot be predicated upon misrepresentations of law or misrepresentations as to matters of law. Consequently, any alleged misrepresentation about the legal validity of Capitol’s untimely amended lien or its timely-but-canceled original lien cannot provide a basis for rescinding the alleged settlement agreement. Similarly, a unilateral mistake based upon defendant’s negligence in failing to determine the facts would not justify defendant’s failure to perform under OCGA § 13-5-4.

3. Meeting of the minds. Whether a settlement is an enforceable agreement is a question of contract law for the trial court, but an appellate court owes no deference to its conclusions. “No contract exists until all essential terms have been agreed to. OCGA § 13-3-2.” Cabrera indicated that there was no meeting of the minds because the forms of the lien releases had not been negotiated. In our view, this does not render the alleged agreement incomplete.

The essential terms to this alleged settlement agreement are the parties, the amount acceptable to both, and the prompt release of all claims of lien against the property, as demanded by the Owner. Capitol’s original offer to settle the pending lien claim “necessarily contained [the] implied promise to execute some instrument terminating the controversy as to that settling defendant. . . ,” After negotiations, Cabrera did not expect to be further involved because the precise close-out forms would be supplied by Kellogg & Kimsey itself, and not his law firm. Capitol had always promised to release its liens, and Rachelson’s March 19 letter indicates that Capitol promised to give every further assurance asked of it in terms of lien waivers, so long as Capitol did not thereby waive any contractual claim it had against the defaulting subcontractor. Consequently, there remained nothing to negotiate in terms of the forms necessary to effectuate the settlement. Capitol had already agreed to whatever was necessary to satisfy Kellogg & Kimsey. The trial court erred in concluding there was no meeting of the minds as to every essential term of the alleged settlement agreement, due to an alleged lack of agreement as to the forms required.

4. Statute of Frauds. Although defendant’s answer denied the specific allegation that it had agreed to pay $37,250 to release Capitol’s claim of lien, Rodriguez, the controller for Kellogg & Kimsey, confirmed that defendant had been instructed by the Owner to obtain satisfaction of all liens or get any liens bonded off the realty in order to clear title. Rodriguez informed the Owner that the Capitol liens specifically “were settled and [Kellogg & Kimsey] would get a satisfaction of lien.” As early as March 17, Rodriguez ordered a check to be issued for the amount of $37,250 as payment to settle the claims of Capitol. On March 19, Rodriguez forwarded to the Owner final releases of liens or liens transferred to bonds affecting 11 subcontractors and suppliers, including Capitol, although ultimately it appeared Capitol had no timely lien attached to the realty requiring a bond to clear title.

Generally, in order to be binding on the promisor, a promise to answer for the debt of another must be in writing and signed by the party to be charged. But oral settlements, if established by the writings of the attorneys, are enforceable. The writings envisioned by the General Assembly in enacting OCGA § 15-19-5 serve the same purpose as the Statute of Frauds by addressing the question of the existence of an agreement or its terms, even though that Code section does not require the signature of the party to be charged. A satisfactory writing ideally consists of a formal written agreement signed by the parties, but letters or documents prepared by attorneys which memorialize the terms of the agreement reached will suffice.

In this case, we have the unusual circumstance that the attorneys cannot agree on the legal consequences of their actions, that is, whether a binding contract was reached, yet Kellogg & Kimsey’s controller told the Owner that this particular lien claim was settled and authorized a check for the amount allegedly agreed upon, after Cabrera relayed that information. There are only two rational inferenees authorized by this sequence of events: (1) Cabrera informed Rodriguez that Capitol offered to settle for $37,250, and that amount was accepted; or (2) Kellogg & Kimsey offered to pay $37,250 and Rachelson’s March 19 letter was an acceptance. Pretermitting whether Rodriguez’s statements and actions amount to an estoppel, they do objectively corroborate the existence of an agreement as outlined in Rachelson’s March 19 letter and are inconsistent with the absence of an agreement. Stripped of its legal conclusions, Cabrera’s March 24 letter is not inconsistent with the assertion that $37,250 was fixed as the acceptable figure and would be too late to revoke an offer accepted on March 19. In our view, this is a case where an agreement as to terms was clearly made and then someone changed his mind and no longer wanted to settle the case. The trial court erred in denying Capitol’s motion for partial summary judgment.

Decided March 2, 2000

Rachelson & White, Ira L. Rachelson, for appellant.

James B. Gurley, for appellee.

5. Kellogg & Kimsey’s motion for frivolous appeal sanctions under Court of Appeals Rule 15 (b) is denied.

Judgment reversed.

Pope, P. J., and Smith, J., concur.

       143 Ga. App. 355, 356 (1) (238 SE2d 728) (1977).

        Austell v. Rice, 5 Ga. 472, hn. 3 (1848).

       OCGA § 13-3-43.

        Morris v. Munroe, 30 Ga. 630 (1860). Accord Tyson v. Woodruff, 108 Ga. 368 (33 SE 981) (1899).

       This remedy presupposes the existence of contract, for the agreement is not void but only voidable at the instance of the defrauded party. Jordy v. Dunlevie, 139 Ga. 325, 329 (2) (77 SE 162) (1913).

        Robbins v. Nat Bank of Ga., 241 Ga. 538, 543 (2) (246 SE2d 660) (1978).

        Mangham v. Hotel &c. Supply Co., 107 Ga. App. 619 (1) (131 SE2d 74) (1963).

        Auto-Owners Ins. Co. v. Crawford, 240 Ga. App. 748, 749-750 (1) (525 SE2d 118) (1999).

        Bridges v. Bridges, 256 Ga. 348, 349-350 (1) (349 SE2d 172) (1986).

       (Emphasis supplied.) Herring v. Dunning, 213 Ga. App. 695, 698 (446 SE2d 199) (1994) (whole court).

       OCGA § 13-5-30 (2). But see Pope v. Triangle Chem. Co., 157 Ga. App. 386, 389 (3) (b) (277 SE2d 758) (1981) (promise required by this Code section to be in writing does not include an original undertaking).

        Abrams v. Abrams, 262 Ga. 170, n. 1 (416 SE2d 88) (1992).

        Brumbelow v. Northern Propane Gas Co., 251 Ga. 674, 676 (2) (308 SE2d 544) (1983).

        Tidwell v. White, 220 Ga. App. 415, 417 (2) (469 SE2d 258) (1996).

       See Brumbelow v. Northern Propane Gas Co., 169 Ga. App. 816 (315 SE2d 1) (1984) (on remand from 251 Ga. 674, supra). Compare Bridges v. Bridges, supra, 256 Ga. at 350 (1).


author: Ruffin, Judge.

text:
    A99A2322.
    WATERS v. WATERS.
    (530 SE2d 482)
   Ruffin, Judge.

We granted this discretionary appeal to determine whether the ■ trial court erred in granting Joyce Childers Waters’* motion for attorney fees and expenses of litigation under OCGA § 9-15-14. As the trial court erred, we reverse.

The relevant facts follow. Jody Waters and Joyce Waters were divorced, and Jody obtained custody of their daughter. Under the terms of a 1992 custody order, Joyce was required to pay $30 per week in child support.

In September 1995, Jody filed a petition for modification of visitation and for contempt based upon Joyce’s failure to pay child support. On October 20, 1995, the trial court entered a temporary order that stated, “Child support arrearages exist in this case. The issue of arrearages shall be determined by the Court at a later date if the parties cannot agree between themselves.”

Apparently, the parties were unable to reach an agreement on the amount of child support arrearages. In March 1998, Jody, through attorney Dennis Helmreich, filed an action seeking to garnish Joyce’s bank account. In her traverse, Joyce argued that the garnishment action violated the trial court’s October 1995 temporary order. In an April 1998 order, the trial court dismissed the garnishment action, finding that the filing of the action “without first having an agreement or order of the court setting the amount of child support arrearage” violated its October 1995 order.

Shortly thereafter, Helmreich withdrew as Jody’s attorney. On April 22, 1998, Jody’s new attorney filed an amended action for contempt. Along with her May 6, 1998 response, Joyce filed a motion under OCGA § 9-15-14 requesting “that her attorney fees and expenses of litigation, including all ‘returned check’ charges, be paid by the plaintiff.”

On November 23, 1998, Jody and Joyce Waters entered into a voluntary agreement resolving the child support and visitation issues. The agreement also stated:

Each party understands and agrees that this agreement contains the entire agreement between the parties as to the issues raised in this case. It supersedes any prior understanding or agreement between the parties as to the issues raised in this case. There are no agreements, representations or warranties as to the issues raised in this case other than those set forth herein.

The agreement was signed by both parties and approved by the trial court.

In a letter dated April 27, 1999, Joyce, through her attorney, requested that the trial court rule on her May 1998 motion for attorney fees and expenses of litigation. Joyce submitted a proposed order seeking payment only from Helmreich, Jody’s former attorney. The trial court signed the proposed order and ordered Helmreich to pay Joyce $1,498.40 in attorney fees and $367 in expenses for returned check charges. Helmreich appeals this order.

Initially we must address the insufficiency of the order itself. The order contains no findings of conduct that would authorize an award of attorney fees under OCGA § 9-15-14. In fact, the order does not even state what subsection of OCGA § 9-15-14 the award was based upon. Accordingly, at a bare minimum, we would reverse and remand the case for appropriate findings of fact and a new judgment that sets forth the exact basis for the award.

But Helmreich argues that the order is also improper on other grounds. He contends that the trial court erred in granting Joyce’s motion for attorney fees after she had voluntarily signed an agreement that resolved all issues raised in the case. We agree.

Where, as here, a party enters into an agreement that by its express language settles all issues raised in a case, that party may no longer maintain an action for attorney fees. Such settlement includes “all claims under all the facts and circumstances of [the] case, which per se include [ ] any possible claim that might otherwise have been allowed under OCGA § 9-15-14 on the basis that [the underlying] suit lacked substantial justification.”

Joyce maintains that her claim for attorney fees against Helmreich is not barred because, when she signed the agreement, Helmreich no longer represented her ex-husband. She argues that because Helmreich did not sign the agreement, he was not a party thereto and he is still subject to an award of attorney fees. We disagree.

Under either OCGA § 9-15-14 (a) or (b), attorney fees are to be awarded only when a party or his attorney has engaged in sanction-able conduct. Here, Joyce based her claim for attorney fees on Helmreich’s conduct in filing the garnishment action, which he did at the behest of his client. Thus, any claim Joyce may have against Helmreich is derivative of any claim she had against her ex-husband. By settling the case with her ex-husband without reserving the issue of attorney fees, Joyce necessarily settled any possible claim against Helmreich. Had Helmreich engaged in any conduct that warranted the assessment of attorney fees under OCGA § 9-15-14, it was incumbent upon Joyce to expressly reserve that issue in settling the case. Her failure to do so precludes her from resurrecting the issue now.

Judgment reversed.

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

Decided March 2, 2000.

Dennis P. Helmreich, pro se.

Barry L. Fitzpatrick, for appellee.

       The appellee has since remarried and is now Joyce Jackson.

       Because it is not necessary to do so, we have not addressed the propriety of including an award of expenses for returned check charges as part of an award of expenses under OCGA § 9-15-14.

       See Montag v. Sutherland, 230 Ga. App. 692 (498 SE2d 86) (1998).

        Kluge v. Renn, 226 Ga. App. 898, 899 (1) (487 SE2d 391) (1997); Hunter v. Schroeder, 186 Ga. App. 799, 800-801 (368 SE2d 561) (1988).

       (Punctuation and emphasis omitted.) Id.

       We note that no attorney signed the settlement agreement, which was signed only by the two litigants and the judge. Thus, under Joyce’s reasoning, any attorney, former or current, could be assessed attorney fees under OCGA § 9-15-14 after the litigants themselves settled the case.

        Harkleroad v. Stringer, 231 Ga. App. 464, 472 (6) (499 SE2d 379) (1998).


author: Andrews, Presiding Judge.

text:
    A99A2487.
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. JOHNSON.
    (530 SE2d 492)
   Andrews, Presiding Judge.

In this cross-appeal, State Farm Mutual Automobile Insurance Company appeals from the trial court’s Amended Order Granting Partial Summary Judgment, entered June 30, 1999. Because the trial court was without authority to amend the previously entered judgment of January 16, 1998, we reverse.

In Case No. A99A2486, Johnson appealed the grant of summary judgment to State Farm, his insurer, on his claim for breach of contract for failure to pay over $7,000 in medical claims due Dr. Hodges, a pain management specialist. The damages were the result of an automobile accident.

Johnson’s complaint, which was not divided into counts, originally alleged that State Farm’s failure to pay medical benefits under his policy:

6. . . . constitute [s] a breach of contract for which damages are allowed by law. 7. Defendant’s actions also constitute fraud, as Mr. Johnson dutifully paid his premiums for coverage in the event of a collision, yet. . . State Farm willfully and wantonly refused him such benefits. 8. Defendant’s actions also constitute bad faith, for which the law allows damages.

Summary judgment was granted to State Farm on January 16, 1998, on Johnson’s claim for “fraud, attorneys’ fees, and punitive damages.” The pretrial order, entered May 20, 1999, stated that Johnson sought as damages “Medical bills, interest, attorney fees and any other necessary and/or natural damages arising from the breach of contract” (Emphasis supplied.)

Thereafter, State Farm moved for summary judgment because Johnson had recovered $14,000 from the driver of the other vehicle, which was more than the unpaid medical bills. The policy at issue provided that, in such a situation, “we owe nothing under this coverage.”

On June 30, 1999, the court granted State Farm’s motion for summary judgment on the breach of contract claim based on State Farm &c. Ins. Co. v. Walker, 234 Ga. App. 101 (505 SE2d 828) (1998), which Johnson agreed was controlling because he had admitted that he received $14,000 from the driver’s insurer “for his claim for bodily injuries.”

On that same date, the court entered the order appealed. That order stated that the order of January 16, 1998 (granting summary judgment on the issues of fraud, attorney fees and punitive damages),

was intended to address attorney’s fees resulting from fraud claims. The Court granted judgment on the issues of “fraud, , attorneys’ fees, and punitive damages.” In said Summary Judgment Order, the court did not intend to preclude attorney’s fees pursuant to OCGA § 33-4-6. Wherefore, attorney’s fees pursuant to OCGA § 33-4-6 will be an issue at trial.

On October 6, 1999, Johnson withdrew his appeal of the June 30 judgment, leaving pending the cross-appeal of State Farm concerning the second order which purported to amend the earlier partial grant of summary judgment. Buschel v. Kysor/Warren, 213 Ga. App. 91, 93 (444 SE2d 105) (1994).

The terms of court for Chatham County (Eastern Judicial Circuit) are the first Monday of March, June, September, and December. OCGA § 15-6-3 (17). Therefore, the January 1998 order was issued during the December 1997 term and was not amended until the June 1999 term, six terms after its entry.

While OCGA § 15-1-3 (6) provides that “[e]very court has power . . . [t]o amend and control its processes and orders, so as to make them conformable to law and justice, and to amend its own records, so as to make them conform to the truth [,]” that power is not without limit.

It has been held that that section “does not enable a court to change a judgment in substance or in any material respect.” Crowell v. Crowell, 191 Ga. 36, 39 (11 SE2d 190) (1940).

“Partaking of the general characteristics of conclusiveness between the parties as ordinary judgments, such judgments likewise fall under the general rule regarding their amendment. In respect to amendment of judgments the general rule is, that after the expiration of the term at which the judgment was rendered it is out of the power of the court to amend it in any matter affecting the merits.” [Cits.]

Id. at 40. Compare Bagley v. Robertson, 265 Ga. 144, 145 (454 SE2d 478) (1995).

This is not a situation where there was a mutual mistake as to the intent of the parties or where there has been a proceeding initiated to amend a judgment. OCGA § 9-11-60; Smith v. Smith, 230 Ga. 238, 239 (196 SE2d 437) (1973).

Decided March 2,2000.

Brannen, Searcy & Smith, David R. Smith, Beverly G. O’Hearn, for appellant.

Ashman, Lasky & Cooper, Charles R. Ashman, Brian E. Krapf for appellee.

At the time the order was entered purporting to leave for trial the attorney fees under OCGA § 33-4-6, it had been determined that, as a matter of law, there was no claim under the policy. Therefore, there could have been no recovery for attorney fees under OCGA § 33-4-6. Collins v. Life Ins. Co. &c., 228 Ga. App. 301, 304 (3) (491 SE2d 514) (1997); Globe Life &c. Ins. Co. v. Ogden, 182 Ga. App. 803 (357 SE2d 276) (1987).

Additionally, at the time it sought partial summary judgment, State Farm had put forward evidence that it had obtained the opinion of an independent medical examiner that the disputed treatment was not medically necessary. Such an opinion, unless patently wrong, which has not been demonstrated here, provides a reasonable good faith basis for the insurer’s denial of the claim. Jones v. State Farm &c. Ins. Co., 228 Ga. App. 347, 350 (3) (491 SE2d 830) (1997); Haezebrouck v. State Farm &c. Ins. Co., 216 Ga. App. 809, 811 (3) (455 SE2d 842) (1995).

Judgment reversed.

Ruffin, J., concurs. Ellington, J., concurs in the judgment only.


author: McMurray, Presiding Judge.

text:
    A00A0864.
    WISER v. THE STATE.
    (530 SE2d 278)
   McMurray, Presiding Judge.

A jury convicted Howard M. Wiser of incest for offenses committed against his 36-year-old niece. The evidence shows that the victim suffers from brain damage, partial paralysis on her right side, and legal blindness. Her mother, Wiser’s sister, died in 1990. Wiser became the victim’s guardian and legal custodian of her child. The acts which formed the basis of his conviction took place during the victim’s overnight visits to his home. He appeals. Held:

1. The trial court erred in charging the jury that the statute of limitation for incest is seven years. The statute is four years. OCGA § 17-3-1.

Trial counsel made no contemporaneous objections and no exceptions to the court’s charge to the jury. Such silence waives the right to raise this issue on appeal unless there has been a substantial error which was harmful as a matter of law. OCGA § 5-5-24 (c). The court’s charge was a clear misstatement of applicable law. Our task, therefore, is to determine whether it was harmful error.

The prosecution commenced with the return of the indictment on March 5, 1997. The indictment alleges that the offenses were committed between June 1, 1996 and December 1, 1996. Our review of the record shows sufficient evidence, including testimony by both the victim and a special agent for the Georgia Bureau of Investigation, to authorize a finding that the defendant committed at least two acts of incest against the victim during the time alleged in the indictment, which was well within the four-year limitation period. It follows that the error in the jury charge was harmless.

2. Next, Wiser contends that the trial court erred in charging the jury “in connection with this offense, . . . corroboration is not required to warrant a conviction for the offense of incest.” This enumeration is meritless.

“[C]orroboration of the victim’s testimony is not necessary to support a conviction for incest. . . ,” The trial court’s charge was a correct statement of the law. Contrary to Wiser’s argument, the trial court’s use of the phrase “in connection with this offense” was not a comment on the evidence. In any event, Wiser failed to preserve this issue for appellate review by not objecting to the charge.

3. Finally, Wiser enumerates as error the denial of his motion for a directed verdict of acquittal on the ground that the State failed to prove sexual intercourse occurred. We disagree.

Evidence of slight penetration is all that is required to sustain a conviction. In the case sub judice, the victim testified that she understood how sexual relations took place because she had had a child. She further stated that the defendant would get on top of her and “do sex” to her. Finally, she testified that while he was on top of her, he touched her vagina with “his thing.” The evidence could have led a reasonable jury to find that slight penetration took place. Moreover, the evidence presented was sufficient for a rational trier of fact to find Wiser guilty of incest beyond a reasonable doubt.

Decided March 2, 2000

Christopher A. Townley, for appellant.

Herbert E. Franklin, Jr., District Attorney, Leonard C. Gregor, Jr., Assistant District Attorney, for appellee.

Judgment affirmed.

Johnson, C. J., and Phipps, J., concur.

        Early v. State, 218 Ga. App. 869, 870 (1) (463 SE2d 706).

       Id.

        Peavy v. State, 179 Ga. App. 397 (1) (346 SE2d 584).

        Raymond v. State, 232 Ga. App. 228, 229 (1) (501 SE2d 568).

        Selley v. State, 237 Ga. App. 47, 49 (4) (514 SE2d 706); Stone v. State, 236 Ga. App. 365, 367 (3) (511 SE2d 915).

       Under OCGA § 16-6-22 (a) (6), an uncle who engages in sexual intercourse with a person who he knows is his niece commits the offense of incest.

        Raymond, 232 Ga. App. at 229, supra.

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


text:
    A00A0798, A00A0799.
    JARALLAH v. AMERICAN CULINARY FEDERATION, INC. et al. (two cases).
    (529 SE2d 919)
   McMurray, Presiding Judge.

Tajuddin JarAllah filed an application pursuant to OCGA § 14-3-1604 for an order allowing him to inspect and copy records of American Culinary Federation, Inc. (“ACF”). An order was entered on June 24, 1998, providing that JarAllah could inspect the records. JarAllah filed a notice of appeal from this order on June 26, 1998, which was docketed in this Court as Case No. A00A0798. On the same day, JarAllah filed a motion in the trial court to set aside or reconsider its June 24, 1998 order, primarily asking the trial court to grant JarAllah’s request for attorney fees. The trial court issued an order denying the motion, and JarAllah filed a second notice of appeal. That appeal has been docketed in this Court as Case No. A00A0799. Held:

Case No. A00A0799

1. Case No. A00A0799 must be dismissed because the trial court was without authority to act on JarAllah’s motion to set aside or reconsider its June 24, 1998 order after JarAllah filed a notice of appeal. The filing of the notice of appeal functions as a supersedeas and deprives the trial court of the power to affect the judgment appealed, so that subsequent proceedings purporting to supplement, amend, alter or modify the judgment, whether pursuant to statutory or inherent power, are without effect.*

Case No. A00A0798

2. In Case No. A00A0798, JarAllah alleges that the trial court erred in ruling that he could not recover attorney fees under OCGA § 14-3-1604 (c). We disagree.

Second, pro se litigants who are not attorneys cannot recover attorney fees because of the lack of any meaningful standard for calculating the amount of the award. Cazalas v. U S. Dept. of Justice, 709 F2d 1051, 1058 (4) (5th Cir. 1983). Contrary to JarAllah’s argument, in Harkleroad v. Stringer, 231 Ga. App. 464, 468 (1) (499 SE2d 379), this Court expressly declined to decide whether pro se litigants who are not attorneys may recover attorney fees as that question was not before this Court. In holding that a law firm could recover attorney fees under OCGA § 9-15-14 for services rendered on its own behalf when it sued a client, although the firm was also represented by counsel, “[w]e simply note[d] that there is a rational basis for distinguishing [pro se] parties from litigants who are attorneys.” Id. at fn. 25.

First, we note that ACF never refused to permit JarAllah to inspect its records, a prerequisite for the award of attorney fees under the statute. The record reflects that JarAllah sent ACF a request on May 18, 1998, to inspect and copy certain records. ACF did not respond, due to “simple oversight,” it claims. On June 15, 1998, JarAllah filed the instant action. ACF sent JarAllah a letter on June 19 agreeing to permit him to inspect ACF’s records. JarAllah failed to respond, necessitating the hearing at which the order of June 24, 1998 was entered.

Accordingly, the trial court correctly denied JarAllah’s request for attorney fees.

3. Pursuant to Court of Appeals Rule 15 (b), ACF asks this Court to impose a penalty against JarAllah for frivolously pursuing this appeal. We note that JarAllah is an experienced pro se litigant in this Court. Moreover, based on ACF’s agreement to allow JarAllah to inspect its records, JarAllah had no reasonable expectation of obtaining reversal of the trial court’s decision on that basis. However, we cannot say that JarAllah’s argument based on Harkleroad was entirely frivolous or interposed for the purpose of delay. Accordingly, we decline to impose a frivolous appeal penalty.

Judgment affirmed in Case No. A00A0798. Appeal dismissed in Case No. A00A0799.

Johnson, C. J., and Phipps, J., concur.

Decided February 22, 2000 —

Reconsideration denied March 3, 2000

Tajuddin Jar Allah, pro se.

Robert D. Schoen, for appellees.

        Byran v. Brown Childs Realty Co., 236 Ga. App. 739, 742 (2) (513 SE2d 271).

       OCGA § 14-3-1604 (c) states:
      If the court orders inspection and copying of the records demanded, it shall also order the corporation to pay the member’s costs (including reasonable attorneys’ fees) incurred to obtain the order unless the corporation proves that it refused inspection in good faith because it had a reasonable basis for doubt about the right of the member to inspect the records demanded.

       See JarAllah v. Schwartz, 202 Ga. App. 32 (413 SE2d 210); JarAllah v. Aetna Cas. &c. Co., 199 Ga. App. 592 (405 SE2d 510); JarAllah v. Pickett Suite Hotel, 193 Ga. App. 325 (388 SE2d 333).


author: Johnson, Chief Judge.

text:
    A00A0439.
    STANLEY v. THE STATE.
    (530 SE2d 506)
   Johnson, Chief Judge.

Yancey Stanley was charged with armed robbery, aggravated assault, burglary, theft by taking, arson and giving a false name. He pled not guilty by reason of insanity, asserting that he could not distinguish between right and wrong at the time of the crimes. The case was then tried before a judge sitting without a jury. On the second day of trial, Stanley’s lawyer moved to suppress evidence seized from Stanley after his arrest. The judge denied the motion as untimely. After hearing all the evidence, the judge found Stanley guilty but mentally ill. Stanley appeals, claiming that the court erred in denying his motion to suppress and in finding him guilty but mentally ill.

1. On appeal from a verdict of guilty but mentally ill, we review the evidence in the light most favorable to the state and then determine if a rational trier of fact could have found that the defendant failed to prove by a preponderance of the evidence that he was insane at the time of the crime.

Construed in favor of the state, the evidence in this case shows that on April 28, 1998, Stanley broke a basement window of a house in Whitfield County and then entered the house through the window. At about 4:50 that afternoon, Justin Fetzer, who lives in the house with his parents and sister, arrived home from high school. When he went into the house, he was confronted by Stanley, who had been hiding behind a couch. Stanley pointed a shotgun at Fetzer and ordered him to lie on the floor and throw his car keys to the side. After Fetzer complied, Stanley ordered him to get up, go outside and run into the nearby woods. Fetzer again complied with Stanley’s orders. Once in the woods, Fetzer hid and watched as Stanley went back inside the house, came out and then drove away in Fetzer’s 1986 Ford Bronco.

Around midnight on April 29, two reserve deputies with the Bradley County Sheriff’s Department in Tennessee were on patrol near the state line between Georgia and Tennessee. They had been notified that a suspicious and possibly intoxicated person was in the area. They encountered Stanley walking along a roadway less than half a mile inside the Georgia line. When the deputies stopped their patrol car and activated the car’s blue lights, Stanley ran up an embankment into the woods. The deputies searched the area and found Stanley hiding in some weeds. The deputies detained Stanley, who identified himself as Matthew Kimball Stanley, and they contacted the Whitfield County Sheriff’s Department for assistance.

About ten minutes later, two Whitfield deputy sheriffs arrived. Stanley identified himself to them by a name other than the one he had given to the Bradley deputies and later gave the Whitfield officers a third name but did not give his real name. At that point, the Whitfield deputies arrested Stanley for giving a false name. The deputies searched Stanley and found a wallet, money, jewelry, watches and a cap that had been stolen from the Fetzers. That same morning, the Whitfield Sheriff’s Department found Justin Fetzer’s Ford Bronco, which had been burned.

In his defense, Stanley introduced evidence that he has a history of mental illness. He also presented a psychiatrist who testified that in her opinion . Stanley did not understand the difference between right and wrong on the date of the crimes. A state psychologist gave contrary testimony, stating his opinion that Stanley could differentiate between right and wrong at the time of the crimes.

The trial court, sitting as the factfinder, was not compelled to accept Stanley’s evidence that he was mentally ill but was authorized to find proof of Stanley’s ability to distinguish between right and wrong based on the testimony of the state’s psychologist, as well as the words, conduct, demeanor, motive and other circumstances connected with Stanley’s acts. Moreover, the court was authorized to rely on the presumption of sanity in OCGA § 16-2-3 because the evidence of insanity was not overwhelming.

Having reviewed all the evidence, we conclude that a rational trier of fact could have found that Stanley did not show by a preponderance of the evidence that he was legally insane at the time of the crimes and the trial court’s verdict of guilty but mentally ill was supported by sufficient evidence.

2. A defendant must file a written motion to suppress before or at his arraignment, unless the time to file has been extended by the judge. If the motion is not timely filed or an extension is not obtained, the motion is waived.*

Decided March 3, 2000

McCamy, Phillips, Tuggle & Fordham, Stephen A. Williams, for appellant.

Kermit N. McManus, District Attorney, for appellee.

In the instant case, Stanley did not file a written motion to suppress by the time of his arraignment and did not get an extension from the court to file the motion later. Instead, he made his motion to suppress on the second day of trial shortly before the state closed its case. Under these circumstances, the trial court did not abuse its discretion in denying Stanley’s motion to suppress on the basis that it was untimely.

Judgment affirmed.

McMurray, P. J., and Phipps, J., concur.

        Fuss v. State, 271 Ga. 319, 320 (1) (519 SE2d 446) (1999).

       See id.

       See Rodriguez v. State, 271 Ga. 40, 42 (1) (518 SE2d 131) (1999).

       See Whitt v. State, 187 Ga. App. 599-600 (370 SE2d 848) (1988).

        Hatcher v. State, 224 Ga. App. 747, 748-749 (1) (482 SE2d 443) (1997); Baseler v. State,
        213 Ga. App. 822 (1) (446 SE2d 250) (1994).

        Hatcher, supra.

       See Montgomery v. State, 204 Ga. App. 534, 536 (2) (420 SE2d 67) (1992) (motion to suppress untimely when made at the close of the state’s case); see also Thompson v. State, 195 Ga. App. 18, 20-21 (2) (392 SE2d 732) (1990) (motion to suppress untimely when filed on the day of trial).


text:
    A00A0614.
    SUMMEROUR v. THE STATE.
    (530 SE2d 494)
   Johnson, Chief Judge.

A jury found Don Summerour guilty of aggravated sodomy, child molestation and statutory rape. He appeals from the convictions entered on the jury verdict. We affirm.

Viewed in a light most favorable to support the jury’s verdict, the evidence shows that in September 1993, the ten-year-old victim joined a church youth group led by Summerour. Summerour held the victim’s hand, bought her presents and kissed her on the mouth. From September 1993 through July 1994, Summerour made the victim play the “foot game.” During this game, Summerour removed the victim’s shoe, placed her foot on his genital area and rubbed his genital area with the child’s foot for a couple of minutes, causing his penis to become “harder.” Summerour showed the victim what appeared to be a gun and repeatedly threatened to kill himself if she told anyone about the “foot game.”

On October 31,1993, the youth group met at the church to set up a haunted house. During the evening, Summerour took the victim to his house, where they were alone. The victim stood in the living room while Summerour disappeared into his room. When Summerour returned to the living room, he held ajar of Vaseline and told the victim to pull down her pants. Afraid and not knowing what to think, the victim pulled down her pants. Summerour ordered the victim to face the couch, kneel down and pull down her underwear. He then knelt down behind her and placed his penis inside her rectum. Summerour moved his body back and forth, refusing to stop even when the victim told him it hurt and asked him twice to stop. After finishing, Summerour took the victim back to the church. The victim did not tell anyone because she was scared “because [Summerour] kept threatening to kill himself.” According to the victim, Summerour had previously threatened to kill himself if she did not stop talking to other boys.

On July 19, 1994, the victim’s parents asked Summerour to take the victim to a doctor’s appointment. After the appointment, Summerour took the victim to her home. Finding no one home, Summer-our removed a lawn chair from the porch and placed it in the garage. He sat on the lawn chair and told the victim to pull her pants down and close her eyes. Because he continued to threaten to kill himself, the victim did as she was told. Summerour unzipped his pants and told the victim to sit on top of him. He held her arm and guided her as she got on top of him. While the victim was on top of him, Summerour placed his penis in her vagina. After approximately one minute, Summerour stopped and told the victim he would wait until she started her period. Although her eyes were closed the entire time, the victim was certain that what she felt touch her vagina was not a hand.

1. Summerour contends the evidence was insufficient to support his conviction for aggravated sodomy because the state failed to prove the essential element of force. We disagree.

A person commits the offense of aggravated sodomy when he commits sodomy with force and against the will of the victim. There is no presumption of force merely because the victim is underage; the state must prove the essential element of force. However, the quantum of evidence necessary to prove force against a child is minimal. The element of force is shown “if the defendant’s words or acts were sufficient to instill in the victim a reasonable apprehension of bodily harm, violence, or other dangerous consequences to herself or others.”

Contrary to Summerour’s contentions, the record in this case contains sufficient evidence that the victim was forcibly sodomized by Summerour. According to the victim, she did what Summerour ordered her to do because she was afraid. The victim testified that Summerour placed his penis in her rectum and began moving back and forth. She told Summerour “it hurt” and asked him to stop at least two times, but he would not. This testimony, in and of itself, is sufficient evidence of force to support Summerour’s conviction for aggravated sodomy. Nonetheless, the state provided additional evidence of force through the victim’s testimony that she complied with Summerour’s orders and did not tell anyone about his actions “because [Summerour] kept threatening to kill himself.” 7The evidence was sufficient for a rational trier of fact to find Summerour guilty beyond a reasonable doubt of aggravated sodomy under Jackson v. Virginia

2. The trial court did not err in denying Summerour’s motion for a mistrial. According to Summerour, his character was impermissibly placed in evidence when the victim testified that sometime between September 1993 and July 1994 she heard Summerour tell her 12-year-old brother that Summerour would kill him if he ever hurt the victim. We disagree.

It is well established that if evidence is relevant and material to the issues being tried, it is not inadmissible merely because it may incidentally place the defendant’s character in issue. “Lack of resistance, induced by fear, is force, and may be shown by the [victim’s] state of mind from her experience with [Summerour] and subjective apprehension of danger from him.” Since force is an essential element of aggravated sodomy, the victim’s testimony regarding Summerour’s violence in the form of threats to himself and others and the victim’s fear of him was relevant and admissible.

Summerour argues that this threat could not go to the issue of force during the aggravated sodomy because it occurred after the October 31, 1993 aggravated sodomy. This argument misconstrues the evidence. The victim testified that the threat occurred sometime between September 1993 and July 1994. Her brother testified that he guessed the threat was made “probably around the middle” of his relationship with Summerour. Defense counsel asked if the middle was around March or April 1994, and the victim’s brother responded, “maybe.” This conflict in the evidence was for the jury to resolve. The victim’s testimony clearly leaves open the possibility that the jury could have found that Summerour’s threat to her brother was made before he sexually assaulted her on October 31, 1993.

In addition, even if this threat did impermissibly place Summer-our’s character into issue, it is highly probable that this error did not contribute to the jury’s verdict. Although evidence of Summerour’s guilt was not overwhelming, we are satisfied that, excluding the victim’s testimony of the threat to her brother, there remains sufficient evidence from which a rational trier of fact could have found beyond a reasonable doubt that Summerour was guilty of the charged offenses.

3. Summerour contends he was denied effective assistance of counsel because his trial counsel (1) failed to call several witnesses that would have testified to Summerour’s good character, (2) waived the right to an indictment by a grand jury and (3) failed to maintain a theory of defense. Because Summerour failed to present any evidence supporting his contentions during the hearing on his motion for new trial, this enumeration of error lacks merit.

It is well established that the party alleging ineffective assistance of counsel has the burden of establishing that trial counsel’s performance was deficient and that the deficient performance prejudiced the defense. In addition, the defendant must overcome the strong presumption that trial counsel’s conduct fell within the broad range of reasonable professional conduct. In the absence of testimony to the contrary, trial counsel’s actions are presumed strategic.

At the hearing on the motion for new trial, Summerour’s new counsel argued that Summerour was denied effective assistance of trial counsel. However, neither Summerour’s trial counsel nor any other witness, including Summerour, testified at the hearing on the motion for new trial. Thus, Summerour made no affirmative showing that the purported deficiencies in his trial counsel’s representation were indicative of ineffectiveness and were not examples of a conscious and deliberate trial strategy.

Inasmuch as Summerour failed to establish that any aspect of his trial counsel’s performance was deficient and that the deficiency was prejudicial, the trial court did not err in concluding that Summerour was not deprived of the effective assistance of counsel at trial.

Decided March 3, 2000.

Dennis C. O’Brien, for appellant.

Robert E. Keller, District Attorney, Verda Andrews-Stroud, Lalaine A. Briones, Assistant District Attorneys, for appellee.

4. The trial court did not err in denying Summerour’s motion for a directed verdict of acquittal on the statutory rape charge as there was sufficient evidence for a rational trier of fact to find Summerour guilty beyond a reasonable doubt of this charge. Summerour’s claim that insufficient evidence of penetration existed lacks merit.

In Georgia, the penetration of the female sexual organ by the male sexual organ, which is necessary to constitute rape, need be only slight and may be proved by indirect or circumstantial evidence; it is not necessary that the vagina is entered or the hymen is ruptured, but an entering of the anterior of the organ is sufficient.

The victim testified that Summerour told her to pull down her pants and sit on top of him. He unzipped his pants and put his penis in her vagina. After one minute he stopped and told her he would wait until she started her period. Although the victim had her eyes closed, she testified that the object that touched her vagina was not a hand. This testimony presented sufficient evidence of penetration to allow a rational trier of fact to find Summerour guilty beyond a reasonable doubt of statutory rape.

Judgment affirmed.

McMurray, P. J, and Phipps, J., concur.

       OCGA § 16-6-2 (a).

        Brewer v. State, 271 Ga. 605, 606-607 (523 SE2d 18) (1999).

       Id. at 607; State v. Collins, 270 Ga. 42, 44-45 (508 SE2d 390) (1998).

       (Punctuation and footnote omitted.) Id.; Brewer, supra at 608.

        Casey v. State, 237 Ga. App. 461, 462-463 (3) (515 SE2d 429) (1999).

        Collins, supra.

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

        Calloway v. State, 199 Ga. App. 272-273 (1) (404 SE2d 811) (1991) (showing force based on victim’s fear due to defendant’s “fights and fusses” with victim’s mother).

       (Citations and punctuation omitted.) Id.

        Collins, supra at 45; Calloway, supra at 272.

        Butler v. State, 178 Ga. App. 110, 113 (4) (342 SE2d 338), rev’d on other grounds, State v. Butler, 256 Ga. 448 (349 SE2d 684) (1986).

        Rivers v. State, 271 Ga. 115, 117 (2) (516 SE2d 525) (1999).

        McClarity v. State, 234 Ga. App. 348, 350 (3) (506 SE2d 392) (1998).

        Hamilton v. State, 238 Ga. App. 320, 322 (3) (517 SE2d 118) (1999).

       Id. at 321.

        Spruell v. State, 237 Ga. App. 448, 449 (1) (514 SE2d 896) (1999); Ortiz v. State, 222 Ga. App. 432 (1) (474 SE2d 300) (1996).

        Spruell, supra; Richie v. State, 183 Ga. App. 248 (1) (358 SE2d 648) (1987).


text:
    A00A0276.
    HAWKINS v. THE STATE.
    (528 SE2d 853)
   Phipps, Judge.

Following denial of his motion for new trial, Kenny Hawkins appeals his armed robbery conviction. He contends that the trial court erred in denying his oral request to instruct the jury on theft by receiving stolen property as a lesser included offense and that the evidence is insufficient to support the verdict. Finding no error by the trial court in refusing to give the requested charge and ample evidence to support the verdict, we affirm.

On the evening of September 16, 1997, Cheryl Brown went to her aunt’s home and parked her car in the driveway. As she was exiting the car, she came face-to-face with a man holding a shotgun. Thinking she was about to be shot, she escaped through the passenger side of the car. The man instructed her to drop the car keys, and she complied. She then fled across the street, and the man departed the scene in her car.

Afterward, the police were contacted. Brown described her assailant as a black male, about 17 to 19 years old, approximately 5'7" tall, weighing about 130 pounds, with a thin build, dark complexion, and short Afro haircut. Four days after Brown’s car was stolen, the police apprehended Hawkins and Carey Williams attempting to sell it. Hawkins fit the basic description given by Brown. The following day, Brown viewed a photographic lineup containing Hawkins’s picture. She positively identified him in the lineup and at trial. Williams pled guilty to the charge of theft by receiving stolen property and testified against Hawkins.

1. For a number of reasons, the court did not err in refusing to give Hawkins’s oral request for a jury instruction on the theft offense.

To begin with, theft by receiving stolen property is not a lesser included offense of armed robbery but is a separate offense proved by an entirely different set of facts. A defendant is not entitled to an instruction on an offense for which he has not been charged that is not a lesser included charge.’ [Cit.]”

And even if theft by receiving were a lesser included offense of armed robbery, the court would not have erred in refusing to give the requested charge here. Absent a written request to charge, the failure to instruct the jury on a lesser included offense is not error unless the charge constitutes the defendant’s sole defense. Hawkins’s defense was alibi. Moreover, the State’s evidence did not show that Hawkins received the car in any way other than by perpetrating an armed robbery upon the owner, and Hawkins denied ever acquiring possession or control of the car. Therefore, neither the evidence presented by the prosecution nor the evidence presented by the defense reasonably raised the issue that Hawkins may have been guilty of theft by receiving.

2. In challenging the sufficiency of the evidence, Hawkins maintains that Brown’s identification of him was inadequate to provide proof of guilt beyond a reasonable doubt, because the armed robbery occurred at night and Brown did not notice a scar on his face. Hawkins also attacks Williams’s credibility due to an inconsistency between testimony given by him at his guilty plea hearing and at trial and because of his admission that he had told police what they wanted to hear.

Decided January 26, 2000 —

Reconsideration denied March 6, 2000.

Gerard B. Kleinrock, for appellant.

Kenny Hawkins, pro se.

J. Tom Morgan, District Attorney, Maria Murder-Ashley, Assistant District Attorney, for appellee.

Even though the robbery was committed at night, both Brown and her aunt testified that the area was well lit. Brown also testified that she got a good look at Hawkins, and she was unwavering in her identifications of him. She explained that she did not see his scar because it is on the side of his face, and at the time of the robbery, she was looking directly at him. Issues relating to Williams’s credibility were within the exclusive province of the jury. Construed in a light most favorable to the verdict, the evidence authorized any rational trier of fact to have concluded that Hawkins was guilty of armed robbery beyond a reasonable doubt.

Judgment affirmed. Johnson, C. J, and McMurray, P. J, concur.

        Bethel v. State, 232 Ga. App. 82, 85 (2) (500 SE2d 595) (1998).

       Id.

       See Jones v. State, 220 Ga. App. 784 (470 SE2d 326) (1996).

       See Jackson v. State, 213 Ga. App. 170, 171 (2) (b) (444 SE2d 126) (1994) (charge on lesser included offense not required where the evidence shows either the commission of the completed offense as charged or the commission of no offense); Hurston v. State, 202 Ga. App. 311 (1) (414 SE2d 303) (1991) (“receiving” stolen property means acquiring possession or control).

        Starks v. State, 237 Ga. App. 741 (516 SE2d 590) (1999).

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


text:
    A99A2085.
    THE STATE v. WARREN.
    (530 SE2d 515)
   Miller, Judge.

Indicted for illegal drug possession, Ronnie Warren moved on various grounds to suppress the cocaine found in his car, including that the officer lacked a reasonable suspicion to stop him. After an evidentiary hearing, the trial court granted the motion, holding that the officer lacked “probable cause” for the traffic stop.

The court erred in basing its ruling on the conclusion that the State failed to prove probable cause for the traffic stop. As reiterated in Raulerson v. State:

[A]n officer may conduct a brief investigative stop of a vehicle only when such a stop is justified by specific, articulable facts sufficient to give rise to a reasonable suspicion of criminal conduct. This suspicion need not meet the standard of probable cause, but must be more than mere caprice or a hunch or an inclination.

Decided March 6, 2000.

Peter J. Skandalakis, District Attorney, Anne C. Allen, Assistant District Attorney, for appellant.

Kam & Ebersbach, Michael G. Kam, Brian D. Lewis, for appellee.

On a motion to suppress, it is within the sole province of the trial court to hear the evidence and determine the facts based on the credibility of the witnesses and the resolution of conflicting evidence. Thus, where the trial court has used the wrong standard in reaching its conclusion and legitimate credibility issues are raised, we vacate the judgment and remand the case for reconsideration in light of the correct standard. Here the cross-examination of the officer raised legitimate credibility issues about his truthfulness, including about whether the backup lights were indeed activated. Thus, we vacate the judgment and remand the case for the trial court to determine whether the officer had a reasonable, articulable suspicion of criminal activity to justify stopping Warren. For the benefit of the trial court, we note that improperly activated backup lights would violate OCGA § 40-8-26 (b)’s requirement that “other signal lights . . . shall at all times be maintained in good working condition.”

Judgment vacated and case remanded with direction.

Pope, P. J., and Smith, J., concur.

       223 Ga. App. 556 (479 SE2d 386) (1996).

       (Citations and punctuation omitted.) Id. at 557 (2).

        Tate v. State, 264 Ga. 53, 56 (3) (440 SE2d 646) (1994).

       See, e.g., State v. Long, 239 Ga. App. 463, 465-466 (521 SE2d 401) (1999); State v. Barnett, 233 Ga. App. 496, 498 (2) (504 SE2d 531) (1998).


text:
    A99A2342.
    HANSCHE v. CITY OF ATLANTA POLICE DEPARTMENT.
    (530 SE2d 512)
   Miller, Judge.

The State Board of Workers’ Compensation awarded Naomi M. Hansche temporary partial disability (TPD) benefits arising out of an injury she received while working for the City of Atlanta Police Department. After the Board modified the award to comply with a mandate from the superior court to account for credits required by OCGA § 34-9-243 (a), she petitioned the superior court to enter a judgment in the amount of the reduced award. The court declined, finding the Board’s decision unclear as to the amount of the credit. The question on appeal is whether a Board decision directing that a credit ($300 per week for nine weeks) be applied to reduce TPD benefits awarded in an earlier order is sufficiently clear to require a superior court to enter a judgment in the amount of the awarded benefits less $2,700. We hold that it is and reverse.

The operative facts are undisputed. Hansche, a City of Atlanta police officer, held a second job as a security officer. After she injured her shoulder in the course of her City employment, she was diagnosed with a traumatic degenerative joint disease in her left shoulder, and an administrative law judge (ALJ) for the Board concluded that she could not perform any active motion with her left arm.

Following her injury Hansche returned to work for the police department in the “911” communication center at her same pay. She did not return to her second job, and the ALJ found that her injuries prevented her from performing anything more than her light-duty work with the City. Due to her disability, Hansche intermittently did not work at all for a total of about nine weeks, during which time the City nevertheless paid her her full salary under its “injured on the job” program. Her full salary exceeded by $300 per week the benefits she would have been due as total disability.

For those weeks when Hansche did work at the “911” job through the present, the ALJ awarded Hansche TPD benefits of $182.64 per week to account for the loss of income from her second job. Attorney fees were also awarded. The ALJ also gave the City a $300 per week credit for the nine weeks the City paid Hansche’s full salary when she was entitled to temporary total disability income benefits. But the ALJ concluded that the City was not entitled to any credit during the time Hansche was entitled to TPD income benefits.

The Board confirmed the award but added a paragraph to the ALJ’s award to expressly incorporate the ruling that the credit did not apply to offset the TPD benefits awarded. On appeal the superior court reversed and remanded, holding that the credit should be applied to offset the TPD benefits as well. On remand the Board complied, ruling that the nine $300 excess payments applied as a credit “to the temporary partial disability benefits awarded to the employee and future weekly benefits.” Neither Hansche nor the City appealed this modified award to the superior court.

Hansche subsequently demanded payment of the TPD benefits (reduced by the $2,700), but the City declined, arguing that the salary paid to Hansche during the time she actually worked at the “911” job should also be credited against the TPD benefits. Hansche filed in superior court a Petition for Entry of Judgment under OCGA § 34-9-106 and requested (in an amendment) a net judgment of $25,771.14 in TPD benefits, attorney fees, and penalties due, after allowing a credit to the City of $2,700. The superior court denied Hansche’s petition on the ground that the Board award was unclear as to the amount of the credit, and Hansche filed this direct appeal.

Decided March 6, 2000

Hansche’s sole enumeration of error is that the superior court erred in denying her Petition for Entry of Judgment. OCGA § 34-9-106 is the mechanism for transforming a Board award into an enforceable judgment. The role of the superior court is very narrow and is limited to rendering judgment on the award and notifying the parties, unless the award, on its face, is legally insufficient.

Here the award was legally sufficient. The credit due the City was $2,700 (nine weeks of $300 in excess payments) to be offset against the TPD benefits. The Board referenced no other offsets or credits. We discern nothing unclear or indefinite about this award or credit. By failing to appeal the Board’s award, the City has waived any new argument that it is due an additional credit for the salary it has been paying Hansche for performing her “911” job. As this issue of an additional credit could and should have been raised before the Board, the Board’s unappealed award resolves the issue against the City as a matter of res judicata.

Because the Board’s award was for an amount certain and clearly incorporated the superior court’s directions on remand, the court erred in denying the amended Petition for Entry of Judgment. We reverse and remand the case for the superior court to enter judgment as demanded in the amended petition.

Judgment reversed and case remanded with direction.

Pope, P. J., and Smith, J., concur.

Dietrick, Evans, Scholz & Williams, William P. Evans, for appellant.

Bruce P Johnson, Susan P Langford, for appellee.

        Kingery Block &c. Co. v. Luttrell, 174 Ga. App. 481, 482 (330 SE2d 181) (1985) (order issued under OCGA § 34-9-106 subject to direct rather than discretionary appeal).

        Wade v. Harris, 210 Ga. App. 882, 885 (1) (437 SE2d 863) (1993); City of Hapeville v. Preston, 67 Ga. App. 350, 357 (20 SE2d 202) (1942) (the superior court is to enforce, not change, the award).

       We do not rule on whether this argument is meritorious.

       See Savannah Lumber Co. v. Burch, 165 Ga. 706, 709 (142 SE 83) (1928) (employer’s waiver of objection to enforcement of award may be inferred from failure to appeal); Lil Champ Food Stores v. Dept. of Transp., 230 Ga. App. 715, 718 (4) (498 SE2d 94) (1998) (failure to appeal condemnation action waives issue of business losses).

        Webb v. City of Atlanta, 228 Ga. App. 278, 279-280 (1) (491 SE2d 492) (1997); Caldwell v. Perry, 179 Ga. App. 682, 683-684 (2) (347 SE2d 286) (1986).


author: Smith, Judge.

text:
    A99A2398.
    HARDING v. THE STATE.
    (530 SE2d 514)
   Smith, Judge.

Sherrie G. Harding was convicted by a Putnam County jury of DUI by being in actual physical control of a moving vehicle while under the influence of alcohol to the extent that it was less safe for her to do so, OCGA § 40-6-391 (a) (1), and failure to maintain lane, OCGA § 40-6-48. Harding’s motion for new trial was denied, and she appeals. Finding no error, we affirm.

In her three enumerations of error, Harding challenges the sufficiency of the evidence to support her conviction for DUI. Construed in favor of the jury’s verdict, the evidence shows that a Putnam County sheriff’s deputy was driving home for dinner about 6:30 in the evening when he noticed a green Dodge Intrepid driving in his lane, coming directly toward him. The Dodge Intrepid continued traveling in the deputy’s lane, forcing him to “leave the roadway to keep from hitting it head on.” The deputy immediately turned his patrol car around, but as soon as he did so, the car “sped off.” He pursued the car; the driver did not stop but continued to flee and was “pulling away” from him. After some pursuit, the deputy came around a curve and discovered the green Dodge Intrepid upside down in a ditch.

As the deputy approached, Harding was crawling out of the car, and it was obvious to him that she was “delirious.” As soon as he got close to her, he could smell alcohol on her. She immediately and repeatedly asked him to call her father and told him she did not want an ambulance. The deputy testified that he had made numerous DUI arrests and recognized the smell of alcoholic beverage. He perceived a strong odor of alcoholic beverage coming from about her person, and from talking to her he “was sure she was under the influence.” Even making allowances for the fact that she had just been involved in an accident and was somewhat shaken up, “it was pretty obvious that she had been . . . drinking.” That, in combination with her running him off the road and fleeing his pursuit, indicated to him that she was under the influence of alcohol and not, in his opinion, a safe driver. The State Patrol officer who interviewed Harding at the hospital also testified that he smelled the strong odor of alcoholic beverage about her person.

Decided March 6, 2000.

Hugh D. Ridgway III, for appellant.

Donald W. Huskins, Solicitor, for appellee.

Driving under the influence of alcohol may be shown by circumstantial evidence, including the manner of driving when there is evidence that the defendant has been drinking. Duggan v. State, 225 Ga. App. 291, 293-294 (1) (483 SE2d 373) (1997). In this case, Harding was driving erratically, ran a deputy’s car off the road, fled when pursued, and wrecked her car. Both the deputy and the state trooper testified to the strong odor of alcoholic beverage on Harding’s person. The deputy also testified that, based on his experience and his observations of Harding’s unusual behavior and demeanor, as well as the strong odor of alcohol he noticed after the wreck, Harding was under the influence of alcohol and was not a safe driver. “A police officer may give opinion testimony as to the state of sobriety of a DUI suspect and whether appellant was under the influence to the extent it made him less safe to drive.” (Citations and punctuation omitted.) Tanner v. State, 225 Ga. App. 702 (484 SE2d 766) (1997).

This constituted evidence of impaired driving ability caused by alcohol, and it was within the province of the jury to determine the credibility of the witnesses and the evidence they offered. The evidence was sufficient to enable a rational trier of fact to find Harding guilty of DUI under the standard set forth in Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

Pope, P. J., and Miller, J., concur.

       Harding was acquitted of DUI by being in actual physical control of a vehicle within three hours of having an alcohol concentration of 0.10 grams or more, OCGA § 40-6-391 (a) (5).


author: Ruefin, Judge.

text:
    A99A1625.
    JOHNSON v. THE STATE.
    (530 SE2d 519)
   Ruefin, Judge.

A Richmond County jury convicted Anthony Johnson of first degree arson. On appeal, Johnson contends that the trial court erred in denying his Brady motion and in failing to order the State to produce prior, inconsistent statements made by several State witnesses. For reasons that follow, we affirm.

The relevant facts follow. On September 14, 1991, while at Cumberland Apartments, Johnson, Dwayne Williams, and Valdez Lamkin decided to “scare” apartment manager Frank Olive by throwing Molotov cocktails into his apartment because of an alleged derogatory comment he made. Johnson and Williams went to a gas station, and Williams pumped gasoline into a container while Johnson paid for the gas. The two returned to the apartment of Michelle Imler, and Williams assembled four Molotov cocktails using Coke bottles, gasoline, and socks that Johnson obtained from Imler.

The Molotov cocktails were handed to Valdez and to three juveniles who happened to be at Imler’s apartment. The group proceeded to Olive’s apartment building, where Johnson and Williams poured the leftover gasoline on the stairway and landing leading to Olive’s second-story apartment and set it on fire. Two of the Molotov cocktails were thrown into Olive’s bedroom, where he slept with his girlfriend, Janice Osmundson. Although Osmundson managed to escape from the burning apartment, Olive did not and died of smoke inhalation.

Investigator Keith McGarity of the Richmond County Sheriff’s Department arrived at the scene the night of the fire. He attempted to interview several bystanders. According to McGarity, all the witnesses except Osmundson either refused to comment or stated that they did not know anything about the fire. McGarity took notes from his conversations but did not tape record any interviews. McGarity later interviewed several participants, including Johnson. According to McGarity, he provided all the notes from his interviews to the district attorney’s office, but the notes apparently were not provided to Johnson’s attorney.

When McGarity interviewed Johnson, he gave a statement implicating himself, Williams, and Lamkin, as well as several of the juveniles. Johnson, Williams, and Lamkin were charged with two counts of murder, arson, aggravated assault, and criminal possession of incendiary materials. Williams pled guilty to arson and voluntary manslaughter and testified against Johnson and Lamkin, who were tried jointly. Both Johnson and Lamkin testified in their own'defense and admitted participating to some degree in the venture, but both denied either intentionally harming Olive or actually starting the fire. Lamkin admitted throwing a Molotov cocktail but said that it hit a brick wall and did not go through the window. Johnson’s statement to McGarity was also tendered into evidence. The jury convicted Johnson and Lamkin of arson but acquitted them of the remaining charges.

In two claims of error, Johnson argues that the trial court erred in denying his Brady motion. Johnson contends that, under Brady, he was entitled to McGarity’s notes from his interviews of the participants. According to Johnson, at least three of the juvenile participants who testified at trial initially gave McGarity statements that were inconsistent with their trial testimony. Johnson contends that he was denied a fair trial because he was unable to impeach these witnesses with their prior statements. We disagree.

In order to establish a violation of Brady, Johnson must demonstrate that: (1) the State had evidence favorable to his defense; (2) he did not have the evidence nor could he have obtained the evidence with any reasonable diligence; (3) the State suppressed the evidence; and (4) had the evidence been disclosed to him, there exists a reasonable probability that the outcome of the trial would have been different. Johnson fails to satisfy these elements.

McGarity testified that initially, the juveniles denied knowledge of or involvement in the fire. In subsequent interviews, the witnesses still refused to implicate anyone in the crime. At trial, however, the juveniles testified in detail regarding their involvement in the events leading up to the fire that killed Olive, but only one of the juvenile witnesses implicated Johnson in the crime.

Contrary to Johnson’s contention, there is no Brady violation. Brady requires that the State disclose evidence that is favorable to the defense. It does not require that the information be provided before trial. Here, McGarity’s trial testimony informed jurors that the juveniles initially had denied knowledge of or involvement in the crime. Thus, the State disclosed the requisite information to Johnson. Unless Johnson can show that the State’s failure to disclose this information prior to trial deprived him of a fair trial, his claim of error must fail.

We fail to see how the State’s failure to provide the information prior to trial deprived Johnson of a fair trial. As an initial matter, only one of the juvenile witnesses implicated Johnson in the crime. Thus, we question whether Johnson would have benefitted from impeaching the other juvenile witnesses. Moreover, we note that the witnesses’ earlier statements in which they denied participating in the crime were made in their own interests. At trial, the witnesses acknowledged participating, to some degree, in the incident. We find it unlikely that the jurors would assign more credence to the witnesses’ earlier, self-serving statements, rather than to their self-implicating trial testimony. Even if the jurors were prone to believing the prior statements, the jurors were aware of them. Under these circumstances, we fail to see how the result of the trial might have been different if Johnson had been given the prior inconsistent statements before trial.

Decided March 7, 2000.

Stanley C. House, for appellant.

Daniel J. Craig, District Attorney, Charles R. Sheppard, Assistant District Attorney, for appellee.

Judgment affirmed.

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

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

       It is unclear from the record who actually threw the Molotov cocktails that landed in the apartment.

        Burgeson v. State, 267 Ga. 102, 104 (2) (475 SE2d 580) (1996).

        Dennard v. State, 263 Ga. 453, 454 (4) (435 SE2d 26) (1993).

       Id.


text:
    A99A2213.
    SULLIVAN v. THE STATE.
    (530 SE2d 521)
   Ruffin, Judge.

A Henry County jury convicted Clifton Ray Sullivan of armed robbery and kidnapping with bodily injury. Sullivan appeals, claiming that the trial court erred in: excluding relevant evidence, admitting inflammatory evidence, improperly charging the jury on circumstantial evidence and failing to specifically charge the jury on identity. We find these enumerations of error lack merit and affirm.

The evidence shows that on July 27, 1991, B. J. Craig visited JoAnn Tehonica at her trailer home. Craig was carrying a large amount of cash, and Tehonica resolved to steal it from him. Toward that end, she telephoned Janet Krebs, and they formed a plan to drug Craig, who had been drinking heavily, into unconsciousness and then take his money. Krebs brought Xanax to Tehonica’s trailer, and Tehonica, Krebs and Craig took the drug. When Craig did not lose consciousness, Krebs telephoned John Wilkins and asked him to come to her trailer with his baseball bat to knock Craig unconscious. Wilkins went to the trailer, and subsequently Sullivan, who was known as “Flea,” arrived and joined Tehonica, Krebs and Wilkins in the plot to steal Craig’s money.

Sullivan agreed to beat Craig with the bat. After one of the conspirators covered Craig with a blanket, Sullivan struck Craig ten or twelve times with the bat, rendering him unconscious. Sullivan and Wilkins then took the money and carried Craig to his car. They drove into the woods on a dirt road, followed by Krebs in her car. They abandoned Craig in his car, returned to the trailer and divided the money.

1. Before trial, the State moved to exclude evidence that Craig was a drug dealer, and the trial court granted the State’s motion. Sullivan argued the evidence was admissible to show that Craig’s narcotic sales generated cash, which he “flashed” on a regular basis, thereby giving many people a motive to rob him. Sullivan could not, however, point to any person, not already tied to the crime, who knew that Craig carried a large amount of cash. Thus, the trial court refused to allow Sullivan to impugn Craig’s character by inquiring into how he obtained his money. But the trial court did agree to allow Sullivan to inquire into whether many people knew that Craig had a lot of cash.

As a general rule, evidence that implicates another as the perpetrator of a crime is relevant and admissible as it tends to exonerate the defendant. But to be admissible, the evidence must “point out someone besides the accused as the guilty person. Evidence which can have no other effect than to cast a bare suspicion on another, or to raise a conjectural inference as to the commission of a crime by another, is not admissible.” Thus, while Sullivan was entitled to introduce testimony to show that another person may have committed the crime for which he was being tried, “the proffered evidence must raise a reasonable inference of [his] innocence. . . ”

Here, the evidence does not raise a reasonable inference of Sullivan’s innocence but merely raises conjecture that one of several hypothetical thieves may have been involved in the robbery and kidnapping. Accordingly, the trial court did not err in excluding the evidence of Craig’s alleged drug dealing.

2. Sullivan next asserts that the trial court erred in admitting photographic exhibits that showed the extensive injuries to Craig because the photographs were cumulative and so prejudicial that they violated fundamental notions of fairness guaranteed by the Fifth Amendment of the United States Constitution. “The admission of photographs into evidence is a matter within the discretion of the trial court.” We will not find that the trial court abused that discretion so long as the photographs are relevant and not inflammatory. We have reviewed the six photographs which showed that Craig suffered numerous injuries around his head and upper body. The photographs were relevant evidence of the crime, and we do not find the photographs are so inflammatory as to warrant exclusion. Thus, the trial court did not abuse its discretion in admitting them.

3. Sullivan also contends that the trial court improperly charged the jury on circumstantial evidence. This claim lacks merit. The trial court charged that: “To warrant a conviction on circumstantial evidence alone, the proven facts must not only be consistent with the theory of guilt, but must exclude every other reasonable theory other than the guilt of the accused. . . .” This charge is the same as that approved in Wynn v. State and thus was not erroneous.

Decided March 7, 2000.

Chapman & Pope, Daniel C. Chapman III, for appellant.

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

4. In his final enumeration of error, Sullivan argues that the trial court erred in failing to charge the jury that the State must prove the identity of the perpetrator of the crime beyond a reasonable doubt. Sullivan correctly notes that the State, as an element of its case, must prove his identity as the perpetrator of the crime.6 Although the trial court did not give Sullivan’s charge as requested, it instructed the jury regarding the general principle of law by informing jurors that they must find beyond a reasonable doubt that the defendant committed the offenses charged in the indictment. “A trial court does not err in failing to give an appropriate request to charge, as written, when its charge as a whole contains the same principles of law set forth in the request.”

Moreover, we note that the instruction Sullivan requested provided that the jurors must “believe that the defendant has been sufficiently identified as the person who committed the alleged crime.” But here, Sullivan could also be found guilty as a party to the crime, and the jury was instructed accordingly. Thus, his requested charge suggesting that he would have to be sufficiently identified as the one who actually committed the crime might have confused the jury. “The trial court does not err when it refuses to give a charge which might mislead or confuse the jury.”

Judgment affirmed.

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

        Bell v. State, 235 Ga. App. 825, 826 (510 SE2d 589) (1998).

       (Punctuation omitted.) Id.

        Klinect v. State, 269 Ga. 570, 573 (3) (501 SE2d 810) (1998).

        Taylor v. State, 271 Ga. 629, 630 (2) (523 SE2d 322) (1999).

       Id.

       236 Ga. App. 98, 101 (3) (511 SE2d 201) (1999).

        Marshall v. State, 239 Ga. App. 850, 851 (1) (522 SE2d 273) (1999).

        White v. State, 233 Ga. App. 276, 279 (4) (503 SE2d 891) (1998).

        Snoke v. State, 237 Ga. App. 686, 690 (5) (516 SE2d 541) (1999).