author: MIKELL, Judge.

text:
    A00A2234.
    JOHNSON v. THE STATE.
    (543 SE2d 439)
   MIKELL, Judge.

Based on evidence that he attacked, beat, robbed, and tried to strangle 103-year-old Hattie Mobley, Joseph Johnson was convicted of robbery, as a lesser included offense of armed robbery (Count 1), kidnapping with bodily injury (Count 2), burglary (Count 3), aggravated assault with a deadly weapon against a person age 65 or older (Count 4), aggravated assault with intent to rob by use of a bed sheet (Count 5), and possession of a knife during the commission of a crime (Count 7). The jury acquitted Johnson of possession of a knife during the commission of an armed robbery (Count 6). Johnson’s motion for new trial was denied, and this appeal followed. He raises 18 enumerations of error. We affirm the judgments of conviction on Counts 1, 2, 3, 4, and 7; vacate the judgment on Count 5 because it merges into Count 1; and vacate the sentence on Count 7 and remand for resentencing.

Initially Johnson challenges the trial court’s denial of his motion for a directed verdict of acquittal. The standard for reviewing a denial of a motion for a directed verdict of acquittal is whether the evidence was sufficient for a rational trier of fact to find beyond a reasonable doubt that the defendant was guilty of the charged offenses. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979). On appeal from a criminal conviction, the defendant no longer enjoys the presumption of innocence, and the evidence must be viewed in the light most favorable to the verdict. Redd v. State, 232 Ga. App. 666 (1) (502 SE2d 467) (1998).

Construed to uphold the jury’s verdict, the evidence shows that on December 13, 1997, Mobley was lying on her bed, ailing, awaiting her daughter’s arrival. Mobley testified that she had left her back door unlocked to facilitate her daughter’s entry. When Mobley looked up, she saw Johnson standing in her bedroom. He asked her for $2. When she said no, he threatened to kill her. Then Johnson threw her on the floor, took a sheet from the bed, wound it into a rope, tied it around her neck, and drew it tight, choking her. Johnson struck her face, severely bruising her left eye. He said again, “I’ll kill you, I’m serious.”

Next, Johnson retrieved a knife from the kitchen. As Mobley reached for the telephone to call the police, Johnson cut the telephone cord. Mobley was terrified; she thought Johnson was going to stab her. She testified: “He told me he’d kill me, in fact, he tried, and left me fastened up in the room, and I could hear him walking down the hall and slam the back door. He meant for me to die.” Johnson took $50, money Mobley needed to pay her gas bill.

After Johnson left, Mobley was able to free herself by using a nail file she kept on top of her dresser to loosen the sheet. Her daughter discovered her; Mobley’s eye was mangled, her nose was bleeding, and she could hardly stand. Mobley, who was acquainted with Johnson, identified him as her attacker.

When Johnson was spotted by a police officer outside a barber shop later that day, he approached the patrol car and stated: “I’m on drugs. I was going to turn myself in, but I had to speak to my mom first. . . .” Johnson was taken to the precinct, where he said to another officer: “I didn’t mean to hurt her, she’s like a mother to me, and I was on drugs, I needed money. . . .” Next Johnson gave a custodial statement, which was ruled admissible at trial pursuant to a Jackson-Denno hearing. Detective Kendrick, who videotaped the statement, testified that Johnson told the police that he had entered Mobley’s home, taken $50 from her, and used the money to buy crack cocaine. He admitted binding her hands and feet with a bed sheet. He said that “crack made him hurt someone he loved.” When asked how the telephone cord became severed, Johnson claimed he tore it with his bare hands.

Johnson testified at trial. He claimed Mobley allowed him to enter her home so that he could hang her curtains. Johnson testified that when he asked Mobley for $2, she retrieved an envelope containing $52 from her bedroom and handed it to him. Defense counsel then asked Johnson: “When did you tie her up?” Johnson replied: “When she started screaming and hollering.” According to Johnson, Mobley wanted her money back, but he refused to return it.

Johnson then testified that he exited the bedroom, retrieved a knife from the kitchen, returned to the bedroom, and used the knife to cut the telephone cord. Defense counsel asked Johnson: “You knew that was robbery when you took the money and left the house, didn’t you?” Johnson explained that he was experiencing drug cravings, then answered yes.

On cross-examination, Johnson denied that he threw Mobley to the floor but ultimately admitted that he “put” her there. Johnson admitted he “may have” caused the bruises on her face. He denied threatening Mobley. He also testified that he could not remember all that happened during the incident because he was under the influence of drugs at that time.

The evidence is sufficient to enable any rational trier of fact to find Johnson guilty of each offense, as described in detail below.

1. Robbery. Under OCGA § 16-8-40 (a),

A person commits the offense of robbery when, with intent to commit theft, he takes property of another from the person or the immediate presence of another: (1) by use of force; [or] (2) by intimidation, by the use of threat or coercion, or by placing such person in fear of immediate serious bodily injury to himself or to another.

The force or intimidation essential to robbery must either precede or be contemporaneous with the taking. Shropshire v. State, 224 Ga. App. 504, 505 (480 SE2d 919) (1997).

Johnson alleges he was entitled to a directed verdict of acquittal because any use of force occurred after the taking. However, Mobley’s testimony that he threw her to the floor, tied her up, and threatened to kill her before he took her money authorized the jury to find Johnson guilty of robbery beyond a reasonable doubt. Jackson v. Virginia, supra.

2. Aggravated assault with intent to rob. OCGA § 16-5-21 (a) (1) and (2) provide: “A person commits the offense of aggravated assault when he or she assaults . . . with intent to . . . rob . . . with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury.”

Mobley testified that after she refused to give Johnson her money, he wound a bed sheet into a rope, tied it tightly around her neck, and tried to strangle her. This evidence amply supports Johnson’s conviction under Jackson v. Virginia, supra. Moreover, there is no merit in Johnson’s argument that a fatal variance exists between the allegata and the probata. The evidence fully comported with the offense as alleged in the indictment. However, Johnson’s conviction on this charge merges with his robbery conviction as a matter of fact. See Division 10, infra.

3. Kidnapping with bodily injury. Johnson contends that the evidence was insufficient to support his conviction for this offense under OCGA § 16-5-40 (a) because the state failed to prove the essential element of asportation. However, as we held in Harshaw v. State, 222 Ga. App. 385, 386 (1) (474 SE2d 226) (1996), asportation requires only the slightest movement of the victim. In Harshaw, evidence that the defendant pushed the victim to the ground was held sufficient. Likewise, in Woodson v. State, 242 Ga. App. 67, 69 (1) (530 SE2d 2) (2000), evidence that the defendant shoved and pulled the victim to the floor was held to constitute asportation. The case sub judice is indistinguishable from Harshaw and Woodson. Mobley’s testimony that Johnson threw her to the floor demonstrated asportation. Moreover, the photographs introduced into evidence without objection vividly demonstrated the victim’s injuries. Accordingly, the evidence supported Johnson’s conviction of kidnapping with bodily injury under the standard of Jackson v. Virginia, supra.

4. Burglary. A person commits burglary if he enters the dwelling of another without authority and with the intent to commit a theft therein. OCGA § 16-7-1 (a). Johnson admitted his intention to take Mobley’s money. The conflict between her testimony and Johnson’s testimony concerning whether he was authorized to enter her house was a matter of credibility for the jury to resolve, and we will not disturb its finding on appeal. “As long as there is some competent evidence, even though contradicted, to support each fact necessary to make out the State’s case, the jury’s verdict will be upheld.” (Citations and punctuation omitted.) Jackson v. State, 236 Ga. App. 260 (511 SE2d 615) (1999). The evidence amply supports defendant’s conviction of burglary under the standard set forth in Jackson v. Virginia, supra.

5. Aggravated assault with a deadly weapon against a person age 65 or older. Assault is defined as an “act which places another in reasonable apprehension of immediately receiving a violent injury.” OCGA § 16-5-20 (a) (2). Assault becomes aggravated when it is committed with a deadly weapon. OCGA § 16-5-21 (a) (2). The sentence imposed upon a conviction of this offense is enhanced if the victim is at least 65 years old. OCGA § 16-5-21 (d); see Howard v. State, 230 Ga. App. 437, 439 (5) (496 SE2d 532) (1998).

Johnson argues that the evidence raised only a grave suspicion of his guilt. We disagree. Mobley testified that after Johnson tied her up and beat her, he returned to her bedroom wielding a knife and cut the phone cord, all the while threatening to kill her. Johnson admitted possessing the knife in her bedroom. Johnson’s self-serving testimony that he denied threatening her created nothing more than a conflict in the evidence for the jury to resolve. The evidence was sufficient to authorize a rational trier of fact to conclude that Johnson was guilty beyond a reasonable doubt of aggravated assault. Jackson v. Virginia, supra.

6. Possession of a knife during the commission of a crime. Johnson argues that the state failed to prove that the blade of the knife introduced into evidence was three or more inches long, an essential element of the offense under OCGA § 16-11-106 (b) (1). We disagree. Initially we note that defense counsel repeatedly referred to the knife as a “butcher” knife. While no witness testified to the length of the blade, the knife was admitted into evidence. The jury was charged, in two separate instances, that Johnson could not be convicted of this offense unless the jury found that the knife had a “blade three inches or more in length.” Further, we rejected the same argument in White v. State, 203 Ga. App. 889 (418 SE2d 149) (1992).

[Jjurors [are authorized] to exercise their primary senses of sight, taste, smell, etc., upon real objects introduced before them. ... A jury is entitled to consider as proven certain matters even without any testimony being introduced. . . . Jurors . . . are entitled to use their own common sense as intelligent human beings on many questions.

(Citations and punctuation omitted.) Id. at 891 (4). Consequently, this enumeration is without merit.

7. Johnson argues that the trial court erred in admitting the knife into evidence because the state failed to authenticate it. We disagree. Mobley identified the knife, as did her daughter, Eloise Phoenix. Phoenix testified that the knife was distinct from others in her mother’s possession because it had a hole in the handle. Accordingly, the trial court did not abuse its discretion in admitting the knife into evidence.

8. Johnson next asserts that the trial court improperly charged the jury on the offense of possession of a knife during the commission of a crime. The trial court gave the applicable pattern charge. See Council of Superior Court Judges, Suggested Pattern Jury Instructions (2nd ed.), Vol. II: Criminal Cases, Part 5 (M). This enumeration is meritless.

9. Johnson asserts that the trial court incorrectly ordered his sentence for possession of a knife during the commission of a crime (five years) to run consecutively to his sentence for kidnapping with bodily injury (life without parole). Reluctantly, we agree. In Busch v. State, 271 Ga. 591, 593 (523 SE2d 21) (1999), the Supreme Court construed OCGA § 16-11-106 to mean that the five-year sentence of subsection (b) can run consecutively only to the felony underlying the possession of a weapon offense. Accordingly, as Johnson’s five-year sentence on Count 7 can run consecutively only to his sentence on Count 4, we vacate Johnson’s sentence on Count 7 and remand for resentencing.

10. While Johnson enumerates four errors regarding merger of offenses, only one has merit. The key question in determining whether offenses have merged is whether the different offenses are proven with the same set of facts. “For example, if one crime is complete before the other takes place, the two crimes do not merge. However, if the same facts are used to prove the different offenses, the different crimes merge.” (Citation omitted.) Reeves v. State, 233 Ga. App. 802, 805 (2) (505 SE2d 540) (1998).

It is well settled that aggravated assault is not included in robbery as a matter of law, but it may be included as a matter of fact. Taylor v. State, 219 Ga. App. 475, 478 (4) (465 SE2d 473) (1995). In the case sub judice, the evidence adduced to convict Johnson of aggravated assault with intent to rob — that he threw the victim on the floor, hit her, and strangled her with a bed sheet — is part and parcel of the evidence underlying his robbery conviction. The offenses merge as a matter of fact. Consequently, the trial court erred in entering a judgment of conviction and sentence for aggravated assault with intent to rob as alleged in Count 5 of the indictment. That judgment of conviction is vacated, and the trial court is directed to strike the sentence imposed on the fifth count. See Hambrick v. State, 256 Ga. 148, 150 (4) (344 SE2d 639) (1986).

11. However, Johnson’s conviction for aggravated assault with a deadly weapon does not merge with his conviction for robbery. Different facts were used to prove the offenses. Johnson wielded the knife to cut the telephone cord and to threaten Mobley after using force to rob her; consequently, the acts surrounding his use of the knife were separate from those involving his use of the bed sheet. Johnson was properly convicted and sentenced for both crimes. See Clay v. State, 209 Ga. App. 266, 269 (3) (433 SE2d 377) (1993); Williams v. State, 184 Ga. App. 480, 481 (2) (361 SE2d 713) (1987).

12. Nor is there merit in Johnson’s argument that his conviction for aggravated assault with intent to rob merges with his conviction for kidnapping with bodily injury.

As a matter of law, aggravated assault — with intent to rob as the factor in aggravation — is not a lesser included offense of kidnapping with bodily injury. The two offenses share no essential elements. Aggravated assault with intent to rob requires the reasonable apprehension of receiving bodily injury and proof of the intent to rob the victim. Kidnapping with bodily injury requires no such finding. The kidnapping, as indicted, requires the finding of an unlawful abduction and actual injury, while such finding is not necessary for conviction for aggravated assault with intent to rob.

(Citations omitted.) Brown v. State, 232 Ga. App. 787, 788-789 (2) (504 SE2d 452) (1998).

13. Next, Johnson challenges the admission of similar transaction evidence. He alleges that the offense, an armed robbery to which Johnson pleaded guilty in 1991, was too remote in time; that it was not admitted for a permissible purpose; that the state failed to prove that he was the perpetrator of the similar transaction; and that its prejudicial impact outweighed its probative value.

(a) “[M]ere lapse of time between the commission of any prior similar crime and the commission of the offense currently at trial does not render the evidence automatically inadmissible; lapse of time is but one factor to be taken into consideration in determining admissibility.” Harris v. State, 222 Ga. App. 52, 54 (2) (a) (473 SE2d 232) (1996). “It is, moreover, the similarity of the offenses within the meaning of Williams v. State, 261 Ga. 640, 642 (2) (b) (409 SE2d 649) (1991) that determines the admissibility of such evidence, not whether the span of time between offenses is brief.” Nelson v. State, 242 Ga. App. 63, 65 (4) (528 SE2d 844) (2000).

In the instant case, the prior crime and the crimes for which Johnson was indicted were strikingly similar. The victim of the 1991 offense was also an elderly woman whom Johnson professed to love: his grandmother. While in her bedroom, Johnson asked her for $20. When she refused, Johnson brándished a knife, threatened to kill her, threw her on the floor, and removed money from her wallet. Johnson then cut the telephone cord and fled.

In any event, we have held that lapses of 11 years and 19 years, respectively, did not prohibit the admission of evidence of similar transactions. See Rich v. State, 254 Ga. 11, 14 (1) (325 SE2d 761) (1985); Cooper v. State, 173 Ga. App. 254, 255 (1) (325 SE2d 877) (1985). The lapse of time in the case sub judice is far shorter and provides no basis for reversing the trial court’s ruling.

(b) Johnson contends that the trial judge committed reversible error by failing to make an affirmative determination on the record that the independent offense was admitted for some lawful purpose other than to place his character into evidence, as required by Williams, supra, 261 Ga. at 642 (2) (b). We rejected this argument in Byrd v. State, 236 Ga. App. 485, 488-489 (6) (c) (512 SE2d 372) (1999), holding:

Even if the trial court erred by failing to make specific findings on the record that each of the elements enunciated in Williams for admission of the evidence was satisfied, no harmful error occurred because . . . the evidence was sufficient for the trial court to have concluded that the Williams’ requirements were satisfied.

The record reflects that the state sought to introduce the evidence to show Johnson’s course of conduct and bent of mind. The prior crime showed Johnson’s inclination to steal money from the elderly by force. It follows that the Williams’ requirements were met, and no harmful error was committed.

Moreover, contrary to Johnson’s argument, the court twice instructed the jury to limit its consideration of the evidence to the purpose of determining Johnson’s state of mind.

(c) Next, Johnson argues that the state failed to prove that he was the perpetrator of the independent crime. However, the record reflects that identity was never at issue. When the state sought to introduce a certified copy of Johnson’s 1991 guilty plea to armed robbery, defense counsel stated: “I have no objections to that. . . . He pled guilty, took the responsibility for what he did. . . .” Accordingly, this argument is waived.

(d) Johnson maintains that the trial court erred in admitting the similar transaction evidence without first balancing its probative value against its prejudicial impact. However, the trial court is not required to conduct an express balancing determination on the record. Byrd v. State, supra at 488 (6) (c). Accordingly, this claim is meritless.

(e) Johnson next argues that the deceased victim’s sworn statement was improperly admitted under the necessity exception to the hearsay rule. However, at the Uniform Superior Court Rule 31.3 hearing, defense counsel conceded that the statement was admissible. Nevertheless, when the officer to whom the victim made her statement began to read it for the jury, defense counsel objected on the ground that reading the statement “went beyond the necessity exception.” The objection was overruled. Pretermitting whether Johnson has waived his right to challenge the ruling on appeal, we hold that the trial court did not err in permitting the officer to read the statement to the jury.

With regard to appellant’s assertion that he was denied his right to confront this witness, we note that this Court, in Moore v. State, 207 Ga. App. [412, 417 (427 SE2d 779) (1993)], held that when victims of crimes for which appellant had pled guilty were unavailable, it was not error to admit police officers’ testimony regarding the victims’ prior statements to the officers. “By pleading guilty to these crimes, appellant waived his earlier opportunity to cross-examine the victim when they made the complaints against him.” Id. at 417 (2). Appellant, in admitting to the commission of the [armed robbery] of the witness as described in the indictment, waived his right to challenge the witness’ statements regarding the incident. Therefore, the admission of the evidence did not violate appellant’s right under the Confrontation Clause of the Sixth Amendment of the United States Constitution, and there was no error in admitting the statements under the necessity exception of OCGA § 24-3-1 (b). Id.

McBee v. State, 228 Ga. App. 16, 23 (4) (a) (491 SE2d 97) (1997).

(f) Johnson asserts that the trial court erred in permitting the jury to hear his confession to the earlier armed robbery without first conducting a hearing to determine the vohintariness of the confession. This contention is meritless. By entering a guilty plea, Johnson waived any objection to the voluntariness of the confession. “A valid guilty plea is treated as a confession of guilt and waives all defenses known and unknown.” (Citation omitted.) Whitehead v. State, 207 Ga. App. 891 (1) (429 SE2d 536) (1993).

14. Lastly, Johnson complains that the trial court erred in denying his motion for mistrial, made after a detective testified that the picture of Johnson used in the photographic lineup was “the arrest photo on file.” The detective testified that Mobley’s relatives alerted him to the fact that Johnson “had been arrested before for a similar incident.” Johnson alleges that this testimony impermissibly placed his character in issue. “However, mere mention that a defendant has been, in jail falls short of placing his character at issue.” Taylor v. State, 272 Ga. 559, 561 (2) (b), (c) (532 SE2d 395) (2000). Accordingly, the trial court did not abuse its discretion in refusing to grant a mistrial.

Decided December 6, 2000.

Emory B. Bazemore, for appellant.

Spencer Lawton, Jr., District Attorney, Christine S. Barker, Assistant District Attorney, for appellee.

Judgment affirmed. Conviction and sentence on Count 5 vacated. Sentence on Count 7 vacated and remanded.

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


source: Caselaw Access Project

author: Mikell, Judge.

license: Public Domain

text:
    A00A2354.
    LINDSEY v. THE STATE.
    (543 SE2d 117)
   Mikell, Judge.

Curtis Lindsey was indicted for the offenses of rape, battery, false imprisonment, and terroristic threats. Following a jury trial, Lindsey was convicted of battery, false imprisonment, and simple assault, as a lesser included offense of rape. The court directed a verdict of acquittal on the terroristic threats charge. Lindsey filed a motion for new trial, which was denied. This appeal followed. We affirm.

Viewed in the light most favorable to the verdict, the evidence shows that the victim, Lindsey’s former girlfriend, voluntarily accompanied Lindsey to his apartment on March 5, 1998, at approximately 8:30 p.m. According to the victim’s testimony, however, when she tried to leave, he stopped her. The victim and Lindsey began to argue because she did not want to have sex with him. As the argument escalated, Lindsey punched the victim in the face with his fist and cut her pants off with scissors.

The victim testified that Lindsey allowed her to call her family to tell them she would be home later. The victim spoke with her mother, Thelma Foster, who testified that the victim said she wanted to come home, but Lindsey would not permit her to leave. According to Foster, the victim sounded scared and was crying. Foster testified that she could hear Lindsey’s voice in the background. When Foster asked her daughter the telephone number to Lindsey’s apartment, the line went dead.

Lindsey had unplugged the telephone. Afterward, the victim testified, he tied her up with a cord, gagged her with a towel, placed tape across her mouth, and put her in a closet. The victim testified that she heard Lindsey ask someone on the telephone how he could “get rid of a body.” She was terrified.

In the meantime, after the telephone call from her daughter ended abruptly, Foster contacted her other daughter, and they joined additional family members to drive downtown in search of Lindsey’s apartment. After failing to locate the apartment building, the victim’s family went to a federal police precinct to report their suspicions that the victim was being held against her will.

Officer A. C. Huntley of the City of Atlanta Police Department testified that he met the victim’s family at the federal police precinct. Based on the family’s description of Lindsey’s residence, Officer Huntley was able to locate Lindsey’s apartment building. He spoke with the desk clerk and observed the victim’s name on the sign-in sheet in the lobby. The officer proceeded to Lindsey’s apartment and knocked on the door. Receiving no response, Officer Huntley returned to the lobby, where the desk clerk had already contacted the building manager.

The victim testified that after Lindsey allowed her to leave the closet and untied her, they heard a knock at the door. Lindsey told her that it was the police, but he did not open the door. The victim testified that Lindsey told her to lie on the bed, and that he proceeded to have nonconsensual sexual intercourse with her. She further testified that Lindsey placed a pair of scissors against her nipples and threatened to cut them off and stab her, and that she did not scream because she was afraid. After the defendant had sex with the victim, there was a knock on the bedroom door.

Officer Huntley testified that the building manager arrived and opened the front door to Lindsey’s apartment. Officer Huntley knocked on the two inner doors. The officer testified that Lindsey opened one of the doors, and the victim quickly exited the room. Both Lindsey and the victim were partially clothed. The victim was visibly upset, and the officer observed bruises on her shoulders, arms, and head. The victim told him that she had been attacked. Officer Huntley put Lindsey in the back of his police car to await the arrival of the sex crimes unit. The officer did not search the apartment at that time.

Investigator Michael Pulliam testified that he arrived at Lindsey’s apartment building at approximately 1:30 a.m. on March 6, 1998. After speaking with the victim, Investigator Pulliam escorted her to Lindsey’s apartment to retrieve her belongings. Upon entering Lindsey’s bedroom, the investigator realized that it was a crime scene and ordered the investigation unit to photograph the room. Investigator Pulliam observed a pair of cut-up pants, tape, and an extension cord, and the victim gave him a pair of scissors. After seizing the evidence and securing the crime scene, Investigator Pulliam placed Lindsey under arrest.

1. First, Lindsey enumerates as error the court’s denial of his motion to suppress the evidence acquired through the warrantless search of his apartment. Lindsey argues that Officer Huntley’s first entry into the apartment and Investigator Pulliam’s subsequent entry were both unlawful, and, thus, the evidence seized was inadmissible. OCGA § 17-5-30 (a) (1). We disagree.

When reviewing a trial court’s decision on a motion to suppress, the court’s responsibility is to ensure that there was a substantial basis for the decision. The evidence is construed most favorably to uphold the findings and judgment, and the trial court’s findings on disputed facts and credibility are adopted unless they are clearly erroneous.

Carthern v. State, 238 Ga. App. 670-671 (1) (519 SE2d 490) (1999). See also State v. David, 269 Ga. 533, 535 (1) (501 SE2d 494) (1998); State v. Davis, 261 Ga. 225, 226 (404 SE2d 100) (1991); State v. Brannan, 222 Ga. App. 372 (474 SE2d 267) (1996). So viewed, we conclude that the trial court’s decision was not clearly erroneous.

First, we agree with the trial court that Officer Huntley’s entry into the apartment was justified by the existence of exigent circumstances. “An exigent circumstance which does justify the warrantless entry of a private home is the officer’s reasonable belief that such action is a necessary response on his part to an emergency situation.” Brannan, supra, 222 Ga. App. at 373, citing Coker v. State, 164 Ga. App. 493, 496 (5) (297 SE2d 68) (1982). It has been repeatedly held that reasonable concern for a victim’s welfare justifies a warrantless entry. Johnson v. State, 272 Ga. 468, 470 (2) (532 SE2d 377) (2000); Carthern, supra, 238 Ga. App. at 671; Brannan, supra, 222 Ga. App. at 373-374. In the case sub judice, Officer Huntley had a reasonable concern that the victim was being held against her will, based on information provided by her mother and on the fact that she had signed in as a guest at the apartment building but had not signed out. Therefore, the court did not err in finding that the first entry into the apartment was not unlawful.

Next, Lindsey argues that Investigator Pulliam’s subsequent entry into the apartment and seizure of evidence were unlawful; however, we find this argument to be without merit.

At the suppression hearing, Investigator Pulliam testified that Lindsey gave him permission to enter the apartment with the victim to retrieve her personal belongings. When the investigator entered the bedroom, he observed a pair of pants, an extension cord, and tape in plain view. The victim pointed out the scissors used by Lindsey to cut off her pants and threaten her. The police officers photographed the room and seized the evidence. “An officer who is lawfully in a place and sees in plain view evidence relating to a crime, or instrumentalities of a crime, may seize that evidence. The important question is whether the officer was lawfully in the bedroom when he seized the [evidence].” (Citation omitted.) Brannan, supra, 222 Ga. App. at 373.

The record shows that Investigator Pulliam entered Lindsey’s bedroom based on the defendant’s consent. Courts determine the voluntariness of consent by examining the totality of the circumstances, including whether the accused was advised of his constitutional rights and the prolonged nature of questioning. Weeks v. State, 206 Ga. App. 431, 433 (425 SE2d 421) (1992). In this case, Investigator Pulliam testified that he advised Lindsey that he was not under arrest and read him his Miranda rights before speaking to him. According to Investigator Pulliam, Lindsey told him that the incident was “just a domestic thing,” and that the officer could take the victim to the apartment to retrieve her belongings.

“We must accept the trial court’s ruling at a suppression hearing as to the credibility of an officer’s testimony regarding a defendant’s consent to a search, unless that ruling is clearly erroneous.” Randolph v. State, 246 Ga. App. 141, 146 (538 SE2d 139) (2000). Therefore, we conclude that Investigator Pulliam lawfully entered the apartment based on Lindsey’s consent.

Furthermore, we find that the seized evidence was properly discovered under the plain view doctrine. “ ‘Plain view’ is best understood not as an independent exception to the Warrant Clause but simply as an extension of whatever prior justification might exist for an officer’s access to an object or situation.” Galbreath v. State, 213 Ga. App. 80, 82 (2) (443 SE2d 664) (1994). Because the investigator was lawfully in Lindsey’s apartment based on his consent, and the items were in plain view and recognizable as evidence, the officer properly seized the evidence at issue. Id. at 83. Therefore, the trial court did not err in denying Lindsey’s motion to suppress.

2. Next, Lindsey argues that the court erred in admitting evidence of prior difficulties between himself and the victim. At trial, the victim’s sister testified that she had observed Lindsey hold the victim against her will on four occasions and slap the victim once. She also testified that Lindsey would telephone the victim up to 30 times an hour. The victim testified that Lindsey hit her on numerous occasions, called her “bitches” and “whore,” and threatened to kill her sister.

Lindsey argues that his right to due process was violated because the prosecution did not provide him with ten days advance notice of its intention to present evidence of prior difficulties between the defendant and the victim, as required by Uniform Superior Court Rules 31.1 and 31.3.

Decided December 6, 2000.

Whitman M. Dodge, for appellant.

Paul L. Howard, Jr., District Attorney, Alvera A. Wheeler, Assistant District Attorney, for appellee.

In Wall v. State, 269 Ga. 506, 509 (500 SE2d 904) (1998), however, the Supreme Court held that USCR 31.1 and 31.3 should not be applied to evidence of prior difficulties between a defendant and a victim. Under Wall, evidence of the defendant’s prior acts toward the victim is admissible as “evidence of the relationship between the victim and the defendant and may show the defendant’s motive, intent, and bent of mind in committing the act against the victim which results in the charges for which the victim is being prosecuted.” Id. Thus, the trial court did not err in admitting evidence of prior difficulties between Lindsey and the victim.

Judgment affirmed.

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


text:
    A00A2378.
    SANDERS v. THE STATE.
    (543 SE2d 452)
   Mikell, Judge.

Tony Lester Sanders was convicted after a bench trial of one count of possession of cocaine and one count of misdemeanor obstruction of a law enforcement officer. On appeal, Sanders contends that the trial court erred in denying his motion to suppress in light of the unreasonable intensity and scope of the search. We disagree.

As a preliminary matter, we note that Sanders has failed to include a statement of the applicable standard of review in his brief as required by Court of Appeals Rule 27 (a) (3). “On appeal from a motion to suppress, the evidence is viewed in a light most favorable to upholding the trial court’s judgment. The credibility of witnesses and the weight accorded their testimony rest with the trier of fact. . . ,” Thus, “the trial court’s findings on disputed facts and credibility must be accepted unless clearly erroneous.” “Where the evidence is uncontroverted and there is no issue as to witness credibility, however, we review de novo the trial court’s application of the law to the undisputed facts.”

The uncontroverted evidence presented at the motion hearing shows that on November 5, 1998, Officer C. A. Hill was patrolling a known drug area when he noticed a maroon car parked at a drug offender’s residence. Hill had previously served search warrants at the house where the car was parked and had seized crack cocaine and made numerous drug-related arrests in the area. Hill ran the tag number of the maroon car and discovered that the tag was registered to another vehicle. As long as the vehicle remained in the private driveway, Hill did not plan to pursue the matter. Shortly thereafter, however, Hill saw the maroon car drive away from the area.

Hill followed the car and activated his blue lights to initiate a traffic stop based on the improper tag. The driver, Sanders, did not stop. Instead, he drove through a stop sign and traveled on three different streets, which caused Hill to activate his siren. When it appeared that Sanders was ignoring the siren, another officer drove in front of Sanders’ car and forced him to stop. Fearing Sanders would flee, Hill approached Sanders’ car, told him to exit the car, handcuffed him, and informed him that he was under arrest for driving with an improper tag.

Before putting Sanders into the squad car, Hill noticed that he was chewing on something and asked him to spit it out. Sanders refused to do so, but nonetheless, continued chewing. Hill testified that he thought Sanders could have had evidence or something that might hurt him in his mouth. He suspected that it was crack cocaine because Sanders had been in a known drug area. After repeatedly asking Sanders to spit out what was in his mouth, Hill applied pressure to Sanders’ jaw line with his left thumb and forefinger to make it uncomfortable for Sanders to swallow. Hill continued to ask Sanders to spit out what was in his mouth, and Sanders would not comply.

The officers guided Sanders to the ground, during which time Hill lost his hold on Sanders’ neck. He reapplied it once Sanders was on the ground. Sanders eventually said that he had grass in his mouth and spit out a small plastic baggie. The baggie had been chewed through in several areas, but it still contained some white chalky material. The State Crime Lab later confirmed that the substance in the baggie was cocaine. Sanders filed a motion to suppress the cocaine, which the trial court denied.

On appeal, Sanders does not contest the lawfulness of the stop or Hill’s right to conduct a search, only the reasonableness of the search. Specifically, Sanders contends that Hill’s application of pressure to his jaw line violated his Fourth Amendment right to be free from unreasonable search and seizures. We reject Sanders’ contention.

“[A] criminal suspect does not have a right to destroy evidence and the police are authorized to use reasonable but not excessive force in preventing the destruction or concealment of evidence.” In Merriweather v. State, this Court sanctioned the use of the Heimlich maneuver to remove suspected contraband after the defendant swallowed it. In Beck v. State, the police officer sprayed a chemical irritant into the suspect’s eyes when he refused to spit a bag out of his mouth. This Court did not find unreasonable the use of the spray or the subsequent order, after Beck swallowed the bag, that he provide a urine sample and have his stomach pumped. Since we did not find unreasonable the use of the Heimlich maneuver in Merriweather or the stomach pump in Beck, where the suspects actually swallowed the contraband, we do not find that the effort used in this case to prevent Sanders from swallowing contraband was unreasonable.

We agree with the trial court’s finding that Officer Hill’s right to search the defendant upon arresting him encompassed the right to ask the defendant to empty his mouth of its contents. Furthermore, because Sanders’ arrest was lawful, Hill was authorized to discover or seize any item that was unlawful to possess. Though Hill did not know exactly what was in Sanders’ mouth, Hill’s suspicion that it may have been an unlawful item was reasonable under the circumstances. Sanders was in a known drug area. Sanders did not stop his car until forced to do so. Finally, Sanders refused to spit out what was in his mouth despite repeated requests that he do so.

There is no evidence in the record that Sanders was harmed by Hill’s conduct. In fact, the record establishes that Sanders was able to communicate during the time that Hill was applying pressure to his jaw line. Accordingly, because there is enough evidence in the record to establish that the trial court’s findings were not clearly erroneous, we affirm the trial court’s denial of Sanders’ motion to suppress.

Judgment affirmed.

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

Decided December 6, 2000.

Stepp & Randazzo, Glynn R. Stepp, for appellant.

Daniel J. Porter, District Attorney, Jennifer Kolman, Assistant District Attorney, for appellee.

       (Citation and punctuation omitted.) Taylor v. State, 239 Ga. App. 858 (522 SE2d 266) (1999).

       (Citation omitted.) Rider v. State, 222 Ga. App. 602 (475 SE2d 655) (1996).

        State v. Becker, 240 Ga. App. 267, 268 (523 SE2d 98) (1999).

       Pursuant to OCGA § 17-4-23 (a), an officer may arrest a person accused of violating any law governing the licensing of motor vehicles. OCGA § 17-5-1 (a) provides that during the cotuse of a lawful arrest, an officer may reasonably search the person arrested.

       (Citation and punctuation omitted.) Merriweather v. State, 228 Ga. App. 246, 248 (3) (491 SE2d 467) (1997).

       Id.

       216 Ga. App. 532 (455 SE2d 110) (1995).

       OCGA § 17-5-1 (b).


text:
    A00A2426.
    SMITH v. THE STATE.
    (543 SE2d 434)
   Mikell, Judge.

Danny Smith was convicted of robbery and sentenced as a recidivist to 15 years to serve. The trial court denied his motion for new trial, and he appeals, enumerating the general grounds. We affirm.

On appeal of a criminal conviction, the defendant no longer enjoys the presumption of innocence, and we view the evidence in the light most favorable to the verdict to determine if the evidence was sufficient for a rational trier of fact to find the defendant guilty beyond a reasonable doubt. Jowers v. State, 244 Ga. App. 292 (1) (535 SE2d 294) (2000).

Viewed in this light, the evidence reveals that in the pre-dawn darkness of October 24, 1999, Smith entered a grocery store wearing sunglasses and a jacket with a hood tied tightly over his head. His appearance aroused suspicion, and the police were called. He brought a few items to the register, which the cashier scanned. Then the defendant stated he forgot milk, which he went back to retrieve. The cashier testified that after he scanned the milk, the defendant removed his wallet, said he had a $20 bill, and then put the wallet away. Next, according to the cashier, the defendant said, “this is a robbery, give me the money out of the drawer.” The cashier opened the register and put all the bills it contained — $147 total — in the bag with the scanned items. The defendant grabbed the bag and walked out of the store. The victim testified that the defendant put his hand in his pocket, which caused the victim to fear that the defendant might have a gun.

A police officer arrived before the defendant left the store. The officer stood outside the store and looked through the windows. He observed the defendant take a grocery bag from the counter. The officer testified that the defendant kept his hand in his jacket pocket at all times. When the defendant emerged from the store, the officer stopped him. A pat-down search yielded a ratchet inside his waistband. The defendant was holding the bag containing $147 and the stolen merchandise.

Shortly after the defendant was arrested, he made a spontaneous statement indicating that he had paid for the items in question and that he did not know how the $147 got into the bag. The defendant maintained his innocence at trial.

Decided December 6, 2000.

Richard T. Ryczek, Jr., for appellant.

Danny Smith, pro se.

Richard R. Read, District Attorney, for appellee.

Evidence is sufficient as a matter of law if, when construed to uphold the verdict, a rational trier of fact could find all of the essential elements of the crime charged beyond a reasonable doubt. Allen v. State, 243 Ga. App. 730, 731 (1) (534 SE2d 190) (2000). The elements of robbery by intimidation, as charged in the indictment, include the intent to commit theft and the taking of property from the person or the immediate presence of another “by intimidation, by the use of threat or coercion, or by placing such person in fear of immediate serious bodily injury to himself or to another.” OCGA § 16-8-40 (a) (2).

A conviction for robbery by intimidation . . . requires proof that the theft was attended with such circumstances of terror — such threatening by word or gesture, as in common experience, are likely to create an apprehension of danger, and induce a [person] to part with his property for the safety of his person.

(Citations omitted.) Johnson v. State, 195 Ga. App. 56, 58 (1) (b) (392 SE2d 280) (1990). In Johnson, the victim, a service station cashier, testified that the defendant requested change for a dollar, and that when she opened the cash register, he demanded all the money. The defendant’s hand was in his jacket pocket, and the victim feared he had a weapon, although none was found on his person. Id. at 57.

In the instant case, as in Johnson, the cashier’s testimony concerning the defendant’s gestures and demand for money was sufficient to establish the element of intimidation. Hogan v. State, 210 Ga. App. 122 (1) (435 SE2d 494) (1993). Defendant’s challenges to the weight of the evidence and the credibility of the state’s witnesses were matters for the jury to decide. Jowers, supra. We find the evidence sufficient for the jury to find the defendant guilty of robbery by intimidation under the standard of Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979).

Judgment affirmed.

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


text:
    A00A2584.
    BLANTON et al. v. DURU.
    (543 SE2d 448)
   Mikell, Judge.

This case originated as a petition for equitable partition of real property filed against Roger Blanton by his former wife, Wanda Duru. Duru subsequently added defendants Bob V. Brown and Minerva Brown (“the Browns”) and amended the action to include a claim for wrongful foreclosure. At the conclusion of a bench trial, the court ruled in Duru’s favor, and the defendants appeal.

The record shows that following the dissolution of the marriage of Duru and Blanton, ownership of the real property that had been their marital home remained unresolved. Therefore, Duru commenced this action seeking partition of the property, which was jointly titled in both their names. Duru also sought to recover amounts that Blanton had failed to pay on certain judgments pursuant to the terms of the final judgment and decree of divorce.

Duru’s petition was scheduled for trial on October 11,1999; however, counsel for the parties reached a settlement that day. The trial court entered a consent order incorporating the settlement agreement on October 15, 1999, nunc pro tunc to October 11, 1999, which provided that Duru would pay Blanton $25,000 for his one-half undivided interest in the property. In return, Blanton was ordered to execute a limited warranty deed conveying his interest to Duru as well as other documents to effectuate the conveyance. The terms of the consent order were conditioned upon there being “no intervening liens or judgments against the property which are unknown to [Duru] and are attributable to [Blanton]” arising after March 9,1999. The order also provided that it disposed of all of Blanton’s interest in the property.

Blanton failed to comply with the consent order and, in fact, filed a security deed conveying his interest in the property to his business partner, Bob V. Brown, and to Brown’s wife. As a result of Blanton’s refusal to obey the terms of the consent order, the court entered a second order on October 29,1999, in which it held that the title to the property was vested in Duru and directed her to pay $25,000 into the registry of the court, rather than to Blanton. The court also directed that the security deed conveying Blanton’s interest in the property to the Browns be cancelled.

On November 24,1999, Duru filed a motion to enforce the court’s orders and to join the Browns as parties defendant. Following a hearing, the court entered an order on December 6,1999, granting Duru’s motion to add the Browns as parties and finding that Blanton had failed to comply with the consent order. The court also found that the Browns had advertised a foreclosure sale pursuant to the BlantonBrown security deed. The court again ordered that the security deed be cancelled of record and temporarily enjoined all foreclosure proceedings.

The Browns were served with a summons and copies of the pleadings on December 13, 1999, and they filed an answer on January 21, 2000. They did not contest the court’s jurisdiction over them but did raise an objection to the court’s termination of their interest in the subject property.

Duru filed an amended complaint on January 18, 2000, in which she sought damages from Blanton and the Browns for wrongful foreclosure. The court approved the filing of Duru’s amended complaint on January 21 and permanently enjoined Blanton and the Browns from pursuing foreclosure proceedings or any sale under power of the cancelled Blanton-Brown security deed. Neither Blanton nor the Browns filed an answer to the amended complaint.

The court conducted a bench trial on May 26, 2000, and concluded that Blanton and the Browns were liable to Duru for wrongful foreclosure. The court issued a final order on June 15, 2000, including detailed findings of fact and conclusions of law. The court awarded Duru damages and attorney fees in the amount of $24,792.56.

1. Initially, we must resolve Duru’s motion to dismiss this appeal. The appellants filed their brief and enumeration of errors on September 5, 2000, more than 20 days after the appeal was docketed, in violation of Court of Appeals Rule 26 (a). Additionally, the appellants’ brief failed to specify the method by which each enumerated error was preserved for consideration as required by Rule 27 (a) (1) and did not contain citations to the record in violation of Rule 27 (c) (3) (i). However, OCGA § 5-6-30 provides that the rules governing appellate practice should be liberally construed to result in a decision on the merits of a case. Thus, we deny Duru’s motion to dismiss and exercise our discretion to consider the merits of this appeal.

2. In their first enumeration of error, Blanton and the Browns argue that the court erred in entering orders subsequent to the October 15, 1999 consent order. They contend that the consent order was a final adjudication and terminated the litigation. We disagree.

First, we note that the appellants failed to raise this issue in any pleadings or during the bench trial. It is well settled that ££[i]ssues presented for the first time on appeal furnish nothing for us to review. . . . One may not abandon an issue in the trial court and on appeal raise questions or issues neither raised [in] nor ruled on by the trial court.” (Citation and punctuation omitted.) Cagle v. Davis, 236 Ga. App. 657, 662 (4) (b) (513 SE2d 16) (1999).

Furthermore, we conclude that the court did not err in issuing orders subsequent to the October 15,1999 consent order. OCGA § 15-1-3 (3) provides that every court has power “to compel obedience to its judgments, orders, and process ... in an action or proceeding therein.” It is undisputed that Blanton failed to comply with the consent order requiring that he execute certain documents to convey his interest in the property to Duru. Thus, Blanton’s refusal to obey the order of the court necessitated the October 29 and December 6 orders.

Likewise, the court did not abuse its discretion in permitting Duru to amend her complaint to add a claim for wrongful foreclosure. OCGA § 9-11-15 (a) allows a party to amend her pleadings by leave of court and provides that “[l]eave shall be freely given when justice so requires.” According to the statute, the court may permit filing of a supplemental pleading to set forth events which have happened since the date of the original pleading. OCGA § 9-11-15 (d). In this case, Duru sought leave of court to amend her original petition to include a claim for wrongful foreclosure, based on events that happened after the filing of the petition. Specifically, Blanton conveyed his interest in the property to the Browns contrary to the court’s order, and the Browns instituted foreclosure proceedings against Duru. Therefore, the court properly permitted Duru to file an amended complaint.

3. Next, Blanton and the Browns claim that the court erred in adding the Browns as defendants. Again, the appellants contend that the October 15, 1999 consent order was a final judgment and terminated this litigation.

The court granted Duru’s motion to add the Browns on December 6, 1999. Neither Blanton nor the Browns appealed this order or raised any objection to their joinder in a responsive pleading or during the bench trial. In fact, in their answer and response to summons, the Browns stated “[w]herefore, Defendants Bob V. Brown and Minerva Brown pray the [c]ourt to inquire into the matter, withdraw the temporary injunction, deny any permanent injunction to Plaintiff, and for such other relief as the [c]ourt determines to be appropriate.” Now the Browns claim that the court erred in adding them as parties because they do not like the outcome of the case.

Based on our decision in Division 2 that the court properly permitted Duru to amend her complaint to add a claim of wrongful foreclosure, we must now determine whether the court abused its discretion in joining the Browns as defendants to that claim. OCGA § 9-11-19 (a) provides that:

A person who is subject to service of process shall be joined as a party in the action if: (1) In his absence complete relief cannot be afforded among those who are already parties; or (2) He claims an interest relating to the subject of the action and is so situated that the disposition of the action may: (A) As a practical matter impair or impede his ability to protect that interest; or (B) Leave any of the persons who are already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest.

We conclude that as holders of the purported security deed on the property, the Browns were appropriate parties to this lawsuit. See McCalla, Raymer &c. v. C.I.T. Financial Svcs., 235 Ga. App. 95, 96 (508 SE2d 471) (1998). The security deed transferring Blanton’s interest to the Browns was filed after the October 15 consent order took effect. Duru could not be afforded complete relief on her wrongful foreclosure claim without joinder of the Browns, who instituted foreclosure proceedings against her based on the Blanton-Brown security deed.

Additionally, the Browns claimed an interest in the property at issue, and disposition of the action in their absence may have affected their ability to protect that purported interest. We note that OCGA § 9-11-25 (c) provides for joinder of persons to whom interest has been transferred. Thus, the court did not abuse its discretion in joining the Browns as defendants to this case.

4. Next, the appellants challenge any award of damages based on Blanton’s failure to comply with the October 15 consent order. This argument is without merit.

First, the June 15, 2000 order from which Blanton and the Browns appeal assessed damages stemming from Buru’s wrongful foreclosure claim, not from Blanton’s failure to obey the court’s order. Furthermore, the court properly awarded attorney fees to Duru as a sanction for Blanton’s failure to comply with the consent order. This sanction was within the court’s authority. See Cohen v. Feldman, 219 Ga. App. 90, 91 (464 SE2d 237) (1995).

5. Finally, the appellants argue that it was error for the court to award damages based on Duru’s mental anguish and lost wages. Again, we find no merit in their argument.

It is well settled that the findings of trial courts in nonjury trials shall not be set aside unless clearly erroneous. Hirsch v. Joint City County Bd. of Tax Assessors, 218 Ga. App. 881, 882 (1) (463 SE2d 703) (1995). “As the clearly erroneous test is, in effect, the same as the any evidence rule, appellate courts will not disturb fact findings of a trial court if there is any evidence to support them.” Id. The amount of damages awarded for a wrongful foreclosure claim is a matter committed to the factfinder. First Union Nat. Bank &c. v. Cook, 223 Ga. App. 374, 378 (7) (477 SE2d 649) (1996).

We conclude that the court’s award of damages for mental anguish was not clearly erroneous. In a wrongful foreclosure action, an injured party may seek damages for mental anguish in addition to cancellation of the foreclosure. Clark v. West, 196 Ga. App. 456, 457 (a) (395 SE2d 884) (1990).

Decided December 6, 2000

Palmer H. Ansley, Jr., for appellants.

McLarty, Robinson & Van Voorhies, John E. Robinson, Gregory H. Blazer, for appellee.

We do not agree . . . that a wrongful foreclosure action sounds only in contract. There exists a statutory duty upon a mortgagee to exercise fairly and in good faith the power of sale in a deed to secure debt. . . . [B] reach of this duty is a tort compensable at law.

(Citation omitted.) Id. The court found sufficient evidence to support Duru’s claim for wrongful foreclosure against Blanton and the Browns and to warrant an award of damages for her mental anguish. Because there is evidence in the record to support the court’s determination, we will not disturb its findings.

Likewise, the court did not err in awarding damages for Duru’s lost wages. In a tort action, “lost earnings are recoverable if the proof is reasonably certain and not based upon mere speculation or guesswork.” Super Discount Markets v. Coney, 210 Ga. App. 659, 660 (2) (436 SE2d 803) (1993). Duru testified to the specific hourly wages she lost as a result of the actions of Blanton and the Browns. Accordingly, her lost wages were proved with reasonable certainty.

6. We decline to assess penalties against Blanton and the Browns for prosecuting this appeal. Duru’s motion for frivolous appeal penalties pursuant to Court of Appeals Rule 15 (b) is denied. Additionally, Duru’s motion to assess penalties pursuant to Rule 7 is denied.

Judgment affirmed.

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


author: Barnes, Judge.

text:
    A98A2419.
    DAVENPORT v. NORTHEAST GEORGIA MEDICAL CENTER, INC.
    (542 SE2d 525)
   Barnes, Judge.

When Northeast Georgia Medical Center, Inc. revoked the medical staff privileges of James A. Davenport, M.D., the physician sued the hospital, seeking damages and injunctive relief. The trial court determined that Dr. Davenport presented no evidence for which there was no adequate remedy at law and denied him injunctive relief. After discovery, the hospital moved for summary judgment, asserting that it was entitled to immunity from damages because it had revoked Dr. Davenport’s privileges in accordance with the federal Health Care Quality Improvement Act (HCQIA), 42 USC § 11101 et seq. The trial court granted the hospital summary judgment, and Dr. Davenport appealed, contending that the hospital was not entitled to immunity because (1) he did not receive adequate notice of the reasons the hospital revoked his privileges; (2) there is a genuine issue as to whether the hospital complied with the statutory prerequisites for immunity; and (3) there is a question of fact as to whether his conduct adversely affected the health or welfare of patients.

In Davenport v. Northeast Ga. Med. Center, 237 Ga. App. 252, 256 (515 SE2d 162) (1999), we determined that a genuine issue of material fact remained as to whether the hospital gave Dr. Davenport adequate notice of the reasons for the proposed revocation of his staff privileges and reversed on that basis without reaching the issue of whether the summary judgment was correct. The Supreme Court granted certiorari to consider what constitutes “adequate notice” under 42 USC § 11112 (a) (3), concluded that the HCQIA neither requires that the notice set forth the reasons for the proposed action in a formal and precise manner nor mandates that the reasons be limited in number and scope or always be restated in the same terms, reversed our decision as to adequate notice, and remanded the case so that we may consider the remaining substantive issues. Northeast Ga. Med. Center v. Davenport, 272 Ga. 173, 174 (527 SE2d 548) (2000). The previous judgment of this Court is vacated, and the judgment of the Supreme Court is made the judgment of this Court. In accordance with the mandate of the Supreme Court, we now proceed to consider and decide the remaining enumerations of error.

On appeal of a grant of summary judgment, we determine whether the trial court erred in concluding that the moving party demonstrated that no genuine issue of material fact remained and that the party was entitled to judgment as a matter of law. OCGA § 9-11-56 (c). Specifically as to the HCQIA, we determine whether “a reasonable jury, viewing the facts in the best light for [Dr. Davenport], [might] conclude that he has shown, by a preponderance of the evidence, that the [hospital’s] actions are outside the scope of § 11112 (a).” Austin v. McNamara, 979 F2d 728, 734 (9th Cir. 1992); Bryan v. James E. Holmes Regional Med. Center, 33 F3d 1318, 1332-1333 (3) (a) (11th Cir. 1994).

The record reveals that Dr. Davenport, who was board certified in internal medicine and obstetrics and gynecology (OB/GYN), was granted medical staff privileges at Northeast Georgia Medical Center in Gainesville shortly after he arrived there in October 1990. Beginning in March 1992 and continuing through December 1994, a total of 22 complaints were submitted against the physician. In March 1993, the Peer Review Committee met to review three incidents. The first one concerned his use of prostaglandin gel in an in-house composition for cervical ripening after the Pharmacy & Therapeutics Committee (P&T Committee) had instructed the OB/GYN Department against doing so based on information from legal counsel and a pharmaceutical representative. After reviewing medical literature and the experiences of their peers, the OB/GYN Department petitioned the P&T Committee to study and reconsider the matter. Although the P&T Committee later approved such usage of the gel based on the OB/GYN Department’s recommendation, Dr. Davenport had used the gel composition before such approval.

The second incident concerned Dr. Davenport’s traveling outside of the call area while on call. He was 43 minutes, rather than the usual 30 minutes, away from the hospital.

The third incident concerned Dr. Davenport’s telling a nurse to “back-time” orders. In that incident, after twenty-three hours had passed since one of Dr. Davenport’s Medicaid patients had been admitted, a nurse told him that they still had two things left to do with the patient. Dr. Davenport told the nurse to “backdate” the record and “get the two things that you have to do quickly.” According to another physician,

if a patient is admitted with an antepartum problem, if she’s here under 23 hours, it’s better — the Medicaid is more likely to reimburse the hospital. . . . [Dr. Davenport] basically just offered them a way out — I guess, himself a way out, too. But no great sin there. Nor trying to cheat anybody. Not taking money out of anybody’s mouth. Not diverting anything to himself. Nothing to the disadvantage of the patient. Just a matter of internal bookkeeping.

Finally, Dr. Davenport ordered that the patient be admitted to another unit to complete the patient care.

After meeting with the Peer Review Committee regarding these three incidents, Dr. Davenport agreed to future compliance with rules and policies. Dr. Rigel of the Anesthesia Department decided to “informally monitor” his progress and instructed the nursing staff to watch him carefully and to report any activity that they found to be inappropriate.

Thereafter, complaints concerning Dr. Davenport’s call coverage and interaction with nursing personnel resulted in another Peer Review Committee meeting on September 15, 1993. The committee found that Dr. Davenport continued to exhibit inappropriate behavior and placed him on probation for one year, recommending that his privileges be suspended for any future validated recurrences of problems.

In October 1994, the Peer Review Committee reviewed additional incidents that had occurred since the previous meeting. Some of the incidents related to call coverage. For example, at one point, Dr. Davenport wanted to be called when his patients went into the labor room, even when he was not on call. That “unusual” call schedule created problems. According to one nurse, generally, when a physician goes out of town, he is not available to assess his patients and arranges for another physician to manage his patients. Because Dr. Davenport wanted to be called for certain matters and for someone else to be called for other matters, the nursing staff was left to determine whom to call when. After meeting, the Peer Review Committee issued its report to the Executive Committee, which extended his probation period for three months and further instructed Dr. Davenport, “When you are not on call, the hospital operator will direct all calls to your practice to the covering physician. Neither the operator nor the Labor and Delivery staff should be instructed to triage your calls for referral to you or to the covering physician.” (Emphasis in original.) But in December, one of the hospital’s physicians, with whom Dr. Davenport had arranged call coverage, reported that Dr. Davenport had violated the terms of his probation by giving his beeper number to his patients while the other physician was on call for Dr. Davenport. Finally, on January 13, 1995, the Chief of Anesthesia filed a complaint that Dr. Davenport allowed one of his patients to chew on some ice chips after an NPO order had been issued. The incident had taken place in December 1994, when Dr. Davenport was still on probation. Dr. Davenport had called for one of his labor patients to be administered an epidural by the anesthesiologist, Dr. Rigel, who was on call that night. Later, the patient complained that her mouth was dry, and Dr. Davenport told the attending nurse that the patient could have some liquids. When the nurse refused to give the patient anything, stating that “people who have epidurals are not allowed to have anything to eat or drink,” Dr. Davenport left the room to get the patient orange juice. He returned and gave his patient, who then had been in labor for twelve hours, one teaspoon of ice chips from the top of a frozen container of orange juice. The nurse reported the incident to Dr. Rigel.

Dr. Rigel reported the incident to the Chief of Anesthesia, the Peer Review Committee, and the Anesthesia Department, pointing to an unwritten hospital policy that patients are NPO after the administration of epidural analgesia. According to Dr. Rigel, because the obstetric patient is at high risk for aspiration and regurgitation, intragastric contents should be kept as low as possible. Dr. Rigel was told by Dr. Davenport that he gave his patient “just a sip,” and in Dr. Rigel’s opinion, “that’s inappropriate” and “endangered her.”

Dr. Rigel admitted that the hospital’s policy had not been reviewed since it was put in place in 1984. He also stated that other hospitals do allow labor patients with epidurals to have ice chips or liquids. One board-certified physician, who was chief of the OB/GYN services at an Atlanta hospital, testified that it was “common practice” to allow ice chips, tap water, clear liquids, and hard candy to make the labor more comfortable and that grape juice and orange juice are also allowed, depending on the doctor.

Because of that incident and as requested by the Anesthesia Department, the hospital’s Chief of Staff terminated routine elective epidural analgesia for Dr. Davenport’s patients pending a review of the matter. According to Dr. Rigel,

What we wanted to do was be protected from the actions of Dr. Davenport while we were responsible for his patients. . . . We’re worried about what might he do next that will involve us. . . . We were worried that not having followed that protocol, what next would he do that might endanger the patients.

When the summary suspension of Dr. Davenport’s privileges was submitted to the Executive Committee, it upheld the suspension, questioned whether the incident violated his existing probation, directed the Peer Review Committee to “analyze the . . . situation, taking into account all previous incidents,” and voted to extend Dr. Davenport’s probation. The Peer Review Committee determined that Dr. Davenport had violated his probation, reporting its conclusion back to the Executive Committee, which voted to suspend Dr. Davenport’s medical staff privileges at the hospital.

In June 1995 and November 1995, evidentiary hearings were held before the Judicial Review Committee, which found

significant problems with Dr. Davenport’s ability to function within the structure and rules of the hospital. He appears to lack the ability to learn from previous experiences and he has poor skills for interpersonal conflict resolution. He has also, at times, exhibited poor judgement regarding call, especially in that he has requested that hospital personnel make unreasonable clinical decisions.

Recommending probation, the Judicial Review Committee forwarded its findings to the Executive Committee, which rejected the recommendation and voted to reaffirm its prior decision suspending Dr. Davenport. Dr. Davenport then requested an appellate review by the full board of directors, which after a hearing, unanimously voted on March 11,1996, to revoke his privileges. The board stated its concern

with Dr. Davenport’s continued inability to function within the structure of the hospital, failure to function within the structure of the hospital, failure to learn from previous experiences, continued problems with resolving interpersonal conflicts, and unprofessional conduct. This Board finds that maintaining and furthering the quality of care at Northeast Georgia Medical Center necessitates that Medical Staff members possess an ability to work with and relate to others in a cooperative and professional manner, and that because of Dr. Davenport’s inability to do so, revocation of his privileges is in the best interest of the overall quality of care at Northeast Georgia Medical Center.

The revocation of Dr. Davenport’s medical staff privileges is the subject of this lawsuit and appeal.

1. Dr. Davenport contends that the trial court erred when it determined that the hospital was immune from damages under HCQIA because there was a genuine issue of material fact as to whether the hospital met the professional review requirements, other than notice. For purposes of the protection set forth in 42 USC § 11111 (a), a professional review action must be taken:

(1) in the reasonable belief that the action was in furtherance of quality health care; (2) after a reasonable effort to obtain the facts of the matter; (3) after adequate notice and hearing procedures are afforded to the physician involved or after such other procedures as are fair to the physician under the circumstances; and (4) in the reasonable belief that the action was warranted by the facts known after such reasonable effort to obtain facts and after meeting the requirement of paragraph (3).

42 USC § 11112 (a) (l)-(4).

A professional review action shall be presumed to have met the preceding standards, 42 USC § 11112, but if a plaintiff challenging a peer review action proves, by a preponderance of the evidence, any one of the four requirements was not satisfied, the peer review body is no longer afforded immunity from damages under the HCQIA. Islami v. Covenant Med. Center, 822 FSupp. 1361, 1377-1378 (N.D. Iowa 1992).

(a) First, Dr. Davenport argues that the hospital’s professional review action was not taken in the reasonable belief that it was in furtherance of quality health care. He urges that he acted within the standard of care, that neither the evidence nor the Judicial Review Committee findings show that he acted in a way that could have endangered a patient, and that none of the complaints involved a patient being harmed. He points out that Dr. Smith, Chief of Staff at the time of the Judicial Review Committee review in June 1995, stated that “no one alleges that Dr. Davenport . . . has performed a malpractice or a failure to provide necessary services to peers and the medical staff,” and that Dr. Stewart, Chairman of the Judicial Review Committee, concluded that the evidence involved “issues” which “were not primarily medical in terms of specific patient care issues.”

“[T]he Act does not require that the professional review result in an actual improvement of the quality of health care.” Imperial v. Suburban Hosp. Assn., 37 F3d 1026, 1030 (4th Cir. 1994). Our focus is on the reasonableness of the peer reviewers’ belief that they were furthering quality health care. Id. Here, over 20 complaints were submitted regarding Dr. Davenport’s call coverage, compliance with the hospital’s rules and policies, and interaction with nursing personnel. Our review of the record makes clear that the hospital’s decision to terminate Dr. Davenport’s medical staff privileges was taken “in a reasonable belief that the action was in furtherance of quality health care.” 42 USC § 11112 (a) (1).

(b) Second, Dr. Davenport claims that the action was not taken after a reasonable effort to obtain the facts of the matter. He asserts that many of the complaints were improperly ascertained, insufficiently verified by the proceedings, or were otherwise refuted. But the determinative inquiry on this issue is whether or not the totality of the process leading up to the board’s decision evidenced a reasonable effort to obtain the facts of the matter. Mathews v. Lancaster Gen. Hosp., 87 F3d 624, 637 (3rd Cir. 1996). In this case, the record shows that the hospital’s Peer Review Committee investigated the complaints. Dr. Davenport also met with the Peer Review Committee on numerous occasions regarding the complaints. Further, when the Executive Committee decided to revoke Dr. Davenport’s medical staff privileges, evidentiary hearings before the Judicial Review Committee were scheduled. Dr. Davenport was present and represented by counsel. He and the hospital presented evidence. Further, Dr. Davenport agreed to the submission of his peer review file, along with the medical records pertaining to the cases referenced in the peer review file, for the Judicial Review Committee’s consideration. Dr. Davenport requested and received appellate review of the revocation, as a result of which the hospital’s board also voted to revoke his privileges. We find that Dr. Davenport has failed to demonstrate that the totality of the process leading up to the board’s decision was not a reasonable effort to obtain the facts of the matter.

(c) Third, Dr. Davenport claims that the revocation of his privileges was not taken in the reasonable belief that it was warranted by the facts known. The HCQIA grants broad discretion to hospitals with regard to staff privileges decisions, and our role “on review of such actions is not to substitute our judgment for that of the hospital’s governing board or to reweigh the evidence regarding the renewal or termination of medical staff privileges.” (Citation and punctuation omitted.) Bryan, supra, 33 F3d at 1337. Here, Dr. Davenport has failed to show sufficient evidence to rebut the presumption that the hospital’s action was taken in the reasonable belief that it was warranted by the facts known, after reasonable efforts to obtain facts.

Dr. Davenport has failed to demonstrate that a reasonable factfinder could find by a preponderance of the evidence that the hospital had not met the above requirements.

2. Dr. Davenport contends that he has raised material issues of fact as to whether the hospital was motivated by something other than a reasonable belief that its actions would further the care of its patients. Like other jurisdictions, we adopt an objective standard of reasonableness in this context. See, e.g., Imperial v. Suburban Hosp. Assn., supra, 37 F3d at 1030; Bryan, supra, 33 F3d at 1335; Smith v. Ricks, 31 F3d 1478, 1485 (9th Cir. 1994). Therefore, the good or bad faith of the reviewers is irrelevant. “The real issue is the sufficiency of the basis for the hospital’s actions.” (Citation and punctuation omitted.) Bryan, supra, 33 F3d at 1335. The “reasonable belief” standard articulated in 42 USC § 11112 (a) (1) will be satisfied “if the reviewers, with the information available to them at the time of the professional review action, would reasonably have concluded that their actions would restrict incompetent behavior or would protect patients.” (Citation and punctuation omitted.) Mathews, supra, 87 F3d at 635. In Division 1, supra, we concluded this issue adversely to Dr. Davenport.

Judgment affirmed.

Johnson, C. J., and Ruffin, J., concur. Smith, R J., recused.

Decided November 14, 2000

Reconsideration dismissed December 8, 2000.

John M. Brown, for appellant.

Whelchel & Dunlap, Thomas M. Cole, for appellee.

       The P&T Committee is involved in determining which medications, requested by physicians, are brought into the formulary and for what indications the medications may be used.

       NPO means “non per os,” nothing by mouth.


author: Phipps, Judge.

text:
    A00A1011.
    CARTWRIGHT v. WILBANKS.
    (541 SE2d 393)
   Phipps, Judge.

Michael Cartwright appeals an order of summary judgment on his libel claim against J. Alvin Wilbanks. The trial court found that there was no evidence to support the essential element of publication. We agree and affirm.

Cartwright is a teacher in the Gwinnett County school system, and Wilbanks is the superintendent. In March 1997, in his classroom at Shiloh High School, Cartwright received anonymous notes containing death threats. Cartwright referred the matter to school administrators. After an investigation, two students were found to have been involved. The students wrote letters of apology to Cartwright. And according to Cartwright, the only other punishment given the students was three days suspension with the opportunity to make up missed assignments.

Cartwright expected that the matter would be reported to the juvenile court authorities. On January 5, 1998, Cartwright’s attorney wrote a letter to Daniel Seckinger, chairman of the Gwinnett County School Board, expressing displeasure with the way the school system had handled the threats. Cartwright thought that a hostile work environment might underlie the failure to take adequate action and that certain faculty members might have been behind the students’ actions. He claimed that, contrary to representations made to him earlier, he had learned that no information had been transmitted to the juvenile court authorities. He requested copies of any recorded information transmitted to the juvenile authorities, answers to certain questions, and a hearing. The letter implied that Cartwright might pursue further action if the Board’s response to his letter was not satisfactory. Cartwright also made statements to the news media regarding the matter.

The Gwinnett County Board of Education comprises five elected members and is generally responsible for the overall control and management of the Gwinnett County School District. Wilbanks reports to the Board and is responsible for overseeing the school system on a daily basis.

In response to the letter, Seckinger sent a letter to Cartwright’s attorney and directed Wilbanks to review the entire matter and submit written findings to the Board.

On January 27, 1998, Wilbanks circulated a memorandum containing his findings to the Board members and Cartwright. Wilbanks stated the following. Cartwright participated in discussions to determine what action should be taken against the students who had confessed to the threats. Cartwright stated that he did not want to testify at a disciplinary hearing and that he could not testify that he had felt threatened. Cartwright consented to alternative disciplinary actions suggested by school administrators. The administrators believed that Cartwright approved of the actions taken and that the matter was resolved. Cartwright was completely supported by the school administration, and his claims regarding lack of support were unsupported and contradicted by a statement he made later. The school system took appropriate actions and followed the proper process. Cartwright misrepresented matters to the news media. He omitted information and made statements that were not true. Cartwright’s allegations of faculty involvement in the threats were sweeping and unfounded.

Wilbanks characterized Cartwright’s actions as being in “[flagrant] disregard [of] his obligation to professional and ethical conduct” and expressed an expectation that Cartwright’s future actions be “truthful, ethical, and professional without fail.” The memorandum was placed in Cartwright’s personnel file.

Cartwright sued Wilbanks for libel based upon the memorandum. Wilbanks later moved for summary judgment on the grounds that he was officially immune, that Cartwright had failed to present sufficient evidence to establish that the memorandum was libelous, that dissemination of the memorandum to the Board members was privileged, and that dissemination of the memorandum to the Board members with a copy to Cartwright’s personnel file did not constitute a publication.

Relying partly on Kurtz v. Williams, the trial court found that the memorandum had not been published. Publication is essential to recovery for libel. In Kurtz, this court recognized that an exception has evolved in the broad definition of publication:

when [a] communication is intracorporate, or between members of unincorporated groups or associations, and is heard by one who, because of his/her duty or authority has reason to receive the information, there is no publication of the allegedly slanderous material. . . . [Cits.]

The court further held,

If a personnel report is written by a supervisor who has the duty to write the report and it is sent to the keeper of personnel records, there is no publication of that report, and any allegedly defamatory material contained therein, no matter how malicious, is not actionable.

1. Cartwright claims three errors. First, he argues that he has been denied due process (i.e., a hearing and an opportunity to clear his name) by application of the rule that no degree of malice makes an intracorporate communication actionable when it is conveyed only to certain persons or placed in one’s personnel file. Because Cartwright did not raise a due process claim in his complaint, this issue has been waived.

2. Next, Cartwright seems to argue (a) that the Kurtz precedent should be limited to statements regarding job performance and (b) that application of the Kurtz precedent should be limited to instances where qualified immunity applies.

(a) Kurtz's application to Wilbanks’s memorandum is supported a long line of cases which hold that no publication occurs where one member of a group shares information with another whose duties authority give him or her reason to receive such information. There is no question here that Wilbanks sent his memorandum only the members of the Board of Education and that the members of Board had reason to receive the information.

(b) In the case of Luckey v. Gioia, a dissenting opinion asserted that there are certain circumstances where Georgia’s public policy would be best served by requiring speakers to meet the strictures of qualified immunity rather than by protecting their communications under the Kurtz line of cases. A majority of this court rejected that position. Cartwright has presented this court with no countervailing public policy argument that compels us to break with the long line of established authority.

3. In his final argument, Cartwright asserts that Wilbanks’s memorandum became a public record under Georgia’s Open Records Act when it was placed in his personnel file. Therefore, Cartwright implies, the memorandum actually was published for purposes of the tort of libel. He relies upon the case of Buxton v. City of Plant City, Fla. There, the United States Court of Appeals for the Eleventh Circuit held that a publication had occurred for purposes of the constitutional tort of deprivation of a liberty interest without due process where, pursuant to the Florida Open Records Act, documents regarding an alleged incident of police brutality had been placed in an officer’s personnel file and were available to the public.

Decided October 13, 2000

Reconsideration denied December 8, 2000

Palmer H. Ansley, Jr., for appellant.

Thompson & Sweeny, Virgil L. Thompson, Jr., E. Victoria Sweeny, for appellee.

We recognize that the federal circuit courts are sharply and evenly divided on this issue. But, under Georgia law, precedent is clear that where a supervisor has a duty to report a matter, his report is not considered published for purposes of the tort of libel merely because it has been placed in the subject employee’s personnel file.

Summary judgment is proper in the absence of any evidence of publication. Thus, we affirm the trial court’s grant of summary judgment to Wilbanks.

Judgment affirmed.

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

       188 Ga. App. 14 (3) (371 SE2d 878) (1988).

       OCGA § 51-5-1.

       188 Ga. App. at 15.

       Id. at 16.

       Compare Buxton v. City of Plant City, Fla., 871 F2d 1037 (11th Cir. 1989).

       See Luckey v. Gioia, 230 Ga. App. 431, 434-435 (496 SE2d 539) (1998) (McMurray, P. J., dissenting).

       188 Ga. App. at 15.

       230 Ga. App. at 434-435.

       See id. at 433.

       See id.

       OCGA § 50-18-70 et seq.

       871 F2d 1037.

       To establish deprivation of a liberty interest without due process, the plaintiff must show: (1) a false statement (2) of a stigmatizing nature (3) attending a governmental employee’s discharge (4) made public (5) by the governmental employer (6) without a meaningful opportunity for the employee to clear his/her name. Id. at 1042-1043.

       See id. at 1045.

       See generally The Publication Debate in Deprivation of Occupational Liberty Claims, 47 Kan. L. Rev. 171, 172 (1998).

       See Kurtz, 188 Ga. App. at 16; Davis v. Hosp. Auth. of Fulton County, 154 Ga. App. 654, 656 (3) (269 SE2d 867) (1980).

        Luckey, 230 Ga. App. at 433.