text:
    75629.
    75630.
    WORLEY v. THE STATE. BUCHANAN v. THE STATE.
    (364 SE2d 897)
   Benham, Judge.

Appellants were convicted of selling alcoholic beverages to minors (OCGA § 3-3-23). On appeal, they challenge both the trial court’s denial of their motion for a directed verdict of acquittal and the sufficiency of the evidence. We affirm.

The following evidence was adduced at trial: The Sheriff of Heard County, in response to several telephone calls he received from county citizens about several local stores selling beer to underage persons, enlisted the aid of a secretary and a dispatcher from the sheriff’s office to attempt to buy beer from various establishments. The two women, both of whom were 18 years old, were instructed to go into the stores and attempt to purchase beer. If they were successful, they were to bring the beer back to the sheriff’s office and put it in a sack marked with the date and time it was purchased. The sheriff also told them that if a vendor did not want to sell to them, they were to leave the store. On January 9, 1987, one of the women purchased a six-pack of beer from appellant Worley at one grocery store and the other woman purchased a six-pack of beer from appellant Buchanan at another store. Before the sales were consummated, both appellants asked to see the women’s identification. Although both women produced their driver’s licenses showing that they were born in 1968 and therefore not of sufficient age to buy beer, the sales were made.

Appellants did not deny making the sales but testified that they sold the beer to the women thinking that they were selling it to persons who were 21 years old; that the driver’s licenses they saw had 1965 birthdates; and that, unlike typical underage persons, the women did not appear to be nervous when asked for their identification. Appellants admitted that the women did not try to talk them into selling the beer.

Decided January 12, 1988.

Michael G. Kam, for appellants.

William G. Hamrick, Jr., District Attorney, Randall K. Coggin, Assistant District Attorney, for appellee.

Appellants’ defense at trial and on appeal is that they made the sales as a result of entrapment (OCGA § 16-3-25) and that a directed verdict of acquittal was demanded based on the evidence presented. They argue that there was unrebutted testimony that the women presented their identification in such a manner that it was subtly deceitful and thus constituted entrapment.

“[A] distinction must be made between evidence which raises a defense of entrapment and which would require that the jury be charged as to the law of entrapment and the burden of proof thereon, and evidence which, under the standards set out in OCGA § 17-9-1 (a) would demand a finding of entrapment and, therefore, a directed verdict of acquittal. Thus, a defendant’s testimony as to entrapment, even if unrebutted by any other witness to the alleged misconduct, will not entitle him to a directed verdict of acquittal unless that unrebutted testimony, together with all reasonable deductions and inferences therefrom, demands a finding that entrapment occurred. [Cits.]” Houston v. State, 175 Ga. App. 881 (1) (334 SE2d 907) (1985). The evidence in this case did not demand a finding of entrapment, and there was sufficient evidence for a rational trier of fact to find appellants guilty beyond a reasonable doubt of the crime charged. The trial court did not err in denying appellants’ motion for directed verdict of acquittal. Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979); Houston v. State, supra.

Judgment affirmed.

Banke, P. J., and Carley, J., concur.


source: Caselaw Access Project

author: Benham, Judge.

license: Public Domain

text:
    75744.
    THE STATE v. LOUIS.
    (364 SE2d 896)
   Benham, Judge.

Appellee was accused of carrying a concealed weapon and carrying a pistol without a license. The State brings this appeal from the grant of appellee’s motion to suppress the gun discovered in a search of appellee’s person.

At the hearing on the motion, the searching/arresting officer testified that he arrived at a Hapeville motel at 2:00 a.m. in response to the report of a burning car in the motel parking lot. While talking to the desk clerk on duty in this “notorious place” that frequently placed calls for police assistance, the officer noticed appellee, who, according to the officer’s testimony, did a double take when he saw the officer, turned, and walked back in the direction from which he had come. When requested by the officer to stop and present identification, appellee did so. The officer then noticed bulges in appellee’s jogging suit and conducted a patdown search which revealed a wad of dollar bills and a .22 caliber pistol. Appellant was arrested upon admitting he did not have a license to carry the weapon.

Decided January 12, 1988.

After the testimony of the officer, the trial court orally granted appellee’s motion to suppress. Thereafter, appellee’s counsel, “out of an abundance of caution,” elicited for the record the testimony of appellee and the motel desk clerk. They testified that appellee walked down the motel corridor toward the front door without hesitation upon seeing the officer and that he was stopped by the officer, who questioned him about his presence, commented about his jewelry and his suspected profession, and conducted the patdown search. The desk clerk described the officer as “harassing” appellee. The trial court subsequently entered a written order granting the motion to suppress.

Although the officer’s testimony supports a conclusion that the officer was justified in stopping appellee due to appellee’s behavior upon seeing the officer (see Watson v. State, 181 Ga. App. 512 (3) (352 SE2d 828) (1987); Williams v. State, 163 Ga. App. 866 (2) (295 SE2d 361) (1982); State v. Mallory, 152 Ga. App. 822 (264 SE2d 293) (1979)), and conducting a frisk to determine the nature of the bulges (see Edwards v. State, 165 Ga. App. 527 (301 SE2d 693) (1983)), the testimony of the desk clerk and appellee concerning appellee’s straightforward behavior upon seeing the officer refutes the officer’s testimony of appellee’s action that gave rise to the articulable suspicion to stop and frisk appellee. “Factual and credibility determinations . . . made by a trial judge after a suppression hearing must be accepted by appellate courts unless such determinations are clearly erroneous. [Cits.]” Johnson v. State, 233 Ga. 58 (209 SE2d 629) (1974). Since there is evidence in the record to support the trial court’s action, we may not disturb it. The fact that the trial court stated its intention to grant the motion prior to hearing the testimony of the desk clerk and appellee does not alter the fact that the record does contain evidence that supports the trial court’s decision.

Judgment affirmed.

Banke, P. J., and Carley, J., concur.

James L. Webb, Solicitor, Donald C. English, Assistant Solicitor, for appellant.

Herbert Shafer, for appellee.


author: Banke, Presiding Judge.

text:
    75216.
    SMITH v. THE STATE.
    (364 SE2d 907)
   Banke, Presiding Judge.

The appellant was convicted of driving under the influence of alcohol. On appeal, he complains that the trial court erroneously sentenced him for two separate offenses based on the same conduct and erroneously denied his motion to suppress the results of an intoximeter test administered to him following his arrest. Held:

1. The appellant’s contention that he received two sentences is not borne out by the record, which indicates that he was tried, convicted, and sentenced for a single count of driving under the influence of alcohol. See generally OCGA § 40-6-391.

2. The appellant’s contention that the results of his intoximeter test should have been suppressed is based on his contention that an unspecified regulation of the Division of Forensic Services of the Georgia Bureau of Investigation was not followed in that he was not held under observation or for at least 20 minutes prior to the administration of the test.

Initially, we note that a motion to suppress is not a proper procedural device for raising a challenge to the admissibility of a blood-alcohol test based merely on non-compliance with agency regulations governing the administration of such tests. See State v. Johnston, 249 Ga. 413, 414 (3) (291 SE2d 543) (1982). A trial court would nevertheless be authorized to reach the merits of a motion to suppress predicated on such grounds by treating it as a motion in limine. Id. at 415. However, an examination of the appellant’s motion to suppress reveals that it was not predicated on any alleged regulatory violation but was based solely on the arresting officer’s alleged failure to advise him of his right to an independent test of his blood, breath, or urine. See generally OCGA § 40-6-392 (a) (4). As the appellant no longer asserts such a statutory violation on appeal, it follows that this enumeration of error presents nothing for review. Moreover, a review of the evidence reveals that the test in question was in fact administered to the appellant more than 20 minutes following his arrest. While the arresting officer testified that it was not feasible to keep the appellant under observation during this entire period due to the need to clear the accident scene, there is no testimony whatever which would suggest that the appellant consumed any additional alcohol during this period. Certainly, he himself offered no testimony to that effect. Accordingly, this contention would present no ground for reversal even had it been properly raised in the lower court.

Decided January 13, 1988.

B. H. Baldwin, for appellant.

Malcolm F. Bryant, Solicitor, for appellee.

Judgment affirmed.

Carley and Benham, JJ., concur.


text:
    75270.
    CHRISTOPHER et al. v. STATE OF GEORGIA.
    (364 SE2d 905)
   Banke, Presiding Judge.

The appellants are defendants in two separate condemnation actions filed by the state, seeking forfeiture of certain money, firearms, jewelry, and other items previously seized by the state pursuant to the forfeiture provisions of the Controlled Substances Act. See OCGA § 16-13-49. We granted their application for interlocutory appeal of an order entered by the trial court suspending discovery in the two actions, pending the disposition of related criminal indictments against two of the appellants.

The salient facts are not in dispute. After the condemnation petitions were filed by the district attorney, the appellants sought to depose a GBI agent who was serving as custodian of the items in question. This same GBI agent was also involved in the criminal investigation which had resulted in the indictment of two of the appellants, Adams and Christopher, on charges of trafficking in cocaine and possession of marijuana with intent to distribute. In response to the deposition notices, the district attorney sought a protective order based on his stated belief that the appellants intended to examine the agent with regard to matters which were privileged under OCGA § 24-9-27 (d). That Code section provides as follows: “No official persons shall be called on to disclose any state matters of which the policy of the state and the interest of the community require concealment.” The triad court thereafter ordered a complete stay of the two forfeiture actions pending disposition of the criminal proceedings. Held:

The issue of whether a trial court can indefinitely postpone discovery in a condemnation proceeding conducted pursuant to OCGA § 16-13-49 appears to be one of first impression. This Code section creates a special statutory proceeding, the purpose of which is to achieve a prompt disposition of the seized property; and as such it must be strictly construed and complied with. Accord Lang v. State, 168 Ga. App. 693 (310 SE2d 276) (1983); State v. Britt Caribe, Ltd., 154 Ga. App. 476 (268 SE2d 702) (1980). However, the discovery provisions of the Civil Practice Act must be deemed applicable to such proceedings to the extent that they do not conflict with the procedure set forth in the statute. See OCGA § 9-11-81; Trust Co. Bank v. Shaw, 182 Ga. App. 165 (355 SE2d 99) (1987). Cf. Hill v. State, 178 Ga. App. 563, 564 (343 SE2d 776) (1986).

The governmental interest in suspending discovery in a civil forfeiture action pending the resolution of related criminal proceedings has long been recognized by the federal courts. See, e.g., Campbell v. Eastland, 307 F2d 478 (5th Cir. 1962). In 1984, Congress promulgated 21 USC § 881 (i), authorizing the federal courts, upon motion and for good cause shown, to stay such forfeiture proceedings where a related indictment is pending. Although the Georgia condemnation statute is in other respects similar to the federal statute, it does not contain any provision for such a stay. However, OCGA § 9-11-26 (c) does establish a general statutory basis for the entry of protective orders limiting or curtailing discovery under appropriate circumstances, provided such limitations do not “have the effect of frustrating and preventing legitimate discovery.” Mead Corp. v. Masterack, 243 Ga. 213, 215 (253 SE2d 164) (1979).

Although the district attorney urged in the court below that the requested discovery would prejudice the criminal prosecutions, he made no attempt to specify how such prejudice might result, nor is it even apparent from the record what type of information was sought by the appellants. It has previously been held that mere “conclusional statements, bereft of facts” will not support the imposition of limitations on civil discovery. Young v. Jones, 149 Ga. App. 819, 824 (256 SE2d 58) (1979). Also, stay orders will be reversed when they are found to be immoderate or of indefinite duration. Landis v. North American Co., 299 U. S. 248 (57 SC 163, 81 LE 153) (1936). Based on these authorities, we conclude that the orders appealed from, staying all civil discovery in the condemnation proceedings pending disposition of the related criminal indictments, were not authorized.

We do not intend to imply by this holding that the appellants in the present actions are entitled to any and all information which they may desire or that the state has no valid basis for seeking a protective order. However, the issuance of such an order must be based on something other than a conclusory allegation by the state’s attorney to the effect that any and all requested discovery would prejudice the criminal investigation. Moreover, any limitations imposed must, to the extent that they do not pertain to items of information which are absolutely privileged, be of reasonable and definite duration.

Judgment reversed.

Carley and Benham, JJ., concur.

Decided January 13, 1988.

Richard E. Thomas, for appellants.

John C. Pridgen, District Attorney, for appellee.


author: Birdsong, Chief Judge.

text:
    75424.
    TINNEL v. TRAILWAYS LINES, INC. et al.
    (364 SE2d 904)
   Birdsong, Chief Judge.

Nannie Tinnel appeals the grant of summary judgment to Trailways Lines, Inc. in this personal injury case. Mrs. Tinnel fell while exiting a Trailways bus at a rest stop. She contended the defendant owed a duty of extraordinary care as a common carrier under OCGA § 46-9-132, and breached it by its driver’s failure to assist her down the bus steps. Her argument is that because the driver had assisted her at other stops, and because she was obviously elderly, being 77 years old, and of stature too short to step down the high step unaided, and because the defendant’s driver’s manual required him to stay at the bus and assist passengers to disembark, the driver was negligent in failing to assist her, with the direct consequence that she fell. Held:

Pretermitting any question of negligence of the driver in failing to assist her is appellant’s admission in deposition that she chose to disembark the bus without the driver’s assistance because she thought she was physically capable of doing it and could do it successfully, even though another woman warned her not to try it; and that the driver was at that moment at the luggage bin unloading luggage but she did not feel she needed help, did not call him to assist her, and did not wait for him to come to her assistance. By affidavit she further explained (see Prophecy Corp. v. Charles Rossignol, Inc., 256 Ga. 27, 30 (343 SE2d 680)) that when she saw the driver was not present to assist her, she attempted to turn around and remain on the bus, but “there were people standing in the aisle behind me which prevented me from returning to my seat. I had to go forward and leave the bus.” However, this explanation nevertheless leaves unexplained, and therefore does not overcome, her admission that she disembarked because she thought she was physically able to do it and did not call the driver to assist her. She testified she had used his assistance three or four times at other stops where there had been a curb to lessen the distance from the bottom step to the ground; but there was not a curb at this stop. The conclusion is inescapable that the cause of her injury was not the driver’s absence at the steps but her own decision to attempt disembarkment anyway. The fact that because other passengers were waiting behind her she could not stay on the bus, is not an element of defendant’s negligence but a circumstance that should have made her call to him for assistance. No explanation she has given reveals any reason why her failure to wait for him or call to him, should be laid at his feet and the defendants’. The trial court did not err in granting summary judgment to defendants, as there is no genuine issue of material fact that the cause of her injury was not the driver’s contended negligence in failing to remain at the bus steps, but her own in stepping down without calling him. See Mann v. Hart County Elec. &c. Corp., 180 Ga. App. 340 (349 SE2d 215); Sims v. Willoughby, 179 Ga. App. 2 (345 SE2d 626).

Decided January 13, 1988.

Charles W. Lane, Linda B. Carlisle, for appellant.

Sewell K. Loggins, Deborah A. Finnerty, for appellees.

Judgment affirmed.

Deen, P. J., and Pope, J., concur.


text:
    75624.
    BLANCO v. THE STATE.
    (364 SE2d 903)
   Banke, Presiding Judge.

The appellant was convicted of aggravated assault upon a police officer. He appeals from the denial of his motion for new trial. Held:

1. The appellant assigns as error the refusal of the trial court to permit the following inquiry on voir dire: “Is there any reason that you would give more credibility to the. testimony of a law enforcement officer by virtue of the fact that he’s a law enforcement officer?” The appellant contends that this question was proper under OCGA § 15-12-133, in that it sought to elicit any bias arising from the fact that the victim and a second witness for the state were police officers.

The Georgia appellate courts have previously ruled that it is not error to refuse to allow defense counsel to ask whether a prospective juror would tend to believe or prefer the testimony of a police officer over other testimony. See Henderson v. State, 251 Ga. 398 (1) (306 SE2d 645) (1983); Morrison v. State, 155 Ga. App. 234 (1) (270 SE2d 397) (1980). The conduct of voir dire is within the sound discretion of the trial court, and this discretion will not be disturbed on appeal, unless manifestly abused. Messer v. State, 247 Ga. 316, 323 (5) (276 SE2d 15) (1981). In the present case, the prospective jurors were aware that the victim was a police officer when they were asked on voir dire if they knew of any reason why they could not be fair and impartial in the case, and the trial court gave a full and fair charge on the issue of credibility of witnesses at the conclusion of the trial. For these reasons, we find no manifest abuse of discretion on the part of the trial court in refusing to permit the requested voir dire questioning.

Decided January 13, 1988.

John T. Chason, Drew R. Dubrin, for appellant.

Lewis R. Slaton, District Attorney, Richard E. Hicks, Joseph J. Drolet, David Wright, Assistant District Attorneys, for appellee.

2. The appellant contends that the trial court erred in failing to charge the jury on the misdemeanor offense of reckless endangerment, OCGA § 16-5-60, as a lesser included offense. Citing Bowers v. State, 177 Ga. App. 36 (338 SE2d 457) (1985), he asserts that the jury was authorized under the circumstances of this case to find that he was guilty merely of criminal negligence rather than intentional misconduct. We find this contention to be without merit. There was no evidence in the present case which, if believed, would have authorized a finding that the gun was fired unintentionally. The record reflects that the jury was charged not only on aggravated assault but also on simple assault and the offense of pointing a pistol at another. Under the evidence presented in this case, the trial court did not err in refusing to give the requested charge on reckless endangerment.

Judgment affirmed.

Carley and Benham, JJ., concur.


author: Beasley, Judge. McMurray, Presiding Judge,

text:
    74757.
    HAMILTON v. THE STATE.
    (365 SE2d 120)
   Beasley, Judge.

Defendant was indicted for the offenses of aggravated assault, rape and kidnapping with bodily injury, to wit: rape. The jury returned guilty verdicts for the offenses of kidnapping and aggravated assault. The trial court declared a mistrial as to the offense of rape. Defendant’s motion for directed verdict of acquittal was partially granted as to the offense of kidnapping with bodily injury reducing that offense to simple kidnapping. Thus, on the kidnapping offense defendant was sentenced under the general provisions of OCGA § 16-5-40 (b) and did not receive the sentence of life imprisonment mandated for the offense of kidnapping with bodily injury. Defendant appeals from the two convictions.

1. Defendant contends the trial court erred in refusing to allow him to cross-examine the prosecuting witness with regard to her juvenile record. The trial court ruled on the State’s motion in limine that such testimony would not be allowed. Defendant argues that the cross-examination of this witness as to her juvenile record was necessary to establish her motive, interest and bias to testify favorably for the State, in that such testimony also exonerated her from any wrongful conduct.

The incident at issue occurred in April 1986 when the alleged victim was 14 years old. Just a year earlier, when she was 13, she had been “found to be unruly in that she engages in behavior detrimental to her health, morals, and future welfare.” She was placed on probation in her parents’ home for two years subject to a number of conditions, including that she not associate with Scotty Guffey without one of her parent’s consent, not drink (there was evidence at trial that she drank on the night in question), obey the laws, and be of general good behavior. Several months later she was found guilty of shoplifting and again two years’ probation was ordered, with generally the same conditions except that the association with Guffey was not mentioned.

When her father and Scotty Guffey found her at defendant’s house the morning after she had gone there, she ran downstairs from defendant’s bedroom and out the door which had been answered by defendant’s mother, who had been home from work for a number of hours. After talking to her sister, she declared that the alleged crimes had occurred. She called her probation officer and asked for what amounted to protective custody because she said she was afraid of defendant and also did not want to be around her parents or people who knew her.

The defense was that the girl had consented to the encounter and willingly stayed overnight and participated, at least to the extent that defendant was not guilty of any of the crimes charged. The theory was that she had fabricated her side of the story and that her real motivation was in avoiding revocation of her probation for violation of conditions, as well, perhaps, in precluding further delinquency adjudications. She testified, as a matter of fact, that she begged her probation officer to “send her off” to the Youth Development Center but knew she was not going to “get sent off” because according to her version of the encounter, she did not violate her probation since she could not stop the acts which constituted the crimes.

Defendant was prevented from cross-examining the girl about the two juvenile adjudications and dispositions and warnings that probation would be revoked. The only evidence permitted on this score, through the girl and her probation officer, was the fact that she was on probation at the time of the incident. This fit in with her version.

The subtleties of motivation for what people do and say are at best difficult to unearth and decipher. The tool of a thorough and sifting cross-examination is thus provided to produce knowledge which will more fully equip the factfinder to ascertain this fact. Defendant relies primarily on the right of confrontation of witnesses under the Sixth and Fourteenth Amendments to the federal constitution. Thus we assume for the purpose of this case that the Georgia statute, OCGA § 24-9-64, and the state constitution, Ga. Const. 1983, Art. I, Sec. I, Par. XIV, were not violated.

Applying the construction accorded to that federal right by Davis v. Alaska, 415 U. S. 308 (94 SC 1105, 39 LE2d 347) (1974), defendant’s right was violated. It makes no difference that these were juvenile adjudications, for as said in Davis, supra at 319, in these circumstances where they would be evidence of the bias of self-interest or self-preservation, “the right of confrontation is paramount to the State’s policy of protecting a juvenile offender.” Nor is the answer that it is harmless error, for as repeated in Davis, supra at 318, denial of the right of effective cross-examination “ ‘ “would be constitutional error of the first magnitude and no amount of showing of want of prejudice would cure it.” ’ ” Brookhart v. Janis, 384 U. S. 1, 3 (86 SC 1245, 16 LE2d 314) (1966).

The extent of cross-examination is constitutionally protected, so that a court abuses its discretion if it restricts it too narrowly. Hines v. State, 249 Ga. 257, 259 (2) (290 SE2d 911) (1982). “[Exposing the motives of a state’s witness for testifying is always relevant in attacking the credibility of the witness.” Owens v. State, 251 Ga. 313, 316 (1) (305 SE2d 102) (1983).

2. As contended by appellant, the court also erred in foreclosing any hearing on the defendant’s offer of proof relating to the complaining witness’ past sexual behavior, as provided for in OCGA § 24-2-3 (c), by granting the state’s motion in limine at the beginning of the trial. Defendant offered to prove that the girl had prior sexual encounters with defendant and others and that defendant knew about the others and of her reputation at the time of the incident on trial. He explained that since consent was the issue of focus in the case, defendant’s knowledge would affect his belief as to the girl’s attitude on this occasion, and thus the evidence was crucial.

The trial court summarily ruled that only prior sexual conduct with defendant would be admissible. If defendant’s proffer had been borne out, the evidence would have been admissible under OCGA § 24-2-3 (b). Cf. Lamar v. State, 243 Ga. 401, 402 (2) (254 SE2d 353) (1979). See Hardy v. State, 159 Ga. App. 854, 857-858 (285 SE2d 547) (1981); In the Interest of J. F. F., 177 Ga. App. 816, 817 (1) (341 SE2d 465) (1986).

The procedural circumstances here differ from those in Tucker v. State, 173 Ga. App. 742, 744 (3) (327 SE2d 852) (1985) and Evans v. State, 180 Ga. App. 1 (1) (348 SE2d 561) (1986). At the time specified by OCGA § 24-2-3 (c) (1), the court had already ruled that the evidence sought to be introduced was inadmissible. This mooted the requirement of a request for an in camera hearing at that stage; the earlier disposition of the ultimate question made a request redundant.

When the State made a motion in limine at the commencement of trial, the court initially ruled without hearing from defendant, whereupon defendant asked to make an offer of proof “so the Court could make a finding whether it is admissible under the statute.” Although the court allowed defendant to state the gist of what the proof would be, the court affirmed its original ruling with a modification, without hearing the evidence.

Defendant clearly “notified the court of [his] intent” to “introduce evidence of the complainant’s past sexual behavior.” OCGA § 24-2-3 (c) (1) and (b). Although defendant did not in specific words request an in camera evidentiary hearing, it was short-circuited by the court’s ruling based simply on what defendant said the evidence would show. By seeking to at. least state, and then stating, what the evidence would show, he was in effect invoking the examination called for by OCGA § 24-2-3 (c). The court was sufficiently placed on notice of a need for a statutory hearing.

3. Next is the contention that the trial court erred in refusing to merge the offenses of kidnapping and aggravated assault and in sentencing defendant for both offenses. Defendant’s argument rests on decisions in cases involving the offense of kidnapping with bodily injury. Although defendant was indicted for that offense, he was convicted of simple kidnapping. Simple kidnapping and aggravated assault are not included in one another as a matter of law. See Jarrell v. State, 234 Ga. 410, 412 (1) (216 SE2d 258) (1975). See also Strozier v. State, 171 Ga. App. 703, 705 (4) (320 SE2d 764) (1984).

4. It is urged that the court erred in overruling the challenge to the array of the Walker County Grand Jury for the November Term, 1986. The argument is that the array was not properly screened on the basis of intelligence and upright character. However, as appellant concedes, the array was chosen from a list of individuals registered to vote in the county. Thus, in the absence of any showing to the contrary, we presume that the other qualifications of grand jurors as provided by statute (OCGA § 15-12-60) were met. Dawson v. State, 166 Ga. App. 515, 517 (2) (304 SE2d 570) (1983).

5. Defendant enumerates as error the trial court’s overruling of his challenge to the Walker County Grand Jury on the basis of grand jury foreperson discrimination, in that only Caucasian males have been elected to that post for a number of years. The issue has been decided adversely to him. See Spivey v. State, 253 Ga. 187, 199 (7) (b) (319 SE2d 420) (1984).

6. “Defendant’s final enumeration of error deals with the admission of evidence to which defendant objected at trial. However, the only ground of objection stated by defendant at trial was that the evidence in question was ‘irrelevant.’ Defendant’s objection is insufficient to show error requiring reversal. Jefferson v. State, 157 Ga. App. 324, 326 (2) (277 SE2d 317); Hicks v. State, 216 Ga. 574 (1) (118 SE2d 364).” Phillips v. State, 172 Ga. App. 864, 865 (3) (324 SE2d 807).

Judgment reversed.

Birdsong, C. J., Deen, P. J., Carley, Pope, and Benham, JJ., concur. McMurray, P. J., Banke, P. J., and Sognier, J., concur in part and dissent in part.

McMurray, Presiding Judge,

concurring in part and dissenting in part.

I concur fully in Divisions 3, 4, 5 and 6 of the majority opinion and all that is said therein. However, I must respectfully dissent as to Divisions 1 and 2 of the majority opinion as in my view the case sub judice should be affirmed in its entirety.

Defendant argues that the cross-examination of the victim as to her juvenile record was necessary to establish a motive, interest and bias of the victim to testify favorably for the State, in that such testimony also exonerated the victim from any wrongful conduct. According to defendant the victim fabricated her testimony due to concern that she would be “locked up” by the juvenile court.

The defendant may have been entitled to a reasonable cross-examination of the victim on this topic so that the trial court’s decision to cut off in limine all inquiry on the subject was error. See Hines v. State, 249 Ga. 257, 260 (290 SE2d 911). However, under the facts and circumstances of the case sub judice any such error by the trial court was harmless since during trial defendant was allowed to elicit cross-examination testimony from the victim which disclosed that she was on probation and refuted defendant’s hypothesis as to her motives. Contrary to defendant’s hypothesis (that the victim was motivated by a desire to avoid being “locked up” by the juvenile court), the victim testified on cross-examination that she had called her probation officer, after the events which gave rise to the charges against defendant, and requested that she be “locked up” to get her away from defendant. The victim’s testimony in this regard was corroborated by her probation officer. Thus, there was no impermissible restriction of defendant’s cross-examination and confrontation rights under the circumstances of the case sub judice. Williams v. State, 172 Ga. App. 87 (2) (322 SE2d 98).

Next, defendant contends that the trial court’s consideration of the State’s motion in limine predicated upon the rape shield statute was improperly handled in that the trial court failed to conduct an in camera hearing. See OCGA § 24-2-3 (c). “ ‘Before a trial court can be faulted for refusing an in-camera heating required by the Code, the court must be placed on notice as to the intent of the defense to seek to introduce such evidence, and the defense must specifically notify the court of the need for an in-camera hearing for its offer of proof.’ Tucker v. State, 173 Ga. App. 742, 744 (3) (327 SE2d 852). In the case sub judice, while defendant argued in opposition to the State’s motion at no time did he specifically notify the trial court of the need for an in-camera hearing for his offer of proof. Consequently, the record fails to show any prejudice to defendant from the grant of the State’s first motion in limine.” Evans v. State, 180 Ga. App. 1 (1) (348 SE2d 561). See also Tucker v. State, 173 Ga. App. 742, 744 (3) (327 SE2d 852).

Decided December 18, 1987

Rehearing dismissed January 14, 1988

William David Hentz, William R. Hill, Jr., for appellant.

David L. Lomenick, Jr., District Attorney, James D. Franklin, Assistant District Attorney, for appellee.

I am authorized to state that Presiding Judge Banke and Judge Sognier join in this dissent.


author: Beasley, Judge.

text:
    75096.
    In re HERRING.
    (365 SE2d 139)
   Beasley, Judge.

Rod Sutton was charged with child abandonment. OCGA § 19-10-1. Appellant Sharon Herring executed the affidavit that was the basis for Sutton’s arrest warrant. Sutton, contending he was not the child’s natural parent, requested a paternity blood test under OCGA § 19-10-1 (f). The prosecuting attorney and defense counsel entered into a consent agreement that the results of the human leukocyte antigen test be admissible as evidence “without the necessity of witnesses, who are involved in the collection, transportation or testing of the specimens from these institutions appearing in the event a trial is necessary.” The agreement concluded: “The reports shall be admissible without objection for whatever purpose a jury or the Court may wish to place upon the same.”

The result of the test was that “the alleged father cannot be the biological father of the child.” At a call of the case on January 19, 1987, the trial court in recognition of the test result issued an order that the abandonment action against Sutton be dismissed and the cost of bringing the action and the cost of the HLA test be assessed against Herring, she to reimburse Sutton and pay the other costs into court. Later, on January 28 the trial court wrote and signed a recital on the adjudication and sentence portion of the criminal information form: “Dismissed by solicitor after receipt of paternity order attached,” referring to the January 19 order.

Herring moved to set aside the January 19 order and attached an affidavit in which she stated that she was not present at the hearing on January 19 because she was hospitalized, that she had notified the court in advance that this would be so, and that she knew that Sutton was her child’s father. As grounds for the motion Herring set out that she was only a witness, was not the prosecutor and could not be liable for the costs.

The trial court denied the motion to set aside and gave as the basis for that order “the Court [had] confirmed the understanding of [Herring] at the time of the initial arrangement in this matter, and she [had] acknowledged clear understanding of the assessments to be made from the results of the blood tests to which she voluntarily submitted.”

Upon the grant of her application for review Herring appeals and enumerates three errors: taxing the blood test costs against her absent a finding of parentage or nonparentage under the abandonment statute; assessing court costs where she was not one who could be charged with costs; labelling the January 19 dismissal as a “paternity order” which could bar subsequent civil or criminal actions against Sutton.

1. The second sentence of OCGA § 19-10-1 (f) (2) provides: “Upon the entry of a verdict incorporating a finding of parentage or nonparentage, the court shall tax the expenses for blood tests and comparisons, in addition to any fees for expert witnesses whose testimonies supported the admissibility thereof, as costs.” If there is the requisite finding, the expenses of blood testing are thus included within the generic description of costs in OCGA § 17-11-4. It prescribes the conditions for the imposition of costs upon the prosecutor. Assuming without concluding that the court’s mere recital of January 28 or the order of January 19 constituted a finding of nonpaternity, the primary question is whether “[t]he prosecution [was] abandoned before trial” so as to impose the costs upon Herring. OCGA § 17-11-4 (a) (3).

Herring’s argument that she is not a prosecutor within the meaning of the code section has been foreclosed by Sampson v. State, 43 Ga. App. 89, 90 (157 SE 915) (1931). That decision, quoting from Eady v. State, 10 Ga. App. 818 (74 SE 303) (1912), held: “ ‘[A] prosecutor is one who instigates a prosecution by making an affidavit charging a named person with the commission of a penal offense, on which a warrant is issued or an indictment or accusation is based.’ ” Herring was a “prosecutor” under the code section.

Still a requirement remains; the prosecution must have been abandoned. One of the few cases discussing this section dealt with the failure of the prosecutor to appear and prosecute the case. See Underwood v. Harvey, 106 Ga. 268 (32 SE 124) (1898). The clear intendment of the provision is that the prosecutor abandons the prosecution, not that the prosecuting attorney, over whom the prosecutor has no control, decides not to continue with the proceedings. Here the attorney for the State, not for Herring, made the determination to enter into the consent agreement and to permit the dismissal of the action against Sutton. The State cannot by this totally independent action cast the costs against the prosecuting witness. The trial court did not find that she abandoned the prosecution. That Herring may have understood that costs would be assessed might indicate acquiescence in the original consent agreement, but would not bind her contrary to law. Nor does it show that she “abandoned” the prosecution as required by OCGA § 17-11-4 (3). It was error to assess costs against Herring.

Decided January 14, 1988.

Patricia D. Barron, for appellant.

Parnell Odom, Solicitor, John H. Cranford, D. Scott Cummins, Assistant Solicitors, for appellee.

2. Having dealt with the first two enumerations of error, we turn to the third. It takes issue with the court’s recital of January 28, on the back of the criminal information form, insofar as it characterizes the January 19 order as a “paternity order.” This complaint was not raised below, nor was that recital, if it even constitutes an order, appealed from. We do not, therefore, address it.

Judgment reversed.

McMurray, P. J., and Sognier, J., concur.


text:
    75285.
    STINSON v. THE STATE.
    (364 SE2d 910)
   Beasley, Judge.

Convicted of burglary (OCGA § 16-7-1 (a)) and aggravated sodomy (OCGA § 16-6-2 (a)), defendant appeals, claiming error in the denial of his motion for new trial.

The motion for new trial claimed three errors: (1) failure of the State to prove guilt beyond a reasonable doubt; (2) if guilt were proven beyond a reasonable doubt, the evidence was sufficiently close to warrant the exercise of discretion by the trial court in granting a new trial; (3) the court committed an error of law warranting a new trial.

On appeal, however, the error of law ground is not pursued as a separate ground apart from the evidence question, and there is thus nothing for us to consider in this regard. We note that although appellant embraces in his enumeration that the verdict is “contrary to law” the further assertion that it is contrary “to the principles of justice and equity,” the latter concept, as well as the former when it relates to the evidence question, has been subsumed in, or equated with, the evidence question. Ridley v. State, 236 Ga. 147, 149 (1) (223 SE2d 131) (1976). There the Court considered these two challenges on appeal as being nothing more nor less that the separately stated sufficiency attack on the evidence. Interestingly, only the “justice and equity” concept, and not the “law” concept, is contained in the words of OCGA § 5-5-20.

Decided January 14, 1988.

J. Robert Joiner, for appellant.

Lewis R. Slaton, District Attorney, Joseph J. Drolet, Assistant District Attorney, for appellee.

As to the remaining two grounds, they are presented on appeal in some of the language of OCGA § 5-5-20 and § 5-5-21, i.e., that the verdict is contrary to the evidence (“and without evidence to support it,” which is not in the Code but we take to mean substantially the same thing), and that the verdict is decidedly and strongly against the weight of the evidence. As to the second of these, which is found in OCGA § 5-5-21, this ground is addressed to the trial judge’s discretion alone. Daniel v. State, 180 Ga. App. 687, 688 (1) (350 SE2d 49) (1986). The only matter left is the “general ground” relating to the sufficiency of the evidence. Ridley v. State, supra, overruled to the extent that it used the “any evidence” standard for making this determination on appeal by Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), as noted in Adams v. State, 255 Ga. 356, 357 (fn. 2) (338 SE2d 860) (1986).

At any rate the evidence, in the light favorable to the verdict, shows that defendant was identified by the victim as the man who broke into her apartment by climbing a pipe and breaking her second-story window and then assaulted her. Her neighbor called the police who arrived and saw defendant leaving the victim’s apartment wearing only a tee shirt. Defendant fled from the officers and then told them a version of the encounter which was contested by the victim. Defendant then took the stand at his trial and told a completely different version of the incident. The evidence was sufficient, applying the standard of Jackson v. Virginia, supra. Daniel v. State, supra at 688 (2).

Judgment affirmed.

McMurray, P. J., and Sognier, J., concur.


text:
    75257.
    TOWNS v. THE STATE.
    (365 SE2d 137)
   Beasley, Judge.

Defendant was convicted of three counts of burglary (OCGA § 16-7-1) for entering an office building, and two different offices of another office building, on the same day. On appeal, he contests only the conviction of the third count, which involves one of the latter. He concedes the sufficiency of the evidence as to the others.

He claims error in the trial court’s denial of his motion for new trial as to Count 3. Count 1 alleged that defendant entered a “building occupied by Curtis Tucker, . . . located at Room 243 at 1803 Gloucester Street,. . . .” Count 3 alleged entry into “a building occupied by Marc Rankin, Glynn County Tax Assessor, located at Room 208 at 1803 Gloucester Street. . . .” Count 2 involved the Board of Education Building at another location.

Defendant contends that the evidence was insufficient to prove Count 3, listing substantially what have become loosely known as the “general grounds.” He urges (1) that the verdict is contrary to law; (2) that the verdict is contrary to the evidence (OCGA § 5-5-20); and (3) that the verdict is strongly against the weight of the evidence (OCGA § 5-5-21). Ground one is not expressly found in either Code section, but “contrary to the principles of justice and equity” appears in OCGA § 5-5-20, and OCGA § 5-5-25 provides for the trial court’s consideration on a motion for new trial of “other grounds” according to the provisions of the common law.

There are, however, no legal errors argued on appeal other than the sufficiency of the evidence, so the first ground presents nothing separate to review. Ground three, OCGA § 5-5-21, addresses itself solely to the trial judge’s discretion. Ridley v. State, 236 Ga. 147, 149 (1) (223 SE2d 131) (1976), overruled to the extent that it used the “any evidence” standard for making this determination on appeal by Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560) (1979), as noted in Adams v. State, 255 Ga. 356, 357 (fn. 2) (338 SE2d 860) (1986); Daniel v. State, 180 Ga. App. 687, 688 (1) & (2) (350 SE2d 49) (1986). Accordingly, the only matter presented to this court from the remaining general ground is the sufficiency of the evidence, not its weight. See also Stinson v. State, 185 Ga. App. 543 (364 SE2d 910) (1988).

As to Count 3, the evidence when taken in a light favorable to the verdict showed as follows. The building at 1803 Gloucester Street was broken into by breaking a window on the first floor which then was opened and entered. Each individual office in the building locked separately and all were locked when the building was not occupied. A soft drink machine located in the first floor hallway was pried open and the coin box broken into and its contents taken. The door of the office through which entry was made locked, and then an attempt was made to pry it open from the hallway where the drink machine was located. The door was not pried open.

Decided January 14, 1988.

John W. Davis, for appellant.

Glenn Thomas, Jr., District Attorney, John B. Johnson III, Assistant District Attorney, for appellee.

The door from the hallway of Room 208, on the second floor, was pried open. A tire tool was found outside the Board of Education Building (Count 2) and pry marks from the door frame of Room 208 matched the tool, and paint chips found on the tool matched the paint on the soft drink machine. The window of Room 208 had been raised and a smudged hand print was on the wall near that window. Several of defendant’s fingerprints were found on pieces of the glass from the first floor window and on the coin box. Because the smudged print was on concrete block, no identification could be made of it.

OCGA § 16-7-1 provides that a person commits burglary when, without authority and with intent to commit a felony therein, he “enters . . . any other building [other than a dwelling] ... or any room or any part thereof.” Defendant argues that the evidence was insufficient to show who occupied Room 208, that defendant entered that room, and that valuables were kept there. The first and last factors are not requirements in the composition of burglary. However, there was evidence of the first factor in that Ms. Cristobal testified that she worked in Room 208. As to defendant’s entering the room, the evidence recited above is sufficient circumstantial evidence under the Jackson standard to support the jury’s verdict. The evidence in toto was sufficient. Daniel v. State, supra at 688 (2).

Judgment affirmed.

McMurray, P. J., and Sognier, J., concur.


author: McMurray, Presiding Judge.

text:
    75333.
    STEPHENS v. THE STATE.
    (365 SE2d 136)
   McMurray, Presiding Judge.

Defendant was convicted of entering an automobile with the intent to commit a theft. Following the denial of his motion for new trial, defendant appealed. Held:

1. In his first enumeration of error, defendant asserts the general grounds. Viewing the evidence in a light favorable to the verdict, we find the following: On the day in question, a Friday, the victim went to the bank to transact business and left with a money pouch which he placed under the seat of his car. Then he drove to a country club where he was to meet his wife for lunch. He parked his car, which was equipped with an alarm, and entered the club. Shortly thereafter, the alarm sounded. The victim’s daughter, a lifeguard at the club pool, heard the alarm and went to investigate. She saw defendant inside the victim’s car. He was sitting in the driver’s seat, leaning over and “looking down at the floor.” In the words of. another witness, defendant was “scrambling all through the car . . . looking for something . . ."

The victim’s daughter ran towards the car and defendant made a hasty exit. He got into a van which had been parked next to the victim’s car. A co-defendant was the driver of the van. When defendant entered the van, the co-defendant sped off. The money pouch had not been taken.

The evidence was sufficient to enable a rational trier of fact to find defendant guilty of entering an automobile with intent to commit a theft beyond a reasonable doubt. See Jackson v. Virginia, 443 U. S. 307 (99 SC 2781, 61 LE2d 560); Hall v. State, 172 Ga. App. 371 (323 SE2d 261). See also Scott v. State, 171 Ga. App. 58, 59 (2) (318 SE2d 789).

2. During the prosecutor’s closing argument, defendant moved for a mistrial on the ground that the prosecutor stated facts which were not in evidence. (The prosecutor submitted that defendant and his co-defendant “staked out” the bank on “payday.”) The trial court overruled defendant’s motion and instructed the jury to “remember the evidence as was testified to by the witnesses in the case.” Defendant did not renew his motion for mistrial and he did not request further relief. He enumerates error upon the denial of his mistrial motion.

Under the circumstances of this case, we are presented with nothing for review. Smith v. State, 172 Ga. App. 6 (1) (321 SE2d 771). Even if the alleged error was reviewable, we would find it to be without merit. The prosecutor’s argument was a permissible deduction to draw from the evidence. That the deduction was “illogical, unreasonable or even absurd, is a matter for reply by adverse counsel and not rebuke by the court. Owens v. State, 120 Ga. 209, 210 (47 SE 545).” Johnson v. State, 150 Ga. App. 405, 407 (3) (258 SE2d 22).

3. In his third enumeration of error, defendant complains that he received a harsher sentence than his co-defendant. This enumeration lacks merit. “The trial court has the discretion to impose sentence within the parameters prescribed by the statute and if the sentence is within the statutory limits, the appellate courts will not review it. [Cits.]” Monroe v. State, 250 Ga. 30, 36 (7) (295 SE2d 512).

4. Defendant contends he was denied his right to a speedy trial. We disagree. Defendant was tried within seven months of the commission of the offense. He never made a demand for trial and he was not prejudiced by the delay. Thus, defendant cannot claim the benefits of OCGA § 17-7-170; nor can he claim that he was denied his constitutional right to a speedy trial. Dansby v. State, 140 Ga. App. 104 (1) (230 SE2d 64).

Decided January 14, 1988.

Robert M. Boulineau, for appellant.

Joseph H. Briley, District Attorney, Albert C. Martinez, Assistant District Attorney, for appellee.

Judgment affirmed.

Sognier and Beasley, JJ., concur.


text:
    75509.
    NIXSON v. CHRIS LEASING, INC.
    (365 SE2d 135)
   Beasley, Judge.

On November 8, 1979 Chris Leasing brought suit against Nixson claiming damages under a car lease guarantee. Nixson answered and some discovery took place during 1979 and 1980. The case was scheduled for jury trial November 1981, but counsel agreed for it to be specially set and the case was removed from the trial calendar. The case then appeared on the June 2, 1986 trial calendar, no written order having been filed during the interim. Defendant moved to dismiss pursuant to OCGA § 9-2-60 (b) and plaintiff filed a motion for entry of a nunc pro tunc order of continuance. A hearing was held in August 1986 resulting in an order denying defendant’s motion and granting nunc pro tunc November 10, 1981 a continuance to plaintiff. Defendant’s motion for certificate of immediate review was denied and a trial resulted in a judgment for plaintiff.

Defendant assigns error on the failure to dismiss the action based upon OCGA § 9-2-60 (b), which provides that any action “in which no written order is taken for a period of five years shall automatically stand dismissed.”

The trial court erred in denying the defendant’s motion, granting the motion for continuance and permitting the case to proceed to trial. Construing the predecessor to the present code section, this court held in Dollar v. Webb, 132 Ga. App. 811 (209 SE2d 253) (1974): “[W]hen a case stood automatically dismissed this meant that it was completely lifeless for all purposes from the date of the dismissal, so that if not removed a motion to strike it from the docket would lie. . . . [T]he date on which the automatic dismissal occurred rather than the date on which it was physically stricken from the docket determined the time of death.” After automatic dismissal under this section, the case is no longer pending and any further action, even trial and verdict, is a mere nullity. Salter v. Chatham County, 136 Ga. App. 914, 915 (2) (222 SE2d 638) (1975); Stone v. Green, 163 Ga. App. 18 (1) (293 SE2d 506) (1982).

Decided January 14, 1988.

Fredrick J. Kraus, for appellant.

Gerald B. Kline, for appellee.

Judgment reversed.

McMurray, P. J., and Sognier, J., concur.


text:
    75587, 75588.
    In the Interest of C. M. S. (two cases).
    (364 SE2d 908)
   Banke, Presiding Judge.

The appellant, herself a minor child, appeals the termination of her parental rights with respect to her two children, contending that the evidence was insufficient to support the termination and that the lower court failed to take into account the existence of certain alternatives to the complete severance of her parental rights.

When the hearing was held in April of 1987, the appellant was 13 years of age and a student in a seventh grade special-education class. She had become pregnant with her first child at the age of 10, after being raped by her brother-in-law. She and the child thereafter lived with the appellant’s mother, who assumed the role of primary caretaker for the child while the appellant was attending school.

It is undisputed that although the appellant was raped on multiple occasions by her brother-in-law and although her mother was aware of this sexual activity, the mother nevertheless subsequently allowed the brother-in-law to visit with the appellant and the child in her home. In May of 1986, the Department of Family and Children Services obtained temporary custody of the appellant and the child and placed them in foster care. A few weeks later, the appellant asked to be separated from the child because she did not want her friends to know that she was the child’s mother.

During the appellant’s foster home placement, it was learned that she had again become pregnant as the result of a rape. The appellant desired to terminate this pregnancy; however, for medical reasons an abortion was determined not to be a viable alternative. After the birth of her second child, the appellant signed a release authorizing the child to be placed in foster care. The appellant has only visited the second child twice since its birth on November 24, 1986.

A psychologist who had examined the appellant testified at the hearing on the termination petition that the appellant had expressed guilt for not wanting to raise her children and was depressed about her circumstances. This witness further testified that the appellant suffered anxiety due to the pressure she felt from her mother and other members of her family who, she believed, wanted her to keep the children. It was the psychologist’s opinion that the appellant lacked the capacity to raise her children and did not have adequate family support to assist her in doing so. He concluded that it would be both in the appellant’s own best interests and in the best interests of the children to terminate her parental rights, so that she would be able to experience at least some semblance of a childhood. The state also presented testimony from DFCS caseworkers to the effect that the appellant had demonstrated an inability to care for her first child without help, that she had never taken the initiative to feed or clothe him or attend to his medical needs, that she would pinch or push him when she got frustrated with him, and that generally she had not manifested nurturing tendencies toward him. Held:

Decided January 14, 1988.

James E. Friese, for appellant.

Michael J. Bowers, Attorney General, Carol A. Cosgrove, Senior Assistant Attorney General, Paula T. Hanington, Assistant Attorney General, for appellee.

1. There was clear and convincing evidence to support the termination of the appellant’s parental rights. See generally OCGA § 15-11-81 (a) & (b); In re B. D. C., 256 Ga. 511, 512 (350 SE2d 444) (1986); In re N. F. R., 179 Ga. App. 346 (346 SE2d 121) (1986); Blackburn v. Blackburn, 249 Ga. 689, 694 (292 SE2d 821) (1982).

2. Relying upon In the Interest of P. F. J., 174 Ga. App. 47 (329 SE2d 194) (1985), the appellant contends that the lower court erred in failing to consider possible alternatives to the complete severance of her parental rights, such as a foster care plan encompassing both herself and the children. However, here, as in that case, there is clear and convincing evidence to support a complete termination of parental rights, including evidence which would support a conclusion that foster care was not a viable alternative. It follows that the trial court did not abuse its discretion in determining that the children’s needs could not be met without complete severance of parental rights.

Judgment affirmed.

Carley and Benham, JJ., concur.


text:
    75050.
    MATALUNI v. THE STATE.
    (364 SE2d 911)
   McMurray, Presiding Judge.

Via indictment, defendant was accused of trafficking in cocaine and possessing more than one ounce of marijuana. With regard to the trafficking in cocaine charge, it was alleged that on May 2, 1985, defendant unlawfully and knowingly sold “56 grams of a mixture containing cocaine.” Defendant was tried by the court without a jury on January 15, 1986. She was found guilty upon each charge and. was sentenced to serve five years for trafficking in cocaine and four years for possessing more than one ounce of marijuana. Moving for a new trial, defendant argued for the first time that the trafficking in cocaine conviction was not authorized in view of the repeal and amendment of OCGA § 16-13-31 (effective July 1, 1985) which deleted the “mixture” language from that Code section. The trial court denied defendant’s new trial motion and defendant appealed. Held:

1. In Robinson v. State, 256 Ga. 564 (350 SE2d 464), the Supreme Court held that the repeal and subsequent amendment of OCGA § 16-13-31 put an end to prosecutions for trafficking in cocaine by possessing more than 28 grams or more of a mixture containing cocaine. Accord Blount v. State, 181 Ga. App. 330 (1) (352 SE2d 220). Conceding the applicability of Robinson v. State, 256 Ga. 564, supra, to the facts of this case, the State contends defendant waived the Robinson argument because she did not present it in the trial court prior to conviction. This contention is erroneous. It is true that objections as to the form and sufficiency of an indictment cannot be urged after conviction. See Carr v. State, 184 Ga. App. 889 (363 SE2d 319); Nelson v. State, 65 Ga. App. 769 (2) (16 SE2d 502). Where, however, an indictment is so defective as to be rendered void, it can be attacked after conviction. See Harrington v. State, 97 Ga. App. 315, 317 (1) (103 SE2d 126). In the case sub judice, it is clear that the indictment was void. The repeal and amendment of OCGA § 16-13-31 meant that defendant’s “conduct was no longer defined by the legislature as trafficking in cocaine . . . [and that] the prosecution in this case was at an end before the trial.” Robinson v. State, 256 Ga. 564, 566, supra. Accordingly, it cannot be said that defendant waived her attack upon the indictment by failing to raise it prior to conviction. The trafficking in cocaine conviction must be reversed. Robinson v. State, 256 Ga. 564, 566, supra; Blount v. State, 181 Ga. App. 330, 331, supra.

2. In view of our holding in Division 1, the remaining enumerations of error need not be considered.

3. The trafficking in cocaine conviction is reversed; the possession of more than one ounce of marijuana conviction is affirmed.

Judgment affirmed as to conviction and sentence for possession of more than one ounce of marijuana; judgment reversed as to conviction and sentence for trafficking in cocaine.

Decided January 15, 1988.

Gale W. Mull, for appellant.

Robert E. Wilson, District Attorney, Barbara Conroy, James W. Richter, Assistant District Attorneys, for appellee.

Sognier and Beasley, JJ., concur.


text:
    75280.
    ANDERSON v. UNITED SERVICES AUTOMOBILE ASSOCIATION.
    (365 SE2d 467)
   Birdsong, Chief Judge.

This is an appeal from a motion granting summary judgment to appellee United Services Automobile Association (USAA) and denying appellant Hugh B. Anderson’s cross-motion for summary judgment.

This case involves a determination whether appellee substantially complied, within the meaning of OCGA § 1-3-1 (c), with the requirements of former statutory provision OCGA § 33-34-5 (c). We hold that appellee did substantially comply with those statutory requirements, and that no genuine issue of material fact exists in this case which would bar the granting of appellee’s motion for summary judgment by the trial court. (Appellee’s motion to order supplemental record is denied.)

Appellant asserts as his sole enumeration of error that “[s]ince the offer to purchase optional personal injury protection benefits failed to meet the requirements of OCGA § 33-34-5 (c), the trial court erred in granting [appellee/defendant’s] motion for summary judgment and denying [appellant/plaintiff’s] motion for summary judgment.”

Appellee’s first offer of optional no-fault coverage duly mailed to appellant cannot be considered for any purpose in determining whether the statutory provision was complied with, because it failed to provide appellant with “a means for the insured to make a written acceptance or rejection” of the available optional coverages and appellant was an insured to whom the provisions of OCGA § 33-34-5 (c) applied. Wiard v. Phoenix Ins. Co., 251 Ga. 698, 700 (310 SE2d 221); see also United Svcs. Auto. Assn. v. Ansley, 254 Ga. 647 (333 SE2d 579) (distinguishing but tacitly affirming Wiard). The appellant in this case stands in substantially the same position as did the insured in Wiard as both failed to respond to the first written no-fault coverage offer.

We need not determine whether appellee’s second no-fault optional coverage offer was sufficient to meet the requirements of OCGA § 33-34-5 (c), although it appears ,on its face not to meet the two-prong test of Wiard, as we find that the record contains other adequate proof of such compliance by the appellee.

In addition to the above two offers, appellee mailed to all Georgia policyholders, including appellant, correspondence concerning no-fault optional coverages similar to that attached hereto as appendices 1 through 5. This correspondence was duly addressed to the address shown on the policy at the time of mailing, and each mailing was sent by first class mail. It further appears that the mailing of the material listed in appendices 1 through 5 occurred annually after the second offer was mailed in January or February 1975 until 1979. These facts contained in the affidavit of appellee’s Director of Out-Mail Operation are uncontroverted by any other evidence of record. We find that the information contained in the above correspondence did, in its totality, substantially comply with the statutory requirements of OCGA § 33-34-5 (c). Compare the information contained in the correspondence at appendices with the documents found acceptable in United Svcs. Auto. Assn. v. Ansley, supra. Further, we find that the clarity of the documents, attached as appendices, speaks for itself.

Judgment affirmed.

Deen, P. J., and Pope, J., concur.

Decided January 15, 1988.

Neal B. Graham, for appellant.

Edward L. Saveli, for appellee.


text:
    75298.
    WILLIAMS v. THE STATE.
    (365 SE2d 141)
   Birdsong, Chief Judge.

Pursuant to OCGA § 5-6-34, appellant appeals the judgment and order of the superior court which, subsequent to a finding of not guilty by reason of insanity, on a murder charge, determined that appellant poses a “significant risk to [the] members of the community” and directed that the appellant “remain in confinement under the supervision of the Department of Human Resources until further ordered.”

Appellant was tried for the offense of felony murder. Prior to trial, he was given a court-ordered mental evaluation. Appellant was diagnosed as “suffering from Chronic Schizophrenia,” and it was opined that he “was not and is not now legally sane.” Subsequently, the trial court found appellant to be not guilty by reason of insanity. Pursuant to OCGA § 17-7-131, the court ordered the Department of Human Resources to take custody of appellant for a period not to exceed 30 days and to conduct the statutorily required evaluation of his present mental condition. Upon expiration of the 30-day evaluation period, the trial judge ordered a commitment hearing as prescribed by OCGA § 17-7-131 (e). It was further directed that the written evaluation report would be submitted to the court before the hearing and that a member of the evaluation team should be present to testify at the hearing.

At the hearing, a licensed clinical psychologist from the state hospital facility was present and testified; however, no evaluation report was ever filed regarding appellant’s present mental condition subsequent to his acquittal of the felony murder charge. Held:

1. Appellant’s first enumerated error is that the trial court erred in ordering the appellant to remain in confinement under the supervision of the Department of Human Resources. Specifically, appellant raises the issue whether there is “sufficient evidence to order the continued confinement of the appellant.” Our review of the hearing transcript reveals ample evidence from which any rational trier of fact could conclude by the requisite standard of proof that appellant was currently mentally ill, that appellant presents a substantial risk of imminent harm to other members of the community, and that appellant should not be released from the custody of the Department of Human Resources but should remain in confinement under their supervision until further ordered.

Under OCGA § 24-4-21 there is a presumption of continued existence of a mental state once proved to exist. Thus, where a defendant who has been acquitted of a crime by reason of insanity is ordered committed to a mental hospital under OCGA § 17-7-131 (e) and files application for release under OCGA § 17-7-131 (f), there is a continuing presumption of insanity at the time of the release hearing. See Arnold v. State, 173 Ga. App. 839 (328 SE2d 572). It is the previous adjudication of the trial court “finding the defendant not guilty by reason of insanity” which gives rise to this presumption (Clark v. State, 151 Ga. App. 853 (261 SE2d 764), affirmed 245 Ga. 629 (266 SE2d 466)), and thus the administrative act of committing defendant to a mental hospital is not needed to render the presumption viable. Accordingly, the presumption of continued insanity applies to initial commitment hearings under OCGA § 17-7-131 (e) as well as to subsequent release hearings under OCGA § 17-7-131 (f). Further, we are satisfied that such a presumption is sufficiently probative of mental illness and dangerousness to justify commitment to a mental institution without violating appellant’s due process rights; see Jones v. United States, 463 U. S. 354 (103 SC 3043, 77 LE2d 694). Thus the presumption of continued insanity together with the testimony of the clinical psychologist established a legitimate basis for the trial court’s order. See Moses v. State, 167 Ga. App. 556, 558 (307 SE2d 35) (burden of proof in a release hearing, in view of presumption of continued insanity is upon the applicant). C.f., Pope v. State, 172 Ga. App. 396 (323 SE2d 268) (it does not violate due process or equal protection to require an insanity acquittee to bear the burden of proving fitness for release).

2. Appellant’s second enumerated error is that the trial court erred in failing to provide appropriate relief because of the violation of OCGA § 17-7-131 (d), which occurred because of the failure to file the statutorily required written evaluation report of appellant’s present mental condition. Appellee concedes that the required written evaluation report was not filed with the court. However, we note that had the report been timely filed the trial judge in the exercise of his discretion is entirely free to ignore the recommendations of the hospital staff. Loftin v. State, 180 Ga. App. 613 (349 SE2d 777). While we do not believe, under the circumstances, that the statutory requirement for the report rises to the level of procedural due process, nevertheless the statute does expressly require that the report be made and tendered to the trial court and counsel. In this instance, the clinical psychologist who testified was a member of the hospital’s forensic and treatment teams; however, it is not established that the opinions which she expressed at the hearing were compatible with the opinions of the remainder of the evaluation team. In fact, the team’s membership is not ascertainable in the hearing transcript. In view of the above, coupled with the issue raised as to whether appellant’s release posed a substantial risk, we believe that the trial judge should have had the benefit of the OCGA § 17-7-131 (d) evaluation report prior to issuing his final judgment and order.

Decided January 15, 1988.

John M. Wyatt, for appellant.

William G. Hamrick, Jr., District Attorney, Peter J. Skandalakis, Assistant District Attorney, for appellee.

But, while we find that failure to render a written evaluation report is in contravention of an existing statutory requirement, we agree with the trial judge that appellant’s immediate release from the state mental hospital is not the appropriate remedy at this time. Rather, we believe that the proper remedy is to direct compliance with the statute. Accordingly, the trial court shall issue an order requiring the tender of a written evaluation report as to appellant’s present mental condition. The trial court shall provide the parties with a reasonable opportunity to submit additional evidence relevant to any information which may be contained in the evaluation report. The trial court shall then issue its finding and issue an appropriate judgment and order from which the appellant shall have the right to appeal as provided by law. Pending issuance of a new final judgment and order, appellant shall remain committed to the Department of Human Resources and shall be given such involuntary treatment as required by Chapter 3 of Title 37, OCGA.

Judgment vacated and case remanded with direction.

Deen, P. J., and Pope, J., concur.


author: Banke, Presiding Judge. Carley, Judge,

text:
    75038.
    In the Interest of C. T. et al.
    (365 SE2d 117)
   Banke, Presiding Judge.

The appellant brings this appeal from an order terminating her parental rights with respect to her three minor children.

When the termination hearing was held, in October of 1986, the children were 9,11 and 15 years of age, respectively. The Department of Family and Children Services (DFCS) first became involved with the children in June of 1984 and in August of 1984 obtained custody of them pursuant to an “Order of Deprivation” issued by the juvenile court. Custody of the children was restored to the appellant from October of 1984 through September of 1985, but she voluntarily returned them to the DFCS at the end of that period, due to the fact that she was about to begin service of a six-week jail sentence for nonpayment of a fine. She has not had custody of the children since. The two younger children are apparently now residing with their father.

After completing her jail sentence, the appellant agreed to meet certain goals as a prerequisite to regaining custody of her children. These included applying for AFDC benefits or food stamps, maintaining a clean home and seeking employment. The evidence showed that the appellant subsequently failed to secure adequate housing for the children or to maintain a clean home, failed to provide adequate food for the children during weekend visits, demonstrated little initiative towards staying employed, and resisted applying for AFDC benefits as a method of providing for the children. However, there was no evidence suggesting that the appellant has ever engaged in any physical or sexual abuse of the children or exposed them to alcohol or drug abuse, nor was it shown that she suffers from any mental deficiency or other condition which might, in and of itself, have an adverse effect on the children.

The juvenile court terminated the appellant’s parental rights pursuant to OCGA § 15-11-81, based on findings that the children were deprived and would continue to be deprived due to the appellant’s demonstrated inability to provide them either with emotional support or with the “basic necessities” of life and that such deprivation was causing and would continue to cause serious physical, mental, emotional, and moral harm to the children. Held:

While the evidence of record certainly would support a determination that the appellant is unfit to care for the children on a day-today basis, there is no evidence which suggests that the children, who are not living in the appellant’s custody, are currently suffering or are in danger of suffering in the future any serious physical, mental, emotional, or moral harm due to mere continuance of their relationship with the appellant on a visitation basis. See generally OCGA § 15-11-81 (b) (4) (A) (iv). Indeed, the trial court’s findings suggest that it is lack of contact rather than contact with the mother which has caused the deprivation on which the termination was based.

Were there at least some suggestion in the record that termination of the appellant’s parental rights would enable the children to achieve a more stable home life through adoption, then perhaps a basis for termination would be evident. See In re G. M. N., 183 Ga. App. 458, 461 (359 SE2d 217) (1987). However, the contrary would appear to be the case. The two younger children are living with their father, and the remaining child is now 16 years old.

“Seldom does the state wield so awesome a power as when it permanently cuts the family ties between parent and child.” R. C. N. v. State of Ga., 141 Ga. App. 490, 491 (233 SE2d 866) (1977). See also Nix v. Dept. of Human Resources, 236 Ga. 794 (225 SE2d 306) (1976); Blackburn v. Blackburn, 249 Ga. 689, 692 (292 SE2d 821) (1982). In order to warrant a severance of parental rights pursuant to OCGA § 15-11-81 (b) (4) (A) based on parental misconduct or inability, there must be clear and convincing evidence to support findings not only that the child is deprived due to lack of proper parental care and control but also that, in the absence of judicial intervention, such deprivation will continue, likely resulting in “serious physical, mental, emotional, or moral harm” to the child in the future. Surely, there is implied in the language of this statutory provision a requirement that the termination will have some beneficial effect on the situation, i.e., that it can be expected to ameliorate the “serious physical, mental, emotional, or moral harm” which the child would otherwise likely suffer.

Finding no evidence whatever in the present case which would suggest that the mere continued existence of a parental relationship between the appellant and her children would result in any harm to the children or serve in any way as an impediment to their future development, we must conclude that no basis for termination has been established. Accord In re N. F. R., 179 Ga. App. 346 (346 SE2d 121) (1986). We emphasize, however, that we by no means intend to imply by this ruling that the appellant is entitled to regain custody of her children. Indeed, it is the fact that other living arrangements are in place for the children and the nature of those arrangements which leave us at a loss to understand why the appellant and her children should be forced to sever their remaining ties with each other.

Judgment reversed.

Deen, P. J., McMurray, P. J., Sognier, Pope, and Beasley, JJ., concur. Carley, J., dissents. Birdsong, C. J., and Benham, J., dissent in judgment only.

Carley, Judge,

dissenting.

Because it is my opinion that the majority has made its own determination of the weight of the evidence in this case, I respectfully dissent.

In order to view this case from the proper appellate perspective, let us look at excerpts from the findings of the trial court made on the basis of the evidence presented before him: “The Court finds by clear and convincing evidence that the children are deprived in that they lack the physical presence of the mother and the mother’s physical providing of their needs, that they are further deprived because the mother has not provided any emotional support to the children. The Court further finds that this deprivation is due to a lack of proper parental care and control in that the mother has failed . . . significantly for a period of one year to provide for the care and support of the children as required by the judicial Orders of this Court and has failed to comply with the Court ordered plan designed to reunite the children with her. The Court further finds that the failure of the mother to so provide is without justifiable cause on the part of the mother. The Court finds that the actions of the mother in her refusal to cooperate with the Department of Family and Children Services, and in her failure to accomplish the goals as stated by the Court in its reviews of the matter as well as the mother’s continued failure to secure employment and housing and her continual failure to cooperate with the Court and with the Department of Family and Children Services indicates that the deprivation will continue and is likely to continue and will not likely be remedied. The Court further finds that the continued deprivation will and is likely to cause serious physical, mental, emotional, and moral harm to the children involved, that the actions of the older daughter and the testimony concerning the behaviors of the two sons while in the mother’s custody indicates that said mental and emotional harm has already occurred and that the mere non-presence of the parent in the home and the failure of the mother to provide the basic necessities of a home and food for the said children, and that parent’s reliance on others to do the same for her will cause serious emotional harm to the said children. . . . The Court further finds that after considering the physical, mental, emotional, and moral conditions of the child as well as the needs of the children, especially the need for the children to have a secure and stable home, it is in the best interest of these children that the termination of the parental rights of the mother be had.”

Even in the face of these findings by the trial court, which are supported by a transcript of the evidence upon which these findings are based, the majority makes its own determination that “there is no evidence which suggests that the children, who are not living in the appellant’s custody, are currently suffering or are in danger of suffering in the future any serious physical, mental, emotional, or moral harm due to the mere continuance of their relationship with the appellant.” (Majority opinion, page 562.) Quite to the contrary, I believe that “[t]he strictures of QCGA § 15-11-81 were met in this case and well supported by ‘clear and convincing evidence’ of continued deprivation and parental unfitness; the finding of the trial court [should] not be set aside. [Cits.]” In re G. M. N., 183 Ga. App. 458, 461 (359 SE2d 217) (1987).

The majority “opinion [reviews] the evidence presented below and [applies] the clear and convincing evidence test. But, this is not the function of a reviewing court. The factfinding and weighing of evidence is to be done in the trial court under the clear and convincing evidence test. The reviewing court is to defer to the lower court in the area of factfinding and should affirm unless the appellate standard of review, here the rational factfinder test of Blackburn, is not met. When we apply the test here we note the conflicting evidence presented to the trial court and conclude that a rational factfinder could have found by clear and convincing evidence that the [parental rights of appellant should be terminated].” (Emphasis supplied.) In re B. D. C., 256 Ga. 511, 513 (350 SE2d 444) (1986). I would affirm the judgment of the trial court and, therefore, I dissent.

Decided December 1, 1987

Rehearing denied December 18, 1987 — Rehearing dismissed January 19, 1988

James R. McKay, for appellant.

Michael J. Bowers, Attorney General, Carol A. Cosgrove, Senior Assistant Attorney General, for appellees.

On Motion for Rehearing.

On motion for rehearing, the appellee contends that the termination order was authorized by OCGA § 15-11-81 (b) (4) (C), which provides, in pertinent part, as follows: “In addition to the considerations in subparagraph (B) of this paragraph, where the child is not in the custody of the parent who is the subject of the proceedings, in determining whether the child is without proper parental care and control, the court shall consider, without being limited to, whether the parent without justifiable cause has failed significantly for a period of one year or longer prior to the filing of the petition for termination of parental rights: . . . (iii) To comply with a court ordered plan designed to reunite the child with the parent or parents.”

We have not been cited by the appellee to the location in the record of any court-ordered plan designed to reunite the children with the appellant, nor have we otherwise been able to locate such a court order in the record before us.

The motion for rehearing is consequently denied.


author: Sognier, Judge.

text:
    75076.
    CONNER v. BRANCH et al.
    (364 SE2d 890)
   Sognier, Judge.

John Conner brought suit against John and Jean Branch alleging fraudulent misrepresentation in the sale of a condominium unit. He appeals from the trial court’s grant of summary judgment in favor of the Branches.

A damp spot, caused by water leaking through the roof, appeared on the ceiling of the condominium unit in question in late 1982. Appellees contacted the management company for the condominium complex, A. F. Winecoff & Company (Winecoff), which in turn contacted Action Roofing Company. After various measures were taken by Action Roofing, the damp spot dried up and did not grow moist after being tested, both by water hosed onto the roof and by natural rainshowers. A Winecoff employee repainted the ceiling after the testing in August 1983 and appellees sold the unit to appellant, the owner of another unit in the same complex, in late March 1984. Two and one half months later a damp spot appeared in the general vicinity of the earlier spot, requiring extensive outside repairs.

Appellant contends the trial court erred by granting summary judgment to appellees because genuine issues of material fact exist as to appellant’s claim that he was defrauded by appellees’ failure to disclose certain defects in the property. “Fraud, unlike negligence, breach of warranty or breach of contract, is premised upon the ‘actual moral guilt’ of the defrauding party. [Cit.] ‘Mere concealment of [a material fact], unless done in such a manner as to deceive and mislead, will not support an action. In all cases of deceit, knowledge of the falsehood constitutes an essential element.’ [OCGA § 51-6-2]. ‘The element of intention to deceive is as necessary in an action based on concealment as one based on wilful misrepresentation. [Cit.] An action for fraud and deceit must [be based upon a] representation (or . . . concealment) [which] was made with the intention and purpose of deceiving the opposite party ([cit.]), and for the purpose of injuring him. [Cit.]’ [Cit.] . . . ‘ “In order to recover in an action of deceit, it is indispensable that the scienter be . . . proved.” ’ [Cit.]” Lively v. Garnick, 160 Ga. App. 591, 592 (1) (287 SE2d 553) (1981). See also Duenas v. Bence, 174 Ga. App. 80 (329 SE2d 260) (1985).

Both appellees and the president of Winecoff stated in affidavits and depositions that they believed the ceiling had been completely and permanently repaired as of August 1983, prior to appellees’ placing the condominium on the market and nine months before appellant purchased the unit. The evidence is uncontroverted that no incidents occurred to indicate the ceiling had not been completely repaired in the nine-month period before the sale or in the eleven-week period after the sale. Further, no inquiry was made by appellant or his agent about the condition of the ceiling and there is no evidence appellees actively avoided disclosing the facts of the repair to appellant or his agent.

Appellees made a prima facie showing that they were entitled to judgment as a matter of law, Dueñas, supra, thereby shifting the burden to appellant to come forward with affidavits or otherwise, setting forth specific facts showing that there is a genuine issue of material fact for trial. See generally Dunoco Dev. Corp. v. Ed Taylor Constr., 178 Ga. App. 738 (344 SE2d 531) (1986). Appellant argues he carried this burden by submitting the affidavit of Tony Kown, an employee of Action Roofing, who averred that although he was not able to recall any specifics, he did inform the management of the condominium complex during general discussion that “because of the roofs age, additional leaks might occur at anytime [sic]. If this happened, I asked the Association to get in touch with me.” Kown could not identify any individual with whom he spoke and both appellees and Winecoffs president denied conversing with Kown or being told by anyone else associated with Action Roofing that the roof of the condominium complex could leak at any time.

Decided January 5, 1988

Rehearing denied January 19, 1988

Harmon W. Caldwell, Jr., Harry W. MacDougald, for appellant.

Kenneth I. Sokolov, for appellees.

Appellant argues that Kown’s affidavit constituted circumstantial evidence from which a jury could infer that appellees knew the ceiling problem had not been permanently remedied by the repairs taken in the summer of 1983, in that appellee John Branch was the president of the condominium complex’s association during the time period in question and had admitted to having numerous conversations with the president of Winecoff, the management company, about the condition of the roof. However, “[i]n passing upon a motion for summary judgment, a finding of fact which may be inferred . . . but is not demanded by circumstantial evidence, has no probative value against positive and unrebutted evidence that no such facts as sought to be inferred do exist. [Cit.]” Kenny v. M & M Supermarket, 183 Ga. App. 225, 226 (358 SE2d 641) (1987). We do not agree with appellant that Kown’s affidavit presents probative evidence from which a jury could infer a chain of unproven events such as to controvert appellees’ statements that they had no actual knowledge of the alleged concealed fact. Since it is an essential element in a fraudulent concealment action that the allegedly defrauded party prove that the alleged defrauder had actual knowledge of the fact concealed, Lively, supra at 593, appellant’s failure to controvert appellees’ evidence that they had no such actual knowledge entitled appellees to summary judgment as a matter of law. Duenas, supra at 82 (1).

Judgment affirmed.

McMurray, P. J., and Beasley, J., concur.


author: McMurray, Presiding Judge. Beasley, Judge,

text:
    75189.
    SCOTT v. THE STATE.
    (365 SE2d 127)
   McMurray, Presiding Judge.

Appellant entered a plea of nolo contendere to simple battery and was sentenced to 12 months in jail and payment of a $100 fine, with the provision that the jail term be suspended upon payment of the fine and converted to 12 months of unsupervised probation. Appellant paid the fine and subsequently filed a motion to vacate (withdraw) his plea, alleging in pertinent part ineffective assistance of counsel.

At a hearing, appellant argued that “in a way [he] did understand what was going on and another way [he] didn’t . . .” when he entered his plea, that he was “completely unprepared for it” and that he did not believe his retained counsel “advised [him] correctly on what the law states about the offense of simple battery.” Although appellant asserted a variety of arguments which were unrelated to the “knowing and voluntary” nature of his plea, no other relevant evidence was offered by appellant at the hearing.

The following evidence was adduced, in pertinent part, at the hearing in which appellant entered his plea: “THE COURT: Are you Jimmie Lee Scott? [APPELLANT]: Yes, sir. THE COURT: Mr. Scott, do you understand that you are charged with simple battery? Do you understand the charges? [APPELLANT]: Yes, sir. THE COURT: You understand the rights that you give up when you plead nolo contendere or guilty? [APPELLANT]: Yes, sir. THE COURT: All right. Do you understand that the maximum sentence is 12 months in custody and a $1,000.00 fine that this Court can impose on this offense? [APPELLANT]: Yes, sir. THE COURT: You are represented by Mr. Parnham? [APPELLANT]: Yes, sir. THE COURT: And he is here in court with you today? [APPELLANT]: Yes, sir. THE COURT: And you have explained this charge to him and he has explained to you the charge and the rights you give up when you enter a plea, the maximum sentence, that sort of thing? [APPELLANT]: Yes, sir. THE COURT: Okay. Are you satisfied with his services? [APPELLANT]: Yes, sir. THE COURT: And is your plea voluntary? [APPELLANT]: Yes, sir. THE COURT: All right I find it to be voluntary. Mr. Farnham, do you want to say anything on his behalf? [DEFENSE ATTORNEY]: Yes, Your Honor. Mr. Scott is a man of great principles, and this particular charge of simple battery against him, he has opted to receive first offender treatment and he understands that this is generally used for felony charges, however, he has never had any charges brought against him in his entire lifetime and he feels in this particular issue, since the issue of simple battery, that he takes extremely serious and would not like to have something like that on his record. Under the circumstances, he wishes to opt for that privilege at this time. [STATE’S ATTORNEY]: Your Honor, we are recommending a $100.00 fine, 12 months probation, and that Mr. Scott be ordered to stay away from [the victim] and [the victim’s mother] . . . THE COURT: . . . All right. Mr. Scott, I accept your nolo contendere plea. As I said, I find it to be voluntary. I order that you pay a fine of $100.00 serving 12 months on non-reporting probation. And as a condition of your probation, you are not to go about or contact or have any harassing conduct in person or by phone or mail or any other way with [the victim] or [the victim’s mother]. Leave them alone, stay away from them. [APPELLANT]: That’s easy to do.”

Additionally, appellant executed a document entitled “RECORD OF DEFENDANT PRIOR TO ENTERING PLEA,” which provided, in pertinent part, as follows:

“I am not under the influence of alcohol or drugs and I am not suffering from any mental or physical disability.

“I have been advised of the nature of the charge against me, the maximum and minimum punishment provided by law and my right to be represented by a private attorney, or by a public defender, if I am eligible.

“I understand that by entering a plea of guilty or nolo contendere that I waive:

The right to trial by jury;

The presumption of innocence;

The right to confront witnesses against me;

The right to subpoena witnesses;

The right to testify and to offer other evidence;

The right to assistance of counsel during trial; and

The right not to incriminate myself.

“I also understand that by pleading not guilty I will obtain a jury/ bench trial. If I choose to remain silent and not enter a plea, a plea of not guilty will be entered on my behalf and I will obtain a jury trial. “I now desire to enter my plea of NOLO CONTENDERE to the charge against me. It is free and voluntary. I have not been told what sentence will be imposed. No promises or threats have been made to me by any District Attorney, Solicitor, Lawyer, Policeman or other person to induce me to enter this plea.

“I understand that if I am placed on non-reporting or reporting probation, I cannot violate any criminal laws of any governmental unit or any special conditions of probation without being subject to revocation for the balance of the sentence.

“I hereby acknowledge/waive receipt of a copy of the accusation in the above-styled case. I swear under penalties of perjury that these statements are true.”

The trial court denied appellant’s motion to vacate (withdraw) his plea of nolo contendere and appellant filed this appeal, pro se. Held:

1. First, the State seeks dismissal of appellant’s appeal, arguing that it is moot because appellant paid the entire $100 fine prior to filing his notice of appeal.

In Baker v. State, 240 Ga. 431 (241 SE2d 187), the Supreme Court dismissed the appeal as moot because the appellant had served his sentence prior to consideration of the appeal. More recently, this court dismissed the appeal in Gamble v. State, 181 Ga. App. 871 (354 SE2d 174), for virtually the same reasons. Contrary to the State’s contentions, however, these holdings are not dispositive in the case sub judice because appellant has not served his entire sentence. Appellant remains on probation through March 23, 1988. Compare Chaplin v. State, 141 Ga. App. 788, 789 (1) (234 SE2d 330). Accordingly, we shall address the merits of appellant’s appeal.

2. In his tenth enumeration of error, appellant contends “[t]he plea-bargaining system is illegal, because it violates the U. S. Const.. Amend. 5, 6 and 14.” We have examined appellant’s briefs and enumerations of errors in their entirety and we find no argument or citation of authority to support this assertion. Consequently, this enumeration of error is deemed abandoned pursuant to Rule 15 (c) (2) of the Rules of the Court of Appeals of Georgia. See Isbell v. State, 179 Ga. App. 363, 366 (3) (346 SE2d 857).

3. With regard to appellant’s assertions of ineffective assistance of counsel, our Supreme Court has “followed the rule that when a person indicates a desire to enter a guilty plea, the duty of counsel is limited to ascertaining whether the decision to plead is voluntarily and knowingly made. Walker v. Hopper, 234 Ga. 123 (214 SE2d 553) (1975).” Wharton v. Jones, 248 Ga. 265, 266 (282 SE2d 310). In the case sub judice, appellant presented no competent evidence showing that his retained counsel breached this duty. On the contrary, before entering his plea, appellant affirmed that his attorney explained to him the consequences of entering a plea. Appellant also responded affirmatively to the trial court’s inquiry as to whether he was satisfied with his attorney’s representation. See Spriggs v. State, 139 Ga. App. 586, 587 (2) (228 SE2d 727).

Contrary to appellant’s assertions, nothing in the record or transcripts suggests that defense counsel acted other than honestly, diligently and in good faith. Compare Wharton v. Jones, 248 Ga. 265, supra. On the basis of the evidence before the trial court in the case sub judice, the court was authorized to conclude that appellant’s plea was freely and voluntarily entered and was not adversely influenced by his attorney’s representation. “ ‘After the pronouncement of a sentence, a ruling on a motion to withdraw a guilty plea is within the sound discretion of the trial court. This discretion will not be disturbed on appeal unless manifestly abused.’ Crump v. State, 154 Ga. App. 359, 360 (268 SE2d 411) (1980).” Tahamtani v. State, 177 Ga. App. 52, 53 (338 SE2d 488). We find no such abuse of discretion in the case sub judice. See Annotations, “Adequacy of Defense Counsel’s Representation of Criminal Client Regarding Guilty Pleas,” 10 ALR4th 8 (1981).

Decided January 4, 1988

Rehearing denied January 19, 1988

Jim Scott, pro se.

Ralph T. Bowden, Jr., Solicitor, Elliott Shoenthal, Debra J. Blum, Assistant Solicitors, Michael J. Bowers, Attorney General, for appellee.

4. Appellant’s remaining assertions have either been rendered moot or are not relevant to this appeal.

Judgment affirmed.

Sognier and Beasley, JJ., concur. Beasley, J., also concurs specially.

Beasley, Judge,

concurring specially.

I fully concur. As to the validity of the plea, compare Strickland v. State, 185 Ga. App. 444 (364 SE2d 872) (1987).