text:
    A99A2071.
    RAINES v. THE STATE.
    (531 SE2d 158)
   Pope, Presiding Judge.

Bernard Lee Raines represented himself at trial and was convicted on one count of robbery by intimidation. He was sentenced to ten years. On appeal Raines asserts that he was denied his constitutional right to counsel.

On the day of his trial, Raines appeared without counsel and stated that he intended to defend himself. The trial court asked Raines why he had not gotten a lawyer. Raines replied that he could not afford one. He stated that he had talked to several lawyers, but they would not represent him. In response to the court’s further inquiries, Raines repeatedly stated he could not get an attorney because he did not have enough money to pay one.

The trial court then asked: “And to that extent, do you understand that you probably need a lawyer to represent you, you’re charged with a very serious crime?” Raines responded by saying that he understood but after reading over the evidence he could defend himself. The state then asked the court to apprise him of the dangers of self-representation, and the court stated:

More particularly, you don’t know the procedure, you don’t know the — you’re not an expert in the law to be able to represent yourself, Mr. Raines; do you understand that? And you understand that consequently, you can end up, if you are found guilty going to jail?

Raines replied affirmatively, and the court found that Raines understood the dangers and chose to represent himself, stating: “He’s aware of the dangers — that he can go to jail because he’s not aware of the intricacies in representing — and the procedures.” The court again asked Raines if he understood, and Raines responded affirmatively.

Then, after voir dire, but before the trial began, the trial court stated that “having your own lawyer is a very important constitutional right” before again asking Raines if he was waiving his right. Raines replied in the affirmative.

At the state’s request, the trial court also adopted the finding of the county’s indigent defense office that Raines was not indigent. And based upon the state’s representation of the case history and a letter from counsel briefly employed by Raines, the trial court found that Raines had not acted diligently in seeking to obtain counsel.

1. Raines first asserts that the trial court erred in finding that he waived his right to counsel. We agree.

Because Raines was charged with a crime, in this case a felony, for which imprisonment is a penalty, he had a constitutional right to counsel, subject only to a voluntary and knowing waiver. Heard v. State, 236 Ga. App. 625, 626 (513 SE2d 35) (1999). And whether there was a voluntary and knowing waiver must be considered in light of the circumstances of the case:

The determination of whether there has been an intelligent waiver of the right to counsel must depend, in each case, upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused. [Cit.]

(Punctuation omitted.) Coppolla v. State, 238 Ga. App. 567, 573 (2) (519 SE2d 494) (1999).

When Raines appeared for trial without counsel, the trial court had the duty to ensure that Raines had been informed of the right to counsel and the dangers of proceeding pro se and further that he had made an informed waiver of his rights. Coppolla v. State, 238 Ga. App. at 573 (2). On appeal, the state has the burden of demonstrating from the record that Raines “received sufficient information and guidance from the trial court upon which to knowingly and intelligently relinquish this right.” Hamilton v. State, 233 Ga. App. 463, 467 (1) (b) (504 SE2d 236) (1998). Although Georgia courts do not require that a trial court recite any “magic language,” the record must reflect that the accused was made aware of the dangers of self-representation:

To be valid, the waiver must be made with an apprehension of the nature of the charges, the statutory offenses included within them, the range of allowable punishments thereunder, possible defenses to the charges and circumstances in mitigation thereof, and all other facts essential to a broad understanding of the matter.

(Citation omitted.) McDowell v. State, 239 Ga. App. 667, 669 (1) (522 SE2d 44) (1999).

In this instance, the trial court did little more than tell Raines that because he was unfamiliar with law and procedure, he ran the risk of going to jail if he chose to proceed without a lawyer. We find the trial court’s statements to be insufficient to inform Raines of the risks he faced in representing himself on a charge of robbery. Nothing in the record reflects that the trial court sought to determine that Raines was aware of any of the factors necessary to make a knowing waiver, including the nature of the charge (other than it was serious), any lesser included offenses, the potential punishment, or any possible defenses or mitigating circumstances.

Moreover, given Raines’ repeated assertions that he could not afford an attorney, it is likely he chose to represent himself “because he believed he did not qualify for a court-appointed attorney and he could not afford to retain a private attorney.” Martin v. State, 240 Ga. App. 246, 248 (1) (523 SE2d 84) (1999). See also Flanagan v. State, 218 Ga. App. 598, 600 (462 SE2d 469) (1995). Under these circumstances, we find that Raines did not make a knowing and voluntary waiver of his right to counsel. See Hasty v. State, 215 Ga. App. 155, 159 (2) (450 SE2d 278) (1994).

And even though the evidence against Raines was substantial, we cannot hold that the error was harmless. The record does not indicate that Raines had been through any prior legal proceedings, and the trial transcript reflects Raines’ inexperience in legal matters. For example, he failed to ask any questions on voir dire; he raised no objections; and he failed to request any jury charges, including a charge that his failure to testify could not be used against him, even though the trial court had earlier informed him of his rights in that regard. Because we cannot conclude that Raines’ conviction was “independent of his decision to represent himself,” we reverse the judgment of the trial court below and remand for a new trial. Prater v. State, 220 Ga. App. 506, 509 (469 SE2d 780) (1996).

2. We next address Raines’ claim that the trial court erred in failing to conduct an inquiry as to his indigence and thus whether he was entitled to appointed counsel. While we are aware that a trial court’s determination regarding a defendant’s indigent status is not subject to review, we may inquire into whether the trial court followed the proper procedure in making that determination. Hawkins v. State, 222 Ga. App. 461, 462 (1) (474 SE2d 666) (1996).

When Raines appeared at trial without counsel, the court was required to determine three issues on the record:

(1) whether [he] was eligible to have appointed counsel represent him, and if not, (2) whether [he] exercised reasonable diligence in attempting to retain trial counsel and (3) whether the absence of trial counsel was attributable to reasons beyond [his] control. [Cits.]

Martin v. State, 240 Ga. App. at 248 (2). In this instance, the trial court simply adopted the findings of the county’s indigent defense office that Raines was not indigent. But the record contains no evidence of how the county’s indigent defense office arrived at that conclusion. Although the office apparently reported to the trial court on the issue, the record does not contain any transcript of that report or any written documentation addressing Raines’ financial affairs. From the record before us, therefore, it appears that the trial court improperly “delegated . . . [the] nondelegable duty to inquire about the facts of indigence.” Id. See also McQueen v. State, 228 Ga. App. 732, 733 (2) (492 SE2d 720) (1997).

Decided March 13, 2000.

George D. Bush, for appellant.

Daniel J. Craig, District Attorney, Nancy B. Johnson, Charles R. Sheppard, Assistant District Attorneys, for appellee.

Accordingly, we direct the trial court to make a determination on the record as to whether he qualifies for appointed counsel in his new trial.

3. And even if Raines is not determined to be indigent, “it is incumbent upon the trial court to further determine on the record whether [he acted diligently] in attempting to obtain an attorney and whether [the absence] of an attorney [was attributable] to reasons beyond his control.” Martin v. State, 240 Ga. App. at 251 (3). Under the Uniform Superior Court Rules, while a trial court does not have a duty to appoint counsel to a nonindigent defendant, it has the discretion to do so. USCR 29.4 and 29.5. Moreover, a trial court must affirmatively exercise its discretion based upon the individual circumstances of the case. McQueen v. State, 228 Ga. App. at 734 (2); Flanagan v. State, 218 Ga. App. at 600-601.

Raines asserts that the trial court failed to properly inquire as to whether he was diligent in seeking to employ counsel, but the record reflects that the trial court did make inquiry on that issue. The district attorney outlined for the court the history of the case and Raines’ efforts to obtain counsel; Raines did not dispute the state’s recitation. The inquiry should not end with the issue of diligence however; the trial court should also consider any other special circumstances of the case, including the fact that Raines suffers from glaucoma, which affects his sight and may impede his ability to represent himself. Flanagan v. State, 218 Ga. App. at 601. And in exercising its discretion on this issue, the trial court should bear in mind that it may order Raines to reimburse the county over time. Id.; see OCGA §§ 17-12-10 (c); 17-12-11.

Judgment reversed and case remanded with direction.

Smith and Miller, JJ, concur.

       The state did introduce a letter by Raines’ former counsel, who withdrew from his representation less than a month after entering an appearance, stating that he had told Raines he “should not attempt to handle this matter without the aid of an attorney.” While this letter indicates the attorney advised against proceeding pro se, it does not indicate that he informed Raines of the potential dangers he faced in doing so.

       The only evidence regarding Raines’ financial situation was introduced at the hearing on his motion for new trial. His girlfriend testified that at the time of his trial he was receiving only a $426 monthly check from the Veterans Administration and that an unspecified portion of that check was automatically deducted for child support.


source: Caselaw Access Project

author: Smith, Judge.

license: Public Domain

text:
    A99A2104.
    STALLINGS v. SYLVANIA FORD-MERCURY, INC.
    (533 SE2d 731)
   Smith, Judge.

Gloria Stallings brought this automobile accident collision action against numerous defendants, including not only the driver of the other vehicle, Kennedy, and her father, Lowe, but also Sylvania Ford-Mercury, Inc., Effingham County, and the Georgia Department of Transportation. Her claims against Sylvania, an automobile dealership, are based on her contention that Kennedy was acting as Sylvania’s agent in driving a “loaner” car that Sylvania gave to Kennedy while performing repairs on her father’s truck or, alternatively, that Kennedy, her father, and Sylvania were partners in a joint venture. The trial court granted summary judgment in favor of Sylvania, and Stallings appeals. Because Stallings’s arguments are without merit and based upon significant misunderstandings of the Georgia law of agency and joint venture, we affirm the trial court’s thorough and well-crafted order.

1. No agency relationship was created here. First, Georgia law is abundantly clear that a “loaner” arrangement between car dealers and mechanics and their customers is a bailment, not an agency. Nolley v. Maryland Cas. Ins. Co., 222 Ga. App. 901, 902 (1) (476 SE2d 622) (1996) (written agreement); Johnson v. Hardwick, 212 Ga. App. 44, 45 (2) (441 SE2d 450) (1994) (no written agreement; still considered bailment).

Second, Stallings misapprehends the nature of an agency. “The distinguishing characteristic of an agent is that he is vested with authority, real or ostensible, to create obligations on behalf of his principal, bringing third parties into contractual relations with him.” (Citations and punctuation omitted.) Physician Specialists &c. v. Wildmon, 238 Ga. App. 730, 732 (1) (a) (521 SE2d 358) (1999). Nothing in the record suggests that Kennedy, as the driver of the “loaner” car, was given any authority by Sylvania to create an obligation on behalf of Sylvania or bind it to any contract or agreement. She was simply dropping off her father’s car for repairs and taking the “loaner” car in exchange. Sylvania’s vice president testified that this practice was merely a “courtesy” to regular customers as a matter of convenience and customer relations.

OCGA § 10-6-1 provides: “The relation of principal and agent arises whenever one person, expressly or by implication, authorizes another to act for him or subsequently ratifies the acts of another in his behalf.” Any agency created here would have to be express, implied, or ratified after the fact. While Stallings argues an express agency, she has not provided any evidence in support of that contention.

The existence of agency may be proved by showing circumstances, apparent relations, and conduct of parties. It has long been the Georgia rule that one who is a party to the alleged relationship (the principal or agent) may testify as a fact as to the existence or non-existence of the relationship and that such testimony would not be subject to the objection that the statement was a conclusion or the ultimate fact. The denial of the existence of any agency relationship may thus constitute an uncontradicted fact which will sustain a motion for summary judgment. Where the other party attempts to controvert this fact by circumstantial evidence it must be evidence sufficient to support a verdict: The circumstantial evidence must tend to establish the conclusion projected while rendering less probable all inconsistent conclusions.

(Citations and punctuation omitted.) Guernsey Petroleum Corp. v. Data Gen. Corp., 183 Ga. App. 790, 792 (2) (a) (359 SE2d 920) (1987).

Here, Sylvania’s vice president, Ayers, explicitly denied that he or anyone at Sylvania requested that the driver act as an agent on Sylvania’s behalf. He also denied entering into any joint venture or lease. He stated that the loan of a courtesy car was not automatic or guaranteed and that it was not a lease but “provided as a courtesy only.” This assertion by a party to the alleged agency constituted sufficient evidence to support summary judgment. Moreover, Kennedy’s mother testified that she had intended to drop off the truck for repairs but was unable to leave work and instructed her daughter to leave school early and drop off the truck at Sylvania. The uncontradicted testimony establishes that Kennedy was acting on behalf of her mother rather than for Sylvania.

While Stallings makes the conclusory assertion that Ayers gave contradictory testimony in his deposition, she does not identify by reference to the record any particular testimony she claims is contradictory. Court of Appeals Rule 27 (a) (1). Furthermore, a review of Ayers’s brief deposition reveals nothing contradicting his affidavit testimony that Kennedy was not Sylvania’s agent. He denied giving Kennedy any instructions, beyond reminding her to wear her seat belt as he gave her the keys. Sylvania’s service manager also testified that he did not give Kennedy any directions or instructions. As in Jackson v. Braddy, 186 Ga. App. 284, 285-286 (367 SE2d 96) (1988), no direct evidence shows that Kennedy was Sylvania’s agent, and the circumstantial evidence is consistent with the absence of an agency relationship.

Stallings argues that Kennedy, while delivering the car to the actual customer, her father, was for that brief period the agent of Sylvania. But “[t]he mere fact that a servant is performing work beneficial to a third person, does not render him the servant of such third person.” (Citations and punctuation omitted.) Food Giant v. Davison, 184 Ga. App. 742, 744 (362 SE2d 447) (1987). While Kennedy’s action in picking up the car at her mother’s direction arguably benefitted Sylvania in accomplishing delivery of the “loaner car” to its ultimate destination, the customer, she did not become Sylvania’s agent in doing so. In Brock v. Patterson, 128 Ga. App. 257 (196 SE2d 351) (1973), an employee of a service station delivered a car to its owner by following her home as she drove another car. While the owner instructed the employee to “follow her,” id. at 258, she did not pay the employee and did not give him any instructions regarding how to drive her car. We held that the service station employee did not become the agent of the car owner and “that only a bailment relationship existed between the parties with regard to Miss Brock’s automobile.” Id. As the service station employee in Brock acted on behalf of his employer, Kennedy acted at the direction of and on behalf of her mother, and she was not paid or given any instructions by Sylvania on how to drive the car. Her possession of the “loaner car,” even if for the limited purpose of delivering it to her father, was a bailment and not an agency.

Implied agency may be created “when the statements or conduct of the alleged principal reasonably cause the third party to believe that the principal consents to have the act done on his behalf by the purported agent.” (Citation and punctuation omitted.) Holy Fellowship Church &c. v. Brittain, 240 Ga. App. 436, 437 (1) (523 SE2d 93) (1999). But it

is not predicated on whatever a third party chooses to think an agent has the right to do, or even upon what the agent says he can do, but must be based on acts of the principal which have led the third party to believe reasonably the agent had such authority.

(Citations and punctuation omitted.) Id. at 438 (1). Since Stallings was involved in an unexpected encounter with a driver and car previously unknown to her and has shown no prior knowledge on her part that Sylvania owned the car, she cannot demonstrate any act of Sylvania that caused her to believe that Kennedy was its agent. She has also failed to show that her reliance upon any representation by Sylvania led to her injury. Texaco v. Youngbey, 211 Ga. App. 789, 790 (440 SE2d 533) (1994).

Finally, Stallings does not allege or present any eyidence showing a ratification by Sylvania of any act ostensibly done on its behalf by Kennedy. Stallings has failed to demonstrate agency by any of these methods, and the trial court correctly granted summary judgment on this basis.

Decided March 13, 2000.

Edenfield & Cox, Gerald M. Edenfield, Susan W. Cox, Mary E. Adams, for appellant.

Brennan & Wasden, Joseph P. Brennan, for appellee.

2. Stallings alternatively contends that a joint' venture was entered into by Kennedy and Sylvania, allegedly “to facilitate the repair of Mr. Lowe’s truck by Sylvania.” This argument also is without merit. A joint venture is created “ ‘when two or more combine their property or labor, or both, in a joint undertaking for profit, with rights of mutual control, provided the arrangement does not establish a partnership.’ ” Helms v. Young, 130 Ga. App. 344, 346 (1) (203 SE2d 253) (1973). And “ ‘[t]here must be not only a joint interest in the objects and purposes of the undertaking, but also a right, express or implied, of each member of the joint venture to direct and control the conduct of the other.’ ” Id. Not only is there no showing of a combination of property or labor here, there is no right of control shown in either party to the alleged joint venture. The loaning of goods to a customer for trial, test, or convenience purposes is not a joint venture. In fact, Helms reiterates that a delivery of goods to another, after which the goods are to be returned to the original owner, is not a joint venture but a bailment. Id. at 347 (1). This is consistent with the decisions in Nolley, supra, and Johnson, supra, with specific reference to “loaner” cars. The trial court correctly granted summary judgment in favor of Sylvania on this basis as well.

Judgment affirmed.

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

       Kennedy was unmarried and living at home at the time of the collision and at the time her deposition was taken; she has since married.


author: Johnson, Chief Judge.

text:
    A00A0145.
    MERNEIGH v. THE STATE.
    (531 SE2d 152)
   Johnson, Chief Judge.

A jury found Raymond Merneigh guilty of theft by shoplifting and two counts of aggravated assault. Raising seven enumerations of error which we discuss in detail below, Merneigh appeals from the judgments of conviction entered upon the jury verdicts.

Viewed in the light most favorable to support the jury’s verdict, the evidence presented at trial shows that Merneigh entered a Douglas County Winn-Dixie grocery store where he obtained cigarettes and film from store employees at counters where those items were located. Not long thereafter, one of these employees saw Merneigh in the checkout line and noticed he had only beer in his shopping cart. The employee told a food manager that a man had cigarettes and had not brought them through the checkout line. The employee approached Merneigh and asked about the cigarettes and film. Merneigh began yelling and left the store, activating the store’s security system alarm as he left. The food manager saw the employee confront Merneigh about the cigarettes, saw Merneigh set off the store alarm as he left the store, and saw Merneigh pull film from his pocket and throw it at the customer service employee. At the time, this food manager was on the in-store telephone with the store manager, who was in his office within the store. The food manager told the store manager about the suspected shoplifter. As the two talked, the store manager heard the store’s security alarm and ran downstairs. The employee and the food manager ran after Merneigh, shouting for him to stop. Merneigh told them to leave him alone or he would hurt them with something he had. As the store manager joined the chase, the employee stopped chasing Merneigh and returned to the store. On her way back to the store, she saw a car parked near the store exit, with meats, cigarettes and other items on the seat. It was later determined that this car belonged to one of Memeigh’s relatives.

The food manager and the store manager caught up to Merneigh, and the store manager pushed him down. Merneigh had a knife in his hand while he ran, and after he had been pushed to the ground, he got up swinging the knife, lunging at both men. Using profane language, Merneigh told both men they had “messed up.” When they backed away, Merneigh turned in the opposite direction and ran into a wooded area, where police officers found and arrested him a short time later. The police found two knives in the immediate area of Merneigh’s arrest.

1. An assault is an attempt to commit a violent injury to the person of another or an act which places another in reasonable apprehension of immediately receiving a violent injury. OCGA § 16-5-20. Aggravated assault is an assault conducted with an object which, when used offensively against a person, is likely to result in serious bodily injury. OCGA § 16-5-21. Merneigh contends the trial court erred in failing to dismiss the aggravated assault counts of the indictment because they do not indicate which of the two means of committing an assault is relied on by the state. We disagree.

Count 2 of Merneigh’s indictment reads: “for that the said accused . . . did unlawfully make an assault upon the person of Michael Jason Frank, with a knife, the same being an object which when used offensively against a person is likely to result in serious bodily injury. . . .” Count 3 uses the same language but names a different victim.

Merneigh’s right to reasonable notice of the charges against him was satisfied by this language in the indictment. We have previously held that such language in an indictment sufficiently “charges an assault by way of either manner contained in the simple assault statute.” Here, either manner of simple assault could have occurred, and the trial court charged the jury as to both manners contained in the simple assault statute. The trial court did not err in refusing to dismiss the aggravated assault counts of the indictment.

2. In its final jury instructions, the trial court charged the jury in these words:

Now I’m going to define something called aggravated assault, but to define an aggravated assault I must first define for you what’s called assault. A person commits a simple assault when that person either attempts to commit a violent injury to the person of another or commits an act which places another in reasonable apprehension of immediately receiving violent injury. A person commits the offense of aggravated assault when the person assaults another person with a deadly weapon which, when used offensively against a person, is likely to or actually does result in serious bodily injury. A knife is a deadly weapon.

Merneigh contends this charge violated his right to due process because he was never specifically charged in the indictment with attempting to commit a violent injury to the person of another, one of the manners in which a simple assault could have occurred.

Contrary to Merneigh’s assertion, the trial court did not charge a separate method of committing aggravated assault but simply defined both methods in which an assault can be committed. There was no error.

3. The trial court correctly denied Merneigh’s request to charge on reckless conduct as a lesser included offense. An essential element of the offense of reckless conduct is criminal negligence. Here, there is no evidence that Merneigh was simply negligently handling the knife when he swung it at the food manager and store manager, using profane language and telling both victims they had “messed up” while lunging at them with the knife. Under these circumstances, Merneigh was either guilty of aggravated assault or was not guilty of any crime. Therefore, it was not error to refuse to give the requested charge on reckless conduct as a lesser included offense.

4. At trial, Merneigh maintained the position that the attempt by Winn-Dixie employees to arrest him was unlawful; therefore, he was legally permitted to resist the attempt in the manner he did, and, as a result, he claims he could not be guilty of the aggravated assault charges. He requested jury instructions regarding an unlawful arrest by a private person and his right to use force to resist such an unlawful arrest. The trial court refused to give these jury charges as requested. Because there is no evidence to support a conclusion that the attempted arrest by Winn-Dixie employees was unlawful, the trial court properly refused to give the requested instructions.

“A private person may arrest an offender if the offense is committed in his presence or within his immediate knowledge.” Here, the customer service employee testified that Merneigh took cigarettes and film without paying for them. She confronted him about the merchandise, and he began screaming as he exited the store and activated the store’s security alarm. The food manager knew of the customer service employee’s suspicions, saw her confront Merneigh, heard the store’s security alarm activate as Merneigh ran out the door, and saw Merneigh pull film from his pocket and throw it at the customer service employee. The food manager, who was on the in-house telephone with the store manager regarding the suspected shoplifter as the events transpired, told the store manager to come right down.

Under these circumstances, it is clear that the customer service employee and the food manager witnessed a shoplifting. It is equally clear that this offense was within the store manager’s immediate knowledge because the food manager was telling him about the crime, describing it as it was taking place, because the store manager himself heard the store’s security alarm and saw both the customer service employee and the food manager chasing Merneigh as Merneigh attempted to escape.

Citing isolated language in Williams v. State, Merneigh asserts that the store manager’s actions were unlawful because he was not present when the offense occurred and did not actually see any offense occur. We do not agree.

Merneigh’s argument ignores the fact that the crime did occur within the presence of the food manager, one of the two persons attempting the arrest, and it occurred within the immediate knowledge of the store manager. OCGA § 17-4-60 provides, in pertinent part, that a private citizen may arrest an offender “if the offense is committed in his presence or within his immediate knowledge.” It does not distinguish between misdemeanor and felony offenses. The term “within his immediate knowledge” enables a private citizen to use any of his senses to obtain knowledge that an offense is being committed.* A private citizen is not required to actually be present when a misdemeanor offense occurs.

In Williams, a panel of this court upheld a private citizen’s lawful arrest, finding that the misdemeanor offense was clearly committed within the presence and within the immediate knowledge of the private citizen and that the arrest was effected immediately after the offense occurred. Language in the Williams decision cited by Merneigh, which in isolation appears to suggest that a citizen’s arrest in a misdemeanor case may be made only when the offense was committed in his presence, is simply an application of OCGA § 17-4-60 to the particular facts in that case. This language is mere dicta. It was not only unnecessary to the holding in Williams because the private citizen was actually present when the offense occurred, but it directly conflicts with the clear language of the statute and cases decided both before and after Williams.

It is not error to refuse a request to charge when there is no evidence to support it. Based on the evidence presented in this case, the shoplifting offense was committed in the presence of the food manager and within the immediate knowledge of the store manager. Therefore, both were authorized by law to arrest Merneigh, and the trial court did not err in refusing to give Memeigh’s requested jury instructions regarding the unlawful arrest by a private person and Merneigh’s alleged right to use force to resist the attempted arrest.

5. The trial court did not err in denying Memeigh’s request to charge the jury on the defenses of justification and self-defense. Merneigh did not testify at trial. There is no evidence whatsoever in the record to support the requested charge. Specifically, there is no evi-

dence that Merneigh was in fear of or desired to prevent injury to himself when he assaulted store personnel with the knife. The only evidence showed that Merneigh stole merchandise from Winn-Dixie and was fleeing to avoid arrest.

6. Merneigh contends the trial court erred in refusing to strike a juror for cause based upon that juror’s acquaintance with one of the state’s witnesses. The prospective juror indicated that she knew one of the state’s witnesses. The following colloquy transpired:

THE COURT: Is there anything about your knowledge of that person or your relationship with that person that would cause you to have a fixed opinion on the issue of guilt or innocence in this case?
THE POTENTIAL JUROR: Not necessarily.
THE COURT: You indicated you had a — I guess I’ll call it a favorable relationship with the person.
THE POTENTIAL JUROR: He was my friend. I would be more inclined to be more favorable to his testimony than the — you know, I forget —
THE COURT: The Defendant.
THE POTENTIAL JUROR: — the individual’s name.
THE COURT: Mr. Merneigh.
THE POTENTIAL JUROR: Yeah.
THE COURT: Would you be able to listen to the evidence and the court’s instructions on the law and then make a decision based upon that information?
THE POTENTIAL JUROR: If there was concrete evidence that could be proven in black and white, yes.

Merneigh’s attorney then asked one question:

MR. WALLACK: . . . [I]f there was a witness who said something different from [the witness you already know], would you believe [the witness you already know] just because of your friendship or your past relationship with him?
THE POTENTIAL JUROR: Possibly.

Whether to strike a juror for cause lies within the sound discretion of the trial court. In order to disqualify a prospective juror for cause on the ground that she could not fairly and impartially judge the case, it must be shown that she holds an opinion of the guilt or innocence of the defendant that is so fixed and definite that the juror will be unable to set the opinion aside and decide the case based upon the evidence or the court’s charge on the evidence. “A conclusion on an issue of bias is based on findings of demeanor and credibility which are peculiarly in the trial court’s province, and those findings are to be given deference.” Under this legal standard the evidence was sufficient to support the trial court’s credibility determination that the prospective juror could decide the case impartially.

The fact that a juror has expressed a belief in the credibility of a witness does not mandate that she be excused for cause. Here, the potential juror testified that while she would be more inclined to believe or would “possibly” believe the testimony of the witness she knew over the testimony of Merneigh or another witness, her relationship with the witness would “[n]ot necessarily” cause her to have a fixed opinion on the issue of guilt or innocence in the case. She further testified that she would be able to listen to the evidence and the court’s instruction on the law and then make a decision based upon that information “[i]f there was concrete evidence.” Contrary to Merneigh’s assertion, this comment did not indicate that the burden of proof was shifted to Merneigh.

The trial court did not abuse its discretion in refusing to strike the prospective juror for cause. At no time did the prospective juror indicate that she would be unable to be a fair and impartial juror. She did not indicate any prejudice or bias against Merneigh and did not indicate that she had formed an opinion about Merneigh’s guilt or innocence.

7. Merneigh contends the trial court erred in denying his motion to quash the indictment or, in the alternative, to redact the reference to an alias in the indictment. He claims the alias (Larry Raymond Merneigh) served no useful purpose and operated to prejudice him. We find no error. “Where the accused is known by different names it is lawful for the indictment to identify the accused by all such names as alias dicta.” In addition, Merneigh has failed to show any harm by the use of his alias in the indictment.

Judgment affirmed.

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

Decided March 13,2000.

Jill L. Anderson, Lee W. Fitzpatrick, for appellant.

David McDade, District Attorney, James E. Barker, Assistant District Attorney, for appellee.

       See Jay v. State, 232 Ga. App. 661, 662 (1) (503 SE2d 563) (1998) (indictment accused Jay of an assault inflicted on his wife “ ‘with his fists, objects which when used offensively against said person, were likely to result in serious bodily injury contrary to the laws of (this) State’ ”); State v. Bolman, 222 Ga. App. 534 (474 SE2d 721) (1996) (indictment accused Bolman of the offense of aggravated assault in that he “ ‘did unlawfully make an assault upon the person of another, to wit: Henry Wade Alexander, with a deadly weapon, to wit: a certain knife’ ”).

        Jordan v. State, 214 Ga. App. 598, 601 (2) (448 SE2d 917) (1994), overruled on other grounds, Dunagan v. State, 269 Ga. 590, 593 (2) (a) (502 SE2d 726) (1998).

       Compare Harwell v. State, 270 Ga. 765, 766 (1) (512 SE2d 892) (1999) (jury instructed on unindicted manner of committing the crime charged).

       See Jordan, supra.

       OCGA § 16-5-60; Hall v. State, 235 Ga. App. 44, 46 (4) (508 SE2d 703) (1998).

       Id.

       Id.; see also Perryman v. State, 208 Ga. App. 754, 756 (3) (431 SE2d 742) (1993).

       OCGA § 17-4-60.

       171 Ga. App. 807, 809 (1) (321 SE2d 386) (1984).

       (Emphasis supplied.)

        State v. Folk, 238 Ga. App. 206, 208 (521 SE2d 194) (1999); Winn-Dixie Stores v. Nichols, 205 Ga. App. 308, 310-311 (2) (422 SE2d 209) (1992).

        Williams, supra at 809.

       OCGA § 17-4-60; Winn-Dixie Stores v. Nichols, supra; Walker v. State, 144 Ga. App. 838-839 (2) (242 SE2d 753) (1978).

       See Hush v. State, 193 Ga. App. 421, 422 (2) (387 SE2d 651) (1989).

        Kirkland v. State, 271 Ga. 217, 219 (2) (518 SE2d 687) (1999).

       Id.

       (Citation omitted.) Id.

        Brown v. State, 268 Ga. 354, 356 (3) (490 SE2d 75) (1997); Foster v. State, 248 Ga. 409, 411 (3) (283 SE2d 873) (1981).

       See Malone v. State, 240 Ga. App. 732 (524 SE2d 770) (1999); Montijo v. State, 238 Ga. App. 696, 703-704 (6) (520 SE2d 24) (1999).

        See Brady v. State, 270 Ga. 574, 575 (2) (513 SE2d 199) (1999); Holmes v. State, 269 Ga. 124, 125-126 (2) (498 SE2d 732) (1998).

       (Citation and punctuation omitted.) Majors v. State, 203 Ga. App. 139, 143 (7) (416 SE2d 156) (1992). See also Stevens v. State, 247 Ga. 698, 701 (3) (278 SE2d 398) (1981); Jenkins v. State, 216 Ga. App. 433, 434 (4) (454 SE2d 543) (1995).


author: Blackburn, Presiding Judge.

text:
    A00A0164.
    BEARD v. THE STATE.
    (531 SE2d 168)
   Blackburn, Presiding Judge.

Following a jury trial, Dewey E. Beard appeals from his conviction of the offense of the sale of cocaine in violation of OCGA § 16-13-30, contending that the evidence was insufficient to support the conviction. We find the evidence was sufficient, and we affirm.

On appeal from a criminal conviction, our review of the evidence is guided by certain well-established principles. . . . [T]he evidence is viewed in a light most favorable to the verdict; we do not weigh the evidence or determine witness credibility but only determine whether the evidence is sufficient under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); and the jury’s verdict will be upheld as long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case.

Brown v. State, 237 Ga. App. 761, 762 (516 SE2d 810) (1999).

OCGA § 16-13-30 (b) states that “it is unlawful for any person to manufacture, deliver, distribute, dispense, administer, sell, or possess with intent to distribute any controlled substance.” At trial, a confidential informant and an agent of the Georgia Bureau of Investigation testified that they were involved in an undercover operation in Decatur County. As part of that operation, the witnesses went to Beard’s apartment to purchase cocaine. At the apartment, although another man was also present, Beard showed the witnesses the cocaine which was wrapped in a towel, negotiated the price and counted the money. Both witnesses identified Beard as the man in charge of the deal.

This evidence is sufficient to authorize the jury’s finding that Beard was guilty of the offense beyond a reasonable doubt, despite Beard’s contradictory testimony that the sale occurred in his apartment without his prior permission or knowledge. Brown v. State, supra; Jackson v. Virginia, supra; Drake v. State, 238 Ga. App. 584, 586 (1) (519 SE2d 692) (1999) (“A jury is authorized to believe or disbelieve all or any part of the testimony of witnesses, and it serves as the arbiter of conflicts in the evidence before it”).

Decided March 13, 2000.

Billy M. Grantham, for appellant.

J. Brown Moseley, District Attorney, Anthony E. Paulsen III, Assistant District Attorney, for appellee.

Judgment affirmed.

Eldridge and Barnes, JJ., concur.


text:
    A00A0203.
    SANDERS v. THE STATE.
    (531 SE2d 170)
   Blackburn, Presiding Judge.

Following his conviction for robbery and aggravated assault, Walter Sanders, Jr., pro se, appeals the trial court’s denial of his motions for an out-of-time appeal and for a new trial based on newly discovered evidence. Because Sanders waived his appeal rights by being a fugitive from the law and the newly discovered evidence proffered by him does not warrant the grant of a new trial, we affirm.

The record shows that, on February 9, 1994, a jury found Sanders guilty of three counts of armed robbery and one count of aggravated assault. During trial, Sanders’ co-defendant testified, and corroborating evidence showed, that he and Sanders committed several robberies, and Sanders, himself, admitted to being involved in one of them. Following the trial, but prior to sentencing, Sanders escaped from custody and fled the state. On July 6, 1995, a sentencing hearing was held in Sanders’ absence. At this hearing, the trial court determined Sanders’ sentence and told Sanders’ trial counsel to inform him that he had 30 days to appeal his case. Due to his status as a fugitive, however, Sanders could not be reached.

On September 5, 1996, Sanders was captured in New York, and, on September 11, 1996, the trial court issued a judgment and sentencing order, made nunc pro tunc to July 6, 1995, which set forth Sanders’ sentence and made corrections of typographical errors on the original verdict form. After fighting extradition to Georgia in New York, Sanders was released into the custody of Georgia law enforcement on January 9, 1997.

Almost two years later, on December 18, 1998, Sanders filed a motion for out-of-time appeal and a motion for new trial based on an affidavit from his co-defendant recanting his earlier testimony implicating Sanders and a second affidavit corroborating the recantation. The trial court denied both motions, and Sanders appeals.

Although Sanders argues that multiple errors were committed by his trial attorney, the State’s prosecutor, and the trial court, the only question now before us is whether the trial court erred in denying his motions for an out-of-time appeal and for a new trial due to newly discovered evidence. We find that the trial court did not err on either issue.

1. Sanders was not entitled to an out-of-time appeal because he voluntarily waived his rights by fleeing the state and, alternatively, because the lengthy delay in his attempt to appeal was solely due to his own conduct.

It is clear that where a defendant escapes after filing a notice of appeal he thereby loses his right of appeal. We know of no logical reason for creating a different rule where, due to his escape, the defendant is unable to file a timely notice of appeal in the first place. Accordingly, . . . the defendant waive [s] his right to appeal by remaining a fugitive during the period when he was authorized by statute to file a motion for a new trial or a notice of appeal.

(Citations omitted.) Saleem v. State, 152 Ga. App. 552 (263 SE2d 490) (1979).

Moreover, Sanders cannot circumvent this result by claiming that his trial attorney provided ineffective assistance by failing to pursue an appeal in his absence. “An out-of-time appeal is not authorized if the delay was attributable to the appellant’s conduct.” (Punctuation omitted.) Henderson v. State, 265 Ga. 317, 318 (2) (454 SE2d 458) (1995). Whether judged from the date of the sentencing hearing or the date of the sentencing order, Sanders’ lengthy delay in filing an appeal results solely from his own conduct. As such, the trial court appropriately denied his motion for an out-of-time appeal.

2. The trial court also properly denied Sanders’ motion for a new trial due to newly discovered evidence. The newly discovered evidence proffered by Sanders was (1) an affidavit from his co-defendant recanting his trial testimony in which he implicated Sanders in the robberies and (2) an affidavit of another individual corroborating the recantation. “The law[, however,] is settled that a post-trial declaration by a State’s witness that his former testimony was false is not a ground for a new trial.” (Punctuation omitted.) Karvonen v. State, 205 Ga. App. 852 (1) (424 SE2d 47) (1992). Furthermore, the recantation of Sanders’ co-defendant as well as the corroborating affidavit would serve only to impeach the co-defendant’s previous testimony. As such, this newly discovered evidence of the co-defendant’s recantation does not qualify as a basis for the grant of an extraordinary motion for new trial. See, e.g., Dick v. State, 248 Ga. 898, 900-901 (2) (287 SE2d 11) (1982) (enumerating the six requirements to support an extraordinary motion for new trial). Therefore, the trial court did not err in denying Sanders’ motion.

Decided March 13, 2000.

Walter Sanders, Jr., pro se.

Spencer Lawton, Jr., District Attorney, Michael K. Dennard, Assistant District Attorney, for appellee.

3. In rendering this decision, we have granted Sanders’ motion for an extension of time in which to file his reply brief, which has been duly considered by this Court.

Judgment affirmed.

Eldridge and Barnes, JJ, concur.


text:
    A00A0288.
    In the Interest of G. P., a child.
    (531 SE2d 162)
   Blackburn, Presiding Judge.

Following an adjudicatory hearing in which he was found delinquent on the charge of burglary, G. P. appeals, contending that the evidence was insufficient to support the adjudication. For the reasons set forth below, we affirm.

On appeal, we view the evidence in the light most favorable to the adjudication to determine whether a rational trier of fact could have found that the juvenile committed the offense charged beyond a reasonable doubt. In the Interest of R. L. W., 225 Ga. App. 253, 254 (483 SE2d 361) (1997); Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). In addition,

“[we] construe the evidence with every inference and presumption in favor of upholding the findings of the trier of fact, [and] issues of the credibility of the witnesses and the resolution of conflicts in the evidence fall within the province of the trial court.”

In the Interest of R. A. W., 197 Ga. App. 225 (398 SE2d 261) (1990).

Viewed in this light, the record shows that a portable compact disc player containing a CD by Usher was stolen from Glenda Petty’s home between approximately 5:30 p.m. and 6:15 p.m. on the afternoon of May 20, 1999. As Petty approached her house that day, she noticed G. P. riding his bicycle away from her house and hiding something under his arm. Tracks in Petty’s driveway appeared to match the tires of G. P.’s bicycle. Soon after she entered her house, Petty realized that her CD player, still containing the CD by Usher, had been taken from her home.

Decided March 13, 2000.

Carlton K. Nelson III, for appellant.

A few minutes after discovering the theft, Petty drove into town where she happened to see G. P. attempting to pawn a CD player identical to the one stolen from her house. She also noticed that the CD player G. P. was holding contained a CD by Usher. When Petty entered the pawnshop and told G. P. she was going to call the police, he left with the CD player. Later, when questioned, G. P. admitted that he tried to pawn a CD player, but he claimed that he was doing so on behalf of someone named John whose last name he did not know. The CD player stolen from Petty’s home was never recovered.

G. P. argues that this circumstantial evidence is not sufficient to support his adjudication for burglary. We disagree.

In cases such as this, circumstantial evidence is sufficient to support an adjudication of delinquency if it is inconsistent with the minor’s innocence; however, only reasonable inferences of innocence need be excluded, not every one. McGinnis v. State, 183 Ga. App. 17, 19 (2) (358 SE2d 269) (1987).

G. P. argues that the testimony of a friend’s mother that he was playing ball with her children at her home between 5:00 p.m and 6:00 p.m. on the afternoon when the burglary took place raises a reasonable inference of his innocence. G. P, however, admitted that he attempted to pawn a CD player on the date in question shortly after the burglary was committed, and there was direct testimony both that the CD player was identical to the one which was stolen and that it contained the same CD. As such, the circumstantial evidence in this case was consistent with G. P.’s guilt, and it was sufficient to support his adjudication of delinquency. See Jackson v. Virginia, supra. The fact that G. P. produced witnesses purporting to give him an alibi does not change this result.

[T]he credibility of witnesses is a question for the jury, and the evidence adduced by the State, which obviously was believed by the jurors, was sufficient to authorize a rational trier of fact to find beyond a reasonable doubt that [G. P. was] guilty of the offenses charged.

(Citation omitted.) Roker v. State, 262 Ga. 220, 221 (1) (416 SE2d 281) (1992).

Judgment affirmed.

Eldridge and Barnes, JJ., concur.

Ralph M. Walke, District Attorney, Judson Green TV, Assistant District Attorney, for appellee.


text:
    A00A0329.
    BRASSFIELD v. THE STATE.
    (531 SE2d 148)
   Blackburn, Presiding Judge.

Anthony Brassfield pled guilty to one count of cruelty to children pursuant to a nonnegotiated plea. The trial court sentenced him to serve five years in prison. Brassfield appeals contending that the trial court erred by: (1) improperly injecting itself into the plea negotiation process; and (2) refusing to give him the opportunity to withdraw his plea prior to sentencing.

The record shows that, after attempts to come to a negotiated plea failed, the trial court informed Brassfield that he could enter a nonnegotiated plea or go to trial. Brassfield chose to enter a nonnegotiated plea. Thereafter, the trial court heard the facts of the case and reviewed evidence, including pictures of the victim and Brassfield’s previous criminal record. The trial court gave defense counsel the opportunity to present evidence regarding the factual basis for the plea. After his plea was accepted, Brassfield testified regarding mitigation for his sentence. The trial court allowed argument from both sides and sentenced Brassfield to serve five years in prison. Immediately after sentencing, Brassfield attempted to withdraw his plea.

1. Brassfield contends that the trial court improperly injected itself into the plea negotiations by stating that he could go to trial or enter a nonnegotiated plea.

Uniform Superior Court Rule (USCR) 33.5 provides that the trial court should not participate in the plea discussions. However, the comment complained of was not made during plea discussions but merely informed Brassfield of his options after the plea negotiations failed to secure a plea. It is clear from the comment itself, i.e., enter a nonnegotiated plea or go to trial, that plea discussions were no longer pending.

Brassfield argues that he was misled into thinking that the trial court was recommending a nonnegotiated plea and that it intended to give a lighter sentence than that recommended by the State during the plea negotiations. However, the record shows that the trial court informed Brassfield that the possible punishment the law allowed for the offense was from five to twenty years. As the record does not support a violation of USCR 33.5, we find no merit to Brass-field’s enumeration.

2. By way of several enumerations of error, Brassfield contends that the trial court erred in failing to give him the opportunity to withdraw his plea prior to entering the sentence against him.

The present case is controlled by our decision in Bice v. State, 212 Ga. App. 184 (1) (441 SE2d 507) (1994), wherein the defendant entered a nonnegotiated plea which he sought to withdraw after the trial court announced the sentence. We held that once sentence was orally pronounced, the defendant’s statutory right to withdraw his plea disappears. Id.

[Brassfield] did not move to withdraw his plea until after the trial court pronounced his sentence. Therefore, he had no right to withdraw the plea pursuant to OCGA § 17-7-93 (b). . . . Therefore, we must determine whether the trial court properly found that the State met its burden of showing, by the record, that [Brassfield] entered his plea freely and voluntarily with an understanding of the nature of the charges against him and an understanding of the consequences of his plea. [Cit.] The trial court’s decision will be upheld absent an abuse of discretion. Moore v. State, 225 Ga. App. 860, 861 (1) (485 SE2d 552) (1997).

Manues v. State, 232 Ga. App. 454, 455 (501 SE2d 826) (1998).

The trial court fully complied with USCR 33.8, 33.9, and 33.11 which set forth procedures for the court to follow when determining the voluntariness and accuracy of a plea. The trial court also determined the factual basis for the plea that Brassfield beat his seven-year-old son with the buckle end of a belt for getting in trouble at school. Additionally, Brassfield’s hope of a lesser sentence is not the type of coercion that prevents the voluntary entry of a guilty plea. See Moore, supra.

If Brassfield had entered a negotiated plea, the trial court would be required to follow the mandates of USCR 33.10, which codified the Supreme Court of Georgia’s analysis in State v. Germany, 246 Ga. 455, 456 (1) (271 SE2d 851) (1980), regarding the trial court’s duty to inform the defendant that it intends to reject the negotiated plea and that the defendant has the right to withdraw the plea before the sentence is announced. See Lawrence v. State, 234 Ga. App. 603, 604 (1) (507 SE2d 490) (1998). However, in the present case, Brassfield entered a nonnegotiated plea, and while he was still entitled to withdraw his plea as a matter of right before the sentence was announced, the trial court was not required to comply with the mandates of USCR 33.10 because there was no plea agreement to reject.

Decided March 13, 2000.

Robert L. Mack, Jr., for appellant.

Robert E. Keller, District Attorney, Jay M. Jackson, Assistant District Attorney, for appellee.

The trial court did not abuse its discretion in denying Brass-field’s motion to withdraw his guilty plea.

Judgment affirmed.

Eldridge and Barnes, JJ, concur.

       USCR 33.10 provides:
      If the trial court intends to reject the plea agreement, the trial court shall, on the record, inform the defendant personally that (1) the trial court is not bound by any plea agreement; (2) the trial court intends to reject the plea agreement presently before it; (3) the disposition of the present case may he less favorable to the defendant than that contemplated by the plea agreement; and (4) that the defendant may then withdraw his or her guilty plea as a matter of right. If the plea is not then withdrawn, sentence may be pronounced.


text:
    A00A0530.
    In the Interest of J. W. L., a child.
    (531 SE2d 169)
   Johnson, Chief Judge.

A delinquency petition was filed in the juvenile court alleging that when J. W. L. was 14, he committed acts that, if committed by an adult, would constitute the crimes of rape and statutory rape. An adjudicatory hearing on the petition was held before the juvenile court, which found that J. W. L. had committed the alleged delinquent acts.

J. W. L. appeals, arguing that the delinquency adjudication on the rape charge must be reversed because there is insufficient evidence that he used force against the 14-year-old victim. The argument is without merit because there is sufficient evidence to support the juvenile court’s ruling.

In considering the sufficiency of the evidence supporting a juvenile court adjudication of delinquency, we apply the same standard of review that is used in any criminal case. That is, we construe the evidence in favor of the adjudication to determine if a rational trier of fact could have found beyond a reasonable doubt that the juvenile committed the acts charged.

Construed in favor of the adjudication of delinquency, the evidence establishes that J. W. L. and the victim, who is mildly intellectually disabled, were students at the same high school. On April 14, 1999, a school officer viewed a security videotape which shows J. W. L. pulling the victim into the boys’ locker room. School officials contacted the victim’s mother about the videotape, and the mother immediately took the victim to the hospital.

Decided March 13, 2000.

Edward F. Smith, for appellant.

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

A nurse at the hospital examined the victim and found two tears and an abrasion on her vaginal area. According to the nurse, these types of injuries do not normally occur as a result of consensual sex. The nurse also testified that the victim told her that her assailant had pulled her into the locker room, that she told him “no” and tried to get away from him, that he pulled her legs out from under her and removed her underwear, that he had sexual intercourse with her, that he told her not to tell anyone about the incident, and that she was afraid that he would hurt her.

At the delinquency hearing, the victim testified that she had told J. W. L. that she did not want to have sex at the school, but when he pulled down her underwear, she had sex voluntarily. She also testified that she had not wanted to go into the locker room with J. W. L. and that he had dragged her into the locker room.

“Force, as an element of rape, need not be proven by evidence of physical violence. Evidence of a victim’s lack of resistance induced by fear authorizes a finding of force.” In this case, the juvenile court was authorized to find physical violence based on the evidence that J. W. L. pulled the victim against her will into the locker room and pulled her legs out from under her once inside the locker room. Moreover, the court was authorized to find that the victim’s lack of resistance once J. W. L. pulled her into the locker room was induced by fear. The court therefore was justified in finding the force element of rape. Because there was sufficient evidence of force, J. W. L. has shown no error, and the adjudication of delinquency must be affirmed.

Judgment affirmed.

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

        In the Interest of M. G., 233 Ga. App. 23 (503 SE2d 302) (1998).

        In the Interest of T. T., 236 Ga. App. 46 (1) (510 SE2d 901) (1999).

       (Citations and punctuation omitted.) Gilmer v. State, 234 Ga. App. 309, 311 (3) (506 SE2d 452) (1998).

       See In the Interest of S. R. B., 211 Ga. App. 336 (439 SE2d 105) (1993); In the Interest of A. N. S., 201 Ga. App. 201, 202 (410 SE2d 385) (1991); J. B. v. State of Ga., 171 Ga. App. 373-374 (1) (319 SE2d 465) (1984).


text:
    A00A0613.
    HEMPHILL v. THE STATE.
    (531 SE2d 150)
   Blackburn, Presiding Judge.

Following a jury trial, Ernest Isiah Hemphill appeals his conviction of armed robbery. Hemphill contends that the evidence is insufficient to support his conviction and that the trial court erred in the charge to the jury. For the reasons set forth below, we affirm.

1. In two enumerations of error, Hemphill challenges the sufficiency of the evidence to support his conviction.

On appeal the evidence must be viewed in the light most favorable to support the verdict, and [Hemphill] no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility. The standard for reviewing a denial of a motion for a directed verdict of acquittal is whether under the rule of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), the evidence was sufficient for a rational trier of fact to find beyond a reasonable doubt that the defendant was guilty of the charged offense. Moreover, the test established in Jackson is the proper test for us to use when the sufficiency of the evidence is challenged, whether the challenge arises from the overruling of a motion for directed verdict or the overruling of a motion for new trial based upon alleged insufficiency of the evidence.

(Citations and punctuation omitted.) Lester v. State, 226 Ga. App. 373, 376 (2) (487 SE2d 25) (1997).

Viewing the evidence in the light most favorable to the verdict, it reveals that Hemphill and two accomplices robbed a Waffle House restaurant in Cobb County with the use of a handgun. Hemphill admitted in his taped interview with the police that he drove his accomplices to the Waffle House. On the way to the Waffle House, the car’s occupants discussed robbery. Hemphill parked his car on the shoulder of the road, down the road from the Waffle House. He told the police, “I pulled over there because that street right to the shoulder goes straight to Bankhead Court.” Hemphill knew that his accomplices had guns, and he admitted that he told them “don’t hurt nobody.” He then described watching his two accomplices rob the Waffle House before they ran back to his car. A Waffle House patron testified that from the parking lot he saw the car doors open before the robbers got to the car. Hemphill admitted driving away very carefully to avoid suspicion and to avoid a Waffle House patron who appeared to be following them. He further admitted that the accomplices shared the proceeds of the robbery with him.

Under OCGA § 16-2-20 (a) every person concerned in the commission of a crime is a party thereto and may be charged with and convicted of commission of the crime. One is concerned in the commission of a crime where the person either directly commits, intentionally causes another to commit, intentionally aids or abets the commission of, or intentionally advises or otherwise encourages another to commit the crime. Presence at the scene of a crime, even when coupled with knowledge and approval, not amounting to encouragement, is not sufficient to show that a defendant is a party to a crime. However, criminal intent may be found by the jury upon consideration of the words, conduct, demeanor, motive, and all other circumstances connected with the act for which the accused is prosecuted. Presence, companionship and conduct before and after the offense are circumstances from which one’s participation in the criminal intent may be inferred.

(Citation and punctuation omitted.) McGhee v. State, 229 Ga. App. 10, 11 (492 SE2d 904) (1997).

In the present case, Hemphill’s admissions not only show his presence, knowledge, and approval of the planned armed robbery, they also prove that he aided in the robbery by supplying transportation to and from the Waffle House. This evidence was sufficient to permit a jury to find that Hemphill was a party to the crime of armed robbery. See Jackson, supra; Tanksley v. State, 226 Ga. App. 505 (487 SE2d 98) (1997).

2. Hemphill contends that the trial court erred in its charge to the jury.

(a) Hemphill requested that the court charge on theft by receiving.

With respect to [Hemphill’s] contention that the court should have charged on theft by receiving stolen property, that crime 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.” Pruitt v. State, 217 Ga. App. 681, 683 (3) (458 SE2d 696) (1995). As [Hemphill] was not charged with receiving stolen property, the trial court did not err in refusing to charge on such offense. See Adams v. State, 164 Ga. App. 295, 296-297 (2) (297 SE2d 77) (1982); Lee v. State, 259 Ga. 230, 232 (3) (378 SE2d 855) (1989).

Decided March 13, 2000.

Robert H. Alexander III, for appellant.

Patrick H. Head, District Attorney, Debra H. Bernes, John C. Richter, Maria B. Golick, Assistant District Attorneys, for appellee.

Bethel v. State, 232 Ga. App. 82, 84-85 (2) (500 SE2d 595) (1998).

(b) Hemphill contends that the trial court’s charge on knowledge was erroneous. The trial court charged:

If you find from the evidence in this case that a defendant had no knowledge that a crime was being committed, and that the defendant did not knowingly and intentionally participate, or commit, or help in the commission of the crime, or was a party to it, to the alleged offense, it would be your duty to acquit the defendant. On the other hand, should you find beyond a reasonable doubt that the defendant had knowledge that the crime of armed robbery was being committed, and that the defendant knowingly and intentionally participated or helped in the commission of it, or was a party to it then you would be authorized to convict the defendant.

Hemphill contends that this charge allows a conviction based merely upon his presence at the scene and his knowledge of the crime. However, this is the charge suggested by the pattern charge, and we have previously determined that Hemphill’s argument is without merit. See Leigh v. State, 223 Ga. App. 726, 731 (3) (478 SE2d 905) (1996). “We do not believe that the charge as a whole would mislead a jury of average intelligence.” (Punctuation omitted.) Id.

Judgment affirmed.

Eldridge and Barnes, JJ, concur.

       A juvenile, who was also in the car, was not charged in connection with the armed robbery.


text:
    A99A1672.
    SWEATT et al. v. INTERNATIONAL DEVELOPMENT CORPORATION et al.
    (531 SE2d 192)
   Smith, Judge.

Would-be home buyers W. David Sweatt and Alicia P. Sweatt filed suit against International Development Corporation (“IDC”) and Christopher J. Bruns. The Sweatts alleged that IDC and Bruns breached a real property purchase and construction agreement for a house being built for them by Bruns. IDC and Bruns counterclaimed for breach of contract and specific performance, and the Sweatts filed a lis pendens against the property. The Sweatts asked the court to order arbitration of all the controversies and claims arising from the purchase agreement or any alleged breach of it. The trial court ordered the parties to complete binding arbitration.

Before arbitration was concluded, both sides agreed to a consent order recognizing that IDC and Bruns had entered into a purchase and sale agreement for the property at issue with a third party and requiring IDC and Bruns to deposit the net proceeds of that sale into the registry of the court. IDC and Bruns subsequently sold the property for $373,000, or about $8,000 more than the contract price of $365,900 with the Sweatts. After payoff of the construction loan and payment of a real estate commission, the net proceeds realized by that sale, $89,017.77, were deposited into the registry of the court.

A few months later, the arbitrator found in favor of IDC and Bruns and against the Sweatts. The arbitrator awarded $25,000 to IDC and Bruns and ordered the release to IDC and Bruns of the funds being held by the court. As a consequence of that award, the Sweatts forfeited their $35,000 in earnest money and about $5,000 they had paid to Bruns for upgrades to the house during construction.

Asserting multiple grounds, the Sweatts moved to vacate or, in the alternative, to modify the arbitration award. They contended that the arbitrator had overstepped his authority, that the award demonstrated a manifest disregard of the law, and that the award was improperly calculated so as to constitute a double recovery. After reviewing the record and hearing argument of counsel, the trial court denied the Sweatts’ motion and confirmed the “Final Judgment and Award” issued by the arbitrator. The Sweatts appeal that judgment.

1. In two enumerations of error, the Sweatts contend the trial court erred in denying their motion to vacate the arbitration award because the arbitrator overstepped his authority and the award demonstrates a manifest disregard of the law.

OCGA § 9-9-13 (b) sets forth the exclusive grounds upon which an arbitration award may be vacated. Greene v. Hundley, 266 Ga. 592, 595-596 (3) (468 SE2d 350) (1996); Akintobi v. Phoenix Fire Restoration Co., 236 Ga. App. 760, 761 (513 SE2d 507) (1999). Unless prejudice is shown and one of the four statutory grounds for vacating or modifying an award is established, the Georgia Arbitration Code requires a trial court to confirm an award upon timely application by a party. Haddon v. Shaheen & Co., 231 Ga. App. 596-597 (1) (499 SE2d 693) (1998); see Gilbert v. Montlick, 232 Ga. App. 91, 93 (1) (499 SE2d 731) (1998).

Here, the Sweatts rely on the statutory ground that authorizes a trial court to vacate an award when the court finds that the rights of a party were prejudiced by “[a]n overstepping by the arbitrators of their authority.” OCGA § 9-9-13 (b) (3). In this context, “overstepping” means that the arbitrator addressed issues not properly before him. Ralston v. City of Dahlonega, 236 Ga. App. 386, 388 (3) (512 SE2d 300) (1999). The Sweatts contend the arbitrator overstepped his authority by awarding damages not allowed by the contract. Compare Atlanta Gas Light Co. v. Trinity Christian &c. Church, 231 Ga. App. 617, 620 (2) (500 SE2d 374) (1998). They claim that an award to IDC and Bruns of actual damages violated the express terms of the contract which permitted only the recovery of liquidated damages. We agree. Compare City of College Park v. Batson-Cook Co., 196 Ga. App. 138, 140 (395 SE2d 385) (1990) (trial court correctly affirmed an award supported by record of arbitration proceedings that showed the arbitrators did not ignore contract terms or applicable law).

During arbitration proceedings, the general rules of contract construction apply. Martin v. RocCorp, Inc., 212 Ga. App. 177, 179 (441 SE2d 671) (1994). An arbitration award should be consistent with terms of the underlying agreement and reflect the “essence” of that contract; it must not demonstrate an “imperfect execution” of the arbitrator’s authority. Atlanta Gas Light, supra. Although an arbitrator has some latitude in fashioning remedies, he is not free to ignore the express terms of a valid and enforceable contract. Banderas v. Doman, 224 Ga. App. 198, 201 (4) (480 SE2d 252) (1997).

In this case, the underlying contract required the submission of “[a]ny controversy or claim arising out of or relating to this contract, or the breach thereof,” to binding arbitration. This was done. But the contract also required the application of OCGA § 13-6-7, the liquidated damages statute, and provided for liquidated damages in the event of breach by the buyer. This was not done.

It is undisputed that Section 4 of this contract, entitled “Liquidated Damages,” set forth the seller’s damages in the event of a breach by the Sweatts. This section provided in pertinent part:

Seller and Buyer acknowledge that it would be extremely impractical and difficult to ascertain the actual damages that would be suffered by Seller if Buyer fails to or refuses to consummate the purchase of the Property. . . . Seller and Buyer have considered carefully the loss to Seller as a consequence of the negotiation and execution of this Agreement; the personal expenses Seller incurred in connection with the preparation of this Agreement; Seller’s performance hereunder; and the other damages, general and special, which Seller and Buyer realize and recognize that Seller would sustain, but Seller cannot calculate with absolute certainty. Based upon all those considerations, Seller and Buyer have agreed that the damage to Seller would reasonably be expected to be equal to the amount of the earnest money. [In the event that Buyer breaches the agreement and Seller has fully performed its obligations,] then Seller shall be entitled to retain the earnest money as full and complete liquidated damages for such default of Buyer. Such retention of the earnest money is intended not as a penalty, but as full liquidated damages pursuant to O.C.G.A. § 13-6-7. However, in lieu of retaining the earnest money as liquidated damages, Seller shall have the right to bring an action for specific performance of the terms of the Agreement.

(Emphasis supplied.)

“If the parties agree in their contract what the damages for a breach shall be, they are said to be liquidated and, unless the agreement violates some principle of law, the parties are bound thereby.” OCGA § 13-6-7. “A non-breaching party who has agreed to accept liquidated damages cannot elect after a breach to take actual damages should they prove greater than the sum specified.” Southeastern Land Fund v. Real Estate World, 237 Ga. 227, 230 (227 SE2d 340) (1976). “The liquidated damages become the ‘maximum as well as the minimum sum that can be collected.’ [Cit.]” Id.

After the arbitrator determined the Sweatts breached the contract and were in default, only the amount of damages remained for resolution. But according to the undisputed terms of the contract, IDC and Bruns could obtain only $35,000, since the contract specified that retention of the earnest money would constitute “full and complete liquidated damages for such default.” Having agreed to accept $35,000 as liquidated damages, IDC and Bruns could collect only that amount. Southeastern Land Fund, supra; compare Banderas, supra at 200 (3) (liquidated damages provision did not purport to apply to any and all breaches of the agreements but was limited to breaches of the restrictive covenant and nonsolicitation provisions). Here, as in Liberty Life Ins. Co. v. Thomas B. Hartley Constr. Co., 258 Ga. 808, 809 (375 SE2d 222) (1989), no question exists that the parties intended to provide for liquidated damages or that the damages were a reasonable estimate of the probable loss.

Despite the explicit terras of the liquidated damages provision in the contract, the arbitrator awarded an additional $25,000 to IDC and Bruns.* * IDC and Bruns also obtained a windfall of about $5,000 when the Sweatts forfeited all the additional funds they had provided to Bruns during construction for upgrades to the house. The amount of this award did not conform to the liquidated damages provision as specified in the contract. Compare Banderas, supra at 199 (1) (purchase agreement did not expressly limit arbitration to claims of breach of contract but covered all disputes arising from the agreement as well as alleged transgressions by one party or the other). Although IDC and Bruns may well have offered evidence to the arbitrator of actual losses, including construction loan interest, insurance premiums, and real estate taxes, having contracted for liquidated damages for a breach by the Sweatts, they were bound thereby. OCGA § 13-6-7. Since the contract specified liquidated damages in the event of the buyer’s breach, any recovery for actual damages was foreclosed as a matter of law. Southeastern Land Fund, supra at 230; see Fickling & Walker Co. v. Giddens Constr. Co., 258 Ga. 891, 898 (3) (376 SE2d 655) (1989).

2. The Sweatts further assert that the trial court erred by refusing to recalculate the amount of damages.

After timely application, under OCGA § 9-9-14 (b),
[t]he court shall modify the award if: (1) [t]here was a miscalculation of figures or a mistake in the description of any person, thing, or property referred to in the award; (2) [t]he arbitrators awarded on a matter not submitted to them and the award may be corrected without affecting the merits of the decision upon the issues submitted.

Here, the calculation of actual damages was a matter not properly submitted, and the amount of the award may be corrected without affecting the merits of the arbitrator’s decision upon the issues properly submitted. Since the amount awarded exceeded the total authorized by the contract, we vacate the award and direct the trial court to correct the miscalculation.

It is undisputed that IDC and Bruns violated the terms of the contract to maintain the earnest money of the Sweatts in a separate escrow/trust bank account. Counsel for IDC and Bruns admitted in court that the entire amount of $35,000 had been “spent on the house.” Upon remand, since the $35,000 in earnest money was retained and spent by IDC and Bruns, the Sweatts would be entitled to recover the $25,000 erroneously awarded and the amount they are able to prove they expended for upgrades to the house, which IDC and Bruns concede was approximately $5,000. Mid-American Elevator Co. v. Gemco Elevator Co., 189 Ga. App. 143, 145 (1) (375 SE2d 275) (1988) (after entire award is vacated, rehearing may be limited to specific issue necessitating that action).

Decided March 14, 2000.

Altman, Kritzer & Levick, Joseph S. Carr, Jeanine L. Gibbs, for appellants.

Smith, Ronick & Corbin, Howard R. Ronick, for appellees. Christopher J. Bruns, pro se.

Judgment vacated and case remanded with direction.

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

       Brans is the president of IDC.

       The inherent uncertainty of calculating and forecasting actual damages is well illustrated by the fact that IDC and Bruns were able to sell the property for more than the contract price with the Sweatts and were able to net nearly $90,000 despite the breach. But housing markets typically fluctuate, and the converse could easily have occurred.

       In his findings of fact, the arbitrator decided, “Defendants have incurred expenses in the amount of $58,300.00.”

       The arbitrator found: “Paragraph 12 of the Contract requires that Plaintiffs’ earnest money be placed in an escrow account by the Defendants. (Plaintiffs’ Ex. 1). Said funds were not placed in such an account, but the evidence and testimony gathered during this dispute show that all of the Plaintiffs’ earnest money, and subsequent payments for upgrades and overages, was spent in the construction of the Property.”


author: Barnes, Judge.

text:
    A99A2010, A99A2011.
    GEORGIA LOTTERY CORPORATION v. SUMNER; and vice versa.
    (529 SE2d 925)
   Barnes, Judge.

The Georgia Lottery Corporation (“GLC”) and Darryl Sumner each appeal the trial court’s denial of their motions for summary judgment regarding payment of winnings on a lottery ticket. Sumner contends that he holds a winning ticket; the GLC contends he does not. For the reasons that follow, we affirm the denial of summary judgment to Sumner and reverse the denial of summary judgment to GLC.

Sumner bought a lottery ticket for the instant game “Nifty 50s.” On the front of the ticket were the following words:

WIN UP TO $50 A DAY FOR 5 YEARS!

Match either of the lucky numbers to any of your numbers, win prize underneath it.

Get a $$, double prize underneath it.

Get “[symbol,]” win $50 a day for 5 years.

The symbol on the card was a black circle with a white center containing a smaller black circle in its middle.

Sumner scratched the latex off the two lucky number boxes and the ten play boxes and uncovered a mark that looked similar to the winning symbol, except that it was red. Below the red mark was written:

SIX

$4

FQRDOL

Believing he had won $50 a day for five years, Sumner presented his lottery ticket to a GLC retailer, but the ticket did not pass a computer-based validation test. Sumner then went to the GLC’s district office in Macon, where a clerk again ran the card through a validation machine and told him it was not a winner. He submitted a claim form and subsequently received a letter from GLC’s senior vice president and general counsel notifying him that the Nifty 50s game had been discontinued because some of the tickets contained a printing error. His ticket had the printing error on it and did not have the requisite caption, which would have been printed below the symbol and would have read:

RCRD 5 YRS $50/DAY

Additionally, the ticket did not pass the validation and security tests, and for these reasons it was not a winner, the GLC official explained.

Sumner sued the GLC for breach of contract. The GLC answered, denying that Sumner held a winning ticket. Both parties moved for summary judgment, and the trial court denied both motions.

1. The ticket itself states that all lottery transactions are subject to state law. The GLC is prohibited by statute from paying prizes on tickets that are produced in error and do not pass its validation and security tests. OCGA § 50-27-24 (c) (2) provides:

No prize shall be paid arising from claimed tickets that are stolen, counterfeit, altered, fraudulent, unissued, produced or issued in error, unreadable, not received, or not recorded by the corporation within applicable deadlines; lacking in captions that conform and agree with the play symbols as appropriate to the particular lottery game involved; or not in compliance with such additional specific regulations and public or confidential validation and security tests of the corporation appropriate to the particular lottery game involved.

The evidence in the record shows clearly that the red circle on Sumner’s ticket that resembles the winning symbol was a stray printing mark, known in the trade as a “hickey.” According to the director of manufacturing for Scientific Games International, the company that prints GLC’s lottery tickets, hickeys occur when a stray piece of material gets on the printing plate and prevents ink from adhering to the spot on the ticket beneath the stray material.

2. Sumner responds that, notwithstanding the statutory limitation on payment for tickets produced in error, the legislature has also provided a means for allowing the GLC to pay prize winnings when a court orders it to do so. The legislature placed restrictions in the Code section as directions to the GLC, but not as binding law on the courts, he argues. Therefore, a court can decide whether Sumner is entitled to prize winnings based on contract law.

According to Sumner, the section that gives the court discretion to order the GLC to pay prize winnings regardless of any other restriction in the Code is OCGA § 50-27-24 (c) (1), the last sentence of which provides: “Notwithstanding any other provisions of this Code section, any person, pursuant to an appropriate judicial order, shall be paid the prize to which a winner is entitled.” Because the language quoted above does not specify that it applies only to the subsection that contains it, Sumner argues, the legislature intended for the court “to construe the contract notwithstanding the provisions of the Code section.”

Faced with an arguably ambiguous legislative enactment, we must try to determine the legislative intent, and “[language in one part of the statute must be construed in the light of the legislative intent as found in the statute as a whole.” (Citations and punctuation omitted.) Alford v. Pub. Svc. Comm., 262 Ga. 386, 387 (1) (a) (418 SE2d 13) (1992). We give due weight and meaning to all of the words of the statute, and we are “not authorized to disregard any of the words of the statute in question unless the failure to do so would lead to an absurdity manifestly not intended by the legislature.” (Citation omitted.) Boyles v. Steine, 224 Ga. 392, 395 (162 SE2d 324) (1968); OCGA § 1-3-1 (a). A construction that upholds the statute as a whole is preferable. Exum v. City of Valdosta, 246 Ga. 169, 170 (1) (269 SE2d 441) (1980).

The Georgia Lottery for Education Act, OCGA § 50-27-1 et seq., was enacted “to support improvements and enhancements for educational purposes and programs.” OCGA § 50-27-2 (1). The legislature further declared that “lottery games shall be operated and managed in a manner which provides continuing entertainment to the public, maximizes revenues, and ensures that the lottery is operated with integrity and dignity.” OCGA § 50-27-2 (3).

If we were to construe the sentence “any person, pursuant to an appropriate judicial order, shall be paid the prize to which a winner is entitled” as allowing us to ignore the rest of the lottery statute, as Sumner suggests, the rest of the statute would mean nothing. Further, according to the record, more than thirty other Nifty 50s players are seeking to collect $50 per day for five years, or $91,250 each, because their tickets have a printing error. Such unanticipated payments on tickets produced in error would severely reduce GLC revenues and funds for educational programs, an outcome the legislature clearly did not intend.

The sentence is more logically construed to apply to the subsection that contains it, which addresses the assignability of prizes and the payment of remaining prizes to a deceased’s estate or trust. The complete text of OCGA § 50-27-24 (c) (1) provides:

(c) The corporation shall adopt regulations, policies, and procedures to establish a system of verifying the validity of tickets or shares claimed to win prizes and to effect payment of such prizes, except that: (1) No prize, any portion of a prize, or any right of any person to a prize awarded shall be assignable. Any prize or any portion of a prize remaining unpaid at the death of a prize winner shall be paid to the estate of the deceased prize winner or to the trustee of a-trust established by the deceased prize winner as settlor if a copy of the trust document or instrument has been filed with the corporation along with a notarized letter of direction from the settlor and no written notice of revocation has been received by the corporation prior to the settlor’s death. Following a settlor’s death and prior to any payment to such a successor trustee, the corporation shall obtain from the trustee a written agreement to indemnify and hold the corporation harmless with respect to any claims that may be asserted against the corporation arising from payment to or through the trust. Notwithstanding any other provisions of this Code section, any person, pursuant to an appropriate judicial order, shall he paid the prize to which a winner is entitled.

(Emphasis supplied.)

Applying OCGA § 50-27-24 (c) (2) to this case, we conclude that the law prohibits the GLC from paying Sumner $50 per day for five years based on a printing error that happened to resemble the winning symbol.

3. However, even if we were to consider the ticket pursuant to contract law, it is still invalid. Aside from statutory considerations, the issue of whether a lottery player is entitled to prize winnings under the terms printed on the ticket is governed by the principles of contract law. The GLC offers the chance to win a prize, and the player accepts the offer by buying the ticket. While no Georgia case has yet considered this issue, numerous other state courts have concluded that contract law governs. See, e.g., Haynes v. Dept. of the Lottery, 630 S2d 1177, 1179 (Fla. App. 1994); Valente v. Rhode Island Lottery Comm., 544 A2d 586, 589 (R.I. 1988).

The terms of the contract are printed on the ticket and are incorporated by reference. The back of the ticket includes the following language:

All tickets, transactions, and winners are subject to Lottery Rules and applicable State Law. . . . Tickets are void if they fail to meet requirements of game rules or are irregular in any manner. Liability for void ticket is limited to replacement of ticket or refund of retail sales price. Do not accept ticket if it appears altered in any way.

(Emphasis supplied.)

The GLC contends that Sumner’s ticket is void, among other reasons, because it is “irregular.” Sumner concedes that GLC’s printer testified on deposition that the red symbol appeared on his ticket because of a printing error but contends that the only requirement for winning was that a doughnut-shaped symbol appear on the card. Sumner’s ticket has that symbol, and regardless of how it came to be there, he argues, under the contractual terms of the ticket he won $50 a day for five years.

“The construction of a contract is a matter of law for the court under OCGA § 13-2-1, particularly where, as here, the terms are unambiguous.” Castellana v. Conyers Toyota, 200 Ga. App. 161, 165 (2) (407 SE2d 64) (1991). Sumner’s argument that all he needed was a winning symbol to collect the prize money ignores the contractual language on the back of the ticket, which provides that “[t]ickets are void if they . . . are irregular in any manner.” The undisputed evidence establishes that the ticket is “irregular.” Accordingly, under the terms of the contract, Sumner did not hold a winning ticket. The trial court erred in denying summary judgment to the GLC and correctly denied summary judgment to Sumner.

Decided March 14, 2000

Thurbert E. Baker, Attorney General, Daniel M. Formby, Deputy

Attorney General, Shereen M. Walls, Assistant Attorney General, Troutman Sanders, Norman L. Underwood, James K. Quillian, Julia M. Gonzalez, Samantha J. Kavanaugh, for appellant.

Gregory, Christy & Maniklal, Hardy Gregory, Jr., Gary C. Christy, James G. Williams, for appellee.

4. Our decisions in Divisions 1, 2 and 3 render moot the GLC’s remaining arguments.

Judgment affirmed in Case No. A99A2011. Judgment reversed in Case No. A99A2010.

Blackburn, P. J, and Eldridge, J., concur.

       Other states have addressed this precise issue. See Ruggiero v. State Lottery Comm., 21 Mass. App. Ct. 686 (489 NE2d 1022) (1986), upholding the Massachusetts State Lottery Commission’s decision denying a player’s claim for $100,000 based on a misprinted lottery ticket. The court held that the rules printed on the ticket stated that a defective ticket such as the one at issue was void.


text:
    A99A2491.
    In the Interest of D. B. et al., children.
    (531 SE2d 172)
   Smith, Judge.

L. R.’s parental rights were terminated as to all four of her biological children. In this appeal, L. R. contests the termination of her rights only as to two of the four children, D. B. and D. B- (same initials for both), twin boys who are now nearly six and one-half years old. In her sole enumeration of error, L. R. contends the trial court erred in finding clear and convincing evidence that the cause of these children’s deprivation was likely to continue. We disagree and affirm the order terminating her parental rights.

In considering a challenge to the sufficiency of the evidence in a parental rights termination case, we must review the evidence in the light most favorable to the appellee and determine whether any rational trier of fact could have found by clear and convincing evidence that the natural parent’s rights have been lost. In the Interest of A. C., 230 Ga. App. 395, 396 (1) (496 SE2d 752) (1998). We do not weigh the evidence or determine the credibility of the witnesses but defer to the juvenile court’s factfinding unless the evidence fails to satisfy the appellate standard of review. In the Interest of L. H., 236 Ga. App. 132, 133 (1) (511 SE2d 253) (1999); In the Interest of T. M. R., 208 Ga. App. 499, 500 (430 SE2d 865) (1993).

OCGA § 15-11-81 (a) delineates a two-step procedure to be employed in parental termination of rights cases. In the Interest of B. L. S., 239 Ga. App. 771, 774 (521 SE2d 906) (1999). First, there must be a finding of parental misconduct or inability, which requires clear and convincing evidence that: (1) the child is deprived; (2) the lack of proper parental care or control is the cause of the deprivation; (3) the cause of the deprivation is likely to continue; and (4) the continued deprivation is likely to cause serious physical, mental, emotional, or moral harm to the child. OCGA § 15-11-81 (b) (4) (A) (i)-(iv); In the Interest of B. L. S., supra. If these four factors are satisfied, the court must then determine whether termination of parental rights is in the best interest of the child, considering the child’s physical, mental, emotional, and moral condition and needs, including the need for a secure and stable home. OCGA § 15-11-81 (a); In the Interest of L. H., supra.

In this case, L. R. contests only the third factor, whether the record supports a finding that the cause of deprivation is likely to continue. In so doing, L. R. apparently concedes that the other factors were satisfactorily demonstrated. See In the Interest of E. C., 225 Ga. App. 12, 15 (482 SE2d 522) (1997).

When viewed in the light most favorable to the juvenile court’s decision, the evidence showed that when the twins were just over a year old in December 1994, the juvenile court ordered placement of the children into the temporary custody of the Department of Family & Children Services because the parents had unstable living arrangements and erratic employment. Supposedly to seek a job in another city, L. R. left the four children for a week with their alcoholic father and without food, electricity, or heat. Unable to care for the children and not knowing when L. R. might return, the father contacted police to assume custody. All four children were taken into emergency protective custody, and DFACS began caring for them.

As of the time of the termination hearing, L. R. had repeatedly failed to keep DFACS apprised of her residential and employment addresses. Three certified letters addressed to her were returned to DFACS. She missed ten scheduled appointments with her caseworker. Despite L. R.’s promises to obtain a suitable residence for the children, she had lived at approximately 18 different places since DFACS obtained custody of the children. She rarely contacted her caseworker and missed 19 of 55 scheduled bimonthly visitations with the children.

Although the goals of the case plan remained constant, L. R. failed to obtain stable housing, steady employment, and a consistent supply of food. While the case plan required L. R. to undergo alcohol and drug evaluation and to forward the results of testing to DFACS, she did not do so. Despite explicit requirements outlined in the case plan, L. R. did not provide financial support for the children or visit them regularly. L. R. never sent letters or cards to them and called the foster mother only once.

At the termination hearing, L. R. admitted she could not presently care for the children. Although she claimed she had been employed for four months, her earnings statement reflected only about four weeks of employment. L. R. voiced a hope that she could be sufficiently stable within four months to care for the children and conceded that she presently lacked a suitable residence for them. L. R. testified that she planned to rely upon the children’s Social Security benefits and other governmental aid to provide rent, food, day care, and clothing for the children. Her counsel conceded that L. R. had not been “terribly responsible.”

In a carefully crafted and highly detailed order, the juvenile court found:

[N] either the mother nor the father have a residence suitable for the children. For six (6) plus years preceding December, 1994, the mother lived with the father in a conjugal relationship. During that time she was not employed. The father provided her support. At that time she had no vocational skills and virtually no independent living skills. After eighteen (18) months [of] prodding, scrutiny, and offers of assistance, there has been no significant change in her ability to live independently.

The court observed that L. R. “now has no, stated plan for herself and the children other than the vague, indefinite goal of having a residence large enough for herself and her children.” After expressly finding all four statutory factors were fully satisfied, the court then determined that termination of the mother’s parental rights would be in the best interests of the children. “Judging the credibility of [the mother’s] good intentions was a task for the juvenile court. The decision as to [the children’s] future must rest on more than positive promises which are contrary to negative past fact.” (Citations and punctuation omitted.) In the Interest of C. D. P., 238 Ga. App. 393, 395 (519 SE2d 37) (1999). Further, the past conduct of a parent properly may be considered by the court in determining whether conditions of deprivation are likely to continue. In the Interest of J. M. C., 201 Ga. App. 173, 174 (410 SE2d 368) (1991). Here, no evidence indicated that L. R. was capable of properly parenting the twins or that her difficulties with parenting were likely to end. Given the uncontradicted evidence that L. R. had not been able to hold a job consistently, had not been able to procure suitable housing, and had not maintained consistent contact with the children, the evidence clearly supports the juvenile court’s determination that the cause of the deprivation was likely to continue. In the Interest of C. N., 231 Ga. App. 639, 641 (2) (500 SE2d 400) (1998).

Decided March 14, 2000.

Thomas J. Killeen, for appellant.

Thurhert E. Baker, Attorney General, Dennis R. Dunn, Deputy Attorney General, William C. Joy, Senior Assistant Attorney General, Shalen A. Sgrosso, Assistant Attorney General, Garcia & Powell, Tony D. Coy, for appellee.

Judgment affirmed.

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

       Apparently, three of the children share the same biological father, but the father of the fourth child remained unknown as of the time of the hearing.

       The termination hearing occurred on August 20, 1996. The date of the termination order at issue is August 8,1997. But the appeal was not docketed in this court until November 1999. Most of the delay appears to have been due to the late filing of the transcript from the hearing in 1996. Inexplicably, this transcript was not filed until July 23,1999. The passage of more than three years before docketing is unconscionable since the future of these twins has been and continues to be at stake. It is highly probable that much of the childhood of these twins has irretrievably evaporated in “foster care drift” during the interim. In the Interest of A. M. N., 234 Ga. App. 365, 368 (506 SE2d 693) (1998).